Richard Lloyd Odom v. State of Tennessee

10/20/2017

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

December 6, 2016 Session

RICHARD LLOYD ODOM v. STATE OF TENNESSEE

Appeal from the Criminal Court for Shelby County

No. 91-07049 Don R. Ash, Senior Judge

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No. W2015-01742-CCA-R3-PD

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The Petitioner, Richard Lloyd Odom, appeals the Shelby County Criminal Court’s denial

of his petition for post-conviction relief from his conviction of first degree felony murder

and resulting sentence of death. On appeal, the Petitioner contends that he received the

ineffective assistance of counsel, raises various issues related to his post-conviction

evidentiary hearing, and challenges the imposition of the death penalty. Having

discerned no error, we affirm the judgment of the post-conviction court.

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

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which ALAN E. GLENN

and ROBERT L. HOLLOWAY, JR., JJ., joined.

Jonathan King and Kertyssa Smalls, Assistant Post-Conviction Defenders, for the

appellant, Richard Lloyd Odom.

Herbert H. Slatery III, Attorney General and Reporter; Zachary T. Hinkle, Assistant

Attorney General; Amy P. Weirich, District Attorney General; and Stephen Jones,

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

OPINION

I. Factual Background

In 1991, the Petitioner raped and stabbed to death the elderly victim in a Memphis

parking garage. A Shelby County Criminal Court Jury convicted him of first degree

felony murder committed during the perpetration of rape and sentenced him to death

based upon the finding of three aggravating circumstances: (1) the Petitioner had been

convicted of one or more prior violent felonies; (2) the murder was especially heinous,

atrocious, or cruel; and (3) the murder was committed during the Petitioner’s escape from

lawful custody. Tenn. Code Ann. § 39-13-204(i)(2), (5), (8).

Our supreme court affirmed the Petitioner’s conviction on direct appeal but

reversed his death sentence. State v. Odom, 928 S.W.2d 18 (Tenn. 1996). The court

concluded that the trial court erred by excluding mitigating evidence and in instructing

the jury during sentencing. Id. at 21. The court also concluded that the evidence did not

support the heinous, atrocious, or cruel and the escape aggravating circumstances. Id.

The case was remanded for a new sentencing hearing. Id.

After the second sentencing hearing, a jury again sentenced the Petitioner to death.

The jury found the existence of one aggravating circumstance: the Petitioner had been

convicted of one or more prior violent felonies. Tenn. Code Ann. § 39-13-204(i)(2). On

appeal of the death sentence, our supreme court again ordered a new sentencing hearing.

See State v. Odom, 137 S.W.3d 572 (Tenn. 2004). The court concluded that the trial

court erroneously admitted detailed and graphic evidence of the Petitioner’s prior violent

felonies. Id. at 575.

At the conclusion of the third sentencing hearing, a jury again sentenced the

Petitioner to death. The jury found the existence of two aggravating circumstances: (1)

the Petitioner had been convicted of one or more prior violent felonies, and (2) the

murder was committed during the commission of a robbery. Tenn. Code Ann. § 39-13-

204(i)(2), (7). Our supreme court affirmed the death sentence on appeal. See State v.

Odom, 336 S.W.3d 541 (Tenn. 2011).

Thereafter, the Petitioner timely filed a petition seeking post-conviction relief.

The Office of the Post-Conviction Defender was appointed to represent the Petitioner and

amended the petition. Following an evidentiary hearing, the post-conviction court issued

a lengthy written order denying relief. This appeal ensued.

A. Trial Evidence

The following is a summary of the evidence of the crime from the 1992 guilt

phase of the trial:

The record indicates that at approximately 1:15 p.m. on May 10,

1991, Ms. Mina Ethel Johnson left the residence of her sister, Ms. Mary

Louise Long, to keep a 2:30 p.m. appointment with her podiatrist, Stanley

Zellner, D.P.M. She agreed to purchase a few groceries while she was out.

Johnson had not returned at 5 p.m.; this delay prompted Long to call

Zellner. He told Long that Johnson had not kept her appointment. As a

result of a subsequent call from Long, Zellner agreed to return to his office

and look for Johnson’s car in the parking garage. He located her car in the

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parking garage and observed her body inside. He went immediately to the

Union Avenue police precinct and notified officers.

Investigating officers found Johnson’s body on the rear floorboard of

her car with her face down in the back seat. Her dress was up over her

back, and an undergarment was around her ankles. One of several latent

fingerprints lifted from the “left rear seat belt fastener” of Johnson’s car

matched a fingerprint belonging to the defendant, Richard Odom, alias Otis

Smith.

The medical examiner testified that Johnson had suffered multiple

stab wounds to the body, including penetrating wounds to the heart, lung,

and liver. These wounds caused internal bleeding and, ultimately, death.

The medical examiner noted “defensive” wounds on her hands. Further

examination revealed a tear in the vaginal wall and the presence of semen

inside the vagina. In the medical examiner’s opinion, death was neither

instantaneous nor immediate to the wounds but had occurred “rather

quickly.”

Three days after the incident, Sergeant Ronnie McWilliams of the

Homicide Unit, Memphis Police Department, arrested the defendant. As a

result of a search incident to arrest, McWilliams confiscated a large, open,

lock-blade knife from the defendant. When they arrived at the homicide

office, McWilliams told the defendant of the charges against him and read

his Miranda rights to him. The defendant executed a “Waiver of Rights”

form, signing “Otis Smith.” A short time later he acknowledged having

identified himself falsely, executed a second rights waiver by signing

“Richard Odom” and gave McWilliams a complete, written statement.

In his statement, the defendant said that his initial intention was to

accost Johnson and “snatch” her purse after having seen her in the parking

garage beside her car. He ran to her and grabbed her; both of them fell into

the front seat. He then pushed her over the console into the rear seat. He

“cut” Johnson with his knife. Johnson addressed him as “son.” This

appellation apparently enraged the defendant; he responded that “[he]

would give her a son.” He penetrated her vaginally; he felt that Johnson

was then still alive because she spoke to him. Beyond the first wound, the

defendant claimed not to have remembered inflicting the other stab

wounds. Thereafter, the defendant climbed into the front seat and rifled

through Johnson’s purse. He found nothing of value to him, except the car

keys, which he later discarded. He then went to an abandoned building

where he had clothing and changed clothes.

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The defendant presented no evidence at this phase of the trial. Based

on the evidence above, the jury convicted the defendant of first-degree

murder committed in the perpetration of rape.

Odom, 928 S.W.2d at 21-22.

The following is a summary of the evidence from the 2007 resentencing hearing:

At the third sentencing hearing, the State offered proof that at

approximately 1:15 p.m. on the date of her murder, the victim, a seventy-

eight-year-old woman, left the residence of her sister, Mary Louise Long,

for an appointment with Dr. Stanley Zellner, a podiatrist. When the victim

had not returned by 4:30 p.m., Ms. Long called Dr. Zellner, who informed

her that the victim had failed to attend her scheduled appointment. Ms.

Long first telephoned the police department to report the victim’s

disappearance and then contacted John Sullivan, a long-time acquaintance,

who agreed to help look for the victim. The two “traced the route” the

victim had to drive and found her car in a parking garage. When Sullivan

approached the vehicle, he observed the body of the victim on the floor of

the backseat. After returning to the car, he did not inform Ms. Long what

he had seen, explaining that “she was a very nervous, high strung person.”

As he drove out of the parking garage, Sullivan encountered a police car

parked on a nearby street and told the officer where he could find the body.

Sullivan then drove Ms. Long to her residence before returning to the crime

scene to provide the police with a statement.

Donna Michelle Locastro, who was employed by the Memphis

Police Department at the time of the murder, had taken Ms. Long’s missing

person’s call prior to the discovery of the body. She and her partner, Don

Crowe, first called the local hospitals, the city wrecker dispatch, and the

traffic bureau before setting out on the route the victim would have driven

to her appointment. The officers arrived at the parking garage at

approximately 8:00 p.m., shortly after Sullivan had discovered the body.

When Officer Locastro looked inside the vehicle, she noticed what

appeared to be blood on the right front passenger’s seat and a wallet

wedged between the emergency brake and the driver’s seat. She also saw

that the victim was clutching what appeared to be a check in her left hand.

She and other officers secured the area and contacted the homicide unit.

Detective Ronnie McWilliams, who was assigned to the case on the

day after the murder, testified that a fingerprint found in the vehicle led to

the identification of “Otis Smith” as a potential suspect. Three days after

the murder, “Smith” was arrested. He had in his possession an “Old

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Timer’s Light Blade Knife,” which had a fold-out blade of over four inches.

During the arrest, Detective McWilliams informed “Smith” of his rights.

When he signed a waiver, however, Detective McWilliams observed that

“Smith” had started to sign another name. Later, when his true identity was

established, “Smith” signed a second waiver under the name Richard

Odom.

In a written statement to the police, the Defendant, thirty years old at

the time and unemployed, admitted killing the victim and provided details

of the crime. He stated that just before the murder, he was in the stairwell

trying to relax. When another individual entered the stairway, he entered

the garage area at the same time the victim arrived. Claiming that he

intended only to steal her purse so he could “get something to eat and catch

a nap,” he told officers that when he ran over to grab her purse, he

“somehow grabbed her arm or hand or whatever and we kind of fell back

into the car.” He stated that he always kept his knife open because of

potential danger in the area and that “somehow or another,” while

“[p]ushing the lady off of me and over the back seat . . . [,] I managed to . .

. cut her, I guess.” The Defendant also told the police that when “[t]he lady

called me, son, . . . I told her, I would give her a son [and] I went to the

back . . . seat with her. I don’t know if I stabbed her when I got in the back

seat with her or when I got back in the front seat.” The Defendant admitted

that he raped the victim and insisted that she was still alive at the time,

claiming that she remarked that she had never had sex before. He told

police that he could not remember whether he had stabbed the victim again

after the rape. The Defendant acknowledged searching the victim’s purse

and wallet, but claimed that he found nothing of value and left the items in

the car. While admitting that he took the victim’s car keys, he stated that

he threw them away as he left the parking garage. At the conclusion of his

interrogation, the Defendant remarked, “I need help mentally and

psychologically, something I can’t express just freely and openly.”

Dr. Jerry Thomas Francisco, the Shelby County Medical Examiner

at the time of the murder, conducted the autopsy. He found a stab wound at

the front of the victim’s chest and two on the right side of her body towards

the back. He also observed cuts on the victim’s right hand, which he

described as defensive wounds. The knife wound to the front of her chest

passed into the right side of the heart, causing two tears which, in turn,

caused blood to accumulate in the heart cavity and the left side of her chest.

A wound near the side penetrated her chest cavity and produced a tear in

the lung, which caused bleeding in the lung cavity. The other wound to the

side passed through her abdominal cavity into the liver, which produced

bleeding in the peritoneal cavity. Dr. Francisco, who determined that the

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victim was 5 feet 6 inches in height and weighed 113 pounds, characterized

each of the three wounds as lethal. In his opinion, the victim died between

one and two hours after the wounds were inflicted. During his examination

of the body, Dr. Francisco also discovered a tear of the vagina, a wound he

described as caused by forcible penetration. Fluid samples from the

victim’s vaginal area “[r]evealed the presence of sperm and enzymes that

are present in seminal fluid.” It was Dr. Francisco’s opinion that the

vaginal injuries were likely the product of forcible rape.

The proof also established that the Defendant had been convicted of

murder in Rankin County, Mississippi in 1998, seven years after the

victim’s murder. The 1998 conviction was for a murder that had occurred

some twenty years earlier. The Defendant was sentenced to a term of life.

At the request of defense counsel, the judgment of conviction was admitted

as an exhibit so that the jury would understand that there was “a detainer in

Mississippi waiting on [the Defendant] no matter what happens in this

case.”

The defense counsel, in an effort to persuade the jury to spare the

Defendant’s life, called Glori Shettles, an investigator who was qualified as

an expert in the field of mitigation, and several other witnesses to testify.

Because Ms. Shettles had previously worked for the Tennessee Board of

Probation and Parole, she also qualified as an expert in parole procedure

and policies. She testified that her background study indicated that the

Defendant, who had one older and one younger sister, was born in 1960 to

Norman and Nellie Smith, who were twenty and seventeen years old

respectively. Ms. Shettles described his home life as “unstable” and

testified that his mother abandoned the family before the Defendant was

two-and-a-half years old. The Defendant never saw his birth mother again.

After the Defendant and his sisters were sometimes left at a daycare center

“for days,” the State intervened and the Defendant and his two sisters were

adopted by members of the Odom family. The Defendant was adopted by

Jimmy and Shirley Odom, who had three biological children at the time:

Cindy, Jimmy Jr., and Larry, ranging in ages from two to seven. When the

Defendant, at age three, joined the Odom family, he had cigarette burns on

his body. Burns on his feet were so severe that he was unable to wear

socks and shoes. About a year after adopting the Defendant, the Odoms

divorced, and his adoptive mother married Marvin Bruce, who allegedly

mistreated the Defendant and his brother Larry. According to Ms. Shettles,

Bruce used “excessive discipline” on both boys and ridiculed the Defendant

for wetting the bed by hanging his sheets and clothes outside for others to

see. Ms. Shettles also learned that when the Defendant and Larry were

bathing, Bruce [. . .] “would scrub them excessively . . . would pull and tug

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on their penis [and] call them names and make fun of them.” Her

investigation indicated the Defendant had also endured cruelty at the hands

of Shirley Odom’s mother, who never accepted the Defendant as part of the

family and treated him differently from her biological grandchildren; no

one Ms. Shettles interviewed “[had] the impression that [Shirley Odom’s

mother] cared anything for” the Defendant.

The Defendant, when an adolescent, ran away from the Bruce home

and subsequently was ordered into the Mississippi juvenile court system. A

psychological evaluation performed for the authorities there when the

Defendant was fourteen years old indicated that he suffered from impaired

insight, memory, and reasoning. He was diagnosed as having a moderate to

severe personality disturbance. The evaluator determined that the

Defendant only read at “a beginning second grade level” and “strongly

urge[d that he not be] place[d] . . . in any academic situation.” It was

recommended that he enter a “complete evaluation program” in order to

avoid psychosis or mental deterioration to the point of institutionalization.

Thereafter, the Defendant was placed in a Caritas program, but was

found unfit to participate after thirty days. After his release in 1975, the

Defendant was returned to the juvenile authorities. He escaped to be with

his birth father, who lived one hundred and thirty miles away. Afterward,

he voluntarily returned and was placed at the Columbia Training Center.

According to Ms. Shettles, the Defendant tried to run away from Columbia

several times. Because on one occasion the Defendant was treated for “a

severe contusion of the right eye and jaw,” Ms. Shettles speculated that he

had been beaten while institutionalized there. During this period, a

psychologist, who predicted that the Defendant would be incarcerated his

whole life, described him as “brain damaged, incorrigible, antisocial,

unable to respond to usual social contingency program [sic] and a loser

with respect to probable adult adjustments.” The psychologist also

believed that the Defendant was “untreatable, unmanageable and a liability

to society for the rest of his natural life,” commenting that “if this youngster

changes for the better, it will be an act of God.” When the Defendant was

fifteen, he was conditionally released and, for a time, helped care for his

uncle, who had lost his legs to gangrene.

Ms. Shettles then addressed the Defendant’s record at Riverbend

Maximum Security Prison, where he had been incarcerated since 1992.

During the period since the victim’s murder, he had obtained his GED and

a paralegal certification. He worked as a teacher’s aide, participated in life

skills and Bible study classes, and also engaged in various arts and crafts.

