David Keen v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

December 6, 2005 Session

DAVID KEEN v. STATE OF TENNESSEE

Direct Appeal from the Criminal Court for Shelby County

No. P-25157 Chris Craft, Judge

No. W2004-02159-CCA-R3-PD - Filed June 5, 2006

Capital Petitioner David Keen appeals as of right the judgment of the Shelby County Criminal Court

denying his petition for post-conviction relief. Petitioner Keen pled guilty to first degree felony

murder committed in the perpetration of the rape of eight-year-old Ashley Nicole (Nikki) Reed. See

State v. Keen, 31 S.W.3d 196 (Tenn. 2000); State v. Keen, 926 S.W.2d 727 (Tenn. 1996). He was

sentenced to death. On direct appeal, the petitioner’s conviction was affirmed, but the supreme court

reversed and remanded the sentence of death after finding reversible error due to erroneous jury

instructions. Keen, 926 S.W.2d at 736. On remand, the jury, again, imposed the penalty of death.

Keen, 31 S.W.3d at 202. Our supreme court affirmed the sentence of death on direct appeal. Id.

A pro se petition for post-conviction relief was filed on May 3, 2001, which was followed by the

appointment of counsel and an amended petition on November 16, 2001. An evidentiary hearing

was conducted and, on August 2, 2004, the post-conviction court denied relief and dismissed the

petition. On direct appeal to this Court, the petitioner presents for our review the following claims:

(1) whether the petitioner was denied a fair trial due to jury misconduct; (2) whether the petitioner

received constitutionally effective assistance of counsel at his sentencing hearing; (3) whether the

death sentence violates the holdings in Apprendi, Ring, or Jones; (4) whether the prosecutor’s

discretion in seeking the death penalty violates Bush v. Gore; (5) whether the imposition of the death

penalty is unconstitutional; and (6) whether imposition of the death penalty violates international

law. After a careful and laborious review of the record, this Court concludes that there is no error

requiring reversal. Accordingly, the judgment of the post-conviction court is affirmed.

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

THOMAS T. WOODALL, J., delivered the opinion of the court, in which ALAN E. GLENN and ROBERT

W. WEDEMEYER , JJ., joined.

Donald E. Dawson, Nashville, Tennessee; and Catherine Y. Brockenborough, Nashville, Tennessee,

for the appellant, David Keen.

Paul G. Summers, Attorney General and Reporter; Michelle Chapman McIntire, Assistant Attorney

General; and William L. Gibbons, District Attorney General, for the appellee, State of Tennessee.

OPINION

Background

The proof as set forth in the supreme court’s decision opinion affirming the imposition of the

death penalty established the following:

At the time of the tragic events giving rise to this case, the appellant was

living with his then-fiancée, Deborah Wilson, in a three-bedroom mobile home in

Millington, Tennessee. Also living with the appellant and his fiancée were Deborah’s

four children, including Ashley Nicole, her mother, and her father. During the late

afternoon of March 17, 1990, the appellant and Deborah met her mother and father

at the VFW Club in West Memphis, Arkansas, to eat dinner and play bingo. All of

Deborah’s children were spending the night with various friends. Shortly after the

appellant and Deborah arrived at the VFW Club, Deborah’s father, Jessie Wilson,

expressed some concern over Nikki’s arrangements to sleep over at a friend’s house.

The appellant offered to go back to Millington to check on Nikki, and Mr. Wilson

allowed the appellant to borrow his car to make the short trip.

The appellant left the VFW Club at about 5:30, and he returned about two

hours later. Upon returning, he told everyone that Nikki was spending the night with

her friend, Shantell. The group stayed at the VFW Club until about 10:30 that

evening, and on his way back home to Millington, Mr. Wilson noticed that the green

blanket he usually kept in his car was missing. Mr. Wilson questioned the appellant

about the blanket, but the appellant merely replied that he put the blanket in the back

seat of the car because he did not want to sit on it.

The next morning, Deborah and the appellant went shopping at the local Wal-

Mart while Mrs. Wilson went to pick Nikki up for church. When Mrs. Wilson

returned home, she told her husband that Nikki did not go to her friend’s house the

previous evening, and the two of them searched around the mobile home park for

Nikki. When Deborah and the appellant returned from shopping, they joined the

search for Nikki. After searching all day and finding no trace of his granddaughter,

Mr. Wilson told Deborah to report Nikki’s disappearance to the police. Deborah and

the appellant then left on foot for the police station to file a missing persons report.

In the meantime, Mr. Wilson and his wife again searched the trailer park, and after

waiting some time for Deborah and the appellant to return from the police station,

they decided to drive to the police station themselves. As soon as Mrs. Wilson

opened the door to get into her car, she saw a pair of panties lying on the passenger-

side floorboard. Mr. Wilson told his wife not to move the panties, and they drove to

the police station where they notified an officer about their discovery. When Mr.

Wilson later approached the appellant about the panties in the car, the appellant was

evasive and would not answer his questions.

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The next day, a detective with the Millington Police Department asked the

appellant and Deborah to come to the police station for questioning. Although the

appellant initially denied any involvement in Nikki’s disappearance, he admitted after

further questioning by the police that he “threw her in the river.” The appellant then

took the detective and others officers to Memphis along the north end of Mud Island

in the Wolf River, where the police found Nikki’s naked body wrapped in a green

blanket. Although the police found a blue denim skirt and a pink shirt wrapped with

the body, the officers found no panties.

The appellant was taken to the Memphis Police Department where he again

confessed to the murder of Nikki Reed. The appellant stated that when he found

Nikki, he intended to take her back with him to West Memphis because he was

unsure whether she could spend the night with her friend. In his initial statement to

the Millington police, the appellant stated that on the return trip to West Memphis,

he and Nikki argued about something concerning her seat belt. The appellant stated

that during this argument, he became very angry, grabbed Nikki’s throat, and covered

her mouth until she turned blue. Although he admitted to wrapping Nikki’s body in

the green blanket and throwing her into the river, he could not remember whether he

struck her, took her clothes off, or raped her.

However, when questioned further in Memphis about the incident, the

appellant admitted to his actions in gruesome detail:

I pulled off to the side of the road and undressed Ashley and undid

my pants, and I held my hand over her throat and tried to penetrate

[her]. I felt crap and I stopped, and Ashley had turned blue in the face.

She wasn’t breathing. I tied a shoe lace around her neck and she still

was not breathing. I untied the shoe lace, wrapped her up in a blanket,

tied the blanket together and dumped her off into the river off of the

old Auction Street boat Dock. Then I went back over to West

Memphis and told Ashley’s mother that Ashley was spending the

night at her friend, Shantell’s, house.

The appellant also stated that Nikki struggled “for a little while,” although she

did not scream or holler, because he “was practically on top of her with [his] hand on

her throat.” Nikki was eight years old and weighed sixty-eight pounds.

At the sentencing hearing, the State called Dr. Jerry Francisco, the Shelby

County Medical Examiner, to testify as to the results of the victim’s autopsy. Dr.

Francisco testified that Nikki suffered multiple scrapes and bruises to her face and

neck, and that she had a deep ligature mark around the front of her neck caused by

a tightly-pulled fabric cord, such as a shoelace. The medical examiner also found a

bruise and scrapes around her genital area and a tear on the posterior wall of the

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vagina. Sperm heads were also found inside the vagina. Dr. Francisco determined

that Nikki was alive while she was raped and suffered the various injuries, although

he could not say with certainty that she was conscious during the entire episode.

In addition, the autopsy revealed that fluid was found in the lungs of the

victim. Although Dr. Francisco stated that fluid in the lungs can be associated with

either drowning or asphyxia, he testified that the left side of the heart was diluted,

which “is the type of change you see in a person who is alive and submerged.”

Although the medical examiner stated that the ligature strangulation was the actual

cause of death, he also stated that “[i]n my opinion, she was alive at the time she was

placed in the water.”

In mitigation, the defense called the appellant’s adoptive parents, Robert and

Evelyn Brieschke, who adopted the appellant and his older brother when the

appellant was four years old. His adoptive parents testified that the appellant was

malnourished when he was first adopted, and that he was very nervous and upset, had

difficulty playing and interacting with others, and had difficulty sleeping. The

appellant was diagnosed with Attention Deficit Disorder in fourth grade, and he was

placed on Ritalin, which offered some improvement. The Brieschkes later learned

from a psychological report completed before the appellant’s adoption that the

appellant was in need of immediate help and counseling, although this information

was kept from them at the time of the adoption. In high school, the appellant skipped

classes, smoked marijuana, and drank alcohol. At one point, he was arrested for

breaking into an automobile agency and stealing a car. In his junior year, the

appellant dropped out of high school and joined the United States Navy.

The appellant’s brother and two stepsisters testified that the appellant’s

natural father was physically and emotionally abusive. Because his father was wanted

for theft and child neglect, he constantly moved his family to evade arrest, and during

one two-year period, the family moved no less than twenty-six times. The children

were beaten on a daily basis, sometimes with electrical cords and pieces of lumber.

The father would also slaughter livestock in front of his children while threatening

to do the same to them if they misbehaved. One of the appellant’s sisters, who

admitted being the victim of sexual abuse, described their childhood as “an

environment of terror.” Even after the appellant was abandoned by his natural

parents, he was placed in an abusive foster home before being adopted by the

Brieschkes. The defense also called Dr. John Ciocca, a clinical psychologist, who

conducted a psychological evaluation of the appellant and testified as to the results.

Dr. Ciocca diagnosed the appellant as suffering from post-traumatic stress disorder,

serious depression, and attention deficit disorder. Dr. Ciocca stated that the appellant

also showed some signs of pedophilia, although he admitted that he found no

indications of persistent and constant sexual interest in children, which is necessary

for a proper diagnosis. One of the tests administered by Dr. Ciocca indicated that the

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appellant suffered from occasions “where he is not in good contact with reality,” and

that another test showed the “presence of psychotic-like symptoms.”

Dr. Ciocca also interviewed the appellant and his family, and he reviewed

numerous medical and psychological records, including an evaluation conducted at

Winnebago State Hospital in Wisconsin. From an examination of these interviews

and records, Dr. Ciocca testified that the appellant was “born into a family of crisis,”

which “had fallen on hard times,” and in which “physical abuse and sexual abuse

were rather rampant.” Although he was relocated to a foster home, the appellant

remembered being abused and anally raped by his foster father. According to Dr.

Ciocca, the absence of nurturing, along with the presence of general hostility or

apathy toward the appellant significantly affected his normal childhood development.

Dr. Ciocca also stated that the appellant was “extraordinarily distressed at what he’s

done,” and that he “takes full responsibility for it.”

The State argued to the jury that the facts supported the presence of two

aggravating circumstances: (1) that the murder was committed against a person less

that twelve years of age and the defendant was eighteen years of age or older, see

[T.C.A.] § 39-13-204(i)(1); and (2) that the murder was especially heinous, atrocious,

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

produce death, see [T.C.A.] § 39-13-204(i)(5). The appellant, on the other hand,

argued that fourteen statutory and non-statutory mitigating circumstances applied and

should be considered. The jury found that the State proved both aggravating

circumstances beyond a reasonable doubt, and after finding that these aggravating

circumstances outweighed any mitigating circumstances beyond a reasonable doubt,

the jury sentenced the appellant to death. The jury made no specific findings as to

which, if any, mitigating circumstances were supported by the proof.

Keen, 31 S.W.3d at 202-205 (internal footnote omitted).

Post-Conviction Hearing

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 conviction for first-degree murder 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.

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Burns, 6 S.W.3d 453, 461 (Tenn. 1999)). This Court may not reweigh or reevaluate the evidence

or substitute its inferences 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. Nichols, 90 S.W.3d at 586 (citing Henley v. State, 960

S.W.2d 572, 579 (Tenn. 1997)). Notwithstanding, determinations of whether counsel provided a

defendant constitutionally deficient assistance present mixed questions of law and fact. Wallace, 121

S.W.3d at 656; Nichols, 90 S.W.3d at 586. As such, our review is de novo, and we accord the

conclusions reached below no presumption of correctness. Wallace, 121 S.W.3d at 656; Nichols,

90 S.W.3d at 586.

Evidence Presented at Post-Conviction Hearing

Ernest Bowles, Sr. testified that he was member of the jury in the case of State v. David Keen.

Mr. Bowles related that the jury was sequestered for five days, during which Mr. Bowles was in

possession of his Bible. He stated that he brought his Bible into the courtroom and that he took the

Bible with him into the deliberation room. Mr. Bowles recalled that, during deliberations, he read

a passage from Romans 13, specifically:

. . . [l]et every soul be subject unto the higher powers. For there is no power but of

God; the powers that be are ordained of God. Whosoever therefore resisteth the

power, resisteth the ordinance of God; and they that resist shall receive to themselves

damnation. For rulers are not a terror to good works, but to the evil. Wilt thou then

not be afraid of the power? Do that which is good, and thou shalt have praise of the

same. For he is the minister of God to thee for good. But if thou do that which is

evil, be afraid; for he beareth not the sword in vain; for he is the minister of God, a

revenger to execute wrath upon him that doeth evil.

He stated that he read this verse at a point in deliberations when “we had one juror didn’t believe in

the death penalty. . . .” Mr. Bowles explained that he read the passage because it dealt with

punishment. He added that “[i]f you commit a crime you’re supposed to be punished.” Although

this was the only passage read aloud during deliberations, the jurors did pray together.

On cross-examination, Mr. Bowles stated that the imposition of the death penalty was based

on the law and on the evidence. He asserted that he believed that the State “proved beyond a

reasonable doubt that the defendant should get the death penalty.”

Nancy Hurlburt, another juror, recalled that, during jury deliberations, one juror “read from

the Bible and I asked if I could say a prayer.” Ms. Hurlburt could not recall the passage read from

the Bible. However, she did relate that the passage was read “when the Judge sent us back,

immediately when the Judge sent us back.” Ms. Hurlburt could not recall which occurred first, the

prayer or the reading of the passage. Regarding the prayer, Ms. Hurlburt stated that it was out loud,

but she could not recall anyone else participating. Ms. Hurlburt opined that neither the prayer nor

the reading of the passage were done with the intent to influence anyone’s decision; rather “these

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things were done just to let us have the peace of mind that we were making the right decision.” She

further related that the decision to impose the death penalty was based on the law and evidence

presented and not on the Bible. Ms. Hurlburt denied any allegation that the reading of the Bible

passage was done to influence the jurors’ decision.

A third juror, Fannie Goodman, recalled that, during deliberations:

. . .[S]ome of us had Bibles, others were to themselves meditating, then one of the

jurors read a verse and we all sat down to discuss our options or choices to make [a]

decision.

And after we went over the evidence and everything one of the jurors read

from the Book of Romans, and we held hands and we prayed and we cast our votes.

Ms. Goodman stated that the first verse was from the Book of Corinthians. She explained that the

“prayer was mostly for our personal comfort.” She further stated that the verdict imposed was a

result of the law of the State of Tennessee and not due to reliance upon the Bible.

Robert Jones, presently the Shelby County Public Defender, was the coordinator of the

Capital Defense Team for the Shelby County Public Defender’s Office in 1991. At the time of the

re-sentencing hearing in 1997, Mr. Jones held the position as Deputy Administrator with the Public

Defender’s Office in addition to remaining a member of the Capital Defense Team.

