Glen Bernard Mann v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

January 7, 2003 Session

GLEN BERNARD MANN v. STATE OF TENNESSEE

Direct Appeal from the Circuit Court for Dyer County

No. C93-337, 338 Russell Lee Moore, Jr., Judge

No. W2002-00260-CCA-R3-PD - Filed October 9, 2003

The petitioner, Glen Bernard Mann, appeals the trial court’s denial of post-conviction relief. In

1994, the petitioner was sentenced to death by a jury for the premeditated first degree murder of

Anne Lou Wilson, a sixty-two-year-old widow. He was also convicted and sentenced to twenty-five

years for aggravated rape and six years for aggravated burglary of the same victim. The convictions

and sentences were affirmed on direct appeal by both this Court and the Tennessee Supreme Court.

The petitioner is seeking post-conviction relief for, inter alia, ineffective assistance of counsel at

both the guilt and penalty phase of his trial. The post-conviction court, after a hearing, found the

petitioner failed to carry his burden of proving by clear and convincing evidence that his trial counsel

was ineffective. After review, we affirm the post-conviction court’s denial of post-conviction relief.

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which DAVID G. HAYES and

ALAN E. GLENN, JJ., joined.

Donald E. Dawson, Post-Conviction Defender, and Catherine Y. Brockenborough, Assistant Post-

Conviction Defender, for the appellant, Glen Bernard Mann.

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

Geldreich, Assistant Attorney General; and C. Phillip Bivens, District Attorney General, for the

appellee, State of Tennessee.

OPINION

Background

On August 9, 1993, the petitioner was indicted on six counts, two relating to robbery and

assault, and four related to the murder, rape, and aggravated burglary of the victim, Anne Lou

Wilson:

Murder, Rape and Aggravated Burglary Counts:

(1) Premeditated first degree murder, in violation of Tennessee Code Annotated

section 39-13-202;

(2) Felony first degree murder (during the perpetration of burglary and/or rape), in

violation of Tennessee Code Annotated section 39-13-202;

(3) Aggravated rape, in violation of Tennessee Code Annotated section 39-13-502;

and

(4) Especially aggravated burglary, in violation of Tennessee Code Annotated section

39-14-404.

Robbery and Assault Counts:

(1) Robbery, in violation of Tennessee Code Annotated section 39-13-401;

(2) Assault, in violation of Tennessee Code Annotated section 39-13-101.

Facts

After a jury trial, the petitioner was convicted on June 4, 1994, of premeditated first degree

murder, aggravated rape, and aggravated burglary. The proof as set out at the jury trial was

summarized by our supreme court as follows:

[W]ilson was last seen alive on Friday night, July 2,1993, by two friends who gave

her a ride home from the West Tennessee Opry or “Boogie Barn.” According to the

proof at trial, Wilson, along with her two friends, regularly attended the Boogie Barn

on Friday and Saturday nights. Wilson could not drive and would get a ride to the

Boogie Barn with her daughter or her friends and would usually ride home with her

friends when the establishment closed at 11:00 p.m.

After dinner on July 2, Wilson’s daughter dropped her off at the Boogie Barn.

Wilson rode home with her friends, arriving at approximately 11:30 p.m. After

making arrangements to pick her up the next evening and waiting until she was safely

inside her home, they left. The next day when her friends stopped by at the

designated time, Wilson was not waiting for them on the porch, as was her habit, and

they were unable to get a response at the front door. Believing that Wilson had

decided to ride with her daughter, they continued to their destination, but Wilson

never arrived at the Boogie Barn that evening.

Wilson’s daughter, Lottie McPherson, also testified that she was unable to contact

her mother by telephone on Saturday, July 3, but assumed her mother was out visiting

friends. The next day, after attempting several times more to reach her mother by

phone, McPherson became concerned and drove to Wilson’s home to check on her.

When she arrived, McPherson noticed that the mail had not been removed from the

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mailbox on Saturday. Fearing that her mother was physically ill, McPherson

proceeded to the front door with a key ready, but found that the door was not locked.

Upon entering the house, McPherson saw her mother’s body lying in the floor of the

bedroom, on the left side of the bed. McPherson said her mother’s skin was cold and

there was blood all around her body. After seeing her mother, McPherson went

outside and called 911.

Upon arriving at the scene, police found Wilson’s partially nude body on the floor

to the left of the bed. Wilson was lying on her back, with her left arm over her head.

She had been stabbed numerous times and severely beaten. The front of her night

gown and panties had been torn. A large amount of blood was on her head and chest.

Blood also was on her legs and arms and at various places in the room, including on

the carpet and bed. Investigating officers found several items near the body,

including a broken ceramic cat, a brassiere, pieces of white underwear, and a box

containing Wilson’s hearing aid. From the kitchen floor, officers removed a piece

of linoleum which contained a bloody shoe print.

After securing the scene, officers began interviewing neighbors. Tammy Palmer,

who lived four houses down from the victim, gave a statement and thereafter testified

at trial that, as she was leaving for work on Saturday, July 3, 1993, at approximately

5:00 a.m., she noticed a man walking down the street. He was wearing orange shorts

and no shirt and appeared to weigh 180 to 200 pounds and be between 5’10” and

6’0” in height. Palmer said that when she came out of her house, the man stopped

for a few seconds and looked up the driveway toward her. Shortly after the murder,

police asked Palmer if she could identify the man she had seen from a group of

photographs. Palmer selected a person other than the defendant, but told officers she

was not sure that the person in the chosen photograph was actually the man she had

seen. Palmer informed the officers that she would need to see the man in person to

positively identify him. At trial, Palmer identified the defendant as the man she had

seen that morning. Palmer had never seen Mann prior to the morning of the murder,

and had not seen him since that time until the day of her testimony.

Officers also spoke with the defendant, who lived about six houses down from the

victim and was sitting on his porch the morning of the murder. Mann acknowledged

that he knew the victim and said that he and his wife were friends of Wilson and

previously had eaten dinner at her home. Mann consented to a search of his house

and allowed the officers to take a pair of tennis shoes, some shoe strings, red shorts,

and a shirt for further testing. A few days later, the officers obtained a search warrant

to collect blood and saliva samples from the defendant.

On July 7, 1993, police investigators asked the defendant and several members of his

family to accompany them to the police station for questioning. Although no charges

had been brought, the defendant was advised of his constitutional rights. During the

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initial interview, Mann denied any involvement in Wilson’s murder. Mann said that

Wilson had been generous to him and his family by providing them meals and

allowing them to use her phone. He claimed that he had not even been in the

neighborhood at the time of her murder. When confronted with inconsistencies in

his alibi, however, Mann admitted that he had broken into Wilson’s home and killed

her. However, this interview was not tape-recorded due to an oversight by the

investigating officers. Though he initially refused, after being allowed to speak with

his wife, Mann gave another statement which was recorded.

During this interview, Mann said that he awoke on Saturday, July 3, and decided to

walk around his neighborhood. He was wearing red shorts, white “K-Swiss” shoes,

and no shirt. He remembered seeing a woman standing in her driveway as he walked

through the neighborhood. He stopped for a moment, but continued walking and at

some point, decided to go to Wilson’s home, intending to steal her television and

pawn it to get money to pay his rent. He arrived at Wilson’s home at approximately

6:00 a.m. After knocking on the front door several times and receiving no answer,

Mann shoved the door open with his shoulder and walked toward the television.

When Mann saw Wilson coming out of the bedroom, he grabbed a sheet off the

couch, threw it over her head so that she could not see him, and ran towards the front

door. When Wilson pulled the sheet off her head and called out his name, Mann ran

back and pushed Wilson into the bedroom and onto the bed.

The precise order in which events occurred thereafter is not exactly clear, but the

evidence established that Wilson, who was hearing impaired, reached for the box

containing her hearing aid. Mann knocked it out of her hand. As Wilson continued

to call Mann’s name, he grabbed a sheet from the bed, covered her face, and held her

down by placing his hand around her neck. At some point while she was on the bed,

and before she was struck in the head, Mann tore off Wilson’s underwear, digitally

penetrated her vagina while masturbating, and ejaculated onto her body. Mann

grabbed a ceramic cat statue and struck the victim twice in the head with it, knocking

her to the floor on the left side of the bed. While the victim lay on the floor, Mann

ran to the kitchen and obtained a knife. According to Mann, the victim was

conscious and calling out his name during this time. Upon returning to the bedroom,

Mann stabbed Wilson in the chest several times, because, at first, the knife “wouldn't

go in.” Finally, he “pulled the knife out, got up and went home.” When Mann

arrived home, his wife was asleep. He washed his hands with a blue wash cloth and

went to bed, but was unable to sleep because he was “hurting.” Mann said that he

later burned the shorts he was wearing and discarded the knife he had used near a

levee.

Mann specifically denied telling anyone, other than the police, about the facts of the

murder. Denying that he had intended to kill Wilson, Mann said that he only had

intended to steal her television and pawn it for rent money, and that he had

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specifically chosen her house because he knew she was hearing impaired and thought

he could get in and out without being detected. Mann attempted to describe the

strange feeling that had come over him before he committed the murder. He denied

being under the influence of drugs at the time of the killing and repeatedly told the

interrogating officer that he had a problem and needed help. Mann did not testify at

trial, but the recorded confession was played for the jury.

Dr. O’Bryan Clay Smith, the Deputy Chief Medical Examiner for West Tennessee,

performed the autopsy on Wilson’s body. Dr. Smith opined that Wilson had

sustained at least fifteen blows to the head by blunt force, resulting in lacerations,

bruises and abrasions. Some of the injuries were consistent in pattern with the

broken portion of the ceramic cat. Dr. Smith testified that such head injuries can be

fatal, but did not cause instantaneous death in this case.

Dr. Smith testified that Wilson also had suffered fourteen superficial stab wounds to

the abdomen, and eleven separate stab wounds to the chest area, ranging in depth

from just under one inch to over four inches. One of the stab wounds penetrated

Wilson’s lung and had a portion of her night gown embedded in it. Another wound

penetrated the left ventricle of her heart. Dr. Smith determined that either wound

would have been fatal, and could have resulted in death in as little as several minutes

or as long as an hour following infliction of the wound. The wounds did not,

however, result in instantaneous death. Dr. Smith also found injuries to Wilson’s

neck consistent with manual strangulation, but concluded that these injuries did not

result in instantaneous death. The autopsy revealed that Wilson had sustained two

fractured ribs as a result of the stab wounds. She suffered a laceration of the vaginal

tissue, which, Dr. Smith opined, was caused by an object being forcefully placed in

her vagina. The autopsy revealed extensive swelling around Wilson’s left wrist and

thumb area as well as deep bruising in the left wrist region, which extended into the

tendon sheath of the wrist itself. This bruising was caused by considerable blunt

force and was consistent with defensive wounds. Dr. Smith concluded that Wilson

died from multiple injuries: blunt force to the head, compressive forces applied to

the neck, and multiple stab wounds to the chest and abdomen, but he was unable to

determine in which order the wounds were inflicted. Based on the pattern of dried

blood on Wilson’s left arm and right leg, however, Dr. Smith concluded that Wilson

was in an upright position for some period of time after the blows to her head were

inflicted.

A Tennessee Bureau of Investigation (T.B.I.) forensic specialist in shoe and tire track

comparisons and fiber and physical comparisons testified at trial. She had performed

a shoe track comparison on the white tennis shoes recovered from Mann’s home and

the partial foot print on the piece of linoleum recovered from the victim’s home and

determined that the shoes were consistent in size, shape, and tread design with the

print on the linoleum. No definitive match was possible, however, since no

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individual characteristics, such as cuts, tears, or wear patterns were present on the

shoes. In addition, she had compared three knives recovered from Mann’s home with

the cuts in the victim’s nightgown and had concluded that any of the knives could

have made the cuts. Finally, she found no evidence of fiber transfers from another

source onto the victim’s clothing or bedding.

Also testifying for the State was a T.B.I. serology specialist who said she found

human blood on one of the white tennis shoes, but the quantity was insufficient to

conduct further testing. No blood was found on the orange shorts recovered from

Mann’s home. Although human blood was found on the blue wash cloth recovered

from Mann’s house, the blood was preserved for DNA analysis, so no further testing

was performed. On the ceramic cat removed from the scene of the crime, blood

consistent with that of the victim was found. Finally, semen and spermatozoa were

found in combed pubic hair obtained from the victim’s body.

Due to problems with the manner in which evidence was collected and stored, the

forensic DNA analyst with the T.B.I. testified that she was only able to perform

adequate DNA testing on a pair of Mann’s socks and a pair of red shorts. Blood was

found on these items, but it matched that of Patrick Sweat, an individual with whom

Mann had fought on July 1, 1993, two days before Wilson’s murder.

The defendant offered no proof during the guilt phase of the trial.

State v. Mann, 959 S.W.2d 503, 505-508 (Tenn. 1997) (footnote omitted).

Sentencing Hearing:

The evidence adduced at the subsequent sentencing hearing was summarized by our supreme

court as follows:

Dr. Smith again testified for the State. He stated that the fifteen blows to Wilson’s

head would have been severely painful and caused profuse bleeding, but were

probably “insufficient to cause unconsciousness.” Because the blows were inflicted

with moderate to severe force which would have produced a large amount of medium

velocity blood spatter, and because the crime scene did not reflect the expected blood

spatter, Dr. Smith concluded that the victim’s head was probably wrapped in a

blanket. Dr. Smith also observed that the manual strangulation, evidenced by the

bruises on the victim’s neck, would have been painful, causing “extreme distress as

[the victim became] hungry for air.” Though the stab wounds which penetrated the

victim’s heart and lung would have caused pain and bleeding, and interfered with

Wilson’s ability to breath, Dr. Smith determined that none of the wounds caused

instantaneous death. Likewise, although not fatal, the abdominal puncture wounds

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would have caused moderate pain and minimal bleeding. Dr. Smith opined that all

of the wounds were inflicted prior to the victim’s death. He said that she could have

survived as little as several minutes or as long as an hour after the stab wounds were

inflicted. Based on the blood spatters in the bedroom, and the pattern of blood flow

on the victim’s clothing and body, Dr. Smith opined that some of the wounds were

inflicted while Wilson was conscious and in an upright position.

Testifying on behalf of the defendant was Dr. Chris Sperry, the Deputy Chief

Medical Examiner for Fulton County, Georgia. Dr. Sperry reviewed the autopsy

report and opined, contrary to Dr. Smith, that the initial blow to her head rendered

Wilson unconscious. Dr. Sperry based this conclusion on the nature and severity of

the head injuries and the lack of defensive wounds to Wilson’s hands and arms. If

the victim had been unconscious during the attack, Dr. Sperry said, she would not

have felt the pain caused by the various wounds. When questioned on

cross-examination, however, Dr. Sperry opined that Wilson had suffered “serious

physical abuse beyond that necessary to produce death.”

Through the testimony of his mother, the jury learned that Mann is the ninth child in

a family of ten living children. Mann was placed in special education classes until

he dropped out of school in ninth grade. Mann lived with his parents until he

married, and according to his mother, Mann was helpful at home. The defendant’s

mother asked the jury to forgive her son and grant him a second chance. She said

that she has given up three children in death and does not want to lose another.

