Steven Ray Thacker v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

August 2, 2011 Session

STEVEN RAY THACKER v. STATE OF TENNESSEE

Direct Appeal from the Circuit Court for Dyer County

No. C00-54 Allen Wallace, Senior Judge

No. W2010-01637-CCA-R3-PD - Filed March 23, 2012

A Lake County jury convicted the Petitioner, Steven Ray Thacker, of first degree murder and

sentenced him to death. On direct appeal, the Tennessee Supreme Court affirmed both the

conviction and sentence. See State v. Thacker, 164 S.W.3d 208 (Tenn. 2005). The Petitioner

filed a pro se petition for post-conviction relief, and the post-conviction court appointed

counsel. Following an evidentiary hearing, the post-conviction court dismissed the petition.

On appeal, the Petitioner contends that: (1) he received the ineffective assistance of counsel

during his trial; (2) he received the ineffective assistance of counsel on appeal; (3) the

sentence of death violates his constitutional rights; (4) the aggravating circumstances of his

case do not preclude a finding that he was prejudiced by his trial counsel’s performance; and

(5) he is entitled to post-conviction relief based upon the cumulative effect of counsel’s

errors. After a thorough review of the record and applicable authorities, we affirm the post-

conviction court’s judgment.

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

R OBERT W. W EDEMEYER, J., delivered the opinion of the court, in which J ERRY L. S MITH and

C AMILLE R. M CM ULLEN, JJ., joined.

Donald E. Dawson and Kertyssa Austin, Nashville, Tennessee, for the appellant, Steven Ray

Thacker.

Robert E. Cooper, Jr., Attorney General and Reporter; Jeffrey D. Zentner, Assistant Attorney

General; and C. Philip Bivens, District Attorney General, for the appellee, State of

Tennessee.

OPINION

I. Facts

A. Procedural History

On December 23, 1999, the Petitioner kidnapped, raped, and killed Laci Dawn Hill

in Oklahoma.1 He used credit and debit cards that he had stolen from Hill to purchase

Christmas presents for his family. Concerned that authorities were looking for him, the

Petitioner fled to Missouri where he car-jacked a grandmother, a mother, and a child. He

pushed the mother out of the vehicle and later let the grandmother and the child go. The

Petitioner evaded authorities by hiding in the woods for a few days and breaking into homes.

During one of the burglaries, Forrest Boyd, the homeowner, returned to the home, and the

Petitioner killed him. The Petitioner fled in Mr. Boyd’s vehicle to Dyersburg, Tennessee,

where the vehicle broke down. A tow truck driver, Ray Patterson, came to the Petitioner’s

aid, and, after Patterson learned that the Petitioner was attempting to pay with a stolen credit

card, the Petitioner killed Patterson. The Petitioner gave a statement to a Dyersburg police

officer admitting that he killed all three victims.

A Lake County jury convicted the Petitioner of first degree murder for killing

Patterson and, after a sentencing hearing, imposed a sentence of death. On direct appeal, the

Tennessee Supreme Court affirmed both the conviction and sentence. See State v. Thacker,

164 S.W.3d 208 (Tenn. 2005).

On December 12, 2005, the Petitioner filed a pro se petition for post-conviction relief,

and the post-conviction court appointed counsel. Following an evidentiary hearing, the post-

conviction court entered an order on July 2, 2010, denying post-conviction relief. The

Petitioner filed a timely notice of appeal on July 30, 2010.

B. Trial and Sentencing

The evidence presented during Petitioner’s trial was summarized by the Tennessee

Supreme Court as follows:

The [Petitioner], Steven Ray Thacker, was convicted of first degree

premeditated murder and felony murder for the death of Ray Patterson.2 The

State’s proof at trial established that on January 2, 2000, an automobile being

driven by the [Petitioner] broke down just east of the Mississippi River as he

1

Following Petitioner’s trial in Tennessee, Petitioner pled guilty to first degree murder,

kidnapping, and first degree rape in Oklahoma and was sentenced to death. See State v. Thacker, 100 P.3d

1052 (Okla. Crim. App. 2004).

2

The convictions were subsequently merged into a single conviction.

2

was traveling from Springfield, Missouri towards Dyersburg, Tennessee. The

[Petitioner] received a ride from an unidentified male to the Northside Truck

Stop in Dyersburg. The [Petitioner] asked the cashier at the truck stop,

Melissa Atkeson, if she knew of a wrecker service that was open on Sundays.

Atkeson provided the [Petitioner] with the name and telephone number of Ray

Patterson, a local wrecker operator. The [Petitioner] called Patterson and then

waited at the truck stop until the wrecker arrived.

Elizabeth Patterson, the victim’s wife, remembered her husband

receiving a telephone call at home on the morning of January 2, 2000. After

taking the call, Patterson wrote “Oldsmobile Cutlass, ‘85, pull to Auto Zone

store” on an envelope, then told his wife to continue on to church with their

children and he would join them later if possible. When the victim left home

that morning, he carried a .25 caliber semi-automatic pistol in his pocket,

which, according to Mrs. Patterson, was not unusual for her husband to do

when answering calls for a wrecker. He also carried a pocket knife, his wallet,

money, and a pack of cigars.

Curtis Hinson, an employee of Triple-A Taxi in Dyersburg, saw the

victim and another man in the victim’s wrecker that morning. As Mr. Hinson

was traveling on Lake Road, the victim’s wrecker passed by, traveling in the

opposite direction. Hinson observed that the victim was driving, another man

was riding as a passenger, and the wrecker was towing a vehicle. Also that

morning, a maintenance worker at the Dyersburg welcome center, Thomas

Burns, saw the victim accompanied by another man at the welcome center.

Later that afternoon, Burns learned that Mr. Patterson had been killed, and he

saw the [Petitioner’s] picture in the newspaper. Burns recognized the

[Petitioner] as the same man he had seen with Mr. Patterson at the welcome

center that morning.

Wyman Brasfield, a wrecker driver for Brasfield’s Body Shop, passed

by Patterson Brothers’ Service Station during the morning of January 2, 2000,

and noticed the victim standing inside the building with his back to the

window. Brasfield also noticed another person, whom he could not identify,

standing inside the building with the victim. The victim’s wrecker, with a car

attached to it, was parked outside the station lot. Later that day, Mr. Brasfield

received a call to tow a vehicle at the residence of Tim Capps, a local

mechanic. Upon arriving at Capps’ residence, Brasfield recognized the vehicle

to be towed as the same one that had been hooked to the Patterson wrecker

earlier in the day. The [Petitioner] later admitted to police that he had traded

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vehicles at Mr. Capps’ repair shop on that day.

Kenneth Campbell and Emily Guinn had been on their way to church

the morning of January 2, 2000, when they stopped at Patterson Brothers’

Service Station to buy a drink. When Mr. Campbell got out of his vehicle he

noticed a person walking towards him but thought nothing of it. However, as

he was attempting to get a soda from the drink machine, he saw the victim

lying on the ground between the gas pumps and the office. Mr. Campbell

immediately got back into his vehicle and left to find a telephone and call the

police. He circled the block and, as he neared the service station again, he

noticed “someone dragging the body near the roll-up door of the gas station.”

Mr. Campbell then drove directly to the police station to report what he had

seen.

Tina Canada, the manager of B&B Market at Big Boy Junction in

Dyersburg, recalled that on that same Sunday morning, a man came into the

store to purchase antifreeze. The man asked an elderly gentleman in the store,

Sam Brown, whether there was an outside water faucet. He also asked Mr.

Brown for directions to Auto Zone and then left the store, heading back toward

town. According to Ms. Canada, the man was calm and “just concerned about

getting his car fixed.” She could not, however, identify the [Petitioner] as

being the man in the store.

At approximately 12:20 p.m. that day, the [Petitioner] entered the Auto

Zone in Dyersburg and approached a customer in the store, Mr. Paul Gage.

The [Petitioner] asked Mr. Gage if he knew of “a place to get a car worked

on.” Mr. Gage referred him to Tim Capps and told the [Petitioner] that Capps’

repair shop was located behind Webb’s Used Cars. The [Petitioner], in a

statement [he] later gave to police, described how he drove from Auto Zone

to Capps’ shop. When he was informed that it would take several days to

repair his vehicle, the [Petitioner] traded his vehicle to Capps for a red

Chevrolet Camaro. However, the Camaro had mechanical problems, so the

[Petitioner] returned it in exchange for a Pontiac 6000.

By this time, police had discovered the victim’s body at Patterson

Brothers’ Service Station and had begun their investigation. Officer David

Fisher of the Dyersburg Police Department was the first officer on the scene.

Officer Fisher discovered the victim lying in the first service bay of the service

station. A trail of blood led from the first fuel pump island directly to the

body. According to Officer Fisher, the victim was dressed in an “ordinary

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service-station-type uniform” and “his inner shirt was torn, and the jacket and

shirt, around the collar area, was pulled backwards, as if he’d been dragged to

the location that he was found.” Officer Fisher also observed a “substantial”

wound to the victim’s upper torso.

Two EMT’s with the Dyersburg Fire Department, Jerry Walker and

Ronnie Collins, arrived at the scene shortly thereafter. Mr. Walker examined

the victim for vital signs but found none. Upon opening the victim’s shirt, he

observed a wound “in his shoulder, coming down, it looked like. It looked like

a knife wound.” No other wounds were discovered by Walker. A paramedic

at the scene, Tony Douglas, also examined the victim and discovered “a

puncture wound on the right side of the chest somewhere around two to three

inches long and in a moon-shape.” Mr. Douglas believed that this wound was

fatal and that the victim had died from “bleeding out” because “he’d lost a lot

of blood.” He found no other wounds on the victim. Mr. Douglas admitted,

however, that he did not know for certain the cause of death.

Investigator Jim Joyner was the first detective to arrive at the service

station. He observed a very large amount of blood at the scene, recalling that

“blood was all over the station, out in the front, in the service bay, in the

office” and the victim’s clothing was “saturated with blood.” Additionally,

there was a large blood splatter from the cash register to the wall of the office.

Investigator Joyner stated that the blood trail went out the door of the office

toward the service bay door. A Discover credit card in the name of Forrest R.

Boyd was found on the counter next to the credit card machine. Neither the

victim’s gun nor his wallet were found, and the Patterson wrecker was missing

from the service station.

Following up on the Discover credit card found at the scene of the

crime, investigators contacted the Sheriff’s Department in Polk County,

Missouri. They were able to verify that the person who owned the card,

Forrest Boyd, was a resident of Polk County and was not in Dyer County,

Tennessee. Also, Boyd had not given permission for anyone to possess or use

his card in Dyer County. Polk County Sheriff Mike Parson advised the

Tennessee investigators that the [Petitioner], Steven Ray Thacker, may have

been in possession of the credit card and also Mr. Boyd’s vehicle, which

Sheriff Parson described as a “1985 Oldsmobile Cutlass, burgundy in color”

bearing the license plate number 540JBJ.

After receiving this information pointing to the [Petitioner] as a possible

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suspect, along with a description of the vehicle he might be driving,

Investigator Joyner advised other law enforcement personnel to be on the

lookout for the vehicle and the [Petitioner]. Later that same day, the Dyer

County Sheriff’s Department was informed by Tim Capps that the suspect had

traded vehicles and was possibly driving a cream colored 1984 Pontiac 6000.

The Union City Police Department subsequently located both the vehicle and

the suspect at the Super 8 Motel in Union City.

Derrick O’Dell, a patrol officer with the Union City Police Department,

responded to information that the suspect vehicle was at the Super 8 Motel.

Upon arriving at the motel, Officer O’Dell observed a white male exiting the

building carrying two Wal-Mart bags and walking towards a dumpster.

Officer O’Dell approached and questioned the man, who identified himself as

“George” and stated that he was from Florida. When a second officer arrived,

however, the man was identified as the [Petitioner], Steven Thacker. The

officers then transported the [Petitioner] to the Obion County Jail.

Investigator Joyner, along with Investigator Monty Essary, searched the

[Petitioner’s] room at the Super 8 Motel pursuant to a warrant. They

recovered several items belonging to the victim, including credit cards, a .25

caliber semiautomatic pistol, hair dye, and numerous other items. On the bed,

the officers discovered two knives. Also, a green Carhartt coat and a brown

coat were seized from the room and sent to the Tennessee Bureau of

Investigation (TBI) for analysis. Some of the items found in the room were

bloodstained.

Investigator Essary accompanied the victim’s body to the Methodist

Hospital morgue, where he removed the victim’s clothing, including two

bloodstained shirts. This clothing was bagged and sent to the TBI Crime Lab

for analysis along with a blood sample obtained from the defendant. In

addition, investigators located a red Pontiac Firebird at Tim Capps’ business

that was one of the vehicles the [Petitioner] had driven. Inside the Pontiac,

investigators found a Buck brand five-and-one-half-inch knife with blood on

it. This knife was also forwarded to the TBI Crime Lab. The Crime Lab

report subsequently revealed that the DNA obtained from the blood on the

victim’s shirt matched the DNA from blood found on the knife, the Carhartt

coat, and the [Petitioner’s] boots, which had also been recovered from his hotel

room by investigators.

The [Petitioner] was taken from the Obion County Jail to the Dyersburg

6

Police Department where, upon being advised of his rights, he voluntarily

provided a statement to authorities. In his statement, the [Petitioner] detailed

his actions leading up to and following the victim’s death.

The [Petitioner] related how he had left his home in Chouteau,

Oklahoma, on about December 28, 1999, and traveled to Springfield, Missouri.

He left Springfield on December 31 and traveled toward Dyersburg,

Tennessee, but his car broke down “two-and-a-half miles this side of the

Mississippi River.” An unidentified man gave the [Petitioner] a ride into

Dyersburg and dropped him off at a truck stop. While at this truck stop, the

[Petitioner] called the victim and asked him to tow his vehicle into the service

station. Once they arrived back at the victim’s service station, the [Petitioner]

attempted to pay the victim with the stolen credit card, but the card was

rejected. According to the [Petitioner], “he wasn’t gonna give my credit–my

card back ‘cause I couldn’t pay the bill. . . . And I knew I was wanted in other

states, so I just stabbed him and took off.” He explained that the victim had

been facing the credit card machine when the [Petitioner] stabbed him but

immediately turned around and attempted to pull out his gun. However, the

[Petitioner] managed to elude him by hiding behind a truck parked inside the

garage. The victim then ran out into the parking lot towards the tow truck and

collapsed on the ground. At that point, the [Petitioner] drove the wrecker off

the property and into some nearby woods so he could remove his vehicle from

the back of the wrecker. The [Petitioner] then returned to the service station,

dragged the victim’s body back into the building and took the victim’s wallet

and gun.

The [Petitioner] explained how he later traded the Oldsmobile Cutlass

that he was originally driving for a red Camaro, but that the Camaro had

mechanical problems so he returned it in exchange for the Pontiac 6000. The

[Petitioner] said that the knife he had used to stab the victim was probably in

either the Oldsmobile or the Camaro. Shortly after the murder, the [Petitioner]

went to a local Wendy’s restaurant for a sandwich and then drove to Union

City where he checked into the Super 8 Motel. The [Petitioner] stated that his

plan had been to go camping in the Smoky Mountains, and he admitted to

having stolen some camping gear and the knife from Mr. Boyd along with the

Oldsmobile.

Based upon the foregoing, the jury found the [Petitioner] guilty of first

degree premeditated murder and felony murder in the perpetration of a theft.

7

....

During the penalty phase of the trial, Polk County Missouri Sheriff

Mike Parson testified that on January 2, 2000, there were warrants outstanding

for the arrest of the [D]efendant. Jim Porter, a criminal investigator with the

Dyersburg Police Department, recounted how the [Petitioner] had stated

during questioning that he “knew [he] was wanted in other states, so [he] just

stabbed [the victim] and took off.”

Elizabeth Patterson, the victim’s widow, stated that she and the victim

had been married for thirty-five years at the time of his death and that the

couple had three adult children. Mrs. Patterson explained that her husband

was her sole source of financial support prior to his death. Since his death she

had had no income, and was forced to borrow money to pay burial expenses.