On March 20, 1990, Mr. Jones was appointed to represent the petitioner. A conference with

the petitioner was held that same day. He explained the dynamics of the capital case team at that

time. At the time of appointment, one member would immediately go to the jail to talk with the

client. Once this attorney made an initial assessment and report to the team, the entire team

participated in an initial intake. The team consisted of two attorneys, an investigator, a factual

investigator and a mitigation specialist. An appellate attorney from the Office would also be

consulted from time to time. The defense team also had “law clerks and . . .we brought in

psychologists, whatever professionals that we needed and used them as part of the team.” After the

initial intake, the individual team members had “their tasks to do” and Mr. Jones would meet

periodically with them. Mr. Jones explained that “the purpose of getting the team together is to try

to convince the jury to give something other than the death penalty, and whatever it takes as far as

providing them with that information that’s what we do.”

Mr. Jones related that the time spent preparing before the first trial and second trial varied.

The preparation for the first trial involved more investigation and more time spent reviewing witness

statements. For the second trial, “it was a lot of time spent reviewing trial transcripts and looking

over the mitigation from the previous trial and trying to make the determinations of any changes that

we should make. So it was entirely a different type of preparation then than before.”

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A psychologist was used by the defense team in both the 1991 trial and 1997 trial. Mr. Jones

stated that the psychologist was selected by the team on the basis of that expert being best suited for

the case. In selecting an expert, Mr. Jones related that one must consider the problem that needs to

be concentrated on; sometimes it is mental, sometimes it is background. Accordingly, sometimes

the defense team would need a psychologist and sometimes they would need a psychiatrist. With

regard to social history, Mr. Jones explained that, during the initial meeting, the defense team

procured numerous releases from the petitioner to enable them to obtain medical, school, and other

such records. Information gathered by the mitigation specialist would be shared with the

psychologist.

Mr. Jones testified that, during both trials, the defense team employed various themes of an

abused child for mitigation purposes. This theme was based, in part, on various documents

reflecting the transient lifestyle of the petitioner’s family and their horrendous living conditions.

Intake information also reflected that the petitioner and his brother were placed in foster care.

Mr. Jones related the procedure used in developing mitigation evidence. He stated that

extensive interviews with various persons were conducted, meetings were held, and doctors were

consulted. The attorneys on the team would make determinations regarding what types of experts

would be consulted. In the present case, the defense team determined that a psychologist was a

better choice than a psychiatrist as they had found that psychologists had, in their experience, done

a better job at looking at the background social information.

Mr. Jones stated that the defense team had information regarding the drinking habits of the

petitioner’s birth parents. Mr. Jones opined that the physical and mental abuse of the petitioner

during his childhood were issues that a psychologist needed to review. Mr. Jones stated that no

additional mitigation themes were developed for the second penalty phase. He stated that a different

psychologist, Dr. Ciocca, was used at the second trial. Mr. Jones explained that the change from Dr.

Hutson to Dr. Ciocca was made because they “felt that we needed to do something different.” The

defense team was impressed by Dr. Ciocca’s presentation and felt that he would be a good choice

for getting the points across to the jury. The points that needed to be impressed upon the jury were

the horrific circumstances of the petitioner’s childhood and how that could have impacted him in his

later years. In preparing a mitigation defense, Mr. Jones agreed that one of the jobs of the defense

team was to tell the petitioner’s story in a way so as to humanize him to the jury panel. He explained

that trial counsel must start telling a defendant’s story to the jury as the proof is being developed,

including, in some but not all situations, in opening statements.

Mr. Jones recalled that in the first penalty phase trial he presented the testimony of the

petitioner’s adoptive parents, Mr. and Mrs. Brieschke; the petitioner’s natural brother, Allen

Brieschke; his natural sister, Linda McAfee; Dr. Hutson, Deborah Denny, and Byron Ramondo

Catron. At the second penalty phase trial, another sister, Darlene, was added to the witness list. Mr.

Jones stated that, although the testimony would essentially be the same as that presented in the first

trial, the defense team had a new doctor and was attempting a different approach as far as the expert

testimony was concerned. In preparing the witnesses for the second trial, the defense team talked

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to the witnesses via telephone, read their statements, and talked with them in person. Dr. Ciocca was

provided all information that was in possession of the defense team. Mr. Jones related that, since

the witnesses were going to paint the petitioner’s story through their testimony, it was the opinion

of the defense team that it was better not to offer more during opening statements.

Mr. Jones agreed that the petitioner had a compelling case for mitigation. This was largely

in part due to the horrendous childhood experienced by the petitioner. The prosecution at both the

1991 and 1997 trials attempted to negate the impact of the petitioner’s childhood by stating the

defense was merely trying to use the “abuse excuse.” Mr. Jones stated that to combat this “[y]ou put

the information on and let the jury size it up.” He explained that it was very important for the

defense team to explain why the information presented in a capital sentencing hearing is mitigation.

Recapping the mitigation evidence presented at the 1991 trial, Mr. Jones stated that testimony

was introduced showing that the petitioner was abandoned by his biological parents, he had problems

after he was adopted by the Brieschkes, his brother had serious problems after arriving at the

Brieschkes, the Brieschkes attempted counseling for the petitioner, the adoption agency failed to

disclose the petitioner’s past to his adoptive parents and the petitioner’s biological mother abused

alcohol. The defense team had information from police files indicating the type of life led by the

petitioner’s biological parents. Mr. Jones stated that his co-counsel did summarize the mitigation

evidence that was going to be presented, and it was a question as to “how much you want to go into”

during opening statements. Mr. Jones explained that there was the chance that “if you [went] over

your proof word for word” during opening statements then its impact would be lost when the

witnesses testified. Mr. Jones also explained that there was a rhythm to a trial and “if you drag[ged]

out opening statements you run the possibility of making the jury upset.”

Mr. Jones admitted that there may have been information regarding the behavior of the

petitioner’s birth mother prior to the petitioner’s birth that was not brought out to the jury. He also

conceded that information that the petitioner’s biological father lost a job because he “slugged” his

employer was not introduced to the jury. Mr. Jones did state that he believed that information

regarding the drinking habits of the petitioner’s biological parents was important, specifically

information that his mother was drinking during her pregnancy. Mr. Jones related that alcohol use

during pregnancy could have impacted the fetus and that the effect of alcohol was very well known

in 1997. Mr. Jones could not explain why information regarding fetal alcohol issues was not

presented to the jury. Later, during cross-examination, Mr. Jones conceded that the information

contained in the intake report regarding the abusive drinking habits of the petitioner’s biological

parents occurred two years after he was born. Mr. Jones could not explain why Dr. Ciocca was not

asked to perform any cognitive testing on the petitioner. Mr. Jones recalled that, although he and

doctors at the University of Tennessee discussed the impact of malnutrition upon the brain, this

information was not relayed to the jury. Mr. Jones further conceded that no effort was made to

determine the existence of multi-generational mental illness other than the information contained in

the records in the defense team’s possession. There was some information that the petitioner’s

brother “had a sex crime or an accusation,” however the issue of multi-generational sexual deviant

behavior was not necessarily explored. He could not explain why more information was not

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presented regarding the lack of maternal care provided to the petitioner. Specifically, he could not

explain why information was not introduced to show that the bonding with the petitioner’s care-

giver, his twelve-year-old sister, was not equivalent to the bonding between a mother and child.

Mr. Jones explained that the petitioner’s records from Riverbend Maximum Security

Institution were provided to Dr. Cioccca, including information that the petitioner was on psychiatric

medication. He could not recall whether Dr. Ciocca testified regarding these records or not. Mr.

Jones, however, could not attest that information that the petitioner was being treated for depression

or anxiety while on death row was supportive of the defense strategy that the petitioner was

psychiatrically damaged, as it was not uncommon for persons in prison, especially those on death

row, to be suffering from depression. Regarding Dr. Ciocca’s failure to address any issues, Mr.

Jones explained that had the defense team felt Dr. Ciocca unqualified, they would have sought the

assistance of another medical expert. Mr. Jones explained that his practice was to defer to the

findings of the medical expert. In other words, he would not shop around for an expert that would

say what he wanted them to say.

Regarding his own performance in representing the petitioner, Mr. Jones stated “I did what

I felt should have been done at the time, and I don’t see any problems at this time.” Mr. Jones stated

that, during his career, he actually tried approximately fifty to sixty cases in which the death notice

was filed. Of these cases, only seven resulted in the death verdict. Mr. Jones further explained that

the petitioner was involved in both the 1991 and 1997 preparations for his sentencing trials,

including the determination as to which witnesses should be called. The petitioner was pleasant to

work with, and the defense team shared a good working relationship with him.

Judge Loyce Lambert Ryan represented the petitioner in 1991 and in 1997 in her former

capacity as an assistant public defender assigned to the capital defense unit. Judge Ryan testified that

she did not present any evidence regarding any kind of fetal alcohol neural developmental cognitive

disorder nor did she present any evidence of any neuropsychological deficits based upon MRI’s or

any other kind of neural testing. Judge Ryan did not put on any evidence about a family history

showing a genetic predisposition to mental illness. Judge Ryan did state that evidence was presented

as to the family history. She stated that no evidence was presented regarding any mental disease

detected while the petitioner was in Riverbend. She explained that the defense team was concerned

with the fact that the jury would know that he was being retried, and there was an opinion that any

mental disease or defect in the record did not rise to the level that would be beneficial. Particularly,

she stated that she recalled that there was never a specific diagnosis, although the petitioner was

being medicated. Judge Ryan also affirmed that they chose not to present any evidence regarding

the petitioner’s behavior in prison. She explained this type of testimony was presented at the first

sentencing hearing in 1991. However, the defense team elected not to present this evidence at the

resentencing in 1997 when considered against the impact of the factual allegations.

Judge Ryan stated that the defense presented evidence of the pattern and history of sexual

abuse and neglect in the petitioner’s family. She opined that, due to the nature of the allegations

involving a child, the defense had to be careful in their presentation to the jury so as not to make the

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jurors feel that the defense was minimizing the factual circumstances of the crime. In this regard,

the decision was made, as part of trial strategy, to provide some type of explanation as to why this

possibly could have occurred, but not being a justification of why it occurred.

Judge Ryan stated that a problem the defense team encountered was the fact that because the

petitioner was removed from the abusive familiar environment at two and one-half years of age the

atrocities that he allegedly witnessed could not be substantiated by lay witnesses. While the pattern

of abuse was present in the older siblings, what actually was experienced by the petitioner was

difficult to say. Specifically, Judge Ryan recalled that the lay witnesses were reluctant to say that

he could remember certain incidents because he was a baby.

Judge Ryan acknowledged that she was aware of issues involving fetal alcohol syndrome in

1997. She also acknowledged that there was evidence of heavy drinking by the petitioner’s

biological parents. She could not recall how much information could have been developed on that

issue. She stated that the petitioner’s sister, Linda, was not very cooperative, and, while his other

sister was cooperative, a clear picture of the amount of alcohol consumed could not be painted.

Judge Ryan further stated that “there were not any physical manifestations that I recall in evaluating

of Mr. Keen that would indicate fetal alcohol.” Judge Ryan could not recall any documentation

supporting the allegation that there was substantial alcohol abuse by the petitioner’s mother at the

time of gestation.

Judge Ryan stated that the defense team presented a picture of the petitioner not only until

the time he was abandoned by his birth parents but until the day of the offense. This included

reporting of molestation by another male and of incidents of juvenile delinquency. She stated that,

because of the transient nature of Serge and Gwendolyn Tooman, the petitioner’s biological parents,

it appeared futile to send investigators to places where the petitioner had lived twenty years ago in

an attempt to locate extended family members. Regarding the petitioner’s siblings, Judge Ryan

remarked that “they didn’t want to be involved.” Both of the petitioner’s biological sisters were

“reluctant” to testify.” She continued that “[t]hey came because they felt . . . they should come to

support their brother. But they were concerned that any information that they would give in this trial

would tend to cause him to be released, and they did not want their brother released.” Both sisters

feared him being free in society as a molester.

Judge Ryan stated that both sisters would have been interviewed prior to trial to know that

they had substantive information that would be of value at trial and what they possibly may say. In

fact, Judge Ryan stated that the mitigation specialist made numerous contact with both sisters in

1991. She also confirmed that both sisters had signed releases for information.

Comparing the 1991 and 1997 hearings, Judge Ryan commented that “[t]he approach we took

in ‘91 was not one that I recall that we decided was an incorrect approach. We had hoped to provide

more family participation, get another relative in or find his brother or get his sister here in ‘97 . .

. to help bolster the proof that we were putting forth.” She testified that “the concept of the cycle of

abuse was a theme initially that we started out with in ‘91, and the effects of abuse as a child on the

-11-

man or on a person as an adult we felt like the history of the children, his siblings as far as . . .adults

and their relationships with their children and with others hopefully that would illustrate that this is

how David came to be the person he was and this is how he possibly could have gotten in this

situation that he’s in now based on that cycle of abuse.” Judge Ryan commented that “part of the

problem is a lot of the more serious allegations of abuse in [the Tooman family] were not that which

happened to David Keen. The more serious allegations of sexual abuse and physical abuse really

pertained to his siblings.” She added that “as far as the foster home environment there was some

allegations on David’s part about some abuse, but there were no physical manifestations or no

documentation of that abuse.” Judge Ryan agreed that it was important to show a connection

between the maltreatment that the petitioner received between birth and age four and the time of the

crime and that was what the defense attempted to do. She stated that she was non-committal in her

opening statements with regard to what the proof would demonstrate because she was uncertain as

to whether the siblings would be responsive on the stand as witnesses.

Joyce King, a social investigator with the Shelby County Public Defender’s Office, testified

that she was assigned to the petitioner’s 1991 case, assuming the role from another investigator

whom had already completed the initial client interviews. Ms. King interviewed the petitioner, the

Brieschkes, the petitioner’ s biological siblings, Linda and Allen, and a character witness. These

witnesses were re-interviewed prior to the 1997 hearing along with another sister, Darlene. These

interviews occurred both in person and by telephone.

Samuel Buzzard, a retired child welfare worker for the State of Illinois Department of

Children and Family Services, testified that he began his career with the Department of Children and

Family Services in 1961. In 1965, Mr. Buzzard came into contact with the Tooman family as part

of his employment and he completed an intake study on the family.

In March 1965, law enforcement officers contacted the Department of Children and Family

Services regarding a family needing help in Litchfield. On two occasions, Mr. Buzzard visited the

alleged home of the family, an apartment above an auto parts store. Both of his visits were

uneventful with either no one being at the residence or no one answering the door. Mr. Buzzard

finally gained access to the apartment after county officials had picked up the children after a

minister was contacted by the oldest child.

Mr. Buzzard recalled that the apartment was “pretty dingy and dark.” It was “pretty sparsely

furnished.” There was trash all over the floor and “it appeared to be pretty dirty.” Mr. Buzzard also

recalled that there was animal feces on the floor. The apartment also contained things that probably

did not belong to the family, “items of merchandise, boxes, packages.” The oldest child, Bill, had

indicated that these were items that had been taken. Bill informed Mr. Buzzard and a deputy sheriff

that he was involved in a forgery at the direction of his parents and that “he was scared to death” of

his parents. At the time of Mr. Buzzard’s involvement, Serge and Gwendolyn Tooman had been

gone for at least a week. The older Tooman children had been feeding their younger siblings by

picking up pop bottles and selling them to buy food. The two eldest siblings determined that their

parents were not going to come back so Bill went to a minister for help. Mr. Buzzard related that

-12-

Bill was about seventeen years old, Linda was between fourteen and fifteen years of age, Darlene

was about five years old, Allen was about four years old and the petitioner was about two and one-

half years of age. The children spent at least one night at the county jail until they could be placed

in other housing arrangements. The children were initially placed with the Klepper family, although

Bill refused to go, wanting to stay at the jail. A month later, the children were placed in other foster

homes. The two younger boys went to the Pyle home, the two girls went to the Harms home, and

Bill went to the Johnson home. Bill remained with the Johnson family until he enlisted in the

military.

