David Lynn Jordan v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

May 3, 2016 Session

DAVID LYNN JORDAN v. STATE OF TENNESSEE

Appeal from the Circuit Court for Madison County

No. C-11-159 Don R. Ash, Senior Judge

No. W2015-00698-CCA-R3-PD - Filed October 14, 2016

_____________________________

The petitioner, David Lynn Jordan, appeals the post-conviction court‟s denial of his

petition for post-conviction relief in which he challenged his convictions of three counts

of first degree premeditated murder, two counts of felony murder, two counts of

attempted first degree murder, two counts of aggravated assault, and one count of leaving

the scene of an accident and his sentences of death. On appeal, the petitioner contends

that (1) he received ineffective assistance of counsel during both the guilt and penalty

phases of the trial; (2) the venue of the trial in Madison County, Tennessee, violated his

rights to a fair trial and due process; (3) the State committed prosecutorial misconduct by

suppressing evidence; (4) the selection and impaneling of the grand jury was

unconstitutional; (5) the post-conviction court erred in denying his motion to continue the

evidentiary hearing; (6) the post-conviction court erred in allowing trial counsel to assist

the State during the evidentiary hearing; (7) the post-conviction court erred in excluding

an expert witness; (8) Tennessee‟s death penalty scheme is unconstitutional; (9) his death

sentence is disproportionate; and (10) cumulative error warrants a new trial. Upon

reviewing the record and the applicable law, we affirm the judgment of the post-

conviction court.

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

ALAN E. GLENN, J., delivered the opinion of the Court, in which JOHN EVERETT

WILLIAMS and CAMILLE R. MCMULLEN, JJ., joined.

Sarah R. King and Kelly A. Gleason, Assistant Post-Conviction Defenders, Nashville,

Tennessee, for the appellant, David Lynn Jordan.

Herbert H. Slatery III, Attorney General and Reporter; James E. Gaylord, Senior

Counsel; James G. Woodall, District Attorney General; and Al Earls and Jody S. Pickens,

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

OPINION

FACTS

The petitioner‟s convictions arose from a shooting on January 11, 2005, at the

Tennessee Department of Transportation (TDOT) facility in Jackson, Tennessee, where

the petitioner killed three people: Renee Jordan, his thirty-one-year-old wife who was

employed at TDOT; Jerry Hopper, an employee of the Tennessee Division of Forestry

who was at the TDOT office; and David Gordon, a motorist the petitioner ran off the road

en route to the TDOT garage. The petitioner also shot and injured two other TDOT

employees, James Goff and Larry Taylor. Following a jury trial, the petitioner was

convicted of three counts of first degree premeditated murder, two counts of felony

murder, two counts of attempted first degree murder, two counts of aggravated assault,

and one count of leaving the scene of an accident. The trial court merged the felony

murder convictions with the premeditated murder convictions involving the same victims

and the aggravated assault convictions with the attempted murder convictions.

The jury sentenced the petitioner to death for each of the three first degree murder

convictions. As to the first degree murder of Renee Jordan, the jury found that the State

had proven the following statutory aggravating circumstances beyond a reasonable doubt:

(1) the petitioner knowingly created a great risk of death to two or more persons other

than the victim murdered during the act of murder; (2) the murder was especially

heinous, atrocious, or cruel; (3) the murder was knowingly committed, solicited, directed,

or aided by the petitioner while he had a substantial role in committing or attempting to

commit first degree murder; (4) the petitioner committed mass murder; and (5) the

petitioner knowingly mutilated the victim‟s body after death. See Tenn. Code Ann. § 39-

13-204(i)(3), (5), (7), (12), (13). As to the first degree murder of Jerry Hopper, the jury

based the sentence of death upon the following aggravating circumstances: (1) the

petitioner knowingly created a great risk of death to two or more persons other than the

victim murdered during the act of murder; (2) the murder was committed for the purpose

of avoiding, interfering with, or preventing the lawful arrest or prosecution of the

petitioner or another; (3) the murder was knowingly committed, solicited, directed, or

aided by the petitioner while the petitioner had a substantial role in committing or

attempting to commit first degree murder; and (4) the petitioner committed mass murder.

See id. at (i)(3), (6), (7), (12). As to the first degree murder of David Gordon, the jury

based the sentence of death upon the following aggravating circumstances: (1) the

murder was especially heinous, atrocious, or cruel; (2) the murder was committed for the

purpose of avoiding, interfering with, or preventing a lawful arrest or prosecution of the

2

petitioner or another; (3) the murder was knowingly committed, solicited, directed, or

aided by the petitioner while he had a substantial role in committing or attempting to

commit first degree murder; and (4) the petitioner committed mass murder. See id. at

(i)(5), (6), (7), (12).

The trial court sentenced the petitioner as a Range I, standard offender to

consecutive terms of twenty-five years for each of the attempted first degree murder

convictions, six years for each of the aggravated assault convictions, and thirty days for

leaving the scene of an accident. The Tennessee Supreme Court affirmed the petitioner‟s

convictions and sentences on direct appeal. See State v. Jordan, 325 S.W.3d 1, 15-16

(Tenn. 2010). In doing so, the court concluded that the evidence was insufficient to

support the aggravating circumstance that the petitioner murdered the victims “for the

purpose of avoiding, interfering with, or preventing [his] lawful arrest or prosecution” as

it applied to the first degree murders of Mr. Hopper and Mr. Gordon. Id. at 72-73; see

Tenn. Code Ann. § 39-13-204(i)(6). The court, however, concluded that the jury‟s

erroneous consideration of the (i)(6) aggravating factor was harmless beyond a

reasonable doubt. Jordan, 325 S.W.3d at 75.

The petitioner subsequently filed a petition for post-conviction relief, which was

later amended on multiple occasions following the appointment of counsel. Following an

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

appeal followed.

TRIAL PROCEEDINGS

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

opinion on direct appeal as follows:

The State‟s theory at trial was that [the petitioner] first threatened

and then decided to murder his wife because he believed she was having an

affair with a co-worker, Johnny Emerson, and because she told him she

wanted a divorce.

Johnny Emerson testified that he was employed as a mechanic at the

TDOT garage where Mrs. Jordan worked. Emerson explained that he and

Mrs. Jordan were “just real good friends,” but acknowledged that their

relationship had developed “[a] little bit” beyond a co-worker relationship.

Physically, their relationship was limited to hugging and kissing. Emerson

said that Mrs. Jordan had been talking about getting a divorce. On one

occasion, [the petitioner] telephoned Emerson at home regarding his

relationship with Mrs. Jordan. [The petitioner] told Emerson that he was

3

“too old” for Mrs. Jordan and that he “needed [his] ass whooped.”

Emerson agreed with [the petitioner] that he “didn‟t have no business doing

what [he] did.” [The petitioner] also contacted Emerson‟s wife on

numerous occasions. At some point prior to January 11, 2005, Emerson

informed Mrs. Jordan that he was not going to divorce his wife. Emerson

testified that he was not at work on January 11, 2005, because he was on

medical leave.

Linda Sesson Taylor, an attorney in Jackson, testified that Mrs.

Jordan hired her on December 14, 2004, to represent her in divorce

proceedings against [the petitioner]. She said she initially prepared the

necessary documents for a contested divorce, and Mrs. Jordan told her she

would have the money to pay her fee after the Christmas holiday. Taylor

said she also prepared the paperwork to obtain a restraining order against

[the petitioner], and Mrs. Jordan had an appointment scheduled for January

12, 2005. Taylor identified a page out of her phone message book

indicating that Mrs. Jordan had called her office on January 11, 2005, at

9:56 a.m. wanting to know how much Taylor charged for an uncontested

divorce.

Kevin Deberry, the next-door neighbor of [the petitioner] and Mrs.

Jordan, testified that Mrs. Jordan called him on the night of January 10,

2005, and was upset with [the petitioner]. About an hour later, [the

petitioner] came to Deberry‟s house and asked Deberry to take Mrs.

Jordan‟s dog to their house and get his house key, but Deberry refused to

do so. [The petitioner] then told Deberry if he did not take Mrs. Jordan‟s

dog to her, he “was gonna take it over there and shoot it in the driveway.”

As [the petitioner] turned to walk away, Deberry noticed what he believed

to be a “snub-nose .38” in [the petitioner]‟s back pocket. [The petitioner]

then turned around and told Deberry that he “better watch [his] back, you

never kn[o]w which way the bullets are gonna fly.” Deberry called Mrs.

Jordan and told her to take her child and leave the house because [the

petitioner] was on his way over there. Mrs. Jordan told Deberry that [the

petitioner] had left some threatening voice mails on her phone. [The

petitioner] later called Deberry and apologized. The two men talked “for

awhile” and Deberry offered [the petitioner] a drink. [The petitioner]

declined but called back later and accepted Deberry‟s offer of alcohol.

Deberry said that he took a half-gallon bottle of vodka to [the petitioner‟s]

house at about 1:00 a.m. and put it in the freezer. Although [the petitioner]

and his children were still up when he arrived, Deberry did not stay and

returned home.

4

Kenneth Evans, Mrs. Jordan‟s cousin, testified that he was aware

that [the petitioner] and Mrs. Jordan were having marital problems and, on

January 10, 2005, Mrs. Jordan called and told him that “she was about to

have a nervous breakdown, and she was scared of [the petitioner], that he

was calling threatening her.” Mrs. Jordan told Evans that [the petitioner]

“was on his way out to the house and that he said . . . it didn‟t matter how

many lawyers she had and how much money she had, that what he had for

her wasn‟t going to do her any good.” Evans advised Mrs. Jordan to leave

the house and go to the police department, but she refused to do so, saying

that [the petitioner] had “had run-ins with the police department before. He

would shoot me there whether the police was there or not, and he would

probably shoot them, too.” Evans then told her to come to his house, which

she did. After she arrived, they took Mrs. Jordan‟s three-year-old daughter

to Mrs. Jordan‟s mother‟s house. Evans later hid Mrs. Jordan‟s car at a

friend‟s house, and they returned to Evans‟ home around 10:30 p.m.

The following morning, January 11, 2005, Mrs. Jordan and Evans, a

TDOT “[p]arts runner,” went to work. Mrs. Jordan worked in the office of

the TDOT garage, which was commonly referred to as “the crow‟s nest.”

That morning, Evans was in the crow‟s nest with Mrs. Jordan until

approximately 11:10 a.m., when he left to go pick up some parts. Ricky

Simpson and James Goff were in the office with Mrs. Jordan when he left.

Vernon L. Stockton, Sr. testified that on January 11, 2005, he was

employed as an equipment mechanic at the TDOT garage which was

located in the same building as the crow‟s nest where Mrs. Jordan worked.

He said he knew that Mrs. Jordan and [the petitioner] were having marital

problems. Between 9:30 and 10:00 a.m. on the morning of January 11,

Mrs. Jordan handed Stockton her portable phone when it rang and asked

him to answer it. Stockton recognized the caller‟s voice as that of [the

petitioner]. [The petitioner] asked to speak to Mrs. Jordan, but Stockton

told him that she was in the restroom because she did not want to talk to

him. Stockton said he later left TDOT to pick up some parts and was not

present when the shooting occurred.

Sonny Grimm testified that he was riding in a Ford pickup while

Paul Forsythe was driving it westbound on Lower Brownsville Road on

January 11, 2005. The two men worked for Ralph‟s Trailers and were on

their way to pick up some starter fluid for a backhoe. A green car was

traveling in front of them. As they approached Anglin Lane, Grimm saw

5

[the petitioner], who was driving a red pickup truck, run a stop sign and

strike the green car, knocking it off the road. Grimm wrote down the

license plate number of [the petitioner‟s] vehicle; he said that [the

petitioner] continued traveling toward the TDOT garage. Grimm, Forsythe,

and the driver of the green car followed [the petitioner] to the garage.

There, Grimm saw people running everywhere. Forsythe gave the driver of

the green car the license plate number of the red pickup truck. [The

petitioner] came out of the garage and told the driver of the green car, “You

better leave.” The driver responded, “I‟m not going [any] where.” [The

petitioner] said, “yes, you are, too,” reached inside his truck, pulled out a

rifle, and shot the driver.

Paul Forsythe testified that, on the morning of January 11, 2005, he

and Sonny Grimm were traveling west on Lower Brownsville Road behind

a green car when they saw a red Mazda pickup truck come down Anglin

Lane, run a stop sign, and strike the green car, knocking it off the road.

Forsythe followed the truck to get its license plate number for the driver of

the green car. Because he was driving, Forsythe called out the license

number to Grimm, who wrote it down. The pickup truck then ran a four-

way stop and turned into the main entrance of TDOT. Forsythe called 911

and pulled into the TDOT parking lot. The green car then pulled up, the

driver got out, and Forsythe gave the driver, David Gordon, the tag number

of the pickup truck. As Gordon was walking back to his car, [the

petitioner] came out of the TDOT building and told Gordon to leave. When

Gordon said, “I‟m not going [any]where,” [the petitioner] said, “You will”

and then reached inside his truck and pulled out a long gun. Gordon threw

his hands up in the air and told [the petitioner], “Please don‟t shoot. Wait a

minute.” However, [the petitioner] started shooting, and Forsythe and

Grimm fled the scene.

Randy Joe Perry, a TDOT employee, testified that on January 11,

2005, [the petitioner] came to the TDOT garage and pushed Perry out of his

way as he approached the steps leading up to the crow‟s nest where Mrs.

Jordan worked. David Pickard, another TDOT employee who was standing

near Perry, said, “Who was that son-of-a-bitch?” [The petitioner], who had

his right hand in his coat pocket, turned around and gave Perry and Pickard

a “hard look” before going upstairs to the crow‟s nest. Perry then heard

three or four gunshots and, looking through the window in the crow‟s nest,

saw [the petitioner] pointing a gun at Jerry Hopper who was sitting in a

chair. Perry heard another gunshot and saw Hopper slump over. Hearing

more gunshots, Perry ran and got behind his truck. Shortly thereafter, [the

6

petitioner] calmly walked outside to his vehicle. Perry next noticed a man

get out of another vehicle and walk toward [the petitioner]. [The petitioner]

reached inside his truck and retrieved a rifle. The man who had been

walking toward [the petitioner] stopped and raised his hands. A few

seconds later, [the petitioner] fired several shots at the man. Perry

described the shots as coming from a “fully automatic” and so quick that he

could not count them. The man [the petitioner] shot “went out of sight

down behind the vehicle.” [The petitioner] walked over to the fallen man,

shot again, “and then he turned and just calmly walked back towards his

truck, put the rifle in his truck, just eased in there and drove off just as

easy” toward the front gate.

David Thomas Pickard testified that he was standing near the stairs

with Randy Perry and other employees when [the petitioner] came in the

garage and shoved him and Perry backwards as he walked past the group of

men. Pickard responded by saying, “Who does that crazy son-of-a-bitch

think he is?” [The petitioner], who smelled of alcohol, turned around and

got in Pickard‟s face “like he wanted to whoop [him].” [The petitioner]

then proceeded upstairs to the crow‟s nest where Mrs. Jordan was facing

the window. Pickard saw [the petitioner] shoot Mrs. Jordan and described

the shooting: “The first time it went „Pow‟ and she went like this and come

back and he went „Pow, Pow, Pow,‟ like that.” Pickard ran out of the

garage to his office located across from the garage. After instructing the

employees in his office to lock the door, Pickard went back outside and saw

[the petitioner], pistol in hand, exit the garage and go to his truck and

retrieve a rifle. Pickard went back inside the office and, a few minutes

later, saw [the petitioner] leave in his truck. Pickard then went to the

crow‟s nest where he saw Mrs. Jordan and Jerry Hopper lying on the floor.

He said he looked at Mrs. Jordan and knew she was dead, but Hopper was

still alive and a man was trying to resuscitate him. Outside in the parking

lot, Pickard saw another man lying on the ground. He said the man was not

dead at that time, but he “was turning real yellow-looking and blood was

everywhere.”

James Goff testified that he was in the crow‟s nest with Mrs. Jordan,

Larry Taylor, and Jerry Hopper when [the petitioner] came in, raised his

shirt, and pulled out what appeared to be a nine-millimeter pistol. Mrs.

Jordan had her back to the door, and [the petitioner] called out her name.

Mrs. Jordan turned around, and [the petitioner] started shooting. Goff

stated that [the petitioner] was about 6 feet away. [The petitioner] shot

Mrs. Jordan in the chest and fired additional shots, including what appeared

7

to be a shot to the forehead. [The petitioner] then shot Hopper. Taylor

dove under a desk, and [the petitioner] shot Goff in the leg, the right side of

the neck, the arm, and the stomach. Although he did not see Taylor being

shot, Goff heard two more shots and heard Taylor grunt. As [the petitioner]

was leaving the crow‟s nest, Goff heard him mutter, “I love you, Renee.”

