Robert Faulkner v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

October 1, 2013 Session

ROBERT FAULKNER v. STATE OF TENNESSEE

Appeal from the Criminal Court for Shelby County

No. 99-07635 W. Otis Higgs, Jr., Judge

No. W2012-00612-CCA-R3-PD - Filed August 29, 2014

The Petitioner, Robert Faulkner, appeals the denial of his petition for post-conviction relief

from his conviction of first degree premeditated murder and resulting sentence of death. On

appeal, the Petitioner contends that (1) the jury foreperson demonstrated bias and violated

the Petitioner’s right to a fair and impartial jury; (2) he is intellectually disabled and, thus,

ineligible for the death penalty; (3) he received the ineffective assistance of counsel during

the guilt and penalty phases of trial; (4) the prosecution failed to disclose exculpatory

evidence; (5) the prosecution presented false and misleading testimony; (6) the trial court

demonstrated bias; (7) the “acquittal-first instruction” violated his due process rights; (8)

Tennessee’s death penalty scheme is unconstitutional; and (9) cumulative error warrants a

new trial. We conclude that due to the jury foreperson’s false statements about past domestic

violence, the Petitioner was denied his constitutional right to a fair and impartial jury.

Accordingly, we reverse the judgment of the post-conviction court, vacate the Petitioner’s

conviction and death sentence, and remand the case to the trial court for a new trial.

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

Case Remanded.

N ORMA M CG EE O GLE, J., delivered the opinion of the Court, in which J OSEPH M. T IPTON,

P.J., and J ERRY L. S MITH, J., joined.

Daniel E. Kirsch and Kertyssa Delynn Smalls, Nashville, Tennessee, for the appellant,

Robert Faulkner.

Robert E. Cooper, Jr., Attorney General & Reporter; Andrew Craig Coulam, Assistant

Attorney General; Amy P. Weirich, District Attorney General; and John Campbell, Assistant

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

OPINION

I. Factual Background

A Shelby County Criminal Court Jury convicted the Petitioner of the first degree

premeditated murder of his wife, Shirley Faulkner. The jury sentenced him to death based

upon the aggravating circumstance that he was previously convicted of one or more violent

felonies. See Tenn. Code Ann. § 39-13-204(i)(2). The Tennessee Supreme Court affirmed

the Petitioner’s conviction and sentence on direct appeal of his conviction. See State v.

Faulkner, 154 S.W.3d 48 (Tenn. 2005).

The Petitioner subsequently sought post-conviction relief. Following an evidentiary

hearing, the post-conviction court entered an order denying relief. This appeal followed.

A. Trial Evidence

The Tennessee Supreme Court summarized the evidence presented at trial in its

opinion on direct appeal as follows:

At the guilt phase of the trial, the State’s proof showed that the

defendant, Robert Faulkner, and the victim, Shirley Faulkner, married in

September 1998 and separated in December 1998. Faulkner moved in with his

grandmother while the victim continued to live at her house in Memphis. On

January 18, 1999, the victim filed a complaint with the Memphis Police

Department alleging that on the previous night Faulkner struck her with his

fist, held an ashtray over her head, and threatened to kill her. According to the

victim, who suspected that Faulkner had been high on cocaine, Faulkner also

called her several times on the morning of January 18, again threatening to kill

her. The officer who took the report testified that the victim was nervous and

shaking and that her left temple was swollen. On January 19, the victim

visited a physician, who treated her for trauma to the left side of her face. The

victim reported to the physician that she had been hit in the face on Sunday,

which was January 17.

At approximately 11:00 p.m. on January 21, the victim clocked out

from her shift as a cashier at a grocery store. Before leaving, she purchased

groceries. Although the victim’s supervisor testified that the victim appeared

normal when she left, a security guard who escorted the victim to her car

described her as shaking and crying. The victim told the guard that she was

afraid to go home because her husband might be waiting there. The victim

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refused the guard’s offer to escort her home and left by herself. That same

night, the victim’s son-in-law, Andre King, decided to check on the victim

because a tornado watch was in effect for Memphis. When Mr. King arrived

shortly after midnight, he noticed that the lights were on in the victim’s house

but that no car was in the driveway. Mr. King waited outside for

approximately thirty minutes and then left.

The next day, January 22, the victim’s friend, Joe Ann Stewart, learned

that the victim had not reported for work at her second job as a housekeeper

for an apartment complex. Ms. Stewart called the victim’s daughter, Twyla

King, and asked her to meet Ms. Stewart at the victim’s house. Ms. Stewart

also contacted the police. Two officers arrived and used Ms. King’s key to

enter the house, which showed no signs of forced entry. The officers observed

bags of groceries in the doorway of the kitchen. The lights were on in the

library and the kitchen, and the television was on in the den. However, the

victim’s bedroom at the back of the house was dark, and the door was closed.

When the officers entered the bedroom, they discovered the victim’s body

which was badly beaten about the head and lying face up on the floor.

Dr. O’Brien Cleary [O.C.] Smith, the Shelby County Medical Examiner,

testified that the trauma to the victim was entirely focused on her head. The

victim suffered at least thirteen blows to her head, most of them to her face.

She had numerous bruises and tears to the skin and fractures of the facial

bones. The injuries produced bruising of the brain, and some of the bone

fragments cut into the base of her brain. The victim’s facial bones were so

fragmented that Dr. Smith could not count the fractures or determine the

sequence of the blows. The victim’s upper denture plate had been split in half.

One piece was found on the floor; the other was still in her mouth. In addition,

after inhaling her own blood, the victim’s efforts to breathe caused a red frothy

foam to obstruct her airway. The victim also swallowed over a pint of blood.

Dr. Smith testified that the victim must have been alive, although not

necessarily conscious, to have swallowed that amount of blood.

Dr. Smith concluded that the cause of death was blunt trauma to the

head. He found no defensive injuries on the victim’s body or any evidence

that she had tried to escape the beating. Blood stains indicated that her head

had moved after the beating began but her arms had not. Based on

blood-splatter evidence indicating that the attack occurred while the victim

was lying on the floor, Dr. Smith opined that the victim had been stunned or

rendered unconscious by an initial blow or blows to the back of the head and

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may have felt nothing after she was first struck. Because the victim’s blood

had clotted before the end of the attack, Dr. Smith concluded that the beating

had lasted six minutes, the minimum time necessary for clotting.

The crime scene unit of the Memphis Police Department discovered

blood in the victim’s bedroom, in the foyer next to the bedroom, and in the

hallway running the entire length of the house. Blood was smeared on the

handles of two grocery bags, in the kitchen doorway, and on the inside and

outside knobs of the front door. Officers found a broken handle from a skillet

on the bed near the victim’s body. The rest of the skillet was never located.

The victim’s car was also missing and was discovered the day after the murder

near the residence of Faulkner’s sister. Blood stains were found inside the car.

On Sunday morning, January 24, Faulkner went to the fugitive office

of the Shelby County Sheriff’s Department and announced that he wanted to

turn himself in for killing his wife on Thursday. Faulkner was transferred to

Sergeant William Ashton of the Memphis Police Department. According to

Sergeant Ashton, Faulkner was “very calm and very rational” during the

interview. After informing Faulkner of his Fifth Amendment rights and

receiving a written waiver, Sergeant Ashton asked Faulkner if he went by any

other names. Faulkner replied, “Yes, Skillet.” He then grinned and said,

“That’s what I hit her with, too.” Faulkner stated that the incident occurred

around 12:00 to 12:30 a.m. on the night of January 21 and 22. He said that he

hit his wife with a frying pan and a metal horseshoe. Faulkner claimed that his

wife had called him at lunchtime on January 21 and asked him to meet her at

her house that evening. Faulkner described what happened:

My conversation with my wife was reconciling, and she had on

her mind divorce. She said she just wanted the divorce, and I

asked her why didn’t she just call me on the phone and tell me

that. I said, you didn’t have to make me walk all the way from

Shasta Street in the rain just to tell me you wanted a divorce. I

sat back down on the bed and explained to her that I had enough

problems already over my head and had to bury my brother on

Monday. Everything I’ve tried to do since being out has just

collapsed. I’ve lost my job, I’ve lost my wife, I was subject to

being sent back to the penitentiary because I can’t be without a

job for 30 days. And you called me back here to discuss a

divorce, and I only came to reconcile and ask we set aside our

differences and go to my brother’s funeral together. And she

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responded she was going, but she wasn’t going with me.

***

So as we were finishing our conversation that was turning into

an argument, I proceeded to walk from her bedroom to the front

door as I was leaving. She walked behind me and asked me not

to come back while I was standing in the hallway and everything

just exploded. And I pushed her back off me and grabbed the

two items that I seen, and I struck her repeatedly across the

head.

Faulkner estimated that he struck his wife between seven and eight

times. He acknowledged that the victim fell to the floor after the second blow

and that he continued to hit her while she was on the floor. After the attack,

Faulkner put the murder weapons in a bag and drove away in the victim’s car.

He threw the murder weapons and his bloody clothes into a flooded viaduct

and then parked the car where it was later found. He slept in empty houses

instead of returning to his grandmother’s house. Faulkner concluded his

statement by professing, “I loved my wife with all my heart. I never meant to

take her life. Everything that I had ever tried to do right turned out wrong.

Under all the pressure, stress and strain, I made a wrong decision. I only like

to say that I'm sorry.” Faulkner requested that he be placed on suicide watch

in jail.

Faulkner’s proof at the guilt phase consisted in part of testimony

showing that the security guard who had escorted the victim from the grocery

store to her car did not know Faulkner as the guard had claimed and that the

guard had been fired for carrying an unauthorized weapon. Evidence was

introduced that Faulkner had lost his job on January 3 and that Jimmy Osby,

a close friend whom Faulkner called his “brother,” had committed suicide on

January 21. A Shelby County jailer testified that Faulkner was placed on

suicide precaution on January 24.

Based upon the above evidence, the jury convicted Faulkner of first

degree premeditated murder. A sentencing hearing was conducted to

determine punishment.

At the penalty phase, the State presented proof that in March 1976

Faulkner was convicted of assault with intent to commit first degree murder,

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assault with intent to commit robbery, and assault with intent to commit

voluntary manslaughter. Evidence also showed that Faulkner was convicted

of four robberies in September 1984 and second degree murder in October

1984.

Paulette Sutton, a forensic serologist and blood-stain expert, testified

that based on her analysis of blood-stain patterns, the victim had collapsed

fairly quickly but that the attack continued for six minutes. Sutton theorized

that the victim’s arms had not moved because Faulkner was straddling her

during part of the assault, not because she was unconscious.

The final witness for the State was the victim’s daughter, Twyla King.

Ms. King testified that she had two brothers: Musenda Spencer, age

twenty-one, and Jamil Spencer, age seventeen. Musenda was a freshman in

college at the time of the murder. Because of the loss of his mother’s financial

support, Musenda now had to work while attending school. Jamil had

“problems” and was incarcerated at the time of the murder. Taking custody

of her younger brother affected Ms. King emotionally and financially. Ms.

King testified that she and her husband had three daughters. The oldest

daughter had been very close to her grandmother, suffered emotionally

because of the murder, and was in counseling at the time of the trial. Ms. King

concluded by stating that she missed her mother’s emotional support.

In mitigation, the defense presented two witnesses. The first witness

was Dr. Fred Steinberg, a forensic and clinical psychologist who had

interviewed and tested Faulkner for twelve hours. Dr. Steinberg opined that

Faulkner was not malingering. Dr. Steinberg testified that Faulkner had

experienced a very rough childhood. He was neglected and abused. Both his

parents were alcoholics, and one of them abused drugs. Faulkner lived with

foster parents at times. Dr. Steinberg testified that Faulkner suffered from

chronic substance abuse. According to Dr. Steinberg, on the night of the

murder Faulkner’s predisposition toward impulsive behavior was made

significantly worse by a number of stressors: his attempt to establish himself

outside of prison, his difficult relationship with his wife, the loss of his job in

early January, his grandmother’s hospitalization in early January due to

Alzheimer’s disease, his friend’s suicide the day before the murder, and his

frequent use of cocaine. Dr. Steinberg defined “stressor” as a life change that

impacts an individual and has an effect upon his psychological and

physiological condition. Dr. Steinberg stated that Faulkner had the ability to

form intent but that he could not suppress his emotions and that his ability to

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“cap” his behavior was diminished. Conceding that Faulkner had no mental

disease or defect and was sane and competent, Dr. Steinberg diagnosed him as

having mixed personality features and exhibiting paranoid thinking typical of

cocaine usage. On cross-examination, the State elicited information

concerning Faulkner’s record of fighting with fellow inmates, possessing

weapons, and threatening officers while incarcerated.

The second witness was Patricia McNealy, a counselor at an alcohol

and chemical abuse center, who had worked with Faulkner beginning in

November 1998 when he tested positive for cocaine while on parole. McNealy

testified that Faulkner attended classes twice a week. She had noticed the

stress in his life and observed that Faulkner began using cocaine again after

losing his job in early January 1999. Around January 20, Faulkner called

McNealy to tell her that he would not attend his next group session because his

“brother” had committed suicide. Faulkner admitted during the call to

McNealy that he had been using cocaine.

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

statutory aggravating circumstance that the “defendant was previously

convicted of one (1) or more felonies, other than the present charge, whose

statutory elements involve the use of violence to the person.” Tenn. Code

Ann. § 39-13-204(i)(2) (1997).1 The jury further found that the State had

proven beyond a reasonable doubt that the statutory aggravating circumstance

outweighed any mitigating circumstances. As a result, the jury sentenced

Faulkner to death for the murder of Shirley Faulkner.

Faulkner, 154 S.W.3d at 52-56.

B. Post-Conviction Evidence

1. Petitioner’s Proof

Lead Counsel testified that at the time of the post-conviction hearing, he had been

practicing law for almost forty-three years. When he represented the Petitioner, half of his

practice was devoted to criminal defense, and the other half was civil in nature. Lead

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The State also relied on the aggravating circumstance that the murder was especially heinous,

atrocious, or cruel in that it involved torture. See Tenn. Code Ann. § 39-13-204(i)(5) (1997). However, the

jury did not find that aggravating circumstance.

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Counsel had tried multiple capital cases before representing the Petitioner. He was retained

to represent the Petitioner and thought he received only $500 for his work. He had

represented members of the Petitioner’s extended family for some time but was unsure

whether he had represented the Petitioner previously. Lead Counsel was contacted by

Glenda Williams or Eddie Parker to represent the Petitioner. He said his goal was to

negotiate a guilty plea for second degree murder or manslaughter.

Lead Counsel testified that he waived the preliminary hearing in general sessions

court. He thought the State only intended to present the testimony of Sergeant William

Ashton, the officer who took the Petitioner’s statement. Lead Counsel said that in Shelby

County, the State would not provide discovery before a preliminary hearing but probably

would provide a defendant’s statement if the defendant waived the hearing. Lead Counsel

assumed the State provided him with the Petitioner’s statement as a result of his waiving the

preliminary hearing. Lead Counsel later filed a motion for discovery and received discovery

from the State. As a general rule, the prosecution only provided defense counsel with the

information that the prosecution deemed to be discoverable. Lead Counsel did not recall the

prosecutor’s giving him a file and telling him to copy whatever he wanted.

Lead Counsel testified that when he signed the court jacket as counsel for the

Petitioner, he received a copy of the affidavit of complaint dated January 26, 1999, charging

the Petitioner with first degree murder. He never saw an affidavit of complaint dated January

25, 1999, charging the Petitioner with second degree murder. Lead Counsel also never saw

a document reflecting a meeting between Assistant Attorney General Ken Roach and

Sergeant Ashton. According to the document, General Roach requested to see the

Petitioner’s criminal record before determining what offense with which to charge him.

General Roach reviewed the Petitioner’s criminal record and determined the offense with

which the Petitioner should be charged. Lead Counsel said he never saw a document

reflecting a later meeting between Assistant District Attorney General Jerry Harris and

Sergeant Ashton in which General Harris stated he thought the Petitioner should be charged

with first degree murder.