The defendant’s father testified that he has served as the pastor of the Original

Church of Jesus Christ in Dyersburg for nineteen years. He said that Mann had been

brought up in church. He apologized to the victim’s family and asked the jury to

spare Mann’s life, saying that executing the defendant will not correct the wrong that

has been done.

Finally, the defendant’s wife of just over one year testified that Mann had been a kind

and considerate husband. She made an emotional plea to the jury to spare her

husband's life.

State v. Mann, 959 S.W.2d 508-509 (Tenn. 1997).

Based upon the proof, the jury found two statutory aggravating factors under Tennessee Code

Annotated section 39-13-204(I):

(5) The murder was especially heinous, atrocious, or cruel in that it involved torture

or serious physical abuse beyond that necessary to produce death; [and]

(7) The murder was knowingly committed . . . while the defendant had a substantial

role in committing . . . burglary.

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The jury found the aggravating factors outweighed any mitigating factors and sentenced the

petitioner to death. This Court affirmed the convictions and sentences on direct appeal, and our

supreme court affirmed.1

Post-Conviction

The petitioner sought post-conviction relief, contending the following:

(1) Ineffective assistance of counsel at the guilt stage of his trial;

(2) Ineffective assistance of counsel at the penalty stage of his trial; and

(3) The trial court’s analysis of the facts and its application of the law were clearly

erroneous.

During the post-conviction hearing, the petitioner called the following witnesses: trial co-

counsel; Terry Wayne Sweat; lead counsel; Latonya Mann; John Herman Mann; Connie Westfall;

Johnnie Mae Mann; William Redick; Dr. Frank Einstein; Dr. Dorothy Granberry; Dr. Murray Smith;

Dr. Pamela Auble; and Dr. George Woods. Their testimony is summarized as follows:

Trial co-counsel, currently a city judge and juvenile referee for Dyer County, testified that

in April 1994, he was appointed to assist lead counsel in the defense of the petitioner. Co-counsel

said the trial was set to commence on May 31, 1994, and between the time of his appointment and

the start of the trial, lead counsel consulted with him on several occasions. He said that lead counsel

wanted to try to get the case settled on a life sentence without parole, and lead counsel felt that he

might be influential in getting the petitioner to accept that. Co-counsel stated that lead counsel went

on vacation for a few days during this time. Co-counsel further recalled meeting with the petitioner’s

family, with specific emphasis on settling the case prior to trial. He testified that he could not recall

any discussions with lead counsel about mitigation theories at the sentencing phase nor the

petitioner’s psychological functioning. He said he could not say those discussions did not happen,

but he could not recall them as they left no impression on him. Additionally, he said he could not

recall any further details of his part in the petitioner’s representation.

On cross-examination, co-counsel testified that the proof as to the guilt phase was

overwhelming against the petitioner. Furthermore, he testified that he was aware of an outstanding

offer by the State of a plea to a sentence of life without the possibility of parole and that he and lead

counsel relayed the offer to the petitioner and his family, but the offer was met with resistance by

the petitioner’s brother, Eddie Joe Mann. Co-counsel said he then told the petitioner that, based on

1

The following issues were raised on direct appeal: (1) Whether the evidence was sufficient to sustain a

conviction for premeditated first degree murder; (2) Whether the trial court incorrectly instructed the jury regarding the

laws of homicide; (3) Whether the appellant’s trial counsel was afforded the approp riate time, assistance, and

compensation; (4) W hether the appellant’s statements were introduced against him in violation of his constitutional

rights; (5) W hether the jury was pro perly selected; (6) W hether the trial court incorrectly instructed the jury regarding

the jury’s consideration of mitigation evidence; (7) Whether the death penalty unconstitutionally infringes upon the

app ellant’s right to life; (8) W hether the pro secuto r infringed upon the ap pellant’s right to trial by offering a life sentence

in return for a guilty plea; and (9) W hether the T ennessee death penalty statute is unco nstitutional.

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the facts of the case and the confession, he could “very easily” receive the death penalty. He said

that his voir dire efforts were in hope of obtaining non-death penalty jurors, although he also said

that he did not suggest to lead counsel to use jury questionnaires. Additionally, he testified that he

was unaware of any defenses to the State’s proposed aggravating factors.

On redirect, co-counsel testified that he did not investigate the source of the petitioner’s

brother’s influence on the petitioner nor was he aware of the petitioner’s IQ. He said he was

uninvolved in any efforts to suppress the petitioner’s statements. Co-counsel testified that he did not

recall discussing with lead counsel the importance of developing mitigation evidence.

Terry Wayne Sweat was a criminal investigator for lead counsel who began work on the

defendant’s case in August of 1993. He testified that while he had “probably two years of college

work, which included criminal justice courses . . .,” he did not have any formal training nor did he

have any psychological, social work, medicine, or psychiatry classes in college. Additionally, he

testified that, prior to this case, he had not been involved in any capital murder case sentencing

preparation.

Sweat recalled financial problems with regard to the funding of the investigation. He said

the financial problems arose from lead counsel’s fee paid by the Mann family. He said that,

eventually, lead counsel filed for investigative services, but it was not until January 29, 1994, that

he (Sweat) was approved. He testified that in an affidavit he prepared in April 1994, he indicated

he had not yet completed the guilt phase investigation, “let alone started on the mitigation phase.”

Moreover, he testified to a May 13, 1994 affidavit where he said he had not started serious mitigation

investigation.

Sweat added that on May 25, 1994, lead counsel received a list of twenty-one witnesses the

State intended to call at trial, including seven police officers. He said that as of that date, he had

interviewed three of the seven police officers. Furthermore, he testified that, at that time, he had

someone else helping him interview outside witnesses and said, “I didn’t interview any but the

officers that I mentioned, and I know there was one or two other independents. But out of the others,

I didn’t interview them.”2

Sweat further related that Gail Hedrick assisted in the defense’s investigation. He said that

Hedrick interviewed witnesses and gathered information despite having no formal training as an

investigator. He said she was, in fact, a hairdresser who was taking criminal justice courses at the

local college. Shortly after the petitioner’s trial, he said that, to his knowledge, Hedrick failed to

pursue a career in criminal justice and returned to hairdressing.

Sweat testified that lead counsel attempted to obtain the services of various experts. He said

that Gillian Blair, a Nashville-based psychologist, was contacted by the defense team to evaluate the

2

W e have determined that what Sweat was testifying to was that out of the twenty-one total witnesses on the

list, he interviewed three police o fficers and possibly one or two others.

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petitioner. Sweat could not recall whether there was any effort to obtain a mitigation specialist. He

said inquiries were made into other potential suspects leading to the conclusion that one suspect, Tim

Armstrong, had a viable alibi.

Sweat testified that he made no effort to interview the petitioner’s prior employers and, to

his knowledge, no effort was made by any member of the defense team. He said neighbors, former

teachers, and friends of the petitioner were interviewed. A review of the petitioner’s school records

led Mr. Sweat to notice that the petitioner had a learning disability. He said he discussed the

petitioner’s education with two people from the school system, although he did not look into what

programs were available to the petitioner in the Dyersburg School System.3 He again testified that

little had been done in terms of developing the mitigation theories in this case.

On cross-examination, Sweat testified that while he had not worked on a sentencing phase

of a capital case, he had worked on first degree murder cases.4 He said that in preparation for this

case, he met with William Redick, the director of the Capital Case Resource Center (“CCRC”) at

the time, and obtained some guidance and information, although he was unable to recall the

specifics. He said he met with the petitioner’s family members, namely his wife, mother, and

brother, in an effort to obtain background information. He said that the petitioner’s mother was

cooperative, but that his brother, Eddie Joe Mann, was not. He said there were discussions with the

petitioner and his family regarding a plea to life without parole, but that such a plea was opposed by

Eddie Joe Mann. Additionally, Sweat said he was unable to gather any evidence which would show

that the petitioner was not guilty of the murder. He further stated that he only deemed the

information gathered from the petitioner’s family, and not from neighbors or friends, useful for

purposes of mitigation. He finished by saying that while he had never previously worked on

mitigation before, he had direction from lead counsel, Redick, other members of the CCRC, and

Gillian Blair in this case. He had also talked to neighbors and family members, had obtained school

and medical records, and had done anything the above individuals instructed him to do.

On redirect examination, Sweat testified that if, when he was conducting his interviews and

reviewing records, he had discovered the petitioner was involved in numerous fights, that “could

very well have been . . .” helpful as mitigation. He said that no one compiled the obtained

documents into anything resembling a time line or a social history of the petitioner.

3

Sweat identified one of the school system workers as Ann Thompson, but referred to the other as “another lady

at the board of education.”

4

Sweat’s testimony to this effect is confusing. The following is how he responded to the question,“But had

you worke d on prior cases of first degree m urder, as far as guilt phase of trials?” Sweat respo nded, “N o sir, not that I

recall, Mr. Bivens. And it seems like I did work on at least one or more first degree murder cases. And, of course, the

guilt phase, you know , would have b een, of course, my area. B ut I can’t recall what any of the sp ecifics may have been .”

W e conclude that based on the details from Sweat’s answer, he had worked on a first degree murder case concerning the

guilt phase.

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The petitioner’s lead counsel testified that he had about twenty-four years of experience

practicing law at the time of the trial. He said he originally told the client that he would charge

$10,000 for a non-capital murder case and that he thought he was paid about $3200 or $3250, so

that he was involved in the case and was not paid in full. Lead counsel testified that when he

originally agreed to take the case, he did not think the State would request the death penalty. He said

that Stafford Hagwood, another attorney who was first retained by the petitioner’s family, had died

in a car accident, so he (lead counsel) became involved in late July or early August of 1993. He said

he received notice that the State would seek the death penalty when they filed their aggravating

factors in October 1993.

Lead counsel testified that he was the senior partner in a law firm with three other lawyers

and “probably a dozen” other workers when he was involved with this case. He said the overhead

on the firm was about $30,000 to $35,000 per month. Additionally, he said that during that time,

the firm lost “probably two” lawyers, which resulted in an increased caseload for him. He testified

that the bulk of his practice involved “personal injury, workmen’s comp, social security, criminal,

and, at that time, domestic.” Furthermore, he testified that he practiced in nine or ten different

counties, in “General Sessions, City, Chancery, Circuit, Federal” courts, and had an active appellate

practice.

Lead counsel testified that he filed a motion to become appointed counsel for the petitioner

because the representation was causing difficulty for his firm. He said a fair fee for a privately

retained lawyer for a case of this magnitude would be a “quarter of a million dollars.” He said that

his motion to be appointed counsel was denied because he was originally a retained lawyer and that

if the court was going to appoint counsel, he or she would be from the public defender’s office. He

testified that, principally, he was the sole lawyer from his firm handling this case.

Lead counsel testified that he used Terry Sweat and Gail Hedrick as investigators. He said

that to his knowledge, Hedrick had no prior criminal investigation experience. He said they would

discuss what was needed using a form he obtained from the CCRC. He testified that he recalled

Hedrick obtaining school, hospital, and health records, but did not remember whether she obtained

the petitioner’s juvenile records.

Lead counsel testified that the petitioner was initially examined to determine if he was

“death qualified, IQ-wise.” Additionally, he sought funds for a psychologist, Gillian Blair. He said

the various examinations and records of the petitioner indicated that he suffered from a severe

reading disability. He further testified that the results of an IQ test revealed that the petitioner had

a verbal IQ of 75, a performance IQ of 92, and a full-scale IQ of 80. He said that prior tests had

revealed a verbal IQ of 69, a performance IQ of 96, and a full-scale IQ of 81. He said it would be

a fair statement to say that the petitioner would potentially have difficulty understanding the spoken

language. Lead counsel testified that he did not believe the evidence was sufficient to convict the

petitioner without the petitioner’s confession. He stated that one of the issues presented at the

suppression hearing was whether the petitioner had knowingly and voluntarily waived his right to

remain silent before making his confession. Lead counsel said that Dr. Blair’s report and the

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psychological evidence it contained would have been useful at the suppression hearing in

establishing whether the petitioner’s confession was coerced. Notably, lead counsel later testified

that he did not have “nothing to lose” by challenging the credibility of the petitioner’s confession

because he did not want to inflame the jury.

Lead counsel testified that he took a trip to Ireland before the trial, returning approximately

one day before the trial started. He said that when he left for Ireland, he thought the case would be

settled, but he “wasn’t prepared to try this case at all. This case didn’t need to be tried.” He said that

he was trying to convince the family to accept a plea to “ordinary life” in prison and that he asked

Skip Gant, an African-American lawyer with the NAACP, to talk to the family because he thought

the problems he was having convincing them to accept the plea was due to the “race thing.” Lead

counsel said there was a hearing before the trial judge on May 18, 1994, where he discussed that he

was going to Ireland on May 20, 1994, and that due to the trip, he would not be prepared for a May

31, 1994 trial. He said that his being unprepared was due, in part, to his investigator’s lack of

mitigation experience.

Lead counsel said he sought funds for the use of a pathologist, Dr. Sperry, from Georgia. He

said the trial judge would not authorize funds for Dr. Sperry because he wanted lead counsel to use

the State’s pathologist, Dr. O.C. Smith. Lead counsel said Dr. Smith is not a friend of the defense,

and he did not think he would be helpful to their case. He said he was not convinced the case would

settle at that point and, therefore, he was unprepared to proceed to any sentencing phase. He said

he did not believe his investigator, Terry Sweat, had the proper experience to prepare a mitigation

package. He explained that Sweat was preoccupied with other cases, when investigators with private

investigation agencies such as Inquisitor, Inc., devote their full time and attention to mitigation.

Moreover, he said those type of investigators have strong backgrounds in social sciences and

psychology, unlike Sweat who merely followed a checklist prepared by the CCRC.

Lead counsel testified that in his dealings with co-counsel, they did not really have any

substantive discussions about trial strategy, although the basic arrangement was that co-counsel

would assist with voir dire. Concerning the investigation of prospective jurors, lead counsel testified

that while they did not conduct specific questionnaire background checks of the prospects, they used

some general knowledge and general questions in order to find out more about them, especially since

they were in a small town. He said that basically, as late as May 30, 1994, both he and co-counsel

were under the impression the petitioner would accept the plea bargain and that had they known he

would not, there were other things they would have worked on. However, he said, most likely due

to the interference of the petitioner’s brother, Eddie Joe Mann, the petitioner changed his mind and

did not accept the plea. He testified that they then requested more time to either try to convince the

petitioner to take the plea or in order to do further preparation, but the request for more time was

denied.

Lead counsel testified that based on what he knew five years after the trial, he would have

further researched and developed the behavioral problems experienced by the petitioner. However,

he said he did not think any requests he could have made for additional funding for investigation

-12-

would have been granted by the trial court. He further testified that there were a number of other

areas which should have been more deeply investigated in terms of mitigation themes, including the

petitioner’s sexual problems, IQ problems, and failures in the school system. He said a mitigation

specialist would have picked up on some of these themes which were missed in his investigation and

mitigation preparation.

