Dennis Wade Suttles v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

June 29, 2010 Session

DENNIS WADE SUTTLES v. STATE OF TENNESSEE

Criminal Court for Knox County

No. 72245 Mary Beth Leibowitz, Judge

No. E2008-02146-CCA-R3-PD - Filed April 29, 2011

The Petitioner, Dennis Wade Suttles, appeals from the judgment of the Knox County

Criminal Court denying his petition for post-conviction relief. A Knox County Criminal

Court jury convicted the Petitioner of premeditated first degree murder and sentenced him

to death. The Tennessee Supreme Court affirmed the Petitioner’s conviction and sentence

on direct appeal. State v. Suttles, 30 S.W.3d 252 (Tenn.), cert. denied, 531 U.S. 967 (2000).

On appeal, the Petitioner challenges the effectiveness of his counsel’s representation before

trial, during trial, and on direct appeal. The Petitioner also challenges the constitutionality

of the death penalty. This court holds that the trial court did not err in finding that the

Petitioner received the effective assistance of counsel at all stages of the case and that the

Petitioner’s challenges against the death penalty are without merit. The judgment of the trial

court denying post-conviction relief is affirmed.

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

J OSEPH M. T IPTON, P.J., delivered the opinion of the court, in which N ORMA M CG EE O GLE

and D. K ELLY T HOMAS, J R., JJ., joined.

Paul J. Morrow, Jr., Daniel E. Kirsch, and Nicholas Hare, Nashville, Tennessee, for the

appellant, Dennis Wade Suttles.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General;

Angele M. Gregory, Assistant Attorney General; Randall E. Nichols, District Attorney

General; and Leland Price, Assistant District Attorney General, for the appellee, State of

Tennessee.

OPINION

Background

On March 13, 1996, the Petitioner killed his estranged girlfriend, Gail Rhodes, in the

presence of her daughter and her daughter’s friend in the parking lot of a fast food restaurant

in Knoxville, Tennessee. In November 1997, the Petitioner was convicted of premeditated

first degree murder and sentenced to death. The jury found two aggravating circumstances

in support of the death penalty: (1) the Petitioner was previously convicted of prior violent

felonies and (2) the murder was especially heinous, atrocious, and cruel. See T.C.A. § 39-13-

204(i)(2) and (5) (Supp. 1996) (amended 1997, 1998, 1999, 2002, 2008, 2009, 2010). The

facts of the case were summarized by our supreme court in its opinion on direct appeal:

The proof introduced at the guilt phase of the trial

showed that the defendant and the victim met and began dating

in April of 1995. The relationship progressed, and in October

1995 the defendant asked the victim to marry him. The victim’s

divorce was not final at that time, so the engagement was

delayed. In December 1995, the defendant purchased a house,

and the defendant, the victim, and her fifteen-year-old daughter,

Christina, moved into the house together. At Christmas, the

defendant gave the victim an engagement ring.

However, in February 1996, the victim moved out of the

defendant’s house after the two argued. Around the time of this

argument, the victim’s co-workers had noticed deep bruises on

the victim’s neck that looked like fingerprints. In his testimony,

the defendant admitted that during the argument he tried to take

the engagement ring from the victim’s finger and broke the

victim’s necklace.

The defendant was distraught at the breakup of the

relationship. He repeatedly sought to convince the victim to

return to him. He called her repeatedly at work, sometimes

waited for her at work, left cards on the windshield of her car,

and attempted to speak with her whenever he saw her in public.

The victim appeared afraid of the defendant and tried to

avoid him. She did not speak with him on the telephone when

he called, and the victim’s co-workers escorted her to her

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vehicle in the evening. In addition, the victim kept secret the

location of her new residence and carried important personal

papers, such as a deed to her burial plot, in her purse so that the

papers could be easily located should something happen to her.

The victim knew that in 1986, the defendant had pled guilty to

one count of felonious assault with bodily injury and three

counts of assault with intent to commit first degree murder. She

also knew that these convictions arose out of an incident where

the defendant attempted to force his estranged former wife and

his three-year-old son to return home with him. When his

former father-in-law intervened, the defendant shot him. The

defendant also assaulted a police officer who tried to apprehend

him during this episode. The victim knew the circumstances of

the previous convictions because she had accompanied the

defendant on his monthly visit to his parole office on October 3,

1995. The parole officer told the victim the circumstances of

the offenses and advised her to call if “anything unusual

occurred.”

On March 13, 1996, about one month after the break-up,

the defendant, who was a foreman for a roofing company,

worked his regular job. His co-workers testified that he was not

angry or upset that day, did not make threatening remarks about

the victim, and seemed his usual self. As he was driving home

from work, he saw the victim drive by in her car with her

daughter and her daughter’s friend, Arlisa Tipton, but he lost her

car when she drove into a residential neighborhood. The

defendant then drove to his mother’s house, where he was

invited to eat supper. He accepted the invitation but decided

that he would go to his own home first and shower and change

clothes before supper. The defendant left his mother’s home

around 5:30 p.m., and he did not appear angry or upset at the

time he left, nor did he say anything about the victim. The

defendant’s step-father operated a small engine repair shop and

had repaired the motor in a piece of equipment, a leaf blower,

that the defendant used on his roofing jobs. The defendant

loaded the leaf blower in his car when he left his mother’s home

and said that he intended to use it on his roofing job the next

day.

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In the meantime, the victim, who had been aware that the

defendant was following her and had deliberately eluded him,

drove to a nearby Taco Bell restaurant to eat with Christina and

Arlisa. According to Christina, the victim parked her car in the

back of the restaurant so the defendant would not see the car if

he drove past the front of the restaurant on Chapman Highway.

Unfortunately, on the way to his home, the defendant

stopped at Wal-Mart on Chapman Highway which is located in

the same shopping mall area as the Taco Bell where the victim

was eating with Christina and Arlisa. The defendant intended

to purchase some roofing supplies. The defendant was unable

to find the products he needed, so he left Wal-Mart. As he was

driving away from Wal-Mart toward Chapman Highway, he

drove past the back of the Taco Bell and pulled into the

restaurant when he noticed the victim’s car. Parking his

automobile beside the victim’s vehicle, the defendant went

inside the restaurant and attempted to speak with the victim.

The two argued, and the defendant followed the victim and the

girls outside.

The argument continued as the victim and the defendant

stood beside the victim’s automobile. Finally, the defendant

grabbed the victim to prevent her from getting into her car.

Placing one arm around the victim’s neck, the defendant held a

lock blade pocket knife to her throat. When Christina

approached, the defendant said, “Get back or I’ll kill her.”

Christina stepped back, and the victim told the defendant to put

the knife away and she would go with him. The defendant put

the knife in his pocket, apologized, and released the victim.

When the victim fled toward the restaurant, the defendant

followed, tackled the victim, pulled out his knife, slashed her

throat and stabbed her multiple times. Christina, who witnessed

the attack on her mother, testified:

He cut her on her neck. He slit her neck all to

pieces. And he stabbed her in the face and cut her

lip and he cut her hair and he cut her body; he

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stabbed her. And I saw him flip her over and he

stabbed her in the back.

...

I was about three feet back because she kept

telling me to get back and she kept screaming.

When he was finished, the defendant arose, wiped off his

knife, returned it to his pocket, nonchalantly got into his car, and

drove away. Christina testified that the defendant smiled at her

as he drove by.

Amanda Reagan, an employee of Taco Bell, and Shawn

Patrick Kane, a man who had just left the grocery store across

the parking lot from Taco Bell, also witnessed the stabbing.

According to these witnesses, after stabbing the victim, the

defendant nonchalantly got into his car and drove away as if

nothing of any great import had occurred. Both of these

witnesses noticed the defendant’s license plate number and gave

it to police.

While they waited for an ambulance, Reagan, Kane, and

an unidentified nurse, tried to help the victim as she lay helpless

and bleeding in the parking lot. Attempting to stop or slow the

bleeding, they applied pressure using towel and napkin

compresses. The victim complained of choking and, when she

tried to move, witnesses testified that the wound on her neck

gaped open and she started gurgling blood. Although Kane did

not hear her say anything further after she complained of

choking, he said she was still trying to move when she was

being loaded into the ambulance. Reagan testified that as she

was holding the stretcher while the victim was being loaded

onto the ambulance, she heard the victim call out her daughter’s

name and saw the victim stretch out her hand as she was placed

in the ambulance. The victim arrived by ambulance at the

hospital at 6:26 p.m. and was pronounced dead at 6:35 p.m.

Around 7 p.m., the defendant called a friend, Donna

Rochat. He told Rochat that he thought he had killed the victim

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after an argument in the parking lot of the Taco Bell. The

defendant told Rochat that he had stabbed the victim in the back,

cut her throat, and stabbed her in the chest. Rochat advised the

defendant to surrender to police, but he said he could not do

that. Rochat said the defendant seemed calm, but he commented

that he would kill himself if he had a gun. The defendant also

called his mother at some point after the stabbing and asked her

to drive to the Taco Bell and determine if he had killed the

victim.

Later that same evening, the police arrested the defendant

as he approached his house on foot. The defendant had parked

his car at a church parking lot about one mile from his home.

The police described the defendant as cooperative and

unemotional at the time he was apprehended. A knife with a

wooden handle and approximately a three inch blade was found

in the defendant’s pocket at the time of his arrest.

Dr. Sandra K. Elkins, the Knox County Medical

Examiner and a forensic pathologist, testified that the victim had

suffered twelve major wounds inflicted with a sharp instrument

such as a knife. These wounds included three stab wounds to

the left side of her neck, a large gaping slash wound to the right

neck, one stab wound just beneath her left breast, one stab

wound to her left front shoulder, six stab wounds in her back.

The victim also sustained an incise wound to the left side of her

lips, defensive wounds to both hands and her right wrist, and

superficial wounds underneath her chin. Dr. Elkins opined that

the cause of death was multiple knife stab wounds. The

immediate cause of death according to Dr. Elkins was bleeding

from the jugular vein and external carotid artery, which were cut

by the slash wound to the right neck. The other major wounds

would have also potentially caused death given enough time and

no medical treatment. Dr. Elkins also opined that the victim was

alive when the wounds were inflicted, that she remained able to

speak, because the injury to her larynx from the slash wound to

the right side of her neck did not damage her vocal cords, that

she would have fallen unconscious in about five to six minutes,

and that she would have bled to death within ten minutes as a

result of the slash wound to the right side of her neck. However,

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Dr. Elkins opined that application of pressure to the wound on

the right side of the victim’s neck may have extended

consciousness and delayed the time of death by five minutes.

The defendant testified at trial. According to the

defendant, while he and the victim were talking beside her car,

the victim told him that, if he did not stay away, she would have

him killed. He then grabbed her and told her not to threaten

him. While admitting that he put a knife to the victim’s throat,

he denied that he intended to hurt her and claimed that he was

only reacting to the victim’s threat. The defendant testified that,

when he released the victim and apologized, she told him he was

a dead man. The defendant testified he did not remember

anything that happened after the victim threatened him the

second time. He claimed that he did not regain his memory until

weeks after the murder.

During the defendant’s testimony it was revealed that he

had previously pled guilty to one count of felonious assault with

bodily injury and three counts of assault with intent to commit

first degree murder. As previously stated, the victims of these

offenses were his former father-in-law, his ex-wife, his three-

year-old son, and a police officer who was attempting to

apprehend him. The offenses occurred when the defendant tried

to force his former wife, who had left him, to return home. The

victim was aware of the defendant’s prior convictions.

The defendant’s stepfather testified that during the years

that he had known the defendant he had never seen him angry or

upset, and he described the defendant as a calm and easygoing

person. Dr. Jerry Matthews, a clinical psychologist who had

evaluated the defendant on three separate occasions, in 1991 and

1993 for the Tennessee Board of Paroles and in 1996 for the

defense, testified about the defendant’s mental condition.

According to the history related to Dr. Matthews, the defendant

had been a “blue baby” when he was born. His older brother

died of suffocation at the age of five. His father left the family

when the defendant was four, and the defendant was raised by

his paternal grandparents, who were strict, religious people. The

defendant dropped out of school in the tenth grade and went to

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work. His one marriage lasted twelve years and produced one

child.

In 1991, Dr. Matthews concluded that the defendant

presented a substantial risk of violent behavior if released on

parole, particularly if he was involved in a heterosexual

relationship. Dr. Matthews described the defendant as someone

who acts impulsively, without thought or reflection, and who,

frightened of being alone, becomes anxious and potentially

violent when unable to control his environment. According to

Dr. Matthews the defendant’s behavior was attributable to the

oxygen deprivation he suffered as a “blue baby” and to his

abandonment as a child. Between 1991 and 1993, the defendant

attended anger management classes in prison. He was released

on parole in 1994.

Dr. Matthews opined that at the time of the homicide the

defendant was in a state of heightened emotional arousal, that he

put the knife to the victim’s throat to convince her to come back

to him, and that he released her when she reassured him.

Accepting the defendant’s version of the offense, Dr. Matthews

said that the victim’s threat to have the defendant killed was “the

straw that broke the camel’s back.” Dr. Matthews opined that

the killing was not premeditated and was instead “an impulsive

and explosive act of violence” caused by “basic, primitive

emotions of anger and fear and hurt, all mixed together.”

In rebuttal, the State recalled Christina who testified that

her mother did not threaten the defendant, as he had claimed,

before he stabbed her.

Based upon this proof, the jury found the defendant guilty

of premeditated first degree murder. At the sentencing phase,

the State relied upon the proof presented at the guilt phase, and

also offered into evidence the indictments and judgments from

the defendant’s four previous convictions for assault. These

showed that on January 6, 1986, in Sevier County, Tennessee,

the defendant pleaded guilty to one count of felonious assault

with bodily injury and enhancement for use of a firearm

(sentence 30 years plus 5 years for enhancement) and to three

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counts of assault with intent to commit first degree murder by

use of a firearm (three 5-year concurrent sentences).

The defendant presented records from his earlier

imprisonment in the Department of Correction to show that he

had been a model inmate. For example, these records showed

that at the time of his parole he received recommendations from

twenty-nine staff members at the correctional center and that the

warden and associate warden recommended parole. He worked

during his entire imprisonment, was not violent and reached

“trusty” status. During his incarceration, the defendant received

two write-ups: one for having contraband (tools) in his cell and

the other for violating policy and procedures by possessing a fan

from which the name and inmate number had been scrubbed.

The defendant’s mother, Lois Evelyn Napier, testified

that the defendant was born breach and was a “blue baby.”

After the defendant’s father left, the defendant lived with his

paternal grandparents because his mother was working two jobs

and could not care for him. The defendant was not involved in

any trouble as a child. During his imprisonment, Mrs. Napier

visited her son weekly. After his release on parole, he lived

with his mother and her husband and caused no trouble. The

defendant called his mother on the night of the murder and

asked if she would go to the Taco Bell to see if the victim was

alive. Ms. Napier testified that she loved her son very much and

wanted to help him. The defendant was forty-four years old at

the time of the murder.

Suttles, 30 S.W.3d at 252-59.

