Johnson v. State

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

June 24, 2003 Session

HARRY DAVID JOHNSON v. STATE OF TENNESSEE

Direct Appeal from the Criminal Court for Sullivan County

No. C45,577 R. Jerry Beck, Judge

No. E2002-01949-CCA-R3-PC

January 15, 2004

The petitioner, Harry David Johnson, was convicted in the Sullivan County Criminal Court of the

first degree murder of his wife, Katherine Trotter Johnson, and he received a sentence of life

imprisonment. Subsequently, the petitioner filed for post-conviction relief, alleging that he did not

receive effective assistance of counsel during his trial. The post-conviction court held an evidentiary

hearing, ultimately determining that the petitioner had failed to prove by clear and convincing

evidence that trial counsel was ineffective. The petitioner timely appealed this ruling. Upon review

of the record and the parties’ briefs, we reverse the judgment of the post-conviction court and

remand for a new trial.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court is Reversed and

Remanded.

NORMA MCGEE OGLE , J., delivered the opinion of the court, in which GARY R. WADE, P.J., and

DAVID H. WELLES, J., joined.

W. Thomas Dillard and Charles W. B. Fels (on appeal and at trial); and Jeanne Wiggins (at trial),

Knoxville, Tennessee, for the appellant, Harry David Johnson.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General;

H. Greeley Wells, Jr., District Attorney General; and Joseph Eugene Perrin and Teresa Murray-

Smith, Assistant District Attorneys General, for the appellee, State of Tennessee.

OPINION

I. Factual Background

A. Trial

The petitioner was charged with the first degree murder of his wife.1 The offense occurred

on June 21, 1995. From the inception of the charges, the petitioner was represented by attorneys

Robert Chad Newton and Paul Raymond Wohlford. Due to publicity surrounding the petitioner’s

trial, the jury was selected from Hamblen County and brought to Sullivan County. To assist in

selecting the Hamblen County jury, Newton and Wohlford associated Gary E. Brewer, a Hamblen

County attorney.

Brewer conducted the voir dire of the jury on May 9, 1997. During the voir dire, Brewer

repeatedly told potential jurors that they would hear testimony at trial from psychiatrists or

psychologists concerning the petitioner’s depression, suicidal ideations, and family history of both

conditions. Additionally, Brewer advised the jury that they would hear evidence concerning

alcoholism and alcohol abuse by both the petitioner and the victim. Specifically, Brewer stated:

We’re talking about another problem; not only alcoholism, but a

family trait on [the petitioner’s] father’s side of clinical depression

and suicide.

....

You will hear proof incident with these, the better part of what we’re

talking about, the clinical depression involving suicide. All on [the

petitioner’s] father’s side. [The petitioner’s] grandfather committed

suicide. His brother, who was a professor of biology at East

Tennessee State University, committed suicide. His brother had been

diagnosed with clinical depression. And you will hear testimony that

[the petitioner] suffers from depression. You will hear testimony in

this case concerning the mind. You will hear psychologists testify.

In sum, Brewer contended, “This case is about alcohol abuse and alcoholism and it’s about clinical

depression and suicide.”

After jury selection, the trial commenced on May 12, 1997. During opening statement, the

prosecution indicated that defense experts would testify regarding the petitioner’s state of mind at

the time of the offense, specifically mentioning clinical depression and suicide. Brewer gave the

opening statement for the defense. In his statement, Brewer advised the jury that despite her

participation in several alcohol treatment programs, the victim was unable to conquer her addiction

to alcohol. Following these failures, the petitioner became depressed. Brewer also noted that the

petitioner had a family history of suicide and depression, specifically stating:

As I told you Friday in Morristown this is a case about a good family

that has been plagued by alcoholism and alcohol abuse.

1

Throughout this opinion, it will be necessary for this court to refer to individuals possessing the same

surname, name ly the daughters of the petitioner and the victim, Arin Johnson and Whitney Johnson. To reduce

confusion, we will refer to these individuals by their first names. We intend no disrespect to these individuals.

-2-

....

[T]he only thing [the petitioner] thought he could do was just – just

to go ahead and kill himself. And I told you in Morristown on Friday

there’s a history of the family with suicide. His granddaddy killed

himself. His brother, who was a professor over at E.T.S.U. in biology

killed himself. His brother down in Atlanta has depression and takes

depression medication.

Brewer conceded that the petitioner shot the victim in the face, remarking that “there’s no

question about that.” However, Brewer pled with the jury to try to understand the appellant’s “Hell.”

Brewer contended that the petitioner did not have the requisite mental state to have killed the victim

with premeditation and deliberation, and thus, he could not be guilty of first degree murder.2

The following facts are taken from this court’s opinion on direct appeal:

The [petitioner] and the victim lived in an A-frame residence

in a lake community on Friendship Road in Sullivan County. The

[petitioner] is a pharmacist. The couple had two daughters, Whitney

Johnson and Arin Bence Johnson, ages 20 and 22, respectively, at the

time of trial. By all accounts in the proof, the victim suffered from

chronic alcoholism and was given to bouts of intoxication despite

several efforts to control her disease through rehabilitation. She was

extremely intoxicated at the time of her death.

Arin . . . testified for the defense that on June 21, 1995, the

[petitioner] came home and had some words with the victim in the

kitchen, which is located on the middle floor of the three-level home.

The [petitioner] then went to the lower level and began folding

blankets where he had been sleeping since “assault charges” were

filed. Arin . . . testified the [petitioner] did not look like himself. His

eyes looked “black,” and he seemed sad, cold, distant, and depressed.

His chin quivered. She had never seen him in that condition before.

However, when she left to return to afternoon classes, the household

was calm and there was no reason for alarm.

Later in the afternoon of June 21, Whitney . . . went to the

residence of her boyfriend, Bradley Jason Fields, and called home to

2

At the time of the sh ooting dea th of the victim, first degree murder was defined as the “intentional,

premeditated and deliberate killing of another.” See Tenn. Cod e Ann. § 39-13-202 (a)(1) (1991). Shortly after the instant

offense, the statute w as changed , deleting the req uirement of deliberation. See Tenn. Code Ann. § 39-13-202(a)(1)

(1995).

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tell her father that she was going to a meeting. She became upset

when the [petitioner] hung up on her. Because she was worried, she

asked Fields’s mother and sister to drive her home. When she arrived

at the Johnson residence a half hour later, she found a note affixed to

the door of the house, although she did not read it at that time. She

was concerned about the welfare of the [petitioner], went to look for

him, and found him at the rear of the house seated in a swing with a

shotgun propped up against a tree nearby. She testified the

[petitioner] “wasn't the person that I knew.” The [petitioner] told her

that had she not called earlier, she would have found him dead. They

sat in the swing and talked for about 30 minutes. Bradley Jason Fields

arrived and entered the Johnson home. Whitney . . . joined him in the

kitchen, and they began to make some tea. When they discovered

they were out of sugar, the [petitioner] drove to a store to buy sugar.

When he returned, Whitney . . . made tea, and she and Fields went to

her bedroom to watch television. The [petitioner] was in the lower

level of the house.

Sometime later the [petitioner] went from the lower level to

the third floor where the victim’s bedroom was located. Whitney . .

. heard “a thunk” and went upstairs to see what happened. The victim

was sitting on the bedroom floor, and the [petitioner] was sitting on

the edge of the bed. The victim was “snarling” at the [petitioner] who

had the “look of a black hole type person.” The [petitioner] became

enraged. He “smacked” the victim and said he was going to shoot

her. He left the room very quickly and went downstairs. As he came

back very quickly from the lower level with the shotgun, Whitney .

. . met him and tried to get the gun away from him. She testified the

[petitioner] was “screaming, out of control.” He loaded the gun and

ran upstairs to the third-floor bedroom where the victim had

remained. Whitney . . . testified that only seconds elapsed between

the [petitioner] running upstairs and the firing of a shot.

Bradley Jason Fields . . . testified for the state [regarding] the

June 21 events. He stated that the victim was intoxicated and, in his

opinion, could not walk. He testified that after the [petitioner]

returned from his errand in his car, the [petitioner] played with the

family dogs for several minutes and seemed calm. However, later the

[petitioner] went upstairs and threatened to kill the victim. The

[petitioner] come down the stairs, passed Fields in the kitchen area,

and proceeded to the lower level to the gun cabinet. Fields followed

him down the stairs, and the [petitioner] said, “I was going to kill that

bitch.” The [petitioner] obtained the shotgun and the box of shells

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and rambled about the victim not getting his money and that he was

going to kill her. Fields tried to stop him, and the [petitioner] ordered

Fields out of the way. Frightened, Fields stepped back, allowing the

[petitioner] to go upstairs. Fields went to the second floor and

watched and heard the confrontation from the kitchen-great room

area. The bedroom opened onto a balcony which was visible through

an atrium from the second-floor kitchen-great room area. Fields

testified that the [petitioner] pulled the victim off the bed onto the

floor, pointed the gun at her, and told her he was going to kill her.