He was described by a correctional officer as a hard worker, having a

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positive attitude, being helpful, and treating other inmates and staff with

courtesy. The Defendant’s only infraction was in 1996, when he threw a

mop bucket towards a guard, who, while standing behind a glass barrier,

had allegedly taunted him. Ms. Shettles remarked that one write-up during

this period of time was an “extremely low number.” She also commented

that the Defendant’s prison record was “very positive,” rating “in the top

three.”

In her capacity as an expert on parole procedures, Ms. Shettles

described the Defendant’s chances for release on a life sentence as “close to

impossible.” She made specific reference to the Defendant’s other murder

conviction in Mississippi, his escape from jail just prior to the murder of the

victim, and prior theft and robbery convictions. She also testified that even

if the Defendant received parole in Tennessee, he would be returned to

Mississippi to serve the remainder of the life sentence there.

After reviewing the exhibits pertaining to mitigation, the jury

submitted a series of written questions, including whether “mandatory

parole” and “parole” could be “define[d] in layman’s terms.” Afterward,

defense counsel recalled Ms. Shettles, who testified that if the Defendant

was given a life sentence in this case, he would not be eligible for

mandatory parole. She also explained that if sentenced to life

imprisonment, the Defendant would be eligible for discretionary parole

after twenty-five years, but that his prior murder conviction and his escape

from prison in Mississippi made parole highly unlikely.

Tim Terry, an inmate records manager at Riverbend, confirmed that

if the Defendant ever received parole in Tennessee, he would be returned to

Mississippi to serve his life sentence there. He provided assurances that, in

the event the Defendant received a life sentence for the victim’s murder, he

would not be moved from Riverbend to a local county jail.

Dr. Joseph Angelillo, a clinical psychologist who qualified as an

expert in forensic psychology, evaluated the Defendant and reviewed his

social history. While admitting that he was unable to make a specific

diagnosis, Dr. Angelillo found indications of “schizoid personality

features,” marked by a tendency to do things alone, sub-par social skills,

lack of joy, withdrawal from others, and a fear of relationships “unless

[there is] absolute assurance that they’re going to be accepted.” In his

opinion, the lack of sufficient mental health treatment afforded the

Defendant as a child, the rejection he had experienced, and the physical and

sexual abuse he had undergone all had a profound effect on his

development. Dr. Angelillo testified that the Defendant’s time in the

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structured environment of Riverbend had “behaviorally defined . . . his

ability . . . to engage in constructive activities.” He believed that the

Defendant would continue to thrive in this structured environment if given

a life sentence.

Dorothy Rowell, the Defendant’s adoptive aunt, also testified on his

behalf, describing him as a “part of our family.” She stated that her mother

had adopted one of the Defendant’s sisters, and that the other had been

adopted by Ms. Rowell’s sister. Ms. Rowell, who had spent a substantial

amount of time with the children prior to the Odoms’ divorce, described the

Defendant as “[v]ery sweet,” “[v]ery loving,” “[a]lways smiling,” “[h]appy,

and a [v]ery precious little boy.” She stated, however, that after the divorce

of his adoptive parents “[h]e wasn’t the happy smiling little boy that I

remembered.” She testified that the Defendant, when a teenager, “was

very, very good” with her invalid brother, Charles, and “[t]reated him like a

baby.”

Cindy Martin, the Defendant’s adoptive sister, described the

Defendant as “[t]he sweetest person you would ever want to meet” prior to

the time Marvin Bruce, his stepfather, became a part of his life. She

described Bruce as “horrible” and a “terrible person” who mistreated the

Defendant. She stated that after Bruce’s arrival, the children stayed with

their grandmother more often, and while Ms. Martin enjoyed being there

because her grandmother generally “spoil[ed] kids,” their grandmother

“never really accepted [the Defendant] as her grandchild” and “would hit

him with anything she could find.”

Jimmy Odom, Jr., the Defendant’s older adoptive brother, testified

that prior to the Odoms’ divorce, the Defendant was treated well, and that

they were “kind of like a family then.” He also claimed that things changed

after his mother remarried, and that the Defendant “wasn’t treated like a

child” and “never was loved.” He described their grandmother as “a mean

woman” who often struck the Defendant “with belts and stuff like that,”

and who never accepted the Defendant into the family. He called Marvin

Bruce “a pervert—[j]ust a sorry person.” He stated that if the Defendant

ever tried to reach for food at the dinner table before someone else, his

stepfather “would pop him up beside his head, . . . and just make him wait.”

Although he never witnessed Bruce sexually abusing the Defendant,

Jimmy, Jr. stated that he had “no doubt” that he had physically abused him.

He testified that there was “no love in our family” and that, as a result, the

Defendant “never had a chance.”

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Like the Defendant, Jimmy, Jr. was housed at Columbia Training

School for a time. He stated that on each day of their detention, the

residents spent forty-five minutes reading and forty-five minutes on

mathematics, but that the rest of the day was spent “in the fields.” He

testified to the excessive forms of discipline at the school, asserting that

“[t]hey would whup you with a board” and that “if you couldn’t take the

licks they would get other people to hold you down.” He also stated that

when residents ran away, they would receive a beating from the staff.

Jimmy, Jr., who was an inmate at Parchman Prison at the same time as the

Defendant and their brother Larry, described it as “a real bad prison,”

where juvenile inmates are not housed separately. He stated that both Larry

and the Defendant were sexually abused by the older inmates there and that

his efforts to take up for his younger brothers often resulted in fights at the

prison.

Several others who had become acquainted with the Defendant

during his time in prison also testified on his behalf. Celeste Wray, who

had been involved in prison ministries for eighteen years, corresponded

with the Defendant on a regular basis and developed a friendship with the

Defendant. She stated that her letters from the Defendant had “been

pleasurable and enjoyable” and that they were “always very respectfu[l],

which I appreciated.” Ricky Harville, who was an instructor at Riverbend,

testified that the Defendant worked as his aide when he began teaching at

the prison in 2003. He recalled that the Defendant assisted the other

inmates with reading and writing and that his interaction with them was

“very positive.” He stated that the Defendant was “very helpful,” that he

approached his job in a very positive manner, and that he served as a role

model for other inmates who sought educational opportunities. In his

opinion, the Defendant would continue to impact other inmates in a positive

way if he received a life sentence. Gordon Janaway, a former teacher in

various correctional institutes, taught the Defendant in a GED class at

Riverbend. He testified that after the Defendant obtained his certificate, he

became a clerk in the classroom. Janaway stated that the other inmates

“really respected him because he had earned a GED . . . which is not easy to

do in corrections.” Jim Boyd, who taught a life skills course at Riverbend,

met the Defendant while conducting a class. Boyd testified that the

Defendant was “an active participant” in the class and observed that the

Defendant had changed “for the better” during his time in prison. Finally,

Helen Cox, who was also involved in the life skills course, testified that she

kept a photo of the Defendant on her desk that was taken the day he

received his GED. She described the Defendant as a part of her extended

family.

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Odom, 336 S.W.3d at 549-54 (footnotes omitted).

B. Post-Conviction Evidence

Lead sentencing counsel testified that he was appointed on July 14, 2004, to

represent the Petitioner for the 2007 resentencing hearing. Sentencing co-counsel also

was appointed, and Glori Shettles with Inquisitor, Inc., was hired as the primary

mitigation investigator. Counsel had the benefit of reviewing all of the files and records

from the previous hearings in this case, including the mitigation investigation previously

performed by Ms. Shettles during the first resentencing hearing. Counsel also had the

benefit of talking with the previous attorneys. The defense team held numerous meetings

to discuss the course of mitigation. Ms. Shettles regularly kept counsel updated on her

investigation, and the defense team discussed the types of experts that might be used.

According to lead sentencing counsel, Ms. Shettles recommended securing a forensic

psychiatrist to evaluate the Petitioner.

Counsel ultimately filed a motion on October 11, 2007, to secure the services of

Dr. Joseph Angelillo, a forensic psychologist. The motion was granted that same day.

Lead sentencing counsel said that, although the resentencing hearing was scheduled to

commence approximately two months later, he usually requested funding for experts

further in advance if they were a “key part” of the case. He said Dr. Angelillo was not a

key part of their strategy. According to lead sentencing counsel, the defense relied on Dr.

Angelillo merely to determine if anything was missing from the information they already

possessed about the Petitioner’s mental health. Counsel also filed a motion for additional

funding the day the resentencing hearing commenced. The motion was granted the same

day.

Lead sentencing counsel acknowledged reviewing a letter from Ms. Shettles to

previous counsel advising that it would be beneficial to explore whether the Petitioner

suffered from organic or neurological brain damage. He also reviewed a document from

prior counsel referencing two episodes where the Petitioner lost consciousness from

closed head trauma and another requesting that the Petitioner undergo a PET (Positron

Emission Tomography) scan. Lead sentencing counsel also knew about a 1974

psychological evaluation report by Dr. Daniel Cox indicating the Appellant had a verbal

IQ of 67, a performance IQ of 100, and a full-scale IQ of 81. That report concluded that

the discrepancy between the verbal and performance scores reflected moderate to severe

emotional personality disturbance and that there was evidence of mild organic

neurological deficiency. Dr. Cox also considered the Petitioner to be “brain damaged,

incorrigible, antisocial, unable to respond to usual social contingency programming and a

loser with respect to probable adult adjustments.” Dr. Cox recommended in 1974 that the

Petitioner undergo extensive medical, psychiatric, and psychological evaluations. Lead

sentencing counsel said he was not certain he wanted Dr. Angelillo to see Dr. Cox’s

reports. He admitted that there was concern the Petitioner had organic or neurological

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brain damage, and he stated that they discussed retaining a neurologist and

neuropsychologist. Lead sentencing counsel said, though, that he would not always

present evidence of a defendant’s brain damage during a capital sentencing trial. He said

it depended on the case.

Counsel knew life without the possibility of parole was not a sentencing option for

the Petitioner. However, as part of their defense, they tried to explain to the jury that it

was extremely unlikely the Petitioner would ever be considered eligible for parole if

given a life sentence. Lead sentencing counsel identified a motion the defense drafted to

strike the Petitioner’s prior murder conviction from consideration as an aggravating

circumstance because the crime was committed while the Petitioner was a juvenile. They

decided not to file it, though, because they “felt that it was clear that was coming in, and

that we were going to keep some of the details of that out that were going to drift in if we

opened the door on it.”

On cross-examination, lead sentencing counsel testified that, although their

investigation team pursued aspects of the guilt phase of the trial, the presentation of a

residual doubt defense during mitigation was not part of their strategy. Lead sentencing

counsel acknowledged that the Petitioner was willing to submit to DNA testing and that

the investigators identified a handwriting expert willing to examine the Petitioner’s

statement to the police. Lead sentencing counsel said he reviewed all of the information

obtained by their investigators and ultimately concluded there was no evidence to

reasonably support a residual doubt defense during the resentencing hearing.

Lead sentencing counsel praised the investigative work performed by Ms. Shettles.

He respected her opinion and listened to her suggestions. Lead sentencing counsel

thought defense counsel and the investigative team maintained open communication and

had a good working relationship. Lead sentencing counsel said it was “the best

mitigation [he] ever had” in a capital case. The entire defense team met numerous times

and discussed and considered the different mitigation strategies available in this case.

According to lead sentencing counsel, possibly the most difficult obstacle they faced was

the fact that the jury would be informed the Petitioner would be eligible for parole after

serving twenty-five years if given a life sentence, which in the Petitioner’s case would

have been eight years from the second resentencing hearing. Counsel unsuccessfully

objected to that jury instruction. Counsel’s strategy then was to convince the jury that the

Petitioner would almost certainly never be paroled, especially given his prior murder

conviction in Mississippi. To that end, the defense incorporated into their mitigation

strategy the fact that the Petitioner stood convicted of another first degree murder. Lead

sentencing counsel said they used the prior murder conviction to bolster their case to the

jury that even if the Petitioner were paroled in Tennessee, he would be sent directly to

Mississippi to serve his other life sentence. Lead sentencing counsel did not think his

motion to strike that conviction as an aggravator would be successful, so they decided to

“embrace it.”

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Defense counsel’s strategy included generating empathy with the jury based upon

evidence of the Petitioner’s disadvantaged past and demonstrating the Petitioner would

never be released from prison. The Petitioner initially did not want counsel to show the

jury evidence of his troubled past. According to lead sentencing counsel, the Petitioner’s

family members also initially did not fully cooperate with defense counsel. Lead

sentencing counsel said, however, that they eventually agreed to assist counsel and testify

on the Petitioner’s behalf. Lead sentencing counsel said the testimony by the Petitioner’s

family members was “incredible” and “very compelling.” Lead sentencing counsel did

not think the mental health aspect of mitigation in this case would have presented the

same emotional impact as the testimony by the family members. He said having the

family members tell stories about the Petitioner’s history was much more compelling

than an expert reciting results from an evaluation. Lead sentencing counsel stated, “I

really think we put on what we thought was our spear point, and it wasn’t enough.”

According to lead sentencing counsel, Dr. Angelillo’s report supported their theory of

pursuing empathy through the testimony of the Petitioner’s family members. Lead

sentencing counsel stated, “I don’t think we would have put him on at all if we hadn’t

thought that, if it didn’t move with our theme.” The defense attempted to highlight the

differences between the prison system in Mississippi, where the Petitioner was housed as

a teenager, and the more structured environment in Tennessee, where the Petitioner was

housed at Riverbend. According to lead sentencing counsel, the Petitioner had adapted

well in his current prison environment, and showing the jury that fact was a main point of

the defense.

Again, counsel had the benefit of reviewing all of the evaluations from the

previous hearings. Lead sentencing counsel acknowledged that the State would have

been allowed to cross-examine their expert witness if the defense questioned a witness

about the previous evaluations. Lead sentencing counsel highlighted the statements made

by Dr. Cox that counsel believed were “so atrocious.” Although counsel did not want the

State to exploit that information during cross-examination of their mental health expert,

the defense was able to introduce Dr. Cox’s opinion into evidence through the testimony

of their investigator. That information supported the mitigation theory that the system in

Mississippi failed the Petitioner. Lead sentencing counsel said, however, that if the State

was allowed to question Dr. Angelillo about previous reports of antisocial personality

disorder, their mitigation theory of a lack of future dangerousness in the prison setting

would have been compromised.

Lead sentencing counsel was further questioned about a 1978 report from

Mississippi State Hospital, where the Petitioner was evaluated after committing the

previous murder. The report stated that the Petitioner “had no feelings, no sorrow about

it.” It also said the Petitioner “showed no signs or symptoms of a psychosis,” his

“psychological and neurological examination were within normal limits,” “there is

evidence of mild organic (neurological) deficiencies although I don’t believe it is

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interfering with him in a major way at this time,” and the Petitioner possessed “a

moderately disturbed personality with a marginal adjustment.” The report diagnosed the

Petitioner “as a schizoid personality with possible organic pathology [sic] present.”

Psychological testing at that time “did not reveal any signs of organisity [sic] or a

neurological deficit nor did the neurological examination.” The report found that the

Petitioner had a full scale IQ of 93, and “he was found to be without psychosis and the

clinical impression was a personality disorder with antisocial features [and] he was

competent and responsible.” Lead sentencing counsel said he reviewed that report prior

to the resentencing hearing and thought its findings would have contradicted any

allegation the defense asserted concerning the Petitioner’s neurological deficits. He

reiterated that an evaluation of antisocial personality would not have benefitted their

theory of mitigation.