Post-Conviction Proceeding

The Petitioner timely filed his petition for post-conviction relief, and the trial court

appointed the Office of the Post-Conviction Defender, who filed amended petitions on the

Petitioner’s behalf. Following an evidentiary hearing, the trial court entered its written order

denying relief.

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Evidentiary Hearing

Brandt Davis and Leslie M. Jeffress were appointed to represent the Petitioner at trial.

Glori Shettles was the mitigation specialist. Barry Rice served as an investigator, and Julie

Fenyes was the jury expert. Mr. Jeffress acted as lead counsel and handled the guilt phase

of trial preparations, and Mr. Davis was in charge of mitigation. The two attorneys, however,

discussed all aspects of the case, and each was aware of what the other was doing. Jeffress

testified that there was not much pretrial publicity in the case and that there was no

discussion about requesting a change of venue. Counsel filed numerous pretrial motions.

Mr. Jeffress disagreed with the supreme court’s interpretation of premeditation, based

in part upon the victim’s daughter’s testimony that the Petitioner put the knife in his pocket

and then pulled it out again before attacking the victim. Jeffress recalled the statement given

by Jackie Alvin Davis that the Petitioner did not put the knife back in his pocket after he

initially brandished it. Jeffress acknowledged the statement would have contradicted the

victim’s daughter’s testimony. Jackie Davis was not called as a witness by either side.

The defense team obtained copies of the Petitioner’s school records. Mr. Jeffress

testified that the Petitioner’s family members suggested the Petitioner’s father choked the

Petitioner’s brother to death, but counsel did not obtain the Petitioner’s brother’s death

certificate. He said the Petitioner’s mother had no independent knowledge that her husband

killed their son. He said the Petitioner’s father threatened the Petitioner’s mother with a

knife when she tried to leave the home with the Petitioner. Counsel learned that the

Petitioner’s grandparents, Noah and Dicie Suttles, raised the Petitioner because his mother

was financially unable to do so. During cross-examination, Jeffress testified that he learned

about an incident when the Petitioner also may have been choked by one of his parents but

that he did not believe the incident was relevant or would have affected the jury’s verdict.

The Petitioner never indicated to counsel that he had been sexually abused.

Mr. Jeffress testified that the Petitioner was prescribed Paxil, Tranzene, and Pepcid

some time before the murder. Counsel asked their expert, Dr. Ben Bursten, if those drugs

could have affected the Petitioner’s behavior or conduct at the time of the crime, but he

assured them otherwise. He said that the Petitioner complained of experiencing headaches

while driving around after committing the crime and that the Petitioner did not believe the

victim was dead, even after he was shown autopsy photographs. The Petitioner told Jeffress

he would kill himself if he thought she were dead. Based upon this disbelief, the Petitioner

was evaluated to determine whether he suffered from any organic brain damage. The

Petitioner underwent a sleep-deprived electroencephalogram (EEG), but the results did not

reveal any brain damage. According to Jeffress, Dr. Matthews suggested administering the

EEG and informed counsel that the test would determine the existence of any brain damage.

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Counsel did not request a positron emission test (PET), a magnetic residence imaging (MRI),

or a computerized axial tomography (CAT) scan. The Petitioner was not evaluated by a

neuropsychologist. Counsel relied upon the advice of Dr. Matthews as their expert in this

field.

Mr. Jeffress testified that he was aware the Petitioner scored an IQ of sixty-nine and

seventy-eight on two Beta II tests. Counsel did not investigate, however, whether the

Petitioner was mentally retarded because Jeffress saw no signs suggesting that he was.

Jeffress testified that because there were “abundant indications” the Petitioner was not

mentally retarded, they determined an evaluation was unnecessary. Counsel interviewed the

Petitioner’s employer and co-workers but found nothing to warrant further investigation.

Jeffress testified:

[The Petitioner] was foreman on a roofing job. He

handled time cards, apparently, for the people he was supervisor

of. He handled their money. He went and got lunch for them.

He was planning to go into a business with a Danny Kagely who

testified at the trial. Mr. Kagely and [the Petitioner] had

prepared business cards. There was no reason to believe that he

was, in fact, mentally retarded. Dr. Matthews also said that he

mentioned the fact that there was this 69 score back in 1986

while he was at the penitentiary, I believe. And he said he

believed that that might be an academic score but that his

emotional and . . . But in any event he thought that he was not

mentally retarded with regard to his ability to interact with

people – with other people and with regard to how he would

comport himself.

Mr. Jeffress testified that the defense strategy was to explain to the jury that the

Petitioner did not act with premeditation but instead “exploded” when he committed the

murder. The defense initially hired Dr. Ben Bursten, a psychiatrist and licensed

psychological examiner, to serve as their mental health expert. However, according to

counsel, after Dr. Bursten interviewed the Petitioner at the prison for the first time, he

refused to continue working on the case because he perceived the Petitioner to be a liar and

malingerer. Counsel learned about Dr. Matthews because Dr. Matthews had evaluated the

Petitioner while he was previously incarcerated. Jeffress testified regarding why they chose

to employ Dr. Matthews:

Because he knew Dennis; because he knew how Dennis

might react; because he had found that to be true in 1991;

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because he was able to tell us without any question that Dennis

could not have premeditated this killing. He . . . had evaluated

him twice before. The 1997 evaluation was an effort to do a

check to see if his original conclusions had been correct. He

was . . . able to support our theory of the case, theory of defense.

Jeffress considered Dr. Matthews to be a strong witness for the defense. Dr. Matthews had

testified in three other death penalty cases. In two of those cases, he testified for the

prosecution, and Jeffress thought that fact would impart more credibility in the eyes of the

jury. Counsel asked Dr. Matthews to assess the psychological, emotional, and behavioral

processes of the Petitioner as they related to the first degree murder charge, offer an opinion

about the Petitioner’s ability to maintain effective emotional and behavioral control under

stress, and offer an opinion regarding whether the Petitioner blacked out after the killing as

the Petitioner claimed. Dr. Matthews informed counsel that he would also follow up on his

earlier evaluations. According to Jeffress, Dr. Matthews “told us what he thought was – was

a good idea, and we accepted that.” Jeffress said he researched what types of psychological

tests might be helpful for the defense.

Mr. Jeffress testified that in 1991, Dr. Matthews’s opinion was that the Petitioner was

potentially dangerous and, depending on the circumstances, could “explode.” Dr. Matthews

did not recommend the Petitioner for parole at that time and advised a course of treatment

for anger management. In addition to other positive recommendations, however, the

Petitioner’s former father-in-law, the victim of the prior crime, recommended that the

Petitioner be granted parole. After the Petitioner completed his anger management treatment

in prison, Dr. Matthews did not have the same reservations about the Petitioner’s release on

parole. Dr. Matthews recommended, though, that the Petitioner continue with anger

management treatment after his release.

Mr. Jeffress testified that he first learned the night before the Petitioner testified of the

Petitioner’s claim that the victim threatened his life in the Taco Bell parking lot. Jeffress

immediately informed Dr. Matthews about the matter.

Mr. Jeffress testified that he had employed Glori Shettles, a mitigation specialist, in

the past and that he instructed her in this case to “do her usual job, and her usual job was very

thorough.” Jeffress said he gave her general instructions and relied upon her proven

expertise to gather any relevant information. Ms. Shettles was hired for the purpose of

preparing for mitigation in the event the trial moved to a sentencing phase. Jeffress

anticipated that Shettles would thoroughly investigate the Petitioner’s background, obtain

relevant records, and interview relevant witnesses. As far as Jeffress was concerned, Shettles

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“delivered very well” and did “an excellent job.” Jeffress acknowledged that the Petitioner

was not very forthcoming with information.

Mr. Jeffress testified that he attempted to interview the victim’s daughter before trial

but that she refused to speak to him. He said he interviewed Shawn Patrick Kane and Jackie

Alvin Davis. He said Jackie Davis told him that he looked into the Petitioner’s eyes after the

attack and that the Petitioner seemed “sad as if he had done what he had to do.” He said

Jackie Davis also told him that he did not feel threatened by the Petitioner at that point.

Jeffress said that he interviewed Amanda Reagan before trial but was surprised when Ms.

Reagan testified that she heard the victim call for her daughter when she was being placed

in the ambulance. He said that he did not voice an objection. He said Jackie Davis was not

called as a witness.

Mr. Jeffress testified that he called Gwen Stargil, the Petitioner’s parole officer, to

testify at trial in order to show the jury the victim was not afraid of the Petitioner. According

to Ms. Stargil, the victim never voiced a complaint about the Petitioner’s behavior. When

asked whether he was concerned about opening the door to the circumstances of the

Petitioner’s prior offenses, Jeffress responded:

It didn’t make any difference. We were going to use

Jerry Matthews anyway, and it would come in that way. And

Dennis had already told [the jury] about it anyway so – We just

had to let it all, if you will, hang out. We really did because we

thought that the best thing to do would be to let the jury know

these things because it would indicate that . . . he was a . . . mad

man at times and that this was a – another incidence of the same

thing, same type of conduct that would suggest that he did not

– did not plan or did not premeditate this crime.

Similarly, Jeffress testified that he did not believe using Dr. Matthews as their expert

would hurt their case because the Petitioner’s prior criminal conduct and Dr. Matthews’s

involvement were tied to their defense theory that the Petitioner fell into a violent rage after

being rejected by the victim. Jeffress acknowledged that Dr. Matthews did not find a mental

disease or defect such as intermittent explosive disorder. Jeffress nevertheless argued to the

jury that the Petitioner acted like a “mad man” when he killed the victim. Jeffress said that

he did not intend to suggest the Petitioner was suffering from a mental disease or defect, but

rather that he was in a rage, acting totally out of control.

According to Mr. Jeffress, counsel made a tactical decision not to try to exclude from

evidence the knife found on the Petitioner after his arrest. The Petitioner normally carried

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a pocket knife with him, and counsel believed that fact tended to suggest the Petitioner did

not arrive at the Taco Bell with the intent to kill the victim. The knife at issue was relatively

small, and counsel believed that if the Petitioner intended to kill the victim, he would have

armed himself with a more lethal weapon.

Mr. Jeffress advised the Petitioner not to testify. The Petitioner, however, decided in

the middle of the trial to testify, and even with such short notice, counsel did their best to

prepare him. The State made an offer of life without parole, and Jeffress, as well as Ms.

Shettles and the Petitioner’s mother, advised the Petitioner to accept the offer.

Regarding the allegation that counsel failed to cross-examine Donna Rochat

effectively, Mr. Jeffress testified he “wanted to get that woman off the stand as soon as

possible.” The Petitioner confided in Ms. Rochat about his relationship with the victim, but

Ms. Rochat apparently requested protection from the Petitioner after the murder. Because

her testimony was detrimental to the defense, Jeffress did not want to prolong her presence

on the stand. Similarly, Jeffress did not want to engage in extensive cross-examination with

the victim’s daughter because he was afraid she would portray the Petitioner as being much

worse than he was.

Mr. Jeffress testified about the defense theory during sentencing:

That’s hard to say as to what the theory might have been.

Mr. Suttles was 45 years old, I think, at the time, and we

couldn’t use the usual defense of mitigation of poor Mr. Suttles.

He’s on drugs; he’s on – he’s been – had a bad childhood, that

sort of thing. He was 45 years old and had been around. We

didn’t think the jury would – would listen to that, and certainly

they didn’t in another case that I had.

I thought that Mr. Davis . . . was expecting to put on

some idea that . . . Mr. Suttles would do well in prison, that he

had done well in prison, that he had amassed all of these people

who would favor his release. I believe he did . . . not have any

kind of a major write-up while he was in prison. He did very

well in a controlled environment, and that there was no reason

to kill him.

Because of the Petitioner’s age, Mr. Jeffress did not believe there was any reason to inform

the jury of the circumstances of his childhood because he did not think the jury would be

persuaded. He stated that much of their mitigation had already been presented during the

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guilt phase. He said they introduced the Petitioner’s prison records to demonstrate his model

behavior in prison even though those records contained some information that might not have

been favorable. Counsel wanted to show the jury that if they spared the Petitioner’s life, he

could function well in a controlled environment. Part of the records introduced during

sentencing included the presentence report from the Petitioner’s prior convictions, in which

his ex-wife stated that the Petitioner tried to kill her, that she feared the Petitioner’s violent

temper, and that the Petitioner threatened to kill their son if she left him. Also included in

those records were statements by officers involved in the previous case suggesting that the

Petitioner was a violent man who posed a future danger. Jeffress did not know why that

information was not redacted.

Mr. Jeffress testified that he did not see a reason to object to the State’s introduction

during sentencing of the indictments of the Petitioner’s prior offenses. He did not see a

reason to challenge the trial court’s ruling that Warden Sexton could not rate the Petitioner’s

prison behavior on a scale of one to ten. Nor did Jeffress offer a reason why counsel did not

challenge the trial court’s ruling that Warden Sexton could not testify whether it was easier

to manage older versus younger prisoners. Similarly, Jeffress did not see a reason to

challenge the trial court’s ruling that Warden Sexton was not allowed to describe an average

day of an inmate at his prison. Jeffress did not know why they did not challenge the State’s

objection to the Petitioner’s mother’s testimony about the Petitioner’s remorse. Jeffress said

the trial court overruled his objection during voir dire to the State’s suggestion that the jury

had the “duty” to return the death penalty if they found the aggravators outweighed the

mitigators. Accordingly, he did not voice a similar objection when the State made a similar

suggestion during closing argument.

Brandt W. Davis testified that he handled most of the mitigation work. He was aware

of the Beta II IQ test that reflected the Petitioner’s score of sixty-nine, but he said he “left

that up to the psychologist.” Davis said he spoke with the Petitioner’s mother and stepfather

before trial, but he recalled experiencing difficulty locating other family members willing to

talk to the defense. He relied upon Ms. Shettles’s investigation to produce other available

witnesses. Davis said he and Shettles met about thirteen times before trial.

Mr. Davis testified that he was aware the Petitioner was a “blue baby” at birth, and

he recalled that both their psychological expert and Ms. Shettles did not believe that fact was

very significant. Davis knew the Petitioner’s father had little involvement in the Petitioner’s

childhood. Before the trial, Davis asked Dr. Valerie Gruber, one of Davis’s relatives, to

review Dr. Matthews’s report and explain to Davis the meaning of intermittent explosive

disorder. He said that Dr. Gruber concluded the report did not support a diagnosis of that

disorder but that she otherwise agreed with Dr. Matthews’s conclusions. He said he and

Jeffress did not discuss having the Petitioner submit to a full battery of neuropsychological

15

tests. He recalled that the Petitioner was given an EEG before trial but that the results did

not reveal any brain injury. Davis said the Petitioner denied ever having significant head

trauma. Davis did not think the Petitioner showed signs of mental retardation. Davis

reiterated Mr. Jeffress’s testimony regarding the Petitioner’s ability to maintain a responsible

job. Davis said that counsel looked into possible side effects of the prescription drugs the

Petitioner allegedly took before the murder but that they were informed that none would have

caused the Petitioner to act the way he did.

Mr. Davis testified that counsel strongly encouraged the Petitioner to accept a plea

offer. He said the Petitioner seemed to have a hard time accepting that the victim died as a

result of his attack. He did not believe, though, that the Petitioner sincerely thought the

victim was still alive. Davis agreed to use Dr. Matthews as their expert because Dr.