Lead counsel testified that, at the penalty phase of a capital case, counsel would want to

include things such as the petitioner’s split IQ, problems in school, and drug use. He said that while

some of that answer was based on hindsight, it is possible that some of the evidence can be used for

mitigation. He said co-counsel had not developed a theory of defense but it was not his job. He then

said that “a theory of defense had not been developed in this case . . . .” Furthermore, lead counsel

said, “You would want to have your theory of mitigation understood and done before the guilt-

innocence phase . . . .” Lead counsel agreed that he “really seriously needed a mitigation specialist”

which was not provided. He said that he requested a recess of five days when the penalty phase

began because he had “a bunch of junk for mitigation.” Although “[f]or whatever reason . . . ” he

was unprepared, much of that reason was the lack of a mitigation specialist. The recess was denied.

After the trial court denied the five-day recess, lead counsel said, “Well, I wouldn’t say I

immediately began to prepare. I had Dr. Blair subpoenaed here. I had Dr. Sperry here, and, of

course, [the petitioner’s] mother and father were here.” He said he met with the family members the

final time for less than thirty minutes, basically to get them on the stand and try to get some

sympathy. He said the mitigation theory they presented to the jury “did not compare to what one of

these mitigation specialist[s] can do. It was scant material.” He said Dr. Sperry was called to negate

the heinous, atrocious, and cruel aggravator. He said he did not remember if he got into the law with

Sperry as much as his medical training testimony. He said Sperry was strong on direct examination

in testifying that there was no torture because the victim was rendered unconscious. However, he

said the district attorney did an incredible job on him during cross-examination such that Dr. Sperry

essentially proved the aggravator rather than defended it. Lead counsel said he called his second

witness, William Redick, of the CCRC, out of desperation, thinking that maybe he could testify to

the money issues and hopefully persuade the jury that it would save money to avoid the death

penalty. He said the other three witnesses were family members who did not present anything of

substance.

Lead counsel again testified that nothing was developed about the petitioner’s split IQ,

special education classes, reading disabilities, drug and alcohol abuse, or sexual deviancy, because

there was no proof.

On cross-examination, lead counsel testified that while he had tried one prior capital case,

he was aware of the American Bar Association guidelines for representation and was qualified. He

said he did everything in his power on this case, even though he was not paid. He said that co-

counsel was probably the most experienced murder case trial lawyer in the country. Lead counsel

said he was aware of the requirements for mitigation proof. He said he spent 111 and 3/4 hours on

the case since he was retained and spent $730 out-of-pocket expenses on death penalty seminars and

-13-

books. He said he attended a death penalty seminar sponsored by the Tennessee Association of

Criminal Defense Lawyers (“TACDL”) and sought their assistance, as well as made numerous

contacts with the CCRC and its director, William Redick, whom lead counsel described as

“experienced as anybody he knew.” He contacted Dr. Blair through TACDL. He said he discussed

mitigation proof with Redick. He said the CCRC had the names of many resources such as

psychiatrists, sociologists, etc.

Lead counsel testified he had knowledge that the petitioner, had he taken the stand, would

have perjured himself. Based on that knowledge, he said that he tried to withdraw from the case at

one point. He said a letter he received from Dr. Blair, whom he employed for the purpose of helping

with mitigation, indicated that she would be of no help to his case.5 As a result, lead counsel said

he did not ultimately call Dr. Blair to testify. He further testified that he made a request for funds

for a mitigation specialist, but the request was denied. He said that if he knew then what he knew

now, he would have refused to go to trial without a mitigation specialist and would have exhausted

all appeals to try and get the trial court reversed on that issue.6 Additionally, he said he would have

involved TACDL and the National Association of Criminal Defense Lawyers. He said that he did

not want to go to trial but had to show up, and that he was unaware of any mitigation proof available

to him that he did not put on.

On redirect-examination, lead counsel testified that Dr. Blair was a clinical psychologist, not

a neuro-psychiatrist and was, therefore, not a mitigation specialist. He said he did not ask for

additional funds for additional experts because he felt the court would not have granted them.

Nonetheless, he agreed it would have been beneficial to ask for funds for a neuro-psychiatrist. He

said there was no additional proof presented at trial about what a mitigation specialist would have

found. He said that a social history of the petitioner was prepared but was “piecemeal.” He said

none of the evidence concerning the petitioner’s actual IQ or an interpretation of what that evidence

meant was presented to the jury. He said the underfunding of the case did not affect him (lead

counsel), but did affect the tools he had to work with. Additionally, lead counsel said he had a fairly

high case load at the time of this case and had limited time to put into this case. Additionally, he said

he was seeking funds for a neuropharmocologist who would testify about the impact of the

petitioner’s drug and alcohol abuse.

On recross-examination, lead counsel testified that he asked for funds for investigation

services, namely for a psychologist. He did get funding for his investigator, Terry Sweat, whom the

court said could do the mitigation investigation, funding for Dr. Blair, and funding for a forensic

pathologist, Dr. Sperry. Lead counsel said he relied heavily upon the advice of the CCRC, which

never recommended that he seek a neuro-psychologist.

5

The letter written from Dr. B lair to lead counsel stated in pe rtinent part, “Given the benign psychological

profile and the lack o f any substantive m itigating evidenc e, I’m no t sure that I w ill be of an y use to yo u in your case.”

6

On direct appeal, this Court determined that the trial court did not err in denying the petitioner funds for a

mitigation expert. See State v. Mann, 959 S.W .2d 503 (T enn. 1997).

-14-

Latonya Mann, the petitioner’s wife, testified that her husband is close and very involved

with her seven children, though he is not the father of any of them. She said she married the

petitioner shortly before he was arrested in this matter. Ms. Mann stated that she was not contacted

by lead counsel regarding the charges against her husband until the trial had already commenced.

She said that when she was asked to testify, she was at the courthouse to show support for her

husband. She said this request made her “upset and nervous” because she was unprepared since they

came to her “at the last minute.” On cross-examination, Ms. Mann admitted that, prior to trial, she

knew that lead counsel represented her husband even though she did not know his name. She also

could not recall a statement given on November 10, 1993, to Gail Hedrick. When confronted with

the statement, Ms. Mann admitted that “people came to see me,” and they may have talked to her

prior to trial, but that was “awhile ago” and they “hadn’t talked to me no more since.”

John Herman Mann, the petitioner’s father, testified that he and his wife married when they

were eighteen and are the parents of thirteen children. He said his wife, himself, and their oldest

children supported the family by “working in the fields,” “chopping cotton, picking strawberries,”

along with other various jobs. Mr. Mann further explained that he has been the pastor at the Ridgely

Church of Jesus Christ for the past twenty-three years. He testified that the petitioner was “mindful”

as a child and good at home, but started having problems when he got to high school. He said he did

not remember whether the school recommended to them that the petitioner get counseling. He said

his son got into some trouble stealing tapes out of cars and ended up spending time at the Spencer

Youth Center.7 He said he did not remember ever being called to come to any treatment programs

in Nashville nor did he remember meeting with a probation officer.8

John Mann testified that they originally hired Stafford Hagwood to defend his son, but after

Hagwood’s death, they hired lead counsel for a fee of $10,000, of which they paid $3200. He said

they never paid any more than $3200. He said he remembered that on one occasion, he, his wife,

and his son, Eddie Joe, met with lead counsel. William Redick was also present at that meeting. He

said he played a tape of the petitioner’s confession and then told them it would be a good idea if they

settled the case. He further said that he felt a good attorney would not tell someone to admit to

something even if they did it. He said that the next time he was asked to testify in the case, his son

had already been found guilty, that he (John) did not really know what was going on, and that they

just wanted counsel to plead for his son’s life. He said that lead counsel gave him no idea what he

was to testify about and never came to him to ask him to testify, even though he never refused to do

so.

On cross-examination, John Mann testified that he was unaware of the problems with his son

growing up because his “wife took care of that more than I could.” He said his son, Eddie Joe, hired

Stafford Hagwood, whom he had never heard of. He said he had heard of lead counsel and co-

counsel. He said that he paid lead counsel only $3200 of the $10,000 fee because it was all he could

7

Spencer is a juvenile detention facility.

8

This reference to Nashville is referring to the Spencer Youth Development Ce nter.

-15-

afford at the time and that lead counsel never told him he would not represent his son if he did not

pay him any more. He said that after they played the tape of his son’s confession, both lead counsel

and co-counsel said that, based on the available proof, they thought it was the best decision to plead

guilty in this case rather than take a chance with the death penalty. He said he could not persuade

his son to take the plea so the attorneys sent an African-American lawyer with the NAACP to

persuade him to do so.

On redirect-examination, John Mann testified that before the attorneys tried to get them to

take the plea, there were no other talks about things that could have been done in defense of the case.

Mann further said that lead counsel should have done everything possible to defend the petitioner,

including calling other witnesses in his defense. On re-cross examination, he said the petitioner told

lead counsel the names of witnesses, but he (John) never gave him the names of other witnesses.

Connie Westfall, an investigator with the Post-Conviction Defender’s Office assigned to the

petitioner’s case, testified that she generated a report compiled from mitigation information collected

in this case. In compiling the document, Ms. Westfall said she interviewed approximately 98 people.

She testified she met with the petitioner over 30 times and with his parents over 20 times, ultimately

gaining their trust. It was explained to her that the petitioner’s attorneys were having problems

communicating with the petitioner. She said she made numerous contacts with the petitioner’s

family in order to gain their trust. She said that in the beginning, race can certainly be a factor in

gaining trust, but that it can be overcome.9 She said she spoke with the petitioner’s brother, Eddie

Joe, probably ten or twelve times and also had phone conversations with him. She said that after a

few visits, the family realized she was there to help the petitioner so they began to give her

information. She said that, in conducting her interviews, she went to numerous prisons and other

towns in Tennessee, as well as traveling to Milwaukee, Toledo, and Seattle. Additionally, she said

she created a time line and a social history of the petitioner, which included information from his

family, his schooling, his work record, his juvenile records, his prison records, and his medical and

mental health information.

On cross-examination, Ms. Westfall said she never prepared mitigation information for a

sentencing hearing, only for post-conviction proceedings, after a client was found guilty.

Johnnie Mae Mann, the petitioner’s mother, testified in the form of a deposition due to a

recent leg amputation. Mrs. Mann said that she was the mother of thirteen children, including the

petitioner, and that ten of her children are still alive. She said the petitioner was “a lot more playful”

than the rest of her children. She said he was “sweet,” and “he was smart, and he was a neat child.”

As a child, the petitioner had spinal meningitis and suffered from hives and frequent nosebleeds.

She said the petitioner was a good student until he reached high school, where he had problems due

to fighting with other students. She testified that she was not aware that her son was placed in

special classes. Moreover, she said that she could not remember whether anyone from the school

was trying to help the petitioner with his problems. She said she was unaware of any attempts at

9

The petitioner and his family are African-American. Lead counsel and Ms. Westfall are white.

-16-

getting counseling or any other program for him. She said that while he was at Spencer, she could

not recall anyone from that facility working with or having meetings with her son. Additionally, she

said the petitioner was friends with some neighborhood children, and the petitioner and these

children would get “in trouble.”

In testifying about the instant charges, Mrs. Mann testified that she met with lead counsel at

his office, although she could not recall when the meeting occurred. She said that during this

meeting, they discussed her son’s case and the “money they had to have.” She said they also

discussed plans to have him declared indigent. Mrs. Mann recalled a second meeting, although she

could not recall what was discussed, as well as a meeting during the trial when they discussed the

possibility of Mrs. Mann testifying. At this last meeting, Mrs. Mann stated that lead counsel advised

her to testify regarding what “kind of person [the petitioner] was.” She said that was the first time

anyone talked to her about testifying. Although Mrs. Mann testified on her son’s behalf, she said

she “didn’t feel good sitting up there” because she was uncomfortable “in front of lawyers and

judges.” She said she did not remember any contact with lead counsel between those two meetings.

On cross-examination, Mrs. Mann testified that the petitioner had been in trouble when he

was a juvenile, including a rape charge. She said that, if she was not mistaken, she and the attorneys

talked about trying to get her son to take a plea in this case. She said the attorneys explained to her

about the possibility of the death penalty if there was no plea, but she told her son that “if he did not

do it he should not say that he did.”

On redirect-examination, Mrs. Mann testified that she read in the newspaper about the

financial difficulties lead counsel was having as a result of this trial, but he never discussed that with

her. On recross-examination, she said she did not call lead counsel after reading the newspaper

article. Furthermore, she said counsel never threatened to discontinue the work due to money. She

said she did not know of anything her husband or her son asked counsel to do that he did not do.

William Redick, former director of the Capital Case Resource Center for Tennessee,

testified that the CCRC operated as a clearinghouse for all death row representation in Tennessee

from September 1988 to September 1995. Redick said his office was contacted by trial counsel in

this matter. He said during this initial contact, it was determined that lead counsel was having

problems gaining the trust of the Mann family and that this lack of trust was determined to be as a

result of lead counsel being white and the Manns being African-American. He said that due to this

communication problem, the CCRC had Skip Gant, an African-American attorney employed by the

CCRC, meet with the Manns to communicate with them regarding the offered plea. However,

Redick only recalled one meeting between Gant and the Mann family, and he said that other than

race, Gant had nothing in common with the Mann family. He described Gant as a “dapper . . . big

city lawyer.”

Redick said that, based on his experience in capital cases compared to non-capital cases, an

attorney must know his client because his life is on trial. In this regard, he said that “an unusual

-17-

amount of time [must] be spent with the client and his family, that a great deal of investment be

made in that relationship.”

In the instant case, Mr. Redick testified to having some telephone conversations with trial

counsel and eventually meeting with them in person. He said they discussed the petitioner’s

confession and the possibility of a plea. Because of the confession and the strength of the State’s

case, they determined it was “imperative” that defense counsel anticipate a sentencing hearing. He

said that due to the strength of the State’s case, the strategy was to get the petitioner to settle the case,

but regardless, any capital defense counsel should perform a life history investigation. He said that

such an investigation involves getting every piece of paper from every institution that has any

reference to their client. He said an attorney would also need to spend a lot of time with both the

family and the petitioner, identifying people that he came in contact with during his life that may

have some insight, or may have something to say that could be relevant at a sentencing hearing.

Redick acknowledged that this case was “way under financed.” Furthermore, he said the process of

preparing for a sentencing hearing is “a very work intensive, time consuming, resource consuming

project . . .” He said the more that lead counsel understood about all these background materials,

the better his chances would be to find a way to settle the case, improving his chances of articulating

defenses at both the guilt and the sentencing phases.

Redick testified it was apparent, as a layperson, that the petitioner was a person with

limitations and that those limitations needed to be identified and evaluated. He said those limitations

affected both the circumstances surrounding his confession and his ability to voluntarily waive any

rights he had in making the statement. He said the petitioner needed the benefit of the best

psychological evaluation available and the jury needed to understand the petitioner’s mentality in

terms of weighing the significance of his statement. He said lead counsel was not prepared for the

April 8, 1994, suppression hearing and should have put on more proof concerning the circumstances

of the confession. In fact, he testified that lead counsel did not even obtain a psychological report

on the petitioner until after the suppression hearing (May 27, 1994), making it impossible for lead

counsel to have been prepared.

