Perry Anthony Cribbs v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

March 4, 2008 Session

PERRY ANTHONY CRIBBS v. STATE OF TENNESSEE

Direct Appeal from the Criminal Court for Shelby County

No. P-20670 Carolyn Blackett, Judge

No. W2006-01381-CCA-R3-PD - Filed July 1, 2009

The petitioner, Perry Anthony Cribbs, appeals the Shelby County Criminal Court’s denial of his

petition for post-conviction relief from his convictions for first degree felony murder, attempted

first degree murder, and aggravated burglary, and resulting sentences of death, forty years, and

ten years, respectively. On appeal, the petitioner presents a number of claims that can be

characterized in the following categories: (1) he is actually innocent of murder; (2) he was

denied a fair post-conviction evidentiary hearing; (3) the post-conviction court’s failure to

conclude that he was mentally retarded was contrary to the proof presented by the psychological

experts; (4) he was denied the effective assistance of counsel at trial and on direct appeal; and (5)

Tennessee’s death penalty statute violates the United States and Tennessee Constitutions.

Following a thorough and exhaustive review of the record and the applicable law, we conclude

that the petitioner received the ineffective assistance of counsel at sentencing. Therefore, the

petitioner’s death sentence is reversed, and the case is remanded to the trial court for a new

capital sentencing hearing. The judge who presided over this post-conviction proceeding is

disqualified from any subsequent proceedings in this case.

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

Part, Reversed in Part, and the Case is Remanded.

NORMA MC GEE OGLE, J., delivered the opinion of the court, in which D. Kelly Thomas, Jr., J.,

joined. THOMAS T. WOODALL, J., filed a dissenting opinion.

Paul J. Morrow, Jr., and Sara Willingham, Nashville, Tennessee, for the appellant, Perry

Anthony Cribbs.

Robert E. Cooper, Jr., Attorney General & Reporter; Michael Moore Solicitor General; James E.

Gaylord, Assistant Attorney General; William L. Gibbons, District Attorney General; and John

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

OPINION

I. Factual Background

A. Proof Underlying the Petitioner’s Convictions

In the petitioner’s direct appeal, our supreme court stated the following facts:

The proof presented by the State at the guilt phase of the

trial established that sometime between 1:30 a.m. and 1:45 a.m. on

the morning of January 2, 1994, the victims, Sidney Harris, and his

wife, Linda Harris, returned from a visit with friends to their home

located at 4378 Cottonwood, in Memphis. As was his habit,

Sidney Harris backed his car onto the carport, and then opened the

door for his wife to enter the house. As she came through the

kitchen door, Linda Harris was attacked and knocked to the floor

by an unknown assailant. Sidney Harris struggled with this man,

who was armed with a pistol, for approximately fifteen seconds,

and had wrestled him to the floor when a second assailant, armed

with a double barrel sawed-off shotgun, intervened and ordered

Harris to release the first man.

With guns leveled upon him, the two intruders ordered

Harris to sit in a chair located in the den of his home, which was

just off the kitchen, about five feet from where his wife was

located. At some point, the intruders asked Harris, “where is the

dope?” and they told Harris they intended to shoot him. Though

the lights were not on in the house during this time, Harris said the

carport light shone through the open kitchen door and provided

sufficient illumination for him to observe the facial features of the

intruders. Harris observed the assailants for twenty to thirty

seconds before the second assailant fired the shotgun, striking

Harris in the left shoulder and hand. Harris lost consciousness for

a time after he was shot. When he regained consciousness, the

assailants were gone. Harris observed his wife’s body lying in a

pool of blood on the floor of the kitchen where she had been

initially assaulted. Based upon the discovery of wadding material

on the left side of her neck and powder burns on her body, the

medical examiner testified that Linda Harris had sustained a

contact shotgun wound to the left side of her head which would

have resulted in instantaneous death. Harris made his way to a

neighbor’s house, where he was able to summon assistance before

again losing consciousness.

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When the police arrived at the scene they found the house

in disarray. The intruders apparently had gained entry to the house

through an open bedroom window. Toys belonging to the victim’s

daughter were in that bedroom and visible on the videotape of the

scene made by police. The videotape also showed the body of

Linda Harris in the kitchen, shotgun shells on the den floor, and

bloodstains on the chair in which Sidney Harris had been sitting

when he had been shot. There were several bullet holes in the wall

to the left of the chair in the den.

Officer Donald Crow, a Memphis policeman, rode with

Harris as he was transported to the hospital shortly after the

shooting. Officer Crow testified that Harris described the first

assailant in some detail, but stated that the man had been wearing a

black ski mask. With respect to the second assailant, Harris,

according to Officer Crow, said only that he was tall, thin, and

wore a black ski mask. Sergeant Ronnie McWilliams of the

Memphis police directed the investigation and interviewed Harris

the day after the shooting. At that time, Harris said that he could

not identify either of the two suspects because they had been

wearing black ski masks. About a week later, Harris told a police

officer that he could not get the complexion of the man with the

shotgun. Sergeant McWilliams described Harris as being heavily

sedated on the day after the murder and said that he had been in

serious condition when the second statement had been taken.

Harris could not remember speaking to police on the night of the

murder and recalled being sedated when he spoke with police the

next day. Thereafter, and at trial, Harris described the first

assailant as a black man, wearing a light-colored sheer stocking

mask, a denim jumpsuit, and gloves, approximately 6'1" in height,

240 pounds in weight, with a moustache, large round nose, thick

eyebrows, and hair about one inch in length. Harris said the

second assailant, who had shot him, also had been a black man,

wearing a light-colored sheer stocking mask, a dirty light green or

gold mechanic’s jumpsuit and gloves. Harris said this man was

taller and thinner than the first assailant, approximately 6'3" or 6'4"

in height, and about 220 pounds in weight.

At the time of this murder, the defendant was residing with

Jacqueline Cannon, the mother of his daughter. Cannon stated that

on the night of the murder, the defendant, wearing blue jeans and a

blue denim shirt, left their residence at approximately 9:00 or

10:00 p.m. When he returned sometime around 1:00 a.m., Cannon

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said he was covered in blood from a “hit.” Cribbs told her that he

had shot a man and a woman. Cribbs explained that he had been

hired to kill the man by another man who had been having an affair

with the female victim. Cribbs said that he had killed both victims

and claimed that he would be paid for the “hit” soon. The next

day, Cannon discovered at her residence a gold-faced Mickey

Mouse watch with a leather wrist band with the words “genuine

leather” imprinted on the back. When she asked Cribbs about the

watch, he explained that he had taken it from the home of the

couple he had killed.

Shortly thereafter, Cannon learned from news reports that a

man and woman had been shot, as Cribbs claimed, on the night of

January 2, 1994. The woman had been killed but the man survived

the shooting. Because she feared Cribbs, Cannon did not relay her

knowledge about the murder to the police at that time. Some four

to six weeks later, however, Cribbs became angry with Cannon

because he suspected she had told a neighbor about his role in the

murder. Cribbs assaulted and beat Cannon, and she was

hospitalized for three days, suffering, among other things, a

punctured lung. Fearing for her life, Cannon related to her brother

what Cribbs had told her about the murder. Her brother notified

Crime Stoppers, and as a result, the police located and interviewed

Cannon. Cannon eventually received $900 from Crime Stoppers,

and her brother received $100.

Upon learning of the gold-faced Mickey Mouse watch from

Cannon, police asked Sidney Harris if his wife had owned such a

watch. Harris had been hospitalized for twenty-two days following

the shooting and had not discovered the watch missing. When

questioned by police, Harris confirmed that his wife had owned

such a watch and that it had been among the items missing from

the house after the murder. At this point, having reason to believe

that the defendant may have been involved in the murder of Linda

Harris, police compiled a photographic lineup of eight men,

including the defendant, who matched the description given by

Harris. Visibly shaken and emotional, Harris identified the

photograph of Cribbs as “the mother ----- that shot me!” Harris

previously had viewed two other photographic lineups, but had not

identified anyone as the person who shot him and killed his wife.

At trial, Harris also positively identified Cribbs as the man who

shot him.

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Based upon the proof summarized above, the jury found the

defendant guilty of premeditated first degree [murder]; first degree

murder during the perpetration of an aggravated burglary; and first

degree murder during the perpetration of aggravated robbery.[1]

The defendant was also found guilty of aggravated burglary and

attempted first degree murder.

The trial proceeded to the sentencing phase. The State

relied upon the evidence presented during the guilt phase of the

trial, and in addition, introduced proof to show that the defendant,

twenty-three-years-old at the time of trial, previously had been

convicted of two counts of attempted second degree murder and

one count of aggravated robbery in 1990. Also introduced was

testimony that the defendant had been convicted of attempted

second degree burglary in 1989.

Testifying on his own behalf, Cribbs said that he had been

born in Alabama, but had lived in Shelby County for about nine

years. The defendant’s mother, grandfather, and two brothers,

twenty-six and seventeen, resided in Armory, Mississippi at the

time of the trial. Because of his grandfather’s illness and

obligations at work or school, none of his family were able to

attend his trial. Cribbs said that his family had visited him on the

Sunday prior to trial, and that visit had been the first time he had

seen his mother in four years. Cribbs had a cousin in Memphis and

previously had been employed by his uncle’s construction

company, but none of his family members attended the trial or

testified on his behalf. Cribbs said that he had told his aunt that the

trial was a matter of life or death, but he had not pressed his mother

to attend the trial because she had been ill, and he did not want to

worry her. Cribbs said that he had attended school through the

seventh grade but had dropped out when he was expelled for

truancy. Of the twelve-year sentence he received on the

convictions for attempted second degree murder and robbery,

Cribbs had been incarcerated for three and one-half years in prison

and had not violated prison rules during that time. Cribbs said that

he had visited with his only child, a daughter, seven or eight times

1

At the petitioner’s motion for new trial hearing, the trial court set aside the convictions for first degree premeditated

murder and first degree murder during the perpetration of aggravated robbery but upheld the conviction for first

degree murder during the perpetration of aggravated burglary and the death sentence. See State v. Cribbs, 967

S.W .2d 773, 776 (Tenn. 1998).

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since being arrested for the murder of Linda Harris. Cribbs denied

committing the crime for which the jury had convicted him, and he

said that he had refused to plead guilty in exchange for a life

sentence because he had not committed the crime. Cribbs

explained that Cannon had falsely implicated him in the murder

because she was angry. Cribbs said that he had argued with

Cannon because “she stole some money from me. I had whooped

her real bad and told her I wasn’t going to come around no more. . .

. So she came in and said this on me.” Cribbs denied having any

knowledge of a gold-faced Mickey Mouse watch. Lastly, Cribbs

asked the jury to spare his life, saying that he would conduct

himself as a decent individual in prison if given a sentence of life

imprisonment without the possibility of parole.

Based upon the proof, the jury found that the State had

proven the existence of two aggravating circumstances beyond a

reasonable doubt: (1) “[t]he defendant was previously convicted of

one or more felonies, other than the present charge, whose

statutory elements involve the use of violence to the person;” and

(2) “[t]he murder was committed while the defendant was engaged

in committing or was attempting to commit, a burglary.” Tenn.

Code Ann. § 39-13-204(i)(2) and (7) (1991 Repl.). Finding that

the two aggravating circumstances outweighed mitigating

circumstances beyond a reasonable doubt, the jury sentenced the

defendant to death by electrocution.

State v. Cribbs, 967 S.W.2d 773, 776-79 (Tenn. 1998) (footnotes omitted), cert. denied, 525 U.S.

932, 119 S. Ct. 343 (1998).

For the attempted first degree murder and aggravated burglary convictions, the trial court

imposed consecutive, Range II sentences of forty and ten years, respectively. Our supreme court

affirmed the petitioner’s convictions and sentences. Id. at 776 n.1. On December 2, 1998, the

petitioner filed a pro se petition for post-conviction relief. On February 8, 1999, the trial court

appointed the Office of the Post-Conviction Defender to represent the petitioner in the

proceedings, and counsel filed an amended petition on April 13, 2000. Evidentiary hearings on

the petition were conducted on various dates in November 2001, April 2002, June 2002, and

September 2002.

B. Proof at the Post-Conviction Evidentiary Hearings

Betty Thomas-Moore, an assistant public defender, testified that she became co-counsel

after September 16, 1994, and “was not a part of any of the motions or the hearings” in the case.

Despite a request for discovery, co-counsel denied ever viewing James Irvin Parker’s statement

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anytime in 1994. In his February 12, 1994 statement, Parker had claimed that he was

incarcerated with “several persons who bragged to him that they were the ones who killed Linda

Harris and shot her husband, Sidney. . . [and] also indicated that they killed her and shot her

husband as a part of a plan with the husband, Sidney Harris, to kill the wife, Linda Harris.” Co-

counsel opined that the statement would have been material to the preparation of the petitioner’s

defense. She explained that, had she been in possession of the statement, she would have located

Parker and investigated the statement’s validity. Although co-counsel could not recall the

indictment, she was not surprised to learn that Parker’s name was listed on it. She explained that

normal procedure would have been to take the witness names from the indictment and try to

locate each one. Nothing in the attorney file indicated anyone attempted to locate Parker.

Co-counsel testified that Sidney Harris allegedly was involved in his wife’s shooting.

She described the allegation as “a rumor that Mr. Harris had put a contract out on his wife.” Co-

counsel said she unaware of any marital problems the Harrises were having, and she was

unaware of any extramarital affairs or financial problems. Co-counsel stated that no

investigation was conducted into Sidney’s2 possible involvement with drugs. Although defense

counsel had heard several allegations regarding Sidney’s involvement with drugs, their

investigation into the case failed to substantiate the allegations. The defense’s investigator,

Ralph Nally, would have been assigned to investigate the allegations.

Regarding the petitioner’s former girlfriend, Jackie Cannon, co-counsel could not

remember any investigation. Cannon told police that the petitioner came home the night of the

shooting with blood on him and that he gave her a Mickey Mouse watch that supposedly

belonged to one of the victims. The attorney file reflected that Ralph Nally interviewed Cannon

on September 8, 1994. Co-counsel could not recall interviewing Cannon’s brother, George Ross.

She qualified her statement by explaining that she did not do much investigating on her own in

the case. Co-counsel also could not explain why there was no cross-examination of Cannon at

trial in response to Cannon’s statement that she and her brother received money from Crime

Stoppers. Co-counsel did not remember whether she and lead counsel had discussed Cannon’s

cross-examination.

Co-counsel testified that Elizabeth Benson was supposed to gather background

information about clients. This entailed gathering information about schoolwork, medical

problems, medical history, family history, work history, and anything else related to a client’s

life. Co-counsel related that Benson had reported in her working document that the petitioner

was in a resource class. Co-counsel interpreted a “resource class” to be a class for those persons

“who were a little bit slower than everybody else so they were in special ed. classes.”

Co-counsel testified that the defense did not consider filing a motion for the trial judge,

Judge Axley, to recuse himself based upon his “perceived attitudes towards death penalty

2

Because the victims have the same surname and some of the witnesses share the same surname, we have chosen to

utilize their first names when necessary for clarity. W e mean no disrespect to these individuals.

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defendants.” She stated that she did not conduct any mitigation investigation on her own or go to

Alabama where members of the petitioner’s family lived. She did not remember seeing anything

in the file directing Ralph Nally to go to Mississippi or Alabama. Co-counsel stated that she may

have talked directly with members of the Cribbs family, but she was not certain.

Co-counsel testified that she could not recall seeing a Tennessee Department of

Correction report regarding the petitioner’s prior offenses. However, upon review, she stated that

the report was in the attorney file. The report contained a list of family members, specifically

Loretta Cribbs, Marie Cribbs, Randy Cribbs, Annie W. Cribbs, Vonzell Cribbs, Freddie Cribbs,

Oday Cribbs, and Jackie Cannon. They lived in Memphis, Tennessee, and Amory, Mississippi.