After [the petitioner] left the room, Goff got up and asked Taylor

about his condition. He saw Hopper lying on the floor “in bad shape” and

Mrs. Jordan was dead. Goff was then able to make his way to the main

office for help. He said he was hospitalized for three days as a result of his

injuries.

Larry Taylor testified that he was ending a telephone call inside the

crow‟s nest when [the petitioner] entered the room, stood there “for a

moment or so,” pulled his coat back, brandished a weapon, and took a

“police stance.” [The petitioner] then called Mrs. Jordan by name and,

when she turned to face him, shot her. One gunshot struck her in the

stomach area. She fell back in a chair, and [the petitioner] fired two

additional shots, with the second shot striking her torso “a little higher up”

and the third shot striking her in the head. Mrs. Jordan fell to the floor, and

Taylor could tell that she was dead. Taylor dove under a desk for

protection, heard more gunshots, and saw Goff fall. He then heard more

gunshots and felt pain in his legs. Taylor heard the door close, and Goff

asked him if he was all right before leaving the room. Taylor then got up

and saw Hopper on the floor on his knees with his face in his hands and

saw Mrs. Jordan on the floor with her face in a pool of blood. He called

911 and was trying to assist Hopper when he heard the door open and saw

[the petitioner] with “a rifle-type gun.” Taylor looked [the petitioner]

“square in the eye” and stood back up, holding both his hands in front of

him. He asked [the petitioner] if he could leave, and, after a brief pause,

[the petitioner] said, “Yeah, you can go out now.” After Taylor got

downstairs, he heard gunshots in rapid succession and hurriedly went out

the door. He saw Goff, who was “kind of delirious” and holding a towel to

his neck, and told another employee, Alvin Harris, to drive Goff to the

hospital in the parts truck. Taylor then got in his car and drove himself to

the hospital where he was treated for the gunshot wounds to his legs.

Freddie Ellison, a reserve sheriff‟s deputy and a mechanic at TDOT,

testified that when he returned to the garage from his lunch break around

11:30 a.m., people were running out of the garage. He then observed [the

petitioner], whom he had known for approximately twenty years, walk out

8

the roll-up doors of the garage. Ellison asked [the petitioner] what he was

doing. [The petitioner] raised his right hand and Ellison saw two semi-

automatic handguns. [The petitioner] said, “Go on. Back off. Just go on.

Back off.” [The petitioner] had his hand on one of the guns. Ellison

retreated to the back of the building where he observed David Gordon pull

up in a green car. Gordon announced that “[t]he guy in the red pickup truck

has run over me,” and Ellison advised Gordon to “back off” because [the

petitioner] had a gun. Gordon refused, stating that he had the police on the

way. Ellison then heard “automatic” gunfire and called the Madison

County Sheriff‟s Department for assistance. He and Willie Martin left

TDOT and went “out on 223.” He saw [the petitioner] leave in his red

pickup truck, driving normally and headed toward Jackson.

Shortly thereafter, Ellison observed an unmarked police unit and

advised dispatch to instruct the unit to follow [the petitioner]. Ellison then

returned to the TDOT garage and saw David Gordon on the ground.

Gordon had been shot multiple times. Inside the crow‟s nest, Ellison

discovered “blood all over the floor” and saw Mrs. Jordan lying on the floor

with multiple gunshot wounds. He described Mrs. Jordan as being “shot all

to pieces,” including being shot in the forehead. Jerry Hopper had been

shot several times in the chest.

Alvin Harris, a “store clerk” at TDOT who picked up and delivered

parts, testified that he heard gunshots and went to the garage where he

encountered Goff who was holding his throat and bleeding. He also saw

Taylor who was “real pan icky” and pointed to his legs when Harris asked

him if he was hurt. Taylor told Harris that [the petitioner] had shot Mrs.

Jordan and that she was “gone.” Because Goff was losing a lot of blood

and Harris feared death was imminent, Harris decided to drive Goff to the

hospital rather than wait for the ambulance.

Darrell Vaulx, a TDOT mechanic, testified that as he was leaving the

shop on January 11, 2005, he saw [the petitioner], Mrs. Jordan, Hopper, and

Taylor through the glass window in the crow‟s nest. [The petitioner]

pointed a gun at Mrs. Jordan, and she fell. Vaulx heard two more gunshots

and saw [the petitioner] turn toward the men in the crow‟s nest. Vaulx said

he and other employees ran outside to the parking lot where Vaulx saw [the

petitioner‟s] red Mazda pickup truck. Vaulx then saw [the petitioner] come

outside and calmly walk to his truck. Thinking that [the petitioner] was

leaving, Vaulx ran inside to the crow‟s nest where he found Mrs. Jordan on

the floor with three gunshot wounds to the head. Someone yelled, “He‟s

9

coming back,” and Vaulx ran back outside to the parking lot and noticed

that [the petitioner‟s] truck was still there. He then heard a noise that

sounded like an airgun or a rifle. After someone said [the petitioner] was

getting in his truck and leaving, Vaulx went back inside and found Hopper

who was “breathing just a little bit” and “[s]quirming” like he was in pain.

Vaulx administered CPR to Hopper until the paramedics arrived.

George Washington Bond, a TDOT employee who worked in the car

wash room in the garage, testified that he heard “three pops,” looked out

the window in the garage door, and saw [the petitioner] standing over “the

victim.” [The petitioner] then looked at Bond and shook his head, which

Bond interpreted to mean “[d]on‟t get involved.” Bond saw what appeared

to be the grip of a gun in [the petitioner‟s] hand. [The petitioner] then

walked into the garage and went to the crow‟s nest. Bond saw [the

petitioner] pointing a long gun toward where Mrs. Jordan sat. Bond then

ran to another building and did not return to the garage. On cross-

examination, Bond acknowledged that he did not see [the petitioner] shoot

“the victim.”

Barbara Surratt, Mrs. Jordan‟s mother-in-law from a previous

marriage, testified that, even after Mrs. Jordan and her son divorced, she

remained “very close” with Mrs. Jordan. During the early part of 2005,

Mrs. Jordan was staying with Surratt at her home on Old Pinson Road. On

January 11, 2005, at approximately 1:30 a.m., Surratt received a telephone

call from [the petitioner]. [The petitioner] told her that he knew Mrs.

Jordan was not there and asked her to tell Mrs. Jordan “happy birthday” the

next time she saw her. Surratt stated that Mrs. Jordan‟s birthday was not

until February. Around 11:30 a.m., Surratt telephoned Mrs. Jordan at work

and, during their conversation, heard an “ungodly racket, loud noises” and a

sound like “a chair go across the room.” She screamed Mrs. Jordan‟s

name, but got no answer. After it became quiet, Surratt heard [the

petitioner] say, “Renee. Renee. I hate you.”

Jackson Police Sergeant Mike Thomas testified that he was on patrol

in an unmarked cruiser on Vann Drive when he received a call about the

shooting at the TDOT garage. En route to the scene, Sergeant Thomas was

advised that the suspect had a machine gun. Before reaching the TDOT

garage, he observed a red Mazda pickup truck matching the description of

the suspect‟s vehicle and began pursuit of the truck. The truck ran a stop

sign. Shortly thereafter, a marked patrol unit, driven by Sergeant Sain,

passed the truck on Anglin Lane. Sergeant Sain turned his cruiser around

10

and joined the pursuit. Another unmarked unit, driven by Captain Priddy,

joined the pursuit after the suspect‟s vehicle forced Captain Priddy‟s

vehicle off the road. Officer Maxwell placed his patrol cruiser in position

to do a partial roadblock. The suspect‟s vehicle hit Officer Maxwell‟s car,

and Sergeant Thomas pulled in behind it to block it from leaving. The

suspect, identified as [the petitioner], was taken into custody. A search of

[the petitioner‟s] person revealed a loaded .45 caliber pistol and a loaded

nine-millimeter pistol. Inside [the petitioner‟s] truck, the officers

discovered a rifle and a shotgun.

Officer Ted Maxwell of the Jackson Police Department testified that

he responded to a call concerning the shooting at the TDOT garage. En

route to the scene, he encountered [the petitioner], driving a red pickup

truck, followed by two police units. Officer Maxwell said he was traveling

north on Anglin Lane, and [the petitioner] was traveling south. Ultimately,

Maxwell managed to stop [the petitioner] by ramming the front of his

vehicle. [The petitioner] got out of his vehicle, and Maxwell noticed a gun

in the small of his back under his belt. Sergeants Sain and Thomas placed

[the petitioner] on the ground and removed two handguns from him that

Maxwell identified as an Intra Arm Star .45-caliber semi-automatic with a

clip containing six live rounds and one live round inside the chamber, and

an Intra Arm Star nine-millimeter semi-automatic with a clip containing

two live rounds and one live round in the chamber. Maxwell said that eight

.45-caliber and nineteen nine-millimeter rounds were recovered from [the

petitioner‟s] pockets.

Tennessee Highway Patrol Sergeant Johnny Briley testified that he

initially received a call regarding a hit-and-run accident on Lower

Brownsville Road at Anglin Lane involving a red Mazda pickup truck.

While proceeding to that location, he received another call about the

shooting at the TDOT garage. He received information that there were

multiple victims involved. Before he reached the TDOT garage, he

observed that the suspect vehicle had been pulled over by Jackson police

officers. He stopped at the scene. Sergeant Briley said that he had known

Mrs. Jordan and her family for thirty years and also knew [the petitioner].

As [the petitioner] stood up, he told Sergeant Briley, “She fucked me over,

Johnny.” Sergeant Briley responded, “No, she didn‟t, David.” Sergeant

Briley, who was standing within a foot of [the petitioner], detected an odor

of alcohol on [the petitioner‟s] person. [The petitioner] was subsequently

placed in the backseat of a police car.

11

Jackson Police Officer Rodney Anderson testified that, en route to

the scene of the shooting, he received a call that the suspect was headed

down Anglin Lane. Officer Anderson turned onto Anglin Lane where he

observed a vehicle matching the description of the suspect‟s vehicle

between two patrol cars. The driver of the vehicle, [the petitioner], was

taken into custody and placed in the backseat of Officer Greer‟s marked

police unit. As Officers Greer and Anderson were transporting [the

petitioner] to the Criminal Justice Complex, [the petitioner] spontaneously

told them that:

he could have cut the police in half with his weapon,

that he had full auto. He stated that his wife‟s dead and she‟s

full of holes. He stated she drove him crazy . . . by fucking

around on him, and he advised that he shot her with her

brother‟s gun. He also stated that he feels sorry for his

daughters, and that Mrs. Jordan wouldn‟t be fucking around

on anybody else.

[The petitioner] also said that the other people “just got in the way”

and asked how many people were hurt. [The petitioner] also said that his

wife “hurt him and tore his heart out” and that he had been “going crazy”

for a month. Officer Anderson said that [the petitioner] smelled of alcohol.

Investigator Jeff Shepherd of the Jackson Police Department

testified that, as part of his investigation, he retrieved and recorded voice

mail messages left on Mrs. Jordan‟s cell phone. The audiotape of the

messages was entered into evidence and played for the jury; a transcript of

the messages was also provided. The messages included one left at 10:48

p.m. on January 10, 2005, stating “You‟re the only asshole on the face of

this earth that I truly hate”; one left at 2:11 a.m. on January 11, 2005,

stating “I‟ll see you at work, bitch”; one left at 2:17 a.m. on January 11,

2005, stating “I hope you go to work tomorrow, bitch, „cause you‟ll be

there one day. It may not be tomorrow, but I will catch up with your

raggedy ass. Your day is coming.”; and one left at 2:19 a.m. on January 11,

2005, stating “You home wreckin‟, low life, sorry mother fuckin‟ bitch.

Your ass is gonna pay.” Additionally, Investigator Shepherd was involved

in the booking process of [the petitioner], during which [the petitioner]

asked him if Mrs. Jordan was “real bad messed up.” [The petitioner]

started crying and told Shepherd that most people probably thought he was

crazy, but he was not crazy, he was “driven to crazy.” [The petitioner] also

12

said that the assault rifle he used in the shooting belonged to his brother-in-

law, Dale Robinson.

Trent Harris, a paramedic at Jackson-Madison County General

Hospital, testified that he and Corey Shumate, an emergency medical

technician, responded to the scene at the TDOT garage, arriving at 11:39

a.m. They first attended David Gordon, who was lying on his back in the

parking lot and appeared to have gunshot wounds to the upper right and

upper left portion of his abdomen. Gordon was not breathing but had a

faint pulse. Harris intubated Gordon and immediately began transportation

to the hospital. En route, Gordon lost a pulse and CPR was initiated. Upon

their arrival at the hospital, Gordon‟s care was transferred to the hospital‟s

trauma team.

Dr. Herbert Lee Sutton, a trauma surgeon at Jackson-Madison

County General Hospital, testified that he tried to save David Gordon‟s life

once he arrived at the hospital. Dr. Sutton was able to regain a heartbeat on

Gordon and performed surgery to try to stop the bleeding in his abdomen

and perineum. Dr. Sutton described what he saw when he surgically

opened Gordon‟s abdomen: “[T]he blast injury from what he was shot with

had almost morselized his intestines. It was like soup. And I‟m quite sure

even if I had stopped him from bleeding and he had regained everything, he

probably wouldn‟t have had any small intestine left from what I could see.”

Despite all of Dr. Sutton‟s lifesaving procedures, Gordon died at 12:47 p.m.

Dr. Sutton testified that he also treated James Goff on January 11,

2005, for multiple gunshot wounds which he described as wounds to the

left arm, abdomen, left thigh, and neck. The gunshot wound to the neck

“went anterior to the trachea and the carotid vessels which are the main

vessels that go[ ] to his brain.” The bullet did not hit any major arteries or

veins. Dr. Sutton stated that Goff remained hospitalized until January 13,

2005.

Eric Leath, a paramedic with the Medical Center EMS, testified that

he was also dispatched to the TDOT garage. Upon his arrival, he was

directed inside to an office where he observed a man lying on the floor on

his back and a woman lying inside the door to the left. The woman had “a

massive . . . injury to her head that had blood tissue lying all around, pooled

around her head” and had no signs of life. The other victim, Jerry Hopper,

was very pale and had “some gasping or . . . agona[l], gasping-type breaths,

just very shallow, slow.” Hopper had a faint carotid pulse. Leath inserted a

13

breathing tube, but Hopper was unresponsive. A Jackson police officer

offered assistance to Leath and began CPR. Hopper was then moved to an

ambulance and transported to the hospital. Upon arrival at the hospital,

Hopper exhibited no signs of life.

Dr. David James testified that he treated Jerry Hopper, who had two

gunshot wounds to his abdomen. Upon Hopper‟s arrival at the hospital, he

was not breathing and all attempts at resuscitation were unsuccessful.

Hopper was pronounced dead at 12:34 p.m. Dr. James also treated Larry

Taylor at the Jackson-Madison County General Hospital. Taylor had

suffered gunshot wounds to both of his upper legs.

Dr. Tony R. Emison, the medical examiner and coroner for Madison

County, testified that he requested autopsies on the bodies of the three

deceased victims. The bodies were sent to the state medical examiner‟s

office in Nashville.

Dr. Staci Turner testified that she performed the autopsy on Mrs.

Jordan. Dr. Turner found that Mrs. Jordan had been shot eleven times,

resulting in wounds to the head, torso, and right leg. Dr. Turner found

injuries to the scalp, the skull, the bones of the face, the brain, multiple ribs,

the right lung, the diaphragm, the liver, the right kidney, the stomach, the

small intestine, the urinary bladder, and the uterus. Dr. Turner recovered

multiple bullets, bullet jackets, bullet cores and white plastic disk fragments

during the autopsy. The gunshot wound to Mrs. Jordan‟s forehead was

fired from a handgun within a foot of the body.

Dr. Turner discovered a visible bullet in a partial exit wound in the

back of Mrs. Jordan‟s head. She recovered the bullet and the jacket that

had separated from the bullet. The bullet was identified as a Black Talon-

type bullet, one fired from a handgun. She described the bullet as having a

bullet core and a jacket, “and when it enters the body, the jacket usually

opens and forms sharp points that look like talons.” Other fragments

discovered in Mrs. Jordan‟s body were identified as coming from a high-

powered assault rifle. Dr. Turner described the wounds associated with the

bullets fired from the assault rifle: “They went through multiple ribs on the

right side of the body, through the right lung, through the diaphragm . . .,

through the liver and the kidney and into the spinal column and then lodged

in the muscle of the back with some fragments scattered throughout the

organs.” Two notes were found in the victim‟s clothing, both addressed to

Mrs. Jordan. One note was signed, “Your faithful faithful worried David.”

14

The second note was signed, “Your forgiving husband, David Lynn

Jordan.” Dr. Turner concluded that the cause of Mrs. Jordan‟s death was

multiple gunshot wounds.