Lead Counsel testified that he was unaware before trial that the Petitioner initially was

charged with second degree murder. He acknowledged that the general sessions criminal

information system report included both the charges for second degree murder and first

degree murder. The report also provided that the date for the video arraignment for the

second degree murder charge was January 26, 1999, and that the date for the video

arraignment for the first degree murder charge was January 27, 1999. Lead Counsel did not

think he was present for the arraignments because he had not yet been retained. He said he

was retained between February 3 and February 17, 1999.

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Lead Counsel testified that he did not know why he did not receive the affidavit of

complaint regarding the second degree murder charge. He said that after an attorney signed

the court jacket as representing a defendant, the attorney could obtain the affidavit of

complaint. Lead Counsel said he may not have signed the court jacket for the second degree

murder charge. Regardless, Lead Counsel thought the State should have provided the

affidavit of complaint charging second degree murder in discovery.

Lead Counsel testified that he could not determine whether the initial affidavit of

complaint charging the Petitioner with second degree murder would have been useful had

the State provided it to him. The affidavit charging second degree murder stated that the

Petitioner went to the victim’s home, that they argued, and that the Petitioner attacked the

victim. The affidavit of complaint charging first degree murder did not suggest that an

altercation occurred before the attack. Lead Counsel acknowledged that the difference could

have been significant in cross-examining Sergeant Ashton. He also acknowledged that the

affidavit of complaint for second degree murder tended to support the Petitioner’s statement

to police that he went to the victim’s home to talk with her, that they were involved in an

altercation, and that he lost control. Lead Counsel could have used the affidavit of complaint

to challenge the prosecutor’s closing argument in which he stated that the Petitioner’s version

of the crime was “phony baloney.”

Lead Counsel testified that he did not have any notes of his interviews with the

Petitioner. He said he generally did not make notes of any meetings with clients or

witnesses. He preferred not to have any notes in case the State requested them at trial as

prior statements.

Lead Counsel testified that at some point, the Petitioner told him that the Petitioner

had been using drugs and alcohol during and after the offense. Lead Counsel did not attempt

to obtain a blood or urine sample from the Petitioner for testing because approximately three

weeks had passed between the victim’s death and Lead Counsel’s being retained to represent

the Petitioner. By that time, cocaine and alcohol likely would not have been in the

Petitioner’s system. Lead Counsel acknowledged that marijuana possibly could have

remained in the Petitioner’s system if the Petitioner had smoked it just before his arrest. He

did not recall the Petitioner’s informing him of the drug and alcohol use until some months

after the preliminary hearing.

Lead Counsel testified that he did not interview Sergeant Ashton before trial. He

generally did not interview police officers. He acknowledged that if he had not waived the

preliminary hearing and Sergeant Ashton had testified, he could have learned more

information about the charges. Lead Counsel said he may not have learned any additional

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information because Sergeant Ashton likely would have testified only about the Petitioner’s

statement. Lead Counsel stated that in Shelby County, preliminary hearings generally were

“ cut . . . pretty short.” He acknowledged that he would have been able to question Sergeant

Ashton about the second degree murder charge if he had been aware of it.

Lead Counsel testified that Judge Joseph Dailey appointed Co-Counsel while he

remained as lead counsel. Because the Petitioner was indigent, Lead Counsel secured the

services of Clark Chapman and Glori Shettles as investigators by court order. Ms. Shettles

worked for Inquisitor, Incorporated, and Mr. Chapman owned his own investigation firm.

Lead Counsel identified an order entered on June 28, 2000, approving Ms. Shettles’s

services. Inquisitor requested $18,000 or $65.00 per hour to perform the mitigation

investigation, and the trial court approved initial funds of $5,000. Lead Counsel also retained

Dr. Fred Steinberg, a psychologist.

Lead Counsel testified that he filed a motion for Judge Dailey to recuse himself

because Judge Dailey had prosecuted the Petitioner previously. Judge Dailey granted the

motion, and Judge Chris Craft became the trial judge. Lead Counsel said that he requested

funds for the services of Dr. Diane McCoy, a clinical psychologist in Knoxville, Tennessee.

Lead Counsel wanted Dr. McCoy to assist in the mitigation aspect of the Petitioner’s case.

In her affidavit, Dr. McCoy requested up to $30,000 and listed the tasks she believed she

needed to develop mitigation effectively. Lead Counsel said her services would have been

in addition to the services of Dr. Steinberg. However, Judge Craft denied the request.

Lead Counsel testified that he had known Mr. Chapman for some time and that their

offices were located on the same floor. They met “a couple of times” each week to discuss

the Petitioner’s case. Lead Counsel kept a refrigerator containing sodas in his office, and Mr.

Chapman would stop by for a soda and update him on developments in the Petitioner’s case.

Mr. Chapman regularly updated him on the Petitioner’s case in an informal way. Mr.

Chapman also prepared memoranda regarding his investigation.

Lead Counsel testified that he did not know whether he, Co-Counsel, Ms. Shettles,

and Mr. Chapman ever met together as a group. Lead Counsel and Co-Counsel met with Mr.

Chapman. Ms. Shettles was conducting the mitigation investigation, and Lead Counsel knew

that she and Mr. Chapman discussed the case. Ms. Shettles gathered background information

on the Petitioner and sent reports to Lead Counsel and Dr. Steinberg. Lead Counsel thought

Ms. Shettles came to his office for a meeting.

Lead Counsel testified that on November 28, 2000, Ms. Shettles sent trial counsel a

letter stating that the funds approved by the trial court had been depleted. Ms. Shettles also

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sent trial counsel a letter dated January 30, 2001, stating that she thought they had completed

their work because she no longer had any funds. Lead Counsel thought he obtained

additional funds for Ms. Shettles beyond the initial $5,000 approved by the trial court but did

not recall the additional amount. Lead Counsel acknowledged that a few days after the

Petitioner’s trial, Ms. Shettles sent a letter to trial counsel in which she stated that she

assumed they had requested additional funds for her.

Lead Counsel testified that Dr. Steinberg assisted trial counsel with preparing

evidence of diminished capacity and mitigation. Lead Counsel said they were trying to show

diminished capacity such that the Petitioner was unable to form the intent to commit murder.

In his statement to police, the Petitioner had said he killed the victim. Therefore, his defense

was based upon his mental state and whether he was capable of premeditation. Lead Counsel

noted that around the time of the offense, the Petitioner had used cocaine and was under

stress. Moreover, the Petitioner’s best friend had committed suicide, and his grandmother

was ill or had just died. The Petitioner had lost his job at the Cook Convention Center, and

he had marital problems. Lead Counsel said the combination of the Petitioner’s drug use and

the stress factors caused him to “snap.” Lead Counsel said that in addition to evidence of

diminished capacity, an intoxication defense possibly existed. Trial counsel presented

testimony from Patricia McNeely, a counselor who was helping the Petitioner at an

alcohol/drug center.

Lead Counsel testified that Ms. Shettles recommended Dr. Steinberg to trial counsel.

The trial court signed the order approving funds to retain Dr. Steinberg on November 5,

2000, shortly before the trial was to begin. The trial was continued, and Lead Counsel said

the continuance could have been the result of his failure to provide Dr. Steinberg’s report to

the State in a timely fashion. Lead Counsel did not recall when he first met with Dr.

Steinberg, but they met in his office. There, they discussed the standard for diminished

capacity, and he told Dr. Steinberg what the defense needed in order to present such

evidence. Dr. Steinberg had information about the Petitioner before the meeting.

Lead Counsel recalled that Dr. Steinberg testified at trial that he could not conclude

the Petitioner had a mental disease or defect. The trial court ruled that Dr. Steinberg’s

testimony did not meet the standard for admissibility of diminished capacity evidence. Lead

Counsel said that he had reviewed Dr. Steinberg’s report with him before trial and that he

knew Dr. Steinberg did not find a mental disease or defect. Nevertheless, Lead Counsel tried

to introduce evidence of diminished capacity despite Dr. Steinberg’s findings. He did not

recall any discussion about retaining a psychiatrist in an attempt to find a mental disease or

defect. Rather, Lead Counsel relied entirely upon Dr. Steinberg, stating that Dr. Steinberg

“was my expert. He would have superior knowledge than me.” Lead Counsel did not know

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whether he was aware at the time of the Petitioner’s case that psychological testing might not

detect mental diseases or defects.

Lead Counsel testified that he reviewed the social history prepared by Ms. Shettles.

He acknowledged that Ms. Shettles discussed the issue of fetal alcohol syndrome in her

report. Lead Counsel said that he was aware of fetal alcohol syndrome at the time of the

Petitioner’s case but that he relied upon Dr. Steinberg’s expertise in evaluating the Petitioner.

Lead Counsel later testified that he did not know whether he was aware of fetal alcohol

syndrome or fetal alcohol spectrum disorder before he represented the Petitioner. He said

that, regardless, Dr. Steinberg evaluated the Petitioner and did not mention fetal alcohol

spectrum disorder in his report. Lead Counsel did not recall anyone in the Petitioner’s family

having a serious drinking problem.

Lead Counsel testified that he was certain Dr. Steinberg received a copy of Ms.

Shettles’s report. Lead Counsel said he spoke to Dr. Steinberg “quite a bit before trial” but

did not recall whether they discussed any fetal alcohol issues. Lead Counsel also said,

“Apparently he didn’t find it or he would have said something to us about it.” Lead Counsel

did not know whether fetal alcohol syndrome could be diagnosed by a psychologist. He did

not recall discussing using a neuropsychologist or Dr. Steinberg suggesting a

neuropsychologist. Lead Counsel said he was “roughly” aware that a difference between a

clinical psychologist and a neuropsychologist existed. He also was aware of the difference

between a psychologist and a psychiatrist.

Lead Counsel testified that Dr. Steinberg’s report was dated November 12, 2000, and

that Dr. Steinberg visited the Petitioner in jail on November 7, 8, and 10, 2000. Lead

Counsel thought Dr. Steinberg began working on the case before the trial court entered an

order approving funds. Lead counsel said that although trial counsel discussed Dr.

Steinberg’s findings with him before he drafted his report, he did not provide trial counsel

with the report until shortly before the trial was scheduled to begin in November 2000. Trial

counsel did not provide Dr. Steinberg’s report to the State until after the jury was selected

but before it was sworn. The Petitioner’s trial was continued from November 2000 to March

2001.

Lead Counsel testified that he researched case law regarding diminished capacity and

filed a defense plea of diminished capacity. He explained that he filed the plea to preserve

the issue for appellate review. Lead Counsel said Dr. Steinberg attempted to help trial

counsel present evidence of diminished capacity. Lead Counsel did not know how far in

advance of the March trial that he knew a mental disease or defect was required but spoke

with Dr. Steinberg many times before and during the trial regarding the requirement. He

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thought he gave Dr. Steinberg copies of case law addressing diminished capacity and said

Dr. Steinberg tried to find a defect that would qualify.

Lead Counsel testified that he and Co-Counsel spoke often before trial. They also

spoke often with Dr. Steinberg. Lead Counsel had Ms. Shettles’s reports, and Ms. Shettles

provided them with the names of witnesses she thought should testify. Lead Counsel did not

know whether he filed a notice of his intent to present psychological testimony during the

penalty phase.

Lead Counsel testified that he relied upon diminished capacity in an attempt to obtain

a conviction for a lesser offense. He thought that the Petitioner should have been convicted

of a lesser offense but that they were “saddled with some bad facts.” Lead Counsel did not

think that trial counsel “panicked” when the trial court refused to allow them to present Dr.

Steinberg’s testimony. Rather, he thought the trial court’s ruling was wrong. Lead Counsel

raised the issue in the motion for new trial as a violation of the Petitioner’s right to present

a defense.

Lead Counsel testified that after he learned Dr. Steinberg did not find a mental disease

or defect, he may have contacted other attorneys involved in capital litigation for any

suggestions. He consulted with other criminal defense attorneys regularly. He did not know

whether he consulted any attorneys outside of Memphis. Lead Counsel acknowledged that

he received a letter from attorney David Keefe on April 27, 2001, approximately six weeks

after the Petitioner’s trial. However, he did not know if he communicated with Mr. Keefe

prior to that date.

Lead Counsel acknowledged that according to Dr. Steinberg’s report, the Petitioner

received a critically abnormal score on the Luria-Nebraska Screening test. The report noted

that the Petitioner’s score on the Booklet Category Test showed that he manifested difficulty

in abstraction, reasoning, and logical analysis. The report also stated that the Petitioner had

difficulty shifting problem-solving strategies when confronted with changing circumstances.

Lead Counsel said the Petitioner’s statement about the offense could have demonstrated a

shift in problem-solving strategy and a change of circumstances. Lead Counsel also said the

Petitioner may have demonstrated reasoning and logical difficulties when the Petitioner

thought he and the victim were going to reconcile and she told him that she wanted a divorce

instead.

Lead Counsel testified that he did not recall seeking any experts to establish that some

of the blood found in the victim’s house belonged to the Petitioner. He recalled reviewing

some documents indicating that the Petitioner was cut during an argument with the victim

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a few days before her death. He did not recall searching for an expert to challenge the

testimony of Dr. O.C. Smith or Paulette Sutton. Lead Counsel was taken by surprise with

Ms. Sutton’s testimony regarding the blood spatter. He recalled stating at trial that he had

not seen a report from her. He did not know whether the defense interviewed Dr. Smith and

Ms. Sutton before trial.

Lead Counsel testified that the victim had been working at a Piggly Wiggly on the day

of her death. He did not recall seeing a photograph of the bedroom where the victim was

found that depicted her work apron and two receipts from Piggly Wiggly on her bed. Lead

Counsel said jurors might have disagreed as to whether the apron had been neatly placed or

just thrown on the bed. He noted that the victim was found lying at the foot of the bed and

that the attack occurred in the hallway. The State’s theory was that the Petitioner was in the

house when the victim returned. Lead Counsel said he may not have wanted to dwell upon

the evidence found in the bedroom because the crime scene officers also found the skillet

handle in the bedroom.

Lead Counsel testified that he did not recall an issue regarding the victim’s moving

her hands and the time of consciousness. Dr. Smith was questioned regarding whether the

victim died immediately or suffered. Lead Counsel thought Dr. Smith’s answer was helpful

to the defense. He did not know whether he would have wanted to present evidence that

someone might have moved the victim’s hands while checking her pulse.

Lead Counsel testified that he did not recall the Petitioner’s filing a complaint against

him with the Board of Professional Responsibility. He identified a response that he sent to

the Board addressing the reasons he did not present certain witnesses at trial. Trial counsel

subpoenaed a warden who would have testified that the Petitioner won a prison essay award.

Lead Counsel said the warden did not want to testify and informed Lead Counsel that he

would say the Petitioner was a violent person. Lead Counsel discussed the matter with the

Petitioner, and the Petitioner agreed that the warden should not testify. Lead Counsel was

unable to locate Ms. Nesbitt of the Tennessee Department of Correction (TDOC) Probation

and Parole Division. He did not recall Ms. Shettles’s stating that the Petitioner’s probation

and parole records should be certified so that counsel could introduce them.

Lead Counsel testified that the State erred in its wording of the notice that it was

seeking the death penalty against the Petitioner. The State attempted to correct the notice but

failed to do so. Lead Counsel said he had wanted to wait until the trial began to argue that

the State’s notice was improper. However, a few days before trial, Co-Counsel went to the

trial court regarding the matter. Judge Craft called the prosecutors and allowed them to

amend their notice. Lead Counsel stated he might not have learned about the amended notice

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until the day of trial. He did not think that he saw anything from the State indicating that

Judge Craft had assisted the State with correcting the notice.

Lead Counsel testified that the Petitioner had been known as “Skillet” since his youth.

The Petitioner told the police that he hit the victim with a skillet. Lead Counsel did not file

a motion in limine to prevent any reference to the Petitioner as “Skillet.” Instead, he

challenged the evidence in a motion to suppress and made an oral objection at trial. Lead

Counsel testified that he did not recall evidence presented establishing that the Petitioner had

assaulted the victim during an argument on January 18, 1999, a few days before her death.