Co-counsel never contacted any of the petitioner’s friends or school teachers, and she could not

remember anything about the victim’s family or the petitioner’s family. She also could not recall

anything about the petitioner’s parents or his birth records, school records, juvenile records, or

Sunday school records.

Co-counsel testified that although a competency and sanity examination was completed

on the petitioner at the Midtown Mental Health Center, she could not recall any requests for

further expert assistance in that area. Co-counsel added that, in her opinion, “lots of stuff . . . is

missing from the file.” Specifically, co-counsel stated that documents she obtained during the

trial were missing. As for the theory of the case, co-counsel could not remember the specific

defense theory. She stated that the petitioner “always has said that he didn’t know anything

about it and didn’t know . . . Ms. Harris nor Mr. Harris.” Co-counsel also could not remember

the defense strategy at sentencing. However, she recollected that the petitioner was the only

witness who testified at sentencing.

On cross-examination, co-counsel reiterated that she became involved in the case late and

acted primarily as second chair. She testified that at the time of her appointment, the case already

had been prepared for trial. The capital defense team had a social worker, Elizabeth Benson,

who would have compiled a background history on the petitioner. Although co-counsel did not

talk with the petitioner’s family members, another member of the defense team may have talked

with them.

Regarding the trial, co-counsel testified that she “did not do any direct examination of any

witness” and did not cross-examine any witnesses. She added that she did not assist with any

trial preparation with the exception of her own personal preparation, which consisted of reading

the file. Co-counsel stated that although her involvement was limited, she talked with the

petitioner, and she recalled “there not being somebody available to testify on his behalf.” She

added that “for some reason . . . we couldn’t get his family to come down for the mitigation.”

She said that if any of the petitioner’s family members had wanted to testify, the defense team

would have made sure they had transportation to and from court.

Co-counsel testified that nothing indicated the petitioner did not understand the nature of

the charges against him, the legal proceedings, or the law and evidence against him. The

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petitioner also did not indicate he was having any emotional or mental problems at the time. Co-

counsel stated that if she had noticed any mental problem, she would not have ignored it. Co-

counsel characterized lead counsel as very thorough in the handling of cases and very intense.

Ronald Johnson, lead counsel at trial, testified that prior to the petitioner’s case, he had

tried three to four, but no more than five, capital cases. He explained that lead counsel in a

capital case actually prepared the case for trial. He related that he initially was second chair in

the petitioner’s case but became lead counsel when attorney Ed Thompson was no longer

involved with the case.

Lead counsel stated that he had information in the form of a statement from James Irvin

Parker indicating that Parker heard three men say Sidney Harris hired them to kill Linda Harris.

Lead counsel characterized the statement as exculpatory and said he obtained the statement prior

to trial. He recalled asking the investigator to locate Parker. However, the investigator was

unable to find him. Lead counsel stated that no one on the defense team talked with the law

enforcement officers who took Parker’s statement. Lead counsel affirmed that his standard

practice was to contact every person identified as a witness on the indictment.

Lead counsel testified that Elizabeth Benson, the mitigation investigator/social worker,

had indicated on her intake form that the petitioner had some type of learning disability. Despite

the reference, no investigation into the petitioner’s I.Q. occurred. Instead, the investigation was

limited to an evaluation by the Midtown Mental Health Center. Lead counsel recalled attorney

Ed Thompson discussing, at one time, the question of retaining mental health experts for the

petitioner. However, in Thompson’s opinion, they were not needed. Lead counsel stated that

although no records from the Memphis City Schools were in the attorney file, there was an

indication such records were requested but never received.

Lead counsel testified that the defense team did not discuss filing a motion for Judge

Axley to recuse himself and that lead counsel did not seek any assistance from the Southern

Center for Human Rights, Legal Defense Fund. However, lead counsel used the Tennessee

Association of Criminal Defense Lawyers Tools for the Ultimate Trial, Tennessee Death Penalty

Defense Manual. Lead counsel stated that he did not know any of the jurors personally and that

he was familiar with legal precedents relating to questioning and challenging potential jurors.

Lead counsel testified that he did not talk with any of the petitioner’s family members,

and he did not recall any member of the defense team going to Mississippi or Alabama to speak

with them. However, the defense team interviewed family members who lived in Memphis.

Lead counsel related that, just prior to trial, the petitioner’s uncle, Charlie Cribbs, told the

defense team not to call them anymore. He added that no one on the defense team contacted any

of the petitioner’s friends or teachers. The petitioner’s mother was ill at the time of trial, and

nothing in the attorney file reflected that the defense team obtained the petitioner’s birth records.

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Lead counsel testified that he did not know anything about Linda Harris’ family, and he

did not know if any member of the defense team attempted to interview her family. He recalled

that Sidney Harris and perhaps his brother were interviewed. Sidney’s brother indicated that

Sidney may not have been completely truthful. Lead counsel stated that it was common

knowledge Sidney “had a girlfriend or two.” He could not recall if any investigation into

Sidney’s extramarital affairs was attempted, and he was not aware of any financial or drug

problems involving the Harrises.

Regarding Jackie Cannon, lead counsel testified that she had a child with the petitioner.

The defense team had a difficult time locating Cannon, and lead counsel believed she was

“possibly on drugs.” He also was aware that the petitioner had harmed Cannon during a physical

altercation. Lead counsel was unable to explain why the defense did not cross-examine Cannon

about her drug use or the amount of money she received for “turning in” the petitioner. The

petitioner claimed he was not the perpetrator. Accordingly, the defense theory was that the

petitioner was innocent.

On cross-examination, lead counsel testified that he and the petitioner met on numerous

occasions. He thought they had a very good attorney/client relationship. Lead counsel thought

Sidney Harris’ identification of the petitioner was questionable. He unsuccessfully attacked the

identification in the motion to suppress and attempted to discredit the identification at trial.

Although lead counsel asked the petitioner for names of individuals who could help with his

claim of innocence, the petitioner was not forthcoming with any names.

Lead counsel testified that Dr. Wyatt Nichols from the Midtown Mental Health Center

signed a letter stating that “there was no sign that he was incompetent or they couldn’t support an

insanity defense.” Lead counsel related that from his discussion with Dr. Nichols, “[t]here was

no indication that . . . [the petitioner’s] I.Q. was impaired.” Lead counsel never had a problem

carrying on a conversation with the petitioner, and the petitioner understood the legal process, the

crime he was charged with, the facts against him, and the law establishing punishment. Lead

counsel stated that the petitioner was adamant about not being guilty and that the petitioner

understood the charges and “the consequences.” Lead counsel stated that if he had had any

concerns about the petitioner’s ability to understand, he would have had further evaluations

performed.

Lead counsel testified that no information gathered supported James Parker’s statement

that Sidney Harris ordered his wife to be killed. Considering the injuries sustained by Sidney,

lead counsel thought a defense strategy suggesting that Sidney played a substantial role in the

crime was questionable.

As for mitigation, lead counsel testified that he asked the petitioner for possible

witnesses, to which the petitioner responded, “I don’t know anyone. I have no friends.” The

petitioner offered no other information about himself that would have helped the defense compile

mitigation proof. As for other mitigating factors, lead counsel conceded that the defense did not

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ask for any of the statutory mitigating circumstances. He noted that the petitioner had just been

released on parole for an attempted murder conviction. Lead counsel stated that the petitioner

declared his innocence and asked the jury to spare his life. The petitioner’s family was not

helpful in preparing a mitigation defense.

Mae Donald, Linda Harris’ mother, testified that Sidney Harris informed her while he

was in the hospital that “they won’t never get them two men . . . unless they turn themselves in.”

Sidney explained to her that “if they walked in my room right now I couldn’t identify either one

of them.” As a result, Donald questioned Sidney’s identification of the perpetrators and told law

enforcement officers she did not believe the petitioner was the perpetrator. Donald said Linda

had borrowed money from her. She stated that no member of the defense team contacted her and

that she would have talked with them.

Alex Warren, Linda Harris’ brother-in-law, testified that he spoke with Sidney Harris

while Sidney was hospitalized. Sidney told Alex that he wrestled with one of the intruders on the

floor. The only thing taken from the home was a Mickey Mouse watch. Alex said he had seen a

16-gauge, single-shot shotgun in a closet in the Harrises’ home and that Linda Harris had told

him the gun belonged to Sidney’s father.

Sara Warren, Linda Harris’ sister, testified that in 1993, Sidney Harris was unemployed,

and Linda was employed at the Veterans Administration Hospital. Sara was unaware of any

financial or marital problems in the Harrises’ marriage. She said that the week before Linda’s

death, Linda changed her insurance. Sara also said she received a strange letter from her sister

about one month prior to her death, and Sara described the letter as a “good-bye” letter. Sara

visited Sidney in the hospital after the offenses and thought it was odd that he had received red

roses from women. She also stated that there were a lot of people just sitting around in his room.

The defense never contacted Sara.

Cheryl Banks, Linda Harris’ college friend, testified that she served as maid of honor at

Linda and Sidney Harris’ wedding. Banks said that during the wedding ceremony, Sidney told

Linda, “I guess you’re satisfied now.” Banks knew about Sidney’s marital infidelity, and Linda

frequently borrowed money from her.

James Parker testified that in 1994, he lived in Memphis and talked with Memphis police

regarding Linda Harris’ homicide. Parker testified that he told the police that

[he] was over some friend’s house named John Lee Brownlee and

Bo. And we was over their house drinking, sitting around and

stuff. And some people came in. And they was talking about

some drugs . . . and some murder. They talking about . . . they

wanted some murder for hire . . . . It was all . . . about some drugs

and stuff.

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One of the men said that he owed “D.D. some money” for “some drugs.” Parker identified the

man as Sidney Harris. “D.D.” was identified as a female drug dealer who conducted business

mostly on the south side of Memphis. Parker explained that “[t]he contract was set up in John

Brownlee house.” D.D. talked to the men about making some money and explained that it would

be a murder-for-hire. The first installment was to be $2500. Parker stated that he did not see the

money. Parker said that “Angelo,” “Little Rob,” and “Amos” later talked about how they should

have killed the man instead of just wounding him. Parker identified Sidney Harris as the man

who asked D.D. about killing his wife.

Troy Joyner, Sidney Harris’ former neighbor, testified that in 1994, he visited Sidney at

his home on a daily basis. Joyner said Sidney had asked Joyner to purchase cocaine for him.

Sergeant Ronnie McWilliams testified that he was assigned to the Memphis Police

Department’s homicide unit in 1994 and was the lead detective for Linda Harris’ homicide. He

said that the investigation did not implicate Sidney and that the police never investigated Sidney

as a suspect.

Sergeant McWilliams testified that he never spoke to James Parker. However, Parker had

mentioned the names of “Amos, Angelo and Little Rob.” Sergeant McWilliams stated that the

homicide file contained a statement from a person known as Little Rob. Parker gave a statement

on February 12, and the police arrested the petitioner on February 14. Sergeant McWilliams

denied being aware that Jackie Cannon was using crack cocaine or that Cannon’s brother, George

Ross, also was using crack cocaine.

On cross-examination, Sergeant McWilliams testified that he first became aware of the

petitioner’s name from a Crime Stoppers tip and that George Ross called in the tip about January

29. Sergeant McWilliams did not talk with Jackie Cannon until February 8. He explained that

Cannon was in the hospital, and then she moved. He said Cannon was very scared and was the

first person to mention the Mickey Mouse watch. Sergeant McWilliams asked Sidney Harris

whether any watches were missing, and Harris said a Mickey Mouse watch was missing.

Regarding James Parker’s statement, Sergeant McWilliams testified that he was unable to

gather any information to corroborate Parker’s claim that the murder was committed by Angelo,

Amos, and Little Rob. Sergeant McWilliams stated that the police conducted an investigation

regarding Sidney Harris’ involvement but that no motive was found. Sidney had been wounded

in the incident, suffering wounds to his face and neck and losing three fingers. Sergeant

McWilliams did not believe Parker’s claim that Sidney was wounded to cover up his

involvement, and Sergeant McWilliams could not find any credible evidence that someone other

than the petitioner killed Linda Harris.

Stephanie Kendricks testified that Linda Harris was her best friend. Kendricks stated that

Sidney Harris was never faithful to his wife and that Linda was aware of her husband’s

infidelities. Kendricks said Linda had a lot of financial problems and also had marital problems.

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Kendricks recalled that after Linda’s murder, Sidney’s sister commented, “I hope Sidney didn’t

have anything to do with this.” Prior to her murder, Linda told Kendricks that if something

happened to her, her child would live with Sidney and then go to Little Rock.

Betty Cribbs, the petitioner’s aunt, testified that the petitioner’s mother, Marie, was a

nervous person, sweet in her own way, and good. Marie Cribbs never attended school, was

unable to read and write, and took care of her fourteen siblings. Before Marie moved to

Memphis, she lived in Vernon, Alabama. The house in Alabama was “just a two room – kitchen

with two rooms and shack really . . . [w]ith an outside toilet.” Betty estimated that approximately

ten people lived in the house.

Betty Cribbs testified that the petitioner was born in 1971 and that she had known him

since he was nine years old. She said that in 1981, Marie left the petitioner in Alabama with her

sister and moved to Memphis. Marie took two of her children to Memphis, fifteen-year-old

Randy and five-year-old Joseph. Marie lived with Betty for about a year. Betty and her husband,

Charlie, expressed concern because they found Randy and Joseph in bed with Marie even though

they had their own beds. Marie did everything for the boys, and Betty could not recall the boys

misbehaving. She thought it was peculiar that she could not recall ever seeing the petitioner eat.

Marie told her that the petitioner did not like food and that “he eat junk.”

Betty Cribbs testified that at some point, she helped Marie get her own apartment. She

also helped Marie get assistance from the Aid to Families with Dependent Children (AFDC)

program and food stamps. Marie could not do anything for herself and was dependent financially

on Betty and Charlie Cribbs. When the petitioner moved to Memphis, he should have been in

the eighth grade, but because he was so far behind, he was placed in the fifth grade. She said that

“[f]or his age, he should have been below the fifth grade. He should have been up, you know,

where an eight year old should be. But he was about ten when they put him back to the 5th

grade. They said that was as far as they could put him back.” Betty Cribbs said the petitioner’s

grandfather, Dan Cribbs, was in a nursing home in Bastrop, Louisiana; suffered from

Alzheimer’s disease and diabetes; and had been diagnosed as paranoid schizophrenic.

Betty Cribbs testified that at the time of the petitioner’s trial, Marie lived in Mississippi.

Betty stated that the defense never contacted her. However, she also said she received a

telephone call one morning from a woman who said that “they needed the family down here

because he was fixing to be sentenced.” Betty said she did not go to court because “everything

would have been over” by the time she arrived. She then qualified that statement by saying that

she was not wanted at the trial and that only the petitioner’s uncles were asked to come to court.

Charlie Cribbs, Betty Cribbs’ husband and the petitioner’s uncle, testified that he was a

self-employed contractor. He was born in Vernon, Alabama, and the petitioner’s mother was his

sister. Charlie was one of fifteen children and was the fourth oldest. The petitioner’s mother

was the fifth oldest. He described their childhood home as a “shack . . . plank house” and said

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his parents were sharecroppers. Charlie’s mother was either sick or pregnant for most of his

childhood, and she was diabetic. Three of his siblings also had diabetes.

Charlie Cribbs testified that his sister, Marie, was a very nervous person, was unable to

read or write, was sick for a very long time, and almost lost her eyesight. Marie was unable to

discipline her children and could barely take care of herself. Charlie helped his sister financially.

Charlie Cribbs testified that he moved from Alabama to Memphis, Tennessee, in 1960.

Marie moved to Memphis in 1967 but got pregnant by Dockery Moore and moved back to

Alabama. The petitioner was born in Alabama but moved to Memphis when he was thirteen

years old. Charlie said the petitioner had a difficult time doing tasks assigned to him, but Charlie

did not attribute the difficulty to laziness.

