Christa Gail Pike v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE (Heard at Jackson)

April 14, 2010 Session

CHRISTA GAIL PIKE v. STATE OF TENNESSEE

Direct Appeal from the Criminal Court for Knox County

No. 68280 Mary Beth Leibowitz, Judge

No. E2009-00016-CCA-R3-PD - Filed April 25, 2011

The Petitioner, Christa Gail Pike, appeals as of right the judgment of the Knox County

Criminal Court denying her petition for post-conviction relief. A Knox County jury found

the Petitioner guilty of premeditated first degree murder and conspiracy to commit first

degree murder. The jury further found two statutory aggravating circumstances: (1) “[t]he

murder was especially heinous, atrocious or cruel in that it involved torture or serious

physical abuse beyond that necessary to produce death”; and (2) “[t]he murder was

committed for the purpose of avoiding, interfering with or preventing a lawful arrest or

prosecution of the defendant or another.” T.C.A. § 39-13-204(i)(5), (6) (2006). The jury

further found that these two aggravating circumstances outweighed mitigating circumstances

beyond a reasonable doubt. The jury then sentenced the Petitioner to death. The Petitioner’s

conviction and sentence were affirmed on direct appeal by the Tennessee Supreme Court.

State v. Pike, 978 S.W.2d 904 (Tenn. 1998), cert. denied, 526 U.S. 1147 (1999). On June

3, 1999, the Petitioner timely filed a pro se petition for post-conviction relief. In 2001, the

Petitioner advised the trial court that she desired to withdraw her post-conviction petition.

In 2002, the lower court dismissed the petition for post-conviction relief. The Petitioner then

sought to reinstate her post-conviction petition. Litigation ensued, after which the Tennessee

Supreme Court ultimately determined that the motion to vacate the dismissal order should

be granted and remanded the matter to the lower court to reinstate the Petitioner’s post-

conviction petition. Pike v. State, 164 S.W.3d 257 (Tenn. 2005). Evidentiary hearings were

conducted in January 2007, July 2007, and August 2008. On December 10, 2008, the post-

conviction court entered an order denying the Petitioner post-conviction relief. On appeal

to this court, the Petitioner presents a number of claims that can be characterized in the

following categories: (1) the post-conviction court should have recused itself; (2) the

Petitioner’s trial and appellate counsel were ineffective; (3) the Petitioner is ineligible for the

death penalty; and (4) the death penalty is unconstitutional. Following a thorough review of

the record and the applicable law, we affirm the judgment of the post-conviction court.

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

J OHN E VERETT W ILLIAMS, delivered the opinion of the Court, in which N ORMA M CG EE O GLE

and A LAN E. G LENN, JJ., joined.

Donald E. Dawson and Avram Frey, Nashville, Tennessee, for the appellant, Christa Gail

Pike.

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

Frank Borger-Gilligan, Assistant Attorney General; Randall Eugene Nichols, District

Attorney General; and Leland Price and S. Jo Helm, Assistant District Attorneys General, for

the appellee, State of Tennessee.

OPINION

Facts Underlying the Petitioner’s Convictions

The following facts are excerpted from our supreme court’s opinion affirming the

Petitioner’s conviction and sentence:

The proof presented by the State at the guilt phase of the trial

established that on January 11, 1995, the [Petitioner], Christa Gail Pike, a

student at the Job Corps Center in Knoxville, told her friend Kim Iloilo, who

was also a student at the facility, that she intended to kill another student,

Colleen Slemmer, because she “had just felt mean that day.” The next day,

January 12, 1995, at approximately 8:00 p.m., Iloilo observed [the Petitioner],

along with Slemmer, and two other Job Corps students, Shadolla Peterson and

Tadaryl Shipp, [the Petitioner’s] boyfriend, walking away from the Job Corps

center toward 17th Street. At approximately 10:15 p.m., Iloilo observed [the

Petitioner], Peterson, and Shipp return to the Center. Slemmer was not with

them.

Later that night, [the Petitioner] went to Iloilo’s room and told Iloilo

that she had just killed Slemmer and that she had brought back a piece of the

victim’s skull as a souvenir. [The Petitioner] showed Iloilo the piece of skull

and told her that she had cut the victim’s throat six times, beaten her, and

thrown asphalt at the victim’s head. [The Petitioner] told Iloilo that the victim

had begged “them” to stop cutting and beating her, but [the Petitioner] did not

stop because the victim continued to talk. [The Petitioner] told Iloilo that she

had thrown a large piece of asphalt at the victim’s head, and when it broke into

smaller pieces, she had thrown those at the victim as well. [The Petitioner] told

Iloilo that a meat cleaver had been used to cut the victim’s back and a box

cutter had been used to cut her throat. Finally, [the Petitioner] said that a

pentagram had been carved onto the victim’s forehead and chest. Iloilo said

that [the Petitioner] was dancing in a circle, smiling, and singing “la, la, la”

while she related these details about the murder. When Iloilo saw [the

Petitioner] at breakfast the next morning, she asked [the Petitioner] what she

had done with the piece of the victim’s skull. [The Petitioner] replied that it

was in her pocket and then said, “And, yes, I’m eating breakfast with it.”

During a class later that morning, [the Petitioner] made a similar

statement to Stephanie Wilson, another Job Corps student. [The Petitioner]

pointed to brown spots on her shoes and said, “that ain’t mud on my shoes,

that’s blood.” [The Petitioner] then pulled a napkin from her pocket and

showed Wilson a piece of bone which [the Petitioner] said was a piece of

Slemmer’s skull. [The Petitioner] also told Wilson that she had slashed

Slemmer’s throat six times and had beaten Slemmer in the head with a rock.

[The Petitioner] told Wilson that the victim’s blood and brains had been

pouring out and that she had picked up the piece of skull when she left the

scene.

Though neither Iloilo nor Wilson immediately reported [the

Petitioner’s] statements to police, on the day after the murder, January 13, at

approximately 8:05 a.m., an employee of the University of Tennessee Grounds

Department, discovered Slemmer’s semi-nude, slashed, and badly beaten body

near the greenhouses on the agricultural campus. He testified that the body

was so badly beaten that he had first mistaken it for the corpse of an animal.

Upon closer inspection, he saw the victim’s clothes and her nude breast and

realized it was the body of a human female. He immediately notified law

enforcement officials.

Officers from the Knoxville Police Department and the U.T. Police

Department were summoned to the scene. Officer John Terry Johnson testified

at trial that the body he found was lying on debris and was nude from the waist

up. Blood and dirt covered the body and remaining clothing. The victim’s

head had been bludgeoned. Multiple cuts and slashes appeared on her torso.

Officer Johnson stated that he thought he was looking at the victim’s face but

he could not be sure because it was extremely mutilated. Johnson removed all

civilians from the area and secured the scene surrounding the body.

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As other officers arrived, they began securing the crime area. As

officers discovered other areas of blood, articles of clothing, footprints, and

broken foliage, the crime scene tripled in size, eventually encompassing an

area 100 feet long by 60 feet wide. The crime scene was wet and muddy, and

there was evidence of a scuffle, with trampled bushes, hand and knee prints in

the mud, and drag marks. A large pool of blood was found about 30 feet from

the victim’s body.

The victim’s body was actually lying face down on a pile of debris.

When officers turned the body over, they discovered that the victim’s throat

had been slashed. A bloody rag was around her neck. Detective Donald R.

Cook, of the U.T. Police Department, accompanied the body to the morgue.

He observed the body after it had been cleaned and noticed that a five pointed

star in a circle, commonly known as a pentagram, had been carved onto the

victim’s chest.

Randy York, a criminal investigator with the Knoxville Police

Department, began investigating this case on January 13, the day the victim’s

body was discovered. York separately interviewed the defendant and Shipp

at the Knoxville Police Department on January 14th. Investigator York

advised [the Petitioner] of her Miranda rights, but she chose to waive them and

make a statement. [The Petitioner] explained in detail how the killing had

occurred. [The Petitioner’s] statement was tape-recorded and transcribed in

some forty-six pages. Copies of the transcription were given to the jury, and

the jurors were allowed to listen to the tape through individual headphones.

In her statement, [the Petitioner] said that she and Slemmer had been

having problems for some time. [The Petitioner] claimed to have awakened

one night to find Slemmer standing over her with a box cutter. [The Petitioner]

told Investigator York that Slemmer had been “trying to get [her] boyfriend”

and had been “running her mouth” everywhere. [The Petitioner] said that

Slemmer had deliberately provoked her because Slemmer realized that [the

Petitioner] would be terminated from the Job Corps program the next time she

became involved in a fight or similar incident.

[The Petitioner] claimed that she had not planned to kill Slemmer, but

she had instead planned only to fight Slemmer and let her know “to leave me

the hell alone.” However, [the Petitioner] admitted that she had taken a box

cutter and a miniature meat cleaver with her when she and the victim left the

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Job Corps Center. [The Petitioner] said she had borrowed the miniature meat

cleaver, but refused to identify the person who had loaned it to her.

According to [the Petitioner], she asked Slemmer to accompany her to

the Blockbuster Music Store, and as they were walking, [the Petitioner] told

Slemmer that she had a bag of “weed” hidden in Tyson Park. Though [the

Petitioner] refused to name the other parties involved in the incident, she said

the group began walking toward the U.T. campus. Upon arriving at the steam

plant on U.T.’s agricultural campus, [the Petitioner] and Slemmer exchanged

words. [The Petitioner] then began hitting Slemmer and banging Slemmer’s

head on her knee. [The Petitioner] threw Slemmer to the ground and kicked

her repeatedly. According to [the Petitioner], as she slammed Slemmer’s head

against the concrete, Slemmer repeatedly asked, “Why are you doing this to

me?” When Slemmer threatened to report [the Petitioner] so she would be

terminated from the Job Corps program, [the Petitioner] again repeatedly

kicked Slemmer in the face and side. Slemmer lay on the ground and cried for

a time and then tried to run away, but another person with [the Petitioner]

caught Slemmer and pushed her to the ground.

[The Petitioner] and the other person, who [the Petitioner] referred to

as “he,” held Slemmer down until she stopped struggling, then dragged her to

another area where [the Petitioner] cut Slemmer’s stomach with the box cutter.

As Slemmer “screamed and screamed,” [the Petitioner] recounted how she

began to hear voices telling her that she had to do something to prevent

Slemmer from telling on her and sending her to prison for attempted murder.

At this point [the Petitioner] said she was just looking at Slemmer and

“just watching her bleed.” When Slemmer rolled over, stood up and tried to

run away again, [the Petitioner] cut Slemmer’s back, “the big long cut on her

back.” [The Petitioner] said Slemmer repeatedly tried to get up and run. [The

Petitioner] recounted how Slemmer bargained for her life, begging [the

Petitioner] to talk to her and telling [the Petitioner] that if she would just let

her go, she would walk back to her home in Florida without returning to the

Job Corps facility for her belongings. [The Petitioner] told Slemmer to “shut

up” because it “was harder to hurt somebody when they’re talking to you.”

[The Petitioner] said the more Slemmer talked, the more she kicked Slemmer

in the face.

Slemmer asked [the Petitioner] what she was going to do to her, at

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which point [the Petitioner] thought she heard a noise. [The Petitioner] left the

scene to check out the surrounding area to make sure no one was around.

When she returned, [the Petitioner] began cutting Slemmer across the throat.

When Slemmer continued to talk and beg for her life, [the Petitioner] cut

Slemmer’s throat several other times. [The Petitioner] said that Slemmer

continued to talk and tried to sit up even though her throat had been cut several

times, and that [the Petitioner] and the other person would push her back on

the ground.

Slemmer attempted to run away again, and [the Petitioner] threw a rock

which hit Slemmer in the back of the head. [The Petitioner] stated that “the

other person” also hit Slemmer in the head with a rock. When Slemmer fell

to the ground, [the Petitioner] continued to hit her. Eventually [the Petitioner]

said she could hear Slemmer “breathing blood in and out,” and she could see

Slemmer “jerking,” but [the Petitioner] “kept hitting her and hitting her and

hitting her.” [The Petitioner] eventually asked Slemmer, “Colleen, do you

know who’s doing this to you?” Slemmer’s only response was groaning

noises. At this point, [the Petitioner] said she and the other person each

grabbed one of Slemmer’s feet and dragged her to an area near some trees,

leaving her body on a pile of dirt and debris. They left Slemmer’s clothing in

the surrounding bushes. [The Petitioner] said the episode lasted “for about

thirty minutes to an hour.” [The Petitioner] admitted that she and the other

person had forced the victim to remove her blouse and bra during the incident

to keep Slemmer from running away. [The Petitioner] also admitted that she

had removed a rag from her hair and tied it around Slemmer’s mouth at one

point to prevent Slemmer from talking. [The Petitioner] denied carving a

pentagram in the victim’s chest but said that the other person had cut the

victim on her chest.

After disposing of Slemmer’s body, [the Petitioner] and the other

person washed their hands and shoes in a mud puddle. They discarded the box

cutter, and [the Petitioner] returned the miniature meat cleaver to the person

at Job Corps from whom she had borrowed it. [The Petitioner] never

identified that individual. [The Petitioner] told Investigator York that the

bloodstained jeans she had worn during the incident were still in her room.

She said they were covered in mud because she had rubbed the mud from the

bottom of her shoes onto the jeans to conceal the blood. [The Petitioner] also

admitted to Investigator York that she had discarded two forms of

identification belonging to the victim and the victim’s black gloves in a trash

can at a Texaco station on Cumberland Avenue. [The Petitioner] gave

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Investigator York consent to search her room and then accompanied him to the

Job Corps Center. From there [the Petitioner] retraced her steps, describing

what had occurred on the night of the killing. Investigator York testified that

[the Petitioner] eventually directed him to the exact location where the victim’s

body was found.

After [the Petitioner’s] statement was played for the jury, the State

introduced pictures of [the Petitioner] and Shipp taken at the Knoxville Police

Department on the day the statement was given, January 14, 1995, two days

after the murder. In the pictures, both [the Petitioner] and Shipp were wearing

pentagram necklaces.

Mark A. Waggoner, an officer with the Knoxville Police Department,

testified that he had retrieved a pair of black gloves and two of Slemmer’s I.D.

cards from the Texaco station on Cumberland Avenue. These items were also

made exhibits. Another officer, Lanny Janeway, used a chart to illustrate each

of the locations where blood or evidence was found. Photographs of bloody

chunks of asphalt, blood drippings on leaves, and pools of blood were

introduced into evidence. The bloody piece of asphalt and the victim’s bloody

clothing were also introduced into evidence.

Special Agent Raymond A. DePriest, a forensic scientist employed by

the Tennessee Bureau of Investigation, testified that he had received blood

samples taken from the shoes and clothing of [the Petitioner] and Shipp.

Those items that he determined had human blood on them were sent to the

DNA unit. Margaret Bush, an employee of the Tennessee Bureau of

Investigation assigned to the DNA unit, testified that she had been unable to

perform a DNA analysis on the blood taken from the shoes of [the Petitioner]

and Shipp, but she had determined that the blood samples taken from the

clothing of both [the Petitioner] and Shipp matched the DNA profile of the

victim.

Dr. Sandra Elkins, the Knox County Medical Examiner, performed the

autopsy on the victim, who was later identified by dental records as Colleen

Slemmer, a nineteen-year-old Job Corps student. Dr. Elkins described the

victim’s body as covered with dirt and twigs. Slemmer was nude from the

waist up [and] clothed only with jeans, socks, and shoes. After removing the

victim’s clothing and cleaning the body, Dr. Elkins had attempted to catalog

the slash and stab wounds on the victim’s torso by assigning a letter of the

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alphabet. There were so many wounds that eventually Dr. Elkins decided to

catalog only the most serious and major wounds. Dr. Elkins explained that to

catalog every wound she would have been required to go through the alphabet

again, and stay in the morgue for “three days.” Eventually, Dr. Elkins said she

“basically threw up [her] hands and just said, enumerable [sic] more

superficial slash wounds on the back, arms and chest.” In addition, Dr. Elkins

said the victim had purple contusions on her knees, indicating fresh bruising

consistent with crawling, and defensive wounds on her right arm.

