Cauthern v. State

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

April 22, 2003 Session

RONNIE M. CAUTHERN v. STATE OF TENNESSEE

Direct Appeal from the Circuit Court for Montgomery County

No. 40000059 Michael R. Jones, Judge

No. M2002-00929-CCA-R3-PD - Filed February 19, 2004

The petitioner, Ronnie M. Cauthern, appeals the Montgomery County Circuit Court’s denial of his

petition for post-conviction relief. In 1988, the petitioner was convicted by a jury of two counts of

felony murder and sentenced to death. He was also convicted of the related crimes of first degree

burglary and aggravated rape. His convictions were affirmed on direct appeal by the Tennessee

Supreme Court, but his death sentences were reversed and remanded for a new sentencing trial.

Upon retrial before a jury in 1995, the petitioner received the death penalty for the murder of one

victim and a sentence of life imprisonment for the second victim’s murder. Those sentences were

appealed and affirmed, following which the petitioner instituted a collateral proceeding seeking post-

conviction relief from his convictions and sentences. Lengthy hearings were conducted on the

petitioner’s claims, the majority of which involved allegations that counsel representing him in his

1988 and 1995 trials rendered constitutionally ineffective assistance of counsel. On appeal, the

petitioner contends (1) that trial counsel’s services were deficient and prejudicial; (2) that the state

suppressed exculpatory evidence in violation of his due process rights; (3) that the United States

Supreme Court’s opinions in Apprendi v. New Jersey and Ring v. Arizona require that his death

sentence be set aside; (4) that he was entitled to but was not notified of his right to seek German

consular assistance pursuant to the Vienna Convention on Consular Relations; (5) that the lower

court erroneously concluded that some of his claims had been waived or previously determined; (6)

that Tennessee’s system of capital punishment is unconstitutional; and (7) that erroneous jury

instructions impaired his right to a fair trial. After an extensive review of the record and

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

Tenn. R. App. P. 3; Judgment of the Circuit Court is Affirmed.

JAMES CURWOOD WITT , JR., J., delivered the opinion of the court, in which JOE G. RILEY and

NORMA MCGEE OGLE, JJ., joined.

Donald E. Dawson, Post-Conviction Defender; and Paul J. Morrow, Deputy Post-Conviction

Defender, for the Appellant, Ronnie M. Cauthern.

Paul G. Summers, Attorney General & Reporter; Michael E. Moore, Solicitor General; Jennifer L.

Smith, Assistant Attorney General; Glenn Pruden, Assistant Attorney General; John Wesley Carney,

Jr., District Attorney General; and Arthur F. Beiber, Assistant District Attorney General, for the

Appellee, State of Tennessee.

OPINION

Before this court, the petitioner stands convicted of murdering Clarksville, Tennessee

residents Patrick and Rosemary Smith. The petitioner received and is presently serving a sentence

of life imprisonment for the felony murder of Patrick Smith. A jury imposed the death penalty as

punishment for the petitioner’s involvement in Rosemary Smith’s homicide. The petitioner initiated

and has pursued a collateral attack, in the form of a post-conviction petition, against his convictions

and death sentence. The petition for relief was denied, and on this appeal, we are called upon to

review the post-conviction court’s findings and conclusions that led to the dismissal of the post-

conviction petition.

Our appellate inquiry begins with an overview of the procedural and factual history

of the case and moves to a summary of the post-conviction claims and the evidentiary hearings on

those claims. Next, we examine the post-conviction court’s rationale for its treatment of the

petitioner’s claims. Last, we evaluate whether the record and applicable law support the post-

conviction court’s rulings, mindful that different standards of appellate review attach to different

aspects of the rulings.

PROCEDURAL BACKGROUND

Following a 1988 jury trial, Ronnie M. Cauthern and Brett Patterson were convicted

in Montgomery County of first degree burglary, aggravated rape, and two counts of felony murder

for their involvement in a 1987 home invasion that occurred in Clarksville. At a separate penalty

trial, the jury sentenced Patterson to life imprisonment, and the petitioner received the death penalty

for both homicides. State v. Cauthern, 778 S.W.2d 39, 40 (Tenn. 1989), cert. denied, 495 U.S. 904,

110 S. Ct. 1922 (1990). On direct appeal, the Tennessee Supreme Court affirmed the petitioner’s

convictions but remanded to the trial court for a resentencing trial. Id. at 47-48.1

Because of pretrial publicity, venue was transferred to Gibson County. A jury

selected from that county in 1995 sentenced the petitioner to life imprisonment for the murder of Mr.

Smith and imposed the death penalty for the murder of Mrs. Smith, based on the “especially heinous,

atrocious or cruel” nature of the murder. See Tenn. Code Ann. § 39-13-204(i)(5) (1991). The court

1

At that time, by statute, death penalty cases were appealed directly to the Tennessee Supreme Court. See

Tenn. Code Ann. § 39-13-206(a)(1) (1991) (“Whenever the death penalty is imposed for first degree murder . . . , the

defendant shall have the right of direct appeal from the trial court to the Tennessee supreme court, which shall have

exclusive appellate jurisdiction.”). Since that time, the statute has been amended to provide for a direct appeal to the

court of criminal appeals, with automatic review by the supreme court if the conviction and death sentence are affirmed

by the intermediate appellate court. Id. § 39-13-206(a)(1) (2003).

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of criminal appeals and the supreme court affirmed the sentence. State v. Cauthern, 967 S.W.2d 726

(Tenn. 1998); State v. Ronnie Michael Cauthern, No. 02C01-9506-CC-00164 (Tenn. Crim. App.

Nashville, Dec. 2, 1996).

In 1999, the petitioner timely filed a pro se petition for post-conviction relief. The

petition was filed in Montgomery County, but the case was transferred shortly thereafter to Gibson

County, where counsel was appointed and a stay of execution was issued. Ultimately, pursuant to

a joint motion of the state and the petitioner, the matter was reassigned to Montgomery County for

consideration and disposition. A multi-day evidentiary hearing was conducted over a period of

months, and the parties submitted written closing arguments in September 2001. On November 21,

2001, the post-conviction court issued an exhaustive, 63-page memorandum and order dismissing

the petition.

OVERVIEW OF 1988 TRIAL AND 1995 RESENTENCING TRIAL

We begin with a factual summary of the evidence from the jury trials leading to the

petitioner’s convictions and sentences for the murders of Patrick and Rosemary Smith. These facts

are taken from and appear in the two earlier 1989 and 1998 supreme court opinions.

The Smiths were both captains in the U.S. Army stationed at

Fort Campbell Kentucky. . . . Both were nurses. When neither of

them reported to their duty stations on the morning of 9 January 1987

and telephone calls to their home received no answer, two persons

from the base went to their home, observed broken glass in the rear

door, and both cars in the garage. A 911 call was made and the police

arrived promptly and discovered the body of Patrick Smith lying face

down on the bed in the master bedroom, facing 90 degrees counter

clockwise from his sleeping position, and wrapped in the top sheet.

He had been strangled to death, apparently with a length of 880

military cord. The bed was broken and tilted indicating a violent

struggle had taken place.

Cauthern, 778 S.W.2d at 40.

. . . The body of Rosemary Smith was discovered in another

bedroom; her underclothes were next to her body and her nightgown

was in the corner of the room. A scarf had been tied around her neck

and knotted, with a small vase inserted between the nape of the neck

and the knot, creating a tourniquet.

. . . Credit cards, electronic gear and a videocassette recorder

appeared to be missing from the house. Police found costume jewelry

in the house, but no jewelry of value.

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Cauthern, 967 S.W.2d at 730.

The police found the telephone line had been cut near its entry

into the outside wall of the house. A shoe print was found on the

back door that matched Patterson’s shoe. In a statement that he gave

police he admitted kicking the back door once or twice, but said it

would not open so they obtained a hammer and broke the pane of

glass nearest the door knob to gain entry. The house was ransacked,

chest of drawers open, luggage and clothing scattered about. In the

master bedroom, the police found a piece of paper upon which was

written defendant Cauthern’s name, address and telephone number.

Rosemary Smith’s sister testified she was familiar with both her

sister’s and her brother-in-law’s handwriting and the information

about Cauthern was not written by either of them. The cumulative

evidence [established] that defendant and the Smiths had been

acquainted for approximately a year at the time of the murders, that

he had performed some work on Patrick’s Mercedes and perhaps

some additional work at their home, although he said in one of his

statements that he had never been inside their home until the evening

of 8 January 1987.

Cauthern, 778 S.W.2d at 40.

. . . James Phillip Andrew testified [at both trials] that he was

with the defendant, Ronnie Cauthern, and Brett Patterson shortly after

the offenses. While watching television, they all saw an account of

the Smiths’ murders in which a reward was offered for information.

Cauthern told Andrew that he had worked for the Smiths in the past

and that he broke into their home and made the woman get into the

closet, while he and Patterson strangled the man. Cauthern told

Andrew that he raped the woman once and that he had stolen a

wedding ring, a VCR, and some credit cards. . . . .

Joe Denning, Andrew’s roommate, also testified that Ronnie

Cauthern admitted his role in the killings. Cauthern told Denning that

he had cut the telephone lines to the house, had broken in through the

back door, had shined flashlights in the victims’ faces in order to

wake them, and had placed Rosemary Smith in a closet. He admitted

to Denning that he had raped the woman and poured wine coolers

over her, and then attempted to kill her. He said he tried to strangle

the woman by tying a scarf around her neck, but did not have the

strength to kill her, so he used the vase to create a tourniquet. . . .

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Cauthern’s former girlfriend, Jackie Pigue, testified that on

Thursday night, January 8, 1987, Cauthern and Patterson were

“solemn” and “quiet.” The next day Cauthern gave her a watch and

a wedding ring. He told her that someone owed him money and he

was holding the items as collateral. When she later saw a news report

regarding the murders and Cauthern’s arrest, she went to the police

and gave them the jewelry.

Cauthern and Patterson were arrested on January 12, 1987.

Search warrants were obtained for Cauthern’s car and Patterson’s

house. Among the items found were the victims’ credit cards,

identification cards, receipts, checks and two key rings containing

keys which unlocked the Smiths’ home and automobiles. The police

also found two ski masks, several handguns, a roll of 880 military

cord, and Patrick Smith’s jacket.

Initially, Cauthern gave several statements to the police, all of

which were admitted into evidence at the sentencing hearing. In the

first statement, he denied knowing the Smiths or anything about the

murders. In a later statement, which was recorded and transcribed,

Cauthern admitted that he was in the Smiths’ home, but denied that

he had raped or murdered anyone. Claiming that he and Mrs. Smith

were having an affair, he contended that she had called and invited

him to come to the Smith house and enter through the back door. He

said that both he and Patterson had consensual sex with Mrs. Smith,

and he denied that he participated in the murders, raped the victim, or

removed any items from the house.

[At the 1995 resentencing trial], Cauthern testified that he was

nineteen years old at the time of the murders. He stated that he never

knew his birth father and saw his birth mother approximately three

times during his entire life. His birth mother died, and he was

adopted by his maternal grandmother and step-grandfather who

moved to Clarksville in 1973. The defendant attended Northeast

High School, but dropped out to care for his grandmother who had

Parkinson’s disease, so that his step-grandfather could continue to

work. He was married at the age of eighteen and at the time of the

hearing, had an eight-year-old son. Although he had divorced his

son’s mother, he continued to see his son every three to five months.

Since his incarceration he had remarried. His wife, who lived in

Canada, was not at the hearing. He testified that he helps his parents

by writing letters for them.

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Cauthern also said he had completed the Graduate

Equivalency Examination and a paralegal course since being

incarcerated, and he serves as a teacher’s aide to the unit prison

teacher. He has achieved “A” status at Riverbend Maximum Security

Institution for privilege purposes, which is the highest status available

for a prisoner. He introduced letters of appreciation from a

correctional officer and the prison teacher. A Unit Review Panel

Hearing form containing positive comments concerning his behavior

and attitude was also introduced. He makes extra money by drawing

greeting cards and selling them to other prisoners. Charles Tracy, a

teacher for the Department of Correction, testified that he chose

Cauthern as a teacher’s aide because he gets along well with others

and has good communication skills.

Cauthern, 967 S.W.2d at 730-31 (footnote omitted).

In the course of our opinion, when necessary, we will set out in greater detail the

evidence and testimony from the earlier trials.

GROUNDS FOR RELIEF

On appeal, the petitioner pursues seven principal claims, with multiple sub-parts. The

principal claims are:

• Trial counsel’s performance was deficient and prejudicial;

• The state withheld an exculpatory police report and other information from

trial counsel;

• The death sentence in this case violates the principles set forth in Apprendi

v. New Jersey and Ring v. Arizona;

• The petitioner, who is a German national, was not notified of his right to

German consular assistance and services in violation of the Vienna

Convention on Consular Relations (VCCR);

• The post-conviction court erroneously ruled that some of the post-conviction

claims had been waived or previously determined;

• The system of capital punishment in Tennessee is unconstitutional, and

appellate counsel rendered ineffective assistance of counsel by failing to

attack the petitioner’s death sentence on this basis; and

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• Erroneous jury instructions and trial counsel’s failure to object thereto

skewed the weighing of aggravating and mitigating factors, thereby

obstructing the right to a fair trial and depriving the petitioner of effective

assistance of counsel.

Many of these claims have interlocking themes and similar components.

POST-CONVICTION EVIDENTIARY HEARINGS

At the post-conviction hearings, the petitioner presented testimony from twelve

witnesses. Three family members, two family friends, and the petitioner’s former wife testified

about the petitioner’s upbringing and social history. The two attorneys who had previously

represented the petitioner recounted their investigative efforts, pretrial preparation, and trial strategy

on the petitioner’s behalf. Two former law enforcement officers testified to Brett Patterson’s prior

criminal history and his suspected involvement in the rape and strangulation death of a teenage

female in Los Alamos, New Mexico. An expert in clinical and forensic psychiatry testified about

his evaluation of the petitioner and the resulting diagnosis. Last, the Deputy Consul General to the

German Consulate in Atlanta, Georgia testified as an expert on the subjects of German citizenship,

the petitioner’s genealogy that could qualify him for German citizenship, and the requirements of

the Vienna Convention when a German national is arrested in the United States. In rebuttal to the

petitioner’s experts, the state presented testimony from a psychologist who had been retained by the

prosecution to perform a forensic evaluation of the petitioner and from a senior counsel with a

Washington, D.C. law firm whose practice focused on public and private international law. The

petitioner did not testify in support of his bid for post-conviction relief.

A. The Petitioner’s Social History

The petitioner was born in Tennessee on September 5, 1967. His biological parents

were Raymond Huhn, a German citizen, and Christine Tatteryn Huhn, a Canadian citizen. During

Christine Huhn’s pregnancy, Raymond Huhn was arrested for burglary and imprisoned in California.

Needing a place to live, Christine Huhn contacted her mother-in-law, Dagmar Huhn Cauthern, who

lived in Tennessee and who invited Christine Huhn to stay with the Cauthern family.

Dagmar Huhn’s husband, Roy Cauthern, Sr., had served in the military during World

War II. Evidently, while he was stationed in Germany, he met his future wife, a German citizen who

ultimately became a casualty of the Allied bombings of that country. Little is known of Dagmar

Huhn’s life in Germany other than giving birth to one child, Raymond.2 Many years after the

surrender of Germany and Japan, Dagmar Huhn immigrated to the United States and renewed her

acquaintance with Roy Cauthern, Sr. He had been recently widowed in 1962, and he was a single

2

W e find no suggestion in the record before us that Roy Cauthern could have been Raymond Huhn’s biological

father.