Mr. Buzzard’s involvement with the Tooman children was rather short-lived. He had contact

with Bill until he left the service of the agency, within months. The younger four children were

placed in an emergency home, then to a foster home where another worker was assigned. During

the period that he was involved with the younger Tooman children, Mr. Buzzard remembered that

the petitioner was a “cute little kid” and was an “active little boy.” Linda Tooman was quiet; she

“had a very dull ethic, she kind of walked stooped shouldered. . . .” Bill, the oldest child, was very

polite and cooperative and appeared to be an ideal teenager. However, it appeared that Bill could

not maintain this façade for long. Conflict developed between Bill and the foster home and he began

having problems at school. Because Bill was close to reaching his eighteenth birthday, his foster

parents chose to keep him in their home so he would not have to be replaced. However, this couple

chose never to be foster parents again. Mr. Buzzard also learned from the mayor of Dwight, Illinois,

that the Tooman parents were suspected of involvement in a recent crime wave in Dwight.

Mr. Buzzard testified that his knowledge of the family’s past was learned mostly through his

conversations with Bill. Bill related that the family made numerous moves. The older children were

constantly changing schools and there was talk about keeping them out of school because the parents

were afraid that they would be able to trace the family through school records. Bill reported that this

stepfather spent a large amount of time drinking at taverns. Serge Tooman was the biological father

of the petitioner and Allen. Willis Tooman, Serge’s cousin, was the father of the older three

children. Bill’s account of the Tooman’s lifestyle was corroborated by Mr. Buzzard’s investigation

with other agencies. Mr. Buzzard testified that this case was the only incident in his career where

the parents had totally abandoned their children. Mr. Buzzard stated that had the defense team

contacted him in either 1991 or 1997, he would have talked with them.

Susan Buzzard, Samuel Buzzard’s wife, was also a social worker for the State of Illinois

Department of Children and Family Services. Mrs. Buzzard also became involved with the Tooman

children. Mrs. Buzzard placed the children in permanent foster homes and supervised the placement

until the petitioner and Allen were adopted by the Brieschkes. She remained in contact with the

other Tooman children until she left the agency in 1968. During this time, Mrs. Buzzard maintained

records on each of the children. A record was kept as to each child relating the child’s personality,

health, and relationship to their natural family.

Mrs. Buzzard recalled that, during the children’s placement at the Klepper home, the

petitioner was an attractive child and “very wiggly.” Mrs. Klepper reported that the children “ate

-13-

a lot.” Mrs. Buzzard accompanied the petitioner and his brother Allen to Chicago regarding their

placement with the Brieschkes. They traveled by train and, while Allen sat relatively quiet, the

petitioner was jumping and running up the aisles. Mrs. Buzzard explained to the petitioner and Allen

that the Brieschkes were adopting them and that Brieschke would be their new last name. Allen was

very unhappy with leaving his foster home; the petitioner did not have the same reaction. Once at

the Brieschke home, Allen attached to his new family; the petitioner did not. In September 1966,

the children were evaluated by Dr. Robert Alexander. Dr. Alexander’s evaluation indicated that the

petitioner was “hyperactive,” and that he should be given an electroencephalogram. This was done

and the results were entirely normal. Dr. Alexander also recommended that the petitioner be given

medication to slow him down. The Brieschkes declined the opportunity to put the petitioner on this

type of medication.

Mrs. Buzzard stated that she was not contacted by any members of the defense team in either

1991 or 1997. She stated that had she been asked to testify that she would have.

Chaplain Nolan Gnewuch, an ordained Lutheran minister, testified that he previously was

employed with the Lutheran Children’s Friend Society, primarily responsible for adoptive studies,

placement, supervision, marriage and family counseling and consulting churches. At some point

during the boys’ teenage years, Chaplain Gnewuch was contacted by the Brieschkes regarding their

adopted children, the petitioner and Allen. The Brieschkes indicated that the children were having

academic difficulties in school and were having difficulties in making any kind of emotional

attachments. Chaplain Gnewuch stated that the petitioner and Allen “looked like kids who had had

some really severe emotional damage of early on in life where they didn’t get basic kinds of needs

met, and as a result couldn’t attach with other people.” The children did not have friends at school

and did not bond with their adoptive parents. The Brieschkes’ biological children, on the other hand,

were well-adjusted and doing fine. The Brieschkes, from what was observed, were doing everything

they possibly could as parents; they set realistic limits, they were emotionally present for the

children, they were working with the school, and they had a good relationship with their church. The

Brieschkes, however, were frustrated with the fact that the boys were not reliable and could not be

trusted. Chaplain Gnewuch classified the boys as two of the most difficult cases that he has had to

deal with. He expressed his opinion that the damage could have resulted from the fact that the boys

did not receive consistent care giving, mothering, and fathering during their formative years between

one and five.

Chaplain Gnewuch explained that his counseling of the boys lasted approximately one to two

years. He could not explain why the counseling stopped. He stated that he and Allen now lived in

the same community. He has observed that Allen’s inability to bond with others has not changed

over the years. He further stated that he was never contacted by any member of the petitioner’s

defense team in 1991 or 1997. He added that had he been contacted he would have testified for the

defense. On cross-examination, Chaplain Gnewuch stated that all of his records regarding the

counseling sessions were destroyed under the law of the State of Wisconsin.

-14-

Dr. Tara Wass, an assistant professor of Early Childhood Development at the University of

Tennessee, was recognized as an expert by the court in developmental psychology and fetal alcohol

effects. Dr. Wass was contacted regarding the likelihood that fetal alcohol exposure may have been

an issue in the petitioner’s development. Based upon preliminary discussions about the petitioner’s

early family history, including reports of heavy frequent use of alcohol, Dr. Wass was of the opinion

that it was “quite possible that could be a factor here.” Dr. Wass then reviewed information and

records and conducted an evaluation of the petitioner. Included in the information reviewed were

Intake Summaries written at the time the petitioner was placed in foster care, academic records,

psychological testing reports, the Winnebago Health Institute report, and files maintained by the

petitioner’s sister. As a result of her evaluation, Dr. Wass concluded that there “is evidence that is

highly suggestive that there was chronic frequent use of – use and abuse of alcohol by [the

petitioner’s] mother, that he exhibited a wide range of problems during early childhood, pre-school

years, his academic years that would be consistent with a pattern of deficits that we observe in

children who are alcohol affected.”

Dr. Wass explained that “fetal alcohol syndrome is a recognized . . . medical diagnosis. It’s

a condition . . . that’s diagnosed on the basis of that triad of feature. Fetal alcohol effects is actually

a term that emerged through . . . the research literature and some lay population literature that’s not

advocated for use by experts in the field.” In describing the wide spectrum of effects connected with

prenatal alcohol use, Dr. Wass differentiated several conditions:

. . . Partial FAS is differentiated from FAS primarily in that the children are lacking

one or more of those three criteria. It’s usually that some of the facial

dysmorphology is there but not all of the facial dysmorphology, so we typically look

at the eye region and the mouth region when you’re diagnosing an individual or

looking at a diagnosis of fetal alcohol syndrome.

Often in the case of a child . . . with partial alcohol syndrome, they have the

dysmorphology in one area of their face but not in both . . . . And you may also be

missing in the growth retardation.

Alcohol related birth defects are structural abnormalities that are associated

with prenatal alcohol exposure, so that could be cardiac defects . . ., skeletal defects

. . . . In that case you also have to document maternal alcohol exposure but you don’t

have to have facial dysmorphology or growth retardation . . . .

Alcohol related neural developmental disorder, you also have to document a

pattern of maternal alcohol exposure. You do not have to see growth retardation or

the facial dymorphology, but what you want to see is either some evidence of central

nervous system impairment and/or a complex pattern of neural behavior or cognitive

deficit that can’t otherwise be explained.

-15-

Dr. Wass testified that she does not hold a medical degree and that fetal alcohol syndrome

is a medical diagnosis. She stated that she is, therefore, not qualified to diagnose the disorder. Dr.

Wass maintained, however, that there are psychological manifestations in persons with fetal alcohol

related conditions, such as “a reduction in IQ,” “short term memory deficits,” “deficits in executive

functioning” (an umbrella term including skills such as working memory, response inhibition, and

impulsivity). She added that other common manifestations are “high rates of attention deficit

hyperactivity disorder, psychiatric illnesses, delinquency, academic failure and learning disabilities.”

Dr. Wass stated that, while it was impossible to undo the damage of in utero alcohol exposure, there

are protective factors that are associated with better outcomes. These protective factors include

structured environments. Such protective factors act as a shield for the alcohol affected individual

lessening the risk of secondary disabilities such as inappropriate sexual activity.

Two categories of fetal alcohol syndrome are recognized, one with confirmed maternal

drinking and one without the confirmation of maternal drinking. Without a report of maternal

drinking, a diagnosis of fetal alcohol syndrome may be made if the full facial dysmorphology is

present. The facial dysmorphology is “small eye openings, “ that is the eyes of a person with fetal

alcohol syndrome appear wider apart although the effect is due to their eyes being smaller. Another

facial dysmorphology involves abnormalities of the philtrum, the area between the nose and the

upper lip. Typical abnormalities include a very thin upper lip and a smoothing of the bow in the lip.

Other physical abnormalities include “a weak chin,” “the presence of clown eyebrows,” and an

“excess presence of hair.” Dr. Wass stated that, because facial features change from the time of birth

until death, “the optimal time to diagnose the disorder is really from between the ages of about three

until just prior to puberty.”

Regarding the petitioner, Dr. Wass again asserted that she was not qualified to diagnose the

petitioner. However, after reviewing the material provided, she did conclude that it was likely that

the petitioner was exposed to a pattern of frequent heavy alcohol exposure based in part upon the

social problems that his mother was experiencing. In this regard, Dr. Wass concluded that there is

evidence of a pattern of excessive and frequent alcohol intake. She added that “on the basis of the

maternal alcohol exposure and the fact that his developmental presentation is consistent with what

we see in individuals with heavy exposure to alcohol, that we would presume that those behaviors

are reflective of brain damage.” Dr. Wass later conceded that she had no definitive proof that the

petitioner’s mother was drinking while she was pregnant with the petitioner. While she testified that

the petitioner’s “developmental profile is very suggestive of organic brain damage,” she could not

conclusively determine that he did, in fact, have brain damage. She continued that

. . . there was evidence of reductions in intellectual capacity. So, for example, in

1972, . . . the school system referred him to see a psychologist who conducted an IQ

Test . . . and estimated his IQ to be an 84.

That was preceded by a wide range of . . . academic failure prior to that point, so I

believe that was in the second grade. He was already failing by that point. . . .

-16-

In addition to that we were seeing what the psychologists referred to as hyper kinesis

or minimal brain damage which we would refer to now as ADHD, Attention Deficit

Hyperactivity Disorder. . . .

...

So intellectual and deficits in IQ or intelligence, academic failure, delays in certain

developmental milestones. So, for example the reports . . . indicated that he was

speaking at that time although it was somewhat indistinct and difficult to understand.

...

...

His cognitive skills . . . were not very good early on. So he didn’t know how to color.

. . he didn’t know his numbers. . . .

And so there were these clear deficits in rather concrete basic cognitive skills that you

were seeing. His play behavior was atypical in the sense that he had an inability to

play with others, just didn’t understand the reciprocity that goes on in the play

behavior. . . .

...

We see the emergence of . . . delinquent behavior very on, very early stealing from

peers. . . .

...

Also the lying which is also very typical in this population. . . . the early onset of

substance abuse. . . . We see an increased risk of substance abuse over and above

what we just see in children of alcoholics when there’s parental exposure to alcohol.

...

The reports that he was often used as a scapegoat and kind of conned by his . . .

peers. . . .

And so all of those behaviors are consistent with what we would expect to see in

alcohol exposed individuals, as well as the over friendliness, not really having those

boundaries between close individuals and strangers that we expect to be there, the

over eagerness and need to be liked.

Dr. Wass added that the petitioner also displayed deficits in arithmetic, consistent with primary

disabilities observed following alcohol exposure. The petitioner also exhibited seven out of the eight

-17-

frequently exhibited identified secondary disabilities. Those seven factors are difficulty maintaining

consistent employment, inappropriate sexual behavior, a history of mental illness, confinement,

history of confinement in a mental institution or in prison, disrupted school experience, trouble with

the law and substance abuse. Regarding his life with his adoptive family, Dr. Wass commented that

this was not a nurturing home to the petitioner, not because the Brieschkes were not good parents,

but because the petitioner did not feel nurtured.

Dr. Wass testified that evidence of fetal alcohol syndrome was recognized and identified in

this country in 1973. By 1989, Congress mandated warning labels on alcoholic beverages. She

stated that experts would have been available in both 1991 and 1997 to testify regarding fetal alcohol

syndrome. Dr. Wass related fetal alcohol syndrome and the circumstances of the murder in this case

by pointing to the fact that the person with fetal alcohol syndrome is unable to think through the

consequences of one’s actions, is unable to control one’s behavior and is prone to inappropriate

sexual behavior. Although Dr. Wass was not able to conclude that the petitioner suffers from fetal

alcohol syndrome, she did believe that his behavior, developmental history and the history of

maternal alcohol exposure is consistent with alcohol related neural developmental disorder.

Edna Tooman is the sister of the petitioner’s father, Serge Tooman. The first time Edna

Tooman ever met her nephew was in March 1999. Ms. Tooman testified that her father was an

alcoholic. He was often drunk and the children were afraid of him. She related that her father was

physically abusive toward her brother, Serge, the petitioner’s father, and was sexually abusive toward

her sister, Maxine.

Ms. Tooman testified that her paternal grandmother “had went insane . . . because they had

to call the Sheriff . . . to come and take her away.” She related that her grandmother was having

delusions: she thought that her son was crucified upside down on a cross and she was seeing people

in her backyard. Ms. Tooman’s grandmother remained in the state mental institution until her death.

Ms. Tooman testified that she had a son who was schizophrenic. She stated that she had eight

children. A son, Richard, and another, Terry, were diagnosed schizophrenic. Another son, Steve,

went to prison for “doing drugs.” A daughter, Kathy, is an alcoholic. A son, Paul, “drinks heavy

but he does well.” A daughter, Sarah, is “an emotional wreck,” suffering from extreme major

depression. Judy, another daughter, has anxiety. Ms. Tooman also adopted three of her

grandchildren. One grandson has a drug problem and the two girls suffer from depression. Ms.

Tooman further related that two of her uncles had alcohol problems and another cousin was

diagnosed with schizophrenia. Ms. Tooman opined that had her brother, Serge, been evaluated, he

would have probably been diagnosed with a mental illness as well. Ms. Tooman added that she,

herself, had been diagnosed with anxiety disorder.

While Ms. Tooman and her brother, Serge, were very close, Ms. Tooman related that her

brother had a “mean streak.” For an example of his behavior, Ms. Tooman testified that Serge would

often wring the neck of the family’s goose just to torment the goose. She recalled that her brother

would laugh when he was wringing the goose’s neck. Serge dropped out of school in the fourth

grade at the age of fourteen and was not very smart. Serge enlisted in the army when he was

-18-

eighteen and served overseas during the Korean War. When he returned from the war, Serge began

drinking “real heavy’ and would often “get out of control.”