She had also needed to borrow money to support herself until she received

insurance proceeds. She stated, “I lost my best friend and companion. And I

can’t sleep at night in my bed. I sleep on my couch.” She described her

husband as “a good man. . . a good Christian man,” and related how her

husband would sometimes tow vehicles for free. Mrs. Patterson also stated

that her husband earned approximately $15,000 per year at the service station

and that she had received $250,000 from her husband’s life insurance policy.

In mitigation, the [Petitioner] offered the testimony of Kimberly

Bowen, a resident of Huntington, West Virginia, who lived with the

[Petitioner] from 1994 until 1997. She described the [Petitioner] as follows:

Steve made me laugh a lot. He was very, very tender with me

and my kids. Probably the best example would be when he went

into construction and would be gone for a week or two at a time,

he would plant notes throughout the house, ‘cause he knew that

I’d go into the bill drawer to pay bills one day and there’d be a

little note letting me know that he missed me, or, you know, in

the laundry room. It didn’t really matter, you know, just little

spots that he would have little notes to remind me of him.

She further described the [Petitioner] as selfless and related how he had once

aided flood victims in Milton, West Virginia. Ms. Bowen stated that it seemed

like the [Petitioner] was always “seeking approval.” However, she also

described periods during which the [Petitioner’s] behavior changed.

According to Bowen, “maybe twenty percent of the time [the Petitioner] would

8

get revved up and be–he wouldn’t be Steve.” She recounted how this behavior

gradually affected their relationship to the point where she thought they needed

to seek help in order to stay together. Thereafter, Ms. Bowen and the

[Petitioner] went to a mental health facility in Huntingdon, West Virginia,

where the [Petitioner] was diagnosed as having bipolar disorder and was

prescribed lithium.

Ms. Bowen stated that the medication appeared to work. She recalled,

however, one episode of manic behavior by the [Petitioner] occurring after he

forgot to take his medication while on a trip out of town. According to Ms.

Bowen, the [Petitioner] “ended up in Columbus, trying to get back, and he kept

missing the turnoff on the Columbus loop . . . and he kept going faster and

faster. Finally, they stopped him at 140 miles an hour.” Ms. Bowen adamantly

denied that the [Petitioner] used alcohol or illegal drugs or that he ever

exhibited any violent behavior. When asked about the murder in Tennessee,

Ms. Bowen stated that it was not the act of the Steve Thacker she knew and

described it as “so polar opposite. It’s frightening.”

On cross-examination, Ms. Bowen admitted telling an investigator that

the [Petitioner] suffered severe mood swings. She explained that the

[Petitioner] had periods of depression during which he would “get revved up”

and exhibit manic behavior. She associated these periods of depression or

“revving” as accompanied by spending sprees and “the need for sex.” During

his “highs,” however, the [Petitioner] would seek approval from others.

Bowen further stated that, at some point, the [Petitioner] voluntarily stopped

taking his medication. Their relationship eventually ended because, according

to Ms. Bowen, “it was a wear on me to always be . . . the stable, you know,

home base, if you will. I always felt like I was somehow responsible for

Steve’s ability or inability to act correctly within society.”

Also testifying for the [Petitioner] was Crystal St. Clair, a resident of

Huntington, West Virginia, who first me the [Petitioner] in 1993. Mrs. St.

Clair said that the [Petitioner] was one of her best friends and described him

as “a caring, giving person.” She added that “he basically got along with most

anyone” and that the [Petitioner] would “try to keep trouble down rather than

create trouble.” Mrs. St. Clair thought highly enough of the [Petitioner] to

trust him with her children. She acknowledged that when the [Petitioner] left

West Virginia in 1997, she lost contact with him, although they would

“periodically touch base with each other.” Mrs. St. Clair also admitted that she

was aware of the [Petitioner’s] bipolar disorder, as well as his decision to stop

9

taking his medication.

Roxanne Evans, the [Petitioner’s] paternal aunt, also testified for the

[Petitioner]. She testified that the [Petitioner’s] father had been in the Air

Force and was transferred to Spain when the [Petitioner] was two years old.

When the [Petitioner] was four years old, his parents separated and eventually

divorced, and his father gained custody of the [Petitioner] and his two sisters.

The [Petitioner’s] father later remarried, and his new wife had difficulty

dealing with the children. Ms. Evans said that on one occasion the children’s

new step-mother “literally packed their clothes, sat them on the porch, and

when my brother came home from work, told him either the children left, or

she left.” The [Petitioner] and his siblings were taken by their father to their

grandparents’ house. From that point on, the [Petitioner] developed and

maintained a close relationship with his grandfather, but he had little contact

with his mother.

Ms. Evans recalled that as a child the [Petitioner] was quiet and

introverted. She added that the [Petitioner] was very “affectionate” and that

he seemed “hungry for acceptance, hungry for attention.” When asked if she

had ever seen the [Petitioner] exhibit any violent behavior, Ms. Evans

answered “no.” She concluded by stating:

He’s a very loving and caring person. He has a problem, and I

believe that in a controlled situation that he could live a semi-

productive life, and I believe that somehow God could use his

talents. He’s an extremely gifted artist. I believe that God could

use his talents maybe to touch someone somewhere, even if it is

in a prison.

The defense then presented Dr. Keith Allen Caruso, a forensic

psychiatrist. Dr. Caruso had interviewed the [Petitioner] on July 17, 2001 and

had also reviewed documents relating to the [Petitioner’s] case. Based on the

information he gathered, Dr. Caruso diagnosed the [Petitioner] with a “number

of conditions” including bipolar disorder, commonly known as manic

depression. Dr. Caruso described this condition as “a mood disorder where

someone’s emotional state may cycle from depression, where someone’s sad

. . . very tired . . . unable to sleep and may think about suicide.” Dr. Caruso

explained that “from a depressive episode, they may cycle up to a manic or

hypomanic episode where they’re very excitable, . . . irritable, . . . impulsive

and not think through the consequences of their actions.” A person in this

10

state would, according to Dr. Caruso, “have tremendous amounts of energy

and feel very agitated.” Their mind would race and “jump from one thought

to the next, to the next, to the next.” Dr. Caruso added that “someone may

cycle between these episodes, and there may be periods, also, in between that

they may return to normal functioning.”

Dr. Caruso related that the [Petitioner] had a history of alcohol

dependence but had been in remission while in confinement. The [Petitioner]

also had a history of drug abuse, but again, had been in remission since going

through drug rehabilitation as a teenager. Dr. Caruso further stated that the

[Petitioner] had a “personality disorder with borderline and antisocial traits.”

The doctor described persons with this condition as having “problems

controlling their behavior and behaving in maladaptive ways.” He opined that

the [Petitioner’s] thoughts “particularly around the time of the offense, were

more affected by the bipolar disorder.” Dr. Caruso stated, “I think this crime

was a convergence of many factors. I think that there are some things dating

back to Mr. Thacker’s childhood that put him on the path that he would be

here today.”

Dr. Caruso testified that the [Petitioner’s] mental condition could be

treated with a “mood-stabilizing medication like lithium.” He was also aware

that the [Petitioner] had previously been prescribed lithium for his bipolar

disorder but had voluntarily stopped taking the medication. According to Dr.

Caruso, once the [Petitioner] stopped taking the medication he would become

ill again, and the cycling of the mood disorder would continue. He concluded

that the [Petitioner] had been suffering a hypomanic episode at the time of the

crime and explained:

Well, I think that bipolar disorder is the severe mental disease.

I think, in addition, there was extreme mental or emotional

disturbance. In fact, there were a number of stressors, based on

Mr. Thacker’s history of abandonment and rejection, would

again provoke him into a state of extreme emotional

disturbance, in addition to the underlying mental disorder that he

has, in addition to the bipolar disorder.

Dr. Caruso testified that approximately two percent of the United

States’ population suffers from bipolar disorder. Approximately “two-thirds

to three-quarters” of these persons who take mood-stabilizing medication are

able to function normally in society. However, Dr. Caruso stated that a major

11

problem with treating bipolar disorder is that the patients are noncompliant

with the medication regimen. Dr. Caruso affirmed that the [Petitioner] had

voluntarily stopped taking his medication because he did not like the effect it

had on him.

In Dr. Caruso’s opinion, the [Petitioner] was competent to stand trial,

and a defense of insanity could not be supported in this case. Further, Dr.

Caruso stated that he “didn’t feel that there was anything here that prevented

Mr. Thacker from forming the mens rea for the alleged offenses.”

The [Petitioner’s] inmate records from Riverbend Maximum Security

Institution in Nashville were also introduced. These records revealed that the

[Petitioner] had incurred no disciplinary reports during his two years at that

facility awaiting trial.

Thacker, 164 S.W.3d at 214-20. Following the sentencing hearing, the jury found two

aggravating circumstances: (1) the murder was committed for the purpose of avoiding,

interfering with, or preventing a lawful arrest or prosecution of the [Petitioner]; and (2) the

murder was knowingly committed by the [Petitioner] while the [Petitioner] had a substantial

role in committing, or was fleeing after having a substantial role in committing, a first degree

murder, rape, robbery, burglary, theft, or kidnapping. T.C.A. § 39-13-204(i)(6), (7) (1997).

The jury also found that these aggravating circumstances outweighed the mitigating

circumstances beyond a reasonable doubt and imposed a sentence of death.

C. Post-Conviction Hearing

On December 12, 2005, the Petitioner filed a pro se petition for post-conviction relief,

and the post-conviction court appointed an attorney. The petition alleged that his trial

counsel were ineffective when they represented him. As relevant to this appeal, the

Petitioner specifically asserted that his trial counsel failed to: (1) request neuropsychological

testing; (2) communicate with and prepare Dr. Caruso for his testimony; (3) utilize the

services of a mitigation specialist; (4) utilize the defense team in an effective manner; (5)

conduct meaningful voir dire and preserve for appeal the denial of various challenges for

cause and the denial of a change of venue; (6) present sufficient social history mitigating

evidence; (7) present a cohesive theory of defense; and (8) object to and request certain jury

instructions.

At a hearing on the petition, the Petitioner’s lead counsel (“Counsel”) testified that,

at the time of the post-conviction hearing, he had been practicing law in Dyersburg,

Tennessee, for thirty-nine years and had been involved in seven capital cases, four of which

12

resulted in a sentence less than death. At one point in his career, Counsel had chaired the

Death Penalty Committee of the Tennessee Association of Criminal Defense Lawyers. He

had also testified as an expert witness in post-conviction matters in capital cases. During the

time period that Counsel represented the Petitioner, seventy percent of his practice was

devoted to criminal defense, and he was presently representing defendants in other capital

cases.

Counsel testified that, in preparing the Petitioner’s defense, he employed the

investigative services of Inquisitor, Inc., a company that he had used in similar cases in the

past. Counsel stated that there was a miscommunication between him and the investigators

about who would conduct the necessary interviews and arrange for the necessary witnesses

to appear at trial. Counsel assumed that Ron Lax, the head of Inquisitor, chose which

employees would conduct the necessary investigations. Counsel intended to allow Lax to

take the lead on investigating the case for the guilt and sentencing phases. Glori Shettles, an

employee with Inquisitor, was in charge of mitigation. Counsel said he and Co-Counsel

agreed that Co-Counsel would be responsible for preparing the mitigating evidence, so

Counsel forwarded any memorandum addressing mitigation to Co-Counsel. While Counsel

spoke to Ms. Shettles, he did not recall providing her with direction and stated that he relied

upon her to inform him of the information needed.

Counsel testified that the trial court had also appointed another attorney, (“Co-

Counsel”) to assist in representing the Petitioner. At the time, Co-Counsel and Counsel were

partners in the same law firm, and the two agreed Co-Counsel’s primary responsibility was

to develop defense proof for the penalty phase. Counsel agreed that, as lead counsel, he had

a duty to see that Co-Counsel performed the tasks properly. Counsel recalled that, in October

2001, while still representing the Petitioner, Co-Counsel left their law firm. Between that

time and the Petitioner’s February 2002 trial, Counsel and Co-Counsel did not continue to

meet about Petitioner’s case.

Counsel recalled that the State made a plea offer that included a sentence of life

without parole, and Counsel encouraged the Petitioner to accept the plea offer. The

Petitioner agreed to accept the plea only if he was guaranteed that he could remain

imprisoned in Tennessee rather than Oklahoma.

Counsel testified that the existence of the Petitioner’s charges for murder in both

Oklahoma and Missouri created unique problems. The defense did not want to open the door

at trial to allow the State to present evidence of the two pending murder charges. During

trial, hearings were conducted outside of the jury’s presence addressing issues with the other

killings.

13

Counsel testified he sought to change the venue of the Petitioner’s case from Dyer

County based upon the extensive pretrial publicity of the case, which included the murders

in Missouri and Oklahoma. The trial court granted the change of venue and transferred the

trial to Lake County. Investigators from Inquisitor conducted a survey of the news media and

Lake County citizens regarding their attitudes about the case, and 70% or more of the Lake

County citizens had heard about the case. The defense then filed a motion for change of

venue from Lake County, believing the Petitioner could not receive a fair trial in Lake

County. Counsel were unsuccessful in obtaining a venue change the second time.

Counsel recalled that, leading up to the Petitioner’s trial, he and Co-Counsel shared

the responsibility of conducting voir dire of the jury. For this process, Counsel retained the

services of Julia Fenyes, a jury specialist whom he had used on other cases. Counsel said

Fenyes “did a great job” obtaining background information on all of the jurors and creating

questionnaires for each juror to complete before trial. Both of these things Counsel found

helpful in the jury selection. Counsel testified that, in determining which jurors to keep on

the jury,

you’ve got to look and see what you’ve got in the remaining pool from the

memorandums and information that you had established with the

questionnaires. You’ve got to go by more things than talk, such as facial

expressions, demeanor, whether or not they’re going to be a leader or not a

leader, what their occupation is. I think a lot of things go into the selection of

the juror other than just black and white questions and answers.

When Counsel exercised a peremptory challenge, he was aware of the trial judge’s procedure

governing which juror would be the replacement and compared that juror to those who were

in the jury box. Counsel stated that, although he had some concerns with the jurors who

remained on the jury, he believed that those jurors were more favorable to Petitioner than

ones who remained in the jury pool. He further said that, in many other cases, he had used

all of his challenges and was left with an unfavorable juror that he was unable to challenge.

He acknowledged that he had not exercised all of his peremptory challenges in the

Petitioner’s case.

When Counsel subsequently raised the issue of the change of venue on appeal, the

issue was rejected because he had failed to exercise all peremptory challenges. Counsel

stated that, in choosing the jury, he was not trying to accomplish a perfect appeal but, rather,

tried to choose a jury that would sentence the Petitioner to a sentence less than death. He

said he “wasn’t thinking about how well it would read on appeal, just to throw jurors off at

random to please the appellate court.”

14

Counsel testified the theory of defense during the guilt/innocence phase was self-

defense based in part upon the fact that the victim always carried a loaded .25 caliber pistol

in his pocket. Counsel stated that, although self-defense is not available for a charge of

felony murder, “you don’t need but–you don’t need but one juror to buy your sales pitch and

you may get something less than death.” Counsel conceded that the Petitioner’s redacted

statement, which was introduced at trial, reflected that the Petitioner told police officers that

the victim produced the gun after the Petitioner had stabbed him. He maintained, however,

that the Petitioner had told him a different version than what was included in his statement

to police officers. Counsel admitted that he did not foresee that he would not be able to use

the version that the Petitioner had related to him without the Petitioner testifying at trial.

Counsel stated that, if he could try the case again, he would have encouraged the Petitioner

to testify because “[i]t didn’t work the first time.” Counsel further stated that the chances

that the jury would return with a verdict of less than first degree murder were “[s]lim and

none.”

Counsel testified that he retained Dr. Keith Caruso to evaluate the Petitioner. The

only time Counsel spoke to Dr. Caruso, prior to trial, was in the course of securing his

services with funds from the state. He said he also employed Dr. David Wilson, but Dr.

Wilson’s evaluation of the Petitioner was not helpful to Petitioner. Counsel recalled that Dr.

Caruso suggested that they also retain a neuropsychologist, but Counsel said he was unable

to locate one. Dr. Caruso stated in his report that insanity or diminished capacity could not

be supported.

Counsel stated he did not present evidence of diminished capacity in the guilt phase

but reserved that evidence for the sentencing phase. In hindsight, however, he thought he

should have presented evidence of diminished capacity during the guilt phase rather than

waiting to use it in mitigation in an attempt to “humanize” the Petitioner before the jury.

