Kevin B. Burns v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

June 7, 2005 Session

KEVIN B. BURNS v. STATE OF TENNESSEE

Direct Appeal from the Criminal Court for Shelby County

No. P-21820 James C. Beasley, Jr., Judge

No. W2004-00914-CCA-R3-PD - Filed December 21, 2005

The petitioner, Kevin B. Burns, appeals the judgment of the Shelby County Criminal Court denying

his petition for post-conviction relief. He was convicted of two counts of felony murder and two

counts of attempted felony murder and sentenced to death on one count of felony murder and to life

imprisonment on the second count of felony murder. His convictions and sentences for first degree

felony murder, including the sentence of death, were affirmed on direct appeal by the Tennessee

Supreme Court. See State v. Burns, 979 S.W.2d 276 (Tenn. 1998). However, this court reversed

the attempted felony murder convictions and sentences, finding these convictions did not constitute

a crime in this state. See State v. Kevin Burns, No. 02C01-9605-CR-00170, 1997 WL 418492, at

*9 (Tenn. Crim. App., at Jackson, July 25, 1997), aff’d, 979 S.W.2d 276 (Tenn. 1998). The pro se

petition for post-conviction relief resulted in the appointment of counsel and the filing of two

amended petitions. An evidentiary hearing was conducted, and the post-conviction court denied the

petitions. On appeal, the petitioner presents a number of claims in four broad categories: (1) he was

denied a fair post-conviction evidentiary hearing; (2) he was denied due process; (3) trial counsel

were ineffective; and (4) the imposition of the death penalty is unconstitutional. Following our

review, we affirm the judgment of the post-conviction court.

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

ALAN E. GLENN , J., delivered the opinion of the court, in which DAVID G. HAYES and THOMAS T.

WOODALL, J.J., joined.

Donald E. Dawson and Marjorie Bristol, Nashville, Tennessee, for the appellant, Kevin B. Burns.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Michelle

Chapman McIntire, Assistant Attorney General; William L. Gibbons, District Attorney General; and

John Campbell, Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

FACTS

The proof, as set forth in our supreme court’s decision, established the following:

On April 20, 1992, four young men, Damond Dawson, Tracey Johnson, Eric

Thomas, and Tommie Blackman, were sitting in a car in Dawson's driveway in

Memphis. Dawson was in the driver's seat, Johnson was in the front passenger seat,

Thomas was in the back seat behind Dawson, and Blackman was in the back seat

behind Johnson.

The [petitioner] and Carlito Adams, who knew Blackman, walked up to the

passenger side of the car. Adams pulled out a handgun and told Blackman to get out

of the car. When Blackman refused, Burns pulled out a handgun and went around to

the driver's side of the car. Blackman got out of the car and fled. Adams said "get

him," and three or four more men appeared from behind hedges and fired at

Blackman.

Eric Jones, age fourteen, was playing basketball at Dawson's house with three

friends. Jones saw the men in the car removing jewelry and pulling money from their

pockets. Seconds later, Jones saw Blackman running toward him. Amidst gunshots,

Jones and Blackman escaped to the back of the house; Jones' three friends ran to an

adjacent yard. Once inside the house, Jones heard seven or eight more gunshots.

Mary Jones, Eric Jones' mother, lived across the street from the Dawsons. She

saw Adams shoot Johnson once in the chest. She saw Kevin Burns shoot Dawson

several times, walk to the front of the car, and then shoot Dawson again. Ms. Jones

unequivocally identified Burns and stated that she got "a real good look in his face"

as he ran toward her after the shootings.

Tracey Johnson died at the scene. Damond Dawson, who suffered five

gunshots to his arm, buttocks, chest, and hip was alive when police arrived but died

after being transported to the hospital. Eric Thomas, who sustained gunshots to his

chest and stomach, survived and made a photo identification of Kevin Burns two

days after the incident. Thomas testified that Burns and the others had "opened fire"

after robbing him and his friends of their jewelry and money. Thomas said that he

initially told police he had been shot by Adams, but explained that he believed he

was going to die and gave police the only name he knew, which was Adams.

On June 23, 1992, [the petitioner] was found in Chicago and arrested. After

being advised of his rights and signing a waiver, the [petitioner] gave a statement in

which he admitted his role in the killings. He said that he had received a telephone

call from Kevin Shaw, who told him that four men had "jumped" Shaw's cousin.

Burns, Shaw, and four others intended to fight the four men, and Shaw gave Burns

a .32 caliber handgun. As the others approached a car with four men sitting in it,

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Burns stayed behind. He heard a shot, saw a man running across the yard, and fired

three shots. He then left the scene with the other men.

After the guilt phase of the trial, the jury deliberated and returned verdicts of

guilty for two counts of felony murder and two counts of attempted felony murder.

The trial moved into the penalty phase of the proceedings for the jury to determine

the punishment for each of the felony murder convictions.

....

Jonnie Dawson, mother of Damond Dawson, testified that Damond was the

youngest of her three children and seventeen years of age when he was killed. She

said he was a good son who was very good at athletics. The neighborhood had

changed after the killings; people locked their doors and were afraid. Ms. Dawson

testified that she no longer knew what it was like to be happy.

Brenda Hudson, mother of Tracey Johnson, testified that Tracey was the

oldest of her three children and twenty years of age when he was killed. He had been

working at Wal-Mart and saving money for his four-month-old daughter. Tracey's

death had greatly affected Ms. Hudson' other two children, Tracey's grandfather, and

Tracey's young daughter:

When you go over to her house to see her, she has a picture in

a frame and she will show you. She'll say, “this is my father--this is

my daddy, Tracey. He lives in God's house up in heaven.” And it's

hard for me to go see her a lot because it breaks my heart to hear her

say that.

In mitigation, Leslie Burns, the [petitioner’s] mother, testified that the

[petitioner] was twenty-six years of age and had twelve brothers and sisters. He had

graduated from high school and presented no disciplinary problems while in school.

The [petitioner’s] father, Reverend Obra Carter, testified that his son had always been

obedient and well-mannered. Phillip Carter, the [petitioner’s] brother, testified that

the [petitioner] had been active in the church and had always tried to avoid trouble.

Norman McDonald, the [petitioner’s] Sunday School teacher, testified that

he had known Kevin Burns for several years. According to McDonald, Burns was a

"faithful" young man who had always attended church regularly. Mary Wilson, a

Captain with the Shelby County Sheriff's Department, and Bennet Dean, a volunteer

chaplain, both testified that Burns had actively participated in religious services while

in custody for these offenses.

The prosecution relied on two aggravating circumstances to seek the death

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penalty for the felony murder convictions--that the [petitioner] knowingly created a

great risk of death to two or more persons, other than the victim murdered, during the

act of murder, and that the murder had been committed for the purpose of avoiding,

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

another. Tenn. Code Ann. § 39-13-204(i)(3) and (6) (1997 & Supp. 1998). With

regard to the felony murder of Damond Dawson, the jury imposed the death penalty

after finding that the evidence supported the "great risk of death" aggravating

circumstance and that this factor outweighed the evidence of mitigating factors

beyond a reasonable doubt. With regard to the felony murder of Tracey Johnson, the

jury imposed a sentence of life imprisonment.

The trial court entered judgment in accordance with the jury's verdict. The

Court of Criminal Appeals affirmed the convictions and sentences for the offenses

of felony murder, but reversed the convictions for attempted felony murder based on

our opinion in State v. Kimbrough, 924 S.W.2d 888 (Tenn. 1996). After our review

of the record and applicable authority, we affirm the Court of Criminal Appeals.

Burns, 979 S.W.2d at 278-79 (footnote omitted).

POST-CONVICTION HEARING

Harold Archibald, a Shelby County attorney, testified that he and Clim Madlock, Jr., were

appointed to represent the petitioner at trial. Their representation lasted for a period of

approximately seven months, during which time Archibald filed various motions requesting the

assistance of experts, including ballistic experts, sociologists, psychologists, and drug-addiction

experts. Archibald acknowledged that most of these motions were filed in anticipation of presenting

proof during the penalty phase of the trial. Archibald and Madlock eventually withdrew as counsel

when Madlock discovered that he knew some family members of one of the victims. The petitioner

and his mother were informed of Madlock’s acquaintances, and “the mother decided that she didn’t

want [Madlock and Archibald] on the case any more.” Senior and junior trial counsel succeeded

Archibald and Madlock as counsel of record. Archibald could not remember if he ever met with

successor counsel or provided them with a copy of his file.

Archibald stated that, during the course of his representation, he met with the petitioner

several times in jail to inquire about his family and background, specifically his educational

background. Counsel learned that the petitioner graduated from West Memphis Senior High School

in 1987 as an honor student and, later, attended Arkansas State University for half a semester. After

leaving college, the petitioner remained in Jonesboro, where he worked at a Shoney’s restaurant.

The petitioner told Archibald that he also had worked at two restaurants in West Memphis and one

in Memphis and as a carpenter for a construction company. Counsel asked the petitioner about his

medical history, school activities, drug or alcohol use, and prior criminal convictions. The petitioner

responded that he had suffered a broken arm, had no conduct problems while in school, had prior

convictions for burglary and theft of property, had not used drugs, and had drunk beer on the date

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of the incident. Archibald said he would have sought further evaluation had the petitioner indicated

that he had a drug or alcohol problem.

Archibald negotiated an offer on behalf of the petitioner for a sentence of life imprisonment,

conveyed the offer to the petitioner, and explained the meaning of a sentence of life imprisonment.

Archibald further explained to the petitioner that he had the option of going to trial but that the State

would seek the death penalty. However, the petitioner elected not to accept the State’s offer.

During the course of his representation of the petitioner, Clim Madlock, Jr., learned that he

lived across the street from members of one of the victim’s family and also knew the victim.

Madlock immediately told co-counsel and they informed the petitioner who requested that they talk

to his mother and allow her to make the decision as to their continued representation. Madlock

stated that the petitioner’s mother did not want them to remain as counsel and, ultimately, they

withdrew from the case.

Madlock testified that he and Archibald had filed motions requesting expert assistance but

had withdrawn as counsel prior to the actual hiring of any experts. Madlock said that he “never

heard anything about” the petitioner’s having a drug or alcohol problem and that a mental evaluation

was conducted out of an abundance of caution. The results of the evaluation showed that the

petitioner was competent and that an insanity plea could not be supported.

After the petitioner’s first counsel were relieved, senior and junior trial counsel were

appointed as successor counsel. At the time of his appointment, senior counsel was in private

practice, which was “ninety-five percent criminal.” Prior to entering private practice, senior counsel

had been a prosecutor in Shelby County for nine years, during which he handled as many as fifty

capital cases and proceeded to trial in about twenty-five. He had been appointed in as many twenty-

five capital cases, with approximately ten going to trial. Senior counsel said that only two of these

cases, one of which was the petitioner’s, resulted in conviction. He could not recall attending any

capital case exclusive seminars, although he had attended seminars sponsored by the Tennessee Bar

Association or the local bar association that dealt with criminal law, including capital representation.

He said that he had reviewed the Tennessee capital case manual produced by the Tennessee

Association of Criminal Defense Lawyers.

Senior counsel testified that he and junior counsel shared equal responsibility for the entire

case “up until trial, and then [at] some point [they] divided the witnesses that [they] would handle

for trial both for the guilt and then for the sentencing stage.” Senior counsel explained that

sometimes they both met with the petitioner and, on other occasions, either he or junior counsel

visited the petitioner alone. Senior counsel said he met with Archibald and Madlock on four or five

occasions and they provided him with copies of the motions they had filed.

Senior counsel could not recall filing any additional pretrial motions other than the request

for a private investigator, which was granted, resulting in his retaining Curtis Mull, a retired police

officer. Having employed him on numerous occasions, senior counsel related that it was Mull’s

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practice to interview all of the witnesses identified on the back of the indictment and from the State’s

list of witnesses. He recalled that although Mull had difficulty finding some of the witnesses, Mull

was able to obtain “copies of the state’s file. . ., [i.e.,] copies of all the witnesses’ statements and all

the state’s files that [counsel thought] existed at the time.” Mull attempted to talk with the other

participants but encountered difficulty. Senior counsel said that, in his opinion, Kevin Shaw should

have been charged but that he never inquired as to why Shaw was not charged because the petitioner

admitted he had a weapon and one of the participants had implicated the petitioner as the trigger

man.

Senior counsel said that he visited the crime scene on at least two occasions and “put the car

where the cars were, that type of thing, and the way they were supposed to have left, the way they

[sic] supposed to have arrived, and the witnesses’ angles to see, just general-type crime scene

investigation. . . .” He also conducted a “door to door deal that is we go to the crime scene, and we’d

go up and down the street knocking on doors . . . to see anybody the police missed for instance, who

may have seen something about the crime.” Senior counsel said that the “door to door” was

unsuccessful, as were his attempts to talk to Mary Jones and Tommie Blackman.

Senior counsel was able to convince the State not to try the petitioner first, and, in fact, he

was tried last. Counsel said this was an important strategy because it allowed counsel to observe the

witnesses in person and see what they were going to say under oath. Senior and junior counsel

attended the first and second trials and obtained transcripts of both. Senior counsel said they “spent

a considerable time in preparation for trial with [the petitioner] in term[s] [of] what [their] defense

would be and in terms of trying to prepare him for trial and testify and that type of thing.”

As to preparing a defense for the charges, senior counsel acknowledged that the petitioner

had given a statement to the Federal Bureau of Investigation (“FBI”) admitting that he was present

at the scene and that he had a weapon and fired shots, this statement significantly limiting defense

options. The defense was that the petitioner was a participant, but not the trigger man, and that he

did not fire into the victims’ car. In this regard, senior and junior counsel discussed obtaining a

ballistics expert and requested funds from the trial court. However, after further discussion, counsel

decided that a ballistics expert was not needed. Senior counsel said that establishing the petitioner’s

defense was difficult, in particular, because “nine out of ten people said he was the trigger person.”

Thus, the best proof that the petitioner was not the trigger person was going to come from the

petitioner himself.

In formulating a mitigation strategy, counsel requested that the investigator contact

approximately twelve friends, neighbors, teachers, and co-workers of the petitioner to testify on his

behalf. Subpoenas were issued for Captain Mary Wilson, Officer Love, and Officer Walker, all

employees at the Shelby County Jail. Senior counsel said that a teacher, two coaches, a minister, and

a co-worker of the petitioner’s, all from West Memphis, were subpoenaed. He said that he did not

recall interviewing any witnesses in person and, if he spoke to any of them, it was by telephone. His

recollection was that the witnesses were interviewed by their investigator. Of the witnesses

subpoenaed, Captain Wilson, Bennett Dean, and Norman McDonald testified at the penalty phase.

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Senior counsel explained that twelve individuals appeared on the petitioner’s behalf but, after talking

to these people, counsel, with the consent of the petitioner and his parents, made a decision as to

which witnesses to use.

Senior counsel recalled that the length of the petitioner’s hair at the time of the crime was

an issue, one eyewitness having described the shooter as having a “jheri curl hair style that was rather

lengthy.” Specifically, Mary Jones said that the person who shot Damond Dawson was a “[r]eal dark

man with a jheri curl . . . around five-seven or five-eight, medium build . . . in [his] late twenties.”