The [petitioner] told the victim she was not going to get his money

and that he was tired of living the way he had been. Fields pleaded

with him not to kill the victim. He described the [petitioner] looking

at him and saying that he had to do what he had to do. During this

time, the victim was hollering Fields’s name. This situation

continued for about five minutes before the [petitioner] fired the fatal

shot and came running downstairs. When the [petitioner] reached the

kitchen level, he began looking for the shells which Fields had hidden

under a pillow. The [petitioner] stated “I killed her,” laid the gun on

a couch on the lower level, and left the house.

Fields went upstairs and discovered the victim had been shot

in the head. The [petitioner] drove off in his automobile but returned

to the home a few minutes later at the same time the first law

enforcement officer arrived. This officer arrested the [petitioner] and

described the [petitioner] as merely standing in the driveway, not

crying or shaking. The officer, whose weapon was drawn, three times

ordered the [petitioner] to raise his hands before the [petitioner]

complied. The [petitioner] spoke only to ask the officer if the officer

knew who he was.

The note which Whitney . . . initially saw affixed to the door

was introduced into evidence. It was addressed to “Whit and Arin”

and was signed off by “Dad.” It expressed “frustrations of life in

general” and stated that “I can’t fix things that are unfixable. I love

you both, but if there is a basement in hell, I can assure you that your

mother will be firing the furnace!!” The note concluded, “I really

haven’t planned for this but . . . things will work out.”

During Arin[’s] direct testimony as a defense witness, she

mentioned that her father had been sleeping on the lower floor “since

the assault charge.” Before cross-examination, the trial court

conducted a jury-out hearing to rule on the state’s request to be

allowed to ask the witness about the assault charge. The trial court

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granted the state’s request, and upon cross-examination, Arin . . .

testified that in May 1995 the [petitioner] had been charged with

assault against the victim. She testified that the [petitioner] returned

from jail, apologized to the family, told them it would not happen

again, and then told Arin that he would kill her mother before he

would go back to jail. Furthermore, Arin . . . testified that her parents

mutually drank and argued and that sometimes Arin had to physically

intervene. The [petitioner] continued to drink in front of the victim

after she had undergone rehabilitation programs and sometimes

offered alcoholic beverages to [her]. Arin . . . stated that, on the day

of her mother’s death, she had planned to take her mother out of the

house for her safety but that the victim was in no condition to leave.

On redirect examination, Arin . . . said that the [petitioner] had

stopped talking to the daughters. “If mom was sober, then everything

was fine, and if it wasn’t, nobody said anything to each other.” She

said that as the victim’s drinking got worse, the [petitioner’s] did

also.

During Whitney[’s] direct testimony as a defense witness, she

stated that before the shooting the [petitioner] was in “a rage that I

have never seen before in my life.” Before the state’s cross-

examination, the trial court held a jury-out hearing to determine the

admissibility of evidence of prior acts of domestic violence that were

“a part of this family,” to show that the [petitioner’s] rage prior to the

shooting was not unprecedented. The trial court granted the state’s

request, and upon cross-examination before the jury, Whitney . . .

testified that she had previously seen the [petitioner] in [another]

rage. On that occasion, the [petitioner] had assaulted the victim, and

Arin . . . had placed the victim in Arin’s car and was about to drive

her to the hospital. The [petitioner] attacked the car with a sledge

hammer and broke out the car windows with Arin and her mother

seated inside.

At trial, the defense conceded that the [petitioner] shot and

killed the victim but argued that the [petitioner] was incapable of

premeditation and/or deliberation. The [petitioner] did not testify.

State v. Harry David Johnson, No. 03C01-9712-CR-00526, 1999 WL 318830, at **1-3 (Tenn. Crim.

App. at Knoxville, May 17, 1999).

During closing arguments, the State emphasized:

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Think of what you’ve heard during the course of these two and a half

days. You’ve heard two daughters who love the only parent they

have left. Tell you about his anger or his rage. There’s no evidence

of depression. There’s no medical personnel or doctor or psychiatrist

who told you about clinical depression or about suicide. Just the

words of his daughters. And remember the word of Brad Fields. He

had threatened suicide before. This wasn’t the first time.

....

And had you not been paying close attention, you might not have

realized that earlier in the week when the defense attorney said –

about this case is about alcohol abuse and a clinically depressed

person. You haven’t heard no [sic] evidence that the defendant was

clinically depressed. You have heard of no evidence of any kind of

diagnosed depression or treatment from it. You have heard none of

that. So when you go back to the jury room, please keep in mind

what this case is decided upon and that’s what came from that stand

and not what came from this podium.

After deliberation, the jury found the petitioner guilty of first degree murder and the trial

court imposed a life sentence. This court affirmed the petitioner’s conviction on direct appeal.

B. Post-Conviction

After this court’s affirmance of his conviction, the petitioner timely filed a petition in the

Sullivan County Criminal Court seeking post-conviction relief. In his petition, the petitioner

specifically alleged that he received the ineffective assistance of counsel:

(1) when counsel promised jurors in voir dire and opening statement

that a mental defense would be offered then rested without offering

any mental defense or any consistent or coherent theory of defense;

(2) when lead counsel did not seek a pretrial ruling on the

admissibility of 404(b) evidence nor did he brief the issues in

anticipation of trial;

(3) because lead trial counsel did not accurately assess the evidence

supporting the possibility of a first degree murder conviction;

(4) when lead counsel did not cross-examine the sole eyewitness

(Fields) called by the State;

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(5) when lead trial counsel failed to obtain and use evidence of

voluntary intoxication as it was relevant to the question of mens rea

for the offense of first degree murder;

(6) when lead counsel failed to obtain or use Jencks material that was

relevant to the defense;

(7) because lead counsel did not recommend or seek prompt

professional help for the petitioner; and

(8) when lead trial counsel failed to prepare and submit a clear and

adequate set of jury instructions for the court’s consideration.3

The petitioner also contended that it was plain error for the trial court to fail to give proper jury

instructions. Prior to the evidentiary hearing on the petitioner’s post-conviction claims, the post-

conviction court recited a brief history of the case and noted that Newton had died of cancer prior

to the commencement of the petitioner’s post-conviction action.

As his first witness, the petitioner called Dr. Robert L. Sadoff, a psychiatrist from

Philadelphia, Pennsylvania. Dr. Sadoff testified that he was not involved with the petitioner’s case

during trial, but he had examined the petitioner in preparation for the post-conviction proceeding.

During his analysis of the petitioner, Dr. Sadoff discovered that petitioner’s paternal grandfather and

the petitioner’s brother had both committed suicide. Additionally, a number of the petitioner’s

relatives, including his father and brothers, suffered from depression. Furthermore, there was a

history of alcohol abuse among the male members of the petitioner’s family.

Dr. Sadoff theorized that the petitioner had become increasingly depressed as he lost control

of the situation at home. The doctor attributed the petitioner’s perceived loss of control to the

victim’s alcoholism and the progressively more violent and cantankerous relationship between the

victim and the petitioner. Specifically, Dr. Sadoff noted that during his evaluation of the petitioner,

he discovered that prior to the murder there had been several instances of violence between the

petitioner and the victim. Dr. Sadoff related that three years prior to the victim’s death, the petitioner

put a shotgun into her mouth in an attempt to “sober her ass up.” Additionally, on one occasion the

petitioner fired his shotgun from the deck outside the family home in order to see if anyone cared

enough about him to investigate the shot. Dr. Sadoff described the petitioner’s behavior as “pretty

desperate” and “a cry for help.” Dr. Sadoff opined that the petitioner would not ask for help because

he was accustomed to being in control and helping everyone else. Dr. Sadoff also opined that the

petitioner’s condition worsened after 1993 when the victim’s alcohol consumption increased.

3

The petitioner’s claims of ineffective assistance of counsel relate only to Newton.

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Dr. Sadoff stated that on the day of the shooting, the petitioner wrote a “suicide note” on his

home computer.4 The note was written in a “childish font” and contained backwards letters. Prior

to the shooting, the petitioner sat with a loaded shotgun in his lap, but was dissuaded from killing

himself by his daughter, Whitney. Dr. Sadoff’s investigation revealed that during this conversation

with Whitney, the petitioner was “clearly very depressed,” and was “agitated,” “shaking,” and

“crying.”

Immediately preceding the offense, the petitioner went upstairs to tell the victim how he was

feeling, and she responded, “Why don’t you go ahead and shoot. You’re not worth the ground you

walk on.” Dr. Sadoff contended that the petitioner lost control due to the victim’s taunting, which

taunting “pushed [the petitioner’s] button.” The petitioner then vowed that he would kill the victim.

The petitioner obtained a shotgun, loaded the gun, and threatened Whitney and Fields if they did not

get out of his way, stating that “I’ve got to do what I’ve got to do. Don’t try and stop me.” Dr.

Sadoff described the petitioner as “like a runaway train who was not to be stopped.” Dr. Sadoff

noted that subsequent to shooting the victim, the petitioner looked for additional shotgun shells with

which to kill himself, but Fields had hidden the shells where the petitioner could not find them. Dr.

Sadoff maintained that the petitioner was in a “very passionate state.”