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parent to four children: Melinda, Mary Louise, Eveann, and Roy Cauthern, Jr. In February of 1963,

Dagmar Huhn and Roy Cauthern, Sr. were married.

Christine Huhn gave birth in 1967 to the petitioner while she was living with the

Cautherns. When the petitioner was approximately six weeks old, Dagmar Cauthern prevailed upon

Christine Huhn to return to California to divorce Raymond Huhn. When Christine Huhn left,

Dagmar Cauthern then reported that Christine had abandoned her child, which allowed Dagmar and

Roy Cauthern to officially adopt the petitioner. The petitioner first learned of his adopted status

when he was a teenager and discovered his birth certificate.

By the time of the post-conviction hearings in 2000 and 2001, the petitioner’s

biological parents were deceased. His adoptive father, Roy Cauthern, died in 1997, and his adoptive

mother/biological grandmother, Dagmar Cauthern, was suffering from Parkinson’s Disease and

living in a nursing home. His stepsister, Mary Louise, succumbed to leukemia in 1980, but the other

step-siblings were alive.

The three remaining step-siblings, Melinda Cauthern Allen, Roy “Bud” Cauthern, Jr.,

and Eveann Cauthern Palmer, testified at the post-conviction hearings about their lives before and

after their father’s marriage to Dagmar Huhn. None of them had testified at the petitioner’s earlier

trials. Each sibling recalled an idyllic family life before the death of their mother, and their

relationship with Dagmar Huhn initially was quite positive. When, however, Dagmar became their

stepmother, she changed -- in Melinda Allen’s words -- “[a]most overnight.” By all accounts,

Dagmar Cauthern abused the children physically and emotionally. The older children were the

primary targets, but as the younger children matured, they also joined the ranks of the abused.

What follows is a summary of the Cauthern children’s testimony. Suffice it to say

that the parties, the parties’ witnesses, and the post-conviction court are in agreement that the

environment in the Cauthern household was defined by Dagmar Cauthern’s behavior. From the

post-conviction testimony, the primary disputed issues that arose were whether the petitioner

received preferential treatment from Dagmar Cauthern in terms of the severity and duration of the

abuse and whether the Cauthern children would have been available and willing to testify on the

petitioner’s behalf in 1988 or 1995.

Melinda Cauthern Allen testified that she was eleven years old when her mother died;

Bud was ten years old; Mary Louise was six; and Eveann was five. According to Melinda Allen, her

stepmother was very demanding. Dagmar Cauthern would scream and curse at the children when

she was angry and would hit them when their father was not present. According to Melinda Allen,

Dagmar Cauthern would randomly assign household chores to the children, and she would punish

them if the chores were not performed to her satisfaction. Melinda Allen testified that Dagmar

Cauthern would hit them with whatever objects were nearby, such as a broom, a belt, or a wooden

spoon. The children were frightened of their stepmother, who at times would awaken them at night

by hitting them or would hide behind the door and ambush them with a stick when they came home

from school.

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Melinda Allen related that birthdays were not celebrated in the Cauthern household,

and the children were not allowed to invite friends to the house or to eat dinner with their father.

Also, the children were permitted to bathe only once a week, so as not to foul the bathroom.

Melinda Allen was sixteen years old when the petitioner was born. She left home to

join the Air Force approximately sixteen months later. At that time, Eveann and the petitioner were

the youngest children, and Eveann seemed to be the favored or “privileged” child. When Melinda

Allen occasionally returned home to visit, she noted that the petitioner appeared to have assumed

Eveann’s position as the privileged child, “the apple of [Dagmar’s] eye.”

Melinda Allen learned of the petitioner’s arrest through an aunt who had seen a report

on television. No one ever contacted her about the petitioner’s original trial or resentencing trial.

When asked whether she would have assisted and testified in the earlier proceedings had she been

contacted, Melinda Allen responded, “I doubt it.” She, likewise, stated that she would not have

cooperated with any mental health professionals about the Cauthern family background. She

explained her reluctance: “You see because it would hurt my daddy. I couldn’t do anything to hurt

him.” Only if her brother or sisters had “properly approached” her with approval from their father

would Melinda Allen have assisted.

Bud Cauthern’s account of his childhood mirrored that of his older sister. He endured

Dagmar Cauthern’s beatings for significant and trivial misdeeds alike. He testified that his

stepmother’s favorite thing was “to haul off and slap you right in the face.” Because of Dagmar

Cauthern’s obsession about hygiene, he often would urinate at night into a soda bottle and void his

bowels outside. He witnessed physical assaults upon his sisters, while his father, who was

“browbeat[en]” and verbally abused by Dagmar, remained a passive observer.

Bud Cauthern testified that he ran away from home when he was sixteen years old

and enlisted into the military. The petitioner was approximately six months old when he left. Bud

Cauthern served in Vietnam, where he was wounded, and he described his experience in that conflict

as preferable to the treatment he received from Dagmar Cauthern.

Bud Cauthern also witnessed Eveann’s transition from being the “golden child” of

the family to joining the “slave labor force.” When that happened, the petitioner assumed favored-

child status. Later on, however, when the petitioner was in high school, he became the object of

Dagmar Cauthern’s abuse, which Bud Cauthern saw on his periodic visits with the family.

According to Bud Cauthern, the relationship between the petitioner and Dagmar Cauthern

“depend[ed] on which side of the bed she got up on in the morning.” There were times when the

petitioner “could do no wrong,” and “other times he couldn’t breathe to suit her.”

Bud Cauthern learned of the petitioner’s arrest from his sister, Melinda Allen. No

one ever contacted him about the case or about the resentencing trial in 1995. Before he would have

assisted with the petitioner’s case, Bud Cauthern testified that he “would have talked to daddy first.”

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If his father wanted him to help the petitioner, he would have done so; otherwise, “if it would have

bothered daddy or hurt him [he] probably wouldn’t have done it.”

Eveann Palmer was in Germany with her husband, who was stationed there in the

military, when she learned that the petitioner had been arrested for murder. She testified that she

believed her father was the one who contacted her. Eveann Palmer called from Germany and spoke

with the petitioner’s attorney. Her recollection was that the attorney never asked her for help and

never inquired about family background information.

Eveann Palmer was not aware of the petitioner’s resentencing trial in 1995. She still

maintained contact with her sisters and brother at that time, and the petitioner’s attorney certainly

could have located her if her assistance had been needed. Eveann Palmer testified that she would

have spoken to and tried to assist the petitioner’s counsel had she been approached in 1988 or 1995.

In addition, she maintained that she would have testified at those times had she been asked.

Eveann Palmer was five years old when her father married Dagmar Huhn. Eveann

Palmer was the youngest child, and she recalled being treated very well until she was approximately

ten years old. The petitioner was born at that time, and the abuse started. Even before Eveann

Palmer became the target of abuse, she testified that she saw how her stepmother acted and what her

stepmother was capable of doing. She recalled that one of Dagmar Cauthern’s favorite punishments

was to make the children stand in a corner for hours. Like the other children, Eveann Palmer

remembered being slapped in the face and waking up as Dagmar Cauthern was beating her. At one

point, Dagmar Cauthern chased after Eveann and her sister, Mary Louise, with a gun threatening to

kill them.

Eveann Palmer left the family and joined the army when she was eighteen years old.

The petitioner was eight years old when she left, and at that point, Eveann Palmer said that the

petitioner was still regarded as the favorite child. When, however, Eveann Palmer returned to visit

the family from time to time, she noticed that Dagmar Cauthern had begun treating the petitioner as

she had the other children.

Eveann Palmer testified that neither Melinda nor Bud received the “golden child”

treatment. For a time, Eveann and the petitioner were “golden children.” Even so, Eveann Palmer

explained that “you’re living with guilt, because you see what your brothers and sisters are going

through and you also deal with that guilt.”

In addition to his step siblings, the petitioner called his former wife and two neighbors

to testify about the Cauthern household. By the time the neighbors, William and Brigitte Pope, met

the Cautherns, Dagmar Cauthern was confined to a wheelchair with Parkinson’s Disease. Mr. Pope

was a Sergeant First Class at Ft. Campbell, and Roy Cauthern spent most of his time working at an

automotive facility on the military base known as the Hobby Shop. Mr. Pope recalled that Roy

Cauthern would transport Dagmar in an RV to the Hobby Shop where he could watch over her and

make sure that she was fed and received her medicine. Mr. Pope also recalled that the petitioner

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often would come to the Hobby Shop with Roy Cauthern. To Mr. Pope, the petitioner always

seemed happy to build and fix things; Mr. Pope also described the petitioner as “starving for

attention.”

In discussing Dagmar Cauthern, both Mr. and Mrs. Pope painted an unflattering

picture of a demanding, unpleasant, and mean-spirited individual. Dagmar Cauthern often

complained to the Popes that her husband mistreated her, did not feed her, and beat her. The Popes

never saw any evidence to substantiate these allegations, and they got to the point that they could not

believe anything that Dagmar Cauthern said. Mr. Pope affirmed that he “definitely” would have

testified for the petitioner had he been contacted either in 1988 or 1995.

The petitioner’s former spouse, Lucinda Miracle, chronicled her experiences with her

in-laws while married to the petitioner. Ms. Miracle testified that she and the petitioner were

married for approximately fourteen months, from December 1985 to February 1987. Their one child,

a boy, was fourteen years old at the time of the post-conviction hearing. During the marriage, Ms.

Miracle and the petitioner lived occasionally with Roy and Dagmar Cauthern.

Ms. Miracle testified that some days Dagmar loved her a lot, while other days Dagmar

could not “stand the sight” of her. The petitioner received the same treatment, and Dagmar seemed

to yell at him constantly. By that time, Dagmar’s Parkinson’s Disease had progressed such that she

was periodically in a wheelchair. Ms. Miracle said that the Cautherns wanted her and the petitioner

living with them to have someone to take care of them. Ms. Miracle related that even after the

petitioner was incarcerated, she maintained a relationship with the Cautherns so they could see the

grandchild. Once, when the boy was eight years old, he called Ms. Miracle crying and asking for

her to come get him because he had spilled something and Dagmar was being mean to him.

Ms. Miracle testified about her “up and down” relationship with the petitioner. She

related that the petitioner had trouble being close to people and that he would often disappear for

weeks with friends. She said that the petitioner “really looked for the acceptance from other men,”

and she described him as a “follower.” She also said that he had been unfaithful during their

marriage.

During Ms. Miracle’s pregnancy, she and the petitioner were living with the

Cautherns. She testified that the petitioner discovered paperwork in Dagmar’s pocketbook proving

that the Cautherns were not his biological parents. Ms. Miracle said that the petitioner was upset and

felt as if his life had been a lie. A few months before the Smiths’ homicides, the petitioner met

Christine, his biological mother. Their reunion, however, was short lived; she had terminal cancer

and died within a few weeks.

Ms. Miracle remembered that she was introduced at one point to the petitioner’s

attorney, but he never asked her any questions. Had the attorney requested information about the

petitioner’s background, Ms. Miracle testified that “absolutely” she would have cooperated and

would have testified in 1988 or 1995.

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B. Post-Conviction Psychological Evaluations

The post-conviction proceedings in this case featured two classic “battles of the

experts.” We begin with the clash between Dr. Keith Caruso and Dr. John Spencer.

The record shows that prior to his 1988 trial and at the request of the defense, the

petitioner underwent a forensic evaluation to determine his competency to stand trial and his sanity

at the time of the offense. That evaluation resulted in a conclusion that he was competent and sane.

Post-conviction counsel arranged for a broader forensic evaluation of the petitioner by Dr. Caruso,

and the state was permitted to have its own expert, Dr. Spencer, evaluate the petitioner. Doctor

Caruso was accepted by the post-conviction court as an expert in clinical and forensic psychiatry,

and Dr. Spencer was qualified as an expert in psychology.

From Dr. Caruso’s examination of the petitioner and his investigation and review of

other sources, he made multiple diagnoses of the petitioner, including antisocial personality disorder,

borderline personality disorder, post-traumatic stress disorder, polysubstance abuse, hallucinogen

intoxication, history of closed head injury, multiple psychosocial stressors, and ongoing legal

stressors. Doctor Caruso testified that the petitioner suffered from post-traumatic stress disorder as

a result of witnessing and experiencing physical and emotional abuse by Dagmar Cauthern. Doctor

Caruso’s diagnosis of polysubstance abuse at the time of the offense was based on the petitioner’s

report that he abused Vivarin and LSD, as well as alcohol and marijuana. Doctor Caruso admitted

that it was “very difficult” to build a rapport with the petitioner, and it took some time before Dr.

Caruso believed that he was getting accurate information from the petitioner. Doctor Caruso also

admitted that the petitioner had a history of deceitfulness.

Doctor Caruso explained his diagnosis of borderline personality disorder with

narcissistic features as a condition characterized by an unstable sense of self, interpersonal

relationships, and emotional states and by difficulty controlling anger or impulses. He further

explained the diagnosis of antisocial personality disorder as resulting from a failure to conform to

social norms of lawful behavior. In his opinion, the petitioner was also suffering from psychosocial

stressors at the time of offense, including marital problems, a sense of abandonment by his biological

parents, and a sense of betrayal when his status of favored child changed to that of abused victim.

As for the petitioner’s view of the rape of Rosemary Smith, Dr. Caruso testified that

it was about rage and not sexual gratification. From what the petitioner had related, Dr. Caruso

testified that he believed that the petitioner was struggling with Mrs. Smith, and he fell at the top of

the stairs. Something about smelling the carpet and falling at the top of the stairs reminded the

petitioner of an occasion, as a child, when he fell over a vacuum cleaner and Dagmar Cauthern beat

him. Doctor Caruso also believed that there were other associational similarities between Mrs.

Smith and Dagmar Cauthern that triggered the petitioner’s violent behavior. Even so, Dr. Caruso

did not think that the petitioner was insane at the time of the attacks: “[T]here may have been a lot

of emotional baggage that was tied to it, and may have been symbolically . . . someone else, but I

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think ultimately there is no evidence of insanity or the inability to form the intent to commit that

particular act.”

In terms of what kind of penalty mitigation evidence could have been developed and

presented on the petitioner’s behalf in his earlier trials, Dr. Caruso testified that he found multiple

statutory and non-statutory mitigating circumstances. First, the petitioner was suffering from

extreme mental or emotional disturbance at the time the crimes were committed. Second, the

petitioner acted under the substantial domination of his co-defendant, Patterson. Third, the petitioner

was only nineteen years old and extremely immature at the time of the offenses. Fourth, the

petitioner’s capacity to appreciate the wrongfulness of his conduct or to conform it to the

requirements of the law was substantially impaired by his post-traumatic stress disorder and

hallucinogen intoxication. Fifth, the petitioner has a family history suggesting that he has a genetic

predisposition to impulsive behavior. Sixth, the petitioner has a history of closed head trauma,

which has been linked to reduced impulse control and impulsive violence. Seventh, the petitioner’s

history of physical and emotional abuse and neglect was severe enough to lead to borderline

personality with narcissistic features and antisocial personality disorder, which are markers for

severely impaired coping ability.

Doctor Caruso concluded that the petitioner’s post-traumatic stress disorder is

treatable by medication and psychotherapy. To Dr. Caruso, the petitioner also seemed to be more

stable in a prison setting than in his earlier life because of the structured environment of a

correctional facility.