The basic mitigation theme was that the Petitioner suffered from bipolar disorder.

Counsel said that, at the time of sentencing, he was not aware whether the Petitioner also

suffered from brain damage. Counsel acknowledge that the type of testing he sought for the

Petitioner, administered by Dr. Wilson or Dr. Caruso, would not have revealed any such

damage.

Counsel testified that, looking back, he believed that Petitioner was on a downward

mental slide before he committed the murder for which he was convicted. The investigators

interviewed Trena Thacker, the Petitioner’s wife, who discussed problems, such as mood

swings, that the Petitioner had leading up to the crime spree. The investigators also

interviewed Harold Ramos, the Petitioner’s coworker, who said the Petitioner was suffering

monetary problems before the murders. Ramos reported that he and another employee would

15

have to pay the Petitioner’s motel and food bills when they were working on a job site away

from home because the Petitioner never had any money on the Monday after being paid. The

investigators also prepared a time line that began in May 1999 when Petitioner was released

from prison in Florida. The time line included information about the problems in the

Petitioner’s life and marriage. Counsel stated that, in hindsight, he believed that the time line

illustrated significant issues in Petitioner’s life that were relevant to the offense.

Counsel testified that the mitigation evidence presented was “terrible” and that if he

had to retry the case, he would not present any witnesses. He stated that Dr. Caruso appeared

to be intimidated by the trial judge and the judge’s warnings about opening the door to allow

the State to present evidence or question witnesses regarding the other two murders. As a

result, Dr. Caruso’s testimony was “totally ineffective.” Counsel said that, while it was his

practice not to meet with his experts to discuss the case and their findings before they render

their reports, he “should have done that in this case and tried to . . . [get the doctor] not to

write such a nice glaring novel for [the prosecutor] to consume [the Petitioner] with.”

Counsel stated that, during the penalty phase, the prosecutor used the Petitioner’s lay

witnesses against the Petitioner and turned them into prosecutorial witnesses. Counsel

acknowledged that, during Ms. Bowen’s testimony, the State elicited more testimony about

the symptoms of bipolar disorder than the defense did. Counsel did not know the amount of

time spent preparing Dr. Caruso and the lay witnesses for their testimony during the penalty

phase. Counsel did not recall having any contact with the Petitioner’s family members but

delegated those duties to Co-Counsel.

Counsel testified that Shettles, the mitigation expert, was called as a witness during

the penalty phase to show that it would cost more money to execute the Petitioner than it

would to keep him in a penal institution for the rest of his life. Counsel explained he filed

a motion in limine to keep the State from arguing the costs of incarcerating someone for life

because he “didn’t want the State to argue it, but [he] wanted to argue it like [he] want[ed]

to, that it cost more to execute him than it would be to keep him in prison. [The motion] is

just saying that [they] don’t want the prosecution to talk about the cost of incarceration.”

Counsel said the decision to put Shettles on the stand to offer the testimony was made “[i]n

desperation” near the end of the mitigation proof. Counsel presented the same argument in

another capital case. He believed the evidence would be effective due to comments that he

has heard from jurors throughout his career expressing the belief that taxpayers should not

have to pay to keep these defendants alive and in the penitentiary for life. Counsel’s witness

at the other trial testified that the numbers generally show that the cost of execution is

considerably higher than the cost of a sentence of life imprisonment. However, in the

Petitioner’s trial, the prosecutor pointed out that as soon as a defendant is executed, the costs

of imprisonment ends.

16

Counsel recalled that, when the jury exited the courtroom to deliberate, the Petitioner

expressed concern that the jury would not sentence him to death. Counsel received incident

reports on the Petitioner at the jail where he broke a light fixture and cut his hand. The

Petitioner also wrote a letter stating that he did not wish to receive any food or medication.

Counsel gave the information to Co-Counsel.

Co-Counsel testified that, at the time of the post-conviction hearing, he had been

practicing law for twenty years. At the time that he was appointed, Co-Counsel was also

representing two other defendants facing the death penalty. In both cases, the death penalty

was withdrawn before the trial, and, in one of those cases, the death penalty was withdrawn

before the development of the case for trial.

Co-Counsel testified that when he and Counsel were initially appointed to represent

Petitioner, they were partners, but their partnership ended a few months into the Petitioner’s

case. Before they ended their partnership, Counsel and Co-Counsel met at their office and

discussed the case on a regular basis. Co-Counsel said he performed more work on the case

and was more involved in the day-to-day preparation of the case for trial than Counsel.

Counsel, however, was responsible for the guilt/innocence phase of the trial.

Co-Counsel testified he was primarily responsible for reviewing the work of the

investigators, who interviewed witnesses and collected records. He could not recall the

number of meetings he had with the investigators.

Co-Counsel recalled that one of the primary issues in the Petitioner’s case was

avoiding or limiting evidence of the murders in Oklahoma and Missouri. Co-Counsel

acknowledged that the defense could have filed a motion in limine regarding the issue, which

would have enabled them to ascertain what evidence from those cases that the State could

introduce. While the Petitioner’s statement to the police was redacted for trial to exclude

references to the Oklahoma and Missouri murders, the Petitioner’s assertions that he was

eluding authorities in other states were not redacted. Further, the State introduced evidence

that the Petitioner attempted to use a stolen credit card as part of its theory of the case.

Co-Counsel stated Counsel retained the services of psychologists, including Dr.

Wilson, a clinical psychologist from Jackson, Tennessee. After reviewing Dr. Wilson’s

curriculum vitae, Co-Counsel acknowledged Dr. Wilson did not appear to be board-certified

and that his primary area of practice appeared to include general psychology and alcohol and

drug treatment. Co-Counsel further acknowledged that Dr. Wilson did not appear to have

training or experience as a neuropsychologist.

Co-Counsel testified the Petitioner’s records gathered by the investigators reported

17

that Petitioner had been involved in numerous accidents. He acknowledged that following

one accident, Petitioner was “life-flighted” to the hospital. Co-Counsel explained that they

were focused more on the Petitioner’s chemical imbalance and bipolar disorder than any

actual physical damage to his brain. Co-Counsel was aware the tests performed by Dr.

Wilson might not detect brain damage but stated the doctor was not looking for brain damage

at the time. Co-Counsel acknowledged being aware that brain damage and mental illness can

create a cumulative effect on a person’s brain. He said, however, the defense did not

investigate this issue.

Co-Counsel recalled that developing a theory of defense was challenging and that the

defense settled on presenting a theory of self-defense based upon evidence that the victim

carried a .25 caliber pistol with him and that “there was some confusing evidence about

whether or not that pistol had been pulled out and revealed to the [D]efendant prior to the

crime actually occurring.” Co-Counsel acknowledged that the Petitioner had told police

officers that he stabbed the victim before the victim pulled out a gun. He further

acknowledged the self-defense theory was weak, was only a defense to premeditated murder,

and was likely not a defense to felony murder. Co-Counsel stated that self-defense was the

only defense that they could present in light of Dr. Caruso’s report, which did not support an

insanity defense or defense based upon the Petitioner’s diminished capacity. Co-Counsel

said he did not believe the Petitioner would receive a verdict of not guilty and that he viewed

the case as a sentencing case from the beginning. He explained that the most important

aspect in obtaining a verdict of less than death is humanizing the defendant.

Before trial, the defense filed a motion for a change of venue. The trial court granted

the motion and moved the trial from Dyer County to Lake County, the only other county in

that judicial district. Co-Counsel said he was not pleased that the case was transferred to

Lake County and attempted to have the trial transferred to Madison County. Counsel and

Co-Counsel had the investigators conduct an in-depth investigation of Lake County jurors

and the media exposure in Lake County. Co-Counsel stated that although they filed what he

believed to be a “reasonably strong” motion for change of venue from Lake County, the trial

court denied the motion.

Co-Counsel testified that, during voir dire, the defense team’s goal was to select at

least one juror who would “hang” the jury. Before trial, Counsel and Co-Counsel retained

a juror selection specialist and prepared a questionnaire that was submitted to the jury pool.

The specialist assisted Counsel and Co-Counsel in assessing the jurors during voir dire and

during the selection process.

Co-Counsel recalled, that during voir dire, Counsel exercised only four peremptory

strikes, and Co-Counsel acknowledged that all strikes must be exercised in order for the

18

appellate court to address any issues raised with the jury. The defense had questionnaires on

every juror and conducted individual voir dire on every juror. Co-Counsel explained they

did not strike additional jurors because “[o]ne, every action that we took with regard to the

jurors, we did it while consulting with our specialist who had analyzed all of the

questionnaires for us. And two, the option at the time, the general opinion shared by both

Counsel and myself, along with the specialist, was that what was left in the pool was

probably worse than what we had.” Co-Counsel testified the defense team left jurors on the

jury who they had originally moved to strike for cause, even though the trial court had denied

the motion to strike. Co-Counsel explained, “we were attempting to improve our jury by

striking them for cause, if, if we didn’t–if we weren’t successful, in those cases, we weren’t,

then we felt like a peremptory challenge or a peremptory strike would have maybe subjected

us to getting someone worse up there.” Co-Counsel testified that, at the time of trial, he

believed the Petitioner had a chance of receiving a sentence of less than death in Lake

County. In hindsight, he agreed the odds were against them, but he believed at the time of

trial that they had chosen a jury who would not impose the death penalty.

Co-Counsel testified that, during the penalty phase, the defense team relied upon

evidence of diminished capacity and attempted to build a sympathetic profile of the Petitioner

in order to humanize him before the jury. Approximately one week prior to trial, Co-Counsel

filed a notice that the defense intended to introduce evidence relating to the Petitioner’s

mental condition as mitigating evidence during the penalty phase.

Co-Counsel said that he assumed the role as the mitigation specialist, even though he

also utilized Ms. Shettles as a mitigation investigator. Co-Counsel defined a mitigation

specialist as one who “is trained in assisting to develop themes, strategies, as well as

investigation of mitigation and the manner in which you approach mitigation.” Co-Counsel

stated that he reviewed all the materials and reports provided by Ms. Shettles.

Co-Counsel testified that he expected the investigators to learn of Dr. Caruso’s

approach to his examination of the Petitioner, to relate his results to Co-Counsel, and to

advise Dr. Caruso on his behalf as to what Co-Counsel would expect of him before Co-

Counsel prepared Dr. Caruso for his testimony. Co-Counsel did not see working directly

with Dr. Caruso as an attorney’s responsibility until they were preparing Dr. Caruso to

testify. Co-Counsel was unaware of whether Counsel had any further contact with Dr.

Caruso after retaining him. Co-Counsel did not recall meeting with Dr. Caruso until just

before trial. He stated he may have had one or more telephone conferences with Dr. Caruso,

but he was unsure whether Ms. Shettles was a party to the conferences or the substance of

the conversations.

Co-Counsel was aware of the Petitioner’s prior record, which included convictions

19

for passing bad checks in Florida. He acknowledged that, if the records showed that the

offenses occurred in a six-week period of time, it would be significant in terms of examining

the seriousness of the Petitioner’s bipolar illness. Co-Counsel was also aware that the

Petitioner had stolen vehicles and motorcycles and had traveled back and forth between

Florida and Ohio. He was unsure whether he made a connection between the incidents and

the seriousness of the Petitioner’s bipolar disorder.

Co-Counsel said he received a letter from Ms. Shettles dated December 27, 2001,

which stated that the Petitioner did not want his mother to attend trial. Co-Counsel did not

specifically instruct Ms. Shettles to inform the Petitioner’s mother that she was needed at trial

regardless of the Petitioner’s wishes. Co-Counsel conceded that in humanizing a defendant,

“[f]ewer things are as effective as a mama sitting up there crying for her baby.” The letter

from Ms. Shettles further informed Co-Counsel that one of Petitioner’s sisters was not able

to attend due to emotional issues. Co-Counsel stated that, in retrospect, the information in

the letter indicated that there may be problems with the family.

Co-Counsel said he also received memoranda from Ms. Shettles regarding her

interviews with Kim Bowen. He did not specifically recall any conversations with Ms.

Shettles about attempting to obtain additional information from Ms. Bowen to demonstrate

the severity of Petitioner’s bipolar disorder. Ms. Shettles also provided Co-Counsel with

memoranda of her interviews with Crystal and Warren St. Clair, Roxanne Thacker, Sherri

Thacker Grinnan, Ken Copley, Helen Richey, David Thacker, Nikki Thacker, and the

Petitioner’s mother and stepfather.

Co-Counsel noted Ms. Shettles was unable to interview the Petitioner’s biological

father, but Co-Counsel had information from the Petitioner that the Petitioner’s father would

not necessarily be a helpful witness. Co-Counsel testified it is sometimes difficult to

persuade a defendant’s family to cooperate due to public embarrassment and difficulty with

a family member “coming to grips” with the facts of the offense. Others reasons for the lack

of cooperation can include dysfunction in the family and problems suffered by that particular

family member. Co-Counsel noted a trained mitigation specialist could have possibly been

successful in interviewing the Petitioner’s father. Co-Counsel, however, was not going to

call Petitioner’s father as a witness because he was uncertain how the Petitioner’s father

would testify.

Co-Counsel testified that, during the penalty phase, he presented witnesses who were

cooperative, had good things to say about the Petitioner, and could explain his bipolar

disorder. He offered Ms. Bowen’s testimony that she maintained regular contact with the

Petitioner and visited him, along with Ms. St. Clair, who had contact with the Petitioner, on

multiple occasions. Both these witnesses, Co-Counsel believed, would help humanize the

20

Petitioner. Co-Counsel did not recall ever being contacted by the Petitioner’s father,

stepfather, or sisters. Co-Counsel noted, however, that Ms. Shettles’s memorandum from

her interview with Sherri Thacker Frinnan, the Petitioner’s sister, stated that Frinnan was

willing to provide information for the defense but was not particularly sympathetic or

supportive of the Petitioner. This memorandum led Co-Counsel to the conclusion that

Frinnan would not be a good witness. Co-Counsel further testified that the Petitioner’s

younger sister did not want to testify on the Petitioner’s behalf.

Co-Counsel said one of the issues that arose with regard to mitigation evidence was

demonstrating the seriousness of the Petitioner’s bipolar illness without discussing the

murders in Oklahoma and Missouri. Co-Counsel felt that his presentation of the evidence

was “like walking on eggshells.” Co-Counsel stated he made a strategic decision to exercise

caution so that he would not open the door to allow the State to present evidence of the two

prior murders for which the Petitioner had not yet been charged at the time of trial.

Co-Counsel testified that, before trial, the defense team filed a motion in limine asking

that the State be prohibited from arguing to the jury the costs of incarcerating someone for

life. Co-Counsel explained he did not want the State to argue to the jury that it was less

expensive to execute someone than to incarcerate the person for the rest of his or her life.

Co-Counsel said he called Ms. Shettles as a witness during the penalty phase to testify about

the cost of incarcerating someone for life as opposed to executing them. Co-Counsel further

stated that their plan “backfired” as the State was prepared for the question, and Ms. Shettles

was not really qualified to offer the testimony. Co-Counsel recalled Counsel may have

discussed the issue with Ms. Shettles before her testimony but that “we probably didn’t put

a lot of preparation time into it.”

Ms. Shettles testified that she had been an investigator with Inquisitor, Inc. since

1993. She had a bachelor’s degree in sociology and social work and a master’s degree in

counseling. Before being employed by Inquisitor, Ms. Shettles was employed at the

Tennessee Board of Parole from 1977 to 1990. She also worked as an investigator for the

Shelby County District Attorney General’s office for one year and supervised the community

corrections program for one year. Inquisitor hired Ms. Shettles to work in the area of

mitigation.

Ms. Shettles testified she was assigned to the Petitioner’s case. She was assisted by

Julie Hackenmiller, also a mitigation specialist, who conducted some of the interviews, and

LeAnn Hudgins, a guilt/innocence investigator, who collected some of the records. Ms.

Shettles conducted preliminary interviews with potential witnesses and family members,

including Ms. Bowen. Ms. Shettles met with the Petitioner’s mother and stepfather, Sherri

Thacker Frinnan, Crystal St. Clair and her husband, Roxanne Evans, and possibly another

21

relative. Ms. Hackenmiller interviewed the Petitioner’s sister, Nikki, who lived in New

Jersey. Ms. Shettles stated that she was unable to contact the Petitioner’s father. Ms.