Dr. Amy R. McMaster testified that she performed the autopsy on

Jerry Hopper. Hopper had suffered multiple gunshot wounds and had

multiple abrasions and lacerations resulting from these wounds. Dr.

McMaster discovered a gunshot wound to the right wrist and two gunshot

wounds to the right side of his abdomen. She recovered two projectiles

from Hopper‟s body. The projectiles were large caliber deformed hollow

point bullets, which were consistent with those fired from a nine-millimeter

weapon. Dr. McMaster concluded that the cause of Jerry Hopper‟s death

was multiple gunshot wounds.

Dr. McMaster testified that she also performed the autopsy on David

Gordon. Gordon had multiple gunshot wounds and injuries associated with

the wounds. Although no exact number of wounds could be determined,

Gordon had been shot at least thirteen times. He had wounds to his right

thigh, right forearm, right lower abdomen, right and left sides of the torso,

buttocks, and left hip. The projectiles recovered from these wounds were

consistent with a 7.62 millimeter round. Dr. McMaster concluded that the

cause of Gordon‟s death was multiple gunshot wounds.

Sergeant Mike Turner of the Jackson Police Department testified

that he collected evidence from the red Mazda pickup truck. Among the

items he recovered were: a loaded Norinco SKS 7.62 assault rifle with

twenty-six rounds in the magazine and one in the chamber; a black bag

containing a large quantity of assorted ammunition; a loaded Mossberg

twelve-gauge shotgun with two rounds in the magazine and one in the

chamber; loose ammunition; a 7.62 magazine with fourteen rounds of

ammunition; two spent 7.62 casings; and a .38 special caliber Winchester

spent casing.

Agent Cathy Ferguson of the Tennessee Bureau of Investigation

(TBI) testified that, on January 11, 2005, she was employed as a violent

crimes investigator with the Jackson Police Department. She said she

responded to the scene at the TDOT garage and was directed to the crow‟s

nest area where she found Mrs. Jordan lying in a large pool of blood that

contained brain matter. Realizing that she could not help Mrs. Jordan,

Ferguson assisted with the CPR on Jerry Hopper. Ferguson subsequently

recovered evidence found inside the crow‟s nest and outside the garage,

15

including nine-millimeter and 7.62 shell casings, bullet fragments, and a

note on which Grimm had written [the petitioner‟s] license tag number.

She said that fifteen 7.62 shell casings were recovered from the exterior

crime scene and four from inside the crow‟s nest. Nine nine-millimeter

shell casings and one live nine-millimeter round were found inside the

crow‟s nest.

TBI Agent Scott Lott testified that he and other agents executed a

search warrant at [the petitioner‟s] house on January 11, 2005. Among the

items recovered were: a Thompson Center Firearms .50 caliber muzzle

loader, a Montgomery Ward 30/30 rifle, a Remington 20-gauge pump

shotgun, a Remington 30.06 rifle, a Remington Caliber .243 rifle, a Ruger

.22-caliber rifle, a Savage Firearms .22-caliber rifle, a Ruger .44 magnum

rifle, a Springfield .410-gauge shotgun, a Pioneer 750 .22-caliber rifle, a

Bauer Firearms .25-caliber automatic handgun, a .38 Special revolver, five

live rounds of Winchester .38 Special ammunition, and a trigger group

assembly.

TBI Agent Shelly Betts, accepted by the trial court as an expert in

ballistics, testified that she examined evidence collected in this matter,

including a 12-gauge shotgun, a Norinco SKS rifle, a Star .45-caliber semi-

automatic pistol, and an Inter Arms Star nine-millimeter semi-automatic

pistol. She said that the safety feature functions on the SKS rifle had been

converted to fire in fully automatic mode, rather than the semi-automatic

mode, which was how it had been manufactured to function. She explained

that several modifications had been made to the rifle‟s trigger housing

assembly, causing the weapon to fire continuously once the trigger was

pulled. Agent Betts tested several cartridge cases recovered from the crime

scene and determined that they had been fired from the SKS rifle.

Additionally, she tested nine-millimeter cartridge cases recovered from the

interior crime scene and determined that they had been fired from the Star

nine-millimeter pistol. She examined bullet fragments recovered from

David Gordon‟s right thigh and determined that one had “conclusively been

fired through the barrel of the SKS rifle.” Agent Betts further determined

that some of the fragments recovered from Gordon‟s right hip and abdomen

had been fired through the barrel of the SKS rifle. She also examined nine-

millimeter projectiles recovered from Jerry Hopper‟s back and pelvis and

determined they had been fired from the Star nine-millimeter pistol. Her

examination of the nine-millimeter projectiles recovered from Renee

Jordan‟s leg and uterus revealed they had been fired from the Star nine-

millimeter pistol. Agent Betts said that the nine-millimeter projectile

16

recovered from Mrs. Jordan‟s brain had “probably” been fired from the Star

pistol. Fragments recovered from Mrs. Jordan‟s liver and chest were

conclusively identified to the SKS rifle. Agent Betts explained that the

7.62 rounds found in the bodies of Mrs. Jordan and David Gordon were

hollow point bullets, meaning that as soon as they struck the skin they

fragmented into numerous pieces. She examined the 7.62 magazine found

inside [the petitioner‟s] truck and described it as “an SKS-type detachable

magazine that would function in this SKS rifle, and it holds approximately

31 rounds.”

Madison County Sheriff‟s Department Sergeant Chad Lowery

testified that, shortly after [the petitioner] was apprehended, he went to [the

petitioner‟s] home to check on the welfare of any children who may have

been at the home, but no children were present when he arrived. Sergeant

Lowery discovered a loaded pistol on top of the refrigerator and saw

several other weapons in the home. On the kitchen counter, Sergeant

Lowery observed a handwritten note, which stated: “Renee got what she

deserved. Bitch. I‟m sorry. I love you. Thanks for being so good to me.

Love you Shelby, Sydney, Deanna. Thanks, Mom and Dad. You did all

you could.” On cross-examination, Sergeant Lowery acknowledged that,

during [the petitioner‟s] apprehension, he “smelled alcohol, or what [he]

thought to be alcohol” on [the petitioner].

Defense Proof

Jackson Police Investigator Tyreece Miller testified that he

interviewed [the petitioner] at approximately 3:35 p.m. on the day of the

shooting. [The petitioner] waived his right to an attorney and volunteered

to speak with Investigator Miller. During their conversation, [the

petitioner] asked how many people he had shot and if Mrs. Jordan was

dead. [The petitioner] provided a urine sample and consented to give a

blood sample which was drawn at approximately 9:50 p.m. [The

petitioner] said he had consumed approximately five shots of vodka but

“was not under the influence.” [The petitioner] also provided the following

statement to Investigator Miller:

I‟ve been married to Renee Jordan for five years. She

has a son named Tyler Surratt. He is my stepson. She has a

daughter named Sydney Jordan. She is my daughter also by

Renee. I have three others by two other women who are my

former wives. Back in the summer 2002, Renee‟s son Tyler

17

molested my daughter, Shelby Jordan. He was 10 years old

and she was 8 years old at the time. [Department of

Children‟s Services] was involved, and Tyler had to go to

counseling. On December the 11th, 2004, Tyler was in

Lindsey‟s bedroom. He was lying on his back and he had

something in his hand. He was playing with Lindsey. He

was trying to let her get whatever it was out of his hand, but

he had a tight grip on it. She was reaching for it. He would

let her grab his hand, and then he would pull her across his

body. He didn‟t know it, but I was watching him. It looked

like he was pulling her across his penis. I saw him do this

three times before I stopped him. I went in the room. I

cursed him. I told him that I was going to stick my foot up

his ass if he ever touched one of my daughters again. I left

and went deer hunting. When I got back, Renee was on the

phone with some man. My mother showed up, and Renee left

and never came back home. We did spend Christmas Eve,

New Year‟s Eve and this past Sunday night together.

Back in September 2004, Renee started having an

affair with Johnny Emerson. He works in a building where

she works. He works in the shop and Renee works in the

office. . . . I found out about their affair in October. She

admitted to it and I forgave her. This morning I woke up and

had no intentions of hurting Renee.

She called me from work. I was at home. She was

acting like a bitch. I had been begging and bending over

backwards to make this work up to this point. She

unexpectedly told me that me and my daughters from another

marriage have until the first of February to get out of her

house. She said that she was going to see her lawyer

tomorrow and she was going to have me evicted. . . . Renee

hung up on me before I had a chance to say a word. This

made my blood boil. I started loading my guns. I loaded my

12-gauge shotgun, a Star .45 caliber semi-automatic handgun

and an SKS fully automatic rifle with a folding stock. I put a

33-round clip in it. I left a note on the counter stating that if

something happens to me, I love my mother, father and four

daughters. I didn‟t know if I was going to do anything to

Renee or not. I was thinking more of killing myself.

18

I got in my 1991 Mazda truck, red, and I was going to

Renee‟s workplace at TDOT. On the way there I broad-sided

a green four-door vehicle. I was going down Anglin Lane. I

was driving fast and couldn‟t stop soon enough. I T-boned

the green car that was going down Lower Brownsville Road.

I didn‟t stop. I went on up to TDOT. I pulled up to where

Renee works. I left the 12-gauge and the SKS in the truck. I

had the .45 in a holster on my hip, the nine-millimeter was in

my back.

I walked in the office. Renee said, “What the fuck are

you doing here?” She was sitting in the chair at her desk. I

didn‟t say a word to her. I pulled out the .45 and I shot her in

the leg. I shot her in the leg because I wanted her to look at

me. She hollered. The guy that was sitting in the corner got

up and came at me. I shot him and he fell to the floor. I think

he was James Goff, but I‟m not sure. I heard him moaning.

Larry Taylor was in the office. I patted him on the back with

the pistol and told him that he needed to get out of there. He

left. I looked back at Renee, and she was already dead I

think. I can‟t remember if I had shot her more than just in the

leg. I remember the last time that I shot her was in the top of

the head with the .45. I didn‟t want to shoot her in the face.

I walked back out to my truck and I saw the guy in the

green car that I had hit. He was parked behind me. I got in

the truck. He was pointing his finger and coming at me. I

grabbed the SKS and I fired it at him. He went to the ground.

I don‟t remember going back to the office with the SKS, but

if there was a shell casing there, I must have fired it in the

office. I got in my truck and left. I had intentions of killing

myself when I got back home, but the police hit me head on.

I have made this statement openly and freely. I have

not been promised anything, and I have not been threatened in

any way. I am sorry that this happened. Renee didn‟t

deserve to die.

TBI Special Agent John W. Harrison testified that he analyzed the

urine and blood samples submitted by [the petitioner]. The result of the

19

blood sample, taken at 9:50 p.m., was “no alcohol present.” Agent

Harrison agreed that if a person consumed five shots of vodka in the early

morning hours but did not give a blood sample until 9:50 p.m., the alcohol

could have metabolized by that time. He explained that if a person

consumed five shots rapidly within an hour, the person‟s blood-alcohol

level would be approximately .10%, but about five hours later, the level

would be down to 0. The result of the urine sample, taken at 3:35 p.m., was

.17%. However, Harrison said not much significance should be attached to

that result because it did not indicate how much [the petitioner] had had to

drink. He acknowledged that all the urine sample really revealed was that,

sometime prior to the collection of the sample, there had been alcohol in

[the petitioner‟s] bloodstream. Pursuant to the TBI‟s normal operating

procedure, the samples were preserved “for a period of time and then

destroyed.”

TBI Agent Kelly Hopkins testified that she performed a drug screen

on the urine and blood samples submitted by [the petitioner]. The urine

sample was positive for Citalopram, an antidepressant, and

benzodiazepines, which include antidepressant and anti-anxiety

medications, such as Xanax. The blood sample was positive for Citalopram

but negative for benzodiazepine. Agent Hopkins explained that, after a drug

is ingested, it first goes into the person‟s bloodstream and is later

metabolized in the urine. She said that the blood sample was destroyed on

January 3, 2006.

Officer Tikal Greer of the Jackson Police Department testified that

when he and Officer Anderson transported [the petitioner] to the Criminal

Justice Complex, he noticed a strong odor of alcohol on [the petitioner‟s]

person. [The petitioner] told the officers that “his wife was dead, full of

holes” and that she had driven him crazy by “fucking around on him.”

[The petitioner] also said that “he hated [that] people got in the way” and

that his wife “got a taste of his .45 and her brother‟s gun.” Once they

arrived at the Criminal Justice Complex, [the petitioner] admitted “to

killing or hurting four people.”

Sergeant Marneina Murphy of the Madison County Sheriff‟s

Department testified that she supervised [the petitioner‟s] booking process

at the jail. She estimated that she was around the [petitioner] for thirty

minutes to one hour and described his demeanor as “more confused, maybe

not focusing, probably dazed a little bit.” She acknowledged that another

officer asked [the petitioner] the questions on the intake questionnaire.

20

Dr. Dennis Wilson, a clinical psychologist, testified that he

evaluated [the petitioner], meeting with him on four different occasions

beginning on October 12, 2005, for a total of eleven hours. He conducted

clinical interviews, IQ testing, and some brief personality testing. Dr.

Wilson determined that [the petitioner] was competent to stand trial and

that a defense of insanity was not available. However, in Dr. Wilson‟s

professional opinion, [the petitioner] “lacked substantial capacity when the

crimes were committed,” meaning [the petitioner] was “unable to exercise

restraint or judgment” and “unable to reflect or premeditate.”

In formulating his opinion, Dr. Wilson discovered that [the

petitioner] was brought up in a stable family. His parents were good

parents and were active in the community. Dr. Wilson opined that [the

petitioner] was determined to set up a loving, stable environment for his

children whom he clearly loved. Dr. Wilson also noted that [the petitioner]

had been divorced twice and suffered from depression and anxiety. He was

prescribed Prozac in his early twenties. [The petitioner] began self-

medicating with alcohol and drugs, including methamphetamine and crack

cocaine. In 1986, [the petitioner] was injured in a car accident. He had a

broken back and ribs and injuries to his knee, ankle, and pelvis. He

developed chronic headaches and various pains. Beginning in 1996, he was

prescribed narcotic medications, including hydrocodone, oxycodone,

Vicodin, Lortab, and Darvocet. In 2000, [the petitioner] was prescribed

Xanax, an anti-anxiety medication, and Ambien, for insomnia. [The

petitioner], at various times, was given other medications for depression

and agitation.

At the time of his marriage to Mrs. Jordan in 2000, [the petitioner]

had stopped using illegal drugs and “became a regular moderate beer

drinker” that “would qualify for a diagnosis of alcoholism.” Their daughter

Sydney was born in late 2001. At this time, [the petitioner‟s] previous wife

was using drugs and neglecting their two daughters. [The petitioner] and

Mrs. Jordan began trying to get custody of Shelby and Lindsey. Their

marriage began to deteriorate, however.

The couple attended marriage counseling. In September 2004, they

got custody of Shelby and Lindsey. Later, Mrs. Jordan told [the petitioner]

that she desired other male companionship and, in October 2004, she

started going to bars, staying out late, and coming home intoxicated. Mrs.

Jordan also told [the petitioner] about her relationship with a male co-

21

worker and said she wanted to have sex with this co-worker. Divorce was

imminent, and [the petitioner‟s] family structure was crumbling. During

this time, Mrs. Jordan continued her intimate relationship with [the

petitioner] but also shared the details of her encounters with other men with

him. [The petitioner] was confused and upset about her extramarital

activities. [The petitioner‟s] doctor doubled his dose of Xanax on January

4, 2005. Mrs. Jordan then gave [the petitioner] a deadline of February 1 for

him and his two daughters to move out of the house. Dr. Wilson opined

that this was the end of whatever was left of [the petitioner‟s] dream of

creating a happy home for his children.

Dr. Wilson further testified that on the date of the shooting, [the

petitioner] drank alcohol and had not slept for three days. His world had

collapsed, and he could no longer control his behavior. [The petitioner]

started talking to himself. People observing [the petitioner] after the

shooting described him as being “out of it.” [The petitioner] expressed

remorse over the incident and cooperated with the authorities. Dr. Wilson

concluded:

[The petitioner] has a major depressive disorder,

recurrent episodes. It was moderate over his lifespan. He had

generalized anxiety disorder, alcohol abuse and a borderline

personality disorder. This is by definition someone who has a

hard time maintaining interpersonal relationships, dealing

with problems, coping with stress. He just never was any

good with any of that stuff. At the time of the crime, it is my

opinion that he was intoxicated with alcohol, and it is my

opinion, I believe, that he was also intoxicated with

anxiolytics which was the Xanax. These two drugs, alcohol

and the Xanax, potentiate each other, and anything can

happen if you take both of those things together. . . . [T]hey

sort of multiply each other. They can easily do brain damage.

....