Redick further testified that the petitioner was very easily manipulated, as exemplified by his

family’s ability to persuade him not to enter a guilty plea. He added that any evidence regarding the

petitioner’s impairments would go against the element of premeditation and should have been

introduced at the guilt phase. Specifically, he said that the “mentality of [the petitioner]” should

have been addressed during opening statement; “it certainly should have been addressed to the

jurors.” He said the petitioner had organic brain damage which would have affected his ability to

control his impulses and that evidence would have been useful for a jury to help determine the

petitioner’s culpability level. He said he would have presented more psychiatric or psychological

proof.

Testifying about voir dire, Redick was informed that lead counsel stated they did not need

voir dire preparation because they were relying on co-counsel’s experience and knowledge. Redick

said that capital cases do not consist of a “cookie cutter voir dire” and that they should have done

-18-

some voir dire preparation before the trial. Additionally, Redick said they should have known what

the theory of defense was prior to trial.

Regarding the penalty phase of the trial, Redick said:

. . . what counsel should have done is, they should have put on the story of his life

through witnesses that knew his life, and documents that reflected that witnesses

could refer to, and then relied upon the experts to make sense out of that for the

jurors. . . . what you’re trying to do is to show what the causes, what the influences

were on Mr. Mann’s life that led him to the place where he could be involved in this

offense, forces that he didn’t have any control over. . . .

He said the opening statement of co-counsel “made no mention of the facts of the case. He didn’t

make any mention of [the petitioner]. The only thing he referred to was the jury’s obligation to

determine aggravating and mitigating circumstances, and weigh them, and reach a verdict.” Redick

said the lack of an opening statement and the lack of a mitigation case reflected a lack of preparation.

Additionally, Redick said that the mitigation evidence presented in this case was “totally

inadequate.” He said there was no information presented to the jury about the petitioner. He said

the jury heard from the petitioner’s wife, mother, and father, but they said very little about the

petitioner. Notably, he testified his wife stated that she did not want her husband to die; his mother

stated that he helped her around the house; and his father related nothing of any substance. There

was no mention of the petitioner’s mental impairments or mental state.

Redick said they should have prepared the jury for the proof they would hear about the

petitioner’s life and the things which influenced him into committing a less than volitional act. He

said they should have presented evidence of the petitioner’s impairments and limitations, as well as

evidence of the his good characteristics.

Redick testified that the whole impetus of the case was to settle because (1) they did not want

to go to trial with a death-qualified jury with “this proof,” and (2) they were unprepared. He testified

that prior to lead counsel’s trip to Ireland, he asked the court for a continuance, which was denied.

He said that once again he tried to continue the case prior to the start of the penalty phase and was

denied. Redick then said he observed lead counsel “prepare his sentencing hearing from scratch”

in about thirty minutes and also said lead counsel was “at a complete loss as to what to do at

sentencing.” He said it was obvious that neither the petitioner’s father, mother, or wife had been

prepared to testify.

Redick said that when he testified for the petitioner at the penalty phase, he discussed the cost

of implementing the death penalty, the rationale being that the jury might reconsider giving a death

sentence if they realized it would consume more State resources trying to execute the petitioner than

putting him in prison for life. However, he said testimony had nothing to do with the petitioner

himself. Redick further said that, while lead counsel was an experienced attorney, “he didn’t really

know how to get ready for a capital trial, and he didn’t really know how to make a complete record.

-19-

He didn’t know how to persuade the Judge of his needs . . . . ” He said that while lead counsel was

trying to obtain a mitigation specialist, he did not present the evidence it might take in order to

convince the judge of the need for the specialist. He said lead counsel operated under the belief that

this case would settle and would not be tried. Redick said lead counsel did not grasp the concept

of what needed to be done. He said that although he felt lead counsel was genuine in his discussions

with the CCRC, because lead counsel thought the case would settle, he approached the trial date

without getting ready for trial. Additionally, he said that based on his experience, lead counsel did

not have the type of relationship necessary in his dealings with experts, including Dr. Blair, who

Redick said was disappointed about the lack of communication she had with lead counsel.

On cross-examination, Redick testified that he was contacted very early in this case. He said

he agreed with lead counsel that, based on the petitioner’s confession, a realistic approach to the case

was to try to convince their client that he needed to accept a life sentence rather than proceed to trial.

He said he observed what trial counsel was doing and felt it was inadequate. He said he discussed

funding for investigators for the guilt phase and sentencing with trial counsel and, to his knowledge,

they did not follow his recommendations but went forward even though they were unprepared for

trial. While he could not recall exactly what was discussed, Redick said he discussed a number of

potential experts with trial counsel and that one reason for that was to try and find facts in order to

settle this case. He said they were unable to get the petitioner to settle, primarily because of the

influence of his brother, Eddie Joe Mann.

Redick further testified that in an effort to convince the petitioner to plead, they had Mr.

Gant, an African-American attorney with his office, try to persuade the petitioner to accept the plea

to life. Additionally, Redick said that an attorney with the NAACP was also contacted to advise the

petitioner’s family that he needed to accept the plea. However, Redick blamed the failure to accept

the plea on lead counsel’s failure to build trust with the petitioner’s family. Further, he felt that lead

counsel should have done more to improve his relationship with the petitioner’s family in order to

establish the necessary trust.

Redick said his job at the CCRC was to ensure that all capital defendants were adequately

represented. He said he did “whatever we could, and whatever [lead counsel] wanted” in this matter,

but this was not “a close case” as lead counsel “provided no representation for [petitioner] at

sentencing.” Moreover, although Redick stated that his office advised lead counsel as to things

needing to be done in this matter, lead counsel did not do them and Redick’s office did not step in

to ensure that necessary preparation was completed. He said there were a number of things lead

counsel should have done, regardless of funding. He said that if the need is great, counsel can obtain

the needed resources, such as securing mitigation experts.

Redick testified that he handled the petitioner’s appeal. He said he challenged the trial

court’s denial of funding for expert services but did not raise any challenges to the effectiveness of

trial counsel on direct appeal due to the record being incomplete.

Dr. Frank Einstein, a self-employed sentencing consultant and mitigation specialist,

testified to the role mitigation specialists play in a capital case. He said the concept is to convey the

human elements of a defendant to a jury at the sentencing hearing, making use of available resources

such as: social history, family interviews, school records, social service records, institutional

-20-

records, documentary evidence, and all other available information. He said there was a consensus

in the legal profession that mitigation specialty was a necessity.

Dr. Einstein said that “almost nothing was done in this case” in terms of mitigation. He

stated that he would expect to see “some interview memos” and “documents which had been

collected and also some review of what the significance of the life history documents is.” Rather

than finding any form of analysis or social history of the petitioner in lead counsel’s file, Dr. Einstein

said he discovered a “series of a xeroxed checklist which was taken from the Ultimate Trial manual

about things that should be looked for in mitigation.” He said no social history was done.

Additionally, he said that some trial attorneys are not qualified to perform this mitigation analysis.

Dr. Einstein said that there was relevant information in the file, such as of the petitioner’s

school records. Specifically, there was important information, including individualized educational

program reports which consisted of psychological evaluations pointing out the petitioner’s split IQ

and learning disability. Additionally, there was information that the petitioner had been in “resource

classes” and that he had been retained in both the first and the sixth grades. Dr. Einstein said that

these were “red flags” that needed to be looked at further. Furthermore, he said some other things

which should have been investigated included the petitioner’s “history of adjustment problems, i.e.,

fighting both in and outside of school, and the fact that his problems started so early.” He said that

in addition to the potential significance of the educational records, other areas which should have

been looked into in preparation were: the IQ split, the data from the educational records, the

petitioner’s adjustment problems, the lack of counseling community dynamics, sex problems, and

race relations.

Another area of adjustment problems is the fact that the petitioner had been charged with

three different rapes, although he was found not guilty of two. He said this should have been a red

flag to lead counsel that perhaps an expert in sexual offenses should have been contacted. Finally,

Dr. Einstein stated that the “community dynamics” should have been explored, i.e., the historical

situation of African-Americans in rural West Tennessee. He said this was an important factor in

understanding the petitioner’s rejection of a plea offer.

Dr. Einstein further testified that the three mitigation witnesses, i.e., the petitioner’s parents

and wife, should have testified about the petitioner’s “background and his family background a

couple of generations back.” Their testimony should have included the fact that both parents worked

and that the petitioner’s father was rarely home because he worked two jobs. Additionally, it should

have been noted that because both parents worked, the eldest brother, Eddie Joe, took over the

father’s role and “sometimes was very punitive with the children when the parents were not at

home.”

Dr. Einstein testified that the petitioner’s impairment could be diagramed in three basic areas:

(1) his low average, borderline intellectual functioning, (2) his substance abuse, and (3) his

neurological impairment. Regarding the petitioner’s substance abuse, Dr. Einstein said he would

have recommended the employment of an “addictionologist.” Moreover, Dr. Einstein said he would

have explored that due to the petitioner’s “severely comprised” mental functioning and decision

making abilities, school was difficult for the petitioner and an unhappy experience, and as a result,

the petitioner sought success in other areas, i.e., the street. He fell into a peer group by whom he was

-21-

easily influenced, thereby leading him to alcohol and drug use and, on some level, drug-dealing and

early arrests.

On cross-examination, Dr. Einstein said that the rape, beating, stabbing, and eventual murder

of an elderly woman who had befriended the petitioner were the petitioner’s fault, but that he had

a lack of resources available to help him make constructive decisions. He said lead counsel should

have prepared the three mitigation witnesses more carefully and should have elicited more

information from other available witnesses. Questioned about the relevance of the petitioner’s prior

rapes, Dr. Einstein said they were relevant but were results of the same lack of resources as

previously mentioned.

Dr. Einstein further testified that it would normally take about 250 to 350 hours to prepare

mitigation for a capital case. He said he was paid in excess of $14,000 in this case, and his fee did

not include conducting interviews. In this regard, Dr. Einstein said a key factor in completing a

sufficient mitigation history would be the funding available to the attorney. He added that, as most

attorneys are unable to analyze mitigation information, a mitigation expert would be essential.

Dr. Dorothy Granberry, a social psychologist, testified that she had concentrated a large

part of her research the last twelve years on developing a socio-psychological perspective of African-

American communities in West Tennessee. She said that as a result of her research, she was able

to conclude, inter alia, that the agrarian past of the rural West Tennessee African-Americans carries

over to the urban existence and that sociological changes do not necessarily occur rapidly.

Additionally, she testified that there was other research available concerning this issue. She said that

in 1993-1994, there was information available to assist someone who was having trouble

communicating with African-Americans.

In the present case, Dr. Granberry testified that she was asked to look at the petitioner and

his family and to look at how race may have played a role in what transpired during his trial. She said

that in doing so, she interviewed the petitioner and his family, reviewed available reports, reviewed

issues of the local newspaper, and interviewed other people in the area. She concluded that “there

was a gap in communication” and that such gap was caused by a failure, based on the historical

factors, of the petitioner to understand the system. She said that intervention was needed to bring

the operating systems of the parties involved together. She said they were still having to deal with

a legacy of oppression of African-Americans and that, specifically, Haywood and Fayette counties

were probably two of the most oppressive places in the country, which would lead to

disenfranchisement and suspicion among the African-Americans.10

In order to address these problems in communication, Dr. Granberry said there needs to be

an awareness that there is a problem. She said she recommended that a cultural translator help cross

the cultural differences and that in 1993-1994, there was such a person (a cultural translator)

available in West Tennessee, a history professor at the University of Memphis who was formerly at

Rhodes College. She was unable to remember his name.

10

The petitioner’s parents w ere reared in Haywoo d County.

-22-

On cross-examination, Dr. Granberry testified that she had only a vague notion of what a

mitigation specialist was. Additionally, she said that she was unaware if the aforementioned

University of Memphis professor had ever actually testified in a trial. Moreover, she said that in

1993, nobody knew her.

Dr. Granberry said that getting the assistance of an African-American attorney and making

contact with the NAACP could be considered a legitimate attempt to break down a communication

barrier. On redirect, she said that if this attempt failed, it would be possible to turn to persons in the

community.

Dr. Murray Smith, a medical doctor specializing in alcohol and drug addiction,11 stated that

he was contacted by the Office of the Post-Conviction Defender to work on the petitioner’s case.

He said he was supplied records of evaluations completed by psychologists, arrest records, and basic

background information. Additionally, Dr. Smith said he interviewed the petitioner, specifically to

discuss his life history and the effects his lifestyle had upon him. He said that “[a]bsolutely,”

substance abuse played a role in the petitioner’s life prior to the offenses, stating that the petitioner

began drinking at about age fifteen and started using cocaine and marijuana at the age of eighteen.

He said this became the petitioner’s lifestyle, and he spent most of his time and energy on getting

and using drugs.

Dr. Smith said that the effect of the early use of alcohol is that it arrests a person’s emotional

development and his or her ability to grow into appropriate adult behavior. Moreover, he said that

alcohol makes a person impulsive and impairs judgment so that person’s perceptions of what is

happening and how he or she should respond is altered, and the addition of cocaine and marijuana

would serve to exacerbate the effects already demonstrated by the alcohol use. He said a consistent

predictor of this abuse was children who had a sense of insecurity or inferiority, a feeling that they

were defective. He said that alcohol reduces the level of fear and cocaine gives the feeling of power,

thus changing the way the user feels.

Dr. Smith testified that the petitioner was using alcohol and drugs on the night the victim was

killed. He said the petitioner’s habit was to use alcohol and marijuana all day and then stay up all

night snorting cocaine. He said the petitioner lived in a perpetual haze. Dr. Smith concluded that

the petitioner’s substance abuse played a role in the offenses and in his encounter with law

enforcement. Specifically, he said the petitioner was “actively intoxicated” during the encounter

with the victim and was beginning to go into withdrawal during his confession to police. He said

that alcohol withdrawal “makes you irritable, sweaty, high blood pressure, high pulse, wanting to

just get it over with so they’ll leave you alone, so that he tends to say whatever he needs to say to

stop the relationship.”

On cross-examination, Dr. Smith testified that his information regarding the petitioner’s drug

and alcohol use came solely from information provided by the petitioner himself and not from any

independent research. Additionally, he said that even if intoxicated, the petitioner would still have

been able to think clearly enough to know that he had committed a crime, and it would not affect his

11

Kno wn as “addictionology.”

-23-

ability to take other actions, such as establishing an alibi or hiding. He said the petitioner would

have known that he was raping and killing the victim.

Dr. Pamela Auble, a clinical neuropsychologist, testified that she evaluates the effect a brain

injury might have on a person. She said her evaluations stand on three legs: (1) interviews with the

client and/or persons in the client’s life, (2) standardized testing, and (3) a review of relevant

information about the client. Dr. Auble said that in evaluating this petitioner and reviewing data

given to her by Dr. Blair, she reached different conclusions than Dr. Blair did in 1993.12 She said

the differences were the result of her having access to more information and having more contact

with the petitioner.

Dr. Auble said that she found two items of significance in terms of directing various testing

for brain impairment or neurological damage: (1) school records indicating a discrepancy between

his verbal functioning and nonverbal functioning and (2) social information from interviews

indicating that the petitioner’s development as a child was not normal. She said the petitioner did

not have a plan for his life, did not have insight into what he is like as a person, and did not cope

well with complexity. She said she did not think the petitioner understood what was going on

around him. Regarding her results as to the petitioner’s language impairments, Dr. Auble stated:

The language impairments are manifested in several different ways. On the IQ

testing, . . . he shows a big difference between his language based skills and his non-

verbal skills. He’s also had a lot of trouble, and he had a lot of trouble in school

learning to read and academic achievement. He was diagnosed with a learning

disability. He also shows difficulty being able to come up with words when he wants

the words.