Edna Tooman stated that her uncle, Willis Tooman, married the petitioner’s mother

Gwendolyn. Ms. Tooman was living in California during the time when Gwendolyn married her

brother, Serge. Although not present, Ms. Tooman had heard through her mother that Gwendolyn

had Allen early. She also reported that her brother, Serge, attempted to sell a food voucher so he and

Gwendolyn could go drinking. Serge and Gwendolyn also left the children alone while they went

drinking and, on one occasion, Ms. Tooman’s mother discovered the baby, Allen, covered with a

blanket and blue.

The petitioner’s sister, Linda Gehringer, testified at both the 1991 and 1997 trials. Ms.

Gehringer’s testimony covered the petitioner’s use of various names, that she lived with her brother

until he was three years old and that she and the petitioner had different fathers but both were

Toomans.

Ms. Gehringer was born in 1950 in Findlay, Ohio. Her parents are Gwendolyn and Willis

Tooman. She has a brother, Bill, and a sister Darlene. A brother, Ray, died when he was three years

old, and another brother Billy, was put in a home for the mentally retarded. Billy was later adopted.

Ms. Gehringer recalled that her mother felt that Ray was “gifted” and felt it “very unfair that my

retarded brother . . . lived and that Ray had died.” Her father, Willis Tooman, was an over-the-road

truck driver and when he was not at home, her mother “went to bars a lot and didn’t come home a

lot.” During this period, the Tooman children were often taken to a children’s home after neighbors

would call the authorities.

Although Gwendolyn Tooman was a registered nurse, she stopped working as a nurse after

Ray’s death. Gwendolyn then began waitressing in a bar. Ms. Gehringer described her mother as

very strict and not affectionate. She stated that, on one occasion, her mother had chased her through

the house with an ax because she thought she had lied about being scratched by a cat. She stated that

her mother had been drinking prior to this incident. Ms. Gehringer stated that she could not recall

a time when drinking was not a part of her mother’s every day life. Willis Tooman was also a heavy

drinker. Willis Tooman stopped living with the family when Ms. Gehringer was between seven and

nine years of age.

Gwendolyn Tooman later married Serge Tooman, her first husband’s nephew. This marriage

led to a very abusive situation. Both Serge and Gwendolyn drank and they both physically abused

the children. Ms. Gehringer recalled that when Serge came home drunk he would beat the children

with whatever he could find: an electrical cord, a two-by-four, or he would just kick them in the

stomach.

Ms. Gehringer testified that it was her job to take care of the three babies when her mother

and stepfather went to work. This used to be Bill’s responsibility, but when the six-month-old

petitioner was diagnosed with malnutrition, her parents blamed Bill for eating the food and placed

-19-

the burden on the ten-year-old Gehringer. Although she was their caretaker and felt protective of

her younger siblings, Ms. Gehringer did not cuddle the babies or play with them. Ms. Gehringer

recalled an especially disturbing incident with her stepfather. She was supposed to keep a tea kettle

on the stove with water to keep moisture in the air. She fell asleep and the kettle boiled dry. When

Serge and her mother got home, Serge lined the children up and placed the tea kettle on Ms.

Gehringer’s hand. When she would not cry, he returned the kettle to the stove until it got red hot and

then placed it back on her hand until she cried. Her parents never sought medical attention for the

burns. Ms. Gehringer also described incidents where the children would go hide in the cornfields

to keep themselves safe from their drunken stepfather. On other occasions, Serge Tooman would

make his children watch him as he killed their pets. She stated that he would slit the throats of their

pet dogs. When her mother was in the hospital giving birth to the petitioner, Serge Tooman raped

her. This was reported to her mother but nothing ever became of the report. She stated that Serge’s

father also sexually abused her when she was ten years old. Gwendolyn Tooman told her daughter

that it was her fault and that she “had [to] wear long dresses to school.” Ms. Gehringer stated that

she hated Serge Tooman. Ms. Gehringer testified that the lack of food was always an issue in the

house. The older children took cabbage wedges to school for lunch and there were times when all

they had to eat were potatoes.

After Allen was born, the family left Findlay, Ohio, and hitchhiked to Texas. They stayed

in Texarkana for about a year where the abusive lifestyle resumed. The family then went to Illinois.

She recalled that after her stepfather violated his probation, the family moved twenty-six times in

two years. During this period, the family kept changing their last name and, sometimes, they would

change their first names also.

The last time Ms. Gehringer saw her stepfather and mother was when she was twelve years

old. Her parents left one morning for work and never came back. Before leaving, the Toomans had

instructed the children to “just watch out the window for them to come back and not to answer the

door for anyone else. So we waited there for ten days.” The petitioner was two years old at this

time. The oldest brother, Bill, collected soda bottles for money to buy dog bones for the children

to eat. Eventually, Bill sought assistance from the pastor at the church across the street. The

children were then taken to jail and stayed there for three days while waiting for Children Services

to find a place for them.

The children were placed in a foster home. They stayed at this residence for three months.

The two girls were then placed in a foster home together, the two younger boys went to a family in

Mount Olive and Bill went to a foster home in Nakomis. Ms. Gehringer stated that both of her

younger brothers would cry when separated from their other siblings. Ms. Gehringer only saw her

two younger brothers three more times before they were adopted. Ms. Gehringer remained in the

foster program until she was eighteen years old at which time she entered the Miriama Girls Home

in Springfield, Illinois. Her younger sister, Darlene, was adopted by their foster parents.

Ms. Gehringer related that she last saw her oldest brother, Bill, in 1990. Bill lived in the

same city as she did and she knew that he had married and has a daughter. Ms. Gehringer reported

-20-

that this relationship deteriorated as Bill had beat his wife and molested his young daughter. This

marriage ended in divorce. Bill later got involved with another woman. Ms. Gehringer learned from

this woman’s parents that Bill had “taken [her] out in the desert and beat her and literally pulled out

almost all of her hair and left her there.” She stated that Bill had been in prison and was involved

with drugs.

Ms. Gehringer testified that she has been diagnosed with post-traumatic stress syndrome and

as a result experiences depression and anxiety. She is currently taking anti-depressants.

When she reached adulthood, Ms. Gehringer contacted the Illinois Department of Children

and Family Services and the Hancock County Ohio Children’s Home to gather information about

her past. She provided all of this information to the petitioner’s defense counsel. Ms. Gehringer

testified that the first time that she was contacted by the petitioner’s defense team was a month

before his first sentencing hearing. She did provide the defense team with all of the documents that

she had. She only recalled one meeting with the defense team prior to the 1997 sentencing hearing.

Darlene Krone, the petitioner’s half-sister, stated that she was not asked to testify at the 1991

hearing. The first time she was contacted was for the resentencing in 1997. She was asked about

her relationship with the petitioner, her age in comparison with his, “just some basic questions.” She

was not asked about their life in the Tooman family or about her life after her adoption. During a

meeting at the public defender’s office, Ms. Krone was asked for details about her life history. She

stated that she had difficulty opening up to these people because she did not know them.

Ms. Krone testified that she was adopted by Stanley and Juanita Harms. She stated that,

although she loved her adoptive parents, their relationship was strained. She was never close and

did not have the ability to assure her adoptive mother that she loved her. After receiving counseling

as an adult, Ms. Krone was able to understand that the strain in the relationship was due to her

inability to bond.

Ms. Krone testified that, when she was fifteen years old, she was raped by her twenty-seven-

year-old brother, Bill. She could not understand what was happening although she wanted a

relationship with her brother. Ms. Krone stated that she married when she was eighteen years old

and that she has been married to this same man for the past twenty-four years. Notwithstanding this

fact, Ms. Krone testified that she has not been able to develop a close relationship with her husband.

She stated that she has one son, Kyle. She felt that her parenting skills were lacking and that

something was not normal in that she did not feel for her child the way other parents felt for their

children. Ms. Krone stated that, since her son was six years old, he had suffered from attention

deficit with hyperactivity and he also deals with depression and obsessive compulsive disorder. He

was treated with medications for these conditions through his early teens. Ms. Krone stated that she

has been in counseling and has attempted suicide. She has been diagnosed with major depression

and is on medication.

-21-

Regarding her life with the Toomans, Ms. Krone had little recollection of her mother, other

than rubbing the backs of her legs. As for Serge Tooman, Ms. Krone recalled the incident where he

placed the hot teapot on Linda’s hand, an incident where he made her pick out a pig, he killed it, and

made her eat the tail, and an incident where he made her eat a bar of soap.

Allen Brieschke, the petitioner’s brother, testified at both the 1991 and 1997 sentencing

hearings. He stated that he was initially contacted a week before the first trial in 1991. Alan

Brieschke stated that he had brought certain documents with him, but that the defense team was

already in possession of these documents.

Allen Brieschke testified that Serge Tooman would kill animals in front of them. He recalled

Serge Tooman killed two baby chicks and a pig. He also stated that Serge Tooman hit him on the

mouth repeatedly, causing severe dental damage later in life. He differentiated the spankings from

Serge with that of his adoptive father Robert Brieschke. The children never knew the reasons behind

Serge’s beatings, while his adoptive father would tell them why they were being punished. His

biological mother also hit him in the mouth and the hands. He could not recall ever receiving any

nurturing from his biological mother, rather, any nurturing came from his sister, Linda. Allen

Brieschke stated that the Pyles, the Tooman children’s foster family, also beat the children.

Allen Brieschke is divorced. He has a fifteen-year-old daughter but she was adopted by his

ex-wife’s present husband. His daughter is presently in foster care as a result of an investigation of

child pornography. Allen Brieschke suffers from post-traumatic stress disorder. He is employed and

has an associates degree in security loss prevention.

Dan Brieschke testified that the petitioner was his adopted brother. Dan Brieschke is five

years older than the petitioner. He was ten years old when his parents adopted the petitioner and

Allen. Dan Brieschke recalled that he and his sister were supportive and involved in the decision

to adopt another member of the family. Dan Brieschke stated that, although they were eager to

welcome their adoptive siblings into their home, the petitioner and Allen were not immediately

responsive. He explained that he and his sister would play together but Allen and the petitioner

chose to amuse themselves individually. He stated that the family was not rich but was not lacking

anything. Their father had a college degree and their mother stayed at home with them when they

were children. Both parents were very supportive of the children and played games with them.

When the petitioner and Allen were added to the household, a new dynamic emerged in the

household. Their mother was frustrated that the petitioner and Allen would not listen. The petitioner

and Allen did not have any friends in the neighborhood, did not bring friends to the house and did

not have sleep overs. Dan Brieschke stated that his adopted brothers were less mature than other

children their age.

Dan Brieschke recalled an incident where he unexpectedly walked into his brothers’ room,

and Allen informed him that the petitioner was encouraging the dog to “lick his private parts.” Dan

Brieschke stated that, although he loves his adopted brothers unconditionally, the relationship he had

-22-

hoped for never materialized. He has not had contact with the petitioner for the past fifteen years.

He has limited contact with Allen.

Cynthia Wachs, the petitioner’s sister through adoption, testified that she was twelve years

old when her parents adopted the petitioner and Allen Tooman. Ms. Wachs stated that, excluding

the present proceedings, she was never contacted regarding her brother’s case.

Ms. Wachs testified that she was present during the first meeting between her adopted

brothers and her family. Her impressions from this meeting of her brothers were that they were cute

and “looked very lovable.” Later, when the boys were coming to live with them permanently, Ms.

Wachs recalled that she was very excited. However, she stated that the petitioner and Allen would

cry at night and sometimes they were awoken by nightmares. She stated that, during these rough

times, both of her parents comforted the boys and assured them that they would be there and love

them always.

Ms. Wachs stated that the petitioner and Allen never assimilated into their family. She

noticed that their mother began raising her voice and becoming frustrated with the situation with the

boys. She explained that the petitioner and Allen never seemed to comprehend that “there was time

when no meant no, or yes meant yes.” Ms. Wachs also commented that her adopted brothers were

“immature for their ages,” “[t]hey didn’t seem to have the same sense of self. . . .” She described

the boys as “clumsy and awkward with certain things.” Ms. Wachs stated that the petitioner was

“able to interact” with kids his own age, but she could not remember that he “had close connections

with kids of his own age.” She testified that she loved her adopted brothers unconditionally,

however she felt that she never bonded with them. Although she has grown closer to Allen in their

adult years, she never had the opportunity to develop that sort of relationship with the petitioner

because he ran away from home when he was sixteen and she was living in another state.

Evelyn Brieschke, the petitioner’s adoptive mother, testified that she and her husband

adopted the petitioner and his brother Allen in December 1967. The petitioner’s name was then

changed to Darrell Brieschke. Mrs. Brieschke stated that some time after the adoption was final, the

Brieschkes received information regarding their adopted sons’ situation prior to their placement in

foster care. To Mrs. Brieschke, this information offered some explanation as to the petitioner’s

behavior.

Mrs. Brieschke testified that, at the time of his adoption, the petitioner appeared quite

younger than his actual age. She believed that the petitoiner’s appearance was due, in part, to being

malnourished. She stated that the petitioner did not know what a crayon was and did not know how

to color. Her adopted sons did not know how to share. Although the boys had friends, “some of the

friends were not ideal.” Neighbors told the Brieschkes that the petitioner and Allen did not appear

“normal.” Although they attempted to get close to the petitioner, Mrs. Brieschke felt that the

petitioner wanted to have friends that were trouble makers. She stated that the petitioner and Allen

had difficulty in following rules, including doing their homework. Regarding inappropriate

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behavior, Mrs. Brieschke related that the family had a pet Schnauzer. Mrs. Brieschke caught the

petitioner, when he was eleven years old, attempting to have sex with the dog.

Regarding his education, Mrs. Brieschke recalled that, during part of his education he was

in an open concept classroom; this confused the petitioner. However, during one year where he was

in a self-contained classroom, “he did so well that year it was amazing.” She stated that the

petitioner never finished his education.

Mrs. Brieschke testified at both the 1991 and 1997 sentencing hearings. She recalled her first

meeting with the petitioner’s defense counsel in 1988. She stated that they told her that the

petitioner did not have much of a chance. Her next meeting with defense counsel was the day

immediately before trial. She could not recall the defense team ever requesting any documents from

her.

Robert Brieschke, the petitioner’s adoptive father, testified that, shortly after the petitioner

and Allen arrived in their household, he noticed that the boys were more “unsettled” than what they

had expected. He stated that the boys had “[d]ifficulty accepting simple requests to do things or to

stop doing things, hyperactive.” The boys “did not speak distinctly,” they did not play with others,

and they were limited in their attention span. Mr. Brieschke was amazed at how much the boys ate.

In fact, he described their early eating habits as “gorging” until they complained that they hurt. This

behavior lessened after a month or so. He stated that both the petitioner and Allen engaged in

activities that were solitary in nature.

Mr. Brieschke related that the petitioner had some legal problems before he left their home.

While in middle school, the petitioner and a group of boys shoplifted from a local grocery store. He

was also involved in an auto theft. After this incident, the petitioner was sent to Winnebago Hospital

for evaluation. Also during this time period, the petitioner’s sister, Linda, reported that the petitioner

had molested one of her smaller children during a visit to her house.

Kevin Whaley testified that he and the petitioner were employed by Earth Industrial Waste

Management in 1990. He recalled that the petitioner “seemed to work well with others. He wasn’t

really real social with other employees. . . .”

Dr. Mark Douglas Cunningham, a clinical and forensic psychologist, was retained as an

expert to provide evaluation of mitigating psychological factors and testimony that could have been

provided at his 1997 sentencing hearing. In preparation for his evaluation, Dr. Cunningham

reviewed the transcript of the 1997 hearing in its entirety and reviewed a portion of the 1991 hearing.