Dr. Sadoff noted that the petitioner had some amnesia relating to the events. Dr. Sadoff

believed that the loss of memory could be attributed at least in part to the extreme tension and

emotion of the day. Dr. Sadoff explained that the petitioner was suffering from a serious mental

4

The petitioner’s “suicide note” stated:

W hit and Arin

This is a really difficult letter to write. I suppose tha t it is a way of trying to relate

to you the frustratio ns of life in general.

I work hard at being a dad , husband, p harmacist and all around good citizen. I am

told by your mother that I am a male cha uvinist co ntrol frea k. I go to my “class”

and am reminded of how wrong I am, how abusive I am and wh at an asshole I am.

Things are reinforced by Arin and you, as I play my role as father, which means

taking care of everything, including Mom’s duties as well. I do not have all the

answers; I cannot do it all by myself. I can’t fix things that are unfixable.

I love you both, but if there is a basement in hell, I can assure you that your mother

will be firing the furnace!!

I really haven ’t planned for this but be tween Mr. Bill, M ike and Dick things will

work out.

I love yo u both,

Dad

6-21-95

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defect at the time of the shooting, namely major depressive disorder with dissociative elements. Dr.

Sadoff testified that the petitioner killed the victim because he felt that it was necessary. Dr. Sadoff

explained, “My opinion is that he did not lack substantial capacity to appreciate the wrongfulness

of his behavior. His cognitive process[es] were intact. It was his emotional and volitional aspects

that were not functioning for him at that time.”

Dr. Sadoff acknowledged that during his investigation, he learned that prior to the victim

“pushing the [petitioner’s] button,” the petitioner knocked her out of bed. The history of the family

revealed that a pattern of abusive behavior existed on the part of both the petitioner and the victim;

however “there were verbal abuses [by the petitioner] to the children when he was drinking.”

Dr. Sadoff related an incident in which the petitioner beat the victim so severely that Arin

did not believe her mother would survive. Arin attempted to drive the victim to the hospital.

However, the petitioner “didn’t want his image spoiled.” Therefore, the petitioner prevented them

from seeking medical attention by throwing a sledge hammer through the windshield of the car Arin

was driving. Dr. Sadoff noted that the petitioner was “very controlling.” Additionally, Dr. Sadoff

acknowledged that after the shooting, the petitioner asked his daughters, “[D]on’t you feel the relief

here?”

Dr. Sadoff explained that the victim’s alcoholism was extreme. She was frequently

intoxicated to the point of immobilization and would repeatedly soil the bed by vomiting, urinating,

or defecating. The petitioner continuously cared for the victim and cleaned up following these

incidents. Dr. Sadoff stated that the victim was unable to stop drinking, but he conceded that the

petitioner often drank in front of the victim immediately following her completion of treatment

programs.

Dr. Sadoff admitted that the petitioner had not been treated for depression and that he had

not been otherwise diagnosed with “major depressive disorder.” He also acknowledged that the

petitioner was very competent in managing his business. Dr. Sadoff explained that the petitioner had

a public persona and a private persona. The petitioner’s children related that his behavior “changed

at the bridge” on his way home from work.

Dr. Sadoff noted that there were conflicting reports concerning the petitioner’s behavior on

the day of the shooting. Specifically, he explained, “I notice that they were mixed in that, because

on one hand they said he was like he’s always been; another they said he was different from he’s ever

been because of the look in his eye and the shortness of his response and his suicidal ideations. So

they were saying two different things at different times. It was confusing.” Dr. Sadoff stated that

during his examination of the petitioner, the petitioner never admitted having suicidal thoughts.

However, Dr. Sadoff opined that the petitioner was a “very private, personal person” and would not

want to show any weakness to the community.

Dr. Sadoff related that the petitioner was placed on “suicide watch” for eleven days when he

was jailed immediately after the shooting. Dr. Sadoff acknowledged that the petitioner never

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threatened suicide while in jail or after he was released on bail. Nevertheless, the doctor opined that

the petitioner would have killed himself on the night of the shooting if he had been able to find shells

for the shotgun. Dr. Sadoff acknowledged that there were other guns in the house that the petitioner

could have utilized to kill himself.

Dr. Sadoff opined that it was a mistake not to have the petitioner evaluated until six to seven

months after the shooting. The doctor maintained that the petitioner was in need of treatment

following the offense. Dr. Sadoff stated, “The sooner you see somebody, the better information

you’ve got, and the sooner you can start effective treatment; especially when he’s in the acute phase.”

Dr. Sadoff concluded by noting that he had reviewed the report prepared by Dr. Emil F.

Coccaro, a psychiatrist with the Eastern Pennsylvania Psychiatric Institute who evaluated the

petitioner. The report was dated June 1996. Dr. Coccaro stated that the petitioner’s “major

depression [was] in full remission” by September 1995.

The next witness to testify on behalf of the petitioner was Dr. Thomas Edward Schacht, a

psychologist and professor in the Department of Psychiatry and Behavioral Sciences at East

Tennessee State University. Dr. Schacht asserted that he was contacted by attorneys Newton and

Wohlford in November 1995 regarding the petitioner’s case. In January 1996, Dr. Schacht met with

the petitioner in order to perform a forensic evaluation to determine whether evidence existed of any

mental illness or impairment. As a result of this evaluation, Dr. Schacht concluded that “credible

forensic evidence” existed indicating that the petitioner suffered from mental illness at the time he

shot the victim. Specifically, Dr. Schacht opined that at the time of the shooting the petitioner

suffered from “Affective Disorder in the depressive spectrum. Major Depressive Disorder was the

most likely diagnosis. . . . And then the other diagnosis was alcohol abuse.” The “most compelling

feature” of the petitioner’s disorder was his “acute suicidal state.” Dr. Schacht noted that the

petitioner had been “episodically suicidal over a period of several years.”

Moreover, Dr. Schacht related that Arin and Whitney both reported that the petitioner had

been drinking vodka on the day of the shooting. Dr. Schacht explained that “alcohol will disinhibit

an individual” and contribute to emotional instability, irritability, and depression. Additionally, the

petitioner’s mental illness would substantially affect his ability to conform his behavior to the

requirements of the law. Further,

there would have been ample grounds for [the petitioner] to have

been committed to a hospital involuntarily. And the whole premise

of such a commitment is that it occurs because an individual is unable

to regulate their own behavior and unable to refrain from acting in a

way that might harm themselves or others.

Dr. Schacht testified that during his investigation, he discovered that the night before the

shooting Arin had a car accident which prompted a confrontation with the petitioner. Whitney and

Arin told Dr. Schacht that the next day, the day of the shooting, the petitioner seemed “dazed [and]

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slowed.” The petitioner’s talk of suicide came and went throughout the day. The victim had been

on an extended drinking binge in which she had repeatedly soiled herself while in bed because she

would not or could not get up to go to the bathroom. Whereas the victim had previously intervened

in the petitioner’s attempts to kill himself, on the day of the shooting she encouraged the petitioner

to commit suicide. The petitioner became enraged by her reaction. Dr. Schacht concluded that

Fields engaging the petitioner in conversation prior to the shooting delayed the shooting of the

victim.

Dr. Schacht noted that the petitioner had a history of depressive episodes and a history of

alcohol consumption. Additionally, the petitioner had a strong family history of affective disorder,

with both his brother and his grandfather committing suicide and other siblings having mood

disorders and drinking problems.

Furthermore, Dr. Schacht recounted several abusive incidents between the petitioner and the

victim. Specifically, Dr. Schacht related an incident in which the petitioner placed a shotgun into

the victim’s mouth in order to “scare her into sobriety.” He also testified regarding the petitioner

firing guns to test his family’s concern for him and the petitioner’s repeated threats of suicide. Dr.

Schacht opined that such conduct was consistent with mental illness. Based upon his assessment,

Dr. Schacht referred the petitioner to Dr. Coccarro for testing in relation to depression. However,

the results of Dr. Coccaro’s tests were “equivocal.”

Dr. Schacht stated that the delay in evaluating the petitioner was “undesirable” and made it

more difficult to determine the petitioner’s state of mind at the time of the shooting. The better

practice would be to evaluate an individual when the phenomenon is “alive and active.” Dr. Schacht

stated that he knew no reason for the delay in evaluating the petitioner.

Dr. Schacht discussed his findings and the findings of Dr. Coccaro with Newton and

Wohlford on several occasions. He explained, “Basically I prepared them to examine me.” Dr.

Schacht prepared an outline of his proposed testimony for counsel to review. Dr. Schacht was

prepared to testify at the petitioner’s trial in May 1997. However, Dr. Schacht “was told in the

middle of the trial that the defense had decided to rest because they had concluded that the

prosecution had failed to prove its case.”

Dr. Schacht testified that he was aware of several prior acts of abuse by the petitioner toward

the victim that could potentially have been revealed at trial. In fact, Dr. Schacht had expected the

bad acts to be revealed. He stated that “[t]here was a problem in this case with anger and with

aggression.” Dr. Schacht discussed the previous acts of abuse with counsel, and, during his

testimony, Dr. Schacht intended to explain how the acts were indicative of the petitioner’s declining

mental health. If the bad acts had not been introduced through other testimony, Dr. Schacht planned

on testifying regarding the events in order to illustrate and explain the petitioner’s declining mental

health. Dr. Schacht stated that the existence of such incidents of violence would not change his

diagnosis of the petitioner.

