Jerry Ray Davidson v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

May 2012 Session

JERRY RAY DAVIDSON v. STATE OF TENNESSEE

Circuit Court for Dickson County

No. CR-7386 Robert E. Burch, Judge

No. M2010-02663-CCA-R3-PD - Filed February 7, 2013

The Dickson County Circuit Court denied the Petitioner, Jerry Ray Davidson, post-conviction

relief from his convictions of first degree premeditated murder and aggravated kidnapping

and his sentence of death. The Petitioner appeals. Having discerned no error, we affirm the

post conviction court’s denial of relief.

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

J OHN E VERETT W ILLIAMS, J., delivered the opinion of the court, in which J AMES C URWOOD

W ITT, J R. and JEFFREY S. B IVINS, JJ., joined.

Paul J. Morrow, Jr., and Kelly A. Gleason, Office of the Post-Conviction Defender,

Nashville, Tennessee, for the Petitioner, Jerry Ray Davidson

Robert E. Cooper, Jr., Attorney General and Reporter, William E. Young, Solicitor General,

and Scott C. Sutherland, Assistant Attorney General; Dan Alsobrooks, District Attorney

General and Robert S. Wilson, Assistant District Attorney General, for the Respondent, State

of Tennessee

OPINION

Background

The Petitioner, who was fifty-two years old at the time of trial in 1997, was convicted

of first degree premeditated murder and aggravated kidnapping. The convictions relate to

the 1995 murder and kidnapping of Virginia Jackson in Dickson County. The Petitioner

received the death penalty for the murder conviction and a twenty-year sentence for the

kidnapping conviction. The jury sentenced the Petitioner to death based upon its finding of

the following three aggravating circumstances: (1) the Petitioner was previously convicted

of one or more felonies whose statutory elements involve the use of violence to the person;

(2) the murder was knowingly committed by the Petitioner during the commission of a

kidnapping; and (3) the Petitioner knowingly mutilated the body of the victim after death.

See Tenn. Code Ann. § 39–13–204(i)(2), (7) and (13) (Supp. 1995). The facts of this case

were summarized by our supreme court in its opinion on direct appeal:

[Guilt Phase]

Between 8 and 9 p.m. on September 26, 1995, the victim, Virginia Jackson,

and her dog arrived in a taxi cab at Bronco's Bar in Dickson, Tennessee.

Jackson was carrying a large purse and a white bed pillow and wearing

multicolored hair clips. When Jackson arrived at Bronco's Bar, the defendant,

Jerry Ray Davidson, was sitting quietly by himself drinking beer. Jackson

spent the next several hours at the bar drinking two beers and talking with the

bartender, Carol Owens, and other bar patrons. Although Jackson and

Davidson sat next to one another at one point, the two did not converse, and

the evidence does not suggest that they were acquainted. By closing time, only

Jackson, Davidson, and Owens remained in the bar. Owens tried to call a cab

for Jackson, but the cab company was closed for the night. Jackson accepted

a ride home from Davidson and was last seen alive around 11:30 p.m., carrying

her purse and pillow as she got into Davidson's red pickup truck with her dog.

Members of Jackson's family became worried when they did not hear from her

for several days. On October 1, 1995, her family filed a missing person report

with law enforcement officials, who began an investigation of her

disappearance. [FN: Jackson’s dog was found at her home.]

On September 30, 1995, only a few days after Jackson was last seen, Jackson's

brother-in-law observed a pile of clothing lying along a farm road leading to

her house. At that time, he did not connect the clothing with her

disappearance. On October 18, however, he reported the clothing to law

enforcement authorities. On October 18 and 19, law enforcement officers

found the following items belonging to Jackson along the farm road: hair

clips, a cell phone, panties, a pillow, a sweatshirt, and a sock. On October 19,

1995, two deer hunters found Jackson's decomposing, nude body. The body

was partially buried in a shallow grave several miles from her house in a

wooded area off an old logging road along the Houston/Dickson County line.

At trial, the condition of Jackson's body was described by Dr. Murray Marks,

the forensic anthropologist who disinterred the body, and by Dr. Charles

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Harlan, the forensic pathologist who performed the autopsy on the body. Dr.

Marks stated that the body was found lying chest down. The head was

missing, although it appeared that a space had originally been dug for it in the

grave. Part of the torso and left arm of the body were exposed, and the left

hand was missing. There was evidence that animals had gnawed on the left

arm, the neck, and the shoulder area. However, other trauma to the body was

inconsistent with animal activity. Dr. Harlan observed that the skin at the front

and back of the neck had been cut; the trachea exhibited a clean, sharp cut; the

hyoid bone, which is located in the upper throat, had also been cut; and there

was clear disarticulation of the cervical vertebral column. In addition, the

torso, including the breast bone, had been cleanly cut open with some type of

sharp instrument. This incision ran almost the entire length of the torso from

the sternum to the navel and exposed the internal organs. Several superficial

cuts had been made in the soft tissue next to the large incision. Dr. Harlan

opined that both the major incision and the lesser cuts were inflicted after

death. Toxicology tests revealed the presence of alcohol and Prozac in the

body, although the quantity of these substances was not determined.

According to Dr. Marks, it was possible that Jackson's neck had been cut and

her head removed after death by either animal or human activity. Dr. Harlan

opined that a human being, not an animal, had removed the head after death.

Relying on changes in the body's color and texture, Dr. Marks concluded that

Jackson had been dead for four to six weeks. Based on the degree of the

body's decomposition, Dr. Harlan testified that death had probably occurred

within twenty-four hours of Jackson's departure from Bronco's Bar on

September 26, 1995. A cause of death could not be determined from Jackson's

remains. Dr. Harlan, however, expressed his belief that her death was a result

of homicide and that she could have died from wounds to her neck or head.

All of the evidence regarding Davidson's role in the killing is circumstantial.

For example, Davidson was a janitor in a hospital department where surgical

instruments were cleaned. Although he had been a good and reliable

employee, he did not return to work as scheduled after September 26, 1995.

He did not contact anyone at work about his absence, and he was eventually

fired. In addition, he did not return to his residence at his mother's home for

almost three weeks after Jackson's disappearance. On October 2, 1995,

Davidson's mother informed the Dickson police that he was missing. Mrs.

Davidson withdrew the missing person report on October 8, 1995, after

Davidson telephoned her. Davidson later returned to his mother's house, once

spending the night, and a second time retrieving a camper top for his pickup

truck.

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There was also evidence that Davidson was in the area where the body was

found in the days following Jackson's disappearance. Between October 4 and

6, 1995, approximately a week after Jackson disappeared, Melinda Jones saw

Davidson driving a red truck very slowly down Old Yellow Creek Road in

Dickson County. Jones saw an object in the passenger seat that was tightly

wrapped in a white sheet and was about as high as Davidson's shoulder. As

the truck went by, Jones saw the white object fall over onto Davidson, who

pushed it away. Later that evening, Jones observed the same truck traveling

in the opposite direction at a high rate of speed. Jones also testified that she

remembered seeing the same truck go down the road a few days to a week

earlier, shortly after Jackson disappeared. At that time, the truck was going

very slowly, and Jones, who was able to see inside the vehicle as it passed,

noticed that “there was something that wasn't right about the passenger's seat.”

Jackson's body was discovered about one and a half miles from Jones's home.

Additionally, between October 2 and 6, 1995, around 8 to 9 a.m., Davidson

came into Kim's One Stop Market not far from Jones's home. He was wearing

work pants and was covered with dirt to his waist. According to one witness,

Davidson looked “like he'd been digging in like a garden or something.”

Davidson sat in the store drinking a cup of coffee for about an hour before

driving away in a red pickup truck with a camper top. A week later he

returned to the market to purchase a soft drink.

The State's proof also showed that on September 29 and 30, 1995, Davidson

made purchases at a grocery store and at a Wal–Mart in Waverly, Tennessee,

in the county just southwest of the area where Jackson's body was found. On

October 4, 1995, around the time Melinda Jones saw Davidson driving his

truck down Old Yellow Creek Road, Davidson also made a withdrawal from

an automatic teller at a bank in Erin, Tennessee, in Houston County. All of

these transactions place Davidson in the vicinity where Jackson's body was

found at a time shortly after her disappearance.

Other sightings of Davidson after Jackson's disappearance also connect him

with the killing. For example, on October 9, 1995, Davidson reappeared at

Bronco's Bar in Dickson. When Owens, the bartender, asked him where he

had taken Jackson on September 26, 1995, Davidson told her that he had

dropped Jackson off at a Kroger grocery store. Later that same day, when

Timothy Eads of the Dickson County Sheriff's Department went to Bronco's

Bar to speak with Owens, Davidson was still there. After Owens identified

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Davidson as the man who had taken Jackson home, Eads questioned Davidson

about Jackson for several minutes. Davidson informed Eads that he had left

Jackson at the Kroger parking lot around midnight. Davidson appeared

nervous and uncomfortable during his conversation with Eads and left the bar

soon after Eads. When Eads tried to contact Davidson again, Davidson could

not be located. On October 18, 1995, Eads executed a search warrant at

Davidson's residence. He seized an expended 20–gauge shotgun shell that was

later determined to have been fired from a shotgun found in Davidson's truck.

On October 12, 1995, Davidson came into the Lakeview Tavern in

Cumberland City and ordered a beer. The bartender, Darla Harvey, testified

that his pants and shoes were covered with dirt. For over an hour, Davidson

sat in the bar and stared at Harvey while sipping his beer. Disturbed by

Davidson's appearance and behavior, Harvey went outside and examined

Davidson's truck. At that time, the bed of the truck was covered with a camper

top that had been spray painted red everywhere but the back window. Harvey

looked inside the camper and saw a dirty sleeping bag, a dirty shovel, a chain,

and two Rubbermaid containers. According to Harvey, the truck was “very

messy,” as if Davidson had been living in it. Harvey informed some of the bar

patrons that she was afraid of Davidson, who then left the bar at the patrons'

request.

On October 19, 1995, Davidson was arrested at Robert's Creek Bar near Cuba

Landing in Humphreys County. At the time of the arrest, Investigator Ted

Tarpley spoke with Davidson. Davidson denied giving Jackson a ride on

September 26. After Officer Eads joined the interrogation, Davidson changed

his story and stated that he had left Jackson at the Kroger parking lot before

driving to Nashville. He claimed that he stayed in Nashville until 3 or 4 a.m.,

returned home, and then left the next morning for East Tennessee. Eads and

Tarpley did not inform Davidson that Jackson's body had been found. When

asked to hypothesize about what might have happened to Jackson, Davidson

responded, “Maybe somebody got her and chained her to a tree.” Davidson

also told Eads and Tarpley that they might find Jackson with her head and

hands missing to keep anyone from identifying the body. After Davidson was

informed that the body had been found, he was asked what he had done with

the head, and he replied, “I haven't told you that I killed her yet.” Davidson

later said that he might have something to say but could not say it yet. He also

told the officers that he had quit his job because “things were just getting

tense” and he decided to leave.

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Searches of Davidson, his truck, and the area where the body was discovered

yielded several items linking him to the killing. On his person, the arresting

officers found a .25 caliber automatic pistol, a chrome knuckle knife with the

blade open, a pair of handcuffs, a box of .25 caliber bullets, and a live

20–gauge shell. The pistol was loaded and ready to fire. At the time of his

arrest, Davidson's truck did not have a camper top on it. His truck appeared

to have been driven through mud and vegetation. Moreover, the truck

contained the following items: an Ozark Trails tent, two shotguns, a knife,

handcuff keys, clothing, flashlights, cans of red spray paint, and Marlboro

cigarettes. Officers also found numerous items at the campsite or grave site

that belonged to either the defendant or to Jackson. [FN: For purposes of

investigation, the general location where the body and other evidence was

found was broken down into two areas: the grave site area where the body was

actually found and the campsite area across the logging road from the grave.]

The items included a box for an Ozark Trails tent, shells that had been fired

from the shotgun found in Davidson's truck, a knife, handcuffs that matched

the keys discovered in the Davidson's truck, packages and fragments of

Marlboro cigarettes, a tool box resembling one previously seen on Davidson's

truck, cans of red spray paint, clothing and flashlights similar to those in

Davidson's truck, and two receipts reflecting a withdrawal from Davidson's

bank account on October 4, 1995, at an automatic teller in Erin, Tennessee.

Personal items belonging to Jackson, such as her sandals, billfold, a hair clip,

a brush, a prescription bottle, and cigarette case, were found at the campsite as

well.

In addition, the bottom of the passenger seat in Davidson's truck had been cut

out. A chain and padlock found around the passenger seat were arranged in

such a manner that they could be used to restrain a passenger. Blood on the

passenger seat and head rest tested positive for human blood. DNA testing

indicated that the blood samples from the truck did not match Davidson's

DNA. Instead, the samples were consistent with Jackson's DNA. According

to a report from LabCorp, Inc., only one in 265,000 people would be expected

to have DNA matching that of Jackson.

The defense presented evidence attempting to counter the prosecution's

circumstantial evidence. There was testimony that two tires on Jackson's truck

had been punctured by a knife about two days before she disappeared. In

addition, a forensic pathologist who testified for the defense criticized the

manner in which the State's forensic pathologist had performed the autopsy

and preserved the body. The defense pathologist also complained that the

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quantity of alcohol and Prozac in Jackson's body should have been determined.

The defense introduced Jackson's medical records reflecting her

hospitalizations between 1978 and 1995 for depression and drug and alcohol

abuse in an attempt to show that Jackson might have died from an overdose of

alcohol and/or Prozac. Her medical records include a report that she had once

overdosed on the drug Soma and had been pronounced dead. In addition, a

bottle labeled for a prescription for thirty pills of Prozac dispensed on

September 25, 1995, contained only five tablets when found at Jackson's home

after her disappearance. To counter the inference that Davidson could have

used a surgical instrument from his workplace to cut Jackson's body, the

defense presented testimony that no surgical instruments had been reported

missing from Davidson's place of employment. Finally, the defense presented

the testimony of a DNA expert who was unable to corroborate the findings of

the State's experts. The expert challenged the opinion that the DNA test ruled

out Davidson as the source of the blood found on the passenger seat of his

truck. The defense expert admitted, however, that she had made no

independent examination or analysis and was only reviewing LabCorp, Inc.'s

findings.

[Penalty Phase]

During the sentencing phase, the State presented proof that Davidson had been

convicted in 1971 for assault and battery with the intent to commit rape, in

1976 for assault and battery with the intent to ravish and to have unlawful

carnal knowledge of a female over 12 years of age, and in 1983 for felonious

crime against nature and for felonious sexual battery. A Tennessee Bureau of

Investigation agent testified that Jackson's body had been mutilated by cutting

the neck area and torso. Photographs showing the mutilation were re-introduced.

In mitigation, the defense presented the testimony of Davidson's mother,

several of his co-workers, and his minister. Davidson's mother related that, as

a child, he had lived with his grandparents and had not completed school

because he was always in trouble with the law. She described her son as a

quiet boy who had few friends. He had no contact with his father throughout

his life. At some indefinite time in the past, he had spent one to two years at

Central State Hospital for mental problems. Davidson's mother testified about

how badly Davidson had taken his younger brother's death in Vietnam and

how he had helped her at home. Next, several of Davidson's co-workers

testified that he was a good worker, a good friend, and a nice, considerate man

who would help anyone. They found Davidson's involvement in Jackson's

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murder inconsistent with his behavior when he was around them. The last

witness for the defense was Joe Ingle, a minister, who described Davidson as

quiet and passive, with an interest in the Bible's prophetic books and an

openness to learning new things. Ingle opined that Davidson would not be a

threat in prison and would participate in work or educational programs.

State v. Davidson, 121 S.W.3d 600, 605-10 (Tenn. 2003). The supreme court affirmed the

Petitioner’s convictions and sentences in a three to two opinion. The two dissenting justices

opined that the evidence was insufficient to support a finding of premeditation and also that

the admission of the testimony of Darla Harvey was reversible error because it was

irrelevant, unfairly prejudicial, and improper lay opinion.