[D]issociative disorder is when . . . [t]here‟s a

disruption in the usually integrated functions of

consciousness, memory or perception of the environment.

That‟s from the Diagnostic & Statistical Manual.

....

22

You also have symptoms of what we call derealization.

That‟s as if you‟re detached and you‟re an outside observer.

It‟s like you‟re watching someone else do it.

....

I don‟t think he was in control of his faculties when all

this happened. I don‟t know if it was from the stress, from

the depression, the anxiety, the dissociation, the intoxication,

or, most likely a combination of all of the above.

Dr. Wilson opined that [the petitioner] was substantially impaired to the

extent that he was unable to form premeditation.

Asked on cross-examination if [the petitioner] was in control at the

time of the shooting, Dr. Wilson said that [the petitioner] “was in control

sometime before the crime and he became in control again after the crime,

but during the crime he was not. I‟m not sure. It‟s a gray area, a gradual

change. I just don‟t know.” Dr. Wilson opined that [the petitioner] was not

capable of forming intent at the time of the shooting. He said that [the

petitioner] “knew the difference between right and wrong. He was not

insane. He was just incapacitated.” Dr. Wilson explained that [the

petitioner‟s] “behavior was inconsistent and out of control. He was in and

out of consciousness there. He knew some things, remembered some

things and not others, but I don‟t think he was at all in control the whole

time.”

Rebuttal Proof

In rebuttal, the State recalled Investigator Tyreece Miller. Miller

reiterated that, at the time [the petitioner] gave his statement, [the

petitioner] said he had been drinking but was not under the influence of any

drugs or alcohol. He said that [the petitioner] walked steadily, was able to

answer the questions he asked, and was “very coherent.” Miller said that

[the petitioner] did not appear to be under the influence of drugs or alcohol.

[The petitioner] consented to give a urine sample but initially refused to

provide a blood sample because he did not like needles.

Following the department‟s standard operating procedures, Miller

wrote down [the petitioner‟s] statement as he talked and allowed him to

23

review it before he signed it. Asked if [the petitioner] made any additional

comments that were not included in his statement, Miller said [the

petitioner] told him, “Today is Renee‟s father‟s birthday. I guess I gave

him a hell of a birthday present.” According to the driver‟s license

belonging to Mrs. Jordan‟s father, his date of birth was January 11, 1932.

Miller asked [the petitioner] if he could include the birthday present

comment in the statement, but [the petitioner] said, “I don‟t want that in

there.” [The petitioner] also told Miller, “[Mrs. Jordan] was in a pool of

blood the last time that [he] shot her.”

On cross-examination, Investigator Miller said that [the petitioner]

signed a waiver of his rights at 3:50 p.m. and signed his statement at 5:35

p.m. [The petitioner] eventually gave his consent for a blood sample at

9:50 p.m. Miller acknowledged that a Breathalyzer test was not performed

on [the petitioner] and that [the petitioner] told him he was taking

medication. Miller said that although the police department had video

equipment, he did not have it brought to the Criminal Justice Center to

videotape [the petitioner‟s] interview because it was against departmental

policy and not standard operating procedure. Miller said he was not aware

of the availability of any video equipment in the booking area of the

Criminal Justice Center.

Dr. Daryl Matthews, a forensic psychiatrist, testified that he

evaluated [the petitioner] on April 24, 2006. Dr. Matthews spent

approximately six hours with [the petitioner], during which he conducted a

psychiatric interview and a mental status evaluation. As a result of his

examination of [the petitioner], Dr. Matthews did not find a severe mental

disorder and said, “I don‟t believe [the petitioner] has ever had a severe

mental disorder.” Dr. Matthews concluded that [the petitioner] “was able at

the time of the offense . . . to act intentionally and to act with

premeditation.” He added that [the petitioner] was able to conform his

behavior to the requirements of the law.

In reaching his determination that [the petitioner] had the capacity to

premeditate, Dr. Matthews said he reviewed, among other things, the note

[the petitioner] wrote, the recorded messages [the petitioner] left on Mrs.

Jordan‟s cellular telephone, the statements of various witnesses at the

scene, and the police reports. The messages [the petitioner] left on Mrs.

Jordan‟s phone included sarcastic comments about her obtaining a

restraining order and statements such as: “I hope you go to work

tomorrow, bitch, „cause you‟ll be there one day. It may not be tomorrow,

24

but I will catch up with your raggedy ass. Your day is coming” and “Your

ass is gonna pay.” Dr. Matthews disagreed with Dr. Wilson that [the

petitioner] was dissociated at the time of the shooting, saying that

dissociation is very common, mostly pertains to memory, and has nothing

to do with intent or premeditation.

Among the witness statements Dr. Matthews reviewed was that of

Paul Forsythe, which Dr. Matthews recited:

The driver of the red truck told the driver of the green car to

get out of here. The driver of the green car said, “No, you hit

me.” The driver of the red truck folded the seat forward on

the truck and he said, “You will.” He pulled out a black rifle

with a silencer or something on the end of the barrel. He

fired at the driver of the green car.

Dr. Matthews also recited from the statement of George W. Bond, Sr.:

“The man with the gun was white. He looked up and saw me and shook his

head as if to tell me he didn‟t want me involved.” Dr. Matthews said that

[the petitioner‟s] statement to Sergeant Johnny Briley, “Renee fucked me

over, Johnny,” showed that [the petitioner] recognized Briley and indicated

the “intactness of his mental capacity.” Dr. Matthews read from the

statement of Freddie Ellison: “When I saw [the petitioner], he had a gun

and was trying to hide it. I said, „David, what are you doing?‟ He said,

„Just go on.‟ I said, „What‟s the matter? He said, „Just go on.‟” Dr.

Matthews said that [the petitioner‟s] ability to recognize someone he knew

at the scene, Freddie Ellison, implied that he “had the ability in memory to

keep in mind people that he knew, and most importantly . . . he had the

ability not to . . . shoot Mr. Ellison.” Dr. Matthews concluded that [the

petitioner] was making choices and able to control himself at the time of

the shooting.

....

Penalty Phase

Donald Roberson, Renee Jordan‟s father, testified that she was the

youngest of his three children; his only daughter; and his last living child.

One son died of cystic fibrosis when he was seven years old, and the other

son died at age thirty-three. Roberson related that Renee‟s daughter,

Sydney, was four years old at the time of her mother‟s death and that he

25

and his wife currently had custody of her. He said that Sydney still asks for

her mother. Since Renee‟s death, Roberson has experienced “attacks,

anxiety and depression.” Roberson added that Renee was murdered on his

birthday, and he is no longer able to celebrate his birthday.

Robert E. Lee Gordon, Jr., David Gordon‟s older brother, testified

that he and David had two other brothers, both of whom were deceased at

the time of David‟s death. Gordon, Jr. explained the impact of the death of

his last remaining brother on him and his family. He said that he has

difficulty sleeping and that his brother‟s death is “all I think about, the way

he died.” One of David‟s sons was in college and the other in high school,

but both gave up on school as a result of their father‟s death. Gordon, Jr.

said he had buried two brothers and his mother in the past two years. He

related that David was a hard worker, a good father, and “very well

respected . . . a fine man.”

Shane Gordon, the eighteen-year-old son of David Gordon, testified

that he was a junior in high school when his father was killed. He said that

he thought about his father‟s death “all the time and it gets me down. . . .

It‟s just something that‟s hard to deal with.” He said that his father was a

hard worker and was kind to everyone.

Renee Dawson testified that David Gordon was her fiancé and best

friend. On the date of his murder, Ms. Dawson and Gordon had a lunch

date planned. The couple had moved into a new home together on

Thanksgiving Day, but Ms. Dawson was unable to keep the home after

Gordon‟s death. Ms. Dawson stated, “I would say that my life is empty and

my life ended that day as well.”

Emma Hopper, the wife of Jerry Hopper, testified that they had been

married twenty-nine years. She explained that losing her husband was like

“losing half of myself.” Mr. Hopper worked for the Tennessee Division of

Forestry and had been a state employee for twenty-eight years. At the time

of his murder, Mr. Hopper had been making plans for retirement. Mrs.

Hopper explained that the couple planned on spending more time with their

young granddaughter, who was eighteen months old at the time of Mr.

Hopper‟s death. She said that she had not been able to spend a single night

in their home since his death and had been living with her daughter and her

family. Mrs. Hopper testified that her granddaughter still asks, “Where is

my papaw?”

26

Misty Ellis, the daughter of Jerry Hopper, testified that she had

worked with victims of crimes in the past. She described her experience

dealing with her father‟s death as an “[a]bsolute nightmare.” Ellis said that

it was “just torture” to know that one day she would have to explain to her

daughter why her grandfather was no longer here.

TBI Agent Cathy Ferguson identified photographs of the victims.

Exhibit 179 was a photograph of James Goff depicting the bullet wound to

his abdomen. Exhibit 180 was a photograph of James Goff depicting the

bullet wound to his neck. Exhibits 181 and 182 were photographs of Larry

Taylor depicting the gunshot wounds to his legs. The photographs of Goff

and Taylor were taken at the emergency room. Exhibit 183 was a

photograph depicting Renee Jordan as she was found in the crow‟s nest at

the TDOT garage.

Dr. Amy McMaster testified that Dr. Staci Turner performed the

autopsy on Renee Jordan. Identifying exhibit 184 as a photograph

depicting a gunshot wound to Mrs. Jordan‟s forehead, Dr. McMaster stated

that the wound was inflicted from a “close range.” She explained that it

was “a close range wound because there‟s soot,” or burnt gunpowder, on

the skin surrounding the wound. She said that the wound to the forehead

was a fatal wound. The autopsy further revealed a gunshot wound to the

back of Mrs. Jordan‟s head, which went through her head and exited on her

face. Exhibit 185 was a photograph depicting the gunshot wound to the

back of the head. Dr. McMaster stated that this wound also would have

been fatal. Dr. McMaster also identified nine entrance wounds on Mrs.

Jordan‟s torso. She stated that there was significant injury to the abdominal

area, which was a potentially fatal wound. Dr. McMaster said that this

wound would have been painful. She explained, “in general terms, the

body has about 30 seconds‟ worth of reserve of oxygen in the brain. So

assuming your heart stops immediately, you‟ve got about 30 seconds left of

oxygen in your brain that will allow you to remain conscious.” She

affirmed that, during this time, one could experience pain. She added that,

depending on other factors such as adrenaline, this time period could be

longer. Dr. McMaster additionally stated that the wounds to Mrs. Jordan‟s

body were from two different caliber bullets and agreed that the wounds

were “beyond that which was necessary to inflict death.” On cross-

examination, she admitted that there was no indication in the autopsy report

of post-mortem wounds.

27

Regarding the autopsy of Jerry Hopper, Dr. McMaster testified that

he had two gunshot wounds to his abdomen, which injured segments of

bowel and also segments of the aorta. Dr. McMaster stated that these

wounds would not have been immediately fatal but would have been

painful. Hopper also sustained a gunshot wound to his right wrist. Dr.

McMaster was unable to determine the order in which the wounds were

inflicted.

Dr. McMaster testified that she performed the autopsy on David

Gordon. Gordon had “at least 13 entrance wounds” which were inflicted

from the front, the side, and the back of the body. Gordon sustained injury

to his bowel area, specifically, the natal cleft. The wounds sustained to the

buttocks and natal cleft could be consistent with Gordon being face-down

on the pavement. She opined that the number of wounds were more than

that necessary to cause death. She added that the wounds would have been

painful and that Gordon would have eventually lost consciousness.

In mitigation, [the petitioner] presented the following testimony.

Larry Jordan, [the petitioner‟s] younger brother, testified that, during their

childhood, he and [the petitioner] played ball and went fishing and hunting.

Their father was their Little League coach. Jordan stated that he would be

devastated if his brother was sentenced to death. He added that, if his

brother received a sentence of life without parole, he would maintain his

relationship with him. Jordan testified that [the petitioner] has a close

relationship with his four daughters.

Suzie Silas, a guidance counselor at Malesus Elementary School,

testified that [the petitioner] had obtained custody of Shelby and Lindsey,

his daughters from a previous marriage. She characterized [the petitioner]

as a concerned parent and said that he regularly checked on his children.

After [the petitioner] was incarcerated, Lindsey wrote a letter expressing

her desire to spend a day with [the petitioner] because “I miss my daddy

very much.” Ms. Silas also received a letter from [the petitioner] after his

incarceration, thanking her for helping his children.

Michael Lee Merriwether testified that he met [the petitioner] while

incarcerated at the Criminal Justice Complex. He stated that he and [the

petitioner] often read Christian literature. Merriwether added that it was a

benefit to him to have this interaction with [the petitioner]. He opined that

[the petitioner] has the ability to do some good while in jail, including

ministering to others.

28

Cheryl Fisher testified that she dated [the petitioner] before his

marriage to Renee Jordan. They remained friends after their romantic

relationship ended. She opined that, if [the petitioner] received a sentence

of life, his children would benefit. She explained that [the petitioner] was a

very good father and that his children idolized him. Ms. Fisher related how

[the petitioner‟s] children were having difficulty rationalizing the potential

punishment of death.

Madison County Deputy Andre Denice Hays, a jailer at the Criminal

Justice Complex, testified that she had frequent contact with [the petitioner]

and described him as quiet and polite. Deputy Hays opined that [the

petitioner] would make a good prisoner and would be able to serve a

sentence of life without parole without being a risk to any prisoner, guard,

or other human being.

Sergeant Neina Murphy, also assigned to the Criminal Justice

Complex, testified that she had not had any problems with [the petitioner]

since his incarceration. She affirmed that [the petitioner] had not

demonstrated to her that he would be a threat to any prisoner, guard, or

other human being. She added that she would be disturbed if [the

petitioner] received the death penalty.

Madison County Deputy Jason Walker, a jailer at the Criminal

Justice Complex, testified that [the petitioner] often mentioned his family.

Deputy Walker stated that [the petitioner‟s] demeanor was pleasant, he

never complained, and he did what he was told to do. He described [the

petitioner] as one of the better inmates. Deputy Walker opined that [the

petitioner] would make a good prisoner in the penitentiary and would not

be a threat to other individuals.

Deanna Jordan, [the petitioner‟s] oldest daughter, testified that she

was a junior at Freed–Hardeman University. She said that she had three

sisters, Lindsey, Shelby, and Sydney, and that they all loved their father and

knew that he loved them. She stated that, while her father will not be able

to walk her down the aisle, she would like for him to be able to meet his

grandchildren some day. She stated that she wanted [the petitioner] to have

a part in their lives, even if it was just visitation.

Dr. Dennis W. Wilson made a PowerPoint presentation to

demonstrate the psychological point of view of the mitigating factors. He

29

explained that [the petitioner] started life in a stable and loving family but

later suffered from depression, anxiety, and insomnia. He stated that [the

petitioner] began using drugs and alcohol. Dr. Wilson spoke of [the

petitioner‟s] two failed marriages before marrying Renee. He mentioned

[the petitioner‟s] four children. He described [the petitioner‟s] health

problems and prescription medications. Dr. Wilson testified regarding the

disintegration of [the petitioner‟s] marriage to Mrs. Jordan. He said [the

petitioner] took too much Xanax, drank vodka, lost control, and “fell

apart.”

Dr. Wilson also described [the petitioner‟s] remorse expressed very

soon after the incident. He verified [the petitioner‟s] status as a model

prisoner. He added that [the petitioner] was fully aware that he will spend

the rest of his life in prison. Dr. Wilson opined that the structured setting of

incarceration was good for [the petitioner] because the stressors of every

day life were gone. [The petitioner] had adjusted well to the environment.

Dr. Wilson added that [the petitioner] had been a loving and active father.

Dr. Wilson provided his opinion as a clinical psychologist:

[The petitioner] was under a lot of stress. He has a long

history of not being able to deal with stress or change, and he

was disturbed at the time of this crime.

And t[o]o, he was impaired also due to that chronic

depression and anxiety, plus the intoxication. He just wasn‟t

used to drinking that much. He took the Xanax in an attempt

to try to sleep or calm down. He wasn‟t trying to get

intoxicated, but the net effect was that he became impaired.

....

Confinement is -- No one will ever have to worry

about him doing something like this ever again, and even

inside the prison system, he‟s likely to have a calming effect.

. . . And importantly, he will be punished for what he did.

Gary Morris, the pastor of Bemis United Methodist Church, testified

that [the petitioner‟s] parents were members of his congregation. Since the

incident, Morris had visited [the petitioner] at the jail between thirty-five

and fifty times. He recalled that, the day after [the petitioner‟s] arrest, [the

30

petitioner] appeared dazed and confused. [The petitioner] was very tearful

and emotional and asked Morris to attend Mrs. Jordan‟s funeral. Morris

stated that [the petitioner] had expressed his repentance and remorse. He

added that it would be devastating to the family if [the petitioner] received a

sentence of death.