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Prior to trial, Dr. Schacht “draft[ed] a detailed written outline of what my expected testimony

would be.” In this outline, he described the shooting of the victim as an “incomplete murder-

suicide.” At the post-conviction hearing, Dr. Schacht asserted that his assessment of the petitioner’s

suicidal ideations was not changed by the fact that the petitioner did not use another of the guns

located in the house to commit suicide when he could not find more shells for his shotgun. Dr.

Schacht testified that when an individual is “acutely suicidal . . . obvious alternatives don’t occur to

them.” Also, Dr. Schacht noted that the petitioner had a “substantial capacity for self deception” and

was vulnerable to pride. Furthermore, Dr. Schacht opined that the note written by the petitioner on

the day of the shooting was a suicide note because the content of the note involved “helplessness,

hopelessness, despair.” Additionally, the note was written on the computer in a “childish” font.

Lieutenant Ty Boomershine testified at the post-conviction hearing that on the day of the

shooting, he was a Sergeant with the Sullivan County Sheriff’s Department, and he was the

investigating officer in the petitioner’s case. He stated that the “suicide note” was part of the police

file in the petitioner’s case. Additionally, the police file contained a copy of the 911 tape wherein

Whitney telephoned for assistance after the shooting and a bottle of Popov vodka which was

recovered from the petitioner’s house on the night of the shooting. The vodka bottle was partially

empty and supported the reports of Whitney and Arin that the petitioner had been drinking on the

day of the shooting. Lieutenant Boomershine maintained that the petitioner’s counsel reviewed the

police file prior to trial.

Lieutenant Boomershine stated that at the time of the shooting, police administrative protocol

required that anyone arrested for first degree murder, especially in domestic violence cases, be placed

on suicide watch. Additionally, Whitney had stated that she believed the petitioner would kill

himself. However, Lieutenant Boomershine was unaware of any attempts by the petitioner to end

his life while in jail.

Paul Raymond Wohlford testified that he was an attorney in Bristol and, at the time of the

post-conviction hearing, had been practicing law for thirty-seven years. For approximately twelve

years, he had limited his practice to mostly divorce, medical malpractice, wrongful death, and

juvenile cases. He stated that he had an AV rating from Martindale-Hubble, noting that AV is the

highest professional rating for an attorney. Wohlford admitted that he had little experience in

criminal law and had never held himself out to be a criminal defense attorney.

In 1995, Wohlford was practicing law with Robert Chad Newton. Newton was a criminal

defense attorney. The petitioner had been Wohlford’s pharmacist for years and they were friends.

Wohlford was aware that the victim “drank inappropriately.” Therefore, when Wohlford heard about

the shooting, he called Newton to go to the jail with him to visit the petitioner and offer assistance.

Wohlford stated that he saw the petitioner at 10:30 p.m. the night of the shooting. When Wohlford

and Newton arrived at the jail, the petitioner was quiet and “appeared very depressed.” The

petitioner did not appear intoxicated at that time. The petitioner later informed Dr. Schacht that he

had drunk only three to four shots of vodka prior to the shooting.

-13-

Wohlford recalled that after the arraignment the following day, Newton discussed the case

with Wohlford. Both attorneys were of the opinion that the crime “did not meet the qualifications

of what was then the definition of First Degree Murder in that we thought perhaps he was suicidal,

perhaps very depressed, and that he could not form the deliberation necessary for that intent.” In

fact, Newton never believed that the case was “more than Second Degree [murder]” because “the

element of passion was . . . very difficult. The element of [the petitioner’s] dysfunctional emotional

system was very strong and he felt the State could not meet their burden of proving all the - of what

were then the elements of first degree murder.”

Within the next couple of days, Wohlford became aware that the petitioner was on suicide

watch at the jail. However, without further explanation, Wohlford testified that “there was no

immediate idea of having [the petitioner] examined or placed in a . . . mental health facility.”

When allocating responsibilities for trial, Wohlford and Newton determined that Wohlford

would handle all expert testimony on direct and cross-examination because of Wohlford’s

experience with expert witnesses. Newton would be in charge of the case because of his experience

in criminal defense. Newton chose Dr. Schacht as the defense’s mental health expert because he had

worked with Dr. Schacht on a prior occasion and was impressed with his work.

Wohlford believed Newton to be an “excellent lawyer in the criminal sphere.” However,

Wohlford was concerned about the strength of the State’s proof. Wohlford stated that he was aware

that the petitioner had been drinking on the day of the shooting. Wohlford and Newton discussed

a voluntary intoxication defense, but Newton maintained that it would not be “a very successful

defense to assert because his experience indicated to him that juries simply did not take to heart the

fact if someone voluntarily drank themselves into intoxication and committed a crime that they

should be absolved of responsibility for it.”

As part of his duties relating to the petitioner’s case, Wohlford talked with Dr. Schacht on

several occasions and prepared him to testify at trial. Dr. Schacht believed that the petitioner “was

incapable of forming the cool purpose and - and deliberation as required [for first degree murder].”

Dr. Schacht further believed that the victim’s inability to rehabilitate “had eroded [the petitioner’s]

ability to cope.” Wohlford shared this information with Newton.

Wohlford stated that he was unaware of the existence of an audio tape recording of the 911

telephone call made by Whitney on the day of the shooting. Wohlford was further unaware of any

statements made by the witnesses to Officer Delp prior to trial. However, Wohlford maintained that

Newton, as lead counsel, would have been privy to such information.

Wohlford testified that Newton decided to present a defense of “diminished capacity” during

trial and that proof of such defense would be presented through lay and expert testimony. Wohlford

opined that Dr. Schacht was “very professional . . . and could handle himself, I thought, well in the

courtroom.” Dr. Schacht’s final report stated that the petitioner suffered from clinical depression.

-14-

Wohlford was also prepared to examine the State’s expert witness, Dr. James Ballenger.

Wohlford interviewed Dr. Ballenger in preparation for the case. Wohlford maintained that Dr.

Ballenger

was an expert in, I think, anxiety disorders and perhaps depression,

but he was not, in my opinion, a forensic witness that was in court .

. . in matters of diminished capacity, competency, and that sort of

thing on a regular basis. . . . I felt Dr. Schacht would be a better, for

the lack of a . . . term, better witness than Dr. Ballenger because I - I

felt that I had some, perhaps, ways to cause his testimony to be

looked at askance by the jury.

Wohlford explained that he had prepared an outline for the cross-examination of Dr.

Ballenger. Wohlford testified that he “couldn’t wait” to cross-examine Dr. Ballenger regarding who

had paid him to examine the petitioner. Wohlford knew that Dr. Ballenger had been paid by the

victim’s family to perform the examination of the petitioner and was prepared to attack Dr.

Ballenger’s potential bias in his assessment of the petitioner. Wohlford kept Newton apprised of his

assessment of the expert witnesses. Wohlford testified that he was fully prepared to question both

expert witnesses.5

Wohlford explained that Brewer was associated as counsel after the trial court determined

that the jury would be selected from Hamblen County. Wohlford acknowledged that Brewer’s

practice was comprised of mostly civil cases. However, as a Hamblen County attorney, Brewer was

familiar with the prospective jurors. Therefore, counsel determined that Brewer would be solely

responsible for the voir dire of the jury. Wohlford and Newton discussed their trial strategy with

Brewer so that he would know the proper questions to ask during voir dire. Based upon the defense

theory, Brewer repeatedly questioned prospective jurors regarding their opinions concerning alcohol

abuse, clinical depression, and suicide. Brewer further advised the jury that it would hear expert

testimony on those issues.

In addition to jury selection, Brewer also interviewed Arin and Whitney in preparation for

trial. Brewer developed a good rapport with the petitioner’s daughters and the attorneys decided that

he should handle their direct testimony at trial.

Wohlford testified that the trial testimony of Fields ended just before lunch. Newton

requested an early lunch recess, advising the court and the jury that he expected the cross-

examination of Fields would be lengthy and he preferred that it not be interrupted by lunch. The trial

court granted the request. Wohlford asserted that he, Newton, and Brewer met during lunch and

discussed how damaging Fields’ testimony had been. Wohlford acknowledged that Fields’

testimony “made it very difficult for the defense.” Counsel discussed the fact that the State had not

5

Defense counsel decided not to call Dr. Coccaro to te stify at trial. The petitioner does not claim error in

regards to this d ecision .

-15-

brought out other potentially damaging information known by Fields. Wohlford stated that

damaging information that might be revealed during cross-examination “was a worry that we might

– something might get in that we - we have no intention of having get in and then we may be stuck

with it as far as it goes.”