Dr. Elkins described the major slash and stab wounds she had cataloged

on the victim’s back, arms, abdomen, and chest. She found a six-inch gaping

wound across the middle of the victim’s neck which had penetrated the fat and

muscles of the neck. In addition, Dr. Elkins had found ten other slash wounds

on the victim’s throat. Other slash wounds were on the victim’s face, and Dr.

Elkins observed what appeared to be a pentagram carved onto the victim’s

chest. Because the area around each wound was red in appearance, Dr. Elkins

concluded that the victim’s heart had been beating when the wounds were

inflicted, and she said the victim would not have been rendered unconscious

by any of the stab or slash wounds.

Dr. Elkins determined that the victim’s death was caused by blunt force

injuries to the head. The victim had suffered multiple and extensive skull

fractures. From the autopsy, Dr. Elkins determined that the victim had

sustained a minimum of four blows to her head; two to the left side of the

head, one over the right eye, and one in the nose area. The right frontal area

of the victim’s skull had been fractured as had the bridge of her nose.

However, the major wound, labeled as injury “W”, involved most of the left

side of the victim’s head. Dr. Elkins said that this injury, caused by blunt force

to the left side of the victim’s head while the right side of the victim’s head

was against a firm surface, also had fractured the right side of the skull and

imbedded a portion of the skull into the victim’s brain. Dr. Elkins found small

divots in the victim’s skull containing black particles from an asphalt chunk

which was later determined to have been used to administer the blows.

Finally, Dr. Elkins testified that blood in the victim’s sinus cavity indicated she

had been alive and probably conscious when the injuries were inflicted.

During her testimony, Dr. Elkins utilized the victim’s skull to describe

the injuries. She testified that in order to determine the cause of death, it was

necessary to remove the head of the victim and have the skull prepared by Dr.

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Murray Marks, a forensic anthropologist at the University of Tennessee. She

explained that she had removed the top of the victim’s skull in order to remove

the brain. Embedded inside the victim’s brain as a result of the blunt force

were portions of the victim’s skull. Dr. Elkins removed those embedded

pieces and forwarded them to Dr. Marks. Dr. Marks reconstructed the skull,

fitting those loose portions into the left side area of the skull. However, those

pieces had not completely filled one area on the left side of the victim’s skull.

Dr. Elkins then showed the jury a piece of skull that had been given to her

shortly before the trial and demonstrated that it fit perfectly into the remaining

area of the victim’s skull. The piece of skull utilized by Dr. Elkins had been

taken from the pocket of a jacket which witnesses identified as belonging to

[the Petitioner].

[The Petitioner’s] jacket had been turned over to law enforcement

officials by Job Corps employees. Robert A. Pollock, orientation specialist at

Knoxville Job Corps, testified that he had spoken with [the Petitioner] on

January 13, 1995, concerning a misplaced I.D. card. After [the Petitioner] left

his office, Pollock noticed a black leather jacket hanging on the chair where

she had sat. The jacket had been hanging on the chair when Pollock locked the

room at approximately 4:00 p.m. on January 13th, and it was still there when

he returned at 7:30 a.m. on January 17th. Because he had heard over the

weekend that [the Petitioner] was a suspect in this murder investigation,

Pollock immediately turned the jacket over to the Job Corps’ Safety and

Security Captain, William Hudson. Hudson called the Knoxville Police

Department and turned the jacket over to Officer Arthur Bohanan when he

arrived a short time later.

Officer Bohanan identified the jacket, and it was introduced into

evidence. He testified that he had discovered a small piece of bone in the

inside pocket of the jacket and had immediately taken it to Dr. Marks at the

University of Tennessee. Dr. Marks testified concerning the process by which

the victim’s skull had been prepared and again demonstrated that the bone

fragment given to him by Officer Bohanan fit perfectly into the bone

reconstruction of the skull of the victim.

Following the introduction into evidence of the victim’s skull,

numerous photographs, and items of the victim’s clothing, the State rested its

case-in-chief.

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Dr. Eric Engum, a clinical psychologist, testified for the defense and

stated that he had conducted a clinical interview and had administered a battery

of tests to the [Petitioner]. Dr. Engum described [the Petitioner] as an

“extremely bright young woman.” Dr. Engum explained that [the Petitioner]

“is excellent in problem solving, reasoning, analysis, ah, can pay attention,

sustains concentration, can sequence, ah, has excellent receptive and

expressive language skills.” [The Petitioner] had a full scale IQ score of 111

which is in the 77th percentile and which was characterized as “remarkable”

by Dr. Engum since she had only completed the ninth grade. According to Dr.

Engum, the tests unequivocally showed that [the Petitioner] had no symptoms

of brain damage and that she was not insane. However, Dr. Engum concluded

that the [Petitioner] suffers from a very severe borderline personality disorder

and exhibits signs of cannabis (marijuana) dependence and inhalant abuse. He

testified that the [Petitioner] is not so dysfunctional that she needs to be

institutionalized, but instead opined that she has a multiplicity of problems in

interpersonal relationships, in controlling her behavior, and in achieving

vocational and academic goals.

During direct examination, Dr. Engum opined that the [Petitioner] had

not acted with deliberation or premeditation in killing Slemmer. Instead Dr.

Engum said she had acted in a manner consistent with his diagnosis of

borderline personality disorder; she had lost control. He explained that she had

danced around when relating the murder to Iloilo because of the emotional

release she experienced from having assured through the killing of Slemmer

that she could maintain her relationship with Shipp. When questioned about

the piece of skull found in the [Petitioner’s ]coat, Dr. Engum explained that the

[Petitioner] actually has no identity and the action of taking and displaying a

piece of Slemmer’s skull to her friends was the [Petitioner’s] way of getting

recognition, “no matter how distorted” the recognition.

On cross-examination, Dr. Engum stated that there was no question that

the [Petitioner] had killed Slemmer. He reiterated that in his opinion that once

the attack began, [the Petitioner] had literally lost control. However, Dr.

Engum admitted that [the Petitioner] had deliberately enticed Slemmer to the

park, carved a pentagram onto Slemmer’s chest, bashed Slemmer’s head

against the concrete, and beaten Slemmer’s head with the asphalt. Dr. Engum

agreed that [the Petitioner’s] act of carrying weapons with her indicates

deliberation. Finally, Dr. Engum conceded that [the Petitioner] had time to

calm down and consider her actions when she left Slemmer during the attack

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to investigate a noise and determine whether anyone else was in the area.

William Bernet, medical director of the psychiatric hospital at

Vanderbilt University, testified that he had reviewed the statements of the

[Petitioner] and Kimberly Iloilo and the reports of Dr Engum, Dr. Elkins, and

Dr. Marks. He concluded that although there were satanic elements in this

crime, the pattern was that of an adolescent dabbling in Satanism. He then

described the phenomenon of collective aggression, whereby a group of people

gather and become emotionally aroused and the end result is that they engage

in some kind of violent behavior. On cross-examination, Dr. Bernet admitted

that he had spoken neither with the [Petitioner] nor any of the other witnesses.

Dr. Bernet admitted that he did not have enough information to offer an expert

opinion as to whether [the Petitioner] acted with intent or premeditation in

killing the victim.

Based on this evidence offered during the guilt phase of the trial, the

jury found [the Petitioner] guilty of first degree murder and conspiracy to

commit first degree murder.

In the sentencing phase of the trial, the State relied on the evidence

presented at the guilt phase and presented no further proof. The defense, in

mitigation, called Carrie Ross, [the Petitioner’s] aunt as a witness. Ross

testified that the [Petitioner] had experienced no maternal bonding because she

was premature and was raised by her paternal grandmother until she died in

1988. Ross said that [the Petitioner’s] family has a history of substance abuse

and that [the Petitioner’s] maternal grandmother was an alcoholic who was

verbally abusive to [the Petitioner]. Following the death of [the Petitioner’s]

paternal grandmother, [the Petitioner] was shuffled between her mother and

father. According to Ross, [the Petitioner’s] mother’s home was very dirty.

[The Petitioner’s] mother set no rules for her, and on the occasions that [the

Petitioner] had visited Ross, the [Petitioner] had behaved as a “little girl,”

playing Barbie and dress-up with her eleven-year-old cousin.

On cross-examination, Ross admitted that she had previously described

[the Petitioner] as a pathological liar and that she had been afraid to allow [the

Petitioner] to associate with her own children. Ross also admitted that [the

Petitioner] had been out of control since she was twelve years old.

Glenn Pike, the [Petitioner’s] father, testified that he had kicked the

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[Petitioner] out of his house twice, the last time in 1989. He admitted that he

had signed adoption papers for the [Petitioner] prior to her eighteenth birthday.

On cross-examination, he admitted that he had forced [the Petitioner] to leave

his home in 1989 because there had been an allegation that the [Petitioner] had

sexually abused his two-year-old daughter from his second marriage.

According to her father, [the Petitioner] had been disobedient, dishonest, and

manipulative when she had lived with him.

The [Petitioner’s] mother, Carissa Hansen, a licensed practical nurse,

testified that [the Petitioner] had lived with her 95 percent of the time since her

paternal grandmother’s death. Hansen admitted that she had smoked

marijuana with the [Petitioner] in order to “establish a friendship.” Hansen

related that the [Petitioner] had attempted suicide by taking an overdose

shortly after the death of her paternal grandmother. Hansen also testified that

one of her boyfriends had whipped [the Petitioner] with a belt. Hansen had the

boyfriend arrested.

On cross-examination, Hansen admitted that [the Petitioner’s] behavior

had been problematic for years. The [Petitioner] had begun growing marijuana

in pots in her home at age nine. After threatening to run away from home and

live on the street, [the Petitioner] had been allowed to have a live-in boyfriend

at age fourteen. Hansen admitted that [the Petitioner] had wielded a “butcher-

knife” against the boyfriend, who had been arrested for whipping her. Hansen

also said [the Petitioner] had lied to her and stolen from her on numerous

occasions and had quit high school. Hansen conceded that [the Petitioner] had

been out of control since she was eight years old. Following Hansen’s

testimony, the defense rested its case.

In rebuttal, the State presented the testimony of Harold James

Underwood, Jr., a University of Tennessee police officer who was assigned to

secure the crime scene on January 13, 1995. Underwood testified that the

[Petitioner] came to the scene with three to five other females between four

and five p.m. that day. [The Petitioner] asked Underwood why the area had

been marked off and questioned him concerning the identity of the victim and

whether or not the police had any suspects. None of the other females spoke

during the fifteen minutes the group was there. Underwood said [the

Petitioner] appeared amused and giggled and moved around. Underwood

noticed that [the Petitioner] was wearing an unusual necklace in the shape of

a pentagram. After learning at roll call on January 14, 1995, that the victim of

the murder had a pentagram carved on her chest, he reported [the Petitioner’s]

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strange behavior and unusual necklace to his superior officers.

Based on the proof submitted at the sentencing hearing, the jury found

the existence of the following two aggravating circumstances beyond a

reasonable doubt: (1) “[t]he murder was especially heinous, atrocious or cruel

in that it involved torture or serious physical abuse beyond that necessary to

produce death;” and (2) “[t]he murder was committed for the purpose of

avoiding, interfering with or preventing a lawful arrest or prosecution of the

defendant or another.” T.C.A. § 39-13-204(i)(5) and (6) (1997 Repl.). In

addition, the jury found that the State had proven that the aggravating

circumstances outweighed any mitigating circumstances beyond a reasonable

doubt. As a result, the jury sentenced the [Petitioner] to death by electrocution.

The trial court entered a judgment in accordance with the jury’s verdict and the

Court of Criminal Appeals affirmed.

Pike, 978 S.W.2d at 907-14.

Proof at the Post-Conviction Evidentiary Hearing

At the post-conviction hearing, the Petitioner presented numerous witnesses in support

of her case. First, Carissa Henson, the mother of the Petitioner, testified that, at the time of

the Petitioner’s arrest, Ms. Henson had been living in Cedar Grove, North Carolina. She

stated that lead counsel represented the Petitioner and that she had spoken with him on the

telephone and had met with him in Knoxville. Ms. Henson recalled meeting with lead

counsel on only two occasions prior to trial, having one meeting in Knoxville and one

meeting in Raleigh, North Carolina. However, Ms. Henson testified that she also spoke with

Dr. Diana McCoy and Barry Rice, members of the defense team. Further, she explained that

she had lunch with lead counsel and the other members of the defense team during the trial.

Ms. Henson testified that, during the guilt phase of the trial, she was the only family

member present. However, during the penalty phase, Ms. Henson’s husband, Gerard

Hensen; the Petitioner’s biological father, Glenn Pike; and the Petitioner’s aunt, Carrie Ross,

were also present. Ms. Henson, Glenn Pike, and Carrie Ross testified during the penalty

phase. Ms. Henson testified that she did not learn that she was going to testify until the

second week of the trial. She stated that she was advised that “they were going to make the

family look bad because that would help [the Petitioner’s] case.” Ms. Henson explained,

“[Lead counsel and co-counsel] told us to make it look as bad as we could, to exaggerate

anything bad that was wrong with our family because the jury would – the jury would look

at [the Petitioner] and think, ‘The poor girl, she grew up in a family like this; no wonder she

turned out the way she did.’ So that’s what we did.”

13

Ms. Henson testified that she married Glenn Pike in 1975, and that the Petitioner was

born in March 1976. Ms. Henson stated that the Petitioner had an older half-sister, Alicia.

She testified she and Glenn Pike were married for two years, were divorced for a year, and

then were remarried for two more years. The family lived in Beckley, West Virginia.

Ms. Henson, a licensed practical nurse, explained that, while pregnant with the

Petitioner, she worked the evening shift on a psychiatric unit. One evening, an alcoholic was

admitted with delirium tremens. The patient “threw [Ms. Henson] through some double

swinging doors and [she] landed on a supply cart. . . .” Ms. Henson began leaking amniotic

fluid after this incident and was not permitted to work. Ms. Henson testified that the

Petitioner was born prematurely via Caesarean section. She was born with a condition

known as hyaline membrane disease where the lungs are not fully developed and had

bilateral hip dysplasias, which occurs when the hip sockets are not fully formed. The

Petitioner was taken to Charleston Area Medical Center neonatal intensive care unit where

she remained hospitalized for two weeks.

In 1982, Ms. Henson moved to North Carolina but returned to West Virginia for two

years to assist her ailing mother. After Ms. Henson’s mother died in 1985, she moved back

to North Carolina. Ms. Henson explained that her move was due to her marriage to Danny

Thompson.

Ms. Henson testified that “during their growing-up years,” the Petitioner and her half-

sister, Alicia, spent a lot of time with their grandmother. She explained that when they

moved to North Carolina, both girls were “really unhappy” and that both girls “ended up

going back to West Virginia.” The Petitioner moved back to North Carolina when she was

in the fourth or fifth grade.

Ms. Henson testified that her oldest daughter, Alicia, got pregnant when she was

fifteen years old. After the baby was born, Alicia and her fiance, Bryan Hammond, moved

to North Carolina and lived with Ms. Henson. Alicia, her baby, and Hammond lived in Ms.

Henson’s home for two years. Ms. Henson testified that she was separated from Danny

Thompson during this time period.

Ms. Henson testified that she had a relationship with Steve Kyaw when the Petitioner

was twelve years old. She stated that the Petitioner never got along with Steve Kyaw. On

one occasion, they went to court because Steve Kyaw “punched” the Petitioner. Ms. Henson

denied knowledge of any other incidents of abuse by any of the Petitioner’s other stepfathers.

14

Ms. Henson later married Gerard Henson. After this marriage, Ms. Henson learned

that the Petitioner was pregnant. Ms. Henson testified that she also learned that the Petitioner

was using cocaine. Ms. Henson told the Petitioner that, if she had the baby, she would have

to get a job. Ms. Henson testified that the Petitioner had an abortion. She stated that did not

know the identity of the baby’s father. Ms. Henson also testified that she had smoked

marijuana with the Petitioner and her friends on occasion when the Petitioner was seventeen

years old. Ms. Henson denied that the Petitioner was pregnant at this time and denied that

she encouraged the use of marijuana to develop the Petitioner’s appetite.