Regarding the petitioner’s trial, Charlie Cribbs testified that the defense never contacted

him. He saw information about the petitioner’s case on the news. On one occasion, his wife told

him that “his mother had called or something or other,” but he was unable to go to court.

Pamela Woods, the petitioner’s aunt, testified that she lived in Amory, Mississippi, and

was the youngest of her siblings. She was nine years old and lived in her parents’ Vernon,

Alabama home when the petitioner was born. When the petitioner was four or five months old,

Marie Cribbs moved to Memphis, and their sister, Loretta, took care of the petitioner. Pamela

Woods recalled that the petitioner ate “paint and some sponge rollers” when he was a toddler,

and she described his eating habits as “strange.” She said the petitioner was not a good student.

Pamela Woods testified that Will Jones was the petitioner’s father and that he was not

around much when the petitioner was a child. Jones had a wife and some other children. Marie

Cribbs was sick during her pregnancy with the petitioner. Pamela said she had heard of some

“sexually inappropriate behavior between Loretta [Cribbs] and [the petitioner].”

Loretta Cribbs, the petitioner’s aunt, testified that she lived in Amory, Mississippi. She

described herself as a “second mother” to the petitioner when he was young. The petitioner’s

mother, Marie, was sick during her pregnancy, having thyroid problems. When the petitioner

was two years old, he was in a car accident in Sulligent, Alabama. Loretta was driving the car,

Marie was in the front passenger seat, and the petitioner was sitting on Marie’s lap. Loretta’s

head struck the windshield, Marie’s head went through the windshield, and the petitioner was

thrown out of the car. The petitioner was hospitalized for twenty-four hours, and the doctors said

he suffered head injuries. The petitioner was in special education classes from the first grade

through the fourth grade. He had chicken pox, measles, mumps, and other normal childhood

diseases.

Loretta Cribbs testified that the petitioner’s father was married and drank alcohol. The

petitioner knew his father’s identity, but his father had no role in his life. The petitioner was a

follower, not a leader, and was easily influenced by others. Loretta described his bizarre eating

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habits, recalling an incident when he gnawed her hair rollers. When the family moved to

Memphis, they lived in rough neighborhoods and public housing where the petitioner witnessed

shootings. Loretta said that the defense never contacted her before the trial and that she would

have testified if asked.

On cross-examination, Loretta Cribbs testified that she took care of the petitioner from

about birth to age nine. She said she took care of him as best as she could, and she denied that

anything sexual occurred between them. She said she never beat or sexually abused the

petitioner.

Randy Cribbs, the petitioner’s older brother, testified that he grew up in Memphis but

spent some time in Vernon, Alabama. He said he dropped out of school in the ninth grade and

started helping his uncle in his construction business. At that time, he was living with his mother

and helping her financially. He described his mother’s health as “stable” and “pretty good,”

although she was diabetic. When the petitioner was nine or ten years old, the petitioner moved to

Memphis. The family lived in apartments in Whitehaven, and Randy described the

neighborhood as having “[a] lot of shootings. A lot of fights.” The petitioner met Jackie Cannon

when he was about seventeen years old. Cannon smoked crack cocaine, and her brother, George

Ross, was a “crackhead.” Randy saw them use drugs, and drug use was common in their

neighborhood.

Randy Cribbs testified that in November 1993, the petitioner was paroled from prison.

Jackie Cannon tried to borrow money from Randy, but he refused because he thought she would

use it for crack cocaine. Cannon used her child with the petitioner as an alibi, and Randy thought

Cannon was worried the petitioner was going to try to gain custody of their daughter when he got

out of prison. In 2000, Cannon contacted Randy and wanted to speak with Marie Cribbs.

Cannon informed them that her daughter had been raped, and Randy told her to contact the

police. The defense never contacted Randy, and he would have testified on his brother’s behalf.

On cross-examination, Randy Cribbs testified that he had two brothers, including the

petitioner. The petitioner’s other brother, Joseph, was incarcerated, and Randy was employed at

Kia Super Store in Tupelo, Mississippi.

Dr. Jonathan Pincus, a professor of neurology at Georgetown University and the Chief of

Neurology at the Washington Veteran’s Administration Medical Center, testified that his area of

expertise was in adult and child neurology and that he had a specific interest in the neurology of

behavior, especially violent behavior and movement disorders. Dr. Pincus met the petitioner in

December 2001. In preparation for his meeting with the petitioner, Dr. Pincus reviewed

numerous documents, including a psychological assessment conducted by Dr. Tom Pendergrass,

the petitioner’s school records, the petitioner’s mental health records from the Memphis City

Schools, the petitioner’s juvenile court records, evaluations of the petitioner completed by the

Midtown Mental Health Center, and a psychological assessment completed by Dr. Geraldine

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Bishop. Dr. Pincus also had access to a report prepared by Dr. Pamela Auble, a

neuropsychologist.

Dr. Pincus testified that he ordered an MRI for the petitioner. From the February 2002

MRI, Dr. Pincus observed that the brain was abnormal, stating that “it was shrunken, atrophic,

especially in the parietal regions.” Dr. Pincus explained that the parietal region of the brain

controlled the capacity to read, write, calculate, and speak. He also explained that slight atrophy

was to be expected when a person reached their seventies or eighties. However, it was very

abnormal for atrophy to occur in a younger person. Dr. Pincus stated that, although abnormal, he

could not determine from an MRI when the abnormality occurred. He said it could have

occurred in utero or could have resulted from a later incident. He also opined that it could have

resulted from a degenerative disease.

Dr. Pincus testified that he was not certain as to what effect this atrophy would have on a

person’s neurological functioning. He explained that a determination would require “careful

psychological testing sometimes, a careful neurological examination in order to determine what

the concomitance of that are.” Dr. Pincus opined that, in this case, “I think they underlie the . . .

neuropsychological deficits that have been found and the neurological abnormalities that I

found.” He stated that EEG results revealed nothing and that an EEG was not always a good test

because people suffering from strokes or Alzheimer’s disease could have normal EEG results.

Dr. Pincus testified that he conducted an examination on the petitioner that was heavily

weighted toward discovering how the frontal lobes of the brain were working. In the

examination, Dr. Pincus used motor and sensory testing. In an eye movement test, Dr. Pincus

determined that the petitioner’s “frontal lobes weren’t up to it”; his eyes moved “in little staccato

jerks instead of . . . as smooth visual pursuit which would be normal.” Dr. Pincus explained that

speaking required a tremendous amount of coordination. According to the petitioner’s history,

someone had reported that the petitioner had problems enunciating properly. Dr. Pincus also

found “hyperreflexia.” Dr. Pincus explained that “hyperreflexia” meant the petitioner’s reflexes

were a little too active, which could have been the result of brain damage or could have been a

neurological deficit. Dr. Pincus discovered that the petitioner was unable to relax his legs, which

was abnormal and a sign of frontal dysfunction.

Dr. Pincus testified that he administered the Luria two-step pattern and three-step pattern

movements to the petitioner. The test required the patient to have one hand open on the thigh

and the other hand held in a fist on the thigh. The patient was then asked to tap to ensure he or

she could do so. Then the patient was asked to reverse the scenario so that the open hand became

a fist, and the fisted hand was open. The patient was asked to tap again. Dr. Pincus stated that

the petitioner was unable to complete the task because he was unable to alternate. Dr. Pincus

also administered the “hand grasp test.” For the test, the patient was asked to extend his arms. A

finger was placed on the palm of one hand, and another finger was placed on the palm of the

other hand. The patient was then asked to relax, and the hands should have gone loose. The

petitioner’s response was normal. However, when Dr. Pincus distracted the petitioner by asking

-16-

him to spell the word “fist” and then to spell it backwards, the petitioner’s fingers curled and

gave resistance. That result was abnormal and exemplified frontal damage.

Dr. Pincus testified that he also considered historical factors. For example, the petitioner

had scars on his back and reported being beaten frequently as a child. Dr. Pincus stated that an

abused person is much angrier than a person who was not beaten. Dr. Pincus said that although

most abused people have the capacity to be violent, they do not give in to that feeling. However,

if the brain is not functioning properly due to mental illness and neurologic damage, an abused

person’s capacity to inhibit the violent impulse is defective.

Dr. Pincus testified that the petitioner was not malingering on the tests, and he

summarized his findings as follows:

He has evidence of neurologic dysfunction. On my examination

the frontal lobes of the brain were not working properly. I didn’t

mention that his reading was also at a fifth grade level, so he’s not

[reading] terribly well. And he’s also -- in serial seven he made a

mistake in -- in doing that. All of that’s part of the battery. The

fact is his arithmetic probably is not so good. And -- but the

frontal lobe of the brain is not working properly. And his affect,

his -- his emotionality when we were together -- seemed very, very

flat.

....

[T]he frontal lobe is very important as a controller of expression of

emotion. People with frontal lobe damage tend to be flat and tend

to have a flat affect. And it was -- it’s not the only thing that can

cause a flat affect. It just was consistent with the other findings.

And he had more than three of these abnormal findings, abnormal

two and three-step Luria as well, and the hyperreflexia, dysarthria.

All that goes along with a picture that is consistent with what the

neuropsychologist found, consistent with what the MRI found.

And he’s damaged. There’s no question about it. Not functioning

normally.

Dr. Pincus explained that someone with frontal lobe damage becomes frustrated easily, has a low

“boiling point,” and has very little capacity to control their behavior when angry. He

characterized the condition as similar to being drunk all of the time.

On cross-examination, Dr. Pincus was asked to identify the petitioner’s mental illness.

Dr. Pincus testified that he could not say with certainty, noting that the petitioner’s maternal

grandfather had been diagnosed as schizophrenic. He also alluded to paranoia because the

-17-

petitioner did not trust people, had no successes, and had no intimate relationships. Dr. Pincus

conceded that the petitioner’s history of incarceration could have played a role in his perceived

paranoia.

When questioned about the facts of the petitioner’s crimes, Dr. Pincus testified that the

crimes involved planning. However, the use of the shotgun may have been impulsive. Dr.

Pincus stated that nothing indicated the petitioner’s actions on the night of the homicide were the

result of a delusional act, and he conceded that incarceration was the best place for someone like

the petitioner. Dr. Pincus said the petitioner was able to understand the wrongfulness of his

actions but was unable to combat the impulse.

Dr. Pamela Auble, a neuropsychologist, testified that she first met the petitioner at

Riverbend Maximum Security Institute on April 17 and 25, 2001. Dr. Auble interviewed the

petitioner and administered tests. She spent a total of five hours with him, and she described him

as cooperative although his speech was not always clear.

Dr. Auble testified that she had access to a report from Dr. Pendergrass, a psychologist

who administered the Wechsler I.Q. test to the petitioner. Dr. Auble also had access to the

petitioner’s school records, his Memphis City School Mental Health Center records, his records

from the Juvenile Court of Memphis/Shelby County, his records from the Midtown Mental

Health Center, the psychological assessment completed by Dr. Geraldine Bishop, Dr. Pincus’

report, various interviews by the petitioner’s family members, and a transcript of the trial. From

her evaluation, Dr. Auble wrote a psychological report, including a social history of the

petitioner.

Dr. Auble testified that Marie Cribbs was “a pretty inadequate person.” Marie had been

through a lot in her life and was not able to be a good parent to the petitioner. The petitioner had

little to no supervision by his mother. His juvenile records reflected that his mother failed to

bring him in for visits/meetings, and he had numerous unexplained school absences. Dr. Auble

stated that children needed to have a mother in order to develop normally and that poverty made

it difficult for everyone in a family. She considered the history of mental illness in the

petitioner’s family, specifically his maternal grandfather. She also considered the head injury the

petitioner sustained in a car accident. The petitioner’s relatives reported that he acted strangely

after the accident. Specifically, he had a fear of cars and being inside them.

Dr. Auble testified that she also considered the petitioner’s history of eating inedible

objects as a child. The petitioner ate sponges, cotton, paper, and hair. The petitioner did not eat

meat until he was twelve years old, and the family reported that he ate “largely junk food.” Dr.

Auble said the petitioner’s eating behavior could have been a sign of a mental disorder. She also

related that eating non-food items often was associated with lead poisoning.

Dr. Auble testified that she discovered a history of alcoholism in the petitioner’s maternal

uncles. The petitioner did not do well in school and was in special education classes throughout

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his schooling. The petitioner’s school records reflected that he was functioning one to three

years below his grade level. In 1984 to 1985, when he was thirteen years old, the petitioner was

tested in the Memphis City School system and was found to have an I.Q. of 70. The petitioner

also was found to have significant developmental delays in his ability to read, write, and do

arithmetic. The petitioner transferred schools frequently. He attended seven different schools in

his junior high and high school years and transferred a total of thirteen times during that period.

Dr. Auble testified that the petitioner began getting into trouble when he moved to

Memphis. He was living in an environment with a lot of violence and drugs. According to Dr.

Auble’s records, the petitioner began using marijuana when he was twelve or thirteen years old,

and he also used cocaine. The petitioner sustained two gunshot wounds in the late 1980s. In

1983, the petitioner was given the Ammons Full Range Picture Vocabulary Test, which showed

he had an I.Q. of 82. However, Dr. Auble had never heard of the test previously and said it was

no longer commonly used. She also stated that “very likely,” the Ammons test indicated an I.Q.

higher than his actual I.Q. In 1985, the petitioner scored 70 on the Wechsler I.Q. test. He took

the Wechsler test again in 1999, five years after the crimes, and scored 75.

Dr. Auble testified that she administered the following tests to the petitioner: the

Halstead-Reitan battery, including a speech perception test; the seashore rhythm test; the tactual

performance test; trail making, finger oscillation, and grip strength; the Wechsler Memory Scale

Three; the Ruff Figural Fluency test; the Wisconsin Card Sort; the Controlled Oral Word

Association; the Boston Naming Test; the Grooved Pegboard Test; the Digital Vigilance Test;

and the written portion of the Woodcock-Johnson Test of Achievement Revised. Dr. Auble also

used the Test of Memory Malingering to determine whether the petitioner was putting forth good

effort.

Dr. Auble testified that the petitioner tried hard and did his best on the tests. Her

diagnosis at the end of the testing was as follows:

That he has cognitive compromise, that he’s, you know, he’s . . .

got evidence of brain dysfunction and that I think its, you know,

from something that happened to him pretty early on.

Dr. Auble found her conclusions consistent with those reached by Dr. Pincus and the MRI.

Additionally, she determined that “according to the Tennessee statutory definition of mental

retardation,” the petitioner had “significantly subaverage general intellectual functioning as

evidenced by a functional intelligence quotient of 70 or below with a reasonable degree of

certainty.” Dr. Auble concluded that the petitioner had deficits in adaptive behavior to a

reasonable degree of psychological certainty and that the mental retardation manifested during

the developmental period or by age eighteen.

Dr. Auble testified that paranoid schizophrenia was defined as “paranoid delusions,

hallucinations . . . a subset of schizophrenia which has both positive and negative sides.” She

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explained that positive signs were delusions and hallucinations, while negative signs included

changes in emotion, volition, and speech. Dr. Auble stated that the average age of onset for

schizophrenia was generally between eighteen and thirty and that paranoid schizophrenia could

have a later onset. She said that about fifty percent of people diagnosed with schizophrenia had

substance abuse problems and that distinguishing a person with paranoid schizophrenia could be

difficult because of the behavior caused by the substance abuse. She explained that “some types

of drugs like cocaine . . . mimic some of the paranoid symptoms of schizophrenia, although, the

negative symptoms are not so mimicked usually by cocaine abuse.”

On cross-examination, Dr. Auble testified that in her report, she diagnosed the petitioner

with borderline intellectual functioning with an I.Q. between 71 and 84. She stated that in her

opinion, however, his functional intelligence was 70 or below. She explained that this new

number was based on additional information she obtained after she wrote her report. Dr. Auble

conceded that the petitioner’s mental difficulty could have been the result of a brain injury

sustained in a car accident or eating paint as a child.