Counsel considered a limited cross-examination so that Fields could “bring out about earlier

in the day and [the petitioner’s] suicidal mentality and the fact that he had a gun and the fact that he

may have written a note,” yet avoid any more damaging topics. The petitioner was present for this

discussion. Wohlford noted that Newton

quite properly pointed out that Mr. Fields might worsen the matter for

the defense by going into areas that had not been covered on direct

that would be harmful to him. So we knew that was a potential and

it may be that . . . [Newton] did not discuss these decisions with either

[Brewer] or I [sic], but it . . . may have been that - that he felt that it

would worsen the situation for [the petitioner] in - in this cross-

examination.

Regardless, Wohlford believed that counsel had an opportunity for a successful limited cross-

examination of Fields which could have “made a connection between . . . an eyewitness and what

the expert says.” Nevertheless, when trial resumed, Newton informed the trial court that the defense

would not cross-examine Fields. Wohlford noted that “whether to cross-examine or not cross-

examine, I did not really participate in that decision [sic]. I - I really left that to [Newton] as far as

that goes.”

Wohlford explained that Newton was concerned that Fields might mention prior acts of abuse

committed by the petitioner. However, Newton did not pursue a pretrial hearing under Rule 404(b)

of the Tennessee Rules of Evidence for a ruling on the admissibility of such testimony. Wohlford

recalled that the trial court stated that prior bad acts issues could be addressed either pretrial or

during trial. Wohlford also stated that the petitioner’s case had been highly publicized. Wohlford

opined that if a hearing on Rule 404(b) issues had been held prior to trial, “there’s a good chance that

there would have been a lot more publicity concerning the prior bad acts than . . . would have come

up during the trial after a jury was selected.”

Wohlford opined that Newton was prepared to handle any Rule 404(b) issue that may have

arisen at trial because Wohlford was confident of Newton’s intelligence and ability to retain the law.

“[Newton] could quote and did remember cases and passages from them and what they held and

what they said.” In any event, Wohlford asserted that Dr. Schacht

was prepared to testify that these acts were mileposts on [the

petitioner’s] road to . . . his personality disintegration. In - in other

words, rather than trying to - to avoid them entirely or to deny that

they happened, but to say, yes, this happened but that’s consistent

-16-

with the expert opinion that was going on in [the petitioner’s] mind

over time as this repetitive behavior on his wife’s part continued.

Upon being questioned about the failure to present expert testimony regarding the petitioner’s

mental state, Wohlford testified that the decision not to call Dr. Schacht occurred after Arin and

Whitney testified on the petitioner’s behalf. Wohlford explained:

[T]hey were terrific witnesses for [the petitioner]. They went into the

lengthy explanation of their mother’s problems, the family’s

problems, the problems of [the petitioner], problems of [the victim].

And they were so compelling, I guess is a good word, in their

testimony that a number of people in the courtroom, including at least

one juror, their eyes were watery with tears and they understood the -

the - perhaps better than it could ever be brought out by anybody else

what it was like to live in that family over time.

At the conclusion of the daughters’ testimony, Newton, Wohlford, and Brewer met in

Wohlford’s office and discussed the powerful effects of the daughters’ testimony. Wohlford noted

that “only two instances of prior domestic violence came out” during the daughters’ testimony.

Newton “suggested that we should strongly consider resting on this - what we considered an

emotional high point. That we probably wouldn’t - might not get back to this emotional high point

again anywhere else in the trial.” Wohlford maintained that although he had the highest respect for

Newton’s abilities as a criminal defense attorney, he and Brewer were concerned because “we had

already told the jury that they were going to hear psychiatric or psychological testimony. And if we

rested without doing it, we were handing what was a very competent prosecution a club to . . . beat

us up on in oral argument at the end.” Counsel debated this issue and ultimately Wohlford and

Brewer conceded to Newton’s suggestion because he was lead counsel and had more experience in

criminal law. Wohlford testified that as he and Brewer feared, during closing argument the State

emphasized the defense’s failure to present the proof they had promised.

Wohlford recognized that Newton wanted to prevent the jury from hearing about the previous

altercations between the petitioner and the victim. However, Wohlford recalled that the jury had

already heard about certain bad acts, namely that the petitioner had said a few months prior to the

shooting, after he was charged with assaulting the victim, that “he would kill [the victim] before he

would ever go back to jail.” Wohlford stated, “I think if you had that statement without any

explanation that it was far more harmful. Whereas if you have an explanation, as Dr. Schacht had,

and what problems [the petitioner] was having emotionally, that that statement falls into the context

of being understandable.”

Wohlford also acknowledged that in closing argument the State “seized upon” the delay in

seeking evaluation or treatment for the petitioner. Wohlford maintained:

-17-

I didn’t think . . . as a strategy for a criminal defense case that you

ought to put your client in a residential mental health institute just for

the purpose of - of trial later on unless he really sincerely needed that

help and [the petitioner] never demonstrated to me, in the dealings

that I had with him that . . . he needed that type of assistance.

Wohlford did not assess the petitioner’s behavior when they were together during preparation for

trial as being abnormal.

Wohlford stated that the theory of the defense was to demonstrate that the petitioner did not

have the cool purpose necessary to form deliberation or premeditation as was required for first

degree murder at the time of the offense. Wohlford theorized that it would be more difficult for the

State to prove deliberation than to prove premeditation. Wohlford explained that “[i]t was simply

a question of his mens rea as to whether he was guilty of a lesser degree of offense.” Regardless,

Wohlford acknowledged that Newton engaged the State in discussions regarding a possible plea.

The “State’s position was this was a First Degree Murder case and therefore there really was no room

for negotiation.”

The petitioner’s brother, James Frederick Johnson, testified at the post-conviction hearing.

He testified that during his career he served as an agent with the Federal Bureau of Investigation,

then he worked in the Inspector General’s office with the Department of Housing and Urban

Development, finally serving as a Special Agent in Charge with the Criminal Division of the

Environmental Protection Agency prior to his retirement. He maintained that when he asked Newton

what defense Newton had planned for the first degree murder charges against the petitioner, Newton

responded, “They’ll . . . never convict him of First Degree Murder. The most he could possibly get

is Second Degree.” Newton believed that the State could not prove premeditation. According to

James Frederick Johnson, Newton never changed this professional opinion.

Gary Brewer testified that he was an attorney in Morristown and had been practicing law for

thirty-two years. Brewer also received Martindale-Hubble’s highest rating of AV. Brewer

acknowledged that he was not a criminal defense attorney and did not have much experience in the

area of criminal law.

Wohlford associated Brewer in the petitioner’s case after the trial court ruled that the jury

would be selected from Hamblen County due to the “tremendously large amount” of publicity given

to the case. Brewer was initially selected only to assist in jury selection. Newton was to be “chief

counsel” in the case because of his experience in criminal defense. Newton told Brewer that the

charge was first degree murder. However, Newton maintained that because of the evidence of

passion and the petitioner’s depression, the petitioner could be convicted of no more than second

degree murder. Regardless, Brewer testified that “this case had First Degree Murder written all over

for me and I’m not a criminal lawyer or profess to be, but I didn’t fall off a rock truck either.”

-18-

During his research of the case, Brewer learned that the petitioner had been on suicide watch

for eleven days, commencing immediately after being jailed on the night of the shooting. Brewer

questioned Newton regarding the petitioner’s psychological treatment and was surprised to learn that

none had been sought. Newton told Brewer that the petitioner would not attend treatment. Later,

Brewer discovered that the petitioner had seen Dr. Schacht, Dr. Coccaro, and Dr. Ballenger several

months after the shooting.

Three months prior to trial, Brewer learned that the petitioner had been drinking vodka

immediately prior to the shooting. However, Brewer never saw the vodka bottle that was in the

possession of the police. Brewer also never knew of the existence of a recording of the call Whitney

made to 911 subsequent to the shooting. Brewer did not know why the vodka bottle or the 911

recording was not introduced as evidence at trial.

Brewer talked with Dr. Schacht prior to jury selection so that he would know what questions

to ask potential jurors during voir dire. Brewer was impressed with Dr. Schacht and noted that

Wohlford had thoroughly prepared Dr. Schacht to testify. Brewer also believed that Dr. Schacht’s

analysis of the petitioner was “absolutely correct, commensurate with what I had known about the

facts of the case.” Brewer admitted that the petitioner “had no aberrant behavior with me,” but

Brewer stated that Arin and Whitney had indicated that the petitioner was suffering from mental

problems prior to and during the shooting.

Brewer discovered certain areas of the case which were not well-prepared. Specifically,

Brewer discovered that defense counsel had not interviewed Arin and Whitney. “I voiced my

opinion that I felt that they were absoluely critical to the defense of their father.” Brewer was “afraid

to ask” why the daughters had not been interviewed; instead, he volunteered to talk with them.

Brewer recalled the trial testimony of Fields. Prior to trial, Newton revealed to Brewer that

he had not personally spoken with Fields. Brewer stated that it was “obvious” that the State would

call Fields as part of their case-in-chief. Brewer opined that he did not know why Newton did not

personally interview Fields, but Brewer opined that a personal interview with Fields was

“tantamount to cross-examining him to me.”