Ms. Henson testified that, when the Petitioner was in the third grade, the Petitioner

took an overdose of Tylenol. The Petitioner was placed in outpatient psychiatric treatment,

and Ms. Henson was advised that the Petitioner was “depressed.” The psychiatrist prescribed

medicine that “made [the Petitioner] feel worse instead of better so she didn’t take them.”

The therapist agreed to allow the Petitioner to discontinue the medication and eventually

discharged her from treatment. However, Ms. Henson added that “over the course of the

years, we saw therapists, psychologists after that.”

Ms. Henson testified that the Petitioner reported being raped after school one day.

This incident occurred during the same time period as the Petitioner’s suicide attempt. Ms.

Henson stated that, after being informed by the school about this incident, she did not

observe anything unusual about the Petitioner. Ms. Henson recalled that Claude Davis was

arrested for the incident, but the Petitioner was not able to identify him in the lineup so he

was not charged. Ms. Henson also testified that the Petitioner reported being sexually

molested when she sixteen years old. Ms. Henson stated that the Petitioner said she was

walking to the store when a man grabbed her, pulled her into the woods, and sexually

molested her. Ms. Henson could not recall whether this incident involved penetration.

Ms. Henson testified that the Petitioner held various jobs, including positions at

Waffle House and a steak house. She stated that the Petitioner dated a homeless young man,

Brian Wilson, who lived at the Henson residence for a period of time. Ms. Henson stated

that Brian Wilson did not live with them long because he was unable to obtain employment

and was very sloppy. Ms. Henson and her husband made him leave. When Brian Wilson

moved out of their home, the Petitioner moved out as well. The Petitioner and Brian Wilson

rented a trailer together.

Ms. Henson testified that the Petitioner repeatedly ran away from school and home

and that the Petitioner skipped school habitually. Ms. Henson testified that the Petitioner

lived in a group facility on two different occasions. When the Petitioner was in the tenth

grade, she was sent to Swannoa, a juvenile facility, for “about a year.” After her return from

Swannoa, the Petitioner became interested in the Job Corp Program. The Petitioner advised

15

her mother and stepfather that the Job Corp Program would enable her to get her GED and

would train her to be a nursing assistant. Ms. Henson and her husband decided to allow the

Petitioner to participate in the Job Corp Program, and the Petitioner arrived there during the

fall of 1994.

Ms. Henson testified that she visited the Petitioner at the Job Corp Program, meeting

several of the Petitioner’s friends and touring the school and the dormitory. Ms. Henson

described the dormitories as “dirty.”

There was graffiti painted on the walls. There was blood on the walls, and [the

Petitioner] told me that there had been a boy stabbed in the bathroom like the

weekend before, I think, and the blood was still there. And that’s when we

tried to talk [the Petitioner] into coming home with us, but she wanted to stay.

Ms. Henson reported that, when the Petitioner was home for Christmas, she told her that a

girl had been threatening her. The Petitioner told Ms. Henson that this girl would be

“hovering over her bed at night with a knife or something threatening her.” The Petitioner

also told Ms. Henson that Tadaryl Shipp was her friend and would protect her. Ms. Henson

testified that the Petitioner was not afraid to go back to the Job Corp Program.

On cross-examination, Ms. Henson did not deny that the Petitioner’s life had been

traumatic. She did deny, however, that there was an incident in which the Petitioner alleged

that she had been sexually abused and that Ms. Henson had observed the blood on the

Petitioner’s person. Ms. Henson testified that her father, Chris Fotos, owned a meat packing

plant and that the petitioner would have seen animals being slaughtered and processed.

Ms. Henson related an incident during which a man named Kenny Clyde telephoned

her and told her that he was going to rape her. Ms. Henson’s husband searched for him but

could not find him. The Petitioner and a friend found him in the McDonald’s parking lot and

“beat him up with a stick.” Ms. Henson did not dispute that the Petitioner was “always in

some sort of trouble.” She also characterized the Petitioner as “having had a bad temper.”

Ms. Henson described their home as a “continuous battle zone.” She added that the

Petitioner was notorious for lying. Regarding the incident with Steve Kyaw, Ms. Henson

admitted that the Petitioner had chased Steve Kyaw with a butter knife. Ms. Henson related

that the Petitioner’s friend, Breanna, moved in with them for a period of time. Ms. Henson

stated that Breanna, who came from an abusive home, and the Petitioner argued about

something and that the Petitioner “beat Breanna up and pushed her down the stairs.” After

this altercation, Breanna moved out of their home.

Ms. Henson reported that the Petitioner brought some crystals home with her on her

16

Christmas break from the Job Corp Program. The Petitioner told her that Tadaryl Shipp

“could make the clouds move and make the sky open up” with the crystals. Ms. Henson

could not recall making a previous statement affirming that the Petitioner had told her that

she was involved in a WICCA group. Ms. Henson admitted that she was aware that the

Petitioner had a tattoo of the devil on her chest; however, she described the tattoo as a “cute

little cartoon” and not as a wicked devil.

Gerard Henson, the Petitioner’s stepfather, testified that he married Carissa Henson

in 1992. Mr. Henson testified that entering the Job Corp Program was the Petitioner’s idea.

Mr. Henson and his wife visited the Petitioner at the Job Corp, but he was not permitted to

enter the dormitory because he was a male. Mr. Henson described the Petitioner as “open

and friendly.” Mr. Henson stated that he did not testify at the Petitioner’s trial.

Mr. Henson denied making statements that the Petitioner was out of control or that

the Petitioner had pushed her friend Breanna down the stairs. He admitted that he made a

statement that the Petitioner liked the attention she received as a result of her behavior.

Carrie Ross, the Petitioner’s aunt, stated that she testified at the Petitioner’s 1996 trial.

At that time, Ms. Ross was employed as an intensive care unit nurse. She was currently

certified in neonatal intensive care. Ms. Ross testified that, at the time of the Petitioner’s

birth, she worked in the pathology department as a histology technician and had not yet

attended nursing school. In 1990, Ms. Ross earned her bachelor of science degree in nursing.

When questioned about the circumstances of the Petitioner’s birth, Ms. Ross stated that the

Petitioner was born via caesarean section and had respiratory arrest. The Petitioner was

moved to a neonatal intensive care unit at a different hospital where she was placed on a

ventilator for three to four days.

Ms. Ross testified that lead counsel visited her at work to ask her for background

information on the Petitioner. Ms. Ross also met with Dr. McCoy a few months before trial.

Ms. Ross stated that she was not subpoenaed as a witness but that “[lead counsel and co-

counsel] suggested sort of that I be here.”

Ms. Ross stated that she grew up in Beckley, West Virginia, and confirmed that her

parents were Chris and Zola Fotos. She further confirmed that she had an aunt named Norma

Privett. Ms. Ross stated that Norma Privett had often babysat her and her sister, Carissa

Henson. Ms. Ross described Norma Privett as “abusive.” She explained:

She was always very nice to us when my mother was around. But as soon as

she was left to babysit us, she would do things that . . . she would pull me

around by the hair . . . literally, drag me through the house by my hair and very

17

abusive personality, yes.

Ms. Ross testified that Norma Privett also babysat the Petitioner and her sister, Alicia.

Eventually, Norma Privett stopped babysitting the Petitioner because Privett “was very

abusive” and because Ms. Ross informed her sister of the abuse she suffered as a child.

Chris Fotos, the father of Ms. Ross and Ms. Henson, owned a butcher shop and

slaughter house. Ms. Ross and her sister spent a lot of time at their father’s business, and this

was not considered unusual. Ms. Ross testified that her father was addicted to Talwin for a

long period of time. She stated that, while on the Talwin, her father “had no concept of who

he was, where he was. He was just out of touch with reality.” Ms. Ross related that he once

pulled a gun on her. She related that, if someone “crossed” her father, “he would sort of

bluster and threaten to kill them.” Ms. Ross also related that her father was investigated by

the Internal Revenue Service. Related to that investigation, her father took a gun into a

federal courtroom and told the judge that he had the gun “to unseat him.”

Ms. Ross testified that her mother was an alcoholic. She explained that her mother

was very loving and nurturing toward Alicia. However, her mother resented having the

Petitioner at her home. Ms. Ross explained that Alicia was the first grandchild and that,

when the Petitioner was born, her mother’s alcoholism was getting worse and she was

drinking more. She explained that her mother was angry at Carissa for becoming pregnant

with the Petitioner.

Ms. Ross testified that her sister, Carissa Henson, also threatened to harm people. She

related that her sister would tell others that “she was going to whip their – butt.” Ms. Ross

explained that it was the accepted “cultural thing” that violence would solve “everything,”

“[t]he Hatfields and McCoys.” Ms. Ross related that, when they were teenagers, she and her

sister would sneak into bars, smoke marijuana, skip school, and “do whatever we could find

to do, drugs, alcohol, whatever.” Ms. Ross stated that she would now describe her sister as

an alcoholic. She also described her sister as “very immature and irresponsible.” Ms. Ross

testified that she raised Alicia during the time that her sister was married to Danny Thompson

because he did not like children. However, Ms. Ross stated that she could not afford to raise

both Alicia and the Petitioner. Ms. Ross commented that “[Carissa’s] children were never

[Carissa’s] first priority.” She explained that her sister put “men” first and that Carissa

Henson had been married five times.

Ms. Ross testified that “there was always a problem with [the Petitioner], because [the

Petitioner] didn’t seem to understand when you would tell her things.” Ms. Ross stated that

the Petitioner was a very difficult child to watch. She stated that the Petitioner “never could

understand what the word ‘no’ meant.” Ms. Ross testified that the Petitioner “had a very flat

18

affect,” explaining that “she showed little or no emotion.” Ms. Ross recalled an incident

when the Petitioner was in the first grade and drew a picture of a penis. Ms. Ross related that

the Petitioner’s teacher reported that the Petitioner had been drawing pornographic pictures

in class and that there was a recommendation that the Petitioner see a counselor.

Ms. Ross testified that the entire family thought that the Petitioner’s joining the Job

Corp Program was a good way for her to straighten out her life. However, Ms. Ross stated

that, during the Petitioner’s trip home for Christmas, the Petitioner indicated to her that she

was afraid to return to the Job Corp Program. The Petitioner remarked, “Well, I want

everybody to be proud of me, but people get hurt there.” Ms. Ross stated that the Petitioner’s

family would not have approved of the Petitioner’s relationship with Tadaryl Shipp because

he was African-American.

Dr. Jonathan Henry Pincus, an expert in neurology, testified that he was retained to

examine the Petitioner in March 2001. Dr. Pincus reviewed her history and data, which was

given to him. Dr. Pincus identified the components of his examination as: (1) the Petitioner’s

history; (2) a physical neurological examination; (3) neuropsychological testing; (4) tests of

brain functions including an EEG; and (5) tests of the brain’s structure, including an MRI.

Dr. Pincus also conducted a physical examination of the Petitioner. Dr. Pincus reported that

the physical examination was normal, “but there were certain abnormalities that I think can

only be characterized as minor.” Specifically, Dr. Pincus stated that “there was generalized

hyperreflexia, that is to say her deep tendon reflexes were too active.” He also noted that

“[t]here was spooning of her outstretched hands,” explaining that “her fingers extended at

the metacarpal phalangeal joint in that manner.” He noted that this was a “sign that there is

something not quite right about the basal ganglia . . . which are gray matter masses at the

center of the brain that influence movement and to some degree thinking.” The Petitioner

also could not hold her fingers still. Dr. Pincus remarked that this also signaled that the basal

ganglia were not working properly. Dr. Pincus testified that “there was a positive

nuchocephalic reflex.” He explained that this meant that “there is an interruption of fibers

that are coming from the motor area – supplementary motor areas of the brain stem, possibly

at the level of the basal ganglia. . . .” Based on these observations, Dr. Pincus concluded that

“there was subcortical dysfunction involving the basal ganglia and possibly the thalamus.”

Dr. Pincus further noted that the MRI “showed an abnormality that was just lateral to the

ventricle in the frontal lobe.” Dr. Pincus stated that “my physical examination with its minor

abnormalities, the MRI, and the EEG are all pointing to the same place.”

Dr. Pincus testified that the MRI revealed a small heterotopia. He explained that the

brain is formed during fetal development. A heterotopia is caused by clumps of gray matter

being located in the wrong part of the brain. He attributed the heterotopia to “some maternal

factor. The mother was exposed to radiation or she was ill.” He stated that the most

19

common cause of the heterotopia was a mother’s exposure to alcohol. Dr. Pincus testified

that mental retardation and epilepsy are associated with a heterotopia. Dr. Pincus related that

this affected the frontal lobes and explained that a person could have an IQ of 120 or 130 and

be a “social imbecile” due to frontal lobe disease. He stated that the Petitioner’s “frontal

lobes [are not] put together properly.” Dr. Pincus related that it was significant that the

Petitioner’s heterotopia was visible on the MRI because most are invisible. He stated that

an important feature of the frontal lobes is “moral and ethical standards.” He explained that

“human beings are not born with an ethical and moral sense.” “[You are] born with a

capacity to develop one, but they must be exposed to the right influences in order for that to

happen.”

Dr. Pincus stated that the Petitioner had previously been diagnosed with epilepsy but

that she no longer had epilepsy. He added that “people outgrow epilepsy.” He explained

that, at birth, the brain is almost completely unmyelinated. Myelin is a fatty substance that

insulates nerves. He stated that the last part of the brain to become myelinated is the frontal

lobe and that does not happen fully until a person’s early twenties. Dr. Pincus related that

an MRI was done on April 2, 2001, and the EEG was done when the Petitioner was fourteen

months old. He stated that based on his assessment, the Petitioner had a damaged brain. Dr.

Pincus testified that the fact that Dr. Engum had previously found that there was no brain

damage did not negate or contradict his findings. He explained that the area in which the

Petitioner’s heretopia was located was “notoriously difficult to test.”

Dr. Pincus stated that a common finding in his examination of convicted murderers

is the “big triumvirate of brain damage, history of abuse, and presence of mental illness.”

Dr. Pincus stated that the Petitioner had a history of abuse. He explained that the Petitioner

self-reported abuse, that there were scars present on her body, and that verification was made

through interviews with the Petitioner’s family members. Dr. Pincus also reported that the

Petitioner had been raped by a neighbor. The incident involved the neighbor inserting sticks

into her vagina and having his dog lick her genitals. The Petitioner reported the incident to

her sister and mother, but neither believed her. Dr. Pincus stated that the Petitioner reported

“boxes of pornography, sadistic pornography” in the home. She reported incidents of

“wrestling” with her mother’s boyfriend when she was thirteen or fourteen years old. Dr.

Pincus stated that the Petitioner’s mother acknowledged that there were pornographic

videotapes but explained that “[a]ll men have those.” The Petitioner reported an incident

where her mother’s boyfriend “twist[ed] her nipples painfully,” and, in response, the

Petitioner “twist[ed] his scrotum. . . .” The Petitioner’s mother denied that this happened.

According to the Petitioner, this same boyfriend “slugged [the Petitioner] in full view of her

neighbor.” Criminal charges were filed as a result of this incident but were later dropped as

a result of a negotiation that the boyfriend would move out of the home. Dr. Pincus stated

that the Petitioner reported yet another rape when she was seventeen. The Petitioner reported

20

that Kenny Clyde began stalking her and later sexually assaulted her. The Petitioner

searched for Kenny Clyde and beat him with a stick. Dr. Pincus noted that this incident

should have been a red flag that the Petitioner could not control herself. Dr. Pincus related

that this incident was a sign that the Petitioner’s frontal lobes were not working.

Dr. Pincus stated that he found evidence to confirm Dr. Kenner’s diagnosis of bipolar

disorder. Specifically, he stated:

[T]here’s spending. She was working at one point two full-time jobs and a

part-time job, and what did she spend money on? Candles, trinkets, shoes.

She didn’t have food! She would go days without eating. She would see other

people eating. Sometimes the mother’s boyfriend would come in with food

and eat it with the mother and not give it to her. She had no appetite. That’s

what happens during periods of mania.