Matthews was familiar with the Petitioner and believed the Petitioner did not act with

premeditation, which was what counsel was looking for in an expert. Even though Dr.

Matthews recommended the Petitioner for parole, Davis did not have any issue with him

testifying on the Petitioner’s behalf because Dr. Matthews refused to recommend parole on

an earlier date. Davis had previous experience with Dr. Bursten. He said he met with Dr.

Bursten about ten times. He said Dr. Bursten informed counsel he was no longer able to

assist them because he believed the Petitioner was lying and malingering. Davis said Dr.

Bursten terminated their relationship.

Mr. Davis testified that the defense goal during sentencing was to rely on Dr.

Matthews’s guilt phase testimony, portray the Petitioner as a generally nonviolent person, and

show the jury how well he adapted to prison life. Davis recalled the testimony of Warden

Sexton. He did not see any reason, though, to request a bench conference when the trial

judge sustained the State’s objections to certain questions regarding the Petitioner’s behavior

and prison life in general. Because he knew before he questioned the Petitioner’s mother that

she would give an ambiguous answer about whether the Petitioner expressed remorse, he did

not prolong a challenge to the State’s objection to the question.

Mr. Davis testified that he introduced the Petitioner’s prison records to show the jury

how well he behaved in prison. Even though some of the information in the records was not

favorable, he thought the good aspects outweighed the bad. The overall tenor of the prison

records supported the defense position that the Petitioner could spend the rest of his life in

prison and conduct himself appropriately. Davis believed the records presented ninety

percent favorable information compared to only ten percent unfavorable information. The

Petitioner received numerous letters of recommendation in prison as well as support from

several prison guards when he sought parole. Davis testified: “I’ve been doing this a long

time and I’ve never seen a series of prison records as complimentary to what a man was and

is.”

16

Mr. Davis testified that he did not believe anything was wrong with introducing

evidence regarding the Petitioner’s recommendations for parole, even though the Petitioner

committed this crime while on parole. He believed the information was relevant mitigation.

Although some information was in the records about drug use, he said there was no direct

testimony that the Petitioner had a drug problem. Davis did not see a problem with any

additional facts introduced in the presentence report from the previous case because

information surrounding the Petitioner’s prior convictions was already before the jury. He

said he did not investigate a 1982 sexual assault charge because it was later dismissed, nor

did he investigate an allegation that the Petitioner struck one of his teachers. Davis did not

have a problem with the knife coming into evidence because the Petitioner always carried

a pocketknife, which supported their theory that he did not act with premeditation.

Mr. Davis admitted that after the jury returned with a guilty verdict of first degree

murder, the defense in sentencing was going to be an uphill battle because of the prior

convictions and the circumstances of this offense in that the victim was stabbed to death in

front of her daughter. When questioned why he told the jury during closing argument, “Why

he did it, we will never know,” Davis responded:

You know, at that point I think you’re trying to establish

some credibility with that jury. And really, the way Dennis

testified left them not really knowing. And I think other than

Dr. Matthews’ testimony that Dennis wasn’t capable of

premeditation, I don’t think anybody in the courtroom ever

really knew why it happened the way it did.

When asked if the Petitioner’s childhood and upbringing could help explain his actions,

Davis replied: “No, Mr. Suttles was 45 years old. I don’t think there’s anything in his

childhood that a criminal jury would buy for one minute that would excuse this or would

explain it.”

Mr. Davis testified that the Petitioner was a good client. Davis denied as ridiculous

the allegation that trial counsel never established a relationship of trust with the Petitioner.

The only aspect of the case in which Davis felt the Petitioner did not adequately assist

counsel was the Petitioner’s inability to relate to them what happened during and right after

the murder. Davis estimated he met with the Petitioner twenty-two times for a total of about

thirty-eight hours during a little over one year.

Glori Shettles, the mitigation specialist chosen by trial counsel in this case, testified

that she was asked to investigate the Petitioner’s background and prepare a report for use in

the sentencing phase of trial. She had worked with both defense attorneys in the past. She

17

explained her background and role as a mitigation specialist. Shettles said information about

the Petitioner’s childhood represented the basis of who he was as an adult. Shettles was

based in Memphis and did not frequently travel to East Tennessee while working on this

case. Instead, she relied upon telephone calls to gather information.

Ms. Shettles testified that she first interviewed the Petitioner in October 1996. She

learned the Petitioner’s older brother died at age five. She also learned that the Petitioner

lived with his grandparents but that no one in the family discussed why. She said the

Petitioner took more than the prescribed dosage of his medication before committing the

murder. The Petitioner also informed her that he was forgetting things around that time.

Shettles said the defense team attempted to locate a neuropharmacologist. Shettles

investigated possible side effects of the Petitioner’s prescription drugs and passed along her

findings to counsel.

Ms. Shettles testified that the Petitioner did not know whether he actually killed the

victim. Based upon his disbelief about the victim’s death, she believed something was wrong

with the Petitioner’s thought process. She did not, though, think the Petitioner was lying.

During cross-examination, Shettles testified that she later learned trial counsel obtained

information suggesting that the Petitioner remembered more than he told her.

Ms. Shettles testified that the only family members she interviewed were the

Petitioner’s mother and stepfather. The Petitioner’s mother told her that finances were the

primary reason the Petitioner lived with his grandparents. She also told Shettles that the

Petitioner was happy living with his grandparents and that the Petitioner’s stepfather was

kind to the Petitioner. When asked why she did not interview other family members, Shettles

answered:

There . . . was . . . a concern early on that Mr. Suttles’

case should be – he should plead guilty. He was going to be

given the opportunity to plead guilty, and that that was in his

best interest. And even though normally the mitigation

investigation, as I told you, goes outwardly, in this particular

case it continued to go in. It – it – other than the records, which

might be used to help the experts, there was – there was no one

else that I spoke – very few people that I spoke to. And,

certainly, I believe that the attorneys cared about Mr. Suttles and

did not want him to get the death penalty. And they felt that he

would likely be convicted, and they wanted to use all the

resources to try to convince him to plead guilty to save his life.

And so the mitigation investigation never went outward. It – it

18

never did from the very beginning. And that was the direction

and that was the strategy, and that’s where it stayed.

Ms. Shettles testified that her contact with Mr. Davis was very limited. According to

Shettles, she only met with Davis two or three times, and during those meetings, they

discussed how to convince the Petitioner to plead guilty rather than the mitigation evidence.

She said she was asked by counsel to try to persuade the Petitioner to plead guilty. She did

not think trial counsel presented much mitigating evidence during sentencing. She said that

the Petitioner’s prison records were favorable, though, and that she understood counsel was

going to demonstrate the Petitioner’s good behavior in prison. She acknowledged counsel

made the ultimate decision about trial strategy and what evidence to introduce.

Ms. Shettles testified that she obtained the Petitioner’s prison records, which reflected

two Beta II IQ test scores of sixty-nine and seventy-eight. Although requested to do so, she

could not find any documentation that the Petitioner scored below seventy on an IQ test

before his eighteenth birthday. She said she understood the difference between medical

neurological testing and neuropsychological testing. She remembered that she discussed

neuropsychological testing with trial counsel but that the testing was not performed. She

remembered trial counsel decided to use Dr. Matthews because of his knowledge of the

Petitioner and his opinion that the Petitioner did not premeditate the murder. She said that,

according to counsel, those benefits outweighed any harm associated with Dr. Matthews’s

eventual recommendation for parole. Shettles was asked by trial counsel to locate a

hypnotist, but she learned that hypnosis would not help someone recall missing memories.

As a result, a hypnotist was not employed.

Ms. Shettles testified that Mr. Jeffress seemed frustrated with the case. Shettles

thought Jeffress was concerned the Petitioner was not being truthful with them. During

cross-examination, Shettles acknowledged she informed the Petitioner that if he testified, the

circumstances of his prior offenses would be known to the jury. She also told him that if he

were found guilty of second degree murder, he would still spend the rest of his life in prison

because of his record.

Dr. Pamela Auble, a clinical neuropsychologist, testified as an expert for the Petitioner

during the post-conviction hearing. Dr. Auble performed a neuropsychological evaluation

on the Petitioner, which entailed interviewing the Petitioner, performing standardized tests,

and reviewing the Petitioner’s medical records. Dr. Auble determined that the Petitioner was

not malingering. The Petitioner’s impairment index score on the Halstead-Reitan

Neuropsychological Test Battery was a 0.9, which was in the fifth percentile. The index,

which ranged from zero (good) to 1.0 (bad), was comprised of several tests. The Category

Test measured the Petitioner’s mental flexibility and ability to go back and forth between

19

different ideas. The Petitioner performed poorly on that test. The Tactual Performance Test

involved putting blocks into a board while blindfolded. The Petitioner’s performance on that

test was also considered slow. The Speech-sounds Perception Test required the Petitioner

to identify nonsensical syllables while listening to an audiotape. The Petitioner’s

performance on that test was also poor.

Dr. Auble testified that she also administered a Wechsler Memory Scale III test, which

evaluated the Petitioner’s learning and memory. She said the Petitioner performed well

remembering information that had meaning to him as well as common-sense information.

Conversely, the Petitioner had difficulty remembering things that did not make sense to him

or that did not have any meaning to him. She also administered a Wechsler Adult

Intelligence Scale III test, which she said was the “gold standard” of IQ tests. The

Petitioner’s full scale IQ was seventy-seven. He scored seventy-seven on the verbal portion

of the test and eighty-one on the performance or non-verbal portion. She said the Petitioner’s

full scale score was in the sixth percentile for a person his age. Dr. Auble also administered

two academic performance tests on which the Petitioner scored very low. The Petitioner read

at a third-grade level, spelled at a second-grade level, and performed math skills at a fifth-

grade level.

Dr. Auble testified that she also administered the Delis-Kaplan Executive Functioning

System test, which measured the Petitioner’s conceptual thinking and mental flexibility. The

Petitioner consistently performed poorly on verbal tasks that required conceptual or abstract

thinking. According to Dr. Auble, the Petitioner is a concrete or literal thinker, which meant

he processed information very simply, reacted to what was before him at the moment, and

did not put things together well. She said that emotional stress caused deterioration in almost

any kind of functioning and that any kind of brain damage, such as that related to loss of

oxygen or head trauma, would also result in dysfunction. She said that because the Petitioner

was a “blue baby,” he likely had a loss of oxygen that, depending on the duration, could have

caused brain damage.

Dr. Auble testified that the Petitioner’s high score on the Luria-Nebraska

Neuropsychological Screening Test, administered by Dr. Bursten, should have led to the

administration of the full Luria-Nebraska test battery to ascertain the presence of brain

damage, but the battery was not done in this case. Dr. Auble said, however, that Dr.

Bursten’s knowledge of the Petitioner’s sixty-nine IQ test score may have suggested to him

that the Petitioner’s score on the Luria-Nebraska screening test was not abnormal.

Nevertheless, even with knowledge of the Petitioner’s higher seventy-eight IQ score, Dr.

Auble said she would have administered the full Luria-Nebraska battery. According to Dr.

Auble’s review of Dr. Matthews’s evaluations, Dr. Matthews performed a personality test

but did not perform any neuropsychological tests.

20

Dr. Auble testified that the Petitioner performed reasonably well on some tests

requiring quick responses that did not require thought. The Petitioner’s manual dexterity and

coordination were normal. Dr. Auble said the Petitioner cooperated with her during all the

testing.

Dr. Auble testified that the Petitioner’s test score deficiencies implied that the

Petitioner would have difficulty in a relationship with a loved one

because relationships tend to be complex. You have to be able

to link together information to figure out what’s going on with

the other person. You have to know what impact your – your

behavior has on someone. You have to figure out how to make

things better in relationships or worse, depending on your

motivation. And all that is very complex; it’s not laid out; it’s

not clear. And I think Mr. Suttles has a lot of difficulty in those

areas.

...

[I] think he reacts in ways that result in the other person being

hurt and then he really doesn’t understand what he did that made

it work out that way and how to fix it.

...

It’s most true with women because he craves close relationships

with women, and he looks for those relationships or he did in the

past at any rate.

Dr. Auble suggested that the Petitioner, in an effort to repair his relationships, would tend

to overwhelm a woman in his pursuits and ultimately act impulsively toward her.

Although Dr. Auble testified that an EEG would not necessarily reveal the type of

neuropsychological deficits the Petitioner had, she acknowledged that the test would reveal

brain injury. Dr. Auble testified on cross-examination that the Petitioner was not mentally

retarded as defined by Tennessee’s death penalty statute. Although she believed her

evaluation of the Petitioner suggested the existence of brain damage, she was not able to

identify any brain damage.

21

Dr. Peter Irvin Brown, a licensed psychiatrist, testified as an expert for the Petitioner

at the post-conviction hearing. Dr. Brown interviewed the Petitioner on two separate

occasions for approximately five hours. He said the Petitioner could have suffered long-term

and permanent brain damage as a result of his breech birth. He recalled the Petitioner’s

chaotic childhood and upbringing. The Petitioner could not explain to Dr. Brown why his

parents were not present during much of his youth except to say that “they just didn’t seem

to want me.” He said the Petitioner became depressed and anxious as a result of being

abandoned by his parents.

Dr. Brown testified that there was a strong presumption that based on the stories of

abuse of the other children in the extended family, the Petitioner was sexually abused as well,

but he admitted no definitive evidence existed. According to Dr. Brown, the Petitioner’s

grandmother spoiled him either to compensate for the sexual abuse he endured or as a bribe

to keep him quiet about the abuse. He said, though, the Petitioner did not say he had been

abused. He said the chaotic environment in which the Petitioner was raised caused him to

experience difficulty later in life managing his anxiety in relationships.

Dr. Brown testified that the Petitioner’s failure in school could be attributed to his

intellectual or cognitive abilities or the developmental problems associated with his chaotic

upbringing and that the failure resulted in the Petitioner developing low self-esteem. After

the Petitioner quit school and began working, he functioned well in structured situations

where he had clear supervision. Dr. Brown said the Petitioner’s marriage at the age of

seventeen began well. As difficulties in the marriage developed, however, the Petitioner was

without coping skills and was unable to deal with the problems. Dr. Brown stated that the

incident with the Petitioner’s ex-wife that led to the Petitioner’s prior incarceration was

indicative of “a recurrent pattern in his early development of exposure to separations that end

badly and are associated with threats of violence or experiences of violence.”

Dr. Brown testified that the Petitioner’s IQ was borderline mental retardation. He

acknowledged, though, that the Petitioner did not meet the legal definition for mental

retardation. He said the Petitioner’s IQ, combined with various other brain deficits,

significantly impaired the Petitioner’s ability to handle situations in his relationships. He

acknowledged the Petitioner’s model behavior in prison and said he reviewed the two

evaluations Dr. Matthews conducted in 1991 and 1993 while the Petitioner was in prison.

The Petitioner informed Dr. Brown that the anger management classes he was required to

attend at Dr. Matthews’s recommendation were a “joke.” Dr. Brown understood the

Petitioner’s description to mean the Petitioner did not understand the purpose of the classes.