He also did not recall whether the trial court offered a limiting instruction pursuant to Rule

404(b), Tennessee Rules of Evidence. Lead Counsel did not recall Mr. Chapman providing

him with a recording of a 911 call by the victim on January 18, 1999, reporting that the

Petitioner had stabbed himself and needed an ambulance.

Lead Counsel testified that he thought he subpoenaed Glenda Williams, the

Petitioner’s cousin, and that she attended the trial. Ms. Williams and her son, Eddie Parker,

had approached Lead Counsel about representing the Petitioner. Lead Counsel had

previously represented Ms. Williams and Mr. Parker in their respective divorces. Lead

Counsel did not recall Ms. Williams telling him that the Petitioner called her several times

on the day of the victim’s death and told her that he was having difficulty thinking. He said

Ms. Williams never told him that she was with the Petitioner after he killed the victim but

before he turned himself in to the police or that the Petitioner was using drugs and alcohol.

Rather, Lead Counsel said Ms. Williams told him that she did not want to testify.

Lead Counsel testified that he attempted to portray the Petitioner in as positive a light

as possible. The defense presented evidence that the Petitioner attempted to turn himself in

to the police but was turned away and instructed to return the following day. Lead Counsel

did not know why he did not obtain a transcript of the suppression hearing before trial.

On cross-examination, Lead Counsel testified that upon receiving completed

questionnaires from potential jurors, he read each questionnaire and made index cards for

each potential juror, grading the juror as good or bad for the defense. In the Petitioner’s

complaint to the Board, the Petitioner alleged that Lead Counsel should have presented at

trial the testimony of the prison warden. The warden could have been the warden at the

facility where the Petitioner served a prior sentence. According to Lead Counsel, the warden

did not want to testify and claimed he would have to testify that the Petitioner was violent

in the facility. As a result, Lead Counsel did not want to present him as a witness and

discussed the matter with the Petitioner. Lead Counsel said he and Co-Counsel made a “trial

decision judgment call” against calling the warden as a witness. Lead Counsel could not

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locate Ms. Nesbitt to serve her with a subpoena because she was no longer employed by the

Department of Probation and Parole.

Lead Counsel testified that the Petitioner also complained to the Board that Dr.

Steinberg and Ms. McNeely were not allowed to testify during the guilt phase. Lead Counsel

attempted to present their testimony in the guilt phase, but the trial court excluded it. Both

witnesses testified during the penalty phase.

Lead Counsel testified that he had retained Mr. Chapman as an investigator in other

criminal cases. Mr. Chapman knew how to conduct the investigation, and trial counsel

requested that he conduct a follow-up investigation on other matters. Lead Counsel provided

Mr. Chapman with a copy of discovery. Mr. Chapman either provided trial counsel with

written memoranda or updated them verbally. They had ongoing conversations up to and

through the trial. Lead Counsel did not have to direct Ms. Shettles because she knew what

to do, and he relied on her to identify experts. Lead Counsel said Ms. Shettles provided him

with Dr. Steinberg’s name; Lead Counsel did not know Dr. Steinberg before working with

him on the Petitioner’s case. Lead Counsel provided Dr. Steinberg with all the information

he requested and met with him.

Lead Counsel testified that Dr. Steinberg mentioned potential alcohol abuse by the

Petitioner’s mother in his report. Dr. Steinberg, however, focused on other issues. Lead

Counsel was certain that if Dr. Steinberg had thought additional testing was needed, he

would have told counsel. Dr. Steinberg never told counsel that additional experts should be

retained. Lead Counsel continued to have discussions with Dr. Steinberg after Dr. Steinberg

generated his report, and they discussed the issue of mental disease or defect. Dr. Steinberg

attempted to establish diminished capacity and was upset that he could not do so.

Lead Counsel testified that he presented Dr. Steinberg’s testimony in mitigation. Dr.

Steinberg testified about the Petitioner’s cocaine abuse and the stressors that he was

experiencing, including his failing marriage. The Petitioner’s friend had committed suicide,

and the Petitioner had employment and financial issues. Lead Counsel recalled that both Dr.

Steinberg and Ms. Shettles provided him with those issues to present. Lead Counsel also

presented testimony from Ms. McNeely regarding the Petitioner’s drug treatment and

requested certain jury instructions regarding mitigation. The defense received information

from the Petitioner’s family members, and the Petitioner cooperated with trial counsel, Dr.

Steinberg, and Ms. Shettles.

Lead Counsel testified that the defense strategy at the guilt phase was that the

Petitioner’s capacity was diminished and that the State should not have charged him with first

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degree murder. They also tried to show that the homicide was spontaneous and a crime of

passion. The mitigation strategy was that the Petitioner reacted without thinking, had been

using cocaine, and had been subject to multiple stress factors.

On redirect examination, Lead Counsel testified that Ms. Shettles interviewed Warden

Warren Douglas and provided Lead Counsel with a memorandum summarizing the

interview. The memorandum stated that the warden had described the Petitioner as a good

inmate who had taken responsibility for his past crimes. The memorandum also stated that

the warden had agreed to testify on the Petitioner’s behalf. Lead Counsel said the warden’s

testimony was relevant to the Petitioner’s past behavior in prison and his belief that the

Petitioner would not pose a threat to anyone in the prison system. Lead Counsel said the

warden later called and said it would not be in the defense’s best interest to present him as

a witness because he would testify that the Petitioner had been a violent person. Lead

Counsel said he would have had difficulty impeaching his own witness, particularly in front

of a jury. He was certain that he told the warden what he wanted from the warden’s

testimony. Lead Counsel acknowledged that the jury was going to think that the Petitioner

might be a violent person when it learned of his past record, but Lead Counsel “didn’t need

to add any more fuel to the fire.” Lead Counsel thought the essay award would reflect

favorably on the Petitioner. Warden Douglas thought the Petitioner’s essay no longer

existed.

Lead Counsel testified that trial counsel may have attempted to secure additional

funds for Ms. Shettles but that the trial judge was not willing to grant additional funds. He

said that rather than filing a motion, trial counsel may have approached the judge and asked

whether he would grant additional funds.

Lead Counsel testified that if Dr. Steinberg had thought the use of alcohol by the

Petitioner’s mother was vital evidence, he would have advised trial counsel to consult other

experts. Lead Counsel did not recall whether he was aware at the time of the trial that Dr.

Smith was going to testify that blood clotted within five to six minutes. He did not retain any

experts to challenge that testimony.

On recross examination, Lead Counsel acknowledged that according to Dr.

Steinberg’s report, the Petitioner yielded a critically abnormal score on the Luria-Nebraska

screening testing that “typically [was] marginally indicative of brain damage and [needed]

further neuropsychological testing.” However, the next sentence in the report stated,

“However, upon closer inspection his difficulties noted above in math were largely

responsible for this marginal score. Therefore, the results on this test are seen as being

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consistent with his above mentioned intellectual functioning.” Lead Counsel acknowledged

that that sentence meant the abnormal score was not as significant.

Co-Counsel testified that he became licensed to practice law in 1993 and that Judge

Dailey appointed him to this case on October 11, 1999. Prior to the appointment, Judge

Dailey questioned him regarding his background and experience. Co-Counsel had recently

been certified to serve as second chair in capital cases and had represented defendants in ten

to fifteen jury trials, including one first degree murder case. However, this was his first

capital trial.

Co-Counsel testified that he met with the Petitioner on a number of occasions before

trial and took notes of their meetings. Lead Counsel met with the Petitioner’s family because

he was familiar with them. Co-Counsel said he mentioned to Lead Counsel about filing a

motion in limine to exclude evidence of the Petitioner’s nickname, but the motion was not

filed.

Co-Counsel testified that he and Lead Counsel had informal meetings in which they

discussed the case and divided out responsibilities. They discussed ideas about the direction

of the case. Lead Counsel ultimately determined what tasks needed to be completed and who

should complete them. Co-Counsel was to approach Judge Dailey and request funds for

experts.

Co-Counsel testified that he did not draft a motion requesting funds for experts.

Rather, he met with Judge Dailey on multiple occasions and requested experts. Judge Dailey

denied any funds to retain Inquisitor, Incorporated. Judge Dailey thought Inquisitor

overcharged, and Co-Counsel “got the sense he didn’t like them.” Initially, Judge Dailey

only granted funds to retain Mr. Chapman. When the Petitioner’s case was transferred to

Judge Craft, Co-Counsel went to him and requested the same experts for whom Judge Dailey

had denied funds.

Co-Counsel testified that trial counsel were aware of issues regarding the Petitioner’s

current and past mental state. They wanted to retain a mental health expert and an expert

who would determine whether there were any issues as a result of the Petitioner’s childhood.

The trial court never granted funds to retain such an expert. Co-Counsel did not think he

filed a formal motion requesting the funds.

Co-Counsel testified that he prepared a motion requesting funds to retain Dr. Diane

McCoy, a psychologist, to address mitigation issues regarding the Petitioner’s childhood and

mental health issues. Co-Counsel acknowledged that according to Dr. McCoy’s affidavit,

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her services related to those of a mitigation specialist who would prepare a social history.

Co-Counsel explained that Ms. Shettles was not a psychologist and that the defense needed

a mental health expert to explain to the jury that the Petitioner’s past and present mental

health issues may have affected his behavior. Co-Counsel did not request a hearing on the

record regarding Dr. McCoy, and the trial court never approved funds to retain her. Co-

Counsel said, “We were just shot down by that.”

Co-Counsel acknowledged that other than the date on which he was appointed, he did

not include any other entries on his fee claim for 1999. He explained that trial counsel did

not perform many tasks in 1999 because the holidays were near, and they knew they had

some time to complete the tasks before trial. The next court date listed on Co-Counsel’s fee

claim was April 11, 2000, in which he had a conference with the trial court regarding his

request for funds to retain Dr. McCoy. Co-Counsel recalled having several conversations

with Judge Craft regarding Dr. McCoy.

Co-Counsel testified that Lead Counsel knew the Petitioner’s family and that Lead

Counsel told him the family had a history of drug and alcohol abuse existed. Lead Counsel

thought the Petitioner’s past history of incarceration, family, and current mental health issues

needed to be explored. Co-Counsel thought obtaining a social history was “vital.” The

purpose of the social history was to inform the jury that the events that occurred on the night

of the victim’s death should not be considered in a vacuum. Co-Counsel said the social

history prepared by Ms. Shettles showed that the Petitioner’s mother drank alcohol heavily

during pregnancy and throughout her life. Ms. Shettles noted the Petitioner’s low birth

weight and questioned whether it was the result of fetal alcohol syndrome. Ms. Shettles

discussed other indicators of fetal alcohol syndrome. Co-Counsel told Lead Counsel that an

expert in fetal alcohol syndrome was needed and requested funds from the trial court for such

an expert. Co-Counsel could not recall whether he filed a formal motion requesting the

funds.

Co-Counsel testified that fetal alcohol syndrome was a new issue being raised in

capital defenses. Initially, he requested funds from the trial court for an expert in fetal

alcohol-related illness. However, he never made the request in a formal motion. He said that

Dr. McCoy would have addressed those areas but that his request for funding was denied.

Co-Counsel contacted defense attorneys from Memphis for the names of experts in fetal

alcohol-related illness but did not contact any national or state-wide organizations.

Co-Counsel testified that the case was scheduled to go to trial in November 2000.

After the jury was selected, the trial was continued before the jury was sworn. The

continuance was due in part to trial counsel’s providing the State with a copy of Dr.

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Steinberg’s report the day after the jury was selected. Co-Counsel said they provided the

report to the State shortly after receiving it. The trial was continued until March 5, 2001.

Co-Counsel testified that he did not recall interacting with Ms. Shettles often. He

identified three letters from Ms. Shettles dated November 28, 2000; January 30, 2001; and

March 14, 2001. In the November and January letters, she said she had run out of funds. In

the January letter, she also asked whether trial counsel wanted her to complete any additional

tasks. In the March letter, Ms. Shettles requested that trial counsel have her fees approved

by the trial court. Co-Counsel noted that the January and March letters were addressed only

to Lead Counsel. He could not recall whether he had any interaction with Ms. Shettles

between November 2000 and March 2001.

Co-Counsel testified that his fee claim did not include any out-of-court hours between

November 14, 2000, and January 31, 2001. The next entry on his fee claim was February 28,

2001, when he interviewed Dr. O.C. Smith for two and one-half hours. Co-Counsel said he

was surprised by Ms. Sutton’s testimony. He said the information he had obtained from his

interviews with Dr. Smith and Ms. Sutton was completely different from their trial testimony.

Co-Counsel requested funds from the trial court to retain a forensic expert, but the court

denied the request. Co-Counsel did not file a formal motion for funds for a forensic expert.

Co-Counsel testified that he performed the majority of the work regarding the

diminished capacity issues. Trial counsel attempted to determine a way to present evidence

of diminished capacity despite Dr. Steinberg’s report. Co-Counsel acknowledged that the

task was difficult. Trial counsel wanted to question the jurors during voir dire regarding

diminished capacity, and they discussed the issue at trial. They attempted to present Dr.

Steinberg’s testimony during the guilt phase, but the trial court did not permit him to testify

because he could not find a mental disease or defect.

Co-Counsel testified that he had multiple meetings with Lead Counsel regarding Dr.

Steinberg’s failure to find a mental disease or defect. Co-Counsel recalled meeting with Dr.

Steinberg in Dr. Steinberg’s office either before or after receiving his report. Co-Counsel

said that diminished capacity was a primary issue and that Dr. Steinberg’s report “caught us

off guard.” Neuropsychological testing was discussed with Dr. Steinberg during the meeting,

but Co-Counsel did not recall the outcome of the discussion. He said Lead Counsel was

responsible for interacting with Dr. Steinberg. Co-Counsel thought the Petitioner had mental

health issues, and Co-Counsel wanted to retain as many mental health experts as possible.

Trial counsel discussed presenting an intoxication defense and attempted to argue that the

Petitioner’s drug and alcohol addictions were mental illnesses. Co-Counsel acknowledged

that according to a police department “law incident table,” an officer had suspected the

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Petitioner of using alcohol at the time of the offense. Co-Counsel also acknowledged that

the table could have been valuable in his cross-examination of the State’s witnesses.

Co-Counsel testified that he had contact with Mr. Chapman and was aware that Mr.

Chapman had located a woman with whom the Petitioner had reported using drugs before

the victim’s death. Trial counsel did not issue a subpoena for her. Mr. Chapman informed

trial counsel that the woman’s drug problems were so serious that she might not be a credible

witness. Co-Counsel thought Mr. Chapman may have had problems locating her near the

time of trial. Co-Counsel wanted to present the woman as a witness, but Lead Counsel

decided not to do so.

Co-Counsel testified that he decided the Petitioner should not testify at trial. Co-

Counsel and the Petitioner discussed in detail the possibility of the Petitioner’s testifying.

Co-Counsel recalled that when the Petitioner testified at the suppression hearing, he was

“totally confused” and did not testify well on cross-examination. One of the considerations

in Co-Counsel’s decision not to present the Petitioner as a witness at trial was that the

Petitioner had testified so poorly during the suppression hearing.

Co-Counsel testified that before trial he obtained the affidavit of complaint charging

the Petitioner with first degree murder. He never saw the affidavit of complaint charging

second degree murder. Co-Counsel said the affidavit of complaint charging second degree

murder would have been helpful at trial because the entire focus of the defense was to

explain to the jury exactly what had occurred. He said the affidavit also would have been

helpful during his cross-examination of Sergeant Ashton. Co-Counsel could not say what

he would have done if the affidavit had been provided to him. He said the events listed were

essentially his closing argument, which the prosecutor referred to as “a bunch of hocus pocus

or whatever words he used.”