Shettles testified she learned from other family members that the Petitioner’s father did not

want to see or meet with her.

Ms. Shettles stated that, as part of her investigation, she traveled to Ohio and West

Virginia in May 2001 to meet members of the Petitioner’s family, his friends, his former

employers, and others who knew the Petitioner and could provide helpful information. Ms.

Hackenmiller interviewed family members in Florida. Ms. Shettles also reviewed the

memoranda prepared by the guilt/innocence team from their investigation in Oklahoma to

determine whether any of the information related to mitigation. Ms. Shettles testified she

interviewed most of the witnesses in-person on one occasion, and she thought one interview

could be sufficient to obtain the information needed depending upon the person interviewed

and the sensitive nature of the information. She believed, however, that a follow-up

interview is best if given the opportunity.

Ms. Shettles testified Petitioner’s mother, Lillian Johnston, was cooperative but was

forthcoming about information that reflected poorly on her, her background, or the way that

she treated her children. Ms. Shettles noted that she had received information that, while the

Petitioner lived in Spain with his mother and his biological father, Ms. Johnston may have

had multiple affairs with other men. There were also allegations that she did not care for her

children as a result and was ultimately asked to leave Spain. Ms. Johnston, however, did not

confirm these allegations.

Ms. Shettles stated that, during their discussions, Ms. Johnston refused to attend the

trial. Ms. Johnston informed Ms. Shettles that the Petitioner had requested she not attend the

trial, and she intended to honor that request. Ms. Shettles recalled speaking to the defense

team about the importance of Ms. Johnston’s attendance at trial. She did not recall, however,

discussing with them ways to change Ms. Johnston’s mind. Ms. Shettles stated both of the

Petitioner’s sisters also refused to attend the trial.

Ms. Shettles testified that they chose to present evidence surrounding the Petitioner’s

bipolar disorder when asking the jury to impose a sentence of life in prison rather than a

sentence of death. The theme of the mitigation evidence presented became apparent early

on in Ms. Shettles investigation from her interviews, the Petitioner’s records, and other

information. Ms. Shettles did not recall having much interaction with Counsel, but she

communicated primarily with Co-Counsel through telephone calls and correspondence. Ms.

Shettles conceded that she did not recall receiving direction from the defense team about

what evidence she should follow up on and what evidence she should research. She also did

not recall many strategic meetings with Counsel or Co-Counsel to develop a mitigation

22

theme.

Ms. Shettles stated she developed a document of factors and themes that could support

mitigation of the Petitioner’s sentence, which she sent to Counsel and Co-Counsel. She

included themes she believed had been discovered through various interviews and records.

She believed these themes could have been presented to give the jury a better understanding

of the Petitioner’s actions when it considered his sentence. Ms. Shettles stated that, although

she shared the document with Counsel, she could not recall discussing how the themes could

be presented. She acknowledged a few of the themes were presented at trial, including

Petitioner’s bipolar disorder, his childhood, and his good working skills.

Ms. Shettles also prepared a mitigation time line for the team to use as a resource for

the Petitioner’s background. She explained the documents aided in identifying various

periods of either manic or hypomanic behavior. Specifically, she noted the Petitioner ran

away as a young teenager. She further noted the Petitioner wrote many bad checks in Florida

in a brief period of time.

Ms. Shettles testified that she also prepared a summary of the Petitioner’s social

history and an exhibit referred to as a “Bridge Exhibit,” which was a visual way to

summarize some of the more significant events in the Petitioner’s life in order to explain and

give context to how the Petitioner got to his current circumstances. Ms. Shettles thought an

expert testifying on the Petitioner’s behalf could use the exhibit at trial to illustrate points

within the Petitioner’s social history. Ms. Shettles believed Counsel could have also used

the exhibit during closing argument. She recalled, however, that the exhibit was not used

during the Petitioner’s trial.

Ms. Shettles acknowledged a memorandum of an interview with Trena Thacker,

Petitioner’s then wife, which included helpful mitigation information. The memorandum

referred to the Petitioner exhibiting symptoms of bipolar disorder, including shopping sprees,

issues with money, depression, and “back and forth behaviors.” Ms. Shettles stated Ms.

Hudgins interviewed Margie Fry, the Petitioner’s landlord. The memorandum of the

interview provided that Ms. Fry stated the Petitioner was helpful to her and attentive to Trena

Thacker’s child and that Ms. Fry believed the murders were out of character. Ms. Shettles

was aware of correspondence from the Petitioner to his younger sister, Nikki, in which he

complained of being unable to sleep and of having nightmares. Ms. Shettles acknowledged

that the letter would have supported other evidence showing the Petitioner suffered from

bipolar disorder and also exhibited signs of remorse.

Ms. Shettles said Counsel called her as a witness at trial to discuss the difference in

the cost of incarceration of an inmate for life or life without parole versus the cost of

23

incarceration of an inmate on death row. Ms. Shettles further said Counsel advised her that

she would be presenting the testimony approximately ten minutes before she was called to

the stand. Ms. Shettles did not believe she had the expertise to offer the testimony or that it

had any relevance or significance with the jury.

Kim Bowen testified she met the Petitioner while they were both working at Red

Lobster in Huntington, West Virginia, in 1993. They dated and lived together from 1993 to

1997. Ms. Bowen stated that before the Petitioner’s trial, Ms. Shettles came to her house “a

couple of times.” She also spoke to Co-Counsel on several occasions, and Co-Counsel

questioned her about the Petitioner. Ms. Bowen maintained she never spoke to Dr. Caruso

before trial. She stated she visited the Petitioner on two occasions before trial, but she was

unaware whether any other family members visited the Petitioner.

Ms. Bowen maintained she did not learn that she would testify at trial until Co-

Counsel mentioned it to her in the hallway during the trial. Although Co-Counsel told her

that she would testify the following day, she actually testified two hours later that same

afternoon. Ms. Bowen stated she did not feel that Counsel or Co-Counsel prepared her to

testify. Ms. Bowen further stated she was “horribly nervous” and would have been less

nervous if she had been prepared.

Ms. Bowen testified that she generally understood bipolar disorder and felt she

inadequately verbalized the Petitioner’s symptoms when she testified. She further stated that,

if she had been asked at trial, she would have told the jury about positive things the Petitioner

had done such as planning candlelight dinners, leaving notes for her when he was out of

town, constructing a dog house, taking her for a vacation in Cincinnati, purchasing a kitten

for her daughter for Christmas, and purchasing Execedrin in the middle of the night in case

she awoke with a headache. She would have asked the jury to spare the Petitioner’s life

because the Petitioner has the “absolute ability to enhance other people’s lives” when in a

controlled environment.

Ray Thacker, Petitioner’s biological father, testified he was in the United States Air

Force while married to the Lillian Johnston, the Petitioner’s mother. Shortly after they were

married, he went to basic training in Amarillo, Texas, for approximately six weeks and, when

he returned, he heard rumors that Ms. Johnston had been unfaithful. Mr. Thacker was next

stationed in Tampa, Florida, where the Petitioner was born, and he was subsequently

stationed at Zurich Air Base in Spain. While in Spain, Mr. Thacker caught Ms. Johnston

with another man, and she asked him for permission to continue dating the man while the two

were still married. Her infidelity began to interfere with Mr. Thacker’s work, so the base

commander ordered Mr. Thacker to take his wife and children back to the United States.

After returning his family to the United States, Mr. Thacker returned to Spain.

24

Mr. Thacker stated that Ms. Johnston continued to have problems after returning to

the United States. His oldest daughter, who was four or five years old at the time, was

having nightmares and was, he thought, close to having a nervous breakdown. Ms. Johnston

was unable to care for her, and Mr. Thacker stated that he heard allegations that Ms. Johnston

was abusing the children. Upon returning to Spain, Mr. Thacker was contacted by the Red

Cross and told that he needed to return to the United States due to Ms. Johnston’s problems

with the children and herself. Mr. Thacker requested a transfer to the United States, and

when the military denied the request, Mr. Thacker ceased his military service.

Mr. Thacker admitted his children had an unstable childhood. After divorcing the

Petitioner’s mother, Mr. Thacker remarried, and his children lived with him on different

occasions. Mr. Thacker recalled that, on one occasion, his children lived with him for

approximately one month when his second wife told him that if the children did not leave,

then she would leave. As a result of this ultimatum, the children returned to live with their

mother.

Mr. Thacker recalled that when the Petitioner was a child he was difficult to handle,

in part because he had difficulty being still. Mr. Thacker further recalled occasions when the

Petitioner was unable to sleep and appeared nervous. The Petitioner also had problems

focusing his attention on one task for extended durations of time. Mr. Thacker stated that,

on one occasion at a pizza parlor when the Petitioner was an adult, the Petitioner arose from

his chair and stated, “I’ve had enough of this. I’m not going to take it any more.” The

Petitioner exited the restaurant, and Mr. Thacker followed him. When Mr. Thacker

questioned him about the incident, the Petitioner denied making the statement and maintained

that he went outside to smoke a cigarette.

Mr. Thacker maintained he would have been willing to testify at the Petitioner’s trial

but was neither asked to do so nor notified of the trial date. Mr. Thacker said he would have

testified at trial that he loved the Petitioner and that the Petitioner never would have

committed the offenses if he had been “in his right mind.” Mr. Thacker recalled the FBI

came to his residence in late 1999 and informed him that the Petitioner was wanted for

murder. Mr. Thacker admitted he heard from the Petitioner’s sister that he had been captured

in Dyersburg, Tennessee. He, however, never attempted to see the Petitioner, explaining that

a relative had informed him that he would not be able to visit the Petitioner. He further

maintained he was unaware that the Petitioner’s stepmother sent the Petitioner a letter stating

she and Mr. Thacker could not assist him.

Mr. Thacker testified that, in December 1999 and January 2000, he was living in New

Carlisle, Ohio. He believed the Petitioner was living in Florida at that time. Mr. Thacker

was unaware the Petitioner had gotten married and lived in Oklahoma during that time

25

period. Mr. Thacker stated it would not surprise him if the Petitioner told an investigator that

he and the Petitioner had a bad relationship.

Lillian Johnston, the Petitioner’s mother, testified that, when she was young, her

parents’ idea of discipline was “very rough” and that she received such discipline every time

her father became upset or intoxicated. Ms. Johnston recalled her father also displayed

aggressive sexual behavior toward her and her sisters. Two of her brothers had also been

accused of similar behavior. Ms. Johnston testified that her father was easily agitated, had

mood swings, and abused her mother.

Ms. Johnston said she was nineteen years old when she married Mr. Thacker. Their

first child was born a year and a half into the marriage, and the Petitioner was born a year and

a half later. Ms. Johnston recalled that when the Petitioner was first born, he was allergic to

milk and was often sick. She stated the Petitioner would remove his diaper and spread feces

on the walls.

Ms. Johnston testified the family lived in poor conditions while residing in Spain.

They lived in a motel for three months and then an apartment that was scarcely furnished.

The family was forced to go without food, diapers, and milk. During this time, the Petitioner

fell from his crib, resulting in a knot on his head. Ms. Johnson said that also during this time

she met “Jose,” a man who took she and the children to restaurants. She said that, because

of her “friendship” with “Jose,” she and the children were forced to leave Spain. At the time,

the Petitioner was almost two years old. Ms. Johnston recalled that shortly after returning

to the United States, the Petitioner fell out of a moving vehicle, hit his head, and lost

consciousness.

Ms. Johnston testified that, after she and Mr. Thacker divorced, Mr. Thacker did not

provide child support, so Ms. Johnston had to work and be away from the children. A

babysitter cared for the children until Ms. Johnston’s oldest daughter turned eleven years old

and assumed responsibility for the children. Ms. Johnston admitted she was consuming

alcohol often during this time period. She recalled that, when the Petitioner was four or five

years old, he developed a high fever, but they never discovered the cause. The fevers

continued to occur twice each year until the Petitioner was twelve years old.

Ms. Johnston recalled an occasion during which the children moved to live with Mr.

Thacker for a short time. Mr. Thacker’s wife told him that either the children needed to

leave or she would leave. The children’s clothes were put in trash bags, and the children

were set out beside the road until their grandmother picked them up and called Ms. Johnston.

Ms. Johnston testified the incident seemed to have an effect on the children.

26

Ms. Johnston stated she, the Petitioner, and her youngest child moved to Florida when

the Petitioner was thirteen years old. A few months later, she met the man to whom she was

married at the time of the post-conviction hearing. Ms. Johnston said that when the

Petitioner was fifteen years old, he began working at Morrison’s Cafeteria in Boynton Beach,

Florida. She recalled that, up until this employment, the Petitioner appeared very angry and

moody but that he seemed happy while working at the cafeteria. The Petitioner was fired

from the job after “Sherri,” the Petitioner’s sister, moved to Florida, began working at the

cafeteria, and told the manager that the Petitioner was fifteen years old.

Ms. Johnston testified that her daughter, Sherri, had threatened to commit suicide and

was in a mental facility for six to seven weeks. Sherri had been married four times and had

been diagnosed as suffering from bipolar disorder.

Ms. Johnston testified she believed that the Petitioner’s behavior as a child was related

to bipolar disorder. She was unable to control the Petitioner and spanked him often. The

Petitioner’s behavior only worsened. Ms. Johnston stated that, after the Petitioner was

diagnosed with bipolar disorder and began taking lithium, he became kinder and was never

angry.

Ms. Johnston testified the Petitioner later moved to Oklahoma where her husband had

offered him a job. The Petitioner became upset because he could not live with Ms. Johnston

and her husband. The Petitioner met Trena Thacker two to three weeks later, and they were

married shortly thereafter. Trena quit her job shortly after they married and the Petitioner

eventually lost his job. Ms. Johnston recalled that the Petitioner did not handle the loss of his

job well and fell behind with his bills. Ms. Johnston’s husband offered the Petitioner another

job in Chicago, but the Petitioner did not accept the position due to the location.

Ms. Johnston testified she was never contacted by the Petitioner’s trial counsel. She

stated that, although Ms. Shettles contacted her, she did not recall Ms. Shettles requesting she

testify at the Petitioner’s trial. Ms. Johnston admitted the Petitioner requested she not attend

trial but maintained she would have testified had trial counsel informed her that her testimony

would be helpful. Ms. Johnston said that, if she had testified at trial, she would have asked

the jury to spare the Petitioner’s life and told them that the Petitioner had a big heart and a

family who loved him.

Susan Wardell, testified as an expert in the area of mitigation development and

presentation in capital cases. Ms. Wardell explained the duties and responsibilities of a

mitigation specialist, saying they must learn as much as possible about a defendant’s life and

social history. She stated a degree in social work is critical as a mitigation specialist because

social work involves training on family, work, school, and community systems. Social work

27

also involves learning about mental illness, developmental disabilities, and personality

disorders. A mitigation specialist must be “detail oriented” and examine how factors in an

individual’s life affect how the individual developed as a person. Ms. Wardell acknowledged

that there is no association that provides certification for a mitigation specialist.

Ms. Wardell testified that when she acts as a mitigation specialist on a case, her first

task is to interview the client and order records. Her aim is to become knowledgeable about

the client’s educational, medical, work, and military history. Ms. Wardell said she would ask

the client, who knows him or her best, about these subjects and then she would interview

close family members, and then family members, employers, girlfriends, childhood friends,

and teachers.

Ms. Wardell noted that family members are generally inaccessible and reluctant to

provide information. Family members can be confused and angry and sometimes feel as if

they are being blamed for the client’s actions, often finding it difficult to acknowledge their

own shortcomings. Ms. Wardell stated she spends quite a bit of time with the client at the

trial level to gain the client’s trust. Once a client trusts Ms. Wardell, the client will tell

family members to provide her with all the necessary information. Wardell testified she

almost always finds that the story that she hears from the client and the client’s family about

what the family was like during the first interview is not accurate.

Ms. Wardell said, in her role as a mitigation specialist, she also attempted to document

as many of the details of the client’s social history as possible. She opined that a mitigation

specialist must examine the dynamics between the parents and the client and also the parents

and their parents. Ms. Wardell stated the time period should expand beyond the time in

which the client was born “[b]ecause we’re all a product of how we were parented and the

environment we were raised in.” She said she kept the attorneys abreast of her progress and

attempted to develop a time line of events for them.

