# Steven Ray Thacker v. State of Tennessee

> Court of Criminal Appeals of Tennessee · March 23, 2012

URL: https://www.frixlaw.com/law-library/cases/1047115

## Case

- **Court:** Court of Criminal Appeals of Tennessee
- **Decided:** March 23, 2012
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Judge Robert W. Wedemeyer
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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## How later opinions describe it (automated extraction)

- noting that the fact that a particular strategy or tactical decision failed does not alone establish ineffective assistance of counsel

## Opinion text

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

3
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

4
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

5
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

30
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

31
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

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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.”

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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

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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

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/1047115. Public record. Not legal advice.