Not surprisingly, Dr. Spencer disagreed with nearly every conclusion and diagnosis

reached by Dr. Caruso. From his review of documents and witness statements and based on

interviewing the petitioner, Dr. Spencer did not believe that the petitioner was acting under extreme

mental or emotional disturbance at the time of the offense. Nor did Dr. Spencer see any indications

to suggest that the petitioner was under the “substantial” domination of another person at the time

of the offense. Doctor Spencer based these opinions, inter alia, on the crime scene video and his

interview with the petitioner. He testified that the petitioner exhibited very “goal directed” behavior

at the time of the offense, including wearing a mask, carrying a firearm to the scene of the crime,

cutting the telephone lines to the house, and making a forced entry into the residence. Doctor

Spencer analogized the attacks as similar to a “military operation,” and he saw no evidence that

Patterson was trying to control the petitioner.

Overall, Dr. Spencer testified that his evaluation detected no mental retardation or

disease. The petitioner, to Dr. Spencer, appeared “well organized,” “articulate,” “engaging,” and

“socially skillful.” Doctor Spencer was firm that he saw no evidence suggesting, as Dr. Caruso had,

that the killing of the Smiths was a symbolic killing of Dagmar Cauthern to the petitioner. The

petitioner denied to Dr. Spencer making any such association at the time. Also significant to Dr.

Spencer was that among the children, the petitioner was a “favored child.” Doctor Spencer reasoned

that the petitioner’s abuse did not start until he was older and that the other children, who were

treated far worse, seemed to have turned out okay for the most part. Doctor Spencer testified that

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he had no reason to believe that the step-siblings’ description of the Cauthern household was

incorrect or untruthful. The bulk of the information, he said, indicated that Dagmar Cauthern was

“an unpleasant, angry, controlling, vindictive woman.”

C. Testimony of Former Trial Counsel

For the Montgomery County trial in 1988, one attorney was appointed to represent

the petitioner, although two attorneys were assigned to Brett Patterson’s defense. The petitioner’s

attorney evidently never requested that co-counsel be appointed to assist him in defending against

the dual homicide charges for which the state was seeking the death penalty.

Trial counsel testified that he began practicing law in 1973. Prior to his appointment

to represent the petitioner, trial counsel had not been involved in any death penalty cases and had not

attended any death penalty seminars. Counsel attested that at the time of the petitioner’s trial, he was

aware that procedures existed to seek support services in death penalty cases. The only expert

assistance that counsel sought prior to trial, however, was a psychological evaluation limited to

determining competency to stand trial and sanity at the time of the offenses. No other mental health

examination was ever performed. As for other support services that could have been, but were not,

requested, trial counsel explained, “The other matters, I felt comfortable that I investigated them

myself. As far as experts go in any other these other areas, I guess in my judgment I didn’t think I

needed them.”

Regarding the petitioner’s social history and family background, trial counsel testified

that he relied on information from Roy and Dagmar Cauthern. Trial counsel admitted that he never

tried to contact any of the petitioner’s step-siblings, but he believed that he spoke with the

petitioner’s former wife and father-in-law, both of whom attended the trial. Trial counsel also never

sought any birth, adoption, juvenile, or school records and never had the petitioner sign releases for

any such information. Counsel said that he was aware that the petitioner was adopted, and counsel

learned from Dagmar Cauthern that the petitioner’s biological father was incarcerated. As for the

petitioner’s biological mother, trial counsel knew only that her name was Christine. Counsel was

unaware that she was a Canadian citizen. Counsel neither sought records about the biological

parents, nor did he investigate Damgar Cauthern’s German background, which was obvious from

her accent.

Trial counsel’s knowledge of Patterson’s background was even sketchier. Counsel

said that all he knew about Patterson before trial was that he had been in the military. Counsel did

not learn until the trial was underway that Patterson had been suspected of murder in New Mexico;

counsel learned that information during a break in the trial proceedings from a conversation with a

New Mexico law enforcement officer who was attending the trial. At the post-conviction hearing,

trial counsel was shown records from the prosecution’s files containing information about the New

Mexico investigation and Patterson’s criminal history. Counsel testified that those records were

never provided to him. Similarly, trial counsel was shown a police report from the prosecution’s

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files containing information that could have been used to impeach witness James Andrew; that

report, according to counsel, had not been disclosed to him.

Trial counsel was asked to describe the theory of defense and to explain why he did

not seek a severance from co-defendant Patterson. Trial counsel testified that the theory was to

“throw as much onto Patterson as possible.” Going to trial with Patterson, trial counsel believed,

would reduce the petitioner’s chances of being convicted and receiving the death penalty. Trial

counsel viewed Patterson as more culpable and wanted the jury to be able to compare Patterson’s

age and larger size with the petitioner’s relative youth. Counsel was asked and admitted that

psychological support services “[p]robably” would have helpful in pursing that defense strategy.

Trial counsel testified that at the first sentencing trial, the petitioner did well on direct

examination but “crumbled on cross” examination. At the 1995 resentencing trial, trial counsel’s

strategy was to portray the petitioner in the most favorable light possible in terms of showing how

he had matured and become a better person since he had been incarcerated. Trial counsel did not,

however, object to the prosecution’s repeated characterization, in closing argument, of the petitioner

as the “evil one.” Trial counsel claimed that he did not want to draw unnecessary attention to the

“rather obnoxious argument” and that, at any rate, the Tennessee Supreme Court found the argument

to be harmless.

As with the first trial, counsel did not seek any support services for the resentencing

trial. His explanation was that he “had talked to Ronnie [Cauthern] many times before that,” and

he “just felt like nothing else in [his] judgment was needed in that regard.” As for Roy and Damgar

Cauthern, trial counsel described the adoptive parents as very “guarded” in providing information

about the biological parents. For the resentencing trial, trial counsel did solicit the services of

another attorney to help him with the trial. The first attorney who agreed to serve as co-counsel,

however, had to withdraw after accepting employment with the district attorney general’s office. A

second attorney, who agreed to help, was not appointed until mid-November 1994, approximately

two months before the sentencing retrial. Trial counsel testified that he directed co-counsel to read

the record and offer any suggestions or ideas on how to approach the resentencing trial.

Co-counsel had been practicing law approximately four years when he became

involved in the petitioner’s resentencing. Co-counsel testified that he began working on the case on

November 15, 1994, and that trial commenced on January 24, 1995. Co-counsel described himself

as “second chair” on the case, having no experience in defending capital cases. He said that he spent

considerable time reviewing the transcripts from the first trial, but otherwise his involvement in

pretrial preparation was limited. Based on his time records, co-counsel testified that he spoke with

the petitioner three times and that he interviewed one witness.

Co-counsel was asked about expert services and psychological evaluations. He

testified that he knew that procedures existed to secure funds for expert assistance in death penalty

cases but that no assistance was sought for the 1995 resentencing trial. Furthermore, he testified that

he was aware that there had been some earlier psychological examination of the petitioner. Co-

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counsel was not familiar with any specifics, but he stated that he was under the impression that the

results of that examination were unfavorable.

The defense theory at resentencing, according to co-counsel, was to present Patterson

as being more culpable even though the previous jury had returned life sentences for Patterson’s

involvement in the homicides. At the same time, the defense wanted to emphasize favorable aspects

of the petitioner’s life both prior to and following the homicides. The defense, however, wanted to

avoid having the petitioner testify because he could be cross-examined about damaging testimony

he had given at the first trial. The defense also wanted to avoid calling Patterson as a witness

because he was an “unknown,” and they did not know what he might say on the stand.

D. Testimony of New Mexico Law Enforcement Officers

Gregory Talley testified at the post-conviction hearing that he previously served as

Deputy Police Chief of the Los Alamos Police Department in New Mexico. While with the police

department, Deputy Chief Talley became familiar with Brett Patterson. According to Deputy Chief

Talley, Patterson was the primary suspect in the 1981 strangulation death of a teenager in Los

Alamos. The teenager was discovered in her bedroom, and the autopsy indicated possible anal

penetration. Deputy Chief Talley testified that the case was still open but admitted that Patterson

had never been charged for the murder. Deputy Chief Talley further testified that he was never

contacted by anyone representing the petitioner, but he would have been willing to testify if

requested. Deputy Chief Talley described Patterson as a “wannabe” cowboy and manipulative.

Alan Kirk served as the Los Alamos County Police Chief from 1988 to 1998. He

testified that Patterson first came to his attention because of traffic violations. Kirk related that

Patterson did not seem to be accepted by his peers and that Patterson would drive around the

community looking for people with whom to associate. Kirk was personally involved in the

investigation of the teenage girl’s murder in 1981. Kirk stated that Patterson and the murdered girl’s

brother “hung out” together and that Patterson was a suspect in the unsolved murder. Kirk testified

that the petitioner’s attorney never interviewed him but that he once met with the petitioner’s lead

counsel because Kirk wanted to interview the petitioner to determine if he had any useful

information about Patterson.

E. The Vienna Convention on Consular Rights

The second battle of the experts in this case featured Bernd Kuebart, who testified

for the petitioner, and Brice Clagett, who testified for the state. The credentials of both men are

impressive and impeccable.

At the time of his testimony, Mr. Kuebart lived in Atlanta, Georgia and was posted

with the German Consulate General. Mr. Kuebart’s official title was Deputy Consul General, and

he appeared at the post-conviction proceedings with the permission of the German government. Mr.

Kuebart explained that he was authorized to testify about German law relative to citizenship, the

-16-

details of the petitioner’s genealogy, Germany’s position on the death penalty, and about the consular

procedures followed when a German citizen is arrested in the United States. Regarding his

qualifications, Mr. Kuebart related that he is an attorney and has specialized in International Law and

European Law. He had been posted by the German government to numerous places in the world,

and he once was posted with the German Delegation to the Commission on Human Rights. Mr.

Kuebart testified that he had dealt with the Vienna Convention on a regular basis through his

postings in Tehran and Atlanta.

According to Mr. Kuebart, when a German citizen is arrested in United States, the

Vienna Convention requires that the person be notified by the arresting authorities of the right to

contact his or her consulate or embassy. If the individual wishes contact, the arresting authorities

are required to inform the consulate or embassy that an arrest has been made. Mr. Kuebart testified

that at that point, the Consul General will contact the arrested person and undertake to determine

whether the attorney on the case is adequately qualified or whether a more qualified attorney is

required to properly defend the arrested individual. Mr. Kuebart identified death penalty cases as

causing the greatest concern, and additional procedures are followed in those cases, including

allocating funds for attorney fees and necessary investigative services. Mr. Kuebart stated that the

same services would be offered to dual citizens provided the individual had German citizenship.

From the records that he had reviewed, Mr. Kuebart believed that there was a high

degree of probability that the petitioner was a German citizen. For citizenship purposes, German law

examines decendency. Mr. Kuebart testified that it appeared that Dagmar Huhn was a German

citizen, having been born in Niedershschmalkaldem, in central Germany, and that she gave birth to

Raymond Huhn (the petitioner’s biological father) without benefit of marriage. Mr. Kuebart

explained that for a child born out of wedlock, citizenship is conferred through the mother, thus

bestowing German citizenship on the petitioner’s biological father. On the other hand, children born

of a marriage receive citizenship through the father. It appeared to Mr. Kuebart that because the

petitioner’s biological parents were married, the petitioner had the status of a German citizen. Mr.

Kubert admitted that nothing about the petitioner’s physical appearance indicated German

citizenship, and no evidence had been uncovered suggesting that the petitioner had any direct

connection with Germany.

Mr. Kuebart further conceded that the death penalty is not presently contrary to

customary international law. As for the Vienna Convention, Mr. Kuebart admitted that the United

States State Department does not agree with Germany’s interpretation of the Vienna Convention as

conferring individual rights to the person arrested; that dispute is presently pending before the

International Court of Justice.

Brice Clagett testified for the state as an expert in international law. He is senior

counsel with the law firm of Covington and Burling in Washington, D.C. and practices mostly in the

areas of public and private international law. Mr. Clagett first addressed the death penalty in the

international community, and he agreed with Mr. Kuebart that the death penalty is not unlawful

under customary international law.

-17-

Mr. Clagett testified that dual nationality or citizenship has a rocky history. The

United States State Department takes the position that a person who is a citizen of the United States

and another country may be treated exclusively as a United States citizen, such that consular

notification is not required if the detainee is a United States citizen. According to Mr. Clagett, the

United States notified Germany of its position in 1998. Mr. Clagett said that the United States

Supreme Court regards a position taken by the State Department with “great respect” but not as

determinative. Furthermore, Mr. Clagett testified that in his opinion, pursuant to the Vienna

Convention, an individual defendant does not have standing to litigate the consular notification

provision.

After Messrs. Kuebart and Clagett testified, but while the post-conviction hearing was

underway, the German Consulate issued original citizenship documents verifying that the petitioner

is a German citizen. Copies of the documents were offered and received as exhibits to the hearing.

At the conclusion of the evidentiary hearings, the post-conviction court requested that

the parties submit written arguments summarizing their respective positions. The post-conviction

court reviewed the filings and issued an Order Dismissing Post-Conviction Petition on November

21, 2001.

POST-CONVICTION COURT’S FINDINGS AND CONCLUSIONS

The post-conviction court began its analysis with the petitioner’s ineffective

assistance of counsel claim related to the guilt phase of his original trial in 1988. The court

accredited the evidence that trial counsel chose not to enlist co-counsel or an investigator and did

not attend any death penalty seminars or seek guidance from available capital case resource centers.

Nonetheless, the court found that the petitioner had failed to demonstrate how such assistance would

have benefitted the defense.

With regard to more specific complaints about trial counsel’s representation, the post-

conviction court characterized the proof as “often brief and unhelpful.” For example, the petitioner

had complained about the jury selection process and trial counsel’s failure to request the services of

a jury consultant. Citing the lack of proof on these issues, the court held that the petitioner had not

carried his clear-and-convincing-evidence burden. Likewise, the court found that scant evidence had

been offered supporting the claims that trial counsel did not adequately communicate with the client

and did not adequately advise the petitioner about his right to testify. In view of trial counsel’s time

sheets and the petitioner’s failure to testify during the post-conviction proceedings, the court found

no basis to credit those claims.

One of the recurrent themes of the post-conviction proceedings was the alleged unmet

need for a mental health expert to assist the defense. The post-conviction court pointed out that prior

to the 1988 trial, the petitioner was evaluated for competency to stand trial and sanity at the time of

the offenses. Inasmuch as Dr. Caruso also opined that the petitioner was competent and sane, the

post-conviction court surmised that, in connection with the guilt phase of the 1988 trial, expert

-18-

mental health testimony could not have supplied a diminished-capacity defense. Furthermore, the

post-conviction court ruled that the petitioner had not shown that he or his family members would

have cooperated with a mental health expert in preparation for the 1988 trial.

The post-conviction court did agree, in part, with one of the petitioner’s complaints

about counsel’s effectiveness during the 1988 trial. The court found that counsel’s services were

deficient for failing to timely file a new trial motion following the 1988 trial. Even so, the court

ruled that the petitioner had failed to demonstrate prejudice in terms of meritorious issues having

been waived by counsel’s inaction. The court pointed out that despite counsel’s lapse, the supreme

court had ordered a new sentencing hearing for the petitioner and that Patterson had unsuccessfully

raised many issues, also applicable to the petitioner, on direct appeal.3

The post-conviction court next turned its attention to the petitioner’s ineffective

assistance of counsel claim related to the 1995 resentencing trial. In its order denying post-

conviction relief, the court indicated that it had canvassed the transcripts of the 1995 proceedings.