Brewer recalled that Newton said “in the presence of the jury that his cross-examination [of

Fields] would be rather lengthy and he’d like permission from the Court to do it immediately after

early luncheon recess.” Brewer testified that Newton “went into a room somewhere here in the

courthouse and it was his practice, I think, to be alone in preparation for a witness. And His Honor

convened the court and [Newton] came in and stood up and said, ‘I have no questions.’” Brewer

stated that he was unaware that Newton planned to forego the cross-examination of Fields. Brewer

opined that “everything could be gained” by cross-examining Fields. Therefore, he was surprised

at Newton’s decision not to cross-examine Fields.

Brewer acknowledged that during voir dire, he told the jury that the defense would present

proof regarding alcohol abuse, the family trait of clinical depression, and suicide. He again made

-19-

such representations during opening statements. Brewer asserted, “I’ve talked to a lot [of] juries in

my time. And a fatal, fatal, fatal flaw or a mistake that a lawyer could ever make in a trial of any

kind is to tell a jury what they’re going to hear and then don’t tell them what . . . you told them you

[were] telling them. They’ll kill you.” Accordingly, Brewer became upset when Newton announced

that the defense was resting after the testimony of the petitioner’s daughters. At the post-conviction

hearing, Brewer explained:

[N]ow my building blocks fell. I’d lied to the jury. . . . I was not

happy. I wasn’t serving any purpose in this case at that point. These

were my folks . . . that were trying this case and I lied to them. I had

no intent to lie to them. . . . I told them what they were going to hear

and then they didn’t hear it and that was a reflection upon me. I had

to go back home with these folks.

Brewer recalled that the State emphasized counsel’s failure to produce psychological

testimony as promised. Brewer revealed that “if I could have crawled under that table at that point

I would have.” Brewer opined that the State’s closing argument “[a]bsolutely destroyed” the

petitioner’s case.

Brewer conceded that during trial, counsel tried to avoid testimony regarding prior acts of

domestic violence by the petitioner. Regardless, Brewer noted that Dr. Schacht’s testimony was

intended to encompass and explain all prior bad acts of the petitioner because Dr. Schacht believed

such acts reflected the petitioner’s mental illness. However, Brewer also noted that the evidence

adduced at trial “[c]onsidered by itself,” without the psychological explanation, could have been seen

as evidence of premeditation and deliberation. According to Brewer, that was the reason Dr.

Schacht’s testimony was so crucial.

Brewer recalled that Arin and Whitney Johnson “describe[d] the deteriorating condition at

the home. They describe[d] their mother’s alcoholism, the effect the drinking had on their father,

and, in great detail, their father’s emotional state and condition the day of the murder.” Brewer was

“sure” he would have met with Newton and Wohlford after the conclusion of the daughters’

testimony. However, Brewer did not recall discussing whether Dr. Schacht should be called to

testify. Specifically, Brewer recalled that

it was shortly before Dr. Schacht was to testify. And - and Mr.

Newton told Mr. Wohlford and me that he didn’t want to call or he

decided not to call Dr. Schacht. And I think I spoke first and I said,

“Why?” And he said, “I don’t think the State’s met their

responsibility in this case.” And I said, “[Newton], you’ve got to call

him. I’ve already told the jury that he would testify. That they would

hear this testimony and I would have lost my credibility with them.”

And - and he said, “I just don’t think the State’s met their

-20-

responsibility in this case. And - and I don’t think we ought to call

him.”

And I objected to that. That was where - - that’s what was important

to me. I- - - you never tell a jury what they’re going to hear and then

don’t tell them. What credibility I had was absolutely destroyed at

that time, in my opinion.

After the petitioner rested at the post-conviction hearing, the State called E. Lynn Dougherty

as its sole witness. Dougherty testified that he was an attorney from Bristol and that approximately

eighty percent (80%) of his law practice consisted of criminal defense work. Dougherty was familiar

with the work and reputation of Newton. Dougherty stated that “Newton, of all the attorneys I know

in Bristol, was probably the most voracious reader amongst our bar. He was extraordinarily well

read, both in, both from a legal sense, but also in a, in a more generic sense.”

Dougherty testified that Newton spoke with him regarding the petitioner’s case and Newton

said “that he was concerned about the evidence in the case, but that he was confident that he could

have that charge reduced from, from the first degree level. But he was, he made it very clear that

there was evidence there that could support such a charge.” Dougherty maintained that Newton was

aware of the significance of the State’s evidence against the petitioner but was confident he could

obtain a conviction for a lesser offense.

Dougherty testified that he had occasionally decided not to cross-examine a witness if

nothing could be gained from the examination, if the witness had not hurt his case on direct, or if

he was concerned about the witness opening a door for more damaging testimony than had been

brought out on direct. Dougherty also stated that in the past he had retained an expert witness and

then decided not to call the expert. However, Dougherty opined that it would be “absolute error”

to tell a jury during voir dire or opening statement that he intended to call an expert and then fail to

call the expert during trial. Dougherty conceded that he could

imagine a scenario where through other evidence you were able to put

before the jury what it was that you were trying to do with your

expert. Or in a situation where you simply felt, again, after sitting at,

through the trial, that the expert testimony would either be cumulative

or it could be potentially hurtful.

Dougherty also opined that it “could be a tactable (sic) decision” not to call a promised expert if the

State had not met its burden of proof.

Subsequent to the post-conviction hearing, the post-conviction court entered a lengthy order

with detailed findings of fact, dismissing the petitioner’s claim for relief. The post-conviction court

found that the petitioner had not met his burden of establishing his claims by clear and convincing

evidence. Moreover, the court determined that many, if not all, of the claims of alleged ineffective

-21-

assistance of counsel were attributable to the tactical or strategic decisions of counsel during the

course of trial. The petitioner timely appealed the post-conviction court’s ruling.6

II. Analysis

To be successful in his claim for post-conviction relief, the petitioner must prove all factual

allegations contained in his post-conviction petition by clear and convincing evidence. See Tenn.

Code Ann. § 40-30-210(f) (1997).7 “‘Clear and convincing evidence means evidence in which there

is no serious or substantial doubt about the correctness of the conclusions drawn from the

evidence.’” State v. Holder, 15 S.W.3d 905, 911 (Tenn. Crim. App. 1999) (quoting Hodges v. S.C.

Toof & Co., 833 S.W.2d 896, 901 n.2 (Tenn. 1992)). Issues regarding the credibility of witnesses,

the weight and value to be accorded their testimony, and the factual questions raised by the evidence

adduced at trial are to be resolved by the post-conviction court as the trier of fact. See Henley v.

State, 960 S.W.2d 572, 579 (Tenn. 1997). Therefore, we afford the post-conviction court’s findings

of fact the weight of a jury verdict, with such findings being conclusive on appeal absent a showing

that the evidence in the record preponderates against those findings. Id. at 578.

A. Ineffective Assistance of Counsel

A claim of ineffective assistance of counsel is a mixed question of law and fact. See State

v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). We will review the post-conviction court’s findings of

fact de novo with a presumption that those findings are correct. See Fields v. State, 40 S.W.3d 450,

458 (Tenn. 2001). However, we will review the post-conviction court’s conclusions of law purely

de novo. Id.

“To establish ineffective assistance of counsel, the petitioner bears the burden of proving

both that counsel’s performance was deficient and that the deficiency prejudiced the defense.” Goad

v. State, 938 S.W.2d 363, 369 (Tenn. 1996) (citing Strickland v. Washington, 466 U.S. 668, 687,

104 S. Ct. 2052, 2064 (1984)). In evaluating whether the petitioner has met this burden, this court

must determine whether counsel’s performance was within the range of competence required of

attorneys in criminal cases. See Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975).

1. Failure to Call Expert

The petitioner complains regarding the failure of trial counsel, particularly Newton, to call

Dr. Schacht to testify at trial. There are essentially two components to the petitioner’s complaint.

First, the petitioner alleges that counsel erred by not presenting expert testimony to explain his

mental state. Second, the petitioner specifically argues that the failure to call Dr. Schacht to testify

6

W e will address the petitioner’s issues in a different order than that in which they were raised in the

petitioner’s brief.

7

Since the post-conviction hearing in the instant case, this provision has been codified at Tennessee Code

Annotated section 40-3 0-11 0(f) (2003 ).

-22-

destroyed the credibility of the defense after the jury had been promised by counsel during voir dire

and opening statement that the jury would hear expert testimony regarding the mental health of the

petitioner. We shall address each of these issues in turn.

a. Explanation of Mental State

First, we address whether counsel was ineffective in failing to present the testimony of a

psychological expert. The petitioner contends that the proposed expert could have explained the

petitioner’s mental state leading up to and at the time of the shooting.

The record reflects that counsel failed to seek a psychological evaluation of the petitioner

until months after the shooting. At that time, counsel contacted Dr. Schacht for an evaluation of the

petitioner. The petitioner contends that the information garnered from Dr. Schacht would have been

favorable to the defense, specifically in explaining the petitioner’s mental state at the time of the

shooting. However, after observing the teary-eyed reaction of some jurors, counsel determined that

the defense should rest on the “emotional high point” created by the powerful and moving testimony

of the petitioner’s daughters. The post-conviction court noted:

Although Dr. Schacht had information favorable to the [petitioner],

he had and was aware of evidence that there was a prior threat, very

similar in nature to the actual killing, and the act of placing a shotgun

in the mouth of the victim was mean, cruel, and horrible.