The treatment the Petitioner received after his release from prison “completely abandoned

the awareness that Mr. Suttles has many more difficulties than he’s able to articulate and

22

often has more difficulties than he’s aware of. So the therapist relied extensively on [the

Petitioner’s] report that he was doing fine.”

Dr. Brown testified that the Petitioner met the victim shortly after the Petitioner’s

previous girlfriend died of cancer and that the Petitioner dealt with the loss of one

relationship by “plunging into another almost instantly.” He said the Petitioner’s relationship

with the victim progressed too quickly, as is often the case with individuals who are

immature. The Petitioner told Dr. Brown that despite his good performance, he did not like

the responsibility he had as a supervisor with his roofing job. He said the Petitioner

functioned better in a calm environment versus a stressful one.

Dr. Brown testified that the Petitioner reacted extremely adversely to the effects of

Paxil, which is part of the Prozac family of drugs. He said that the Petitioner experienced

an uncontrollable intense motor restlessness after ingesting Paxil and that the Petitioner

would have been extremely anxious and would have felt like “jumping out of his skin.” He

said reports in the medical community also suggested that persons taking Paxil could become

agitated and violent. He said literature regarding the side effects of Paxil existed at the time

of the trial in this case. He said that the side effects of Tranzene, which is part of the Valium

family of drugs, were more sedative in nature and that the potential risk with Tranzene was

that the person might lose his inhibitions.

Dr. Brown testified that the Petitioner’s chasing the victim after she fled from him in

the parking lot demonstrated the Petitioner’s “ability to inhibit his behavior, his ability to

control or regulate his behavior, was – was at that moment nonexistent.” He said the effects

of prescription drugs would have contributed to the Petitioner’s inability to stop his attack

once he started. He stated that the Petitioner was in a state of intense emotional distress at

the time of the attack but that afterwards, the Petitioner would have been emotionally

exhausted. He said there was no indication the Petitioner was taking Paxil or Tranzene when

he committed his prior crimes.

Dr. Brown testified that he reviewed the medical and other records of some of the

Petitioner’s family members and concluded that they had a significantly higher risk of

anxiety, depression, and drug and alcohol abuse than the general population. Dr. Brown also

observed a history of mental retardation and other psychiatric problems in the Petitioner’s

extended family. Dr. Brown said families contribute both their genes and their behavior to

their offspring.

Dr. Brown testified that he diagnosed a cognitive disorder, a major depressive

disorder, and a medication-induced disorder, as well as possible post-traumatic stress

disorder and a delusional disorder. Because he determined that the cognitive and medication-

23

induced disorders were present at the time of the offense, he concluded the Petitioner was

unable to premeditate his actions. Further, Dr. Brown said the Petitioner reacted to his

overwhelming anxiety rather than acting with any sort of premeditation. He acknowledged

that he was using the term “premeditation” as a medical doctor, not a lawyer. He also stated

the Petitioner’s behavior after the murder was extremely disorganized.

Dr. Brown testified that trial counsel should not have relied upon the services of Dr.

Matthews because he had a conflict of interest based upon his previous contact with the

Petitioner. The different purposes for Dr. Matthews’s evaluations represented the conflict,

according to Dr. Brown. He also said Dr. Matthews’s evaluation was inadequate due to the

lack of standardized testing.

On cross-examination, Dr. Brown testified that the Petitioner did not meet the criteria

for an intermittent explosive disorder diagnosis, nor did he meet the criteria for anti-social

personality disorder. He said he did not believe the Petitioner was untruthful during their

interviews, but he could not explain why the Petitioner believed the victim was still alive:

“I see it as a clinical piece that’s unresolved.” He suggested the Petitioner had unresolved

bereavement issues. Dr. Brown acknowledged no MRI, CAT, or PET scans existed that

revealed any brain damage. He said the Petitioner did not remember witnessing any acts of

violence between his parents. The Petitioner described his grandmother as strict but loving.

Dr. Ben Bursten, a licensed psychiatrist and psychologist, was initially retained by

trial counsel to evaluate the Petitioner’s mental state at the time of the crime. Dr. Bursten

testified that trial counsel provided him with some of the Petitioner’s medical and other

records before the evaluation. Dr. Bursten performed the Rey Test to determine whether the

Petitioner was malingering. The Petitioner passed that test, meaning he did not show signs

of malingering. Dr. Bursten also performed the Luria-Nebraska Screening Test to determine

whether the Petitioner had any neuropsychological problems. The results of that screening

test did not lead Dr. Bursten to perform any further clinical testing with regard to the

Petitioner’s brain, even though he had a report that the Petitioner scored a sixty-nine on an

IQ test.

Dr. Bursten testified that during their interview, the Petitioner could not recall

everything that happened on the day of the murder. Dr. Bursten did not remember telling

trial counsel he thought the Petitioner was malingering. During cross-examination, however,

Dr. Bursten testified that he did not remember the Petitioner and that he had no independent

memory of testing him. He stated his testimony on direct examination during the hearing was

based upon information contained in his records. Dr. Bursten did not remember why his

services were terminated in the case.

24

Donnie Dykes testified that she and the Petitioner attended school together and were

in the same eighth-grade English class. Ms. Dykes did not recall an incident involving an

attack on their teacher by one of the students. Swanita Mynatt taught at the high school the

Petitioner attended, but she testified that she could not recall an incident involving an attack

by a student on a teacher while the Petitioner attended school. William Robert Rogers, the

principal at the Petitioner’s high school, also testified that he did not remember any such

incident. Mr. Rogers confirmed that the Petitioner was suspended from school at one point

for using bad language.

Edith Ruth Latham, the Petitioner’s first cousin, testified that the Suttles family was

very poor and that the family name was not respected. She said her half-brother shot and

killed his father because his father physically abused his mother. Ms. Latham’s father bore

two children with her half-sister even though he remained married to Ms. Latham’s mother.

Ms. Latham’s father “loved [the Petitioner] like a son.” Ms. Latham described an incident

before she was born when someone left the infant Petitioner alone in her father’s car. Her

father took the Petitioner to their grandparents, who raised the Petitioner. Ms. Latham

remembered hearing that the Petitioner’s brother suffocated after falling out of bed, but she

did not remember the cause of death being intentional. She said the Petitioner’s mother was

quite promiscuous.

Ms. Latham testified that the Petitioner’s father “just wasn’t all upstairs” and would

often brag about his handgun. She said her half-brothers told her their grandfather, Noah

Suttles, forced them to perform oral sex on him. She said the young girls in the family were

not allowed to visit Noah Suttles unless their grandmother was present. She said Noah

Suttles exposed himself to one of her half-sisters. She said that her grandparents spoiled the

Petitioner and that he “had a pretty free life.” The Petitioner treated Ms. Latham’s children

well. She said that she met the victim once several months before the crime and that the

victim and the Petitioner seemed happy together. Ms. Latham never heard of her

grandparents abusing the Petitioner.

Billy Ace Latham, the Petitioner’s maternal uncle, testified that his family was poor

and that he was raised by his grandparents. He said that his father was married to a woman

other than his mother and that his father never acknowledged him as a son. He recalled an

incident when the Petitioner’s father shot at the Petitioner’s mother. According to Latham,

after the Petitioner was born, the Petitioner’s father spent time in prison for bigamy.

Arbutus Norton testified that she became romantically involved with the Petitioner in

1994 while he was incarcerated. Upon the Petitioner’s release, the two continued dating until

the end of 1994, when the Petitioner ended the relationship in order to date other people. Ms.

Norton never saw the Petitioner act badly while they dated. Ms. Norton was aware the victim

25

left the Petitioner. She said she had plans to visit the Petitioner the night of the crime. She

said that the visit never occurred but that the Petitioner telephoned her after the murder and

said, “I’ve done something stupid. If you want to know anything else call Mom.”

Edythe Katie Helton testified that she taught the Petitioner in the third grade. She said

the Suttles family “was more or less a clan unto themselves. A little bit poor economic

situation.” Although the teachers at the elementary school regularly visited the students’

homes, her principal told Ms. Helton not to visit the Suttles home because she would not be

welcome. She said the Petitioner enjoyed reading, was respectful, and followed directions

well. She stated that the Petitioner appeared cleaner and nicer than the other Suttles children

and that she had hoped he would be able to “break the economic substandard living and go

on and become a useful citizen.” She said the Suttles children were picked on by the other

children at school because of their poor status in the community.

Wanda Ruth Corkey testified that her mother married the Petitioner’s uncle, Charles

W. Suttles, Sr., and that her stepfather’s ex-wife and their children continued to live on the

Suttles property. She said her stepfather “thought the world” of the Petitioner and treated

him like his own son. She said that she was eleven years old when her mother married her

stepfather and that her stepfather began sexually abusing her when she was twelve. She said

she had two children by him. She said that she continued to live with her mother and

stepfather because her stepfather threatened her and that she had nowhere else to go. She

also recalled the incident when the Petitioner was left in her stepfather’s car as a baby. As

a result, the Petitioner’s grandparents obtained custody of the Petitioner. She said the

Petitioner was treated very well by his grandparents and even spoiled by them.

Ms. Corkey testified that the young girls in the family were not welcome in Noah and

Dicie Suttles’s home because Noah would expose himself to them. Ms. Corkey also heard

that Noah molested some of the young boys in the family. She did not think, though, the

Petitioner was ever sexually abused by any of his relatives. She described Playboy-like

magazines containing the Petitioner’s name and a female doll, which she remembered seeing

in an abandoned building on the Suttles property. She said that the Petitioner’s grandmother

died in an automobile accident in 1980 and that the Petitioner was visibly upset at the loss

and pushed his father away when his father tried to console him. At her stepfather’s funeral

in 1995, the Petitioner told Ms. Corkey that he was happy in his relationship with the victim.

Kathleen Suttles, another of the Petitioner’s first cousins, testified that the Petitioner’s

parents were not around much when the Petitioner was growing up. She said her grandfather

would expose himself and masturbate in front of the young girls in the family. Because of

this, Ms. Suttles was forbidden to play in her grandparents’ yard. She said the Petitioner was

never sexually abused by any of his relatives.

26

The State called Barry Rice as a witness. Mr. Rice was the defense investigator in this

case. He investigated the facts of the case but was not involved in gathering mitigation

information. As part of his investigation, he interviewed the Petitioner’s former employer

and co-workers. The Petitioner worked for Tinsley Roofing after his release from prison.

Rice said the Petitioner started as part of the crew but eventually advanced to a foreman

position, for which he was in charge of both personnel and material. He said he learned that

the Petitioner’s crew was one of the best and that the Petitioner and one of his co-workers,

Danny Cagley, intended to start their own roofing business. Rice did not observe any

evidence suggesting the Petitioner was mentally retarded or intellectually impaired.

Mr. Rice testified that the Petitioner said he drove home after he killed the victim but

said he could not remember much else. Rice interviewed Danny Cagley, though, who said

the Petitioner called him twice the night of the murder. In the first phone call between 6:00

and 7:00 p.m., the Petitioner told Cagley that he had cut the victim. In the second call, at

9:00 p.m. from a pay phone, the Petitioner said he thought he had killed her. Rice learned

that the first phone call to Cagley was made from the home of the Petitioner’s cousin, J. D.

Lewelling. The Petitioner also called his mother from the Lewellings’ house.

Mr. Rice testified that he interviewed J. D. Lewelling. Mr. Lewelling told him that

the Petitioner thought he killed the victim. He said Lewelling told him the Petitioner asked

to be taken to an ATM to withdraw money. According to what Rice learned during the

interview, the Petitioner changed clothes at some point and asked Lewelling for a gun and

some provisions in order to hide out in the “holler” for a few days. Lewelling, however, did

not give the Petitioner a gun but told the Petitioner to leave his house. Rice said Lewelling

described the Petitioner as being emotionally upset. Rice was also informed that the

Petitioner washed blood off his hands and his pocket knife and commented that he would not

go back to prison.

In rebuttal, the Petitioner recalled Dr. Brown. Dr. Brown, having listened to Barry

Rice’s testimony, concluded that the Petitioner’s conduct after the murder was disorganized

and that he seemed to be reacting to what happened rather than planning a cover-up.

According to Dr. Brown, through the several phone calls he made to friends and family, the

Petitioner experienced a “growing realization” of what he had done.

Burden of Proof and Standard of Review on Appeal

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

Procedure Act. See T.C.A. §§ 40-30-101 to -122 (2010). To obtain post-conviction relief,

the Petitioner must show that his conviction or sentence is void or voidable because of the

abridgment of a constitutional right. See T.C.A. § 40-30-103. The Petitioner must establish

27

the factual allegations contained in his petition by clear and convincing evidence. See T.C.A.

§ 40-30-110(2)(f). Evidence is clear and convincing when there is no serious or substantial

doubt about the accuracy of the conclusions drawn from the evidence. Hicks v. State, 983

S.W.2d 240, 245 (Tenn. Crim. App. 1998).

Once the trial court rules on the petition, its findings of fact are conclusive on appeal

unless the evidence preponderates against them. Nichols v. State, 90 S.W.3d 576, 586 (Tenn.

2002) (citing State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999)). The Petitioner has the burden

of establishing that the evidence preponderates against the trial court’s findings. Henley v.

State, 960 S.W.2d 572, 579 (Tenn. 1997). This court may not reweigh or reevaluate the

evidence or substitute its inferences for those drawn by the trial court. Nichols, 90 S.W.3d

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

their testimony are questions to be resolved by the trial court. Id.

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

fact. Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001); Burns, 6 S.W.3d at 461. As such,

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

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

correct unless the evidence preponderates against the findings. Fields, 40 S.W.3d at 458

(citing T. R. A. P. 13(d)). However, a trial court’s conclusions of law are reviewed under a

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

Issues on Appeal

I. Ineffective Assistance of Counsel

The Petitioner contends that he received the ineffective assistance of counsel during

both the guilt and penalty stages of his trial. This court will review in order each instance

of misconduct alleged in the Petitioner’s brief.

In pertinent part, the Sixth Amendment provides, “In all criminal prosecutions, the

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

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

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

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

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

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

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

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

28

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

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

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

ineffectiveness:

First, the defendant must show that counsel’s performance was

deficient. This requires showing that counsel made errors so

serious that counsel was not functioning as the “counsel”

guaranteed the defendant by the Sixth Amendment. Second, the

defendant must show that the deficient performance prejudiced

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

serious as to deprive the defendant of a fair trial, a trial whose

result is reliable.

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

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

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

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

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

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

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

Upon reviewing claims of ineffective assistance of counsel, the court “must indulge

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

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

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

466 U.S. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)). Additionally, courts

should defer to trial strategy or tactical choices if they are informed ones based upon

adequate preparation. Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982). Finally, we note that

criminal defendants are “not entitled to perfect representation, only constitutionally adequate

representation.” Denton v. State, 945 S.W.2d 793, 796 (Tenn. Crim. App. 1996). In other

words, “in considering claims of ineffective assistance of counsel, ‘[w]e address not what

is prudent or appropriate, but only what is constitutionally compelled.’” Burger v. Kemp,

483 U.S. 776, 794 (1987) (quoting United States v. Cronic, 466 U.S. 648, 655 n.38 (1984)).

Notwithstanding, we recognize that “[o]ur duty to search for constitutional error with

painstaking care is never more exacting than it is in a capital case.” Id. at 785.