From that review, the court related numerous examples showing that counsel had aggressively and

competently represented the petitioner’s interests. The court regarded co-counsel’s official

appointment immediately prior to trial as insignificant because co-counsel had been already involved

in the case for two months preceding the trial.

The post-conviction court also highlighted counsel’s and co-counsel’s effectiveness

in terms of their efforts to minimize culpability, inter alia, by showing the jury that the petitioner

suffered from drug and/or alcohol intoxication at the time of the murders, by advancing the defense

theory that the petitioner was an unwilling participant in Patterson’s scheme without ever subjecting

the petitioner to cross-examination, by convincing the court to permit questioning of witness Joseph

Denning about admissions of responsibility that Patterson made, and by persuading the court to

inform the jury that Patterson did not receive the death penalty for his involvement in the murders.

The post-conviction court took into consideration that counsel focused on the positive

and negative aspects of the petitioner’s life, before and after the homicides. The jury learned that

the petitioner never met his biological father, saw his biological mother only on three occasions, and

that he did not discover that he was adopted until he was fifteen or sixteen years old. Counsel

presented evidence that the petitioner never graduated from high school, having dropped out in his

sophomore year to help care for his adoptive mother who suffered from Parkinson’s Disease. When

he was eighteen years old, the petitioner married and later fathered a son with whom he maintained

a relationship, despite divorce. The jury also learned that while imprisoned, the petitioner had

excellent attitude and behavior reports, was tutoring other inmates, and had earned his Graduate

3

The petitioner has abandoned on appeal many of his original allegations of counsel’s ineffectiveness in

connection with his 1988 trial. Except as otherwise noted and discussed in this opinion, we decline to engage in any

protracted analysis of counsel’s performance at the petitioner’s original trial. W e agree with the post-conviction court

that much of the petitioner’s proof directed at the 1988 trial was “often brief and unhelpful.”

-19-

Equivalency Diploma. From the evidence, the jury was persuaded that the petitioner did not deserve

the death penalty for Mr. Smith’s death.

Because much of the petitioner’s evidence addressed his social history, the post-

conviction court dealt separately with the claim that counsel failed to adequately investigate the

petitioner’s background and present mitigation proof during the 1995 resentencing trial. Although

crediting the testimony describing life in Roy and Dagmar Cauthern’s household, the court rejected

the claim for nine reasons, many of which relate to the petitioner’s failure to testify during the post-

conviction proceedings and the corresponding failure of proof.

(1) Relying on the petitioner’s own account of his childhood was

not professionally unreasonable, particularly because no

evidence suggested that Roy or Dagmar Cauthern ever gave

trial counsel any reason to suspect that he “endured a difficult

or abusive childhood”;

(2) Even if further investigation was warranted, the post-

conviction court was “convinced that [the] petitioner and

many of his post-conviction witnesses would have declined to

testify and/or speak with a mental health expert about the

alleged abuse”;

(3) Because of the close relationship between the petitioner and

his adoptive father, the court did not believe that the

petitioner would have conveyed to a mental health expert any

information that reflected negatively on either adoptive

parent;

(4) Because the petitioner had given multiple conflicting accounts

of the Smiths’ murders and even gave inconsistent accounts

to Drs. Caruso and Spencer, the court was not convinced that

anything the petitioner would have shared with a mental

health expert in 1988 or 1995 would have been consistent

with the latest account conveyed to Dr. Caruso;

(5) Even if the petitioner had spoken with a mental health expert

and his lay witnesses had been interviewed and prepared to

testify, the court found it “unlikely that [the] petitioner would

have permitted [trial counsel] to present the lay or expert

testimony to the jury”;

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(6) Compared with his siblings’ abusive upbringing, the

petitioner led a “charmed life,” thereby making lay witness

testimony less, not more, helpful;

(7) The version of events that the petitioner related to Dr. Caruso

and Dr. Caruso’s interpretation of those events are

inconsistent with every other account that the petitioner has

given and with the crime-scene evidence, and the state could

have effectively cross-examined Dr. Caruso about the

inconsistencies and undermined the defense mitigation

strategy;

(8) Had Dr. Caruso testified during the 1995 resentencing trial,

his testimony “would have angered the jurors and diminished

the effectiveness of other mitigation proof” that trial counsel

presented; and

(9) The vivid and disturbing circumstances under which Mrs.

Smith was raped and murdered strongly supported application

of the especially heinous, atrocious, or cruel aggravating

factor, and that aggravating factor greatly outweighed the

mitigation evidence that the petitioner criticizes trial counsel

for not presenting.

The post-conviction court also addressed separately the complaint that trial counsel

failed to object to the state’s closing argument at the resentencing trial. The court declined to

“second-guess” counsel’s decision, which according to counsel’s testimony was a tactical decision.

Even, however, if it was objectively unreasonable not to object, the post-conviction court observed

that the Tennessee Supreme Court had previously found the state’s argument to be improper but not

sufficient to warrant a new trial.

The next major issue that the post-conviction court addressed involved the Vienna

Convention on Consular Relations (VCCR). Insofar as the petitioner was claiming ineffective

assistance based on trial counsel’s failure to research the petitioner’s genealogy and failure to assert

that his rights under the VCCR had been violated, the post-conviction court concluded that neither

deficient performance nor prejudice had been proven. The court found that counsel’s assumption

that the petitioner was a United States citizen was reasonable because nothing about the petitioner’s

appearance or speech suggested that he might be a foreign national. Additionally, the court observed

that no proof had been offered to show that a competent attorney should have been aware of the

VCCR at the time of the petitioner’s 1988 trial and/or 1995 resentencing.

From the prejudice standpoint, the post-conviction court pointed out the lack of

evidence that the State Department would have taken the position that the VCCR afforded a dual

-21-

national any protections or rights. The court also reasoned that even if counsel should have ignored

the State Department’s position and contacted the German Consulate, the evidence offered at the

post-conviction hearing did not establish what, in his case, Germany would have offered to do or,

for that matter, whether the petitioner would have accepted Germany’s assistance if offered.

For many similar reasons, the post-conviction court dismissed the petitioner’s

argument that the state independently violated his rights under the VCCR. From the evidence, the

most favorable conclusion that the court said it could reach was that the petitioner was a dual

national, in which case the notification requirements of the VCCR do not apply, according to the

State Department. Additionally, the post-conviction court expressed the opinion that any protections

under the VCCR are not constitutional in nature and that, at any rate, the petitioner had waived the

issue.

As part of his bid for post-conviction relief, the petitioner had asserted that his

convictions and sentences violate a multitude of international agreements and declarations, including

the Universal Declaration of Human Rights, the Convention Against Torture and Other Cruel,

Inhuman, or Degrading Treatment or Punishment, the American Convention on Human Rights, the

International Covenant on Civil and Political Rights, the American Declaration of the Rights and

Duties of Man, the International Covenant on Economic, Social and Cultural Rights, the

International Convention on the Elimination of All Forms of Racial Discrimination, and the

Convention on the Elimination of All Forms of Discrimination Against Women. The post-

conviction court dismissed the issue as not appropriate for post-conviction relief, as having been

waived, as contrary to Mr. Clagett’s testimony regarding international law, and as lacking factual

support in this particular case. As for the companion issue of counsel’s ineffectiveness in failing to

raise the alleged international rights violations, the post-conviction court stated that the record did

not establish deficient performance or prejudice.

The next issue that the post-conviction court discussed at length centered on James

Andrew, who knew the petitioner and Patterson and who testified at the petitioner’s 1988 and 1995

trials about inculpatory statements the petitioner made concerning the roles that he and Patterson

played in the Smiths’ murders. The petitioner advanced two post-conviction claims. The first claim

was that trial counsel did not adequately impeach Andrew, thereby depriving the petitioner of the

effective assistance of counsel. The second claim was that the state had withheld exculpatory

information and a police report that could have been used to impeach Andrew’s testimony.

On the first claim, the post-conviction court found that counsel’s handling of

Andrew’s testimony was primarily a trial tactic, not to be second-guessed. More fundamentally,

however, the court concluded “without hesitation that [the] petitioner suffered no prejudice.” In the

court’s estimation, the petitioner’s guilt was “overwhelming during the 1988 trial[,] and the sentence

imposed during the 1995 trial was strongly supported by the record even in the absence of Andrew’s

testimony.”

-22-

On the second claim, which alleged a due process violation, the post-conviction court

found that the state had withheld from the defense a police report and information regarding

Andrew’s compensation or expectation of additional compensation. Nonetheless, the court

concluded that the information was not “material” in the strict sense required to establish a Brady

violation. In reaching this conclusion, the court separately considered the materiality of the

information as it related to the guilt portion of the petitioner’s trial in 1988 and the 1995 resentencing

trial.

In seeking post-conviction relief, the petitioner also initiated a three-fold attack on

the way that his trial counsel dealt with co-defendant Patterson. The petitioner complained that his

attorneys were ineffective in failing to seek a severance from Patterson when the murders were tried

in 1988 and in failing to use information, during the 1988 and 1995 trials, that Patterson was a

suspect in a New Mexico homicide. The petitioner further complained about the disparity between

the two life sentences that Patterson received and the death penalty that the petitioner received for

Mrs. Smith’s homicide.

The post-conviction court credited trial counsel’s testimony that the decision not to

seek a severance was a strategic one, and it declined to second-guess that strategy. At any rate, the

court concluded that the petitioner had failed to prove the requisite prejudice from being tried jointly

with Patterson. Concerning Patterson’s suspected involvement in an unrelated homicide in another

state, the post-conviction court was not convinced that trial counsel’s investigation was inadequate,

but even if it was, the unrelated homicide suspicions would not have been admissible. The outcome

of the 1988 and 1995 trials, moreover, would not have been affected in the court’s estimation, given

the overwhelming evidence of the petitioner’s guilt and other similar evidence, including Denning’s

cross-examination testimony at resentencing, that Patterson told Denning that Patterson was

responsible for killing both victims. The court analyzed the sentencing-disparity complaint from a

factual standpoint and found it lacking.

The remaining issues that the post-conviction court identified and analyzed were

counsel’s alleged ineffectiveness in failing to attack Tennessee’s method for conducting a

proportionality review of death-sentenced defendants, counsel’s failure to challenge the

constitutionality of Tennessee’s death penalty scheme, the adequacy of the jury instructions from the

1988 and 1995 trials and counsel’s performance related thereto, and the cumulative effect of any

errors. The post-conviction court found that many of the claims had been waived or previously

determined. By reference to similar and/or identical issues that had been previously raised and

rejected in published opinions, the post-conviction court also quickly disposed of those claims.

BURDENS OF PROOF AND STANDARDS OF APPELLATE REVIEW

To obtain post-conviction relief, a petitioner must show that his or her conviction or

sentence is void or voidable because of the abridgment of a constitutional right. Tenn. Code Ann.

§ 40-30-103 (2003). The petitioner bears the burden of proving factual allegations in the petition

for post-conviction relief by clear and convincing evidence. Id. § 40-30-110(f) (2003). Evidence

-23-

is clear and convincing when there is no serious or substantial doubt about the accuracy of the

conclusions drawn from the evidence. Hicks v. State, 983 S.W.2d 240, 245 (Tenn. Crim. App.

1998).

Once the court assigned to hear and adjudicate the post-conviction petition has ruled,

its factual findings are subject to a de novo review by this court; however, we must accord those

factual findings a presumption of correctness, which is overcome only when a preponderance of the

evidence is contrary to the post-conviction court’s factual findings. Fields v. State, 40 S.W.3d 450,

456 (Tenn. 2001). A reviewing court, in other words, may not re-weigh or re-evaluate these

findings, may not substitute its inferences for those of the post-conviction court, and may not second-

guess questions concerning the credibility of witnesses and the weight and value of their testimony.

See Black v. State, 794 S.W.2d 752, 755 (Tenn. Crim. App. 1990). The burden is on the petitioner

to show that the evidence preponderates against the lower court’s findings. See Clenny v. State, 576

S.W.2d 12, 14 (Tenn. Crim. App. 1978). On the other hand, a post-conviction court’s conclusions

of law are subject to a purely de novo review by this court, with no presumption of correctness.

Fields, 40 S.W.3d at 457.

For the seven principal claims that the petitioner is pursing on appeal, there are more

exacting, claim-specific burdens of proof and standards of appellate review that also apply. The

following is an overview of those burdens and standards.

Ineffective Assistance of Counsel: The Sixth Amendment to the United States

Constitution and Article I, section 9 of the Tennessee Constitution both require that an accused in

a criminal case receive effective assistance of counsel. Baxter v. Rose, 523 S.W.2d 930 (Tenn.

1975). To obtain post-conviction relief on the basis of ineffective assistance of counsel, the

petitioner bears the burden of proving (1) that the services rendered or the advice given was below

“the range of competence demanded of attorneys in criminal cases,” id. at 936, and (2) that the

deficiencies were prejudicial in terms of rendering a reasonable probability that the result of the trial

was unreliable or the proceedings were fundamentally unfair, Strickland v. Washington, 466 U.S.

668, 687, 104 S. Ct. 2052, 2064 (1984). “[A] failure to prove either deficiency or prejudice provides

a sufficient basis to deny relief on the ineffective assistance claim[, and] a court need not address the

components in any particular order or even address both if the [petitioner] makes an insufficient

showing of one component.” Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996).

In terms of appellate review, a post-conviction court’s conclusion whether a petitioner

has been denied the effective assistance of counsel presents a mixed question of law and fact. State

v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). As the supreme court explained in Fields,

[A] trial court’s findings of fact underlying a claim of ineffective

assistance of counsel are reviewed on appeal under a de novo

standard, accompanied with a presumption that those findings are

correct unless the preponderance of the evidence is otherwise. See

Tenn. R. App. P. 13(d); Henley v. State, 960 S.W.2d 572, 578 (Tenn.

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1997). However, a trial court’s conclusions of law -- such as whether

counsel’s performance was deficient or whether that deficiency was

prejudicial -- are reviewed under a purely de novo standard, with no

presumption of correctness given to the trial court’s conclusions.

Fields, 40 S.W.3d at 458.

Suppression of Exculpatory Evidence: Suppression by the prosecution of exculpatory

evidence violates the Fourteenth Amendment’s due process guarantee to a fair trial and the

Tennessee Constitution’s “Law of the Land” Clause. See Brady v. Maryland, 373 U.S. 83, 83 S. Ct.

1194 (1963); State v. Ferguson, 2 S.W.3d 912, 915 (Tenn. 1999). To obtain post-conviction relief

on this basis, the petitioner bears the burden of proving the following:

1) that the defendant requested the information (unless the evidence

is obviously exculpatory, in which case the State is bound to release

the information whether requested or not);

2) that the State suppressed the information;

3) that the information was favorable to the accused; and

4) that the information was material.

Johnson v. State, 38 S.W.3d 52, 56 (Tenn. 2001); see State v. Edgin, 902 S.W.2d 387, 390 (Tenn.

1995).

The “materiality” aspect of a Brady claim is governed by the same prejudice standard

as an ineffective assistance of counsel claim; that is, a defendant must show that there is a reasonable

probability that the result of the proceedings would have been different. See United States v. Bagley,

473 U.S. 667, 682, 105 S. Ct. 3375, 3383 (1985). On appeal, this issue, in our opinion, presents a

mixed question of law and fact. The lower court’s findings of fact, such as whether the defendant

requested the information or whether the state withheld the information, are reviewed on appeal de

novo with a presumption that the findings are correct unless the evidence preponderates otherwise.