Post-Conviction Counsel showed Co-Counsel two documents reflecting meetings

between an officer and two assistant district attorneys general. Co-Counsel acknowledged

that according to one of the documents, General Roach had accepted the Petitioner’s claim

that the victim’s death was the result of a domestic disturbance that got out of control. Co-

Counsel noted that according to the document, General Roach had examined the Petitioner’s

criminal record before authorizing the charge of second degree murder. Co-counsel said that

if he had had the document at trial, his cross-examination of Sergeant Ashton would have

been “totally different.”

Co-Counsel acknowledged that during the pretrial suppression hearing, he conducted

Sergeant Ashton’s cross-examination and the Petitioner’s direct examination. Co-Counsel

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also acknowledged that he attempted to impeach Sergeant Ashton’s trial testimony with his

suppression hearing testimony. However, Co-Counsel had “numerous problems with that”

because he did not have the suppression hearing transcript. He did not recall a reason for not

obtaining the transcript before trial.

Co-Counsel testified that three days before the trial was set to begin, he approached

Judge Craft to determine whether the trial was going forward as a death penalty case because

the death notice was improper. Co-Counsel had told Lead Counsel that he planned to

approach the trial court about the issue. He said that if Lead Counsel had told him not to

approach the trial court, he would not have done so. Co-Counsel said Judge Craft informed

the prosecutors about the improper notice and instructed them on how to draft the notice

properly. Co-Counsel did not consider filing a motion for Judge Craft to recuse himself.

Co-Counsel testified that trial counsel did not file a motion arguing that the death

penalty was unconstitutional under the First Amendment. The motion was filed in a different

case, and trial counsel decided to wait for that result before filing the motion in this case. The

motion was denied in the previous case, so Lead Counsel decided not to file the motion in

the Petitioner’s case.

On cross-examination, Co-Counsel testified that he did not know which officer

entered the information in the law incident table regarding the suspicion about the

Petitioner’s using alcohol. He acknowledged that the statement had to be admissible in order

for him to question a witness about it. He also acknowledged that if he had discovered that

Sergeant Ashton did not make the entry in the table, he could not have used the statement to

impeach the officer’s testimony.

Co-Counsel testified that he and Lead Counsel made a list of experts they wanted to

retain and discussed the list. Co-Counsel said they needed an investigator, a mental health

expert to assess the Petitioner’s present-day mental health issues, an expert to review his

childhood issues resulting from drug and alcohol abuse, a forensic expert, and a jury

consultant. He also thought they needed a psychological expert to educate the jury about

how a person who had spent the majority of his or her life incarcerated would react to the

outside world. Co-Counsel approached Judge Dailey and requested funds for the experts.

Judge Dailey denied his request for funds to retain Inquisitor but granted his request for

funds to retain Mr. Chapman. When Judge Craft became the trial judge in the case, Co-

Counsel approached him with the same list of experts. Judge Craft granted the request for

funds to retain Ms. Shettles to conduct the mitigation investigation but denied the request for

funds to retain Dr. McCoy, a forensic pathologist, and a jury consultant.

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Co-Counsel testified that he thought Lead Counsel suggested Dr. Steinberg. Co-

Counsel said they expected Dr. Steinberg to conclude that the Petitioner had a mental health

disease and that they were going to use the diagnosis to establish diminished capacity. Dr.

Steinberg, however, did not find any mental illness. Co-Counsel did not recall Dr.

Steinberg’s ever stating that he would change his opinion.

Co-Counsel testified that according to Dr. Steinberg’s report, Dr. Steinberg considered

the Petitioner’s statement, jail records, mental records, school records, juvenile court records,

parole records, employment records, drug treatment records, and correction center records.

Dr. Steinberg also considered the social history prepared by Ms. Shettles; her interview with

Leon Brown, Patti McNeely, Sherry Osby, and the Petitioner’s family; an incident report

involving Jimmy Osby; Ms. Shettles’s summary of the Petitioner’s prior convictions; and

photographs. Dr. Steinberg focused on the Petitioner’s life and the traumatic incidents that

had occurred in his life. Dr. Steinberg discussed dysfunctional lifestyles, drug abuse, and a

number of stressors that were in the Petitioner’s life before the victim’s death. The stressors

included the Petitioner’s disintegrating marriage, his problems with employment, drug and

alcohol abuse, failed drug screens, and his relationship with another woman.

Co-Counsel testified that Dr. Steinberg diagnosed the Petitioner with poly-substance

abuse under Axis I and personality disorder not otherwise specified under Axis II. Under

Axis IV, Dr. Steinberg noted problems related to the Petitioner’s primary support group, his

interaction with the legal system, his occupation, and his social environment and housing.

Dr. Steinberg’s global assessment of the Petitioner was 60. Co-Counsel said he, Lead

Counsel, and Dr. Steinberg discussed whether another expert should evaluate the Petitioner.

According to Co-Counsel, the trial court refused to grant funds to retain any other mental

health expert for any other reason. Co-Counsel did not recall Dr. Steinberg’s suggesting

another expert.

Co-Counsel testified that he met with Dr. Smith and Ms. Sutton at the medical

examiner’s office. They discussed the autopsy, the cause of the victim’s death, the victim’s

injuries, and the crime scene. They also discussed that a cast iron skillet was used and that

the handle of the skillet was broken off. Co-Counsel asked Dr. Smith how the handle could

have broken, and Dr. Smith said it could have broken if the skillet was old or worn. Co-

Counsel said he was surprised by Dr. Smith’s answer because he had expected Dr. Smith to

state that the handle was broken because the victim was beaten to the point that she was

unrecognizable. Co-Counsel stated that the victim was beaten badly and that the scene was

“gruesome.” Dr. Smith discussed with Co-Counsel the gravity of the victim’s injuries and

how she died. Ms. Sutton educated Co-Counsel about blood spatter and what the evidence

would mean at trial. Co-Counsel said that at trial, Dr. Smith discussed war injuries and “the

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explosive type thing.” Dr. Smith described the crime scene as a “two hour torture scene.”

Co-Counsel said Dr. Smith’s testimony took him by “complete surprise.”

Co-Counsel testified that the Petitioner told him about the night of the victim’s death,

his job, his relationship with the victim, and how his prison experience had formed his ability

to function in the outside world. Co-Counsel said the Petitioner was unable to explain with

clarity what occurred on the night of the victim’s death or how the death occurred. The

Petitioner was able to answer Co-Counsel’s questions regarding the facts, the events, and his

background and history. The Petitioner was able to provide emotional detail regarding his

family and his past.

Co-Counsel testified that he had a good relationship with Lead Counsel and that Lead

Counsel listened to his thoughts and suggestions. Co-Counsel spoke with Mr. Chapman

frequently. Co-Counsel said that if he requested additional funds, the money was either for

Mr. Chapman or Dr. Steinberg. Co-Counsel thought that he requested additional funds for

Mr. Chapman and that the trial judge approved the request. Co-Counsel did not know if he

requested additional funds for Dr. Steinberg.

Co-Counsel testified that he received Ms. Shettles’s report shortly after the date on

the report. He was unsure whether Lead Counsel requested that Ms. Shettles complete any

additional tasks. Co-Counsel did not think there were any other tasks she needed to

complete.

Co-Counsel testified that he conducted voir dire with the benefit of jury

questionnaires. He and Lead Counsel reviewed the questionnaires and ranked the potential

jurors. Co-Counsel said Lead Counsel had a unique system in that he wrote information

about each juror on index cards. Lead Counsel, Co-Counsel, and the Petitioner decided

whether to keep or strike a juror. Co-Counsel said that when considering potential jurors, he

considered not only those in the jury box but those who could replace them.

On redirect examination, Co-Counsel testified that he did not request funds for experts

in a formal motion or ask for a formal hearing. Instead, Co-Counsel spoke with Judge Dailey

and later Judge Craft. The judges always wanted to know how much an expert was going

to cost, and Co-Counsel would tell them that he did not know. The judges also wanted to

know why Mr. Chapman or Dr. Steinberg could not complete the tasks. Ultimately, the

judges always concluded that the expert was not needed. Co-Counsel acknowledged that he

could not appeal their rulings if his requests were not in writing.

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Clark Chapman, a private investigator, testified that he was hired by trial counsel in

March or April 2000. He met with both of them but met more frequently with Lead Counsel

because their offices were close. He occasionally spoke with Co-Counsel over the telephone

or at Co-Counsel’s office. Mr. Chapman’s meetings with trial counsel were usually brief.

However, he had one meeting with Co-Counsel and the Petitioner that lasted several hours.

Mr. Chapman spoke to Ms. Shettles on the telephone and talked with her several times when

they met with the Petitioner.

Mr. Chapman testified that he was retained to conduct the guilt/innocence portion of

the investigation. The Petitioner was knowledgeable about the people involved in the case

and identified witnesses for Mr. Chapman to interview. Mr. Chapman thought the case was

more related to mitigation. He explained that based on the Petitioner’s statements to him and

the police, his job was to determine what took place and what led to the victim’s death.

Mr. Chapman testified that the defense was concerned about the Petitioner’s mental

status at the time of the crime. Mr. Chapman researched the issue and interviewed witnesses

the Petitioner identified as possibly being able to develop his actions before the victim’s

death. Mr. Chapman said that the information was important to both the guilt and penalty

phases and that he hoped the jury would convict the Petitioner of a lesser offense.

Mr. Chapman testified that he interviewed Glenda Williams, prepared a memorandum

of the interview, and gave the memorandum to trial counsel. Ms. Williams reported that the

Petitioner had contacted her and asked her to pick him up on the night of the victim’s death.

The Petitioner reported problems with his mental state. Ms. Williams refused to pick him

up because of a storm that night.

Mr. Chapman testified that he searched for Terri Strickland, who lived close to the

home of the Petitioner’s grandmother. The Petitioner was alleged to have been with her

before the victim’s death. Mr. Chapman located Ms. Strickland and spoke with her briefly

several times. He said Ms. Strickland was “fidgety” and appeared to be a “street person” or

“a person who [was] very visibly on drugs.” Mr. Chapman was unable to complete an

interview with her because she could not maintain a conversation for more than a few

minutes. Ms. Strickland admitted that she was with the Petitioner on the afternoon before

the victim’s death and that they were “partying.” When Mr. Chapman attempted to question

Ms. Strickland about the partying, she told him to return later and she would tell him about

it. The last time Mr. Chapman spoke with Ms. Strickland, she told him that she would call

him at 9:00 p.m. that night. However, she never called. Mr. Chapman did not recall trial

counsel’s instructing him to subpoena Ms. Strickland for trial.

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Mr. Chapman testified that approximately 90% of his work involved criminal defense.

During the course of his career, he had spoken to other witnesses and defendants about

partying and had observed others that were “fidgety” or “jumpy.” Mr. Chapman thought

“partying” involved drug use. He submitted a preliminary timeline to trial counsel, stating

that on Thursday, January 21, 1999, the Petitioner visited Ms. Strickland at 8:30 p.m. and

smoked cocaine. The timeline also included an entry for 4:30 p.m. that same day regarding

the Petitioner’s smoking cocaine. Mr. Chapman recalled discussions about an intoxication

defense.

Mr. Chapman testified that he tried to locate Rosie Puryear or “Bee.” He went to her

home, left his number there, and spoke to a man who lived at the home. He also telephoned

Ms. Puryear. However, Ms. Puryear did not cooperate. He acknowledged that he could have

conducted surveillance of her home in an attempt to interview her. He talked with trial

counsel numerous times about his attempts to contact Ms. Puryear.

Mr. Chapman testified that he obtained a 911 tape recording regarding an altercation

between the Petitioner and the victim that had occurred at the home of the Petitioner’s

grandmother several days before the victim’s death. He prepared a memorandum

summarizing the tape recording and provided the recording to counsel. He reviewed the

social history prepared by Ms. Shettles. Mr. Chapman did not recall meeting with Dr.

Steinberg before trial but spoke with him during the course of trial.

On cross-examination, Mr. Chapman testified that he knew his responsibilities

regarding the investigation. He, Co-Counsel, and the Petitioner met in the jail for several

hours. The Petitioner identified witnesses and the general vicinity where the witnesses could

be located. Mr. Chapman compiled a timeline based upon his interviews with the Petitioner

and witnesses and the records that he obtained.

Mr. Chapman testified that the Petitioner did not deny killing the victim. According

to his statement to police, the Petitioner beat the victim with a skillet. Mr. Chapman said the

only issue was the Petitioner’s mental state. As a result, Mr. Chapman’s investigation was

very limited. He thought the majority of the investigation related to the issues for which Ms.

Shettles was responsible.

Mr. Chapman testified that the Petitioner identified Ms. Puryear as a witness but that

Ms. Puryear basically “dodged” him. At first, he left messages for her to contact him but did

not provide a reason. Later, he left messages stating that he needed to talk with her about the

Petitioner’s case. Mr. Chapman telephoned her home, spoke to a man, and told him the

reason for the call. Ms. Puryear never returned his messages, and Mr. Chapman said it

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appeared that she was unwilling to cooperate. Mr. Chapman discussed the matter with the

Petitioner. The Petitioner said that he knew the man and that he thought the man had told

Ms. Puryear not to get involved.

Mr. Chapman testified that Ms. Strickland appeared to be a drug addict. The

Petitioner told him that Ms. Strickland used cocaine and other drugs heavily. Mr. Chapman

said Ms. Strickland’s appearance and behavior confirmed the Petitioner’s statement. Mr.

Chapman met with Ms. Strickland twice, but she always “put him off” until later. He said

she could not stand still long enough to tell him what he needed to know. He informed trial

counsel and the Petitioner about his difficulties with interviewing Ms. Strickland.

On redirect examination, Mr. Chapman testified that he and counsel typically

interviewed a defendant and built a task list based upon the witnesses to be interviewed and

the documents to be obtained. Counsel determined whether Mr. Chapman should spend a

great amount of time investigating certain areas. Counsel usually determined which records

and witnesses were to be subpoenaed.

Mr. Chapman testified that he never spoke with Ms. Puryear and just left her

messages. He acknowledged that Ms. Puryear never told him directly that she did not want

to be involved. He also acknowledged that he could have issued a subpoena for her.

Mr. Chapman testified that the Petitioner described the events of the offense to him.

The Petitioner and the victim had separated, but the Petitioner thought they were going to

reconcile. The Petitioner claimed that when the victim told him she wanted a divorce, he

“snapped.”

Glori Shettles, a mitigation investigator with Inquisitor, Incorporated, testified that she

conducted the mitigation investigation for the Petitioner’s case and prepared a social history

for the Petitioner. The purpose of the social history was to develop case strategy and identify

which witnesses to present during the guilt and penalty phases. An expert could use the

social history as an overall assessment of the defendant’s life. The social history included

the places, people, and records from which the information was obtained.

Ms. Shettles testified that she never received any feedback from trial counsel

regarding the information she provided, that they never asked her to follow up on any

information, and that she attempted to contact them many times about the information. Trial

counsel did not ask her to provide any insight into the appropriate experts that might be

needed.

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Ms. Shettles testified that she did not recommend Dr. Steinberg to trial counsel and

did not recall ever working with him before the Petitioner’s case. Dr. Steinberg requested

Ms. Shettles’s assistance in obtaining documentation. Ms. Shettles wrote a letter to Lead

Counsel dated October 17, 2000, regarding Dr. Steinberg’s request. At that time, the

Petitioner’s trial was scheduled for November 2000. Ms. Shettles provided the Petitioner’s

social history to Dr. Steinberg on November 2, 2000, and to trial counsel the following day.

Ms. Shettles referred to the possibility of fetal alcohol damage in the social history. She

talked with the Petitioner’s family members about their personal knowledge of his mother’s

drinking alcohol during her pregnancy. Ms. Shettles said the Petitioner’s birth records

reflected problems with the birth and the Petitioner’s low birth weight, indicators of fetal

alcohol syndrome. Ms. Shettles said she learned of fetal alcohol syndrome during training

and through research. She was aware of the possibility of cognitive impairments,

developmental problems, and neurological or brain damage in people with fetal alcohol

syndrome.