Post-Conviction

The Petitioner timely filed his petition for post-conviction relief in August 2004. The

trial court appointed the Office of the Post-Conviction Defender which filed an amended

petition in March 2005. The trial court conducted an evidentiary hearing over the course of

several days in May and November 2006, September 2008, and March 2009. On November

10, 2010, the trial court filed its written order denying post-conviction relief.

Evidentiary Hearing

Tina Smith, an employee at the hotel where the jurors were sequestered during trial,

testified on behalf of the Petitioner. Ms. Smith witnessed a red car with a driver and a

passenger circle the hotel while the jurors were having dinner in the hotel restaurant. She

witnessed the passenger exit the car, walk down the corridor where the juror rooms were

located, then return to the car, at which time the two individuals drove away. Ms. Smith

stated that the passenger did not encounter anyone during his walk. Ms. Smith reported the

incident, which she described as unusual, to one of the officers accompanying the jurors. Ms.

Smith did not recognize either the driver or passenger, and according to her testimony, the

jurors would not have been able to see the passenger exit the car and walk down the corridor

from their vantage point in the restaurant. Ms. Smith testified that she did not witness any

juror come into contact with the individual from the vehicle.

Rosemary Jackson served on the jury in this case. Although Ms. Jackson did not see

trial counsel visit the hotel, she testified that “everybody was talking about it.” Ms. Jackson

also testified that after the jury was empaneled she heard one of the bailiffs tell some of the

jurors that the Petitioner had beheaded the victim and “had done really bad things to other

people.” In addition, Ms. Jackson testified that her husband worked at the jail where the

Petitioner was housed during trial. Her husband told her he thought the Petitioner was guilty

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and also told her that the Petitioner mentioned that if he was found guilty he would kill

anyone in order to escape. During cross-examination, Ms. Jackson confirmed that she

maintained no predisposition about the Petitioner’s guilt or innocence.

In addition, one of the police officers called to investigate the incident at the hotel

testified about the report he prepared. Dan Alsobrooks, the District Attorney General

involved in the prosecution of this case, testified that he was aware the trial judge issued an

order prohibiting such conduct in the future but did not know of any specific crime

committed by trial counsel which would have required an independent investigation by his

office.

Ralph Easley taught the Petitioner in 1966 at the State Area Vocational Technical

School in Dickson. Mr. Easley taught electronics and remembered the Petitioner as having

been an average student. According to Mr. Easley, the Petitioner was a fairly normal

individual and never caused any trouble. During cross-examination, though, Mr. Easley

could not confirm that the Petitioner was the same Jerry Davidson he taught in 1966.

Sheila Renee Elsea testified that the Petitioner was a regular customer at a restaurant

where she worked. Ms. Elsea also stated that the Petitioner was a friend of her ex-husband’s

grandmother. According to Ms. Elsea, the Petitioner frequented her ex-husband’s family

Sunday dinner between the mid 1980's into the early 1990's. Ms. Elsea recalled that the

Petitioner acted normal at the restaurant and during the Sunday dinner visits. Though she did

not remember the Petitioner’s being a talkative person, Ms. Elsea testified that the Petitioner

was polite and never caused any trouble. Ms. Elsea also knew the victim in this case.

Bill Sensing was a childhood friend of the Petitioner’s younger brother, who later died

in the Vietnam War. Mr. Sensing testified that he spent little time around the Petitioner but

he did not remember the Petitioner’s having many friends. Mr. Sensing described the

Petitioner as “an odd person,” the same description he gave the Petitioner’s mother who Mr.

Sensing said would allow her children to come and go as they pleased. Mr. Sensing did not

recall the Petitioner’s mother ever showing any affection toward the Petitioner. Mr. Sensing

admitted during cross-examination though that he never visited the Petitioner’s house. Mr.

Sensing testified that he never witnessed the Petitioner act violently as a child. Mr. Sensing

stated that, prior to the evidentiary hearing, he had not seen the Petitioner since the Petitioner

was eight or nine years old.

Collier Goodlett, Assistant Public Defender, and Attorney Michael Love represented

the Petitioner at trial. Counsel were appointed on June 5, 1996, and the trial commenced on

August 4, 1997. Mr. Goodlett had handled two prior death penalty cases and served as lead

counsel in this case. During the time he represented the Petitioner in this case, Mr. Goodlett

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testified that he maintained an extremely heavy caseload, which included representing

another defendant facing the death penalty. Mr. Goodlett also testified that he had no

secretarial help and thus was alone responsible for preparing and filing all pleadings.

According to Mr. Goodlett, the defense theory at trial was to challenge the sufficiency

of the State’s evidence. Mr. Goodlett did not believe the State would be able to prove its

case for first degree murder beyond a reasonable doubt. As for sentencing, Mr. Goodlett

testified that the defense focused on a theory of residual doubt and called several witnesses

in an attempt to show that the Petitioner did not deserve to die. Mr. Goodlett spoke with the

Petitioner’s mother occasionally prior to trial but did not interview any other family

members. Mr. Goodlett knew the Petitioner only completed the 9th grade in school, and he

was aware of his criminal record. Mr. Goodlett was also aware of the Petitioner’s extensive

mental health history and acknowledged that he agreed that the Petitioner should be

evaluated at Middle Tennessee Middle Health Institute (MTMHI) before trial.

Mr. Goodlett retained the services of Dr. Pamela Auble, a neuropsychologist, to

evaluate the Petitioner prior to trial. Mr. Goodlett wanted to know whether counsel would

be able to challenge the Petitioner’s ability to form the requisite mental state for the crimes

charged. Mr. Goodlett also hoped Dr. Auble’s evaluation would reveal helpful mitigating

evidence. Mr. Goodlett acknowledged, though, that he did not file a motion for funding for

Dr. Auble until July 10, 1997, and that the trial court did not approve funding until July 14,

1997. Mr. Goodlett was asked to review Dr. Auble’s report and confirmed that it discussed

the Petitioner’s poor upbringing, his father, who was an alcoholic and abusive, his mother,

who was hostile toward men and thought sex was evil, that the Petitioner lived with his

grandparents until age six, that he dropped out of school in the tenth grade, the Petitioner’s

long history of mental health problems for which he received treatment and medication, his

alcohol and drug usage, his criminal record, and his issues with women. Dr. Auble

concluded that the Petitioner suffered from an adjustment disorder with anxiety and a

schizotypal personality disorder. Mr. Goodlett testified, however, that defense counsel

decided not to call Dr. Auble as a witness during either phase of the trial.

Mr. Goodlett acknowledged that he had reviewed the Petitioner’s records from

MTMHI. The discharge summary from MTMHI reported that the Petitioner was diagnosed

with alcohol dependancy and personality disorder not otherwise specified, including schizoid,

antisocial and avoidant traits. The report also summarized the Petitioner’s past psychiatric

history: he was hospitalized at Central State (now MTMHI) when he was seventeen years

old; had been prescribed psychotropic drugs in the mid 1960's; and had been in and out of

jail most of his life. In addition, the Petitioner’s intelligence was deemed to have been

slightly below average and his insight and judgment were considered poor. A CT head scan

of the Petitioner performed at MTMHI revealed mild atrophy, and an EEG test revealed some

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abnormality “because of a slight excess of asynchronous slowing in all quadrants, which is

a non-specific finding.” Mr. Goodlett could not remember though whether Dr. Auble was

provided with the Petitioner’s MTMHI records. And although Mr. Goodlett knew the

Petitioner had been incarcerated at the DeBerry Special Needs Facility, he did not recall

obtaining those records or providing them to Dr. Auble.

Mr. Goodlett filed numerous pretrial motions related to the jury selection, aggravating

circumstances, prosecutorial conduct, and suppression of the Petitioner’s statements to the

police. Mr. Goodlett acknowledged that he did not file a motion to strike the aggravating

circumstance regarding the mutilation of the body but stated he probably should have. Mr.

Goodlett agreed that counsel should have investigated more thoroughly the schizophrenic

diagnosis the Petitioner originally received in the 1960's. Mr. Goodlett also agreed that they

should have introduced more evidence during the hearing on the motion for change of venue

in order to emphasize their position that the media coverage was extensive and that the

victim’s family was well-known by almost everyone in the community. Mr. Goodlett,

however, did not remember why they waited until after the hearing on the motion for change

of venue to request funding for a jury consultant.

Mr. Goodlett requested the services of Glori Shettles to assist counsel with the

investigation and presentation of mitigating evidence for the penalty phase. Counsel filed

the motion for funding on or about April 2, 1997, but the trial court did not sign the order

authorizing those funds until June 2, 1997. Mr. Goodlett testified that Ms. Shettles expressed

concern to defense counsel about her ability to conduct a thorough investigation into the

Petitioner’s background before the start of trial in August 1997. Mr. Goodlett stated that he

did not file a motion for a continuance based solely upon Ms. Shettles’ concerns. Although,

on June 13, 1997, Mr. Goodlett did file a motion to continue the trial, which at that time was

schedule to begin July 7, 1997.

Mr. Goodlett testified that prior to trial he intended to cross-examine Dr. Charles

Harlan, the medical examiner who performed the autopsy in this case, regarding allegations

that he had mishandled autopsies in other cases. Mr. Goodlett was aware that Dr. Harlan

apparently lost or destroyed certain body parts of the victim in this case. Mr. Goodlett thus

admitted that he should have filed a motion to dismiss, or at least requested a missing

evidence instruction, because of Dr. Harlan’s alleged conduct with respect to the handling

of some of the evidence in this case.

Mr. Goodlett was questioned about numerous statements the prosecutor made during

opening and closing arguments which he agreed were supposedly objectionable, but he could

not explain why defense counsel did not object. Mr. Goodlett was also questioned about his

conduct during voir dire and whether he should have objected to or otherwise requested

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certain jury instructions. As to each instance, Mr. Goodlett did not have a reason for his

actions or inactions related thereto.

Mr. Goodlett admitted that he and Mr. Love visited the hotel where the jury was

sequestered to see if the newspaper boxes were located in an area accessible by any of the

jurors. Mr. Goodlett testified that neither he nor Mr. Love exited the vehicle. Furthermore,

Mr. Goodlett did not believe they were seen by any of the jurors. Mr. Goodlett did recall,

though, that the trial judge later admonished them for going to the hotel.

During cross-examination, Mr. Goodlett estimated that he filed sixty or seventy

pretrial motions in this case. In addition to the standard motions he filed in most cases, Mr.

Goodlett testified that he filed other motions relating to “everything that [he] could think of.”

For example, Mr. Goodlett filed a request for permission to view the notes the trial judge

took during voir dire because he thought they might have revealed names of jurors who were

too eager to sit on this case. Similarly, Mr. Goodlett testified that he believed counsel took

every appropriate step to get the trial moved to another county.

Mr. Goodlett acknowledged that counsel employed the services of several independent

experts to assist the defense. Mr. Goodlett recalled that the defense presented expert

testimony to challenge the State’s DNA evidence. Mr. Goodlett also testified that he met

with Dr. Harlan prior to trial to discuss his autopsy and thereafter obtained the services of an

independent expert to challenge Dr. Harlan’s conclusions. Mr. Goodlett stated that they

voiced an objection because Dr. Harlan allegedly did not preserve all of the evidence

following his autopsy thereby preventing their expert from examining all of the bones that

Dr. Harlan examined. Mr. Goodlett retained the services of Dr. Auble to evaluate the

Petitioner’s mental health. Mr. Goodlett decided not to call Dr. Auble as a witness after she

related her findings to him, however. According to Mr. Goodlett, Dr. Auble told him that

the only contribution she could have made in defense was to testify that the Petitioner would

be a good candidate for life in prison.

Mr. Goodlett agreed that the Petitioner had never been declared incompetent to stand

trial or otherwise insane. Although Mr. Goodlett testified that he since believed counsel

should have introduced evidence about the Petitioner’s mental health during sentencing, he

agreed that statements the Petitioner made, which are contained in his records, that he liked

to rape women and that he wanted to chain a woman in his vehicle, would have been hurtful

to the defense had the State been able to introduce them in rebuttal. When questioned further

during cross-examination, Mr. Goodlett testified that he was concerned about the State’s

ability to rebut any psychological evidence with the negative information contained in the

Petitioner’s records. As such, Mr. Goodlett agreed the fact that the Petitioner was described

in his records as manipulative and prone to lying had some bearing on his decision not to call

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mental health experts during sentencing. The Petitioner’s records also contained an expert

opinion that the Petitioner would be inclined to commit rape and murder in the future, which

Mr. Goodlett agreed would have been detrimental if introduced by the State in rebuttal. Also

detrimemtal, Mr. Goodlett testified, were reports attributed to the Petitioner saying that one

of his favorite activities was to rape women, that he had raped over one hundred women, and

that he believed the only difference between making love and rape was whether or not the

woman liked it.

Mr. Goodlett testified that counsel thoroughly investigated the facts of this case and

discussed trial strategy with the Petitioner. According to Mr. Goodlett, their in-house

investigator interviewed the State’s witnesses and visited the crime scene. Mr. Goodlett

testified that they introduced evidence relating to the victim’s history of mental health

treatments and substance abuse in an attempt to suggest she was somewhat irresponsible and

could possibly have met someone else after she left the bar with the Petitioner. Mr. Goodlett

testified that the Petitioner was aware of all the negative information contained in his records.

Although counsel discussed with the Petitioner the possibility of testifying in his own defense

at both stages of the trial, Mr. Goodlett did not believe the Petitioner would have made a

good witness.

Glori Shettles, an employee of Inquisitor, Inc., was retained by trial counsel to

investigate potential mitigating evidence in this case. Ms. Shettles stated she was initially

contacted by counsel in November 1996. Ms. Shettles did not know, though, why counsel

did not file a motion for her services until April 2, 1997. Nor did she know why the trial

court’s order authorizing her funding was not filed until June 2, 1997, or why counsel did not

notify her until June 19, 1997. Ms. Shettles did not begin working on this case until funding

was authorized, and she stated that she did not have any contact with counsel between April

and June 1997.

According to Ms. Shettles, approximately nine months are required to adequately

investigate and assess mitigating evidence in a capital case. Ms. Shettles testified, though,

that she performed “very, very little” investigative work in this case. Ms. Shettles recounted

telling counsel that she was concerned about the lack of time available between the funding

authorization and trial date for her to conduct an adequate investigation. Ms. Shettles said

she was asked to review the records counsel had already obtained and to interview the

Petitioner, his mother ,and “a couple of collateral people.” Ms. Shettles testified, though, that

she received no further direction from counsel regarding the theory they intended to pursue

at sentencing. Although she stated that she had available resources to perform a standard

capital case mitigation investigation, Ms. Shettles stated she did not have the time to do so

in this case. Ms. Shettles billed approximately forty hours of investigative work in this case.

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During cross-examination, Ms. Shettles acknowledged that she reviewed records

obtained by the Public Defender’s in-house investigator. She further acknowledged that she

highlighted the content of the records for counsel, including the unfavorable content counsel

would likely have steered clear of during trial. Ms. Shettles testified that she had not been

involved in many other cases where the records of the defendant were as unfavorable for

defense counsel as in this case.

Rockelle (Daniels) Coffey was a criminal investigator for the Public Defender’s

Office during the trial of this case. Ms. Coffey identified a memo, dated June 25, 1997,

which she wrote to Ms. Shettles, the mitigation specialist hired by defense counsel. Attached

to that memo were all of the Petitioner’s records Ms. Coffey had collected to date, including

a copy of the records from the Petitioner’s mental health evaluation at MTMHI in March

1997. Ms. Coffey did not interview any witnesses other than the Petitioner during her

investigation into this case, but she acknowledged during cross-examination that her primary

job was to identify and locate relevant records related to the Petitioner’s history. Ms. Coffey

testified that her involvement in this case ended once Ms. Shettles began her investigation.