Ms. Wardell testified she also discussed with a client’s attorneys the need for experts.

She explained that, due to all the different specialities, a mental health expert need not be

chosen until it is determined what issues the client has experienced. Ms. Wardell further

explained a client like the Petitioner, who has suffered many head injuries, would need to be

examined by a neuropsychologist.

Ms. Wardell testified she reviewed the time line prepared by Ms. Shettles and noted

many mistakes. She noted the Petitioner’s grandfather, and not his father, was left on

someone’s doorstep as a baby. Ms. Wardell further noted chronological errors and

omissions. The time line also omitted the timing of the Petitioner’s mother’s affairs and

timing of the Petitioner’s parents’ breakups. Ms. Wardell prepared a time line showing that

28

the Petitioner’s impulsive behavior occurred in clusters. Her time line showed the Petitioner

attended many different schools due to his parents’ instability. Ms. Wardell’s time line also

illustrated the Petitioner’s moods at different time of the year.

Ms. Wardell stated that, while not necessarily standard practice in 2002 when the

Petitioner was sentenced, a mitigation specialist should prepare a written social history to

aid the mental health expert examining the client and also aid the attorneys representing him.

The written social history should include more detail than the time line and should explain

where the family came from and how they were raised. Ms. Wardell testified she prepared

a “genogram,” or a written social history, for the Petitioner. Ms. Wardell explained her

genogram showed the number of people in the Petitioner’s family who behaved in a manner

that could have indicated that they suffered from bipolar disorder. The genogram illustrated

the number of relatives who were alcoholics and abusive. Ms. Wardell opined mental illness

existed on both sides of the Petitioner’s family. She noted the Petitioner’s niece was

diagnosed with bipolar disorder when she was fourteen or fifteen years old. Ms. Wardell

further noted that the Petitioner’s social history indicated he exhibited symptoms of bipolar

disorder in his teens. Ms. Wardell said there seemed to be a lack of understanding on the part

of Counsel and Co-Counsel regarding the information obtained. She said that this was not

uncommon because attorneys are seldom educated in mental health issues and must take it

upon themselves to become educated on the subject.

Ms. Wardell testified the “Steve’s Bridge” exhibit prepared by Ms. Shettles was an

excellent way to demonstrate that an accumulation of factors, and not just one factor, can

cause a person to break. Ms. Wardell said Ms. Shettles “did a lot of very good work,” and

she expressed surprise that Counsel and Co-Counsel had used so little of the work that Ms.

Shettles had done in their representation of the Petitioner.

Dr. Jonathan Pincus testified he is the chief of neurology at the Veterans

Administration Medical Center in Washington, D.C. and also a professor of neurology at

Georgetown University. The post-conviction court admitted him as an expert in neurology.

Dr. Pincus explained that psychiatry and neurology address brain diseases and that the fields

often intersect. Psychiatry generally addressed diseases of the mind, behavior, and thought,

while neurology addressed diseases of motor function, sensory function, speech, and

memory.

Dr. Pincus evaluated the Petitioner in June 2008 at the River Bend maximum security

institute. He also reviewed the Petitioner’s history and interviewed the Petitioner’s mother,

father, stepfather, girlfriend, and an acquaintance. Dr. Pincus opined that the Petitioner

suffered from bipolar disorder, as he exhibited many symptoms of bipolar disorder, including

psychomotor hyperactivity, which meant the Petitioner was physically unable to sit still

29

“when he was in the grip of this [mania].” Both the Petitioner’s mother and his girlfriend

described his behavior to Dr. Pincus as physically agitated during these episodes. Dr. Pincus

said the Petitioner would also spend money unwisely, which led to his girlfriend assuming

responsibility for paying the household bills.

Dr. Pincus testified that his evaluation indicated that, when the Petitioner would

become manic, he was unable to sleep, sleeping for only one or two hours every night. After

a period of a few days, he would then sleep for an unusual amount of time. Dr. Pincus

explained that, during these episodes, the Petitioner had poor concentration, was unable to

analyze things clearly, and was irritable. Dr. Pincus stated the Petitioner was also

hypersexual and was indiscriminate in the number of women he was with even while he was

in a relationship.

Dr. Pincus testified that one of the symptoms characteristically associated with bipolar

disorder was alteration between depression with mania. Dr. Pincus explained periods of

mania can last for days, weeks, or months, most commonly lasting for weeks or months. In

the Petitioner’s case, however, there were manic episodes that lasted for years and depression

episodes that lasted a few weeks longer. Dr. Pincus stated that his investigation of the

Petitioner revealed that, during depression episodes, the Petitioner thought only about his

failure as a man and human being, and he exhibited no energy, sleeping sixteen to eighteen

hours per day.

Dr. Pincus testified it was “highly likely” the Petitioner was “manic depressive.” Dr.

Pincus admitted there is no test to diagnose bipolar disorder and that “you’re pretty much

stuck with the history.” He explained “[i]t’s a purely clinical diagnosis and every diagnosis

carries some slight degree of uncertainty with it and that’s why I said ‘highly likely.’”

Dr. Pincus stated the manic episodes of bipolar are treated, as a standard practice, by

proscribing lithium. Lithium, he said, has multiple side effects that are difficult for people

to handle. For someone who is bipolar perhaps the most difficult side effect is that the

lithium ceases the manic episode. For someone in a manic episode, this is difficult because

they “don’t want to be normal” and generally “like the excitement of the mania.” In the

Petitioner’s case, however, his girlfriend successfully persuaded him to seek treatment from

a clinic where he was diagnosed as bipolar and prescribed lithium. The Petitioner took the

medication for some time period, and his behavior changed as a result, but he hated the effect

of the medication. The Petitioner, therefore, chose to discontinue taking the lithium. Dr.

Pincus said “[i]f he were on lithium, I suspect he would not have committed that murder–any

of them.”

Dr. Pincus testified bipolar disorder is a genetic disease and approximately one-half

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of those who suffer from bipolar disorder have a family history of the disease. Dr. Pincus

noted the Petitioner’s mother had a period of hypersexuality in Spain while his father was in

the military, which resulted in her and her children being sent back to the United States. Dr.

Pincus opined that the Petitioner’s mother’s hypersexuality was attributable to mental

disease. Although the Petitioner told Dr. Pincus his father was the parent who was unable

to handle money and was hypersexual, Dr. Pincus believed that both parents had

abnormalities, with the Petitioner’s mother being most severely affected. Dr. Pincus said the

Petitioner’s older sister also exhibited many symptoms of bipolar disorder, and her child had

been diagnosed with bipolar disorder. The Petitioner’s history also showed that his maternal

grandfather was an alcoholic, was sexually and physically abusive to his daughters, and

exhibited mood swings. Dr. Pincus found that this family history supported the Petitioner’s

diagnosis of bipolar disorder.

Dr. Pincus testified that a child suffering with bipolar disorder is often hyperactive,

does not sleep, and does not pay attention. The child is often very difficult to control and

misbehaves in a high-spirited way. Dr. Pincus said that, if the parent of a child with bipolar

disorder is having an episode of mania or depression themselves, the parent’s ability to

control himself or herself and to control his or her anger is lessened, which often results in

the child being physically punished. Dr. Pincus noted the Petitioner’s mother admitted using

force and beating the Petitioner but stated that the beating did not deter the Petitioner’s

behavior. On two or three occasions, the Petitioner’s mother became so frustrated that she

left the Petitioner and his sister at their father’s house. The Petitioner and his stepmother,

with whom his father lived at the time, did not get along. When the Petitioner was six years

old, his stepmother put all of the Petitioner’s possessions along with his sister’s possessions

into garbage bags, took them to the curb, and said, “You’re out of this house. You’re

garbage. I don’t want you here and you’ll be here until you get picked up.” The children

remained outside until their grandmother retrieved them that night.

Dr. Pincus performed a neurologic examination of the Petitioner and also administered

multiple tests. In one test, referred to as “spooning of fingers with choreiform,” Dr. Pincus

asked the Petitioner to hold his hands out in front of him. When the Petitioner did so, his

fingers over extended making his hand look like a spoon. Dr. Pincus said this, in

combination with the involuntary movements he noticed in the Petitioner’s hands, led him

to the conclusion that there was something wrong with the part of the brain called the basal

ganglia. Dr. Pincus explained “[i]t’s a suble finding, but it’s a real one and suggests that

there was something wrong with these gray matter entities that are deep within the brain in

the frontal lobe.”

In another test, Dr. Pincus instructed the Petitioner to close his eyes, and Dr. Pincus

touched his left arm. Dr. Pincus asked the Petitioner where he had touched him, and

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Petitioner identified his left arm. Dr. Pincus repeated the test with the Petitioner’s right arm,

and the Petitioner identified his right arm. When Dr. Pincus touched both arms, however,

the Petitioner stated the doctor was only touching his left arm. The Petitioner did not feel the

doctor touching his right arm when the doctor was touching both sides at the same time. Dr.

Pincus testified this indicated something is wrong with the left parietal lobe of Petitioner’s

brain, which controls the right side of the body.

Dr. Pincus testified that, in his report, he stated that his tests indicated that the

Petitioner had “generalized reflex hyperactivity with bilateral crossed adductors and a right

Babinski.” Dr. Pincus explained he used a reflex hammer to tap the Petitioner’s ankles,

knees, and other reflexes. Dr. Pincus said the Petitioner had an excessive response which

indicated bilateral damage to the motor pathways area of the nervous system. Dr. Pincus

tapped the inside of the Petitioner’s right knee, and the Petitioner’s left leg moved to the

midline, which is called a crossed adductor. When Dr. Pincus tapped the inside of

Petitioner’s left knee, his right knee moved to the midline. Dr. Pincus stated the bilateral

crossed adductor reflexes indicate a pathological degree of hyperactivity of the reflexes. Dr.

Pincus also checked the Petitioner’s Babinski reflex, which involved stroking the bottom of

the Petitioner’s feet. Dr. Pincus explained the reflex is normal if the toes flex downward but

is abnormal if the big toe extends. Dr. Pincus testified that the Petitioner had a clear right

Babinski reflex, which indicated that there was something wrong with the left side of the

Petitioner’s brain. Dr. Pincus explained:

And it’s quite consistent with the sensory findings and it truly means that in the

frontal parietal region of the left side of his brain, there are neurons that are not

working properly. But there is also disease on both sides of the brain, because

the reflexes on both sides of the body are pathologically increased.

Dr. Pincus also performed a test where he asked the Petitioner to relax and pretend to

be a rag doll, slouching in the chair in which he sat. The doctor instructed the Petitioner to

extend a leg out and support the entire weight of the leg on his heels. Dr. Pincus put his hand

under the Petitioner’s thigh and gently pulled upward. Dr. Pincus explained that the

Petitioner’s performance on the test indicated that his frontal lobe was not working properly.

Dr. Pincus also conducted a face/hand test where he touched the left side or right side

of the Petitioner’s cheek and hand at the same time while the Petitioner’s eyes were closed.

The doctor said the Petitioner reported only feeling the doctor touch his face and not his

hand. Dr. Pincus explained “[t]hat means that he is extinguishing the less significant of the

two. The ability to pay attention to the less-important sensory stimulus is the frontal lobe.

The frontal lobe allows you to pay attention to that. There was a problem with his sensory

attentiveness.”

32

Dr. Pincus testified that the Petitioner’s results on some of the frontal tests were

normal, while others were abnormal. He said, however, a finding of a frontal lobe

abnormality could be supported by an abnormal test result on only three tests. Dr. Pincus

explained one of the primary functions of the frontal lobe is to provide mature analysis and

judgment. The frontal lobe tends to dampen and control impulses and urges. A person who

has a frontal lobe that is not functioning properly often does whatever he or she wishes. Dr.

Pincus opined that while the Petitioner had difficulty controlling his impulse to kill, the

doctor did not believe that “he was completely without responsibility of that.”

Dr. Pincus opined that the Petitioner had a neurological deficit and bipolar disorder

and that, as a result, he did not have the capacity to plan and make proper decisions. The

doctor stated that the Petitioner’s judgment “was not eliminated by the disease but that his

scope of free will was limited by it.” Dr. Pincus further opined that the Petitioner’s capacity

to plan was diminished but not completely eliminated by his illness. He explained that when

a person has brain damage, the amount of stress necessary to throw that person over the edge

into chaos was not great and that the ability to make immediate decisions was altered. Dr.

Pincus did not believe the Petitioner was capable of cool reflection.

Dr. Pincus testified the initial homicide occurred as a result of the Petitioner’s plan

to obtain money so that he could purchase Christmas presents for his children. The Petitioner

then planned to flee to East Tennessee where he would live in the woods. Dr. Pincus

conceded the Petitioner’s continued escape involved planning and decision-making. Dr.

Pincus further acknowledged that if the Petitioner’s explanation to police regarding his

reasons for killing the victim was correct, it would indicate some planning on the Petitioner’s

part. Dr. Pincus also admitted the Petitioner’s actions after killing the victim required

process and planning. The doctor opined, however, that such planning was not indicative of

a normal person’s actions but was a sign of the Petitioner’s disturbance. Dr. Pincus stated

that the Petitioner’s “plan . . . to avoid apprehension and to avoid punishment was primitive,

the kind of thing a child might do.”

Dr. Pincus testified that he was aware that, during the course of his crime spree, the

Petitioner had taken a vehicle occupied by a mother, grandmother, and a child and chosen

not to harm any of them. The doctor stated that the Petitioner made the wrong decision in

stealing the vehicle but made the right decision in not killing the occupants. Dr. Pincus

admitted that the Petitioner did have some control and could make correct choices. Dr.

Pincus testified that the fact that the Petitioner did not kill other people does not invalidate

his diagnosis or his opinion that mental illness and brain damage played a role in limiting the

Petitioner’s exercise of free will. The doctor further testified that the Petitioner was in a

manic state for the entire ten-day period in which the crime spree occurred and the proper

decisions made by the Petitioner during the manic state were due to “[v]arations in the

33

intensity of the abnormality that was induced by the manic state.”

Dr. Keith Caruso is board certified in both general psychiatry and forensic psychiatry.

The post-conviction court permitted him to testify as an expert in psychiatry. Dr. Caruso

evaluated the Petitioner in July 2001, wrote a report of the evaluation, and testified at the

Petitioner’s trial regarding his findings.

Dr. Caruso was unable to recall speaking with Counsel after their original

conversation about getting him appointed to the case. He said that, if he did talk to Counsel,

the conversation was brief. Dr. Caruso stated he called Counsel and Co-Counsel repeatedly

and essentially received no response until Co-Counsel arranged a meeting with him the night

before he was to testify. Due to an accident on the interstate that evening, Dr. Caruso was

delayed and unable to attend the meeting. Dr. Caruso stated that, when working with

attorneys on a capital case, he generally had multiple contacts with them, and he had never

worked on any other case where there was so little preparation and dialogue.

Dr. Caruso testified that he may have met with trial counsel for two or three minutes

before his testimony during the penalty phase. At the time of his testimony, he did not know

what questions trial counsel intended to ask him during his testimony. Before testifying, Dr.

Caruso learned that the trial court was fearful that he may discuss matters that had been ruled

inadmissible, but Dr. Caruso maintained he did not intend to discuss those issues. Dr. Caruso

acknowledged that his report included information that may have led the trial court to believe

he would offer inadmissible testimony, but he stated he could have redacted the information

from the report if trial counsel had so instructed. Dr. Caruso stated that, as a result, he

believed his trial testimony was limited regarding the psychosocial factors in the Petitioner’s

childhood that intersected with his bipolar disorder, leading the Petitioner to react in a

certain way at the time of the homicides.

Dr. Caruso testified that the trial court did not consult with him on alternate ways to

testify regarding the information that he wanted to get into evidence. Dr. Caruso explained

that part of a psychiatric evaluation is to examine the person’s social and developmental

history to aid in understanding the person’s personality and facts that may be particularly

stressful to the person. Dr. Caruso noted the Petitioner was often left alone while his mother,

a single parent, was working two jobs. Before the murders, a bank official informed the

Petitioner that his trailer was going to be taken away from him. Poverty once again became

an issue, and the Petitioner’s marriage was threatened. Dr. Caruso noted the Petitioner’s

most desperate actions occurred at times when he did not feel as if he had anywhere else to

go.