Ms. Shettles testified that if she been asked to recommend an expert, she would have

suggested a neuropsychologist. A neuropsychologist had areas of expertise and training on

cognitive issues and in administering tests that were indicators of neuropsychological

problems. She said the areas would have related to mental defects rather than mental

diseases. Ms. Shettles assumed that Dr. Steinberg would have been alerted to possible issues

or problems and would have made the recommendation.

Ms. Shettles testified that she was unaware trial counsel intended to present evidence

of diminished capacity. She knew diminished capacity required a showing of a mental

disease or defect such that the person’s capacity to form intent was diminished. Ms. Shettles

said that because Dr. Steinberg did not find a mental disease or defect, trial counsel should

have used another expert to address fetal alcohol syndrome as a defect.

Ms. Shettles testified about difficulties she had in communicating with trial counsel.

Trial counsel did not return her telephone calls or respond to her letters. On August 22,

2000, shortly after meeting with the Petitioner and obtaining initial information about the

case, Ms. Shettles wrote Lead Counsel and requested information that could have been

helpful for obtaining records. Lead Counsel did not respond. Ms. Shettles met with Lead

Counsel within two or three weeks of the original November trial date. According to Ms.

Shettles’s memorandum about the meeting, the trial date was scheduled for November 13,

and the meeting occurred on November 9. Co-Counsel did not attend the meeting, even

though Ms. Shettles had requested that he do so. During the meeting, Lead Counsel

informed Ms. Shettles that he intended to call Dr. Steinberg and the Petitioner as witnesses.

Lead Counsel did not ask Ms. Shettles to complete any additional tasks.

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Ms. Shettles testified that the Petitioner sent a letter to her and Mr. Chapman, stating

that he was concerned because he did not know what evidence would be presented. The

Petitioner said he was unaware of the trial strategy and did not have any contact with Lead

Counsel. When Ms. Shettles met with Lead Counsel, he informed her that he planned to

meet with the Petitioner that upcoming Saturday. Ms. Shettles and Mr. Chapman visited the

Petitioner on Sunday and learned that Lead Counsel had not met with him.

Ms. Shettles testified that she never met with Co-Counsel and that Mr. Chapman had

a better relationship and rapport with Co-Counsel. Mr. Chapman told Ms. Shettles that he

communicated with Co-Counsel because Lead Counsel would not return his calls. Ms.

Shettles later learned from Mr. Chapman that the Petitioner’s trial had been continued to

March 2001.

Ms. Shettles testified that she interviewed several family members and was the

primary contact for the family. Through her interviews, she learned that the Petitioner’s

mother drank alcohol during her pregnancy. The primary source of that information was the

Petitioner’s first cousin, Willie Mae Avery, who was at least twenty years older than the

Petitioner. Ms. Shettles met with Ms. Avery on one occasion and may have spoken with her

briefly on the telephone. Ms. Avery passed away in 2006. Ms. Shettles described the

Petitioner’s family as extremely cooperative. She informed family members that they may

be called to testify, and no one objected. Ms. Shettles learned that the Petitioner’s father was

a heroin addict. She said a history of drug and alcohol abuse on both sides of a family made

a person more likely to have substance abuse problems.

Ms. Shettles testified that she interviewed Warden Wayne Douglas, whom she had

known for many years. Warden Douglas had worked at Fort Pillow Prison, and Ms. Shettles

questioned him regarding the Petitioner’s issues in prison. The Petitioner respected Warden

Douglas both personally and professionally and thought he would be a very credible witness.

Ms. Shettles did not recall the warden’s suggesting that his testimony would negatively

impact the Petitioner. The warden planned to testify about an award the Petitioner had won

in a contest during Black History Month, and Ms. Shettles recommended that trial counsel

present Warden Douglas as a witness. Ms. Shettles said Warden Douglas had no reservations

about testifying and that he “would not gloss over” any negative aspects in the Petitioner’s

disciplinary record. Ms. Shettles thought Warden Douglas could have explained the issues

that existed in prison and prisoners’ experiences, especially for the length of time the

Petitioner had been incarcerated.

Ms. Shettles testified that she contacted Leon Brown, the Petitioner’s former

employer, who described the Petitioner as an excellent employee. Mr. Brown had a contract

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with the City of Memphis to clean the Cook Convention Center. The contract changed to

require criminal background checks. When Mr. Brown told the Petitioner about the new

requirement, the Petitioner said he would not be able to pass a criminal background check

and informed Mr. Brown about his criminal history. Mr. Brown was “shocked” when he

learned that the Petitioner had been charged with killing the victim. On January 17, 1999,

the Petitioner had been involved in an incident with the victim. Ms. Shettles learned about

the incident from the Petitioner and the police incident report.

Ms. Shettles testified that one of her roles in capital cases was to prepare witnesses

to testify. However, trial counsel did not ask Ms. Shettles to prepare witnesses to testify in

this case. Ms. Shettles said she made it clear that she was willing to help trial counsel in any

way, but she did not think she specifically told trial counsel that she could prepare witnesses

for trial.

Ms. Shettles testified that she never discussed the Petitioner’s social history or her

concerns about fetal alcohol syndrome with Dr. Steinberg. Dr. Steinberg requested the

records and the discovery materials from Ms. Shettles. Ms. Shettles said that Dr. Steinberg

wanted to know whether the Petitioner had given a statement to the police and that she was

not provided with any statement. Ms. Shettles never received a copy of Dr. Steinberg’s

report. She said that when she first began working on a case, she determined what counsel

considered her role to be. Some attorneys welcomed her input, and some attorneys rarely

communicated with her. Ms. Shettles said that she had no communication with Lead Counsel

and that she assumed he did not want her input or help. Ms. Shettles was unaware of the

theory of defense in this case and said that trial counsel did not discuss with her any theory

related to either phase of the trial.

Ms. Shettles testified that following her meetings with Lead Counsel and the

Petitioner, her only other task was to deliver a subpoena to Glenda Williams. Once the trial

was continued, trial counsel never contacted her again. Ms. Shettles sent a letter to trial

counsel asking them whether they wanted her to complete any other tasks, but she did not

receive a response.

Ms. Shettles testified that the mitigation investigation of the Petitioner’s case was not

adequately funded. She originally requested $18,000 at $65 per hour. She based her request

upon her investigation in other cases and from the standard recommended at training. The

total amount the trial court originally approved was $5,000. Ms. Shettles’s investigation

exceeded that amount.

Ms. Shettles testified that on November 28, 2000, she wrote trial counsel a letter

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regarding information that the Petitioner had requested she provide to them. Ms. Shettles

informed trial counsel that Angela Chillis, who had been the Petitioner’s parole officer, was

no longer in the office but that Susan Shettlesworth could be used as a witness if they needed

her. Ms. Shettles also asked trial counsel whether they wanted her to complete any other

tasks and informed them that the funds granted by the trial court had been depleted. Ms.

Shettles never received a response from trial counsel. She said she also told Lead Counsel

that he would be required to subpoena the probation and parole records in order to obtain

them.

Ms. Shettles testified that on January 30, 2001, she wrote trial counsel a letter and

enclosed an affidavit requesting payment for monies that had exceeded the original $5,000

granted by the trial court. She noted in the letter that she had not spoken with trial counsel

since the trial had been continued and that she assumed they did not need her to complete any

additional tasks because she had not heard from them. In March 2001, Ms. Shettles wrote

a letter to Lead Counsel informing him that she had learned of the outcome of the trial in the

newspaper. She reiterated in the letter that her funds had been exhausted and that she

assumed Lead Counsel had not requested any additional funds for her. She asked for

payment for services in excess of the original $5,000 and attached an invoice for the time

after the money had been depleted, which began on October 27, 2000.

On cross-examination, Ms. Shettles testified that the Administrative Office of the

Courts (AOC) ultimately decided the amount of money she should receive. The AOC could

limit the amount and may have done so. Ms. Shettles said the AOC had limited amounts in

other cases when it did not consider all of the funds necessary. She said it was unusual,

though, for no effort to be made to obtain additional funds after the initial funds were

expended.

Ms. Shettles testified that she did not remember whether she had any other

conversations with Dr. Steinberg after November 2000. She did not recall them discussing

the substance of her work or the records. Dr. Steinberg had the benefit of the social history

she prepared.

Ms. Shettles testified that the Petitioner discussed his drug abuse with her. She said

she knew he was abusing cocaine and thought he was abusing alcohol and marijuana. Ms.

Shettles thought the Petitioner had access to many drugs around the time of the offense. The

victim had suspected that the Petitioner used cocaine during a prior altercation.

Ms. Shettles testified that she did not recall discussing the offense at length with the

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Petitioner. The Petitioner did not deny killing the victim. Rather, the issue involved the

factors and events that led up to the killing.

Ms. Shettles testified that the Petitioner’s family members were cooperative. They

informed her of the Petitioner’s background and his family’s background. She obtained the

Petitioner’s prison and school records. Ms. Shettles had information about family members

who were deceased. She reviewed information regarding the alcohol and addiction history

of other family members. She submitted the information to trial counsel and Dr. Steinberg.

Ms. Shettles testified that although her meeting with Lead Counsel lasted for

approximately one hour, the time was not devoted entirely to the case because another client

walked in during the meeting. Ms. Shettles attempted to determine trial counsel’s strategy

and wanted to suggest family members who would testify. Lead Counsel told her that he had

not allowed sufficient time for Dr. Steinberg to testify in the guilt phase. As a result, he

planned to present both Dr. Steinberg and the Petitioner as witnesses during the penalty

phase.

Ms. Shettles testified that she spoke with Co-Counsel over the telephone two days

before her meeting with Lead Counsel. She told him that she would like to meet, and he

agreed. She said that Co-Counsel was “running for judge” at the time and that she never

heard from him.

On redirect examination, Ms. Shettles testified that the Petitioner told her that he

never used cocaine before his release from prison. Ms. Shettles did not know what trial

counsel did with the records and the information that she provided. She received no

communication, instructions, or direction from trial counsel.

Ms. Shettles testified that John Black was a well-known gangster and drug dealer in

Memphis. Mr. Black and the Petitioner’s father had grown up together and were very good

friends. Ms. Shettles said Mr. Black was present in the Petitioner’s life.

Sergeant William Ashton of the Memphis Police Department testified that he was the

case coordinator and prepared a supplemental report on January 24, 1999. According to the

report, the Petitioner came to the police department to turn himself in. After the Petitioner

gave a written statement, he was taken to jail and booked. The Petitioner requested that he

be placed on suicide watch. Sergeant Ashton said it was possible the Petitioner attempted

to turn himself in to police the day before but was turned away and told to return the

following day because no one was there. After taking the Petitioner’s statement, Sergeant

Ashton began the process of charging the Petitioner.

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Sergeant Ashton testified that he prepared a supplemental report dated January 25,

1999, reflecting a meeting he had with Assistant Attorney General Ken Roach. According

to the report, General Roach requested that Sergeant Ashton obtain the Petitioner’s criminal

record before General Roach decided how to the charge the Petitioner. After Sergeant

Ashton provided General Roach with the Petitioner’s criminal history, General Roach signed

the Attorney General’s Authorization to Charge form, charging the Petitioner with second

degree murder. Sergeant Ashton said General Roach’s request for the Petitioner’s criminal

record was not unusual. Sergeant Ashton then prepared an affidavit of complaint charging

the Petitioner with second degree murder. The information in the affidavit was based on the

Petitioner’s statement and the information obtained from the ongoing investigation.

Sergeant Ashton testified that Assistant District Attorney General Jerry Harris spoke

with him about changing the charge to first degree murder and determined that a charge of

first degree murder was more appropriate. Assistant District Attorney General Jennifer

Nichols instructed Sergeant Ashton on how to complete the new arrest ticket, and the charge

was changed to first degree murder on January 26, 1999. Sergeant Ashton did not recall

whether it was the first time that he had changed a charge in a case and completed a new

arrest ticket and a new affidavit of complaint. He said the information in both affidavits of

complaint was true.

Sergeant Ashton testified that he was unaware of the Petitioner’s medical history. He

understood that the Petitioner previously had been charged with second degree murder after

he killed a drug dealer from whom he was trying to purchase drugs. Sergeant Ashton did not

know when that offense occurred. Sergeant Ashton identified the law incident table in which

an officer had suspected the Petitioner of using alcohol. Sergeant Ashton denied entering the

notation but said another officer may have done so. Sergeant Ashton did not recall speaking

with trial counsel before trial.

Dr. Gregory James Davis, the Director of the Forensic Consultation Services for the

Department of Pathology and Laboratory Medicine at the University of Kentucky College

of Medicine, testified as an expert in forensic pathology that he was asked to assess the case

from the perspective of the injuries sustained by the victim, examine the testimony regarding

the period of time that those injuries may have been sustained, and determine whether he

agreed with the opinions of Ms. Sutton and Dr. Smith. Dr. Davis reviewed Dr. Smith’s

autopsy report, color photographs of the crime scene, crime scene diagrams, the Petitioner’s

statement to police, and the transcript of the testimony of Dr. Smith and Ms. Sutton.

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Dr. Davis testified that the amount of time the Petitioner attacked the victim could not

be determined. Testimony at trial had suggested that the attack lasted a minimum of six

minutes due to a conclusion that some of the blood spatter was clotted blood. However, Dr.

Davis found no scientific basis to state that the attack lasted six minutes or more. While he

acknowledged that the attack could have occurred for more than six minutes, he said it was

equally possible that the attack occurred for a much shorter period of time, such as thirty

seconds to one minute. He did not think any scientific method existed to discern one way or

the other.

Dr. Davis testified that he did not understand testimony at trial that a blood clot had

spattered onto a wooden surface. From the photographs, he saw blood spatters that would

have been liquid blood that subsequently clotted. Although Ms. Sutton testified that blood

required six minutes to clot in a clinical scenario, the crime scene was not a clinical scenario.

Dr. Davis explained that blood could coagulate rapidly when it hit a surface. He noted that

the victim sustained severe head trauma that would have released thromboplastin into her

system, causing the blood to clot extremely quickly.

Dr. Davis testified that based upon his review of the photographs of the blood, he did

not know the time span over which the assault occurred and did not think the time span could

be determined. He said that while the attack could have occurred over a period of minutes,

it easily could have occurred for one-half of a minute. Dr. Davis did not think there was any

way to conclude that the blood clotted before it was “cast off” and landed on a different

surface. He said it was equally plausible that large droplets of liquid blood landed on the

surface and coagulated.

Dr. Davis testified that thromboplastin was a tissue factor that was extremely

concentrated in the brain and interacted with blood following a head injury, causing the blood

to clot more rapidly. Dr. Davis said that due to the extent of the victim’s head trauma, it was

highly likely that the thromboplastin mixed with the projected blood. He also said that

regardless of the existence of thromboplastin, he found no evidence that the blood was

clotted before it was cast off and struck the surfaces.

Dr. Davis testified that he had never encountered an attempt to determine the

minimum length of time of an assault based upon the amount of time that blood clotted in a

clinical setting. He said that a six-minute determination was not a reasonable medical

conclusion and that “I don’t know” would have been a more reasonable assertion in this case.

Dr. Davis said, “I’m not saying it’s out of the bounds of possibility, I’m just saying I’ve

never seen it or heard of it.” He had never read peer-reviewed or non-peer-reviewed

literature addressing the subject.

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Dr. Davis testified that expiratory blood, or blood upon exhaling, was common in

people who experienced trauma. The victim had basilar skull fractures that caused blood to

aspirate into her windpipe. Dr. Davis said blood could come out of the mouth and/or nose

even after the person lost consciousness but continued to breathe for a period of time. He

did not think that the presence of blood in the victim’s windpipe was relevant to the case and

stated that it only meant she breathed for a period of time after sustaining the injuries. The

evidence of blood did not relate to her state of consciousness during that time.

Dr. Davis testified that he disagreed with Dr. Smith’s testimony that the victim

swallowed thirty-six to thirty-seven times. Dr. Davis saw no evidence supporting Dr.