Dr. Daniel Malcolm Spica, a neuropsychologist, evaluated the Petitioner prior to the

evidentiary hearing in order to assess the Petitioner’s neurobehavioral status. Dr. Spica

interviewed the Petitioner in prison on two separate dates for a total of twelve hours. As part

of his evaluation, Dr. Spica administered approximately twenty tests which measured the

Petitioner’s mood, his ability to receive and process information, and his academic

performance, in addition to ascertaining whether the Petitioner was malingering. According

to Dr. Spica, the Petitioner did not malinger during the interviews. Dr. Spica testified that

the Petitioner seemed to function well during normal interaction and that he possessed a good

vocabulary and was reasonably articulate. Dr. Spica determined that the Petitioner’s full I.Q.

was 89, which is between average and below-average. According to Dr. Spica, the

Petitioner’s verbal I.Q. score was 97, and his performance I.Q. score was 79. Although Dr.

Spica stated that the verbal score reflected the Petitioner’s good vocabulary and general

accumulated knowledge, the eighteen point difference between the two individual I.Q. scores

suggested probable brain dysfunction. Dr. Spica testified that the Petitioner had difficulty

mentally organizing and comprehending information in uncertain or unfamiliar situations.

Accordingly, Dr. Spica opined that the Petitioner would perform well in a structured

environment such as prison.

Dr. Spica diagnosed the Petitioner with a cognitive disorder, not otherwise specified,

due to impaired judgment and reasoning skills, impaired visual and analytical processing,

impaired reading speed, dysfunction of executive controls, and impaired ability to

discriminate information. Dr. Spica also diagnosed the Petitioner with depressive and

anxiety disorders, not otherwise specified. According to Dr. Spica, the testing results

14

suggested that the Petitioner had frontal and right hemisphere cerebral dysfunction. Dr.

Spica concluded that the Petitioner possessed “instability of reasoning (disordered thinking

when under pressure)” and “deficits in discriminating between actual information and

distorted approximations.” Dr. Spica further concluded:

[The Petitioner appeared] to be a man of only modest internal/intellectual

resources, with unreliable judgment skills, and an inability to sort through

information provided to him. His objective test scores revealed that his

reasoning ability under calm, controlled conditions ranks at the level of a 9- or

10-year-old; when under pressure he performed much lower (severely impaired

range). In addition, his apparent right hemisphere processing inefficiency

likely leads him to misinterpret the array of subtle cues provided in social

contexts that bring meaning to interpersonal interactions. The [Petitioner] is

likely easily overwhelmed by multiple sources of information, ambiguous

signals, and any perceived pressure/threat.

Dr. Spica testified that the consumption of alcohol would exaggerate the Petitioner’s

impairments.

Dr. Peter Irvin Brown, a psychiatrist, performed a forensic psychiatric evaluation of

the Petitioner prior to the evidentiary hearing. Dr. Brown interviewed the Petitioner in prison

on two separate dates for a total of approximately five hours. Dr. Brown relied upon Dr.

Spica’s report and also reviewed the report from Dr. Auble’s evaluation of the Petitioner

conducted prior to trial, as well as the MTMHI pretrial report and various other of the

Petitioner’s medical, mental health and prison records and social history.

According to Dr. Brown, one mental health report when the Petitioner was about

seventeen years old suggested that he may have suffered from a pre-schizophrenic panic.

Another psychiatric evaluation of the Petitioner when he was about twenty-seven years old

concluded with a diagnosis of undifferentiated schizophrenia and revealed marked sexual

maladjustment. Dr. Brown also noted a report when the Petitioner was thirty-five years of

age describing the Petitioner as having an inadequate personality, lacking social skills, and

being highly anxious, impulsive and suggestible. A report from the sexual offender program

when the Petitioner was about thirty-eight years old concluded that he did not appear to have

the psychological resources to effectively deal with an unsupervised placement in the

community. Dr. Brown also referred to a report when the Petitioner was about forty-one

years old which noted that, despite the Petitioner’s extensive record, his problems with

impulsiveness and evidence of antisocial tendencies were only moderate. Another report

from a year later, when the Petitioner was about forty-two years old, described the

Petitioner’s unconventional thinking patterns and other schizoid features. Dr. Brown

15

testified that two later reports diagnosed the Petitioner with antisocial personality disorder.

Having reviewed these records, Dr. Brown testified that “the heavy weight of the clinical

evidence strongly supported the original concerns that [the Petitioner] is an individual who

has a schizotypal personality” with “a chronic, probably life long condition that involves

massive deficits in being able to communicate[,] to think and plan carefully and to control

emotion and behavior.” According to Dr. Brown, the Petitioner poses no risk as long as he

remains in a structured environment like prison.

According to Dr. Brown, Dr. Spica’s report revealed that the Petitioner’s capacity to

intake and process information is significantly impaired. Dr. Brown noted that the CT scan

contained in the MTMHI report from 1997 revealed cerebral atrophy. Dr. Brown testified

that people who suffer from schizophrenia are prone to shrinking of the brain tissue. In

addition, an EEG from that same report showed further abnormality in the electrical activity

in the Petitioner’s brain which, according to Dr. Brown, is also common among

schizophrenics. Dr. Brown agreed with Dr. Spica’s assessment that the Petitioner’s social

and emotional capacities corresponds with that of a ten-year-old.

Dr. Brown diagnosed the Petitioner with cognitive disorder, not otherwise specified,

and schizotypal personality disorder. Dr. Brown testified that the Petitioner exhibits signs

of severe disordered thinking, difficulty regulating emotions, high anxiety and trouble with

social communication. Dr. Brown noted a history of alcohol abuse but did not find any

evidence of mental retardation. According to Dr. Brown, because of his impairments, the

Petitioner cannot differentiate between what he imagines happening and what actually

happens. Dr. Brown opined that the Petitioner could not have acted deliberately or with

premeditation at the time of the crime because he would have been too impaired to consider

alternative actions or appreciate the consequences of his conduct. According to Dr. Brown,

the Petitioner’s actions after the murder suggest that he was reacting to the situation rather

than planning.

Dr. Brown admitted during cross-examination that he did not read the trial transcript.

Although he did say that he read the supreme court’s opinion which summarized the

evidence. Dr. Brown attributed the Petitioner’s statements, that he liked to rape women, to

fantasy and part of his thought process disorder. However, Dr. Brown acknowledged that

the Petitioner had actually attempted rape in the past. Regarding the opinion by a previous

mental health expert in 1982 that the Petitioner would be inclined to commit rape and murder

in the future, Dr. Brown stated that his view of that opinion was that the expert agreed the

Petitioner could not function in the real world unless he was immersed in a structured

environment. Dr. Brown believed that the Petitioner’s employment at Saint Thomas Hospital

prior to his convictions in this case provided the Petitioner with a structured environment.

16

Dr. Brown acknowledged during cross-examination that the Petitioner’s conduct after

the crimes reflected attempts to evade detection and conceal his involvement. When asked

about the Petitioner’s thought process after the crimes, Dr. Brown stated that the Petitioner

was attempting to solve a problem. According to Dr. Brown, though, the Petitioner did not

do a good job of evading detection or concealing his involvement: “It was extremely

disorganized behavior and it didn’t have any of the evidence that we would anticipate for

somebody who had planned and carried out an efficient plan.” Dr. Brown’s opinion that the

Petitioner did not premeditate the murder was based upon his review of the Petitioner’s

mental health records and “clinical information.” Again, Dr. Brown testified that he did not

read the transcript of the trial and thus acknowledged that he did not know all of the evidence

of the case.

Following examination by counsel, the trial court questioned Dr. Brown about

whether the Petitioner was incapable of premeditation. Dr. Brown answered in the negative,

but he did not believe there was evidence of premeditation in this particular case based, in

part, upon the spontaneous nature of the events and the Petitioner’s lack of a relationship

with the victim.

Dr. Pamela Auble, a neuropsychologist, was retained by counsel to evaluate the

Petitioner before trial. Dr. Auble testified at the evidentiary hearing that the field of

neurospychology encompasses the evaluation of people with brain injury to assess their

functioning, intelligence, memory, flexibility, motor skills and personality. She was first

contacted by counsel on July 9, 1997. Dr. Auble testified that she did not have much time

to evaluate the Petitioner but was asked to focus on the Petitioner’s emotional functioning

and any possible psychosis or disturbance of reality. Dr. Auble testified that counsel

provided her with some of the Petitioner’s prison records, but she did not receive a copy of

the March 1997 MTMHI report. Dr. Auble spent approximately three hours evaluating the

Petitioner. Dr. Auble interviewed the Petitioner and administered psychological tests, but

she stated that she did not have sufficient time to perform any neuropsychological testing.

According to Dr. Auble, psychological tests assess an individual’s personality and emotional

state while neuropsychological tests measure a person’s I.Q., memory, attention and mental

flexibility. Dr. Auble testified that, of the fifty people she had evaluated who were on death

row in Tennessee, the Petitioner was the only one who did not receive neuropsychological

testing.

Dr. Auble concluded that the Petitioner was competent to stand trial and that he was

not “floridly psychotic” at the time she interviewed him. Dr. Auble diagnosed the Petitioner

with a schizotypal personality disorder. According to Dr. Auble, schizotypal personality

disorder is not as severe as schizophrenia. Dr. Auble described someone suffering from the

disorder: “They’re not overtly psychotic most of the time. They’re strange individuals, often

17

paranoid. They have magical thinking. They don’t see the world the way other people see

it. They can have psychotic episodes but they’re usually relatively brief under stress.” Dr.

Auble believed that the Petitioner did not always accurately perceive situations and that he

had trouble relating to other people, especially women.

Dr. Auble did not learn that she would not be called as a witness until after the trial

ended. Dr. Auble never met with trial counsel in person. Dr. Auble testified that the

information contained in the MTMHI report would have suggested that further

neuropsychological testing should have been performed on the Petitioner.

During cross-examination, Dr. Auble acknowledged that Ms. Shettles informed her

she was going to forward additional records to her, including the MTMHI report, but Dr.

Auble told Ms. Shettles that she was not sure she would be testifying and thus did not know

if she needed to actually review those records. Dr. Auble suggested that Ms. Shettles inquire

with counsel before forwarding the additional records. Dr. Auble, however, never did

receive them. Dr. Auble testified that the Petitioner provided her with his own social history

during their meeting, including informing her of his long history of mental health

evaluations. Although Dr. Auble was concerned about the Petitioner’s history of treatment,

she stated that she did not personally request any additional information about the Petitioner.

Dr. Auble informed trial counsel that, based upon her evaluation of the Petitioner, the most

beneficial testimony she would have been able to contribute was her opinion that the

Petitioner would be able to adjust well in prison.

Michael Bredlove was an agent with the Tennessee Bureau of Investigation (TBI) who

assisted in the criminal investigation of this case. Although Agent Bredlove stated that he

routinely attended the autopsies in cases he worked, he was not present when Dr. Harlan

performed the autopsy in this case. Agent Bredlove testified that prior to September 1997

he never had concerns about Dr. Harlan’s ability to maintain evidence. Agent Bredlove

testified, though, that he disagreed with Dr. Harlan’s conclusion about the cause of death in

one unrelated case prior to 1997 which ultimately resulted in a murder conviction. Agent

Bredlove further testified that he had no other concerns thereafter about Dr. Harlan’s ability

to accurately identify cause of death or maintain evidence. According to Agent Bredlove,

Dr. Harlan disliked the director of the TBI and thus felt that he was treated unfairly at times.

Russ Winkler began working for the TBI in 1998. Prior to that he was an officer with

the Clarksville Police Department. In 1995, Agent Winkler investigated the death of a

twenty-five-day-old child. According to Agent Winkler, Dr. Harlan performed the initial

autopsy on the victim and concluded that the cause of death was accidental. Dr. Harlan’s

conclusion was that the trauma to the victim’s head was not inconsistent with the victim’s

falling and hitting a coffee table. Agent Winkler testified that another medical examiner

18

performed a second autopsy and offered a different conclusion about the cause of death. The

second medical examiner noticed fractures and bruises apparently overlooked by Dr. Harlan.

Agent Winkler testified that the suspect in that case thereafter was prosecuted for causing

multiple skull fractures to the victim’s head and was eventually convicted of murdering the

child.

Joseph Craig joined the TBI as an agent in 1998. He testified that he was involved

in the criminal investigation in an unrelated case in 1999 wherein Dr. Harlan misidentified

the victim in a burning death. Agent Craig also testified that he worked for the Dickson

County Sheriff’s Office Drug Task Force at the time the victim in this case disappeared.

Agent Craig testified that the victim contacted him a couple of times offering information

about drug activity in Dickson, the last time about a week before she disappeared. Agent

Craig stated, though, that the victim seemed intoxicated both times she called.

Rhonda Felts served as a bailiff in this case. Ms. Felts testified that she was instructed

by the court never to discuss anything about the case with the jury. Although she knew

Rosemary Jackson, Ms. Felts testified that she never discussed anything about the case with

her during trial.

Burden of Proof and Standard of Review on Appeal

The Petitioner's post-conviction petition is governed by the Post-Conviction Procedure

Act. Tenn. Code Ann. §§ 40-30-101 to -122. In order to obtain post-conviction relief, the

Petitioner must show that his convictions and sentences are void or voidable because of the

abridgment of a constitutional right. Tenn. Code Ann. § 40-30-103. The Petitioner must

establish the factual allegations contained in his petition by clear and convincing evidence.

Tenn. Code Ann. § 40-30-110(2)(f). Evidence is clear and convincing when there is no

serious or substantial doubt about the accuracy of the conclusions drawn from the evidence.

Hicks v. State, 983 S.W.2d 240, 245 (Tenn. Crim. App.1998).

Once the post-conviction court rules on the petition, its findings of fact are conclusive

on appeal unless the evidence preponderates against them. State v. Nichols, 90 S.W.3d 576,

586 (Tenn. 2002) (citing State v. Burns, 6 S.W.3d 453, 461 (Tenn.1999)); Cooper v. State,

849 S.W.2d 744, 746 (Tenn. 1993)). The Petitioner has the burden of establishing that the

evidence preponderates against the post-conviction court's findings. Henley v. State, 960

S.W.2d 572, 579 (Tenn. 1997). This Court may not re-weigh or reevaluate the evidence or

substitute its inferences for those drawn by the post-conviction court. Nichols, 90 S.W.3d

at 586. Furthermore, the credibility of the witnesses and the weight and value to be afforded

their testimony are questions to be resolved by the post-conviction court. Bates v. State, 973

S.W.2d 615, 631 (Tenn. Crim. App. 1997). By contrast, the trial court’s application of law

19

to its factual findings is reviewed de novo by this Court with no presumption of correctness.

Fields v. State, 40 S.W.3d 450, 453 (Tenn. 2001).

Claims of ineffective assistance of counsel are regarded as mixed questions of law and

fact. State v. Honeycutt, 54 S.W.3d 762, 766-67 (Tenn. 2001); Burns, 6 S.W.3d at 461. As

such, the trial court’s findings of fact underlying a claim of ineffective assistance of counsel

are reviewed under a de novo standard, accompanied by a presumption that the findings are

correct unless the preponderance of the evidence is otherwise. Fields, 40 S.W.3d at 458

(Tenn. 2001) (citing Tenn. R. App. P. 13(d)). However, a trial court’s conclusions of law are

reviewed under a purely de novo standard, with no presumption of correctness. Id.

Issues

I. Ineffective Assistance of Counsel

The Petitioner claims he received the ineffective assistance of counsel at trial and on

appeal. This Court will review in order each instance of misconduct alleged by the Petitioner

in his brief on appeal.

The Sixth Amendment provides, in pertinent part, that “[i]n all criminal prosecutions,

the accused shall enjoy the right . . . to have the Assistance of Counsel for his defense.” U.S.

Const. amend. VI. This right to counsel is “‘so fundamental and essential to a fair trial, and

so, to due process of law, that it is made obligatory upon the States by the Fourteenth

Amendment.’” Gideon v. Wainwright, 372 U.S. 335, 340 (1963) (quoting Betts v. Brady,

316 U.S. 455, 465 (1942)). Inherent in the right to counsel is the right to the effective

assistance of counsel. Cuyler v. Sullivan, 446 U.S. 335, 344 (1980). “The benchmark for

judging any claim of ineffectiveness must be whether counsel's conduct so undermined the

proper functioning of the adversarial process that the trial cannot be relied on as having

produced a just result.” Strickland v. Washington, 466 U.S. 668, 686 (1984); see Combs v.