When questioned about Dr. Nichols’ 1994 report, which indicated the petitioner’s I.Q.

was actually higher than the 73 reported in 1989, Dr. Auble testified that “that was Dr. Nichol[s’]

impression.” Dr. Auble acknowledged that she used the scores she did because that was her

interpretation of the Tennessee statute.

Dr. Geraldine Bishop, a psychologist, testified that she met the petitioner at the Riverbend

Maximum Security Facility in the spring of 2000 and spent five to six hours with him. She

described him as cooperative, although he appeared very angry when he was informed that she

was there to determine whether he was mentally retarded. Dr. Bishop stated that his reaction was

common in people with mild retardation, as they were well-aware they had deficits.

Dr. Bishop testified that in evaluating the petitioner, she administered a variety of tests,

including the Adaptive Behavior Scale published by the American Association of Mental

Retardation (AAMR). Dr. Bishop also met with Charlie Cribbs and his wife, the petitioner’s

uncle and aunt. She reviewed Dr. Thomas Pendergrass’ report, the petitioner’s school records,

the Memphis City School Health Center records, the petitioner’s juvenile court records, the

petitioner’s records from the Midtown Mental Health Center, Dr. Pamela Auble’s report, Dr.

Pincus’ report, and a transcript summary of the trial. However, she did not consider any court

testimony.

Regarding the assessment of adaptive deficits relative to mental retardation, Dr. Bishop

testified that two scales were used as a screening device, the Vineland Social Maturity Scale and

the scale published by the AAMR. She said she used the AAMR scale because it was more

extensive. Dr. Bishop also took into account the petitioner’s “historic adaptive functioning from

records and interviews.” Dr. Auble stated that in assessing adaptive deficits, it was important to

have information about any kind of trauma that would have caused brain damage. Dr. Bishop

-20-

stated that when the petitioner was in the first grade, he was placed in a program for educable

mentally retarded students. He remained in those classes throughout elementary school.

Dr. Bishop testified that the petitioner “consistently scored one to four years behind the

average grade level of nonspecial ed students, so he was working at a great deficit.” She

explained that he did not exhibit any “particular behavior problems until . . . [h]e was in resource

and not self-contained.” She stated that “there’s every evidence that the ability to function

became compromised at that point and acting out began.”

As for the petitioner’s medical history, Dr. Bishop testified about a variety of factors she

considered important. She began with the prenatal period. Dr. Bishop noted that the petitioner’s

family was extremely impoverished and did not always have enough food to eat. Dr. Bishop

stated that Marie Cribbs was in her first trimester during the winter months and that the first

trimester was a crucial time in development and the time when poor nutrition had the most

devastating effects. Dr. Bishop also recounted what she described as the “considerable evidence”

of “pretty severe abuse both of mother, Marie Cribbs, and of Perry Cribbs.” She said Dan

Cribbs, the petitioner’ grandfather, was responsible for at least part of the abuse. Dr. Bishop also

considered the petitioner’s childhood automobile accident in which he was thrown into the

dashboard of the car and out the window. The petitioner was rendered unconscious, which Dr.

Bishop related to closed head trauma. Finally, Dr. Bishop considered the results of a recent MRI,

showing the presence of structural abnormality in the brain. She said that even considering those

numerous factors, she was unable to determine exactly what caused the petitioner’s “brain

problem.” However, she explained that what was important was the existence of his deficits, not

their cause. Dr. Bishop stated that the “possible reasons listed for the brain dysfunction”

occurred prior to the petitioner’s eighteenth birthday.

The AAMR Adaptive Deficit Scale is an adaptive scale composed of eighteen different

domains. Ten domains deal with skill areas, including such areas as independent functioning.

Part two of the test deals with subscales that address male adaptive behaviors.

Dr. Bishop testified that the petitioner did fairly well on some of the skills tests. She

related that “[h]e had scores that would be considered every where from the normal range all the

way on up to the severely delayed range.” The results indicated the petitioner was not

malingering. Dr. Bishop related that the petitioner exhibited deficits in adaptive functioning.

She reported ten deficits on his scaling and eleven or twelve deficits on Charlie and Betty Cribbs’

scaling. Dr. Bishop stated that a finding of two deficits was considered a sufficient number in

order to establish a severe adaptive behavior. Dr. Bishop summarized that “[m]y conclusions are

that Mr. Perry Anthony Cribbs has significant delays in adaptive behavior and that these delays

were apparent during the development period or prior to the age of 18.”

Dr. Bishop testified that the Vineland Adaptive Behavior Scales was administered to the

petitioner in 1987 and that the Vineland score equated to an I.Q. score with a standard deviation

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of 15. Dr. Bishop related that the petitioner scored 70 on the test. She explained that two

standard deviations below the norm of 100 was the standard for mental retardation.

Dr. Bishop testified that the petitioner also was given the Wechsler Intelligence Scale for

Children-Revised. According to the test, the petitioner had an I.Q. of 70, which was two

standard deviations below the mean. Dr. Bishop said that all educational tests conducted on the

petitioner revealed he was working at one to four years below grade level and that the petitioner

was in the bottom five percent of the population. Based on the results of all the tests

administered to the petitioner, Dr. Bishop concluded he had severe deficits in intelligence,

educational achievement, and mental adaptive behavior. She explained that the results indicated

mental retardation because they occurred during the developmental period. When the petitioner

was in school, he was diagnosed with a “severe delay” and was placed in special education

classes.

Dr. Bishop testified about psychological testing completed on the petitioner in 1986 by

Dr. Battle. From the results of a Peabody Picture Vocabulary Test, Dr. Battle estimated the

petitioner’s verbal intelligence score was 46, reflecting he was in the moderately retarded range.

Dr. Battle also estimated from the results of the petitioner’s Draw-A-Person test that his I.Q. was

61, which would have indicated to a professional that more in-depth testing was needed. The

petitioner would have been fifteen years old in 1986.

Dr. Bishop testified that the Midtown Mental Health Center never administered an I.Q.

test to the petitioner; its evaluation was limited to competency. She said a person could be

mentally retarded and still be found competent. Dr. Bishop said that neither she nor any other

mental health professional found any psychotic indicators in the petitioner and that it was

possible for a person to be mentally retarded but not insane. Dr. Bishop conceded that her

partner, Dr. Wyatt Nichols, wrote notes indicating the petitioner had an I.Q. of 73 in 1989. Dr.

Bishop stated that the Midtown Mental Health Center records failed to reflect any social history,

any interviews with relatives, or any school records and that there was no indication in Dr.

Nichols’ report that the I.Q. was based on data. A 1990 letter to a Memphis General Sessions

judge and contained in the record stated as follows:

Perry Cribbs is functionally illiterate and of low intellectual

functioning. However, his intellectual functioning is sufficient in

order for him to proceed with the disposition of the charges.

Dr. Bishop stated that, had she been consulted at that time, she would have wanted the petitioner

to receive in-depth testing.

Dr. Bishop testified that she reviewed Dr. Auble’s report. Dr. Bishop acknowledged that

Dr. Auble conducted the Halstead-Reitan Battery, which examined the neurological state of the

individual lobe by lobe based on performance. Dr. Auble determined that “there was significant

impairment and that the impairment reached the highest score that is normally given.” Dr.

-22-

Bishop said Dr. Auble’s results were significant because they indicated that “there is an organic

condition and that organic conditions of the brain, particularly if they occur during the

developmental period, are very much associated with the condition of mental retardation.” Dr.

Bishop stated that the petitioner had particular difficulty in visual perception functioning and that

“one of the most important things that we need our visual perception functioning for is reading.”

Dr. Bishop also stated that Dr. Auble had determined the petitioner’s memory and his ability to

concentrate were intact. Dr. Bishop interpreted those findings to mean the petitioner failed to

achieve because his brain did not function well, not because he was unable to remember things.

Dr. Bishop testified that the petitioner had trouble performing two-part instructions. She

stated that the additional instructions “upp[ed] the level of complexity” and that while most

mentally retarded persons could adequately function with simple tasks, their ability to function

with increasing complexity was compromised. Dr. Bishop noted that the petitioner showed

“atrophy in the parietal cortex.” She explained that he could plan an activity for something very

familiar to him. However, if something was unfamiliar, his entire planning system could break

down.

Dr. Bishop testified that she reviewed Dr. Pendergrass’s WAIS-3 testing, which indicated

the petitioner had an I.Q. of 75. She stated that the rate of error was slightly over five points. Dr.

Bishop opined that the petitioner was at the lower end of the score as opposed to the higher end.

She based her conclusion on the pattern of test findings related to the petitioner and the fact that

he was educated with mentally retarded students when he was in school. The fact that the

petitioner was placed in classrooms with mentally retarded students limited the amount he

believed he could achieve. Dr. Bishop also related that there was potentially “[c]losed head

trauma from abuse, certainly from the auto accident, chronic malnutrition in the early years; this

was probably too during pregnancy.”

Dr. Bishop testified that she concluded the petitioner had a “significantly subaverage

general intellectual functioning as evidenced by a functional intelligence quotient of 70 or

below.” She agreed that he had deficits in adaptive behavior and that mental retardation

manifested during the developmental period or by age eighteen. In her opinion, the petitioner

was mentally retarded in accordance with the Tennessee definition of mental retardation.

Dr. Bishop testified that records illustrated Marie Cribbs’ deficits as a parent. She was

often ill and was not emotionally available to her children. Marie was illiterate and unable to

assist her children with their schoolwork.

On cross-examination, Dr. Bishop testified that her practice was geared towards

individuals not incarcerated. She acknowledged that at the time of her report, the petitioner had

been incarcerated off and on since 1989. She said that statements from the petitioner’s aunt and

uncle indicated his mother did numerous personal tasks for him, such as bathing, that other

youths did independently. According to information contained in a school record, the petitioner’s

mother said he was helpful around the house by washing floors, doing laundry, ironing clothes,

-23-

and cooking for himself and his siblings. Dr. Bishop stated that it was a matter of whom you

believed, the petitioner’s mother or his aunt and uncle.

Dr. Bishop acknowledged that in 1985, the school tested the petitioner and came up with

a primary diagnosis as “unspecified mental disorder, special education diagnosis, other

handicapping condition, and then conduct disorder as a secondary diagnosis undersocialized,

nonaggressive.” She further acknowledged that the school did not diagnose him as mentally

retarded. Dr. Bishop conceded that the petitioner had been unable to “go out and get jobs and go

to banks and deal with the outside world because he’s been incarcerated.”

Dr. Bishop acknowledged that Dr. Nichols concluded the petitioner had an “[i]ntellectual

level higher than the assessed I.Q. of 73 in 1989.” Dr. Bishop then was questioned about the

criteria for antisocial personality. The Diagnostic and Statistical Manual of Mental Disorders

(DSM IV) provided the following criteria for antisocial personality:

A. There’s a pervasive pattern of disregard for the violation – for

and violation of the rights of others since age 15 as indicated by

three or more of the following: failure to conform to social norms

with respect to lawful behaviors as indicated by repeatedly

performing acts that are grounds for arrest. Two, deceitfulness as

indicated by repeated lying, use of aliases or conning others for

personal profit or pleasure. Three, impulsivity or failure to plan

ahead. [sic] Four, irritability, aggressiveness as indicated by

repeated physical fights or assaults. Five, reckless disregard for the

safety of self or others. Six, consistent irresponsibility as indicated

by repeated failure to sustain consistent work behavior or honor

financial obligations. Seven, lack of remorse as indicated by being

indifferent to or rationalizing having hurt, mistreated, or stolen

from another.

The individual is at least 18 years of age.

C . . . There is evidence of this conduct disorder with onset before

age 15. And, D, The occurrence of antisocial behavior is not

exclusively during the course of schizophrenia or manic episode.

Dr. Bishop acknowledged that the petitioner had never been diagnosed as schizophrenic or

manic. She also agreed that he was diagnosed with conduct disorder prior to the age of fifteen.

She conceded that “[t]he part two would definitely agree with the [definition for antisocial

personality disorder].” Notwithstanding, Dr. Bishop added that “[a]ntisocial personality disorder

does not preclude a diminished intelligence.” On redirect examination, Dr. Bishop testified that

she could rule out the possibility of antisocial personality disorder due to the presence of brain

damage.

-24-

Jackie Cannon was recalled to the stand to testify. She immediately invoked the Fifth

Amendment, stating that she had “already testified and that she was sticking to that.” When

asked to review a document, Cannon stated that she could not read, that she dropped out of

school, and that she made all Fs while in school. She said she was not “a big drug user” but that

she “[knew] about drugs.” Cannon received treatment at the Midtown Mental Health Center in

July 2000.

Cannon testified that she last saw the petitioner when he “got the death penalty.” She

added that “the time before then was when . . . he attempted murdering me.” However, no

charges were filed against him at that time. Cannon acknowledged that she was convicted of

theft of property in January 1991. She explained that “it’s just a petty charge. Some people got

records long as 20 criminal offenses. But I don’t have but three.”

Dana Cook testified that she was employed with the Post-Conviction Defender’s Office

as an investigator in 1999 and met with Jackie Cannon in March 1999. Cannon admitted to

Cook that she lied at the petitioner’s trial in order to get him out of the house, and Cook obtained

an affidavit signed by Cannon. According to the affidavit, the Mickey Mouse watch belonged to

another person. On cross-examination, Cook acknowledged that she did not know Cannon could

not read. She also stated that her handwritten notes from her conversation with Cannon did not

reveal Cannon was lying when Canon said the petitioner gave her the Mickey Mouse watch.

Janann McInnis, an investigator and document specialist with the Office of the Post-

Conviction Defender, testified that she met with Jackie Cannon on September 13, 2001. She said

that Cannon appeared to understand the affidavit and that Cannon “took it and looked at it. She

read it. She understood what she was reading.” When Cannon was asked about the affidavit, she

responded “yes.” On cross-examination, McInnis testified that she was not personally involved

with interviewing Cannon.

The State presented the testimony of Dr. Wyatt Nichols, a psychologist in private practice

and a consultant to the Midtown Mental Health Center’s Forensic Program. Dr. Nichols testified

that in 1994, the court directed him to evaluate the petitioner in relation to the capital murder

charge. He explained that because the State required a physician to be part of the evaluation

team, he and Dr. Baldwin, a psychiatrist, evaluated the petitioner on July 20, 1994.

Dr. Nichols testified that the Midtown Mental Health Center had evaluated the petitioner

in July 1989, June 1990, and October 1990. While those prior evaluations were irrelevant to a

determination of competency, Dr. Nichols consulted the I.Q. tests previously administered. In

Dr. Nichols’ opinion, the petitioner was competent to proceed to trial in 1994. The petitioner

understood the charges against him, could work with counsel, and had an understanding of the

role of the various participants in the courtroom. Dr. Nichols further concluded that an insanity

defense could not be supported for two reasons. First, the petitioner did not have a history of

mental illness or treatment and did not present any psychological symptoms. Second, the

-25-

petitioner maintained that he did not commit the crime. Dr. Nichols read Dr. Baldwin’s note

relating to the petitioner’s evaluation. The note stated as follows:

Mr. Cribbs was evaluated today pursuant to court order. He was

guarded, suspicious, evasive, denied all allegations, he’s in the

process of hiring a private counsel. It is my impression he

understands the judicial process although he was in special ed in

school. An IQ has been found to be in the 70 range.

Dr. Nichols testified that the I.Q. test administered in June 1990 revealed the petitioner

had a verbal I.Q. of 76, a performance I.Q. of 73, and a full scale I.Q. of 73, which was not in the

mentally retarded range. He stated that in his opinion, the petitioner’s intellectual level was

actually higher than the I.Q. of 73 and was “[m]ore like the mid to high 80s.” Furthermore, in his

opinion, the petitioner suffered from antisocial personality. The petitioner’s school records

showed he also was examined in November 1984 and February 1985. Those tests indicated a full

scale I.Q. of 70, with his verbal I.Q. being 75 and his performance I.Q. being 69. In 1985, the

petitioner’s diagnosis was “unspecified mental disorder, other handicapping conditions, conduct

disorder, socialized, nonaggressive.”