The lower court’s conclusions of law, however, such as whether the information was favorable or

material, are reviewed under a purely de novo standard with no presumption of correctness.

Apprendi and Ring: The effect of the rulings in Apprendi v. New Jersey and Ring v.

Arizona on the petitioner’s death sentence raises questions of law. Such questions are reviewed on

appeal de novo with no presumption as to the correctness of the lower court’s conclusions of law.

See State v. Owens, 20 S.W.3d 634, 637 (Tenn. 2000); State v. Hill, 954 S.W.2d 725, 727 (Tenn.

1997).

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The Vienna Convention on Consular Relations: This claim, as it was framed and

litigated during the post-conviction hearings, presents mixed questions of fact and law. We review

the post-conviction court’s factual findings on this claim de novo with a presumption that they are

correct unless the evidence preponderates against the findings. The post-conviction court’s

interpretation of the Vienna Convention on Consular Relations, however, presents a question of law

that this court reviews de novo. See United States v. Page, 232 F.3d 536, 540 (6th Cir. 2000) (proper

interpretation of a treaty presents a question of law), cert. denied, 532 U.S. 1056, 121 S. Ct. 2202

(2001).

Waived or Previously Determined Claims: Under the Post-Conviction Procedure Act,

waiver occurs when the “the petitioner personally or through an attorney fail[s] to present [the claim]

for determination in any proceeding before a court of competent jurisdiction in which the ground

could have been presented.” Tenn. Code Ann. § 40-30-106(g) (2003). Waiver in a post-conviction

context is determined by an objective standard under which a petitioner is bound by the action or

inaction of his attorney. House v. State, 911 S.W.2d 705, 714 (Tenn. 1995). The presumption that

a ground not raised has been waived is rebuttabable. Tenn. Code Ann. § 40-30-106(g) (2003). To

rebut the presumption, the petition must contain “allegations of fact supporting each claim for relief

set forth in the petition and allegations of fact explaining why each ground for relief was not

previously presented in any earlier proceeding.” Id. § 40-30-104(e) (2003).

In the context of a post-conviction proceeding, a petitioner waives an issue on appeal

by failing to support his argument with authority. Tenn. R. Ct. Crim. App. 10(b). Furthermore, an

issue raised for the first time on appeal is waived. See State v. Alvarado, 961 S.W.2d 136, 153

(Tenn. Crim. App. 1996).

When a claim has been previously determined, it cannot form the basis for post-

conviction relief. State v. Harris, 947 S.W.2d 156, 174-75 (Tenn. Crim. App. 1996). “A ground for

relief is previously determined if a court of competent jurisdiction has ruled on the merits after a full

and fair hearing.” Tenn. Code Ann. § 40-30-106(h) (2003). “A full and fair hearing” has taken place

when “the petitioner is afforded the opportunity to call witnesses and otherwise present evidence,

regardless of whether the petitioner actually introduced any evidence.” Id.

Constitutionality of Capital Punishment in Tennessee: As we shall explain in greater

detail, the petitioner’s claims that the system of capital punishment in Tennessee is unconstitutional,

have been previously examined and rejected. Our appellate review is governed by the adjudications

of the supreme judicial tribunal of the state; the precedents that flow therefrom are final and

conclusive upon all inferior tribunals, including, of course, this intermediate appellate court.

Fletcher v. State, 951 S.W.2d 378, 381 (Tenn. 1997); Barger v. Brock, 535 S.W.2d 337, 340 (Tenn.

1976).

Jury Instructions: An accused has a constitutional right to complete and accurate jury

instructions on the law, and the trial court’s failure to provide complete and accurate jury instructions

deprives a defendant of the constitutional right to a jury trial. See State v. Teel, 793 S.W.2d 236, 249

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(Tenn. 1990). Erroneous jury instructions are subject to harmless error review. State v. Belser, 945

S.W.2d 776, 782 (Tenn. Crim. App. 1996). If the error, however, is constitutional in nature, there

must be a reversal unless the error is harmless beyond a reasonable doubt. Id.

Against this background, we now begin our task as a reviewing court of evaluating

whether the record and applicable law support the post-conviction court’s rulings.

INEFFECTIVE ASSISTANCE OF COUNSEL

The theme that resonates throughout the petitioner’s appeal is that he was deprived

of the constitutionally guaranteed right to effective assistance of counsel. The petitioner challenges

various factual findings made by the post-conviction court and the court’s ultimate rejection of his

claim.

A. Mitigating Evidence & Capital Sentencing Trial

(i) Deficient Performance

The petitioner argues that trial counsel’s failure to investigate and present mitigating

evidence about his family background and troubled childhood was not an informed strategic

decision. In a closely related argument, the petitioner points to trial counsel’s failure to investigate

and present mitigating evidence about his mental/emotional history as objectively unreasonable. He

additionally challenges how counsel actually presented his mitigation case to the jury.

In addressing attorney performance, courts must be mindful not “to ‘second guess’

tactical and strategic choices pertaining to defense matters or to measure a defense attorney’s

representation by ‘20-20 hindsight.’” Henley v. State, 960 S.W.2d 572, 579 (Tenn. 1997) (quoting

Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982)). A court reviewing counsel’s performance should

“eliminate the distorting effects of hindsight . . . [and] evaluate the conduct from counsel’s

perspective at the time.” Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. “The fact that a particular

strategy or tactic failed or hurt the defense, does not, standing alone, establish unreasonable

representation.” Goad, 938 S.W.2d at 369. On the other hand, “deference to matters of strategy and

tactical choices applies only if the choices are informed ones based upon adequate preparation.” Id.

In now familiar language, the Supreme Court in Strickland linked the deference

afforded counsel’s choices and decisions to the reasonableness of the investigation supporting the

choices and decisions.

[S]trategic choices made after thorough investigation of law and facts

relevant to plausible options are virtually unchallengeable; and

strategic choices made after less than complete investigation are

reasonable precisely to the extent that reasonable professional

judgments support the limitations on investigation. In other words,

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counsel has a duty to make reasonable investigations or to make a

reasonable decision that makes particular investigations unnecessary.

Strickland, 466 U.S. at 690-91, 104 S. Ct. at 2066.

In the context of capital cases, a defendant’s background, character, and mental

condition are unquestionably significant. “[E]vidence about the defendant’s background and

character is relevant because of the belief . . . that defendants who commit criminal acts that are

attributable to a disadvantaged background, or to emotional and mental problems, may be less

culpable than defendants who have no such excuse.” California v. Brown, 479 U.S. 538, 545, 107

S. Ct. 837, 841 (1987); see Eddings v. Oklahoma, 455 U.S. 104, 113-15, 102 S. Ct. 869, 876-77

(1982); Lockett v. Ohio, 438 U.S. 586, 604-05, 98 S. Ct. 2954 (1978) (plurality opinion); Zagorski

v. State, 983 S.W.2d 654, 657-58 (Tenn. 1998); Goad, 938 S.W.2d at 369. The right that capital

defendants have to present a vast array of personal information in mitigation at the sentencing phase,

however, is constitutionally distinct from the question whether counsel’s choice of what information

to present to the jury was professionally reasonable.

There is no constitutional imperative that counsel must offer mitigation evidence at

the penalty phase of a capital trial. Rather, satisfactory acquittal of counsel’s responsibilities is tied

to the objective reasonableness of the investigation that preceded the sentencing trial. In the words

of the Supreme Court in Wiggins v. Smith, 539 U.S. __, 123 S. Ct. 2527 (2003), “[O]ur principal

concern . . . is not whether counsel should have presented a mitigation case. Rather, we focus on

whether the investigation supporting counsel’s decision not to introduce mitigating evidence of [the

defendant’s] background was itself reasonable.” Id. at __, 123 S. Ct. at 2536 (emphasis in original)

(concluding that counsel had terminated investigation at an “unreasonable juncture,” making a fully

informed decision about sentencing strategy impossible). The measure of investigative

reasonableness is a particularly fact-intensive inquiry that “includes a context-dependent

consideration of the challenged conduct” viewed from counsel’s perspective at the time. Id. at __,

123 S. Ct. at 2536; compare Bell v. Cone, 535 U.S. 685, 122 S. Ct. 1843 (2002) (failure to offer

evidence and final argument at capital sentencing not professionally unreasonable because mitigating

evidence already introduced during guilt phase and waiver of argument prevented additional

summation by “very persuasive” lead prosecutor), and Darden v. Wainwright, 477 U.S. 168, 106 S.

Ct. 2464 (1986) (failure to present mitigating evidence not unreasonable when significant time and

effort devoted to sentencing preparation from which counsel made informed decision not to open

door to state’s exploitation of defendant’s history of violent crimes and sociopathic personality), with

Williams v. Taylor, 529 U.S. 362, 120 S. Ct. 1495 (2000) (counsel’s performance deficient; did not

begin to prepare for sentencing until a week before trial and failed to conduct investigation that

would have uncovered extensive records of nightmarish childhood and borderline mental

retardation).

In this case, the post-conviction court rejected on factual and legal grounds the

petitioner’s argument that trial counsel’s penalty phase investigation and presentation were

professionally unreasonable. Factually, the court credited counsel’s time sheets and testimony that

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he had communicated on numerous occasions with the petitioner and his adopted parents personally,

by phone, and through letters over the course of representation. From those communications, the

post-conviction court found “nothing in the record to suggest that they gave [counsel] any reason to

suspect that [the] petitioner had endured a difficult or abusive childhood.” The petitioner has failed

to demonstrate that the evidence preponderates against these factual findings.

From its factual findings, the post-conviction court then concluded that trial counsel’s

performance was not deficient and that trial counsel “did not behave ineffectively when he relied

upon his own client’s account of his childhood.” We are not bound by that legal conclusion, as it

does not receive the highly deferential standard of review afforded to factual determinations, see

Fields, 40 S.W.3d at 458, but our de novo review also convinces us that trial counsel’s performance

passes constitutional muster.

Strickland spoke of the reasonableness of counsel’s investigation as being influenced

by information from the client. “The reasonableness of counsel’s actions,” the Supreme Court wrote,

“may be determined or substantially influenced by the defendant’s own statements or actions. . . .

In short, inquiry into counsel’s conversations with the defendant may be critical to a proper

assessment of counsel’s investigation decisions, just as it may be critical to a proper assessment of

counsel’s other litigation decisions.” Strickland, 466 U.S. at 691, 104 S. Ct. at 2066; see Nichols

v. State, 90 S.W.3d 576, 587 (Tenn. 2002).

The petitioner did not testify at the post-conviction hearings, and the record in this

case sheds little light on trial counsel’s perspective at the time. We are, however, persuaded that

counsel’s mitigation preparation did not consist solely of interviews with the petitioner, and we do

not interpret the lower court’s remarks to be to the contrary. Lead trial counsel testified that he

sought family history from Roy and Dagmar Cauthern, but they were very “guarded” in providing

information about the petitioner’s biological mother and father. The presentence report, prepared

in February 1998 on the petitioner’s non-capital offenses, listed Raymond Huhm4 and Christine

Wilcox as the biological parents; the mother was listed as deceased, and no information was

provided about the father. The petitioner was reported as telling the presentence investigator that

he had been told only that his biological father was in prison in California at his birth.

Trial counsel arranged for a sanity and competency evaluation before the first trial.

All that the post-conviction record discloses is that the petitioner was declared competent to stand

trial and that an insanity defense could not be supported. Doctors Caruso and Spencer came to the

same conclusion as a result of their examinations. Whether the evaluation before the first trial

generated any useful or alarming insights into the petitioner’s mental history beyond competency and

sanity is unknown.

Post-conviction counsel insist that trial counsel were confused and did not understand

the differences between an evaluation for competency and sanity and one that is undertaken for

4

Apparently, the surname spelling was taken from a birth certificate on which the surname was misspelled.

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mitigation purposes in a capital sentencing trial. The record, however, in our opinion, is equivocal

on this point. Co-counsel did not know what type of examination had been performed earlier, and

lead counsel did not believe in his judgment that anything else was needed. The presentence report

prepared after the 1988 trial advised that the petitioner had no history of psychiatric treatment and

was not under the care of a physician. The situation in this case, in our view, is clearly

distinguishable from the facts in Cooper v. State, 847 S.W.2d 521, 525-26 (Tenn. Crim. App. 1992),

wherein the defendant’s sister testified at the post-conviction hearing that she told trial counsel about

her brother’s depression, attempted suicide, an emergency screening evaluation at a mental health

facility 90 days before the homicide, and an involuntary commitment order for her brother that she

obtained on the day of the killing. There is no indication in this case that any childhood miseries

were ever divulged or ever made it into the public record, as they did, for instance, in Williams v.

Taylor. See 529 U.S. at 395, 120 S. Ct. at 1514 (records documented that parents were jailed for

criminal neglect of petitioner and that petitioner had been committed to custody of social services

bureau).

The reports of Drs. Caruso and Spencer in the appellate record mention having

reviewed some type of psychological evaluation performed by G. Norman West and Thomas M.

Pendergrass. We know from other exhibits in this record that psychiatrist Melvin Dennis performed

the petitioner’s competency and sanity evaluation. Who Messrs. West and Pendergrass are, when

their evaluation was performed, what information was generated, and what conclusions were reached

are, from this record, unknowable.

Post-conviction counsel also are critical of trial counsel’s failure to seek out any birth,

adoption, juvenile, or school records related to the petitioner. The petitioner’s birth certificate, made

an exhibit in this case, is issued in the petitioner’s adopted name, Ronald Michael Cauthern, and

contains no information of parentage. The presentence report incorrectly lists the biological father

as Raymond “Huhm,” not “Huhn,” and the biological mother as Christine “Wilcox,” not Christine

“Tataryn.” We find no adoption records, although a certificate of live birth included in the appellate

record does correctly list the biological parents and the petitioner’s last name as Huhn. As for

juvenile or school records, the reports of both Drs. Caruso and Spencer reference having reviewed

school records and GED results. Neither expert, however, mentioned anything significant about the

records, and post-conviction counsel have not pointed to any information contained therein to

indicate that further investigation was warranted.

Some of the most illuminating information is derived from the questions to trial

counsel about the sentencing theories. Counsel testified that a two-fold approach was followed that

involved emphasizing the greater culpability of the former co-defendant, Patterson, and highlighting

favorable things that the petitioner had done with his life, before and after the crimes. At the

sentencing phase of the 1988 trial, the petitioner testified. Counsel testified that Cauthern handled

direct examination well but “crumbled on cross.” Based on that experience, trial counsel specifically

wanted to avoid having the petitioner testify about the underlying circumstances of the crime at the

1995 resentencing proceeding.

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The record in this case illustrates, in our opinion, why “[j]udicial scrutiny of counsel’s

performance must be highly deferential” and why courts are required to “indulge [the] strong

presumption” that counsel exercised reasonable professional judgment. Strickland, 466 U.S. at 689,

104 S. Ct. at 2065. Memories dim with the passage of time, and eliminating “the distorting effects

of hindsight” so as to “reconstruct the circumstances of counsel’s challenged conduct” is inherently

difficult. See id., 104 S. Ct. at 2065. Even then, no absolute rules dictate what is reasonable

performance for attorneys. “In any ineffectiveness case, a particular decision not to investigate must

be directly assessed for reasonableness in all the circumstances, applying a heavy measure of

deference to counsel’s judgments.” Id. at 690-91, 104 S. Ct. at 2066.