Counsel acknowledged that the petitioner had told him that he did not have a jheri curl at the time

of the crime but, instead, had a “regular hair cut.” However, the petitioner was unable to provide

counsel with any witnesses to verify that he had “a normal haircut at the time that this incident

occurred.” Counsel said that not even the petitioner’s parents would testify that the petitioner had

a short haircut at the time of the incident. Moreover, the eyewitness could not identify the petitioner

from a mugshot in which he had short hair, although she identified him at trial while he had a longer

hairstyle. While the petitioner did provide counsel with a photograph of himself “with short hair,

or a nonjheri curl hair, . . . that photograph appeared to be of a much younger Kevin Burns and not

Kevin Burns at the time of this incident.” Senior counsel testified that, at the time of his initial

meeting with the petitioner, the petitioner had a “jheri curl style hair, and it was long. . . .” He added

that this “aggravated” him and that he attempted to persuade the petitioner to change his hairstyle

for trial, but the petitioner refused to do so.

Senior counsel testified that he had maintained his files on the petitioner and, in 1999, had

provided investigators with the post-conviction defender’s office access to his case file. Although

not accusing anyone of wrongdoing, counsel said that items were missing from his file that he knew

were in the file prior to 1999. Specifically, it contained the transcripts from the trials of co-

defendants Derrick Garrin and Carlito Adams.

Senior counsel said that he reviewed the transcripts of codefendant Garrin’s trial prior to the

petitioner’s trial. During Garrin’s trial, victim Eric Thomas identified Garrin as the individual who

shot him and Damond Dawson, but, at the petitioner’s trial, Thomas identified the petitioner as the

individual who shot him. At Garrin’s trial, Thomas described codefendant Carlito Adams “as being

five-seven or five-eight and 170 pounds” and the other perpetrator as “[f]ive-eight, slim build, dark

complexion, curl-like fade.” In counsel’s opinion, the other perpetrator’s description matched the

petitioner. Counsel acknowledged there was not “one hundred percent consistency among the

witnesses and victims as to each role each player position [sic] around the car. They were mostly

consistent in that [the petitioner] was not generally considered to be one of the first two people to

arrive at the car, but I read that to mean when he gave that description because it didn’t fit the

description of somebody else, that that’s who he was talking about.”

Senior counsel was also questioned about the statement of codefendant Carlito Adams. In

his statement, Adams said he only knew two of the people he was with that day, Kevin Shaw and

Benny Buckner. Accordingly, the inference could be made that when Adams referred to “Kevin,”

he meant Kevin Shaw and not the petitioner. Counsel agreed with post-conviction counsel that

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Adams’ statement, in connection with Eric Thomas’ statement at codefendant Garrin’s trial, would

place Kevin Shaw, not the petitioner, alongside Adams at the onset of the incident. Counsel

explained that he did not use that assumption to argue that the petitioner was not this person, because

Adams also “talk[ed] about the two individuals he [didn’t] know . . . as being the shooters.”

Senior counsel explained his understanding of “presentation of mitigation” as “those factors

that are enumerated in the statute in terms of presenting them and the defendant’s case whether it be

his age, his – any kind of mental problems, his role as a leader, or amount of participation in the

crime involved, and thus his family history, society history . . . educational background, work

history.” He acknowledged that he had never used the services of a mitigation specialist and that the

function of such a witness was to perform the “background preparation.”

Regarding mitigation investigation in the petitioner’s case, senior counsel stated that only the

services of Mr. Mull were employed. Although counsel could not recall the specific number of hours

of work performed by Mull, he recalled that Mull was also the investigator in codefendant Garrin’s

case. Asked about one invoice representing that Mull performed eight hours of work, counsel said

he would be surprised if “this was the only one.” Counsel did not direct Mull to investigate the

culture of West Memphis or the neighborhood where the petitioner grew up. He acknowledged that

he did not know that the petitioner’s backyard was connected to “one set of projects in West

Memphis” or that gunshots had been fired into the petitioner’s house. Counsel said that the

petitioner’s parents, Leslie Burns and Obra Carter, were divorced and that counsel attempted to

interview the petitioner’s siblings.

Post-conviction counsel then inquired as to the voir dire process. Archibald had filed a

motion for individual voir dire which was denied. Senior counsel explained that “the standard policy

. . . in Shelby County is that it’s denied unless you begin to pick the jury and find that because of

some pretrial publicity, individual voir dire may be warranted.” He did not believe individual voir

dire was requested to ascertain “people’s views on the death penalty.” In preparing for voir dire,

senior counsel explained there were “standard questions that [counsel] try to ask in capital cases.”

He said they requested a jury list of the potential jurors “to get an idea of who they were, where they

worked, their background, that type of thing.”

Following the petitioner’s convictions, trial counsel presented nine issues for appellate

review. Although the proportionality of the petitioner’s death sentence compared to the general

death sentence population was made, counsel did not argue the proportionality of the sentence

compared to the sentences received by the petitioner’s codefendants. Senior counsel said he believed

that, although the issue was not raised, this court addressed the issue sua sponte. Counsel also

challenged the constitutionality of Tennessee’s death penalty statutes, although failing to raise the

specific challenges to the unbridled discretion of the prosecutor that the death penalty statute violates

the right to life. He acknowledged that a challenge to the denial of individual voir dire was not

made. Senior counsel said he spent 218.9 hours on the petitioner’s appeal.

On cross-examination, senior counsel acknowledged that the petitioner’s statements placing

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him at the scene eliminated any use of an alibi defense, the statement being “that he was there, and

that he was shooting at one of the victims, but he didn’t hit the victim.” Counsel added that the

codefendants, with the exception of Garrin, “said that [the petitioner] was the trigger person.”

Codefendant Garrin said he saw the petitioner take jewelry from one of the victims. Counsel

recalled that an unindicted participant, Benny Buckner, testified at codefendant Adams’ trial.

During that trial, the trial judge had Buckner arrested and charged with facilitation. Counsel did not

believe that the petitioner was less culpable because additional people were involved.

Senior counsel acknowledged there was some difficulty in his relationship with the petitioner,

resulting from the petitioner’s refusal to change his hairstyle for the trial and rejection of what

counsel believed to be an “extraordinary offer by the [S]tate . . . to offer a bench trial [on both the

guilt and penalty phase].” Counsel was astounded by the offer because “[the trial judge] had a

history of being opposed to the death penalty as a trial lawyer, and I mean adamantly opposed to the

death penalty.” He attempted to persuade the petitioner that this was a good option as, even if they

lost at the guilty phase, it was unlikely that the trial judge would impose the death penalty since the

two codefendants had received life sentences. Acting upon the advice of his mother, the petitioner

rejected the offer. Counsel said that the petitioner relied more upon his mother’s advice than that

of experienced counsel. In this regard, counsel recalled that the petitioner’s mother had told him that

he had made up the fact that the petitioner had received property from the robbery. After this

incident, the petitioner refused to discuss the facts of the case with counsel.

Senior counsel said that the petitioner was deemed to be the most important witness of the

defense because he was adamant that the did not kill the victims and the jury needed to hear this

testimony. The petitioner’s testimony was essential, given the limited nature of the defense.

Accordingly, counsel expected the petitioner to testify. However, at some point during the trial, the

petitioner informed counsel that he had changed his mind about testifying. This decision of the

petitioner had a great impact on counsel’s trial strategy in that it removed a significant part of the

defense. Counsel explained that he felt the reason they were proceeding to trial was for the petitioner

to testify, i.e., “[h]e wanted his day in court to tell that jury what happened out there.” Counsel could

not say, in hindsight, what he would have done differently to prepare for trial had he known that the

petitioner would ultimately refuse to testify.

Regarding mitigation evidence, counsel testified that the witnesses chosen to testify were

those “who could say the most positive things about [the petitioner].” Counsel recalled that the

petitioner’s father was a minister and the petitioner was involved in the church. Mitigation witnesses

were limited, however, to prevent cross-examination by the State into the prior criminal record of

the petitioner. Counsel added that the petitioner’s mother had instructed certain potential witnesses

not to come to trial, specifically a next-door neighbor and perhaps someone from a school. The

petitioner told counsel he agreed with his mother’s decision. Counsel said that the petitioner’s

parents provided no indication that the petitioner had anything but a normal childhood and disagreed

that a housing project located behind the petitioner’s childhood home would have been worthwhile

as mitigating evidence. Counsel said the petitioner never told him he had been shot; indeed, the only

information of any injury to the petitioner was a broken arm. Questioned as to the proper amount

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of mitigation proof to present, counsel responded, “I think you can offend the jury with the proof that

you put on a case such as this. You have to be careful what you do put on, and I have seen the juries

offended with the proof that was presented to them.”

Regarding counsel’s planned trial strategy and handling of the case, senior counsel stated that

the petitioner “had input on everything we did. Everything we did we ran by him. We got his

approval or disapproval.” Counsel could not recall any witness that he did not call that the petitioner

wanted to testify. He did not call any of the codefendants as witnesses, for the only purpose of such

testimony would have been to reveal their sentences, and counsel expected the State would have

objected to this testimony. He opined that any inconsistencies between the testimony in the different

trials would not have changed the fact that the petitioner was involved in the crime. He noted that

the jury deliberated for two days on the guilt phase and for two days on the penalty phase.

Senior counsel said there was no indication that the petitioner had any mental problem or

mental illness from the mental evaluation performed by Midtown Mental Health Center, from his

family, or from his school history. Counsel said had anything been discovered that would have

questioned the petitioner’s mental condition, he would have sought additional assistance from the

court. He rejected the idea that the petitioner did not understand the nature and consequences of his

offenses. Rather, he stated that the petitioner understood the decisions to be made but refused to

follow counsel’s recommendations.

The post-conviction court then questioned counsel regarding the murder weapons. Counsel’s

recollection was that the murder weapons were not introduced during the petitioner’s trial. The two

weapons recovered from codefendant Garrin’s porch were determined to be the murder weapons,

one used to kill each victim. However, no testimony was introduced linking either weapon to the

petitioner. Accordingly, counsel believed that a ballistics expert was not necessary.

Junior counsel testified that he had been a practicing attorney since 1981 and was appointed

to represent the petitioner in April 1993. He had worked as a public defender but at the time of his

appointment was in private practice, the vast majority of which was criminal. Prior to his

appointment to represent the petitioner, junior counsel had represented capital defendants, although

he could not recall how many. He said that he had attended capital defense seminars presented by

the Capital Case Resource Center and a three-day seminar in Atlanta that dealt exclusively with

capital representation. He had a three-volume set of the Tennessee Capital Case Defense Manual

and had consulted numerous books and references involving capital defense. He stated that he was

familiar with the ABA standards for the appointment and performance of attorneys in capital cases.

Junior counsel recalled that a motion for individual voir dire was filed but was denied.

Regarding the petitioner’s trial, counsel stated that questions were asked to learn the potential jurors’

views about the death penalty. No questions were asked to determine whether a juror would

automatically impose death and not even consider a life sentence. Counsel clarified this statement,

stating that he “would not ask a juror during voir dire about considering a life sentence because what

that does is tell the jury that your client is already guilty all you’re seeking is life.” He stated that

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he and senior counsel had discussed the type of juror they hoped to have on the jury.

The theory of defense rested mainly upon the petitioner, specifically, his assertions that he

had fired into the ground or the air, that he did not know the victims, and that he was not culpable.

In this regard, a focus of the defense was to challenge the identification of the petitioner by the

eyewitnesses. Junior counsel recalled that, during the petitioner’s trial, victim Eric Thomas

identified the petitioner as the individual who shot him. Counsel attempted to impeach Eric

Thomas’ identification by use of Thomas’ statement to police identifying Carlito Adams as the

shooter. Thomas explained that he gave Adams’ name because that was the only name he knew.

During the trial of codefendant Garrin, Thomas described the person who walked up to the car with

Adams as “tall, probably five-eight, slim built, dark complexion, curl-like fade.” Counsel

acknowledged the discrepancies in the testimony was a focus during their preparation. Counsel also

noted that a problem during preparation and trial was that witnesses confused the petitioner and

Kevin Shaw. Counsel identified Kevin Shaw’s statement, which listed Shaw’s address and

telephone number, and acknowledged that Shaw’s telephone number matched the telephone number

for “Kevin” given by Adams in his statement. Based upon Adams’ statement, counsel agreed it

would be “a fair assumption” that Adams was referring to Kevin Shaw when he said “Kevin and I

walked up to [the victims’] car.”

Junior counsel asserted that the petitioner’s refusal to testify was devastating to the defense,

explaining that his testimony, although an admission to participation in the offenses, would have

established that his involvement was not significant enough to “get him the death penalty.”

Although the petitioner’s testimony would have been sufficient to support a conviction for felony

murder, the defense strategy was to show him as less culpable than the other participants. Counsel

acknowledged that most of this information came in through the admission of the petitioner’s

statement to the FBI.

Junior counsel described their penalty phase defense as “[v]ery weak.” Counsel had evidence

that the petitioner “was in fact a good person” but were prevented from introducing the testimony

of some witnesses because it was cumulative. He stated there “was a coach from the high school .

. . another couple of family members that we were able to get to testify.” Despite these witnesses

testifying that the petitioner was a good person, his prior record established that he was not.

Junior counsel said that five mitigation witnesses were presented: Elder Norman McDonald,

a pastor who had known the petitioner his entire life; Mary Wilson, a captain at the Shelby County

Jail; Bennett Dean, a pastor at the jail; Elder Phillip Carter, the petitioner’s half-brother; the

petitioner’s mother; and the petitioner’s father. Counsel stated that the plan was to present (1)

“good-guy” mitigation evidence and (2) a picture that the petitioner did not deserve the death

penalty. Counsel wanted to establish that the petitioner had a good childhood and that there was no

reason for him to be involved in this situation. Counsel said the petitioner’s mother prevented

certain mitigation evidence from being introduced, explaining that she “basically controlled this case

as far as whether or not people would talk to us, and during the negotiations and talking to her and

talking to his dad at one point it got to the point that she didn’t want anybody, any family members

11

or anybody from West Memphis to anything do [sic] with us at all period.” He said her actions

prevented them from being able to use people from the petitioner’s community who knew him as

a child. Junior counsel acknowledged they did not conduct an investigation into the culture of West

Memphis, Arkansas, explaining that West Memphis was “just across the river” and “not that much

different” from Memphis.

Junior counsel related that the petitioner’s father was a minister and “relatively strict on him

in regards to what he could do and what he could not do.” However, his father had a separate family

with another woman that he raised alongside the petitioner’s family. That is, the petitioner’s father

had “two sets of children all about the same age, two different women . . . that he was taking care

of and all right there in West Memphis.” Counsel found this peculiar but not to the extent that it

created mitigation evidence. Although his father played a role in his life, the petitioner was more

influenced by his mother. Counsel recalled that the neighborhood in which the petitioner was raised

was not a violent neighborhood. While counsel acknowledged that information that shots had been

fired at the petitioner’s house might have been useful in mitigation, counsel had no information that

a shooting had ever occurred.

Asked about the nature of the work of a mitigation specialist, junior counsel responded:

They go out and they dig up every conceivable record of an individual’s past,

from birth to dropping on heads to being deprived of oxygen up until the actual day

of trial, and that’s [what] the mitigation specialist does, and they accumulate a vast

volume of information that really has – carries very little or no weight.

He acknowledged that mitigation specialists have some degree of expertise in interviewing people

in the community about someone’s background.

Junior counsel recalled that, while incarcerated prior to trial, the petitioner had been

“converted” and believed that “the Lord would take care of him that all would be fine and well that

he had prayed.” Counsel stated that the petitioner “was not . . . any kind of religious fanatic.”