Lead sentencing counsel talked to defense counsel from the first resentencing

hearing about their theory of mitigation before deciding on the approach to take during

the second resentencing hearing. Prior to that hearing, counsel filed a notice of potential

expert witnesses they considered calling to testify about how serotonin levels related to

human behavior. Lead sentencing counsel said that although they had already ruled out

that mitigation approach, they wanted the option to change their minds. Lead sentencing

counsel also stated that Dr. Angelillo was provided a summary of the defense theory prior

to the hearing.

Sentencing co-counsel testified that he reviewed all of the files and records from

the previous hearings in this case. He also spoke with counsel from the first resentencing

hearing. Sentencing co-counsel said they had the benefit of Ms. Shettles, who also

worked on the first resentencing hearing. Sentencing co-counsel considered the defense a

team effort wherein everyone involved in the case shared thoughts and ideas about how

to proceed with the presentation of mitigating evidence. Sentencing co-counsel

confirmed that the defense team discussed using mental health experts but ultimately

decided against that particular approach. Sentencing co-counsel summarized their theory

of defense as follows:

[The Petitioner] never had a chance to begin with, from his early

childhood, from the horrible family situation, to the torture, to the

institution he was sent to in Mississippi that was shut down by the Federal

Government for essentially torturing children, to incarceration at Parchman,

how he was removed from Parchman and why. How he, once he was re-

institutionalized, thrived, and he wasn’t a danger to anybody where he was.

And part of the defense, and I think we put on proof that,

realistically, [the Petitioner] was never going to get out of prison with the

Tennessee conviction and the Mississippi conviction, and that that was

sufficient punishment.

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Regarding the Petitioner’s mental health, sentencing co-counsel testified:

[The Petitioner] had a long history of – of evaluations and being

looked at, and there was a lot of information in there. The danger in my

opinion with these older cases is, if I come in with an expert that is new to

the case and he comes up with something that is much more magnificent

than anybody else has ever seen, I think it’s disingenuous to the jury

sometimes, and I think it appears to be bought and paid for.

It – from what we had seen earlier in the information we had, could I

have found a doctor to – to get up here to the jury and say that that all

greatly affected him? Probably.

But I think in the long run, when the State prosecutors were done

with that doctor, it would have harmed [the Petitioner’s] case more than it

would have helped it because I don’t think the earlier information would

have really corroborated what the new doctor would have said and I only

would have put him on if it had been really good, if that makes sense.

When asked how he could know “whether the information is really good without doing

the examination,” sentencing co-counsel replied,

It didn’t matter if it was good. If I knew if it was really, really good,

if I had a doctor who was going to get up here and say that he did all this

because he was brain damaged and all of this and all of that, that would

have directly gone against what every other doctor had said in the past, and

I think that testimony would have looked like it was bought and paid for.

Sentencing co-counsel also thought any residual doubt defense during

resentencing had the potential of backfiring. Sentencing co-counsel admitted that the

instruction informing the jury that the Petitioner would be eligible for parole after serving

twenty-five years of a life sentence was “the single hardest thing some juror’s going to be

able to get past.” He also confirmed that they decided not to move to strike the

Petitioner’s prior murder conviction for consideration as an aggravating circumstance, in

part, because it was part of their strategy to convince the jury the Petitioner would never

be released from prison. Sentencing co-counsel, though, did not otherwise believe there

was a legal basis for their position. According to sentencing co-counsel, Ms. Shettles

testified as an expert about her experience working for the Board of Probation and Parole

for twenty years, and it was her opinion that the Petitioner would never be paroled.

During cross-examination, sentencing co-counsel opined, “[W]e had very

powerful in my opinion mitigation on his life. Very strong witnesses testifying to the

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things that had happened to him as a child, the trouble he got into, how he thrived in

prison when he was there, and basically, there was no reason to execute him.” He agreed

with lead sentencing counsel that no “mental health expert ever could have gotten the

emotion that we were able to get out of” the lay witnesses. According to sentencing co-

counsel’s impression, the jury was able to understand the Petitioner as “a very damaged

human being.” Sentencing co-counsel said the defense tried to show the jury how the

system in Mississippi failed the Petitioner because he never received the help

recommended by the mental health experts who evaluated him. In contrast, they were

able to show the jury how he had adjusted well to the prison environment in Tennessee.

Sentencing co-counsel did not believe presenting evidence both that the Petitioner acted

violently in the past because of low serotonin levels or brain damage and that he adjusted

well in a controlled prison setting would have been an effective or complementary

defense. Sentencing co-counsel did not want to provide “ammunition for the State” by

relying upon a diagnosis of

borderline personality, antisocial behavior. Things like that are never

helpful to a defendant and our other stuff showed that that wasn’t the way

he behaved, and you know, it was a good theory. The system had failed

him, but once the system essentially fixed him when he was incarcerated

and when he was structured and when he was provided what he needed, he

thrived. I mean, he – he – he was a model inmate.

Trial co-counsel testified that she and lead trial counsel were both employed by

the Office of the Public Defender at the time of trial and that lead trial counsel previously

served as the District Public Defender. Lead trial counsel was deceased at the time of the

evidentiary hearing. In addition to the two attorneys, the Petitioner had the benefit of a

factual investigator and a mitigation specialist. Trial co-counsel said the Petitioner was

examined by Dr. John Hutson, a clinical psychologist, prior to trial. Trial co-counsel

recalled reviewing the Mississippi records related to the Petitioner’s prior mental health

evaluations. She also remembered requesting discovery from the prosecution, but she did

not think they received the entire police investigation file. Trial co-counsel said, though,

that if the police file identified other people who were in the parking garage at the time,

but they were not detained as suspects by the police, then counsel probably would not

have pursued them. Defense counsel did not seek to have the Petitioner’s signed

statement analyzed by a forensic document examiner.

Trial co-counsel testified on cross-examination that she did not think counsel was

unprofessional for failing to move for a continuance due to lead trial counsel’s health.

She did not notice anything concerning about his health, and she stated that if lead trial

counsel did not believe he could continue, he would have said so. According to trial co-

counsel, the prosecutor on the case at the time would have allowed defense counsel to

review the State’s entire case file. She also confirmed that the record of the original trial

reflected that defense counsel was given the opportunity to review everything the State

- 16 -

possessed in its file.

According to trial co-counsel, the defense team did not notice anything peculiar

after interacting with the Petitioner that gave them concern about his mental health. The

defense attempted to get any relevant records from the Petitioner’s past, including prison

and mental health records. One of the first records trial co-counsel reviewed from 1978

opined that the petitioner “was without psychosis, responsible and competent to stand

trial” and that “psychological and neurological examinations were within normal limits.”

Trial co-counsel also learned that the Petitioner earned his G.E.D. in prison in Mississippi

and completed some junior college courses. Trial co-counsel said Dr. Hutson’s finding

of a personality disorder was not helpful. According to trial co-counsel, the Petitioner’s

family members did not want to testify on his behalf.

Trial co-counsel testified that the decision making process of the defense team was

influenced by the information about the case known to them at the time, including the

details contained in the Petitioner’s confession. As such, trial co-counsel did not see any

benefit to testing the clothing the Petitioner wore during the murder. Similarly, she saw

no reason to test the hair samples found in the victim’s hand or the blood samples from

the parking garage. Despite being unsuccessful in moving to suppress the Petitioner’s

statement, the defense theory during the guilt phase of the trial was that the Petitioner was

coerced into confessing.

Betsy Chandler worked at Parchman Prison in Mississippi from 1985 until 2005.

She worked in the law library and as a case manager. Ms. Chandler remembered the

Petitioner when he was housed at the prison, and she remembered he was victimized by

other inmates because he was younger and smaller. She did not remember him receiving

many visitors or receiving items from people outside the prison. According to Ms.

Chandler, the Petitioner was “emotionally needy” and “worrisome.” She also identified a

report detailing the Petitioner’s placement into protective custody because he was

accused of rape and being a problem inmate. Frank Nobles was housed at Parchman

Prison with the Petitioner. He testified about the violent nature of the prison environment

and how the weaker inmates were victimized by the stronger ones. Mr. Nobles described

the Petitioner as a weaker inmate. Robert Tubwell was also housed with the Petitioner at

Parchman Prison. Mr. Tubwell remembered the Petitioner seeking the protection of two

stronger inmates at different times. The stronger inmates in the prison would typically

require things in return for offering protection such as sexual favors, washing clothes, and

running errands. The weaker inmates would be referred to as “sons” by their protectors.

Mr. Tubwell saw the Petitioner wear makeup and dress in women’s clothing one or two

times. Mr. Tubwell also remembered the Petitioner filing grievances with guards.

According to Mr. Tubwell, inmates often retaliated against inmates who filed grievances

against them.

Dr. Tora Brawley, a clinical neuropsychologist, testified on behalf of the

- 17 -

Petitioner. She examined the Petitioner prior to the evidentiary hearing and had the

benefit of reviewing records from the Petitioner’s past. Dr. Brawley administered the

Wechsler Adult Intelligence Scale IV test, which measured IQ as well as different areas

of brain function. The Petitioner measured a full-scale IQ of 94, which was average

according to Dr. Brawley. His verbal comprehension score was 89, which was low

average, and his perceptual reasoning score was 104, which was average. However, Dr.

Brawley said the discrepancy between the verbal and performance skills was statistically

and clinically significant. She also administered the Wechsler Memory Scale IV test,

which examined memory function. The Petitioner performed in the ninth and sixteenth

percentiles on verbal memory tests, but he performed in the fiftieth and seventy-fifth

percentiles on visual memory tests. The Petitioner performed poorly on non-verbal

abstract reasoning and verbal learning tests. He scored in the fourth percentile on a

verbal fluency test. Dr. Brawley also observed some asymmetry between the Petitioner’s

left and right hands after administering a simple test that measured the Petitioner’s

manual motor speed.

Based upon her examination of the Petitioner, Dr. Brawley concluded that he had

significant asymmetries in several areas of cognition to include memory, intellectual, and

motor functioning. She also observed deficits in his frontal lobe functioning and mental

flexibility. Those deficits most probably affected the Petitioner’s behavior and

personality over his life span and could have significantly impacted his judgment,

impulsivity, and decision making. Dr. Brawley said the results from some of the

Petitioner’s past records corresponded with her findings. She also said the fact that the

Petitioner previously escaped from prison would be consistent with his inability to make

good choices. She stated, however, that the Petitioner’s issues and deficits had likely

improved over time because he had been confined for many years in a very structured

prison environment in Tennessee. According to Dr. Brawley, neuropsychological

impairment was not synonymous with mental retardation.

On cross-examination, Dr. Brawley testified that drug use could contribute to

neurological damage. She said the Petitioner suffered head trauma, which resulted in loss

of consciousness, on three occasions when he was between seventeen and twenty-one

years old. Dr. Brawley said the Petitioner’s neurological damage may or may not have

contributed to his actions at the time of the murder. During the examination, the

Petitioner informed Dr. Brawley that two of the top three stressors he faced at that time

were being “locked up for something [he] didn’t do” and “trying to get the work records

of Tanya D. Tiller,” both of which related to his guilt.

Alysandra Finn, an investigator with the Office of the Post-Conviction Defender,

was assigned to investigate the mitigating evidence on behalf of the Petitioner. She

testified that she uncovered information not reported by Glori Shettles during the second

resentencing hearing. The Petitioner’s biological father, Richard Norman Smith, was

born out of wedlock. Mr. Smith did not have a good relationship with his mother, who

- 18 -

committed suicide when Mr. Smith was sixteen years old. Mr. Smith’s stepfather started

binge drinking soon thereafter. Mr. Smith’s brother and nephew also committed suicide.

Mr. Smith wreaked havoc in the community as a teenager and was eventually placed in a

juvenile facility.

Ms. Finn also interviewed the Petitioner’s biological mother, Holly Taylor (Nellie

Ruth Holly). Ms. Taylor’s father was extremely abusive to her and her sister and acted

violently towards others in the community. Ms. Taylor’s father raped his daughter from

another marriage and was eventually murdered in prison. Ms. Taylor’s mother was

described as mean and uncaring. Ms. Taylor’s mother remarried, and her new husband

sexually abused Ms. Taylor and her sister. According to Ms. Finn, Ms. Taylor was

described as a mean child. When Ms. Finn interviewed Ms. Taylor, she was living in

filth in a tiny trailer.

The Petitioner’s parents were teenagers when they met. By the time they married,

they were both drinking and partying regularly. Ms. Taylor continued to drink during her

pregnancies. The Petitioner had an older sister and a younger sister. Neither parent was

described as caring or loving. The Petitioner’s mother informed Ms. Finn that she was a

lot meaner to the children than their father was. The Petitioner’s father physically abused

the Petitioner’s mother. The family eventually settled in Mississippi. Ms. Taylor

abandoned the family when the Petitioner was one and one-half years old. The

Petitioner’s father then had to take on additional employment, so he would leave the

children with a neighbor, Gladys McClendon. The Petitioner and his sisters were not

well-cared for by their father; the Petitioner was seen with cigarette burn marks on his

arms and feet at the time. Ms. McClendon’s home was the de facto day care for the

neighborhood. The Petitioner and his sisters eventually spent more time living with Ms.

McClendon. The Petitioner was finally adopted when he was about two years old by Ms.

McClendon’s daughter, Shirley1, and Shirley’s husband, Jimmy Odom. The Petitioner’s

two sisters were adopted by other member of the community. According to Ms. Finn,

neither fared much better in their adoptive households than the Petitioner. At the time of

her investigation, Ms. Finn said both sisters suffered from depression. Mr. Smith resisted

the adoptions at first but ultimately agreed when he was threatened with being reported

for sexually abusing his daughters. The Petitioner’s biological parents attempted to

reconcile at some point but to no avail.

Shirley was fifteen when she married Jimmy Odom, who was sixteen. They had

three biological children together. Jimmy Odom had just been released from prison when

the Petitioner arrived in the family. The Odoms were described as incompetent parents.

Jimmy Odom was always partying, and Shirley Odom “had no control over the house. It

was filthy.” Jimmy Odom was known to be a womanizer, and the Odoms had an abusive

1

Because some of the Petitioner’s family members share a surname, we will refer to them by

their first names for clarity. We mean no disrespect to these individuals.

- 19 -

and volatile relationship. They eventually divorced when the Petitioner was four years

old, and Gladys McClendon resumed primary responsibility for the Petitioner. She also

cared for many other children at the same time. Ms. Finn described the scene at the

McClendon house as “constant chaos.” Ms. McClendon was extremely cruel to the

Petitioner. She did not want him around and would beat him.

Shirley Odom married a man named Marvin Bruce when the Petitioner was about

five years old. Mr. Bruce was an alcoholic, and he and Shirley had three biological

children together. According to Ms. Finn, the Petitioner was treated as the outcast and

severely abused by Mr. Bruce and Shirley. The Petitioner wet the bed until he was about

nine years old, and Mr. Bruce would hang the sheets outside of the house to embarrass

the Petitioner. Shirley also would humiliate the Petitioner when he wet the bed by

pulling down his pants and smacking his “privates” in front of the other children. Shirley

drank during the day. The house was a mess, and there were times when there was no

food in the house. The children were filthy and were not taught how to maintain any

personal hygiene. The police were frequently called to the home.

When the Petitioner was twelve years old, he and his brother Larry would solicit

oral sex for money. According to Ms. Finn, the Petitioner also started living on the

streets at that age. At a young age, the Petitioner was reported to have started having

“spells” during which he would “check out” and would not respond when called. The

Petitioner was placed in special education in school. The Petitioner stayed in trouble

with the police and eventually was placed in Columbia Training School, a juvenile

facility. The Petitioner was described as malnourished at the time. The juveniles were

punished if they attempted to escape, and the Petitioner spent one hundred and twenty

days in the “hole” in isolation for running away. The Petitioner received no mail or

visitors when he was at Columbia. The Petitioner was evaluated by Dr. Cox once before

he entered the training school and once while in attendance. Dr. Cox requested that the

Petitioner undergo an EEG, which Ms. Finn said was unusual.