Smith’s conclusion. He explained that in head trauma cases, he often saw up to 400

millimeters of blood in the stomach or windpipe. In any case with basilar skull fractures,

blood began escaping into the windpipe immediately. Physical swallowing or breathing of

the blood in the nature of thirty-six to thirty-seven swallows was not required. Dr. Davis said

an estimate of fifteen millimeters per swallow as provided by Dr. Smith was more precise

than science allowed.

Dr. Davis noted that Ms. Sutton testified that the victim sustained a minimum of five

blows, while Dr. Smith testified that the victim sustained a conservative estimate of thirteen

blows. Dr. Davis said the discrepancy in their testimony was understandable because one

blow to the head could appear as multiple blows due to the irregular surface of the head. Dr.

Davis said that either the testimony of Dr. Sutton or Dr. Smith regarding the number of blows

was plausible. The multiple blows could have occurred quickly.

Dr. Davis testified that based upon the extent of the victim’s skull and brain injuries,

he agreed with Dr. Smith’s conclusion that the victim was unconscious when she fell to the

floor. The non-specific pattern of blood spatter on her hands did not reveal any information

to Dr. Davis. Rather, the blood spatter showed that the surfaces of the victim’s hands were

exposed to blood when the victim was struck. The positions of the victim’s hands and head

did not reveal any information to Dr. Davis regarding her consciousness or unconsciousness.

Dr. Davis testified that the evidence did not support the claim that the Petitioner had

to straddle the victim to prevent her from moving her arms. Dr. Davis said that while the

Petitioner could have had his knees on the victim’s arms to restrain their movement, there

was no evidence he did so. Dr. Davis did not think such information could be obtained by

forensic science.

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Dr. Davis testified that he did not review any evidence suggesting that the victim was

conscious throughout the attack. He said that while the victim was conscious before the

attack, there was no way to determine whether she was rendered unconscious following the

first or second blow. He said that while her basilar skull fractures and other injuries

indicated that she lost consciousness rapidly, Dr. Davis could not provide an “exact second

to second time.”

On cross-examination, Dr. Davis testified that he visited crime scenes on “rare

occasions.” He acknowledged that visiting a crime scene allowed the forensic expert to view

the body, the circumstances, and the surroundings before reaching a conclusion. While Dr.

Davis was perplexed by some of Dr. Smith’s conclusions, he did not speak with Dr. Smith

about the case or go to the medical examiner’s office to review the file. Instead, he only

reviewed the materials that were sent to him. He acknowledged that the autopsy report was

not the entire autopsy file. The autopsy would have included a number of photographs of

tissue injuries and possibly samples that had been retained.

Denise Oher, the Petitioner’s sister, testified that she was two years younger than the

Petitioner and three years older than her other brother, Albert Riley. Ms. Oher did not have

a close relationship with her mother, Ilene Riley. When Ms. Oher was a child, she lived with

her grandmother, along with her two brothers, her mother, an aunt, and her aunt’s children.

Seven to nine people lived in a house with a living room, one bedroom, a kitchen, and one

bathroom. Ms. Oher said her grandmother cared for her and ensured that she had enough to

eat. Ms. Oher did recall her mother being present during that time.

Ms. Oher testified that when she was eight or nine years old, her grandmother died

and that her family “broke up” as a result. Ms. Oher, her mother, and her two brothers

moved down the street to a “rooming house” with different apartments. Their living area

consisted of one large room, a kitchen, and a bathroom. Ms. Oher, her mother, and her

brothers all slept on a “laid out couch.” After some time, Ms. Oher’s stepfather, Walter

Turner, moved in with them.

Ms. Oher testified that Mr. Turner was a “mean man.” Both he and Ms. Riley were

intoxicated most of the time and fought often in front of Ms. Oher and her brothers. Ms.

Oher said that when Mr. Turner became intoxicated, he would wake her and her brothers and

beat them. She said the beatings seemed to occur on a nightly basis. Ms. Oher recalled that

Mr. Turner appeared to be harder on the Petitioner and beat him with an electrical cord on

one occasion. On other occasions, Mr. Turner beat them with a belt or his hand. At the time,

Ms. Oher was eight or nine years old, and the Petitioner was ten or eleven years old. The

Petitioner was small for his age, and Ms. Oher may have been taller than him.

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Ms. Oher testified that she did not recall food being available when she lived with her

mother and Mr. Turner. Ms. Oher and her brothers would escape to a shed in the back of

their home and hide and sleep. Her mother and Mr. Turner never missed them when they

hid. Ms. Oher recalled that Mr. Turner attempted to sexually assault her on one occasion

while he was intoxicated but that she managed to escape from him.

Ms. Oher testified that at age ten or eleven, she and the Petitioner were placed in

Goodwill Home for Children and remained there for two years. While at the foster home,

Ms. Oher and the Petitioner attended school daily and lived in a more stable environment.

Ms. Oher could not recall attending school when she lived with her mother. Anna Clark, a

social worker, ensured that the children had everything they needed. Ms. Oher said she also

had a good relationship with Delores Rose, a secretary, and continued to see her regularly

after Ms. Oher left Goodwill Home.

Ms. Oher testified that after she left Goodwill Home, she returned to live with her

mother, while the Petitioner lived with his father. The Petitioner’s father had a girlfriend,

who had twelve or thirteen children. When Ms. Oher visited the home of the Petitioner’s

father, she also visited those children. Ms. Oher was unaware of the Petitioner’s getting into

trouble during that time period because she was not with him often. The Petitioner

associated with a different group of people. Ms. Oher recalled that the Petitioner’s nickname

was “Skillet” and that he got the nickname when was thirteen years old or younger.

Ms. Oher testified that she knew the victim and thought the Petitioner and the victim

were in a relationship for seven or eight years. They were in a relationship before the

Petitioner was incarcerated for other offenses, and the Petitioner moved in with the victim

following his release from prison. Ms. Oher visited the victim’s home and attended a family

gathering in the victim’s backyard. The victim had one daughter and two sons, and the

victim’s sons did not appear to like the Petitioner.

Ms. Oher testified that she had thirteen children, two of whom were deceased. She

had a history of alcohol and drug problems and received treatment and counseling. Ms. Oher

said no one from the Petitioner’s defense team contacted her before trial and that she would

have testified if she they had asked her to do so.

Anna Clark, a case worker at Goodwill Home, testified that the Petitioner and Ms.

Oher were sent to Goodwill Home by court order due to lack of supervision by a parent.

Thelma Bush, a case worker from juvenile court, assisted in placing the Petitioner and Ms.

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Oher at Goodwill Home. Ms. Clark said Goodwill Home only accepted African-American

children. At that time, other institutions in the city did not accept African-American children.

Ms. Clark testified that the staff at Goodwill Home was primarily female. The

employees were very supportive of the children and cared for them as if the children were

their own. The children received breakfast every day and were transported to school and

field trips. The staff attempted to provide the children with everything they did not receive

from their natural parents.

Ms. Clark testified that the Petitioner’s and Ms. Oher’s mother neglected them. The

children did not have proper clothing, adequate food, or proper supervision. No emotional

support or love was in their home. Ms. Clark described the Petitioner’s mother as “selfish”

and an alcoholic who was unable to care for her children properly. She remained with her

“drinking buddies” rather than supervising her children. She took care of her needs first,

which included drinking alcohol, and never visited the children while they were at Goodwill

Home.

Ms. Clark testified that the Petitioner was a “normal” child in that he did not engage

in any outstanding negative behavior. He got along well with the other children and was

more of a follower than a leader. The Petitioner was more passive in his interactions with

other children. The children called the Petitioner “Skillet.” At some point, the Petitioner and

Ms. Oher returned to their mother. Ms. Clark did not think that was wise or that their mother

had changed. Ms. Clark was living in Memphis in 2001, but the Petitioner’s defense team

did not contact her. She said she would have testified if had she been requested to do so.

Dolores Rose testified that she had been employed at Goodwill Home since 1962 and

recalled the Petitioner and Ms. Oher. At that time, twenty to thirty children were housed in

one building. After the Petitioner and Ms. Oher left Goodwill Home, the facility was

expanded to house approximately forty children. The home was a family-like setting, and

the staff treated the children as family.

Ms. Rose testified that the Petitioner and Ms. Oher had been removed from their home

due to neglect. She thought their mother associated with people who primarily partied and

drank alcohol. Ms. Rose described the Petitioner’s mother as a good person who abused

alcohol. She recalled occasions in which the Petitioner and Ms. Oher were unable to attend

weekend visits with their mother because no one was home. Thelma Bush, who worked in

the juvenile court system, placed the Petitioner and Ms. Oher in Goodwill Home. Ms. Rose

said Ms. Bush was alive in 2001 and would have been available for trial counsel to interview.

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Ms. Rose testified that the Petitioner was a “normal” boy who did “normal boy pranks

and things like that.” He was not a troublemaker but a follower. Ms. Rose said the

Petitioner’s records from Goodwill Home were destroyed in a flood but would have been

available at the time of trial in 2001.

Ms. Rose testified that she had contact with the Petitioner and Ms. Oher as adults.

She was aware of Ms. Oher’s drug problem and saw her under the influence on occasion. She

was unaware of the Petitioner’s problems. Ms. Rose said that when she saw the Petitioner

after she had not seen him for some time, he told her that he had been incarcerated. Ms. Rose

saw the Petitioner and the victim at a grocery store shortly after they were married, and they

seemed happy. Ms. Rose stated that no one from the Petitioner’s defense team contacted her

and that she would have been willing to testify.

Glenda Williams, the Petitioner’s cousin, testified that she was three years older than

the Petitioner and had known him all of his life. Her mother was Willie Mae Avery. When

Ms. Williams and the Petitioner were children, they lived with the Petitioner’s grandmother,

Clara Riley, and the Petitioner’s mother, Ilene Riley. Ms. Oher was born two years later.

Ilene Riley and Ms. Avery were close in age and drank alcohol together. The Petitioner

weighed approximately three pounds when he was born. He seemed small for his age, and

Ms. Williams looked out for him. Ms. Williams described the Petitioner as a follower rather

than a leader. Following Clara Riley’s death, Ms. Williams and her mother moved in with

Ms. Williams’s grandmother. The Petitioner and his family remained in Clara Riley’s home

for approximately one month. Ms. Williams lived about fifteen to twenty minutes away but

continued to see the Petitioner daily. Ilene Riley then moved and took her children with her.

Ms. Williams testified that Ilene Riley lacked “motherly instincts.” She told her

children to “shut up” and did not know how to “cuddle.” Ms. Williams said Ms. Riley was

more interested in herself than her children, drank alcohol, and did not spend time with the

children or help them with their homework. Ms. Williams stated that when she was thirteen

years old, Ms. Riley gave her a jar of corn liquor and told her to drink it. Ms. Williams drank

the liquor and choked.

Ms. Williams testified that the Petitioner and his siblings visited her at her

grandmother’s home and that her grandmother fed them. Her grandmother then sent the

children home. On occasion, the Petitioner and his siblings returned because no one was at

their home and they could not get into the house. Ms. Williams’s grandmother allowed them

to spend the night and sent them home the following morning.

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Ms. Williams testified that the Petitioner and his siblings told her that their mother

threw shoes at them, hit one of them with a broom, and injured one of their arms. Walter

Turner, the Petitioner’s stepfather, beat the children. The Petitioner and Ms. Oher were

removed from the home and lived at Goodwill Home. After they left Goodwill Home, the

Petitioner lived with his father, and Ms. Oher lived with Ms. Williams.

Ms. Williams testified that following the Petitioner’s release from prison in 1997, he

lived with her. The Petitioner had been dating the victim before he was incarcerated. The

Petitioner moved out of Ms. Williams’s home and moved in with the victim in a home

located in North Memphis. Ms. Williams said she did not want the Petitioner to live with the

victim. She explained that the Petitioner was raised in North Memphis and had gotten into

trouble there. Ms. Williams lived in East Memphis and thought the Petitioner needed

something different in his life.

Ms. Williams testified that the North Memphis neighborhood in which she and the

Petitioner were raised was “terrible.” When they were children, they witnessed violence in

the neighborhood. Before age eleven, Ms. Williams saw people cut and shot. One time, she

saw a man in the neighborhood lying in a gutter with his intestines exposed.

Ms. Williams testified that the Petitioner and the victim separated in December 1998

or January 1999. The Petitioner moved in with his paternal grandmother in North Memphis.

Ms. Williams visited the Petitioner at his grandmother’s house on occasion. She said that

although they were separated, the victim also visited the Petitioner at the home, did his

laundry, and brought him dinner.

Ms. Williams testified that on the day of the victim’s death, the Petitioner called her

and asked her to pick him up and drive him to her home. The Petitioner told Ms. Williams

that he did not “feel right” and needed to get away. The Petitioner said he was not sick but

felt “bad.” The Petitioner sounded depressed. A storm was coming, so Ms. Williams told

the Petitioner to wait and see about the weather. Ms. Williams explained that she did not

want to drive in a storm and that her car was not operating well at that time. The Petitioner

telephoned Ms. Williams several times that day. During his last call, the Petitioner told Ms.

Williams not to come. The Petitioner said the victim had called him and asked him to come

to her house after she returned from work so they could talk. Ms. Williams said the

Petitioner was happy because he thought the victim wanted to reconcile.

Ms. Williams testified that the Petitioner was very intelligent and loved his family.

She stated that the Petitioner should have known right from wrong but that he began

following the wrong crowd. Ms. Williams said that although she attended the Petitioner’s

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trial, she was not allowed to remain in the courtroom because she was supposed to testify.

She did not testify but said she would have done so if asked. Her mother, Ms. Avery, also

attended the trial and was allowed to remain in the courtroom. Ms. Avery died on February

6, 2006.

Rosie Puryear Loyde testified that she and her family moved to North Memphis when

she was seventeen years old and met the Petitioner and Ms. Oher. Ms. Loyde said she and

the Petitioner lived in a “ghetto” neighborhood with gangs, drug activity, prostitution, and

gambling. Ms. Loyde and the Petitioner were approximately the same age and were like

siblings. They went to cafes where there was drinking, gambling, alcohol, cursing, fighting,

and prostitution. They also used crack cocaine together.

Ms. Loyde testified that Ms. Oher was approximately fifteen years old at that time and

that Ilene Riley did not supervise Ms. Oher. Ms. Loyde met the Petitioner’s mother and often

saw her and his stepfather going to the liquor store. They would be intoxicated and argued

with each other often. The Petitioner’s father was employed but gambled and drank alcohol

on the weekends. The Petitioner’s father lived like a bachelor, and Ms. Loyde never saw the

Petitioner and his father have a father/son relationship. The Petitioner never opened up to

Ms. Loyde about his background. One time, he mentioned that his stepfather had “jumped

on” his mother.

Ms. Loyde testified that during the time she knew the Petitioner, he never maintained

a home of his own. He often lived with Benita Taylor, whom he viewed as a mother. Ms.

Taylor had a house full of children, including grandchildren. On occasion, the Petitioner

stayed at Ms. Loyde’s home. Ms. Loyde acknowledged that the Petitioner was in prison in

the mid-1990s.

Ms. Loyde testified that she never met the victim and did not become aware of her

until after the Petitioner and the victim were married. Ms. Loyde learned about the marriage

after seeing the Petitioner one day on his way to work at the Cook Convention Center. The

Petitioner was happy about his marriage and his job. One week before the victim’s death,

Ms. Loyde saw the Petitioner, and he told her that he was no longer living with the victim.

Ms. Loyde said that she knew the Petitioner was using crack cocaine again but that he was

not on drugs when she talked to him a week before the victim’s death.

Ms. Loyde testified that the Petitioner came to her home on the morning after the

victim’s death and told her what had happened. She described him as sad, nervous, and

depressed. The Petitioner said he had walked all night. A gash was on his hand, and Ms.

Loyde bandaged it. Ms. Loyde said she was unable to determine whether the Petitioner was

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on drugs at that time. It had rained the previous night, and the Petitioner’s clothes were dirty

and “shabby.” Ms. Loyde gave the Petitioner pants and a clean shirt. She could not recall

whether his clothes were wet. She acknowledged that her perception that morning was not

good because she had been “up all night drinking[,] drugging[,] and gambling.”