Jordan, 325 S.W.3d at 16-35 (footnotes omitted).

POST-CONVICTION PROCEEDINGS

Petitioner’s Proof

Lead counsel testified that he had been the District Public Defender since 1990

and had represented defendants in multiple capital cases prior to representing the

petitioner. One case proceeded to the penalty phase, and the defendant in that case

received the death penalty.

Lead counsel said he first met the petitioner on January 14, 2005, shortly after he

was appointed to the case in Jackson City Court. The petitioner described his actions as

“psychotic” and said he was taking Xanax, Celexa, Dolgic, hydrocodone for his knee,

and Mobic. He stated that he was seen by Dr. Andy Coy twice and called him

complaining of the inability to sleep. Lead counsel noted that the petitioner had not slept

in two days and had had issues sleeping in the past thirty to forty days.

Lead counsel represented the petitioner during the preliminary hearing on April

13, 2005, and the petitioner‟s case was bound over to the grand jury. Lead counsel

visited the petitioner at the jail on April 28, during which they discussed the petitioner‟s

health problems and the different medications he had been taking. Lead counsel

questioned whether the medications had interacted. The petitioner complained of trouble

sleeping during a meeting on July 27.

The petitioner was indicted on August 1, 2005; the death notice was filed on

August 8; and lead counsel was appointed by the trial court to represent the petitioner on

August 10. On August 9, an assistant public defender, who was acting as co-counsel at

the time, filed a motion for discovery in which he requested all tangible and exculpatory

evidence in the State‟s possession. The trial court entered a scheduling order setting the

jury selection for May 15, 2006, and the trial for the following day.

Lead counsel testified that based upon his prior experiences, he did not believe

that he could seek funding for expert services until he was appointed in the trial court

31

after the petitioner was indicted. He had requested funding for expert services in a prior

case before he was appointed in the trial court, and the Tennessee Administrative Office

of the Courts had denied the request. On August 25, 2005, lead counsel filed a motion

for funds to retain Glori Shettles, a mitigation specialist with Inquisitor, Incorporated,

with whom lead counsel had previously worked on other cases, and funding was

subsequently approved. Franklin Rice, a former police officer and an investigator on lead

counsel‟s staff, also was assigned to the petitioner‟s case. Ms. Shettles interviewed

witnesses, obtained records, discovered possible mitigation themes, worked with the

petitioner, and investigated all aspects of the case.

Lead counsel testified that on August 25, 2005, he filed a motion seeking the

approval of funds to retain Dr. Dennis Wilson, a licensed clinical psychologist. The

motion stated that the petitioner had been treated for depression and appeared to have

been under extreme mental stress at the time of the shooting. The motion also stated that

the petitioner‟s mental condition needed to be evaluated for the purposes of sanity,

diminished capacity, and mitigation-related issues.

Lead counsel recalled that on September 2, 2005, the prosecutor sent him a letter

listing discovery materials and requesting that he acknowledge his receipt of the materials

by checking off each document listed and returning the letter. The letter listed the

petitioner‟s consent to give a urine sample, his consent to give a blood sample, and his

consent to search his home for medication. There was a checkmark acknowledging the

receipt of the serology report. Lead counsel said he thought he had to write a letter to the

prosecutor requesting the report on “urine and alcohol.”

Lead counsel acknowledged that according to Investigator Tyreece Miller‟s report,

Investigator Miller requested that the petitioner submit urine and blood samples

following his arrest on January 11, 2005. The petitioner agreed to submit a urine sample

but refused to submit a blood sample because he did not want to be stuck with a needle.

He signed the consent form for the urine sample at 3:35 p.m. but initially was unable to

provide a urine specimen. He provided a urine sample at some point during his interview

and signed his statement at 5:35 p.m. Lead counsel noted that the evidence form and

property receipt from the Jackson Police Department seemed to indicate that the urine

sample was taken at 3:35 p.m. The petitioner signed a form consenting to a blood sample

at 9:50 p.m., and four tubes of blood were taken from him at 10:05 p.m.

Lead counsel noted that the TBI‟s report of the blood and urine analysis was

issued to Agent Cathy Ferguson on May 18, 2005, after the preliminary hearing but

before lead counsel was appointed in the trial court. Lead counsel explained that,

technically, his office‟s obligation to represent a defendant in the general sessions court

ends following the preliminary hearing. Once a defendant is indicted, the trial court

32

reevaluates the issue of indigency. Lead counsel said that because he knew the State

could seek the death penalty against the petitioner, he met with the petitioner on several

occasions between the preliminary hearing and the arraignment in the trial court.

Lead counsel stated that his notes of the meeting with the petitioner at the jail on

October 11, 2005, reflected that he questioned whether the blood sample was analyzed

for alcohol and noted the urine sample was analyzed for alcohol. He questioned whether

the intoxication level at the time of the offense could be determined through the urine

sample. He acknowledged that in his notes dated November 7, 2005, he questioned

whether there were any blood test results for the petitioner.

The petitioner signed a consent form on January 11, 2005, at 5:45 p.m. to search

his residence for prescription medication. During the search, officers seized at least four

prescription medications. The dosage of the Xanax seized was one milligram.

Lead counsel testified that Ms. Shettles collected pharmacy records of the

petitioner‟s prescription medication. She spoke to Dr. Wilson regarding any issues that

arose from a change in the dosage in the petitioner‟s prescription for Xanax

approximately one week prior to the shootings. Ms. Shettles stated in a memorandum

that from November 14, 2000, to July 19, 2004, the petitioner‟s dosage of Xanax was 0.5

milligrams. Three refills were noted at the time of the July 2004 prescription. On

January 4, 2005, the petitioner‟s dosage of Xanax was increased to one milligram after he

called his doctor complaining of insomnia. Ms. Shettles indicated that Dr. Wilson was

interested in the number of tablets remaining in the January 4 prescription bottle.

Lead counsel stated that on November 16, 2005, Dr. Wilson faxed him a letter

requesting that lead counsel consider retaining a psychiatrist. Dr. Wilson stated that a

psychiatrist was needed to evaluate the “interaction of physical and psychiatric

functioning with the ingestion of the medication and use of alcohol as relates to [the

petitioner‟s] state of mind at the time of the crime.” As a result, lead counsel retained Dr.

Caruso.

On November 17, 2005, a new scheduling order was filed setting the hearing date

on all pending matters for February 13, 2006; the plea deadline and the deadline for

disclosing the use of a mental health defense in either phase of the trial for March 6,

2006; and the trial for May 22, 2006. The trial was later continued to September 19,

2006. Lead counsel subsequently filed a Motion for Disclosure of Brady Material and a

Motion to Disclose Information Relating to Mitigating Circumstances. He said he

considered toxicology reports; blood and urine evidence; witness statements supporting

intoxication; and any other physical evidence indicating the presence of alcohol,

33

prescription medication, nonprescription medication, or other intoxicants in the

petitioner‟s blood or urine to be potentially exculpatory or mitigating.

On February 9, 2006, lead counsel requested the appointment of co-counsel. He

explained that the assistant public defender who was assigned to that particular trial court

had been serving as co-counsel “by default.” The assistant public defender‟s

involvement in the case was limited due to his full caseload and health problems. Lead

counsel stated that he and the assistant public defender were the only death qualified

attorneys in the office and that he believed he needed another attorney to assist him.

Lead counsel testified that, at some point, he realized he did not have the

toxicology report of the urine and blood samples and that TBI Special Agent J.W.

Harrison faxed the report to him on March 30, 2006. Lead counsel stated that the report

was issued on July 8, 2005, during the “limbo period” following the preliminary hearing

but before lead counsel was appointed in the trial court. The report provided that

“[p]resumptive testing indicates the possibility of benzodiazepines,” that the crime

laboratory should be contacted if further testing is necessary, and that the evidence would

be destroyed in sixty or eighty days. The TBI agent who issued the report was Special

Agent Kelly Hopkins, whom the defense called as a witness at trial. On March 30, 2006,

lead counsel spoke to Special Agent Harrison, who stated that converting the petitioner‟s

urine alcohol level to a blood alcohol level would be “pure speculation.” Lead counsel

asked him if the samples were still available, and Special Agent Harrison said that they

“probably” were and that if lead counsel wanted the evidence to be preserved, he should

send a written request. On April 7, 2006, lead counsel sent a letter to the TBI Crime

Laboratory requesting that the petitioner‟s blood samples be preserved in the event that

additional testing was required. The blood sample, however, had already been destroyed.

Lead counsel testified that he, co-counsel, Ms. Settles, and Dr. Wilson met on

multiple occasions. Dr. Wilson assisted counsel in preparing questions for the State‟s

experts at trial. Lead counsel was “fairly positive” that they discussed whether they

could make a case that six of the petitioner‟s one-milligram Xanax tablets were

unaccounted for between January 5 and January 11, 2005. Lead counsel researched the

effects of Xanax and learned that Xanax can encourage suicidal thoughts or mania and

may intensify the effects of alcohol. He also learned that a person should not drink

alcohol while taking Xanax.

Lead counsel did not recall whether he received from the State a photograph of a

squeeze bottle found on the floor on the passenger side of the petitioner‟s truck. He said

an inventory of the truck‟s contents may have been provided to him as discovery. He did

not believe that he filed a motion to preserve the evidence.

34

Lead counsel recalled that two of the petitioner‟s daughters were living with him

on January 10-11, 2005. The petitioner obtained custody of his daughters following an

investigation by the Tennessee Department of Children‟s Services into allegations of

child abuse and neglect while the children were living with their mother. Dr. Wilson

attempted to schedule a meeting with the petitioner‟s daughters and his parents through

Ms. Shettles.

Lead counsel testified that in December 2005, he filed a motion seeking a change

of venue. He alleged in the motion that The Jackson Sun had carried sensational stories

regarding the case. He explained that the newspaper reporters had interviewed people

who had not witnessed the shooting and had written stories that included many rumors

about the case. He also alleged in the motion that radio and television stations carried

news reports at various hours of the day and sent stories regarding the petitioner into

practically every home in the county. Lead counsel filed a motion to conduct individual

and sequestered voir dire in which he alleged that due to the publicity that the case had

received, there was a significant possibility that potential jurors had been exposed to

certain information in the case and may have formed an opinion regarding the petitioner‟s

guilt and the appropriateness of the death penalty.

Lead counsel withdrew his motion for change of venue in February 2006 while

reserving the right to revisit the issue. He explained that the trial court stated that it

would revisit the issue if they were unable to obtain a jury due to the publicity the case

had received. He said he met with co-counsel and Ms. Shettles and discussed whether

they should pursue the change of venue motion or try the case with a Madison County

jury. Lead counsel also discussed the issue with the petitioner and his parents. Lead

counsel stated that because the petitioner‟s family were well-known members of the

community with good reputations, trial counsel believed that they would have “just as

good a shot at a fair jury” in Madison County as in any other county. Lead counsel said

that after speaking to other attorneys, he learned that when the venue is changed and a

new jury is brought in to hear the case, those jurors feel that the case has to be very

serious or they would not have been brought in for it. He stated, “So we did a good bit of

discussion and just made what I call a tactical decision to withdraw” the motion for a

change of venue. He explained that he understood that if the parties were unable to

obtain a fair and impartial jury during the voir dire process, the trial court would recess

and change the venue. Lead counsel did not hire a jury consultant or conduct a venue

study in Madison County to determine the level of saturation and preformed beliefs

regarding the petitioner‟s case.

Lead counsel said that trial counsel drafted a proposed jury questionnaire but that

the trial court used its own jury questionnaire. The parties conducted individual voir dire

addressing the death penalty and pretrial publicity and conducted voir dire of the jurors as

35

a group on the “general questions.” The defense did not use all sixteen of its preemptory

challenges. Lead counsel identified a newspaper article in which he was quoted

regarding his concern that some of the jurors stated that the petitioner had not shown

remorse. Lead counsel was further quoted in the article as stating that the petitioner was

taking antidepressants, which could have accounted for his lack of expression during the

trial.

Lead counsel testified that he and co-counsel worked together in preparing for the

cross-examination of each of the State‟s witnesses. Lead counsel recalled that Barbara

Surratt gave a statement regarding her telephone conversation with Renee Jordan on the

morning of January 11, 2005. Ms. Surratt stated that Mrs. Jordan told her that the

petitioner‟s mother said the petitioner needed to be committed to a mental health facility

and that his mother did not know how to do it. Mrs. Jordan also told Ms. Surratt that she

would be home after work and hoped to meet with her attorney. Lead counsel stated that

he made a strategic decision not to question Ms. Surratt about these statements. He

explained that the statements were “double hearsay,” “could open the door to a lot more

of that stuff,” and were not helpful. He did not recall whether he considered investigating

the statements.

On cross-examination, lead counsel testified that he had tried more than 100 jury

trials and that at the time of the petitioner‟s case, he had tried almost twenty murder trials.

He acknowledged that the defense at trial was intoxication with alcohol combined with

the effects of prescription medications, depression, and other factors listed by Dr. Wilson

in his testimony. He explained that a large portion of the defense was that various

stressors in the petitioner‟s life “caused him to snap.” Dr. Wilson referenced medical

reports of the petitioner‟s prior injuries, including a broken back and fractured ribs from a

car accident, and discussed the stressors placed on the petitioner due to the injuries. Dr.

Wilson also discussed the effect of the stress of the petitioner‟s multiple divorces and

pending divorce.

Lead counsel stated that based upon his prior cases, he knew that a person who

was abusing cocaine could be violent. He was aware of evidence that the petitioner was

abusing cocaine either prior to or during his marriage with Mrs. Jordan and that the

petitioner had quit using cocaine sometime prior to the shootings. Lead counsel recalled

several occasions during the trial when the State attempted to introduce evidence of

violence in the family and he objected. The State had certified copies of the petitioner‟s

prior conviction of domestic assault in which the petitioner received diversion and

evidence of another incident witnessed by Kevin Deberry. Following a jury-out hearing

on the issue, the trial court excluded the evidence. Lead counsel said that if he had

attempted to establish that the shooting was an isolated incident, the State would have

attempted to establish that the petitioner had been violent in other situations.

36

Lead counsel acknowledged that the case was highly publicized and said that he,

co-counsel, and Ms. Shettles discussed withdrawing the request for a change of venue

with the petitioner‟s family. Lead counsel noted that the petitioner came from a good

family, who was well known in the community. The petitioner‟s father coached little

league for a number of years and “did some flea market work.” Lead counsel said trial

counsel discussed the issue with the petitioner and “bounced that back and forth. We

didn‟t just come to it just, snap, let‟s let it go. We made a decision as a team.” Lead

counsel characterized the decision as a trial tactic and explained, “We thought we might

have as nearly or even better chance of getting a fair jury in this community as any other

under the circumstances. A lot of times, you don‟t have a family that is well-known or

well-liked in the community.”

Lead counsel testified that trial counsel utilized the potential jurors‟ completed

questionnaires during voir dire. During the group voir dire, jurors were questioned about

intoxication, reasonable doubt, any experiences as victims of crimes, burden of proof, and

other general issues. Individual voir dire occurred in the jury room in the presence of the

judge, lead counsel, co-counsel, Ms. Shettles, the petitioner, the district attorney general,

and his assistants. Lead counsel said he questioned jurors individually about pretrial

publicity to avoid the risk of tainting the entire jury pool. He recalled that several

potential jurors were excused due to their knowledge of the case. He also recalled that

other potential jurors either had not heard a great deal about the case or had not formed

an opinion based upon what they had heard. Lead counsel believed potential jurors were

remaining in the jury pool once the jury was chosen. He said each juror stated that he or

she could base the decision on the law and the evidence presented and be fair and

impartial in making his or her decision.

Lead counsel testified that the defense‟s strategy in choosing jurors who knew the

petitioner‟s family was successful in that they were able to retain a particular juror, whom

he identified. The juror previously attended St. Luke‟s Episcopal Church with co-counsel

and lead counsel‟s wife. Lead counsel recalled that at the time, the church had “qualms”

about the death penalty, and he was familiar with statements in the church against the

death penalty. Lead counsel noted that the juror also was a special deputy for the

Madison County Sheriff‟s Department and a member of the NRA and that the district

attorney general had assisted the juror on a prior occasion.

Lead counsel stated that he represented the petitioner during the preliminary

hearing and had the opportunity to cross-examine several of the State‟s witnesses at that

hearing. He later obtained a copy of the transcript of the preliminary hearing. He said

the State had an “open file” policy where he could obtain copies of all the files from all of

the state agencies.

37

Lead counsel acknowledged that he first became aware of the TBI reports of the

blood and urine analysis “a little bit later in the game” in March 2006 after the evidence

was destroyed. He said that the report of the urine analysis was dated May 2005 and that

as a result, the urine sample likely had been destroyed by the time he was appointed in

the trial court and had discovery. He noted that one report was issued on July 8, 2005.