Coyle, 205 F.3d 269, 277 (6th Cir. 2000).

The United States Supreme Court has adopted a two-prong test to evaluate a claim of

ineffectiveness:

First, the defendant must show that counsel's performance was deficient. This

requires showing that counsel made errors so serious that counsel was not

functioning as the “counsel” guaranteed the defendant by the Sixth

Amendment. Second, the defendant must show that the deficient performance

prejudiced the defense. This requires showing that counsel's errors were so

serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

20

Strickland, 466 U.S. at 687. The performance prong of the Strickland test requires a showing

that counsel's representation fell below an objective standard of reasonableness, or “outside

the wide range of professionally competent assistance.” Id. at 690. “Judicial scrutiny of

performance is highly deferential, and ‘[a] fair assessment of attorney performance requires

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

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

perspective at the time.’” Combs, 205 F.3d at 278 (quoting Strickland, 466 U.S. at 689).

Upon reviewing claims of ineffective assistance of counsel, courts “must indulge a

strong presumption that counsel's conduct falls within the wide range of reasonable

professional assistance; that is, the defendant must overcome the presumption that, under the

circumstances, the challenged action ‘might be considered sound trial strategy.’” Strickland,

466 U .S. at 689. Additionally, the courts will defer to trial strategy or tactical choices if they

are informed ones based upon adequate preparation. Hellard v. State, 629 S.W.2d 4, 9

(Tenn. 1982). Finally, we note that criminal defendants are not entitled to perfect

representation, only constitutionally adequate representation. Denton v. State, 945 S.W.2d

793, 796 (Tenn. Crim. App. 1996). In other words, “in considering claims of ineffective

assistance of counsel, ‘we address not what is prudent or appropriate, but only what is

constitutionally compelled.’” Burger v. Kemp, 483 U.S. 776, 794 (1987) (quoting United

States v. Cronic, 466 U.S. 648, 655 n. 38 (1984)). Notwithstanding, we recognize that “[o]ur

duty to search for constitutional error with painstaking care is never more exacting than it is

in a capital case.” Id. at 785.

If a petitioner shows that counsel's performance fell below a reasonable standard, then

he must satisfy the prejudice prong of the Strickland test by demonstrating “there is a

reasonable probability that, but for counsel's unprofessional errors, the result of the

proceeding would have been different.” 466 U.S. at 694. “A reasonable probability is a

probability sufficient to undermine confidence in the outcome.” Id. In evaluating whether

a petitioner satisfies the prejudice prong, a court must ask “whether counsel's deficient

performance renders the result of the trial unreliable or the proceeding fundamentally unfair.”

Lockhart v. Fretwell, 506 U.S. 364, 372 (1993) (citing Strickland, 466 U.S. at 687). In other

words, a petitioner must establish that the deficiency of counsel was of such a degree that it

deprived the defendant of a fair trial and called into question the reliability of the outcome.

Nichols, 90 S.W.3d at 587. That is, the evidence stemming from the failure to prepare a

sound defense or to present witnesses must be significant, but it does not necessarily follow

that the trial would have otherwise resulted in an acquittal. State v. Zimmerman, 823 S.W.2d

220, 225 (Tenn. Crim. App. 1991). “A reasonable probability of being found guilty of a

lesser charge, or a shorter sentence, satisfies the second prong in Strickland.” Id. Moreover,

when challenging a death sentence, a petitioner must show that “‘there is a reasonable

probability that, absent the errors, the sentencer . . . would have concluded that the balance

21

of the aggravating and mitigating circumstances did not warrant death.’” Henley, 960

S.W.2d at 579-80 (quoting Strickland, 466 U.S. at 695).

A. Investigation

1. Guilt Phase

The Petitioner argues that trial counsel should have presented evidence demonstrating

that he was incapable of forming the requisite culpable mental state required for a finding of

first degree premeditated murder instead of challenging the sufficiency of the State’s

evidence. According to the Petitioner’s argument, counsel did not invest enough time into

investigating his mental health, and thus they were unable to make an informed decision to

forego a diminished capacity type of defense in favor of the theory they ultimately pursued

at trial.

The Petitioner is challenging trial counsel’s strategy. Mr. Goodlett did not believe the

State would be able to prove that the Petitioner committed first degree premeditated murder.

The record does not dispute Mr. Goodlett’s testimony that defense counsel thoroughly

investigated the facts of the crime. In addition, counsel obtained the services of independent

experts to challenge those of the State regarding the autopsy findings and the DNA analysis

of blood found in the Petitioner’s vehicle. The State’s proof in this case was entirely

circumstantial. On direct appeal, although the majority of the supreme court concluded that

the convicting evidence was sufficient, they acknowledged that “the question is close in this

case.” 121 S.W.3d at 615. Contrary to the Petitioner’s suggestion, though, the fact that his

convictions were affirmed by a three to two vote does not equate with a presumption that trial

counsel should have chosen a different defense strategy. The Petitioner is still required to

demonstrate that counsel’s performance was deficient and that prejudice resulted.

The Petitioner was evaluated for almost a month at MTMHI prior to trial. Mr.

Goodlett testified that he reviewed the MTMHI report. According to that report, the

Petitioner was deemed competent to stand trial and there was no support for an insanity

defense. The report acknowledged the Petitioner’s lengthy criminal record and history of

mental health treatment. The report commented on the Petitioner’s tendency to exaggerate

and his ability prior to his arrest to maintain successful employment. It also noted that the

Petitioner declined to answer certain questions about his whereabouts or functioning during

the time of the crimes because he was concerned about his legal situation. The Petitioner was

determined to have a low-average to average I.Q. MTMHI diagnosed the Petitioner with a

personality disorder, not otherwise specified, with schizoid, antisocial and avoidant traits.

22

Mr. Goodlett testified that he was aware of the Petitioner’s criminal background and

long history of mental health treatments. Mr. Goodlett acknowledged, though, that the

Petitioner had never been declared incompetent to stand trial or otherwise insane. During

the evidentiary hearing, Mr. Goodlett acknowledged that information contained in many of

the reports from the Petitioner’s past evaluations would have been extremely damaging to

the defense and that he weighed the probability of that information being exposed to the jury

during cross-examination by the State when evaluating his trial strategy. Although the

Petitioner faults trial counsel’s limited investigation into his mental health, even only a

cursory review of the Petitioner’s records would have caused any reasonable attorney to

strongly consider an alternative approach to the defense. Included in those reports is the

following information, including statements attributable to the Petitioner, which Mr. Goodlett

testified were included in his case files: the Petitioner was viewed as being manipulative,

uncooperative and prone towards lying; the Petitioner was considered a dangerous parolee

and would be inclined to commit rape and murder in the future; the Petitioner stated that his

problem was that he liked to rape women; the Petitioner stated that he raped over 100 women

between 150 and 200 times; the Petitioner stated there are two types of relationships with

women, courtship and rape, and that he was no good at courtship; the Petitioner stated that

it was difficult to rape because there were a lot of things going on in his mind at the time; the

Petitioner said he would continue to assault women after his release from custody; the

Petitioner remarked that one of his favorite activities when he was younger was raping girls,

that he raped over 100 women, “if you use the legal definition,” and that the only difference

between making love and committing rape was whether or not the woman enjoyed it; the

Petitioner accepted a significant number of rape myths and he saw violence as a way of

controlling women; and the Petitioner said he would risk incarceration to spend time alone

with a particular woman and said that she would let him lock a chain around her and drive

her to East Tennessee. Even trial counsel’s mitigation specialist admitted that the

Petitioner’s records were some of the most unfavorable she had ever encountered.

In support of his argument, the Petitioner relies upon Dr. Brown’s opinion that the

Petitioner could not have formed the requisite premeditation given the facts of this case. Dr.

Brown testified that he read the supreme court’s opinion, but he admitted that he did not read

the trial transcript. Dr. Brown testified that he based his opinion upon his review of the

Petitioner’s personal records and other “clinical information.” Dr. Brown believed it was

more likely that the Petitioner reacted to the situation rather than having planned the crimes

in advance. And although he stated that the Petitioner did not do a good job concealing his

involvement, Dr. Brown agreed that the Petitioner’s actions after the murder did represent

attempts to conceal his involvement and avoid detection. Moreover, Dr. Brown

acknowledged that the Petitioner was not incapable of ever forming the culpable mental state

for first degree murder.

23

The Petitioner insists that trial counsel did not conduct a thorough enough

investigation into his mental health. However, counsel did thoroughly investigate the facts

of the crime. This is not a case where trial counsel did not engage in any trial preparation.

Instead, the Petitioner simply disagrees with counsel’s chosen strategy. Mr. Goodlett

testified that counsel discussed trial strategy with the Petitioner and that the Petitioner was

aware of the negative information contained in his records. Mr. Goodlett was also aware of

the Petitioner’s lengthy mental health history but, given the negative information contained

in many of the reports, decided that the best defense was to challenge the State’s

circumstantial evidence.

Reviewing courts must indulge a strong presumption that the conduct of trial counsel

falls within the wide range of reasonable professional assistance. Strickland, 466 U.S. at

689. Our supreme court has stated:

“Hindsight can always be utilized by those not in the fray so as to cast doubt

on trial tactics a lawyer has used. Trial counsel’s strategy will vary even

among the most skilled lawyers. When that judgment exercised turns out to

be wrong or even poorly advised, this fact alone cannot support a belated claim

of ineffective counsel.”

Hellard, 629 S.W.2d at 9 (quoting Robinson v. United States, 448 F.2d 1255, 1256 (8 th Cir.

1971)). “It cannot be said that incompetent representation has occurred merely because other

lawyers, judging from hindsight, could have made a better choice of tactics.” Id. This Court

must defer to counsel’s trial strategy and tactical choices when they are informed ones based

upon adequate preparation. Id.

As noted earlier, criminal defendants are not entitled to perfect representation, only

constitutionally adequate representation. Denton, 945 S.W.2d at 796. “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).

Moreover, “an accused is not deprived of the effective assistance of counsel because a

different procedure or strategy might have produced a different result.” Vermilye v. State,

754 S.W.2d 82, 85 (Tenn. Crim. App. 1987).

The Court has reviewed the lengthy trial record in light of the Petitioner’s post-

conviction claim and the evidence presented at the evidentiary hearing. The Court cannot

conclude, however, that the decision to challenge the strength of the State’s evidence was

objectively unreasonable. The Petitioner does not explain how counsel’s chosen strategy was

erroneous in and of itself. Instead, he argues that trial counsel should have chosen a different

strategy altogether. The evidence in this case was entirely circumstantial. The supreme court

24

acknowledged this was a close case. However, just because the jury concluded that the State

proved its case beyond a reasonable doubt does not mean that counsel’s performance was

deficient. Contrary to the Petitioner’s argument, trial counsel’s decision was an informed

one, and one to which deference will be given.

2. Penalty Phase

The Petitioner advances a similar argument about trial counsel’s decision regarding

the presentation of mitigating evidence. As noted above, Mr. Goodlett testified that the

theory of mitigation focused on residual doubt and an attempt to demonstrate that the

Petitioner did not deserve to die. During sentencing, trial counsel called the Petitioner’s

mother, six of his former co-workers, and the prison chaplain to testify about his background

and general good nature. The Petitioner argues in the post-conviction context, however, that

trial counsel should have presented evidence about his mental health problems instead. The

evidence the Petitioner now contends should have been introduced to the jury has been

summarized above.

The post-conviction court concluded that counsel were not deficient in their

investigation and presentation of the mitigating evidence. The court further concluded that

the alternative mitigating evidence introduced during the evidentiary hearing would not have

changed the outcome of the jury’s verdict at sentencing. The trial court properly analyzed

this issue under the standard established by our supreme court in Goad v. State, 938 S.W.2d

363 (Tenn. 1996). When considering a claim that trial counsel failed to present sufficient

mitigating evidence, our supreme court has directed the reviewing courts to consider the

following: (1) the nature and extent of the mitigating evidence that was available but not

presented; (2) whether substantially similar mitigating evidence was presented to the jury in

either the guilt or penalty phase of the proceedings; and (3) whether there was such strong

evidence of aggravating factors that the mitigating evidence would not have affected the

jury's determination. Id. at 371.

In the context of capital cases, a defendant's background, character, and mental

condition are unquestionably significant. “[E]vidence about the defendant's background and

character is relevant because of the belief, long held by this society, that defendants who

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

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

California v. Brown, 479 U.S. 538, 545 (1987) (O’Connor, J., concurring). The right that

capital defendants have to present a vast array of personal information in mitigation during

the sentencing phase, however, is constitutionally distinct from the question of whether

counsel's choice about what information to present to the jury was professionally reasonable.

The basic concerns of counsel during a capital sentencing proceeding are to neutralize the

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aggravating circumstances advanced by the State and to present mitigating evidence on

behalf of the defendant. Although there is no requirement to present mitigating evidence,

counsel does have the duty to investigate and prepare for both the guilt and the penalty phase.

See Goad, 938 S.W.2d at 369-70; Zagorski v. State, 983 S.W.2d 654, 657 (Tenn. 1998).

Deference must be given to an informed trial strategy. Hellard, 629 S.W.2d at 9.

Trial counsel’s conduct should not be measured in hindsight but, instead, should be assessed

from counsel’s perspective at the time. Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim.

App. 1992). Furthermore, the fact that a particular strategy failed or even hurt the defense

does not, alone, support a claim of ineffective assistance of counsel. Id. Although there is

no absolute duty to investigate particular facts or a certain line of defense, “counsel has a

duty to make reasonable investigations or to make a reasonable decision that makes particular

investigations unnecessary.” Strickland, 466 U.S. at 691. In determining whether counsel

breached this duty, counsel's performance is reviewed “for ‘reasonableness under prevailing

professional norms,’ which includes a context-dependent consideration of the challenged

conduct as seen ‘from counsel's perspective at the time.’” Wiggins v. Smith, 539 U.S. 510,

523 (2003) (quoting Strickland, 466 U.S. at 688-89)). Counsel is not required to investigate

“every conceivable line of mitigating evidence no matter how unlikely the effort would be

to assist the defendant at sentencing.” Id. at 533. Nor is counsel required to interview every

conceivable witness. See Hendricks v. Calderon, 70 F.3d 1032, 1040 (9th Cir. 1995). In

other words, counsel's duty to investigate and prepare is not limitless. Id.

Again, this is not a case in which counsel failed to conduct any investigation or

present any mitigating evidence. The Petitioner is challenging trial counsel’s decision to

forego the presentation of one type of mitigation theme in favor of another. Mr. Goodlett

testified that he was aware of the Petitioner’s mental health background and, even after only

an allegedly cursory review, knew the information contained in many of the reports would

have been extremely damaging to the Petitioner’s case during sentencing. Accordingly, Mr.

Goodlett decided instead to call lay witnesses who would support the Petitioner’s claim that

his life should be spared.

In denying relief on this ground, the post-conviction court made the following

statements:

[T]rial counsel were faced with a dilemma. They sought mitigation proof

based upon Petitioner’s mental health difficulties, but the evidence available

at trial would have also opened the door to the introduction of damaging

evidence which would have severely undermined the effectiveness of the

mental health evidence. In his post-hearing brief, Petitioner insists that the

evidence of [his] mental health difficulties would have outweighed any

26

prejudicial effect that the evidence of [his] state of mind with respect to

women would have had. This Court disagrees. This evidence would have

been potentially devastating. Thus, trial counsel made the difficult decision

not to present the mental health evidence.

...

Suffice it to say that trial counsel was aware of Petitioner’s mental health

difficulties although certainly not to the extent that they were presented at the

hearing on the Post-Conviction Petition. Trial counsel knew enough to know

that the presentation of a mental health defense in the penalty phase would

[have been] a “two-edged sword.” The theory of defense was that the State

had not proven the guilt of Petitioner beyond a reasonable doubt and, in the

penalty phase, that there was sufficient doubt of Petitioner’s guilt that the

death penalty should not be imposed. This is a valid defense theory. . . . This

Court finds trial counsels’ preparation in this area to have been adequate to

determine the relative merits of a mental health defense. Obviously, trial

counsel did not make [as] exhaustive an investigation into Petitioner’s mental

health as did post-conviction counsel but, having decided that the

disadvantages of such a defense outweighed the possible advantages, such a

[thorough] investigation was unnecessary. Trial counsel had determined that

another defense theory had a greater chance of success. This being the case,

trial counsel cannot be found to have been ineffective.