He was also provided the petitioner’s Intake File from the time the State of Illinois assumed custody

of the petitioner until his adoption by the Brieschkes, the Winnebago Mental Health records, school

record, medical records from River Bend during the period of 1991 through 1997, Dr. Auble’s

preliminary report and various other documents. Dr. Cunningham interviewed the petitioner for

almost six hours on November 19, 2001. He also interviewed numerous persons who have had

associations and relationships with the petitioner.

-24-

Dr. Cunningham opined that numerous areas of mitigation needed further investigation,

including the history of the petitioner’s extended family members. He related that the way a child

is treated in early childhood is fundamentally important as it lays the ground work for the rest of the

emotional and relationship structure and capability that this person will have. He stated that damage

at this stage is catastrophic. Dr. Cunningham testified “[t]he first four years of life are the most

important period of time in someone’s life for their emotional and psychological development and

their ultimate psychological health and whether they’re going to turn out to be a law abiding citizen

and to have functional relationships with other people.” This fact is true regardless of one’s memory

of these early years.

Dr. Cunningham then discussed the importance of multi-generational family history in capital

sentencing evaluations. First, one may be genetically predisposed to many characteristics, such as

personality disorders, psychological disorders and substance abuse. By examining the history of a

client’s family members, one is able to obtain a glimpse of what the client is predisposed to. Second,

patterns of behavior within a family system are generationally transmitted and become ways in which

people organize their lives. Additionally, there is modeling of behavior. Next, there is sequential

damage. The petitioner was neglected and abused by his parents; his parents were neglected and

abused by their parents. Thus, in the context of a capital murder, one may say that the petitioner’s

behavior is at the end of a generational pyramid that involves genetic influences, involves family

scripts, and involves sequential damage from generation to generation.

Discussing these factors with the petitioner’s case, Dr. Cunningham noted that “there is

generational sexual deviation and abuse directed toward children.” The family’s sexual dysfunction

transcends generations and impacts both genders. Regarding the petitioner’s siblings, Dr.

Cunningham noted the importance of their backgrounds. Specifically, the children share genetic

parenting or partial genetic parenting. The children shared the same climate of abuse and neglect.

He added that, to the extent that the State would argue that time diminishes the damage of this

background, the continuing damaging impact upon the siblings is relevant.

Dr. Cunningham opined that, although the petitioner had a choice on whether or not to

commit the offense, he did not have the same choice as everyone else due to his background and

history. As a result of the emotional damage that had been done, the fetal alcohol exposure, the

neural cognitive effects, his own attention deficit disorder, the petitioner was unable to find stability

in any regular life situation. The risk factors present in the petitioner’s life each contributed to a

developmental and life trajectory that concluded tragically in this offense. Dr. Cunningham stated

that mental health knowledge was available in 1991 and in 1997 to reach these conclusions.

Regarding previous psychologists, Drs. Hutson and Ciocca, Dr. Cunningham found that these

psychologists were provided insufficient tools by the defense team. Specifically, Dr. Cunningham

found deficiencies in the investigation and interviewing of family members, a fundamental part of

a psychological evaluation. Neither doctor met with any family member individually. Also, there

was a complete lack of any investigation into non-family members. Finally, absent from Dr. Hutson

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and Dr. Ciocca’s consideration were any participation by other experts such as experts on fetal

alcohol exposure, a neuropsychologist, etc.

Dr. Cunningham provided a detailed litany of the presence of psychological disorder in the

petitioner’s family system. He determined that “there is a significant genetic heritability or genetic

predisposition to mental illness.” Similarly, there is an increased incidence of persons who abandon

their children, of persons who sexually molest children, and persons who have significant alcohol

and drug histories present in the petitioner’s family.

Dr. Cunningham provided a summary as to the petitioner. The petitioner’s problems began

in childhood. At the time he came into the custody of the Brieschkes, the petitioner was displaying

broad developmental delay. His speech was poor, he did not know how to engage in interactive play

but only in parallel play. His motor coordination was poor. His bladder control was a problem for

a number of years. There are neural cognitive symptoms in terms of being able to hold and complete

sequential instructions and being able to learn about boundaries and limits. The petitioner was

unable to establish a significant emotional bond. At age seventeen, the petitioner’s peer relationships

were described as being quite disturbed. There was also impulsivity. The petitioner was

overwhelmed by the lack of structure. The petitioner was ostracized and rejected by his peers. There

was a beginning of psychosis in the sense that the petitioner may have been misperceiving the world

around him. There was inappropriate sexual behavior. The petitioner showed a preoccupation or

interest in younger children. There was conduct disturbance during the petitioner’s adolescence.

There was also the beginning of alcohol and substance abuse. Since his arrival at Riverbend, the

petitioner suffers from recurrent nightmares, a depressed mood, sleep disturbance, appetite

disturbance, anxiety, suicidal ideation, low self-esteem, auditory hallucinations, racing thoughts, and

hypomanic episodes. Dr. Cunningham concluded that the petitioner’s psychological status has

historically and chronically been disturbed. The petitioner’s thinking and relationship pattern has

never been normal. He opined that the outcomes of that have been destructive in many ways,

including the way he bonds to other people, his ability to learn, his ability to regulate his behavior

and his sexual relationships.

Dr. Cunningham discussed extensively the impact of the failure of the petitioner to receive

nurturing early in life. He stated that the nurturing is what turns a baby into a human being who

cares about other persons. He stated that the pervasive emotional starvation of a child’s need for

nurturance is catastrophic in its effects on later functioning.

Regarding the evidence presented at the 1997 hearing, Dr. Cunningham stated that only a

partial picture of the petitioner was presented. Specifically, he stated that the defense failed to

present testimony of the catastrophic impact of the disrupted attachment, and that the damage is

present regardless of what the child can remember. He stated that, although the abuse was described

in detail, there was no nexus presented between the abuse and the present offense.

Dr. Pamela Auble, a clinical neuropsychologist, was asked to evaluate the petitioner

regarding his level of functioning in terms of his mental abilities, his memory, his thinking and

-26-

whether there was evidence of brain injury. In this capacity, Dr. Auble met with the petitioner and

performed intellectual testing, testing of his memory, testing of his mental flexibility, a battery of

neuropsychological testing, language testing, testing of motor skills, testing of his ability to read and

write and conducted an interview of the petitioner. Dr. Auble testified that “[t]he general results of

the tests were that [the petitioner] had what I would consider abnormalities in his functioning in

several areas.” She explained that the petitioner had particular difficulty with time tests and with

tests which had him learn and remember information that he was told. Dr. Auble stated that she did

not feel that the petitioner was “faking problems.”

Dr. Auble provided a summary of her testing results. The petitioner’s IQ was 73 with some

variability among the thirteen subtests. The petitioner’s delayed memory was significantly below

what would be expected. The petitioner had trouble with tests that required quick responding and

on tests that involved reasoning. The petitioner had trouble with vocabulary fluency. The petitioner

read at an eleven-year-old’s level, his written language is that of a ten-year-old, and his math skills

were those of a ten-year-old. Testing revealed deficits and impairments when he had to remember

information after a delay. Dr. Auble stated that the petitioner’s deficits were “patchy,” but appeared

to involve “a lot of timed tests.” He had trouble with quick responding and specific deficits in verbal

memory. She added that “there were indications that there was something wrong with him but it

wasn’t clear from the test data that there was a specific, one specific area of the brain, and it also did

not look like a diffuse damage in that other words some people just have a generalized lowering of

all their scores. He didn’t look like that. He was okay on some things and not so good on others.”

As a result of her report, Dr. Auble recommended that the results of her testing, while not

clear by themselves, be further investigated in terms of fetal alcohol syndrome and in terms of

medical imaging. Dr. Auble stated that medical imaging was completed by Dr. Kessler and she was

privy to those results. Dr. Kessler’s findings show that “there are multiple small areas of damage

in the subcortical region of [the petitioner’s] brain that seem to be vascular in nature.” Dr. Auble

explained that these were linked to hypertension or migraines. Although this type of damage was

common in elderly persons, it is uncommon to see this type of damage in a person as young as the

petitioner. This damage results in deficits in concentration, attention and response stage. Decline

in intelligence and other abilities may be observed as well.

Dr. Auble again affirmed that it was her opinion that the petitioner was not malingering. She

noted that the petitioner’s IQ testing had been variable over the years, 105 when he was four years

old, 92 when he was five years old, 84 in the third grade, 76 in the fifth grade, and 111 also in the

fifth grade. Dr. Auble agreed that toxic environmental exposure could be a contributing factor to

an offense such as the one in the present case.

I. Denial of Due Process at Petitioner’s Trial: Extraneous Information before the Jury

The petitioner contends that, due to the actions of the jury, he was denied a fair trial in

violation of rights secured by both the state and federal constitutions. The petitioner claims that the

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jurors consulted extrajudicial materials during deliberations, i.e., the Bible. Petitioner asserts that

“[r]eading from the Bible during jury deliberations regarding sentencing in a capital case requires

reversal of the jury decision.” (citing State v. Harrington, 627 S.W.2d 345, 350 (Tenn. 1981)).

A. Waiver of the Issue on Appeal

In response to the petitioner’s argument, the State, in part, asserts that this issue is waived

as it was not presented on direct appeal. See T.C.A. § 40-30-206(g). The petitioner responds, in

part, that the State should not be permitted to argue waiver before this Court because the State failed

to assert waiver and proceeded to respond to the merits of the claim in the lower court.

In Walsh v. State, our supreme court held that the State “waives” the waiver argument when

the State fails to raise the defense of waiver at the post-conviction hearing. 166 S.W.3d 641, 645

(Tenn. 2005). To permit waiver for the first time on appeal would deny the petitioner the

opportunity to rebut the presumption that the issue had indeed been waived. Id. (citing T.C.A. § 40-

30-110(f)(2003)). Accordingly, as the State failed to assert waiver in the lower court, we conclude

that the waiver argument fails on appeal. As this Court has rejected the waiver argument, it is

unnecessary to review the remaining arguments of the petitioner regarding the propriety of

addressing the merits of the claim on appeal, including but not limited to the argument that the State

may not be permitted to use incompatible legal theories between cases. We proceed to review the

issue on its merits.

B. Alleged Juror Misconduct

During the post-conviction hearing, jurors Ernest Bowles, Nancy Hurlburt, and Fannie

Goodman testified that, during jury deliberations, one juror, Mr. Bowles, read Bible passages aloud

and another juror recited a prayer. Juror Bowles testified that he had his Bible with him during the

trial proceedings and in the deliberation room. During deliberations, juror Bowles read a passage

from Romans 13, verses 1-4, King James Version. He also read the verses at the post-conviction

evidentiary hearing:

. . . Let every soul be subject unto the higher powers. For there is no power but of

God; the powers that be are ordained of God. Whosoever therefore resisteth the

power, resisteth the ordinance of God; and they that resist shall receive to themselves

damnation. For rulers are not a terror to good works, but to the evil. Will thou then

not be afraid of the power? Do that which is good, and thou shall have praise of the

same. For he is the minister of God to thee for good. But if thou do that which is

evil, be afraid; for he beareth not the sword in vain; for he is the minister of God, a

revenger to execute wrath upon him that doeth evil.

Juror Bowles stated that this was the only passage read aloud during deliberations and that these

verses were read during a point in deliberations when “one juror didn’t believe in the death penalty.”

Juror Bowles explained that he read these specific verses “[b]ecause it deals with punishment,” “[i]f

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you commit a crime you’re supposed to be punished.” Juror Bowles testified that he is a Christian

and it was his practice to engage in daily reading of Scripture.

Juror Hurlburt testified that she asked if she could say a prayer. She stated that her prayer

was out loud but she could not recall any one else participating. She added that the prayer was said

“immediately when the Judge sent us back.” Juror Hurlburt recalled a juror reading from the Bible,

but she stated that, in her opinion, the reading was not done to influence the way the jurors should

vote. She explained that the verse was read “just to let us have the peace of mind that we were

making the right decision . . . . [W]e wanted to be able to walk away knowing that we would not

have . . . made the wrong decision and have to live with it for the rest of our life.”

Juror Goodman testified that, during deliberations, a verse from the Book of Corinthians and

verses from the Book of Romans were read. She could not recall what verse was read from

Corinthians, although she stated that “a verse from Romans 13" was read. She stated that the jurors

“held hands and we prayed and we cast our votes.” Juror Goodman added that “about three or four”

jurors had their Bibles in the deliberation room. Despite the variance between the testimony of

Jurors Bowles and Hurlburt with that of Juror Goodman, all three jurors maintained that the death

penalty was imposed based upon the law and the evidence and that neither the Bible passages nor

prayer influenced their decision.

C. Findings of Post-Conviction Court

The post-conviction court made the following findings regarding the reading of the Bible

verse during deliberations:

. . . In the instant case, this Court does not find that jurors reading their Bibles during

the period they were sequestered would necessarily be an improper outside influence,

as it would be difficult to deny jurors reading material of their choice during long

sequestrations, and improper to deny them access to articles of their personal faith

during this emotional and stressful time away from their families. The question in

the petitioner’s case is whether the reading of the Bible verse out loud to the jury in

the deliberation room in this case would be considered prejudicial or improper

influence. Although petitioner has the burden of proving his allegations of

ineffective assistance of counsel by clear and convincing evidence, if the attorneys

had presented this information in a Motion for New Trial the burden would have

been slightly different. On appeal, if it is shown that one or more jurors has been

exposed to extraneous prejudicial information or improper influence, there arises a

rebuttable presumption of prejudice, and the burden then shifts to the prosecution to

explain the conduct or to demonstrate the harmlessness of it. State v. Parchman, 973

S.W.2d 607, 612 (Tenn. Crim. App. 1997); State v. Young, 866 S.W.2d 194, 196

(Tenn. Crim. App. 1992). In order to shift the burden to the prosecution to

demonstrate the harmlessness of the communication with the jury, the threshold

-29-

question would be whether the statement communicated to the jury was prejudicial

to the appellant. Parchman, 973 S.W.2d at 612.

This Court finds that petitioner has not shown that the reading of the Bible

verse in this case was prejudicial to the petitioner. The Romans13 verses quoted . .

.do not advocate the death penalty over a life sentence, but only affirm that God’s

laws are not in conflict with the government’s right to punish offenders (“the powers

that be are ordained of God”), and was apparently read in response to an unidentified

juror who apparently stated the juror “didn’t believe in the death penalty,” despite a

thorough voir dire of the entire jury venire concerning this issue. The verses in

question merely recalled the jury to its duty to follow man’s law in the case, as it was

an instrument of God. . . . this particular passage did not affect the verdict of the jury

by suggesting that the death penalty would be the proper verdict. . . .

...

No proof has been presented that the reading of the Bible verse put any undue

pressure on any juror, or had any influence on the jury’s verdict. Therefore even if

the reading of the verse could be considered an improper outside influence, no

prejudice has been shown to petitioner.

D. Analysis

A criminal defendant has a right to an impartial jury. See Stockton v. Virginia, 852 F.2d 740,

744 (4th Cir.1986). Under Article I, section 6 of the Tennessee Constitution, the right of trial by jury

must be preserved inviolate. State v. Bobo, 814 S.W.2d 353, 356 (Tenn. 1991). It is of the utmost

importance to the administration of justice that the purity of the trial by jury should be preserved.

Hines v. State, 27 Tenn. 597, 8 Hum. 597 (1848). This means that it must be preserved as it existed

at common law at the time of formation of the Constitution. Id. (citations omitted). Any evidence

that does not come from the witness stand in a public courtroom where there is full judicial

protection of the defendant’s right to confrontation, of cross-examination, and of counsel is

presumptively prejudicial. See Turner v. Louisiana, 379 U.S. 466, 473, 85 S. Ct. 546, 550 (1965).