He said when he first learned of the report in March, he contacted Special Agent

Harrison. Lead counsel confirmed that he was aware of the blood draw because

Investigator Miller testified during the preliminary hearing and the petitioner‟s statement

was read into evidence. Lead counsel explained that TBI laboratory reports could take

several months to be issued but that “[t]his one just came back quicker I guess.” Upon

learning that the evidence might be destroyed, he took immediate action. He raised an

issue regarding the destruction of the blood samples in his motion for new trial and on

appeal.

Lead counsel stated that he researched the effects of alcohol and Xanax in

preparing to present experts on the issue. He also stated that he introduced the blood and

urine reports into evidence at trial and asked Special Agent Harrison to conduct a

retrograde extrapolation from the urine. Lead counsel said he and co-counsel discussed

locating an expert who would say that retrograde extrapolation from urine was an

accurate process from a single sample of urine. Special Agent Harrison explained the

factors that affected the reliability of retrograde extrapolation from the urine. He testified

at trial that alcohol was in the petitioner‟s bloodstream at some time in the recent past and

that the alcohol had gone into the urine. The petitioner did not drink alcohol after the

shootings because he was apprehended immediately.

Lead counsel testified that one of the factors in the decision against calling Dr.

Caruso as a witness at trial was Dr. Caruso‟s opinion that the petitioner was able to

premeditate at the time of the shootings. Lead counsel said that while Dr. Caruso

included helpful mitigating factors in his report, lead counsel believed that he could

establish those factors through Dr. Wilson‟s testimony. Lead counsel discussed the issue

of whether to present Dr. Caruso‟s testimony with co-counsel and Ms. Shettles. Lead

counsel recalled that Dr. Caruso discussed the petitioner‟s ability to premeditate and that

the petitioner moved “in his steady progression and decide[d] what to do and that sort of

thing.” Lead counsel said Dr. Caruso‟s finding of narcissistic personality disorder “was

going to be a real problem.” Lead counsel also said Dr. Caruso‟s opinion was consistent

with Dr. Matthews‟ opinion.

Lead counsel testified that by withdrawing Dr. Caruso as an expert, the State was

not entitled to see his report. Lead counsel assumed that had he retained another expert,

the State would have attempted to learn about Dr. Caruso‟s opinions. He noted that many

38

of Dr. Caruso‟s findings were supported by the physical evidence and said he was able to

use Dr. Wilson as a defense witness. Finally, he explained that if a defense attorney has a

client evaluated by multiple experts and uses the expert who gives the most favorable

opinion, the jury could think that the attorney was “shopping for experts.”

Lead counsel testified that Dr. Nat Winston conducted the initial forensic

evaluation of the petitioner as ordered by the city court judge. Lead counsel noted that

such evaluations were fairly routine in these types of cases. He was given a copy of Dr.

Winston‟s report and said that according to the report, the petitioner denied having

hallucinations and stated that “he took two swigs out of his wife‟s vodka bottle but he

was not drunk and knew what he was doing.”

Lead counsel stated that he did not file a motion to suppress the petitioner‟s

statement to the police because he did not believe any grounds for suppression existed.

He explained that the petitioner signed a written waiver of his rights and that the

statement appeared to be knowingly, voluntarily, and intelligently given. He noted that

the petitioner made voluntary statements to the police following his arrest, some of which

were more damaging than his formal written statement. Lead counsel said portions of the

written statement were needed to support the defense. In the statement, the petitioner

expressed some remorse and stated that he had five shots of vodka prior to the shootings.

Lead counsel recalled that the defense called Investigator Miller as a witness “to do a

little front-loading mitigation on the remorse and put on the evidence of intoxication

there with him.”

Lead counsel did not file a motion to suppress the search of the petitioner‟s home.

He understood the initial entry involved a welfare check of the petitioner‟s two daughters

who had been living with the petitioner at the time of the shootings. He said that

following their initial entry, the police officers backed out of the home and obtained a

search warrant.

Lead counsel acknowledged that the petitioner demonstrated in his statement a

“ready recollection” of many of the details up to the time of the shootings. The petitioner

was able to load multiple weapons and drive to Mrs. Jordan‟s place of employment.

During the trial, evidence was presented establishing that the petitioner walked past

several people without harming them. Lead counsel said that the petitioner was unable to

remember some details, such as returning to the crow‟s nest following the initial

shooting, and that the defense used the lack of memory as evidence of “some impaired

mental state.” Lead counsel noted that Dr. Caruso viewed the petitioner as having

“selective memory.”

39

Lead counsel testified that he and co-counsel conferred with each other regarding

the cross-examination of Dr. Matthews and that co-counsel questioned Dr. Matthews at

trial. Lead counsel described Dr. Matthews as a “loose cannon” and said, “If you start

asking him too many questions, he will be explaining into the next year. He just keeps

on.” He said Dr. Matthews was a very experienced witness who knew how to answer a

question in such a way that he could discuss as much evidence as possible. Dr. Matthews

discussed evidence that the State could not otherwise introduce. Lead counsel stated that

trial counsel attempted to show that Dr. Matthews was a “hired gun from Hawaii.” Lead

counsel also stated, “We were just trying to shut him up and get him out of here.” He

noted that he and co-counsel did not question Dr. Matthews extensively on the issue of

the petitioner‟s mental state because Dr. Matthews was a damaging witness if not

“reign[ed] in.” Lead counsel raised an issue on appeal regarding Dr. Matthews‟ reference

to evidence that the State could not otherwise introduce. The court concluded that the

trial court‟s failure to give a curative instruction was harmless error.

Lead counsel stated that while he understood that Mrs. Jordan‟s statement to

Barbara Surratt regarding the statement of the petitioner‟s mother was “double hearsay,”

he also did not want to question Ms. Surratt about the conversation due to fear that he

could open the door to any other statements made by Mrs. Jordan during the

conversation. Lead counsel said that because there was physical abuse in the family

history, open-ended questions that might lead to evidence of such abuse needed to be

avoided. He did not call the petitioner‟s mother to testify about the petitioner‟s need to

be committed because his parents wanted to be present in the courtroom for the trial.

The trial court ruled that the petitioner‟s parents could not remain in the courtroom during

the trial if they were going to testify. Other family members who testified regarding

mitigation evidence were not allowed to remain in the courtroom for the trial. Lead

counsel challenged the trial court‟s ruling on appeal, and the Tennessee Supreme Court

held that the trial court erred but that the error did not affect the verdict and the sentence.

Lead counsel said he and co-counsel made every effort to elicit from every witness

who came into contact with the petitioner any information that may have supported an

intoxication or mental health defense. He believed that they were not surprised by any of

the evidence that was presented at trial. He also believed that Ms. Shettles interviewed

Kevin Deberry prior to trial and that he discussed giving the bottle of vodka to the

petitioner.

Lead counsel testified that he asked Ron Lax with Inquisitor, Incorporated to

analyze the crime scene evidence and offer an opinion as to whether the evidence

supported the actions of someone who was acting irrationally. Lead counsel asked Mr.

Lax to determine whether the shots were random or were “well-targeted.” Mr. Lax

issued a report in which he concluded, “Based on my review of this material, I could not

40

offer any opinion that the crime scene evidence suggested David Jordan was not fully

aware of what he was doing. This is based on the earlier phone call to TDOT, the amount

of ammunition, his comments to others present and the accuracy of the shots fired.”

On redirect examination, lead counsel testified that he understood that the

petitioner‟s prior domestic violence charge was a misdemeanor offense. The petitioner

was alone in his backyard firing several gunshots, and someone called 911.

Lead counsel said Dr. Winston likely conducted the initial evaluation without

relying upon a social history and the toxicology report from the TBI. Lead counsel

received the toxicology reports on March 30, 2006. He first interviewed the petitioner on

January 14, 2005, and learned early during his representation that blood and urine

samples had been taken. He received discovery from the State referencing the toxicology

reports in September 2005 and acknowledged that the samples were not destroyed until

January 3, 2006.

Lead counsel acknowledged that funding for Dr. Caruso was approved in January

2006 and that the defense‟s expert disclosures were due in March 2006. Lead counsel

further acknowledged that Dr. Caruso had a “somewhat limited” amount of time in which

to conduct an evaluation. Unlike Dr. Wilson, Dr. Caruso did not find any evidence of

dissociative disorder. Dr. Caruso indicated that the petitioner had experienced some

trauma and discussed “[l]oss or abandonment precipitating violence,” including Mrs.

Jordan‟s threat to leave him and force him and his children out of their home. Dr. Caruso

concurred that the petitioner had difficulty controlling himself. When asked about

diminished capacity, Dr. Caruso said, “Maybe, but there‟s too much organization.” Lead

counsel acknowledged that he did not retain a neuropsychologist, neuropharmacologist,

toxicologist, or pharmacologist.

Lead counsel testified that Mr. Lax was a licensed private investigator. He did not

know whether Mr. Lax had a degree in the area of forensics or any training in ballistics

but said Mr. Lax appeared to be well-qualified in those areas. He never filed a motion to

retain Mr. Lax as an expert, and Mr. Lax agreed to perform the work as part of their

hiring of Inquisitor, Incorporated.

Co-counsel testified that he was appointed to represent the petitioner on February

13, 2006. At that time, co-counsel had a general practice in Henderson, Tennessee. Prior

to representing the petitioner, co-counsel had represented defendants in two capital cases,

neither of which entered the penalty phase.

Co-counsel stated that he and lead counsel discussed what motions to file and who

would be responsible for filing each motion. Co-counsel believed that he drafted a

41

proposed jury questionnaire but said that the trial judge drafted his own jury

questionnaire. He did not believe that he or lead counsel investigated the possibility of

raising a claim of discrimination regarding the race and gender of grand jury forepersons

in Madison County. Co-counsel said no strategic reason for their failure to raise the issue

existed.

Co-counsel testified that by the time he was appointed to represent the petitioner,

lead counsel had retained Ms. Shettles, Dr. Wilson, and Dr. Caruso. Co-counsel

identified notes that he had written regarding other possible mental health experts

including a pharmacologist and a neuropsychologist. He also noted that alcoholism

existed in the petitioner‟s family and questioned whether the petitioner had “organic brain

problems.” Trial counsel did not retain a pharmacologist or a neuropsychologist and did

not obtain any brain imaging scans.

Co-counsel identified an email that lead counsel sent to Dr. David Stafford on

April 7, 2006, in which lead counsel asked Dr. Stafford whether the petitioner‟s

intoxication level at 11:30 a.m. on the day of the shootings could be determined from the

results of the urine sample. Lead counsel stated in the email that he might be interested

in an expert to address that issue. Co-counsel did not know whether Dr. Stafford

received the email. Co-counsel noted that according to his fee claim submitted to the trial

court, he had a telephone conference with Dr. Stafford regarding urine and alcohol on

May 31. Co-counsel also made a note to call the Tennessee Association of Criminal

Defense Lawyers regarding Dr. Stafford or other experts in “urine/alcohol.” Co-counsel

sent a letter to Dr. Stafford on June 14, in which co-counsel set forth the time in which

the urine sample was taken and the time in which the blood sample was taken. Co-

counsel questioned whether the petitioner‟s intoxication level at 11:30 a.m. on the day of

the shootings could be determined from the alcohol results of the urine sample. He also

questioned whether the results could be used to corroborate the petitioner‟s testimony

regarding the level of intoxication or alcohol intake. Co-counsel did not mention in the

letter that the presumptive testing of the urine sample by the TBI suggested the presence

of benzodiazepine.

Co-counsel testified that he had not worked with Dr. Wilson prior to the

petitioner‟s case. Co-counsel did not recall the State pointing out on cross-examination

that Dr. Wilson was not board certified as a forensic psychologist and that only one or

two percent of his practice was comprised of criminal defense work. Co-counsel

believed that the State pointed out on cross-examination that Dr. Wilson could not

prescribe medication.

Co-counsel conducted the cross-examination of Dr. Matthews at trial. While co-

counsel was aware that Dr. Matthews was employed by Park Dietz Company, co-counsel

42

did not contact anyone in the Tennessee or national capital defense community regarding

the methodology used by that company. He did not recall whether Dr. Matthews had

testified previously in Tennessee. He did not believe that he obtained transcripts of Dr.

Matthews‟ prior testimony and did not recall if he researched previous testimony of Dr.

Matthews in other cases on Westlaw or Lexis.

On cross-examination, co-counsel testified that he had been practicing law for

twenty-nine years and had worked on “thousands” of criminal cases, including homicide

cases as both a prosecutor and a defense attorney. He and lead counsel consulted each

other regarding any motions filed. They reviewed the discovery materials and discussed

them at length. Co-counsel stated that the district attorney general‟s office had an “open

file” policy where defense attorneys could copy any materials in the files of the

prosecutor and the law enforcement officers. He explained that defense attorneys were

allowed to return and review the files on multiple occasions during the course of

representing their clients. He said the defense team took full advantage of the “open file”

policy while representing the petitioner.

Co-counsel said Ms. Shettles interviewed witnesses, took statements, and

discovered mitigation evidence. He recalled difficulty in interviewing some witnesses

because officials with TDOT instructed witnesses not to speak with members of the

defense team. He said they made every effort to interview witnesses who agreed to be

interviewed and to search for mitigation proof. Co-counsel testified that due to Ms.

Shettles‟ investigation and trial counsel‟s review of the State‟s files, they were not

surprised by any evidence that was introduced at trial. Co-counsel noted that every

witness basically testified that the petitioner shot the victims and that as a result, the only

defense theory involved mental health. Trial counsel pursued a mental health defense by

retaining Dr. Wilson, a psychologist, and Dr. Caruso, a forensic psychiatrist.

Co-counsel stated that he had worked with Dr. Caruso on at least two other

occasions and that Dr. Caruso was “well-thought of” by the criminal defense bar. Co-

counsel explained that Dr. Caruso was not called as a witness at trial because trial counsel

concluded that Dr. Caruso‟s testimony could have been harmful to the defense.

According to co-counsel, Dr. Caruso stated in his report that the petitioner

was able to appreciate the nature and wrongfulness of his behavior at the

time of the offenses. There were no grounds to support an insanity defense

in accordance with the criteria in TCA [§] 39-11-501. In addition, while he

was intoxicated and suffered from major depression and severe mental

disease, neither precluded him from forming the requisite mens rea for his

offense in accordance with criteria in State v. Hall.

43

Co-counsel stated that Dr. Caruso shared the same opinion as the State‟s mental health

expert. In an email to Dr. Wilson on April 3, 2006, Dr. Caruso stated:

While the precise levels of benzodiazepine, opiates, and alcohol are not

unimportant, the larger issue is what effect that had on his mental state,

specifically the capacity to premeditate. I just did not see evidence from

the discovery that [the petitioner] was unable to plan or that he was in such

a state of passion and excitement that he couldn‟t premeditate his actions.

He apparently moved in a steady progression to achieve his intended

actions. He even had the capacity to converse and decide that he did not

wish to kill one victim and did not want to engage police. He was

apparently exercising some degree of reflection and judgment over his

actions.

Dr. Caruso stated in his report that the petitioner had told him that he loaded

several guns and thought that “he had to stop [Mrs. Jordan] from doing this to the kids.

He guessed he‟d have to shoot her, like going to war.” The petitioner informed Dr.

Caruso that he had threatened Mrs. Jordan with a knife in 2002, and Dr. Caruso

referenced other instances involving the use of a knife. Co-counsel testified that during

trial, the State attempted to introduce evidence of these prior instances, but the trial court

excluded the evidence. He explained that in cases involving alcohol and a family history

of abuse, presenting mitigation evidence without opening the door to other aspects of

family life “can be like negotiating a minefield.” Co-counsel agreed that the more

evidence the defense presented about the petitioner‟s family history, the more likely the

State could have presented evidence of prior domestic abuse and assault and the

petitioner‟s prior threat involving a knife, all of which the trial court excluded.

Co-counsel stated that the defense team obtained the records from Dr. Nat

Winston from Pathways, who evaluated the petitioner while the case was in city court.

Dr. Winston evaluated the petitioner on the issues of insanity and his ability to assist

counsel and found that an insanity defense could not be supported. During the

evaluation, the petitioner told Dr. Winston that he was not intoxicated at the time of the

shootings.

Co-counsel testified that the defense at trial involved a combination of alcohol

intoxication, the use of Xanax, or alprazolam, depression, and lack of sleep. He said trial

counsel presented evidence of intoxication at every opportunity in an effort to obtain a

jury instruction on intoxication. The trial court instructed the jury on intoxication during

both phases of the trial.