The strong presumption in favor of competence interacts with the post-conviction

petitioner’s burden of proof. The petitioner has the burden of persuasion, and that burden never

shifts to the state. The petitioner cannot carry his burden simply by arguing, for instance, that it is

always “prudent” or “advisable” to enlist the assistance of various experts. Likewise, a record that

is ambiguous or incomplete regarding counsel’s actions is inadequate to displace the strong

presumption of competence. Regardless what a different investigation might have uncovered, the

petitioner must first demonstrate that declining to investigate further was objectively unreasonable

performance. See Henley, 960 S.W.2d at 583 (“When assessing the performance of trial counsel,

courts must eliminate the ‘distorting effects of hindsight’ and evaluate the challenged conduct from

counsel’s perspective at the time, rather than from the perspective of a mental health expert offering

testimony in a post[-]conviction proceeding.”).

We do not discern from the record before us that trial counsel viewed the petitioner’s

situation as hopeless; nor does it appear that trial counsel was ignorant of or misunderstood the

purpose of a capital sentencing proceeding. This case is distinguishable from those evincing an

abdication of advocacy. Counsel challenged the especially heinous, atrocious, or cruel aggravator

and advocated the existence of numerous, significant mitigating circumstances. Indeed, counsel

successfully persuaded the 1995 resentencing jury that imposition of the death penalty was

inappropriate punishment for Mr. Smith’s murder.

Post-conviction counsel have crafted a record in this case that enumerates what

actions trial counsel did and did not take, but the reasons therefor remain largely unclear. Merely

reconstructing counsel’s conduct is inadequate to demonstrate deficient performance. The Strickland

Court spoke in terms of reconstructing “the circumstances” of counsel’s challenged conduct, and it

admonished that an “inquiry into counsel’s conversations with the [client] may be critical to a proper

assessment of counsel’s investigation decisions.” 466 U.S. at 691, 104 S. Ct. at 2066. A similar

point was made recently in Massaro v. United States, ___ U.S. ___, 123 S. Ct. 1690 (2003), wherein

the Supreme Court held that the failure to raise an ineffective assistance claim on direct appeal does

not bar the claim in later collateral proceedings.

When an ineffective-assistance claim is brought on direct appeal,

appellate counsel and the court must proceed on a trial record not

developed precisely for the object of litigating or preserving the claim

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and thus often incomplete or inadequate for this purpose. Under

Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct.

2052 (1984), a defendant claiming ineffective counsel must show that

counsel’s actions were not supported by a reasonable strategy and that

the error was prejudicial. The evidence introduced at trial, however,

will be devoted to issues of guilt or innocence, and the resulting

record in many cases will not disclose the facts necessary to decide

either prong of the Strickland analysis. If the alleged error is one of

commission, the record may reflect the action taken by counsel but

not the reasons for it. The appellate court may have no way of

knowing whether a seemingly unusual or misguided action by counsel

had a sound strategic motive or was taken because the counsel’s

alternatives were even worse. See Guinan [v. United States, 6 F.3d

468, 473 (7th Cir. 1993)] (Easterbrook, J., concurring) (“No matter

how odd or deficient trial counsel’s performance may seem, that

lawyer may have had a reason for acting as he did. . . . Or it may turn

out that counsel’s overall performance was sufficient despite a glaring

omission . . .”). The trial record may contain no evidence of alleged

errors of omission, much less the reasons underlying them. And

evidence of alleged conflicts of interest might be found only in

attorney-client correspondence or other documents that, in the typical

criminal trial, are not introduced. . . . Without additional factual

development, moreover, an appellate court may not be able to

ascertain whether the alleged error was prejudicial.

Id. at ___, 123 S. Ct. at 1694 (citations omitted).

The petitioner did not testify in this post-conviction case, and post-conviction counsel

did not delve into the particulars of trial counsel’s conversations with the petitioner and with Roy

and Dagmar Cauthern. For example, post-conviction counsel did not press when trial counsel spoke

of relying on “information” from Roy and Dagmar Cauthern. Also, trial counsel’s statement that he

“felt comfortable” with his own investigation remained unchallenged. In our opinion, the record

before us, without more, is inadequate to support a determination that trial counsel’s investigation

was constitutionally deficient.

Regarding the mitigation case that was presented in 1995, the petitioner rebukes trial

counsel’s performance because the evidence was presented in an abbreviated, cursory form with no

elaboration about the evidence affecting the petitioner’s behavior at the crime scene and in the

following days. He also complains that trial counsel should have objected when the jury was

instructed that it could not take into account that another jury sentenced co-defendant Patterson to

life in prison. This argument largely tracks the petitioner’s primary claim that the pretrial

investigative efforts were inadequate. We are not prepared to say that trial counsel’s strategy was

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objectively unreasonable because it failed to avoid a death sentence for Mrs. Smith’s killing, and we

agree with the following assessment by the post-conviction court:

Although petitioner makes light of his trial attorney’s efforts

to save his life during the re-sentencing hearing, the Court found the

testimony and exhibits quite persuasive. Counsel effectively

presented their theory that petitioner was intoxicated, Patterson was

the older and more dominant perpetrator, petitioner did not personally

kill either victim, and Patterson, who did not receive the death

penalty, was the only person who even arguably deserved it. While

attempting not to diminish the seriousness of these offenses, counsel

then demonstrated that petitioner was having personal difficulties in

1987, but that he had become a new person following his

incarceration and could continue to contribute to society if permitted

to live. Although this attempt to secure a sentence other than death

was only partially successful, the Court declines to condemn or

second guess trial counsel merely because their strategy ultimately

failed to produce the desired result.

See generally Yarborough v. Gentry, ___ U.S. ___, 124 S. Ct. 1, 5 (2003) (“When counsel focuses

on some issues to the exclusion of others, there is a strong presumption that he did so for tactical

reasons rather than through sheer neglect.”).

In summary, the evidence fails to preponderate against the post-conviction court’s

finding that trial counsel’s investigation and representation at his 1995 resentencing trial were within

the wide range of professionally competent assistance. Thus, the petitioner has not shouldered his

legal burden to prove deficient performance as to these aspects of the legal services that were

rendered.

(ii) Prejudice

Whatever concerns might exist about the reasonableness of trial counsel’s

performance, the petitioner still must establish prejudice to prevail on a claim of ineffective

assistance of counsel. Prejudice in that context means that there is a reasonable probability that but

for counsel’s errors, the result of the proceeding would have been different. Strickland, 466 U.S. at

694, 104 S. Ct. at 2068. In Goad, our supreme court identified the following factors to consider in

assessing prejudice: (1) the nature and extent of available mitigating proof that was not presented;

(2) whether substantially similar mitigating proof was otherwise presented to the jury; and (3)

whether there was strong evidence of aggravating factors so that “the mitigating evidence would not

have affected the jury’s determination.” 938 S.W.2d at 371; see Kimmelman v. Morrison, 477 U.S.

365, 381, 106 S. Ct. 2574, 2586 (1986) (“[I]n determining the existence vel non of prejudice, the

court ‘must consider the totality of the evidence before the judge or jury.’”) (quoting Strickland, 466

U.S. at 695, 104 S. Ct. at 2069).

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Turning first to the nature and extent of available mitigating proof that was not

presented, the post-conviction court made extensive findings about the “availability” of the proffered

mitigating proof. Specifically, the post-conviction court found that background family information

was not readily available to trial counsel. From the testimony and demeanor of the petitioner’s step-

siblings, former wife, and the Popes, the court was convinced that Roy Cauthern “would have done

everything in his power to prevent witnesses from offering any testimony which did not cast Dagmar

in a favorable light” and that he would not have “permitted his children to discuss family issues with

trial counsel, an expert witness, or a jury.” As for the Popes and Bud and Melinda Cauthern, the

court did not believe that they would have assisted with the petitioner’s defense unless Roy Cauthern

had consented. According to the court, the only lay witnesses “who even arguably would have

cooperated [were] EveAnn and Lucinda.”

The post-conviction court also found that based on the close relationship that the

petitioner and his adoptive father shared, the petitioner would not have cooperated with a mental

health expert and would not have conveyed any useful information to an expert about his family

background. Furthermore, even if a mental health expert and lay witnesses had been willing and

prepared to testify, the court found it unlikely that, out of respect for his adopted father, the petitioner

would have permitted counsel to present any lay or expert testimony that reflected poorly on his

adopted mother. The post-conviction court noted that the petitioner did not testify during the post-

conviction proceedings and offered no proof that he would have permitted trial counsel to present

such testimony. The court was unimpressed that he allowed post-conviction counsel to offer the

testimony because, inter alia, Roy and Dagmar Cauthern were no longer living and because the

petitioner appeared uncomfortable while listening to the lay testimony at the post-conviction hearing,

even refusing to remain in the courtroom during the expert testimony.

Furthermore, the post-conviction court found that the petitioner is an untruthful

person who “will say whatever he deems to be in his best interest.” More pointedly, the court stated,

“[The] petitioner has repeatedly lied to the authorities, friends, acquaintances, the 1988 jury and, in

this Court’s opinion, the experts who testified during the post-conviction proceedings.” Notably,

the court’s assessment is shared by Dr. Caruso who testified that the petitioner has a history of

deceitfulness and by Dr. Spencer who testified that the petitioner “tries to present himself as he needs

to present himself at the moment” and had changed his story about the incident with Dr. Spencer.

Given the petitioner’s negligible credibility, the court was not persuaded that any statements or

information that he might have given to an expert in 1988 or 1995 would have been consistent with

what he recently related to Dr. Caruso.

The petitioner has failed to demonstrate that the evidence preponderates against these

factual findings. He argues in a conclusory fashion that the post-conviction testimony is contrary

to the court’s “speculations” that witnesses would not have testified out of loyalty to Roy and

Dagmar Cauthern. In our opinion, the post-conviction court’s interpretation of the lay witness

testimony was clearly reasonable, particularly in light of the dynamics of the Cauthern family.

Moreover, as the post-conviction court noted, Roy Cauthern testified at the penalty phase of the 1988

trial and the petitioner, himself, testified in both penalty trials. Neither man disparaged Dagmar

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Cauthern or how she treated the petitioner, and it is considerably more, not less, likely that family

members and friends would have refused an invitation to contradict the sworn testimony. See

Nichols, 90 S.W.3d at 598-99 (petitioner’s sister unwilling witness and told counsel that she would

not talk about any abuse in the family).

Notably, the petitioner does not directly attack the post-conviction court’s assessment

of his credibility and truthfulness. Instead, he argues that the evidence does not support the

conclusions that he would not have cooperated with a mental health expert, that he would have

prevented evidence about his family background from being presented, and that he would not have

conveyed the same information to an expert in 1988 or 1995 that he did to Dr. Caruso. His

arguments, however, ignore that he has the burden of proving his factual allegations by clear and

convincing evidence, which may well require that he give testimony about disputed matters. See

Tenn. Code Ann. § 40-30-110(a) (2003) (“The petitioner shall appear and give testimony at the

evidentiary hearing if such petition raises substantial questions of fact as to events in which the

petitioner participated. . . .”). Based on our review of the record, we are not prepared to discard the

lower court’s reasonable inferences regarding the petitioner’s willingness to cooperate in providing

family background information or to permit any such information to be offered as mitigation

evidence, and we will not second-guess the negative evaluation of the petitioner’s credibility.

Even if the petitioner could somehow demonstrate on appeal that the evidence

preponderates against the post-conviction court’s findings about the nature and extent of available

mitigating proof that was not presented, he must still show prejudice in terms of the noncumulative

nature of his evidence and that his mitigating evidence would have overcome evidence of

aggravating factors, thereby affecting the jury’s determination. A comparison of the mitigating

circumstances about which the 1995 resentencing jury was instructed with Dr. Caruso’s itemization

reveals some overlap in the areas of the petitioner’s intoxication at the time of the crimes, his recent

discovery of the identity of his biological mother, the more recent death of his mother, estrangement

from his biological parents, divorce, relative youth, new marriage, fatherhood, involvement with

Patterson, and prison behavior. Nonetheless, Goad speaks in terms of “substantially similar

mitigating evidence,” 938 S.W.2d at 371, and we do not believe that Cauthern’s post-conviction

evidence can fairly be characterized as cumulative.

However, Goad requires an examination whether there was strong evidence of

aggravating factors so that the mitigating evidence would not have affected the jury’s determination.

In other words, could the mitigation proof that was not presented reasonably be taken to cast the

whole case in such a different light as to undermine confidence in the death sentence returned by the

jury for the murder of Mrs. Smith? The post-conviction court held that it could not, and we agree.

First of all, it is important to bear in mind, as did the post-conviction court, that the

evidence demonstrated that Dagmar Cauthern’s abusive propensities were not uniformly distributed

among family members. For at least a five-year period prior to the Smiths’ murders, Dagmar

Cauthern was incapable of much physical violence owing to the progression of Parkinson’s Disease,

which increasingly confined her to a wheelchair. When the Popes met her in 1983 or 1984, Dagmar

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Cauthern was wheelchair-bound. The petitioner was fifteen or sixteen years old at the time. Mr.

Pope, who had contact with the petitioner three to four days a week over a three-year period,

described the petitioner as “very likeable” and as a “nice -- average kid” who exhibited no violent

tendencies.

Lucinda Miracle, the petitioner’s former wife, met Dagmar Cauthern shortly before

she and the petitioner were married in 1985. The marriage was short lived, but while it existed, the

couple resided periodically with Dagmar and Roy Cauthern. Dagmar Cauthern, although verbally

abusive, was quite frail at the time and confined for the most part to a wheelchair.

Of the step-siblings, Melinda Allen was the oldest; she was sixteen years old when

the petitioner was born, and she left home sixteen months later when the petitioner was still an

infant. From her testimony, the extent of her subsequent personal knowledge of the Cauthern

household is unclear. She referred to returning home occasionally to visit and noticing that the

petitioner had assumed the privileged child position, “the apple of [Dagmar’s] eye.”

Bud Cauthern left home when the petitioner was approximately six months old. He

spoke of returning home and staying for 60 to 90 days when the petitioner was in high school. Bud

Cauthern observed that the petitioner seemed to avoid Dagmar Cauthern as much as possible and

that the petitioner “had more freedoms” than Bud Cauthern had in his childhood. Bud Cauthern

testified in general terms that Dagmar Cauthern had kicked and hit the petitioner, but no specific

details were provided.

Eveann Palmer was the youngest step-sibling and ten years older than the petitioner.

She left home when she was eighteen years old. The petitioner, who at that time was eight years old,

was, according to Eveann Palmer, regarded as the favorite child. At subsequent unspecified times,

Eveann Palmer returned to visit the family, and she said that she noticed that Dagmar Cauthern had

begun treating the petitioner as she had the other children. However, Eveann Palmer also described

one return visit home that lasted approximately six months. The petitioner was eleven years old at

the time, and Eveann Palmer had returned to care for Dagmar Cauthern, who had pleaded with

Eveann Palmer for assistance because of her Parkinson’s Disease. Although still mean and bitter,

Dagmar Cauthern by that time evidently was not capable of inflicting physical abuse.

Even though the petitioner’s step-siblings undoubtedly endured abusive, isolated

childhoods, it is by no means obvious from the proof that the petitioner’s childhood rivaled theirs.