Ms. Loyde testified that the Petitioner stayed at her home for the remainder of the day.

The next day, they went to the police station and approached two officers. The Petitioner

told the officers that he wanted to speak to someone from the homicide office. One of the

officers said that the homicide office was closed and that they needed to return the following

day.

Ms. Loyde testified that she and the Petitioner returned home. The Petitioner was

depressed and kept his head down. The following morning, they returned to the police

station. Ms. Loyde accompanied the Petitioner inside the police station, waved to him, and

returned home. Ms. Loyde thought the Petitioner was anxious to turn himself in to the police

because he was depressed and wanted it to be over. The Petitioner also was concerned about

what would happen to Ms. Loyde if he remained at her home.

Ms. Loyde testified that while the Petitioner was at her home, he consumed drugs.

He was nervous and fidgeting, and a drug dealer in the neighborhood gave him a “hit” of

crack cocaine. Ms. Loyde said the Petitioner did not take any other drugs while at her home.

She said that no one from the Petitioner’s defense team contacted her and that she would

have been willing to testify.

On cross-examination, Ms. Loyde testified that the Petitioner admitted killing the

victim. He said he loved the victim and did not mean to kill her. He also said that his

marriage was sacred to him and that things “got out of hand.” The Petitioner told Ms. Loyde

that the victim had told him she wanted a divorce.

Sherry Phillips testified that during the penalty phase of the Petitioner’s trial, she

testified that her husband, Jimmy Osby, had committed suicide the day before the victim’s

death. She also testified at the trial that the Petitioner and Mr. Osby were very close and

were like brothers. Ms. Phillips said the Petitioner was aware of Mr. Osby’s suicide and had

visited him on the day of the suicide. The Petitioner was upset about Mr. Osby’s suicide.

Ms. Phillips testified that she occasionally socialized with the Petitioner and the

victim. The only drug use that Ms. Phillips recalled by the Petitioner was marijuana. Ms.

Phillips said she met with trial counsel for a few seconds outside the courtroom before she

testified. When Post-Conviction Counsel asked her whether she felt comfortable with the

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questions that trial counsel planned to ask, Ms. Phillips replied, “It was fine. It wasn’t

anything terrible.” On cross-examination, Ms. Phillips testified that she did not recall

whether she spoke with Ms. Shettles about her husband’s suicide.

Richard Douglas, the unit manager at West Tennessee State Penitentiary, testified that

at some point, he was employed at Fort Pillow Prison where the Petitioner used to be an

inmate. Mr. Douglas described him as “laid back and courteous, easy to get along with.” He

said that the Petitioner may have gotten into a fight on occasion but that fighting was not

unusual in prison. Mr. Douglas explained that larger inmates frequently targeted inmates of

a smaller stature, such as the Petitioner. As a result, the Petitioner likely was forced to

defend himself. Mr. Douglas noted that inmates tended to calm with age. He thought the

Petitioner would perform well in a controlled, non-threatening environment.

Mr. Douglas testified that he was familiar with the Black History Month essay contest

at Fort Pillow Prison. Mr. Douglas was never involved in grading the essays. He said the

essays probably were graded based upon basic content and effort by the inmate. Mr. Douglas

described the functioning of most of the population at the prison as borderline at best and

said he would not have been surprised if the winning essay included misspellings and

grammatical or structural errors. Mr. Douglas did not speak with trial counsel about

testifying and was not called to testify at the Petitioner’s trial. Ms. Shettles interviewed him.

On cross-examination, Mr. Douglas testified that he did not know the number of fights

in which the Petitioner was involved. He also did not know when or how long the Petitioner

was incarcerated at Fort Pillow.

Patti McNeely, who served as the Director and a counselor at the Alcohol and

Chemical Abuse Rehab (ACAR) Center in 1998 and 1999, testified as an expert in forensic

substance abuse that the Petitioner was one of her patients at the ACAR Center and that she

was a witness for him at trial. Shortly before Ms. McNeely testified at trial, she met with the

Petitioner’s counsel outside the courtroom. She thought she told them she was not a medical

doctor but a forensic substance abuse counselor.

Ms. McNeely testified that as part of her job, she assessed an offender’s drug use,

alcohol use, and criminal history. She then determined the type of treatment the offender

needed and the location of the treatment. In 1998, new patients were referred to her through

either drug court or the federal probation and pretrial program. Ms. McNeely stated that it

was difficult for cocaine addicts to stop using cocaine and that the relapse rate was 75% to

80%. She said cocaine, particularly crack cocaine, was an insidious drug in that most people

became addicted the first time they used it. She said that as the person continued to use the

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drug, the person attempted to “chas[e] the high” or obtain the “initial feeling.” Ms. McNeely

stated that in order to stop the addiction, patients needed long-term in-patient treatment such

as in a halfway house. She said that some in-patient treatment programs were funded by the

State and that those not funded by the State cost $15,000 to $20,000 for a thirty-day program.

Ms. McNeely testified that she assessed the Petitioner, determined that he was

chemically dependent, and recommended that he try to enroll in an in-patient treatment

program. However, in-patient programs funded by the State had few openings at that time

because the Petitioner was assessed during the winter when people came off the street,

entered a program, and remained in the program.

Ms. McNeely testified that the ACAR Center was an out-patient program and that the

out-patient treatment programs cost $20 to $30 per session. The Petitioner entered the

program at the ACAR Center and was supposed to pay for it. However, at that time, Ms.

McNeely treated anyone regardless of the person’s ability to pay. The Petitioner was subject

to drug screens as part of the program. On January 13, 1999, he took a drug screen, which

revealed that he had attempted to “flush” drugs from his system by consuming liquids. Ms.

McNeely said that a patient needed a drug-free environment in order to be successful in the

program and that the Petitioner could not remain drug-free in his home environment.

Therefore, he needed to be in an in-patient program. The Petitioner told Ms. McNeely that

he was having marital problems and that someone he knew had committed suicide. The

Petitioner contacted Ms. McNeely on January 20 or 21, but she could not remember what he

told her. She thought she would have told him to seek in-patient treatment.

Dr. Fred Steinberg, a psychologist who evaluated the Petitioner and testified at his

trial, testified that he did not think he had any interaction with Co-Counsel. He interacted

with Ms. Shettles briefly when she brought materials to his office. He did not think he and

Ms. Shettles ever sat down and discussed the case together.

Dr. Steinberg testified that according to his statements for services in this case, on

November 4, 5, and 6, 2000, he reviewed the materials he received from Ms. Shettles. On

November 7, 8, and 10, 2000, he conducted a forensic evaluation of the Petitioner. During

the evaluation, Dr. Steinberg conducted a competency interview, a historical interview, and

a mental status examination. He became acquainted with the Petitioner, took a social history

from him, and administered psychological testing. Dr. Steinberg spent a total of nine hours

with the Petitioner before writing his report.

Dr. Steinberg testified that he was careful to ensure that all the time he spent on a case

was billed and that he would not have met with trial counsel without billing for the time. He

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generally did not bill for telephone calls unless they lasted fifteen minutes or more. Dr.

Steinberg did not have any substantive discussions with trial counsel between November 12,

2000, and February 7, 2001. On February 7, 2001, he administered memory tests to the

Petitioner for two hours. On March 5, 2001, he spent one hour reviewing documents. The

next day, he met with trial counsel for two hours, and they prepared him to testify at trial.

Dr. Steinberg testified that he not think trial counsel ever requested that he conduct

a full battery of neuropsychological testing. He said he was not an expert in fetal alcohol

syndrome and that his knowledge about the syndrome in 2000 and 2001 would have been that

of a general psychologist.

Dr. Steinberg testified that he concluded in his report that diminished capacity could

be supported. He said he based his conclusion on case law that a person could have a

condition that rendered the person incapable of forming intent. Dr. Steinberg was under the

impression that diminished capacity could be established without a showing of a mental

disease or defect. He noted that one of the premiere texts on forensic psychology written in

1991 stated that substance abuse could be a basis for diminished capacity. Dr. Steinberg said

Lead Counsel told him that the Petitioner’s use of drugs and alcohol, his addiction, and his

mental stressors at the time of the offense were sufficient to establish diminished capacity.

On cross-examination, Dr. Steinberg testified that he diagnosed the Petitioner with

poly-substance abuse under Axis I, personality disorder not otherwise specified under Axis

II, and problems in his primary support group and his social history under Axis IV. Dr.

Steinberg assessed the Petitioner’s global assessment functioning under Axis V as 60. In

reaching his conclusions, Dr. Steinberg considered the materials that Ms. Shettles had

provided. Dr. Steinberg did not diagnose the Petitioner with a cognitive disability and did

not find him to have a cognitive defect. He found the Petitioner to have low average

intelligence. Dr. Steinberg said that he reviewed psychological tests that had been

administered to the Petitioner previously and that the results of the previous testing were

consistent with the results of his testing.

Dr. Steinberg testified that in his report, he noted that the Petitioner was raised in a

violent and chaotic world. The Petitioner was incarcerated for seventeen years in a violent

environment, and his marriage required that he attempt a lifestyle to which he was

unaccustomed. The Petitioner withdrew and began using marijuana and lacked the emotional

tools to adjust to his new lifestyle. Dr. Steinberg said the Petitioner coped by isolating

himself, using drugs, and reverting back to the prison world where he had lived in a small

space by himself. The Petitioner left his wife and lost his job; his grandmother was

hospitalized; and a close friend committed suicide. Dr. Steinberg thought the Petitioner was

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overwhelmed by the events and was unable to handle the situation.

Dr. Steinberg testified that the Petitioner’s drug use lessened his ability to cope and

that he dealt with the stressors by acting out. Dr. Steinberg said that the Petitioner’s actions

in killing the victim were impulsive and that the Petitioner’s drug use reduced his ability to

examine and control his behavior in a rational way. Dr. Steinberg testified about his

conclusions at trial. He said his conclusions were within the best of his professional ability

and within a reasonable degree of psychological certainty.

On redirect examination, Dr. Steinberg testified that he noted in his report that the

Petitioner was born two and one-half months premature to an alcoholic mother. He did not

mention the Petitioner’s low birth weight or continued low weight.

Dr. Pamela Auble, a psychologist and neuropsychologist, testified as an expert in

neuropsychology and forensic psychology that Post-Conviction Counsel contacted her in

April 2006 to evaluate the Petitioner and that she evaluated him in May 2006. Dr. Auble was

asked to determine whether the Petitioner had diminished capacity at the time of the offense

and whether he had mental impairments due to fetal alcohol syndrome.

Dr. Auble testified that she diagnosed the Petitioner with cognitive disorder not

otherwise specified due to fetal alcohol exposure; major depressive disorder, single episode,

severe, without psychotic features; and poly-substance dependence. Dr. Auble said that

cognitive disorder not otherwise specified had been present since the Petitioner’s birth but

that the other two diagnoses had not. Dr. Auble believed that at the time of the offense, the

Petitioner was unable to engage in reflection and judgment due to the mental disease of major

depressive disorder and the mental defect of cognitive disorder.

Dr. Auble testified that the Petitioner had cognitive deficits. She concluded that he

had deficits consistent with fetal alcohol syndrome or partial fetal alcohol syndrome and

referred him to Dr. Richard Adler and Dr. Natalie Brown, who were experts in the area. Dr.

Adler diagnosed him with partial fetal alcohol syndrome. Dr. Auble prepared an affidavit

detailing her findings of cognitive impairments.

Dr. Auble testified that she reviewed the Petitioner’s birth and childhood hospital

records from the City of Memphis, his hospital records from the Regional Medical Center,

his school records, his statement to police, his social history prepared by Ms. Shettles, a

psychological summary from the TDOC, Dr. Steinberg’s report, a summary of the

Petitioner’s juvenile records, his juvenile records, records from the ACAR Center, his

records from the Shelby County Jail, his records from the Shelby County Jail Correctional

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Medical Service, a transcript of the testimony of Dr. Steinberg and Ms. McNeely during the

penalty phase, Dr. Brown’s test results, a summary of an interview with Glenda Williams,

and the reports of Drs. Brown, Adler, Fred Bookstein, and Murray Smith. Dr. Auble stated

she had not reviewed the reports of Drs. Brown, Adler, Bookstein, and Smith when she

drafted her report. Since drafting her report, Dr. Auble had reviewed the affidavit of

complaint dated January 25, 1999, a summary of a 911 call, and the January 18, 1999 police

report prepared by Officer Elenor Worthy. Dr. Auble stated that with the exception of the

reports of Drs. Brown, Adler, Bookstein, and Smith, the materials that she reviewed were

available to trial counsel at the time of the Petitioner’s trial.

Dr. Auble testified that she found information in the Petitioner’s social history

materials suggesting that he suffered from mental impairments. The records indicated that

a strong family history of substance abuse and neglect existed and that the Petitioner’s

mother drank alcohol while pregnant, which placed him at risk for fetal alcohol syndrome.

The Petitioner’s school records revealed that he had difficulty in school from an early age

and was using substances at an early age.

Dr. Auble testified that she was aware that trial counsel wanted to present evidence

of diminished capacity. She described diminished capacity as a legal construct and said it

was not a psychological diagnosis. As a result, psychologists had to rely on attorneys to

inform them of the legal standards for diminished capacity and what evidence was necessary

to meet those legal standards. Dr. Auble understood that diminished capacity was not a

defense but was evidence that a defendant was guilty of a lesser offense. Dr. Auble said that

a defendant had to have a mental disease or defect and that the psychologist had to discuss

the particular circumstances of the offense with the defendant in order to determine whether

the mental disease or defect rendered the defendant unable to form the requisite culpable

mental state. A conclusion that the defendant had some general tendencies or a certain

personality type was not sufficient to establish diminished capacity. Rather, the conclusion

had to be linked to the time and circumstances of the offense. A conclusion that a defendant

was in an emotional state also was not sufficient.

Dr. Auble testified that neuropsychological testing was necessary based on

information in the materials she reviewed. She stated that the consumption of alcohol by the

Petitioner’s mother during pregnancy could have affected the development of the Petitioner’s

brain. According to the Petitioner’s school records, he performed poorly in school,

suggesting that he had some difficulties with cognition. Dr. Auble identified the Petitioner’s

family history of drug and alcohol abuse as another sign that neuropsychological testing was

necessary. Dr. Auble noted that Dr. Steinberg did not diagnose the Petitioner with a mental

disease or defect. Dr. Auble stated that because Dr. Steinberg was not a neuropsychologist,

he would not have “done the mental defect part of it.”

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Dr. Auble testified that she conducted a clinical interview of the Petitioner during

which he explained to her what had occurred on the night of the victim’s death. Dr. Auble

said Sergeant Ashton’s version of the offense as stated in the affidavit of complaint dated

January 25, 1999, corroborated the Petitioner’s explanation. Dr. Auble also administered

testing to the Petitioner. She saw him on May 15, 23, and 30, 2006, and May 17, 2010. She

spent a total of thirteen hours with him.

Dr. Auble testified that the Petitioner had experienced problems in functioning since

childhood. As a result, she expected his test scores to be consistent from childhood to

adulthood. Dr. Auble noted that the Petitioner’s I.Q. scores were similar throughout his life.

In 1964, when the Petitioner was nine years old, his I.Q. was 85. His I.Q. was 89 at age

eleven and 84 at age thirteen. In 1995, when the Petitioner was in the prison system and forty

years old, he was administered an I.Q. test and received a score of 82. Dr. Steinberg

administered an I.Q. test to the Petitioner in 2000, and his score was 82. Dr. Auble

administered the Wechsler Adult Intelligence Scale, third edition (WAIS-III) to the Petitioner

in 2006, and he received an I.Q. score of 84. Dr. Auble said the Petitioner’s score of 84 fell

within the below average range. She said his scores over his lifetime had been stable and

were reliable.

Dr. Auble testified that the consistency of the Petitioner’s scores over time suggested

that his effort on the tests was adequate. Moreover, the fact that his scores remained the

same over many years indicated that his scores likely were a valid and accurate measure. Dr.