After the Petitioner left the juvenile training school, he was arrested and convicted

of homicide in 1978 and incarcerated at Parchman Prison to serve a life sentence. Ms.

Finn described the conditions at the prison at that time. Hundreds of inmates were

housed in individual units consisting of open bunk bedding. Violence among the inmates

apparently was widespread, and the smaller white inmates were particular targets. Ms.

Finn described the relationships between the “gal boys” or “sons,” the weaker inmates,

and their “protectors” or “daddies,” the stronger inmates. The “sons” would exchange

sexual favors for protection. “Punks,” as they were called, were former “sons” who

became “free game” to the rest of the inmates. According to Ms. Finn, the Petitioner was

described as having been both a “son” and a “punk.” As part of the role of “son,” the

Petitioner at times was forced to wear makeup and women’s clothing. Ms. Finn also said

the guards routinely beat the inmates.

- 20 -

The Petitioner’s brother, Larry, was incarcerated at Parchman with the Petitioner,

and he attempted suicide a couple of times. According to Ms. Finn, Larry had similar

experiences as the Petitioner because of his size. The Petitioner’s other brother, Jimmy,

Jr., who also was housed at Parchman, associated himself with the Aryan Brotherhood,

became an “enforcer,” and was able to protect himself. Ms. Finn learned that Jimmy, Jr.,

did not associate with the Petitioner or Larry because of their status as “sons” and

“punks” and, thus, did not protect them for fear of retaliation from his gang.

Ms. Finn referred to reports that the Petitioner had been assaulted in prison.

According to Ms. Finn, however, the prisoners who reported assaults faced ridicule and

retaliation from other inmates and the guards because the reports apparently were not

kept confidential. Records reflected that the Petitioner contracted syphilis at Parchman.

Ms. Finn said that although his two brothers received visitors in prison, the Petitioner did

not. The Petitioner was eventually transferred from Parchman Prison to a county jail.

According to Ms. Finn’s findings, the Petitioner was transferred because he was assisting

with an official investigation. The Petitioner escaped from that jail prior to committing

the murder in this case.

Dr. James Merikangas testified for the Petitioner as an expert in neurology and

psychiatry. Dr. Merikangas reviewed the Petitioner’s numerous historical reports and

conducted an interview with the Petitioner. He also conducted a neurological

examination, including an MRI (Magnetic Resonance Imaging) and PET scan, as well as

a physical examination of the Petitioner. Dr. Merikangas said executive functioning,

which was the ability to plan and control behavior, was located in the frontal lobe of the

brain. Based upon his review of the Petitioner’s records, including reports of the

Petitioner’s mother drinking while pregnant, a high fever the Petitioner experienced as a

child, and the various head injuries the Petitioner suffered, as well as his initial physical

examination of the Petitioner, Dr. Merikangas concluded that the Petitioner had some sort

of brain damage which needed to be explored further.

The MRI, which according to Dr. Merikangas examined the anatomy of the brain,

revealed loss of brain tissue in the Petitioner’s temporal lobe. In addition, the Petitioner

had an enlarged third ventricle which reflected a loss of cognitive functioning. Dr.

Merikangas also identified scarring of the brain tissue, which likely was caused by head

injuries, as well as evidence of damage associated with fetal alcohol syndrome among

other things. Dr. Merikangas testified that, based upon the discrepancy between the

Petitioner’s verbal and performance IQ scores, there was a disconnect between the

functionality of the Petitioner’s left and right brain hemispheres. The PET scan, which

measured brain function, revealed that the Petitioner’s temporal lobes were not

functioning as well as the rest of his brain. Dr. Merikangas said the temporal lobes,

which controlled behavior, were likely to be damaged during head trauma. The PET scan

also revealed asymmetry between the functionality of the left and right hemispheres of

the Petitioner’s brain. Dr. Merikangas also administered a Diffusion Tensor Imaging

- 21 -

(DTI) test, which was a type of MRI that examined the flow of fluid in the axons, or

nerve connections in the brain. The DTI revealed some problem with the connections

between the two sides of the Petitioner’s brain.

Reviewing a previous IQ score the Petitioner received in 1974, Dr. Merikangas

testified that the full-scale score of 81 was just above borderline mental retardation and

that the thirty-three-point difference between the verbal and performance scores was

highly significant and suggestive of brain damage. Dr. Merikangas also reviewed a

report from a 1976 EEG, which revealed evidence of brain damage. According to Dr.

Merikangas, the fact that the Petitioner had an EEG a couple of years later, which was

normal, did not necessarily discount the earlier abnormal results. Although the Petitioner

was treated for syphilis at a young age, Dr. Merikangas could not comment on whether

the disease affected his brain.

Dr. Merikangas testified that the test results revealed brain damage, which the

Petitioner probably had his entire life. When asked by the court what it meant to have

brain damage, Dr. Merikangas answered, “It generally means that your intelligence is not

as good as it should be, and your ability to plan and carry out actions or to control your

impulses is not as good as it should be.” According to Dr. Merikangas, studies showed

that emotional and psychological abuse of children could inhibit the development of their

brains. In the Petitioner’s case, Dr. Merikangas attributed his brain damage to a

combination of his long-term history of physical, sexual, and psychological abuse and

physical head trauma, i.e., both congenital and acquired brain damage. Dr. Merikangas

testified that “many parts” of the Petitioner’s brain were damaged. He ruled out a

diagnosis of personality disorder.

During cross-examination, Dr. Merikangas testified that he was not aware the

Petitioner escaped from Parchman Prison in 1981. He further testified that knowledge of

that information would not change his opinion. He said, though, that the Petitioner’s

brain damage would not prevent him from attempting to escape in the future. Dr.

Merikangas did not opine whether the Petitioner’s brain damage prevented him from

knowing right from wrong, and he did not comment on whether the Petitioner’s brain

damage caused him to commit the two murders. Dr. Merikangas opined that drug use did

not cause the Petitioner’s brain damage. Although Dr. Merikangas did not think the

Petitioner’s brain damage had improved any, he said the Petitioner’s behavior had

improved while on death row. Dr. Merikangas acknowledged that the Petitioner had a

subsequent full-scale IQ score in the 90s, but he also opined that a similar discrepancy

between the verbal and performance scores indicated brain damage. Dr. Merikangas

could not explain why the Petitioner had two different readings from EEGs conducted in

1976 and 1978, but he said they were not relevant to his diagnosis.

Sean Lester, the Custodian of Records for the Shelby County Medical Examiner’s

Office, testified for the State. Mr. Lester was asked to identify any evidence remaining

- 22 -

from the autopsy of the victim in this case. He located three items: two glass vacuum

containers, one labeled “rectal swabs” and one labeled “vaginal swabs,” and a sealed

envelope labeled “hair and fiber from right hand.” To Mr. Lester’s knowledge, there had

never been a request to test those samples for DNA. James Hill, an officer with the

Memphis Police Department’s Latent Fingerprint Section, provided for the record in this

case all of the fingerprint-related evidence retained by the department. William D.

Merritt, an investigator with the Shelby County District Attorney General’s Office,

provided for the record in this case all of the residual evidence remaining in the custody

of the trial court clerk that was not introduced during any of the earlier trials.

Glori Shettles testified on behalf of the State. She worked for Inquisitor, Inc., for

twenty-one and one-half years as a mitigation investigator prior to working for the Shelby

County Public Defender’s Office. She said that she worked on approximately ninety

capital cases during her career and that she worked with defense counsel during the

Petitioner’s first and second resentencing hearings. According to Ms. Shettles, the

attorneys made their own arrangements for expert witnesses during the first resentencing

hearing. She said, though, that she obtained some of the Petitioner’s records related to

his mental health. Ms. Shettles said that, having worked on both hearings, she had an

advantage in preparing mitigating evidence during the second resentencing hearing

because she did not have to duplicate some of the investigation. She prepared a

comprehensive mitigation timeline of the Petitioner’s history to give counsel in

preparation of the hearing. Ms. Shettles further said she had difficulty prior to the first

resentencing hearing soliciting information and assistance from the Petitioner’s family,

but she said she experienced better cooperation from the family members during her

work on the second resentencing hearing.

Ms. Shettles thought she developed a good working relationship with lead

sentencing counsel and sentencing co-counsel. Ms. Shettles said both attorneys were

very responsive and maintained open lines of communication. She said she was much

more involved in the mental health aspect of mitigation during the second resentencing

hearing than the first, and she identified the several experts she contacted during her

investigation. Ms. Shettles also attested to the amount of time she spent on her

investigation into potential mental health evidence. She recommended experts who

counsel ultimately decided not to rely upon at the hearing. Nevertheless, Ms. Shettles

testified that her investigation into the Petitioner’s background was as thorough as any

other case in which she had participated.

II. Analysis

The Petitioner’s post-conviction petition is governed by the Post-Conviction

Procedure Act. See Tenn. Code Ann. §§ 40-30-101 to -122. To obtain post-conviction

relief, a petitioner must show that his or her conviction or sentence is void or voidable

because of the abridgment of a constitutional right. Tenn. Code Ann. § 40-30-103. The

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petitioner must establish the factual allegations contained in the petition by clear and

convincing evidence. Tenn. Code Ann. § 40-30-110(2)(f). Evidence is clear and

convincing when there is no serious or substantial doubt about the accuracy of the

conclusions drawn from the evidence. Hicks v. State, 983 S.W.2d 240, 245 (Tenn. Crim.

App. 1998).

Once the post-conviction court rules on the petition, its findings of fact are

conclusive on appeal unless the evidence preponderates against them. State v. Nichols,

90 S.W.3d 576, 586 (Tenn. 2002) (citing State v. Burns, 6 S.W.3d 453, 461 (Tenn.1999));

Cooper v. State, 849 S.W.2d 744, 746 (Tenn. 1993). The Petitioner has the burden of

establishing the evidence preponderates against the post-conviction court’s findings.

Henley v. State, 960 S.W.2d 572, 579 (Tenn. 1997). This court may not re-weigh or

reevaluate the evidence or substitute its inferences for those drawn by the post-conviction

court. Nichols, 90 S.W.3d at 586. Furthermore, the credibility of the witnesses and the

weight and value to be afforded their testimony are questions to be resolved by the post-

conviction court. Bates v. State, 973 S.W.2d 615, 631 (Tenn. Crim. App. 1997).

The Petitioner challenges aspects of his original trial attorneys’ representation as

well as the representation of his attorneys during the third sentencing hearing. He also

presents issues related to the conduct of the 1992 trial, the 2007 resentencing hearing, and

the post-conviction evidentiary hearing, as well as familiar issues against the imposition

of the death penalty. For the sake of clarity in the opinion, we have reorganized the order

of the issues the Petitioner presents in his appellate brief.

A. Ineffective Assistance of Counsel

Claims of ineffective assistance of counsel are regarded as mixed questions of law

and fact. State v. Honeycutt, 54 S.W.3d 762, 766-67 (Tenn. 2001); Burns, 6 S.W.3d at

461. As such, the post-conviction court’s findings of fact underlying a claim of

ineffective assistance of counsel are reviewed under a de novo standard, accompanied by

a presumption that the findings are correct unless the preponderance of the evidence is

otherwise. Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001) (citing Tenn. R. App. P.

13(d)). However, a post-conviction court’s conclusions of law are reviewed under a

purely de novo standard, with no presumption of correctness. Id.

The Sixth Amendment provides, in pertinent part, “In all criminal prosecutions,

the accused shall enjoy the right . . . to have the Assistance of Counsel for his defense.”

U.S. Const. amend. VI. This right to counsel is “‘so fundamental and essential to a fair

trial, and so, to due process of law, that it is made obligatory upon the States by the

Fourteenth Amendment.’” Gideon v. Wainwright, 372 U.S. 335, 340 (1963) (quoting

Betts v. Brady, 316 U.S. 455, 465 (1942)). Inherent in the right to counsel is the right to

the effective assistance of counsel. Cuyler v. Sullivan, 446 U.S. 335, 344 (1980). “The

benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct

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so undermined the proper functioning of the adversarial process that the trial cannot be

relied on as having produced a just result.” Strickland v. Washington, 466 U.S. 668, 686

(1984); see Combs v. Coyle, 205 F.3d 269, 277 (6th Cir. 2000).

The United States Supreme Court has adopted a two-prong test to evaluate a claim

of ineffectiveness:

First, the defendant must show that counsel’s performance was deficient.

This requires showing that counsel made errors so serious that counsel was

not functioning as the “counsel” guaranteed the defendant by the Sixth

Amendment. Second, the defendant must show that the deficient

performance prejudiced the defense. This requires showing that counsel’s

errors were so serious as to deprive the defendant of a fair trial, a trial

whose result is reliable.

Strickland, 466 U.S. at 687. The performance prong of the Strickland test requires a

showing that counsel’s representation fell below an objective standard of reasonableness,

or “outside the wide range of professionally competent assistance.” Id. at 690. “Judicial

scrutiny of performance is highly deferential, and ‘[a] fair assessment of attorney

performance requires that every effort be made to eliminate the distorting effects of

hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to

evaluate the conduct from counsel’s perspective at the time.’” Combs, 205 F.3d at 278

(quoting Strickland, 466 U.S. at 689).

Upon reviewing claims of ineffective assistance of counsel, courts “must indulge a

strong presumption that counsel’s conduct falls within the wide range of reasonable

professional assistance; that is, the defendant must overcome the presumption that, under

the circumstances, the challenged action ‘might be considered sound trial strategy.’”

Strickland, 466 U .S. at 689. Additionally, the courts will defer to trial strategy or tactical

choices if they are informed ones based upon adequate preparation. Hellard v. State, 629

S.W.2d 4, 9 (Tenn. 1982). Finally, we note that criminal defendants are not entitled to

perfect representation, only constitutionally adequate representation. Denton v. State,

945 S.W.2d 793, 796 (Tenn. Crim. App. 1996). In other words, “in considering claims of

ineffective assistance of counsel, ‘we address not what is prudent or appropriate, but only

what is constitutionally compelled.’” Burger v. Kemp, 483 U.S. 776, 794 (1987) (quoting

United States v. Cronic, 466 U.S. 648, 655 n.38 (1984)). Notwithstanding, we recognize

that “[o]ur duty to search for constitutional error with painstaking care is never more

exacting than it is in a capital case.” Id. at 785.

If a petitioner shows that counsel’s performance fell below a reasonable standard,

then he or she must satisfy the prejudice prong of the Strickland test by demonstrating

“there is a reasonable probability that, but for counsel’s unprofessional errors, the result

of the proceeding would have been different.” 466 U.S. at 694. “A reasonable

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probability is a probability sufficient to undermine confidence in the outcome.” Id. In

evaluating whether a petitioner satisfies the prejudice prong, this court must determine

“whether counsel’s deficient performance render[ed] the result of the trial unreliable or

the proceeding fundamentally unfair.” Lockhart v. Fretwell, 506 U.S. 364, 372 (1993)

(citing Strickland, 466 U.S. at 687). In other words, a petitioner must establish the

deficiency of counsel was of such a degree that it deprived the petitioner of a fair

sentencing hearing and called into question the reliability of the outcome. Nichols, 90

S.W.3d at 587. That is, the evidence stemming from the failure to prepare a sound

defense or to present witnesses must be significant, but it does not necessarily follow that

the trial would have otherwise resulted in a lesser sentence. State v. Zimmerman, 823

S.W.2d 220, 225 (Tenn. Crim. App. 1991). “A reasonable probability of being found

guilty of a lesser charge, or a shorter sentence, satisfies the second prong in Strickland.”