Dr. Nichols testified that in 1990, the Minnesota Multiphasic Personality Inventory

(MMPI) was administered to the petitioner. Dr. Nichols also was aware that Dr. Auble scored

the MMPI. In Dr. Nichols’ opinion, it would have been unlikely for a mentally retarded person

to have completed a valid MMPI profile. He explained that a person needed to have at least a

sixth grade reading level in order to complete the MMPI with a valid result. He qualified his

statement by saying that a person who was retarded could take the MMPI and produce a valid

profile but that it was unlikely the MMPI would be administered to a mentally retarded person.

The fact that the petitioner took an MMPI that produced a valid profile indicated to Dr. Nichols

that the petitioner was functioning higher than a mentally retarded level.

On cross-examination, Dr. Nichols was asked about Dr. Pincus’ conclusion that the

petitioner had frontal lobe disorder. Dr. Nichols stated that “[a] large number of people [have]

front lobe damage,” including persons with ADHD. He explained that he could leave the

courtroom, hit his head on a windshield, and have frontal lobe damage. He acknowledged that he

evaluated the petitioner only to determine competency and sanity.

Lopaka Thomas, an acquaintance of Jackie Cannon, testified that in 1992, Cannon was

living at LaMoyne Gardens. Thomas dated her for seven or eight months, but in 1994, he was

incarcerated for violating his parole. Thomas stated that while he was living with Cannon, he

observed her use crack cocaine on several occasions and saw her hallucinate. Cannon also was

not taking care of household needs or her children.

Eugene Bowen testified that he lived in LaMoyne Gardens in 1980 and knew Jackie

Cannon in 1993 and 1994. Bowen knew Cannon used illicit drugs because he saw her buy crack

-26-

cocaine. He acknowledged that he sold the cocaine to her. Jackie Cannon also would just

scream at times. In 1993 and 1994, a person named James Polk, also known as “Duck Head,”

lived with Cannon. On cross-examination, Bowen testified that the petitioner lived with Cannon

when he was released from prison in the fall of 1993.

Bowen testified that he knew the petitioner and that the petitioner was playing basketball

with him on the night of Linda Harris’ murder. The petitioner’s daughter was with the petitioner.

After they finished playing ball, Bowen and the petitioner walked to get a beer. Later, Bowen

saw the petitioner and “Wham” arguing. He explained that “Wham” was Jackie Cannon. Bowen

said the petitioner’s attorneys never contacted him.

Regina Ewing testified that she also lived in LaMoyne Gardens in 1994 and that she

helped Jackie Cannon clean her house and feed her children. One day, Cannon came to Ewing’s

home and was screaming that someone was in her house. When Ewing went to investigate, no

one was there. During the incident, Cannon admitted to Ewing that she was “on this stuff.”

Ewing stated that she never saw Cannon use drugs. Ewing said that, had she been contacted by

the petitioner’s attorneys, she would have testified about Cannon’s behavior.

Darlene Donald, Linda Harris’ sister, testified that she thought it was odd that Sidney

Harris backed his car into the driveway on the night Linda was murdered. Donald stated that

there were financial problems in her sister’s marriage. She also witnessed Sidney Harris verbally

abuse Linda and was aware that he had physically abused her.

C. Findings of the Post-Conviction Court

In a fifty-five page order entered on May 23, 2006, the post-conviction court denied

relief. The court concluded that the petitioner had failed to demonstrate a basis upon which post-

conviction relief could be granted. The court’s findings of fact and conclusions of law are

summarized as follows:

Petitioner claims that trial counsel should have requested

expert assistance in investigating forensic evidence against him and

in evaluating his mental status. Petitioner contends expert

assistance was needed to challenge the testimony of the State’s

pathologist regarding injuries sustained by the victim and to

provide proof regarding the distance and angle of Linda Harris’

fatal gunshot wound. Petitioner further argues that evidence was

available at the time of trial to warrant counsel’s request for

funding for expert assistance regarding the issue of Petitioner’s

mental status.

This court finds Petitioner’s allegations relating to expert

services are without merit. . . . Since the initial indication from

-27-

Midtown Mental Health was that Petitioner was competent to stand

trial and did not suffer from a psychiatric disorder, this Court finds

Petitioner’s reliance on Ake is misplaced.

. . . The Petitioner has failed to show deficient performance

by trial counsel for failing to seek assistance for experts and further

fails on two levels to show that prejudice resulted from the failure.

First, he has made no showing that the initial threshold of Ake has

been met. The Petitioner has not shown that had an effort been

made to seek expert funding, the trial court would have been

required to grant that request. Second, the Petitioner has failed to

show to a reasonable probability that had an expert been funded

and used at trial, the resulting testimony would have had any effect

on the jury’s decision.

More importantly, . . . it appears counsel’s failure to request

funds for expert services occurred due to [counsel’s] conclusion

that such a request for funds was not necessary. Both of

Petitioner’s trial counsel testified . . . that, after discussing all of

the issues in the case and the evidence to be presented with the

Petitioner, they believed the Petitioner fully comprehended the trial

process, the evidence against him and the charges he was facing.

Specifically, defense counsel . . . testified that had she known there

“was some sort of mental problem or anything like that,” she

would have “not let that just slide by.” However, . . . she “never

got any inkling from Mr. Cribbs that . . . he was mentally deficient

or that there was any problem.”

Second, it is unlikely that a request for such services would

have been granted.

. . . [A]ccording to the testimony at the post-conviction

hearing, . . . there was no basis upon which to request the services

of a mental health professional. The initial threshold requirement .

. . is a showing of necessity. . . . [I]t appears they would have been

unable to meet the Rule 13 requirements. Thus, the Petitioner has

failed to demonstrate trial counsel was ineffective in failing to

make such a request. Trial counsel stated they were unaware of

any mental deficiency on the part of the Petitioner and further

stated that the Petitioner was evaluated and found to be competent

prior to trial. Therefore, Petitioner has failed to demonstrate that,

even if such a request had been made, he would have been entitled

to the requested services pursuant to the mandates of Rule 13.

-28-

Similarly, this Court finds Petitioner has also failed to

demonstrate the necessity for expert assistance in assessing the

forensic evidence against him. Petitioner has presented no proof in

support of his bare allegation . . . nor has Petitioner actually

indicated what he would have hoped to have proven or explained

with the aid of such an expert. Therefore, it is . . . unclear whether

such services would have been granted even if counsel had made

the request.

....

Petitioner contends trial counsel’s failure to make a motion

for pre-trial discovery and production of certain exculpatory

evidence rendered his assistance ineffective. Petitioner’s claims

are not supported by the proof presented at the post-conviction

hearing. At the hearing, trial counsel testified that a Motion for

Discovery was filed, requesting the production of “anything

material to the preparation of the accused’s defense.” In addition,

trial counsel stated another motion for production of exculpatory

evidence was filed along with a motion for the court to order the

State to allow the defense to inspect any statements which establish

the innocence of the accused. . . . [T]rial counsel testified that,

prior to the trial, the prosecutor afforded the defense team “open

file” discovery. Therefore, this Court finds Petitioner’s allegation

of ineffective assistance of counsel on this issue is without merit.

....

Petitioner alleges trial counsel was ineffective in failing to

present evidence to support his theory that the victim’s husband,

Sidney Harris, arranged to have his wife murdered for monetary

gain. . . . Petitioner contends trial counsel should have interviewed

Parker and the man known to Parker as “Lil” Rob, whom Parker

claims actually killed Linda Harris. Additionally, Petitioner

contends trial counsel should have interviewed Sidney Harris’

brother, Al Harris. He claims Al Harris’ statement to the police

questioning the veracity of Sidney Harris’ version of the events

surrounding Linda Harris’ murder was relevant and should have

been presented to the jury. Finally, Petitioner contends trial

counsel should have investigated evidence establishing an alibi

defense. He claims trial counsel should have presented testimony

from Eugene Bowen establishing his alibi.

-29-

. . . Petitioner’s trial counsel testified that he was aware of

Parker and Harris’ statements and that he attempted to discern the

veracity of the statements. Counsel further indicated that the

defense team was aware that Mr. Harris was involved in multiple

extramarital relations and stated that their investigator prepared a

report on Harris. The defense was also aware of a statement made

by Al Harris . . . that implied that Sidney may not have disclosed

all pertinent information about his life. . . . [T]he investigators for

the defense did a thorough background check of Harris and found

no evidence to corroborate the Petitioner’s assertion about the

drugs. Petitioner’s trial counsel . . . testified that . . . considering

the injuries sustained by Harris . . . a defense asserting Harris was

involved in planning the murder of his wife would unnecessarily

antagonize the jury, outweighing any benefit to the defendant.

....

. . . [T]he Petitioner failed to offer the testimony of the man

known as “Lil Rob” or Al Harris to support the allegations.

Therefore, this Court could not conclude that such a material

witness existed or prejudiced the Petitioner. . . . [I]t is not the role

of this Court to second guess the trial strategy of defense counsel.

Rather, this court will give deference to informed tactical decisions

of trial counsel. Here, it appears trial counsel was aware of the

statement made by Parker, attempted to investigate the statement,

and made an informed decision not to present certain evidence to

the jury. . . . [T]his Court does not find counsel was ineffective in

failing to present such evidence at trial. Moreover, Petitioner has

failed to demonstrate he was prejudiced by counsel’s failure to

present evidence of Parker’s assertions.

Additionally, this Court finds Petitioner’s contention that

defense counsel should have investigated and pursued an alibi

defense also has no merit. . . . Eugene Bowen testified that on the

night of the murder, Petitioner and his young daughter were

playing basketball with him until 1:00 a.m. Even if this Court

were to find Bowen’s testimony credible, Petitioner has failed to

demonstrate how counsel’s performance was deficient. . . . [T]his

Court does not find Bowen’s testimony credible or persuasive. . . .

Petitioner’s defense counsel . . . testified that he asked Petitioner to

provide him with any witnesses or any persons who could help

with his defense. The only name given by Petitioner was the name

of Jackie Cannon. . . . Petitioner never mentioned Bowen prior to

-30-

or during the trial. Therefore, counsel had no reason to interview

or call Bowen as a witness. Petitioner cannot now claim his

counsel was ineffective for not presenting certain evidence that

Petitioner failed to disclose to counsel for preparation of trial.

....

Petitioner contends trial counsel should have requested the

trial judge, Judge Fred Axley, to recuse himself, based upon a

perceived bias against capital defendants. . . . Petitioner contends

that since Alley was decided only a few months prior to this trial,

counsel should have requested the trial judge recuse himself from

hearing Petitioner’s trial as well.

It seems that recusal of Judge Axley in Alley was based

solely on the avoidance of a public perception of partiality. The

Petitioner . . . . offers no specific bias or acts of prejudice against

him by this particular judge.

Unlike the petitioner in Alley, who pointed to numerous

statements indicating a bias by the trial judge . . . Petitioner has

failed to present such proof. . . . Until the judge had demonstrated

a personal bias specifically directed [at] the Petitioner in the instant

case, counsel had no grounds upon which to solicit the recusal of

the judge. . . . Petitioner failed to present any credible evidence

that such a bias had manifested itself prior to or during the trial.

There were no specific incidents or statements offered by the

Petitioner for this Court to review. . . . [C]ounsel was not

ineffective in failing to request the trial judge recuse himself from

the instant case.

....

Petitioner contends trial counsel’s performance during jury

selection was not effective. . . . Petitioner claims counsel failed to

rehabilitate jurors as part of the Witherspoon process; failed to

adequately explain the meaning of mitigating circumstances and

failed to exclude jurors who would not consider mitigation; failed

to challenge jurors who were “predisposed” to the death penalty;

failed to exclude jurors who were victims of violent crime or who

had close family or friends who had been a victim of violent crime;

failed to question jurors about racial bias; and, failed to object to

-31-

the State’s improper removal of jurors based upon race, sex, or age.

. . . Petitioner has failed to demonstrate that counsel’s

performance, during the selection of the jury, fell below the

requisite standards of competence. . . . [M]any of the issues raised

by the Petitioner have been rejected by the Tennessee Appellate

Courts. . . . [T]here is no indication on the record that trial counsel

failed to follow the mandates of Witherspoon and/or failed to

adequately question jurors regarding the range of punishment and

their ability to consider mitigation evidence. Other allegations . . .

are simply without merit. In particular, Petitioner failed to point to

any particular juror that was either racially biased; affected by prior

violent crime; or improperly struck by the prosecution. Thus, they

have failed to establish counsel was ineffective on these matters.

Furthermore, even if counsel were ineffective, Petitioner has failed

to demonstrate how he was prejudiced by counsel’s action or

inaction.

....

Petitioner makes several allegations relating to the

testimony of Jackie Cannon. First, Petitioner asserts trial counsel’s

pre-trial investigation of Jackie Cannon should have included a

request for production of Cannon’s mental health and juvenile

records. He claims Cannon has a history of mental health

problems and drug abuse. Thus, Petitioner also contends trial

counsel should have requested a psychiatric examination of

Cannon prior to her testifying at trial.

....

. . . Cannon either refused to answer their questions or

continued to assert that her trial testimony was truthful. When

asked if she had given two separate affidavits contradicting or

recanting portions of her trial testimony, Cannon specifically

denied having given the statements or signing the affidavits. One

fact upon which Cannon vehemently insisted was that the

petitioner “attempted” to “murder” her in order to prevent her from

going to the police.

With regard to Petitioner’s allegations that counsel should

have obtained Cannon’s medical and juvenile records, . . . the

Petitioner offered no evidence to show trial counsel should have

-32-

been aware of Cannon’s problems. In fact, during the trial, the

Petitioner, who lived with the witness at the time of the murder,

provided counsel with no information regarding any present or past

mental health or drug problems the witness may have suffered

from at the time of her trial testimony. Other than Cannon, who

was likely not forthcoming about such details, the Petitioner was

the best source for such information. It was up to the Petitioner to

alert counsel that there may be some mental health issues relating

to Cannon’s testimony. Every witness will not be investigated for

mental health issues unless pertinent information is discovered by

counsel which related directly to the case.

Therefore, Petitioner cannot now claim ineffective

assistance of counsel because he chose to remain silent about

certain mental health issues. . . . [T]he Petitioner was unable to

show that, when Cannon testified at trial, she actually suffered

from mental illness or was under the influence of drugs. Thus, this

Court is not inclined to find trial counsel was ineffective in failing

to request Cannon’s mental and juvenile records.

....

Petitioner challenges trial counsel’s performance during the

cross-examination of several of the prosecution witnesses. . . .

Petitioner’s claims center around the defense theory that Sidney

Harris was involved in his wife’s murder. . . . Petitioner challenges

trial counsel’s performance with regard to his cross-examination of

Harris. . . . Petitioner further contends counsel’s cross-examination

of various Memphis Police Department officers . . . was

inadequate.

....

With regard to the cross-examination of Harris and the

Memphis Police Officers, . . . this Court finds counsel’s

performance not deficient. . . . [T]rial counsel specifically stated

that he was concerned that a defense which attacked Harris would

result in backlash from the jury directly to the Petitioner. This

Court finds such decisions to be reasonable tactical maneuvers

made by informed and adequately prepared counsel. Additionally,

as the Supreme Court noted on direct appeal, Harris testified at

trial that he was injured in the attack and was heavily sedated when

he first spoke to police. Thus, although it appears counsel

-33-

attempted to exploit certain discrepancies, the jury accepted Harris’

explanation.

Counsel’s decision to not call James Parker as a witness,

during the guilt phase . . ., is equally attributable to strategy.

Again, this Court will not second guess trial counsel’s strategy

unless it falls below the acceptable standards. . . . [T]his Court

does not give great weight to the credibility of Parker. Essentially,

counsel would have been pitting the credibility of Parker against

that of Harris, who himself, had been injured in the attack. . . . Sgt.