She would go for two or three or four days without sleeping or sleeping

[ninety] minutes here and [ninety] minutes there, sleeping on the ground,

sleeping on the street. And it didn’t bother her. Didn’t wash . . . she used

drugs; she used alcohol. Those are signs of bipolar. She had periods of lots

of sexual activity, and then long periods when she would be depressed of none,

where she couldn’t get out of bed for [fourteen to eighteen] hours a day and

just would sit there.

She lost a lot of school time because of depression. . . . Her weight fluctuated.

She’s been from 92 to 170. . . . That kind of weight fluctuation occurs in

people with bipolar disorder.

....

And she has periods when she can’t get out of bed, and she can’t move, and

she’s [fourteen to eighteen] hours a day in bed. And she’s feeling crying, and

she wants – is suicidal, two suicide attempts by over dosage. And a family

history . . . it is a hereditary disease, bipolar illness.

Oh my God, that family history on the mother’s side is spectacular! Maternal

grandfather . . . was addicted to Talwin by injection. . . . The [grand]mother .

. . was no great shakes either. She was an alcoholic who grew marijuana, died

of cirrhosis of the liver.

And there’s a maternal great aunt, Norma, who attempted murder. . . . [A]nd

21

there was a great aunt, Geraldine, who God spoke to. Maternal great . . . great

aunt, Nola, who went to a mental hospital.

Dr. Pincus stated that the Petitioner’s sister, Alicia, was not brain damaged, although

she suffered through the abuse. He stated that one of the components was not enough to be

dangerous. He explained that if you put these things together, i.e., the abuse, the brain

damage, and the mental illness, you have a dangerous person.

Next, Dr. Pincus discussed the events preceding January 12, 1995. He explained that

the Petitioner had not slept well for the three days prior to the 12th. The Petitioner was in

an “excited period” and was very irritable and angry. The victim had reportedly been calling

the Petitioner and saying that the Petitioner was a whore and a slut. Dr. Pincus stated that

it was intolerable for the Petitioner to hear these words. Dr. Pincus opined that the Petitioner

did not start out wanting to kill the victim. In his view, the Petitioner “lost control of herself

and she did want to kill her and did do it.” Dr. Pincus concluded that:

[the Petitioner] was . . . under the influence of a mental disease and defect that

prevented her from being able to consider what she was doing, and to prevent

herself from giving in to this impulse of killing.

He stated that the origin of the mental disease occurred in utero and that the bipolar illness

was hereditary. Finally, he stated that the Petitioner could not control the abuse. Dr. Pincus

stated that evidence of all three of these factors: abuse, mental illness, and brain damage,

were present in 1995.

On cross-examination, Dr. Pincus conceded that Dr. Eric Engum testified at the

Petitioner’s trial that there was no brain damage to the Petitioner. Dr. Engum had been

retained by trial counsel. Dr. Pincus stated that Dr. Engum’s diagnosis was wrong and that

he had failed to obtain an MRI. Dr. Pincus stated that the trial attorneys may have been

incompetent but that Dr. Engum was “just wrong.”

Alicia Wills, the Petitioner’s half-sister, testified that she and the Petitioner have the

same mother but different fathers. When the Petitioner was born, Ms. Wills began spending

more time with her grandmother and grandfather. She explained that she was raised by her

maternal grandmother, Zola Fotos. Ms. Wills loved her grandmother and knew that her

grandmother loved her. She explained, however, that her grandmother physically disciplined

the Petitioner. Ms. Wills also testified that her grandmother “drank every day,” stating that

she would start the day with whiskey in the morning. However, Ms. Wills explained that she

was never aware that her grandmother was drunk. Ms. Wills stated that her grandmother’s

death impacted her tremendously. Ms. Wills explained that she felt that no one else cared

22

for her the way her grandmother did. Ms. Wills stated that, at this point in her life, she

started getting into fights and started using drugs. Ms. Wills testified that she was twelve or

thirteen years old when her grandmother died.

Ms. Wills described her Grandfather Fotos as “fun.” She stated that he would give

the Petitioner and her candy and that he spoiled them. She denied any allegation that

Grandfather Fotos mistreated the Petitioner. She conceded that he was a butcher and owned

a slaughter house and that they visited the slaughter house. Ms. Willis stated that she did not

feel that she had any emotional scars from witnessing the animal processing.

Ms. Wills testified that her mother announced one day that she was marrying Danny

Thompson and that they were all moving to North Carolina. Ms. Willis stated that her new

stepfather was “mean to us.” She denied that he ever physically harmed her but stated that

he would get fast food and eat it in front of them without offering them any. Ms. Wills stated

that she was angry at her mother for “shack[ing] up with” this man and for pushing her own

children to the side. Ms. Wills was also angry about the move to North Carolina, where she

felt that she did not fit in. Ms. Wills testified that she “became completely depressed and

extremely angry.” Ms. Wills stated that her mother placed her own pleasures and happiness

before that of her children.

Ms. Wills also testified regarding her parents’ marriage. She stated that, during the

marriage, her father would lose his temper and hit her mother. However, she explained that

“[her mother] was running around having affairs with men while she was supposed to be at

church. . . .” Ms. Wills also described her mother as an alcoholic. She stated that “parties

were a big part of our life” and that her mother let her take “sips of her beer.” On one

occasion when Ms. Wills was in the second grade, her mother packed her lunch for school

and included a beer. She stated that she could not recall ever sitting on her mother’s lap or

getting a hug from her mother. Ms. Wills testified that her mother’s treatment of the

Petitioner was probably similar, although she described their relationship as closer than her

own with her mother. She described the relationship between the Petitioner and her mother

as more of a friendship than a mother-daughter relationship. She added that she “always felt

like [she] was the mother. . . .” Ms. Wills testified that she never saw the Petitioner’s father,

Glenn Pike, physically discipline her.

Ms. Wills testified that, when she was in the fifth grade, she and the Petitioner went

to the mall and spent all of the child support money Glenn Pike had given to the Petitioner

to give to her mother. She stated that, during the shopping spree, she had shoplifted one pair

of earrings. Ms. Wills stated that the Petitioner, who was approximately six years old, had

shoplifted at least twenty pieces of jewelry. Ms. Wills further testified that the Petitioner

read horror stories, like Stephen King, when she was very young.

23

Ms. Wills stated that she liked to watch her mother and her friends get ready to go out

to parties. She stated that this appealed to her because she looked forward to living a similar

lifestyle. Ms. Wills admitted that she started smoking marijuana when she was twelve years

old. Ms. Wills became pregnant at age fifteen and stopped smoking marijuana until she was

seventeen.

Ms. Wills described the Petitioner as having a big heart and stated that the Petitioner

“loves people.” She added that the Petitioner had dreams of becoming a nurse. Ms. Wills

testified that the Petitioner was “very messy” and would sometimes have a “blank look.”

Ms. Wills stated that, in retrospect, she could see that “there were things that were not normal

about [the Petitioner].” Specifically, she acknowledged that the Petitioner would have

episodes of sudden rage. Ms. Wills testified that the Petitioner loved Ms. Wills’ son Keith

and would act like his mother. Ms. Wills was unaware of any allegations that the Petitioner

had abused her son. Ms. Wills stated that the Petitioner always wanted to give Keith a bath

but that she was not comfortable with the Petitioner giving her son a bath. Ms. Wills testified

that any statement that Dr. McCoy had made regarding allegations of the Petitioner’s sexual

abuse of Keith were untrue and unfounded.

Ms. Wills testified that she was aware that the Petitioner was “drawing dirty pictures

at school at a very young age.” However, she stated that she had no knowledge as to whether

the Petitioner had been sexually abused. Ms. Wills stated that she did not believe the

Petitioner’s accusations that a man had raped her.

Ms. Wills denied any allegation that she had abused the Petitioner. Ms. Wills

specifically denied that she intentionally burned her sister with a curling iron. She explained

that the girls were playing beauty shop when she accidentally burned the Petitioner with the

curling iron. She further explained that the curling iron incident occurred when the Petitioner

was three or four years old. Ms. Wills also denied slamming the Petitioner’s fingers in a

door. Ms. Wills denied holding the Petitioner down and scraping the bottom of her foot with

an electric plug.

Ms. Wills testified that she was not subpoenaed by either the State or the defense team

for the Petitioner’s trial. She indicated that she had anticipated being called as a witness

because the Petitioner was her sister. Ms. Wills testified that, in her opinion, the Petitioner

“never had a [fair] shake from the day she was born.” Ms. Wills stated that, at the time of

the trial, she was living in Dallas, Texas, and that she currently had “a great life.” She owned

her own business and had been married for twelve years. She stated that she had “peace

inside.”

24

Emil Glenn Pike, the Petitioner’s father, stated that he testified during the 1996

penalty phase of the Petitioner’s trial. He testified that he had been interviewed by Dr. Diana

McCoy prior to his testimony. Mr. Pike stated that he was born and raised in Beckley, West

Virginia. He related that his father had worked as coal miner and a plumber and that his

mother was a housewife. He testified that his parents disciplined him by using a switch or

a belt. As a result of this discipline, Mr. Pike “swore to never . . . put a switch to my

children.” Mr. Pike testified that his father died when he was thirteen years old. After his

father’s death, the family moved to Indiana to find work. Mr. Pike testified that, in 1966,

he was drafted and sent to Vietnam, where he contracted hepatitis and was wounded. Mr.

Pike re-enlisted in the service in 1973, because he could not find a job in West Virginia. Mr.

Pike testified that, during his time in Vietnam, he was exposed to agent orange. He was

provided information that his exposure may cause birth defects in children, specifically, spina

bifida.

Mr. Pike testified that in 1974, he married Joanne Lily. After their divorce, he married

the Petitioner’s mother in 1975. He stated that his social life with the Petitioner’s mother

involved drinking alcohol. Mr. Pike testified that the Petitioner’s mother got pregnant soon

after their marriage. After his discharge from the service, he returned to Beckley, West

Virginia, and opened a motorcross race track on the family farm. Mr. Pike recalled the day

the Petitioner was born. He stated that the Petitioner’s mother had a caesarean section and

that the Petitioner had hyaline membrane disease and was taken to a hospital in Charleston.

Mr. Pike reported that he began working road construction and was often away from

home. When he learned that the Petitioner’s mother was seeing other men during this time,

the couple divorced. However, after the Petitioner’s mother attempted suicide, the couple

remarried. Afterward, the Petitioner’s mother resumed her previous ways of partying, and

the couple grew apart.

Mr. Pike related that his mother would often babysit the Petitioner. According to Mr.

Pike, his mother loved the Petitioner and spent a lot of time with her. He testified, however,

that his wife’s mother did not appear to like either him or the Petitioner. He presumed that

his mother-in-law felt that he was of a lower social class.

Mr. Pike stated that he would use either his hand or a belt to discipline the Petitioner.

At most, he struck her with the belt three or four times in the same day. Mr. Pike denied that

he ever made the Petitioner remove her clothing for the spankings and stated that any scars

on the Petitioner’s back were not the result of any spankings he gave her. He recalled that,

after the Petitioner’s mother married Danny Thompson, she contacted him regarding the

Petitioner’s behavior. The Petitioner’s mother informed Mr. Pike that she was having

disciplinary problems with the Petitioner and asked that he try to take care of her. He stated

25

that the Petitioner would come live with him for a while, but then he would start having

problems with the Petitioner and she would be returned to her mother.

Mr. Pike testified that he later married Kathleen Almond and that they had two

children together. He confirmed that there had been an allegation that the Petitioner had

sexually abused his younger daughter. Mr. Pike stated that his wife had told the therapist she

was seeing that his younger daughter had reported that the Petitioner had “licked her” and

had pointed “towards her belly or towards her genitals and said, ‘There?’.” The therapist told

Mr. Pike’s wife that the Petitioner was not to be around the younger daughter. The Petitioner

denied any wrongdoing, and Mr. Pike stated that he had never observed any inappropriate

behavior between the Petitioner and his other children. He stated that he did not believe the

Petitioner had molested his younger daughter.

Mr. Pike stated that he was aware that the Petitioner spent time at a juvenile facility

in North Carolina. He further stated that he did not visit her during her time at that facility.

Mr. Pike testified that he was not aware that the Petitioner was entering the Job Corp

Program until after she had already entered the program.

Mr. Pike denied that he had previously described the Petitioner as a manipulator but

conceded that he had described her as a liar. He also admitted that on one occasion, the

Petitioner had forged her teacher’s name.

Faye Johnson Guy testified that she was a neighbor of the Petitioner’s family and that

she also worked with the Petitioner’s mother. Ms. Guy testified that she frequently spent

time with the Petitioner and her family on a social basis and observed that the Petitioner’s

mother, Carissa, abused alcohol. Ms. Guy related that Carissa was married to Danny

Thompson when they first met. She stated that she met Danny Thompson only once or twice

and that he was drunk and appeared violent on those occasions. After Carissa left Danny

Thompson, she moved close to Ms. Guy. Ms. Guy stated that Carissa began seeing other

men shortly after she separated from Danny Thompson. She stated that Carissa was involved

with a married man. Ms. Guy also confirmed that Carissa dated a man named Steve Kyaw

and that shortly after she began seeing him, Kyaw moved into her home.

Ms. Guy testified that she often included the Petitioner in her family’s outings because

the Petitioner was often left home alone. She stated that the Petitioner told her that she had

access to pornographic movies that belonged to either her mother or to Steve Kyaw. Ms.

Guy had also observed the Petitioner watch horror movies with her mother, Carissa. Ms.

Guy stated that she had told Carissa that she felt that it was inappropriate for the Petitioner

to be watching these horror movies. Ms. Guy recalled that Carissa just laughed and stated

that the Petitioner enjoyed these movies and had been watching them since she was two or

26

three years old. Ms. Guy testified that the Petitioner and Carissa had more of a friend

relationship than a mother-daughter relationship. She stated that Carissa would discuss

inappropriate things with the Petitioner, e.g., sex with her boyfriends.

Ms. Guy testified that both the Petitioner and Carissa participated in her wedding. She

recalled that, at the rehearsal dinner, Carissa was caught having sexual intercourse in the

bathroom with Ms. Guy’s future brother-in-law. Ms. Guy testified that, later that same

evening, she again caught Carissa having sexual intercourse with her future brother-in-law,

who was married. Ms. Guy stated that she and Carissa were friends with Ann Marie Hansen

and her husband, Gerard. Ann Marie Hansen worked with Ms. Guy and Carissa. Carissa had

an affair with Gerard Hansen. He eventually left his wife and moved in with Carissa. They

later married. After this event, Ms. Guy began to sever her relationship with Carissa.

Ms. Guy testified that the Petitioner had mood swings. The Petitioner would be happy

and cheerful and could quickly become sad and depressed. Ms. Guy initially thought that the

mood swings were due to hormones. Ms. Guy later recognized the signs of bipolar disorder.

She explained that her mother was bipolar and that the Petitioner’s symptoms reminded her

of her mother. Ms. Guy also testified that, in her opinion, the Petitioner’s sister, Alicia,

seemed to pick on the Petitioner.

Ms. Guy testified that she had met Carissa’s father, Chris Fotos. She stated that Chris

Fotos “scared me a bit,” was very prejudiced against African-Americans, and often talked

about violence.

Orlando Powell testified that he was formerly the manager of a Pizza Hut in Durham,

North Carolina, where the Petitioner would come with her friends. He explained that “she

grew towards me and the more she grew towards me, I just grew towards her.” Mr. Powell

explained that their relationship eventually became a romantic one. He stated that the

Petitioner was with him most of the time. Mr. Powell met the Petitioner’s mother, and he

stated that he could tell there was not much of a relationship between the Petitioner and her

mother.

Mr. Powell described the Petitioner as “a little fire ball.” He stated that she had a

temper. Mr. Powell testified that the Petitioner’s temper would just erupt and that he

“want[ed] to save [the Petitioner] because jail is not a place for her at this time.” He also

described her as being “wired” or full of energy. Mr. Powell stated that he knew the

Petitioner smoked marijuana and drank alcohol. Mr. Powell stated that their relationship

lasted a year to a year and a half. Mr. Powell stated that they were still dating when she made

the decision to enter the Job Corp Program. He explained that, during her Christmas break

from Job Corp, he tried to make her stay in North Carolina. Mr. Powell stated the Petitioner

27

was never violent toward him; however, he did observe the Petitioner become violent toward

others. Mr. Powell stated that no one from the Petitioner’s defense team contacted him prior

to her trial and that no one contacted him until 2000.