If the petitioner shows that counsel’s representation fell below a reasonable standard,

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

29

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

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

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

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

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

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

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

it deprived the [petitioner] of a fair trial and called into question the reliability of the

outcome.” Nichols, 90 S.W.3d at 587. That is, “the evidence stemming from the failure to

prepare a sound defense or [to] present witnesses must be significant, but it does not

necessarily follow that the trial would have otherwise resulted in an acquittal.” State v.

Zimmerman, 823 S.W.2d 220, 225 (Tenn. Crim. App. 1991). “A reasonable probability of

being found guilty of a lesser charge, or a shorter sentence, satisfies the second prong in

Strickland.” Id. Moreover, when challenging a death sentence, the petitioner must show that

“‘there is a reasonable probability that, absent the errors, the sentencer . . . would have

concluded that the balance of the aggravating and mitigating circumstances did not warrant

death.’” Henley, 960 S.W.2d at 579-80 (quoting Strickland, 466 U.S. at 695).

Investigation/Trial Preparation

A.

The Petitioner contends that trial counsel failed to select appropriate experts, failed

to supervise properly the experts they retained, and failed to provide the experts with the

information necessary to evaluate the Petitioner. Initially, the Petitioner complains that Dr.

Matthews had a conflict of interest due to the nature of his previous involvement with the

Petitioner. The Petitioner argues that the purpose of Dr. Matthews’s evaluations while the

Petitioner was in prison was dramatically different than the purpose of his evaluation

following the murder in this case. Relying in part upon Dr. Brown’s assessment, the

Petitioner asserts that counsel should have realized Dr. Matthews might have been biased.

The Petitioner suggests the jury viewed Dr. Matthews “either as a failed prognosticator who

played a large part in allowing a ‘risky’ prisoner on parole or as an accurate predictor of

future violence.”

The Petitioner disagrees with the trial court’s conclusion that counsel was not

deficient in their strategic decision to employ the services of Dr. Matthews. Apart from

describing the nature of Dr. Matthews’s previous evaluations of the Petitioner, however, the

Petitioner merely states that the evidence does not support the post-conviction court’s

conclusion. As noted above, the Petitioner cites to Dr. Brown’s testimony. The evidence

30

introduced at the evidentiary hearing, though, consisted of more than just the testimony of

the Petitioner’s post-conviction experts.

Trial counsel considered Dr. Matthews to be a strong witness for the defense. Counsel

were aware Dr. Matthews’s testimony would be a “two-edged sword.” Dr. Matthews

previously testified in several death penalty cases, and counsel believed the fact that he was

a prosecution witness in two of those cases gained the defense favor with the jury. Although

Dr. Matthews ultimately reversed his reservations toward the Petitioner’s release on parole,

defense counsel believed Dr. Matthews’s knowledge of the Petitioner’s mental and emotional

makeup outweighed any negative impact associated with the Petitioner’s release on parole.

As Mr. Jeffress testified, Dr. Matthews knew the Petitioner and knew how the Petitioner

could react in stressful situations. Dr. Matthews was also able to state unequivocally that the

Petitioner could not have premeditated the killing of the victim in this case.

This court agrees with the post-conviction court’s conclusion that trial counsel made

a reasonably informed strategic decision to employ the services of Dr. Matthews. Dr.

Matthews never voiced concern to the trial attorneys about any conflict of interest regarding

his involvement in the Petitioner’s first degree murder trial. Trial counsel weighed the

negative impact that Dr. Matthews’s prior prison evaluations may have had on the jury.

Because Dr. Matthews was intimately more familiar with the Petitioner, though, and because

his opinion about the Petitioner’s mental state at the time of the murder was extremely

favorable to the defense theory of the case, trial counsel decided the positive aspects of Dr.

Matthews’s testimony outweighed any negative implications regarding the Petitioner’s

previous incarceration. Dr. Brown testified that the purpose of Dr. Matthews’s previous

prison evaluations of the Petitioner conflicted with his pretrial evaluations in this case. Trial

counsel, however, did not consider this to be a conflict. Dr. Matthews was able to present

to the jury the information trial counsel wanted. The circumstances surrounding Dr.

Matthews’s previous evaluations of the Petitioner were known to the jury because the

Petitioner had already testified. The Petitioner has not shown by clear and convincing

evidence that Dr. Matthews’s services as a defense expert represented a conflict of interest

due to his previous relationship with the Petitioner.

The Petitioner also complains that trial counsel’s performance was deficient because

they failed to inform Dr. Matthews about either the results of the Luria-Nebraska

Neurological Screening Test performed by Dr. Bursten or Dr. Gruber’s suggestion that the

Petitioner receive a neuropsychological evaluation. Similarly, the Petitioner argues that Dr.

Matthews did not administer a sufficient number of neurological tests during his evaluation

of the Petitioner.

31

Trial counsel testified about their relationship with the Petitioner, and both attorneys

attested to the Petitioner’s general ability to communicate and function effectively.

Moreover, counsel denied witnessing any significant signs suggesting they should be

concerned about the Petitioner’s mental state. Counsel did investigate the Petitioner’s

apparent memory loss regarding the death of the victim, but the EEG results were negative,

and their experts did not suggest any further testing.

Dr. Matthews was familiar with the Petitioner from his previous evaluations. Neither

attorney testified that Dr. Matthews requested additional information or was not satisfied

with counsel’s preparation. Dr. Matthews did not testify at the post-conviction hearing

regarding his testing procedure or diagnosis. The Petitioner’s EEG results did not reveal any

organic brain damage, and the Petitioner’s post-conviction experts could not pinpoint any

evidence of actual brain damage. Dr. Matthews evidently did not believe further

neuropsychological testing was necessary. As the trial court stated, counsel cannot be

faulted for Dr. Matthews’s performance in this case. See Byron Lewis Black v. State, No.

01C01-9709-CR-00422, Davidson County, slip op. at 26 (Tenn. Crim. App. Apr. 8, 1999),

app. denied (Tenn. Sep. 13, 1999) (“The attorneys are not guarantors of the validity of an

expert’s results.”). We conclude that the Petitioner has failed to carry his burden of proof on

this ground for relief.

The Petitioner also complains about trial counsel’s handling of Dr. Bursten. Although

Dr. Bursten was originally retained to evaluate the Petitioner before the trial, both attorneys

testified that Dr. Bursten unilaterally terminated his services, telling them he believed the

Petitioner was lying and malingering. During his post-conviction testimony, Dr. Bursten

admitted he did not remember the Petitioner and had no independent memory of evaluating

him.

The trial court was unpersuaded by Dr. Bursten’s testimony as it related to the

Petitioner’s claim of ineffective assistance of counsel. As the trial court noted, Dr. Bursten

testified he was unable to dispute trial counsel’s explanation as to why his services

terminated. On appeal, the Petitioner asks this court to reevaluate the testimony of Dr.

Bursten and trial counsel. This court, however, may not reweigh or reevaluate the evidence

or substitute its inferences for those drawn by the trial court. See Nichols, 90 S.W.3d at 586.

The evidence does not preponderate against the trial court’s finding. The Petitioner has

failed to carry his burden of proof on his claim regarding trial counsel’s handling of Dr.

Bursten.

Counsel testified that they provided Dr. Bursten with all the information they had and

relied upon him to conduct a psychiatric evaluation of the Petitioner. Dr. Bursten did not

assert that counsel failed to provide him with the necessary guidance or information. After

32

Dr. Bursten refused to continue working with the Petitioner, trial counsel employed Dr.

Matthews, whom they ultimately believed better benefitted the defense. This court concludes

that the Petitioner’s trial attorneys were not deficient in their dealings with Dr. Bursten.

B.

The Petitioner contends that trial counsel did not fully understand his cognitive

impairments before discussing with him his decision to testify at trial. As noted, counsel did

not believe the Petitioner was truthful when he questioned whether the victim actually died

as a result of his attack. The Petitioner asserts on appeal, however, that his memory loss after

the attack was the result of his neurological deficits and blocked emotional memory. The

Petitioner argues that trial counsel should have investigated further why the Petitioner did

not remember the events after the attack. The Petitioner suggests counsel’s disbelief,

coupled with the Petitioner’s refusal to accept the plea offer by the prosecutor, adversely

affected counsel’s relationship with him.

Initially, this court notes that the right to decide whether to testify at trial belongs to

the defendant. Momon v. State, 18 S.W.3d 152, 161 (Tenn. 1999). The Petitioner did not

testify at the post-conviction hearing concerning his decision. Despite trial counsel’s advice

against testifying, the Petitioner decided in the middle of trial that he would take the stand

in his own defense. As the trial court held, counsel’s performance cannot be deemed

deficient simply because the Petitioner did not follow counsel’s advice against testifying.

See Vermilye v. State, 754 S.W.2d 82, 88 (Tenn. Crim. App. 1987).

Furthermore, the record does not support the Petitioner’s assertion that his trial

attorneys were unprepared to deal with his alleged memory loss when he took the stand.

Trial counsel testified that they developed a good working relationship with the Petitioner.

They said the Petitioner was able to communicate effectively with them. Counsel did not

believe the Petitioner was truthful about his memory loss because the Petitioner was able to

recall every detail leading up to the time of the murder. Nevertheless, counsel hired experts

to evaluate the Petitioner’s mental state. An EEG was performed, but because the results

revealed no brain damage, their expert did not recommend further testing. Trial counsel

testified they were untrained in the mental health field and relied upon the advice and

opinions of their experts. We note that trial counsel said one of the defense experts

questioned the Petitioner’s lack of memory of events after the murder and eventually quit.

Moreover, when asked about the Petitioner’s claimed memory loss, Dr. Brown, one of the

Petitioner’s post-conviction experts, could not offer any valid explanation, instead saying it

was a “clinical piece that’s unresolved.”

33

A criminal defense attorney “must conduct appropriate investigations, both factual and

legal, to determine what matters of defense can be developed.” Baxter v. Rose, 523 S.W.2d

930, 933 (Tenn. 1975). Trial counsel thoroughly investigated the facts of this case.

According to counsel, there were “abundant indications” the Petitioner was not mentally

retarded. When the Petitioner informed counsel he could not remember what happened after

the attack, counsel sought the advice of their expert. Their expert did not recommend further

testing. We will not deem counsel ineffective for failing to pursue the matter. See Farris

Genner Morris, Jr. v. State, No. W2005-00426-CCA-R3-PD, Madison County, slip op. at 59

(Tenn. Crim. App. Oct. 10, 2006) (“We cannot find trial counsel deficient for relying upon

the pre-trial evaluation finding the Petitioner competent and sane.”), app. denied (Tenn. Feb.

26, 2007); Glen Bernard Mann v. State, No. W2002-00260-CCA-R3-PD, Dyer County, slip

op. at 33 (Tenn. Crim. App. Oct. 9. 2003) (“counsel’s decision not to pursue [I.Q.] angle was

reasonable based on his reliance upon Dr. Blair’s recommendation”), app. denied (Tenn.

Mar. 8, 2004). Counsel was somewhat surprised when the Petitioner decided in the middle

of trial that he wanted to testify. Counsel had one night to prepare him for his testimony.

Contrary to the Petitioner’s argument, the record does not reveal that counsel were deficient

in this respect.

The Petitioner has failed to explain how counsel’s conduct resulted in prejudice during

the guilt phase of the trial. The Petitioner notes the State’s argument at trial that “it was clear

that [the Petitioner] was lying about not remembering things” because of the telephone

conversations the Petitioner had with various individuals after he attacked the victim. He

relies upon Dr. Brown’s assessment that his behavior after the murder was extremely

disorganized. Such an assessment, however, would not have discredited the actual content

of those telephone conversations relayed to the jury. Moreover, Dr. Brown’s conclusion that

the Petitioner’s memory loss was a “clinical piece that’s unresolved” would not likely have

gained the Petitioner any favor with the jury. Nevertheless, had the Petitioner not testified

in his own defense, the evidence of guilt was otherwise overwhelmingly sufficient to support

the jury’s verdict. The Petitioner is not entitled to relief on this particular claim of ineffective

assistance of counsel.

Guilt Phase

C.

The Petitioner contends that trial counsel did not adequately present their guilt phase

defense, which consisted of challenging the element of premeditation. The Petitioner argues

that trial counsel’s failure to investigate his cognitive impairments more thoroughly resulted

in an inadequate defense. The Petitioner introduced the testimony of Drs. Auble and Brown

as experts during the post-conviction hearing.

34

The trial court concluded that trial counsel’s presentation of their defense to the

charge of premeditated first degree murder was not deficient and that there was no resulting

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

counsel falls within the wide range of reasonable professional assistance. Strickland, 466

U.S. at 689. Deference will be paid to sound trial strategy that is based upon adequate

preparation. Hellard, 629 S.W.2d at 9. Our supreme court has stated:

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

to cast doubt on trial tactics a lawyer has used. Trial counsel’s

strategy will vary even among the most skilled lawyers. When

that judgment exercised turns out to be wrong or even poorly

advised, this fact alone cannot support a belated claim of

ineffective counsel.”

Id. (quoting Robinson v. United States, 448 F.2d 1255, 1256 (8th Cir. 1971)). “It cannot be

said that incompetent representation has occurred merely because other lawyers, judging

from hindsight, could have made a better choice of tactics.” Hellard, 629 S.W.2d at 9.

The Petitioner is essentially second-guessing the strategy of his trial attorneys. The

Petitioner has not proffered any alternative theory of defense. An insanity defense was not

viable at the time of the trial, and the Petitioner does not now suggest otherwise. After the

Petitioner declined the State’s plea offer, trial counsel knew the only defense was to attempt

to negate the element of premeditation. Trial counsel did not observe anything during their

relationship with the Petitioner to suggest that he was mentally disabled. To the contrary,

counsel testified about the Petitioner’s general ability to interact normally and assist with his

defense. Although harboring doubts about the Petitioner’s claim of not remembering the

events after the murder, counsel had the Petitioner evaluated by several experts. According

to counsel, though, one of the defense experts did not believe the Petitioner’s claim of

memory loss and terminated his relationship with them. Nevertheless, counsel testified they

were fortunate to secure the services of Dr. Matthews, especially because he was able to tell

the jury exactly what counsel wanted them to hear. The Petitioner has not shown that

counsel’s pretrial investigation into their only viable defense was inadequate. The record

reveals the opposite.

Drs. Auble and Brown both testified that they diagnosed the Petitioner with a

cognitive disorder, which qualified as a recognized mental disease or defect. Neither expert,

though, could confirm the existence of any actual brain damage, and neither expert could

state that the Petitioner was mentally retarded under Tennessee’s legal definition at the time.

They offered similar explanations for the Petitioner’s behavior the evening of the crime, and

35

they both ultimately confirmed what Dr. Matthews asserted regarding the Petitioner’s

inability to premeditate.

Dr. Matthews testified that the Petitioner did not premeditate his actions. Dr.