The evidence does not preponderate against the post-conviction court’s assessment that the petitioner

led “a charmed life in comparison to his siblings, that he wasted his opportunity to become a

productive citizen despite [his adopted father’s] attempts to foster his car-repair skills, and that he

abandoned his wife and child.” To be sure, evidence about life in the Cauthern household would

have been admissible during the penalty retrial; however, the test for prejudice in the post-

conviction, ineffective assistance context is more exacting. “[T]he quality of the proposed testimony

rather than the quantity of witnesses” determines whether prejudice has been established. Henley,

960 S.W.2d at 582.

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In our opinion, the family-history evidence is, at best, marginal in terms of

illuminating the case in such a way as to undermine confidence in the jury’s sentencing decision.

At worst, the evidence is reminiscent of the adage in Strouth v. State, 755 S.W.2d 819, 827 (Tenn.

Crim. App. 1986), that “while many people have unhappy childhoods, [few commit brutal

murders].” Inasmuch as the petitioner’s step-siblings do not manifest obvious antisocial traits or

violent tendencies, a jury reasonably could reject, or be insulted by, any suggestion that the

petitioner’s criminal actions were attributable to a disadvantaged background.

Turning next to the quality of Dr. Caruso’s diagnosis and testimony, we remain

unconvinced that the petitioner has demonstrated prejudice. As with the family background

information, we recognize that Dr. Caruso’s testimony would have qualified as admissible defense

mitigation proof. Likewise, we are mindful that the question is not which expert, Dr. Caruso or Dr.

Spencer, we might decide is more credible. Rather, the focus remains on whether the evidence not

presented undermines confidence in the death sentence because it reasonably could be taken to cast

a different light on the defendant’s culpability or worth.

The major problem in terms of prejudice is that Dr. Caruso’s psychiatric profile is

fundamentally incompatible with the existing testimony and evidence. At the post-conviction

hearings, trial counsel assessed the petitioner’s testimony at the penalty phase of the 1988 trial. In

counsel’s opinion, the petitioner did well on direct examination, but “crumbled on cross[-]”

examination. Beginning with the aggressive cross-examination by co-defendant Patterson’s counsel

and concluding with the state’s questioning, “testimonial disaster” is perhaps a more apt description.

The petitioner testified, inter alia, that he had nothing to do with Mrs. Smith’s death,

did not see Patterson kill her, and did not know how she died. The petitioner spoke about taking

drugs and claimed that, although he was not an informant, a local police officer provided him money

to purchase drugs. He denied that the drugs he was taking at the time of the murders clouded his

judgment, but he said they affected his memory. The petitioner did not think the Smiths would be

home that night because he had previously “cased the house” and knew the schedule that the couple

kept. His explanation for not leaving the house when he realized it was occupied, however, was

disjointed and nonsensical. Other answers he gave were evasive and nonresponsive, and his

recollection of events was incomplete.

In one of his previous confessions given to law enforcement authorities, the petitioner

claimed that Mrs. Smith had talked to him about getting rid of her husband. He continued to

maintain at the sentencing trial that the conversation occurred. He also told the police that he had

been having a sexual relationship with Mrs. Smith. During his testimony, the following exchange

occurred:

Q Now, I assume from your testimony this afternoon, that when

you told the officers that you were having a sexual relationship with

Rosemary Smith, that that was a lie, is that right?

-37-

A No, sir.

Q Sir?

A Not completely.

Q Will you tell me then why it is not completely a lie?

A She had called up where I had lived before and asked me out

to dinner and it had been on the occasion of where I had stopped one

time for her and got her car running for her again and she went home.

....

Q Why did you tell the authorities in your statement of January

13th that you had gone out to a gravel road and that you had had sex

with her in the Mercedes, why did you tell the officers that?

A I believe I was lying to cover for myself.

Regardless of any prior relationship, the petitioner did claim both in his police statements and in his

penalty phase testimony that he did not rape Mrs. Smith; rather, he claimed that she voluntarily

removed her clothes and did not resist sexual contact with him.

As for other incriminating information given to the police that he claimed was false,

the petitioner attributed his statements to volunteering what he thought the police wanted to hear.

Regarding one of the officers he was trying to please, the petitioner described the man as “a little

perverted.” According to the petitioner, that officer wanted the petitioner to “gas it up just a little

bit” when he gave his statement.

Without further belaboring the point, we think it evident that the petitioner’s

testimony in his 1988 trial was not well received by the jury. The jury’s verdict in 1995 reinforces

that conclusion. Although the petitioner testified at the 1995 resentencing trial, his testimony was

limited to personal background information. He did not testify about the murders, and the state was

not permitted to cross-examine him about his homicide-related activities. The state elected not to

question him at all about the other information. The jury, in turn, saw fit to impose a sentence of life

imprisonment for Mr. Smith’s homicide.

The quality of Dr. Caruso’s testimony, diagnosis, and opinions cannot be evaluated

in isolation or in a vacuum. In his report, Dr. Caruso reconstructed the events on the evening of the

murders, based on his interviews with the petitioner, in the following fashion:

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On the night of the offense, Cauthern and Patterson first planned to

steal money from the trunk of Charles Hand’s car at Cauthern’s

suggestion. However, when they went by Hand’s house, they were

foiled without even attempting the robbery. Cauthern could not recall

whether Hand’s car was not there or whether they had learned that

Hand had removed the money from his trunk.

Cauthern perceived that Patterson was angry with him and sought to

salvage his standing with Patterson by suggesting that they burglarize

the home of Patrick and Rosemary Smith, whom Cauthern believed

to be doctors at Blanchfield Army Community Hospital at Ft.

Campbell, Ky. Cauthern had previously worked on the Smiths’ cars.

Although it has been suggested that Cauthern viewed the Smiths as

his friends, Cauthern actually felt that the Smiths looked down on

him, as if he was “the help.”

Cauthern believed that the Smiths would not be home and told

Patterson such. Cauthern believed that they could easily pick up a

few thousand from the burglary. Cauthern and Patterson drove to the

Smiths’ home in a Camaro Z-28 and pulled in behind the house.

Noting that the eight cylinder Camaro was quite loud, Cauthern and

Patterson both remarked in separate statements that they believed that

the Smiths must not have been home if they did not awaken when

Cauthern and Patterson pulled into the yard.

Patterson and Cauthern got out of the Camaro wearing dark clothes,

gloves, and masks. Patterson was carrying a .45 cal. pistol, and

Cauthern was carrying a .38 cal. pistol. Patterson tried to kick the

back door in but failed. Cauthern cut the phone lines, reasoning that

if the Smiths somehow were home, that he and Patterson could get

away if the Smiths could not call the police.

Cauthern broke in the back window with a hammer, and Cauthern

and Patterson entered the house. Cauthern stated that he was certain

that the Smiths were not home at that point, as he could not conceive

of how they could sleep through that much noise. Cauthern and

Patterson began searching the first floor of the house for valuable

items to steal but came up with little other than a VCR. Cauthern

then proceeded up the stairs, looking for money or other valuables.

After reaching the top of the stairs, Cauthern fell, dropping the

hammer that he was carrying. This appears to be supported by the

crime scene photos, which show a hammer just beyond the doorway

-39-

of a room at the top of the stairs. (Cauthern claimed that he had

brought the hammer to the crime scene and kept it with him in order

to prevent leaving the hammer at the crime scene.). When Cauthern

fell to the floor, he became aware of a smell in the home like his

childhood home in Dickson. Cauthern then suffered a flashback to

a time in his childhood home in Dickson when he had tripped over a

vacuum cleaner when walking in the dark. At that time, Dagmar

Cauthern had heard him fall and came to find that he had broken an

attachment to the vacuum cleaner. Dagmar Cauthern had beaten him

at that time, striking him in the head and between the eyes, making

his eyes tear. She apparently had believed that he was crying and beat

him more severely.

At the crime scene, Cauthern was dazed and stumbled to his feet. He

could not recall clearly what had happened next, but recalled feeling

that he had been hit between the eyes and was “seeing black.”

Cauthern could not recall whether his fall had awakened Patrick

Smith and Smith had struck Cauthern (which would be suggested by

Patterson’s statement that Cauthern had preceded him up the stairs

and got into a struggle with Smith) or whether Cauthern had merely

hit his nose in the course of the fall.

Cauthern recalled feeling enraged, frightened, and vulnerable.

Cauthern recalled that Patterson subdued Smith and that Cauthern had

led Rosemary Smith from the room. Cauthern sensed that Rosemary

Smith was feeling contempt for him, “looking down her nose at

(him).” He also noted that she was wearing a long white nightgown,

“the kind Dagmar always wore.” This only added to his feelings of

rage. Cauthern tore her nightgown off, pushed her down and raped

her.

Upon later questioning, Cauthern identified a number of Rosemary

Smith’s qualities that seemed to recall Dagmar Cauthern. Cauthern

had apparently learned from Patrick Smith that Rosemary controlled

the purse strings, limiting what Patrick could spend on their vehicles

at any one time. Cauthern in fact recalled witnessing Rosemary

Smith angrily berating Patrick Smith about his expenditures, much as

Dagmar used to berate Roy Cauthern, Sr. Cauthern did not appear to

have made this association prior to being questioned more closely

about it.

-40-

Cauthern was asked directly if he saw Dagmar’s face when he raped

Rosemary Smith, but he denied it. He stated now that he wished it

was Dagmar, but at the time he “only saw black and felt rage.”

After Cauthern raped Rosemary Smith, he tried to strangle her with

his hands but was unable to kill her. Patterson came in and strangled

her using a scarf and a vase. Cauthern believed that Patterson raped

her before killing her but stated that he was unsure, as he had

difficulty recalling what had happened next. He stated that many of

his recollections of that night have an unreal, movie-like quality to

them. He recalled being downstairs and leaving carrying some items,

but did not remember whether he had gathered them. He believes

that Patterson had taken things that belonged to Patrick Smith, while

he took things that belonged to Rosemary Smith, but stated that he

could not be sure. He could not recall whether he drank a wine cooler

but believed that Patterson may have.

Had Dr. Caruso’s information been presented to the jury during the 1995 resentencing

trial, the petitioner’s sworn testimony from the penalty phase of his 1988 trial would have become

a legitimate and proper subject for inquiry. Doctor Caruso’s mitigation-related evidence, in other

words, would have inevitably opened up what trial counsel successfully suppressed in 1995: the

petitioner’s self-destructive cross-examination testimony from 1988. Even worse -- although

unavoidable -- Dr. Caruso’s explanation for the petitioner’s actions on the evening of the murders

relies on the petitioner’s account to Dr. Caruso of what happened, which is inconsistent in many

important respects with his confessions and earlier testimony.

The following represents a partial summary of the numerous inconsistencies noted

by the post-conviction court:

• The petitioner had previously testified that the Smiths had

been good to him and were friendly. Doctor Caruso’s report

recites that the petitioner actually felt that the Smiths “looked

down on him, as if he was ‘the help.’”

• In his report, Dr. Caruso speculates that Mr. Smith may have

struck the petitioner when the petitioner was on the stairs.

This theory is inconsistent with both Patterson’s and the

petitioner’s testimony in 1988 and the physical evidence at

the crime scene.

• According to Dr. Caruso’s theory, the petitioner fell at the top

of the staircase in the residence, may have hit his head, had a

flashback to his childhood, and raped and tried to strangle

-41-

Mrs. Smith in a confused state and/or uncontrollable rage.

None of the petitioner’s previous accounts of the events of

that evening is consistent with this theory.

• Doctor Caruso’s report relates the petitioner’s claim that he

“only saw black and felt rage” when he attacked Mrs. Smith.

This claim is inconsistent with every other account of the

incident, including the petitioner’s statement to Dr. Spencer

that he wanted to help Mrs. Smith but that he was acting

pursuant to Patterson’s direction.

• The “flashback/rage/lack of control theory” is belied by the

petitioner’s post-offense behavior wherein he bragged about

his conduct, sold some of the stolen property, gave Mrs.

Smith’s jewelry to his ex-girlfriend, and seemed happy.

After careful consideration, we are persuaded, as was the post-conviction court, that

Dr. Caruso’s psychiatric profile, built on the petitioner’s most recent account of events, would have

been antagonistic to the partially successful efforts of trial counsel in 1995 to save the petitioner’s

life. For instance, presenting to the jury that the petitioner viewed the Smiths as looking down on

him as if he were “the help,” would not have engendered any sympathy from the jury; indeed, it

would have permitted the state to show that the petitioner previously had attempted to convince the

police that he was involved in a sexual relationship with Mrs. Smith and that she had solicited him

to get rid of her husband. The post-conviction court made a specific finding in this regard that Dr.

Caruso’s testimony “would have angered the jurors and diminished the effectiveness of other

mitigation proof” presented by trial counsel. The post-conviction court made this finding in the

course of discharging its duty to “consider the quality of the proposed testimony,” Henley, 960

S.W.2d at 582, and because the lower court made this finding after hearing Dr. Caruso testify, we

defer to the court’s assessment of the proposed testimony. Also, “[t]his court has previously

recognized that [mitigating] proof [of a defendant’s emotional or mental problems] may have

doubtful effect in ‘lessening [a defendant’s] culpability in the eyes of the jury.’” Michael Lee

McCormick v. State, No. 03C01-9802-CR-00052, slip op. at 23 (Tenn. Crim. App., Knoxville, June

17, 1999) (quoting Harries v. State, 958 S.W.2d 799, 807 (Tenn. Crim. App. 1997)).

The petitioner’s newest version of events, related to Dr. Caruso, serves foremost to

showcase the petitioner’s untruthfulness and manipulative tendencies, which have not been

ameliorated by his prolonged incarceration. Furthermore, although Dr. Caruso labored mightily to

draw a specific connection between Dagmar Cauthern and the petitioner’s sexual, homicidal attack

on Mrs. Smith, his efforts were largely undercut by the petitioner’s own denial that he saw Dagmar

Cauthern’s face when he raped Mrs. Smith -- a denial that the petitioner repeated when he was

examined by Dr. Spencer. Thus, we are unpersuaded that, had Dr. Caruso’s or similar testimony

been offered at the 1995 resentencing trial, the result would have been more favorable to the

petitioner.

-42-

Even if Dr. Caruso’s testimony would have made a positive contribution to the

petitioner’s mitigation case -- a position that we by no means endorse -- the petitioner must still

establish that the aggravating factor was not so strong as to overcome the effect that the mitigation

evidence would have had on the jury deliberations. See Goad, 938 S.W.2d at 371. We begin with

the circumstances surrounding Mrs. Smith’s murder, which abundantly support the “especially

heinous, atrocious, or cruel” aggravating circumstance. On appeal from the petitioner’s 1995

resentencing trial, our court detailed at length the sufficiency of the evidence on this point.

The [petitioner] argues that the evidence implying that the

victim lost consciousness as early as thirty seconds into the ordeal is

insufficient to support a finding of the sole aggravating circumstance.

...

....

As the State asserts, Mrs. Smith suffered mental torture when

she was forcibly removed from her bed while screaming in the middle

of the night, hidden in a closet while her husband was dead or dying,

and subsequently raped. The evidence, though not directly showing

that Mrs. Smith knew the exact fate of her spouse, supports the strong

assumption that she heard what was happening and knew her husband

was in dire circumstances. The video shown to the jury clearly

depicts that a profound struggle occurred between the assailants and

Mr. Smith; the bed covers were strewn about the room, Mr. Smith

was kneeling against the bed, fingernail scratch marks were found on

his neck, and the bed frame was broken away from the headboard and

the mattress was lying on the floor. In his statement to the police, the

[petitioner] said that as Patterson left the master bedroom after killing

Mr. Smith, he grabbed Mrs. Smith as she was coming back down the

hallway. The jury could easily have concluded that she was going to

check on her husband after she heard the struggle.