McWilliams testified that he followed up on the information

provided by Parker, but found no link to the murder. . . .

McWilliams further stated that there was no credible evidence that

someone else was involved in the murder.

....

Petitioner contends trial counsel was ineffective in failing

to adequately prepare for the sentencing phase of the trial. . . . The

Petitioner, as the sole witness for the defense, testified based upon

a theory of residual doubt. The Petitioner now alleges that, had his

friends and family been contacted, they would have testified on his

behalf during the sentencing phase . . . . Petitioner contends this

testimony regarding his social background and mental health

would have added considerable mitigation to his case.

Additionally, Petitioner contends trial counsel should have called

James Parker in support of their theory that the victim’s husband

was involved in her death.

At the post-conviction hearing, multiple members of the

Petitioner’s family testified that, had they been contacted, they

would have offered testimony concerning the Petitioner’s

trouble[d] childhood, including the fact that Petitioner had been

shot as a teenager, the effect of his father’s absence throughout his

life, the history of mental illness in his family, the Petitioner’s

academic struggles and odd childhood behaviors, and a head injury

and other illnesses suffered by Petitioner as a child. However, it

appears the Petitioner provided trial counsel with no names of

individuals that may have been helpful in his defense during this

phase of the trial. In addition, at the post-conviction hearing, trial

counsel testified that the defense team contacted several family

members prior to the beginning of the sentencing phase and were

told not to call back.

-34-

....

Initially, this Court finds that, at best, there is conflicting

testimony regarding whether or not the Petitioner’s family would

have participated in the sentencing phase of the trial. . . . This

Court accredits the testimony of trial counsel who stated that the

defense team attempted to contact the Petitioner’s family members

but were told not to call back. Additionally, this Court finds trial

counsel were not negligent in failing to call James Parker to

support a theory of residual doubt and attack the victim’s husband.

Trial counsel testified that they attempted to ascertain the veracity

of Parker’s claims, but were unable to do so. In his statement to

police and again at the post-conviction hearing, Parker stated that

he did not know the actual names of the persons he claimed Sidney

Harris hired to kill his wife. He further stated that he had no

personal knowledge of the events surrounding Linda Harris

murder. . . . [T]he Court finds Parker’s testimony . . . would have

added very little to Petitioner’s mitigation. Thus, this Court finds

defense counsel’s performance was not deficient due to their

failure to be present at the sentencing phase. Also, the testimony

of each of the Petitioner’s family members and testimony of James

Parker does not impact trial counsel’s performance in such a

manner that prejudices the Petitioner and the result of the case.

Moreover, even if this Court were to find counsel’s

performance at the sentencing phase to be deficient, the Petitioner

has failed to demonstrate that he was prejudiced by trial counsel’s

failure to call certain witnesses on his behalf. Trial counsel . . .

testifie[d] that certain witnesses did not want to testify.

. . . Trial counsel testified that the defense team attempted

to contact the witnesses[;] however, Petitioner’s family rebuffed

their attempts. Moreover, despite the lack of testimony . . . ,

Petitioner testified during the sentencing phase of trial; and, thus,

had an opportunity to discuss his background in detail. Thus, it

was not as if defense counsel failed to put on any mitigation proof.

. . . Finally, the State presented indisputable evidence of two

[enhancement] factors: (1) that the murder was committed in the

perpetration of a burglary; and (2) that the defendant had been

convicted of one or more prior violent felonies. Thus . . . this

Court finds that, even if counsel’s performance was deficient, the

Petitioner has failed to demonstrate he was prejudiced by counsel’s

alleged inaction.

-35-

....

Petitioner claims trial counsel was deficient in failing to

investigate one of the prior convictions which the State used to

prove an aggravating circumstance. Specifically, Petitioner

contends trial counsel should have filed a motion to invalidate his

1990 guilty plea. . . . Petitioner has failed to present evidence that

his 1990 conviction is “constitutionally invalid,” or that trial

counsel should have been aware that the conviction was

constitutionally infirm.

. . . [E]ven if one of the prior violent felony convictions was

excluded, the State . . . could have relied on other prior convictions

to prove the existence of this particular aggravating circumstance.

....

Petitioner contends trial counsel should have objected to

the prosecutor’s comments regarding the impact of the crime on

the victim’s family and the possibility that Petitioner might be

eligible for parole. Petitioner also contends trial counsel should

have objected to the State’s referencing a watch they claimed was

stolen from the victim’s residence and found in Petitioner’s

possession.

Regarding the State’s referencing the loss to the victim’s

family and Petitioner’s eligibility for parole, this Court finds that

these matters were fully and fairly litigated on direct appeal. . . .

Therefore, it is improper for Petitioner to now attempt to re-litigate

these issues through the guise of an ineffective assistance of

counsel claim.

Petitioner also contends counsel should have objected to

the State’s references, during closing argument, to a Mickey Mouse

watch they argued was stolen from the victim during the murder.

Petitioner contends that because the watch was not introduced into

evidence, the State was precluded from discussing it in closing

arguments. . . . [A]t trial, Jackie Cannon specifically testified that

she found the watch among the Petitioner’s belongings and he told

her it belonged to the woman he had killed. . . . Sidney Harris had

identified the watch as one belonging to his wife, and stated the

watch was missing from their home after the murder. . . . Thus,

-36-

this Court finds the State’s argument was proper and trial counsel

was not ineffective in failing to object.

....

Petitioner claims trial counsel was ineffective due to his

failure to object to the trial court’s instruction[s] to the jury.

Petitioner contends the instructions: (1) improperly shifted the

burden to the Petitioner to show the existence of mitigating

circumstances; (2) did not adequately define mitigation; (3) did not

adequately explain how the jury was to consider and weigh

mitigating evidence; (4) improperly limited the jury’s consideration

of mitigating factors; (5) diminished the jury’s responsibility in

imposing the death penalty; (6) failed to narrow the class of

persons eligible for the death penalty; (7) included aggravating

circumstances which improperly duplicated an element of the

charged offense; and (8) improperly allowed the jury to consider

the same set of facts in determining the applicability of both

aggravating circumstances.

Petitioner has failed to demonstrate that the trial court

rendered a charge outside the confines of the law as it existed at the

time of sentencing. Thus, trial counsel was not ineffective in

failing to object to the jury charge at the sentencing phase of the

trial, nor was the defense team ineffective in failing to request

additional or amended instructions.

....

Finally, the Appellate Courts have routinely rejected the

types of claims asserted by Petitioner in this portion of his petition.

....

Petitioner claims trial counsel was ineffective in failing to

object to the trial judge’s “bolstering” of the prosecutor’s

qualifications in the presence of the jury. It appears . . . that the

trial judge briefly commented on the educational background of the

prosecutor. No objection was raised. However, this Court finds

trial counsel was not ineffective in failing to object to the trial

judge’s comments. Moreover . . . Petitioner has failed to

demonstrate he was prejudiced by the comments in that the jury

decision would have been different but for the comments.

-37-

....

Petitioner alleges trial counsel should have moved to strike

the death penalty as a sentencing option because it violates treaties

by the United States and established international law.

Petitioner cites no case that has applied international law as

a bar to the implementation of the death penalty in the United

States and this court is aware of no such ruling. To the contrary,

the Sixth Circuit Court of Appeals, in Buell v. Mitchell, 274 F.3d

337 (6th Cir. 2001), rejected similar challenges to the Ohio death

penalty statute. . . . Moreover, the authority supporting the

proposition that no international law or treaty prohibits a state from

imposing the death penalty is well-settled. Therefore, this Court

finds trial counsel was not deficient in failing to challenge the

death penalty based upon international law.

....

Petitioner contends trial counsel was ineffective in failing

to raise the issue of Petitioner’s mental retardation during the

sentencing phase of his trial. In conjunction with this argument,

Petitioner also contends he is mental[ly] retarded and was mentally

retarded at the time of the offense, and, thus, cannot be executed

under Tennessee’s death penalty statute.

....

This court notes that the statute precluding the execution of

mentally retarded [defendants] was enacted in 1990, prior to

Petitioner’s trial and appeal. However, the Van Tran decision

holding that executions of such individuals violates the United

States and Tennessee constitutions was not decided until 2001,

four years after the conclusion of petitioner’s direct appeal. Thus,

Petitioner’s claim that he is mentally retarded has not previously

been litigated either at the trial court level nor addressed upon

direct appeal. . . . [D]espite his arguments to the contrary,

Petitioner is not entitled to a jury trial on the issue of mental

retardation and the State does not bear the burden of demonstrating

Petitioner is not mentally retarded.

....

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This court finds that Petitioner does not meet the definition

of mental retardation under Tenn. Code Ann. § 39-13-203. . . .

Petitioner’s general intellectual functioning has been evaluated on

several occasions throughout his adolescence and adulthood. In

1984, Petitioner was found to have an I.Q. of 70; in 1990 Petitioner

was found to have an I.Q. of 75; and in 1993 Petitioner was found

to have an I.Q. of 73. In addition, Dr. Auble found Petitioner to

have an I.Q. of 73 and Dr. Nichols reported that he believed

petitioner’s I.Q. was likely higher than the assessed score of 73.

Thus, the only score reflecting a sub average general intellectual

functioning was the 1984 evaluation conducted by the Memphis

City School system. However, the school [system’s] diagnosis was

unspecified mental disorder and conduct disorder, not mental

retardation. Thus, it would appear that although the Memphis City

School system found Petitioner to have an I.Q. of 70, they did not

find that he suffered from deficits in adaptive behavior as specified

by the second part of the statutory definition.

....

. . . [T]his Court finds the more reliable evidence regarding

Petitioner’s intellectual functioning to be the 1990 and 1993 tests,

as well as the initial evaluation conducted by Dr. [Auble]. Both the

1990 and 1993 tests indicated Petitioner had a full range I.Q. of 73

or higher. In addition, Dr. Auble’s initial report stated that

petitioner had an I.Q. of 73, and Dr. Nichols’ report stated that he

believed the petitioner’s I.Q. was even higher. . . . Thus, given the

combined testimony of all the experts, this Court finds that

Petitioner has failed to meet the first prong of the statutory

definition.

. . . Moreover, this Court rejects Dr. Auble’s explanation

with regard to her re-scoring of Dr. Pendergrass’ data. This court

simply finds that her explanation for the re-scoring of the data and

her interpretation of the statute is not credible.

Therefore, this Court finds Petitioner has failed to

demonstrate that he has significant subaverage general intellectual

functioning as evidenced by an I.Q. of 70 or below. Thus, it is

argued the Petitioner cannot meet the standard set forth by Tenn.

Code Ann. 39-13-203 as amended.

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. . . [T]his Court finds that Petitioner has failed to

demonstrate that counsel was ineffective in failing to raise the issue

of mental retardation either prior to trial or on appeal.

Counsel stated that they believed Petitioner was competent

and operating with an I.Q. above the level of individuals who are

deemed mentally retarded. Moreover, even if counsel should have

raised this issue . . ., in light of the Court’s finding that Petitioner is

not mentally retarded, Petitioner [has] failed to demonstrate he was

prejudiced by trial counsel’s inaction.

This court finds that the allegations in sections “III” and

“IV” of the amended petition . . . are without merit. These issues

have been previously addressed and rejected by the Tennessee

Appellate Courts and/or are inappropriate claims for purposes of

post-conviction review. Part “II” of the petition addresses alleged

error by counsel on direct appeal. However, those issues have

either, been addressed and rejected by this Court’s review of

counsel’s trial performance; or Petitioner failed to present proof

beyond the mere assertion of error in support of his allegations.

(Footnotes and citations omitted.)

II. Analysis

A. Standard of Review

Post-conviction relief is only warranted when a petitioner establishes that his or her

conviction is void or voidable because of an abridgement of a constitutional right. Tenn. Code

Ann. § 40-30-103. The petition challenging the petitioner’s convictions is governed by the 1995

Post-Conviction Act, which requires that allegations be proven by clear and convincing evidence.

See Tenn. Code Ann. § 40-30-110(f). Evidence is clear and convincing when there is no serious

or substantial doubt about the accuracy of the conclusions drawn from the evidence. Hicks v.

State, 983 S.W.2d 240, 245 (Tenn. Crim. App. 1998).

Once the post-conviction court has ruled upon a petition, its findings of fact are

conclusive on appeal unless the evidence in the record preponderates against them. Wallace v.

State, 121 S.W.3d 652, 656 (Tenn. 2003); State v. Nichols, 90 S.W.3d 576, 586 (Tenn. 2002)

(citing State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999)). This court may not reweigh or re-

evaluate the evidence or substitute its inference for those drawn by the post-conviction court.

Nichols, 90 S.W.3d at 586. Questions concerning the credibility of witnesses and the weight to

be given their testimony are for resolution by the post-conviction court. Id. (citing Henley v.

State, 960 S.W.2d 572, 579 (Tenn. 1997), petition to rehear denied, (1998), cert. denied, 525

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U.S. 830, 119 S. Ct. 82 (1998)). It is, therefore, the petitioner’s burden to show that the evidence

preponderated against those findings. Clenny v. State, 576 S.W.2d 12, 14 (Tenn. Crim. App.

1978).

Notwithstanding, determinations of whether counsel provided a defendant

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

S.W.3d at 656; Nichols, 90 S.W.3d at 586. As such, the findings of fact are reviewed under a de

novo standard, accompanied with a presumption that those findings are correct unless the

preponderance of the evidence is otherwise. See Fields v. State, 40 S.W.3d 450, 458 (Tenn.

2001). In clarifying the standard, our supreme court explained that the standard for reviewing the

factual findings of a trial court has always been in accordance with the requirements of the

Tennessee Rules of Appellate Procedure, specifically Rule 13(d). Id. at 456.

The petitioner contends that this court should not provide a presumption of correctness to

the post-conviction court’s findings of fact relating to the credibility of Eugene Bowen and James

Parker. He argues that the post-conviction court’s findings are conclusory in nature and are not

supported by the evidence. He further complains that the lower court failed to articulate any

valid reason why the testimony of those two witnesses was not credible.

Appellate courts in Tennessee do not reweigh or reevaluate the evidence. We cannot

substitute our inferences for those drawn by the trial judge. Moreover, questions concerning the

credibility of the witnesses, the weight and value to be given their testimony, and the factual

issues raised by the evidence are to be resolved by the trial judge, not this court. Henley, 960

S.W.2d at 579. We will not make credibility determinations.

B. Petitioner’s Claims

1. Actual Innocence

The petitioner claims that he is actually innocent of Linda Harris’ murder and asks this

court to consider his actual innocence as a freestanding claim. He argues that the Tennessee

Constitution grants stronger protection of individual rights than does the federal constitution. In

this respect, he asserts that “Tennessee case law gives courts the power to fashion a remedy to

correct an injustice, including the execution of an innocent man.” In this regard, the petitioner

asks this court to hold that “executing an innocent person would violate the Tennessee

Constitution.” According to his appellate brief, “Actual innocence alone requires relief from

This Court.” The petitioner states that “[he] has a constitutional right not to be executed for a

crime he did not commit, and the Post-Conviction Procedure Act guarantees relief when ‘a

conviction is void or voidable because of an abridgement of any right guaranteed by the

Constitution of Tennessee or the Constitution of the United States.” Additionally, the petitioner

asks this court to adopt the standard that new evidence need only furnish a reasonable basis for

concluding that the result of proceedings “might have” been different.

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Review of the petitioner’s claim is guided by our supreme court’s recent ruling in James

A. Dellinger v. State, ___ S.W.3d ___, No. E2005-01485-CCA-R3-PD, 2008 Tenn. LEXIS 111

(Knoxville, Feb. 25, 2008). In that case, our supreme court granted the application for

permission to appeal to determine whether a freestanding claim of actual innocence was

cognizable in an initial petition for post-conviction relief under the Tennessee Post-Conviction

Procedure Act. Dellinger asserted that he had a right under the state and federal constitutions not

to be imprisoned and executed for a crime he did not commit. The supreme court held that as the

Act itself provided an avenue for relief when new scientific evidence of actual innocence became

available after the limitations period for filing a post-conviction petition had expired, judicial

economy and logic dictated that such evidence should be permitted at the time the original

petition was filed. James A. Dellinger, No. E2005-01485-CCA-R3-PD, 2008 Tenn. LEXIS 111,

at *___. Although recognizing the existence of a claim of actual innocence based upon new

scientific evidence, the supreme court affirmed the denial of relief by concluding that Dellinger

failed to meet his burden of proof to support his claim. Id. at *___.