Carol Goehring testified that she first met the Petitioner when they were in the seventh

grade. Ms. Goehring stated that she and the Petitioner became friends and that she had

occasion to visit the Petitioner in her home. Ms. Goehring stated that Steve Kyaw was living

with the Petitioner’s mother at the time. During one visit, Steve Kyaw began yelling at the

Petitioner. The Petitioner told Ms. Goehring to “go out back. . . .” Ms. Goehring saw Steve

Kyaw “nudge [the Petitioner] to the room.” She then saw the Petitioner running from the

room. Ms. Goehring heard bumping and yelling, and she then saw the Petitioner with “a

knife in her hand and her face was all red and she was trying to adjust her pants.” Ms.

Goehring described the Petitioner as “very panicked.” Ms. Goehring called her mother to

come get her and the Petitioner. After this incident, Ms. Goehring was no longer permitted

to visit the Petitioner’s home. Ms. Goehring stated that, a month later, the Petitioner’s

mother moved and that she left Steve Kyaw. Ms. Goehring described the Petitioner as a very

loyal person. She stated that the Petitioner was “very happy,” “very energetic.”

Jamie Robinson testified that the Petitioner’s ex-boyfriend, Brian Wilson, and her ex-

boyfriend, Jeffrey Crank, were best friends. Ms. Robinson stated that the four of them ended

up living on the streets for a while. Ms. Robinson explained that, in her situation, her parents

did not approve of Jeffrey Crank and gave her an ultimatum. Ms. Robinson stated that the

four of them would sleep in hospitals and hotels and would run the streets a lot of nights, just

walking. She explained that Brian Wilson and Jeffrey Crank would often sell their plasma

to get money for a hotel room. She recalled that there were times when they had nothing to

eat except ketchup and hot sauce from packets.

Ms. Robinson stated that she spent the night at the Petitioner’s home on one occasion,

but she could not recall meeting the Petitioner’s mother. She stated that, in her opinion, the

Petitioner and her stepfather did not get along. Ms. Robinson observed that the Petitioner’s

parents had no food in the house. She also observed that the Petitioner did not have sheets

on her bed. This same evening, the Petitioner and Ms. Robinson snuck Jeffrey Crank into

the home, and the Petitioner’s parents never knew he was there.

Ms. Robinson recalled an incident where she and the Petitioner shoplifted some shirts

for Jeff Crank and Brian Wilson. The Petitioner told Ms. Robinson to run and took off

running herself. Ms. Robinson stated that she did not run. Ms. Robinson was not arrested,

but the Petitioner was arrested and placed in a police car. Ms. Robinson recalled that the

Petitioner was laughing after she was caught. Ms. Robinson also recalled an incident where

the security officers at the mall called their parents because they had been at the mall “a very

28

long time.” Ms. Robinson stated that the officers were on the telephone with her mother for

a very long time. She stated that her mother asked the officers about Ms. Robinson’s

condition. Ms. Robinson related that the officers were only on the telephone with the

Petitioner’s mother for “two seconds.”

Ms. Robinson related that the Petitioner “seemed to be okay with the way things were

for her. . . .” Ms. Robinson stated that she could not have dealt with the situation the way the

Petitioner did. Ms. Robinson learned that the Petitioner had been raped. Ms. Robinson

stated that the Petitioner “never showed any emotion.” She did, however, acknowledge that

the Petitioner and Brian Wilson fought a lot. Ms. Robinson recalled an incident where the

Petitioner and a new boyfriend “beat Brian up pretty badly, and I remember [the Petitioner]

throwing a beer bottle at him.” This incident occurred after the Petitioner and Brian Wilson

had ended their relationship and the four of them were no longer hanging around one another.

Ms. Robinson stated that she was never contacted by the Petitioner’s defense team.

Kerry Sherrill testified that she was a treatment worker for the Child Protective

Services Unit of Orange County, North Carolina and that she was assigned the Petitioner’s

case following an allegation of child abuse and neglect. Ms. Sherrill testified that she

observed that the Petitioner, who was in middle school at the time, was a “bright and warm

young woman, easy to get along with, [and] enjoyed the attention of adults.” Ms. Sherrill

related that the initial allegation involved the Petitioner’s mother’s boyfriend, Steve Kyaw,

and a report of inappropriate discipline. She reported that “the plan was to keep [the

Petitioner] safe when she was in the home and if Steve [was] going to be present in the

home.” Ms. Sherrill reported that the Petitioner was eventually placed at Shaeffer House,

due to the Petitioner’s truancy and running away. She also reported that it appeared that the

Petitioner’s mother was “not doing what she needed to meet [the Petitioner’s] needs.” Ms.

Sherrill testified that, while at Shaeffer House, the Petitioner wrote a letter to her friend,

Brandy, expressing that “she was very unhappy with her life and had made a plan to commit

suicide. . . .” The Petitioner enumerated her reasons for wanting to kill herself, including the

assertion that she had been raped by Claude Davis. Ms. Sherrill stated that the Petitioner’s

case was closed after Steve Kyaw moved out of the family home.

Peggy Hamlett testified that she is a counselor with the North Carolina Department

of Juvenile Justice. Ms. Hamlett testified that the Petitioner was initially charged with a

felony breaking and entering and larceny of a community center during which the Petitioner

stole some candy. As a result of this incident, the Petitioner was adjudicated delinquent and

was placed under Ms. Hamlett’s supervision. Ms. Hamlett stated that the Petitioner’s

probation was later revoked and that she was sent to a juvenile detention center. Ms. Hamlett

explained that the Petitioner’s initial term in the facility would have been six months.

However, the Petitioner was at the facility for more than a year because she kept receiving

29

infractions. Ms. Hamlett testified that the Petitioner’s juvenile records would have been

destroyed when she reached the age of eighteen.

Ms. Hamlett described the Petitioner as a “smart girl” with “a lot of potential.” She

also stated that the Petitioner was “out of control.” Ms. Hamlett stated that the Petitioner was

drinking and “huffing” and, perhaps, doing other drugs. Ms. Hamlett described “huffing”

as when one would “huff the fumes that come from an aerosol can . . . and get high.” She

stated that huffing was very dangerous. Ms. Hamlett also stated that the Petitioner was not

an aggressive person.

Ms. Hamlett testified that she was contacted by the Petitioner’s counsel and by Dr.

McCoy prior to the Petitioner’s trial. However, she stated that she was not asked to attend

the Petitioner’s trial.

Debby Howell Burchfield was employed at the Juvenile Evaluation Center in

Swannoa in the 1990s. Ms. Burchfield explained that the Juvenile Evaluation Center was

a state training school for youths who had been committed by the courts due to delinquent

behavior. She stated that she was the Petitioner’s social worker. Ms. Burchfield explained

that her office was in the living quarters for the girls, so she had direct contact with them

every day. Ms. Burchfield testified that the Petitioner remained confined at Swannoa from

November 1991 until March 1993. She stated that this was a longer period of time than usual

but was because the Petitioner was unable to maintain or achieve the level of points

necessary to be released. Ms. Burchfield described the Petitioner’s actions as “sabotaging”

herself.

Ms. Burchfield testified that, while at Swannoa, a juvenile could have one visit per

week. She stated that the Petitioner was at Swannoa for about fifteen months; thus, she was

eligible for sixty visits during that time period. The Petitioner received only eight visits

during this time.

Ms. Burchfield testified that the Petitioner related that she never felt close to either

of her parents. She stated that the Petitioner felt that she had been emotionally abused by her

father and that her mother was not a real parent to her. Ms. Burchfield testified that there

were incidents in which the Petitioner engaged in self-mutilation and tattooing of her body.

She stated that the Petitioner had also reported being a victim of abuse by her older sister.

She admitted that she had previously indicated to post-conviction counsel’s investigator that

the Petitioner “was known to have dabbled with devil worship. She would draw pictures and

talk about that, and she also dressed in gothic.” Ms. Burchfield also admitted that it was

important for the Petitioner to get her way but explained that this was common in

adolescents. Ms. Burchfield testified that, upon her release from Swannoa, the Petitioner

30

planned to enroll at Almance Technical College to study nursing. The staff at Swannoa

attempted to assist the Petitioner in reaching her goals. Ms. Burchfield noted that the

Petitioner had completed the GED program and that the staff assisted in preparing her

application to the Job Corp Program.

Ms. Burchfield testified that, in 1996, she was contacted by a psychiatrist involved in

the Petitioner’s case. She stated that records were sent to the psychiatrist by her office.

Kristina Hargis, a social worker with the North Carolina Department of Juvenile

Justice, testified that she was assigned to the Swannoa Youth Development Center as a house

parent and counselor. She stated that she was with the juveniles eight hours a day. She

added that she spent one hour a week with the Petitioner individually, talking about her

feelings and problems. Ms. Hargis stated that she was not contacted by the Petitioner’s trial

attorneys.

Ms. Hargis described the Petitioner as “struggling” and “depressed.” She stated that

the Petitioner was upset that she got into trouble. She opined that the Petitioner could not

understand why she was doing the things to get herself in trouble. Ms. Hargis confirmed that

the Petitioner was at Swannoa longer than she needed to be because she continued to get into

trouble. She surmised that the Petitioner was intentionally sabotaging herself in order not to

be released.

Ms. Hargis explained that Swannoa’s student body was both male and female. She

stated that there were 180 males and 45 females. Ms. Hargis stated that the juveniles had to

do chores and attend school and treatment programs. The juveniles also had structured

recreation programs. Ms. Hargis opined that there was little free time.

Frederic Marshall Muse testified that he was employed as a teacher at Swannoa during

the 1990s and that the Petitioner was assigned to his class. Mr. Muse testified that the

Petitioner was initially defiant in his class. However, when she learned who was in charge,

her attitude changed, and she began to work. Mr. Muse recommended the Petitioner for

various teacher aid positions. He stated that the Petitioner became a teacher’s aide and

remained in that position for the duration of her stay. He explained that the Petitioner had

the “run of the campus” when she was running errands for the teacher. He described the

Petitioner as being respectful. Mr. Muse remarked that he and the Petitioner developed a

respectful relationship, and he described the Petitioner as having “a delightful sense of

humor.”

Mr. Muse stated that he could not recall telling the post-conviction investigator that

the Petitioner “seemed to have two faces.” He explained that the Petitioner had one of the

31

higher intellects at Swannoa. He explained that the Petitioner could feign getting along and

being happy when, in reality, she was not. Mr. Muse stated that he was not contacted by the

Petitioner’s trial team.

Andrew Drace was in the Job Corp with the Petitioner. He arrived at the center in

October 1994, and was enrolled in the certified nursing assistant program. He stated that

Swannoa was small and that “everyone knew everybody.” Mr. Drace described the Job Corp

Program as a “pretty rough, violent place.” He stated that there were gangs and people who

picked on other people. He stated that gang members would come into students’ rooms,

place sheets over them, and beat them up, mainly because they were white. There were less

than ten white male students at the center. He stated that Tadaryl Shipp was one of the gang

members and that he was “in fear of him on a daily basis.” He stated that, on one occasion,

Tadaryl Shipp attempted to throw him from a bridge near the center. Mr. Drace explained

that, out of fear for their own safety, many students hid in their rooms.

Mr. Drace testified that on the morning of January 12, 1995, he saw Colleen Slimmer,

and she asked whether he had seen Tadaryl Shipp. This was the last time that Mr. Drace saw

Ms. Slemmer. The next day, Mr. Drace and his friend Anthony purchased some liquor and

were walking along Cumberland Avenue when they ran into the Petitioner. Mr. Drace stated

that the Petitioner started drinking with them. He stated that the Petitioner drank two plastic

fountain cups of Mad Dog 20/20. He stated that the Petitioner was definitely intoxicated

when she left but had indicated that she wanted to drink some more.

After the murder of Ms. Slemmer, the center was placed on lockdown, and no one was

permitted to leave. The students stopped going to their classes. Mr. Drace reported that he

lost his job at Wendy’s. He stated that they were all questioned. Mr. Drace later contacted

the Petitioner’s attorneys but observed that the Petitioner’s attorney “didn’t seem to care.”

Mr. Drace testified that after the murder, the Job Corp Center closed and the students

were “shipped” to Gulfport, Mississippi. He stated that he did not complete the program in

Mississippi. He explained that he left because he was told that he would have to restart the

entire program. He added that the group from Knoxville had the stigma of being “evil,

terrible people.”

Onas Perry was employed at the Juvenile Evaluation Center in Swannoa, North

Carolina, in the 1990s. She stated that she supervised sixteen girls, including the Petitioner.

Ms. Perry testified that the Petitioner would stay up at night and help clean. The Petitioner

would also want to talk about her family problems. The Petitioner related that she wanted

a better relationship with her mother and wished that her mother loved her more. Ms. Perry

testified that the Petitioner reported verbal, physical, and sexual abuse. Ms. Perry stated that

32

she believed the Petitioner’s reports. Ms. Perry related that, in her opinion, the Petitioner

sabotaged herself to be able to stay at Swannoa.

Ms. Perry testified that she had observed the Petitioner “in the hobby room doing

some Satanic stuff I guess” with some of the other girls. Ms. Perry related that she noticed

the light go off in the hobby room and that when she went to see what was going on, she

observed the girls sitting down, holding hands, and chanting. She did not understand what

they were chanting. Ms. Perry also observed a pentagram on a piece of paper. Ms. Perry

stated that she believed that the Petitioner “was just searching, experimenting or trying to

find out who she was. . . .” Ms. Perry stated that the Petitioner had different moods that were

not normal. She explained that “[s]ometimes [the Petitioner] would be calm, and sometimes

she would just be like just kind of out of control. . . .”

William Joseph Mode testified that, in the fall of 1994, he was employed as an

instructor at Job Corp on Rutledge Pike. Mr. Mode taught cultural awareness, reading,

AODA ( a class on drugs and alcohol), and parenting. Mr. Mode recalled that Colleen

Slemmer was “a very sweet young lady.” Mr. Mode testified that, although he was under the

impression that the Job Corp students did not have violent criminal backgrounds, this

impression was contradicted by the actions of the students. He described incidents of being

slapped and hit by students. He also recalled an incident where a student threatened to kill

him.

Mr. Mode testified that Tadaryl Shipp often came to class high, hung over, or drunk,

when he came at all. He described Tadaryl Shipp as disrespectful. He stated that there was

little discipline by the Job Corp supervisors. He stated that, from what he had heard from the

students, the Job Corp dormitories were unsafe. Mr. Mode stated that he knew Shadolla

Peterson and the Petitioner and that he knew about the “devil worshiping business.”

Jacqueline Olebe was employed at Knoxville Job Corp as a health instructor in 1994

and 1995. She described the Petitioner as a non-violent student who completed her course

requirements. She noted that the Petitioner often slept in her classes but that she participated

when she was awake. Ms. Olebe stated that the Petitioner was smart and wanted to be a

nurse. She also testified that she came into contact with the Petitioner through her position

on the Drug Abuse Panel and was aware that the Petitioner used marijuana and alcohol. She

also acknowledged a conversation she had with the Petitioner regarding voodoo in which the

petitioner told her that it worked.

Ms. Olebe testified that Mr. Shipp rarely attended her classes but when he did he was

loud and disrespectful. She described the victim as very respectful and skilled. Finally, she

stated that she was not contacted by anyone regarding the Petitioner until after the conviction.

33

Next to testify was Kim Rhodes, a fellow student in the Job Corp Program, who

testified for the State at trial. Ms. Rhodes described the environment at the Job Corp as

“scary,” with a great deal of animosity between different groups. She also related that there

was a lot of drug use at the Center.

Ms. Rhodes testified that she had a great relationship with the Petitioner and that she

felt safe with her. She stated that both felt like they did not fit in with others. She

specifically testified that she never saw the Petitioner act violent. She testified that she was

shocked when the Petitioner made the statement to her that the victim had been killed. She

also stated that after giving her statement in the case, she was informed by the State’s

attorney that she would not be allowed to see the Petitioner. She said that she missed her

friend.