It clearly appears from the record that the strangulation

occurred after the rapes and while the victim was conscious. Even

though [State v.] Odom[, 928 S.W.2d 18 (Tenn. 1996),] states that

rape does not ordinarily constitute torture or serious physical abuse,

we find that the facts of the case sub judice more distinctly

demonstrate their existence. In Odom, the victim was raped once.

Here, the victim was raped twice, and by two different individuals.

Moreover, the rapes were not committed upon the initial criminal

confrontation. In Odom, the rape ensued almost immediately after the

victim was accosted. Mrs. Smith was not raped until after she was

placed in a closet where she apparently heard the attack on her

-43-

husband. And after the rapes occurred, the assailants further tortured

and ridiculed Mrs. Smith by pouring two bottles of wine coolers over

her naked body.

Mrs. Smith remained conscious for at least thirty seconds

while she was being strangled after she had been twice raped. The

abrasions on her neck indicate that she tried, unsuccessfully, to

release the pressure from around her neck. Although Dr. Harlan

testified that he was uncertain from the medical evidence whether a

break occurred in the strangulation process, other testimony suggests

that when the initial attempt to strangle proved futile, an apparent

second, more successful, attempt to strangle Mrs. Smith was made

using a tourniquet device. As Joseph Denning testified, the

[petitioner] told him he made the first attempt to strangle Mrs. Smith.

According to Denning’s testimony, the [petitioner] lacked the

strength to kill her, so Patterson had to complete the act using the

vase in the scarf. The abrasions on Mrs. Smith’s neck indicate that

she was conscious during a portion of the struggle. It appears from

the record that Mrs. Smith was forced to endure not only the severe

physical pain of the strangulation, but the grueling mental pain as

well of not knowing when and if the assailants would continue what

probably appeared to her as repeated acts of strangulation and torture.

. . . [W]e believe that the strangulation, combined with the

two rapes and the evidence surrounding this entire criminal episode,

does support the jury’s finding of the especially heinous, atrocious,

or cruel aggravating circumstance in this case.

....

Even though there is some testimony which suggests that

Patterson was the one who ultimately strangled Mrs. Smith to death,

the testimony also shows that the [petitioner] attempted to strangle

the victim but simply did not have enough strength to bring the task

to the intended conclusion. This does not substantially reduce his

culpability.

Cauthern, No. 02C01-9506-CC-00164, slip op. at 11-13. Although delving into fewer factual

details, the Tennessee Supreme Court also held that the evidence was sufficient to support the

aggravating circumstance and to support a finding that the aggravating circumstance outweighed the

mitigating circumstances presented to the jury. See Cauthern, 967 S.W.2d at 732-34.

-44-

At the 1995 resentencing trial, the jury concluded that the state had not proven beyond

a reasonable doubt the “especially heinous, atrocious, or cruel” aggravating circumstance as related

to Mr. Smith’s murder, and it is reasonable to conclude that the features distinguishing Mrs. Smith’s

murder for the jury were the multiple rapes while she was still conscious, the multiple strangulation

attempts that required considerably more force than applied to Mr. Smith, and her awareness of what

was happening to her husband. We are confident that none of the mitigating evidence that might

have been presented would have detracted substantially from the disturbing and gruesome

circumstances of Mrs. Smith’s murder. At best, such evidence would have fractured the defense

strategy at resentencing to portray Patterson as being more culpable5 and to show favorable aspects

of the petitioner’s life, both prior to and following the homicides, leaving the jury with a morass of

conflicting lies that the petitioner had been telling since 1987 and various, tenuous excuses for his

actions.

Therefore, in light of all the circumstances of this case, we conclude that the

petitioner has not demonstrated deficient performance by trial counsel in connection with the

investigation and presentation of mitigation evidence and, moreover, has not shown a reasonable

probability that the result of the 1995 trial would have been different.

B. Investigation of Patterson’s Background

The petitioner next registers a hodgepodge of complaints about trial counsel’s

performance relative to the co-defendant, Brett Patterson.6 The petitioner argues that trial counsel

did not adequately develop the theory that Patterson was the primary actor who dominated the scene

of the crime; as support, he points to the death penalty verdicts in his 1988 trial and the subsequent

single death penalty verdict in his 1995 resentencing trial. That argument, of course, is legally

insufficient. See Goad, 938 S.W.2d at 369 (“The fact that a particular strategy or tactic failed or hurt

the defense, does not, standing alone, establish unreasonable representation.”); Spadafina v. State,

77 S.W.3d 198, 207 (Tenn. Crim. App. 2000).

The petitioner charges that had trial counsel investigated Patterson’s background,

counsel would have discovered that Patterson was a suspect in the strangulation death of a woman

in New Mexico. The petitioner, however, fails to explain why trial counsel should have set out on

such a course of investigation prior to his 1988 trial or even how such information relating to an

unsolved homicide would have been uncovered. The petitioner has offered no evidence of deficient

5

According to Dr. Caruso’s construct, the petitioner raped and strangled Mrs. Smith because he had a flashback

that propelled him into unmanageable rage. This theory seems inconsistent with the proposition that the petitioner was

acting under the substantial domination of Patterson.

6

In its written Order, the post-conviction court dealt at length with the petitioner’s complaint that trial counsel

was ineffective for failing to seek a severance from Patterson before the 1988 trial. On appeal, severance is mentioned

briefly and only in passing by the petitioner. W e discern no reason to belabor the severance question; suffice it to say

that we agree with the post-conviction court that according to trial counsel’s testimony, the decision to pursue a joint trial

was “a well-informed strategic decision,” which is not amenable to attack as being professionally unreasonable.

-45-

performance on this point in connection with his 1988 trial. Furthermore, as the post-conviction

court noted, assuming the evidence could be categorized as relevant for some non-propensity

purpose, the petitioner has not shown by clear and convincing evidence that Patterson actually

committed the offense. The failure to establish a proper foundation would have resulted in the

exclusion of the evidence.7

The petitioner then shifts to his 1995 resentencing trial. By that time, the petitioner

claims, Patterson’s suspected involvement in the New Mexico homicide was known through other

proceedings. The petitioner criticizes counsel for not independently investigating “this startling

information” once it came to light, but there appears to be little to investigate. The testimony of the

New Mexico law enforcement officers at the post-conviction hearing was not particularly revealing

or useful beyond the initial proposition that Patterson was a suspect.

The petitioner speculates that with the New Mexico information, his trial counsel

need not have felt threatened by what Patterson might say if called to testify at the 1995 resentencing

trial. The petitioner opines that “if the defense had done its homework,” Patterson could have been

neutralized as a witness, leaving the petitioner free to give his version of the events of the crime.

This line of attack on counsel’s performance is precisely the type of second guessing that Strickland

soundly condemns. In addition, it is axiomatic that “[w]hen a petitioner contends that trial counsel

failed to discover, interview, or present witnesses in support of his defense, these witnesses should

be presented by the petitioner at the evidentiary hearing.” Black, 794 S.W.2d at 757. A petitioner

is not entitled to relief on this ground “unless he can produce a material witness who (a) could have

been found by a reasonable investigation and (b) would have testified favorably in support of his

defense if called.” Id. at 758. The petitioner did not present Patterson at the post-conviction

hearings, and for this additional reason, his claim fails.

C. Cross-examination of State Witness James Andrew

James Andrew, who knew both the petitioner and Patterson, testified for the state at

the petitioner’s 1988 trial and the 1995 resentencing trial. Andrew related incriminating statements

and admissions that the petitioner made to him about the petitioner’s and Patterson’s involvement

in the Smiths’ murders.

. . . James Phillip Andrew testified [at both trials] that he was

with the defendant, Ronnie Cauthern, and Brett Patterson shortly after

the offenses. While watching television, they all saw an account of

the Smiths’ murders in which a reward was offered for information.

Cauthern told Andrew that he had worked for the Smiths in the past

and that he broke into their home and made the woman get into the

7

Tennessee Evidence Rule 404(b), regarding the admission of evidence of other crimes, wrongs or acts, did

not become effective until 1990. Nevertheless, at the time of the petitioner’s 1988 trial, the same foundational

requirements applied pursuant to the supreme court’s decision in State v. Parton, 694 S.W .2d 299 (Tenn. 1985).

-46-

closet, while he and Patterson strangled the man. Cauthern told

Andrew that he raped the woman once and that he had stolen a

wedding ring, a VCR, and some credit cards. Andrew testified that

Cauthern seemed proud of what he had done, and that he threatened

to kill Andrew if he repeated anything about the murders.

Cauthern, 967 S.W.2d at 730.

As part of the petitioner’s bid for post-conviction relief, he claims that trial counsel’s

“tepid questioning” of Andrew at both trials constituted deficient, prejudicial performance. The

petitioner insists that trial counsel should have mounted a “hard hitting” cross-examination attacking

Andrew’s sobriety and motive to fabricate the petitioner’s incriminating statements.8

Andrew did not testify at the post-conviction hearing, but the parties entered into and

submitted a written stipulation regarding what Andrew’s testimony would have been. According to

the stipulation, Andrew would have said that he was never interviewed by the petitioner’s trial

counsel. The post-conviction court, however, credited the live testimony of trial counsel who

asserted that he had interviewed Andrew prior to the 1988 trial, which was corroborated by a file

memorandum of trial counsel noting a February 11, 1988 conference with Andrew.

As for the quality of trial counsel’s cross-examination, the post-conviction court

found, with one exception, that the scope of examination was a trial tactic based on reluctance to ask

Andrew, who was “odd and unpredictable,” too many questions. The exception was compensation

that Andrew had received or hoped to receive in return for his assistance to the police, about which

trial counsel claimed to be ignorant. The post-conviction court found that trial counsel should have

known about the compensation because it was publicized in a local newspaper article, a copy of

which was in trial counsel’s file. We find no basis to disturb the post-conviction court’s assessment

of counsel’s performance.

Nor do we discern any basis to displace the post-conviction court’s conclusion that

even if counsel’s cross-examination was deficient, the petitioner has not demonstrated the requisite

prejudice. Abundant evidence, aside from Andrew’s testimony, supported the petitioner’s dual

homicide convictions from his 1988 trial. Furthermore, Andrew’s resentencing trial testimony was

halting and somewhat vague. Indeed, at one point during Andrew’s direct examination, the trial

court interrupted to inquire, “General, does he have anything relevant to say about this case?”

Andrew did testify that the petitioner related that he and Patterson had attacked Mr. Smith and

strangled him to death, but the jury obviously did not find that testimony adequate to support the

death penalty for Mr. Smith’s homicide. Andrew’s testimony about the petitioner’s involvement in

8

In connection with this issue, post-conviction counsel make passing reference to a police report containing

useful information that could have been deployed to impeach Andrew. W e do not understand the petitioner to be arguing

that trial counsel was ineffective for failing to discover the report; rather, in a different post-conviction claim, which we

will subsequently discuss, the petitioner argues that the report contained constitutionally exculpatory evidence that the

state withheld from trial counsel.

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Mrs. Smith’s death was even less specific; Andrew merely testified that the petitioner said that he

took Mrs. Smith out of the closet and raped her.

Accordingly, this claim does not warrant post-conviction relief.

D. Testimony Inconsistent with Forensic Evidence

The petitioner registers a separate complaint in his appellate brief that there is no

forensic support for the notion that a wine cooler was poured over the body of Rosemary Smith. As

framed, this complaint does not merit post-conviction consideration, and absent an explanation why

this ground was not previously presented in any earlier proceeding, we regard it as waived. See

Tenn. Code Ann.§ 40-30-104(e) (2003). Furthermore, to the extent that the petitioner is attempting

to assert an ineffective assistance of counsel claim, his cursory statement that counsel abandoned

their duty to challenge the state’s case is wholly insufficient to merit post-conviction relief.

E. The Petitioner’s German Citizenry and the Vienna Convention on Consular Relations

The petitioner next claims that trial counsel was ineffective in failing to discover his

German ancestry and failing to inform him of his rights under the Vienna Convention on Consular

Relations, Apr. 24, 1963, 21 U.S.T. 77, T.I.A.S. No. 6820, 1969 WL 97928. Much of this argument

duplicates the petitioner’s broader allegation that trial counsel did not adequately investigate his

background, thereby prejudicially denying the petitioner the benefit of legal services and assistance

from the German government. At a later point in his appellate brief, the petitioner also

independently alleges that following his arrest, he was entitled to certain international rights and

privileges secured by the Vienna Convention that were not, in fact, respected, thereby entitling him

to post-conviction relief. Inasmuch as both issues require an in-depth examination of the Vienna

Convention on Consular Relations, we defer our discussion of counsel’s claimed ineffectiveness

until we address the substantive aspects of the Vienna Convention later in this opinion.

EXCULPATORY EVIDENCE

The petitioner asserts that his constitutional due process rights were violated by the

state’s suppression of exculpatory evidence involving James Andrew, who testified for the state in

both the 1998 trial and the 1995 resentencing trial. Andrew related various incriminating statements

made by the petitioner that implicated the petitioner in the homicides. Naturally, Andrew’s

credibility was an item of concern to the petitioner.

The first item of evidence to which the petitioner points is a police report dated

January 23, 1987, prepared by Detective R.J. DiFiore, which recites in part:

Mr. Andrew said that on the night of the 19th Eric Barbee came to his

home . . . and wanted Mr. Andrew to tell Patterson’s lawyer that

Patterson had stayed in the car while Ronnie did the murders and that

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on the night of the armed robbery, he had not seen Patterson and

Ronnie together.

Patterson and Barbee were friends, and Barbee’s visit to Andrew occurred while the

petitioner and Patterson were detained in jail awaiting trial. The petitioner interprets the report as

showing that Patterson used his friend, Barbee, to try to influence or intimate Andrew into changing

his story. The petitioner concedes that the impact of Barbee’s attempt remains unknown.

The second item of evidence was information possessed by the state that Andrew had

contacted the police and made a statement in expectation of a $5,000 reward. The third item was

information that Andrew’s vehicle had been vandalized by an unknown individual after the petitioner

had been arrested. Regarding the last two items, the parties entered into a written stipulation at the

post-conviction hearing that if Andrew were called to testify, he would relate the following:

a. He is the same James Andrew who testified for the State in

the 1988 trial of Ronnie Cauthern and Brett Patterson, and the

1995 resentencing of Ronnie Cauthern.

b. Prior to calling Lt. David Baize to provide information

concerning the deaths of Rose Mary [sic] and Patrick Smith,

he heard on television that there would be a reward of $5000

for information leading to the arrest and conviction of the

person or persons responsible for their deaths.

c. On the Monday following the Sunday news report in which he

learned of the reward, he called and spoke to Lt. David Baize

and stated that he was calling abut the Smith murders and

asked about the reward. He informed Baize that he would

need the reward to get out of the area if he told the police

what he knew. Baize told him to come in and tell them what

he knew and that he would take care of it.

d. He met with Lt. Baize and Assistant District Attorney Wade

Bobo, approximately every day for the first week.

Subsequently, he met with them several times before the 1988

trial. Each time he asked about the reward, Lt. Baize told him

not to worry about it, that he should worry about the big

This text is long and has been trimmed here. Open the source document for the complete record.