This Court agrees. As the trial court observed, post-conviction counsel engaged in

a more in-depth presentation of evidence into the Petitioner’s mental health. However, even

though trial counsel may have only briefly reviewed some of the Petitioner’s records, that

was sufficient to allow counsel to make an objectively reasonable decision which this Court

will not now second-guess. This Court must indulge a strong presumption that the conduct

of trial counsel falls within the wide range of reasonable professional assistance. Strickland,

466 U.S. at 689. We must also defer to counsel’s strategic choices in the presentation of their

defense. Hellard, 629 S.W.2d at 9. Our review of the record in this case leads us to

conclude that trial counsel reasonably decided to avoid allowing the jury to hear the negative

information summarized above. Indeed, that information could not have been well-received

by the jury, especially when it already knew the Petitioner had previous convictions for

assault and battery with intent to commit rape and felonious sexual battery, among others.

This Court concludes that trial counsels’ presentation of their case at sentencing was not

deficient or otherwise unreasonable.

B. Dr. Harlan’s Testimony

27

The Petitioner contends trial counsel failed to object to Dr. Harlan’s testimony that

the victim’s death probably occurred within twenty-four hours of when she was last seen

alive or that her death was the result of homicide. In addition, the Petitioner argues that trial

counsel should have challenged Dr. Harlan’s alleged failure to preserve parts of the victim’s

body.

The Petitioner is unable to demonstrate how counsel’s performance was deficient with

respect to the first two contentions. As both the trial court and State observe, experts in the

field of forensic pathology are routinely permitted to opine about both the time and manner

of death. See, e.g., Dellinger v. State, 279 S.W.3d 282 (Tenn. 2009) (case involving “battle

of experts” regarding victim’s time of death) and State v. Bragan, 920 S.W.2d 227 (Tenn.

Crim. App. 1995) (acknowledging that expert may opine that death was result of homicide).

Moreover, trial counsel did, in fact, call their own expert witness who disputed Dr. Harlan’s

opinions in both respects. Counsel did not simply acquiesce to the State’s evidence but

instead, and in line with their chosen theory of defense, actively challenged Dr. Harlan’s

testimony. Counsels’ performance thus cannot be considered objectively unreasonable.

Nevertheless, the Petitioner is unable to show prejudice. As the trial court concluded,

“[t]he exact timing of the death of the deceased is simply not critical.” The testimony of all

three experts who testified about the time of death necessitated that it occurred within a few

days of when she was last seen alive, and other evidence placed the Petitioner in the woods

where the victim was discovered approximately one week after the victim was last seen alive.

Furthermore, the supreme court concluded that, although the evidence did not reveal the

precise cause of death, the jury’s verdict that the act was premeditated was otherwise

supported by the totality of the evidence. The sufficiency of the convicting evidence has

already been challenged.

The Petitioner also contends that trial counsel were ineffective because they failed to

adequately challenge Dr. Harlan’s failure to preserve parts of the victim’s body during the

autopsy. Specifically, the Petitioner argues that counsel should have moved for a dismissal

of the indictment or the option of the death penalty as a sentence, or should have at least

requested a limiting instruction because Dr. Harlan did not preserve the cervical vertebrae,

the scapula or the radius and ulna off the left arm following the autopsy.

As both the State and the trial court recognize, Tennessee’s leading case addressing

the State’s failure to preserve evidence was issued after the trial in this case. In State v.

Ferguson, our supreme court held that if the proof demonstrates the State had a duty to

preserve the evidence at issue, but failed to do so, then the analysis of the issue focuses on

several factors for an appropriate remedy, which may entail dismissal of the charges or a

limiting jury instruction. 2 S.W.3d 912, 917 (Tenn. 1999). Those factors include the degree

28

of negligence involved, the significance of the destroyed evidence considered in light of the

probative value and reliability of any remaining secondary or substitute evidence, and the

sufficiency of the other convicting evidence. Id.

Because Ferguson was not decided until after the Petitioner’s trial, counsel’s failure

to move for a dismissal of the charges or request an instruction about Dr. Harlan’s handling

of the evidence at issue cannot be considered objectively unreasonable. Nevertheless, the

Petitioner is otherwise unable to demonstrate any resulting prejudice. The sufficiency of the

convicting evidence has previously been upheld and, in its analysis of whether the murder

was premeditated, the supreme court did not reference any of the expert testimony

concerning the removal of the victim’s head or arm. 121 S.W.3d at 614-16. Moreover, the

supreme court recognized that the precise cause of the victim’s death was undetermined and

that there was no dispute that areas of the victim’s body, including the neck and arm,

exhibited signs of trauma inflicted by both human and animal activity.

The Petitioner also argues that trial counsel should have attempted to impeach Dr.

Harlan’s reputation. Though counsel did not question Dr. Harlan about allegations

surrounding his practice in general, of which Mr. Goodlett was aware, trial counsel did call

their own expert witness to dispute Dr. Harlan’s findings. Accordingly, trial counsel did, in

fact, otherwise attempt to impeach Dr. Harlan. As the supreme court acknowledged, the

precise cause of death was undetermined. Nevertheless, during its review of the sufficiency

of the evidence, the supreme court concluded that “no single piece of evidence was sufficient

in and of itself to establish premeditation” but that, instead, “the facts and circumstances as

a whole were sufficient.” 121 S.W.3d at 616. Given our review of the record, we cannot

conclude that counsel’s failure to further impeach Dr. Harlan deprived the Petitioner of a fair

trial or called into question the reliability of the outcome. Nichols, 90 S.W.3d at 587. We

discuss in greater detail below the Petitioner’s Brady claim regarding information about Dr.

Harlan.

C. Hotel Visit

The Petitioner contends trial counsel created an actual conflict of interest which

mandated their withdrawal from the case after they visited the hotel where the jurors were

sequestered during trial. Similarly, the Petitioner argues that, based solely on counsel’s visit,

the jury was unfairly tainted with extraneous information.

Mr. Goodlett admitted during the evidentiary hearing that he and his co-counsel

visited the hotel while the jury was onsite in order to make sure the jurors did not have access

to any newspaper boxes. The trial judge was made aware of the incident soon after it

29

happened and admonished counsel, outside the presence of the jury, against any future visits

to the hotel.

In denying relief on this ground for post-conviction relief, the trial court stated:

Although trial counsels’ actions in visiting the jury’s motel were certainly

unwise, their actions do not appear to have prejudiced Petitioner. No questions

were asked of the juror who testified at the evidentiary hearing about her

reaction to the incident. There is no proof that the jurors received any outside

information [or] influences. As such, there was no need for the remedies

suggested by Petitioner. Although trial counsels’ inappropriate actions may

have cause[d] some excitement among some jurors, there is no indication that

these actions affected the verdict of the jury. This Court cannot imagine that

these actions by trial counsel could have caused any juror to return a verdict

different than that which was returned in this case.

This Court agrees. As both parties recognize, “when it has been shown that a juror was

exposed to extraneous prejudicial information or subjected to improper influence, a

rebuttable presumption of prejudice arises, and the burden shifts to the State to explain the

conduct or demonstrate that it was harmless.” Walsh v. State, 166 S.W.3d 641, 647 (Tenn.

2005). The Petitioner, however, did not present clear and convincing proof that any of the

jurors were actually exposed to any extraneous prejudicial information or improper influence

by counsel. Despite the Petitioner’s argument to the contrary, trial counsels’ actions, while

ill-advised, did not create an actual conflict of interest resulting in a presumption of prejudice

under the Strickland analysis. Although counsel may have been seen by one or more jurors,

their mere presence at the hotel, without direct proof of any contact or communication with

any juror, does not equate to exposure to extraneous prejudicial information or improper

influence. Accordingly, counsel’s actions cannot be said to have prejudiced the Petitioner’s

right to a fair and impartial trial.

D. Change of Venue

The Petitioner challenged on direct appeal the trial court’s denial of his motion for a

change of venue. The supreme court denied relief on the issue. 121 S.W.3d at 613. The

court noted that trial counsel supported their pretrial motion with numerous newspaper

articles as well as a videotape of a newscast, and the court recounted counsels’ argument

during the hearing on the motion in which they emphasized that the various news reports

detailed the facts of the case, including the Petitioner’s criminal record, and that the victim

was the member of a prominent local family. Id. at 610. The supreme court further noted

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that the trial court conducted a full evidentiary hearing on the motion and issued a written

order detailing its analysis. Id.

During its analysis, the supreme court recognized that trial venue may be changed “‘if

it appears to the court that, due to undue excitement against a defendant in the county where

the offense was committed or any other cause, a fair trial probably could not be had.’ Tenn.

R. Crim. P. 21(a); see also State v. Dellinger, 79 S.W.3d 458, 481 (Tenn. 2002) (appendix).”

Id. at 611. As the court observed, the trial court has the discretion to determine whether to

grant a motion for change of venue and that determination will not be reversed absent a clear

abuse of discretion. Id. at 611-12. The court cited the well-settled rule that “before a

conviction will be reversed for the trial court’s failure to grant a change of venue, an accused

must establish ‘that the jurors who actually sat were biased and/or prejudiced.’” Id. at 612

(quoting Dellinger, 79 S.W.3d at 481). The supreme court concluded:

Accordingly, the record shows that the trial court held an extensive evidentiary

hearing and considered numerous relevant factors in determining whether to

grant a change of venue. The trial court also conducted a lengthy and detailed

voir dire process that was devoted to determining the nature and extent of

exposure to media coverage of the defendant and victim as well as its potential

effect on the views of the potential jurors. There is no evidence that any juror

was actually biased or prejudiced against [the Petitioner]. We therefore

conclude that the trial court did not abuse its discretion in denying [the

Petitioner’s] motion for a change of venue.

Id. at 613.

The Petitioner now contends that trial counsel did not effectively present their motion

for change of venue. The Petitioner suggests that counsel should have retained the services

of a jury consultant and should have “vetted” the venire in order to present more evidence

at the hearing in support of their request. The trial court denied this ground for post-

conviction relief:

Although Mr. Goodlett acknowledged that the trial court denied the change of

venue motion because defense counsel failed to present adequate proof

supporting the motion, Petitioner did not present any proof at the evidentiary

hearing regarding the extent to which the seated jurors were exposed to

publicity regarding the case before or during trial. While there was evidence

of pre-trial publicity, the fact is that a jury was seated and these jurors were not

shown to have been influenced by this publicity. Thus, the Court finds that

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Petitioner has not established that trial counsels’ actions in presenting the

change of venue motion prejudiced Petitioner.

This Court agrees. Although the Petitioner argues that “further inquiry into what the

jurors’ thought is now blocked,” the Petitioner had the post-conviction burden of proving the

factual allegations supporting his grounds for relief by clear and convincing evidence. The

Petitioner has failed to do so in this instance. Trial counsel filed a motion for change of

venue and raised the issue on direct appeal. The Petitioner’s argument in post-conviction that

the presentation of additional or different evidence at the hearing on the motion for change

of venue might have affected the trial judge’s decision is not enough to establish that

counsel’s conduct was deficient or that prejudice resulted. The Petitioner’s challenges to

counsels’ conduct during voir dire are addressed below.

E. Jury Selection

1. Aggravating Circumstances

The Petitioner contends that trial counsel were ineffective for failing to object when

the trial court read all of the statutory aggravating circumstances to the jurors during voir

dire. As the trial court noted in post-conviction, instructing the jury on inapplicable

aggravating circumstances is error which may otherwise be deemed harmless. See State v.

Blanton, 975 S.W.2d 269, 281 (Tenn. 1998). However, the trial court’s recitation of all of

the statutory aggravating circumstances during voir dire while explaining to potential jurors

the capital sentencing process was not error. See State v. Robinson, 146 S.W.3d 469, 525

(Tenn. 2004). The jury selected in this case was only instructed on those aggravating

circumstances sought by the State. See id. Thus, counsel cannot be deemed ineffective for

failing to object in this instance.

2. Mitigating Evidence

The Petitioner contends that trial counsel should have objected when the trial court

allegedly informed two jurors they were not required to give weight to mitigating evidence.

In denying relief on this ground, the trial court stated:

The law is, of course, that jurors must be able to consider and give effect to

mitigating evidence. The trial judge simply stated that the jurors were free to

give no weight to mitigating circumstances. In other words, after evaluating

the mitigating evidence, the jurors were free to reject it if they so chose. The

statement of the trial court was correct and counsel cannot be ineffective for

failure to object when the court is not in error.

32

We agree. In the two instances cited by the Petitioner, the trial court properly

informed the jurors that they alone were responsible for deciding how much weight to assign

the mitigating evidence. Trial counsel cannot be deemed ineffective for objecting to those

statements.

3. Pretrial Publicity

The Petitioner advances a blanket statement that “trial counsel failed to adequately

investigate whether members of the jury pool had been tainted by the prejudicial pre-trial

publicity.” The Petitioner offers no argument in support thereof. This ground for relief must,

therefore, be considered waived. See Tenn. Ct. Crim. App. R. 10(b) (“Issues which are not

supported by argument, citation to authorities, or appropriate references to the record will be

treated as waived in this court.”). Nevertheless, the supreme court observed on direct appeal

that the record “demonstrates that the trial court conducted a meticulous and detailed jury

selection process from August 4 to August 19, 1997” that “involved over two hundred

potential jurors” and “was devoted to determining the nature and extent of exposure to media

coverage of the defendant and victim as well as its potential effect on the views of the

potential jurors.” 121 S.W.3d at 612, 613. The Petitioner is not entitled to relief on this

ground.

4. Individual Jurors

The Petitioner contends trial counsel were ineffective for failing to peremptorily strike

or move to excuse certain jurors for cause.

i. Juror Joy Anderson

The Petitioner argued on direct appeal that Juror Anderson was prejudiced against him

because her younger brother was a friend of the victim’s son. 121 S.W.3d at 612. The

supreme court rejected that argument concluding that its review of the voir dire demonstrated

that Juror Anderson was not prejudiced against the Petitioner or biased in favor of the victim.

Id. at 613. The court observed that Juror Anderson stated “she would not ‘lean one way or

the other’ if selected to serve as a juror and that her son’s [sic] relationship with [the

victim’s] family would not influence her in any way.” Id. at 612. The supreme court noted,

though, that Juror Anderson was not challenged for cause. Id. at 613.

In post-conviction, the Petitioner now contends that counsel were ineffective for

failing to challenge Juror Anderson for cause. The trial court, however, concluded that even

if counsel had challenged Juror Anderson for cause, the challenge would have been denied.

The record does not discredit that conclusion. The Petitioner has failed to demonstrate how

33

Juror Anderson was actually prejudiced against him. Accordingly, counsel cannot be deemed

ineffective for moving to excuse her for cause or using a peremptory challenge against her.

ii. Juror Joyce Baldwin

The Petitioner claims counsel should have moved to excuse Juror Baldwin for cause

or used a peremptory challenge against her because, when asked how she would react to

graphic evidence, she answered that it would have an impact on her ability to hear mitigating

evidence. The trial court denied relief stating:

This answer strikes the Court as reasonable. Facing the realities of a gruesome

murder would certainly impact even the thought processes of any reasonable,

feeling person. The question, however, [is] not whether the gruesome

evidence would “have an impact” upon a juror’s ability to hear mitigation

evidence but whether it would affect it. Fair-minded, reasonable people are

able to recognize potential[] emotions and not allow them to interfere with

their deliberative process. If the juror could follow the instructions of the trial

court and apply the law to the facts without sympathy, prejudice or passion

(and there is no indication in the record that she could not), the juror is

competent. Experienced trial lawyers know that some jurors, recognizing their

potential prejudice, will overcompensate for it, resulting in being more

favorable to the side presenting the difficulty than they otherwise would have

been. Whether trial counsel determined that this may have been the case with

Juror Baldwin, we do not know because Mr. Goodlett was not asked about it

at the post-conviction hearing.