The next witness to testify was Judge Matthew Martin from North Carolina. Prior to

becoming a judge, he represented the Petitioner, who was a juvenile at the time, on multiple

occasions. Judge Martin testified that he felt that sending the Petitioner to training school

was a mistake and that he had, in fact, found an alternative which he recommended to the

sentencing judge. He felt that the Petitioner would have benefitted more from another type

of service. Judge Martin testified that he believed the Petitioner was an abused child and that

he was not surprised to learn that she was diagnosed with bipolar disorder. Finally, Judge

Martin testified that after the Petitioner was charged in this case, he contacted trial counsel

and supplied them with his file.

Next, Tadaryl Shipp, the Petitioner’s co-defendant and former boyfriend, was called

to testify. He began his testimony by acknowledging his membership in the Gangster

Disciples, as well as the membership of the third co-defendant Peterson. He testified that the

Petitioner was not a member of the gang. Shipp also acknowledged his romantic

involvement with the Petitioner and described her as his best friend. He stated that the

Petitioner was a caring person but that she was “edgy” and had mood swings. Shipp testified

that during her moods, she often hit him for no apparent reason. He testified that the

Petitioner was like two different people depending on whether she was agitated or calm. He

estimated that the mood swings could last from two to three minutes up to an hour. During

these periods, the Petitioner just went into a rage. Shipp further indicated that the Petitioner

was particularly agitated just prior to the murder.

Shipp testified that the Petitioner took the relationship more seriously than he did, and

he acknowledged that he was seeing other girls at the time. He stated that he did not believe

the Petitioner had been aware of that fact. He also testified that the Petitioner continued to

write him three to four letters per week after the offense occurred.

34

Shipp acknowledged that he was the one who carved the pentagram on the victim’s

chest and stated that he did so because he felt like it. He acknowledged that this varied from

his original statement to police that the Petitioner brought the weapons and helped carve the

pentagram. Shipp further testified that he was unable to recall whose idea it had been to take

the victim to the scene, although he acknowledged that he had previously indicated in a

statement to police that it was the Petitioner’s idea. Shipp stated, however, that he was

intoxicated when he gave the statement and that the police were harassing him. Finally,

Shipp testified that he would have testified for the Petitioner at trial if he had been asked,

even if it conflicted with his own attorney’s advice.

Tyrone Comfort also testified and stated he was at the Job Corp Center with the

Petitioner and that she was one of his best friends. He indicated that the Petitioner would

sometimes be “overly happy” and then suddenly very sad. He described one incident when

he observed her in the hall crying, screaming, and pulling out her hair. Mr. Comfort

indicated that he did not know Shipp well, but he did not like the way that Shipp treated the

Petitioner. He testified that he heard the Petitioner and Shipp argue on multiple occasions,

and he recalled seeing bruises and marks on the Petitioner at times. He indicated that Shipp

was the one controlling the relationship, even going so far as to threaten Mr. Comfort.

The next two witnesses to testify, DeAndrea Gates and Amanda Robertson, were both

former girlfriends of Shipp. Both indicated that he was abusive to them, as well as

manipulative and controlling. Ms. Gates indicated that she believed that Shipp preyed on

women he could control. She further indicated that she was not contacted by the Petitioner’s

defense team. Ms. Robertson said that she was not contacted until 1995 or 1996.

Jermaine Bishop, another former student at the Job Corp, indicated that, at the time

of the hearing, he was incarcerated for especially aggravated kidnapping and especially

aggravated robbery. He testified that met Shipp in the program and described him as

“weird.” Mr. Bishop testified that he was aware that the Petitioner and Shipp were dating,

and he felt that Shipp was in control of the relationship. He further testified that the

Petitioner and Shipp fought often.

Co-counsel was the next witness, and she stated that she had been licensed to practice

law since 1992, and that she had been appointed to the Petitioner’s case on January 23, 1996.

At the time, her practice consisted primarily of criminal cases. She also indicated that she

had previously served as an assistance public defender and had handled felony and

misdemeanor trials. Co-counsel acknowledged that the Petitioner’s case was her first murder

case. She indicated that her primary role in the case was research and the drafting of

motions. She also stated that she was responsible for preparing voir dire, conducting some

35

cross-examination in the guilt phase, and handling the family witnesses in the penalty phase.

Co-counsel testified that she was appointed to replace prior co-counsel and that much

of the groundwork had already been done when she was appointed. She indicated that her

initial thoughts upon reviewing the case were that it might be possible to prove second degree

murder based upon “the frenzy” at the murder scene combined with the Petitioner’s mental

health issues. However, she noted that she saw sentencing as the critical phase and, from the

beginning, began analyzing what proof would be needed.

Co-counsel stated that Dr. McCoy had been retained as the mitigation expert prior to

co-counsel’s own appointment. She met with Dr. McCoy and lead counsel in March and

reviewed the materials which had been prepared by Dr. McCoy. Co-counsel further

indicated that she presumed these materials were also shared with Dr. Engum, who had

produced a diagnosis of severe borderline personality disorder.

Co-counsel testified that, in the penalty phase, the goal was to establish that the

Petitioner came from a dysfunctional family with a history of drug and alcohol abuse. In

hope of establishing this, the initial strategy was to call Dr. McCoy and to introduce her

report. However, at the “ninth hour,” a decision was made against having Dr. McCoy testify

in the penalty phase. Co-counsel indicated that this decision was made because of several

problems which arose with Dr. McCoy, namely her relationship with the prosecutor in the

case and her statement that she was not in agreement with Dr. Engum’s report. Despite the

decision against calling Dr. McCoy, the defense team unsuccessfully attempted to get her

report admitted into evidence, as well as the charts which had been prepared. Co-counsel

acknowledged that only three witnesses were called to testify and stated that it might have

been more helpful to the case to call other lay witnesses. However, by the time the decision

was made not to use Dr. McCoy, it was too late. Co-counsel said that she attempted to

present their mitigation theme as well as she could using the lay witnesses but acknowledged

that they had no expert “to connect the dots.” However, she stated that she attempted to do

so in her closing argument.

Co-counsel testified that she was aware that much of the material contained in the

report by Dr. McCoy, including the incidents of the Petitioner’s prior violence, were a “two-

edged sword.” She stated that they felt the defense had to be careful about the type of

mitigation evidence which was presented because some of the proof “could hurt them as

much as it helped.” She stated that they were faced with “a horrible case with horrible facts

and someone that confessed ad nauseam and kept confessing over and over and over in

letters that she was passing out.”

36

Co-counsel acknowledged that they had filed a “don’t ask/don’t tell” motion regarding

the death penalty issue with the jury. According to her, the strategy was to get one person

on the jury who was totally opposed to the death penalty. She acknowledged that this

decision involved the risk of getting twelve jurors who were all in favor of the death penalty.

She also acknowledged that Dr. McCoy’s entire report was given to the prosecution despite

the fact that it contained information which would have been privileged, especially in light

of the decision not to call Dr. McCoy to the stand. She further acknowledged that the

prosecution’s cross-examination of the witnesses, utilizing information contained in the

report, was damaging to their case. However, she also testified that the decision not to call

Dr. McCoy resulted in the State not being able to use many other damaging facts which were

contained in the report. Co-counsel also testified that she could not recall why there was no

objection made to the inconsistent theories utilized by the State based upon the charge of

conspiracy and then the application of the aggravating factor that the killing was done, in

part, to avoid arrest.

On cross-examination, co-counsel stated that she was aware of lead counsel’s

overbilling issues but did not discuss it with him. She testified that she did not think the

issue affected lead-counsel’s representation of the Petitioner and described him as very

zealous. Co-counsel acknowledged that she and lead counsel had the Petitioner sign a

release which would allow them to profit from the Petitioner’s story. However, she

explained that the document only referred to public aspects, not information protected by the

attorney/client privilege. She testified that the main purpose of the document was to protect

the Petitioner’s rights and eliminate any ethical concerns. Co-counsel specifically testified

that the release in no way affected any trial strategy or decision.

Co-counsel reiterated that the goal in the guilt phase was to try to convince the jury

to convict the Petitioner of second degree murder based upon the frenzy of the scene and the

controlling nature of the Petitioner’s relationship with Shipp. However, she acknowledged

that some witnesses, as well as the Petitioner’s own statement, undercut the theory that Shipp

had committed most of the acts during the murder. In addition, co-counsel stated that some

aspects of Dr. McCoy’s report also undermined this theory.

Co-counsel testified that she had met with the Post-Conviction Defender’s Office on

one occasion in 1999 and had given them her entire file. She indicated that, despite requests

to do so, she had not met with them again as she believed that everything had been covered.

Next, the Petitioner called William Crabtree to testify. General Crabtree testified that

he had been employed as a District Attorney General for more than thirty years and had been

the lead prosecutor in the Petitioner’s trial. He also indicated that knew Dr. Diana McCoy,

the mitigation expert employed by the defense team, and had dated her for a period of time.

37

General Crabtree indicated that the relationship had occurred prior to the Petitioner’s trial

and that he and Dr. McCoy were not involved at all during the trial. Further, General

Crabtree testified that he was not aware that Dr. McCoy was employed in the Petitioner’s

case until he received her notebooks and report during the penalty phase of the Petitioner’s

trial. He also indicated that he was not happy to get the large report so late in the proceeding.

He was unable to recall what information was contained in the report or if he found specific

information in it that he used to cross-examine the Petitioner’s witnesses.

General Crabtree testified that he saw no reason to withdraw as the prosecutor because

of his previous relationship with Dr. McCoy. He indicated that he did not see that a conflict

of interest was created. He testified that he had prosecuted several other cases in which Dr.

McCoy was involved. He indicated that only in one instance did he withdraw and that was

because he had generally discussed the facts of that case with her prior to learning of her

involvement.

Next, the Petitioner’s lead counsel at trial testified that he had been practicing law in

Knoxville since 1986. He indicated that his practice was exclusively criminal defense at the

time and that, prior to his appointment in the Petitioner’s case, he had handled several

murders cases but had not previously handled a capital case.

In 1993 or 1994, lead counsel learned from an article in the newspaper that the

Comptroller’s Office was conducting an audit of the indigent defense system and that he

would likely be one of the attorneys involved in the audit. As a result, he conducted a “self-

audit” and discovered that, in certain instances, he had billed more than twenty-four hours

in a day. He self-reported to the Board of Professional Responsibility on the advice of

counsel. In April of 1995, one month prior to his appointment in the Petitioner’s case, he had

to repay approximately $67,000 to the fund. Prior to repayment, he had refrained from taking

any appointments and withdrew from some cases to avoid an appearance of impropriety.

Lead counsel testified that he was not concerned that the investigation would affect his

representation of the Petitioner because he had been “cleared to practice law”at the time of

the appointment. Despite the fact that his name had been in the newspaper, he was not

concerned about the issue affecting potential jurors during voir dire. At the time of the

appointment, the only complaint pending was the disciplinary complaint, which he had self-

reported. That issue was not resolved until 1998, and lead counsel never received an active

suspension nor was his practice interrupted.

Lead counsel testified that he had several murder cases prior to his involvement in the

Petitioner’s case. He estimated he had taken a dozen or more felony cases to jury trial. He

could not recall whether he had called an expert witness to testify in those trials, but he did

indicate that he often used investigators, pathologists, and psychologists. He also stated that,

38

at some point prior to trial, he contacted the Capital Case Resource Center.

Lead counsel testified that early in his representation, he engaged Dr. Engum to do

psychological testing on the Petitioner. He met with Dr. Engum on several occasions to

discuss the findings. In the late summer or early fall of 1995, lead counsel also engaged the

services of Dr. Diana McCoy as a mitigation specialist and indicated that he communicated

with Dr. McCoy frequently. According to lead counsel, his strategy was that he and Dr.

Engum would concentrate on the guilt phase where he knew they would “take a beating” and

then Dr. McCoy would “come out and save the day” in the penalty phase. Lead counsel

indicated that he looked at the social history as a tool to be used in the penalty phase because

he wanted Dr. McCoy to take the social history and tie it back to Dr. Engum’s report.

However, he specifically recalled at least one meeting during trial preparation when both

doctors were present.

Lead counsel also employed the services of Dr. Bernet, a psychiatrist, in the case, but

he was not a “member of the team.” He was hired solely for the purpose of giving

background on the Satanic aspect of the case. He was to testify that the murder was not a

ritualistic killing and that the Petitioner had just been a “kid dabbling in Satanism.” Mr.

Talman did not ask Dr. Bernet to conduct an evaluation.

Lead counsel indicated that co-counsel was appointed after previous co-counsel

requested to withdraw. Lead counsel had not previously worked with co-counsel, but he was

aware that she had previously handled criminal cases while with the Public Defender’s

Office. He indicated that he was aware that co-counsel had never been involved in a capital

case, but he stated that he was not aware that she had never been involved in a murder case.

Lead counsel testified that co-counsel handled the penalty phase of the case because he

thought it might be better with a female attorney. Nonetheless, he stated that he was lead

counsel and was involved personally in both phases of the trial.

Lead counsel indicated that he was aware that the case was complex. While the

Petitioner was very cooperative, it was not a “who done it.” The Petitioner had confessed

to a “grizzly murder,” and lead counsel indicated that going into trial, he was fairly certain

that there would be a penalty phase. Therefore, in his mind, sentencing issues were the most

important, and he would have considered it a victory if the Petitioner did not receive death.

Lead counsel acknowledged that, in hindsight, there were things he wished he had done

differently. While not specifically recalling a discussion with Dr. McCoy of which witnesses

to call, he assumed that he did discuss this with her. Lead counsel also indicated that he was

not dissatisfied with Dr. McCoy’s work.

39

Lead counsel testified that during the guilt phase of the proceeding, he tried to attack

the elements of intent and premeditation. The defense team attempted to “soften [the

Petitioner] as best we could, make her a person.” Lead counsel indicated that he spent a great

deal of time investigating the case, even traveling to North Carolina to interview family and

friends of the Petitioner.

According to lead counsel, the strategy of using Dr. McCoy during the penalty phase

to give an overview of the Petitioner’s life remained in place throughout the trial. He also

indicated that he had planned to call the Petitioner’s parents and aunt as witnesses. At the

time, he believed that was a sufficient number of witnesses. Despite his intent to use Dr.

McCoy as a witness, lead counsel made clear that there were certain things contained in her

report that he had concerns about being admitted into evidence. According to lead counsel,

the decision not to call Dr. McCoy was based on multiple reasons, with the primary reason

being that she would not corroborate Dr. Engum’s report because she did not personally

conduct an evaluation of the Petitioner. He testified that, until that moment after the penalty

phase when he spoke with Dr. McCoy about this, he had believed that the two doctors were

in agreement.

Lead counsel also indicated that he was uncomfortable with Dr. McCoy’s relationship

with General Crabtree, although he did not doubt Dr. McCoy’s integrity. Lead counsel

testified that he had been aware of the relationship which, according to Dr. McCoy, had

involved some anger and jealousy. The final decision not to use Dr. McCoy was a last

minute decision, which lead counsel acknowledged “could” have been wrong. He testified

that he wished that he had called additional witness, but he did not know if it would have

made a difference in the outcome. Lead counsel could not recall exactly when the decision

was made to proceed with only three witnesses.

Lead counsel was unable to recall when he received a copy of Dr. McCoy’s final

report, although Dr. McCoy’s billing records indicate that the report was bound on March

20, after jury selection in the trial. Lead counsel testified that he did not recall reviewing the

entire report before trial, but he stated that he had seen prior drafts. Lead counsel did recall

an in-camera hearing during which he gave Dr. McCoy’s report to the State. He recalled that

General Crabtree was unhappy with the timing as it only gave the State one night to review

the report prior to the opening of the penalty phase. He acknowledged that he turned over

the final report, as well as the notes of interviews and other information contained in Dr.

McCoy’s folder, because he was still planned to use Dr. McCoy at that point. Lead counsel

stated that, in retrospect, he probably should have just given the report only, as he did not

plan to use the other supporting documents. At the time, he believed they were not protected

under the privilege.