She further testified that on the Boston Naming Test, most persons score 55 out of 60 correct,

and that 99 percent of the population scores over 50. The petitioner, however, scored 45 out of 60,

which she said is way below the first percentile. On the Wexler Memory Scale, Third Edition, she

said the petitioner scored significantly lower than is expected for someone with his intelligence. In

determining any frontal lobe damage, Dr. Auble said she administered the Wisconsin Card Sort and

the Booklet Category Test. She said the petitioner showed considerable impairment on the

Wisconsin Card Sort, scoring in the second to third percentile. Additionally, she said the petitioner

had difficulty with the Booklet Category Test, scoring in the sixth percentile. Dr. Auble said that

she discounted malingering as the petitioner’s results were similar to those past test scores and the

results showed the same patterns.13

Dr. Auble concluded that the petitioner had three areas of problems: (1) memory, (2)

language and verbal skills, and (3) frontal lobe functioning or mental flexibility. Additionally, she

said it appears that the petitioner was suffering from a life-long deficit in terms of the above

problems and that his substance abuse made things somewhat worse.

12

Lead counsel testified that Dr. Blair told him she could be of no help.

13

“Malingering,” for the purposes of Dr. Auble’s testimony, means the subject is purposefully getting poor

results.

-24-

Dr. George Woods, a neuropsychiatrist, testified that he interviewed the petitioner, reviewed

his social histories, reviewed his school records, reviewed his medical records and other prior family

history, reviewed records from the Spencer Youth Center, reviewed Dr. Smith’s report on

addictionology, reviewed Dr. Granberry’s report, and reviewed Dr. Auble’s report. He said that

neuropsychological testing, such as performed by Dr. Auble, is considered by the American

Academy of Neurology to be the gold standard of determining brain function. Based on his

evaluation, Dr. Woods concluded that the petitioner has “neurological deficits that have psychiatric

manifestations. Psychiatric manifestations are basically behaviors that derive, but he has clear

impairments in two different areas.”

As to those deficits, Dr. Woods said that first, due to impairments in his brain, specifically

the temporal lobe, the petitioner is often unable to be effective academically. He said the petitioner

has a poor ability to read and has difficulty with language. Second, due to impairments to his frontal

lobe, his executive function is impaired, his ability to think through a problem, his ability to weigh

and deliberate his behavior. He said that all the tools were available to determine these frontal lobe

problems and that there was a clear indication that something was wrong, but no steps were taken

to determine what those problems might be. He said the school records, the disinhibition, the lack

of ability to control behaviors as early as the first grade, and the petitioner’s inabilities in school were

all pieces of information consistent with the kind of impairments they see. He said that knowing the

social history was important, as there was interplay between the social history and the testing factors.

Dr. Woods said that in terms of the petitioner’s isolation, his impairments played directly into

his involvement with the Westside Posse. He said this group would accept the petitioner without

requiring the kind of academic, intellectual, or environmental success that might require him to do

other things. He said the petitioner’s inability to solve problems “dovetailed” into his fighting.

Additionally, he said that the petitioner’s parents failed to recognize him as a special needs child.

Dr. Woods further testified that race was an issue in this case and that the problem could have

been better addressed if more had been known about the petitioner. He said the lobe impairments

played a part in the petitioner being overborne. As to the crime itself, he said the petitioner’s ability

to weigh and deliberate was impaired and he was unable to conform his behavior. He said the

mental impairments to the petitioner were not insignificant. Dr. Woods said that the impairments

would not have had an impact on the petitioner when he made the choice to steal the television, but

that once the unexpected happened, the petitioner’s decisions would be affected. He said the

impairments made the petitioner more susceptible to pressure, such that he would not necessarily be

able to make a decision in his best interests, for instance, taking the plea offer instead of going to

trial. He said he had an absolute certainty that the frontal lobe problems caused psychological

problems in the petitioner.

Regarding mitigating factors, Dr. Woods testified that there was proof to support a finding

that the petitioner was substantially impaired as the result of mental defect or disease and that the

petitioner was under the influence of extreme mental or emotional disturbance.

On cross-examination, Dr. Woods said that a trial lawyer may not have been aware of all of

these types of problems but that there are tremendous amounts of resources for them. He said he

would not expect an attorney to be able to read a report from someone like himself or Dr. Auble and

-25-

pick up on the clues that there was a problem. However, Dr. Woods said that the attorney should

ask further questions and be more thorough, even if he did not understand the information at first.

On redirect examination, Dr. Woods said that lead counsel was aware of the problem the petitioner

had with his split IQ, and that he would then expect an attorney to investigate further. Dr. Woods

further stated that when Dr. Blair indicated she needed more material, that should have been a clue

to get more material or have a more qualified psychologist, like Dr. Auble, review that information.

Post-Conviction Court Conclusions

The petitioner contends that he received ineffective assistance counsel. The post-conviction

court found that the petitioner argued the following points as proof of trial counsel providing

ineffective assistance of counsel:

(1) The underfinancing of the defense;

(2) Excessive workload of counsel;

(3) Unqualified investigators used by counsel;

(4) Insufficient investigation;

(5) Failure to utilize co-counsel and failure to prepare for trial; and

(6) Failure to effectively utilize expert services.

Prior to addressing the specific claims of the petitioner, the post-conviction court observed

the following: The attorneys are two of the most experienced criminal trial attorneys in the Twenty-

ninth Judicial District. Lead counsel has represented more criminal defendants than any other

attorney in the area, except for co-counsel. Both attorneys have defended both murder cases and

death penalty cases. Lead counsel originally agreed to take the case for $10,000 as a non-capital

case. He was paid $3200. He used Terry Sweat and Gail Hedrick as investigators, and neither had

any death penalty experience. Sweat, however, had been conducting criminal investigations for

many years and was very experienced in the area.

(1) Underfinancing of the defense: The post-conviction court found that the petitioner

retained counsel on August 24, 1993, and that the trial was continued from November 30, 1993, to

May 3, 1994, when the trial court granted the petitioner’s motion declaring him indigent, but denied

counsel’s motion for compensation, stating that it was under a duty to appoint a public defender

before appointing or compensating private counsel. At that time, there was neither a motion for the

appointment of a public defender nor a motion for the withdrawal of private counsel. On January

27, 1994, the trial court denied the petitioner’s motion for a jury statistician and a mitigation

specialist. The trial court noted that the investigator already appointed could perform the same work

as a mitigation specialist and authorized $3000 for investigators Sweat and Hedrick, and another

$3000 for Dr. Blair’s psychological services. Additionally, on April 8, 1994, the trial court granted

another $1500 for Terry Sweat and $3000 on May 27, 1994, for an expert pathologist, Dr. Kris

Sperry. The trial court denied further motions for continuances on May 13, May 18, and May 31,

1994.

The post-conviction court concluded that the issue of underfinancing was determined on the

petitioner’s direct appeal and is therefore not the proper subject for a post-conviction proceeding.

Significantly, the post-conviction court added that even if it did consider the issue, it could not find

-26-

ineffective assistance of counsel because it found that trial counsel did everything he could do to

seek additional funding for the investigation, mitigation, and the employment of expert witnesses.

The post-conviction court concluded the petitioner failed to carry his burden on this issue.

(2) Excessive workload of counsel: The post-conviction court found there was no evidence

that lead counsel’s situation in his law firm kept him from spending the necessary time on the case

needed to avoid a conviction. The post-conviction court further found there was no evidence in the

record that anything could have been done to avoid a conviction, as there was the petitioner’s

confession and no valid defense available other than from a sentencing standpoint. The post-

conviction court concluded that the petitioner failed to show by clear and convincing evidence that

lead counsel was deficient due to an excessive caseload or that there was any prejudice.

(3) Unqualified investigators used by counsel: The post-conviction court found there was

no evidence that the investigators were unqualified on the issue of guilt or innocence as this

argument would only be applicable to sentencing. The court found no evidence in the record to

substantiate any claims of ineffective assistance of counsel for having unqualified investigators. The

court found there was evidence that the investigators had no experience in death penalty cases

involving mitigation. The court also found that the petitioner failed to prove with any additional

evidence that the outcome of the sentencing phase would have been different, and therefore,

consequently, no prejudice was shown by the use of any unqualified investigators.

(4) Insufficient investigation: The post-conviction court found that the local District

Attorney General had an open file policy and that the file, along with the statements of the officers

and the investigation of the case, were available to the petitioner’s attorneys and investigators. The

court found that there was “simply no evidence” to suggest an insufficient investigation as a basis

for an ineffective assistance of counsel claim nor any evidence to suggest prejudice in terms of guilt

or innocence. Additionally, the court found that issue previously determined on direct appeal.

In connection with the sentencing phase of the trial, the court found that there was no real

mitigation investigation. The court found that counsel had available to him at trial the immediate

members of the petitioner’s family, Mr. Redick, Dr. Sperry, and Dr. Blair. The court found that as

part of trial strategy, trial counsel chose not to use Dr. Blair because she indicated she would hurt

their case. The court found that Dr. Sperry was used to challenge an aggravating factor, but helped

to prove an aggravator on cross-examination. The court concluded that the issue of insufficient

investigation for the sentencing phase was previously determined on direct appeal. Additionally, the

court determined that the petitioner failed to prove by clear and convincing evidence that he was

prejudiced in connection with this issue and that evidence that additional mitigation investigation

would have caused a different result in sentencing is insufficient for the petitioner to carry his burden

of proof.

(5) Failure to utilize co-counsel and failure to prepare for trial: The post-conviction court

found there were distractions and circumstances that the trial attorneys did not spend as much time

in preparation as they wanted. The court found that part of the problem was that the petitioner told

his attorneys he would accept a guilty plea and then later changed his mind. The court also found

that the attorneys asked for continuances on several occasions and were denied and that the issue of

whether the denial of the continuances was proper was previously determined.

-27-

The post-conviction court found there was no evidence in the record to suggest that any

further preparation would have created a difference in the guilt phase of the trial. Additionally, the

court found there was no evidence in the record to suggest that, due to the petitioner’s organic brain

problem, his confession would have been suppressed. The court found no prejudice proven by clear

and convincing evidence. The court found no evidence that failure to utilize co-counsel was

deficient nor did it find any prejudice.

As to the sentencing phase, the post-conviction court found there “certainly were” some

failures by counsel to properly prepare. Specifically, the court found the failures involved the

investigation and preparation of mitigation evidence and the hiring of a neuropsychologist and

neuropsychiatrist. However, the court found that these issues were previously determined on direct

appeal and that, consequently, there was no showing of deficient performance in this area and with

the aggravating factors that were considered by the jury, there was a failure by the petitioner to prove

by clear and convincing evidence that there was any prejudice.

(6) Failure to effectively utilize expert services: The post-conviction court again found that

this issue was previously determined on direct appeal. The trial court record reflected the efforts of

trial counsel to obtain an investigator for mitigation services and for expert services. The post-

conviction court gave trial counsel the services which were available under the law in 1994.

Moreover, the post-conviction court found that expert evidence from Dr. Dorothy Granberry, a social

psychologist; Dr. Murray Smith, an addictionologist; Dr. Pamela Auble, a neuropsychologist; and

Dr. George Woods, a neuropsychiatrist, would have had little, if any, effect on the guilt phase of the

trial but could have certainly had some effect during the sentencing phase.

Specifically, the post-conviction court found that Dr. Granberry would have been used to

show that the petitioner had trouble trusting his attorneys and that in order to gain this trust, more

time needed to be spent with the family discussing the case. The court found, however, that the

petitioner’s brother, Eddie Joe Mann, had more influence on him than the attorneys, so any

additional efforts by the attorneys would have been useless.

Dr. Auble and Dr. Woods would have indicated that the petitioner had an organic brain

problem which affected his ability to make “executive decisions,” especially when he was under

stress. Additionally, the court found that Dr. Smith would have indicated that the petitioner’s

alcohol use would have had essentially the same effect. The court found that trial counsel was

unaware of those experts at the time of trial although he was in contact with the CCRC, who had

knowledge of such experts. However, the post-conviction court found that the failure to obtain some

of the above information precluded trial counsel from furnishing enough information to raise those

particular issues on direct appeal. The court found that with all of the additional information, trial

counsel would have certainly been able to present a more complete picture of the petitioner to the

jury, a picture of a man troubled since childhood by neurological impairments that created a sense

of frustration due to his lack of verbal skills. However, the post-conviction court found that the issue

of the effectiveness of trial counsels’ utilization of expert witnesses was determined previously on

direct appeal.

The court also found there was no prejudice during the sentencing phase. The court

determined that it is not enough for the petitioner to show that any errors by trial counsel had a

-28-

conceivable effect on the outcome of the trial. The burden on the petitioner was to show that any

errors showed a reasonable probability that, but for those errors, the result would have been different.

A reasonable probability means the confidence in the outcome of the trial was undermined. The

court concluded that the petitioner failed to meet his burden in establishing that by clear and

convincing evidence and, accordingly, denied post-conviction relief.

Analysis

Post-Conviction Standard of Review

The petition challenging the petitioner’s conviction for premeditated first degree murder is

governed by the 1995 Post-Conviction Act, which requires that allegations be proven by clear and

convincing evidence. See Tenn. Code Ann. § 40-30-210(f). Findings of fact and conclusions of law

made by the post-conviction court are given the weight of a jury verdict, and this Court is bound by

those findings unless the evidence contained in the record preponderates otherwise. Nichols v. State,

90 S.W.3d 576, 586 (Tenn. 2002); Davis v. State, 912 S.W.2d 689, 697 (Tenn. 1995). This Court

may not reweigh or reevaluate the evidence or substitute its inferences for those drawn by the post-

conviction court. Nichols, 90 S.W.3d at 586. Finally, questions concerning the credibility of

witnesses and the weight to be given their testimony are for resolution by the post-conviction court.

Nichols, 90 S.W.3d at 586 (citing Henley v. State, 960 S.W.2d 572, 579 (Tenn. 1997)).

Notwithstanding, when reviewing legal issues or a mixed question of law and fact such as an

ineffective assistance of counsel claim, the appellate court’s review is de novo with no presumption

of correctness. Nichols, 90 S.W.3d at 586 (citing State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999)).

Ineffective Assistance of Counsel

For a petitioner to have his conviction overturned based on ineffective assistance of counsel,

the petitioner must first establish that the services rendered or the advice given was below “the range

of competence demanded of attorneys in criminal cases.” Baxter v. Rose, 523 S.W.2d 930, 936

(Tenn. 1975). Second, the petitioner must show that the deficiencies “actually had an adverse effect

on the defense.” Strickland v. Washington, 466 U.S. 668, 693, 104 S. Ct. 2052, 2067, 80 L. Ed. 2d

674 (1984). The petitioner is not entitled to relief should he fail to establish either factor. Our

supreme court described the standard of review as follows:

Because a petitioner must establish both prongs of the test, a failure to prove

either deficiency or prejudice provides a sufficient basis to deny relief on the

ineffective assistance claim. Indeed, 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) (citing Strickland, 466 U.S. at 697, 104 S. Ct. at

2069). The petitioner is not entitled to the benefit of hindsight, may not second-guess a reasonably

based trial strategy, and may not criticize a sound, but unsuccessful, tactical decision made after

adequate preparation for the case. Adkins v. State, 911 S.W.2d 334, 347 (Tenn. Crim. App. 1994);

see Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992).