There certainly was no basis for a challenge for cause. The entire questioning

of Juror Baldwin established that she would be able to reach a just verdict by

applying the law to the facts in spite of any emotional reaction to graphic

evidence.

The record fully supports the trial court’s finding that Juror Baldwin could follow the

law and base her verdict on the evidence presented at trial. The Petitioner has simply failed

to demonstrate how counsel was ineffective for moving to excuse Juror Baldwin from the

panel.

iii. Juror Rosemary Jackson

The Petitioner contends that trial counsel should have moved to excuse Juror Jackson

for cause or used a peremptory challenge against her because her husband worked for the

34

Dickson County Sheriff and because of responses she gave to questions about this case in

particular and the death penalty in general. In denying the Petitioner relief with respect to

this contention, the trial court stated the following:

When questioned . . . concerning whether Juror Jackson’s husband had talked

about his work, the juror responded, “No, not that much. He’s a quiet person.

We usually gripe about co-employees and bosses.” This is hardly evidence of

favoritism toward the Dickson County Sheriff’s Office and, if it indicates

anything, it would tend to show that the juror would have a negative attitude

in that respect.

. . . Juror Jackson was asked by the trial court, “Is there any possibility that

what you’ve heard here in the case could interfere with your judgment in this

case?” The juror answered, “Yes, sir.” In this Court’s opinion, every juror

who was asked this question (“...is there any possibility...”) would have

answered the question in the affirmative. There is always some possibility. It

should be noted that when the juror was asked by the State . . . “Would you let

anything enter into your verdict other than the law and the evidence?”, she

responded, “Hopefully not. I would try my best not to.” This impresses this

Court as a thoughtful and truthful answer. The juror was specifically asked

. . . “For purposes of approaching this case, it would probably be better that

you didn’t assume that whatever you heard was accurate, just totally set it aside

and assume it wasn’t true and never let it enter into your verdict. Could you

do that?” The juror replied, “Yes, sir.” The answers of the juror, when taken

as a whole, indicate that she would be able to render a verdict based solely

upon the law and evidence in this case.

Petitioner has alleged that the juror was in favor of the death penalty as a cost-

saving measure. What she actually said was, “Mostly the expense of housing

criminals. I think it depends on the crime. I just felt like some people deserve

the death penalty. They were just such terrible people that they deserved it.

I don’t know. I don’t honestly know. I just started thinking about it and

decided that in some circumstances some people do deserve it.” This answer

impresses this Court as a thoughtful and correct answer indicating an open

mind as to whether or not the death penalty should be imposed. The defense

asked the juror . . . “The Court instructed you that the death penalty is reserved

for the most heinous and serious crimes, what would you do if you did not feel

the government has shown you this is one of the most heinous crimes?” The

juror answered, “Then I wouldn’t vote for the death penalty.” The answers of

35

this juror can hardly be characterized as being in favor of the death penalty as

a cost-saving measure.

The answers of Juror Jackson during voir dire do not indicate anything but an

open mind toward a fair consideration of the case. There was no basis for a

challenge for cause and no indication that trial counsel should have excused

the juror peremptorily. Trial counsel have not been shown to have been

ineffective in failing to challenge this juror.

After our review of the entire questioning of Juror Jackson, this Court agrees with the

post-conviction court’s conclusion that there was no basis for a challenge for cause. Juror

Jackson stated that her husband was not involved in this case in any way and he did not

discuss anything about the Petitioner with her. When asked whether she could set aside

anything she had heard or read about the case, Juror Jackson unequivocally replied in the

affirmative. Moreover, Juror Jackson clearly indicated that she could follow the law as

instructed in this bifurcated death penalty trial. Juror Jackson stated that defendants

convicted of first degree murder should not always be sentenced to death but that, instead,

the penalty should depend on the evidence presented. Accordingly, Juror Jackson stated that

she would not vote for the death penalty if she did not believe the State proved its case.

When asked by trial counsel, “Do you currently have any expectations the defendant should

show something to you during the course of the trial?”, Juror Jackson replied, “No, because

he doesn’t have to prove he’s innocent, his guilt or innocence.”

The overall tenor of Juror Jackson’s responses to questions asked during voir dire

clearly indicated she would be able to follow the court’s instructions and decide the case on

the facts presented at trial. The Petitioner has simply failed to demonstrate how counsel was

ineffective for moving to excuse Juror Jackson from the panel or how he was otherwise

prejudiced by counsel’s failure to use a peremptory challenge on her. Although Juror

Jackson’s testimony during the evidentiary hearing, that her husband expressed to her his

feeling about the Petitioner’s guilt, contradicted what she informed the trial court and counsel

during voir dire, she reaffirmed that she maintained no predisposition about the Petitioner’s

guilt or innocence. The record of the jury selection reveals that trial counsel had no

reasonable basis at that time to doubt Juror Jackson’s answers. Moreover, nothing about

Juror Jackson’s post-conviction testimony demonstrates that the Petitioner was actually

prejudiced by trial counsel’s failure to strike her peremptorily. The Petitioner is not entitled

to relief on this ground.

iv. Juror Jerry Greer

36

The Petitioner contends trial counsel were ineffective by asking Juror Greer if he

could consider childhood abuse as a mitigating circumstance when no such evidence was

actually presented at trial. Other than this one sentence complaint, the Petitioner offers no

other argument in support thereof. This ground for relief, therefore, must be considered

waived. See Tenn. Ct. Crim. App. R. 10(b) (“Issues which are not supported by argument,

citation to authorities, or appropriate references to the record will be treated as waived in this

court.”). Nevertheless, the trial court concluded that there was no evidence in the record that

Juror Greer was negatively affected by trial counsel’s conduct. The Petitioner has simply

failed to demonstrate how trial counsel were deficient in their questioning of this juror during

voir dire. As the trial court commented, trial counsel’s questions simply appeared to gauge

how Juror Greer would be able to consider mitigating evidence in general. Moreover,

Attorney Love conducted the questioning of Juror Greer, and he was not called as a witness

during the evidentiary hearing to explain his actions. The Petitioner is not entitled to relief

on this ground.

v. Juror David Higgins

The Petitioner contends trial counsel should have used a peremptory challenge to

strike Juror Higgins because he stated that he did not believe a sentence of life without the

possibility parole served any deterrent function. Again though, other than this one sentence

complaint, the Petitioner offers no other argument in support thereof. This ground for relief

must, therefore, be considered waived. See Tenn. Ct. Crim. App. R. 10(b) (“Issues which

are not supported by argument, citation to authorities, or appropriate references to the record

will be treated as waived in this court.”). Nevertheless, the Petitioner has not shown how

trial counsel’s performance was deficient in this instance. The trial court observed that,

“[w]hen taken as a whole, the answers of Juror Higgins do not indicate a predisposition to

vote for the death penalty. His answers indicated that he would fairly apply the law to the

best of his ability.” Indeed, our review of the voir dire of Juror Higgins reveals that he

confirmed he would be able to follow the court’s instructions, including the instructions

regarding the weighing of aggravating and mitigating factors, and would consider only that

evidence which that was presented at trial. Moreover, Juror Higgins agreed with the way our

capital sentencing procedure worked and stated that it seemed fair. The Petitioner is not

entitled to relief on this ground.

vi. Juror William Duke

The Petitioner contends trial counsel should have used a peremptory challenge or

moved to strike Juror Duke for cause because he stated that he did not “think” he would be

able to consider as a mitigating circumstance the fact that the Petitioner had a poor

upbringing. The Petitioner offers no argument in support of the one sentence he included in

37

his brief. This ground for relief must, therefore, be considered waived. See Tenn. Ct. Crim.

App. R. 10(b) (“Issues which are not supported by argument, citation to authorities, or

appropriate references to the record will be treated as waived in this court.”). Again though,

despite waiver, the Petitioner has not demonstrated how counsel’s performance was deficient

in this respect. According to the transcript, Juror Duke believed that a sentence of life

without the possibility of parole was an equal deterrent as the death penalty. Indeed, Juror

Duke stated that the gruesome facts in this case alone would not cause him to reject a

sentence of life without parole in favor of death. Moreover, he stated that he understood how

the weighing process operated in the capital sentencing scheme, and he affirmed that he

would be able to follow the court’s instructions. The trial court concluded that Juror Duke’s

responses, when viewed in their entirety, “could have indicated to trial counsel an openness

to a sentence short of death that would have outweighed the juror’s views on the effect of an

impoverished upbringing.” The record fully supports the trial court’s conclusion.

5. Victim’s Daughter

The Petitioner contends trial counsel should have objected to Jennifer Koch, the

victim’s daughter, sitting at the table with the prosecutor during jury selection. The trial

court noted that the appellate courts of this state “have long rejected assertions that the

presence of a victim’s family member at or near the prosecution’s table at trial or during voir

dire would somehow unfairly prejudice a defendant.” See, e.g., State v. Henry Eugene

Hodges, No. 01C01-9212-CR-00382, 1995 WL 301443 at *17-20 (Tenn. Crim. App., May

18, 1995), aff’d, State v. Hodges, 944 S.W.2d 346 (Tenn. 1997). Accordingly, the Petitioner

has not demonstrated how counsel’s failure to object to the mere presence of the victim’s

daughter was deficient. As this Court recognized in Hodges, “there is a common law rule

which permits the prosecutor or an interested witness to sit at counsel table with the assistant

district attorney general prosecuting the accused. This has been the practice for many years.”

Id. at 19. Nevertheless, the trial court properly instructed the jury on the law in this case and

the Petitioner has failed to highlight any apparent problems in the record which could be

attributed to the victim’s daughter sitting at the table. See id. at 20. The Petitioner has thus

failed to show any resulting prejudice.

The Petitioner also contends trial counsel should have objected when the prosecutor

referred to Ms. Koch as the victim’s daughter. The trial court concluded that the “term

‘victim’ did not represent an improper opinion on Petitioner’s guilt.” Furthermore, as the

State observes, the prosecutor initially referred to Ms. Koch as the daughter of the “alleged”

victim, but when the prosecutor subsequently omitted the term “alleged” during another

reference, trial counsel did not voice an objection which the trial court, in essence, sustained.

The Petitioner, however, has not referred the Court to any part of the record wherein he

believes counsel should have objected to the prosecutor’s comments. See Tenn. Ct. Crim.

38

App. R. 10(b) (“Issues which are not supported by argument, citation to authorities, or

appropriate references to the record will be treated as waived in this court.”). Moreover, to

the extent the Petitioner is otherwise raising a general claim regarding his right to a fair trial

or impartial jury because of Ms. Koch’s presence at the prosecutor’s table, the issue is

waived because he did not raise it earlier. See Tenn. Code Ann. § 40-30-106(g).

F. Prosecutorial Misconduct

The Petitioner alleges several instances where trial counsel were ineffective for failing

to object to alleged prosecutorial misconduct.

Our supreme court has long recognized that closing argument is a valuable

privilege for both the State and the defense and have allowed wide latitude to

counsel in arguing their cases to the jury. State v. Cauthern, 967 S.W.2d 726,

737 (Tenn. 1994) . . . Notwithstanding such, arguments must be temperate,

based upon the evidence introduced at trial, relevant to the issues being tried,

and not otherwise improper under the facts or law. Coker v. State, 911 S.W.2d

357, 368 (Tenn. Crim. App. 1995). We are mindful of the oft quoted principle

that a prosecutor must be free to present his arguments with logical force and

vigor, “[b]ut, while he may strike hard blows, he is not at liberty to strike foul

ones.” Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed.

1314 (1935).

When argument is found to be improper, the established test for determining

whether there is reversible error is whether the conduct was so improper or the

argument so inflammatory that it affected the verdict to the Appellant's

detriment. Harrington v. State, 215 Tenn. 338, 385 S.W.2d 758, 759 (1965).

In measuring the prejudicial impact of any misconduct, this court should

consider: (1) the facts and circumstances of the case; (2) any curative measures

undertaken by the court and the prosecutor; (3) the intent of the prosecution;

(4) the cumulative effect of the improper conduct and any other errors in the

record; and (5) the relative strength or weakness of the case. Judge v. State,

539 S.W.2d 340, 344 (Tenn. Crim. App.1976); see also State v. Buck, 670

S.W.2d 600, 609 (Tenn. 1984).

State v. Goltz, 111 S.W.3d 1, 5-6 (Tenn. Crim. App. 2003). This Court recognized that,

within the context of closing argument, there are five general areas of prosecutorial

misconduct:

1. It is unprofessional conduct for the prosecutor intentionally to misstate the

39

evidence or mislead the jury as to the inferences it may draw.

2. It is unprofessional conduct for the prosecutor to express his or her personal

belief or opinion as to the truth or falsity of any testimony or evidence or the

guilt of the defendant.

3. The prosecutor should not use arguments calculated to inflame the passions

or prejudices of the jury.

4. The prosecutor should refrain from argument which would divert the jury

from its duty to decide the case on the evidence, by injecting issues broader

than the guilt or innocence of the accused under the controlling law, or by

making predictions of the consequences of the jury's verdict.

5. It is unprofessional conduct for a prosecutor to intentionally refer to or

argue facts outside the record unless the facts are matters of common public

knowledge.

Id. at 6. To the extent the Petitioner advances a separate claim of prosecutorial misconduct

with respect to each alleged instance discussed below, however, the same must be considered

waived because he failed to raise it on direct appeal. See Tenn. Code Ann. § 40-30-106(g).

1. Cross-Examination of Dr. Peretti

The Petitioner contends trial counsel failed to request an appropriate remedy when the

prosecutor asked defense expert Dr. Frank Peretti whether he “learned that criminal

defendants sometimes cut peoples’ heads off and take them away as trophies.” Immediately

following this question, though, trial counsel voiced an objection which was sustained. The

Petitioner does not argue what else counsel should have done. Accordingly, given that

counsel did, in fact, object, we cannot deem their performance to be deficient in this respect.

The Petitioner also contends that the prosecutor erroneously referred to Dr. Peretti as

an employee of defense counsel. The record reveals that Dr. Peretti acknowledged he had

been retained by defense counsel to review the evidence and testify on the Petitioner’s behalf.

The Petitioner, however, does not explain how trial counsel were ineffective with respect to

these questions. As the State notes, asking Dr. Peretti if he was retained by the defense was

proper, see Tennessee Rule of Evidence 616, thus counsel cannot be deemed to have been

ineffective in failing to object.

2. Opening Argument at Guilt Phase

40

The Petitioner next asserts trial counsel should have objected to the prosecutor’s

statement during opening argument at the guilt phase of the trial that “we will also never,

never know what pain and suffering this lady went through before she was killed.”

According to the Petitioner’s argument, the statement was improper because the State

abandoned its reliance on the heinous, atrocious or cruel aggravating circumstance. The trial

court concluded that Mr. Goodlett offered sound strategy for not highlighting the statement

to the jury. We agree. Having reviewed this single remark in light of the prosecutor’s entire

opening statement, we cannot conclude that trial counsel were ineffective for failing to

object.

3. Closing Argument at Guilt Phase

The Petitioner cites to numerous statements made by the prosecutor during closing

argument at the guilt phase of the trial to which he argues trial counsel should have objected.

Although the Petitioner mentions that these occurred during closing argument at sentencing,

it is clear from this Court’s review of the record that the statements were actually made by

the prosecutor during closing arguments at the guilt phase. The Petitioner appears to have

made the same mistake when examining Mr. Goodlett during the evidentiary hearing. Mr.

Goodlett was asked why he did not object to certain statements the prosecutor made “in

opening at sentencing speculating about what happened that night, such things as: did he

have a gun that night; did he force her to get out of her clothes; did he use handcuffs, a knife,

a sawed-off shotgun; did he grab her and chase her down, things like that.” (Emphasis

added). The trial court recognized the Petitioner’s apparent confusion about when the

alleged improper statements were made because it concluded that Mr. Goodlett was not

asked about his failure to object to the State’s alleged speculation of events made during

closing at the guilt phase.