Id. Similarly, a petitioner must show “‘there is a reasonable probability that, absent the

errors, the sentencer . . . would have concluded that the balance of the aggravating and

mitigating circumstances did not warrant death.’” Henley, 960 S.W.2d at 579-80

(quoting Strickland, 466 U.S. at 695).

Reviewing courts must indulge a strong presumption the conduct of trial counsel

falls within the wide range of reasonable professional assistance. Strickland, 466 U.S. at

689. Our supreme court has stated:

“Hindsight can always be utilized by those not in the fray so as to cast

doubt on trial tactics a lawyer has used. Trial counsel’s strategy will vary

even among the most skilled lawyers. When that judgment exercised turns

out to be wrong or even poorly advised, this fact alone cannot support a

belated claim of ineffective counsel.”

Hellard, 629 S.W.2d at 9 (quoting Robinson v. United States, 448 F.2d 1255, 1256 (8th

Cir. 1971)). “It cannot be said that incompetent representation has occurred merely

because other lawyers, judging from hindsight, could have made a better choice of

tactics.” Id. This court must defer to counsel’s trial strategy and tactical choices when

they are informed ones based upon adequate preparation. Id.

As noted earlier, criminal defendants are not entitled to perfect representation,

only constitutionally adequate representation. Denton, 945 S.W.2d at 796. “Thus, the

fact that a particular strategy or tactic failed or even hurt the defense does not, alone,

support a claim of ineffective assistance.” Cooper v. State, 847 S.W.2d 521, 528 (Tenn.

Crim. App. 1992). Moreover, “an accused is not deprived of the effective assistance of

counsel because a different procedure or strategy might have produced a different result.”

Vermilye v. State, 754 S.W.2d 82, 85 (Tenn. Crim. App. 1987).

1992 Counsel

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1. Jury Selection

The Petitioner contends that his original trial counsel were ineffective for failing to

utilize a jury questionnaire or retain an expert in jury selection, failing to ensure the jury

could consider and give effect to mitigation evidence, failing to inquire about the

prospective jurors’ attitudes toward mental health defenses, and failing to question jurors

about potential biases and other grounds for disqualification.

This court has addressed the role of defense counsel during jury selection in a

capital case:

Jury selection implicates an accused’s state and federal

constitutional rights to a competent, fair-minded, and unbiased jury. See

Smith v. State, 357 S.W.3d 322, 347 (Tenn. 2011) (recognizing that “[b]oth

the United States and the Tennessee Constitutions guarantee a criminal

defendant the right to a trial by an impartial jury.”) . . . The process of voir

dire is aimed at enabling a defense lawyer (as well as a prosecutor) to purge

the jury of members not meeting these criteria. See United States v. Nell,

526 F.2d 1223, 1229 (5th Cir. 1976) (“[T]he principal way this right [to an

impartial jury] is implemented is through the system of challenges

exercised during the voir dire of prospective jurors.”); Smith, 357 S.W.3d at

347 (recognizing that “‘[t]he ultimate goal of voir dire is to ensure that

jurors are competent, unbiased and impartial.’”) (quoting State v. Hugueley,

185 S.W.3d 356, 390 (appx) (Tenn. 2006) . . . . As emphasized by the

United States Supreme Court,

The process of voir dire is designed to cull from the venire

persons who demonstrate that they cannot be fair to either

side of the case. Clearly, the extremes must be eliminated –

i.e., those who, in spite of the evidence, would automatically

vote to convict or impose the death penalty or automatically

vote to acquit or impose a life sentence.

Morgan v. Illinois, 504 U.S. 719, 734 n.7, 112 S. Ct. 2222 (1992) (quoting

Smith v. Balkcom, 660 F.2d 573, 578 (5th Cir. 1981)).

As the United States Court of Appeals for the Sixth Circuit has

asserted, “[a]mong the most essential responsibilities of defense counsel is

to protect his client’s constitutional right to a fair and impartial jury by

using voir dire to identify and ferret out jurors who are biased against the

defense.” Miller v. Francis, 269 F.3d 609, 615 (6th Cir. 2001). By posing

appropriate questions to prospective jurors, a defense lawyer is able to

exercise challenges in a manner that ensures the jury passes constitutional

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muster. See United States v. Blount, 479 F.2d 650, 651 (6th Cir. 1973).

Despite its significance, a trial lawyer is “accorded particular

deference when conducting voir dire” and his or her “actions during voir

dire are considered to be matters of trial strategy.” Hughes v. United States,

258 F.3d 453, 457 (6th Cir. 2001). Also, “[a] strategic decision cannot be

the basis for a claim of ineffective assistance unless counsel’s decision is

shown to be so ill-chosen that it permeates the entire trial with obvious

unfairness.” Id. Thus, it is imperative for a petitioner claiming ineffective

assistance of counsel during jury selection to demonstrate that the resulting

jury was not impartial. See Smith, 357 S.W.3d at 348 (citing James A.

Dellinger v. State, No. E2005-01485-CCA-R3-PD, 2007 WL 2428049, at

*30 (Tenn. Crim. App., Aug. 28, 2007)).

William Glenn Rogers v. State, No. M2010-01987-CCA-R3-PD, 2012 WL 3776675, at

*35-36 (Tenn. Crim. App. at Nashville, Aug. 30, 2012).

The post-conviction court ruled as follows on this particular claim of ineffective

assistance of counsel:

Initially, this court notes [post-conviction] counsel asked attorney

[trial co-counsel] very few questions about the jury selection in petitioner’s

case and presented little evidence in general relating to the selection of the

jury in petitioner’s case. As to his contention trial counsel should have

utilized a jury questionnaire, this court finds petitioner has presented no

evidence to support his claim prospective jurors’ responses would have

differed had a jury questionnaire been utilized. There simply was no proof

presented at the post-conviction hearing to suggest prospective jurors

would have been more candid in their responses if responding via a jury

questionnaire. Moreover, this court notes juror questionnaires are

discretionary and are routinely either denied or modified by trial courts.

This was likely particularly true in the early 1990s. Thus, this court does

not find trial counsel’s failure to request a questionnaire, alone, falls so far

below the accepted level of representation as to render their representation

of petitioner ineffective. Petitioner also asserts absent a jury consultant,

trial counsel failed to conduct adequate voir dire and failed to select a fair

and impartial jury. However, this court finds petitioner has again failed to

present evidence supporting his claim the jury was not fair and impartial

based upon the failure of trial counsel to hire a jury consultant.

As to the issue of life qualifying the jury, this court finds, although

trial counsel may not have extensively inquired into each potential jurors

ability to consider mitigation and if appropriate impose a sentence less than

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death, both the prosecution and the court thoroughly covered the sentencing

process. Thus, even if this court were to find trial counsels’ questioning of

the jurors on this issue was deficient, given the jurors were properly

informed by the court of their obligations to consider all forms of

punishment and hold the state to their burden of proof, this court finds

petitioner was not prejudiced by counsels’ inaction.

We agree with the post-conviction court. The argument presented by the

Petitioner in his brief on appeal on the issue of jury questionnaires and a selection expert

consists solely of the following statement: “Mr. Odom’s 1992 trial counsel failed to

move for and/or utilize a jury questionnaire or retain expert assistance in jury selection.”

The Petitioner offers no other argument, citation to authorities, or appropriate references

to the record in support thereof. This ground for relief must, therefore, be considered

waived. See Tenn. Ct. Crim. App. R. 10(b) (“Issues which are not supported by

argument, citation to authorities, or appropriate references to the record will be treated as

waived in this court.”). In any event, the Petitioner has failed to demonstrate any actual

prejudice resulting from counsels’ failure to utilize questionnaires or an expert during

jury selection. Nothing in the record suggests the jury impaneled was impartial. “It is

incumbent upon the petitioner and his post-conviction counsel to demonstrate how a jury

questionnaire or an expert in the field of jury selection might have made a difference.”

Prentiss Phillips v. State, No. W2004-01626-CCA-R3-PC, 2005 WL 1123612, at *6

(Tenn. Crim. App. at Jackson, May 12, 2005). This court held in Prentiss Phillips that,

because the petitioner did not call a jury expert during the evidentiary hearing, it was

unable to find prejudice. The same holds true here.

The Petitioner presents similarly meager arguments regarding counsel’s

questioning about jurors’ attitudes toward mitigation and mental health defenses: “They

also failed to ensure the jurors could consider and give effect to mitigation evidence, as

required by Morgan v. Illinois, 504 U.S. 719 (1992). Further, they failed to inquire about

the potential jurors’ attitudes toward mental disorders and mental state defenses.” These

unsubstantiated assertions must also be considered waived. See Tenn. Ct. Crim. App. R.

10(b). Regardless, because the Petitioner was granted a new sentencing hearing

following his initial direct appeal, no prejudice can be shown in this instance.

As to the questioning of specific jurors, the post-conviction court stated:

Petitioner also asserts trial counsel failed to inquire into potential

bias of certain prospective jurors. Specially, he argues trial counsel failed

to: (a) sufficiently rehabilitate Juror Bradley who stated he expected the

defense team to prove petitioner’s innocence; (b) sufficiently question Juror

Christopher who was robbed at gunpoint while working as a bank teller; (c)

sufficiently question Juror Davis who was also a victim of robbery; (d)

question Juror Nettles, a robbery victim, and the mother of a Memphis

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Police Officer who stated she believed a police officer’s credibility was

higher than the other witnesses. None of these witnesses testified at

petitioner’s post-conviction hearing and post-conviction counsel did not

question attorney [trial co-counsel] about the defense teams questioning or

lack of questioning of these jurors. Thus, this court finds even if trial

counsel were ineffective in their questioning of the jurors, petitioner has

failed to demonstrate he was prejudiced by counsels’ inaction.

Citing Smith v. State, the post-conviction court held that bias cannot be presumed “absent

either an affirmative statement of bias, willful concealment of bias, or failure to disclose

information that would call into question the juror’s bias.” 357 S.W.3d at 348.

The Petitioner did not present any proof during the evidentiary hearing that would

call into question trial counsel’s performance with regard to the questioning of these

jurors. Regardless, the trial transcript reveals that counsel did question each juror about

whether their past experiences would affect their ability to remain impartial and neutral.

Accordingly, the Petitioner’s argument that “[d]efense counsel ignored these glaring

biases” is without merit especially when all three jurors (Christopher, Davis, and Nettles)

stated they could remain impartial despite their experiences. As to Juror Bradley, the

Petitioner acknowledges that this juror was rehabilitated during voir dire. The Petitioner,

however, did not ask trial co-counsel during the evidentiary hearing why a peremptory

challenge was not used against that particular juror. Accordingly, it must be presumed

that counsels’ decision in that respect was reasonable trial strategy. Counsel cannot be

deemed to have been ineffective in this instance. The Petitioner is not entitled to relief

with respect to 1992 counsels’ actions during jury selection.

2. Jury Instructions

The Petitioner contends that counsel were ineffective during the original trial for

failing to object to the trial court’s jury instruction, which listed first degree murder as the

first option to consider and “not guilty” as the final option. As the post-conviction court

observed, however, our supreme court has held that sequential jury instructions do not

deprive a defendant of his or her constitutional right to a jury trial. See State v. Davis,

266 S.W.3d 896, 905 (Tenn. 2008). Accordingly, counsel cannot be deemed ineffective

for failing to challenge the jury charge in this respect.

3. Motion to Suppress Statement

The Petitioner contends that his original trial counsel were ineffective for failing to

argue competently that his statement to the police should have been suppressed. The

Petitioner complains that counsel filed only three “boilerplate” motions to suppress the

statement and did not present any evidence in support of their argument at the

suppression hearing other than the testimony of the Petitioner himself. The Petitioner

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argues that counsel should have presented evidence of his troubled past to demonstrate

how he endured “reasonable fear and confusion during the nightlong interrogation.” He

also argues that his statement to the police would have been suppressed if the trial court

had been aware of his brain damage.

The post-conviction court disagreed, stating:

This court finds trial counsel were not ineffective in this regard.

Attorney [trial co-counsel] testified the defense argued the statements were

coerced but the trial court did not suppress the statement. However,

although the statements were not suppressed, she stated, the defense team

argued to the jury petitioner had been coerced by the police into giving a

statement. Furthermore, as noted elsewhere in this order, counsel did have

petitioner evaluated and Dr. Hutson did not indicate petitioner was

suffering from any conditions which could support a challenge to the

voluntariness or reliability of his confession. Likewise, neither Tora

Brawley nor Dr. Merikangas could say with certainty petitioner’s cognitive

deficits would have precluded him from exercising a valid waiver and

voluntarily providing a statement to police. The record in this case

indicates[] petitioner had the cognitive ability to be deceptive during his

police interrogation as he initially provided police with a false name.

Petitioner was able to discuss the commission of the offense in great detail

both with the police and with the defense team. Moreover, at the Motion to

Suppress [hearing] Sergeant McWilliams testified the petitioner had

indicated he understood his rights and stated the petitioner had never been

threatened or coerced. Upon hearing all the proof the trial court found

petitioner was not credible. This court finds nothing about the testimony

offered by Dr. Merikangas or Brawley would have likely influenced the

trial court’s conclusion the statement was voluntarily and knowingly given.

Thus, even if counsel were ineffective in failing to employ this strategy,

this court finds petitioner has failed to demonstrate he was prejudiced by

their inaction as it appears such an argument likely could not have been

sustained.

Based upon our review of the record, we conclude that trial counsel were not

ineffective in the handling of the motion to suppress. As noted above, the fact that a

particular strategy or tactic failed does not equate with deficient performance. Cooper,

847 S.W.2d at 528. Trial counsel moved to suppress the statement but were simply

unsuccessful in their attempt. Regardless, the Petitioner has not otherwise shown any

resulting prejudice. “In order to show prejudice, [the] Petitioner must show by clear and

convincing evidence that (1) a motion to suppress would have been granted and (2) there

was a reasonable probability that the proceedings would have concluded differently if

counsel had performed as suggested. Vaughn v. State, 202 S.W.3d 106, 120 (Tenn. 2006)

- 31 -

(citing Strickland, 466 U.S. at 687, 104 S. Ct. at 2064-65). “In essence, the petitioner

should incorporate a motion to suppress within the proof presented at the post-conviction

hearing.” Terrance Cecil v. State, No. M2009-00671-CCA-R3-PC, 2011 WL 4012436,

at *8 (Tenn. Crim. App. at Nashville, Sept. 12, 2011). Contrary to his argument, the

Petitioner presented no clear and convincing evidence demonstrating a motion to

suppress would have been granted under some alternate theory. Accordingly, we agree

with the post-conviction court’s findings in this respect. Although he challenged trial

counsel’s failure to contest the signature on the statement as being his own, he does not

raise that issue on appeal. The Petitioner is not entitled to relief on this claim.

4. Presentation of Case

The Petitioner argues that counsel were ineffective during the guilt phase of the

original trial because they presented no witnesses on his behalf and failed to effectively

cross-examine the State’s witnesses. As the State observes, the Petitioner does not now

identify any potential witness trial counsel should have called to testify. In order to

prevail on a claim of ineffective assistance of counsel for failure to call a witness at trial,

a petitioner should present that witness at the post-conviction hearing. Pylant v. State,

263 S.W.3d 854, 869 (Tenn. 2008). “‘As a general rule, this is the only way the

petitioner can establish that . . . the failure to have a known witness present or call the

witness to the stand resulted in the denial of critical evidence which inured to the

prejudice of the petitioner.’” Id. (quoting Black v. State, 794 S.W.2d 752, 757 (Tenn.