-29-

To prove a deficiency in counsel’s performance, a petitioner must show that counsel’s acts

or omissions were so serious that they fell below an objective standard of reasonableness under

prevailing professional norms. Strickland, 466 U.S. at 688, 104 S. Ct. at 2064; Baxter v. Rose, 523

S.W.2d 930, 936 (Tenn. 1975). As our supreme court has observed:

“The assistance of counsel required under the Sixth Amendment is counsel

reasonably likely to render and rendering reasonably effective assistance. It is a

violation of this standard for defense counsel to deprive a criminal defendant of a

substantial defense by his own ineffectiveness or incompetence . . . . Defense

counsel must perform at least as well as a lawyer with ordinary training and skill in

the criminal law and must conscientiously protect his client's interests, undeflected

by conflicting considerations . . . .”

Id. at 934-35 (quoting Beasley v. United States, 491 F.2d 687, 696 (6th Cir. 1974) (citations

omitted)). In reviewing counsel’s conduct, a “fair assessment . . . requires that every effort be made

to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s

challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.” Strickland,

466 U.S. at 689, 104 S. Ct. at 2065.

The petitioner contends he was denied the right to effective assistance of counsel in two

areas: (1) the guilt stage and (2) the sentencing phase.

I. Ineffective Assistance of Counsel at the Guilt Stage

The petitioner claims he was denied effective assistance of counsel, specifically, by trial

counsel’s failure to meet the following standards:

(1) Trial counsel accepted this potential death penalty case despite the recent

departure of two attorneys from his firm and while representing another capital

client, Marshall Edwards. Thereby, trial counsel failed to maintain his workload

at an acceptable level.

(2) Trial counsel’s representation of the petitioner was impacted by financial

constraints.

(3) Trial counsel failed to develop a relationship with the petitioner.

(4) Trial counsel failed to conduct a proper investigation, including the failure to

identify, locate, and interview all relevant witnesses.

(5) Trial counsel failed to develop a defense theory of the case.

(6) Trial counsel failed to adequately argue the motion to suppress.

(7) Trial counsel was totally unprepared to defend the petitioner against a capital

murder charge.

We conclude that the petitioner did not receive ineffective assistance of counsel at the guilt stage of

the trial.

(1) Trial Counsel accepted this potential death penalty case despite the recent departure

of two attorneys from his firm and while representing another capital client, Marshall

-30-

Edwards. Thereby, trial counsel failed to maintain his workload at an acceptable level. The

post-conviction court found that there was no evidence that lead counsel’s situation in his law firm

kept him from spending the necessary time on the case. The post-conviction court further found

there was no evidence in the record that there was anything that could have been done to avoid a

conviction as there was the petitioner’s confession and no valid defense available other than from

a sentencing standpoint. The post-conviction court concluded that the petitioner failed to show by

clear and convincing evidence that lead counsel was deficient due to an excessive caseload nor that

there was any prejudice. We agree. After our own exhaustive review of the record, we cannot

conclude that the record preponderates against the post-conviction court’s finding that trial counsel’s

caseload rendered him ineffective in his representation of the petitioner. The petitioner failed to

present any evidence as to the relationship between trial counsel’s caseload, including his

representation of another capital case client, and trial counsel’s representation of the petitioner. We

need not address the issue of whether trial counsel actually did have a burdensome caseload because

the petitioner failed to provide the link between that and any detrimental representation.

The petitioner seems to suggest that a practicing attorney is compromised in his ability to

properly provide effective assistance of counsel if he is representing more than one capital case

client. This allegation stands bare as the petitioner presented a lack of proof that his trial counsel’s

caseload prevented him from properly representing the petitioner in this case.

(2) Trial Counsel’s representation of the petitioner was impacted by financial

constraints. There are two aspects to this claim: (1) that the trial counsel had inadequate funding

to handle this case, and (2) that due to not being paid in full, trial counsel’s efforts were

compromised. As to the first, the post-conviction court found that trial counsel did everything

possible to seek additional funding for investigation. Moreover, the post-conviction court found that

the issue of financial restraints on the trial counsel was determined on direct appeal and, therefore,

not a proper subject for post-conviction review. We agree. This claim is without merit.

Regarding the second aspect, that not being paid in full compromised trial counsel’s efforts,

we view the petitioner’s claim on this issue to involve a claim that because trial counsel was not paid

as the petitioner or his family agreed to, trial counsel was “impacted by financial constraints,” such

as to render him ineffective. It is true that trial counsel was not paid as promised by the petitioner

or his family. Indeed, trial counsel received less than a third of the promised fee. Nonetheless, no

evidence exists to prove that this fact impacted trial counsel’s performance. Quite to the contrary,

the record is clear that in the face of receiving very little compensation from the petitioner and his

family, trial counsel went to great lengths in providing pro bono service to the petitioner.

(3) Trial Counsel failed to develop a relationship with the petitioner. The petitioner

avers that most of trial counsel’s efforts were spent attempting to convince the petitioner to plead

guilty and accept a sentence of life without the possibility of parole. In this respect, he asserts that

trial counsel was also deficient in that he failed to establish a relationship with the petitioner and his

family, failed to recognize the petitioner’s limited verbal understanding, and was oblivious to the

Mann family’s distrust of white authority figures. The petitioner contends that trial counsel was

ineffective for failing to develop a relationship with the petitioner, such relationship being necessary

in order to help convince the petitioner that it was in his best interest to accept the plea instead of

going to trial. We cannot agree.

-31-

The post-conviction court found that the petitioner’s brother, Eddie Joe Mann, had more

influence on him than the attorneys, so any additional efforts by the attorneys would have been

useless. As relating to whether trial counsel was ineffective at the guilt phase of the trial, even if he

failed to develop a meaningful relationship with the petitioner, that in itself would not render his

actions ineffective. The right to counsel is guaranteed by the United States Constitution, but that

right does not include “the right to a meaningful attorney-client relationship.” See Morris v. Slappy,

461 U.S. 1, 13 (1983). The Supreme Court additionally stated that “[n]o court could possibly

guarantee that a defendant will develop this kind of rapport with his attorney.” Id. We conclude that

based on the presenting information of the petitioner’s confession to the police, whether trial counsel

developed a meaningful relationship with the petitioner would have had no impact on how trial

counsel prepared for the guilt phase of this trial. Accordingly, we conclude this issue is without

merit.

(4) Trial counsel failed to conduct a proper investigation, including the failure to

identify, locate, and interview all relevant witnesses. The post-conviction court found there was

no evidence to support a claim that an improper investigation led to ineffectiveness of counsel. We

agree. Additionally, our review of the record reflects that trial counsel had the assistance of Terry

Sweat, an investigator for over twenty years, working on this case. The petitioner stresses the fact

that, in addition to Sweat, another investigator, Gail Hedrick, had very little experience. However,

when determining whether there was ineffective assistance of counsel, the actions of counsel are

given broad deference. As such, the use of Terry Sweat as an investigator was not ineffective.

Moreover, the most incriminating piece of evidence on this case was the petitioner’s confession. It

is a reasonable inference that trial counsel conducted his investigations accordingly.

The State is correct in pointing out that a criminal defense attorney “must conduct appropriate

investigations, both factual and legal, to determine what matters of defense can be developed.”

Baxter v. Rose, 523 S.W.2d 930, 933 (Tenn. 1975). In other words, there is an affirmative duty to

investigate. However, “‘counsel has the duty to make reasonable investigations or to make a

reasonable decision that makes particular investigations unnecessary.’” Nichols v. State, 90 S.W.3d

576, 587 (Tenn. 2002) (emphasis added) (quoting Strickland, 466 U.S. at 691, 104 S.Ct. at 2052).

Furthermore, while a petitioner’s statements do not eliminate a counsel’s duty to investigate, the

reasonableness of that counsel’s actions “may be determined or substantially influenced by the

defendant’s own statements or actions.” Id. In the instant case, the evidence against the petitioner

was overwhelming and the petitioner indicated that he was going to accept the State’s plea offer.

As relating to the guilt phase preparation of the trial, being faced with these facts, we conclude the

reasonableness of their actions was within the range of competence for trial preparation.

Investigations still proceeded, and trial counsel attempted to gain more time before trial to prepare

further. We conclude there is no merit to this issue.

(5) Trial Counsel failed to develop a defense theory of the case. The post-conviction

court addressed this issue in the context of trial counsel’s preparation and found there was no

evidence in the record to suggest that any further preparation by the defense would have affected the

outcome of the guilt or innocence phase of the trial. Our review of the record reveals the petitioner

produced no evidence to show that “failure to develop a theory” of the case was related to any

possible ineffectiveness by trial counsel. This argument is bootstrapped by petitioner’s similar

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argument that trial counsel did not conduct an adequate investigation and, therefore, failed to develop

a theory of the case. We conclude this issue is without merit.

(6) Trial counsel failed to adequately argue the motion to suppress. The petitioner

contends trial counsel erred in failing to introduce evidence of the petitioner’s split IQ, substance

abuse, and social history in advancing the argument that his confession was involuntary. The post-

conviction court found that this evidence would have had little or no effect on the guilt or innocence

phase of the trial. Expert witness Dr. Gillian Blair determined that evidence of the split IQ was

insignificant. Trial counsel’s decision not to pursue this angle was reasonable based on his reliance

upon Dr. Blair’s recommendation, especially as it related to any motion to suppress. Additionally,

there was a lack of evidence as to whether the petitioner was intoxicated at the time of the murder

and whether the petitioner’s social upbringing would have had any impact on the motion to suppress

is speculative at best, further making trial counsel’s decision not to pursue this not deficient. We

conclude the petitioner has failed to present evidence to preponderate that the manner in which trial

counsel handled the motion to suppress the petitioner’s confession was deficient. Accordingly, we

conclude this issue is without merit.

(7) Trial counsel was totally unprepared to defend the petitioner against a capital

murder charge. By his own admission, trial counsel was unprepared concerning a number of

aspects in this case, most notably, in his preparation for the sentencing phase. However, as his

preparedness applies to the guilt phase in this case, we simply cannot conclude that based on the

information that trial counsel had and based on the information that trial counsel received directly

from the petitioner, that any unpreparedness on his part reached the level of ineffective assistance

of counsel. The post-conviction court found that there was no evidence in the record that further

preparation would have affected the outcome of the trial. The primary aspect that the petitioner

argues was ineffective was trial counsel’s attempts and failures to get him to accept the plea offer

from the State. A review of the record reveals that this strategic decision by trial counsel was not

unreasonable nor a basis for an ineffective assistance of counsel claim.

Notably, the petitioner informed trial counsel that he was going to accept a plea to life

imprisonment in order to avoid the possibility of receiving the death penalty. The petitioner’s

witness, William Redick with the CCRC, testified it was in his best interest to accept the plea. Trial

counsel’s actions in this aspect were reasonable.

Furthermore, the petitioner argues that trial counsel “assumed there was no affirmative

defense available to [the petitioner]” and that the assumption was not the result of a reasoned

strategic decision. We disagree. As discussed above and as the evidence throughout the record leads

us to believe, the most reasoned choice in this case was to get the petitioner to accept the plea. In

the light of the overwhelming evidence against the petitioner, his confession, and the clearly

established death penalty aggravating factors, the decision by trial counsel to make strong efforts to

get the petitioner to accept a plea that would save his life was a reasonable one.

We cannot determine that the evidence presented by the petitioner preponderates against the

post-conviction court’s findings that trial counsel was not ineffective. Accordingly, we conclude the

entire issue that trial counsel was ineffective at the guilt phase of this trial is without merit.

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II. Ineffective Assistance of Counsel at the Sentencing Phase

When a petitioner challenges a death sentence based on ineffective assistance of counsel in

the penalty phase, he or she must show that “there is a reasonable probability that, absent the errors,

the sentencer . . . would have concluded that the balance of aggravating and mitigating circumstances

did not warrant death.” Strickland, 466 U.S. at 695, 104 S. Ct. at 2069. Where the alleged prejudice

involves counsel’s failure to present sufficient mitigating evidence, several factors are of

significance: (1) the nature and extent of the mitigating evidence that was available, but not

presented; (2) whether substantially similar mitigating evidence was presented to the jury in either

the guilt or penalty phase of the proceedings; and (3) whether there was such strong evidence of

aggravating factors that the mitigating evidence would not have affected the jury’s determination.

Goad v. State, 938 S.W.2d at 371.

The petitioner contends that trial counsel did not undertake their duty to identify and gather

the necessary mitigation documents, records, and physical evidence. He asserts that trial counsel

“failed utterly to develop and pursue a comprehensive mitigation theory for [petitioner’s] sentencing

trial.” Rather, he asserts counsel “worked out of ‘desperation,’” spending a “half an hour ‘preparing’

his sentencing witnesses.” Specifically, the petitioner asserts the following as evidence of counsels’

ineffectiveness at the sentencing phase: (1) trial counsel failed to consult with expert witnesses prior

to their testimony; and (2) trial counsel presented merely cosmetic lay witness testimony. The post-

conviction court’s findings on these issues are set out verbatim later in the analysis section of this

opinion.

Analysis

(1) Counsel failed to consult with expert witnesses prior to their testimony. The

petitioner argues that trial counsel was deficient by presenting only five witnesses at the sentencing

hearing, and not properly consulting with one of those witnesses, Dr. Sperry. Dr. Sperry was called

to challenge one of the State’s aggravating factors, i.e., that the murder constituted physical injury

beyond that necessary to cause death. Dr. Sperry’s testimony, however, actually assisted the State

in proving this aggravator. The petitioner asserts that the failure to prepare Dr. Sperry resulted in

this witness becoming a witness for the State and, hence, the defense assisted the State in meeting

its burden of proof regarding this aggravating factor. The petitioner relies upon the Combs v. Coyle,

205 F.3d 269, 288 (6th Cir. 2000), cert. denied, 531 U.S. 1035, 121 S. Ct. 623 (2000), in support of

this claim. In Combs, the Sixth Circuit Court of Appeals found counsel ineffective for failure to

consult with experts prior to trial and learn of adverse testimony the expert would present. During

the guilt phase in Combs, the expert testified that the defendant was intoxicated, but nonetheless was

still able to act with the requisite mens rea required for the Ohio crime. The failure to discuss the

possibility of that admission was determined ineffective assistance of counsel because that was

during the guilt stage and the admission about the mens rea negated the sole defense theory. In the

instant case, even if on cross-examination Dr. Sperry admitted to a fact that essentially proved an

aggravator, his testimony also added to the defense of another aggravator. Any lack of preparation

in the instant case was far less damaging and not prejudicial, than in Combs.