Matthews informed the jury that the Petitioner was in a state of heightened emotional arousal

during the attack and reacted impulsively to the situation. The evidence at trial portrayed the

Petitioner “as someone who acts impulsively, without thought or reflection, and who,

frightened of being alone, becomes anxious and potentially violent when unable to control

his environment.” Suttles, 30 S.W.3d at 258. The trial evidence also suggested that the

Petitioner’s behavior was attributable to the oxygen deprivation he suffered as a “blue baby”

and to his abandonment as a child. Id. According to the post-conviction testimony of Dr.

Brown, the Petitioner experienced an overwhelming sense of anxiety and was in a state of

intense emotional distress at the time of the attack. Dr. Brown also discussed the Petitioner’s

birth and early childhood abandonment issues as they related to his actions the night of the

crime. Similarly, Dr. Auble testified that the Petitioner tended to act impulsively in his

pursuit of the women who terminated romantic relationships with him. Both experts

ultimately stated that the Petitioner could not have premeditated his actions because of his

emotional and mental state, which was the same opinion Dr. Matthews offered at trial.

The record reveals counsel offered evidence that the Petitioner reacted emotionally

and impulsively to the events unfolding as opposed to acting with premeditation. The fact

the Petitioner presented different experts in the post-conviction setting who were able to offer

additional opinions in support of the same theory of defense does not mean trial counsel was

ineffective in their trial presentation. Moreover, the jury’s finding of premeditation does not

mean trial counsel’s presentation of their defense was ineffective under Strickland. As noted

earlier, criminal defendants are not entitled to perfect representation, only constitutionally

adequate representation. Denton, 945 S.W.2d at 796. “Thus, the fact that a particular

strategy or tactic failed or even hurt the defense does not, alone, support a claim of

ineffective assistance.” Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992).

In any event, we conclude that the Petitioner did not demonstrate any resulting

prejudice. As the supreme court held on direct appeal:

[W]hether a killing is premeditated is a question of fact for the

jury to decide. The jury was in a position to evaluate the

testimony of both the defendant and Dr. Matthews in this case

and obviously accredited the State’s witnesses when it returned

a verdict of guilty of first degree premeditated murder.

36

Suttles, 30 S.W.3d at 261. There is no reasonable probability that the jury would have

decided otherwise if Drs. Auble and Brown testified at trial. As the supreme court

emphasized, the eyewitness testimony describing the Petitioner’s actions during the attack

was powerful:

The record reflects that the defendant grabbed the

unarmed victim when she refused to go home with him and held

a pocket knife to her throat. When the victim’s daughter got out

of the car and approached the couple, the defendant told her to

“Get back or I’ll kill her.” After the victim told the defendant

she would go with him, the defendant released her, closed the

knife, and put it back into his pocket. When the victim then

attempted to flee to the safety of the Taco Bell, the defendant

chased her, tackled her, took out his knife, opened it, slashed her

throat, and stabbed her several times while she lay helpless on

the ground, and then, turned the victim over and stabbed her

several more times. When the attack was over, the defendant

got up, wiped the knife on his pants to remove the blood, then

“nonchalantly” walked across the parking lot to his car, and

drove out of the parking lot, smiling at the victim’s daughter as

he passed. Less than one hour after the assault, the defendant

telephoned a friend and calmly described the assault, saying that

he had cut the victim’s throat and had stabbed her in the chest

and in the back.

Id. The trial court did not err in denying relief on this basis.

D.

The Petitioner contends that trial counsel improperly allowed the jury to hear the facts

and circumstances surrounding his prior convictions during his trial testimony. The

Petitioner focuses on counsel’s failure to request a jury-out hearing before the State’s cross-

examination.

Despite counsel’s advice, the Petitioner decided to testify at trial. The prosecutor

questioned the Petitioner during cross-examination about his prior convictions. After the

prosecutor asked the Petitioner to identify the victims of the prior offenses, defense counsel

requested a bench conference. Counsel stated: “I don’t think it is timely to get into all this.”

Counsel also expressed concern that the prosecutor was referring to criminal offenses for

which the Petitioner was not convicted. The trial court overruled the objection and allowed

37

the questioning to continue. Shortly after cross-examination resumed, counsel requested

another bench conference when the prosecutor again referred to the wrong offenses. The

trial court instructed the prosecutor to “lay it out correctly.” The prosecutor then asked the

Petitioner to confirm his conviction. Aside from the identification of the victims and the

general nature of the encounter, the prosecutor did not elicit any further details of the

previous criminal episode.

Counsel explained during the post-conviction hearing their theory of the defense:

We just had to let it all, if you will, hang out. We really did

because we thought that the best thing to do would be to let the

jury know these things because it would indicate that . . . he was

a . . . mad man at [the] time and that this was a – another

incidence of the same thing, same type of conduct that would

suggest that he did not – did not plan or did not premeditate this

crime.

Counsel’s goal in this case was to negate the premeditation element of the charged offense,

and the circumstances of the prior crimes were essential to show the jury how the Petitioner

reacted impulsively in these two similar situations when he was abandoned by female friends.

We conclude that trial counsel’s use of Dr. Matthews was not outside the wide range of

professionally competent assistance. Dr. Matthews testified that the Petitioner could not

have premeditated his actions. In addition to describing the Petitioner’s background and

emotional makeup, Dr. Matthews commented about the Petitioner’s attacks on two separate

women who abandoned him in order to explain the Petitioner’s impulsive reactions in those

situations. The defense goal was to show the jury the Petitioner was not generally a violent

man, and the circumstances of his prior convictions supported Dr. Matthews’s opinion.

The Petitioner suggests that trial counsel would not have voiced any objection during

his testimony if counsel wanted the jury to learn about the circumstances of the prior crimes.

Counsel objected, however, based on the timing of the evidence. Counsel knew the jury

would eventually learn about the Petitioner’s previous actions through Dr. Matthews’s

testimony later in the trial. The trial court correctly found that trial counsel cannot be deemed

deficient for failing to request a jury-out hearing before the cross-examination of the

Petitioner. Again, counsel’s sound trial strategy will not be second-guessed.

As part of this argument, the Petitioner complains about trial counsel’s decision to call

his former parole officer to testify on his behalf. As counsel testified during the post-

conviction hearing, they decided to have Gwen Stargil inform the jury that the victim was not

afraid of the Petitioner. When questioned whether he was concerned about “opening the

38

door” to the circumstances of the previous offense, counsel explained that information would

eventually be presented to the jury in connection with their theory of defense. Counsel’s

explanation for calling Ms. Stargil to testify was reasonable and will not be deemed deficient.

The Petitioner also argues that counsel did not take the appropriate measures to cure

the prosecutor’s suggestion that the prior conviction of felonious assault contained an

element of premeditation. During cross-examination of Dr. Matthews, the following

exchange occurred:

Prosecutor: Well, he admitted, did he not, by pleading guilty to

that offense that he premeditated?

Dr. Matthews: He admitted to committing the offense. I don’t

know about premeditation.

Prosecutor: Well, premeditation is an element of the offense.

Dr. Matthews: That’s what you say. I’m not sure.

Prosecutor: Well, if he admitted premeditation shouldn’t he

know whether he premeditated or not?

Dr. Matthews: I’m not, again, I don’t know that he admitted

premeditation.

Trial counsel voiced no objection during this line of questioning.

The Petitioner also complains about trial counsel’s failure to object to the following

statements during the prosecutor’s closing argument:

But you take to mind, keep in mind, when you consider what he

says about not being able to premeditate at that time, that he was

only intending to scare her, that the same psychologist testified

that when [the Petitioner] pointed the gun at his former father-

in-law and pulled the trigger, that that was only to scare him.

The Petitioner argues that the prosecutor’s argument suggested the assault conviction was

a premeditated offense.

39

During cross-examination, Dr. Matthews rejected the prosecutor’s suggestion that the

Petitioner admitted he acted with premeditation. Although the prosecutor misstated the

elements of the assault offense, Dr. Matthews did not affirm that characterization. Further,

the jury was instructed that the statements, argument, and remarks of the attorneys were not

evidence. During the post-conviction hearing, trial counsel was not questioned about these

two instances. The trial court did not err in finding that trial counsel’s performance in these

two instances did not fall below an objective standard of reasonableness or result in prejudice

during the guilt phase of the trial.

E.

The Petitioner contends that counsel were ineffective because they failed to call two

particular witnesses. The first, Jackie Alvin Davis, witnessed the murder. The Petitioner

argues that Jackie Davis would have testified that the Petitioner held his knife in his hand

during the entire attack and did not return it to his pocket. According to the Petitioner, Jackie

Davis would also have testified that the Petitioner looked sad as he left the scene. The

second, Arbutus Norton, was the Petitioner’s former girlfriend. The Petitioner contends she

would have testified that she and the Petitioner had plans to meet the night of the murder.

According to the Petitioner, the testimony of these two witnesses would have helped negate

the element of premeditation.

At the time of trial, Jackie Davis lived in Texas. Counsel did not subpoena him

because they expected the State to call him as a witness. Counsel was surprised, though,

when Mr. Davis was not called. Nevertheless, the Petitioner did not introduce Davis’s

testimony during the post-conviction hearing. The Petitioner bore the burden of presenting

his testimony in support of this ground for relief. Black v. State, 794 S.W.2d 752, 757 (Tenn.

Crim. App. 1990). The reviewing courts cannot “speculate or guess . . . what a witness’s

testimony might have been if introduced by defense counsel.” Id. Because the Petitioner did

not have Davis testify, he failed to demonstrate prejudice. See id. at 758.

Ms. Norton, however, testified at the post-conviction hearing that she and the

Petitioner had plans to meet the night of the murder. The Petitioner argues that her testimony

about their plans would have helped negate the element of premeditation. Norton’s

testimony may have been probative regarding whether the Petitioner had premeditated the

murder at the time he and Norton made plans. However, such testimony would not have

negated the Petitioner’s forming premeditation after speaking with the victim or when he

next saw the victim. Also, Norton testified that the Petitioner telephoned her after the attack

and said, “I’ve done something stupid.” If Norton testified at trial, the jury could have

learned what the Petitioner told her on the telephone after he killed the victim. We conclude

40

that the Petitioner has failed to establish any resulting prejudice from counsel’s failure to call

Norton as a witness.

As the supreme court noted on direct appeal:

‘[P]remeditation’ is an act done after the exercise of reflection

and judgment. ‘Premeditation’ means that the intent to kill must

have been formed prior to the act itself. It is not necessary that

the purpose to kill pre-exist in the mind of the accused for any

definite period of time. The mental state of the accused at the

time the accused allegedly decided to kill must be carefully

considered in order to determine whether the accused was

sufficiently free from excitement and passion as to be capable of

premeditation.

Suttles, 30 S.W.3d at 260-61 (quoting T.C.A. § 39-13-202(d)). The court also recounted

several factors that tend to support the existence of premeditation: “the use of a deadly

weapon upon an unarmed victim; the particular cruelty of the killing; declarations by the

defendant of an intent to kill; evidence of procurement of a weapon; preparations before the

killing for concealment of the crime, and calmness immediately after the killing.” Id. at 261

(citing State v. Bland, 958 S.W.2d 651, 660 (Tenn. 1997)). In holding that the evidence was

sufficient to support the conviction, the trial court noted the powerful eye witness testimony

cited previously in this opinion and noted by the supreme court on direct appeal. See Suttles,

30 S.W.3d at 261. The supreme court also noted that the Petitioner “parked his car at a

church one mile from his home in an apparent effort to conceal the crime” and that when the

Petitioner “was taken into custody, he was described as ‘unemotional’ and ‘indifferent.’” Id.

This proof showed that multiple factors supported the jury’s finding of premeditation

at the time of the murder, regardless of whether the proof showed premeditation before the

Petitioner stopped at Taco Bell. See id. at 261-62. Given the nature of this evidence, trial

counsel’s failure to call Ms. Norton as a witness to testify about the Petitioner’s and her plans

to meet the night of the murder would not have discounted the evidence about premeditation

already before the jury. The fact that the Petitioner had plans later that evening did not

change his ability to reflect upon his actions after he encountered the victim at the Taco Bell.

In fact, the jury had heard testimony about the Petitioner’s previous plan to eat dinner with

his mother that evening, which evidently did not sway the jury’s decision. The Petitioner is

not entitled to relief regarding counsel’s representation in this respect.

41

F.

The Petitioner contends that counsel should have more thoroughly investigated the

behavioral effects of the prescription drugs he claimed he ingested before committing the

murder. Similarly, the Petitioner asserts counsel should have instructed Dr. Bursten to ask

the Petitioner how the drugs affected him.

Approximately one week before the murder, the Petitioner was prescribed Paxil, an

anti-depressant; Tranzene, a sleep aid; and Pepcid, an antacid. Ms. Shettles testified that the

Petitioner reported he was taking more than the prescribed dosage before the time of the

murder. Dr. Brown, the Petitioner’s post-conviction expert, explained that the Petitioner

reacted “catastrophically” to the drugs and said that at the time of the murder, the Petitioner

lacked the ability to control or regulate his behavior due in part to the effects of the

medication.

Trial counsel asked Dr. Bursten whether those prescription drugs could have played

a role in the Petitioner’s actions during the attack. According to counsel’s testimony, Dr.

Bursten assured them otherwise. Counsel testified that they relied upon this expert opinion

and did not pursue the issue further. The Petitioner notes that Dr. Bursten testified that he

did not remember the attorneys asking him whether the prescription drugs affected the

Petitioner’s behavior.

The Petitioner is required to establish by clear and convincing evidence the factual

allegations in support of his claim. T.C.A. § 40-30-110(f). Furthermore, the credibility of

witnesses and the weight and value to be afforded their testimony are questions resolved by

the trial court. Bates v. State, 973 S.W.2d 615, 631 (Tenn. Crim. App. 1997). The trial court

found as follows regarding this ground for relief:

This court finds that, after viewing all the evidence and

the credibility of the witnesses, the evidence does not support

any deficiency in performance at the time of trial related to the

medications. Counsel identified the potential issue, provided the

information to the appropriate expert, and then relied upon the

appointed expert for relevant information. This court finds no

fault in counsel for relying upon Dr. Bursten’s opinion in an

area in which he had been retained as an expert.

The Petitioner failed to carry his burden of proof on this issue. As this court has

noted, the trial court did not find the testimony of Dr. Bursten credible. Nevertheless,

42

counsel’s performance cannot be deemed deficient because they relied upon the advice of

their expert. See Farris Genner Morris, Jr., slip op. at 59; Glen Bernard Mann, slip op. at 33.

Penalty Phase

G.

The Petitioner contends that trial counsel should have objected to the State’s

introducing as an exhibit a copy of the indictment charging the Petitioner with the criminal

offenses that resulted in his previous convictions. The Petitioner pled guilty as charged to

three counts of assault with attempt to commit first degree murder and one count of felonious

assault. The Petitioner cannot satisfy his claim of ineffective assistance of counsel in this

instance.