Crim. App. 1990)).

As to the cross-examination of State witnesses, in the Petitioner’s brief on appeal,

he merely references the supplemental amended petition for post-conviction relief he

filed in which he challenged counsel’s failure “to effectively cross-examine police

witnesses on the poor chain of custody and crime scene handling of fingerprint

evidence.” The post-conviction court concluded that the Petitioner failed to establish

ineffective assistance of counsel on this ground:

He argues within fifteen minutes of the first officers arriving on the

scene, numerous police personnel were milling about the crime scene and

several individuals has [sic] access to the interior of the car where his

fingerprints were found. He contends trial counsel failed to ask any

questions challenging the possible contamination of the crime scene. He

further argues trial counsel were ineffective in questioning Officer William

Lee regarding the methodology Lee used to lift the print implicating him in

the crime. Specifically he argues trial counsel should have asked Lee about

whether he photographed the print prior to the lift. Finally, petitioner

contends trial counsel were ineffective in failing to question latent print

examiner, James Holder, about the inherent subjectivity in latent print

identification. . . .

- 32 -

This court finds petitioner has failed to present any proof in support

of this allegation. There was no testimony about latent print examination

presented at the post-conviction hearing. No evidence was presented

demonstrating the crime scene was not properly secured; chain of custody

properly maintained; or, the lifting and examination of the prints properly

conducted. Moreover, in addition to the fingerprint evidence, petitioner

gave a statement in which he admitted to being present at the crime scene

and raping and stabbing the victim. Thus, even if counsel were [deficient]

in failing to challenge the fingerprint evidence in his case, petitioner has

failed to demonstrate he was prejudiced by counsel’s inaction.

The Petitioner does not explain how the post-conviction court’s ruling in this

respect is erroneous; instead, he simply refers to the authority cited in his supplemental

amended petition. In other words, the Petitioner offers no argument on appeal in support

of his claim that trial counsel were ineffective for failing to cross-examine the State’s

witnesses effectively. The issue must therefore be considered waived on appeal. See

Tenn. Ct. Crim. App. R. 10(b). Regardless, we agree with the post-conviction court that

the Petitioner is otherwise unable to demonstrate any resulting prejudice.

5. Juror Question

The Petitioner argues that trial counsel should have objected during the guilt phase

of the trial when a juror asked the medical examiner a question about the depth of one of

the stab wounds to the victim in relation to the length of the blade on the knife found on

the Petitioner at the time of his arrest. After testifying about the nature of the stab

wounds to the victim, the medical examiner testified that, although he could not

affirmatively state that the exact knife found on the Petitioner caused the wounds “to the

exclusion of all others in the world,” that knife was “quite consistent with producing the

wounds” to the victim. At the conclusion of the medical examiner’s testimony, a juror,

with permission from the trial court, asked the medical examiner a question about the

knife. The following is the entire verbal exchange between the juror and the medical

examiner:

Juror: Yes, sir. Sir, could you tell me how long that blade is on that knife?

Witness: I would have to have a ruler to measure it. It looks like about

three inches. (Pause) It appears to be about three inches, but I would have

to have a ruler to actually measure it.

Juror: And you said the penetration was four inches –

Witness: That’s correct.

- 33 -

Juror: -- amongst the --

Witness: What happens is that as the knife is penetrating the chest cavity

there’s some give to the chest cavity, so a three inch blade can produce a

five inch deep wound. It’s because of that give.

Trial Judge: All right, doctor, you may step down.

The Petitioner argues that the previously unsolicited testimony from the medical

examiner prejudiced his defense. The Petitioner cites State v. Jeffries, 644 S.W.2d 432

(Tenn. Crim. App. 1982), and Tennessee Rule of Criminal Procedure 24.1 in support of

his argument. The post-conviction court noted that Rule 24.1 was not adopted until 2003

and, thus, inapplicable to the Petitioner’s claim. The court also recognized that prior to

the implementation of Rule 24.1, “although the practice was discouraged, there was no

outright bar to juror questioning at the time of” the trial in 1992. See Byrge v. State, 575

S.W.2d 292 (Tenn. Crim. App. 1978); Raynor v. State, 447 S.W.2d 391 (Tenn. Crim.

App. 1969).

Initially, we agree with the State that the Petitioner has failed to carry his burden

of establishing deficient performance on the part of trial counsel. The Petitioner did not

question trial co-counsel as to why trial counsel did not object when the trial court

allowed the juror to question the witness. Given that the knife blade was shorter than the

depth of the stab wounds, the failure to object very well may have been tactical.

In any event, even if counsel should have objected, the post-conviction court

correctly ruled that at the time of the Petitioner’s trial, there was no absolute prohibition

to a juror being permitted to question a witness. As this court announced in Byrge,

“[E]ach case must be judged on its own facts in determining whether error has been

committed.” 575 S.W.2d at 295. Given the nature of the medical examiner’s testimony

and the limited line of questioning by the juror, the Petitioner has failed to demonstrate

that the trial court would have sustained an objection to the juror’s question. To the

extent the Petitioner couches his argument in terms of trial court error, said issue is

waived because the Petitioner failed to raise it on direct appeal. See Tenn. Code Ann. §

40-30-106(g). Accordingly, the Petitioner is not entitled to relief on this ground.

6. Investigation

The Petitioner contends that his original trial counsel “failed to investigate other

suspects and evidence supporting an argument that someone else may have been

responsible for the incident.” The testimony of trial co-counsel is summarized above.

She identified the members of the defense team, which included two attorneys and two

investigators, and she described the team’s strategy. Trial co-counsel explained that the

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decision making process was influenced by information about the case they already

knew, including the Petitioner’s confession. Upon review of the evidence presented in

post-conviction, the post-conviction court concluded that the Petitioner failed to

demonstrate how trial counsel were ineffective in their factual investigation: “Given the

constraints on the defense based upon petitioner’s confession to the crime and physical

evidence confirming his presence at the crime scene, counsel chose the only strategy

available to them and attempted to challenge the validity of petitioner’s statement.”

The Petitioner does not support his blanket statement on appeal that “the defense

team failed to conduct any meaningful investigation into the State’s case” with references

to any other evidence his attorneys should have uncovered. We agree with the State that

the Petitioner is required to demonstrate how counsel’s action or inaction affected the

outcome of the trial. The Petitioner has simply failed to carry his burden on this

particular claim and is, therefore, not entitled to any relief. See Tony Carruthers v. State,

No. W2006-00376-CCA-R3-PD, 2007 WL 4355481at *40 (Tenn. Crim. App. at Jackson,

Dec. 12, 2007) (“Moreover, the petitioner did not produce any witnesses or evidence that

pretrial counsel failed to investigate or uncover that would have altered the outcome of

the trial.”); Demarcus Sheriff Smith v. State, No. W2001-01353-CCA-R3-PC, 2002 WL

1482697, at *4 (Tenn. Crim. App. at Jackson, Mar. 8, 2002) (“If the claim is based upon

a failure to properly investigate, then the evidence or witness must be produced so that

the post-conviction court judge can properly evaluate the evidence or the witness.”) This

court may not guess as to what evidence further investigation may have uncovered.

Black, 794 S.W.2d at 757.

2007 Counsel

1. Evidence of Petitioner’s Neurological and Cognitive Impairments

The Petitioner claims that counsel rendered ineffective assistance during the third

sentencing hearing by not timely investigating, obtaining, and presenting evidence of his

neurological and cognitive impairments in mitigation despite the existence of evidence

that those impairments had existed since 1974. The Petitioner argues that his attorneys

waited too long before requesting the services of Dr. Angelillo to determine whether they

overlooked anything regarding the Petitioner’s mental health. He also argues that the fact

that Dr. Angelillo was called as a witness belies counsel’s assertion that they had ruled

out a mental health strategy in mitigation. Dr. Angelillo could not offer a specific

diagnosis about the Petitioner’s potential brain damage. The Petitioner blames counsel

for the incomplete evaluation because they did not retain the services of Dr. Angelillo in

a timely manner. The Petitioner contends that a mental health expert would have

complimented and contextualized lay witness and mitigation expert testimony by

explaining that the Petitioner’s traumatic experiences throughout childhood and

adolescence compromised his brain development. The Petitioner also argues that

counsel’s fear of arming the prosecution with ammunition of a personality disorder

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diagnosis came to fruition when Dr. Angelillo testified that the Petitioner had signs of a

personality disorder.

The Petitioner insists that had counsel further investigated evidence of his brain

damage, they would have been able to introduce the same type of evidence presented

during the post-conviction hearing. Citing Davidson v. State, the Petitioner asserts,

“Because mental illness can render a defendant less morally blameworthy, capital defense

attorneys who possess compelling evidence of mental defects have an obligation to make

a reasonable and fully-informed decision about presenting that evidence to the jury.” 453

S.W.3d 386, 405 (Tenn. 2014). He argues that, despite numerous “red flags” in the

reports found by counsel during their investigation, counsel did not subject him to

neuropsychological testing, which would have revealed impairments in his executive

functioning and cognitive deficits. According to the Petitioner’s argument, had counsel

presented the same type of mental health evidence he presented during the post-

conviction hearing, there is a reasonable probability that at least one juror would have

voted against the death penalty.

In addressing this claim, the post-conviction court issued the following findings:

At the post-conviction hearing [lead sentencing counsel] testified he

believed the defense had considered retaining a neurologist and conducting

a neurological examination of petitioner. However, [lead sentencing

counsel] testified when petitioner was confined to Parchman he was given a

battery of psychological tests and underwent a physical examination. He

stated the petitioner’s EEG was normal and the records indicate petitioner

suffers from traits of anti-social personality disorder but had no other

psychological issues. Testing was conducted by the Parchman officials to

determine if petitioner possessed any “organicity” or neurological deficits.

This examination found no neurological deficits and petitioner was found to

have a full scale IQ of 93. [Lead sentencing counsel] stated much of this

information had been discussed in petitioner’s prior sentencing

proceedings. In some cases, [lead sentencing counsel] testified he would

raise the issue of brain damage as mitigation; however, in petitioner’s case,

the defense theory was centered on petitioner’s future dangerousness and

behavior within the prison system. [Lead sentencing counsel] testified the

defense team considered these records in developing a theory of mitigation.

However, he again pointed out a diagnosis of anti-social personality

disorder directly undercut their arguments regarding future dangerousness.

He further stated these records would have contradicted any claim the

defense team would have made regarding neurological deficits or disorders.

[Lead sentencing counsel] testified petitioner underwent numerous

examinations over the years. He stated Dr. Cox’s assessment included

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particularly damaging information, specifically as it relates to future

dangerousness. Specifically, [lead sentencing counsel] recalled the records

from Parchman prison further indicated petitioner stated, “maybe I did it for

the joy of it,” referring to firing the second shot which killed the victim in

his Mississippi case and indicated “he had no feelings” or “sorrow” with

regard to his actions. The report also referenced Dr. Cox’s findings and

indicated Dr. Cox had diagnosed petitioner as possible schizo personality.

Attorney [sentencing co-counsel] likewise testified he was concerned about

the information which might be elicited if the defense team pursued a

defense based upon mental health and neurological deficits and stated based

upon the prior evaluations. [Sic].

[Sentencing co-counsel] stated usually a defense team would want to

put forward evidence of brain damage, if it exists, in a capital case.

However, in petitioner’s case, there was a long history of evaluations which

did not support such a claim. To present such proof, according to

[sentencing co-counsel], might appear disingenuous when considered in

light of petitioner’s complete mental health history; in such instances, there

is the potential such testimony may appear to be “bought and paid for.”

Thus, the defense chose to present emotional testimony from the

petitioner’s family relating to his traumatic childhood and difficulty in the

Mississippi juvenile system as well as a picture of petitioner as a productive

member of the penal system and someone highly amendable to

rehabilitation so long as he is confined to the prison system. [Sentencing

co-counsel] testified he reviewed petitioner’s complete mental health and

medical history before rejecting a mitigation theory based upon mental

health issues or cognitive impairments.

Both [lead sentencing counsel and sentencing co-counsel] testified

there were numerous discussions about theories of mitigation and the

proper strategy for the resentencing proceeding. He stated certain strategies

were rejected such as a theory based upon serotonin levels, brain

fingerprinting, and eventually a defense based upon supposed

neuropsychological deficiencies or disorders. Likewise mitigation

investigator Shettles testified numerous theories of mitigation were

considered and rejected. Shettles specifically stated the defense team had

the benefit of seeing the two prior proceedings and reviewing what worked

and what did not work as a mitigation theory and indicated they formed the

mitigation strategy based in part of the failures of those prior proceedings.

The court continued:

Petitioner argues trial counsel failed to provide the retained experts

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all of the information needed to make a complete and proper assessment of

his cognitive and psychological issues. Specifically, petitioner asserts 2007

trial counsel ignored their own mitigation expert’s recommendation to

obtain a neuropsychological expert to testify to his temporal lobe

impairments. He asserts counsel did not request funding for a qualified

expert until nearly two months prior to his resentencing hearing. He

argues, because of trial counsels’ failure to timely act, Dr. Angelillo did not

have adequate time to review his extensive social history and mental health

background and records. Petitioner contends Dr. Angelillo administered

personality testing to petitioner but conducted no intelligence testing or

neuropsychological testing. He contends the testimony of Dr. Angelillo at

trial demonstrates his lack of preparedness. He asserts Dr. Angelillo

informed the jury, because he did not have the data he had requested by

prior mental health experts, notably a neuropsychological evaluation, a PET

scan, and an EEG, he was unable to administer the tests necessary to

evaluate petitioner to determine if he had a major mental disorder. He

argues, as a consequence, Dr. Angelillo stated he had a difficult time

determining how much of petitioner’s impairments and behaviors were due

to physical organic brain injury and how much was due to psychological

issues.

At the post-conviction hearing, [lead sentencing counsel and

sentencing co-counsel] testified Dr. Angelillo’s testimony was not the

primary focus of their mitigation strategy. Rather, counsel stated they

attempted to present a theory of mitigation to the jury based upon the fact

petitioner, due to his prior life sentence in Mississippi, would never be

released from prison if the jury gave a life sentence. Counsel stated in

conjunction with this argument they attempted to demonstrate petitioner

had a good record while incarcerated and would not pose a danger to others

if the jury spared his life. Trial counsel testified, in addition to this primary

theory, the defense also used petitioner’s difficult background to argue to

the jury petitioner was essentially forsaken by the system. Both [lead

sentencing counsel and sentencing co-counsel] indicated they felt this proof

was best presented by the petitioner’s family members and indicated the

role of Dr. Angelillo was merely to enhance and support much of the

information provided by the family and to support their assertion petitioner

posed no real future dangerousness so long as he was incarcerated.

At trial, Dr. Angelillo testified the lack of sufficient mental health

treatment afforded the petitioner as a child, the rejection he had

experienced, and the physical and sexual abuse he had undergone all had a

profound effect on his development. Dr. Angelillo testified the petitioner’s

time in the structured environment of Riverbend had been beneficial in

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modifying his behaviors and modulating his ability to engage in

constructive activities. Dr. Angelillo expressed an opinion the petitioner

would continue to thrive in this structured environment if given a life

sentence. In addition to the testimony of Dr. Angelillo, Glori Shettles, the

mitigation investigator in both petitioner’s 1999 and 2007 resentencing

proceedings testified as an expert in parole procedures and stated it was

very unlikely petitioner would ever be released from prison. Her

statements were supported by other prison officials. Shettles spent

extensive time interviewing and building relationships with petitioner’s

family. Due to these relationships Shettles was able to convince several

family members to testify on petitioner’s behalf. Petitioner’s family

described the extremely difficult, neglectful and abusive circumstances of

petitioner’s childhood and petitioner’s brother described the conditions

experienced by petitioner while incarcerated at Columbia Training School

and Parchman Prison. Both attorneys and Shettles stated this testimony

was incredibly powerful.