In such circumstances, any reasonable attorney would have to weigh

the pros and cons , and the magnitude of potential damaging evidence

to the theory that [the petitioner] did not deliberate or premeditate.

We concede that the question of the ineffectiveness of counsel on this issue is a close one.

Specifically, we note that on direct appeal this court observed that “the question of whether

deliberation, in particular, was established beyond a reasonable doubt is a close one. . . . Perhaps

no one will ever know the [petitioner’s] true state of mind at the time he pulled the trigger.” State

v. Harry David Johnson, No. 03C01-9712-CR-00526, 1999 WL 318830, at *8 (Tenn. Crim. App.

at Knoxville, May 17, 1999). Such question could have been even closer if Dr. Schacht had

explained his analysis of the petitioner’s mental state. Nevertheless, we conclude that counsel’s

failure to call Dr. Schacht during trial was a tactical decision based upon counsel’s assessment of the

proceedings. See Goad, 938 S.W.2d at 369; Wilcoxson v. State, 22 S.W.3d 289, 315 (Tenn. Crim.

App. 1999); John Parker Roe v. State, No. W2000-02788-CCA-R3-PC, 2002 WL 31624850, at *9

(Tenn. Crim. App. at Jackson, Nov. 20, 2002), perm. to appeal denied, (Tenn. 2003). However,

although there was a tactical reason not to call the expert witness, when we consider this failure in

conjunction with the promise made to the jury regarding the presentation of expert testimony, we

conclude that the decision was not a reasonable one.

b. Promise to Jury

-23-

There are two major cases in Tennessee dealing with the failure of counsel to fulfill the

promises made to the jury during voir dire or opening statement. In State v. Zimmerman, 823

S.W.2d 220, 221 (Tenn. Crim. App. 1991), the defendant was charged with second degree murder.

During opening statement, counsel stated, in accordance with trial strategy, that the defendant and

a psychologist would testify regarding the defense of “battered wife syndrome.” However, at the

conclusion of the State’s proof, counsel recommended to the defendant that she not testify. Id. at

222. Additionally, counsel rested without presenting the testimony of an expert regarding battered

wife syndrome or any additional proof. Id. This court concluded that counsel was ineffective,

stating that “nothing changed during the course of the trial. . . . In other words, there appears to have

been no basis for the sudden change in strategy.” Id. at 226.

In State v. King, 989 S.W.2d 319, 330 (Tenn. 1999), the defendant, who was convicted of

felony murder, complained that his counsel “abandoned the defense theory of voluntary intoxication

after having introduced it to the jury during the opening statement.” During King’s trial, his ex-

girlfriend, Lori Eastman Carter,

testified for the prosecution, over the objection of defense counsel,

that [King] had attempted to kill her on October 13, 1982. According

to Ms. Carter, the appellant hit her with a slapstick numerous times

while repeatedly asking her “how it felt to be dying, so that the next

woman he killed he would know how she felt.” Ms. Carter testified

that the appellant was sober when he attacked her with the slapstick.

Id. at 331.

At the post-conviction hearing, defense counsel asserted that “he decided to abandon the use

of voluntary intoxication to defend [the defendant’s] actions after the testimony of [the defendant’s]

ex-girlfriend, Lori Eastman Carter . . . [because] Ms. Carter’s testimony was unexpected and

devastating to the appellant’s case.” Id. Counsel asserted that “the theory of voluntary intoxication

was rendered futile after Ms. Carter’s testimony.” Accordingly, counsel “revised the defense theory

solely in response to the surprise testimony of Ms. Carter.” Id. Our supreme court determined that

counsel’s change of strategy during trial did not constitute ineffective assistance. Id.

In the instant case, the post-conviction court observed in its order denying relief that “[t]he

case before this court is similar to the King case except the surprise is not what proof the state put

on but the proof they did not put on.” However, from our careful review of the record, we conclude

that the instant case is nearly identical to Zimmerman. The theory of defense from the inception of

the case was that the petitioner acted under extreme passion and emotional duress at the time of the

shooting, and, therefore, he could not form the requisite mens rea for first degree murder. Dr.

Schacht was fully prepared to testify regarding the petitioner’s mental state at the time of the offense.

Acting according to the predetermined strategy which featured Dr. Schacht’s testimony as an

essential component, Brewer informed the jury during both voir dire and opening statement that they

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would hear from psychological experts concerning the petitioner’s mental state at the time of the

shooting and the petitioner’s family history of depression and suicide.

According to the testimony of Wohlford and Brewer, following the conclusion of the

testimony of the petitioner’s daughters, Newton believed that the defense should rest on the

“emotional high point” created by their testimony. Brewer and Wohlford argued that to do so would

damage the defense’s credibility with the jury by leaving the jury with an unfulfilled and unexplained

promise of expert testimony. Regardless, Brewer and Wohlford conceded to Newton’s decision

because Newton was acting as lead counsel and had experience in criminal law.8

The State argues that Newton made a tactical decision to not call Dr. Schacht because the jury

had not heard testimony regarding certain bad acts. Prior to trial, Newton presumed that the State

would present evidence of the prior acts of abuse. Accordingly, he wanted to take advantage of the

State’s failure to present such evidence. However, both Wohlford and Brewer testified at the post-

conviction hearing that Dr. Schacht planned to testify regarding all of the petitioner’s bad acts in

order to explain the downward spiral of the petitioner’s mental health. Dr. Schacht asserted that had

the prior bad acts not been brought out in previous testimony, he would have related the acts to the

jury in explanation of his analysis of the petitioner. Specifically, Dr. Schacht testified that

[i]t was my understanding, again, that all of this information was

going to come out through the other witnesses. In fact in the, in one

of the outlines of proposed testimony that I provided to the attorneys

I put that on the heading that this is, you know, this assumes that

you’re going to do all that stuff. Because that’s what we had

discussed. So if, if none of that had come in through other witnesses,

then I suppose I would have had to do that myself.

In Zimmerman, this court cautioned that a “‘trial attorney should only inform the jury of the

evidence that he is sure he can prove. . . . His failure to keep [a] promise [to the jury] impairs his

personal credibility. The jury may view unsupported claims as an outright attempt at

misrepresentation.’” Zimmerman, 823 S.W.2d at 225 (quoting McCloskey, Criminal Law Desk

Book, § 1506(3)(O) (Matthew Bender, 1990)). In the instant case, trial counsel failed to keep their

promises to the jury, without a reasonable basis for such departure. All potential pitfalls regarding

Dr. Schacht’s testimony were known and considered by counsel prior to trial. If counsel had

determined that a chance existed that Dr. Schacht would not be called to testify at trial, counsel

should not have assured the jury that they would hear his expert testimony, or, in the alternative,

should have offered the jury an explanation for the failure to call the expert. We note that “[t]he first

thing that the ultimately disappointed jurors would believe, in the absence of some other explanation,

8

In the order denying the petitioner’s claim for relief, the post-conviction court remarked, “Although there is

an old saying to the effect that victory has many fathers and d efeat is a b astard, the old saying is no t applicable in this

case as all the credible proof indicates that A ttorney N ewton was to call the critical shots.”

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would be that the [expert was] unwilling, viz., unable, to live up to [his] billing.” Anderson v.

Butler, 858 F.2d 16, 17 (1st Cir. 1988).

In the instant case, counsel promised expert testimony to the jury and failed to explain the

failure to keep that promise. Therefore, as in Zimmerman, “[w]e are . . . constrained to hold that the

efforts of trial counsel were deficient, not necessarily with respect to preparation or investigation,

but by the peremptory abandonment of the pre-established and reasonably sound defense strategy

– providing for the testimony of . . . a psychologist.” 823 S.W.2d at 224. Moreover, we conclude

that there existed a reasonable probability of a different result at trial, namely a conviction of a lesser

offense, had the promise to the jury been fulfilled.

2. Failure to Seek Prompt Treatment

Related to the foregoing issue, the petitioner contends that counsel erred in failing to seek

prompt medical and psychological treatment for his mental problems after the shooting. The record

reflects that the offense occurred on June 21, 1995. Newton and Wohlford contacted Dr. Schacht

regarding an evaluation of the petitioner in November 1995.

While it may have been preferable to seek immediate professional help for the petitioner,

particularly in light of the documented strangeness in his behavior surrounding the time of the

shooting, we cannot definitively say that the petitioner was prejudiced by this failure. Moreover, we

note that Wohlford testified at the post-conviction hearing:

I didn’t think as a . . . strategy for a criminal defense case that you

ought to put your client in a residential mental health institute just for

the purpose of – of trial later on unless he really sincerely needed that

help and [the petitioner] never demonstrated to me, in the dealings

that I had with him that . . . he needed that type of assistance.

See State v. Kerley, 820 S.W.2d 753, 755 (Tenn. Crim. App. 1991). This issue is without merit.