Dr. Caruso explained bipolar disorder is an episodic illness and a person can cycle in

34

and out of depression and mania within the same episode. Episodes are generally

precipitated by psychosocial stressors. Dr. Caruso stated:

I could have explained that . . . the theme of loss, of return to poverty, of

abandonment, all of these issues were the stressors that tipped [the Petitioner]

off and put him into the manic episode and then some of the behavior that

occurred, well, the exposure to abuse as a child teaches him violence as

problem-solving and when he’s in a–when he’s in a particularly stressed state,

it’s one of the things that you fall back upon, so that there wasn’t–there wasn’t

a lot of teaching of effective coping mechanisms throughout his childhood.

Those are the kinds of things that I would have liked to have been able to have

said.

Dr. Caruso said that he testified at trial that the Petitioner had bipolar disorder and that

the disorder impaired his capacity to control his behavior. Dr. Caruso maintained he was cut

off at trial when he attempted to testify about the Petitioner’s childhood, but he

acknowledged a full description of the Petitioner’s childhood was introduced before the jury.

Dr. Caruso stated he felt that he should have been allowed to provide thorough details and

a full explanation of how the factors of his childhood intersected with recent events to

subsequently affect his behavior.

Dr. Caruso testified he wrote a letter to trial counsel recommending

neuropsychological testing due to the Petitioner’s history of head trauma. Dr. Caruso said

at age one or two, the Petitioner fell from an automobile and that he fell again at age eight

or nine. At age fifteen, the Petitioner was involved in a motor vehicle accident where he lost

consciousness due to bleeding. The Petitioner was also injured in a motorcycle accident and

required several stitches to his chin. Dr. Caruso stated that the Petitioner had a significant

history of head trauma. Dr. Caruso stated that, after interviewing the Petitioner and

reviewing his statement to the police, he did not have a sense that the Petitioner had brain

damage. The doctor explained that, due to the Petitioner’s history of head trauma, he

believed the Petitioner should have undergone neuropsychological testing. Dr. Caruso

testified he also provided trial counsel with an affidavit regarding the need for

neuropsychological testing.

Dr. Caruso acknowledged that in his letter to trial counsel enclosing the report he

stated, “Although you received abundant accounts of suffering closed-head trauma, medical

records did not substantiate this.” Dr. Caruso said he made an error in the letter because he

did review a medical record that suggested the Petitioner suffered head trauma after striking

his chin in a motorcycle accident. The next sentence of the doctor’s letter stated that the

Petitioner’s “description of the events in his statement to police and your interviews with him

35

do not suggest any structural brain impairment.” Dr. Caruso explained that in speaking to

the Petitioner, it was not readily apparent to him that the Petitioner had brain damage and

stated “but it appears that I was wrong.”

Dr. Caruso learned the Petitioner had brain damage or a deficit due to closed-head

trauma from the reports of Dr. Pincus and Dr. Pamela Auble. Dr. Caruso explained testing

would demonstrate whether someone has functional deficits, and a MRI or a CT scan would

demonstrate structural damage. Psychological testing may show evidence of deficits that

would not have been shown on an MRI. Dr. Caruso said Dr. Pincus’s report provided that

the MRI of the Petitioner did not indicate evidence of brain damage but that Dr. Pincus found

abnormalities in his clinical and neurological examination of the Petitioner.

Dr. Caruso testified that, at the time he examined the Petitioner, he had been provided

with a memorandum of an interview with Kim Bowen that included useful information. He

said, however, he was unaware at that time how much information she had about the

Petitioner. Dr. Caruso maintained that counsel never requested he speak to Ms. Bowen or

any other witness, and he had not appreciated, at the time, how good a resource Ms. Bowen

would have been from the information included in the memorandum. Before testifying at the

post-conviction hearing, Dr. Caruso spoke to Ms. Bowen for approximately ninety minutes.

Ms. Bowen provided information regarding the Petitioner’s manic episodes and stated the

episode during the time of the killings was as severe as she had ever witnessed. Dr. Caruso

said the symptoms Ms. Bowen mentioned changed the view of the Petitioner’s condition

from hypomania to mania, which is a more severe condition.

Dr. Caruso said that, at the time of his trial testimony, he did not appreciate that many

of the Petitioner’s prior criminal offenses were clustered during certain time periods. Dr.

Caruso noted that the Petitioner’s criminal history included the passing of many bad checks

in a short period of time, which was not evident from the criminal records. He stated that the

evidence suggested that much of the Petitioner’s prior criminal behavior may have occurred

during manic episodes.

On cross-examination at trial, Dr. Caruso opined that the Petitioner was competent

to stand trial and was not insane at the time of the offense. When the doctor testified at the

penalty phase, Dr. Caruso was unaware the Petitioner also had brain damage.

Dr. Caruso identified the Petitioner as having various symptoms such as racing

thoughts, decreased need for sleep, impulsivity, and distractibility. Dr. Caruso testified that

Ms. Bowen, whom the Petitioner contacted before the homicides, stated the Petitioner had

been very grandiose when talking to her over the telephone, that he fluctuated between being

very excited and very irritable, and that he was speaking rapidly. Ms. Bowen stated the

36

Petitioner was also “somewhat paranoid.” She informed Dr. Caruso that she had never seen

evidence of paranoia with the Petitioner on prior occasions, even when he was severely ill.

Dr. Caruso testified that paranoia is not a usual symptom of hypomania and that paranoia

suggests the person is losing touch with reality and becoming psychotic, which would only

occur in a manic state and not in a hypomanic state. Dr. Caruso said, “I don’t think it ever

got to the point where [the Petitioner] was having a delusion or hallucinations, but it really

spoke to me about how much more severely ill he was than I had initially thought, based on

his self-report and the other data that I’d seen.”

Dr. Caruso explained that environmental factors played a role in the Petitioner’s

psychological illness, including poverty and lack of education. The Petitioner repeated the

first and seventh grades and dropped out of school in the ninth grade. He was raised in a

home of chaos with no real stability. His mother was frequently absent from the home,

leaving his older sister in charge of the Petitioner. Dr. Caruso stated that the dissolution of

the Petitioner’s family left him sensitive to abandonment. The Petitioner was also physically

abused as a child. Dr. Caruso testified the stressors that precipitated the Petitioner’s manic

episode were the potential loss of his childhood, his return to poverty, and possible

abandonment. Dr. Caruso noted the Petitioner was about to lose his trailer because he was

two payments behind, his marriage was disintegrating, and he sought out Ms. Bowen who

rejected him. Dr. Caruso said these situations were painful for the Petitioner and precipitated

the manic episode.

Dr. Caruso opined that, because the Petitioner was manic and had brain damage, he

could not premeditate the killing of the victim. Dr. Caruso testified that with the additional

information that he had, he believed the Petitioner’s capacity was diminished at the time he

committed the offense. The doctor stated his opinion is not that the Petitioner was not able

to plan but that “the planning occurred in a state of excitement and passion that was really

impairing.” Dr. Caruso explained that when the Petitioner’s credit card was denied, he felt

trapped and made a “split-second decision.” Dr. Caruso further explained that those with

bipolar disorder and brain damage have more difficulty in making a “split-second decision”

than those without these afflictions. Dr. Caruso said “having been abused as a child, there

is this lesson in emotional moments that teaches you violence is problem-solving as a way

out. Furthermore, there is no other way out to him at that particular moment. There’s

nothing else that occurs to him.”

Dr. Caruso testified that the Petitioner’s judgment and impulse control were not

imminently impaired on the day in which the doctor evaluated him. Dr. Caruso stated he

noted in his report that the Petitioner’s “high cognitive function was generally intact, scoring

30-30 on the Folstein Mini-Mental Status Examination,” which is the highest score possible

on the test. Dr. Caruso explained the test “doesn’t pick up real well on frontal lobe damage.”

37

The doctor said that, at the time of the evaluation, the Petitioner was no longer in a manic

episode but was depressed. Dr. Caruso estimated the Petitioner was of average intelligence

based upon his vocabulary and his capacity for abstract thought.

Dr. Robert Shaffer, a clinical psychologist in the northern suburbs of Atlanta, Georgia,

testified that he had a bachelors degree and masters degree in psychology and a doctorate in

clinical psychology. Dr. Shaffer had training in forensic psychology and neuropsychology

and a variety of experience performing neuropsychological testing. He stated he was not

board certified in the area of neuropsychology but that a board certification in the area is not

required in Tennessee. The post-conviction court admitted Dr. Shaffer as an expert in the

field of clinical psychology and neuropsychology and noted Dr. Shaffer’s training or lack of

it related to the weight of his testimony.

Dr. Shaffer testified that he examined the Petitioner for a total of ten hours at the jail.

He also reviewed the Petitioner’s correctional records, social history records, mental health

records, and documents from the prison health service where he was incarcerated. Dr.

Shaffer submitted a report of his assessment. He noted that, in preparing a report, time lines

were not as useful as a social history, which described the events and grouped the events

according to issues that the doctor could quickly examine and determine symptom patterns.

Dr. Shaffer testified that five factors created pathological conditions that contributed

to the Petitioner’s psychological state. First, a genetic family history of mental illness

existed, which was significant to predispose a person to develop a type of illness such as

bipolar disorder. Dr. Shaffer testified that, second, the Petitioner had an absence of maternal

attachment and that the relationship with the mother had proved to be important in later

conduct and behavior. Third, the Petitioner was subject to childhood neglect with physical

abuse. Dr. Shaffer noted that, in the Petitioner’s family, there was an absence of care in the

home, absence of parenting, and physical abuse. Fourth, the Petitioner was subject to

frequent residential and school changes as a child. Dr. Shaffer stated clinical literature shows

that many school changes and residential changes result in poor adaptation in life in a variety

of issues. Finally, the Petitioner had multiple closed-head injuries, which can have a

cumulative effect that can significantly impact behavior. Dr. Shaffer testified each of the

five factors have well-documented research that shows casual affect on violent behavior. He

explained “in and of themselves, each one may not seem that significant and may not be that

significant, because people every day live with one or two of those factors and don’t get in

trouble. However, when all factors combine, the predictability of a violent situation is better

than chance, certainly.”

Dr. Shaffer also obtained a medical history as part of his evaluation. He noted the

Petitioner’s mother had an extremely difficult pregnancy with emotional distress and marital

38

conflict due to infidelity. He explained such emotional distress creates stress hormones in

the presence of the mother and the fetus, and that the fetus can become conditioned to those

biochemicals during pregnancy.

Dr. Shaffer testified that, after the Petitioner was born, it was reported he fell from his

crib onto concrete and landed on his forehead and that his eyes were dilated. Soon thereafter,

the Petitioner was ejected from a moving vehicle onto the street and was rendered

unconscious and limp for approximately five minutes. At age four, the Petitioner fell out of

a car window and hit his head on a concrete culvert. Dr. Shaffer stated several people

reported the Petitioner’s mother struck him with her fists, skillet, or other available objects

and she once slammed the Petitioner’s head into a brick wall. When the Petitioner was eight

years old, he had a series of two or three more head injuries within the same year. The

Petitioner reported to Dr. Shaffer that one of the injuries occurred while he was playing a

game with a friend where they would run at each other full speed and collide their heads

together to determine who had the hardest head. The Petitioner further reported to the doctor

that another injury occurred when he jumped out of a moving ice cream truck and struck his

head on the pavement and yet another when he struck his head on a windowsill while

jumping on the bed.

Dr. Shaffer testified that re-injury can continue the trajectory of problems with a

damaged brain and also interfere with the growth of new parts of the brain in a developing

youth. Dr. Shaffer acknowledged there was no evidence of a coma or laboratory brain scans

conducted at that time. The doctor stated that, at age twenty, the Petitioner was ejected from

a motorcycle while traveling at a high rate of speed which could result in some degree of

head injury. At age sixteen, the Petitioner had severe gastroenteritis, dehydration, and fever

for three days. Dr. Shaffer explained “hospital stays are associated with . . . impairment of

brain functioning as well when there’s a high fever for a period of time like that.” Dr.

Shaffer testified that, during a time when the Petitioner’s frontal lobes should have been

developing, he sustained continued injuries that were compounded by a series of injuries over

his life. Dr. Shaffer opined “there’s a strong likelihood that you would expect to see some

kind of behavioral results because of brain injury.

Dr. Shaffer testified that, on both the paternal and maternal side of the Petitioner’s

family, there were a number of relatives who displayed symptoms consistent with mania or

bipolar disorder. Dr. Shaffer noted the Petitioner’s maternal grandfather was sexually

aggressive and molested the Petitioner’s mother and her sisters. Dr. Shaffer noted evidence

that the Petitioner’s mother was involved in multiple relationships with different men at the

same time. The doctor said the grandiosity or expansive mood state that allows a woman to

think that she can have multiple relationships at the same time is another symptom of mania.

The Petitioner’s paternal grandmother was a victim of excessive family sexuality and set fire

39

to all of her belongings. Dr. Shaffer stated the Petitioner’s sister attempted suicide and was

placed in a mental health facility because she was upset and highly aggressive, which is

typical of those suffering from mania. The Petitioner’s niece was diagnosed with

oppositional defiant disorder and later bipolar disorder.

Dr. Shaffer testified the Petitioner was born with a gastrointestinal disorder that

caused him to projectile vomit. This disorder causes a baby pain even when the mother is

attempting to comfort the baby. Dr. Shaffer said the Petitioner’s mother was not in an

emotionally secure place and was not a calm presence for the Petitioner as a baby. Dr.

Shaffer testified there was also evidence that the Petitioner was developing a social

attachment disorder and a later emerging psychotic disorder as he would smear his feces on

the wall. The doctor said that, as a result, the Petitioner was less attractive to his mother as

an infant, which likely affected his development.

Dr. Shaffer opined the Petitioner likely had ADHD as a child. The doctor noted that

the Petitioner’s father described him as being “antsy.” School records indicated the

Petitioner was not able to attend class and was restless and very hyperactive, all of which are

typical symptoms of ADHD. He explained children with ADHD are more likely to display

symptoms of bipolar disorder and bipolar disorder does not typically arise until young

adulthood.

Dr. Shaffer testified that about the abuse and neglect the Petitioner suffered as a child,

saying the Petitioner’s father threw him down the stairs on one occasion. On another

occasion, the Petitioner’s father picked him up by his arm and yanked him around. Dr.

Shaffer noted that the Petitioner’s mother was not available during his childhood, and his

father left the family on the Petitioner’s seventh birthday. The Petitioner’s older sister,

Sherri, was placed in charge of him when she was six or seven years old and the Petitioner

was four years old. Dr. Shaffer further noted the Petitioner’s mother did not want to care for

him and left him in the care of others. She left him in the care of Daniel Copley, who had

a history of violent behavior, raped his wife, and was accused of molesting his daughter. Mr.

Copley kicked the Petitioner in the head on one occasion and punched him in the head on

another occasion. Dr. Shaffer said one of the Petitioner’s mothers’ boyfriends also kicked

the Petitioner in the head. Another boyfriend pulled a revolver on the Petitioner and made

him and his sisters hold a broomstick in the air over their heads for an extremely long period

of time.

Dr. Shaffer testified the Petitioner had fifteen residence changes and eight school

changes by the time that he was in the eighth grade. Dr. Shaffer explained that research

shows such changes result in poor school performance and worse psychological adjustment,

as well as more depression and anxiety and worse behavioral patterns. The doctor noted all

40

of the moves were made without warning to the Petitioner.

Dr. Shaffer testified he met with Kim Bowen, who was at one time the Petitioner’s

girlfriend, and who confirmed the Petitioner’s bipolar symptoms. Ms. Bowen stated the

Petitioner was taking lithium to control the symptoms. She recalled an occasion when the

Petitioner was out of town without his medication and developed symptoms. The Petitioner

was driving back home and attempted to exit off the freeway, but he kept missing the exit

and continued to drive faster each time. By the time police officers stopped him, the

Petitioner was traveling 140 miles per hour. Dr. Shaffer said this instance is typical of a

person who is manic, as well as a symptom of brain injury, particularly in the frontal lobes

which control the ability to anticipate consequences.

Dr. Shaffer stated that those with bipolar disorder frequently stop taking medication.