Junior counsel explained that, in preparing this case, counsel had problems communicating

with the petitioner’s family, saying “[i]t was like the proverbial run into a brick wall.” Certain

family members refused to cooperate with counsel. Despite counsel’s explaining the seriousness of

the charges and the circumstances of the offenses to the petitioner’s mother, she was adamant in her

belief that he “had not done anything that he was totally innocent that we were the people . . . trying

to do something to him or trying to hurt him or whatever, and she just basically shut down.” During

their investigation, senior and junior counsel learned that the petitioner and his mother were very

close and that she had “assisted him in that little trip to Chicago evading arrest.”

From the onset, the petitioner was involved in creating a mitigation strategy and even

informed counsel of potential witnesses. Junior counsel added that several potential witnesses

refused to testify because either they did not want to be bothered or did not remember the petitioner

12

as well as the petitioner thought they did. Counsel felt that it was bad practice to compel a witness

to provide mitigation evidence. Several witnesses were present and ready during the penalty phase

to give mitigation evidence but were not called out of caution that their testimony would open the

door to the petitioner’s prior West Memphis convictions and would have merely been cumulative

to the other testimony already presented.

Junior counsel again stated that there was no indication whatsoever that the petitioner

suffered from any mental or personality defects. His family had informed counsel that the petitioner

had a decent childhood, knew both of his parents, attended school, and had food and clothing. From

every indication, the petitioner was “very normal.”

Junior counsel explained counsel’s efforts to convince the petitioner to adopt a different

hairstyle before trial. He stated that the petitioner had a “pretty long” “jheri curl” when he first met

him. During the initial investigation, counsel discovered that one eyewitness identified the shooter

as having a “jheri curl” and that “out of all the [participants] . . . nobody else had a jheri curl except

[the petitioner].” Counsel was unable to locate any witness that would testify that the petitioner had

short hair at the time of the incident.

Junior counsel argued the appeal of the case to both this court and the supreme court. He

raised the issues that he felt had weight and that they might “get some relief on.” He felt it

unnecessary to “bog the court down with peripheral issues when if I can key in on something that

may allow [the petitioner] to walk or go home, that’s what I’m going to do.” Counsel stated that he

was successful on some grounds on appeal, for instance, the introduction of certain victim impact

evidence. Additionally, the petitioner’s two convictions for attempted felony murder were reversed.

Junior counsel said that he had never heard of Kevin Whitaker. He did know that, at the time

of the incident, the petitioner was involved in rap music. Many questions were asked of the

petitioner related to rap music, but Kevin Whitaker’s name was never mentioned.

Mary Jones testified that she lived across from the Dawsons’ residence and that she testified

at the petitioner’s trial, where she described the man she saw shoot Damond Dawson as having

shoulder-length jheri curl hair and wearing a long, black trench coat. She also saw the man who shot

Tracey Johnson and described him as “a brown-skinned guy, tall, . . . about six-two, six-three,

weighed about 250 pounds.” Johnson’s assailant was the “largest one” in relation to the other people

she saw around the victims’ car. Ms. Jones identified the petitioner as the assailant sporting the

“[s]houlder length jheri curl.”

Kevin Whitaker, a pastor at Mount Episcopal Baptist Church in Crawford, Arkansas, testified

that he had known the petitioner for approximately sixteen years. In 1990, they, along with Derrick

Garrin, were in a rap band known as S.I.R., Superior Illustrated Rappers. Whitaker also had a record

company at that time called Unlimited Phonic Records. Whitaker knew Kevin Shaw and Benny

Buckner, who were in a rap band called Brothers of the New World. Whitaker introduced the

petitioner and Kevin Shaw. Kevin Shaw’s father helped finance Mr. Whitaker’s record company.

13

On April 20, 1992, Whitaker received a telephone call from Kevin Shaw, asking him to

accompany Shaw and Carlito Adams to Memphis to help him “tak[e] care of some people that he

was having a problem with.” Whitaker did not go because he knew that “[Shaw] was kind of shady

. . . I didn’t trust going nowhere [sic] with him at that time.” Whitaker recalled that in April 1992,

Shaw wore his hair “kind of like a high top, kind of like a high-top fade type of deal” and often wore

a trench coat. Whitaker thought Benny Buckner also wore a trench coat because that “was like the

nature of their group the way they dressed and everything.” According to Whitaker, Buckner had

the same hairstyle as Shaw. Questioned about the petitioner’s hairstyle in April 1992, Whitaker

responded that his hairstyle was “[l]ike mine is now,” “low on the scalp.” He said that, during April

1992, the band S.I.R. was in the process of changing its name to H.O.H., and no member of S.I.R.

or H.O.H. ever wore trench coats as part of the band costume.

Upon questioning by the post-conviction court, Whitaker stated he knew that two members

of his band, the petitioner and Garrin, were indicted for murder. He said he had been available and

would have testified at the petitioner’s trial if asked.

Lloyd Davis was the jury foreman in the petitioner’s 1995 trial and, during the course of his

service, had a Bible in his possession. He testified that, during jury deliberations, he recited a verse

from Isaiah “about God was telling that his thoughts were not our thoughts, and his ways were not

our ways.” He explained that he recited the verse because “there was some indecision on the parts

of a juror, and she just said . . . something about God wouldn’t . . . allow her to make her decision

to give somebody the death penalty or something like that.”

The petitioner was a student in Arlee Bruce’s senior English class at West Memphis High

School, and Ms. Bruce testified that the petitioner was never a disciplinary problem and was always

“mannerly” and “very respectful.” She could not recall a time when he was punished with in-school

suspension. She said that the petitioner and a fellow student, Paul Burks, “were always together,”

and she considered the two of them to be “model students.” She said the petitioner “made good

grades.”

Samuel G. Brooks testified that he went to school with the petitioner and played junior high

football with him. After graduating from high school in 1987, Brooks entered the military but

remained friends with the petitioner, visiting him when he was home on leave. He described the

petitioner as one of his “main friends.” Brooks was discharged from the military in 1992 and

returned home to West Memphis where he was informed by the petitioner’s mother and sisters that

the petitioner had been arrested. He said that Paul Burks was a mutual friend of his and the

petitioner’s and that Burks had passed away. Brooks said that, during the “period after high school,”

the petitioner wore his hair in a “low fade,” and could not recall a period during which the petitioner

wore a “jheri curl.” Brooks said the last time he saw the petitioner, in March 1992, he was wearing

a “low fade.” He said he was not contacted by the petitioner’s trial attorneys.

Rodney Weatherspoon testified that he grew up in the same neighborhood with the petitioner.

14

They saw each other about three times a week after they graduated from high school. At one point,

they were in a rap group together known as the “Hall of Hell,” which consisted of “six to eight”

members, mostly from West Memphis. Kevin Shaw, a resident of Memphis, was a member of the

group and wore “baggie pants” and “[s]ometimes” a trench coat and dressed “[s]omewhat”

differently from the members from West Memphis. The petitioner dressed like the other members

from West Memphis, i.e., “T-shirt, Levis, tennis shoes.” Weatherspoon said that the members from

West Memphis wore their “hair in fades,” while the members from Memphis preferred “the

processes with the chemicals and whatever.” He recalled that Kevin Shaw had longer hair and

“mostly wore the little curl.” Weatherspoon remarked that he never knew the petitioner to wear his

hair long or to wear a jheri curl.

Leslie Burns, the petitioner’s mother, testified that she became involved with his case shortly

after his arrest. She recalled that initially he was appointed attorneys, but they were dismissed

because one of them “had a lot of involvement with the victim’s families.” She then retained an

attorney for the petitioner, paying him a $700 retainer fee and signing an agreement to pay $17,000

for his representation. However, this attorney was dismissed by the trial court as not being qualified

to handle a capital trial, and the court appointed senior and junior trial counsel. She and the

petitioner’s father, Obra Carter, met with senior counsel and gave him addresses, information about

the family, and telephone numbers. Ms. Burns related that, at this time, two of her sons lived in

Chicago, three daughters had moved out, and three daughters lived at home with her. Counsel did

not seek information regarding the siblings who did not live at home.

A second meeting, lasting under an hour, was held during which both senior and junior

counsel were present. Counsel discussed the petitioner’s case with Ms. Burns but did not ask about

the petitioner’s background or for her to sign releases of information. At the conclusion of this

meeting, Ms. Burns “left . . . knowing what [the petitioner] was charged with but they never told

[her] anything about any evidence.” She understood that the petitioner had been charged with two

counts of first degree murder and that the codefendants would be tried separately.

She attended the trials of Carlito Adams and Derrick Garrin, although not in their entirety,

and never saw the petitioner’s attorneys at those trials. She said that Derrick Garrin went to school

with her son and lived in the same neighborhood, but she did not know Carlito Adams prior to this

incident. During their trials, Ms. Burns took notes which she attempted to give to senior counsel,

but he said he did not need them. She stated that junior counsel was “kind,” but senior counsel was

“always rude to [her].” She noted that she only met with junior counsel twice, with one meeting

occurring in the courthouse.

Ms. Burns recalled that senior counsel talked to her about convincing the petitioner to accept

a life sentence, saying “it was the only thing he could do.” She did not agree with counsel’s

suggestion because she believed that a death sentence was an impossibility, based on the fact that

the death penalty was no longer being sought “in the young man’s trial [she] was at that day.” She

did not think it was “fair” for counsel to ask the petitioner to accept a life sentence because she

“believed” in her son and “didn’t believe he deserved that.” She said that trial counsel never

15

informed her as to the exact nature of the charges against the petitioner, i.e., the elements of the

offense. She did not know that the State was seeking the death penalty until the petitioner’s trial had

already started. Trial counsel never visited her in West Memphis or tried to contact any of her

children or any of Obra Carter’s children.

She said she attended every day of the petitioner’s trial. During the trial, senior counsel was

“[r]ude as usual.” The first time she learned of the bifurcated proceedings in a capital trial was the

day that the jury returned guilty verdicts as to first degree murder. Prior to this, counsel had never

discussed the need for evidence about the petitioner’s life and background, and she did not learn that

she was to testify during the penalty phase until the day she was called as a witness. She denied

telling other individuals not to come to court or not to cooperate with the petitioner’s attorneys.

Ms. Burns said she had five children with Nathaniel Burns: Billy Ray Burns in 1956; Brenda

Fay in 1958; Nathaniel Burns, Jr. in 1959; Patricia Ann, in 1960; and Michael Anthony in 1962.

They separated in 1962, and, in 1967, he left Arkansas for better employment. In November 1963,

she met the petitioner’s father, Obra Carter, in West Memphis, and they began dating a few months

later. Although they never married, their first child, the petitioner, was born on April 20, 1969. Four

more children followed: Sharon in 1971, twins Robin and Lisa in 1973, and Renita in 1974. At

some point, she learned that Carter had another girlfriend, Louise Hall, who lived in Memphis, with

whom he had twin boys. Ms. Hall eventually moved to West Memphis, and Carter “was just back

and forth” between the two families. Her relationship with Carter ended in late 1979 or early 1980.

She and her children had lived in rented two-bedroom houses in West Memphis until 1971, when

she was approved for a four-bedroom apartment in a housing project in West Memphis. She resided

in this apartment with her children until 1975, when she was evicted for having another child, Renita,

which was against “the rules.” During this time, she regularly received child support from Nathaniel

Burns. Although Obra Carter never provided child support, he did take “care of some of the major

things like the rent, utilities, buying food or clothing or whatever the children might need.” She

eventually moved to Memphis with her children; however, two incidents occurred that caused her

to move back to West Memphis. Specifically, the petitioner was “lost” for approximately four or

five hours one day after he was mistakenly dismissed early from school, and her daughter, Lisa, had

suffered from lead poisoning caused by paint chips in the house they were living in at the time.

In 1976, Obra Carter purchased a house on East Polk Street in West Memphis for Ms. Burns

and her children, and, in 1998, he transferred ownership of the house to her. The one-thousand-

square-foot house contained three bedrooms, a living room, a small dining area, a kitchen, and one

bathroom. When she moved into the house, Ms. Burns had seven children and one grandchild living

with her. She said that Carter visited two or three times a week to check on the children but never

lived with them. Carter eventually married Louise Hall, and Ms. Burns was often embarrassed by

the fact that she had four children by Carter and that he was married to another woman.

Ms. Burns said that her son, Nathaniel Burns, Jr., was murdered in Gary, Indiana, on July 9,

1996, by her brother, Alex. On cross-examination, Ms. Burns affirmed her trial testimony that the

petitioner was “a good son, never caused any trouble.”

16

The post-conviction court then questioned Ms. Burns regarding Archibald and Madlock’s

representation of the petitioner. Specifically, the court made inquiry as to Ms. Burns’s basis for

objecting to their continued representation. She said that, in her opinion, Madlock was more

attentive to the victims’ families than to her. She “was concerned that [Madlock’s] friendship with

them would be more than his concern for [the petitioner].” She said that, at the time of the incident,

the petitioner was still living with her. She recalled trial counsel trying to get the petitioner to cut

his jheri curl hairstyle, which he got while in jail. She did not know until trial that the shooter

allegedly wore a jheri curl.

Regarding the petitioner’s prior convictions, she said the theft conviction was the result of

a misunderstanding. Her niece’s husband had asked the petitioner to help him pick up an air

conditioner, but it turned out that the air conditioner was stolen. The petitioner was placed on

probation for this offense. She acknowledged that the petitioner was arrested for the instant offenses

in Chicago and had given a statement to law enforcement officials there.

Ms. Burns, on redirect examination, confirmed that, at the time of the incident, the petitioner

wore his hair “short” and only started growing his hair long after he was arrested. She did not know

why he was growing his hair longer, but she had observed that “just about every young man that

[she] saw when [she’d] come to visit this facility had that Jheri Curl in their hair and they got it here

from somewhere upstairs where they were incarcerated.”

Louise Carter, the petitioner’s stepmother, testified that she met Obra Carter in May 1959

in West Memphis. She knew that he had a girlfriend, Zettie Clark (Thomas), at the time who he

married in 1961 because she was pregnant. Mrs. Carter continued to see Mr. Carter “off and on”

during his marriage to Zettie Clark and later became pregnant, giving birth to twins, Reginald and

Ronald, in September 1962. The following month, she and the twins moved in with Carter. More

children followed: Marcus Antonio, 1965; Frederick, 1966; Yolando, 1967; Phillip, 1968; Michael,

1971; Steve, 1972; and Dericus, 1985. Mrs. Carter stated that she and Mr. Carter had never really

separated and explained that their times apart were because his job took him out of the area.

In 1964, Mrs. Carter heard rumors that Mr. Carter was seeing Leslie Burns. At that time, Mr.

and Mrs. Carter had a “common law” union but were not legally married until 1979. Mrs. Carter

questioned Mr. Carter about Leslie Burns, but he denied any relationship with her. She recalled an

incident at a medical clinic during which she was questioned about payment of a medical bill, the

“collection agent . . . ask[ing] [her] . . . who is the wife. Is it you or is it Leslie Burns?” It was only

when Mrs. Carter confronted Mr. Carter with the medical bills that he admitted to her that he was

the father of five of Leslie Burns’s children. Mrs. Carter said that, sometime after this event, Mr.

Carter introduced his children by Ms. Burns to their children. Mrs. Carter said she was never

contacted prior to trial by counsel for the petitioner and would have been willing to testify on the

petitioner’s behalf.

Renita Jo Burns, the petitioner’s sister, testified that, in 1992, she lived at her mother’s home

along with the petitioner. She had never known the petitioner to have shoulder-length hair or use

17

chemicals on his hair. She recalled that, at certain times, there was as many as twelve people living

in their home. She recalled hearing gunshots “[a]lmost every day” coming from the projects. The

gunshots, which occurred mainly at night, frightened her because she feared one of the bullets would

strike their house. When she was about fourteen years old, one bullet did strike their house,

shattering a mirror in her mother’s room. Although they never had to call the police to their

neighborhood, she saw “police cars all the time over in the projects.” There was a liquor store

directly behind their house where numerous fights occurred, and men often relieved themselves in

their backyard, all of which frightened her.