44

Co-counsel said trial counsel presented testimony from two TBI Crime Laboratory

technicians regarding the results of the State‟s testing of the petitioner‟s blood and urine

specimens. The specialist testified that a reliable extrapolation could not be made from

the urine alcohol results. Trial counsel presented evidence that the petitioner‟s blood

tested positive for Xanax and Citalopram. Co-counsel stated that trial counsel did not

present Dr. Stafford as a witness at trial because he would have testified that the only

inference that could be drawn from the results of the urine alcohol test was the petitioner

had consumed alcohol.

Co-counsel acknowledged that Investigator Miller testified that when the

petitioner gave his statement at 3:35 p.m. on the afternoon of the shootings, he was not

intoxicated. In his statement, the petitioner also denied taking Xanax. Dr. Wilson

testified that the petitioner was able to premeditate before and after the offenses but not

during the offenses.

On redirect examination, co-counsel acknowledged that Dr. Caruso determined in

his report that the petitioner was intoxicated at the time of the offenses. Dr. Caruso

mentioned that the effects of alcohol are increased by the concomitant use of Xanax,

hydrocodone, and Dolgic, all of which the petitioner was taking. Dr. Caruso diagnosed

the petitioner under Axis II with alcohol and benzodiazepine intoxication at the time of

the offenses, major depression, and alcohol and polysubstance dependence. Dr. Caruso

found as a mitigating circumstance that the offenses were committed while the petitioner

“was under the influence of mental and emotional disturbance, major depression, and in a

state of intoxication.” Dr. Caruso also found that the petitioner‟s capacity “to appreciate

the criminality of his conduct or to conform his conduct to the requirements of the law

was impaired by his major depression and alcohol and benzodiazepine intoxication.” Co-

counsel did not know that in 2006, the criminal defense bar was aware of problems with

Dr. Caruso‟s credibility in that he had falsified data while in medical school.

On recross-examination, co-counsel stated that Dr. Wilson testified at trial

regarding the petitioner‟s dependence on various substances, including alcohol,

benzodiazepine, and opiates. Co-counsel noted that Dr. Caruso expressed concern that

the petitioner complained of “memory deficits in such a convenient fashion.”

Glori Shettles, a mitigation specialist with the capital defense team of the Shelby

County Public Defender‟s Office, testified that in 2005 and 2006, she was a mitigation

specialist with Inquisitor, Incorporated, which had been formed by Ron Lax who was

deceased. Ms. Shettles worked for Inquisitor, Incorporated as a mitigation investigator

for twenty and one-half years and was retained as a mitigation specialist for the

petitioner‟s case.

45

Ms. Shettles testified that the only issue in the petitioner‟s case was his mental

state at the time of the shootings. She said the petitioner was concerned about the

combination of the drugs and alcohol he had consumed and asked about the results of the

blood and urine tests from the beginning of the case. Ms. Shettles collected the

petitioner‟s pharmacy data and researched an issue concerning the increase in the dosage

of Xanax prescribed to the petitioner approximately one week prior to the shootings.

She discovered fewer pills in the bottle of Xanax than she would have expected.

Ms. Shettles and lead counsel discussed retaining a psychiatrist or a medical

doctor. She contacted Dr. Caruso about his willingness to work on the case. She did not

recall whether she contacted Dr. Murray Smith, a medical doctor who specialized in

addiction. She had worked with Dr. Smith in prior cases involving addiction and

substance abuse.

Ms. Shettles testified that she assisted trial counsel in preparing a defense based in

part on intoxication. She saw intoxication as a central issue in the case. She recalled

evidence that Kevin Deberry, a neighbor, brought a bottle of vodka to the petitioner‟s

house and placed it in the freezer at approximately 1:00 a.m. on January 11, 2005. Ms.

Shettles interviewed the Naylors, the maternal grandparents of the petitioner‟s two

daughters, about what the children saw and heard on January 10 and 11, 2005, while with

the petitioner. Ms. Shettles did not recall speaking directly to the children. Her notes

reflected “big bottle, asleep in recliner, turned coffee on, came back and leave, had a

bottle, after drink coffee.” Ms. Shettles was unsure whether the “bottle” was a bottle of

liquor or a bottle of pills.

Ms. Shettles said she interviewed Larry Jordan, the petitioner‟s brother, who

described the petitioner as a “straight beer drinker.” She learned that the petitioner‟s

truck was released to Mr. Jordan months following the shootings. Mr. Jordan told Ms.

Shettles that he found a cup in the truck that still smelled of alcohol, which led him to

believe the petitioner had been drinking heavily around the time of the shootings.

Ms. Shettles believed trial counsel did not actively pursue an intoxication defense

after receiving the toxicology report. She recalled lead counsel informing her that he

would not be using Dr. Caruso in the case. She had a conversation with lead counsel on

May 5, 2006, during which lead counsel informed her that he expected to receive a report

from the State‟s mental health expert soon and that he was considering retaining a

neuropsychologist. Lead counsel also said he was considering asking Dr. Wilson to

delete from his report the information relayed to him by the petitioner about the

shootings. Ms. Shettles assisted Dr. Wilson in preparing a PowerPoint presentation to

use during his testimony at trial, and the presentation referenced the missing Xanax pills.

46

On cross-examination, Ms. Shettles testified that according to her notes, the

petitioner was “bad on drugs” when he was married to his former wife, Lisa Naylor. The

petitioner beat Ms. Naylor while she was pregnant with their first daughter. Ms. Naylor

began abusing drugs and left the petitioner when their daughter was one or two years old.

They later reconciled, and Ms. Naylor became pregnant with their second daughter. The

petitioner and Ms. Naylor had a fight when their youngest daughter was three weeks old,

during which the petitioner beat Ms. Naylor who was jailed after someone called 911.

Ms. Shettles noted that the petitioner hated his daughter with Mrs. Jordan because she

looked like Mrs. Jordan. The petitioner was abusing crack cocaine at one point. Ms.

Shettles also noted that even after the petitioner stopped using drugs, he never financially

supported his daughters with Ms. Naylor. The petitioner was taken to court on numerous

occasions for failure to pay child support. According to Betty Naylor, Ms. Naylor‟s

mother, “[The petitioner] would quit a job just to not pay child support.”

On redirect examination, Ms. Shettles testified that she was aware of an

association between substance abuse and domestic violence. She noted that the petitioner

had been married three times. His first marriage was to Denise when they were both very

young. They had a daughter named Deanna, who testified during the penalty phase. The

petitioner‟s second marriage was to Lisa Naylor, who had severe addiction issues. Ms.

Shettles said she did not interview Ms. Naylor because Ms. Naylor was undergoing

treatment at a rehabilitation facility at the time. Ms. Shettles said that during a violent

incident between the petitioner and Ms. Naylor, Ms. Naylor was jailed, which Ms.

Shettles assumed meant that Ms. Naylor was the assaulter. The petitioner and Ms.

Naylor had two children, both of whom were living with the petitioner on January 10 and

11, 2005. Ms. Shettles said she met the children but did not recall directly speaking with

them about the case. She believed that their grandparents objected to her interviewing

the children, and, as a result, the information she received was from the grandparents.

Ms. Shettles stated that Ms. Naylor‟s parents, who had custody of the two children,

expressed “very negative” feelings about the petitioner. The petitioner and Mrs. Jordan

obtained custody of the children prior to the shootings because Ms. Naylor could not care

for them.

Ms. Shettles did not recall the petitioner‟s ever indicating that he did not want his

child with Mrs. Jordan. She said the information she obtained from Betty Naylor

appeared to have been second or third-hand information. Betty Naylor did not state that

she witnessed certain events but that she heard about the events.

Joby Emerson, the wife of Johnny Emerson, testified that she spoke to the

petitioner approximately ten times in December 2004. She said that the petitioner was

very nice to her and that she never heard the petitioner threaten to harm anyone. She

stated that the petitioner called her and asked whether she was aware of the affair

47

between Mrs. Jordan and her husband. The petitioner told Mrs. Emerson that he and

Mrs. Jordan had a house together and that he had given Mrs. Jordan the proceeds from

the sale of his home to go toward their house. He said that Mrs. Jordan told him if their

marriage ended, he could have the house because they had recently received custody of

his two children. Mrs. Emerson stated that the petitioner did not want himself or his

children to be homeless.

Mrs. Emerson testified that one night in December 2004, her husband received a

telephone call from the petitioner and that she listened to the conversation on another

telephone. The petitioner asked Mr. Emerson what was going on between him and Mrs.

Jordan. Mrs. Emerson said the petitioner was “[v]ery calm.”

Gary Morse testified that in 2004 and 2005, he was the pastor at Bemis United

Methodist Church where the petitioner‟s parents were parishioners. The petitioner had

grown up in the church but was not active in the church when Reverend Morse was the

pastor. Reverend Morse stated that he visited the petitioner at the jail within twenty-four

hours of his arrest on January 11, 2005. He described the petitioner as “disheveled,”

“wired,” and “discombobulated” and said the petitioner was distraught and appeared to

have been crying. The petitioner told Reverend Morse that he had not slept. Reverend

Morse visited the petitioner two or three times per month over the next twenty months

while the petitioner was housed at the local jail. They discussed the petitioner‟s use of

alcohol and prescription drugs. On cross-examination, Reverend Morse acknowledged

that he testified at trial and described the petitioner as “dazed,” “[r]emorseful,” and

“tearful.”

Kippi Jordan, the petitioner‟s former sister-in-law, testified that the petitioner‟s

family moved into her neighborhood when she was in the fifth grade. She had known the

petitioner for thirty-five years and was married to his brother, Larry, for twenty-two

years. At the time of the post-conviction hearing, she was the principal at Nova

Elementary School.

Kippi Jordan stated that when she and the petitioner were growing up, the

petitioner was very friendly and like a brother to her. She was friends with the

petitioner‟s first wife but did not have as much contact with him during his second

marriage. The petitioner and Larry Jordan were close and hunted together. The

petitioner was very involved with his children.

Kippi Jordan testified that the petitioner had an uncle who exhibited “strange

behaviors” and was treated at Western State Mental Institute in Bolivar, Tennessee. The

petitioner‟s paternal grandfather was known to be an alcoholic and had a bad relationship

with the petitioner‟s father. She recalled a period of time during which the petitioner was

48

hallucinating. The petitioner called Larry Jordan on three occasions claiming to see cats

in the petitioner‟s trees. Larry Jordan told the petitioner that nothing was in the trees, but

the petitioner insisted otherwise.

Kippi Jordan stated that she saw the petitioner drink alcohol in junior high school

and throughout his adulthood. She said it was “common” for the petitioner to be seen

holding a beer. She had observed him drink ten or twelve beers without appearing to be

intoxicated. The petitioner did not stagger, fall, or slur his speech. He was a mechanic in

his spare time and had a race car. She previously observed the petitioner in his shop

working on a vehicle and drinking a beer.

Kippi Jordan testified that in January 2005, she was a consulting teacher at the

school where one of the petitioner‟s daughters attended. On January 10, 2005, the

petitioner was late bringing his daughter to school. The petitioner told her that he had not

been able to sleep and that when he finally fell asleep, he overslept. She said the

petitioner appeared very tired as if he had something on his mind.

On cross-examination, Kippi Jordan acknowledged that if the petitioner drank ten

beers, he would not have slurred speech, could perform mechanic work, could walk

without stumbling, and could communicate. She did not know what drugs the petitioner

was taking when he was hallucinating.

Kippi Jordan stated that she had a lengthy conversation with Ms. Shettles during

which they discussed the petitioner‟s daughter being late to school. Ms. Shettles asked

her how long she had known the petitioner‟s family and questioned her about the

petitioner‟s childhood.

Special Agent Kelly Hopkins, a forensic scientist in the toxicology section of the

TBI, testified that prior to the petitioner‟s trial she met with trial counsel at the crime

laboratory to review her testimony regarding her alcohol and drug testing. She said she

provided trial counsel with a “litigation packet,” which included information pertaining to

her testing of the petitioner‟s blood and urine samples.

Special Agent Hopkins said that while the TBI had similar testing procedures that

were employed when the testing was completed in the petitioner‟s case in 2005, the TBI

had added additional procedures since 2005. She explained that a calibration is used in

the field to determine the concentration of the drug within the sample. Whether a

concentration of a drug is too small to appear in a drug screen is dependent upon the

calibration range and the instrumentation used. Special Agent Hopkins stated that in

2005, the TBI‟s Crime Laboratory was not calibrated to reliably measure therapeutic

concentrations of Xanax.

49

Special Agent Hopkins said the enzyme multiplied immunoassay technique

(EMIT) is the initial drug screen that tests five categories of drugs: barbiturates,

benzodiazepines such as alprazolam, cocaine and its metabolites, marijuana and its

metabolites, and opiates. Any negative tests are recorded in the toxicology report as

being negative for that category, and any positive results from the initial screen must be

confirmed through additional testing. The petitioner‟s urine sample was positive for

benzodiazepines, while his blood sample was negative for benzodiazepines. Special

Agent Hopkins stated that in 2005, the laboratory did not test for alpha hydroxy

alprazolam, a metabolite of alprazolam, but that the lab currently tested for this

metabolite.

Special Agent Hopkins testified that gas chromatography is used in the field of

toxicology to separate drugs from a sample to determine the amount of the drug that was

present. A gas chromatograph mass spectrometer is a selected detector that separates the

drugs in a sample by a fingerprint of known standards of those drugs. In order for the

laboratory to report the presence of a drug, its existence must be registered under both the

gas chromatograph and the mass spectrometer. The gas chromatograph reading must be

within a calibration curve to report an actual amount of the drug‟s concentration. If the

amount is below the lowest calibration point, the amount of the drug must be reported “at

less than.” Special Agent Hopkins stated that the policy of the laboratory is to report

drugs found in a urine sample as positive without assigning a quantity. She could not

confirm the presence of alprazolam in the petitioner‟s urine or blood sample in the mass

spectrometer data.

Special Agent Hopkins acknowledged that the toxicology report issued on July 8,

2005, provided that “[p]resumptive testing indicates the possibility of benzodiazepines.

Contact the crime lab if further testing is needed.” She explained, “[W]hile I couldn‟t

confirm presence of a benzodiazepine, we‟re just giving information to the customer if

they want to independently test it or further test it with a more sensitive instrument.” She

stated that the records did not indicate that additional testing was requested and that the

testing would have been done had trial counsel requested it. She also stated that the

petitioner‟s urine and blood samples were destroyed on January 3, 2006, pursuant to the

policy of the crime laboratory. On cross-examination, she testified that her results were

consistent with a statement that the person had not taken Xanax in approximately three

days.

Dr. Murray Smith, a medical doctor and addiction specialist, was accepted by the

post-conviction court as an expert in the area of addiction. He was asked to evaluate the

petitioner‟s medical circumstances, addiction and treatment, and mental status at the time

of the shootings. He reviewed the petitioner‟s records from Pathways, his medical

50

records from the Jackson Clinic, the transcripts of the testimonies of Dr. Wilson and Dr.

Matthews at trial, and the reports of Dr. Jonathan Lipman and Dr. Peter Brown. He also

interviewed the petitioner for three hours on February 28, 2012. Dr. Smith opined that

the petitioner “was a far-advanced, severe chemically-dependent addict who at the time

of the offense[s] was severely intoxicated and unable to recognize what was going on

fully in terms of the events and the circumstances or to conform his behavior to the

requirements of the law.”

Dr. Smith testified that addiction is a medical illness that exists as an entity to

itself and can be influenced by other illnesses, medical conditions, society, environment,

and the particular circumstances. The three diagnostic criteria for addiction are (1)

preoccupation with obtaining and using the substance; (2) loss of control with the use of

the substance; and (3) the continued use of the substance even though it has caused

problems in the user‟s life. Dr. Smith concluded that the petitioner met the criteria for

addiction. Dr. Smith explained that addiction can take control of the brain chemistry so

that the user‟s behavior is controlled by the substance. He described the petitioner as a

“slave to the chemistry.”

Dr. Smith stated that the use of alcohol inflames the emotion of anger and

magnifies depression. Intoxication interferes with the process of the brain so that the

ability to perceive, judge, analyze, discern, and reflect is impaired. Dr. Smith defined

“blackouts” as amnesia caused by chemicals interfering with the brain‟s ability to record

the events that are occurring. According to Dr. Smith, although the event occurs, the

“recorder is not on.”

Dr. Smith testified that the petitioner began smoking marijuana and drinking

alcohol at the age of fourteen. By the age of seventeen, the petitioner was smoking

marijuana and drinking alcohol more than half the time and began experiencing

blackouts. At the age of nineteen, he began snorting cocaine intermittently. By 1995,

when the petitioner was thirty-one years old, he did not use marijuana and cocaine as

often. Dr. Smith explained that the company where the petitioner was employed

conducted random drug screens and that the petitioner was afraid that any positive drug

screen would adversely affect his job. Rather, the petitioner primarily consumed alcohol.