On appeal, the Petitioner highlights similar statements from the prosecutor’s argument

which he claims contain improper speculation about the evidence. The Petitioner, however,

offers no argument in support of how he believes counsel rendered ineffective assistance

with respect to any of these statements. Nevertheless, this Court has read the transcript of

the closing arguments of the parties and concludes that the trial court did not err in denying

relief on this ground. The trial court concluded that “even if trial counsel had objected, the

object[ion] was sustained and a curative instruction issued, there is no reasonable possibility

that even one juror would have decided the case differently.” Moreover, as the trial court

noted, the jury was instructed that arguments of counsel were not evidence, that it was to

disregard any statements of counsel not supported by the evidence, and that its verdict was

to be based solely upon the proof at trial. The jury is presumed to have followed the trial

court’s instructions on the law. The Petitioner thus has failed to demonstrate how there was

any resulting prejudice from counsel’s failure to object. See, e.g., State v. Jordan, 325

41

S.W.3d 1, 60-61 (Tenn. 2010) (finding harmless error in alleged improper remarks by

prosecutor because any misstatements sufficiently corrected by trial court’s instructions on

law which jury is presumed to follow).

4. Opening Argument at Sentencing Phase

The Petitioner argues counsel were ineffective for failing to object to the prosecutor’s

statements made during opening arguments at the sentencing phase which “repeatedly and

relentlessly engaged in speculation about the circumstances of the crime, what the decedent

might have felt, and what the defendant might have done.” The Petitioner contends these

“arguments were inflammatory, not based in [sic] evidence appearing in the record, and

designed to inflame the passion of the jury.” Although the Petitioner cites to relevant case

law affirming that prosecutors must generally confine their arguments to the evidence, see,

e.g., Judge v. State, 539 S.W.2d 340 (Tenn. Crim. App. 1976), the Petitioner neglects to

specifically pinpoint in the record those statements made by the prosecutor about which he

now complains. Accordingly, the Court considers this post-conviction ground for relief to

be waived on appeal. See Tenn. Ct. Crim. App. R. 10(b) (“Issues which are not supported

by argument, citation to authorities, or appropriate references to the record will be treated as

waived in this court.”).

5. Petitioner’s Statement to Police

The Petitioner contends that trial counsel should have objected to the following

comments made by the prosecutor during closing argument at the guilt phase when she was

discussing the Petitioner’s statement to the police prior to his arrest: “He was sitting there

talking to them about all this stuff. Did you ever hear them say that he said, boys, you all are

crazy. Why are you all talking to me about this? What do you mean where her head is? I

don’t know where her head is.” According to the Petitioner, the comment improperly

suggested that he had a duty to deny the charges against him. The trial court concluded that

counsel were not ineffective for failing to object to this comment. The court noted that Mr.

Goodlett was not questioned about this comment during the evidentiary hearing. The court

also noted that the jury was instructed that the Petitioner was presumed innocent and that the

arguments of counsel were not to be considered evidence upon which they could base their

verdict.

This Court agrees with the trial court’s conclusion. “The decisions of a trial attorney

as to whether to object to opposing counsel's arguments are often primarily tactical

decisions.” Derek T. Payne v. State, No. W2008–02784–CCA–R3–PC, 2010 WL 161493,

at *15 (Tenn. Crim. App., Jan. 15, 2010), perm. to app. denied (Tenn., May 11, 2010). Trial

counsel could decide not to object for several valid reasons, including not wanting to

42

emphasize unfavorable evidence. Id. (quoting Gregory Paul Lance v. State, No.

M2005–01675–CCA–R3–PC, 2006 WL 2380619, at *6 (Tenn. Crim. App., Aug. 16, 2006),

perm. appeal denied (Dec. 18, 2006)). Accordingly, trial counsel must be given the

opportunity to explain why they did not object to the allegedly prejudicial remarks. “Without

testimony from trial counsel or some evidence indicating that his decision was not a tactical

one, we cannot determine that trial counsel provided anything other than effective assistance

of counsel.” State v. Leroy Sexton, No. M2004–03076–CCA–R3–CD, 2007 WL 92352, at

*5 (Tenn. Crim. App., Jan. 12, 2007). The Petitioner has not demonstrated how trial

counsels failure to object to the remarks of the prosecutor was anything other than a tactical

decision. Indeed, Mr. Goodlett was not asked why he did not object to these particular

comments. Moreover, the jury was properly instructed on its duty under the law.

Accordingly, this Court concludes that trial counsel were not ineffective in this regard.

6. Comments on Investigation

The Petitioner next argues counsel were ineffective when they failed to object to the

State’s comments during closing argument at sentencing which he alleges “improperly

vouched for its own investigation.” The Petitioner cites two instances. The first was a

comment regarding a scrub shirt containing blood stains the victim’s daughter found in the

victim’s basement: “Weeks later, the daughter finds a shirt in the basement she thinks is

important to bring forward as a family – as has been stated, a family of medical people and

it happened to be a scrub shirt. It may have been a year old, it might have been ten years old,

but she brought it forward and I’m glad she did and we checked into it. It didn’t mean

anything.” During the evidentiary hearing, Mr. Goodlett was asked why he did not object

to this comment. He responded: “The proof was that Ms. Jackson, as I recall, had been

employed at that point by the hospital or a clinic and I just think it was sort of [de minimis]

at that point.” The Petitioner does not argue how Mr. Goodlett’s decision was objectively

unreasonable, especially in light of the fact that the Petitioner has not shown how that piece

of evidence was relevant one way or the other. Accordingly, trial counsel cannot be deemed

ineffective in that regard.

As to the second instance of alleged improper vouching, the Petitioner refers to the

prosecutor’s comments about the performance of law enforcement officers in this case:

“These people worked hard. Tim Eads worked hard and Mike Bredlove worked hard. Your

sheriff, Tom Wall worked hard to search for the truth.” The Petitioner suggests that “[t]he

unspoken message is that the prosecutor knows what the truth is and is assuring its revelation

through witnesses for whom he vouches.” In denying relief on this ground, the trial court

stated:

43

[This] statement could hardly be construed as vouching for the work of law

enforcement. At best, the statement was irrelevant to the issues to be tried and

a possible appeal to emotion. The statement, made in passing, was innocuous

and did not affect the decision of the jury.

The prohibition against vouching for elements of the case is generally limited

to vouching for the credibility of a witness. See State v. Henley, 774 S.W.2d

908, 911 (Tenn. 1989). The work of law enforcement, i.e., the facts

discovered by investigation, is a comment on the strength of the evidence.

With regard to the State vouching for its own investigation, the Tennessee

Supreme Court has stated, “Expressions of personal opinion by the prosecutor

are a form of unsworn, unchecked testimony and tend to exploit the influence

of the prosecutor’s office and undermine the objective detachment that should

separate a lawyer from the cause being argued.” [Id.] (citing Lackey v. State,

578 S.W.2d 101, 107 (Tenn. Crim. App. 1978)). Accordingly, comments by

prosecutors vouching for the credibility of witnesses or, as in this case, the

reliability of a police investigation[,] are improper. However, when taken in

the context of the State’s entire closing argument, this comment cannot be said

to have prejudiced Petitioner.

The post-conviction court noted, however, that Mr. Goodlett was not questioned about his

decision not to object, and further noted that the jury was properly instructed on the law

regarding the arguments of counsel. The Petitioner has failed to demonstrate how the trial

court’s conclusion is erroneous. Given our review of the record, we cannot conclude that

counsel were ineffective for failing to object to these comments.

7. Victim Impact Evidence

The Petitioner contends that the prosecutor solicited improper victim impact evidence

from the victim’s daughter during the guilt phase of the trial to which defense counsel should

have objected. The trial testimony in question relates to the victim’s appearance at a family

wedding, the type of clothing and shoes the victim enjoyed wearing, and the victim’s affinity

for featherbeds. As to each challenged area of the victim’s daughter’s testimony, the trial

court concluded that the testimony did not cause undue sympathy for the victim or prejudice

the Petitioner. More importantly, though, the trial court noted that counsel was not asked

during the evidentiary hearing why he did not object to that line of questioning. As noted

above, decisions about whether to voice objections are left to the discretion of trial counsel

and absent a showing the decision was made for a valid tactical reason, such as avoiding

drawing undue attention to certain evidence, trial counsel’s decision will not be questioned.

44

See, e.g., Sexton, 2007 WL 92352, at *5. Accordingly, the trial court did not err in denying

relief on this ground.

Similarly, the Petitioner argues trial counsel should have objected to alleged improper

comments about victim impact evidence made by the prosecutor during the closing argument

at the guilt phase of the trial. The Petitioner contends the comments, which reference the

victim’s missed opportunities, the victim’s daughter’s description of the victim, and the

simple nature of the victim’s lifestyle, impermissibly encouraged the jury to convict based

on passion instead of deliberation. Recognizing that victim impact evidence is irrelevant to

the issue of guilt or innocence and thus should not be presented during the guilt phase of a

capital trial, the trial court in this case concluded that the prosecutor’s reference to such

matters did not prejudice the Petitioner. We agree. The trial court noted the jury was

properly instructed that it could not consider sympathy or prejudice during deliberation and

that it was required to base its verdict solely on the evidence presented at trial. Our review

of the record reveals that the comments about which the Petitioner now complains were not

of such a degree, given the convicting evidence introduced at trial, that they deprived him of

a fair trial or called into question the reliability of the outcome. The jury was clearly

instructed that the State maintained the burden of proving each element of the offenses

beyond a reasonable doubt. The jury was further instructed that the statements of counsel

during argument were not to be considered evidence. The Petitioner is not entitled to relief

on this ground.

8. Credibility of Defense Witness

Next, the Petitioner asserts that trial counsel should have objected to alleged improper

comments the prosecutor made about Dr. Lisa Forman, the defense’s DNA expert. During

closing argument at the guilt phase, the prosecutor argued:

Use your common sense. Do you all know of any reason why somebody

would cut the seat of their truck? What is that consistent with? Does that take

a Rhodes scholar to figure that out? Why of course not. You know, I don’t

know about Dr. Forman. I got the impression that she thought she was smarter

than the sum total of everybody in the courtroom, the jury, the judge and me

included. That’s my impression of her. Somebody that would volunteer to get

involved in the O.J. Simpson case, I’ve got to have a little bit of question about

them. And I don’t know what you all think about the O.J. Simpson case, but

whoever’s involved in that I don’t have much to do with them. And she

volunteered to jump in that one.

45

That tells you a little bit it [sic] and frankly, she thinks most of our family trees

don’t fork around here. That’s my impression, she kind of – you know, she

kind of [thinks] that we’re an inbred bunch and that, you know, we’re not

normal around here. I don’t know, but assume that she’s telling us, you know,

just like it is, there’s still human blood in the seat of this truck and it’s cut out.

At trial, Dr. Forman disputed the State’s expert’s opinion that DNA testing ruled out the

Petitioner as the source of the blood found on the passenger seat of his truck. Dr. Forman

admitted, though, that she did not conduct an independent analysis but was only reviewing

the findings of the State’s expert.

The trial court found that some of the remarks quoted above were “over the top.” The

court otherwise concluded, however, that they were not so inflammatory as to have affected

the verdict to the prejudice of the Petitioner. We agree. The Petitioner neglects to argue how

counsel’s failure to object to these statements resulted in any prejudice. As the trial court

held, these few comments were not enough to cause the jury to become so prejudiced toward

the Petitioner that they were more likely than not going to convict him regardless of the

evidence introduced at trial. Moreover, the jury was properly instructed on its duty under the

law, that is, arguments of counsel are not evidence and their verdict must be based solely on

the evidence introduced at trial. The Petitioner is not entitled to relief on this ground.

9. Comments about Petitioner

During closing argument at the guilt phase, the prosecutor argued that “[This

defendant did everything he could to get rid of the blood, but, you know, thank goodness,

he’s a sloppy, sloppy predator because he left a little bit [at] the scene and Shelley Betts

found it just like she found that stripe on the top of the headrest.” This statement

immediately followed the prosecutor’s comments about Dr. Forman and the blood stains

found in the Petitioner’s vehicle. The Petitioner argues that defense counsel should have

objected to the prosecutor’s characterization of him as a “sloppy, sloppy predator.” The trial

court denied relief on this claim of ineffective assistance of counsel:

The fact that Petitioner’s acts were referred to as “sloppy” is a fair comment

upon the evidence in this case. While the fact that Petitioner’s methods were

ineffective may not have been totally relevant, the comment is not prejudicial.

The reference to Petitioner as a “predator” is another matter. “It is improper

for the prosecutor to use epithets to characterize a defendant.” State v.

Thomas, 158 S.W.3d 361, 414 (Tenn. 2005) (repeated references to defendants

as “greed and evil”); see also State v. Cauthern, 967 S.W.2d 726, 737 (Tenn.

46

1998) (“evil one”); State v. Bates, 803 S.W.2d 881 (Tenn. 1991) (“rabid dog”);

State v. Gann, 251 S.W.3d 446, 461-62 (Tenn. Crim. App. 2007) (likening

defendant to a member of the Manson Family and calling defendant a

“maniac” and a “raging homicidal killer”); State v. Goltz, 111 S.W.3d 1, 8

(Tenn. Crim. App. 2003) (“criminal” and “underhanded thief”). Although the

State’s comment was improper, the record reflects that the comment was an

isolated one and, in light of the facts and circumstances of the case, more

likely than not did not affect the outcome of the case, thus there is no prejudice

to the Petitioner. Because any error the State may have committed in making

the comment was harmless, trial counsel cannot be found to have been

ineffective for not objecting to the comment.

This Court agrees. Even if the prosecutor’s comment was improper, any deficiency

by counsel’s failure to object to that one isolated remark did not deprive the defendant of a

fair trial or call into question the reliability of the outcome. See Nichols, 90 S.W.3d at 587.

Accordingly, counsel was not constitutionally ineffective in this respect.

10. Aggravating Circumstances

During its opening argument at the sentencing phase, the prosecutor displayed for the

jury, via the use of an overhead projector, the entire list of all of the statutory aggravating

circumstances. Simultaneously, the prosecutor reminded the jury that the State was required

to give notice on which of those aggravators it was relying, and he then proceeded to read

to the jury the language of those three upon which the State was relying. The Petitioner

argues that trial counsel should have objected to the display of the non-charged aggravating

circumstances. Citing State v. Blanton, the trial court found any error by the prosecutor in

this respect to have been harmless. As noted above, instructing the jury on inapplicable

aggravating circumstances is error which may otherwise be deemed harmless. See Blanton,

975 S.W.2d at 281. Despite these actions by the prosecutor during the opening statements

at sentencing, the jury was only instructed on those three aggravating circumstances relied

upon by the State. The jury is presumed to have followed the court’s instructions. The

Petitioner has thus failed to demonstrate any resulting prejudice from counsel’s failure to

object to the prosecutor’s conduct in this respect.

11. Consideration of Sympathy

Next, the Petitioner argues that counsel should have objected to the prosecutor’s

comments during closing at sentencing that sympathy and prejudice have no role in a

criminal trial. The trial court concluded that counsel were not ineffective for failing to object

to these comments because the “no sympathy” jury instruction has repeatedly been upheld

47

by our supreme court. See, e.g., State v. Bigbee, 885 S.W.2d 797, 814 (Tenn. 1994),

superceded by statute on unrelated grounds, as recognized in State v. Odom, 137 S.W.3d

572, 580-81 (Tenn. 2004). The Petitioner has failed to show how this conclusion is

erroneous. Accordingly, he is entitled to no relief on this claim.

G. Jury Instructions

The Petitioner cites to numerous jury instructions given during both phases of the trial

and now claims trial counsel were ineffective by failing to object to them.

1. Guilt Phase

i. Instruction on First Degree Murder

The Petitioner contends counsel should have objected to the trial court’s definition of

the term “intentionally” when it instructed the jury on the elements of first degree murder.