Considering a theory based upon cognitive impairments had been

previously unsuccessfully utilized by 1999 trial counsel, this court does not

find 2007 trial counsel were ineffective in failing to present an alternative

mitigation theory. Under these circumstances, this court does not find the

use of Dr. Angelillo as a compliment to this theory instead of as the

centerpiece of mental health mitigation case was ineffective.

It appears the decision to forego a strictly or even primary mental

health based theory of mitigation was made after extensive investigation by

counsel and the mitigation investigator after substantive deliberations

amongst the entire defense team. When asked about the decision at the

post-conviction hearing, counsel provided reasoned responses explaining

the exact investigation and considerations that went into making the

decision to follow a different strategy than prior counsel. Specifically,

attorney [sentencing co-counsel] acknowledged some of petitioner’s prior

mental health records contained warnings about petitioner’s mental

condition. However, according to [sentencing co-counsel], the fear of the

defense team was the introduction of this information might show evidence

of future dangerousness. He stated the goal of the defense team was to

demonstrate petitioner had been failed by the system. He expressed his

concern that, if petitioner was evaluated, the defense team could end up

with an adverse diagnosis such as anti-social personality disorder.

Based upon all the proof presented at the post-conviction hearing,

the testimony presented at petitioner’s 2007 resentencing proceeding and

the evidence presented at the prior proceedings, this court finds counsel

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were not ineffective in their preparation an[d] utilization of Dr. Angelillo’s

services.

Our supreme court has summarized the following principles specific to mitigation

in a capital case:

Capital defendants possess a constitutionally protected right to

provide the jury with mitigation evidence that humanizes the defendant and

helps the jury accurately gauge the defendant’s moral culpability. Porter v.

McCollum, [558 U.S. 30, 41, 130 S. Ct. 447 (2009)]; Williams v. Taylor,

[529 U.S. 362, 393, 120 S. Ct. 1495 (2000)]. Accordingly, capital defense

attorneys have an obligation to conduct a thorough investigation of the

defendant’s background. Williams v. Taylor, 529 U.S. at 396, 120 S. Ct.

1495. Defense counsel should make an effort to discover all reasonably

available mitigating evidence and all evidence to rebut any aggravating

evidence that the State might introduce. Wiggins v. Smith, [539 U.S. 510

524, 123 S. Ct. 2527 (2003)].

To provide effective representation, counsel must make either a

reasonable investigation or a reasonable decision that particular

investigations would be unhelpful or unnecessary. Wiggins v. Smith, 539

U.S. at 521, 123 S. Ct. 2527. Either way, counsel’s decision must indicate

a reasoned strategic judgment. Wiggins v. Smith, 539 U.S. at 526, 123 S.

Ct. 2527. Defense counsel should investigate the defendant’s medical

history, educational history, employment and training history, family and

social history, adult and juvenile correctional experiences, and religious and

cultural influences. Wiggins v. Smith, 539 U.S. at 524, 123 S. Ct. 2527.

Counsel is not required to investigate every conceivable line of

mitigating evidence, no matter how unlikely it is to help the defense. Nor

must counsel present mitigating evidence in every case. But “strategic

choices made after less than complete investigation are reasonable only to

the extent that reasonable professional judgments support the limitation of

the investigation.” Wiggins v. Smith, 539 U.S. at 533, 123 S. Ct. 2527

(internal quotation marks omitted). To determine whether counsel’s actions

were reasonable, a reviewing court should “consider not only the quantum

of evidence already known to counsel, but also whether the known

evidence would lead a reasonable attorney to investigate further.” Wiggins

v. Smith, 539 U.S. at 527, 123 S. Ct. 2527.

Davidson, 453 S.W.3d at 402.

The Davidson court concluded that trial counsel rendered ineffective assistance

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during sentencing because they failed to present evidence of the defendant’s brain

damage and cognitive disorders. The Petitioner in the case at hand relies on Davidson for

the proposition that his attorneys were ineffective for the same reason. Our supreme

court reached its conclusion in Davidson, however, based upon counsel’s “superficial

investigation.” Id. at 392. The attorneys in that case did not introduce any

neuropsychological evidence in mitigation, and our supreme court concluded that their

actions were not reasonably informed trial strategy but instead were the result of

“inattention and a disturbing lack of time and resources.” Id. at 404. Trial counsel

testified that he was “overworked and understaffed” and that co-counsel “was suffering

from significant health problems,” which led the defense team to conduct a “cursory

investigation” into the defendant’s background. Id. at 398. Trial counsel “was unable to

give a satisfactory explanation for his truncated investigation other than that he was

harried and overworked,” and he admitted that he should have pursued the defendant’s

mental health evidence further. Id. at 399. Counsel in Davidson also admitted that he

probably did not completely review the report prepared by the mitigation specialist. Id. at

400. Moreover, Ms. Shettles, the same mitigation specialist used by the Petitioner’s

attorneys in this case, testified in Davidson that “she did ‘very, very little. I was given a

very, very brief period of time to complete tasks and I was asked specifically to do very,

very few things.’” Id. at 399.

The testimony from the evidentiary hearing in this case presents an entirely

different picture than that revealed in Davidson. Both attorneys testified about the extent

of their representation in this case. They had the benefit of reviewing the records of two

previous sentencing hearings as well as Ms. Shettles’ exhaustive investigation into the

Petitioner’s background. Ms. Shettles testified that she had served as an investigator on

approximately ninety death penalty cases, that she developed a good working relationship

with defense counsel, and that her investigation into the Petitioner’s background was as

thorough as any other case in which she had participated. Lead sentencing counsel also

testified that the information gathered by Ms. Shettles was the best mitigation he had ever

received from an investigator in a capital case. Based upon our review of the record and

the evidence presented at the hearing, there is no doubt the attorneys conducted a

reasonably thorough investigation into the Petitioner’s background.

Counsels’ decision not to pursue a strictly mental health style of defense in

mitigation was developed after they thoroughly investigated the Petitioner’s background.

Both attorneys testified that they were aware of the numerous reports included in Ms.

Shettles’ investigation that revealed evidence of potential brain damage. As recounted

above in the fact section, both attorneys also explained why they chose not to focus their

defense on the Petitioner’s brain damage. Counsel feared that during cross-examination,

the State would be able to exploit reports that the Petitioner made comments he

committed the previous murder in Mississippi “for the joy of it” and “had no feelings, no

sorrow about it.” Likewise, counsel did not want to provide the State with the

opportunity to highlight other reports suggesting the Petitioner suffered from various

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personality disorders, reports that showed no signs or symptoms of psychosis, or reports

suggesting prior neurological examinations were within normal limits. Counsel also

explained that even if they found a mental health expert who could affirmatively testify

about the Petitioner’s brain damage, the jury might view the expert’s opinion as having

been “bought and paid for,” especially in light of the fact that there were contradictory

reports the State could highlight on cross-examination. Counsel further explained that

presenting evidence, such as evidence elicited during the post-conviction hearing that the

Petitioner could not control his impulses because of his brain damage and his brain

damage would not prevent him from attempting escape in the future, would contradict

their theory that the Petitioner had become well-adjusted in prison, was viewed as a

model inmate, and did not pose any future danger in prison.

The Petitioner argues that trial counsel “offer[ed] fallacious circular reasoning”

regarding their decision to call Dr. Angelillo as a witness. According to the Petitioner, if

counsel wanted to avoid arming the State with the ammunition of a personality disorder,

they should have never requested that Dr. Angelillo perform psychological testing or

questioned him during trial about his diagnosis of a personality disorder. As the State

observes in its brief on appeal, though, counsel intended to limit Dr. Angelillo’s

testimony by “hit[ing] the high points” and not “drag[ging] out mental health in front of

the Jury.” Although Dr. Angelillo could not render a specific diagnosis, he would testify

that evidence of a personality disorder was the product of the Petitioner’s upbringing and

environment. Counsel intended for Dr. Angelillo to explain to the jury that the system

had failed the Petitioner because he never received sufficient mental health treatment.

Indeed, Dr. Angelillo opined that “the lack of sufficient mental health treatment afforded

the Defendant as a child, the rejection he had experienced, and the physical and sexual

abuse he had undergone all had a profound effect on his development.” Odom, 336

S.W.3d at 553. Dr. Angelillo also testified that the Petitioner had a history of brain

damage. Contrary to the Petitioner’s argument, Dr. Angelillo’s testimony fit squarely

within counsel’s theory “that the [Petitioner’s] time in the structured environment of

Riverbend had ‘behaviorally defined . . . his ability . . . to engage in constructive

activities.’ [Dr. Angelillo] believed that the [Petitioner] would continue to thrive in this

structured environment if given a life sentence.” Id.

The Petitioner focuses part of his argument on this issue on the fact that counsel

did not retain the services of Dr. Angelillo until approximately two months before trial.

As explained above, however, counsel had thoroughly investigated the Petitioner’s

background and had decided by that time to pursue a different theory of mitigation.

According to counsel, Dr. Angelillo was hired to see if counsel missed anything obvious,

and he ultimately helped to explain to the jury how the lack of treatment and abuse the

Petitioner experienced affected his development. Lead sentencing counsel testified, “I

don’t think we would have put him on at all if we hadn’t thought that, if it didn’t move

with our theme.” As the post-conviction court concluded, counsel reviewed all relevant

records, discussed a possible mental health defense, considered results from previous

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hearings, and decided, based upon the Petitioner’s station in life at the time of the second

resentencing hearing, that their best defense was to generate empathy through family

testimony and demonstrate that the Petitioner would not pose any future danger because

he would never be released from prison, even with a life sentence. Counsel were able to

convince family members to testify on the Petitioner’s behalf even though they had

refused to get involved in prior hearings. Through family members and other lay

witnesses, counsel were able to paint a picture about the Petitioner’s awful childhood and

adolescence and were able to describe the horrific conditions the Petitioner experienced

in the various institutions where he spent time in Mississippi. Indeed, Ms. Shettles

recounted to the jury the information she obtained through her extensive investigation,

one which she said was the most thorough of any of the ninety or so capital cases on

which she worked. Counsel said that the testimony by the Petitioner’s family members

was “incredible” and that no “mental health expert ever could have gotten the emotion

that [they] were able to get out of” the lay witnesses.

We agree with the following assessment by the post-conviction court:

Based upon the testimony of [sentencing co-counsel, lead sentencing

counsel], and Shettles, this court finds 2007 trial counsels’ decision not to

pursue a neurological evaluation of petitioner or a mitigation theory based

upon cognitive impairment was made after extensive investigation into

petitioner’s background and social history and considerable discussions

about the viability of various strategies. In particular, Shettles testified

about the extensive investigation she performed on petitioner’s case. It

appears counsel were fully apprised of all the many prior examinations of

petitioner and various diagnosis of the different reviewing mental health

and medical professionals. Shettles collected numerous documents,

contacted various experts, conducted research about possible theories,

interviewed witnesses and worked diligently to develop a relationship with

petitioner’s family to facilitate their participation in petitioner’s defense

which prior to the 2007 proceeding had been very limited. Due to the fact

Shettles worked on petitioner’s 1999 resentencing proceeding and his 2007

resentencing proceeding, Shettles [had] several years to investigate and

develop mitigation in petitioner’s case. As a result, she testified she found

the investigation and presentation of mitigation in petitioner’s case to be the

most [thorough] she had ever prepared or presented. Thus, this court finds

trial counsel were not ineffective in pursuing a theory based upon

petitioner’s terrible past and the failures of the system in addition to an

argument indicating petitioner posed little future dangerousness.

In analyzing a claim that counsel provided ineffective assistance during

sentencing, we must keep in mind the principles we recited earlier in this opinion, in

addition to those summarized by our supreme court in Davidson, including “the strong

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presumption that counsel provided adequate assistance and used reasonable professional

judgment to make all strategic and tactical significant decisions.” Id. at 393. In order for

counsel’s strategic and tactical choices to be entitled to deference, they must be

“informed ones based upon adequate preparation.” Goad v. State, 938 S.W.2d 363, 369

(Tenn. 1996). Similarly, the presentation of some mitigating evidence does not

“foreclose an inquiry into whether a facially deficient mitigation investigation might have

prejudiced the defendant.” Sears v. Upton, 561 U.S. 945, 955, 130 S. Ct. 3259, 3266

(2010). An inquiry into whether counsel rendered ineffective assistance in the

presentation of mitigation requires a “probing and fact-specific analysis” that includes

consideration of “the totality of the available mitigation evidence -- both that adduced at

trial and the evidence adduced in the [collateral] proceeding.” Id. at 955-56; 130 S. Ct. at

3266; see also Wiggins v. Smith, 539 U.S. at 527.

Based upon our review of the records, we conclude that counsel’s performance in

the presentation of mitigating evidence during the second resentencing hearing in this

case was not deficient. Counsel chose a reasonable strategy during sentencing based

upon an extensive investigation and after careful consideration of all the circumstances.

Thus, we will not second-guess that decision now. As the case law cited above

illustrates, there is no requirement that counsel pursue a particular strategy or theory of

mitigation, just as long as counsel’s ultimate decision was reached after a thorough

investigation into a defendant’s background.

Although we have concluded that the Petitioner has not satisfied the first prong of

the Strickland standard, we will nevertheless discuss whether counsel’s failure to present

evidence similar to that introduced during post-conviction would have resulted in any

prejudice. When considering whether a capital defendant was prejudiced by counsel’s

failure to present sufficient mitigating evidence, our supreme court has directed the

reviewing courts to consider the following: (1) the nature and extent of the mitigating

evidence that was available but not presented; (2) whether substantially similar mitigating

evidence was presented to the jury in either the guilt or penalty phase of the proceedings;

and (3) whether there was such strong evidence of aggravating factors that the mitigating

evidence would not have affected the jury’s determination. Goad, 938 S.W.2d at 371. In

the context of capital cases, a defendant’s background, character, and mental condition

are unquestionably significant. “[E]vidence about the defendant’s background and

character is relevant because of the belief, long held by this society, that defendants who

commit criminal acts that are attributable to a disadvantaged background, or to emotional

and mental problems, may be less culpable than defendants who have no such excuse.”

California v. Brown, 479 U.S. 538, 545 (1987) (O=Connor, J., concurring). “This

evidence often serves to humanize the defendant and reveals aspects of the defendant’s

life or inner workings that might affect the jury’s assessment of the defendant’s moral

culpability for the crime.” Davidson, 453 S.W.3d at 395.

- 44 -

The right capital defendants have to present a vast array of personal information in

mitigation during the sentencing phase, however, is constitutionally distinct from the

question of whether counsel’s choice about what information to present to the jury was

professionally reasonable. The basic concerns of counsel during a capital sentencing

proceeding are to neutralize the aggravating circumstances advanced by the State and to

present mitigating evidence on behalf of the defendant. Although there is no requirement

to present mitigating evidence, counsel does have the duty to investigate and prepare for

both the guilt and the penalty phase. See Goad, 938 S.W.2d at 369-70; Zagorski v. State,

983 S.W.2d 654, 657 (Tenn. 1998). In determining whether counsel breached this duty,

counsel’s performance is reviewed “for ‘reasonableness under prevailing professional

norms,’ which includes a context-dependent consideration of the challenged conduct as

seen ‘from counsel’s prospective at the time.’” Wiggins v. Smith, 539 U.S. at 523

(quoting Strickland, 466 U.S. at 688-89)). Counsel is not required to investigate “every

conceivable line of mitigating evidence no matter how unlikely the effort would be to

assist the defendant at sentencing.” Id. at 533. Nor is counsel required to interview every

conceivable witness. See Hendricks v. Calderon, 70 F.3d 1032, 1040 (9th Cir. 1995). In

other words, counsel’s duty to investigate and prepare is not limitless. Id.