The petitioner lost his job in 1995 and attempted to manage a garage and convenience

store. At that time, he began using crack cocaine and methamphetamine, along with

marijuana and alcohol. From 1995 to 2000, the petitioner regularly used alcohol,

marijuana, methamphetamine, and crack cocaine. He was unable to maintain his

employment because he was losing weight and experiencing auditory and visual

hallucinations. Dr. Smith noted that the side effects of cocaine and methamphetamine

included sleep deprivation and paranoia.

51

Dr. Smith testified that the petitioner and Mrs. Jordan married in 2000. The

petitioner told Dr. Smith that Mrs. Jordan insisted that he stop using crack cocaine and

methamphetamine and that he complied. The petitioner increased his alcohol intake and

began taking Xanax and hydrocodone. Dr. Smith stated that Xanax essentially has the

same effect on brain chemistry as alcohol.

Dr. Smith noted that the petitioner had suffered multiple injuries during his life,

including a 1996 accident where he drove his truck into a field, sustained a severe

concussion, and spent four hours lying in the field while in and out of consciousness. As

a result of the accident, the petitioner injured his back and left knee and broke three ribs

on his left side. In 2000, the petitioner fell and hit his head, requiring a CT scan.

Dr. Smith testified that he reviewed the records of Dr. Coy, a licensed medical

doctor with a doctorate of osteopathy. Dr. Smith said that in prescribing medication, a

doctor must learn about the patient by taking a history and conducting a physical. The

doctor also must understand the disease that is being treated. If the doctor does not

understand the disease, the doctor must either order additional testing or consult other

doctors. Once the doctor understands the disease, he or she then must construct a

treatment plan that may or may not include prescription medication. The doctor must

review the status of the patient periodically to determine whether the treatment plan is

working. Dr. Smith said Dr. Coy failed to take these steps.

Dr. Smith stated that in February 2002, blood tests revealed that the petitioner had

abnormal liver function. Dr. Coy recorded in his notes that the petitioner told him that he

was a heavy drinker. Dr. Smith said Dr. Coy failed to take any action to evaluate or

follow up with the petitioner based upon that statement. On the same day, Dr. Coy

prescribed the petitioner a large quantity of Xanax, which, according to Dr. Smith, should

not have been prescribed. Dr. Smith explained that Xanax is an addictive medication and

if combined with alcohol, it increased intoxication and the potential for blackouts. The

combination of Xanax and alcohol can cause an increase in confusion and impair

judgment and perception. Dr. Smith said that on January 4, 2005, one week before the

shootings, Dr. Coy prescribed the petitioner 240 Xanax pills without seeing the petitioner

or noting whether he had spoken to the petitioner. Dr. Smith also said that “at a very

critical time when some measure of intervention could have been done in a very inflamed

dangerous situation, Dr. Coy did not see or intervene, but, in fact, prescribed things that

could, to my opinion, worsen the situation.”

The petitioner told Dr. Smith that on the Friday night prior to the shootings, he

was up all night with his sick daughter. His daughter was better the next day, and the

petitioner believed that he would be able to catch up on his sleep that night. Mrs. Jordan

asked the petitioner to care for their youngest daughter that Saturday night. The

52

petitioner reported that he was awake most of the night while waiting for Mrs. Jordan to

return from “partying.” He said he slept for a couple of hours that night. On Sunday, the

petitioner was with Mrs. Jordan and his daughters all day. The petitioner said that on

Sunday night, he slept only a few hours. The petitioner spent that Monday caring for his

daughters. Dr. Smith stated that by that evening, the petitioner was severely sleep

deprived.

Dr. Smith testified that the metabolites or oxidants collect in the brain due to sleep

deprivation and serve as another chemical intoxicant. He stated that as a result, the

petitioner had the intoxicants of alcohol, Xanax, and sleep deprivation on the day of the

shootings. Dr. Smith further stated that the petitioner‟s behavior on the day of and the

day prior to the shootings was consistent with intoxication. The petitioner reported that

during the time leading up to the shootings, he had been drinking six to eight beers each

day. He reported that on January 10, 2005, he ingested Xanax and alcohol. Dr. Smith

said that by 6:00 p.m., the petitioner began blacking out and did not know the amount of

pills or alcohol that he ingested after 6:00 p.m. Dr. Smith concluded:

In the presence of the intoxication, [the petitioner] not only had the

amnesia, but the fact that he would have the amnesia reflected that there

was generalized toxicity of his brain such that his ability to accurately

observe what was happening, perceive what was happening, his ability to

make good judgments, his impulsivity was markedly increased, his overall

brain functioning was severely impaired and he had difficulty with his

ability to control his emotions. The emotions were greatly magnified, both

depression and anger.

On cross-examination, Dr. Smith testified that in reaching his opinion, he did not

review two boxes of mitigation evidence compiled by the defense, Dr. Winston‟s report,

Dr. Caruso‟s report, the statements of witnesses at trial, or the petitioner‟s statement to

the police. Dr. Smith stated that although the petitioner told Dr. Winston that he was not

intoxicated at the time of the shootings, an intoxicated person generally believes, “I‟m

not as intoxicated as people would think I was.”

Dr. Smith said that on March 6, 2002, Dr. Coy encouraged the petitioner to refrain

from using alcohol while using Xanax. On May 22, 2002, testing revealed elevated liver

function, and Dr. Coy stopped the petitioner‟s Celexa. At that time, the petitioner told

Dr. Coy that he was no longer drinking alcohol. Dr. Smith acknowledged that the

petitioner lied to Dr. Coy and stated that he expected the petitioner to lie “because the job

description of addiction is to lie.”

53

Dr. Smith acknowledged that the petitioner underwent two prior CT scans of his

head, both of which revealed normal results. The petitioner told Dr. Smith that he did not

use any drugs or alcohol prior to the 1996 accident. According to the hospital records

from the accident, however, the petitioner lay in the field for four hours to avoid being

charged with driving under the influence. The report from the emergency room stated

that the petitioner had consumed three beers. The petitioner told Dr. Lipman that prior to

the accident, he had been taking powder cocaine and drinking alcohol. Dr. Smith did not

believe that the hospital records and the petitioner‟s statement to Dr. Lipman contradicted

the petitioner‟s statement to him because the petitioner told him that he was not “doing

heavy alcohol or drugs.”

Dr. Smith testified that the petitioner informed him of a history of physical and

sexual abuse as a child that resulted in “shame issues.” The petitioner said that a

fourteen-year-old relative physically abused him and that his father was physically and

emotionally abusive. Dr. Smith read the transcript of the petitioner‟s testimony in 2008

of custody proceedings involving his daughter with Mrs. Jordan. During the deposition,

the petitioner testified that his parents were “exceptional” and denied that they abused

him or their foster children in any way. The petitioner further testified, “My parents did

all anybody could ask them to humanly possibly do raising me. There‟s no connection

between what I‟ve done and what they‟ve done.” Dr. Smith acknowledged that the

petitioner‟s deposition testimony was inconsistent with the petitioner‟s statements to him.

Dr. Smith stated that the petitioner was motivated to offer the testimony in 2008 to

prevent his daughter from being adopted by his in-laws. Dr. Smith acknowledged that

the petitioner may have been motivated to lie to him to receive some benefit related to the

criminal proceedings. Dr. Smith noted that the petitioner‟s statements to him, Dr.

Lipman, and Dr. Brown were consistent.

Dr. Smith stated in his report that an accurate determination of the petitioner‟s

blood alcohol on January 11, 2005, at 11:30 a.m. was not possible based upon the TBI

laboratory report. He said that while he would have considered the petitioner‟s statement

to Investigator Miller that he had not taken Xanax for two or three days, the petitioner

could not have known this information because he was intoxicated and experiencing

blackouts. Dr. Smith stated that based upon his experience, he believed that the

petitioner provided an accurate account of a blackout. He explained that the petitioner

“remembered spotlighted incidents, kind of like little snippets of a preview of a movie,

and that is a typical type of amnesia where certain things are spotlighted.” Dr. Smith said

the petitioner did not state that he remembered waking up and having no intentions of

hurting Mrs. Jordan. The petitioner said Mrs. Jordan told him that he and his daughters

had until the beginning of February to leave the home. The petitioner informed Dr.

Smith that on the day of the shootings, he recalled having weapons and ammunition on

the bed and talking to someone who was not there. The petitioner said he loaded his

54

weapons but did not tell Dr. Smith about writing the note. The petitioner did not tell Dr.

Smith that he did not know whether he was going to hurt Mrs. Jordan. At some point, the

petitioner said he considered committing suicide, but Dr. Smith was unsure at what point

the petitioner contemplated suicide.

Dr. Smith testified that any discrepancy between the petitioner‟s statements to him

and the petitioner‟s statements to Investigator Miller was due to the petitioner‟s

intoxication and the amount of time that had passed between the two statements. Dr.

Smith did not know why the petitioner provided more detail of the events to Investigator

Miller and said the petitioner provided the details to Investigator Miller regardless of

whether the details were accurate. Dr. Smith stated that the petitioner‟s recollection of

some details following his arrest was due to “spotlighted amnesia.”

In rendering his opinion, Dr. Smith did not consider the note that the petitioner had

written prior to the shootings. He stated that “automatic activity,” such as writing while

severely intoxicated and in a blackout, was possible. Dr. Smith testified that the

petitioner‟s blood alcohol level could have been as high as .40. Dr. Smith could not

determine exactly how high the petitioner‟s blood alcohol level was but stated that it was

higher than the legal limit.

On redirect examination, Dr. Smith testified that he understood that the physical

abuse referenced by the petitioner involved beatings with a belt. Dr. Smith stated that Dr.

Caruso‟s report supported his opinion and explained that Dr. Caruso found that because

of the petitioner‟s intoxication, he was unable to appreciate the “criminality” of his

conduct or conform his conduct to the requirements of the law. Dr. Smith said Dr.

Winston‟s report did not change his opinion.

In response to questioning by the post-conviction court, Dr. Smith said he

determined that while the petitioner was intoxicated at the time of the shootings, the

petitioner also had “dreamlike amnesia with brief snippets of disconnected memory.”

Dr. Smith explained that those who experience such “dreamlike amnesia” describe the

events as if they are watching them from a distance. The petitioner told Dr. Smith that he

watched himself drive through the stop sign on Highway 70. Dr. Smith said, “It‟s like

somebody else is in control of his actions, and what‟s in control of his actions is the drugs

and alcohol.” The “snippets” were the spotlights of the events that the petitioner could

remember but were not always in sequence.

Dr. Malcolm Spica, a clinical neuropsychologist, was accepted by the post-

conviction court as an expert in neuropsychology. He was asked to assess the petitioner‟s

information processing capabilities. He administered the Wechsler Adult Intelligence

55

Scale and determined that the petitioner‟s I.Q. score was 95, which fell within the 37th

percentile.

Dr. Spica tested the petitioner‟s executive functioning or mental organization. He

determined that the petitioner had a cognitive disorder in that he had organizational

deficits that led to inconsistent performances on various tests. Dr. Spica found that the

petitioner had inconsistent and deficient executive control, which led to issues involving

problem-solving and learning new information. Dr. Spica determined that when the

information became complex and the petitioner was required to track different pieces of

information, he became confused and inefficient in the way he solved a problem. Dr.

Spica stated that the petitioner‟s problems with executive control were exacerbated by

various forms of stress. He explained that time pressure, sleep deprivation, and metabolic

disruption, such as an illness or substance abuse, were factors that could have

exacerbated the petitioner‟s deficits and issues with information processing.

Dr. Spica diagnosed the petitioner with depression not otherwise specified based

upon the results of four standardized tests of mood. He deferred to the forensic

psychiatrist for a more detailed assessment of the petitioner‟s mood. He acknowledged

the petitioner‟s history of substance abuse and diagnosed him with alcohol/substance

abuse in remission.

On cross-examination, Dr. Spica testified that the petitioner had a cognitive

disorder in mental organization. He acknowledged that a person who abuses cocaine,

methamphetamine, and alcohol could exhibit the same characteristics of mental

disorganization while the substances are active in the body. The substances can lead to a

cognitive disorder through brain damage. Dr. Spica said the petitioner was of average

intelligence and had the capability to plan to kill someone in the condition he was in at

the time of the post-conviction hearing.

Dr. Spica acknowledged that the petitioner was able to repair automobiles and

vending machines. Dr. Spica said that as long as the petitioner was not intoxicated, sleep

deprived, or under duress, he could complete the tasks required for a building a race car.

Dr. Spica was not sure that “a relative‟s observations would precisely enough measure

whether or not [the petitioner] was affected by alcohol.”

Dr. Spica did not know if he had reviewed the information gathered by Ms.

Shettles and did not recall whether he had reviewed the transcript of Dr. Wilson‟s

testimony at trial. Dr. Spica stated that the petitioner had cognitive deficits that were

likely to influence his capacity to premeditate and were likely to be exacerbated by the

circumstances surrounding the shootings. Dr. Spica explained that sleep deprivation,

intoxication, and stress would exacerbate the petitioner‟s cognitive impairments and

56

lower his capacity to develop a plan of action. He was unable to determine whether the

petitioner could premeditate if he was not intoxicated and said other factors could

interfere with the petitioner‟s ability to premeditate. He did not know the petitioner‟s

level of intoxication at the time of the shootings and said he had to “defer that to the

experts.”

Dr. Spica acknowledged that while the petitioner had a history of multiple head

injuries, he had CT scans in 2000 and 2002, both of which were clear. He explained that

a CT scan might not be the most appropriate way to assess a brain injury because the scan

only shows structural damage and does not measure brain tissue functioning. He said a

neuropsychological examination is needed to measure brain tissue functioning.

On redirect examination, Dr. Spica testified that he tested the petitioner for

malingering, but no malingering was shown. On recross examination, he acknowledged

that the testing for malingering did not indicate whether the patient was lying to the

mental health expert.

In response to questioning by the post-conviction court, Dr. Spica testified that the

petitioner reported that he drank alcohol heavily from October 2003 to June 2004 and that

he used cocaine and methamphetamine in the 1990s. Dr. Spica did not mention

prescription drug abuse in his report. He explained that he did not ask the petitioner

whether he abused prescription drugs because “it‟s not quite my world.” He stated that

prescription drug abuse and alcohol abuse would have had a similar effect on the

petitioner‟s cognitive functioning. Dr. Spica noted that the petitioner fell within the

second percentile in mental organization, which meant that ninety-eight percent of the

population performed better than him.

Dr. Jonathan Lipman, a neuropharmacologist specializing in forensic

neuropharmacology, was accepted by the post-conviction court as an expert in

pharmacology and neuropharmacology. Dr. Lipman assessed the petitioner‟s state of

mind from a neuropharmacological perspective at the time of the offenses on January 11,

2005. He reviewed a timeline of the petitioner‟s life, the petitioner‟s medical and

pharmacological records, materials from the trial, the Tennessee Supreme Court‟s

opinion from the direct appeal, documents from the TBI and the Jackson Police

Department, the transcript of Investigator Miller‟s testimony at trial, the petitioner‟s

statement to the police, and various psychological and psychiatric reports. In addition to

the TBI reports of the petitioner‟s blood and alcohol analysis, he reviewed the TBI‟s files

and the standard operating manuals for the crime laboratory.

Dr. Lipman opined that at the time of the shootings, the petitioner was heavily

intoxicated on Xanax and alcohol. He said the petitioner also had clinical depression,

57

protracted sleeplessness, and brain dysfunction and was “under conditions of extremely

highly emotional milieu.” He stated that the petitioner‟s history of drug use related to his

conditions at the time of the shootings. He explained that in the past, the petitioner had

used stimulant drugs, which had a lasting effect on his personality. He also opined that

the petitioner was impaired in his ability to think and conform his behavior to the law

because he was in a “state of drug-influenced emotionality.”

Dr. Lipman testified that the effect of alcohol on the brain is dependent upon the

amount of alcohol used and the duration of its use. Alcohol inhibits the frontal lobes of

the brain. When used chronically, alcohol damages the brain, and the damage can be

permanent, particularly in “continuous drinkers.” Dr. Lipman said the petitioner was not

a “continuous drinker” but was a “binge drinker.”

Dr. Lipman stated that Xanax is a benzodiazepine with a half-life of between six

and twenty-four hours and an average half-life of eleven hours. He said the petitioner

had been prescribed Xanax for many years but took less than the prescribed amount. He

stated that when taken regularly every day, the drug was not cleared from the person‟s

system by the time he or she took the next dose. He also stated that a person should not

drink alcohol while taking benzodiazepines.

Dr. Lipman testified that both cocaine and methamphetamine cause excessive

dopamine stimulation in the brain. As a result, the drugs produce elation and a sensation

of joy, power, and increased strength. Dr. Lipman state

This text is long and has been trimmed here. Open the source document for the complete record.