At the sentencing hearing, Dr. Sperry testified that the victim was unconscious after the initial

blows to the head and did not suffer extensive physical pain when the petitioner raped and stabbed

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her. Dr. Sperry further said that the victim was unable to feel pain once she was rendered

unconscious, and therefore, being unable to feel pain, she was not tortured. However, Dr. Sperry

admitted on cross-examination that he believed that the victim suffered serious physical abuse

beyond that necessary to cause death. Trial counsel presented Dr. Sperry to call into question the

State’s proof that the victim was conscious at the time the injuries were inflicted. While, indeed, Dr.

Sperry’s testimony on direct examination called into doubt the State’s proof that the murder involved

torture, trial counsel could not have prevented Dr. Sperry from stating that he believed the victim

suffered serious physical abuse beyond that necessary to cause death. He said that the district

attorney did an “incredible job” during cross-examination of Dr. Sperry and that led to Sperry

essentially proving the aggravator rather than defending against it. Although the potential for such

a statement could have been discussed prior to trial, the decision to present Dr. Sperry’s testimony

refuting the issue of the victim’s consciousness nonetheless remains one of trial strategy. The

petitioner presents no clear and convincing evidence to convince this Court that the overall decision

and preparation of Dr. Sperry was not a strategic decision.

Furthermore, defense counsel could not have advised Dr. Sperry to falsify his opinion.

Finally, the petitioner has failed to show that further preparation of this witness or that absent the

testimony of this witness would have affected the jury’s determination that a sentence of death was

warranted. This claim is without merit.

The petitioner also contends that the use of the other expert witness, William Redick, with

the CCRC, was questionable as mitigation evidence and clearly had nothing to do with the petitioner

himself. Redick testified that it was more costly to execute someone than to keep him in prison for

life. The petitioner presents nothing but a bare bones argument that Redick’s testimony was without

merit. We see nothing to counter the presentation of Redick as being a strategic choice by trial

counsel in an attempt to find leniency in sentencing. This issue is without merit.

(2) Counsel presented merely cosmetic lay witness testimony. The petitioner contends

that trial counsel were ineffective for failing to identify, locate, and interview all relevant mitigation

witnesses. He asserts that the testimony of the three final witnesses, his father, mother, and wife,

were merely “short pleas to spare the life of their loved one.” He reinforces his position by trial

counsel’s and Sweat’s acknowledgment that they were not prepared for trial. Additionally, he points

to the failure of trial counsel to make any significant preparations for the sentencing phase until after

the conclusion of the guilt phase. The jury heard little, if any, information about the petitioner’s

history, character, background, and psychological profile.

Specifically, the petitioner argues that the following evidence should have been presented

in mitigation:

(1) The petitioner suffers from organic brain damage, and this brain damage

influences his conduct;

(2) The petitioner’s upbringing, specifically his parents’ dearth of physical and

emotional resources;

(3) The petitioner’s learning disability and the frustration and behavioral troubles it

has generated; and

(4) The petitioner’s tendency to follow rather than lead.

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While not necessarily agreeing with the specific evidence the petitioner argues should have

been presented, we acknowledge more could have been done on behalf of the petitioner. Trial

counsel was more limited in financial resources to obtain experts at trial than was post-conviction

counsel. However, as we will discuss throughout the analysis, we nonetheless conclude that even

if trial counsel had acted ineffectively, we cannot say there is a reasonable probability that the result

of sentencing would have a different outcome. In other words, we cannot conclude that the

confidence in the outcome of this sentence was undermined. In making this determination, where

the prejudice involves a trial counsel’s failure to present sufficient mitigating evidence, we turn to

Goad v. State, 938 S.W.2d 363 (Tenn. 1996).

Analysis and the application of the Goad factors: Where the alleged prejudice involves

counsel’s failure to present sufficient mitigating evidence, several factors are of significance: (1) the

nature and extent of the mitigating evidence that was available but not presented; (2) whether

substantially similar mitigating evidence was presented to the jury in either the guilt or penalty phase

of the proceedings; and (3) whether there was such strong evidence of aggravating factors that the

mitigating evidence would not have affected the jury’s determination. Goad v. State, 938 S.W.2d

at 371.

Sentencing hearing evidence presented: Trial counsel presented five witnesses at the

sentencing hearing: Dr. Sperry, William Redick, the petitioner’s wife, mother, and father.

Essentially, the latter three pled for the petitioner’s life. Dr. Sperry was presented to rebut one of the

State aggravators and while he did testify that the victim was rendered unconscious during the

murder and therefore unable to be tortured, he also admitted on cross-examination that the victim

was beaten beyond that necessary to cause death, which is an aggravating factor. William Redick

testified that it is less costly to imprison a man for life than to put him to death.

We analyze the trial counsel’s mitigation effort at the sentencing hearing under Strickland’s

performance and prejudice components. Bell v. Cone, 535 U.S. 685, 697-98 (2002) (holding that

failure to adduce mitigating evidence at sentencing in capital case was “of the same ilk as other

specific attorney errors and therefore subject to Strickland); Burger v. Kemp, 483 U.S. 776, 788

(1987) (failure to put any mitigation evidence at capital sentencing analyzed under Strickland);

Darden v. Wainwright, 477 U.S. 168, 184 (1986) (counsel’s decision not to put on mitigation

evidence at capital sentencing hearing analyzed under Strickland). The petitioner contends in his

brief that we should analyze this claim under United States v. Cronic’s presumption of

ineffectiveness exception to Strickland. See 466 U.S. 648, 654 (1986). The petitioner asserts that

trial counsel failed to “subject the prosecution’s case to meaningful adversarial testing.” See Id. In

Bell, the United States Supreme Court made it clear that for the Cronic exception to apply, “the

attorney’s failure must be complete.” 535 U.S. at 697. As in Bell, the petitioner’s argument in this

case is “not that his counsel failed to oppose the prosecution throughout the sentencing proceeding

as a whole, but that his counsel failed to do so at specific points.” Id. Therefore, Cronic is not

applicable to this issue.

The petitioner complains that defense counsel was ineffective for failing to identify, locate,

and interview all relevant mitigation witnesses. He also asserts that the testimony of the three final

witnesses, his father, mother, and wife were merely “short pleas to spare the life of their loved one.”

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He reinforces his position by Mr. Kelly’s and Mr. Sweat’s acknowledgment that they were not

prepared for trial. In support of his position, the petitioner cites to the failure of defense counsel to

make any significant preparations for the sentencing phase until after the conclusion of the guilt

phase. The jury heard little, if any, information about the petitioner’s history, character, background,

and psychological profile.

Indeed, the petitioner argues that the following evidence should have been presented in

mitigation:

(1) The petitioner suffers from organic brain damage, and this brain damage

influences his conduct;

(2) The petitioner’s upbringing, specifically his parents’ dearth of physical and

emotional resources;

(3) The petitioner’s learning disability and the frustration and behavioral troubles it

has generated; and

(4) The petitioner’s tendency to follow rather than lead.

In preparing for trial, lead counsel obtained the assistance of the Capital Case Resource Center in

identifying and developing mitigation proof. Lead counsel was assisted by his investigator, Terry

Sweat, and Gail Hedrick in obtaining mitigation proof and interviewing the petitioner’s family and

friends. The trial court approved funding for Terry Sweat, a psychologist, Gillian Blair, and Dr. Kris

Sperry, a forensic pathologist. Other requests for additional funding were denied by the trial court.

See State v. Mann, 959 S.W.2d 503, 526-27 (Tenn. 1997).

Terry Sweat testified that many of the petitioner’s relatives and friends were unwilling to talk

to either him or Ms. Hedrick. The defense team obtained the medical and school records of the

petitioner and forwarded the records to Dr. Gillian Blair for expert evaluation. Based upon this

evidence, in a letter to counsel dated May 27, 1994, Dr. Blair reached the following conclusions:

. . . Glenn Mann described his childhood as good, and denied any abuse. . . .

Developmental history was apparently non-significant. Medical records indicated

bronchopneumonia as an infant, and appendicitis at age eleven. Records revealed

hospitalization at age 16 for viral meningitis. Recovery was apparently good, with

no residual problems. At 19 years of age, he was treated for a chest injury, and

alcohol use was noted at that time. Family history was negative for mental health

problems/treatment, and Mr. Mann denied any prior mental health problems or

treatment for himself.

Educationally Mr. Mann has a ninth grade education. He repeated sixth grade, but

apparently had received resource services since at least fourth grade. Psychological

testing dated 9/11/86 indicated low average intellect, with a significant weakness

observed in the verbal domain. Academic achievement test data indicated the

presence of a specific learning disability in reading. Mr. Mann said that he was

expelled from school for discipline problems. . . .

-37-

Mr. Mann described significant abuse of alcohol from age 17, and at age 20 he began

to abuse drugs including cocaine. Mr. Mann acknowledged a number of arrests, and

has served time for burglary and theft of an automobile.

...

Mr. Mann was interviewed and tested at the North West Correctional Facility in Lake

County. . . . There was no evidence of psychosis or delusional process. Mood was

neutral and affect was full range. Intellect was judged to be borderline at least.

Insight and judgment were impaired.

Current test data revealed low average intellectual functioning, with a significant

discrepancy (> 16 points) between the verbal and performance domains . . . .

Mr. Mann demonstrated some difficulty sequencing and tracking complex

information. . . .

Self-report measures suggested significant depression and mild anxiety. . . .The

depressive symptoms were similarly situational in nature, and appeared exaggerated,

since Mr. Mann did not present as clinically depressed.

Objective test data similarly suggested symptom exaggeration, and a questionably

valid MMPI-2 profile. Mr. Mann endorsed an unlikely constellation of symptoms

that were not supported by either interview or behavioral observations. Mr. Mann’s

enduring personality traits are consistent with an individual who harbors feelings of

hostility, anger and resentment. . . .

In summary, Mr. Mann functions within the low average range intellectually. The

presence of a language-based learning disability was indicated, and was consistent

with prior test data. There was no evidence to suggest organicity. Mr. Mann

evidenced a tendency to exaggerate symptoms. There was no suggestion of

psychosis. Situational depression and anxiety were present. Personality test data

suggested underlying resentment in a man who has difficulty generating and

sustaining close interpersonal relationships. He does not learn from experience, and

evidenced poor judgment and minimal insight. Mr. Mann described behavior

consistent with substance abuse/dependency.

...

Based upon her conclusions, Dr. Blair informed defense counsel that: “Apparently there is nothing

that might be helpful to me, should you require me to testify at sentencing. . . . Given the benign

psychological profile, and the lack of any substantive mitigating evidence, I am not sure that I will

be of any use to your case.” This letter from Dr. Blair evidences that counsel was aware of the

petitioner’s learning disability, his psychological traits, and Dr. Blair’s conclusion that the petitioner

did not suffer from organic brain damage. Dr. Blair opined that her conclusions would not be helpful

in mitigation.

Thus, Dr. Blair did discover and negate the findings that the petitioner now asserts should

have been presented as mitigating evidence. Specifically, Dr. Blair found as not worthy of

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introduction (1) the split between the verbal and performance IQ, (2) the petitioner’s substance

abuse, and (3) the petitioner’s learning disability. It was reasonable for defense counsel to rely upon

Dr. Blair’s expert conclusions.

The petitioner’s parents testified as to the petitioner’s social upbringing in rural West

Tennessee. The fact that counsel did not seek the academic studies of Dorothy Granberry or other

scholars regarding African-American communities in rural West Tennessee does not result in a

finding that counsel was therefore deficient. Additionally, Granberry’s study was largely completed

after the petitioner’s trial and was, therefore, unavailable at the time.

Finally, the petitioner has failed to establish that the undiscovered mitigating evidence would

have affected the jury’s determination that a sentence of death was warranted. The proof as to the

two aggravators was overwhelming. It is pure conjecture as to whether proof as to the petitioner’s

substance abuse would have assisted in mitigation.

III. The trial court erred in ruling that petitioner’s post-conviction claims were waived or

previously determined.

The petitioner contends that the post-conviction court erred in ruling that certain claims were

previously determined or waived, specifically, the following: (1) underfinancing of the defense, (2)

the qualifications of investigator Terry Sweat and student Gail Hedrick, (3) the sufficiency of the

investigation, (4) trial counsel’s failure to present mitigation evidence; and (5) trial counsel’s failure

to use expert services effectively.

Tennessee Code Annotated section 40-30-203, Grounds for Post-conviction Relief, states:

“Relief under this part shall be granted when the conviction or sentence is void or voidable because

of the abridgment of any right guaranteed by the Constitution of Tennessee or the Constitution of

the United States.” This Court previously held that “[p]reviously determined grounds for relief are

not subject to review by post-conviction proceedings.” Roach v. Moore, 550 S.W.2d 256, 260

(Tenn. Crim. App. 1977). “A ground for relief is previously determined if a court of competent

jurisdiction has ruled on the merits after a full and fair hearing. A full and fair hearing has occurred

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

regardless of whether the petitioner actually introduced any evidence.” Tenn. Code Ann. § 40-30-

206(h). Accordingly, we need to determine whether a court of competent jurisdiction determined

these issues after a full and fair hearing.

(1) Underfinancing of the defense: The post-conviction court found:

Petitioner’s first issue of underfinancing of the defense has previously been

determined on direct appeal and is not the proper subject for post-conviction

proceedings. It is significant to note, however, that if the Post-Conviction Court

considered this particular issue, the Court could still not find any ineffective

assistance of counsel as counsel did everything that he could do to seek additional

funding for the defense for both investigation, mitigation and employment of expert

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witnesses. Petitioner has failed to carry his burden of proof of ineffective assistance

of counsel or prejudice on this issue.

On direct appeal, this Court and the Tennessee Supreme Court addressed the issue of the trial

court’s failure to fund additional experts. State v. Glen Bernard Mann, No. 02C01-9502-CC-00046,

1996 Tenn. Crim. App. LEXIS 508 at *50-54 (Tenn. Crim. App., at Jackson, Aug.16, 1996), State

v. Mann, 959 S.W.2d 503, 527 (Tenn. 1997). The courts held that the petitioner was not prejudiced

by the denial of additional funding. Id. Although the post-conviction court stated that this issue had

been previously determined, the post-conviction court went on to consider the issue under Strickland.

The post-conviction court held that the petitioner had “failed to carry his burden of proof of

ineffective assistance of counsel or prejudice on this issue.” We hold that the issue of

underfinancing was considered by the post-conviction court, and we agree with its determination that

the petitioner has not shown prejudice on this issue.

(2) Qualifications of the investigators, Terry Sweat and Gail Hedrick: The post-conviction court

found:

Again, there is no evidence that the investigators were unqualified in regard to the

issue of guilt or innocence. This argument appears to be applicable only in the

sentencing phase. It again should be noted that [trial counsel] requested from the trial

court additional investigation and expert funding. This issue was again raised on

direct appeal to the Court of Criminal Appeals and the Supreme Court. On appeal,

the Court of Criminal Appeals and the Supreme Court noted that investigative

services of Terry Sweat and Gail Hedrick were authorized along with funding of

these services. Then the Court noted that the constitution did not require the

appointment of either a jury statistician or mitigation specialist in this case and that

these investigators already appointed could perform the mitigation work. Again, this

issue is previously determined on direct appeal and not the proper subject for post-

conviction proceedings. The Court also notes that there is no evidence in the record

to substantiate any claim for ineffective assistance of counsel for having unqualified

investigators as far as the guilt or innocence phase is concerned. There is evidence

in the record that trial counsel’s investigators had no experience in investigating

death penalty cases regarding mitigation. Trial counsel acknowledges this lack of

experience in the post-conviction evidentiary hearing. Trial counsel, however,

applied to the trial court for more funding as mentioned above and his request was

denied. The Court in summarizing the facts in this case also sets out what additional

evidence would have been available to the jury during the sentencing phase. The

Court finds that petitioner failed to prove with this additional evidence that the

outcome of the sentencing phase would have been different. Consequently, no

prejudice has been shown by the petitioner to this issue of “unqualified

investigators.”