The doctor explained that one of the symptoms of bipolar disorder is grandiosity, a belief that

the person knows better than everyone else what he or she needs. He said that people who

have manic grandiosity tend not to follow a doctor’s advice and tend to stop taking their

medication.

Dr. Shaffer administered neuropsychological tests to the Petitioner. Dr. Shaffer

opined that in four specific measures related to frontal lobe brain injury, the Petitioner

showed particular difficulty. The tests indicated that other areas of the brain, like the

occipital and the parietal lobes, were not significantly impaired.

Dr. Shaffer administered the “go, no-go” procedure, which is characteristic of several

tests that measure frontal lobe activity. He explained a subject is conditioned to perform a

response and then he is required to hold back from that response in a complex stimulus

situation. The procedure tests impulse control. The first test is called the Stroop test in

which an individual is presented with printed words on a page and each word is a name of

a color. Each word is printed in different colored ink which does not necessarily match the

name of the color printed on each card. In the first trial, the person is asked to read the words

and ignore the colors, and the number of words correctly read in two minutes is tallied. In

the second trial, the person is asked to name the color of the print and ignore the word. Dr.

Shaffer stated that on the Stroop test, the Petitioner’s performance “indicated a probability

of 92 percent that he matches the population of individuals that have been identified as

having a brain injury.”

Dr. Shaffer testified he also administered the cancellation test to the Petitioner, which

requires the subject to mark with a pencil forms that have a designated shape and color. For

example, the form may include a red square or a blue circle. Dr. Shaffer testified a person

with frontal lobe injury finds it difficult to ignore the color that he or she is marking when

41

it is in a different shape or ignore the shape that he or she has been marking when it is in a

different color. Dr. Shaffer opined that the Petitioner’s performance fell within the fifth

percentile in that his performance would be exceeded by 95 of 100 individuals who take the

test.

Dr. Shaffer also administered the “Tower of London” test to the Petitioner. The

doctor explained the test involves three pegs with different colored beads and that the subject

is required to match certain patterns of the beads set up by the doctor in as few moves as

possible. Dr. Shaffer said those with frontal lobe injuries move the beads from peg to peg

until they get a solution. The Petitioner’s total move count was below the first percentile.

His additional moves resulted in excessive time of completion, and he scored at the second

percentile.

Dr. Shaffer stated he administered to the Petitioner the Wisconsin card sorting test,

in which the subject must choose a card from a deck and place it below one of the four cards

that it matches. Dr. Shaffer said the Petitioner failed to maintain the correct scoring category

on three occasions. The doctor opined that the Petitioner’s failure “shows an inability to hold

to a solution even when it’s functioning and it’s in place.” Dr. Shaffer also tested for

malingering and concluded the Petitioner’s test results were reliable and valid. Dr. Shaffer

concluded the Petitioner had difficulty anticipating a consequence of an act that he was about

to perform and shifting behavior tracks.

Dr. Shaffer testified the Petitioner was genetically predisposed to bipolar disorder and

that, as a result, he was highly likely to develop that disorder. He further testified the

Petitioner’s continual brain injuries damaged his brain as it was developing, making his

behavior more difficult to control, and also resulted in the lack of development of the frontal

lobes in an appropriate manner. Dr. Shaffer explained the frontal lobes are the most

important aspect of governing behavior. He further explained that with the bipolar disorder

and the brain damage, “you’re just looking at raw animal instinct who lives right in the

moment for physical gratification.”

Dr. Shaffer testified that, during the criminal episode, the Petitioner had a high level

of anxiety and fearfulness causing much adrenalin. Dr. Shaffer explained the Petitioner was

anticipating he would be required to defend himself, and as a result, he would react with

aggressive self-defensive behavior even in a situation where such behavior was unnecessary.

Dr. Shaffer stated such behavior is typical for someone with this type of mental illness with

a manic disorder. He said that, due to attachment disorder, the Petitioner had a real fear of

abandonment, and a person with such a disorder can become mentally disorganized without

the right kind of affection. Dr. Shaffer further stated that at the time of the events, the

Petitioner had been kicked out of his home by his wife and rejected by Ms. Bowen. Dr.

42

Shaffer opined the Petitioner had the inability to see others as valuable human beings at that

moment.

Dr. Shaffer admitted he did not know if he would expect the Petitioner’s behavior

during the ten-day crime spree to be consistent. Dr. Shaffer stated that the Petitioner’s

actions, when he did not harm a grandmother, a mother, and a child, are not inconsistent with

his diagnosis. The doctor explained he was not “going to rule out that some choice is

operating, but it’s very clear to me that the choices are severely limited and narrowed in his

situation.” He further explained that, on one occasion, the Petitioner may have more control

than on another occasion and that both the brain impairment and the bipolar disorder interfere

with choices at different times. Dr. Shaffer admitted that, at some point in his life, the

Petitioner was aware that medication could control the bipolar symptoms.

Rick Kammen, an attorney who practiced in Indianapolis, Indiana, testified that a

large portion of his cases are capital punishment cases in state and federal court. The post-

conviction court admitted Mr. Kammen as an expert in the area of death penalty defense.

Mr. Kammen testified that, with regard to the Petitioner’s case, he reviewed the technical

record, the transcript of evidence, reports by Inquisitor of witness interviews, and notes taken

by Co-Counsel during jury selection.

Mr. Kammen testified that expectations of attorneys in capital cases arise from two

sources, state law and the decisions of the United State Supreme Court. Mr. Kammen said

the most significant standard had been developed by the American Bar Association. The

ABA published guidelines in February 2003, approximately one year after the Petitioner’s

trial. The guidelines published in 2003 were a detailed codification of the guidelines and

standard of practice that had existed for many years. Mr. Kamman stated that, although the

standards for attorneys in capital cases in 2002 may have been better described in the 2003

guidelines, the standards had not changed in a significant manner in years.

Mr. Kammen testified that, in preparing for a capital punishment case, trial counsel

should develop a defense team, which includes co-counsel, investigators, and, in some

circumstances, mental health experts. Mr. Kammen stated trial counsel have an obligation

to coordinate and communicate with the defense team. The goal is to have as many of the

team members as possible provide information so that the best decisions can be made. Mr.

Kammen noted that, although the Petitioner’s trial Counsel assembled a defense team, there

was no coordination or communication with the members.

Mr. Kammen opined that trial counsel were deficient in failing to make a record

regarding issues in jury selection and the change of venue. He noted half of the jurors were

excluded for cause and other jurors who remained on the panel stated that if they convicted

43

the Petitioner of first degree murder, they would impose the death penalty. Mr. Kammen

questioned why trial counsel would challenge a juror for cause if he believed that the juror

would be favorable. He stated that once the trial court denies a challenge for cause, counsel

must exercise a peremptory challenge in order to preserve the issue for appeal. Counsel must

also use all peremptory challenges in order to preserve the issue of the change of venue. Mr.

Kammen stated he reviewed the transcript of Counsel’s oral argument in the appellate court

and the appellate opinions and opined Counsel’s performance during oral argument was

deficient.

Mr. Kammen was aware that, in addition to the murder charge in Tennessee, the

Petitioner was accused of two other murders that occurred within the same ten-day period.

Mr. Kammen testified he “would never say that a lawyer was ineffective for wanting to

exclude from the jury’s consideration two other murders. Clearly, that would be preferable.”

He noted that there are times in which an attorney must “bite the bullet” and present such

evidence in order to explain the whole story. Mr. Kammen further noted the trial court had

ruled that the evidence of the stolen vehicle and stolen credit card were admissible, as well

as evidence that the Petitioner was wanted in other jurisdictions. Mr. Kammen said the

Petitioner’s deterioration that occurred near Christmas of 1999 seemed to have resulted from

some of the financial issues that were raised by the Petitioner’s wife. He stated, “it seems

to me that you have a long history of bipolar behavior way predating this and then the

episode that occurred, which, given the way the case played out, the story would have been

the same.” Although Mr. Kammen did not necessarily believe trial counsel would have or

would not have opened the door to the other murders, he recognized there would be a point

where trial counsel could open the door, which he agreed should be avoided.

Mr. Kammen testified that, to avoid opening the door to other offenses, trial counsel

should either file a motion in limine or reach a stipulation with the prosecutor. Either course

should be done prior to trial in order to prepare trial strategy and avoid opening the door to

allow the State to present evidence or question witnesses regarding the other offenses. Mr.

Kammen stated the decision to avoid evidence of the prior murders is a “sound tactical

decision.” He acknowledged that one of the aggravators upon which the State initially relied

was the “mass murder” aggravator, but the State disregarded this aggravator as it was

prohibited from presenting evidence of the other murders. Mr. Kammen said as a result, he

would be more hesitant to open the door to the prior murders as the State would then be

allowed to use the evidence to prove one of the aggravators. Mr. Kammen reiterated he is

not “by any means faulting the decision to try and avoid opening the door to the Oklahoma

and Missouri murders.”

Mr. Kammen testified it is difficult for an attorney to determine in the abstract the

importance of neuropsychological testing in developing a diminished capacity defense. Mr.

44

Kammen stated the Petitioner clearly suffered from bipolar disorder and had prior head

injuries. Mr. Kammen further stated head injuries often produce brain damage and

significant brain damage along with bipolar disorder could change the diminished capacity

equation. Mr. Kammen opined that neuropsychological testing leading to findings that

Petitioner had brain damage in the frontal lobe would have enhanced a diminished capacity

defense. He testified that, even if the Petitioner was convicted, the evidence presented at trial

would have flowed differently into the penalty phase.

Mr. Kammen said trial counsel are responsible for ensuring that the experts have the

necessary information to reach their conclusions. He admitted it appeared that Dr. Caruso

had all the information the investigators developed in the case prior to rendering his opinion.

Dr. Caruso acknowledged bipolar disorder is a severe mental disease, but he could not opine

that the disease prevented Petitioner from forming the requisite mens rea. Mr. Kammen

further admitted expert testimony is required as evidence of diminished capacity, and Dr.

Caruso could not provide that testimony at the time.

Mr. Kammen testified he was familiar with what is required in capital punishment

cases in order to obtain funding for experts. He stated that, although Dr. Caruso’s report

does not specifically indicate the need for additional testing, information is included in the

report that could be used to support a request for neuropsychological testing. He said Dr.

Caruso sent a letter to trial counsel stating that if they wanted to cover all bases,

neuropsychological testing and an MRI or CT scan would be recommended. However, Dr.

Caruso acknowledged in his letter that the medical records did not substantiate the need for

the testing and that Petitioner’s descriptions of the events in his statement to police officers

and interviews with the doctor do not suggest structural brain impairment. Mr. Kammen

testified Dr. Caruso provided trial counsel with an affidavit including very specific

recommendations.

Mr. Kammen opined that trial counsels’ investigation for the penalty phase and their

coordination of the evidence presented and elicited in the penalty phase was “highly

deficient.” Mr. Kammen further opined that trial counsels’ failure to coordinate the

presentation between the guilt/innocence phase and the penalty phase was also deficient. Mr.

Kammen explained that, despite the trial court’s instructions to the contrary, jurors tend to

make the decision of life or death at the same time they are making the decision of guilt or

innocence. He stated that, as a result, trial counsel should “front load the mitigation” by

presenting penalty phase material in the guilt/innocence phase. Mr. Kammen testified that

evidence of the Petitioner’s bipolar disorder and erratic behavior would not be a successful

defense, “[b]ut in terms of using that as a way of beginning to sensitize the jury to the mental

health evidence, that’s certainly preferable than self-defense that can’t even possibly be–can’t

even meet the instructions for self-defense.” Mr. Kammen opined that, since the trial court

45

ruled that evidence of bipolar disorder does not open the door to the other murders during the

penalty phase, it would not open the door in the guilt/innocense phase. Mr. Kammen

acknowledged that, regardless, the goal would be to avoid opening the door to allow

evidence of the other murders. Mr. Kammen stated that in a situation where counsel expects

the client to be convicted, the standard of practice is not to present a “throw away defense”

of innocence.

Mr. Kammen stated the investigation into the client’s social history is part of a capital

punishment case. The investigation can be used to determine which witnesses and records

need to be developed into a time line and presented to the jury. Mr. Kammen noted a person

against whom the death penalty is sought almost always suffered profound damage as a child.

He testified the investigation generally requires more than one in-person interview with each

of the critical witnesses, family members, and close friends. Mr. Kammen explained that a

relationship must be built with the family as they generally do not wish to be involved in the

case. He further explained that information of family dysfunction is never obtained on the

first interview due to the sensitive nature of the information and that such information may

never be obtained in some cases.

Mr. Kammen testified that during the penalty phase, trial counsel questioned the

victim’s widow on cross examination regarding the victim’s yearly income of $15,000 and

the life insurance policy of $250,000. The subtext of the questioning was that the financial

situation of the victim’s widow had improved since his death. Mr. Kammen stated that such

a line of questioning inflamed the jury. Mr. Kammen also noted Ms. Shettles’s testimony

regarding the cost of imprisoning a defendant for life was presented in such a way that it

helped the prosecutor. Mr. Kammen stated that the prosecutor’s cross examination of Ms.

Bowen identified the symptoms of bipolar disorder and the prosecutor was effective in

suggesting that Petitioner knew right from wrong.

Based upon this evidence, the post-conviction court found that the Petitioner’s trial

counsel were not ineffective, and it dismissed the petition for post-conviction relief.

II. Analysis

On appeal, the Petitioner contends that: (1) he received the ineffective assistance of

counsel during his trial; (2) he received the ineffective assistance of counsel on appeal; (3)

the sentence of death violates his constitutional rights; (4) the aggravating circumstances of

his case do not preclude a finding that he was prejudiced by his trial counsels’ performance;

and (5) he is entitled to post-conviction relief based upon the cumulative effect of trial

counsels’ errors.

46

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

Procedure Act. T.C.A. §§ 40-30-101 to -122 (2006). To obtain post-conviction relief, the

Petitioner must show that his conviction or sentence is void or voidable because of the

abridgement of a constitutional right. T.C.A. § 40-30-103 (2006). Petitioner must establish

the factual allegations contained in his petition by clear and convincing evidence. T.C.A. §

40-30-110(2)(f) (2006).

Once the post-conviction court has ruled upon a petition, its findings of fact are

conclusive on appeal unless the evidence in the record preponderates against them. Wallace

v. State, 121 S.W.3d 652, 656 (Tenn. 2003); State v. Nichols, 90 S.W.3d 576, 586 (Tenn.

2002) (citing State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999)). This Court may not reweigh

or reevaluate the evidence or substitute its inference for those drawn by the post-conviction

court. Nichols, 90 S.W.3d at 586. Questions concerning the credibility of witnesses and the

weight to be given their testimony are for resolution by the post-conviction court. Id. (citing

Henley v. State, 960 S.W.2d 572, 579 (Tenn. 1997)). It is, therefore, the burden of a

petitioner to show that the evidence preponderated against those findings. Clenny v. State,

576 S.W.2d 12, 14 (Tenn. Crim. App. 1978).

Notwithstanding, determinations of whether counsel provided a defendant

constitutionally deficient assistance present mixed questions of law and fact. Wallace, 121

S.W.3d at 656; Nichols, 90 S.W.3d at 586. As such, the findings of fact are reviewed under

a de novo standard, accompanied with a presumption that those findings are correct unless

the preponderance of the evidence is otherwise. See Fields v. State, 40 S.W.3d 450, 458

(Tenn. 2001) (citations omitted). In clarifying the standard, our Supreme Court explained

that the standard for reviewing the factual findings of a trial court has always been in

accordance with the requirements of the Tennessee Rules of Appellate Procedure,

specifically Rule 13(d). Fields, 40 S.W.3d at 456.

A. Ineffective Assistance of Counsel at Trial

The right of a criminally accused to representation is guaranteed by both the Sixth

Amendment to the United States Constitution and article I, section 9, of the Tennessee

Constitution. State v. White, 114 S.W.3d 469, 475 (Tenn. 2003); State v. Burns, 6 S.W.3d

453, 461 (Tenn.1999); Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn.1975). The following

two-prong test directs a court’s evaluation of a claim for ineffectiveness:

First, the [petitioner] 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 [petitioner] by the Sixth

Amendment. Second, the [petitioner] must show that the deficient

47

performance prejudiced the defense. This requires showing that counsel’s

errors were so serious as to deprive the [petitioner] of a fair trial, a trial whose

result is reliable. Unless a [petitioner] makes both showings, it cannot be said

that the conviction or death sentence resulted from a breakdown in the

adversary process that renders the result unreliable.