She said she and the petitioner had a good relationship, the two being “real close” and

spending much time together. She regarded the petitioner, her oldest brother, as the man of the

house because their father was not there, and he acted as a chaperone to his younger siblings. They

saw their father “every two weeks or something like that. Not often.” Renita added that their father

never attended their birthday celebrations, nor did they receive birthday gifts from him. When their

father did visit them, he was “real strict” with them, often yelling at their mother. She learned of her

father’s other family when she was about five or six years old when he took all of the Burns children

to meet the Carter children. She said she was never contacted by trial counsel and would have

testified at trial.

On cross-examination, Renita Burns stated that, although her home was crowded, they all

loved one another, got along with one another, and took care of one another. She conceded that her

mother had raised them well. On redirect, she explained the difference between her mother and

father’s method of discipline. She stated that Obra Carter threatened the children with a “whipping”

if they disobeyed and recalled one incident when her father “whipped” her with a switch, leaving

marks on her legs. Their mother established rules and the children basically obeyed her.

Robin Michelle Burns, another of the petitioner’s sisters, confirmed that Mr. Carter

“whip[ped]” them for things such as leaving the house or playing with the neighbors. She described

the “whippings” as Mr. Carter striking the children’s legs or arms with a switch or belt. If the

children were not at home when Mr. Carter arrived, they were punished because he wanted them at

the house at all times. She said that their father whipped the petitioner on several occasions, once

striking him with a belt by his ear. She said she was never contacted by trial counsel and would have

testified at the trial if asked to do so. Upon examination by the post-conviction court, she stated that

Mr. Carter spanked her and her siblings “a lot” during their childhood. Their mother, however, never

spanked the children. Rather, she took away the children’s play time or imposed other restrictions

as a means of punishment. When their mother worked at night, the children locked the door and

stayed in the back watching television. When their mother was not at home, they were not allowed

outside of the house. She said she dropped out of high school in the eleventh grade. She had no

knowledge of the rap band that the petitioner was involved in at the time of his arrest, although both

were still living in their mother’s house. She did not think that the petitioner was employed in 1992.

Brenda Burns, the petitioner’s half-sister and the oldest daughter of Leslie and Nathaniel

Burns, testified that Obra Carter visited her mother’s house once or twice a week, sometimes

18

spending the night. Her mother returned to work after Sharon was born in 1972, leaving her in

charge of the younger children. Ms. Burns could not recall a time when their electricity had been

disconnected because of non-payment. She denied ever hearing gunshots coming from the projects

while at her mother’s house but said she had been in the projects and heard gunshots. Ms. Burns

lived with her mother until 1979; her children, however, remained at her mother’s house.

Phillip Carter, a son of Obra and Louise Carter and the petitioner’s half-brother, testified that

he was employed as a Crittenden County, Arkansas, juvenile probation officer and also as a deputy

sheriff. He testified at the petitioner’s trial in 1995, at both the guilt and the penalty phase. He first

met the petitioner’s attorneys “minutes prior to [his] testimony,” saying that he was in the courthouse

because he had already planned to attend the petitioner’s trial. He was not advised as to the nature

or scope of his testimony and was not questioned as to his relationship with the petitioner.

Phillip Carter recalled that his 1995 testimony was limited to whether he grew up with the

petitioner, what schools he attended, and what kind of person the petitioner was. Carter recalled

being questioned as to whether the petitioner had ever moved away, to which he responded that he

had in 1991, but was never asked the reason for this move. He explained to post-conviction counsel

that the petitioner had moved to Jonesboro to gain employment with a Shoney’s restaurant. At the

time, both Carter and the petitioner had been working at the Shoney’s restaurant in West Memphis.

The petitioner was asked by the executive manager, who had been transferred to the Jonesboro

location, to accompany her to that location as her assistant and he accepted this offer. The petitioner

returned to West Memphis a year later, where he worked at the local Shoney’s restaurant. Mike

Hissong, the district manager, offered the petitioner a position at a Shoney’s restaurant in Memphis,

which the petitioner accepted. The petitioner was still employed by Shoney’s at the time of the

incident leading to his arrest. Phillip said trial counsel never asked him about the petitioner’s

employment.

Regarding “house rules” during his childhood, Phillip Carter explained that they were not

allowed to leave the yard without permission, had to make their beds as soon as they awakened, and

had to complete all of their household chores and homework assignments. Fighting was not

tolerated. He said the rules, especially the one about not leaving the yard, were strictly enforced.

In rationalizing his father’s rules, Phillip explained that their neighborhood was “somewhat

dangerous.” He said they walked to school, which was about five blocks from their home. The

children referred to their yard as “Alcatraz or imprisonment.” When their father was not at home,

his mother allowed the children to leave the yard with the understanding that they return at a

designated time. He said that failure to obey his father’s rules resulted in “corporal punishment.”

He described “corporal punishment” as “[w]hippings” with a belt or, on one or two occasions,

“extension cords.” Although the whippings sometimes caused “a small welt,” they never broke the

skin.

Phillip Carter described an incident during which he, Michael, Steve, and the petitioner were

playing basketball in the backyard and “tempers flared up,” resulting in a physical confrontation.

Their father “called it to a halt” and directed the children to come to him, but Phillip refused. This

19

incident resulted in Phillip leaving the home to stay at his sister’s house for the night. He returned

home the next day and was disciplined along with his brothers.

Phillip Carter further testified that the Carter children were allowed to participate in

extracurricular activities and that his neighborhood was considered better than the petitioner’s

because there were gang members, “[t]he Rayfield Posse,” near the petitioner’s neighborhood. He

stated that area had a high crime rate and was “still the highest crime area in West Memphis.”

Phillip testified that there was another gang, “the Delta Dogs,” that operated near his neighborhood.

The “Delta Dogs” and the “Rayfield Posse” were rival gangs and fought often, with most of the

fights occurring at school sporting events. The gangs fought with brass knuckles, bats, sticks, guns,

knives, and ice picks. He added that much gang activity, including robberies, occurred at the market

behind the petitioner’s house. In this regard, Phillip recalled an incident where a friend of the

petitioner’s, Paul Burks, was “jumped on” by the Delta Dogs as he got off of the bus. The petitioner

witnessed this beating and fled for his own safety. Phillip stated that neither the petitioner nor Burks

was associated with the Rayfield Posse, although most people in the neighborhood were associated

with one of the two gangs.

When he was twenty-one years old, Phillip Carter purchased and registered a gun which was

later destroyed by the City of West Memphis. He explained that the petitioner had asked to borrow

his hair clippers and he kept his gun in the same bag as the clippers. Forgetting about the location

of his gun, he gave the petitioner the bag and the petitioner was arrested for carrying the weapon.

In lieu of fines for the petitioner, Carter agreed to let the city destroy the gun. Carter stated that the

petitioner did not have long hair prior to his arrest.

On cross-examination, Phillip Carter stated that the petitioner was never in trouble as a

juvenile and that no one in either family got into trouble because their father would have been

extremely upset if any of them broke the law. Carter also admitted to the post-conviction court that

both he and the petitioner were raised to know the difference between right and wrong. There were

nine children in the Carter home. Carter described their house as a four-bedroom house with two

full bathrooms. He stated that the Carter house was “a bit larger” than the Burns house.

Steve Carter, the second to youngest child of Louise and Obra Carter, testified that he

previously had been convicted of selling drugs and had spent time in prison for this conviction. At

the time of the hearing, he lived in West Memphis and was employed as a forklift operator. He

recalled his first meeting with the petitioner and his siblings. After that meeting, the petitioner

played sports and attended church activities with the Carter children. Carter also visited the

petitioner at his house and described the neighborhood as “pretty good.” He stated there were “[a]

few gangs” around the neighborhood, but the petitioner was not involved in them, and there were

“quite a few gangs” in his own neighborhood. The gang associated with the petitioner’s

neighborhood was the “Rayfield Posse,” and the gang in his own neighborhood was known as

“NWA,” “Niggers with Attitude,” of which he was a member. The petitioner was associated with

“NWA” because he was Carter’s brother. Carter’s membership in “NWA” caused the petitioner

problems in his neighborhood on one or two occasions, and once shots were fired at the petitioner.

20

Steve Carter reiterated the testimony of his brother, Phillip, regarding Obra Carter’s rules for

his children. To his brother’s list of rules, Carter added several, including the children had to eat

what their mother cooked, attend every church activity, and not share food with other people.

Regarding this last rule, he explained that they could not accept a cookie from a friend and described

an incident that happened at a football game where he took a bite of a friend’s pickle. His father

observed the incident from the stands and later took him home and beat him. Carter testified that

he received “beatings” with a belt or extension cord “almost every day.” He described the beatings

as “[n]onstop. I mean he had to get tired before it would stop.” Carter added that the beatings

caused “[b]ad bruises and welts” and that the petitioner received beatings also. Obra Carter hit their

mother, Louise Carter, “[p]lenty of times” and often embarrassed Mrs. Carter and all of the children,

including the petitioner, in public. He said that their father would embarrass the children by making

them come inside the house when they were playing ball with their friends. He also recalled hearing

about an incident when Obra Carter broke Leslie Burns’s jaw.

Questioned by the post-conviction court, Steve Carter stated that some of his brothers,

Reginald, Ronald, and Fred, had been incarcerated for various misdemeanors. He knew about the

petitioner’s involvement in a rap band and knew Derrick Garrin from school. He watched the band

perform and attended a recording session. Carter said he had never known the petitioner to wear

long hair, saying “[h]e always kept short hair. Real short.”

George Michael Hissong, a senior vice-president with Shoney’s Restaurant, testified that in

1991 the petitioner was employed at the West Memphis location, where he was general manager.

Hissong recalled that the petitioner was a good worker and “mov[ed] up through the ranks.” He

added that the petitioner had no difficulty learning his job duties and was dependable and polite.

Hissong stated that, at the time of the petitioner’s arrest, the petitioner wore his hair “short.” He was

surprised to learn of the petitioner’s involvement in a killing because it was contrary to the petitioner

he knew. He stated that he was never contacted by the petitioner’s trial counsel or an investigator.

In 1995, he was in Memphis, Tennessee, employed at Shoney’s.

Thomas Bloom, a Nashville-based attorney, testified that he “had run an ad . . . in the

Tennessee Bar Journal advertising [his] services as an appellate attorney, as well as a research and

writing attorney.” After he was contacted by senior trial counsel to prepare the petitioner’s initial

appellate brief for the Tennessee Supreme Court, he obtained a copy of senior counsel’s brief that

was submitted to the Court of Criminal Appeals. He said that the appellate issues were developed

by senior and junior counsel and that he was not at liberty to add any other issues. He filed the brief

with the Supreme Court on behalf of senior and junior counsel.

Dr. Lee Norton, a clinical social worker, testified as to the duties of a mitigation specialist:

The primary role of the mitigation specialist is to assist the attorney by

conducting a comprehensive social history evaluation of the client. Other roles that

the mitigation expert may play are to educate the attorneys about areas concerning

21

mental health issues, issues of working with impaired clients and their family

members and individuals who know them and have information about them, working

with developing a team that’s going to be best suited for the needs of the client,

conducting research into special topics.

Dr. Norton recognized that attorneys and their staff, including investigators and paralegals, are

trained to gather relevant information, yet they are not trained to detect signs of mental illness or

other problems. This factor may inadvertently impede the ability to gather sensitive information.

Dr. Norton opined that another crucial task is to gather social history information of the defendant’s

family before the defendant’s birth. Dr. Norton stated that “three generations of research [is

completed] in order to find out important patterns,” known as a genogram, or annotated family tree.

Dr. Norton stated that the genogram of the petitioner was incomplete because the research was not

complete. She said the background information not only includes interviews but also securing

various documents, and she explained that it took her three years to obtain one document from the

FBI.

Dr. Norton testified that she was asked by post-conviction counsel to conduct interviews and

locate documentation that could assist counsel in learning about the petitioner’s family.

Immediately, barriers to communication were apparent. Dr. Norton noted that some of the

petitioner’s siblings had problems and that there was an unusually large number of people in the

family. She further noted that “it wasn’t a traditional family in the sense that [the petitioner’s] father

was married and had a relationship with [the petitioner’s] mother and children were born to both.”

There were also suspicions of problems in the neighborhood that could have influenced the

petitioner.

As her investigation continued, Dr. Norton discovered that there had been a communication

problem between trial counsel and the petitioner and his family. She acknowledged that this was

evidence of counsel’s “improper skills” or “inability to recognize barriers.” She opined that trial

counsel were unable to establish trust and rapport with the petitioner’s family. She stated that neither

she nor the post-conviction defender’s investigator had any problems establishing a rapport with Ms.

Burns. Dr. Norton stated that Ms. Burns was always willing to talk with her and never refused to

discuss anything pertaining to herself, her family, or the petitioner. Dr. Norton said, however, that

she relied upon her clinical skills in interviewing Ms. Burns, in order to let Ms. Burns “set the pace”

and discuss matters in her own way. She stated that she interviewed Ms. Burns four times, gathering

new information at each meeting. During these interviews, Ms. Burns was cooperative and related

her difficulty with trial counsel. In interviewing Ms. Burns, Dr. Norton found it significant that she

discussed her own childhood and her relationships with men. Dr. Norton also found it significant

that Ms. Burns had been injured by Obra Carter. Trial counsel were not privy to this relevant

information.

Dr. Norton related that Ms. Burns had experienced trauma “throughout her lifetime.” One

of the earliest traumatic experiences was when her sister fell into a fireplace and was badly burned.

This accident affected the dynamics of the family because their grandmother, who raised them,

22

treated the two sisters differently. Ms. Burns had an excessive amount of chores and had to balance

school work with her work in the cotton fields. At age fourteen, Ms. Burns left her grandmother’s

home and became involved with Nathaniel Burns. They subsequently had five children together; the

first, Billy, was born with severe brain damage and diagnosed with cerebral palsy. Dr. Norton

related that the presence in a home of a child with Billy’s disabilities creates a “risk factor” as to the

other children in the household. Other “risk factors” included the fact that Ms. Burns “had so many

children in quick succession” and her resultant physical problems, the fact that she was not legally

married to Nathaniel Burns, a catastrophic injury sustained by Nathaniel Burns and the impact of this

injury on his earning capacity, and the couple’s eventual separation.

Regarding the relevance of these events that occurred prior to the petitioner’s birth to Ms.

Burns’s ability to nurture and care for the petitioner, Dr. Norton stated that Ms. Burns “endorsed a

number of the criteria for depression, for ongoing depression,” e.g., “[s]he was tired . . . often sad

. . . lonely . . . had negative thoughts a lot of the times . . . [and] was extremely self degradating

[sic].”

Dr. Norton also interviewed Louise Carter. During their initial meeting, Obra Carter was

present and spoke “rapidly and mostly about religious topics” while Mrs. Carter “spoke very little.”

She later met alone with Mrs. Carter who described her relationship with Mr. Carter as “a very

tumultuous and chaotic and hostile relationship that she quote ‘felt [she] cannot get out of.’”