Although counsel should have objected to the introduction of the indictment, the

failure to do so did not prejudice the outcome. See State v. Ivy, 188 S.W.3d 132, 153-55

(Tenn. 2006) (holding that the petitioner was not prejudiced in penalty phase of capital case

when the prior indictment charging first degree murder was introduced but the defendant was

convicted of second degree murder). The Petitioner pled guilty to the charged offenses, and

the judgments of conviction of those offenses, which were also introduced into evidence,

supported the State’s reliance upon the prior violent felony aggravating circumstance. See

T.C.A. 39-13-204(i)(2). The Petitioner failed to establish a reasonable probability that the

jury’s sentence would have been different had the jury viewed only the judgment sheets but

not the indictment. This ground for relief is without merit.

H.

The Petitioner contends that trial counsel should not have introduced his entire prison

record as mitigating evidence. He argues that the prison records contained negative

information that did not support the defense theory during sentencing. The Petitioner refers

to evidence of the facts and circumstances surrounding his prior convictions, including

statements of the victims contained in the presentence report for the prior cases. He also

refers to unsubstantiated allegations of violence, including a previous sexual assault charge

that was dismissed.

Counsel testified that their goal during the penalty phase was to portray the Petitioner

as a generally nonviolent individual and to demonstrate to the jury how well he adapted to

the structured prison environment. Counsel believed the positive commendations of the

prison officials contained in the records supported their theory that the Petitioner could

function well in a controlled setting if the jury spared his life. Counsel recognized that some

43

of the information contained in the records was not favorable. However, counsel’s “theory

was to let the good come in with what little bad there might be.”

The Petitioner’s prison records were introduced through the record custodian of

Brushy Mountain Prison. During cross-examination, she acknowledged the records reflected

the Petitioner’s previous convictions, sentences, and parole date. She also stated the records

contained twenty-nine letters from various prison staff members, including Associate Warden

David Sexton, recommending the Petitioner for parole.

Warden Sexton testified on the Petitioner’s behalf during sentencing. He said

Petitioner’s prison records reflected that the Petitioner received two minor disciplinary

reprimands during his previous incarceration. He also said the records contained favorable

recommendations for parole. The records documented the Petitioner’s work history while

he was in prison, and according to Warden Sexton, the Petitioner maintained various jobs

without any problems during his incarceration. Warden Sexton also said there was nothing

in the records that suggested the Petitioner was a violent prisoner.

During the State’s cross-examination, Warden Sexton described two disciplinary

reports contained in the records: (1) the Petitioner possessed a fan that did not contain an

inmate identification tag, and (2) the Petitioner was found with several tools in his cell.

Warden Sexton also read the letter he wrote recommending the Petitioner for parole. Warden

Sexton acknowledged his previous belief that the Petitioner could make a good contribution

to society if granted parole turned out to be wrong. He said, however, that his

recommendation for parole was based upon the Petitioner’s exemplary prison record.

During the State’s closing argument, the prosecutor commented on the Petitioner’s

two prison disciplinary actions and suggested that “he didn’t do well at all” in prison.

Defense counsel emphasized the Petitioner’s primarily favorable prison record during closing

argument. Counsel argued to the jury that the Petitioner would spend the rest of his life in

prison if they spared the death penalty, stating: “Dennis Suttles will never be free again,

period.”

In denying relief on the Petitioner’s claim on this point, the trial court found “counsel

strategically determined that the records should be submitted as a whole and that the good

outweighed the bad.” The court concluded that counsel’s performance was not deficient in

this respect and held that no prejudice resulted because the aggravating circumstances were

“particularly strong.”

As noted previously, deference must be given to an informed trial strategy. Hellard,

629 S.W.2d at 9. Trial counsel’s conduct should not be measured in hindsight but should be

44

assessed from counsel’s perspective at the time. Cooper, 847 S.W.2d at 528. Furthermore,

the fact that a particular strategy failed or even hurt the defense does not, alone, support a

claim of ineffective assistance of counsel. Id.

Contrary to the Petitioner’s argument, defense counsel’s explanation in support of

their defense strategy during sentencing was not objectively unreasonable. Counsel wanted

to show the jury how well the Petitioner conducted himself in prison. Counsel knew the jury

was aware of the Petitioner’s prior criminal record and the fact that he committed the instant

crime while on parole. The Petitioner’s prison records, however, revealed no acts of violence

while the Petitioner was incarcerated. Attorney Davis testified: “I’ve been doing this a long

time and I’ve never seen a series of prison records as complimentary.”

Counsel realized they faced an uphill battle in the penalty phase because of the

heinous nature of the murder and the fact that the victim’s daughter witnessed the killing.

In order to avoid the death penalty, counsel believed the best tactic was to demonstrate to the

jury that the Petitioner could function well in a structured environment such as prison. As

counsel testified, the Petitioner’s prison records contained favorable documentation that

supported their theory. Although there is reference to the Petitioner’s prior convictions,

including statements of the victims expressing fear of the Petitioner, the jury already knew

the Petitioner committed previous acts of violence. The prosecution did not emphasize any

specific part of the records during the sentencing hearing testimony or closing argument

except that the Petitioner committed the prior violent felonies and that he committed the

instant murder after he was released on parole, facts already known to the jury.

Although the Petitioner argues that the unfavorable information contained in the

records did not relate to his behavior in prison and thus should not have been introduced,

counsel testified that the theory was “to let the bad come in with the good.” As counsel

testified: “We got all these records in without objection from the DA or him asking for them.

I think having all of these records come in in their entirety was more important than

particulars of an offense to which he’s already pled guilty.” Moreover, counsel did not

believe the information relating to the Petitioner’s parole recommendation would be

considered less favorably by the jury merely because the instant crime occurred while the

Petitioner was on parole. According to counsel, the fact that the Petitioner committed the

crime while on parole did not discount the Petitioner’s model behavior while in prison, which

was what they wanted to show the jury.

The prison records overwhelmingly indicate the Petitioner was a model prisoner,

something the Petitioner does not dispute. Trial counsel in this case did not abandon their

client’s defense or fail to advocate against the death penalty as the Petitioner now suggests.

Counsel was questioned about the documents contained in the prison records, which the

45

Petitioner suggests were unfavorable. Mr. Davis testified he thought the positive information

relating to the Petitioner’s life inside prison outweighed any negative effect the records

showed about his life outside prison. The acts of violence to which the Petitioner’s brief

refers occurred outside the prison environment. The general tenor of that information was

already before the jury. Again, the defense goal was to convince the jury the Petitioner did

not act violently in prison.

We conclude that trial counsel’s decision to introduce the prison records in their

entirety was not objectively unreasonable. Again, the fact that a particular strategy failed

does not, standing alone, support a claim of ineffective assistance of counsel. Regardless,

had counsel redacted those parts the Petitioner now deems objectionable, the weight of the

evidence proffered in support of the aggravating circumstances was substantial. The

Petitioner has failed to demonstrate ineffective assistance of counsel in this respect.

Citing State v. Miller, 674 S.W.2d 279 (Tenn. 1984), the Petitioner argues that the

reference in his prison records to a previously dismissed sexual assault charge was, standing

alone, reversible error and cause for a new sentencing hearing. The Petitioner’s argument

is misplaced. In Miller, the supreme court held on direct appeal that admission of evidence

of the defendant’s arrest on two rape charges that were later dismissed amounted to

reversible error and required a new sentencing hearing. Id. at 284. In the Petitioner’s case,

however, the State did not introduce the evidence. Moreover, the Petitioner is challenging

his trial attorneys’ representation in the post-conviction context. The Petitioner must still,

therefore, establish both that the decision to introduce his prison records was deficient and

that prejudice resulted from that decision. The information about the previous assault charge

was only a part of the prison record, which counsel introduced in mitigation, and nothing

about that information was highlighted to the jury by either party during sentencing or

closing argument. This court has concluded that the Petitioner failed to demonstrate

ineffective assistance regarding counsel’s goal with respect to the prison records. The

information about a criminal charge that was eventually dismissed does not, standing alone,

warrant post-conviction relief.

I.

The Petitioner contends that his trial attorneys were ineffective because they failed to

maintain a working relationship with their mitigation specialist and failed to investigate the

Petitioner’s background adequately in order to obtain meaningful mitigation evidence.

During the post-conviction hearing, the Petitioner introduced numerous witnesses who

testified about the circumstances surrounding the Petitioner’s upbringing. The Petitioner

argues that this evidence about his childhood might have influenced the jury to return a

sentence other than death.

46

The trial court concluded that counsel were not deficient in their investigation and

presentation of the mitigation defense during sentencing. The court further concluded that

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

changed the outcome of the sentencing verdict. When considering a claim that trial counsel

failed to present sufficient mitigating evidence, our supreme court has directed the reviewing

courts to consider the following: (1) the nature and extent of the mitigating evidence that

was available but not presented; (2) whether substantially similar mitigating evidence was

presented to the jury in either the guilt or penalty phase of the proceedings; and (3) whether

there was such strong evidence of aggravating factors that the mitigating evidence would not

have affected the jury’s determination. Goad v. State, 938 S.W.2d 363, 371 (Tenn. 1996).

Initially, this court notes that there was inconsistent testimony by Ms. Shettles and

counsel concerning her role in this case. Shettles was hired by counsel as a mitigation

specialist, despite counsel’s urging the Petitioner to accept a plea offer. Counsel had used

the services of Shettles in the past and instructed her to “do her usual job” in this case. The

trial court accredited counsel’s testimony that they did not point Shettles in a specific

direction and that they relied upon her proven expertise to gather relevant evidence for

sentencing. The trial court found no fault on the part of trial counsel for relying upon the

expertise of their mitigation specialist. In Farris Genner Morris, Jr., this court rejected a

similar claim by the petitioner that his trial attorneys failed to use the services of Shettles

properly. The court found “no fault in counsel for failing to instruct Ms. Shettles as to how

to perform her job in an area in which she is supposed to be an expert.” Id., slip op. at 67.

The post-conviction testimony in this case reveals counsel was in contact with Shettles and

reviewed all the information she gathered. As the trial court noted, this is not a case where

trial counsel failed to conduct any investigation into the Petitioner’s background and social

history.

In essence, the Petitioner argues that trial counsel should have developed a different

strategy of mitigation. According to the Petitioner’s argument, counsel should have placed

more emphasis during sentencing on his chaotic and dysfunctional childhood. Counsel,

however, testified that they considered it more important to demonstrate to the jury how well

the Petitioner behaved in prison. Once convicted, the least onerous sentence the Petitioner

could receive was life in prison. Based upon his own experiences, Mr. Jeffress did not

believe information about the Petitioner’s childhood would be as persuasive to the jury as the

Petitioner’s favorable prison record because the Petitioner was forty-five years old, lived

independently, and maintained a responsible job.

In the context of capital cases, a defendant’s background, character, and mental

condition are significant. “[E]vidence about the defendant’s background and character is

relevant because of the belief, long held by this society, that defendants who commit criminal

47

acts that are attributable to a disadvantaged background, or to emotional and mental

problems, may be less culpable than defendants who have no such excuse.” California v.

Brown, 479 U.S. 538, 545 (1987) (O’Connor, J., concurring). A defendant’s constitutional

right to present a vast array of personal information in mitigation during the sentencing

phase, however, is distinct from the question of whether counsel’s choice about what

information to present to the jury was professionally reasonable. The basic concerns of

counsel during a capital sentencing proceeding are to neutralize the aggravating

circumstances advanced by the State and to present mitigating evidence on behalf of the

defendant. Although there is no requirement that a defendant present mitigating evidence,

counsel has the duty to investigate and prepare for both the guilt and the penalty phases. See

Goad, 938 S.W.2d at 369-70; Zagorski v. State, 983 S.W.2d 654, 657-58 (Tenn. 1998).

Although counsel has no absolute duty to investigate particular facts or a certain line

of defense, “counsel has a duty to make reasonable investigations or to make a reasonable

decision that makes particular investigations unnecessary.” Strickland, 466 U.S. at 691. In

determining whether counsel breached this duty, counsel’s performance is reviewed “for

‘reasonableness under prevailing professional norms,’ which includes a context-dependent

consideration of the challenged conduct as seen ‘from counsel’s perspective at the time.’”

Wiggins v. Smith, 539 U.S. 510, 523 (2003) (quoting Strickland, 466 U.S. at 688-89)).

Counsel is not required to investigate “every conceivable line of mitigating evidence no

matter how unlikely the effort would be to assist the defendant at sentencing.” Wiggins, 539

U.S. at 533. Nor is counsel required to interview every conceivable witness. See Hendricks

v. Calderon, 70 F.3d 1032, 1040 (9th Cir. 1995). In other words, counsel’s duty to

investigate and prepare is not without limit. See id.

As the trial court noted, the jury learned about the Petitioner’s background during the

trial testimony of Dr. Matthews and the Petitioner’s mother. Dr. Matthews testified about

the Petitioner’s breech birth, the death of his brother, the abandonment by his parents, and

the fact that he was raised by his grandparents. The Petitioner’s mother also testified about

the Petitioner’s breech birth, the abandonment by his father, and the fact that the Petitioner

was raised by his grandparents. There is no requirement that counsel present cumulative

evidence during sentencing. See Nichols, 90 S.W.3d at 601-02. Contrary to the Petitioner’s

assertion, the evidence introduced during the evidentiary hearing did not portray the

Petitioner’s childhood in so dim a light as he now suggests. The trial court offered the

following comments on the proof:

The majority of the proof offered at the post-conviction

hearing on mitigation was proof that dealt with the petitioner’s

extended family. While petitioner offered proof at this hearing

concerning his upbringing and his issue with abandonment,

48

these issues were also raised at the original trial. In addition, the

family members, who testified at the post-conviction hearing,

described the defendant as having had much better treatment

than they had experienced growing up. The petitioner himself

had described his childhood as better than most to Dr. Brown

and Ms. Shettles. Dr. Brown opined that certain issues, such as

problems with anxiety and depression and the potential for

alcohol and drug abuse, had a significantly higher risk of

occurring in the petitioner’s family than in other families.

Petitioner’s cousins testified that their grandparents treated the

petitioner much better than they treated the other grandchildren

and that he had been spoiled by them. A former teacher also

testified to the potential she had seen in the petitioner that she

had not seen in the other Suttles’ family children. Four of the

petitioner’s twenty-something cousins were mentally retarded

but . . . the petitioner does not fall into the mentally retarded

range. Some of his cousins also dealt with issues of mental

health such as anxiety and depression just like the petitioner.

Others also dealt with drug and alcohol abuse which the

petitioner did not.

Based on the evidence, this court finds that the evidence

presented demonstrated that the petitioner had actually led a

charmed childhood in comparison to his various cousins and that

he had wasted his opportunity to become a productive citizen.

While many of his cousins had difficult childhoods and some

mental health issues, none of the petitioner’s family had

committed one, much less two, extremely violent acts as the

petitioner had. [Internal footnote: According to petitioner’s

exhibit 38, other than the petitioner, the only family members,

of the petitioner’s rather large family, alleged to have a history

of violence are the petitioner’s father and uncle Charles.

Although Charles Suttles, Sr. had no apparent criminal history,

he reportedly raped his stepdaughter Wanda and fathered two

sons by her while married to Wanda’s mother. The allegations

of violence on the part of the petitioner’s father are related to the

time before the petitioner’s birth, the petitioner’s early

childhood and the discord in his marriage to the petitioner’s

mother.] This court cannot conclude that this additional family

49

history and background would have changed the outcome of the

trial or sentence.