Strickland, 466 U.S. at 687; State v. Melson, 772 S.W.2d 417, 419 (Tenn. 1989).

In reviewing a claim of ineffective assistance of counsel, this Court must determine

whether the advice given or services rendered by the attorney are within the range of

competence demanded of attorneys in criminal cases. Baxter, 523 S.W.2d at 936. To prevail

on a claim of ineffective assistance of counsel, a petitioner must show that “counsel’s

representation fell below an objective standard of reasonableness.” House v. State, 44

S.W.3d 508, 515 (Tenn. 2001) (citing Strickland, 466 U.S. at 688).

When evaluating an ineffective assistance of counsel claim, the reviewing court

should judge the attorney’s performance within the context of the case as a whole, taking into

account all relevant circumstances. Strickland, 466 U.S. at 690; State v. Mitchell, 753

S.W.2d 148, 149 (Tenn. Crim. App. 1988). The reviewing court must evaluate the

questionable conduct from the attorney’s perspective at the time. Strickland, 466 U.S. at 690;

Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982). In doing so, the reviewing court must be

highly deferential and “should indulge a strong presumption that counsel’s conduct falls

within the wide range of reasonable professional assistance.” Burns, 6 S.W.3d at 462.

Finally, we note that a defendant in a criminal case is 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, 665 n. 38 (1984)). Counsel should not be deemed to have been ineffective

merely because a different procedure or strategy might have produced a different result.

Williams v. State, 599 S.W.2d 276, 279-80 (Tenn. Crim. App. 1980). The fact that a

particular strategy or tactic failed or hurt the defense does not, standing alone, establish

unreasonable representation. House, 44 S.W.3d at 515 (citing Goad v. State, 938 S.W.2d

363, 369 (Tenn. 1996)). However, deference to matters of strategy and tactical choices

applies only if the choices are informed ones based upon adequate preparation. House, 44

S.W.3d at 515.

If the petitioner shows that counsel’s representation fell below a reasonable standard,

then the petitioner 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

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the proceeding would have been different.” Strickland, 466 U.S. at 694; Nichols v. State, 90

S.W.3d 576, 587 (Tenn. 2002). This reasonable probability must be “sufficient to undermine

confidence in the outcome.” Strickland, 466 U.S. at 694; Harris v. State, 875 S.W.2d 662,

665 (Tenn. 1994). “A reasonable probability of being found guilty of a lesser charge, or a

shorter sentence, satisfies the second prong in Strickland.” State v. Zimmerman, 823 S.W.2d

220, 225 (Tenn. Crim. App. 1991). Moreover, when challenging a death sentence, the

petitioner must show that “‘there is a reasonable probability that, absent the errors, the

sentencer . . . would have concluded that the balance 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). Should the petitioner fail to establish either deficient performance or

prejudice, he is not entitled to relief. Strickland, 466 U.S. at 697; Goad, 938 S.W.2d at 370.

Indeed, “[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of

sufficient prejudice, . . . that course should be followed.” Strickland, 466 U.S. at 697.

In this case, the Petitioner maintains that trial counsel rendered ineffective assistance

at trial. Specifically, he contends trial counsel failed to: (1) request neuropsychological

testing; (2) communicate with and prepare Dr. Caruso for his testimony; (3) utilize the

services of a mitigation specialist; (4) utilize the defense team in an effective manner; (5)

conduct meaningful voir dire and preserve for appeal the denial of various challenges for

cause and the denial of a change of venue; (6) present sufficient social history mitigating

evidence; (7) present a cohesive theory of defense; and (8) object to and request certain jury

instructions.

1. Failure to Request Neuropsychological Testing

The Petitioner contends trial counsel were ineffective in failing to request

neuropsychological testing. The Petitioner argues neuropsychological testing would have

shown that he suffered from brain damage and, thus, would have supported a diminished

capacity theory during both the guilt/innocence phase and the penalty phase.

Although counsel does not have a constitutional duty to offer mitigation evidence at

the penalty phase of a capital trial, counsel does have a duty to investigate and prepare for

both the guilt and penalty phases. See Goad, 938 S.W.2d at 369-70. Counsel does not have

an absolute duty to investigate particular facts or a certain line of defense; however, counsel

does have a duty to make a reasonable investigation or to make a reasonable decision that

makes a particular investigation unnecessary. Strickland, 466 U.S. at 691. In determining

whether counsel breached this duty, this Court reviews counsel’s performance for

reasonableness under prevailing professional norms, which includes a context-dependent

consideration of the challenged conduct as viewed from counsel’s prospective at that time.

Wiggins v. State, 539 U.S. 510, 523 (2003) (citations omitted). Counsel is not required to

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investigate every conceivable line of mitigation evidence regardless of how unlikely the

effort would be to assist the defendant at sentencing. Id. at 533. Likewise, counsel is not

required to interview every conceivable witness. Hendricks v. Calderon, 70 F.3d 1032, 1040

(9th Cir. 1995). This Court will not conclude that counsel’s performance is deficient for

failing to unveil all mitigating evidence, if, after a reasonable investigation, counsel has not

been put on notice of the existence of that evidence. See Babbit v. Calderon, 151 F.3d 1170,

1174 (9th Cir. 1998) (citation omitted).

In addition, the United States Supreme Court has held that:

[N]o particular set of detailed rules can satisfactorily take account of the

variety of circumstances faced by defense counsel. Rather, courts must judge

the reasonableness of counsel’s conduct on the facts of the particular case,

viewed as of the time of counsel’s conduct, and judicial scrutiny of counsel’s

performance must be highly deferential.

Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000) (internal citations and quotations omitted).

We review the following factors in determining whether trial counsel were ineffective

in failing to present mitigating evidence: (1) the nature and extent of the mitigating evidence

that was available but not presented by trial counsel; (2) whether trial counsel presented

substantially similar mitigation evidence to the jury in either the guilt or penalty phase of the

proceedings; and (3) whether the evidence of applicable aggravating factors was so strong

that mitigating evidence would not have affected the jury’s determination. Goad, 938

S.W.2d at 371 (citations omitted).

The post-conviction court in this case found that trial counsel had no basis upon which

to request funding for neuropsychological testing in accordance with Tennessee Supreme

Court Rule 13 and State v. Barnett, 909 S.W.2d 423, 430 (Tenn. 1995). Due process of law

principles require the appointment of expert assistance at trial when the defendant establishes

that such assistance is necessary to conduct a constitutionally adequate defense. See Barnett,

909 S.W.2d at 426-28. The Tennessee Supreme Court has held that “while a State need not

provide an indigent defendant with all the assistance his wealthier counterpart might buy .

. . fundamental fairness requires a State to provide an indigent defendant with the ‘basic tools

of an adequate defense on appeal.’” Id. at 426 (quoting Ake v. Oklahoma, 470 U.S. 68, 77

(1985)).

The obligation, however, of a trial court to afford an indigent defendant with the

benefit of expert assistance does not arise unless the defendant makes a threshold showing

of a “particularized need” for the expert assistance. See Tenn. Sup. Ct. R. 13, § 5(c)(1);

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Barnett, 909 S.W.2d at 430-31. In the context of criminal trials and appeals, particularized

need is established:

when a defendant shows by reference to the particular facts and circumstances

that the requested services relate to a matter that, considering the inculpatory

evidence, is likely to be a significant issue in the defense at trial and that the

requested services are necessary to protect the defendant’s right to a fair trial.

Tenn. Sup. Ct. R. 13, § 5(c)(2). Particularized need cannot be established and the trial court

should deny funding requests when the motion for such funding includes only:

(A) undeveloped or conclusory assertions that such services would be

beneficial;

(B) assertions establishing only the mere hope or suspicion that favorable

evidence may be obtained;

(C) information indicating that the requested services relate to factual issues

or matters within the province or understanding of the jury; or

(D) information indicating that the requested services fall within the capability

and expertise of appointed counsel.

Id. at (c)(4). Unsupported assertions that an expert is necessary to counter proof offered by

the State is not sufficient to establish particularized need. Barnett, 909 S.W.2d at 431. The

petitioner must refer to the facts and circumstances of the particular case and demonstrate

that the appointment of the expert is necessary to insure a fair trial. Id. The issue of whether

a petitioner has made the threshold showing is to be determined on a case-by-case basis. Id.

In the present case, Dr. Caruso was provided with and considered more than ninety

different sets of records and memoranda about the Petitioner, including medical records.

Following his review of these records and his evaluation of the Petitioner, Dr. Caruso

prepared a report opining that, although the Petitioner had bipolar disorder, a diminished

capacity claim could not be supported. The report also provided that testing showed the

Petitioner’s higher cognitive functions were generally intact. Along with the report, Dr.

Caruso enclosed a letter to Counsel stating:

Although [the Petitioner] and his family gave abundant accounts of his

suffering closed head trauma, medical records did not substantiate this. His

descriptions of the events in his statement to police and my interviews with

him do not suggest any structural brain impairment. However, if you wish to

cover all bases, neuropsychological testing and MRI or CT of the brain would

be recommended.

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Other than Dr. Caruso’s limited suggestion, there were no “particular facts and

circumstances” to indicate that the neuropsychological testing was necessary. According to

Dr. Caruso’s letter to Counsel, medical records did not support the need for such testing.

While the Petitioner contends Dr. Caruso was mistaken in his letter regarding the medical

records, trial counsel cannot be faulted for relying upon an expert’s assessment of medical

records, especially when Dr. Caruso’s letter and report both stated that he did not detect brain

damage. All the facts and circumstances when considered together demonstrate that any

funding for neuropsychological testing would have been sought in the mere “hope or

suspicion” that favorable evidence could be obtained. See Barnett, 909 S.W.3d 431

(upholding the trial court’s denial of funding for a psychiatrist when the facts in support of

funding only established the mere “hope or suspicion” that favorable evidence could be

obtained from an evaluation). Such “hope or suspicion” does not rise to the level of

particularized need. Further, even if trial counsel had sought funding for neuropsychological

testing based upon this information, the trial court would likely have denied the motion given

the available information at the time.

The Petitioner maintains that Counsel and Co-Counsel would have discovered facts

supporting the motion if they had investigated further. Dr. Caruso’s report stated he was

provided with and reviewed more than ninety different sets of materials in evaluating the

Petitioner. Both his report and his letter to Counsel state that he did not detect brain damage.

Rather, Dr. Caruso concluded that the Petitioner suffered from bipolar disorder, “a severe

mental disease . . . which substantially impaired his capacity to control his behavior.” Dr.

Caruso only suggested neuropsychological testing “to cover all bases.” Based upon the

information provided to trial counsel by Dr. Caruso, trial counsel were not deficient in

declining to continue to investigate the possibility of brain damage and choosing to focus

upon the chemical imbalance of the Petitioner’s bipolar disorder. The Petitioner is not

entitled to relief with regard to this issue.

2. Failure to Communicate with and Prepare Dr. Caruso for His Testimony

The Petitioner contends trial counsel were ineffective in failing to communicate with

and prepare Dr. Caruso for his testimony. He asserts that, as a result, Dr. Caruso was unable

to testify about the severity of the Petitioner’s mental illness, brain damage, and social

history.

Based upon Dr. Caruso’s review of more than ninety sets of records provided by the

defense team and his interviews with the Petitioner, Dr. Caruso concluded that the Petitioner

suffered from a hypomanic episode at the time of the offense. Dr. Caruso testified at the

post-conviction hearing that he did not fully appreciate the Petitioner’s symptoms and that,

after speaking with Ms. Bowen, and the other doctors reviewing the case, he believed that

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the Petitioner suffered from a manic episode at the time of the offense. Dr. Caruso faulted

trial counsel for failing to request an interview with Ms. Bowen. At the time of the

evaluation, however, Dr. Caruso had been provided a memorandum of an interview with Ms.

Bowen that showed that she was the Petitioner’s former girlfriend, whom he was dating at

the time he was diagnosed with bipolar disorder, and that the Petitioner had contacted Ms.

Bowen before committing the offenses. The memorandum also included Ms. Bowen’s

contact information. Trial counsel did not prevent Dr. Caruso, a board-certified forensic

psychiatrist who is trained to recognize different episodes of bipolar disorder and has

experience evaluating defendants and testifying at trial, from contacting Ms. Bowen to

further question her regarding the Petitioner’s symptoms. While Dr. Caruso testified at the

post-conviction hearing that he failed to fully appreciate the Petitioner’s symptoms, trial

counsels cannot be faulted for Dr. Caruso’s performance. See Byron Lewis Black v. State,

No. 01C01-9709-CR-00422, 1999 WL 195299, at *15 (Tenn. Crim. App., at Nashville, Apr.

8, 1999), (“The attorneys are not guarantors of the validity of an expert’s results.”), perm.

app. denied (Tenn. Sept. 13, 1999).

The Petitioner asserts trial counsel failed to properly prepare Dr. Caruso for his

testimony during the penalty phase and that, as a result, he was not allowed to testify to

additional details of the Petitioner’s social history due to fears expressed by the trial court,

the prosecutor, and trial counsel that he would open the door to evidence of the Oklahoma

and Missouri murders. Addressing this issue, the post-conviction court found that trial

counsel should have met with Dr. Caruso and better prepared him to testify but that the

Petitioner was not prejudiced by trial counsel’s failure to do so.

During the penalty phase, Dr. Caruso testified that the Petitioner suffered from bipolar

disorder and a personality disorder with borderline and antisocial traits. Dr. Caruso stated

that people with such personality disorders have “problems controlling their behavior and

behaving in maladaptive ways.” With regard to the Petitioner’s bipolar disorder, Dr. Caruso

explained:

Well, I think that bipolar disorder is the severe mental disease. In addition,

there was extreme mental or emotional disturbance. In fact, there were a

number of stressors, based on Mr. Thacker’s history of abandonment and

rejection, would again provoke him into a state of extreme emotional

disturbance, in addition to the underlying mental disorder that he has, in

additional to bipolar disorder.

Although the Petitioner claims Dr. Caruso was limited in his testimony regarding the

Petitioner’s social history, Dr. Caruso did testify that the Petitioner, his mother, and his sister

were sent back to the United States from the Air Force base where his father was stationed

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due to his mother’s infidelity, and his parents divorce soon thereafter. Dr. Caruso was

allowed to testify that the Petitioner’s mother worked two jobs and was not around and that

his seven-year-old sister became the primary caretaker in the home when the Petitioner was

five years old. Dr. Caruso was also allowed to testify regarding the lack of involvement of

the Petitioner’s father in his life and the incident when the Petitioner’s stepmother kicked him

and his sister out of her home. Before Dr. Caruso’s testimony, the defense presented the

testimony of Ms. Bowen and Crystal St. Clair, both of whom testified about the Petitioner’s

symptoms of bipolar disorder, and the testimony of Roxanne Evans, the Petitioner’s paternal

aunt who testified about the Petitioner’s childhood.

While we agree with the trial court that trial counsel should have meet with Dr.

Caruso and better prepared him for his testimony, the Petitioner has not shown he was

prejudiced. The jury heard evidence supporting the Petitioner’s position that his mental

illness and social history should mitigate the punishment and that the death penalty should

not be imposed. The jury rejected this proof, finding that the aggravating circumstances

outweighed the mitigating circumstances beyond a reasonable doubt and imposed a sentence

of death. As found by the post-conviction court, evidence of the aggravating circumstances

was strong, and any additional details of the Petitioner’s social history or any additional

explanation or analysis by Dr. Caruso that may have been presented would not have

significantly added to the mitigation proof that was actually presented at trial. The Petitioner

is not entitled to relief on this issue.

3. Failure to Utilize the Services of a Mitigation Specialist

The Petitioner contends trial counsel were ineffective in failing to utilize the services

of a mitigation specialist. The Petitioner notes trial counsel considered Ms. Shettles only to

be a mitigation investigator, and Co-Counsel assumed the role of mitigation specialist. The

Petitioner avers a mitigation specialist would have identified important issues, recommended

experts, and aided in the presentation of mitigating evidence to the jury.

There is no per se requirement that tri

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