The Tennessee Supreme Court held that the investigator assigned to assist in preparing

mitigation for the sentencing hearing was “more than capable of performing this type of work.”

Mann, 959 S.W.2d at 527. The petitioner contends in his brief that this issue was not decided in the

context of an ineffective assistance claim. We point out that even though the post-conviction court

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stated that the issue had been previously determined, it is clear from the language above that the

post-conviction court considered the issue under Strickland. We agree with the post-conviction

court’s finding that the petitioner has failed to show prejudice on this issue.

(3) Sufficiency of the investigation: The post-conviction court found:

Petitioner argues that Mr. Kelly’s investigators did not interview all of the

prosecution witnesses, specifically all of the police officers. The investigators did

collect school and hospital records but did little investigative work in the mitigation

area. The local District Attorney General has an open file policy. The file material

along with all of the statements of the officers and the investigation of the case was

available to defendant’s attorneys and their investigators. Defense counsel also

pursued a motion to suppress where some if not all of the police officers were

questioned. There is simply no evidence to suggest an insufficient investigation as

a basis for ineffective assistance of counsel during the guilt or innocence phase of the

trial and no evidence to show any prejudice in connection with the finding of guilt

or innocence. This issue also has been previously determined on direct appeal. In

connection with the sentencing phase of the trial, there was no real mitigation

investigation. Counsel did have available for the sentencing phase immediate

members of the Mann family. Mr. Mann’s mother, father and wife testified. He also

had Mr. William Redick, Dr. Kris Sperry and Dr. Gillian Blair. Adversary counsel

as a part of trial strategy chose not to use Dr. Blair because she indicated to him that

she would hurt him in this case. Dr. Sperry was used to challenge one of the State’s

aggravating factors and on cross-examination helped to prove one of the aggravators.

The issue of insufficient investigation in connection with the sentencing phase has

been previously determined on direct appeal. Petitioner also fails to prove by clear

and convincing evidence that he has been prejudiced in connection with this issue.

Evidence that additional mitigation investigation would have caused a different result

in the sentencing phase is insufficient for petitioner to carry his burden of proof.

Although the post-conviction court stated that this issue was previously determined, it is clear

from the language above that the issue was considered by the post-conviction court under Strickland.

We agree with the post-conviction court that the petitioner has failed to show that any additional

investigation would have caused a different result in the sentencing phase.

(4) Failure to present mitigating evidence: The post-conviction court found:

In connection with the sentencing phase, there certainly were some failures on the

part of counsel to properly prepare. The failures involve the investigation and

preparing of mitigation evidence and the hiring of a neuropsychologist and

neuropsychiatrist. These issues were previously determined on direct appeal.

Counsel was never able to obtain adequate financing to employ such experts or do

the mitigation work that is now being suggested. The trial court ruled on these issues

properly under the prevailing law in 1994. Consequently, there is no showing of

deficient performance in this area and with the aggravating factors that were

-41-

considered by the jury there is a failure by petitioner to prove by clear and convincing

evidence the issue of prejudice.

We find that the post-conviction court did consider this issue based on the language in the

last sentence quoted above. We agree with the holding of the post-conviction court that the

petitioner has failed to show prejudice on this issue.

(5) Counsel failed to effectively utilize expert testimony: The post-conviction court found:

Post-Conviction counsel’s final issue raised is failure of trial counsel to

effectively utilize expert services. Again, this issue was previously determined on

direct appeal. The trial court record reflects the efforts of trial counsel to obtain an

investigator for mitigation services as well as expert witnesses. The Court gave him

what services were available at that time and determined that those were all the

services available under the law in 1994. This issue was argued on direct appeal and

was previously determined by the Court of Appeals and the Tennessee Supreme

Court so that it is not a proper argument in a post-conviction proceeding. Evidence

introduced at the post-conviction hearing would suggest that there were other expert

services available including Dr. Dorothy Granberry (social psychologist), Dr. Murray

Smith (addictionologist), Dr. Pamela Auble (neuropsychologist) and Dr. George

Woods (neuropsychiatrist). The evidence that these experts would have introduced

is summarized hereinabove. This evidence would have little, if any, effect on the

guilt or innocence phase of the trial, but certainly could have had some effect during

the sentencing phase. In summary, Dr. Granberry would have been used to show that

it was very difficult for Mr. Mann to trust his attorneys. To gain this trust, much

more time needed to be spent both with Mr. Mann and his family in discussing the

case with him and investigating the matter. It appears that petitioner’s brother, Eddie

Joe Mann, undermined all efforts of petitioner’s attorneys to convince petitioner to

plead guilty. Eddie Joe Mann had much more influence on petitioner than

petitioner’s attorneys. Additional efforts by trial counsel would, therefore, appear to

have been useless. Dr. Auble and Dr. Woods would indicate that Mr. Mann has an

organic problem in his brain that affects his ability to make executive decisions

especially when he is under stress or in a stressful situation. Dr. Smith would have

indicated that due to alcohol and drug abuse, he was even more stressed out and

unable to deal with the situation.

Trial counsel was unaware of these experts at the time of trial although he

was in contact with the Capital Case Resource Center who evidently had knowledge

of this type of evidence. Again, failure to obtain some of the investigative materials

previously mentioned precluded trial counsel from furnishing enough information to

raise these particular issues. However, trial counsel was precluded from obtaining

this information by appropriate order of the Court and this issue has previously been

determined on direct appeal. Any such failure would have been the direct result of

inadequate financing which has been discussed above. Certainly with all of this

additional information, trial counsel could have presented to the jury a more complete

picture of Glenn Mann who was a young man troubled since childhood by

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neurological impairments that may have created a sense of frustration as he failed to

develop verbal skills. As set out herein, any performance that may have fallen below

the constitutional standard of effective assistance of counsel during the sentencing

stage has previously been determined on direct appeal. Petitioner also fails to show

prejudice during the sentencing phase.

The aspects of the petitioner’s claim on this issue that were not previously determined (i.e.

inadequate financing) were considered by the post-conviction court under Strickland, and it was

determined that the petitioner had failed to show prejudice. We agree with the determination of the

post-conviction court.

Despite the petitioner’s assertions that the post-conviction court failed to consider certain

claims on the basis that they were waived or previously determined, the written order of the post-

conviction court reveals that the court did consider all of the claims under the Strickland standard.

We hold that the petitioner has failed to show prejudice regarding those issues.

IV. The trial court’s analysis of the facts and its application of the law are clearly

erroneous.

A. Incorrect Legal Standard

The petitioner asserts that the post-conviction court applied an incorrect standard in denying

him relief. Specifically, he cites to the post-conviction court’s language that “the Court finds that

the petitioner failed to prove with this additional evidence that the outcome of the sentencing would

have been different.” He argues that this is not the correct standard, pointing out that “Strickland

requires a showing of a reasonable probability of a different outcome, not a certainty as the court

suggests.”

The petitioner is correct in his assertion that, to establish that a deficiency resulted in

prejudice, a petitioner “must show that there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.” A reasonable

probability is a probability sufficient to undermine confidence in the outcome. Strickland, 466 U.S.

at 694, 104 S. Ct. at 2068. In short, a petitioner must establish that the deficiency of counsel was of

such a degree that it deprived the petitioner of a fair trial and called into question the reliability of

the outcome. State v. Burns, 6 S.W.3d at 463.

While the language used by the post-conviction court seemingly applied a greater standard

of proof of prejudice as cited by the petitioner, the court later used the proper standard, i.e.,

“Petitioner has failed to show by clear and convincing evidence any reasonable probability of

different outcome in either the guilt or innocence phase or the sentencing phase.” Additionally, in

discussing the applicable law, the post-conviction court noted:

Petitioner must also establish that “there is a reasonable probability that, but for

counsel’s unprofessional errors, the results of the proceedings would have been

different.” A reasonable probability is a probability sufficient to undermine the

confidence in the outcome.

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We conclude that the post-conviction court was aware of and applied the correct legal

standard. It appears, given the length of its order denying post-conviction relief, the post-conviction

court’s misstatement of the legal standard to be applied was done in an effort to shorten the order.

Moreover, as this Court reviews issues of ineffective assistance of counsel de novo, any complaint

to the standard employed by the post-conviction court has since become moot. Thus, we find no

error on behalf of the post-conviction court.

B. Findings of Lower Court Erroneous

The petitioner also asserts that the findings of the post-conviction court are erroneous as to

matters of both law and fact. He claims that on different occasions in its order, the court reaches

conclusions that are not supported by the evidence, i.e., (1) “counsel did everything that he could do

to seek additional funding for the defense for both investigation, mitigation, and expert witnesses,”

and (2) the petitioner “argues that the role of [trial co-counsel] was limited in this case and yet Mr.

Ingram handled the voir dire examination and made opening statements and cross-examined several

witnesses.” Additionally, he argues that the post-conviction court failed to engage in any Cronic

analysis.

Regarding trial counsel’s attempts to secure funding for expert services, the record shows that

he filed and argued motions to obtain funding for experts. These motions were denied, and the

issues were raised on direct appeal. This Court and the Tennessee Supreme Court found no error

in the trial court’s denial of these motions. Although the affirmance of the lower court’s denial on

appeal is not conclusive as to whether counsel did everything he could to secure funding, the

petitioner failed to present clear and convincing evidence that counsel failed to do something in

respect to arguing and filing these motions. Indeed, while the petitioner offers suggestions as to

what counsel could have done, there is no evidence that, had counsel done what petitioner suggests,

the trial court would have granted funding. Moreover, the petitioner has not shown that, had

additional funding been granted, the result of either the guilt or penalty phase would have been

different.

The petitioner also contends that, despite the court’s findings, he never argued that co-

counsel’s role was limited at trial but instead argued that lead counsel failed to sufficiently utilize

co-counsel during pre-trial preparation. The record reveals that the post-conviction court correctly

perceived petitioner’s argument. The court wrote:

Petitioner next argues that defense counsel failed to properly prepare for trial and

failed to utilize co-counsel . . . . He argues further that [co-counsel] played no part

in any mitigation investigation. Post-conviction counsel also argues that the trial

attorneys had no theory of defense and neither attorney actually took any steps to

prepare to defend [petitioner].

It is apparent from a reading of the record that the lower court properly considered petitioner’s

assertions and correctly found that the allegations were not proven by clear and convincing evidence.

Finally, the post-conviction court properly applied the Strickland standard, rather than the

Cronic standard, to petitioner’s claims of ineffective assistance of counsel. In United States v.

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Cronic, 466 U.S. 648, 658, 104 S. Ct. 2039, 2046 (1984), the Supreme Court fashioned an exception

to the Strickland prejudice prong reasoning that “there are circumstances that are so likely to

prejudice the accused that the cost of litigating their effect in a particular case is unjustified.” The

Cronic court, actually in dicta, stated that in rare circumstances, prejudice might be presumed

“without inquiry into counsel’s actual performance at trial.” Id. at 662, 104 S. Ct. at 2048. The

Supreme Court noted:

Circumstances of that magnitude may be present on some occasions when

although counsel is available to assist the accused during trial, the likelihood that any

lawyer, even a fully competent one, could provide effective assistance is so small that

a presumption of prejudice is appropriate without inquiry into the actual conduct of

the trial.

Cronic, 466 U.S. at 659-60, 104 S. Ct. at 2047. Thus, the court carved out a narrow exception to the

general rule that in ineffective assistance of counsel cases under the Sixth Amendment, a petitioner

must prove that he or she was prejudiced by counsel’s deficient performance.

Nonetheless, the Cronic exception may only be employed “if the record reveals

presumptively prejudicial circumstances, such as an outright denial of counsel, a denial of the right

to effective cross-examination, or a complete failure to subject the prosecution’s case to adversarial

testing.” Scarpa v. Dubois, 38 F.3d 1, 12 (1st Cir. 1994) (footnote omitted). The Cronic exception

is meant to encompass those types of conduct that are so antithetic to effective assistance of counsel,

e.g., lawyers who leave the courtroom for long stretches of time, that a case-by-case analysis simply

is not worth the cost of protracted litigation. See, e.g., United States v. Mateo, 950 F.2d 44, 48-50

(1st Cir. 1991) (attorney failed to appear); Tucker v. Day, 969 F.2d 155, 159 (5th Cir. 1992) (defense

counsel sat mute throughout entire resentencing proceeding); Green v. Arn, 809 F.2d 1257, 1259-64

(6th Cir. 1987), vacated, 484 U.S. 806, 108 S. Ct. 52 (1987), reinstated, 839 F.2d 300 (1988), cert.

denied, 488 U.S. 1034, 109 S. Ct. 847 (1989) (defense counsel absent from courtroom during critical

stage of trial). However, attorney errors particular to the facts of a case are qualitatively different.

Indeed, the Supreme Court warned that, in most cases, a showing of actual prejudice remains a

necessary element and is required where the fundamental fairness of the challenged proceeding has

not been affected and the integrity of the legal process has not been jeopardized. See generally

United States v. Swanson, 943 F.2d 1070, 1073 (9th Cir. 1991).

The errors alleged by counsel in the instant case are not the type in which prejudice will be

presumed. Thus, Strickland, and not Cronic, supplies the appropriate standard for assessing trial

counsel’s performance in the instant case. This challenge is without merit.

C. Post-Conviction Court Failed to Address All Claims

The petitioner asserts that his petitions delineated numerous factual bases to support a finding

of ineffective assistance of counsel. He now claims that the lower court failed to address the

following arguments: (1) counsel failed to file pre-trial motions seeking special voir dire rules, (2)

trial and appellate counsel failed to file any motions or raise issues asserting the petitioner’s rights

under international law, (3) the petitioner was sentenced to death in violation of both the United

States and Tennessee Constitutions in that the aggravating factors were elements of the offense and

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not submitted to the grand jury in violation of Apprendi v. New Jersey, 530 U.S. 466 (2000), and (4)

the Tennessee capital sentencing scheme facially violates both the United States and Tennessee

Constitutions.

The petitioner presented no evidence at the post-conviction hearing that the failure to seek

special jury voir dire rules in a capital case falls below an objective standard of reasonableness.

Moreover, claims related to the constitutionality of Tennessee’s death penalty statute were raised on

direct appeal. See State v. Mann, 959 S.W.2d at 536. Accordingly, such claims are not cognizable

in a post-conviction proceeding. Tenn. Code Ann. § 40-30-206(h).

V. Conclusion

After a thorough review of the record and the law applicable to the issues raised herein, we

find that the petitioner has failed to prove the allegations contained in his post-conviction petition.

The judgment of the post-conviction court is affirmed.

___________________________________

JOHN EVERETT WILLIAMS, JUDGE

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