In this regard, “[c]ommunications whether to a single juror separated from his comrades, or to the

whole jury, are equally prohibited, and a presumption of prejudice arises when the mere fact of

communications is shown without explanation.” King v. State, 7 Pickle 617, 91 Tenn. 617, 20 S.W.

169, 172 (1892). The verdict of the jury must be found upon the evidence delivered to them in court

in the presence of the judge and of the parties. Sam v. State, 1 Swan 61, 31 Tenn. 61 (1851).

Moreover, while the “true rule in criminal cases” is that “[t]he jury are the judges of the law as it

applies to the facts” and “in making up their verdict they are to consider the law in connection with

the facts,” “the court is the proper source from which they are to get the law.” Henson v. State, 2

Cates 47, 110 Tenn. 47, 72 S.W. 960 (1903).

It is well-established that extraneous information or influence brought before the jury

questions the validity of the jury’s verdict. Our supreme court held that “it is not upon the prisoner

to show affirmatively that he was prejudiced by the improper evidence received by the jury. It is

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enough that he may have been prejudiced, and the law will so presume.” Ryan v. State, 97 Tenn.

206, 36 S.W. 930, 931 (1896) (citing Morton v. State, 1 Lea, 499; Whitmore v. Ball, 9 Lea, 35;

Donston v. State, 6 Humph. 275; Booby v. State, 4 Yerg. 111; Wade v. Ordway, 1 Baxt. 229; Nile

v. State, 11 Lea, 694; Crawford v. State, 2 Yerg. 60.). In other words, if the proof shows that an

improper communication was made, the law presumes that the verdict is tainted.

The allegation of error in the present case is that a juror read verses from the Bible in

response to another juror’s statement regarding the inability to impose a sentence of death. Our

supreme court previously addressed the reading of Bible verses by one jury member to the jury in

State v. Harrington, 627 S.W.2d 345 (Tenn. 1981). In Harrington, the Tennessee Supreme Court

affirmed the defendant’s conviction for first degree murder, but reversed the sentence of death and

remanded the case for a new sentencing hearing based primarily upon the trial court’s error in

excluding potential jurors in violation of the standard set forth in Witherspoon v. Illinois, 391 U.S.

510, 88 S. Ct. 1770 (1968). Harrington, 627 S.W.2d at 350. Immediately after so ruling, the

opinion of our supreme court provides:

Appellant also has called our attention to the fact that during deliberations in the

sentencing phase of the trial, the jury foreman buttressed his argument for imposition

of the death penalty by reading to the jury selected biblical [sic] passages. His action,

of course, was error which would have required a new sentencing hearing, absent the

error in excluding jurors for cause in violation of the Witherspoon standard.

Id. (emphasis added). The petitioner in the case sub judice relies upon this language from

Harrington in support of his argument that he is entitled to post-conviction relief. The quoted

language is the extent of all discussion on the issue of the reading of Biblical passages to a jury. The

precise passages read to the jury are not revealed and the opinion is absent citation to legal precedent

or authority. The only circumstance surrounding the reading revealed in the opinion is that the jury

foreman read the verses in order to “buttress[] his argument for imposition of the death penalty.”

Id. We conclude that this “circumstance” surrounding the jury foreman’s intent in reading the

Biblical passages is in fact evidence of “the effect of anything upon any juror’s mind or emotions

as influencing that juror to assent to or dissent from the verdict. . . .” Tenn. R. Evid. 606(b).

(Emphasis added). Therefore, such evidence would not be admissible under our supreme court’s

recent decision in Walsh v. State, 166 S.W.3d 641 (Tenn. 2005).

In Walsh v. State, our supreme court held:

Tennessee Rule of Evidence 606(b) permits juror testimony to establish the fact of

extraneous information or improper influence on the juror; however, juror testimony

concerning the effect of such information or influence on the juror’s deliberative

processes is inadmissible.

Walsh, 166 S.W.3d at 649 (emphasis added). Logically, this must apply equally to the “effect of

such information” on all the jurors – to those who hear the information as well as to the one who

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reads the information. “[A] juror is not permitted to testify about anything occurring during

deliberations, including the juror’s own internal thoughts, motivations or emotions.” Walsh, 166

S.W.3d at 647 (citing Tenn. R. Evid. 606(b); State v. Blackwell, 664 S.W.2d 686, 688 (Tenn. 1984))

(emphasis added).

The ruling in Harrington must now be construed with the holding in Walsh. As noted in

Walsh, Tennessee adopted Federal Rule of Evidence 606(b) in State v. Blackwell, 664 S.W.2d at 686,

three years after the decision in Harrington. As pertinent to he case sub judice, Tennessee Rule of

Evident 606(b), effective January 1, 1990, is identical to Federal Rule of Evidence 606(b). See

generally Walsh, 166 S.W.3d at 646. In the case sub judice, applying the holding in Walsh, the only

admissible testimony of juror Bowles was his testimony that he read Romans 13:1-4 (King James

Version) aloud during deliberations, and the verbatim content of those Bible verses. Any effect of

these verses upon the minds or emotions of any of the jurors, including juror Bowles and/or the

unidentified juror who purportedly “didn’t believe in the death penalty” was inadmissible. Likewise,

any testimony that one or more jurors expressed disbelief in the death penalty was inadmissible.

Furthermore, all testimony by jurors Hurlburt and Goodman was inadmissible except for testimony

of what was read. In addition, juror Bowles’ testimony of his interpretation of the meaning of the

Bible verses was inadmissible. Therefore, the only evidence on this issue which can be considered

is the proof that juror Bowles read Romans 13:1-4 to the jury, the content of that Biblical passage,

and the testimony of jurors Hurlburt and Goodman that juror Hurlburt said a prayer out loud and that

these two jurors heard verses from Corinthians and Romans 13 being read.

First, we address the specific proof regarding the reading of Romans 13:1-4 to the jury. We

can only consider the “four corners” of the purported extraneous information without any reference

to why it was read, or the interpretation, if any, placed on it by either the reader or any other of the

jurors. See Walsh, 166 S.W.3d at 649. Thus the extraneous information must be looked at

objectively rather than subjectively. A literal reading of the Bible passage shows that it does not

mention imposition of the penalty of death, or any other punishment related to murder, or any other

specific crimes. The essence of the Bible passage is that the power of government is subject to the

power of God, and if one does good deeds he or she will “have praise” and if one “does evil” he or

she will be punished. The theme is that one should follow the laws of the civil government who

rules. Contrary to the speculation by some advocacy groups, see Robert Parham, Please Stop Using

the Scriptures as Rationale for Capital Punishment, The Tennessean, Apr. 13, 2000; Larry Swindell,

Capital Idea: A Persuasive Examination-and Denunciation-on the Death Penalty, Fort Worth Star-

Telegram, Nov. 23, 1997; Robert Marquand, Death Penalty Issue Stirs Divergent Religious Views,

McVeigh Case Inspires Debate on Moral Aspects of Society’s Ultimate Sanction, Christian Science

Monitor, June 12, 1997, Romans 13: 1-4 does not encourage, command, or otherwise require

imposition of the death penalty.

The law in Tennessee is that a jury shall impose the death penalty following a conviction for

first degree murder when the twelve members of the jury unanimously agree that the State has

proven beyond a reasonable doubt the existence of at least one statutory aggravating circumstance

and that the aggravating circumstance(s) has been proven by the State beyond a reasonable doubt to

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outweigh any mitigating circumstances. T.C.A. § 39-13-204(g)(1)(A) & (B). In the case sub judice,

the trial court charged the jury, in part:

It is your duty to determine within the limits prescribed by law the penalty

which shall be imposed as punishment for this [offense]. Tennessee law applicable

for this offen[s]e provides that a person convicted of murder in the first degree shall

be punished by death or by imprisonment for life.

The law makes it the duty of the Court to give in its charge to the jury the law

relative to the hearing. It is the duty of the jury to carefully consider all the evidence

delivered to them on the hearing and under the law given them by the Court render

their verdict with absolute impartiality.

...

The jury is the sole judge of the facts and of the law as it applies to the facts

in this hearing. In arriving at your verdict, you are to consider the law in connection

with the facts.

But the Court is the proper source from which you are to get the law. In other

words, you are the judges of the law as well as the facts under the direction of the

Court.

...

You are the exclusive judges of the facts in this hearing. Also you are the

exclusive judges of the law under the direction of the Court.

You should apply the law to facts in deciding the sentence.

...

You should in no case allow mere sympathy or prejudice solely to influence

your verdict but should look to the law and all the facts and circumstances proven in

the evidence to determine your verdict.

The Biblical passage read, in essence, is a statement, the substance of which, is included in the trial

court’s charge to the jury. Before extraneous information given to a jury can mandate a new trial,

the extraneous information must be “prejudicial.” Tenn. R. Evid. 606(b). As Rule 606(b) prohibits

the reviewing court from considering the actual effects of any extraneous information on any juror,

Walsh, 166 S.W.3d at 649, the reviewing court may only determine prejudice from the content of

the information. We agree with the lower court that Romans 13:1-4 is not extraneous prejudicial

information. This information (the Biblical passages) does not pertain to the petitioner, the victim,

or to any facts of the case. Neither does the information pertain to the Rules of Procedure nor the

Rules of Evidence which apply to any criminal trial. Courts in other jurisdictions have reached

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similar conclusions. See, e.g., Fields v. Brown, 431 F.3d 1186, 1209 (9th Cir. 2005) (some Bible

verses may be considered common knowledge, therefore not extrinsic evidence, even if error, no

prejudice, Bible verses not facts); Malicoat v. Mullin, 426 F.3d 1241 (10th Cir. 2005) (carving of “eye

for an eye” in courtroom found harmless error); Burch v. Corcoran, 273 F.3d 577 (2001) (juror read

from Bible and quoted from Bible from memory during deliberations; held not to be an improper

communication and, even if error, error was harmless); Lenz v. True, 370 F. Supp. 2d 446 (W.D. Va.

2005) (upheld state court finding that no evidence was presented that biblical passages read to jury

members were related to the sentencing decision; district court rejected reaching a conclusion that

anything read from the Bible during deliberations was sufficient to satisfy the test in Remmer v.

United States, 347 U.S. 227, 229, 74 S. Ct. 450, 451 (1954)); State v. Kleypas, 40 P.3d 139 (Kan.

2001) (quote from Bible made by one juror to another not reversible error); Young v. State, 12 P.3d

20 (Okla. Crim. App. 2000) (it is to be presumed that jurors would discuss biblical propriety of death

penalty; such discussion does not constitute extraneous information).

The role of this Court is to determine whether the extraneous information influenced a

juror(s) to the petitioner’s detriment. We must review the alleged extraneous information under an

objective standard. Viewing the extraneous information objectively, we cannot conclude that the

Biblical verses read nor the prayer spoken outloud were inherently and substantially prejudicial. The

general testimony regarding the readings from Corinthians and Romans as well as testimony

evidencing a prayer fail to establish that any specific extraneous prejudicial information was given

to the jury. It is generally understood that jurors will inherently consider their own religious, moral

and philosophical beliefs during penalty phase deliberations. In this regard, no one, including the

courts of this state, can expect jurors to live in a vacuum, immune from any contact with extra-

judicial resources, including the Bible. Thus, we are unable to conclude that a jury’s exposure to a

Biblical passage during deliberations is per se prejudicial. Additionally, while the petitioner argues

that the passages read from Romans 13 are “pro-capital punishment,” this Court is reluctant to make

such an interpretation nor can this Court, under an objective standard, conclude that the jurors

understood the passage as God’s instruction to impose a sentence of death.

A finding of reversible prejudicial error cannot be based on a mere possibility that a juror was

improperly influenced. The likelihood that the juror was influenced must be substantial. The jury

was instructed as to the applicable law. We presume the jury follows the law as provided by the

court. The facts of this horrific murder of this eight-year-old victim are heinous and include the

confession of the petitioner. Accordingly, we cannot conclude that the typical juror in this case

would have not imposed a sentence of death absent the reading of the Biblical passages and/or the

prayer. The petitioner is not entitled to relief on this issue.

II. Denial of Due Process at Post-Conviction Hearing

The petitioner contends that he was denied a full and fair hearing on his petition for post-

conviction relief. Specifically, he asserts that statements made by the post-conviction court during

the post-conviction hearing and the rulings made by the court after the hearing demonstrate the post-

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conviction court’s bias or lack of objectivity, or, in the alternative, that the court was unable to

consider mitigation evidence.

A. Applicable Law

A fair trial in a fair tribunal is a basic requirement of due process. The principles of

impartiality, disinterestedness and fairness are fundamental concepts in our jurisprudence. See State

v. Bondurant, 4 S.W.3d 662, 668 (Tenn. 1999) (quoting State v. Lynn, 924 S.W.2d 892, 898 (Tenn.

1996)). Article I, Section 17 of the Tennessee Constitution and the Fourteenth Amendment to the

United States Constitution guarantee all litigants a hearing before an impartial decision-maker. In

re Cameron, 126 Tenn. 614, 658, 151 S.W. 64, 76 (1912); see also Tumey v. Ohio, 273 U.S. 510,

532, 47 S. Ct. 437 (1927) (“every procedure which would offer a possible temptation to the average

man as a judge [to forget the burden of proof required to convict the defendant, or which might lead

him] not to hold the balance nice, clear and true between the State and the accused, denies the latter

due process of law”). Article VI, section II of the Tennessee Constitution states that judges cannot

participate in cases in which they might have even the slightest interest. Neely v. State, 63 Tenn.

174, 182 (1874). A similar restriction appears in section 17-2-101(1), Tennessee Code Annotated.

The purpose of these provisions is to guard against the prejudgment of a litigant’s rights and to avoid

situations in which the litigants might believe that the court reached a prejudiced conclusion because

of interest, partiality or favor. Chumbley v. Peoples Bank & Trust Co., 165 Tenn. 655, 659, 57

S.W.2d 787, 788 (1933). A trial before a biased or prejudiced judge is a denial of due process.

Wilson v. Wilson, 987 S.W.2d 555, 562 (Tenn. Ct. App. 1998).

Judges must not only be impartial, but also appear impartial because judicial fairness is

violated when the appearance of fairness is ignored. See State ex rel. McFerran v. Justice Court of

Evangeline Starr, 202 P.2d 927 (Wash. 1949). This is not merely an idealistic sentiment. Deference

to the judgments and rulings of the courts depends upon public confidence in the integrity and

independence of the judges that make them. As our supreme court has acknowledged:

It is of lasting importance that the body of the public should have confidence in the

fairness and uprightness of the judges created to serve as dispensers of justice. The

continuance of this belief, so long entertained by the people of this country, and so

well warranted by the history of the judiciary as a body, is largely essential to the

future existence of our institutions in their integrity.

In re Cameron, 126 Tenn. 614, 658-59, 151 S.W. 64, 76 (1912). As what the public perceives may

be substantially different from what actually exists, it is the appearance of impartiality that will often

undermine or resurrect society’s faith in the judicial system. See State v. Bondurant, 4 S.W.3d 662,

668 (Tenn. 1999) (quoting State v. Lynn, 924 S.W.2d 892, 898 (Tenn. 1993) (citing Offutt v. United

States, 348 U.S. 11, 14, 75 S. Ct. 11, 13 (1954))). Thus, “justice must satisfy the appearance of

justice.” Id.

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Canon 2A, Tennessee Supreme Court Rule 10, requires judges to conduct themselves “at all

times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.”