3. Voluntary Intoxication

The petitioner also claims that counsel was ineffective in failing to pursue a defense of

voluntary intoxication. At the post-conviction hearing, Wohlford testified that he and Newton

discussed using voluntary intoxication as a possible defense. However, Newton asserted that in his

experience as a criminal defense attorney, juries did not respond well to the defense of voluntary

intoxication. Moreover, the post-conviction court observed that “the defense at trial was that the

petitioner became passionate over his wife’s drinking not his own. An effective attorney that is

trying to get the jury on his client’s side on . . . the basis that the wife was a long-term drunk might

consider not making his client a drunk also.” We conclude that counsel reasonably made a tactical

choice not to pursue a defense of voluntary intoxication. We will not now second-guess that

decision. See State v. Hellard, 629 S.W.2d 4, 9 (Tenn. 1982).

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4. Failure to Cross-Examine Fields

The petitioner argues that counsel was deficient in failing to cross-examine the only

eyewitness to the crime, Brad Fields. Initially, we note that the petitioner failed to call Fields to

testify at the post-conviction hearing. Therefore, Fields’ proposed testimony at trial is speculative

at best. See Black v. State, 794 S.W.2d 752, 757-58 (Tenn. Crim. App. 1990).

Additionally, Wohlford testified at the post-conviction hearing that Newton asked the trial

court, in the presence of the jury, to begin his lengthy cross-examination of Fields after lunch so the

questioning would not be interrupted. Wohlford also stated that he, Brewer, and Newton met during

the lunch recess after Fields testified at trial. Counsel discussed the damaging effects of Fields’

testimony and contemplated further damage that could be done by extended examination. Wohlford

and Brewer suggested that Newton perform a limited cross-examination of Fields, confining the

questions to the petitioner’s unusual and detached behavior and his expressions of suicidal ideations.

However, Newton suggested that little could be gained by cross-examining Fields; therefore, he

determined not to cross-examine Fields. Wohlford explained that “Newton did not want to further

imprint negative testimony in the minds of the jury.” The post-conviction court noted, “If a cross-

examination would only involve the witness repeating what had been brought out on direct, this

would only reemphasize what had been brought out on direct examination.” We conclude that this

was a tactical decision made by counsel after considering the effects of Fields’ testimony. While we

might have chosen an alternate strategy, we will not now exercise hindsight in critique of counsel.

See Hellard, 629 S.W.2d at 9.

5. Failure to Conduct Rule 404(b) Hearing Pretrial

The petitioner complains that “counsel did not seek a pretrial ruling on the admissibility of

404(b) evidence nor did [counsel] brief the issues in anticipation of trial.” Initially, we note that the

petitioner failed to cite any authority in support of his contention that counsel was ineffective in

failing to pursue a pretrial ruling on the admissibility of 404(b) evidence, arguably waiving this issue

on appeal. See Tenn. Ct. Crim. App. R. 10(b) (“Issues which are not supported by argument, citation

to authorities, or appropriate references to the record will be treated as waived in this court.”).

In relation to this issue, we note that Tennessee Rule of Evidence 404(b) provides:9

Evidence of other crimes, wrongs, or acts is not admissible to

prove the character of a person in order to show action in conformity

with the character trait. It may, however, be admissible for other

purposes. The conditions which must be satisfied before allowing

such evidence are:

9

Effective July 1, 2003, Rule 404(b) was am ended. Regard less, we have cited the rule as it existed at the time

of the ap pellant’s trial.

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(1) The court upon request must hold a hearing outside the

jury’s presence;

(2) The court must determine that a material issue exists other

than conduct conforming with a character trait and must upon request

state on the record the material issue, the ruling, and the reasons for

admitting the evidence; and

(3) The court must exclude the evidence if its probative value

is outweighed by the danger of unfair prejudice.

Prior to trial, the trial court offered the State and defense counsel an opportunity to argue

regarding the admissibility of prior acts testimony. The trial court told both parties, “I wouldn’t be

insulted if each side presented a brief in fact. I won’t require it, but if you all want to, I would

welcome it.” Wohlford testified at the post-conviction hearing that the trial court also gave counsel

the option of arguing any Rule 404(b) issues during trial. Newton optioned to reserve argument

regarding prior acts testimony until trial. Wohlford opined that if counsel had argued prior acts

pretrial, the petitioner’s already highly publicized case would have received even more media

coverage. Moreover, Wohlford stated that Newton was prepared to deal with any Rule 404(b) issues

during trial and seemed to have no difficulty addressing the issues as they arose.

We can discern no appreciable prejudice suffered by counsel’s failure to seek a pretrial ruling

on Rule 404(b) testimony. The State presented no testimony regarding prior acts of abuse by the

petitioner during its case-in-chief. The prior acts testimony produced at trial was triggered by the

testimony of defense witnesses. Even with a pretrial ruling, the prior acts evidence would have still

been admissible as a result of the daughters “opening the door” to the testimony. Moreover, as the

post-conviction court noted, this court determined on direct appeal that the testimony regarding the

assault charge and the incident in which the petitioner smashed Arin’s car window with a sledge

hammer were admissible at trial. See State v. Harry David Johnson, No. 03C01-9712-CR-00526,

1999 WL 318830, at **9-10 (Tenn. Crim. App. at Knoxville, May 17, 1999). This issue is without

merit.

6. Failure to Utilize Jencks Material

The petitioner claims that counsel was ineffective in failing to request and use Jencks

material during trial, specifically in relation to Officer Joe Delp. Tennessee Rule of Criminal

Procedure 26.2(a) provides:

After a witness other than the defendant has testified on direct

examination, the trial court, on motion of a party who did not call the

witness, shall order the attorney for the state or the defendant and the

defendant’s attorney, as the case may be, to produce, for the

examination and use of the moving party, any statement of the

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witness that is in their possession and that relates to the subject matter

concerning which the witness has testified.

Rule 26.2 is Tennessee’s version of the Jencks Act which was created as a result of the Supreme

Court’s decision in Jencks v. United States, 353 U.S. 657, 77 S. Ct. 1007 (1957). See State v.

Brown, 871 S.W.2d 492, 494 (Tenn. Crim. App. 1993). It has been long established that “an

officer’s own investigation report constitutes a prior ‘statement’ by that officer, unless for some

reason it fails to qualify under paragraph (F) [of Rule 26.2].” State v. Robinson, 618 S.W.2d 754,

760 (Tenn. Crim. App. 1981).

The petitioner argues that counsel should have requested the police report prepared by Officer

Delp. Counsel should have then exposed on cross-examination that the report did not mention that

the petitioner “smirk[ed]” at Officer Delp, nor did the report reflect that the petitioner asked Officer

Delp, “Do you know who I am?” However, we do not discern any clear impeachment value from

such a line of questioning because the report was not necessarily inconsistent with Officer Delp’s

testimony. As such, the petitioner has failed to prove prejudice by counsel’s failure to request and

use Officer Delp’s police report. See Claude Francis Garrett v. State, No. M1999-00786-CCA-R3-

PC, 2001 WL 280145, at *10 (Tenn. Crim. App. at Nashville, Mar. 22, 2001).

7. Jury Instructions

The petitioner also contends that counsel erred in failing to request several special jury

instructions. The petitioner further contends that even if counsel did not err in failing to request

special instructions, the trial court committed plain error in instructing the jury. We have examined

the jury instructions as a whole, as we are bound to do, and we conclude that the instructions fully,

fairly, and accurately describe the law as it was at the time of the offense. See State v. Mann, 959

S.W.2d 503, 521 (Tenn. 1997); State v. Brown, 836 S.W.2d 530, 539-44 (Tenn. 1992).

Additionally, the post-conviction court observed, “The trial court charged that jury basically

from the T.P.I. Criminal Pattern jury instruction omitting the offending language . . . that

premeditation may be formed in an instant.” We recognize that our supreme court has cautioned that

“pattern jury instructions are not officially approved by this Court or by the General Assembly and

should be used only after careful analysis. They are merely patterns or suggestions.” State v.

Hodges, 944 S.W.2d 346, 354 (Tenn. 1997). Nevertheless, as the post-conviction court found,

“considering that the trial court accurately charged the lesser included offense of second degree

murder, voluntary manslaughter, reckless homicide, and criminally negligent homicide, the court is

of the opinion that the petitioner has failed to establish that trial counsel was ineffective under

applicable . . . standards.” We agree with the post-conviction court.

8. Counsel’s Assessment of Case as First Degree Murder

Finally, the petitioner claims that Newton improperly assessed his case as a second degree

murder case, not a first degree murder case, and thus all of his tactical decisions were tainted by this

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assessment. We note that the testimony at the post-conviction hearing, particularly the testimony

of Dougherty, revealed that Newton was well aware that the petitioner faced a charge of first degree

murder. Nevertheless, Newton remained confident that he could convince the jury to convict the

petitioner of second degree murder. Additionally, as the post-conviction court noted, “considering

the status of proof at trial and as described by Judge Witt on direct appeal, it would appear that a

reasonable and effective counsel might reasonably believe that the top might be second degree

murder or less.” This issue is without merit.

III. Conclusion

Based upon the foregoing, we reverse the judgment of the post-conviction court and remand

for a new trial.

___________________________________

NORMA McGEE OGLE, JUDGE

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