Dr. Norton interviewed Obra Carter at his home and was immediately “taken by how small

the home was.” She was shocked as to the condition of the bathroom and kitchen. The only light

source in the bathroom was a candle. She felt that the house was “sub adequate housing for the

number of people that had lived in the home.” She observed that Mr. Carter had a police scanner,

which he kept on during the entire interview. She later learned that it was not unusual for events to

occur in the neighborhood that would bring the police. The police scanner and the neighborhood

activity brought some understanding to the children’s reports that their father would not allow them

to leave the yard. During one of the interviews, Dr. Norton learned that Mr. Carter had been married

to Zettie Thomas prior to his marriage to Louise Carter. Ms. Thomas became pregnant and her father

insisted that Mr. Carter marry her. Ms. Thomas explained that Mr. Carter went to work, came home,

changed his clothes, went out, and did not return until 2:00 or 3:00 a.m. Ms. Thomas stated that Mr.

Carter hit her without provocation and she felt “extremely lonely” and “very very isolated” during

their marriage. At some point, Ms. Thomas’ father learned that there was inadequate food in the

apartment, came to Arkansas, had “some words with Mr. Carter,” and took his daughter back home.

Betty Douglas, a cousin of Leslie Burns, was interviewed during the course of Dr. Norton’s

investigation. The two women described each other as “extremely close, as close as sisters.” Ms.

Douglas reported that she lived in Ms. Burns’s home for several months when the petitioner was a

young child. She remarked that Obra Carter did not like her and did not like her living in Ms.

Burns’s home. Ms. Douglas described Mr. Carter as “mean” and “domineering and dominating.”

She had seen Ms. Burns “with black eyes that were so severe that her eyes were actually shut” and

had heard Mr. Carter scream at Ms. Burns, calling her “a bitch, a slut, and a whore and saying that

23

she was sleeping with other men.” Since the children were in the same room with her, Ms. Douglas

assumed they also heard this. Dr. Norton concluded that, in her professional opinion, Obra Carter

abused Louise Carter, Leslie Burns, and Zettie Thomas both physically and emotionally.

Dr. Norton further testified that not until Obra Carter’s religious conversion did he tell any

of his children that he loved them. From her interviews with Steve Carter, Renita Burns, Robin

Burns, Sharon Burns, and Brenda Burns, Dr. Norton identified certain facts that constituted

emotional mistreatment of the children by Mr. Carter, including persistent fear of the caretaker, lack

of positive reinforcement, and physical abuse of their mother. She had not had the opportunity to

completely assess the petitioner with regard to whether his father’s treatment had an effect on his

development but felt “confident in saying that the climates in both households primarily toward the

father was that of trepidation, anxiety and fear.” She added that “witnessing or learning about severe

physical harm especially to one’s mother can cause tremendous traumatic reactions in children.” Dr.

Norton stated that children who live in this type of environment have “more trouble coming to

understanding themselves, develop problem solving skills, use language and means of talking things

through, coping mechanisms tend to be affected, relationships tend to be affected. They tend to

misperceive the actions and the communications of other people.”

As to other risk factors involved in the petitioner’s development, Dr. Norton said that

children grow up in three domains: home, school, and community. Dr. Norton characterized the

petitioner’s home climate as overcrowded, “an overtaxed mother with limited resources,” and “a

whole bunch of stressors.” She described the petitioner’s school climate with factors including a

large amount of violence, anxiety, and fear. Finally, Dr. Norton depicted the community climate

with factors including high crime rate, violence, and police presence. Dr. Norton explained that it

is the “synergy of these three factors that really increases the risk for these children of being able to

do well in school, to be able to take in, assimilate, accommodate new information, to be able to

assess social cues and respond appropriately, to be able to engage in positive productive relationships

and a number of other spheres.”

Dr. Norton reviewed the petitioner’s elementary and high school records, including a health

report. Dr. Norton stated that, although she was still without sufficient information to make a final

conclusion, in her opinion, the petitioner’s judgment was extremely poor and immature at the time

he committed the crimes. She added that his “coping skills were not good” and that “his ability to

engage in problem solving and project cause and effect did not appear to be good.” These

impairments were consistent with the risk factors present during the petitioner’s developmental

years.

Dr. Norton testified that she and a colleague first began working on the petitioner’s case on

September 28, 2002. Fifty hours of work were initially approved by the court, and another fifty

hours were later approved. Dr. Norton requested funding for out-of-state travel, but her request was

denied. Co-counsel asked Dr. Norton if she would agree to work for $65 an hour, but she could not,

so work was stopped on the case.

24

On cross-examination, Dr. Norton stated that she did not take notes because she worked with

an investigator who took notes. Dr. Norton did not bring her case file to court and said that it only

contained information provided to her by post-conviction counsel. She acknowledged that, because

her role was circumscribed in this case, she did not collect any records. She stated that she had not

interviewed all necessary persons, including a number of family members and the petitioner’s

teachers, and that her investigation was not complete at the time of the post-conviction hearing. Dr.

Norton then described her role as assisting the investigator with interviews. She denied any

discussions of her being an expert witness at the hearing until the Thursday before the hearing. She

added that she had not reviewed any records collected by post-conviction counsel as they were

received after a request for additional funds for her were denied. She understood her role in this case

was that of a consultant and said that, had she known she was going to be called to testify as an

expert, she would have prepared differently. Dr. Norton clarified her job duties by explaining that

her “primary role was to see if [she] could work with the investigator and the family because you had

indications that there were some family systems problems and some other things that were going on

that they were for one reason or another unable to articulate.” She stated that her role evolved into

that of a mitigation expert.

The State questioned Dr. Norton about the five-month delay between the time she was

retained by post-conviction counsel and the time she first interviewed Leslie Burns. She explained

that this case was “unusual” in that there was a continuance and recalled that the investigator had

become ill. Finally, she stated there was lapse in the funding.

Dr. Norton stated that she never reviewed the petitioner’s social history records because the

investigator had discovered that many had been destroyed “because of the new rules that records only

have to be kept for so long.” She only interviewed the petitioner once. She acknowledged that all

of the information she had regarding the petitioner was interview notes and that the witnesses

interviewed were primarily neighborhood friends of the petitioner. She said that all of these people

“liked” the petitioner, felt that “he was a good kid,” and that he “[n]ever got in trouble.” Although

Dr. Norton recognized there were limitations on the petitioner’s activities as a child, she

acknowledged he often spent the night at the homes of different neighbors, and one neighbor

provided information that the petitioner had done “all kinds of odd jobs around the neighborhood.”

Dr. Norton agreed that none of the initial interviews conducted in 1999 and 2000 illustrated an

abusive home life and that the only negative recurrent theme in these interviews was the people that

the petitioner “tended to hang out with.”

A statement from Kay Carter, one of the petitioner’s siblings, provided that “[the petitioner’s]

best quality was dealing with family members. His worst quality was friends he was hanging around

with.” Family members also said that, when the petitioner became involved with the rap band, he

stopped attending church. While Dr. Norton acknowledged these statements, she explained that the

petitioner, being the only male in his household, began spending time in his father’s neighborhood

with his half-brothers. She explained that this neighborhood was “a rougher neck of the woods” and

that the petitioner was “more of a follower.” Dr. Norton acknowledged that the neighborhood in

which the petitioner was raised had changed over the years.

25

Dr. Norton acknowledged that the petitioner’s father had stated that the petitioner “was very

smart, that he could fix ceiling fans and plumbing. He also said he was an artist.” She said that

Steve Carter was the “most explicit” witness who painted a negative image of his home life with

Obra Carter. She agreed that “the consensus of all the statements was that [the petitioner] was a nice

kid. Took care of his family. Was good to his friends. Was good in school. And what happened

on the day of the killing was completely out of character for him.” She commented that the

petitioner “seemed to be a child who minded what he was told” and “demonstrated a lot of

kindness.”

Dr. Norton related that, after interviewing the petitioner, she had “concerns that [she] felt

were out of [her] purview and in an abundance of caution [she] wanted to convey to the lawyers that

it might be a good idea to have him evaluated by a medical doctor.” One of her concerns was “[h]is

speech was a little bit pressured.” She explained that he spoke quickly, which was inconsistent with

the gravity of the situation, and that his “religious faith . . . seemed to exceed again the gravity of the

situation.” Another concern was that the petitioner did not appear to be depressed about his

situation. She felt that “somebody who could do a more thorough mental status exam should

probably take a look at [the petitioner].” In this regard, Dr. Norton acknowledged that the petitioner

had been examined by a psychologist who concluded there were no signs of “any overt

psychopathology” and that the Department of Correction also had examined the petitioner as part

of his classification process and found no evidence of mental illness.

Dr. Norton stated that she never talked to the petitioner’s trial attorneys regarding their

relationship with the petitioner or his mother. She said that the petitioner’s mother did her best to

raise the petitioner and instill in him good values. She agreed that, prior to the commission of the

crimes, “[t]here may not have been anything obvious to suggest that . . . [the petitioner] was

maladjusted.” She further agreed that the individuals interviewed believed that the “reason he got

in trouble was he was a follower and got with the wrong group.”

On redirect, Dr. Norton explained that the initial information gathered “seemed to be

inconsistent” and that there was a “disconnect” between the crime and the petitioner’s personality.

An important piece in solving this puzzle was the extreme complexity of the petitioner’s family

system. She added that all of the positive aspects of the petitioner’s life also constituted mitigation

evidence as “a sharp contrast between that kind of behavior and subsequent involvement in an event

as hostile as this.”

Dr. George Washington Woods, Jr., a physician specializing in psychiatry, testified that he

was contacted by the post-conviction defense team to evaluate the petitioner. Dr. Woods stated that

a “neuropsychiatrist really focuses on the relationship between the brain and behavior to a much

larger extent perhaps than the average clinical psychiatrist.” While he acknowledged that he was not

a neuropsychologist, Dr. Woods stated that he “certainly underst[oo]d neuropsychological testing

and the uses and indications for neuropsychological testing.” He worked with Dr. Kertay, a clinical

psychologist; Dr. Pamela Auble, a neuropsychologist; and Dr. Norton, a mitigation specialist.

26

Dr. Kertay completed a psychological evaluation of the petitioner that was performed over

three days, and Dr. Woods consulted with him regarding the report. Dr. Woods testified that he

utilized Dr. Kertay’s evaluation to determine any indication of malingering, which he defined as “the

production of symptoms in order to either exaggerate or develop a psychiatric or physical illness,”

and to “look at the battery” of tests utilized to reach the conclusion. Dr. Woods explained that

neuropsychological testing is different from psychological testing in that “[p]sychological testing is

the MMPI, the Rorschach, which really looks at personality,” while “[n]europsychological testing

. . . is really the gold standard.” He explained that “neuropsychological testing done appropriately

is the best that we have at this date to look at how the brain functions.”

Dr. Woods said that the petitioner’s testing showed that he “worked on hard on the test” and

put forth “good effort.” Dr. Woods said testing results reveal “islands of strengths and islands of

weakness,” and the petitioner’s strengths were his average IQ, although his academic expertise was

a slight bit below average. Dr. Kertay’s report indicated that the petitioner demonstrated “a

defensive denial that could contribute to difficulty understanding the implications of his

circumstances and behavior.” The petitioner also reported “strong unusual religious experience and

visions that are not experienced by most people and that are accompanied by a sense of joy and peace

out of keeping with his environment.” Dr. Woods also stated that the tests revealed an “elevated

score on the bizarre mentations scale of the MMPI 2 which suggests that his unusual thoughts and

perceptions border on the psychotic being at the least highly id[i]osyncratic.” Dr. Woods related that

the petitioner’s “unusual religious experience, while a genuine expression of his beliefs, are also

defensive in nature and serve at least in part to shield him from difficult feelings.” Dr. Woods agreed

with Dr. Kertay’s conclusion that the petitioner “has a tendency to deny pathology. To deny pain.

To present the world in the most positive light.” He explained that did not mean the petitioner is

psychotic or has a psychiatric disorder. Dr. Kertay’s evaluation also revealed that the petitioner had

difficulty “processing new information quickly potentially delaying his ability to comprehend his

circumstance despite quote knowing better unquote.” Dr. Woods explained the relevance of this fact

to the petitioner’s case as the petitioner “fails to grasp the implications of his behavior when he is

under stress and is required to quickly understand a complex situation.”

Dr. Woods testified that he met with the petitioner in jail in late March 2003 and described

the petitioner as “courteous to a fault” and “interested.” Dr. Woods’s main concern was that the

petitioner “did not seem to grasp the gravity of the situation that he was in although he understood

it.” In this regard, Dr. Woods stated that the petitioner was competent in terms of understanding

what had occurred, the roles of the various court officers, and the charges he was facing.

Notwithstanding, he opined that the petitioner denied the seriousness of his circumstances and the

various interventions that could have been made.

Dr. Woods stated that prior to interviewing the petitioner he had reviewed Dr. Kertay’s

report, the records documenting the births of Leslie Burns’s children, “some school records,” and

the memoranda of interviews with family members and friends. Based on this information and his

two-day interview of the petitioner, Dr. Woods was of the opinion that certain issues needed further

evaluation.

27

Dr. Woods said that further psychological testing was performed by Dr. Pamela Auble. This

additional testing was necessary, according to Dr. Woods, to determine whether the petitioner’s

behaviors were “symptoms.” One particular test performed was the Dallas Kaplan, a test of

“executive functioning.” Dr. Woods explained the different parts of the brain and their functions.

He stated that the frontal lobes, also referred to as “the cap of the brain,” develop over time and are

“the part of the brain that allow people to acquire what’s called executive functioning, the ability to

weigh and deliberate, the ability to sequence, the ability to conceptualize, the ability to understand

that all these trees are a forest.” He further explained that the “frontal lobe also controls the ability

of people to understand emotional input called prosody.” Dr. Woods found nothing wrong with the

petitioner’s temporal or occipital lobes but was concerned about his frontal lobes because of “this

denial, this kind of inability to sequence . . . to both understand the gravity of the situation.”

Dr. Woods said that Dr. Auble noted that “there was a tendency [of the petitioner] to respond

quickly to superficial aspects of situations, a style that can lead to errors.” He also observed that the

Wechsler memory scale test, given to the petitioner by Dr. Kertay, indicated that the petitioner’s

“psychological profile is consistent with someone who is a quote follower unquote rather than a

leader.” Dr. Woods confirmed that the petitioner was “generally friendly,” “eager[] to please,”

“helpful,” and had “trouble understanding that others around him are not as well intentioned as he

may be.” Testing conducted to reveal the petitioner’s learning style indicated that he did not retain

much information the first time it was presented; he scored in the twenty-first percentile. Repeated

exposure to the information did increase the amount retained by the petitioner; he scored in the

thirty-ninth percentile. Dr. Woods stated that these scores were consistent with someone who fails

to grasp the important information when it is presented quickly and for the first time. Dr. Woods

opined that the test results consistently indicated that the petitioner was “someone that moves so

quickly that they often don’t wait and deliberate. We’re talking about someone that doesn’t gather

all the information before they make decisions.”

As the evaluation proceeded further, Dr. Woods realized the impact that the petitioner’s

environment had on him, specifically, the relationship with his father and his father’s violent

tendencies. Dr. Woods also noted the importance of investigating any genetic components to one’s

psychological well-being. In developing a genetic link, a genogram is often used. Dr. Woods

explained that a “genogram is a document that identifies generations of family members and

identifies physical problems, medical problems, psychiatric disorders so that you can look at it and

develop some understanding of whether there are genetic as well as social components to the

person’s life that you’re looking at.” Although the genogram was not actually completed in the

petitioner’s case, from what was finished, Dr. Woods stated there were indications that he would

classify as behaviors rather than symptoms. Dr. Woods noted that he had “real questions about

mood disorders in this family” as there are “real questions about genetically transmitted mood

disorders like bipolar disorders or depression.” He explained that the petitioner’s poor problem-

solving skills were moved from a behavior to a symptom based upon the results of the

neuropsychological testing.