Specifically, the Petitioner argues that murder is an offense which requires that the culpable

mental state accompany the result of the conduct rather than the nature of the conduct and

thus an instruction which defined “intentionally” as related to the nature of the conduct as

well as the result of the conduct was erroneous. The supreme court has concluded that the

alleged error with respect to the instruction at issue is not constitutional in nature. See State

v. Faulkner, 154 S.W.3d 48, 60 (Tenn. 2005) (“The entire charge on first degree

premeditated murder eliminated any risk of the jury applying the wrong definition.”).

Accordingly, as the post-conviction court concluded, counsel cannot be deemed ineffective

for failing to object to the charge.

ii. Instructions on Especially Aggravated and Aggravated Kidnapping

Similarly, the Petitioner contends counsel should have objected to the trial court’s

definition of “intentionally” with respect to its instructions on especially aggravated

kidnapping and aggravated kidnapping. Because the Petitioner was not convicted of

especially aggravated kidnapping, his contention with respect to the instruction on that

offense is moot. With respect to the inclusion of both the nature of conduct and result of

conduct language in the definition of “intentionally” in relation to the instruction on

aggravated kidnapping, the trial court, citing the reasoning of the supreme court in Faulkner,

concluded that any error in the instruction was harmless. We agree. See State v. Mark Alton

Mayfield, No. E2007-01453-CCA-R3-CD, 2008 WL 4876568 at *5 (Tenn. Crim. App., Nov.

12, 2008), perm. to app. denied, (Tenn., Apr. 27, 2009). Thus, counsel cannot be deemed

ineffective for failing to object.

48

iii. Sequential Jury Instructions

The Petitioner contends counsel should have objected to the trial court’s sequential

jury instructions because they “unfairly skewed” the jury’s deliberative process. As the trial

court noted, our supreme court has held that sequential jury instructions do not deprive a

defendant of his constitutional right to a jury trial. See State v. Davis, 266 S.W.3d 896, 905

(Tenn. 2008). Accordingly, counsel cannot be deemed ineffective for failing to challenge

the jury charge in this respect.

iv. Instruction on Flight

The Petitioner contends that trial counsel should have objected to the instruction on

flight because the proof did not warrant such an instruction. In denying relief on this issue,

the trial court cited the relevant law on the propriety of the instruction and offered the

following statements about whether trial counsel were ineffective:

“In order for a trial court to charge the jury on flight as an inference of guilt,

there must be sufficient evidence to support such instruction.” State v. Berry,

141 S.W.3d 549, 588 (Tenn. 2004). Sufficient evidence to support such an

instruction requires “both a leaving the scene of the difficulty and a subsequent

hiding out, evasion or concealment within the community.” State v, Burns,

979 S.W.2d 276, 289-90 (Tenn. 1998) (quoting State v. Payton, 782 S.W.2d

490, 498 (Tenn. Crim. App. 1989)). “A flight instruction is not prohibited

when there are multiple motives for flight. . . . A defendant’s specific intent for

fleeing a scene is a jury question.” State v. Berry, 141 S.W.3d 549, 589 (Tenn.

2004) (appendix).

In this case, the record reflects that Petitioner’s mother, with whom Petitioner

lived, did not see or hear from Petitioner between September 25 and October

8, 1995. When Petitioner telephoned his mother on October 8, he told her that

he was in Knoxville, where he would be “laying low for a while” because

some “creditors” were looking for him. About a week later, Petitioner

returned to his mother’s house. Although Petitioner returned to, and was

ultimately arrested in, the area near where the victim was last seen alive, the

appellate courts have upheld a flight instruction in situations in which a

defendant fled the scene of the offense before returning to it. See State v.

Nesbit, 978 S.W.2d 872, 900 (Tenn. 1998) (appendix). The flight instruction

was appropriate given the facts of this case and, given that Mr. Goodlett was

not asked about the flight instruction during the evidentiary hearing, this Court

can only speculate as to why counsel did not object to the instruction being

49

given. This being the case, trial counsel were not shown to have been

ineffective for not objecting to the instruction.

We agree with the trial court. Given our review of the evidence presented at trial, we

conclude that counsel were not objectively unreasonable in failing to object to the flight

instruction given to the jury.

2. Penalty Phase

i. Unanimous Verdict Instruction

The Petitioner contends counsel should have objected to the trial court’s instruction

that a unanimous verdict was necessary in order for the jury to have imposed a life or life

without the possibility of parole sentence. As the trial court noted, the pattern jury

instruction given in this case has been approved by the supreme court. See State v. Ivy, 188

S.W.3d 132, 163 (Tenn. 2006). Accordingly, counsel cannot be deemed ineffective for

failing to object.

ii. Reasonable Doubt Instruction Regarding Aggravating Circumstances

Next, the Petitioner contends counsel should have objected to that portion of the

instruction that “[i]t is not necessary that the aggravating circumstance or circumstances be

proved beyond all possible doubt, as absolute certainty is not demanded by the law.” Again,

however, because language similar to that of the instruction used in this case has been

approved by our supreme court, see State v. Bush, 942 S.W.2d 489, 521 (Tenn. 1997), trial

counsel’s failure to object to the instruction cannot be considered objectively unreasonable.

In addition to failing to object to certain instructions, the Petitioner also claims

counsel should have requested other jury instructions during sentencing and argues that their

failure to do so resulted in ineffective assistance.

iii. Instruction on Consequence of Failure to Agree on Sentence

The Petitioner contends counsel should have requested an instruction explaining to

the jury the consequence of their failure to agree on a penalty. The trial court correctly stated

that a judge is not permitted to inform the jury about the effect of its failure to agree upon a

sentence. See Tenn. Code Ann. § 39-13-204(h). Because this was the law at the time of the

trial in this case, trial counsel’s failure to request such an instruction was not deficient. For

the same reason, the Petitioner’s argument that counsel should have requested the trial court

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to instruct the jury that their guilty verdict for first degree murder would not be affected if

they could not agree upon a sentence must fail.

iv. Instruction on Sympathy

The Petitioner also contends counsel should have requested an instruction stating that

the jury could base its decision during sentencing on mercy, sympathy and compassion. Our

supreme court, however, has consistently held that a defendant is not entitled to such an

instruction. See State v. Keen, 926 S.W.2d 727, 739 (Tenn. 1994). Trial counsel thus were

not ineffective for failing to request the instruction.

v. Instruction on Victim Impact Evidence

Next, the Petitioner argues counsel should have requested the trial court to instruct the

jury about how it should treat victim impact evidence. As the trial court recognized, the now-

familiar jury instruction regarding victim evidence was not adopted by our supreme court

until after the trial in this case. See State v. Nesbit, 978 S.W.2d 872, 892 (Tenn. 1998).

Indeed, the supreme court in Nesbit stated that the approved “instruction should be used in

substance in all future capital murder trials where victim impact evidence has been

introduced and is effective from the date this decision is released.” Id. Although the

Petitioner relies upon Nesbit in support of his argument, we conclude that trial counsel were

not objectively unreasonable in failing to request such an instruction in this case.

Nevertheless, we agree with the trial court that the Petitioner was not prejudiced by counsel’s

failure to request such an instruction. The State did not introduce any victim impact evidence

during sentencing. Moreover, the jury was specifically instructed that statements and

arguments of counsel were not to be considered evidence and that it could not take into

account any facts or circumstances other than those supporting the aggravating circumstances

when deciding upon a sentence.

vi. Instruction on Mutilation Aggravator

The Petitioner contends trial counsel were ineffective for failing to request an

instruction clarifying to the jury what is meant by the phrase: “The defendant knowingly

mutilated the body of the victim after death.” Tenn. Code Ann. § 39-13-204(i)(13). The

Petitioner argues that the instruction “fails to clarify agency.” According to the Petitioner’s

argument, because there was evidence that animals gnawed on the corpse, “it was imperative

for the jury to be instructed as to whether actions of scavengers could, or could not, be

attributed to the defendant.” The post-conviction court rejected this argument. According

to the trial court:

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The plain language of T.C.A. § 39-13-204(i)(13) required the perpetrator to

have actively performed the act, not set in motion a series of circumstances

which allowed the mutilation to occur. “Knowingly mutilated” requires the

action to have been accomplished by the perpetrator. If the General Assembly

had intended [to] include situations in which the actions of the perpetrator

allowed mutilation to occur, the language of the statute would have included

“. . . or allowed to be mutilated” or the like. The language is straightforward

and clear and the jury would have [had] no difficulty in applying it as intended.

We agree. Based upon the plain language of this aggravating circumstance, trial counsel

were not objectively unreasonable for failing to request an instruction such as that now

suggested by the Petitioner. The Petitioner is not entitled to post-conviction relief in this

instance.

vii. Instructions on Mitigating Evidence

The Petitioner complains that counsel “successfully requested instructions on

mitigation that were contradictory, confusing, inapplicable to the instant case, and were

unsupported by the proof, and which opened the door to otherwise inadmissable evidence.”

As the Petitioner acknowledges, though, some of the requested instructions to which he

refers in his brief were not actually given by the trial court. As to the others, he contends

they were not supported by the proof. Examples cited by the Petitioner include instructions

commenting on his history of addiction, his troubled upbringing, and his psychological and

emotional health. Having reviewed the record, we cannot conclude that trial counsel’s

actions in requesting these instructions were deficient. See State v. Cazes, 875 S.W.2d 253,

267-68 (Tenn. 1997) (observing that overcharging on mitigating evidence generally benefits

defendant). Nevertheless, the Petitioner has otherwise failed to demonstrate any resulting

prejudice.

H. Appeal

Lastly, the Petitioner argues that counsel rendered ineffective assistance on direct

appeal for failing to include the following three issues in their appellate brief: 1) the

aggravating circumstance, that the defendant knowingly mutilated the body of the victim

after death, was unconstitutional on its face and as applied in this case; 2) Dr. Harlan’s

testimony concerning the time and circumstances of death was inherently unreliable; and 3)

Dr. Harlan failed to preserve evidence to the Petitioner’s prejudice. As the record reflects,

counsel raised a total of nine issues on appeal to this Court challenging both his convictions

and death sentence.

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The same principles apply when reviewing courts evaluate the effectiveness of either

trial or appellate counsel. Campbell v. State, 904 S.W.2d 594, 596 (Tenn. 1995). An

appellate attorney, however, is neither duty bound nor required to raise every possible issue

on appeal. Carpenter v. State, 126 S.W.3d 879, 887 (Tenn. 2004) (citing King v. State, 989

S.W.2d 319, 334 (Tenn. 1999); Campbell, 904 S.W.2d at 596–97)). The “failure to preserve

and/or assert all arguable issues on appeal is not per se ineffective assistance of counsel,

since the failure to do so may be a part of the counsel's strategy of defense.” State v.

Swanson, 680 S.W.2d 487, 491 (Tenn. Crim. App. 1984). Moreover, “[t]he determination

of which issues to present on appeal is a matter of counsel's discretion.” Id.

To show that counsel was deficient for failing to raise an issue on direct appeal, the

reviewing courts will analyze the merits of the contested issue. Carpenter, 126 S.W.3d at

887 (citing Kimmelman v. Morrison, 477 U.S. 365, 375 (1986)).

Obviously, if an issue has no merit or is weak, then appellate counsel's

performance will not be deficient if counsel fails to raise it. Likewise, unless

the omitted issue has some merit, the petitioner suffers no prejudice from

appellate counsel's failure to raise the issue on appeal. When an omitted issue

is without merit, the petitioner cannot prevail on an ineffective assistance of

counsel claim.

Id. at 887-88. In fact, “[i]neffectiveness is very rarely found in cases where a defendant

asserts that appellate counsel failed to raise an issue on direct appeal, primarily because the

decision of what issues to raise is one of the most important strategic decisions to be made

by appellate counsel.” Kennath Henderson v. State, No. W2003-01545-CCA-R3-PD, 2005

WL 1541855 at *44 (Tenn. Crim. App., June 28, 2005), perm. to app. denied (Tenn., Dec.

5, 2005).

As to the first issue, the Petitioner’s argument on appeal consists solely of the

following sentence:

Appellate counsel rendered ineffective assistance of counsel by failing

to challenge the aggravating circumstance that the defendant knowingly

mutilated the body of the victim after death as unconstitutional on its face and

as applied in this case, especially given the failure to limit application of the

aggravating circumstance to mutilation caused by human action and to

specifically exclude consideration of mutilation caused by the activity of

scavengers or the decomposition process.

The Petitioner does not offer any argument in support of this issue he claims counsel should

have raised on appeal, and he does not cite to any legal authority in support thereof.

Accordingly, the Court considers this post-conviction ground for relief to be waived on

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appeal. See Tenn. Ct. Crim. App. R. 10(b) (“Issues which are not supported by argument,

citation to authorities, or appropriate references to the record will be treated as waived in this

court.”). Nevertheless, we agree with the trial court’s conclusion that counsel were not

ineffective for failing to raise the issue on direct appeal. The language of the aggravating

circumstance at issue provides: “The defendant knowingly mutilated the body of the victim

after death.” Tenn. Code Ann. § 39-13-204(i)(13). In denying post-conviction relief, the

trial court held:

In the case sub judice, this Court believes that the term “mutilation” is a term

which most reasonable people could understand without further instruction.

As to Petitioner’s assertion that the statute, as written, [would] be inapplicable

in this case, this Court finds that reasonable jurors would interpret “knowingly

mutilated” as requiring an affirmative act on part of the defendant rather than

merely setting in motion a chain of events leading to the victim’s mutilation.

In other words, reasonable jurors would have understood that had they found

that Petitioner left the deceased in such a state which allowed [her] body to be

torn apart by wild animals after her death, such actions would not constitute

“knowing mutilation” for purposes of the statute.

The Petitioner does not explain how this reasoning is flawed. Nor does he explain

how this aggravating circumstance is unconstitutional other than by simply suggesting that

it is. That mere suggestion, however, does not demonstrate how counsel’s failure to raise the

issue on appeal was objectively unreasonable. Regardless, given the sufficient evidence

supporting the other two aggravating circumstances, the Petitioner cannot show prejudice.

As to the other two issues he claims counsel should have raised on appeal, this Court

has already determined that counsel were not ineffective in their conduct during trial with

respect thereto. Thus, counsel cannot be deemed ineffective for failing to raise those issues

on appeal. The Petitioner has simply failed to demonstrate how he received the ineffective

assistance of counsel during direct appeal.

II. Jury Selection

In addition to those claims regarding trial counsels’ representation during jury

selection which are addressed above, the Petitioner contends that the trial court also

committed numerous errors during voir dire. The trial court concluded that each alleged

instance of error is either waived or previously determined. This Court agrees. See Tenn.

Code Ann. § 40-30-106(g) and (h).

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Because the Petitioner did not raise as issues on direct appeal any of the instances in

which he now alleges the trial court erred, they must be considered waived. Neither of the

two statutory exceptions with respect to waiver are applicable. See id. With respect to his

contention that the trial court erred in denying additional peremptory challenges, the

Petitioner acknowledges that the issue has been previously determined. See 121 S.W.3d 613,

n.6. The Petitioner states that he only raises it now to preserve the issue for potential federal

court review. Accordingly, for these reasons the Petitioner is not entitled to post-conviction

relief on his claims regarding the trial court’s conduct of jury selection.

III. Counsels’ Hotel Visit

As discussed above, Mr. Goodlett admitted during the evidentiary hearing that he and

Mr. Love visited the hotel while the jury was onsite in order to make sure the jurors did not

have access to any newspaper boxes. The visit occurred Saturday evening, August 30, 1997,

following the conclusion of the proof at the guilt phase. The trial judge was made aware of

the incident soon after it happened, and on Monday, September 1, 1997, immediately

following the return of the jury verdict, the judge admonished counsel, outside the presence

of the jury, against any future visits to the hotel. The judge stated as follows:

All right. Gentlemen, I’ve noticed this jury is a very conscientious jury and a

very intelligent jury. I’ve given them an abundance of instructions on how to

conduct themselves, them and the alternates, I see no reason to do it anymore.

It has come to the Court’s attention that there may be some investigation,

somebody thought it might have been necessary [to go] around the hotel out

there. Saturday night I put down an order and I’m telling you what the order

is now. Anyone inv

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