The Tennessee Supreme Court declined the opportunity to address the broader question

as to whether a petitioner had a constitutional right not to be executed for a crime he did not

commit. Id. at *___. The court acknowledged that the United States Supreme Court had yet to

decide the issue of whether the execution of an innocent person violated the federal constitution.

Id. at *___ n.4 (citing House v. Bell, 547 U.S. 518, 554-55, 126 S. Ct. 2064 (2006)). Moreover,

regarding claims of actual innocence not based on scientific evidence, our supreme court

recognized that such claims may be brought in a petition for writ of error coram nobis and in an

application for executive clemency. Id. at *___ n.7. Accordingly, our supreme court concluded

that a claim of actual innocence not based on scientific evidence may not be raised in a petition

for post-conviction relief.

In support of his claim of actual innocence, the petitioner contends that no physical

evidence links him to Harris’ murder. He alleges that he presented substantial evidence of his

innocence at the post-conviction hearing, including the testimony of alibi witness Eugene Bowen

and the testimony of James Parker, who overheard Sidney Harris ask a drug dealer to arrange the

murder of his wife. The petitioner’s claim is not based upon new scientific evidence establishing

his actual innocence. A post-conviction proceeding is not the proper avenue in which to seek

relief based upon non-scientific evidence establishing actual innocence.

Notwithstanding, even assuming that a claim based on new non-scientific evidence

establishing actual innocence is to be recognized in a post-conviction proceeding, the petitioner

is not entitled to relief. To establish his “actual innocence,” a petitioner must establish by clear

and convincing evidence that no jury would have convicted him in light of the new evidence.”

See Ex parte Elizondo, 947 S.W.2d 202, 209 (Tex. Crim. App. 1996) (superceded on other

grounds by statute); see also Miller v. Comm’r of Corr., 700 A.2d. 1108, 1132 (Conn. 1997)

(holding that “in order to grant a petitioner’s request for relief, the habeas court first must be

convinced by clear and convincing evidence that the petitioner is actually innocent); State ex rel

Amrine v. Roper, 102 S.W.3d 541, 548 (Mo. 2003) (en banc) (holding that a petitioner asserting

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a freestanding claim of actual innocence is required “to make a clear and convincing showing of

actual innocence that undermines confidence in the correctness of the judgment”); Montoya v.

Ulibarri, 163 P.3d 476, 483-86 (N.M. 2007) (stating that petitioner asserting freestanding claim

of innocence must convince the court by clear and convincing evidence that no reasonable juror

would have convicted him in light of the new evidence). Considering the “new” evidence

introduced at the post-conviction evidentiary hearing, we cannot conclude that the petitioner

established by clear and convincing evidence that no jury would have convicted him in light of

the new evidence. Thus, even if a freestanding claim of actual innocence was cognizable in a

petition for post-conviction relief, we cannot conclude that the petitioner would be entitled to

relief on this ground.

2. Denied a Fair Post-Conviction Evidentiary Hearing

The petitioner contends that he was denied a fair post-conviction evidentiary hearing

because the post-conviction court denied his petition without having the transcribed testimony of

Darlene Donald, Linda Harris’ sister. The State responds that the petitioner’s claim is without

merit because due process requires “the opportunity to be heard ‘at a meaningful time and in a

meaningful manner.’” Matthews v. Eldridge, 424 U.S. 319, 333, 96 S. Ct. 893, 992 (1976). We

conclude that the petitioner is not entitled to relief.

On November 20, 2006, defense counsel received a copy of the transcript of the post-

conviction proceedings. Upon review of the transcript, counsel discovered that Donald’s

testimony had not been transcribed. The testimony was later determined to be “truly missing

from the audio tape of the proceedings.” Ultimately, a narrative of Donald’s testimony was

submitted pursuant to Rule 24(c), Tennessee Rules of Appellate Procedure. The petitioner

argues that the fact that the post-conviction court rendered its decision knowing an important

piece of testimony was missing violates his right to a full and fair hearing. The petitioner further

cites to the post-conviction court’s failure to mention Donald or other family members related to

Linda Harris in its order dismissing the petition.

We conclude that the petitioner is not entitled to relief. The post-conviction court heard

Donald’s testimony on November 14, 2001. No due process right exists requiring that the trier of

fact later read that testimony from a transcript. We are not persuaded that the post-conviction

court failed to consider the proof before rendering its decision.

3. Mental Retardation

The petitioner contends that “under any standard of proof, [he] is mentally retarded under

the provisions of Tenn. Code Ann. § 39-13-203.” In support of his argument, he notes that in

1983 to 1984, his full scale I.Q. was 70 and that his school records and additional tests prior to

the age of eighteen reflected significantly subaverage general intellectual functioning.

Additionally, he notes that his experts and the State’s expert, Dr. Nichols, agreed that he met all

three prongs of the Tennessee statute exempting the mentally retarded from execution. The

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petitioner complains that the post-conviction court ignored the expert witnesses’ unanimous

opinions and the weight of the documentary evidence and instead relied upon its own ipse dixit,

Latin for “he himself said it.” In other words, something that is asserted but unproved. See

American Heritage Dictionary 4th ed. (2000). The petitioner makes numerous complaints

regarding the court’s findings of fact and conclusions of law. He also properly points out that

this court’s review involves an application of the law to the facts and is de novo. In this regard,

the petitioner asserts that (1) the credibility of the witnesses was not an issue in these

proceedings; (2) the post-conviction court was not choosing between two permissible views of

the evidence because the State failed to present any witnesses or evidence to the contrary; and (3)

the judge at the evidentiary hearing was not the judge who presided over the original trial or the

original post-conviction proceeding and, therefore, was not in a better position than this court to

review the transcripts of the prior proceedings. The petitioner also asserts that the post-conviction

court improperly attempted to exercise clinical judgment in finding that he did not have deficits

in adaptive behavior and that his subaverage intellectual functioning did not manifest during his

developmental period.

In 1990, Tennessee Code Annotated section 39-13-203 was enacted prohibiting the

execution of mentally retarded individuals. See Tenn. Code Ann. § 39-13-203(b); Howell v.

State, 151 S.W.3d 450, 456 (Tenn. 2004); Van Tran v. State, 66 S.W.3d 790 (Tenn. 2001).

While our supreme court determined that this legislation was not to be applied retroactively, the

court held that the execution of mentally retarded persons violated constitutional prohibitions

against cruel and unusual punishment. Id. (citing Van Tran, 66 S.W.3d at 798-99); cf. Atkins v.

Virginia, 536 U.S. 304, 321, 122 S. Ct. 2242 (2002) (execution of mentally retarded individuals

violates the United States Constitution).

Tennessee Code Annotated section 39-13-203(a) provides the following definition of

“mental retardation”:

(1) Significantly sub-average general intellectual functioning as

evidenced by a functional intelligence quotient (I.Q.) of seventy

(70) or below;

(2) Deficits in adaptive behavior; and

(3) The mental retardation must have been manifested during the

developmental period or by eighteen (18) years of age.

The demarcation of an I.Q. score of 70 is a bright-line cutoff and must be met. Howell, 151

S.W.3d at 456, 458-59. The statute should not be interpreted to make allowance for any standard

error of measurement or other circumstances whereby a person with an I.Q. above 70 could be

considered mentally retarded. Id. We note that all three prongs must be satisfied to establish

mental retardation.

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In post-conviction proceedings, a petitioner must establish mental retardation by a

preponderance of the evidence. Howell, 151 S.W.3d at 465. A preponderance of the evidence

means evidence which is of greater weight, or is more convincing, than that evidence offered in

opposition. 32A C.J.S. Evidence 1312 (2005). “[T]he term does not mean preponderance in

amount, but implies an overbalancing in weight, and that it means, in the last analysis,

probability of the truth.” Id. (internal footnote omitted). Suspicions are insufficient to amount to

proof by a preponderance of the evidence. Id. The satisfaction of this preponderance standard

requires the finder of fact to evaluate the evidence, determine what evidence is reliable, and

determine what evidence is probative to demonstrate the truth of the asserted proposition with the

requisite degree of certainty. Id. In other words, a preponderance is such proof as leads the trier

of fact to find that it is more probable than not, or more likely than not, that a contested fact

exists. Id. A preponderance is attained where the evidence in its quality of credibility destroys

and overbalances the equilibrium. Id. Moreover, it is not required that the trier of fact must be

entirely or thoroughly satisfied or convinced, or satisfied with clearness and certainty, or that a

fact in issue shall be proved to full satisfaction or to the reasonable satisfaction of the trier of

fact. Id. “The probabilities must be such that the conclusion is acceptable to the judgment of the

court or jury applied to the evidence in the particular case; mere proof of possibility, or

possibilities, or even a preponderance of possibilities or a majority of chances, or a choice of

probabilities, or among different possibilities, never can suffice alone to establish a proposition

of fact.” Heck Van Tran v. State, No. W2005-01334-CCA-R3-PD, 2006 Tenn. Crim. App.

LEXIS 899, at 60-61, at (Jackson, Nov. 9, 2006), perm. to appeal denied, (Tenn. 2007).

The question of whether a defendant is mentally retarded and, thus, ineligible for the

death penalty is a mixed question of law and fact. Id. at *57. Thus, this court must review the

post-conviction court’s findings of fact de novo, with a presumption of correctness that is to be

overcome only when the preponderance of the evidence is contrary to the court’s findings. Id.;

see also Fields, 40 S.W.3d at 456. In reviewing the application of the law to the facts, however,

this court conducts a purely de novo review. Field, 40 S.W.3d at 457. Thus, no presumption of

correctness attaches to the post-conviction court’s conclusions of law. Id.

The post-conviction court determined that the petitioner did not meet the definition of

mentally retarded under section 39-13-203, Tennessee Code Annotated. The post-conviction

court found that the petitioner’s general intellectual functioning had been evaluated on several

occasions throughout his adolescence and adulthood. Specifically, the lower court noted that the

petitioner was determined to have an I.Q. of 70 in 1984, an I.Q. of 75 in 1990, and an I.Q. of 73

in 1993. The court also noted that the only score reflecting a subaverage general intellectual

functioning was the 1984 evaluation conducted by the Memphis City School system and that the

school system’s diagnosis was an unspecified mental disorder and conduct disorder, not mental

retardation. Thus, the court concluded that although the Memphis City School system found the

petitioner to have an I.Q. of 70, the school system apparently did not find that he suffered from

deficits in adaptive behavior as specified by the second part of the statutory definition.

The lower court further determined that the 1990 and 1993 tests, which indicated the

petitioner had a full range I.Q. of 73 or higher, were more reliable. Accordingly, the lower court

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concluded that the petitioner failed to satisfy the first prong of the statutory definition of mental

retardation in that he did not have an IQ of 70 or below. The court stated that because the

petitioner failed to establish the first prong of the statute, the court did not need to address the

second and third prongs of the statute.3 In our consideration of the post-conviction court’s

conclusion that the petitioner failed to establish he had subaverage general intellectual

functioning as evidenced by a functional I.Q. of 70 or below, we will review the proof presented

by the petitioner at the evidentiary hearing.

Dr. Pincus observed that the petitioner’s brain was abnormal in that “it was shrunken,

atrophic, especially in the parietal regions.” Dr. Pincus could not say with certainty as to what

effect this would have on a person’s neurological functioning. In a summary of his findings, Dr.

Pincus noted that the petitioner had evidence of neurologic dysfunction and had the reading level

of a fifth grader. Dr. Pincus stated, however, that the facts of the petitioner’s crime involved

planning and there was no indication the petitioner’s actions on the night of the homicide were

the result of a delusional act.

Dr. Auble testified that the petitioner’s school records demonstrated he was functioning

one to two levels below his grade level. In 1983, the petitioner was found to have an I.Q. of 82.

She reported that in 1984 to 1985, the petitioner was tested by the Memphis City Schools and

was found to have an I.Q. of 70. Results of another test in 1985 reflected the petitioner’s I.Q.

was 70. On cross-examination, Dr. Auble conceded that she diagnosed the petitioner with

borderline intellectual functioning and that his I.Q. range was between 71 and 84. She qualified

this assessment, stating that “his functional intelligence is 70 or below.” Her assessment was

based on her interpretation of the Tennessee statute.

Dr. Bishop interviewed the petitioner in 2000 and concluded that his adaptive behavior

met the criterion for being mentally retarded. Dr. Bishop stated that the petitioner was given the

Vineland Adaptive Behavior Scales in 1987 and that a Vineland test score equated to an I.Q.

score with a standard deviation of 15. Two standard deviations below the norm of 100 was the

standard for mental retardation. Dr. Bishop related that the petitioner scored a 70 on the test, two

standard deviations below the norm. She further stated that the petitioner scored an I.Q. of 70 on

the Wechsler Intelligence Scale for Children-Revised. Dr. Bishop related that Dr. Pendergrass

had administered the WAIS-3 testing, which indicated the petitioner had an I.Q. of 75. She

explained that the rate of error was a little over five points. In her professional opinion, Dr.

Bishop concluded that the petitioner had a “significantly subaverage general intellectual

functioning as evidenced by a functional intelligence quotient of 70 or below.”

3

Specifically, the post-conviction court’s order states in a footnote as follows: “This court acknowledges the

testimony presented regarding petitioner's potential deficits in adaptive behavior and childhood injuries to the brain;

however, since this court finds petitioner has failed to meet the first prong of the statute, in that he does not have an

I.Q. of seventy or below, this court need not address the second and third prong of the statute.”

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Dr. Nichols testified that an I.Q. test administered in June 1990 revealed the petitioner

had a full scale I.Q. of 73. He stated that in his opinion, the petitioner’s intellectual level was

actually higher than the I.Q. of 73. Dr. Nichols added that the petitioner’s school records

indicated tests performed in November 1984 and February 1985 showed a full scale I.Q. of 70.

However, in 1985, the petitioner was diagnosed with “unspecified mental disorder, other

handicapping conditions, conduct disorder, socialized nonaggressive.”

In State v. Strode, 232 S.W.3d 1, 18 (Tenn. 2007), the Tennessee Supreme Court held

that the manifestation of the subaverage general intellectual functioning must have been

established prior to age eighteen. Subaverage general intellectual functioning is based on

Intelligence Quotient (“I.Q.”) scores that were obtained through the use of standardized

intelligence tests. Van Tran, 66 S.W.3d at 795. The DSM IV used the following scales:

I.Q. of 50-55 to approximately 70: mild mental retardation

I.Q. of 35-40 to 50-55: moderate mental retardation

I.Q. of 20-25 to 35-40: severe mental retardation [and]

I.Q. below 20-25: profound mental retardation.

Id. at 795 (citing the American Psychiatric Association, Diagnostic and Statistical Manual of

Mental Disorders, 39 (4th ed. 1994)).

Turning to the instant case, in 1984, the thirteen-year-old petitioner had a full scale I.Q. of

70. However, in June 1990, three and one-half years before the crime, the nineteen-year-old

petitioner had a full scale I.Q. of 73, and in 1999, five years after the crime, he had a full scale

I.Q. of 75. Although, Dr. Auble and Dr. Bishop testified that they believed the petitioner’s I.Q.

was actually 70 or below, Dr. Auble acknowledged on cross-examination that given the rate of

error on the 1990 I.Q. test, the petitioner’s I.Q. could have been even higher than the test

indicated. Furthermore, Dr. Nichols testified for the State that he believed the petitioner’s I.Q.

was higher than the 1990 test result of 73. In light of the evidence presented, we cannot conclude

that the post-conviction court erred by finding that the petitioner failed to show by a

preponderance of the evidence that he satisfied the first prong of the mental retardation

definition.