Dr. Woods also recognized that “a parent that suffers from trauma has no choice but to

28

incorporate that symptomotology into their own parenting.” Although he did not doubt Ms. Burns’s

love for her children, he stated that the “tragedy [was] how much she could give in so many ways

and yet in other ways how little she had available.” The stress encountered from Ms. Burns’s

adolescence and having five children in quick succession did not, in Dr. Woods’s opinion, go away.

He stated that, although this trauma may not have impacted her day-to-day life, it affected the way

she entered into other relationships. Dr. Woods related that the overall family structure, the number

of children, the size of the house, the number of people in the house, and the location of the house

could have played a role in determining the effects of that environment on the petitioner. Dr. Woods

explained:

[The petitioner] has impairments in being able to weigh and deliberate. He has

impairments in coping skills. He has impairments in being able to size up situations

appropriately. And he has significant denial. I also know that his family

constellation is a very very difficult one that had intermittent violence which as I

mentioned I think is really the most disorganizing and disruptive. The memorandum

of interviews . . . certainly force me to include the problems in the environment in

why [the petitioner] has these symptoms because the symptoms are clear. . . . And

certainly the chaos in the family as a function of this kind of multiple duality is

problematic.

Because of the incompleteness of the investigation, Dr. Woods could only state that symptoms were

present; he was not able to determine how they got there.

Questioned about the role the petitioner’s symptoms, i.e., “poor coping skills, impaired

judgment,” played in the offenses in this case, Dr. Woods responded that the history of the petitioner

was a complete anomaly of the person convicted of the offenses. The part that was consistent was

the petitioner’s desire to do something for a friend. Dr. Woods noted that the petitioner’s flee to

Chicago was related to his “impaired judgment, poor coping skills.” Another issue was the

petitioner’s hair length and his refusal to cut it prior to trial. Dr. Woods stated this was

overwhelming evidence of the petitioner’s “lack of understanding of the quality of the circumstances

that he was facing.” Dr. Woods could not say with the same certainty whether the petitioner’s

“symptoms” impaired his ability to accept or reject the various plea offers. Dr. Woods said the

petitioner asserted that the intricacies of his situation were never explained to him. In other words,

the petitioner, who maintained that he was not the shooter, did not understand his legal standing with

regard to the principle of felony murder. As the distinctions between the petitioner’s legal

responsibility and moral responsibility were not explained to the petitioner or his family, Dr. Woods

was unable to determine whether the petitioner’s rejection of the life sentence was based upon the

pathological symptoms or because his attorneys allegedly failed to inform him of the law.

On cross-examination, Dr. Woods stated he did not believe that the petitioner’s “religious

fervor” began contemporaneously with his incarceration. Rather, Dr. Woods stated that there was

evidence that the petitioner “ha[d] been extraordinarily fervent in his religion for many years prior

to the incarceration,” although he conceded that it may have taken “on a greater energy” after his

29

arrest. Dr. Woods agreed that being on death row, in itself, is a traumatic situation.

In response to questioning by the court, Dr. Woods opined that, had the petitioner been

advised of the legal implications of the felony murder rule and yet continued to reject plea offers,

this would have evidenced “poor verbal memory and a poor understanding of things that are taught

to him without repetitive trials.” Dr. Woods said that, if the petitioner had been repeatedly advised

of the felony murder rule, then he would have been able to understand it eventually.

ANALYSIS

I. Standard of Review

In order to obtain post-conviction relief, the petitioner bears the burden of proving the

allegations by clear and convincing evidence, see Tenn. Code Ann. § 40-30-110(f) (2003), meaning

that 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). On appeal, the findings

of fact made by the post-conviction court are conclusive and will not be disturbed unless the

evidence contained in the record preponderates against them. Brooks v. State, 756 S.W.2d 288, 289

(Tenn. Crim. App. 1988). The burden is on the petitioner to show that the evidence preponderated

against those findings. Clenny v. State, 576 S.W.2d 12, 14 (Tenn. Crim. App. 1978). The credibility

of the witnesses and the weight and value to be afforded their testimony are questions to be resolved

by the post-conviction court. Bates v. State, 973 S.W.2d 615, 631 (Tenn. Crim. App. 1997).

When, however, the claim is based on the ineffective assistance of counsel, the findings of

fact are reviewed under a de novo standard, accompanied with a presumption that those findings are

correct unless the preponderance of the evidence is otherwise. See Fields v. State, 40 S.W.3d 450,

458 (Tenn. 2001) (citations omitted). In clarifying the standard, our supreme court explained that

the standard for reviewing the factual findings of a trial court has always been in accordance with

the requirements of the Tennessee Rules of Appellate Procedure, specifically Rule 13(d). See Fields,

40 S.W.3d at 456.

On appeal, the petitioner argues that this court must “review the entire record de novo,”

asserting that “[n]o rational jurist could find that the post-conviction court made even a good faith

attempt to make objective findings of fact.” While we disagree with certain of the post-conviction

court’s conclusions, as we will explain, we likewise disagree with the petitioner’s argument that we

may utilize other than the standard of review set out by our supreme court in Fields.

Since the petitioner on appeal argues that he was denied his basic constitutional rights by the

conduct of the hearing, we first will set out the chronology of this matter. The original petition was

filed on August 19, 1999, and the post-conviction defender’s office was notified to appear in court

on September 24, 1999. Because of counsel’s illness, official appointment was delayed until

November 4, 1999. An amended petition was to be filed on December 6, 1999. Continuances were

granted and the amended petition was filed on February 9, 2000. The matter was scheduled for an

30

evidentiary hearing on June 19, 2000. Post-conviction counsel requested a continuance and the

matter was reset for October 9, 2000. A second amended petition was filed on September 21, 2000;

and, six days later, post-conviction counsel asked both for a second continuance and to have the

district attorney’s office recused, both of which were denied. In response, the district attorney then

sought to have the post-conviction defender’s office removed. This latter motion was granted,

appealed, and ultimately reversed. The post-conviction hearing was then scheduled for April 2002.

A continuance was requested by post-conviction counsel; and the hearing was moved to November

18, 2002. In October 2002, both parties moved to continue the case until March 31, 2003. On

March 7, 2003, post-conviction counsel requested a fourth continuance, which was denied; and the

hearing commenced on March 31, 2003. The first hearing lasted one week and was continued until

August 4, 2003, to allow the petitioner’s experts to complete their work and testify. A fifth

continuance was requested by post-conviction counsel on July 25, 2003, citing an outstanding

request for additional funds for their experts. This request for additional funds was denied by the

Tennessee Supreme Court. The hearing then resumed on August 4, consumed another full week,

and was continued to September 5, 2003, for the testimony of one witness, as well as for closing

arguments. On September 5, 2003, post-conviction counsel sought to file a third amended petition,

which the court refused to consider because it was untimely. At the conclusion of the hearing on

September 5, 2003, the post-conviction court took the matter under advisement and subsequently

entered an order denying the petition on February 20, 2004.

We now will consider the issues raised by the petitioner.

A. Finding that the Petitioner Failed to Present

Mental Health Evidence at the Post-Conviction Hearing

The petitioner argues that the evidence preponderates against the post-conviction court’s

conclusion that he failed to present mental health evidence and evidence from a court-authorized

psychological evaluation. In support of his claim, he asserts that Dr. Woods, a neuropsychiatrist,

testified regarding mental health issues. Apparently, this issue was presented to the post-conviction

court at the evidentiary hearing as a claim of ineffective counsel, which the court described as the

“[p]etitioner next complains about trial counsel’s failure to present ballistics, tool mark and

pathology experts. Further petitioner alleges a failure to present proof of petitioner’s mental health

and functioning.”

In its findings of fact, the post-conviction court found that the petitioner had not presented

at the evidentiary hearing, inter alia, a psychologist and, thus, had failed to show trial counsel were

ineffective in not calling such a witness at the trial:

Petitioner was approved funds by this court to employ and utilize a Firearm

examiner, Forensic Pathologist and a Pyschologist[.] No proof was presented from

any such expert at the evidentiary hearing. The burden of proof is on the petitioner

to show that trial counsel’s failure to utilize such witnesses affected the verdict of the

jury in the trial of this cause. Petitioner put on no proof regarding such experts[,]

31

therefore this issue has no merit.

To the petitioner’s argument that these findings are not supported by the evidence at the post-

conviction hearing, the State responds that the post-conviction court is “technically correct,” because

neither Dr. Auble nor Dr. Kertay testified at the post-conviction hearing and, further, the court’s

findings do not show that the court did not consider the reports of Drs. Auble and Kertay in

reviewing the proof. In his testimony at the hearing, Dr. Woods said that he worked with Dr. Auble,

a neuropsychologist, and Dr. Kertay, a clinical psychologist, and relied on their reports and

evaluations. Accordingly, we conclude that the evidence does not support the post-conviction

court’s findings that the petitioner presented no proof as to psychological experts. Dr. Woods, “a

physician specializing in psychiatry,” testified at the hearing and said he had utilized a team

approach, which included Dr. Norton, a mitigation specialist, and Drs. Kertay and Auble. Thus, as

to the petitioner’s challenge to the finding of the post-conviction court that he did not present

psychological proof at the hearing, we conclude that the court erred in this determination. The

petitioner ties this issue to his claim that trial counsel was ineffective, and we will apply our

determination on this issue to that question.

B. Finding that Trial Counsel Filed Numerous Pretrial Motions

On appeal, the petitioner argues that “[t]he evidence preponderates against the finding that

trial counsel had filed numerous pretrial motions.” Apparently, at the post-conviction hearing, a part

of the claim of ineffective of counsel was that trial counsel had made errors in the motions that were

filed and that the motions, considered together, were inadequate for a capital case.

The post-conviction court found to be without merit the ineffective counsel claims based

upon the alleged inadequacy of these pretrial motions, concluding both that the petitioner had failed

to identify any specific motion which should have been filed as well as show that the alleged

inadequate motions affected the outcome of the trial:

The next area presented by petitioner is the issue of pre-trial motions. He

alleges counsel failed to file any motions pretrial. Trial counsel testified that

previous counsel had filed numerous motions, which were adopted by them. No

proof was presented at this hearing about any specific motion, which should have

been filed or litigated, and how it would have changed the verdict. Trial counsel

testified they had the entire police file and had open file discovery from the State.

This issue has [no] merit.

The [p]etitioner alleges failure to file a motion to dismiss for failure to

maintain the integrity of forensic evidence. However, post conviction counsel

presented no proof that in fact there was a failure to maintain the integrity of forensic

evidence or that it impacted or affected the verdict rendered. It does not appear that

the forensic evidence played a role in the verdict of the jury in this court’s opinion.

This issue has no merit.

32

....

Petitioner alleges failure of trial counsel to file a motion for Bill of

Particulars. Petitioner has failed to show what if any information the State had which

was unknown to the defense. Trial counsel testified they had the entire State’s file

including the statements of all witnesses. No proof has been presented that this

failure affected the verdict of the jury. This issue has no merit.

In the “Argument” section of his appellate brief setting out this issue, the petitioner makes

no references to the transcript of the post-conviction hearing showing that trial counsel, or any other

witnesses, were questioned about the adequacy of the pretrial motions filed on behalf of the

petitioner. Instead, as we understand the argument, the petitioner asks this court to find that his trial

counsel filed “a number of form motions but no serious challenge to the death penalty,” that “key

motions were abandoned,” and that “[t]he motion for expert services was not pursued and the denial

of the motion for individual voir dire was not appealed.” The petitioner does not suggest what

standard we use in ascertaining whether the motions filed were, in fact, “numerous,” or what further

action, if any, is to be considered if we conclude the pretrial motions were other than numerous.

The post-conviction court reviewed the pretrial motions, which are contained within the

record on appeal, and found them to be “numerous.” The record supports this finding. We note that

the post-conviction court further found that “[n]o proof was presented at this hearing about any

specific motion, which should have been filed or litigated, and how it would have changed the

verdict.” The petitioner does not respond to this determination, and we conclude that the record

supports as well this conclusion of the post-conviction court.

The petitioner concludes this section by asking this court to find, apparently as the result of

the alleged insufficient motions, that trial counsel were ineffective:

No court can take seriously a finding that trial counsel’s motion practice was

adequate in a capital case in which the only challenge to the constitutionality of the

death penalty is adopting a form motion challenging a repealed statute. Yet that is

precisely the finding of the court below.

In sum, what the petitioner appears to seek on appeal is our determination that the motions

filed were not “numerous,” without providing guidance as to what this constitutes and, then, to find

that counsel were ineffective for not filing “numerous” and “particularized” motions. The petitioner

cites no references to the testimony of trial counsel at the evidentiary hearing that they were

questioned about the motions or any legal authorities supporting his claim that we can make findings

of ineffective assistance of counsel solely on an examination of the motions themselves or what

standards are to be applied in making such a determination. Accordingly, we conclude that this issue

is without merit.

33

C. Inadequate Cross-Examination of Eric Thomas

The petitioner’s brief explains this claim:

The evidence concerning the failure to effectively cross-examine Eric Thomas

consisted of trial counsel’s failure to use the transcript of Thomas’ testimony in

Derrick Garrin’s trial. The effectiveness of such cross-examination speaks for itself.

Trial counsel did use Thomas’ statement to the police which named Carlito Adams

as the person who shot him. However, by failing to also show that in a separate trial

he identified Derrick Garrin as the shooter and person who took his money, counsel

bypassed an opportunity which would have demonstrated a pattern to show that

Thomas would simply identify whomever he wanted to get convicted at the moment.

As to this issue, the post-conviction court concluded that the petitioner failed to show that

he was prejudiced by the alleged ineffective cross-examination of Eric Thomas:

Petitioner . . . attacks the ineffective cross-examination of Eric Thomas.

Since there were some apparent in[]consistencies in the testimony of Mr. Thomas,

this Court would have liked to have heard from Mr. Thomas. However, [there] was

no proof presented as to Mr. Thomas and what his testimony would have been if he

had been thoroughly cross-examined. Therefore, this Court is left to speculate.

Apparently, he had previously picked the petitioner out of a line-up as one of the

people who shot him. In the Garrin trial he described Garrin as one of the people

who shot him. He testified he was shot twice by this person and then someone else

came up and shot him again. In petitioner’s trial he testified that he identified the

petitioner’s photograph in a line-up and that petitioner took his money and shot him.

He was not questioned by the State during petitioner’s trial about Garrin, his

description or if he shot him too. Mr. Thomas picked out petitioner’s photograph

two days after the shooting. Although the line up photograph was not presented to

this Court . . . the Court will assume that petitioner’s hair was shorter in the

photograph than it was during the trial, and still the witness picked out petitioner.

Again this Court is left t[o] speculate as to an explanation for Mr. Thomas’s

identification and testimony about petitioner’s role. . . . Although this court can see

some areas where Mr. Thomas could have been cross-examined, there has been an

explanation given by trial counsel with regard to those areas and petitioner has failed

to present any proof to the contrary. Without a showing as to what Mr. Thomas’s

testimony would have been under more thorough cross-examination[,] this court

cannot conclude that such cross-examination would have changed the outcome of the

trial.