40

Lead counsel testified that he made no challenge to the State using inconsistent

theories with regard to the conspiracy conviction as opposed to the aggravator that the

murder was done to avoid arrest. While at the time he did not see those as inconsistent

theories, he now does.

Lead counsel further testified that, during voir dire, the publicity of the case was

extensive and that almost all of the potential jurors had heard something about the case. Lead

counsel acknowledged that his line of questioning may have reinforced the information the

jurors had seen in the news. He also acknowledged the risk in pursuing the strategy of the

“don’t ask don’t tell” with regard to death qualifying the jury. Lead counsel could not recall

if he asked questions to “life qualify” the jury.

Lead counsel also testified that, after the case, he talked with the Petitioner’s aunt,

Carrie Ross, about the possibility of writing a book. However, nothing ever became of the

idea. He specifically testified that he never profited from the Petitioner’s story, although he

acknowledged that a document had been signed by the Petitioner which would have allowed

him to do so.

Lead counsel indicated that the State had offered the Petitioner a guilty plea deal to

life without the possibility of parole. The Petitioner did not accept the offer because “she did

not want to grow old in jail.” During his testimony, lead counsel indicated that he probably

should have pushed the Petitioner harder to accept the deal.

Lead counsel testified that he did not recall asking Dr. McCoy to lie. He did recall

receiving an angry letter from her after trial alleging that he was responsible for her not being

hired to work on another capital case.

Lead counsel acknowledged that the Petitioner did not receive a “perfect defense.”

He said that, in retrospect, there were things which could have been done differently.

However, given the sheer brutality of case, he was unable to say that doing anything different

would have resulted in a different outcome.

On cross-examination, lead counsel again addressed the overbilling issue and stated

that he had considered the matter closed prior to his appointment in the Petitioner’s case. A

settlement had been reached, and he had paid it. The State was again paying him for

appointments, and the Tennessee Supreme Court had appointed him in another case prior to

his taking the Petitioner’s case. There was no issue of criminal liability pending at the time.

Furthermore, lead counsel testified that he had discussed the matter with the Petitioner, and

she was not bothered by it. Lead counsel stated that the billing issue had no affect on his

performance or zealousness in his representation of the Petitioner.

41

Lead counsel also testified to the reasoning behind the decision not to seek a

continuance because of the short time that co-counsel had been on the case. He stated that

a great deal of work had been done prior to her appointment and that co-counsel worked hard

and felt prepared. Moreover, the decision was affected by their hope that the State would be

unable to locate key witnesses against the Petitioner. Lead counsel also testified that he saw

no specific legal reason to file a motion to suppress the statement given by the Petitioner.

He also reiterated that the timing of Dr. McCoy’s report had no bearing on the decision not

to call her as a witness. Lead counsel stated that he felt that the damaging information in Dr.

McCoy’s report was too prejudicial to present to the jury if Dr. McCoy was not going to

support Dr. Engum’s diagnosis. Lead counsel acknowledged that the decision to give the

State the report did allow some damaging information to be used on cross-examination;

however, by not calling Dr. McCoy, other damaging evidence was kept out.

Lead counsel indicated that neither Dr. Engum nor Dr. McCoy suggested involving

another mental health professional in the case. Lead counsel acknowledged that, looking

back, retaining the services of a psychiatrist might have been beneficial.

Following lead counsel’s testimony, Carrie Ross, the Petitioner’s aunt, was recalled

to the stand. She indicated that, while she was in Knoxville for the trial, lead counsel had

discussed with her the possibility of a book deal about the case. According to Ms. Ross, lead

counsel also made the statement to her that there was no way the Petitioner would avoid

receiving the death penalty but that he was leaving room for appeal or “leaving holes in the

case.”

Ms. Ross again reiterated the violent nature and various abuses of the Petitioner’s

parents and grandparents. She testified again as to the environment in which the Petitioner

had grown up in, indicating violence was a way of life. She also indicated that in her

opinion, the questions she was asked during the penalty phase of the trial did not allow her

to convey the person the Petitioner really was.

The next witness to take the stand was Dr. Diana McCoy, the mitigation expert

employed to handle the Petitioner’s case at trial. She testified that her role in the case was

to collect information by interviewing people and reviewing records and to analyze that

information in order to develop themes for the attorneys to present in the penalty phase. She

also testified that it was her responsibility to assist in choosing additional lay witnesses who

would show the jury the Petitioner’s human side during the penalty phase. However, she

testified that, in this case, her job did not involve forming a diagnosis for any conditions from

which the Petitioner might suffer. She indicated that she was retained by lead counsel in this

case.

42

Dr. McCoy indicated that she recalled only one meeting between the entire defense

team. She stated that most of her interaction was with lead counsel, with the record

indicating at least fourteen face-to-face meetings and more than forty telephone

conversations. She testified that they worked together a great deal and had good interaction.

She indicated that she was specifically told to prepare a report, not an opinion, in the case.

She testified that she provided the final bound version of her report to the attorneys on March

24, 1996, although she had previously gone over the material contained in the report with the

attorneys. She stated that lead counsel was as familiar with the materials as she.

Dr. McCoy testified that she met with the Petitioner on nine occasions prior to trial

in order to build a rapport with the Petitioner so that she might gain the entire truth of the

Petitioner’s life. She indicated that she was aware of Dr. Engum’s diagnosis of borderline

personality disorder and that she was in agreement with that diagnosis. Dr. McCoy testified

that she reviewed her report with lead counsel and co-counsel on March 15, and that they had

previously discussed who should be called to testify as lay witnesses. At this meeting, Dr.

McCoy indicated to them that the final report would soon be done. According to Dr. McCoy,

lead counsel indicated that there was no hurry, as he planned to wait till the last possible

minute to give the report to the prosecution.

She went on to note that, in her opinion, family members alone would not be able to

sufficiently explain who the Petitioner was and why she had committed the crime. Dr.

McCoy indicated that although she was not specifically informed, she assumed that these

witnesses had been subpoenaed or that arrangements had been made for them to be at the

trial. She testified that several of the professionals from Swannoa and Shaeffer, who had

worked with the Petitioner and liked her, would have been greatly beneficial to call as

witnesses. She also testified that Matthew Martin and the Petitioner’s aunt would be good

witnesses, but the Petitioner’s mother would not make a positive witness for the defense. Dr.

McCoy testified that, as of March 14, she was under the impression that several lay witnesses

would be called to testify and that she would then testify in order to tie the diagnosis together.

Dr. McCoy indicated that her work developed into a three-volume social history. She

testified that she was in agreement with the diagnosis of borderline personality disorder and

never told either attorney that she disagreed with the diagnosis. As part of her testimony, Dr.

McCoy explained some of the characteristics of borderline personality disorder, such as fear

of abandonment, unstable relationships, mood swings, unstable self-image, and impulsivity.

Dr. McCoy had prepared various charts to show such things as substance abuse in the

Petitioner’s family, a family chart showing the large number of people in and out of the

Petitioner’s life, and the Petitioner’s education history. She testified that all of these

influences tied into the development of the Petitioner’s borderline personality disorder,

indicating that the Petitioner’s fear of abandonment was the overriding concern. She also

43

testified regarding the “tough girl image” which the Petitioner presented and opined that this

was cultivated in order for the Petitioner to appear fearless when, in fact, she was just a

“scared kid.” Dr. McCoy also referenced the Petitioner’s tendencies toward self-destruction,

testifying with regard to specific instances in her history of self-sabotage and suicide

attempts. She further testified regarding the unstable relationships experienced by the

Petitioner and her drastic mood swings. Dr. McCoy discussed the Petitioner’s acknowledged

lying, which was usually done to make herself look better. She said this was an indication

that the Petitioner was starved for attention, and she referenced the multiple witnesses who

had indicated that if the Petitioner was ever shown attention, she would “talk and talk.”

Finally, Dr. McCoy discussed the poor parental role models which the Petitioner had while

growing up. She indicated that the Petitioner grew up in an environment where drugs and

alcohol were used, where sex was glamorized, where violence was seen as a solution to

problems, and where no limits were set.

Next, Dr. McCoy discussed a March 24th meeting in which she was informed that she

would be the only witness to testify during the penalty phase. She believed that the decision

to rely strictly on her testimony was a bad one. Dr. McCoy testified that, in her opinion, the

mitigation evidence which she had gathered was relatively strong, but she felt that she could

not convey that alone. According to her, it would take a number of people to “paint the

whole picture.” She also opined that it was important to show the early physical and

emotional abuse with the true depth of the problems. She indicated that it was important to

include the negative aspects of the Petitioner’s life and that the jury would not be expecting

her to be a “girl scout” if she had already been convicted of first degree murder.

Dr. McCoy also discussed the Petitioner’s relationship with Shipp. She described the

Petitioner as hungry for attention and very intense about the relationship, stating that it made

her feel like somebody. She stated that the Petitioner basked in the glow of Shipp’s attention.

Dr. McCoy also opined that the Petitioner’s prior rejections had led her to Shipp.

Dr. McCoy testified that she recommended that Dr. Bernet be used as an expert in

regard to the Satanism aspect of the case. She testified that lead counsel had expressed some

concern because of the reference to Satanism in the report from Swannoa. However, Dr.

McCoy testified that she felt that it was fairly normal under the circumstances and that she

saw the Petitioner as struggling with spirituality.

Dr. McCoy testified that she learned on Friday following the guilty verdict that she

would not be called to testify. According to her, lead counsel, who was very upset,

telephoned her after an in-camera conference with the trial court and the State. He informed

her that the prosecutor had gone “ballastic” about receiving the mitigation report so late and

that the prosecutor believed it was all hearsay. Dr. McCoy testified that lead counsel then

44

asked her to lie and say she had just given him the report the previous day, but she refused.

Dr. McCoy testified that she asked lead counsel if he would like her to call Herb Moncier,

a local attorney, to ask his opinion. When Dr. McCoy was unable to reach Mr. Moncier,

lead counsel informed her that he would not have her testify in the case.

Despite being informed that she would not be called to testify, she met with lead

counsel later that evening to discuss the options. Dr. McCoy stated that they talked for

several hours and that lead counsel was upset, saying they will “probably post-convict me on

this.” After their discussion, the decision was made to call three witnesses to testify, those

being the Petitioner’s parents and her aunt. Dr. McCoy met with the witnesses the next

morning to prepare them to testify. Dr. McCoy stated that it was extremely important to

show the reasons the Petitioner had turned out the way she had. She stated that it was

impossible to do so by calling only three family members. She described the mitigation

presented as “punnie and pathetic.”

Dr. McCoy also testified regarding a situation which arose post-trial. She indicated

that she was contacted by the victim’s attorneys, who were asking for a copy of her report.

She telephoned lead counsel for advice, and he advised her against disclosing the report. He

later sent her a letter in which he questioned her ethics, and Dr. McCoy sought the advice of

counsel. In order to set the record straight, her attorney helped her draft a letter in response

to lead counsel. Lead counsel then telephoned her and stated that he just wanted to drop the

issue, as they had previously gotten along.

Dr. McCoy also testified that she had engaged in a brief dating relationship with

General Crabtree. She stated, however, that the relationship was over prior to her beginning

to work on the Petitioner’s case. She indicated that, early on in the case, she informed lead

counsel of this fact, and he said he had no problem with it. When Dr. McCoy heard rumors

that lead counsel and co-counsel were indicating she had withheld this information, leading

to their decision not to call her as a witness, she contacted Herb Moncier. He advised her to

let it go, as it would come out on post-conviction.

Although Dr. McCoy was not asked to prepare an opinion for the trial, she did prepare

one for the post-conviction hearing. She used charts and graphs to support the borderline

personality diagnosis. Her general conclusions were:

(1) The Petitioner came from a highly dysfunctional family and that many

of her subsequent developmental issues stemmed from this;

(2) The Petitioner experienced multiple traumatic events during her

childhood and adolescence, including rapes and physical abuse by

45

multiple parties, which also contributed to the exacerbation of her

psychiatric problems;

(3) The Petitioner’s parents did not sufficiently address and handle her

emotional and psychological problems;

(4) The Petitioner had multiple psychological problems including:

(a) attachment issues which significantly contributed to her

dysfunctional relationships;

(b) an inability to maintain emotional control, particularly during

periods of stress, and a reliance on others to help her maintain

control;

(c) a constant need for attention;

(d) an assumption of a tough-girl image to compensate for her lack

of self-esteem and self-respect; and

(e) a need to please others and a willingness to be influenced by

others, regardless of the cost to herself.

(5) The Petitioner was experiencing great stress at the time of the

homicide, which contributed to her participation.

Dr. McCoy stated that, at the time of the murder, the Petitioner felt that her identity,

which she felt centered around Shipp, was slipping away. She also opined that because of

the Petitioner’s problems at the Job Corp and her problems with the victim, the Petitioner felt

that she was losing her sense of self-esteem and identity. Because of the Petitioner’s

borderline personality disorder, she felt frantic and experienced irrational anger. Dr. McCoy

referenced and discussed prior times in the Petitioner’s life when she became extremely

angry and stated that the Petitioner simply did not have the control of a normal person.

On cross-examination, Dr. McCoy acknowledged that, although she had previous

capital case experience as a mitigation specialist, she had never testified in any of those trials.

She reiterated that she was comfortable with Dr. Engum’s diagnosis and again stated that it

was not her responsibility to reach a diagnosis in this case. She acknowledged that she did

not necessarily look for things which would contradict Dr. Engum’s conclusions. She also

46

testified that because Dr. Engum was a neuropsychologist, she assumed that if a neurologist

was needed, he would have made that suggestion.

Herb Moncier, a Knoxville attorney, testified that he spoke with Dr. McCoy about her

relationship with General Crabtree after she sought his advice on whether it created a

problem with her working on the Petitioner’s case. He informed her that it should not be a

problem but that she should inform lead counsel. Mr. Moncier also testified that sometime

after the trial began, Dr. McCoy called him, upset, and informed him that Mr. Talman had

asked her to say something that was untrue. Mr. Moncier advised her not to lie and that the

issue would be raised in post-conviction. Mr. Moncier also testified that Knoxville had an

excellent bar and that any number of attorneys would have happily assisted lead counsel if

he had asked.

Gregory Isaacs, another local attorney, testified next. He stated that he had been

involved in two capital cases and a number of homicide cases and that he had occasionally

used Dr. McCoy. He testified that she was very competent and made a good witness. Mr.

Isaacs also testified that he dealt with Dr. McCoy in a representative capacity following the

Petitioner’s trial. He testified that he assisted her in drafting a response to lead counsel’s

letter to Dr. McCoy questioning her ethics.

The final witness to testify was Dr. William Kenner, an expert in forensic psychiatry.

He testified that he was appointed by the court in 2001 to conduct a competency evaluation

of the Petitioner in order to see if she could waive her post-conviction appeals. In

performing his evaluation for the court, Dr. Kenner met with the Petitioner on five occasions

and, afterward, an additional two times. He testified that he also reviewed extensive records,

including medical records of some of the Petitioner’s family members. He ultimately

diagnosed the Petitioner as suffering from:

Axis I (active diagnosis) Bipolar Disorder

hypomanic recurrent

Axis II (personality disorder) Borderline Personality Disorder

Antisocial Personality Disorder

Axis III (active medical

condition) von Willibrand Disease

Alix IV (psychosocial stressors) Problems with primary support group,

social environment, incarceration

47

Axis V (global assessment) 15

Dr. Kenner testified that in his first meeting with the Petitioner, there were some

suggestions of bipolar disorder, but it “didn’t sort of knock me over” that way. He opined

that the diagnosis requires multiple observations over time because people with bipolar

disorder cycle. Dr. Kenner indicated that his second meeting with the Petitioner was

completely different and that it became clear that sleep deprivation affected her. In prison,

it showed up as irritability. The Petitioner told Dr. Kenner that she did “stupid” stuff when

she was not in prison.