Similarly, Canon 3(E)(1), Tennessee Supreme Court Rule 10, requires judges to disqualify

themselves in cases where their “impartiality might reasonably be questioned.” The strict application

of Canon 3(E)(1) may result in the disqualification of a judge who has no actual bias and who

believes that he or she can try a case fairly. See In re Murchison, 349 U.S. 133, 136, 75 S. Ct. 623,

625 (1955). The test is not whether the judge believes he or she can be impartial but whether others

might reasonably question the judge’s impartiality. See generally Offutt v. United States, 348 U.S.

at 14, 75 S. Ct. at 13.

B. Bias of Post-Conviction Court

1. Court’s Classification of Representation as “Excellent”

The petitioner first asserts that the lack of objectivity and bias of the lower court is

exemplified by the “hyperbole,” i.e., “excellent representation by the Shelby County Public

Defender,” that the court uses throughout its findings of fact and conclusions of law “to praise the

work of trial counsel and to disparage the evidence presented in post-conviction.” Petitioner then

argues that the quality of representation received by the petitioner is “excellent,” only if “excellent

representation includes” a listing of alleged errors committed by counsel, including arguing that a

repealed statute is unconstitutional, failing to reflect upon the case and determine what could have

been done differently and placing state and county budget concerns above the petitioner’s interests.

Inasmuch as any claim can be construed as alleged grounds of ineffective assistance of trial

counsel, those claims will be addressed as such, i.e., petitioner’s allegations regarding an ineffective

opening argument and the ineffective preparation of defense witnesses. However, claims that were

not raised in the post-conviction petition and not presented to the trial court will not be considered

in the context of claims of ineffective assistance of counsel. State v. Alvarado, 961 S.W.2d 136, 153

(Tenn. Crim. App. 1996). Specifically, petitioner’s claims that trial counsel argued that a repealed

statute was unconstitutional, trial counsel failed to reflect upon the case and determine what could

have been done differently and that trial counsel placed state and county budget concerns above the

petitioner’s interests were not raised in the petition or at the post-conviction proceeding. Finally, we

reject the petitioner’s allegation that any and all of these claims contradict the post-conviction court’s

characterization of counsel’s representation of the petitioner as “excellent” and demonstrate the post-

conviction court’s bias. Bias of a trial court is not shown simply by a litigant’s displeasure with the

outcome of a hearing. The petitioner is not entitled to relief as to this claim.

2. Court’s Inability to Consider Mitigation Evidence

The petitioner next contends that the post-conviction court possesses a hostility to mitigation

and/or is unable to consider mitigation evidence. The petitioner makes several allegations in an

attempt to discredit the post-conviction court. These allegations include (1) the post-conviction court

was “entirely dismissive of the testimony of Dr. Wass,” an expert in the effects of alcohol on a

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developing fetus, (2) the post-conviction court’s remark that trial counsel had no obligation to assist

the petitioner in the post-conviction proceeding, and (3) the post-conviction court’s remarks that the

concept of multi-generational sequential damage is “absurd” and “ridiculous.”

The record before this Court reveals that the post-conviction court considered all of the

testimony presented, including that of lay witnesses and all expert witnesses, including Dr. Wass.

The fact that the post-conviction court did not agree with all of the testimony presented does not

result in the per se denial of a fair hearing. Neither does the fact that the post-conviction court did

not reach the results preferred by the petitioner mandate the conclusion that the post-conviction court

was unable to consider mitigation evidence. Nothing in the record before this court supports a

conclusion that the petitioner was denied a full and fair hearing before a fair tribunal. He is not

entitled to a new post-conviction hearing on this ground.

III. Ineffective Assistance of Trial Counsel

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, 83 S. Ct. 792 (1963) (quoting Betts v. Brady, 316 U.S. 455, 465,

62 S. Ct. 1252 (1942)). Inherent in the right to counsel is the right to effective assistance of counsel.

Cuyler v. Sullivan, 446 U.S. 335, 344, 100 S. Ct. 1708 (1980); McMann v. Richardson, 397 U.S.

759, 771 n. 14, 90 S. Ct. 1441 (1970); see also Strickland v. Washington, 466 U.S. 668, 686, 104 S.

Ct.2052 (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 be relied on as

having produced a just result.” Strickland, 466 U.S. at 686, 104 S. Ct. at 2064; 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 defendant by the Sixth Amendment.

Second, the defendant must show that the deficient performance prejudiced the

defense. This requires showing that counsel’s errors were so serious as to deprive the

defendant of a fair trial, a trial whose result is reliable.

Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; 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 the counsel’s representation fell below an objective standard of

reasonableness, or “outside the range of professionally competent assistance.” Strickland, 466 U.S.

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at 690, 104 S. Ct. at 2066; see also Kimmelman v. Morrison, 477 U.S. 365, 386, 106 S. Ct. 2574

(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 defendant must overcome

the presumption that, under the circumstances, the challenged action ‘might be considered sound trial

strategy.’” Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. Additionally, courts should defer to trial

strategy or tactical choices if they are informed ones based upon adequate preparation. Hellard v.

State, 629 S.W.2d 4, 9 (Tenn. 1982). Finally, we note that criminal defendants are not entitled to

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

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

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

compelled.’ “ Burger v. Kemp, 483 U.S. 776, 794, 107 S. Ct. 3114, 3126 (1987). Notwithstanding,

we recognize that “our duty to search for constitutional [deficiencies] with painstaking care is never

more exacting than it is in a capital case.” Id. at 785, 107 S. Ct. at 3121.

If the petitioner shows that counsel’s representation fell below a reasonable standard, then

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

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

would have been different.” Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. “A reasonable

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

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

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

Lockhart v. Fretwell, 506 U.S. 364, 372, 113 S. Ct. 838 (1993) (citing Strickland, 466 U.S. at 687,

104 S. Ct. at 2064). In other words, a petitioner must establish that the deficiency of counsel was

of such a degree that it deprived the defendant of a fair trial and called into question the reliability

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

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

that the trial would have otherwise resulted in an acquittal. Nealy v. Cabana, 764 F.2d 1173, 1178-

1179 (5th Cir. 1985); Code v. Montgomery, 799 F.2d 1481, 1483 (11th Cir. 1986). “A reasonable

probability of being found guilty of a lesser charge, or a shorter sentence, satisfies the second prong

in Strickland.” State v. Zimmerman, 823 S.W.2d 220, 225 (Tenn. Crim. App. 1991); see also

Chambers v. Armontrout, 907 F.2d 825, 832 (8th Cir. 1990), cert. denied, 498 U.S. 950, 111 S. Ct.

369 (1990). Moreover, when challenging a death sentence, the petitioner must show that “there is

a reasonable probability that, absent the errors, the sentencer . . . would have concluded that the

balance of the aggravating and mitigating circumstances did not warrant death.” Henley v. State, 960

S.W.2d 572, 579-580 (Tenn. 1997), reh’g denied, (1998), cert. denied, No. 97-8880 (U.S. Tenn. Oct.

5, 1998) (citing Strickland v. Washington, 466 U.S. at 695, 104 S. Ct. at 2069).

A. Claims Before this Court

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On appeal, the petitioner claims that appointed counsel failed to function as effective counsel

as guaranteed by both the Tennessee and United States Constitutions. In this regard, petitioner

asserts that his appointed counsel denied him effective assistance of counsel by breaching acceptable

standards for capital representation in that:

1. Counsel failed to competently select a jury;

2. Counsel failed to present effective opening and closing arguments;

3. Counsel failed to investigate and present significant mitigation evidence;

4. Counsel failed to properly prepare defense witnesses to testify; and

5. Counsel failed to effectively use expert services.

We proceed to review each of the petitioner’s arguments and analyze them in light of trial counsel’s

conduct and performance.

1. Failure to Competently Select Jury

The petitioner complains that trial counsel did not adequately voir dire prospective jurors

when they failed to ask questions necessary to determine personal biases. Petitioner alleges that trial

counsel was completely inadequate with regard to their understanding and execution of the jury

selection process in a capital case. In support of this allegation, he faults trial counsel for failing to

zealously pursue the motion for individual voir dire. Additionally, he asserts that neither party,

particularly the defense, asked any questions that were designed to seek answers from the potential

jurors that would give insight as to whether they would be able to consider and give effect to

mitigation proof. Nor were questions posed of the potential jurors to provide insight as to whether

they would consider a life sentence or whether they were automatic death jurors. Petitioner states

trial “[c]ounsel’s voir dire failed to identify jurors who could not consider, and give effect to

mitigation, and failed to identify potential automatic death penalty jurors.”

The petitioner raises these claims of ineffectiveness of counsel for the first time in this

appeal. The claims related to voir dire were not raised in his petition for post-conviction relief nor

were these issues argued before the post-conviction court. This Court will not address claims raised

for the first time on appeal. See State v. Alvarado, 961 S.W.2d 136, 153 (Tenn. Crim. App. 1996).

Moreover, on direct appeal, the petitioner raised the issue of whether the trial court erred by denying

individual voir dire. See Keen, 31 S.W.3d at 229 (Appendix). Our supreme court adopted the

holding of this Court finding that the lower court did not abuse its discretion in denying individual

voir dire. Id. Accordingly, even if properly raised in the petition for post-conviction relief, we

cannot conclude that the petitioner would be entitled to relief. Accordingly, he is not entitled to

relief on this issue.

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2. Failure to Effectively Present Opening and Closing Arguments

The petitioner next contends that trial counsel failed to effectively utilize opening and closing

arguments. He asserts that basically the same opening and closing arguments were provided at both

the 1991 and 1997 sentencing trials. He contends that “[u]sing the opening argument to present the

story of the case is basic to defense advocacy.” Petitioner asserts that trial counsel failed to “tell the

tragic story of how he was damaged, starting before birth, by events beyond his control.” Petitioner

further poses the question as to counsel’s performance, “[i]f what you did in the first trial resulted

in an unwanted outcome, why did you do the same things the second time around?”

First, the petitioner’s complaints regarding closing arguments were not raised in the petition

for post-conviction nor were they presented to the post-conviction court. Accordingly, this claim

cannot be argued for the first time on appeal to this Court. Alvarado, 961 S.W.2d at 153. Thus, our

review is limited to the opening statement of Judge Ryan.

In its findings of facts and conclusions of law, the post-conviction court found:

. . . Judge Ryan did not spell out all of the tragic tale of the petitioner’s abusive

childhood in her opening statement, despite the Primacy and Recency theory

advanced by attorney Bill Massey. . . (that the jury remembers best what they hear

first and last, so that the attorney should make full use of the opening statement).

Robert Jones testified that they felt it would be best for the jury to hear the story told

by the witnesses, and as they had made changes for the second trial (no jailer, no

defendant, and added Darlene Krone and Dr. Ciocca) they didn’t want to tip off the

State ahead of time. . . . He later tetsified that the opening statement Judge Ryan

gave “did give some of the information, and it’s a question of how much you want

to present, and it’s a question of whether you want to try to go over it word for word

and then lose the impact when the witnesses testify. . . .

Judge Ryan also stated she was “non-committal” in opening statement

because she was unsure whether or not petitioner’s siblings would be responsive on

the witness stand.

...

She also worried that Linda might not testify to the same things because Darlene was

present . . . and they might both be reluctant. . . . This Court finds that not laying out

a detailed account of the petitioner’s mitigation on opening statement to keep from

lessening the impact on the jury and not promise something to the jury that might not

be delivered was based on sound reasoning and judgment, and should not be second

guessed.

Opening statements are not evidence, and there is no reason to conclude that a different

presentation by counsel would have altered the jury’s verdict and sentence. See Griffin v. Delo, 33

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F.3d 895, 903 (8th Cir. 1994). The record supports the conclusion that it was a strategic decision

regarding the information presented in opening statement, that the limitation on the information

revealed during opening statement was reasonable under the circumstances, and that trial counsel

considered and rejected reasonable alternative courses of action. Judgmental and tactical errors do

not always equate to ineffective assistance of counsel. Although another attorney may have followed

a different strategy, this does not mean that trial counsel’s strategy in this case constituted the denial

of effective assistance of counsel. An attorney will not be found deficient merely on the basis that

another attorney would have tried the case differently. Accordingly, trial counsel’s strategic action

fails to amount to deficient performance. The petitioner is not entitled to relief on this issue.

3. Failure to Investigate and Present Mitigation Proof

The petitioner asserts that trial counsel’s inadequate preparation produced deficient

performance. In support of this claim, the petitioner asserts that counsel was ineffective for failing

to present evidence relating to the petitioner’s adjustment to prison life in the 1997 retrial despite the

fact that this type of evidence was presented in 1991. See Skipper v. South Carolina, 476 U.S. 1, 106

S. Ct. 1669 (1986). Next, petitioner complains that the jury was prevented from considering

sufficient mitigation evidence by trial counsel’s failure to introduce the Intake Study prepared by

Sam Buzzard and Susan Buzzard. Third, petitioner contends that trial counsel failed to connect the

homicide to the damage inflicted upon the young petitioner, despite the fact that this was a crucial

factor in the mitigation defense. Additionally, petitioner contends that trial counsel failed to present

evidence concerning the relationship between nutrition/malnutrition and the developing brain.

Finally, he alleges that, although trial counsel acknowledged that fetal alcohol exposure was an issue

to be explored in preparing a mitigation case, trial counsel failed to present such evidence to the jury.

In the context of capital cases, a defendant’s background, character, and mental condition are

unquestionably significant. “[E]vidence about the defendant’s background and character is relevant

because of the belief ... that defendants who commit criminal acts that are attributable to a

disadvantaged background, or to emotional and mental problems, may be less culpable than

defendants who have no such excuse.” California v. Brown, 479 U.S. 538, 545, 107 S. Ct. 837, 841

(1987); see Eddings v. Oklahoma, 455 U.S. 104, 113-15, 102 S. Ct. 869, 876 (1982); Lockett v.

Ohio, 438 U.S. 586, 604-05, 98 S. Ct. 2954, 2964-2965 (1978) (plurality opinion); Zagorski v. State,

983 S.W.2d 654, 657-58 (Tenn. 1998); Goad, 938 S.W.2d at 369. The right that capital defendants

have to present a vast array of personal information in mitigation at the sentencing phase, however,

is constitutionally distinct from the question whether counsel’s choice of what information to present

to the jury was professionally reasonable.

There is no constitutional imperative that counsel must offer mitigation evidence at the

penalty phase of a capital trial. Nonetheless, the basic concerns of counsel during a capital sentencing

proceeding are to neutralize the aggravating circumstances advanced by the State and to present

mitigating evidence on behalf of the defendant. Although there is no requirement to present

mitigating evidence, counsel does have the duty to investigate and prepare for both the guilt and the

penalty phase. See Goad, 938 S.W.2d at 369-70.

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To determine whether or not trial counsel was ineffective for failing to present mitigating

evidence, the reviewing court must consider several factors. First, the reviewing court must analyze

the nature and extent of the mitigating evidence that was available but not presented. Goad, 938

S.W.2d at 371 (citing Deutscher v. Whitley, 946 F.2d 1443 (9th Cir. 1991); Stephens v. Kemp, 846

F.2d 642 (11th Cir. 1988); State v. Adkins, 911 S.W.2d 334 (Tenn. Crim. App. 1994); Cooper v.