As to this claim, the post-conviction court determined that, without seeing the petitioner’s

theories of effective cross-examination tested on Mr. Thomas, the court could not conclude that

questioning him in the fashion the petitioner argues should have occurred would have changed the

34

outcome of the trial. We agree with this conclusion. Likewise, as to the claim that the State

proceeded on different theories in the prosecution, we conclude, as did the post-conviction court, that

the petitioner has failed to establish that this occurred.

D. Finding that There was no Proof Presented that Kevin Shaw had a Jheri Curl

or that the Petitioner was not Wearing the Black Trench Coat

The petitioner argues that “[t]he post-conviction court’s findings that no proof was presented

that Kevin Shaw had a jheri curt or that [the petitioner] was not wearing the black trench coat is not

supported by the evidence.” The petitioner does not make a reference to where precisely in the

twenty-six-page post-conviction order these findings were made, and we will set out the two closest

rulings we can locate to the petitioner’s depiction. First, the post-conviction court found the

petitioner failed to show that trial counsel were ineffective in their dealing with the petitioner’s

hairstyle, especially in view of his refusal to cooperate with trial counsel:

The Petitioner complains that counsel did not explore the issue about his hair

length. Although there was proof presented during this hearing about the length of

the [petitioner’s] hair, there was no proof presented that the petitioner gave any of

those names to defense counsel during pre-trial preparation. Apparently, the only

photograph available looked like the petitioner’s mug shot . . . . Further the

petitioner had at the time of trial a jheri curl hairstyle that matched the description

given by some witnesses. The petitioner refused to cooperate with his attorney’s

advice to cut his hair resulting in the bolstered in court identification of an

eyewitness. This court feels that the petitioner chose to ignore the advice of his

attorneys and failed to cooperate with them in preparing the case by failing to give

them names of people who could testify ab[o]ut his hair. This court does not feel that

the attorneys should be held ineffective because the petitioner failed to follow their

advice or cooperate with them.

Additionally, the court recounted the substantial proof against the petitioner as well as the

lack of proof that Kevin Shaw had a jheri curl and noted that the petitioner had insisted on wearing

his hair in the jheri curl style at the time of trial:

Petitioner again raises the issue about the length of his hair. This court has

reviewed the trial transcript, the portions of other trial transcripts, witness and

codefendant statements. The petitioner was present on the scene and he was

described as wearing a long black trench coat. No one else on the scene, to the best

of this court’s recollection, was so dressed. Mr. Thomas picked out the petitioner’s

photograph even with short hair. Ms. Jones identified the petitioner by face and by

the long black trench coat he was wearing. She also described his hair as a [j]heri

curl. Trial counsel knew pre-trial that Thomas had identified Petitioner’s picture and

they testified that their picture of [the petitioner] looked very similar to the one in the

line-up. It appears to the court that Ms. Jones, who testified later, had not made

35

identification prior to trial. At trial she made an in court identification on cross-

examination of the petitioner which appears to have been fully unexpected by the

State or the defense. The petitioner had admitted being present on the scene, with a

gun, and firing some. Thomas had identified him even with short hair. Up until that

point this court is not sure that there was an issue about the length of petitioner’s hair.

Only when Ms. Jones described petitioner as the person with the black trench coat

and jheri curl and the person she identified in court with a jheri curl, did his hair

length become an issue. Again, this court is asked to speculate as to who else on the

scene had a jheri curl. Petitioner implies Kevin Shaw but offered no proof by

witness, photograph or otherwise that Shaw was the person with a jheri curl. This

court can only speculate as to what might have occurred during this testimony if

petitioner had cut his hair as requested by his attorneys prior to trial. However, this

court is not allowed to speculate as to what impact any of this would have had on the

jury. No proof has been offered by petitioner other than that he had short hair at the

time of the crime. No proof has been presented that he was not the person in the

black trench coat. Petitioner has failed to carry his burden of proof as to this issue

and it therefore has no merits.

As to this issue, the petitioner asserts:

Rodney Weatherspoon testified that Kevin Shaw commonly wore baggy pants

and sometimes wore a trench coat. He stated that such dress was typical of the

Memphis rap band members. To the contrary, he stated that [the petitioner] and the

West Memphis group wore t-shirts, Levi’s and tennis shoes. . . . Kevin Whitaker

testified that Kevin Shaw often wore a trench coat. . . . In addition, there was ample

proof that demonstrated that Kevin Shaw approached the car with Carlito Adams and

proof that connects that individual with the descriptions of wearing a trench coat and

having a jheri curl. (See Statement of the Facts, supra, pp. 4-13).

Although the basis for this argument appears to be the petitioner’s claims, otherwise presented in his

brief, that he was wearing his hair short and not wearing a black trench coat at the time of the

offenses, we are not certain that this is the case. Because of these deficiencies, as well as the fact

that the petitioner has failed to direct us to the exact findings he is contesting so that we can review

them, we conclude, pursuant to Tennessee Rule of Appellate Procedure 27(a)(7), that this claim is

waived.

II. Denial of Due Process at Post-Conviction Hearing

The petitioner contends that he was not afforded a full and fair hearing on his petition for

post-conviction relief, saying that the denial of sufficient funds for expert witnesses and the alleged

bias of the post-conviction court prevented his effectively presenting his claims and denied him the

opportunity of presenting such evidence to a neutral and detached court, thus violating his right to

due process of law. We will address the petitioner’s claims.

36

A. Denial of Funds to Complete Social History

As to this issue, the petitioner argues that he was not provided with sufficient funds to obtain

necessary services of expert witnesses:

Given the burdens placed on a post-conviction petitioner pursuant to Tenn.

Code Ann. § 40-30-201, et. seq. and Tenn. Sup. Ct. R. 28, this denial of the basic

services necessary to demonstrate the prejudice that resulted from trial counsel’s

failure to conduct an investigation into mitigation issues or utilize expert services to

develop mitigation themes functionally denied [the petitioner] the “opportunity to

present proof and argument.”

We will set out the background of this claim. After the filing of his petition for post-

conviction relief, the petitioner, through counsel, requested the services of Dr. Lee Norton, a

mitigation specialist with specific expertise in working with trauma victims. Upon the initial

request, the post-conviction court authorized payment for fifty hours of work by Dr. Norton. A

second request was made and the post-conviction court granted the petitioner a total of $5,000 for

fifty hours of work at $100 per hour performed by Dr. Norton. The post-conviction court also

granted travel expenses in the amount of $595. Although the Chief Justice approved the $5,000 for

fifty hours of work, he denied the request for travel expenses. A third request for funds was made

several months later for an additional 150 hours of services to be performed by Dr. Norton. The

post-conviction court granted funds in the amount of $15,000 for 150 hours of work and granted

$2,524, plus reasonable and necessary expenses, for the travel expenses of Dr. Norton. Upon review,

the Chief Justice denied this payment, authorizing, instead, $4,875 for seventy-five hours of work

at an hourly rate of $65 per hour for Dr. Norton’s services plus reasonable expenses not to include

out-of-state travel. The petitioner then sought review of the Chief Justice’s denial pursuant to

Tennessee Supreme Court Rule 13, § 6(b), and the court, with the Chief Justice not participating,

found the petition without merit. Dr. Norton then refused to work for the $65 per hour fee allowed

by the Chief Justice.

During the post-conviction evidentiary hearing, Dr. Norton testified that she did not

complete her work. Dr. Woods stated that he was unable to complete his evaluation due to the

“incompleteness” of the investigation. The petitioner contends that the denial of funds resulted in

his inability to present proof to establish he was prejudiced by counsel’s failure to conduct an

investigation into mitigation issues or utilize expert services to develop mitigation themes. Thus,

he argues that he was denied his right to a full and fair hearing.

We disagree with the petitioner’s claim that he was denied sufficient funds for the

preparation of proof at the evidentiary hearing. He was granted $5,000 for fifty hours of Dr.

Norton’s services, at $100 per hour. The post-conviction court then granted an additional $15,000

for 150 hours of Dr. Norton’s services at $100 per hour. However, the Chief Justice reduced the

amount of these additional funds to $4,875 for seventy-five hours, at $65 per hour, a rate which Dr.

Norton found unacceptable. Thus, the “court” did not deny the petitioner funds for expert services.

37

Rather, Dr. Norton refused to work for the hourly rate which had been authorized. The petitioner

has failed to establish that he could not employ another mitigation specialist at the $65 hourly rate.

We will not assign constitutional error to a “court” when funds were provided but rejected by the one

expert selected. Thus, the petitioner has failed to establish that the “court’s” denial of funds for Dr.

Norton denied him a full and fair hearing.

Moreover, Dr. Norton testified that the scope of her contract with the petitioner’s counsel was

limited to her assistance in conducting interviews, although she did perform some functions of the

traditional mitigation specialist. She considered herself a “consultant” in this case. Dr. Norton

acknowledged she was surprised at being subpoenaed to testify as an expert and, had she been aware

this would occur, she would have prepared differently. With regard to Dr. Woods’s evaluation, he

clarified that when he referred to the investigation as “incomplete,” he meant it was incomplete with

regard to the way that “these things unfold” rather than incomplete due to a “lack of thoroughness.”

As such, there is no evidence to support a conclusion that Dr. Woods’s opinion would have been

different had Dr. Norton completed her interviewing process. This issue is without merit.

B. Post-Conviction Court Exhibited Bias Toward the Petitioner

The petitioner complains that rulings and statements made by the post-conviction court

demonstrated the bias of the court and its inability to consider and give effect to mitigation evidence,

arguing that the court’s actions and comments during the evidentiary hearing exhibited hostility to

the concept of mitigation. Thus, according to this argument, the post-conviction court denied him

a “full and fair hearing.” We will examine the petitioner’s specific claims in this regard.

1. Evidence that Obra Carter was Mentally Ill

In his brief, the petitioner explains this claim:

During the post-conviction hearing, evidence was presented from several

witnesses regarding [the petitioner’s] father and his erratic mood swings and his

agitated and violent demeanor. During Louise Carter’s testimony, post-conviction

counsel attempted to introduce testimony regarding Mr. Carter’s sleep habits,

specifically that he required very little sleep, as a means of demonstrating that Mr.

Carter had symptoms of mental illness. The state objected, and the court sustained

the objection.

Because of the nature of these claims, we will set out this entire interchange as to Obra

Carter’s alleged mental illness. Louise Carter was questioned as to Mr. Carter’s going out at night:

Q. And did this ever stop or did this continue on?

A. It would stop, you know, for a minute and then he’d go back out there. You

know, he might stay at home, . . . maybe two nights or three nights and then he’d go

38

back out on the weekend or whatever.

Q. And when he would be out how long would he stay out?

[THE STATE]: Your Honor, I’m going to object to this. It seems

like it’s getting not really relevant. We’re not dealing with caregivers

of the [petitioner].

THE COURT: I’ll have to agree. I’m going to sustain the objection.

[POST-CONVICTION COUNSEL]: Well, Your Honor, if I may be

heard. This goes to show – I’m getting ready to develop a pattern of

Mr. Carter staying out late and not sleeping very often. My mental

health experts have advised me that Mr. Carter’s sleeping habits is

[sic] very relevant to their determination of possible symptomatic

problems of mental illness in Mr. Carter. And I believe that they will

discuss that when they testify. Sleeping patterns are symptoms –

THE COURT: Well –

[POST-CONVICTION COUNSEL]: Mr. Carter did not require a lot

of sleep.

THE COURT: Okay. Neither do I. And I don’t know that I have any

mental health problems, but that’s another question all together. Mr.

Carter’s mental health issues, what impact is that going to have on

[the petitioner]?

[POST-CONVICTION COUNSEL]: Well, Your Honor, obviously

the experts are the ones who need to address this. It is my

understanding that a lot of mental illnesses have a genetic component.

THE COURT: Is there any proof? Do your experts have any proof?

Because up to this point I have heard nothing nor have I seen anything

in the record that indicates [the petitioner] has any mental health

problems.

[POST-CONVICTION COUNSEL]: Well, Your Honor, I do not

have any indication that [the petitioner] suffers from the same mental

illness if Mr. Carter does indeed suffer and I do not think that they

will be able to go as far as to diagnose Mr. Carter with a mental

illness. They will be able to discuss behavioral symptoms that Mr.

Carter exhibits and a lot of those deal with the way that Mr. Carter

39

treated [the petitioner] on occasion. And we are going to be exploring

that in depth today during testimony.

[THE STATE]: Your Honor, I object. I think this is getting

absolutely ridiculous. Here’s a person who by all accounts says he

doesn’t have a mental illness. Nobody says that [the petitioner] has

a mental illness. The testimony yesterday was that Mr. Carter had

very little impact with [the petitioner]. And apparently Mr. Carter has

never been diagnosed with a mental illness and we’re going to

extrapolate behavior based on whether or not he sleeps a lot at night

and somehow put that on to [the petitioner]. I mean this is the kind of

stuff that just gets absolutely beyond the pale of reason. I mean we’re

at the point now where we’re just kind of grasping at straws. And I

think the Court has to look at it from the standpoint of reason and is

this reasonable testimony, is it relevant testimony, and what we’re

trying to do now is bootstrap a bunch of stuff without really any proof.

THE COURT: Well, that’s my concern to be honest with you because

that was one of the things I was really interested in yesterday. And we

paid particular attention to and I think we inquired of Mrs. Burns the

lack of contact between Obra Carter and [the petitioner], the very

minimal contact between the two. And I can see some relevance if

you were going to show from a genetic standpoint that Obra Carter

has some mental illness and we can show that [the petitioner] has a

mental illness and you can connect the two and as a result his actions

were such. But to this point from what I’ve read in the file and what

I’ve seen and heard [the petitioner] has no mental illness. So whether

Obra Carter has a mental illness or not I don’t see the relevance of

that. And frankly, you know, his sleeping patterns – that may be a

new one that I haven’t heard yet from a mental health expert.

[POST-CONVICTION COUNSEL]: Well, Your Honor, if I may.

First of all, I believe the testimony yesterday indicated that Mr. Carter

had very little contact with [the petitioner] as compared to a father

who lived in the home. However, that does not mean that Mr. Carter

had very little impact on [the petitioner]. And I think you will see

through the rest of the testimony from his siblings and some of Mrs.

Carter’s children that [the petitioner] in his later teenage years

developed relationships with some of Mrs. Carter’s children with Mr.

Carter and spent some time over in their home, number one. Number

two, the way that Mr. Carter did interact with [the petitioner] when he

was available to [the petitioner] and the manner in which that contact

occurred is very relevant because the impact was very great. And I

40

believe that the mental health experts who will testify later will

explain that in more detail. Number three, I said that – I just want to

clarify this for the record. I said that it is not our contention that [the

petitioner] suffers from the same mental illness as Mr. Carter if Mr.

Carter suffers from any. He doesn’t exhibit the same symptoms as

Mr. Carter. However, only the mental health experts will be able to

diagnose [the petitioner], whether or not he has a mental illness. I

wouldn’t want to go there at this point.

THE COURT: Well, I’m not convinced that this is relevant. And I

haven’t heard anything in your argument that convinces me that it’s

relevant. And so I’m going to sustain the objection.

The admission of evidence generally lies within the sound discretion of the trial court and will

not be reversed on appeal absent a showing of an abuse of discretion. See State v. Edison, 9 S.W.3d

75, 77 (Tenn. 1999); State v. Cauthern, 967 S.W.2d 726, 743 (Tenn. 1998). Here, the post-

conviction court disallowed testimony as to the sleeping habits of Obra Carter, concluding there was

no evidence either that Carter or the petitioner had a mental disease. The court further found that

Obra Carter had little influence upon the petitioner’s life as the proof introduced at the hearing

strongly indicated that Carter had limited contact with the Burns children. However, the post-

conviction court permitted counsel to make an offer of proof as to this issue. In this regard, Louise

Carter testified that Obra Carter would “[s]ometimes . . . stay out all night long. Sometimes he would

come in at a reasonable hour.” She explained that, if Carter came home at a “reasonable hour,” he

“might watch a little television” before going to bed. She said that Carter sometimes went to work

without getting any sleep at all. The petitioner asserts that “a decreased need for sleep” is “[o]ne of

the criteria for a manic episode . . . necessary for a diagnosis of bipolar disorder.” (citing American

Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, at 362 (4th ed.