Auble administered specific tests for malingering. The Petitioner received a perfect score

on the Test of Memory Malingering and an “excellent” score on the Long-Delay Force

Choice Recognition from the California Verbal Learning Test. Dr. Auble said the scores

indicated that the Petitioner was putting forth adequate effort, and she believed the results

were an accurate representation of how he could perform.

Dr. Auble testified that she administered tests to the Petitioner to measure his mental

flexibility. According to the Petitioner’s I.Q. tests scores, he performed best when he was

required to complete simple repetitive tasks. The Petitioner performed well on tests that

required him to copy symbols or complete tasks that were “very cut and dried.” The

Petitioner’s score on tests requiring him to copy symbols was within the 50th percentile. He

performed worse on open-ended reasoning tests where he was required to have ideas and

engage in reasoning. His scores on such tests were within the second and ninth percentile.

Dr. Auble said open-ended tests were not direct measures of mental flexibility but had some

relation to mental flexibility.

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Dr. Auble testified that executive functioning was defined as the ability to address

ambiguity, adapt and change behavior, cope with changing situations, plan, and make sense

out of things in life. The tests she administered that directly related to executive functioning

and mental flexibility were Trailmaking, the Wisconsin Card Sort, Word Context, Twenty

Questions, Proverbs, Tower Test, Controlled and Word Association, the Strut Test, and Ruff

Figural Fluency. Dr. Steinberg administered the Booklet Category Test, another test for

executive functioning. The Petitioner’s performance on the tests varied to some degree based

upon how structured they were. The Petitioner performed better on the more structured tests.

The Petitioner failed to develop a strategy in the open-ended tests. His scores fell within the

normal range on all but one of the high-structured executive functioning tests. His scores fell

within the abnormal range on all of the low-structured executive functioning tests.

Dr. Auble administered memory testing and concluded that while the Petitioner’s

memory was not universally impaired, it was affected by the difficulties he experienced in

complexity and organization. The Petitioner performed relatively worse on complex tests

in which he was required to organize, remember, and sort information. When compared to

those of his own age, the Petitioner’s performance was worse on the more complex tests and

better on the simpler tasks.

Dr. Auble testified that she administered the Rey-Osterrieth Complex Figure where

the Petitioner was given a model and asked to draw it as accurately as possible. The

Petitioner first was instructed to copy the figure. His copy was relatively accurate and

included all of the details. Rather than drawing an outline of the model and filling in the

details, he drew the model piece by piece. He also experienced difficulty in his organization.

He took more than seven minutes to complete his model, which Dr. Auble said was an

excessively long time. The Petitioner’s time to copy the model fell below the first percentile.

After the Petitioner drew the figure with the model in front of him, the model and his

drawing were taken away, and he was instructed to draw the model from memory. Dr. Auble

stated that the Petitioner’s memory of the figure was very poor and that he failed to include

almost all of the details. The Petitioner’s memory fell below the first percentile in relation

to those of his age. After thirty minutes, the Petitioner was asked to draw the same figure

again. The Petitioner recalled very little about the model, and his memory fell below the first

percentile in relation to those of his age. Dr. Auble said that because the Petitioner took

seven minutes to draw the initial drawing, his exposure to the model was greater than most

people who took the test. His memory, however, was quite poor.

Dr. Auble testified that the results of the tests suggested that the Petitioner did not

cope well in open-ended situations when feeling overwhelmed. When something unexpected

occurred, he tended to lose control, was unable to make sense of the situation, and acted in

maladaptive ways. It affected the Petitioner’s ability to tolerate stress and deal with

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situations that were not structured where he was required to determine the next step to take.

Dr. Auble stated that when the Petitioner was in a situation in which he felt overwhelmed and

unexpected things occurred, he did not know how to cope with the situation, and his capacity

to engage in reflection and judgment was affected.

Dr. Auble testified that she reviewed Dr. Steinberg’s report and noted that he did not

conduct a complete neuropsychological evaluation because he was not a neuropsychologist.

Dr. Steinberg administered the Luria-Nebraska and the Booklet Category Test, both of which

tested for cognitive impairment. The Luria-Nebraska was a screening test which indicated

whether a full neuropsychological battery should be conducted. A score of eight or above

indicated the need for full neuropsychological testing. Dr. Auble noted that Petitioner

received a score of eight or above. She also noted that he received an abnormal result on the

Booklet Category Test, which was a low structured test of executive functioning and mental

flexibility.

Dr. Auble testified that Dr. Steinberg did not rule out depression as a diagnosis. Dr.

Auble explained that in order to rule out a diagnosis, the expert had to consider the diagnosis

and the symptoms. Dr. Auble stated that while Dr. Steinberg administered personality

testing, he diagnosed the Petitioner based upon the Petitioner’s status at the time of the

evaluation.

Dr. Auble testified that trial counsel apparently did not inform Dr. Steinberg about the

legal requirements for diminished capacity. Dr. Steinberg based his conclusion of diminished

capacity on the Petitioner’s excessive accumulation of stressors at the time of the offense.

Dr. Auble said Dr. Steinberg did not discuss a particular mental state that existed at the time

of the offense. Dr. Auble further said Dr. Steinberg made a “personality type kind of

statement” in that the Petitioner was prone to episodes of impulsivity and acting out under

conditions of strong emotions. Dr. Auble stated that based upon her understanding of the

requirements for diminished capacity, Dr. Steinberg did not properly conclude that the

requirements for diminished capacity were met. He did not examine the Petitioner for

whether the Petitioner could have met the criteria for a mental disease at the time of the

offense, and he could not offer an opinion on whether the Petitioner had a mental defect

because he was not a neuropsychologist. Dr. Auble said that if a psychologist knew that a

mental disease or defect was a requisite part of a legal claim and administered two tests

indicating that a mental defect likely was present, she could not think of a valid reason for

not proceeding with more testing.

Dr. Auble testified that the Petitioner had difficulty in coping with open-ended

situations where he had to choose the means of solving a problem and then use that

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information from his environment to develop his own strategies to devise a plan that was

adaptive and effective. The Petitioner performed poorly on tests such as the Wisconsin Card

Sort and Twenty Questions where he was required to use feedback, determine a strategy, and

change his behavior. The Petitioner had trouble interpreting proverbs, which required him

to determine and apply inferences. He experienced difficulties with completing mental

arithmetic problems, which involved mental manipulation of information, in recalling

information where he was required to organize that information, in making sense and

categorizing a word list, and in examining groups of people and complex pictures of people.

He experienced problems with high level processing and conceptual thinking, which Dr.

Auble said were common problems for people who had been exposed to alcohol prenatally.

Dr. Auble testified that the Petitioner experienced problems with the testing of his

motor speed, strength, and dexterity. His left hand was stronger and faster than his right

hand. Dr. Auble explained that the right hand was controlled by the left hemisphere of the

brain and that the Petitioner’s issues raised the possibility of some left hemisphere damage.

Dr. Auble testified that she diagnosed the Petitioner with cognitive disorder, not

otherwise specified, a mental defect. Dr. Auble said the mental defect had been present for

the Petitioner’s entire life. According to his school records, the Petitioner had had

difficulties in school since early childhood, and his estimate of intelligence had been stable

since he was a child. Dr. Auble concluded that due to the mental defect, the Petitioner was

unable to manage his emotional reactions and was more likely to respond impulsively, make

threats, and engage in violence. The Petitioner’s argument with the victim was a highly

emotional situation. Dr. Auble concluded that due to the Petitioner’s mental defect and other

disorders, he was unable to engage in reflection and judgment during the argument.

Dr. Auble testified that she also diagnosed the Petitioner with major depressive

disorder, single episode, severe without psychotic features, which was a mental disease. She

said the Petitioner was suffering from a major depressive episode at the time of the offense

which developed in the two and one-half week period before the offense. The Petitioner lost

his job. On January 3, the victim asked him to leave her home. The Petitioner’s

grandmother, with whom he was living, was diagnosed with Alzheimer’s Disease and was

hospitalized. The Petitioner had on-going conflicts with the victim. The victim allegedly

found the Petitioner with another woman, and a close friend committed suicide. Dr. Auble

concluded that due to the mental defect of cognitive disorder, not otherwise specified, and

the mental disease of major depressive disorder, the Petitioner was unable to form the

requisite level of intent necessary for premeditation. Dr. Auble stated that the Petitioner was

unable to engage in reflection and judgment and that the offense was more a product of

excitement and passion.

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Dr. Auble testified that the Petitioner’s diagnosis supported the following statutory

mitigating factors: (1) the murder was committed while the Petitioner was under the

influence of extreme mental or emotional disturbance, and (2) the Petitioner’s capacity to

appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of

the law was substantially impaired as a result of mental disease or defect or intoxication,

which was insufficient to establish a defense for the crime but substantially affected his

judgment.

Dr. Auble testified that the Petitioner’s behavior was affected by his long-standing

cognitive impairments that related to his capacity to take in information, use judgment,

reflect on different options, and respond in adaptive ways. The Petitioner also was reportedly

intoxicated on the night of the offense and was overwhelmed by his recent losses. He went

to the victim’s home and wanted to discuss his friend’s death and the funeral. The Petitioner

said the victim wanted to discuss divorce, and he was unable to cope with the new subject.

Dr. Auble concluded that based upon the Petitioner’s mental disease, mental defect, and

intoxication, he was unable to conform his conduct to the requirements of the law, lost

control of his anger, and began striking the victim, resulting in her death.

Dr. Auble testified that Dr. Steinberg did not discuss statutory mitigating factors in

his report. He mentioned some of the Petitioner’s life history but did not really explain how

the Petitioner’s life history affected him at the time of the offense. Dr. Auble stated that

although Dr. Steinberg testified that the Petitioner was impulsive and had some stress at the

time of the offense, he did not link it to extreme mental or emotional disturbance. Dr. Auble

thought trial counsel were responsible for ensuring that the expert knew what the statutory

mitigating factors were.

Dr. Auble testified that she found evidence of non-statutory mitigating factors. She

first noted that the Petitioner’s mother was an alcoholic who consumed alcohol during her

pregnancy. Dr. Auble testified that excessive alcohol consumption during pregnancy

affected the unborn child and caused cognitive impairments in intelligence, executive

functioning, and attention. Dr. Auble also found as non-statutory mitigating factors in that

the Petitioner’s childhood involved repeated abandonment and neglect by his caregivers and

he was exposed to violence and physical abuse during his childhood that would have

modeled violence as a way to cope with problems.

Dr. Auble testified that the Petitioner spent the first month of his life in the hospital

and was unable to bond with a caregiver. During the first five years of his life in which he

was raised by his grandmother and her friends, the Petitioner was in a reasonably nurturing

environment. According to his medical records, the Petitioner was not well nourished during

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that time. However, it was still a relatively good time in his life. When the Petitioner was

five years old, his grandmother passed away, and he was placed in his parents’ care. Dr.

Auble described the Petitioner’s mother as an alcoholic prostitute and his father as a heroin-

addicted pimp. The Petitioner stayed with his parents only on weekends. During the week,

the Petitioner stayed with an aunt who forced him and his siblings to sleep on the couch and

did not feed the Petitioner adequately.

Dr. Auble testified that when the Petitioner was six or seven years old, he lived with

his mother and her alcoholic boyfriend, who was reported to have physically abused the

Petitioner. The Petitioner’s mother was unfaithful to her boyfriend with the Petitioner’s

father. When that occurred, her boyfriend would beat the Petitioner. One night, the

Petitioner woke up as he was being beaten with an iron cord and escaped from the home in

his underwear. Dr. Auble said that following the incident, the Petitioner did not have a

permanent home or any reliable caregivers. He occasionally stayed with his father or his

father’s girlfriend, who had thirteen children. In 1995, while in prison, the Petitioner

described his father’s girlfriend as his primary parental figure during his childhood.

Dr. Auble testified that the Petitioner was introduced by his family to a lifestyle of

“pimping, gambling, picking pockets, drugs, [and] alcohol.” The Petitioner subsequently was

placed in foster care. Dr. Auble said that while Dr. Steinberg mentioned the foster care, he

did not elaborate on it. The Petitioner was placed in an orphanage. Dr. Auble stated that

while such placement generally was considered traumatic for children, it was one of the most

positive experiences of the Petitioner’s childhood. The Petitioner and his sister remained in

the orphanage for two years until the Petitioner was thirteen years old. The Petitioner then

was returned to his parents’ custody. Within one year, the Petitioner was placed in the Taft

Youth Center for two and one-half years for burglary, purse snatching, and arson.

Dr. Auble testified that the Petitioner likely was genetically predisposed to addiction.

Both of the Petitioner’s parents were chemically dependent. Dr. Auble said that according

to the Diagnostic Manual for Psychiatric Disorders, forty to sixty percent of those at risk of

developing alcohol dependence had genetic influences. By the time the Petitioner was

twelve years old, he was able to drink pints of whiskey at a time. He smoked marijuana and

began abusing cocaine when he was an adult. Dr. Auble said that when the Petitioner was

intoxicated, his behavioral controls were lowered due to his mental defects. As a result, he

had a short temper and was involved in many fights.

Dr. Auble testified that due to the Petitioner’s experiences of abandonment, neglect,

and abuse, his impaired cognitive functioning, and his drug and alcohol dependency, he was

not prepared to function as a responsible adult in society. The Petitioner was angry,

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mistrustful, and often intoxicated. He had a long history of criminal activity. His

relationship with the victim was volatile and marred by his addictions.

Dr. Auble testified that although the Petitioner attempted to turn his life around, she

thought it was a “flawed effort.” Following his release from prison in 1997, the Petitioner

married the victim. He attempted to work and make a living, which he had never done

previously. The Petitioner lapsed back into addiction between October and December 1998.

Dr. Auble testified that the Petitioner had performed reasonably well since returning

to prison after killing the victim. She believed both the structured prison environment and

the Petitioner’s aging had been beneficial. He expressed remorse for killing the victim and

stopped smoking cigarettes and drinking caffeine. Religion became important to him. Dr.

Auble said the Petitioner attempted to live an “upright” life within the structure of prison,

which he failed to do when he was younger. Dr. Auble also said her findings were consistent

with those of Drs. Brown, Adler, and Murray Smith.

On cross-examination, Dr. Auble testified that she and the Petitioner discussed the

circumstances of the victim’s death. She said that the Petitioner was able to recall the

circumstances and that his recollection was reasonably consistent from what she had learned

of the events from the trial and the documentation she reviewed. Dr. Auble never spoke with

Dr. Steinberg or Lead Counsel.

Dr. Auble testified that the Petitioner was abusing alcohol, cocaine, and marijuana

during the time of the victim’s death. Dr. Auble did not recall whether she asked the

Petitioner about the exact quantities he consumed. She understood that the Petitioner

ingested as much as he could get for a few days straight. She said the Petitioner was

ingesting cocaine more than any other drug. He ingested cocaine with his friend who later

committed suicide. The friend left the Petitioner a substantial amount of cocaine. Dr. Auble

understood that the Petitioner was heavily intoxicated at the time of the offense.

Dr. Auble testified that the Petitioner told her that he went to the victim’s house

thinking that they could reconcile and attend his friend’s funeral together. When he arrived,

he and the victim argued, and the victim said she wanted a divorce. The victim asked the

Petitioner to move his car. The Petitioner told Dr. Auble that he “exploded.” Dr. Auble said

the Petitioner expressed remorse for his actions. Immediately after killing the victim, he used

more cocaine. He attempted to turn himself in to police but was turned away because the

detectives had left for the day. The Petitioner admitted everything to the police. He then

attempted to commit suicide and was placed on suicide watch at the jail.

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Dr. Richard Adler, a medical doctor and a child and adult psychiatrist who specialized

in fetal alcohol spectrum disorder, testified as an expert in forensic psychiatry and fetal

alcohol spectrum disorders. Dr. Adler was contacted by the Petitioner’s counsel on

September 19, 2008. He was requested to perform the medical component of an evaluation

that was performed by his group in order to determine whether the Petitioner had

This text is long and has been trimmed here. Open the source document for the complete record.