In 2002, the Petitioner was prescribed Lithium, and her reaction to the drug was

dramatic. According to Dr. Kenner, her major improvement after taking the drug is what

would be expected from someone with bipolar disorder. Following another evaluation in

2002, he re-diagnosed the Petitioner and concluded that she did not suffer from borderline

personality disorder as he had previously concluded but rather it was part of her bipolar

spectrum disorder. He acknowledged that bipolar disorder is an illness which “doesn’t have

terribly clear borders.” Dr. Kenner also concluded that the Petitioner was not antisocial. Dr.

Kenner further acknowledged an ongoing debate in the mental health community as to

whether borderline personality disorder is misdiagnosed bipolar disorder or whether there is,

in fact, borderline personality disorder. He also indicated that new diagnoses are constantly

emerging in this field.

According to Dr. Kenner, he felt that there was data available at the time of trial which

could have been discovered if a competent physician had conducted an examination of the

Petitioner. He specifically noted that there was significant data to suggest early onset bipolar

disorder, based upon the Petitioner’s history. He indicated that it was critical to explain this

to the jury, tying it back into the Petitioner’s personal history. He explained that this was so

important because, at the time of the murder, the Petitioner was experiencing a two-to-four

day cycle of sleep deprivation with increasing irritability, which peaked at the time of the

murder.

Dr. Kenner further testified that there were records available for raising the medical

question of whether the Petitioner had brain damage, based upon her seizures, her abnormal

test results, and the head injury she suffered as an adolescent. He suggested that medical

testing, such as an MRI, should have been done on the Petitioner prior to a final diagnosis.

Dr. Kenner acknowledged that, given the information the defense team possessed, borderline

personality disorder was a reasonable diagnosis when the trial was held.

Dr. Kenner said that, in his opinion, the structure of the defense team was odd. He

asserted that the lines of communication all went to lead counsel and that there appeared to

48

be little expert information shared. He noted that Dr. Bernet never saw the Petitioner and

that, from what he learned, Dr. Engum never reviewed Dr. McCoy’s work. Dr. Kenner also

noted that the fact that Mr. Talman attempted to solicit a medical opinion from Dr. Bernet,

who had to then answer that he had not examined the Petitioner, made Dr. Bernet’s entire

theory seem more suspect to the jury.

After hearing the evidence presented, the post-conviction court, by written order,

denied relief. The Petitioner has timely appealed.

Analysis

On appeal to this court, the Petitioner presents a number of claims that can be

characterized in the following categories: (1) the post-conviction court should have recused

itself; (2) the Petitioner’s trial counsel were ineffective; (3) the Petitioner is ineligible for the

death penalty; and (4) the death penalty is unconstitutional.

Standard of Review for Post-Conviction Cases

Post-conviction relief is only warranted when a petitioner establishes that his or her

conviction is void or voidable because of an abridgement of a constitutional right. T.C.A §.

40-30-103. The petition challenging the Petitioner’s convictions is governed by the 1995

Post-Conviction Act, which requires that allegations be proven by clear and convincing

evidence. See T.C.A. § 40-30-110(f). Evidence is clear and convincing when there is no

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

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

Once the post-conviction court has ruled upon a petition, its findings of fact are

conclusive on appeal unless the evidence in the record preponderates against them. Wallace

v. State, 121 S.W.3d 652, 656 (Tenn. 2003); State v. Nichols, 90 S.W.3d 576, 586 (Tenn.

2002) (citing State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999)). This court may not reweigh

or reevaluate the evidence or substitute its inference for those drawn by the post-conviction

court. Nichols, 90 S.W.3d at 586. Questions concerning the credibility of witnesses and the

weight to be given their testimony are for resolution by the post-conviction court. Id. (citing

Henley v. State, 960 S.W.2d 572, 579 (Tenn. 1997), reh’g denied, (1998), cert. denied, 525

U.S. 830 (1998)). It is, therefore, the burden of the petitioner to show that the evidence

preponderated against those findings. Clenny v. State, 576 S.W.2d 12, 14 (Tenn. Crim. App.

1978).

Notwithstanding, determinations of whether counsel provided a petitioner

constitutionally deficient assistance present mixed questions of law and fact. Wallace, 121

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S.W.3d at 656; Nichols, 90 S.W.3d at 586. As such, the findings of fact are reviewed under

a de novo standard, accompanied with a presumption that those findings are correct unless

the preponderance of the evidence is otherwise. See Fields v. State, 40 S.W.3d 450, 458

(Tenn. 2001) (citations omitted). In clarifying the standard, our supreme court explained that

the standard for reviewing the factual findings of a trial court has always been in accordance

with the requirements of the Tennessee Rules of Appellate Procedure, specifically Rule

13(d). Id. at 456.

I. Recusal of Post-Conviction Court

The Petitioner contends that the post-conviction court, who also served as the trial

court, committed constitutional error by failing to recuse itself from the post-conviction

proceedings. Specifically, the Petitioner asserts that “the post-conviction court was

disqualified from deciding [the] Petitioner’s post-conviction claim because [the court] had

personal knowledge of material facts in dispute.” The Petitioner further contends that “in

light of [the Petitioner’s] post-conviction claims [, namely the asserted conflict of interest of

trial counsel,] a reasonable person would have considered the post-conviction court incapable

of impartial adjudication of [the Petitioner’s] post-conviction petition.”

At a hearing held on February 26, 2007, the Petitioner’s post-conviction counsel

argued that the post-conviction court had a duty to recuse itself because the post-conviction

court had appointed lead counsel to represent the Petitioner, knowing of counsel’s potential

conflict created by the overbilling issue. Counsel for the Petitioner further asserted that the

post-conviction court should recuse itself because there was an appearance of impropriety

regarding the court’s presiding over matters involving trial counsel and overbilling. Finally,

counsel for the Petitioner argued that the court was a necessary witness at an unrecorded

hearing in chambers after the return of the guilt phase verdict.

The post-conviction court made the following findings of fact and conclusions of law

relative to the motion for recusal:

. . . it’s discretionary . . . with the statute. But a judge should hear their own

petitions for post-conviction relief. . . . The reason why is because the judge

knows better what happened in these cases than anybody else . . . and can

understand the issues better without having to go backwards and learn them.

...

....

In this case I think it’s pretty obvious that everyone in Knox County

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knew that [lead counsel] had problems with his billing. He also had been

appointed . . . by Judge Jenkins. . . . And he was a death-qualified attorney

with an active law license without restrictions. He too was presumed innocent

until proven guilty. As it turned out he was never prosecuted in this case. . .

. And he kept his law license all the way through until you said there had been

a suspension at some time later. But he did have a problem . . . it was

generally known in the courts in Knox County.

Evidently, it was also generally known in the Supreme Court of

Tennessee – . . . the Supreme Court appointed him to represent Mr. Irick in

what was a death case. And he represented [the Petitioner]. . . .

Now, whether or not [lead counsel] had a cloud over him that so

inhibited his ability to practice law that it affected [the Petitioner’s]

representation is an issue for post-conviction. . . . But I don’t . . . think that I

had had or have now any interest in protecting my rulings, protecting myself

that was placed above any interest to do justice in this case. So with respect

to a mandatory disqualification, I don’t think I’m obliged to be disqualified

because I knew or . . . we all knew that [lead counsel] had his own problems.

....

. . . And I don’t think that there’s any reason that I should recuse myself as a

mandatory obligation based upon the Tennessee Constitution. . . .

....

Having a lot of knowledge about this case doesn’t make me less than

impartial. And when I say me this isn’t a personal ruling as we’ve discussed.

This is a judicial ruling.

Now, as to whether or not there’s an appearance of impropriety and,

therefore, based upon the cannons I should recuse myself . . . Miss Pike . . .

raised the issue of the appointment of [lead counsel] as discretionary issue.

And . . . I understand why the issue was raised. . . .[I]t’s not a personal issue.

. . . If I have opinions or knowledge and, obviously, . . . I have more

knowledge of this case than anyone else in this room is not a ground to recuse

myself. . . .

....

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. . . So I don’t think I have any interest in the outcome other than to get this

post-conviction petition on the road. . . .

....

I’ve been sitting here for seventeen years. I’ve been reversed. I’ve

gone back and started again. In fact, I was reversed in Tadaryl Shipp’s case

as to sentencing. . . . [T]hat doesn’t give me any reason not to do my job in

this case. I have thought very hard the last couple of weeks - - - whether or not

my involvement in this case has taken me to the level that I should recuse. I

don’t find that to be the case.

....

And that’s what a post-conviction petition is. It asks the Court to go

back and review everything and make sure that it was done properly, and if it

wasn’t it is the duty of the Court to review and to overturn a conviction. It’s

my obligation; that’s my job. And I don’t see a reason why – and if I don’t do

that job properly, somebody else is going to reverse it. So I don’t see a reason

to recuse myself for that reason either.

On appeal, the Petitioner relates that her “foremost claim for post-conviction relief is

that her trial counsel [, lead counsel,] was ineffective in light of a conflict of interest” created

by his being under investigation by the Indigent Defense Fund and that he had disciplinary

sanctions pending at the time of his representation of the Petitioner. She further relates that

“as a result, it was in [lead counsel’s] pecuniary and penological interest to avoid agitation

of either the prosecutor or the trial court in the trial.” Her argument with regard to the post-

conviction court’s recusal appears to center around the in-camera meeting held in the court’s

chambers, off the record, immediately preceding the penalty phase of the trial. The Petitioner

contends that the events of that meeting substantiate a claim of conflict which mandates

vacating her sentence based on her theory that lead counsel turned over the mitigation

materials at that time to placate the State, a theory supported by the testimony of Dr. McCoy

and two Knoxville attorneys. With regard to the present argument, the Petitioner contends

that “what is critical is that the post-conviction court . . . was a party to the unrecorded in

camera meeting.”

It is not disputed that the post-conviction court was qualified to preside over the post-

conviction proceedings and, generally, adjudication of a post-conviction petition by the same

court which presided over a petitioner’s trial is both proper and expedient. State v. Garrard,

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693 S.W.2d 921, 922 (Tenn. Crim. App. 1985); T.C.A. § 40-30-105 (b) (1995). Nor is

recusal automatically required when a judge is called upon to review their own order.

Additionally, our supreme court has held that prior knowledge of facts about a case is not

sufficient, in and of itself, to require disqualification. State v. Paul Dennis Reid, 213 S.W.3d

792, 815 (Tenn. 2006). The Petitioner contends, however, that this case is distinguishable

from the general because her claim “involves the court itself being instrumental in denying

[the Petitioner] a fair trial,” thus taking this claim “outside the normal presumption of

impartiality that attaches to post-conviction adjudication by the same court that presided at

trial.”

The Petitioner centers her argument around statements made by the post-conviction

court at the hearing in which she quashed the subpoena which had been issued to the court

and denied the motion to recuse:

I have no independent memory [of the meeting] other than that there

was three volumes. I remember that there were volumes - and I’m not trying

to testify; I’m just trying to- trying to make a ruling here - of mitigation

materials. Those were turned over to the State as required after the verdict.

The State had no - not enough time. And then - and I can’t imagine

why - why there would even be an issue about when [lead counsel] received

those materials because they didn’t go to the State anyway at that point. And

maybe the State was arguing that they were entitled and I ordered them turned

over.

....

Again, for the purposes of your Motion for a Subpoena, a judge speaks

through their rulings. So you can take those rulings and say, “Okay. These are

the grounds for post-conviction petition.” But you can’t subpoena me to ask

me what I thought or what I think or what I remember. I’ve told you as much

as I can in order to make this case go forward.

I remember that evening. I remember that verdict coming in. I

remember us having a discussion, and I remember us discussing whether -

when the State got its materials. And everything is spoken for through the

transcript, I think. And if there isn’t - and if there’s anything else we’re going

to get it out of those transcripts that we have.

The Petitioner points to numerous alleged misstatements of law and a myriad of ways

53

which these statements indicate the post-conviction court’s knowledge of facts which would

affect her decision on the merits of the Petitioner’s claim. The Petitioner asserts that

“because [the post-conviction court] presided over [the Petitioner’s] post-conviction petition

as post-conviction court, [the court] served as witness, judge, and jury” in violation of the

Petitioner’s constitutional right to confront witnesses.

We cannot agree with the Petitioner’s contention that the post-conviction court should

have recused itself based solely on the ground that the court was party to an in-camera

meeting between the parties. The Petitioner puts forth mere allegations as to how this

affected the court’s impartiality with regard to deciding the conflict of interest claim.

Nothing in the record supports the Petitioner’s theory or supposition. The post-conviction

court’s comment in no way leads us to conclude that it was harboring under a veil of

impartiality with regard to the decision. Nor are we convinced that the court’s mere presence

at the meeting is a sufficient reason to force the court’s disqualification. The Petitioner has

failed in her burden of establishing this claim.

As a separate, yet related argument, the Petitioner contends that, based upon the recent

holding in Frazier v. State, 303 S.W.3d 674 (Tenn. 2010), the Petitioner’s conviction and

sentence must be set aside because the trial court failed to follow the requisite procedures if

it is aware that counsel is operating in a conflict of interest. The Petitioner contends that the

failure results in structural error. While we do not dispute the Petitioner’s interpretation of

the Frazier holding, we find her reliance upon it misplaced. The premise in Frazier requires

that trial counsel be operating under a conflict of interest. As expressed infra, that is not the

case before us.

II. Ineffective Assistance of Counsel

A. Standard of Review

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

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

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

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

Amendment.” Gideon v. Wainwright, 372 U.S. 335, 350 (1963) (quoting Betts v. Brady, 316

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

counsel. Cuyler v. Sullivan, 446 U.S. 335, 344 (1980); McMann v. Richardson, 397 U.S.

759, 771 n.14 (1970); see also Strickland v. Washington, 466 U.S. 668, 686 (1984).

“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

54

be relied on as having produced a just result.” Strickland, 466 U.S. at 686; Combs v. Coyle,

205 F.3d 269, 277 (6th Cir. 2000). A two-prong test directs a court’s evaluation of 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 [petitioner] by the Sixth

Amendment. Second, the [petitioner] must show that the deficient

performance prejudiced the defense. This requires showing that counsel’s

errors were so serious as to deprive the [petitioner] of a fair trial, a trial whose

result is reliable.

Strickland, 466 U.S. at 687; see also Combs, 205 F.3d at 277.

The performance prong of the Strickland test requires a petitioner raising a claim of

ineffectiveness to show that counsel’s representation fell below an objective standard of

reasonableness, or “outside the range of professionally competent assistance.” Strickland,

466 U.S. at 690; see also Kimmelman v. Morrison, 477 U.S. 365, 386 (1986). “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. 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 [petitioner] must overcome the presumption that, under the

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

466 U.S. at 689. 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, it is acknowledged that criminal defendants are not entitled to perfect

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

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

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

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

it is the duty of this court to “search for constitutional [deficiencies] with painstaking care”

as this responsibility is “never more exacting than it is in a capital case.” Id. at 785.

B. Denied Right to Unconflicted Counsel

The Petitioner contends that she received ineffective assistance of counsel because of

two distinct conflicts of interests. Specifically, the Petitioner claims that lead counsel was

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hampered by actual conflicts of interest in that he:

1. stole from the indigent defense fund and lied to the court.

2. procured a release of media rights from the Petitioner.

The Petitioner asserts that these two distinct conflicts of interest rendered the representation

received constitutionally inadequate. She further contends that no showing of prejudice is

required with regard to these claims.

1. Defense Fund Investigation

The Petitioner’s first contention of a conflict is based upon the Comptroller’s

investigation into lead counsel’s prior billings to the indigent defense fund. There is no

dispute in the facts that lead counsel was investigated for overbilling the Indigent Defense

Fund and repaid more than $60,000 to the fund. Nor is it disputed that lead counsel self-

reported to the Board of Professional Responsibility and that the claim remained unresolved

at the time of trial. Eventually, as a result, the Tennessee Supreme Court suspended lead

counsel’s license for eleven months, twenty-nine days. The sanction, however, was not

entered until November 24, 1998, one day after the supreme court affirmed the Petitioner’s

conviction and sentence. Neither lead counsel nor any other attorney involved in the

fraudulent billing was prosecuted criminally for their actions.

The Petitioner’s claim on appeal, although somewhat unclear, appears to be that lead

counsel was conflicted be

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