2000). While that may be, the fact remains that the petitioner tries to tie together a series of tenuous

arguments to construct this claim. We agree with the post-conviction court that this testimony was

not relevant.

Furthermore, as noted by the State, the post-conviction court allowed evidence of Obra

Carter’s nocturnal behavior through the testimony of Dr. Norton. She interviewed Zettie Thomas,

Obra Carter’s first wife, who said that he often stayed out until 2:00 or 3:00 a.m. Accordingly, we

conclude that the petitioner failed to establish that the post-conviction court was biased against him

or refused to consider mitigation evidence.

2. Obra Carter’s Violence Toward the Petitioner’s Siblings

At the post-conviction hearing, the petitioner’s sister, Robin Burns, testified that their father,

Obra Carter, “whip[ped]” them for leaving the house or playing with the neighbors. She defined the

“whippings” as Carter striking the children’s legs or arms with a switch or, sometimes, a belt. The

following exchange then occurred:

41

Q. And where on the body would he strike you when he used a belt?

A. The same. Legs or arms.

Q. Did he ever strike you on the back?

A. Not that I can recall.

Q. Would you please describe for the Court the worst time that you remember

your father whipping you?

[THE STATE]: Your Honor, I’m going to object to relevance.

THE COURT: Sustained.

[POST-CONVICTION COUNSEL]: Your Honor, [the petitioner]

was living in the household. This is his father’s method of

disciplining his children. I think that that directly goes to his

background.

[THE STATE]: First of all, Your Honor, she’s asking her the worst

spanking she ever got. And I don’t see the relevance of that to [the

petitioner]. And if the extent of the spankings were a switch on the

legs I really am having a difficult time seeing the significance or the

relevance of that. So I don’t really see the relevance of the worst

spanking that she ever got unless you can tell me what impact that had

on [the petitioner] and why that’s relevant.

[POST-CONVICTION COUNSEL]: May I have just a moment, Your

Honor?

THE COURT: Sure.

[POST-CONVICTION COUNSEL]: Your Honor, if I may the

incident that I’m referring to and asking Ms. Burns to describe is one

in which Ms. Burns was so afraid of her father in anticipation of the

whipping that she wet her pants when she was 13 years old. I think

that that definitely goes to the degree of the whippings that Mr. Carter

inflicted upon his children and the fear that that invoked.

THE COURT: Well, again, . . . I’m not questioning what was in this

child’s mind under those circumstances. But from what I have heard

and you’ve presented me nothing so far that I have heard that these are

42

severe beatings. These are spankings with a switch. Not, you know,

my definition of a spanking with a switch and your definition of a

spanking with a switch may be two different things. So far I’ve heard

these children testify that Mr. Obra Carter spanked them with a

switch. The reasons for the discipline and the degree of discipline and

the severity of the beatings, I haven’t heard any testimony of abuse.

I heard testimony of spankings with a switch. I don’t know of too

many children in anticipation of getting a spanking with a switch that

look forward to it. I don’t know too many children that I’ve heard of

that would eagerly await that if they’re told you’re going to get a

spanking when your father gets home or you’re going to get a

spanking when your father gets here. That’s not an indication of a

beating. I haven’t heard that. And I really am struggling with the

significance or where we’re going with this. And again you know I

don’t see the relevance of that.

[POST-CONVICTION COUNSEL]: Well, Your Honor, if I may.

The relevance is that these children only have this father’s whippings

to put anything into context. The experts will testify that [sic] the

reaction of the children to their father’s beatings.

THE COURT: Beatings? Where do you get the term beating?

[POST-CONVICTION COUNSEL]: They were whipped with a

switch to the point that they were so afraid that a 13 year old wet her

pants, Your Honor. I think that that indicates the severity and I

believe that the experts will tie that in and will be able to address the

trauma that goes into a 13 year old’s loss of control of her bladder.

[THE STATE]: Your Honor, the only problem – that’s compounding

the problem. The other witnesses[’] testimony doesn’t go to establish

that this was a violent household. In fact if I remember some of the

testimony when asked about Obra Carter one of the kids – I forget

which one. They didn’t say he was violent. And I didn’t get the

impression from Ms. Leslie Burns he was violent.

THE COURT: I hadn’t heard any testimony that he was violent. I

heard testimony that he spanked his children with a switch. Not on

the back, not on the head. On the backs of the legs. Again I mean we

may be living in a different world but I’ll be honest with you with all

due respect in the world that I grew up with a spanking with a switch

on the back of the legs was not abnormal. It was not considered child

abuse. It was not considered a beating. It’s not a tree limb. It was a

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switch. They’ve all described it as a switch. They’ve all described it

as switches on the legs. Which I’m really struggling with that as a

severe beating or something that is traumatizing. And to be honest

with you I’m kind of curious to listen to these experts that are going

to tell me that that is a traumatizing thing other than a normal trauma

type thing for a child anticipating a spanking or getting a spanking.

[POST-CONVICTION COUNSEL]: Well, I believe the experts will

explain that in great detail about what those kinds of reactions indicate

in children.

THE COURT: Well, again, and this is no disrespect to this young

lady. I don’t mean in any way to disrespect her. Her reaction and her

fear of her father anticipating a spanking, I don’t see the relevance of

that as it applies to [the petitioner]. Her thought processes with regard

to Obra Carter, I don’t see how that impacts [the petitioner]. I don’t

know. It would be another thing if I were listening to proof of Obra

Carter being this person who was around all the time and abusive and

doing things that traumatized [the petitioner]. Or [the petitioner] was

aware and saw that. I haven’t heard any of that. And so to the extent

of where we are right now I don’t see the relevance of this. Of a

particular incident where this young lady had an embarrassing

moment as a result of that. You know, so I’m going to sustain the

objection. I just fail to see the relevance of it.

As noted by the State, the post-conviction court heard evidence of the “whippings” by Obra

Carter, for Renita Burns, Robin Burns, Phillip Carter, and Steve Carter all testified about his

“whipping” them. Relying on Eddings v. Oklahoma, 455 U.S. 104, 115, 102 S. Ct. 869, 878 (1982),

the petitioner contends on appeal that “[e]vidence of a difficult family history and of emotional

disturbance is typically introduced by defendants in mitigation.” In our view, the post-conviction

court admitted such testimony, doing so through other witnesses. The petitioner has failed to

establish that the post-conviction court’s ruling with regard to Robin Burns wetting her pants or

describing her “worst” whipping was relevant. We conclude that the post-conviction court did not

abuse its discretion in this evidentiary ruling.

3. Bias Against Dr. Norton

The petitioner argues that “[t]he post-conviction court’s colloquies during Dr. Norton’s

testimony further demonstrate its hostility to mitigation.” Additionally, he asserts that “[t]he post-

conviction court . . . grilled Dr. Norton on what she meant by an environment of fear and demanded

her to break down the atmosphere between the Burns household and the Carter household.” We will

set out how this matter developed at the hearing.

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Dr. Norton testified that, in her opinion, Obra Carter abused Zettie Thomas, Louise Carter,

and Leslie Burns, saying that “the climates in both households primarily toward the father was that

of trepidation, anxiety and fear.” She continued that a child’s witnessing of abuse of his or her

mother “can cause tremendous traumatic reactions in children,” adding that for children to “live in

an environment of fear would be a very detrimental factor that can cause serious consequences to

their development.” The post-conviction court questioned Dr. Norton as to her definition of

“environment of fear,” asking that she differentiate between the Burns and the Carter children in her

responses. She responded there was no difference between the Carter children, with whom Obra

Carter resided, and the Burns children, with whom Obra Carter visited intermittently.

During the arguments on this matter, which precipitated a request from post-conviction

counsel for a continuance of the hearing so that the transcripts of testimony of certain witnesses could

be prepared and then reviewed by Drs. Norton and Woods to respond to questions from the post-

conviction court, the court denied the request, clarifying the information the court was seeking from

Dr. Norton:

I’m going to deny the request. And I think your experts can still testify. The only

thing I’m asking [Dr. Norton], and you know, maybe she can’t tell me the answer.

I don’t know. There is a difference to this observer in the Carter family and the Burns

family. I feel completely different. Two separate households. I’ve got maybe one

gentleman who[]se called the head of the household, but I’ve got two separate

families. And one family lives with [Obra Carter] 24 hours a day 7 days a week. One

family sees him for 30 to 45 minutes twice a month. There’s a totally different –

there’s got to be a totally different atmosphere and environment to me. Dr. Norton

may tell me that’s not true. That’s just not true. Based on the testimony that I’ve

heard in the courtroom from the Burns family and from the Carter family there’s a

totally different environment. The Carter family lived with this daily. And if they

didn’t make the bed or if they thought or if they were out of the yard or whatever,

these were the rules and they were going to get a spanking. And it may have been on

a daily basis or once a week or five times a month or whatever. The Burns family on

the other side said the only thing I’ve heard that they got a whipping for was being out

of the yard when Obra came by. And Obra didn’t come by very often, but when he

came by he expected all the kids there. And if they weren’t the[re] they got a

whipping. And there’s a difference there to me when she uses the term “the children”

grouping them all together. The Burns children and the Carter children saying they

lived in a climate of fear because of the type of person Obra Carter was. I have a

problem with that. And I’m trying to get her to tell me if there’s a distinction between

the Carter kids and the Burns kids.

The petitioner concludes his argument as to this issue by asserting that “[t]he assumption that

Obra Carter can be considered the head of a house in which he does not now and has never resided

is contrary to both law and logic. Cf. 26 U.S.C. § 2(b) (a head of a household must reside therein).”

We do not understand the relevance of the petitioner’s reference to the Internal Revenue Code. The

45

proof was, as we have set out, that Obra Carter spent the large majority of time with the children he

had with his wife and saw only intermittently those, including the petitioner, he had with Leslie

Burns. Rather than an exhibition of bias, it would appear logical for the post-conviction court, in

assessing Dr. Norton’s testimony, to determine whether Carter’s treatment of his children, including

the petitioner, had the same effect on those with whom he spent very little time. As to this issue, the

petitioner has presented only argument, but no authorities, supporting his view that a court’s seeking

clarification can be an exhibition of hostility toward a witness.

We conclude that this issue is without merit.

III. Denial of Due Process at the Petitioner’s Trial

The petitioner contends his right to a fair trial was violated by jury misconduct because the

jury foreman recited a Bible verse during deliberations and the jury considered the potential

sentencing during the guilt/innocence phase of deliberations. We will review these claims.

The petitioner alleges “the jurors in his case consulted extra-judicial materials – a Bible,”

explaining that the jury foreman brought a Bible into deliberations and “used” a Bible verse to ease

“another juror’s concern that if she voted to convict [the petitioner], and thereby sentence him to

death, God would never forgive her.” The State responds that this issue is waived because the

petitioner did not present it on the direct appeal of his convictions; and, if considered on its merits,

the claim fails because there is insufficient evidence that the jury consulted extraneous materials

during deliberations. The waiver argument cannot be presented by the State for the first time on

appeal for, as explained in Walsh v. State, 166 S.W.3d 641, 645 (Tenn. 2005), “the State’s waiver

argument has itself been waived. Issues not addressed in the post-conviction court will generally not

be addressed on appeal.”

In our review, we first will set out the post-conviction hearing testimony of jury foreman

Lloyd Davis. He said that at the trial he had a Bible with him and during deliberations “recited” a

verse to another juror:

Q [Did] you have that Bible with you in the jury room during the jury

deliberations?

A Every day.

Q And at some point during the jury deliberations did you have occasion to cite

certain Bible verses to the jury?

A Yes, I did.

Q Do you recall what Bible verses were cited, Mr. Davis?

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A I don’t believe I recited but one. . . . That was in Isaiah. . . . I wouldn’t know

the verse, the chapter or the verse. I just know what it says.

Q Do you remember the contents of the verse?

A Yes, it was about God was telling that his thoughts were not our thoughts, and

his ways were not our ways. Something like that.

Davis then explained that he recited the verse to the juror because she had expressed religious

concerns about deciding guilt or innocence: “[S]he just stated something about God wouldn’t want

her to . . . make a certain decision . . . [and] wouldn’t allow her to make her decision to give

somebody the death penalty . . . .” The State then objected to further testimony about the jurors’

“internal communications,” asserting that “the rules of evidence are very clear that jurors cannot

testify about what they do in the jury room . . . .” The court sustained the objection but allowed the

petitioner’s counsel to continue questioning to preserve the issue for appeal. It is the testimony of

Mr. Davis during this proffer upon which the petitioner bases his claim that the jury improperly

considered punishment during the guilt/innocence phase.

In issuing its order denying relief, the post-conviction court found that the “reciting” of a

Bible verse was not prejudicial to the petitioner:

This court does not believe that asking for divine intervention and comfort from God

during the deliberation process is what was meant or intended as outside influence.

We ask jurors to make life and death decisions and many jurors look to God for

guidance in their everyday life and the daily decisions, which they face. This Court

fails to see how asking God to help a juror make the right decision violates [the

petitioner’s] right to a fair trial. Frankly, this Court takes great comfort in the fact that

before a jury would make such a monumental decision that they would seek guidance

from God.

Tennessee Rule of Evidence 606(b) limits the circumstances under which jurors may be

questioned about their deliberations:

(b) Inquiry Into Validity of Verdict or Indictment. Upon an inquiry into the

validity of a verdict or indictment, a juror may not testify as to any matter or

statement occurring during the course of the jury's deliberations or to the effect of

anything upon any juror's mind or emotions as influencing that juror to assent to or

dissent from the verdict or indictment or concerning the juror's mental processes,

except that a juror may testify on the question of whether extraneous prejudicial

information was improperly brought to the jury's attention, whether any outside

influence was improperly brought to bear upon any juror, or whether the jurors agreed

in advance to be bound by a quotient or gambling verdict without further discussion;

nor may a juror's affidavit or evidence of any statement by the juror concerning a

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matter about which the juror would be precluded from testifying be received for these

purposes.

The commentary to this rule sets out the circumstances to which this subsection is applicable:

After verdict, part (b) would come into play. A juror may testify or submit an

affidavit in connection with a motion for new trial, but only in the limited

circumstances of:

(1) “extraneous prejudicial information” finding its way into the jury room,

(2) improper outside pressure on a juror, or

(3) a quotient or gambling verdict.

In sum, the pertinent part of Tennessee Rule of Evidence 606(b) provides that a juror may not

testify “to the effect of anything upon any juror’s mind or emotions as influencing that juror to assent

to or dissent from the verdict,” but is allowed to testify “whether extraneous prejudicial information

was improperly brought to the jury’s attention, whether any outside influence was improperly brought

to bear upon any juror . . . .” Tenn. R. Evid. 606(b). In Walsh, 166 S.W.3d at 646-47, the Tennessee

Supreme Court addressed the application of Rule 606 in a case where a juror testified about the

mental and emotional effects of a deputy’s statement to the juror during deliberations that she “had

to” make a decision. The court concluded that Rule “606(b) permits juror testimony to establish the

fact of ex

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