We note, however, that Dr. Auble also testified that all I.Q. tests have a range of error

and, therefore, that the petitioner’s I.Q. in 1990 could have been as low as 67. Additionally, Dr.

Bishop testified that given the rates of error associated with the petitioner’s I.Q. tests, he could

have scored 70 or below on all of the tests and that the five-point difference between a 70 and a

75 on an I.Q. test . Despite this testimony, as an intermediate court, we are bound by our

supreme court’s conclusion in Howell, holding that the legislature intended for 70 to be a bright-

line cutoff that does not take into account standard rates of error. See Howell, 151 S.W.3d at

459. Unfortunately, by refusing to consider ranges of error, it is our view that some mentally

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retarded defendants are likely to be executed in Tennessee, particularly in a case similar to this

one where the defendant’s I.Q. is so close to the brigh-line cutoff of 70.

4. Ineffective Assistance of Counsel

The Sixth Amendment to the United States Constitution provides, in pertinent part, that

“[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of

Counsel for his defence.” This right to counsel is “so fundamental and essential to a fair trial,

and so, to due process of law, that it is made obligatory upon the States by the Fourteenth

Amendment.” Gideon v. Wainwright, 372 U.S. 335, 350, 83 S. Ct. 792 (1963) (quoting Betts v.

Brady, 316 U.S. 455, 465, 62 S. Ct. 1252 (1942)). Inherent in the right to counsel is the right to

the effective assistance of counsel. Cuyler v. Sullivan, 446 U.S. 335, 344, 100 S. Ct. 1708

(1980); McMann v. Richardson, 397 U.S. 759, 771 n.14, 90 S. Ct. 1441 (1970); see also

Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052 (1984).

“The benchmark for judging any claim of ineffectiveness must be whether counsel’s

conduct so undermined the proper functioning of the adversarial process that the trial cannot be

relied on as having produced a just result.” Strickland, 466 U.S. at 686, 104 S. Ct. at 2064;

Combs v. Coyle, 205 F.3d 269, 277 (6th Cir. 2000). The following two-prong test directs a

court’s evaluation of a claim of ineffectiveness:

First, the defendant must show that counsel’s

performance was deficient. This requires showing

that counsel made errors so serious that counsel was

not functioning as the “counsel” guaranteed the

defendant by the Sixth Amendment. Second, the

defendant must show that the deficient performance

prejudiced the defense. This requires showing that

counsel’s errors were so serious as to deprive the

defendant of a fair trial, a trial whose result is

reliable.

Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; see also Combs, 205 F.3d at 277.

The performance prong of the Strickland test requires that a petitioner show that

counsel’s representation fell below an objective standard of reasonableness, or “outside the range

of professionally competent assistance.” Strickland, 466 U.S. at 690, 104 S. Ct. at 2066; see also

Kimmelman v. Morrison, 477 U.S. 365, 386, 106 S. Ct. 2574 (1986). “Judicial scrutiny of

performance is highly deferential, and ‘[a] fair assessment of attorney performance requires that

every effort be made to eliminate the distorting effects of hindsight, to reconstruct the

circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s

perspective at the time.” Combs, 205 F.3d at 278. Upon reviewing claims of ineffective

assistance of counsel, the court “must indulge a strong presumption that counsel’s conduct falls

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within the wide range of reasonable professional assistance; that is, the defendant must overcome

the presumption that, under the circumstances, the challenged actions ‘might be considered

sound trial strategy.’” Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. Additionally, courts

should defer to trial strategy or tactical choices if they are informed ones based upon adequate

preparation. Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982). Finally, it is acknowledged that

criminal defendants are not entitled to perfect representation, only constitutionally adequate

representation. Denton v. State, 945 S.W.2d 793, 796 (Tenn. Crim. App. 1996). In other words,

“in considering claims of ineffective assistance of counsel, ‘we address not what is prudent or

appropriate, but only what is constitutionally compelled.’” Burger v. Kemp, 483 U.S. 776, 794,

107 S. Ct. 3114, 3126 (1987) (quoting United States v. Cronic, 466 U.S. 648, 665, n.38 (1984)).

Notwithstanding, it is the duty of this Court to “search for constitutional [deficiencies] with

painstaking care” as this responsibility is “never more exacting than it is in a capital case.” Id. at

785, 107 S. Ct. at 3121.

If the petitioner shows that counsel’s representation fell below a reasonable standard, then

the petitioner must satisfy the prejudice prong of the Strickland test by demonstrating “there is a

reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding

would have been different.” Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. “A reasonable

probability is a probability sufficient to undermine confidence in the outcome.” Id. In evaluating

whether a petitioner satisfies the prejudice prong, a court must ask “whether counsel’s deficient

performance renders the result of the trial unreliable or the proceeding fundamentally unfair.”

Lockhart v. Fretwell, 506 U.S. 364, 372, 113 S. Ct. 838 (1993) (citing Strickland, 466 U.S. at

687, 104 S. Ct. at 2064). That is, 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. Nichols, 90 S.W.3d at 587. For example, the evidence stemming from the failure

to prepare a sound defense or to present witnesses must be significant, but it does not necessarily

follow that the trial would have otherwise resulted in an acquittal. Nealy v. Cabana, 764 F.2d

1173, 1178-79 (5th Cir. 1985); Code v. Montgomery. 799 F.2d 1481, 1483 (11th Cir. 1986). “A

reasonable probability of being found guilty of a lesser charge, or a shorter sentence satisfies the

second prong of Strickland.” State v. Zimmerman, 823 S.W.2d 220, 225 (Tenn. Crim. App.

1991); see also Chambers v. Armontrout, 907 F.2d 825, 832 (8th Cir. 1990), cert. denied, 498

U.S. 950, 111 S. Ct. 369 (1990). Moreover, when challenging the imposition of a sentence of

death, the petitioner must show that “there is a reasonable probability that, absent the errors of

counsel, the sentencer . . . would have concluded that the balance of the aggravating and

mitigating circumstances did not warrant death.” Henley, 960 S.W.2d at 579-80 (citing

Strickland, 466 U.S. at 695, 104 S. Ct. at 2069).

a. guilt phase deficiencies

The petitioner contends that he received the ineffective assistance of counsel at the guilt

phase of his capital trial. Specifically, he contends that counsel (1) failed to locate and interview

critical witnesses, (2) failed to investigate and effectively cross-examine the State’s witnesses, (3)

failed to present a defense, and (4) failed to request a continuance.

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1. Trial counsel failed to investigate critical witnesses.

The petitioner contends that he received the ineffective assistance of counsel because trial

counsel failed to locate and interview two critical witnesses. The two witnesses were Eugene

Bowen, an alibi witness, and James Parker, who implicated other suspects. We will address the

petitioner’s claims as to each witness separately.

Eugene Bowen lived in the same neighborhood as Jackie Cannon in 1993 and 1994. He

testified that he used to sell crack cocaine to Cannon and that at times, she would “just [scream].”

Bowen also stated that the petitioner lived with Cannon in her LaMoyne Gardens apartment and

that he and the petitioner played basketball together on the night of Linda Harris’ murder. He

said that the petitioner had his little girl with him and that after they finished “shooting ball,” he

and the petitioner walked to get a beer. Later, he observed the petitioner and “Wham” having an

argument. He explained that “Wham” was Cannon. Bowen said the petitioner’s attorneys never

contacted him.

The post-conviction court concluded that counsel was not deficient by failing to locate,

interview, and call Eugene Bowen as an alibi witness because the petitioner failed to inform

counsel about Bowen. The post-conviction court further determined that Bowen was not

credible. The petitioner contests the post-conviction court’s ruling, arguing, in pertinent part,

that trial counsel was aware of Bowen but failed to investigate him.

At the post-conviction hearing, lead counsel was questioned as to whether the petitioner

had told him about a person named “Frog,” whom the petitioner was with on the night of the

shooting. Counsel responded, “As I can recall, it doesn’t (indiscernible) in the file; and I knew

we had that in there with someone. But I think that’s the only name we had I believe.” Counsel

added that no investigation was conducted to find the person known only to the defense as

“Frog.” However, counsel also said the petitioner could not recall any person, other than Jackie

Cannon, who could help him with his alibi defense. Counsel further stated that “I just don’t

recall anybody else that he said that he may have been with. It’s a possibility that he had; but if

he had, there would have been an investigation done on it.”

The petitioner also contends that trial counsel was ineffective for failing to locate and

interview James Parker. He adds that counsel could have located Parker with reasonable effort

but failed to do so. He argues that he was prejudiced by counsel’s failure to interview Parker

because it prevented him from presenting other suspects to the jury.

At the post-conviction hearing, lead counsel stated that prior to trial, he was in possession

of Parker’s statement, which indicated that Parker had overheard three men discussing the fact

that Sidney Harris hired them to kill Linda Harris. Trial counsel asked the investigator to locate

Parker, but the investigator did not find him. In addition, counsel was concerned that in light of

Sidney Harris’ injuries, introducing Parker’s unsupported allegations into evidence might inflame

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the jury. Sergeant McWilliams testified that an investigation was conducted into Sidney Harris’

involvement in his wife’s murder but that no motive was found. An investigation into Parker’s

statement also was conducted, and the police did not uncover any information to corroborate

Parker’s statement.

The post-conviction court determined that trial counsel made a strategic decision not to

call Parker to testify. In addition, the court did not give great weight to Parker’s credibility.

Specifically, the lower court stated,

Counsel’s decision to not call James Parker as a witness,

during the guilt phase . . . , is equally attributable to strategy. Again,

this Court will not second guess trial counsel’s strategy unless it

falls below the acceptable standards. . . . [T]his Court does not give

great weight to the credibility of Parker. Essentially, counsel would

have been pitting the credibility of Parker against that of Harris, who

himself, had been injured in the attack. . . . Sgt. McWilliams

testified that he followed up on the information provided by Parker,

but found no link to the murder. . . . McWilliams further stated that

there was no credible evidence that someone else was involved in

the murder.

We conclude that the petitioner has failed to demonstrate that counsel rendered deficient

performance or that he was prejudiced by counsel’s actions. The testimony at the post-

conviction hearing revealed that Parker could not be located. Furthermore, even if Parker had

been found, counsel made the tactical decision not to pursue Parker’s uncorroborated allegations

at the guilt phase. Finally, the post-conviction court concluded that Parker lacked credibility.

Therefore, counsel was not ineffective for failing to investigate further and present Parker’s

testimony.

2. Trial counsel failed to investigate and cross-examine the State’s witnesses effectively.

Next, the petitioner argues that his defense team knew the State was going to call two key

witnesses, Sidney Harris and Jackie Cannon, to testify. However, defense counsel completely

failed to investigate the two witnesses and failed to cross-examine them effectively.

Regarding Sidney Harris, the petitioner contends that his attorneys failed to investigate

Sidney adequately when they had information implicating him in his wife’s murder. Specifically,

the petitioner cites James Parker’s statement. He also cites to the statement Al Harris, Sidney’s

brother, gave to police, saying he was not sure Sidney was telling the police everything about his

wife’s murder. The petitioner further cites to counsel’s statement that it was common knowledge

Sidney engaged in extramarital affairs.

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The post-conviction court determined as follows:

Petitioner’s claims center around the defense theory that Sidney

Harris was involved in his wife’s murder. . . . Petitioner challenges

trial counsel’s performance with regard to his cross-examination of

Harris.

....

With regard to the cross-examination of Harris . . . , this

Court finds counsel’s performance was not deficient. . . . [T]rial

counsel specifically stated that he was concerned that a defense

which [attacked] Harris would result in backlash from the jury

directly to the Petitioner. This Court finds such decisions to be

reasonable tactical maneuvers made by informed and adequately

prepared counsel. Additionally, as the Supreme Court noted on

direct appeal, Harris testified at trial that he was injured in the attack

and was heavily sedated when he first spoke to police. . . . Thus,

although it appears counsel attempted to exploit certain

discrepancies, the jury accepted Harris’ explanation.

The petitioner’s claims regarding Sidney’s involvement in his wife’s murder, involvement

with illegal drugs, involvement in extramarital affairs, and financial problems are based on

hearsay statements from numerous witnesses. Sergeant McWilliams testified that the Memphis

Police Department explored Sidney’s possible involvement in the murder but that the

investigation could not corroborate any allegations. Lead counsel stated that Sidney was

interviewed and that his brother also may have been interviewed. The petitioner has failed to

offer legitimate evidence to support his claims regarding Sidney’s character. The post-conviction

court determined that in light of Sidney’s injuries, trial counsel made a sound tactical decision

not to explore those areas in a hostile cross-examination. We cannot disagree. Therefore, the

petitioner has failed to establish prejudice and is not entitled to relief on this issue.

As to Jackie Cannon, the petitioner contends that trial counsel was ineffective for failing

to investigate her. He asserts that defense counsel knew she was “possibly on drugs” and that she

received money in exchange for giving information to the police. The petitioner argues that had

defense counsel completed an adequate investigation of Cannon, they would have learned that

she had been seriously addicted to crack cocaine for many years and that her drug abuse masked

an underlying mental condition. The petitioner asserts that Cannon’s drug use and bizarre

behavior would have undermined the veracity of her statement implicating him as the perpetrator.

At the post-conviction hearing, lead counsel testified that, in his opinion, Cannon was

“possibly on drugs.” However, he also was aware that the petitioner had injured Cannon during a

physical altercation. Sergeant McWilliams stated that nothing indicated Cannon was using crack

cocaine and that Cannon was “very scared.”

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The post-conviction court reached the following conclusions:

First, Petitioner asserts trial counsel’s pre-trial investigation of

Jackie Cannon should have included a request for production of

Cannon’s mental health and juvenile records. He claims Cannon

has a history of mental health problems and drug abuse. Thus,

Petitioner also contends trial counsel should have requested a

psychiatric examination of Cannon prior to her testifying at trial.

....

. . . Cannon either refused to answer their questions or

continued to assert that her trial testimony was truthful. . . . When

asked if she had given two separate affidavits contradicting or

recanting portions of her trial testimony, Cannon specifically denied

having given the statements or signing the affidavits. One fact upon

which Cannon vehemently insisted was that the petitioner

“attempted” to “murder” her in order to prevent her from going to

the police.

With regard to Petitioner’s allegations that counsel should

have obtained Cannon’s medical and juvenile records . . . , the

Petitioner offered no evidence to show trial counsel should have

been aware of Cannon’s problems. In fact, during the trial, the

Petitioner, who lived with the witness at the time of the murder,

provided counsel with no information regarding any present or past

mental health or drug problems the witness may have suffered from

at the time of her trial testimony. Other than Cannon, who was

likely not forthcoming about such details, the Petitioner was the best

source for such information. It was up to the Petitioner to alert

counsel that there may be some mental health issues relating to

Cannon’s testimony. Every witness will not be investigated for

mental health issues unless pertinent information is discovered by

counsel which related directly to the case.

Therefore, Petitioner cannot now claim ineffective assistance

of counsel because he chose to remain silent about certain mental

health issues. . . . [T]he Petitioner was unable to show that, when

Cannon testified at trial, she actually suffered from mental illness or

was under the influence of drugs. Thus, this Court is not inclined to

find trial counsel was ineffective in failing to request Cannon’s

mental and juvenile records.

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The petitioner has failed to convince this court that any information was available to trial

counsel which would have indicated Cannon suffered from a mental defect at the time of the

trial. While some witnesses provided insight into Cannon’s unusual behavior, this alone was

insufficient to require defense counsel to request any possible mental health records on the

State’s witness. Additionally, while trial counsel conceded that he thought Cannon was using

illegal drugs, Sergeant McWilliams testified to the contrary, stating that nothing indicated she

was using drugs. There is no indication, and it is highly unlikely, that Cannon would have

admitted to drug use at the trial. This co

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