State, 847 S.W.2d 521, 532 (Tenn. Crim. App. 1992)). Second, the court must determine whether

substantially similar mitigating evidence was presented to the jury in either the guilt or penalty phase

of the proceedings. Id. (citing Atkins v. Singletary, 965 F.2d 952 (11th Cir. 1992), cert. denied, 515

U.S. 1165, 115 S. Ct. 2624 (1995); Clozza v. Murray, 913 F.2d 1092 (4th Cir.1990), cert. denied,

499 U.S. 913, 111 S. Ct. 1123 (1991); Melson, 722 S.W.2d at 421)). Third, the court must consider

whether there was such strong evidence of applicable aggravating factor(s) that the mitigating

evidence would not have affected the jury’s determination. Id. (citing Fitzgerald v. Thompson, 943

F.2d 463, 470 (4th Cir.1991), cert. denied, 502 U.S. 1112, 112 S. Ct. 1219 (1992); Elledge v.

Dugger, 823 F.2d 1439 (11th Cir.1987), cert. denied, 485 U.S. 1014, 108 S. Ct. 1487 (1988)).

Although there is no absolute duty to investigate particular facts or a certain line of defense,

counsel does have a duty to make reasonable investigation or to make a reasonable decision that

makes particular investigation unnecessary. Strickland, 466 U.S. at 691, 104 S. Ct. at 2052. In

determining whether counsel breached this duty, counsel’s performance is reviewed for

reasonableness under prevailing professional norms, which includes a context-dependent

consideration of the challenged conduct as seen from counsel’s prospective at the time. Wiggins,

539 U.S. 523, 123 S. Ct. at 2527 (citations omitted). Counsel is not required to investigate every

conceivable line of mitigating evidence no matter how unlikely the effort would be to assist the

defendant at sentencing. Id. at 533, 121 S. Ct. at 2381. Neither is counsel required to interview

every conceivable witness. Hendricks v. Calderon, 70 F.3d 1032, 1040 (9th Cir. 1995). In other

words, counsel’s duty to investigate and prepare is not limitless. See Washington v. Watkins, 655

F.2d 1346 (5th Cir. 1981). Counsel’s performance will not be found deficient for failing to unveil

all mitigation evidence, if, after a reasonable investigation, nothing has put counsel on notice of the

existence of that evidence. See Babbit v. Calderson, 151 F.3d 1170, 1174 (9th Cir. 1998) (citation

omitted). In summary, “no particular set of detailed rules can satisfactorily take account of the

variety of circumstances faced by defense counsel. Rather, courts must judge the reasonableness of

counsel’s conduct on the facts of the particular case, viewed as of the time of counsel’s conduct, and

judicial scrutiny of counsel’s performance must be highly deferential.” Roe v. Flores-Ortega, 528

U.S. 470, 120 S. Ct . 1029 (2000) (internal citations and quotations omitted).

Summary of Mitigation Evidence Presented

1991 Trial

During the 1991 penalty phase trial, the petitioner testified on his own behalf. Keen, 926

S.W.2d at 730. He also offered the testimony of his sister, brother, his adoptive parents and Dr.

Hutson, a clinical psychologist. Id. “The substance of their testimony was to relate the conduct of

the [petitioner] in the rape and homicide of the victim to be the result of his childhood abuse.” Id.

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The petitioner’s siblings testified that their father was physically and emotionally abusive of his

children and sexually molested at least one of his daughters. Id. The petitioner’s father was a parole

violator and kept the family constantly on the move to evade the law. Id. The testimony presented

revealed that the children were malnourished, neglected and ultimately abandoned by their parents

when the petitioner was between two and three years old. Id. The petitioner then was placed in

foster homes where there was indication that the petitioner was physically and sexually abused. Id.

at 730-731. The petitioner and one brother, Allen, were adopted by a couple when the petitioner was

four and one-half years old. Id. The petitioner’s adoptive parents testified that the petitioner was

a poor student and, as an adolescent, drank, smoked marijuana, stole, and ran away from home. Id.

Dr. Hutson, the clinical psychologist, testified that the petitioner had failed to bond with his adoptive

parents and had developed a “shell” around himself. Id. Dr. Hutson “diagnosed the [petitioner] as

suffering from post-traumatic stress disorder, pedophilia, dependent personality disorder, and

attention deficit hyperactivity disorder in childhood. Id. Dr. Hutson further testified that, at the time

of the offense, the petitioner was under the influence of mental and emotional problems substantially

affecting his judgment. Id. Additionally, there was mitigating testimony from county jail personnel

that the defendant had been a good prisoner and had caused no problems during his incarceration.

Id.

1997 Re-Trial

During the 1997 re-trial, essentially the same mitigation evidence was offered. The

petitioner’s adoptive parents testified that the petitioner and his brother, Allen, were malnourished

during early childhood, often nervous, unable to play or interact socially with others, had difficulty

sleeping, ran fevers, and constantly urinated while asleep. State v. David Keen, No. 02C01-9709-

CR-00365, 1999 WL 61058, at *3 (Tenn. Crim. App., at Jackson, Feb. 10, 1999), aff’d by, 31

S.W.3d 196 (Tenn. 2000). The petitioner was prescribed Ritalin when he started school. Id. At

some point, the petitioner was diagnosed with minimal brain dysfunction. Id. During the

petitioner’s teenage years, the petitioner skipped school and stole a vehicle. Id. The petitioner’s

adoptive parents acknowledged receipt of a letter written by a psychiatrist prior to their adoption of

the petitioner noting that the petitioner needed help; the Brieschkes did not receive this letter until

the petitioner was sixteen years old. Id.

The petitioner’s brother, Allen, and sisters, Linda Gehringer and Darlene Krone, also

testified. The petitioner’s siblings presented testimony offering insight into the early family life of

the petitioner’s family. The children suffered under a physically abusive, alcoholic father. Id.

Specific instances of their father’s cruelty were related, specifically incidents involving a hot tea pot

placed on Linda’s hand and beatings with two-by-four boards and electrical cords. Id. at *4. The

family frequently relocated due to failure to pay bills and conflicts with local authorities, moving

twenty-six times in a two year period. Id. at *3, 4. It was not uncommon for their father to kill

animals in front of the children threatening to do the same to them if they misbehaved. Id. When

the petitioner was between two and three years old, their parents abandoned them and the children

were placed in foster care. Id. While in foster care, the petitioner and Allen were subjected to

corporal punishment and physical abuse. Id. Darlene Krone was sexually abused by an older

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brother. Id. at *4. This abuse occurred after she had been separated from the petitioner and Allen.

Id. Darlene Krone testified that she had been receiving counseling for her childhood experiences.

Id. She stated that she has had minimal contact with the petitioner since he was two years old and

that the petitioner was not around for most of the abuse levied by their father. Id. She testified that

she never saw her father strike the petitioner. Id. Linda Gehringer testified that she was sexually

abused by the petitioner’s grandfather when she was nine years old and that she was sexually abused

by her stepfather when she was eleven. Id. She described their childhood as “an environment of

terror.” Id. Linda Gehringer stated that she has been in counseling for the majority of her life. Id.

Finally, the defense presented the testimony of Dr. John Ciocca, a clinical psychologist. Id.

Dr. Ciocca testified that the petitioner’s IQ ranged between 104 and 110. Id. Dr. Ciocca opined that

the petitioner suffered from intense depression, disorientation from reality, personality problems,

post-traumatic stress disorder, suicidal tendencies, pedophilia, and attention-deficit disorder. Id.

Although one test demonstrated the presence of psychotic-like symptoms, Dr. Ciocca testified that

the petitioner was competent to stand trial. Id. Dr. Ciocca further related that the petitioner had

memories of being anally raped by his first foster father. Id. He also testified that, as a child, the

petitioner was diagnosed with attention deficit hyperactivity disorder and prescribed Ritalin. Id. Dr.

Ciocca concluded that the petitioner’s bed-wetting, eating behavior, and hiding from visitors carried

over into his home environment with the Brieschkes. Id. The petitioner was placed in a facility for

treating teenagers with psychological problems when he was seventeen years old. Id.

a. Failure to Present Skipper Evidence

During the petitioner’s 1991 trial, counsel presented Skipper evidence, that is, evidence

illustrating the petitioner’s adjustment to prison life. See Skipper v. South Carolina, 476 U.S. 1, 106

S. Ct. 1669 (1986). However, trial counsel elected not to present such evidence at the re-trial in

1997. The petitioner contends that trial counsel wrongfully denied the jury the opportunity to

consider an entire area of mitigation evidence, i.e., the petitioner’s positive record of incarceration.

The post-conviction court entered the following findings of fact and conclusions of law as

to this issue:

. . . Judge Ryan testified that they did put on a deputy jailer with “Skipper” evidence

at the first trial, but chose not to do that during the second trial. She testified it was

“somewhat of a double-edged sword,” in that you don’t want to open up the door to

why he was incarcerated. There was already proof presented of his depression in the

record and Dr. Ciocca had already testified that petitioner had post-traumatic stress

disorder and depression relating back to his childhood abuse. Although Judge Colton

had not allowed the State to let the jury know that petitioner was on death row, any

additional proof of depression might open that door to cross-examine along this line,

as petitioner might very well be depressed and stressed from being at Riverbend

under penalty of death during this time, before his death sentence was reversed. She

stated that the team “did not have any proof at the time of the offense or prior to his

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incarceration that he was suffering from any type of psychotic or neurotic type of

impairments or diseases. So, therefore, the inference would be that once he’s been

incarcerated he’s now suffering from those. . . .” . . . She also stated that as he got

married while on death row, and “was able to have what could be considered a

normal relationship with someone,” this might hurt the defense theory that he could

not bond well. The jury was not told that the defendant was incarcerated, and as he

was dressed in civilian clothes they would not have known unless this proof came in.

Judge Ryan gave extensive testimony about the thought processes of this decision in

detail . . . . He was on death row for raping and murdering a child, and his anxiety

and depression medications would seem reasonable to a jury under those

circumstances. . . . As to other “Skipper” evidence, although there was proof that he

was compliant, no writeups, appropriate socialization with other inmates, and got

married while at Riverbend, these would tend to rebut proof that he was disturbed.

...

Petitioner essentially asserts that his ability to adjust to prison life demonstrated that he was

amenable to rehabilitation and that this positive adjustment to prison life was relevant mitigation

evidence that his counsel was constitutionally obligated to produce under Skipper v. South Carolina.

The issue in Skipper, however, was not whether counsel could be deemed ineffective for failing to

introduce this sort of evidence, but rather, whether the trial court erred in excluding proffered

evidence that the defendant’s behavior in prison had been good. The Court held that the proffered

prison record evidence was relevant in mitigation of punishment. In the present case, the issue is not

whether proper evidence was excluded, but rather, whether trial counsel was ineffective for failing

to introduce evidence of that adjustment as mitigation evidence to convince the jury that the

petitioner had made a positive adjustment to prison life.

The petitioner’s claim fails. The petitioner has failed to demonstrate the trial counsel lacked

an objectively reasonable basis for electing not to produce this evidence. In Bacon v. Lee, 225 F.3d

470 (4th Cir. 2000), Bacon similarly complained that trial counsel was ineffective for failing to

produce evidence of Bacon’s amenability to prison life. In that case, as in the present case, the

original sentence of death was vacated and the case was remanded for resentencing. Id. at 480. Trial

counsel did not conduct an additional investigation into Bacon’s background or into his prison

record. Id. At the first sentencing, the jury considered evidence of Bacon’s adaptability to prison

life. Counsel elected not to present such evidence at the re-trial. The Fourth Circuit Court of

Appeals held that, in this regard, “[c]ounsel should not be second-guessed for deciding not to raise

this subject before the resentencing jury.” Id. at 480, n. 3. We agree. Trial counsel provided the

basis for their determination of not introducing Skipper evidence at the second trial. The record

supports the conclusion that the decision was made after reasonable investigation and was the result

of a reasoned decision. We cannot conclude that trial counsel was deficient in this area.

b. Failure to Introduce Intake Study Prepared by Sam and Susan Buzzard

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The petitioner complains that information contained in the Intake Study was never presented

to the jury in 1997. The petitioner contends that the information contained in this report was crucial

in establishing a nexus between the homicide committed by the petitioner and the damage inflicted

upon the petitioner as a child. Specifically, petitioner complains that had the Intake Study been

introduced as evidence, the jury would have documentary proof that the abuse actually occurred in

addition to the testimony of Dr. Ciocca.

At the post-conviction hearing, trial counsel testified that, in his opinion, eyewitnesses of the

abuse were better proof than cold documents. For this reason, defense counsel chose to have the

siblings testify as to the abuse. William Massey, the petitioner’s expert witness on capital case

preparation, testified that “if I read [the Intake Study] and did not find any information in it that I

thought outweighed the positive benefits then I certainly would want to put it in.” The post-

conviction court found that defense counsel “elected not to put the Intake Study in for this very

reason.” The post-conviction court related that defense counsel reasonably believed that the

document would emphasize the extreme youth of the witnesses at the time and would emphasize the

age of the petitioner when the abuse stopped. Judge Ryan further cautioned that, “as a lawyer, . . .

it is quite dangerous to blankly submit to a jury large documents that contain a variety of statements

and opinions of others. Strategically it is my opinion that it is better to use your witness to get that

information in, to bring out the information you want the jury to hear.” Judge Ryan added that there

were certain things in the documents that were favorable to the State, which had the defense

introduced the Intake Study, they would have effectively provided to the State’s case.

The post-conviction court found that “not making these documents exhibits in the retrial was

a well-thought out strategy on the part of petitioner’s trial attorneys, and should not be second

guessed. Their entire case was based on abuse, and despite Dr. Ciocca’s testimony during the trial

that abuse at an early age would be long-lasting, a jury very well might discount the abuse and its

effects due to petitioner’s young age at the time and the youth of the eye-witnesses to it. The

relevant evidence in the reports came in through Dr. Ciocca, whose testimony was fairly thorough,

in this Court’s opinion. This Court received literally hundreds of pages of records and documents

as exhibits during the hearing on this petition . . . [t]his type of evidence . . . would not be very

effective in a jury trial, with each juror’s different individual levels of reading and tolerance for

patience.”

Evidence of the petitioner’s abusive childhood was introduced at the 1997 retrial. Dr. Ciocca

related that the impact of the early childhood abuse was not diminished by his placement with the

Brieschkes. The evidence contained in the Intake Study was cumulative of this testimony. We

cannot conclude that the decision to rely on eyewitness testimony rather than on a cold record was

not sound trial strategy.

c. Failure to Present Evidence of the Effects of Alcohol In Utero

Throughout the post-conviction proceedings and interwoven throughout this appeal is

petitioner’s complaint that trial counsel failed to investigate and offer evidence regarding his

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mother’s alcohol use while she was pregnant with the petitioner. The petitioner contends that

evidence as to the petitioner’s biological mother’s alcohol abuse was contained in the Intake Study.

Additionally, petitioner contends that trial counsel were aware that fetal alcohol exposure was an

issue to be explored in preparing mitigation in a capital case.

Dr. Ciocca never testified regarding fetal alcohol exposure. Trial counsel could not recall

what testimony was presented at trial, however, he acknowledged that if information existed that his

mother was drinking heavily during pregnancy it would be very important. The Intake Study

reflected that the petitioner’s birth parents lost their business because they stayed out at night

drinking in bars. The Intake Study further indicated that the petitioner was two years old when his

parents started the business. Despite the contradiction in this evidence with the assertion that there

was proof that the petitioner’s mother drank heavily while pregnant with the petitioner, the

petitioner’s expert, Dr. Wass, maintained that there “ is evidence that is highly suggestive that there

was chronic frequent . . . use and abuse of alcohol by David’s mother.” Dr. Wass also testified that

the petitioner exhibited a wide range of problems consistent with a pattern of deficits observed in

children who are alcohol affected. Additionally, because Dr. W

This text is long and has been trimmed here. Open the source document for the complete record.