There was some evidence introduced at this hearing of

the petitioner’s alleged mistreatment by his parents. These

allegations primarily come from pleadings in the petitioner’s

parents’ divorce and incidents where the petitioner was allegedly

left in his Uncle Charles’ car by his parents. While counsel

admitted to not having had all this information, this court finds

that all these alleged incidents occurred when the petitioner was

less than 19 months old and the petitioner himself has no

recollection of the same. [Internal footnote: Although the

petitioner did not testify at this hearing, the records demonstrate

that the petitioner admitted he had no recollection of this.]

Before the parents even divorced, the petitioner had gone to live

with his paternal grandparents. As previously discussed, family

members described how his paternal grandmother had loved and

spoiled petitioner and there is no credible evidence of any abuse

or mistreatment by his grandparents.

As the trial court stated, no evidence was introduced to suggest the Petitioner was

aware of or even affected by those events. Moreover, the bulk of the post-conviction

evidence showed the troubles experienced by the Petitioner’s family members, not the

Petitioner. As the Petitioner states in his brief on this issue, “The documentary evidence

introduced helped paint a vivid portrait of the troubled lives of Dennis Suttles’ relatives and

significant risk factors in his genetic background.” Again, despite all the evidence about the

Petitioner’s extended family, there was no direct proof that it affected the Petitioner. The

Petitioner did not testify at the hearing, and by all accounts the Petitioner obtained gainful

employment and developed an independent lifestyle apart from the alleged dysfunction of

his extended family.

The Petitioner submits that the jury should have heard proof supporting the

accusations that the Petitioner was sexually molested by his grandfather. There was some

post-conviction evidence relating to the grandfather’s inappropriate actions toward other

members of the Petitioner’s extended family. In order to obtain post-conviction relief on his

claim of ineffective assistance of counsel, though, the Petitioner had the burden of

establishing by clear and convincing evidence the factual allegations in support of the claim.

The trial court concluded that the Petitioner did not do so:

50

A specific issue petitioner’s counsel attempted to

establish as undeveloped mitigation was whether the petitioner

had been sexually abused as a child. The petitioner, himself, has

always denied any such abuse. While many of the petitioner’s

cousins were reportedly sexually abused as children, no family

member who testified had any personal knowledge of or had

heard of any sexual abuse of the petitioner. Dr. Brown testified

that certain parts of the petitioner’s social history would support

the “theory” that the petitioner had been the victim of sexual

abuse as well. Dr. Brown admitted, however, that the only

actual allegation of any sexual abuse of the petitioner was in an

affidavit from one of the petitioner’s cousins[.] The petitioner’s

own evidence, however, describes the affiant as having severe

mental health problems and a criminal record for various

offenses. In addition, the incident the affiant alleges happened

was described as the petitioner and another cousin, both 9 to 10

years in age, grabbing their grandfather’s erect penis when he

was in bed and then the boys laughing about it. The affiant, who

would have also been young at the time, also stated that he

“assumed” the behavior had been invited. Under all the

circumstances, this court finds that this affidavit completely

lacks credibility and that the petitioner has failed to carry his

burden on this issue.

As noted, the Petitioner did not testify at the post-conviction hearing. Although Dr.

Brown hypothesized that the Petitioner’s grandmother spoiled him either to compensate for

the sexual abuse he endured or as a bribe to cover up the grandfather’s inappropriate conduct,

he relied on an affidavit of the Petitioner’s cousin regarding the alleged sexual abuse. The

trial court found that the affidavit was not credible. In addition, the Petitioner denied to Dr.

Brown that he was sexually abused. The proof failed to establish that the Petitioner was

sexually abused. This court agrees with the trial court that the Petitioner failed to carry his

burden regarding counsel’s failure to present available mitigating evidence of sexual abuse.

Despite Ms. Shettles’s belief that counsel did not present sufficient mitigating

evidence, this court must conduct an independent analysis of trial counsel’s performance

under the Strickland standard. This court has reviewed both the post-conviction proof and

the evidence introduced at trial in light of the factors outlined in Goad. As noted earlier, the

general tenor of the post-conviction testimony as it related to the Petitioner’s individual

background was relayed to the jury through the trial testimony of Dr. Matthews and the

Petitioner’s mother. The remaining mitigating evidence that the Petitioner asserts counsel

51

should have presented to the jury does not directly address the Petitioner’s own personal

character or background. Instead, the evidence describes the social history of the Petitioner’s

extended family. Moreover, the nature and strength of that evidence is not particularly great

given the generally favorable treatment the Petitioner received as a child compared to that

of his cousins. Finally, the evidence upon which the State relied in support of the

aggravating circumstances was particularly strong.

This court concludes that trial counsel’s presentation of its mitigation case was not

deficient or otherwise unreasonable. Also, the record supports the trial court’s conclusion

concerning any resulting prejudice:

Assuming this court had found counsel to have been

deficient, this court finds that it cannot conclude that the

evidence presented at the post-conviction hearing would have in

any way affected the outcome of the trial or sentencing hearing.

The evidence presented which specifically related to the

petitioner rather than extended family is primarily cumulative to

the evidence and issues presented at trial. The statutory

aggravating circumstances in this case also carried great weight.

This was not the petitioner’s only act of violence. In fact, as

agreed to by Dr. Brown, the circumstances of the petitioner’s

priors were very similar to this offense and there was no

potential for drug interaction in the first offenses. In addition,

the petitioner committed this murder in front of the victim’s

minor daughter. The victim was alive and conscious when all

the wounds were inflicted. Evidence at trial established that she

would have lived from 10-15 minutes before she bled to death.

The victim had been yelling for her daughter to stay back. The

victim had defensive wounds. There is clearly substantial

evidence that the victim suffered physical and mental pain

between the beginning of the attack and her death and that this

established torture without question. The petitioner repeatedly

stabbed the victim in the torso, the back and the neck. The

evidence was also more than enough to establish that the

physical abuse was “excessive” and beyond that necessary to

produce death. Based upon all this, this court cannot find that

the outcome of the petitioner’s trial or sentence would have been

different.

52

This court concludes that a reasonable probability does not exist that the evidence the

Petitioner now proffers would have changed the result.

J.

The Petitioner contends that if his post-conviction experts had testified during the

penalty stage, the jury’s sentencing decision would have been different. Similar to his claim

regarding the lay witnesses, the Petitioner argues that trial counsel were ineffective by failing

to discover potentially helpful mitigating evidence regarding his mental state and

background. Contrary to the Petitioner’s argument, however, trial counsel investigated the

Petitioner’s mental state. Counsel had the Petitioner evaluated by several different mental

health experts, one of whom testified on the Petitioner’s behalf at trial. This court has

previously determined that counsel’s performance was not deficient.

The Petitioner is again second guessing trial counsel’s mitigation strategy. As noted,

trial counsel’s decision to present a mitigation defense based upon the Petitioner’s model

prison behavior was not objectively unreasonable. Both attorneys believed the Petitioner’s

age and ability to hold a responsible job and to maintain a household overshadowed

information about his childhood. They decided to present evidence about how well he

behaved in custody because they thought that was the best option for obtaining a life

sentence.

Nevertheless, Dr. Matthews had already testified during the guilt phase, and the jury

was instructed it could consider as mitigation any evidence in his trial testimony. Dr. Brown

testified that the chaotic environment in which the Petitioner was raised caused him difficulty

later in life managing the anxiety he experienced in his relationships with loved ones. Dr.

Auble also testified that the Petitioner had difficulty managing complex relationships and that

he would, in an effort to repair a broken relationship, tend to overwhelm the woman in his

pursuits and ultimately act out impulsively toward her. Contrary to the Petitioner’s

suggestion, both of these opinions are similar to Dr. Matthews’s trial testimony that the

Petitioner became anxious and violent when he was unable to control his environment and

that this behavior was attributable to the lack of oxygen he suffered at birth and abandonment

as a child. Those were also the two main themes of the opinions of Drs. Auble and Brown.

Moreover, all three experts agreed the Petitioner did not have the capacity to premeditate his

actions the night of the murder. The fact that Dr. Matthews did not testify during the

sentencing stage did not discount the weight of his testimony during the guilt phase as

mitigating evidence that was before the jury during sentencing.

We conclude that the trial court properly determined that the testimony of Drs. Brown

and Auble would not have altered the outcome of the sentencing hearing. The Petitioner did

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not meet the then-existing legal definition for mental retardation. Further, Dr. Brown’s

opinions about the alleged sexual abuse the Petitioner suffered were conjecture. Dr. Brown

testified at the post-conviction hearing that prescribed medications diminished the

Petitioner’s ability to control his actions. Trial counsel were assured by their experts, though,

that the side effects of those drugs would not have caused the Petitioner to act the way he did.

Nevertheless, Dr. Matthews informed the jury that the Petitioner was in a heightened state

of emotional agitation and that his conduct at the time of the murder was impulsive and

explosive.

Given counsel’s chosen mitigation strategy and considering the testimony of Dr.

Matthews, the trial court properly concluded that trial counsel’s failure to present the expert

testimony introduced during the post-conviction hearing did not result in the ineffective

assistance of counsel during sentencing.

In so holding, we have considered the Petitioner’s supplemental authority, submitted

in support of his argument that trial counsel rendered ineffective assistance during the penalty

phase of the trial. See Sears v. Upton, – U.S. –, 130 S. Ct. 3259 (2010). In Sears, the United

States Supreme Court held that the Georgia trial court failed to apply the proper prejudice

analysis after it concluded that trial counsel’s penalty phase investigation was constitutionally

deficient. Id. at 3265-67. Although the state court found that the petitioner satisfied the

performance prong of Stickland, it determined that it would have been impossible to know

what effect a different mitigation theory would have had on the jury because trial counsel put

forth a reasonable theory with supporting evidence. Id. at 3264. The Supreme Court found

fault with the state court’s conclusion that a reasonable mitigation theory, “in the abstract,

. . . obviate[s] the need to analyze whether counsel’s failure to conduct an adequate

mitigation investigation” prejudiced the petitioner. Id. at 3265. The Court stated: “The

‘reasonableness’ of counsel’s theory was, at this stage in the inquiry, beside the point: Sears

might be prejudiced by his counsel’s failures, whether his haphazard choice was reasonable

or not.” Id.

We conclude that the holding in Sears does not affect this case. The trial court here,

unlike the trial court in Sears, did not find that counsel’s performance was constitutionally

deficient. To the contrary, the trial court found “that counsel was not deficient in their

investigation and preparation of potential mitigating evidence for the petitioner’s capital

sentencing hearing.” Also, although the trial court conducted a prejudice analysis in the

alternative, the court applied the correct standards of review. See Strickland, 466 U.S. at

691; Goad, 938 S.W.2d at 371.

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K.

The Petitioner contends that trial counsel were ineffective by failing to challenge the

instruction the trial court provided the jury on the heinous, atrocious, and cruel aggravating

circumstance. The Petitioner acknowledges that his direct appeal challenged the sufficiency

of the evidence in support of this aggravating circumstance. He now asserts that counsel

should have mounted an attack on the circumstance itself. Our supreme court has repeatedly

upheld the constitutionality of this aggravating circumstance. See, e.g., State v. Keen, 31

S.W.3d 196, 210-13 (Tenn. 2000). The Petitioner cannot satisfy an ineffective assistance

claim on this ground. See Carpenter v. State, 126 S.W.3d 879, 887-88 (Tenn. 2004) (“When

an omitted issue is without merit, the petitioner cannot prevail on an ineffective assistance

of counsel claim.”).

Appeal

L.

The Petitioner also challenges counsel’s representation in the direct appeal. The

Petitioner’s argument consists of the following statements:

Petitioner’s 1997 conviction and death sentence are invalid and

should be vacated because he did not receive effective

assistance of counsel on appeal, as required by or necessary to

the enforcement of the 6th, 8th and 14th Amendments to the

U.S. Const. and Art. I, §§ 6, 8, 9, 16, 17 and 19 of the Tenn.

Const. Counsel were ineffective for failing to raise claims

and/or raise claims in an adequate manner per the grounds as set

forth herein in [the issues addressed above].

The Petitioner offers no argument or citation to the record to support the general

statement regarding counsel’s alleged shortcomings on appeal. This court notes, however,

that the trial court correctly found that trial counsel’s performance was not ineffective at trial

with respect to these issues. The record does not show that a reasonable probability exists

that the result would have been different if the claims about which the Petitioner complains

had been raised in the direct appeal. We conclude that the Petitioner has failed to establish

his claim of ineffective assistance of counsel during either the guilt or penalty phase of his

trial.

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II. Constitutionality of the Death Penalty

Finally, the Petitioner advances several challenges against the death penalty. He

contends that Tennessee’s death penalty statute is unconstitutional, that execution by lethal

injection is cruel and unusual punishment, that the sentence of death unconstitutionally

infringes upon his right to life, and that the indictment returned by the grand jury is

unconstitutional because it does not contain the aggravating circumstances relied upon by the

State. To the extent that these challenges were addressed during the direct appeal, they have

been previously determined. T.C.A. § 40-30-106(h) (2010); Suttles, 30 S.W.3d 252.

Moreover, all of the challenges presented by the Petitioner have been rejected previously by

our supreme court. See State v. Hester, 324 S.W.3d 1 (Tenn. 2010); State v. Schmeiderer,

319 S.W.3d 607 (Tenn. 2010); State v. Kiser, 284 S.W.3d 227 (Tenn. 2009); Nichols, 90

S.W.3d at 604; State v. Dellinger, 79 S.W.3d 459 (Tenn. 2002).

We note that Tennessee’s lethal injection protocol was recently deemed

unconstitutional by the Davidson County Chancery Court in an order granting declaratory

judgment to two plaintiffs sentenced to the death penalty. See Stephen Michael West & Billy

Ray Irick v. Gayle Ray, Tenn. Comm’r of Corr., No. 10-1675-I (Davidson Chanc. Ct. Nov.

22, 2010) (Order). Our supreme court subsequently directed the State to submit a revised

lethal injection protocol to the chancery court, and after consideration of the revised protocol

with application of the standards from the plurality opinion in Baze v. Rees, 553 U.S. 35

(2008), the chancery court held that Tennessee’s revised lethal injection protocol is

constitutional. See Stephen Michael West & Billy Ray Irick v. Derrick D. Schofield, Tenn.

Comm’r of Corr., No. 10-1675-I (Davidson Chanc. Ct. Mar. 2, 2011) (Order). Moreover,

we are bound on the record before us to our supreme court’s holding on this issue. See Kiser,

284 S.W.3d at 275-76 (rejecting a challenge to the constitutionality of Tennessee’s lethal

injection protocol).

Conclusion

In consideration of the foregoing and the record as a whole, we hold that the trial court

properly determined that the Petitioner failed to prove by clear and convincing evidence the

individual allegations contained in his petition for post-conviction relief, that the Petitioner

received the effective assistance of counsel at all stages, and that the Petitioner’s claims

regarding the constitutionality of the death penalty and the procedures used in Tennessee

were without merit. The judgment of the trial court is affirmed.

____________________________________

JOSEPH M. TIPTON, PRESIDING JUDGE

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