Although the Petitioner presented more detailed evidence of his brain damage in

post-conviction, Dr. Brawley could not confirm the Petitioner’s neurological damage

contributed to his actions at the time of the murder in this case. Dr. Brawley also testified

that the Petitioner was stressed about being “locked up for something [he] didn’t do.”

She opined that deficits in the Petitioner’s frontal lobe functioning and mental flexibility

most probably affected the Petitioner’s behavior and personality over his life span and

could have significantly impacted his judgment, impulsivity, and decision making. She

also opined, however, that the Petitioner’s mental state likely had improved over time

because he had been confined in a very structured prison environment in Tennessee for

many years. Dr. Merikangas also testified that the Petitioner had brain damage, which

had probably been present his entire life. According to Dr. Merikangas, that brain

damage affected the Petitioner’s ability to control his impulses and would not necessarily

prevent him from attempting to escape prison in the future. Dr. Merikangas did not say,

however, that the Petitioner’s brain damage prevented him from knowing right from

wrong, and he did not comment on whether the Petitioner’s brain damage caused the

Petitioner to commit two murders. Dr. Merikangas did opine, like Dr. Angelillo, that the

Petitioner functioned better in the prison environment in Tennessee.

Considering the Goad factors listed above, we cannot conclude that counsel’s

failure to present this type of evidence prejudiced the Petitioner. Neither Dr. Brawley nor

Dr. Merikangas could specifically state whether the Petitioner’s brain damage affected

his actions at the time of the murder in this case. Both doctors commented on the

Petitioner’s inability to control his impulses, something which counsel was keen on

keeping from the jury. As Dr. Angelillo testified, both Drs. Brawley and Merikangas

testified that the Petitioner’s condition had improved while in prison. During the

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resentencing hearing, Dr. Angelillo referenced the Petitioner’s history of brain damage

and explained that the lack of mental health treatment and abuse the Petitioner suffered

had a profound effect on his development. As the State aptly notes, counsel were “able to

walk a very fine line: present all of the evidence of the Petitioner’s limitations they could

without also presenting evidence that the Petitioner suffered from a degenerative disease

that would make him dangerous in the future.” Counsel’s theory of mitigation, which we

have already concluded was reasonably reached upon a thorough investigation, would

have been hampered if mental health experts had testified that the Petitioner lacked the

ability to control his actions. Both post-conviction experts confirmed the Petitioner

functioned better in prison. Counsel were able to demonstrate that fact to the jury. They

were also able to present evidence that it would be almost impossible for the Petitioner

ever to be released from prison if given a life sentence. As to the strength of the two

aggravating factors, the prior murder and the fact that the instant murder was committed

during a robbery attempt, our supreme court observed that they “were firmly established

by the evidence.” Odom, 336 S.W.3d at 572. Given the mitigating evidence presented

by counsel during the second resentencing hearing, and in light of the discussion herein,

we conclude that the additional post-conviction evidence would not have affected the

jury’s verdict. The Petitioner is not entitled to relief on this issue.

2. Evidence of Petitioner’s Repeated Sexual Assaults

The Petitioner also argues that trial counsel failed to investigate adequately and

present sufficient evidence that he suffered repeated sexual assaults. The Petitioner refers

to the abuse he suffered at home as a child and adolescent as well as the abuse he suffered

in Parchman Prison. The evidence introduced at the 2007 resentencing hearing and the

post-conviction evidentiary hearing is summarized above. In his brief, the Petitioner

recites much of that testimony. The jury heard from four witnesses about the abuse the

Petitioner suffered at the hands of his stepfather, who was described as “a pervert – just a

sorry person.” The jury also heard from Ms. Shettles and Jimmy, Jr., about the sexual

abuse the Petitioner endured as a juvenile in prison in Mississippi. The Petitioner

recounts the evidence introduced during the evidentiary hearing and argues that had trial

counsel discovered those additional witnesses, counsel would have been able to present a

more compelling picture about the abuse he suffered and how it affected his mental and

emotional health.

In denying relief on this issue, the post-conviction court noted that counsel did

introduce evidence of the Petitioner’s abuse during the 2007 resentencing hearing. Trial

counsel attempted, albeit unsuccessfully, to preclude opening the door to evidence about

the Petitioner’s prior escape from prison. Thus, the post-conviction court concluded that

counsel made a strategic decision to exclude extensive evidence relating to the

Petitioner’s time at Parchman. The post-conviction court also noted that the post-

conviction testimony by Ms. Chandler referred to an incident when the Petitioner was

accused of rape and was identified as a “problem inmate” because it was not the first such

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report. As the post-conviction court stated, evidence of that nature would have been

damaging to defense counsel’s theory that the Petitioner had performed well in prison

and did not pose any future danger.

Upon review of the record, we conclude that the Petitioner has failed to establish

how counsel’s performance was deficient in presenting evidence of his abuse in support

of their theory of gaining empathy from the jury. As noted above, the jury was informed

that the Petitioner was sexually abused at home and in prison in Mississippi. Counsel had

the benefit of Ms. Shettles’ extensive investigation, which revealed evidence of abuse.

Counsel were also able to convince some of the Petitioner’s family members to testify on

his behalf, and their testimony referred to the childhood and prison abuse the Petitioner

suffered. The Petitioner seems to suggest that the witnesses who testified about the abuse

were not qualified or competent. For example, he states that counsel “failed to do a

complete investigation and instead presented testimony regarding the sexual

victimization at Parchman through [his] brother Jimmy, [Jr.].” He asserts that counsel

should have called other inmates besides the Petitioner’s adoptive brother to testify about

the conditions at Parchman. However, there is no requirement that counsel present

cumulative evidence during sentencing. See Nichols v. State, 90 S.W.3d 576, 601-02

(Tenn. 2002).

Regardless, considering the Goad factors cited above, we find that the evidence

introduced during post-conviction was similar in nature to the evidence at the

resentencing hearing. Although post-conviction counsel was able to find additional

witnesses, “[a] reasonable investigation is not an investigation that the best criminal

defense lawyer in the world, blessed not only with unlimited time and resources but also

with the benefit of hindsight, would conduct.” Tyrone Chalmers v. State, No. W2006-

00424-CCA-R3-PD, 2008 WL 2521224, at *37 (Tenn. Crim. App. at Jackson, June 25,

2008). Similarly, “[a] reasonable investigation does not require that counsel leave no

stone unturned.” Perry Anthony Cribbs v. State, No. W2006-01381-CCA-R3-PD, 2009

WL 1905454, at *48 (Tenn. Crim. App. at Jackson, July 1, 2009). This is not a case

where counsel failed to introduce any, or just cursory, mitigation. Even assuming

counsel should have called additional witnesses to testify about the abuse the Petitioner

suffered, the strength of the aggravating circumstances weighs against a finding of

prejudice. The Petitioner is not entitled to relief on this ground.

3. Jury Selection

The Petitioner argues that counsel were ineffective during jury selection in the

second resentencing hearing for failing to ask jurors case-specific questions, failing to

“life-qualify” the jurors properly, and failing to object when the State improperly defined

“mitigation.” The Petitioner also seems to suggest that the State improperly excluded

jurors who expressed reservations about the death penalty. The post-conviction court

disagreed, stating:

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[T]his court finds the jurors were properly life qualified through the

questioning of the court, the state and defense counsel. Although defense

counsel did not provide an explicit definition of mitigation to the jury, the

court and the state provided explanations to the jury regarding the

definition, nature and role of mitigation.

Finally, this court does not find trial counsel was ineffective in their

attempts to question jurors about their reactions to specific circumstances of

the offense. It appears counsel did attempt to question the jurors about their

reactions to specific aspects of the offense; however, the trial court ruled

they could not question jurors about the exact circumstances of the offense.

This court does not find counsel were . . . ineffective in failing to cite to a

specific case. Moreover, even if counsel were ineffective in this regard,

this court find[s] petitioner has failed to demonstrate he was prejudiced by

counsels’ inaction.

The Petitioner does not identify the “case-specific” questions counsel should have

asked. Regardless, counsel did attempt to question a prospective juror about whether the

specific facts of this case would prevent him from following the judge’s instructions on

the law. The trial judge, however, refused to allow them to embark on that line of

questioning. Contrary to the Petitioner’s assertion, counsels’ performance cannot be

deemed deficient in that respect. Moreover, the Petitioner has failed to demonstrate any

resulting prejudice. As to his claim that counsel failed to “life-qualify” the jurors

adequately, this court has stated that “not questioning as to whether a prospective juror

can fairly consider a life sentence does not necessarily constitute deficient performance.”

Tyrone Chalmers, No. W2006-00424-CCA-R3-PD, 2008 WL 2521224, at *27 (citations

omitted). The Petitioner acknowledges, however, that counsel did question whether

jurors could vote for life if they did not find the aggravation outweighed the mitigation.

Accordingly, based upon this court’s review of the entire jury selection, during which the

trial judge and the parties explained to the jury the concepts of aggravating and mitigating

evidence and the weighing process, this court cannot conclude that counsels’

performance was deficient in this respect. Furthermore, the Petitioner has failed to

establish any prejudice resulting from counsels’ failure to object to the State’s alleged

improper definition of “mitigation.” Upon our review of the record, the jury was

properly instructed on the law of capital cases in Tennessee. To the extent the Petitioner

complains about the actions of the State during jury selection, his challenges must be

considered waived in the post-conviction context. See Tenn. Code Ann. § 40-30-106(g).

The Petitioner is not entitled to relief on these issues raised against defense counsel

during the second resentencing hearing.

4. Polling of Jury

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The Petitioner also argues that counsel were ineffective for failing to poll the jury

following the return of the sentence in 2007. Without any proof or citation to any

controlling authority, the Petitioner asserts that “[i]n light of the jury deliberating for

more than ten hours over [his] sentence, counsel should have requested that the jury be

polled to ensure that the verdict was not coerced.” Noting that polling of the jury is

discretionary, see Tennessee Rule of Criminal Procedure 31(e), the post-conviction court

concluded that the “Petitioner presented this court with no proof concerning what, if any,

difference polling would have made in the outcome of Petitioner’s trial and provided no

proof indicating the verdict was anything other than unanimous.” Despite waiver of this

issue, see Tennessee Court of Criminal Appeals Rule 10(b), the trial court did affirm that

all twelve jurors signed the verdict form. See Tenn. Code Ann. § 39-13-204(g). The

Petitioner has shown neither deficiency nor prejudice with respect to counsels’

performance. Therefore, he is not entitled to relief on this claim.

5. Jury Instructions

The Petitioner contends that counsel were ineffective during the 2007 resentencing

hearing for failing to object to the trial court’s instruction to the jury on reasonable doubt.

This issue has been previously determined. Tenn. Code Ann. § 40-30-106(h). During its

review of the death sentence imposed by the jury in 2007, our supreme court affirmed

this court’s ruling that the instruction at issue did not result in a violation of the

Petitioner’s due process rights. Odom, 336 S.W.3d at 570 n.12. Accordingly, the

Petitioner is not entitled to relief on this issue. The Petitioner’s challenge to 1992

counsels’ failure to object to a similar instruction also must fail.

The Petitioner also contends that counsel should have objected to the instruction

that the jury must be unanimous in its decision to render a life sentence. However, this

issue also has been previously determined, State v. Richard Odom, No. W2008-02464-

CCA-R3-DD, 2010 WL 10094693, at *35 (Tenn. Crim. App. at Jackson, Mar. 4, 2010),

aff’d, Odom, 336 S.W.3d at 577, and the instruction at issue has been approved by our

supreme court, State v. Ivy, 188 S.W.3d 132, 163 (Tenn. 2006). Accordingly, counsel

cannot be deemed ineffective for failing to object.

6. Closing Argument

The Petitioner argues that counsel were ineffective during closing arguments

during the second resentencing hearing by stating that the crime scene photos were “the

worst of the worst.” According to his argument, counsel’s comments were, in essence, a

stipulation that the State had proven its case for the death penalty. The post-conviction

court disagreed, saying as follows:

This court finds, although perhaps poorly worded, the statements of trial

counsel did not rendered [sic] their representation deficient. When

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considered in the context of the entire closing argument, it is clear defense

counsel was simply attempting to acknowledge the photographs of the

victim’s murder were difficult for the jury to view. Counsel was suggesting

the jury must hold the [State to its] burden of proving the aggravating

factors; should consider the mitigation presented by the defense; and,

should not make a decision based merely on the emotion elicited from

having viewed those photographs.

We agree with the post-conviction court. The prosecutor repeatedly referred to the

crime scene photos during her closing remarks:

The death penalty – this process that you have sat through all week

is reserved for the worst of the worst. The worst of the worst.

And the State of Tennessee does not take this lightly. The State of

Tennessee does not ask you to just ignore and put your blinders on to

everything that you’ve heard.

It is difficult to sit and listen to what you had to listen to. It’s

difficult to look at these pictures.

And we don’t ask you to do it just because. We ask you to do it

because the law demands it.

....

No. You may never forget this.

I will submit to you, you will never block out some of the images

that you had forced upon you this week.

....

If this were a matter of the two aggravators exist [sic], the State’s

proven them and that’s it, you would never get to know about the case.

You would never see the pictures of [the victim’s] body, her frail, dead,

naked body in the back of her car.

....

If it was just as easy as us telling a computer he’s been convicted of

murder before and this murder was during a robbery, we wouldn’t need

jurors. We wouldn’t need you ladies and gentlemen to take a week out of

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your life and look at pictures that you’ll never forget and listen to words

that make you sick, if it were just that easy.

In rebuttal, defense counsel attempted to defuse the State’s emphasis on the

photographs and to dispute the fact that this case was “the worst of the worst.” Counsel’s

argument, the one the Petitioner now complains about being a concession that the death

penalty was warranted in this case, was, in pertinent part, as follows:

[The judge] read you a jury instruction and part of it – you’re going

to have these instructions. When he’s done talking about the aggravating

circumstances, it has this line, read this line. You shall not consider any

other facts or circumstances as an aggravating circumstance in deciding

whether the death penalty would be appropriate punishment in this case.

So when they put pictures up on the board of [the victim], what does

that law say? Don’t consider that for death.

And that is under the theory of them proving their case to you. After

we sat up here and told you we’re not contesting the fact that he was

convicted.

Do you know why? Because if you’re not mad as hell at [the

Petitioner], you’re not going to give him the death penalty.

And when you put pictures of a seventy-eight year old woman who’s

been raped in the back of a car up there, it makes you mad as hell. It

should.

And they do that to inflame you, knowing it is not an aggravator and

cannot be considered by you.

But they know you are not able to put that out of our [sic] mind. But

we talked about sympathy and prejudice before we started this journey.

You have to do it.

The worst of the worst. Show me a murder that’s not bad. All crime

scene pictures are bad.

They’re seeking the death penalty because the law says they have the

right to seek it. They don’t have to seek it against anybody. It’s their

choice. It’s why we’re here.

If they didn’t seek it, he gets life.

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But those pictures are terrible. The worst of the worst. It’s so bad –

nobody’s saying [the victim] wasn’t a great woman. I’m sure she was. She

lived seventy-eight years. It’s too bad she couldn’t have lived more.

Would it have been better if it had been a twenty-four year old

mother of three? Would it have been better if it had been a child? No.

Is it any worse than somebody getting gunned down in a liquor

store? No. It’s not. They’re all bad.

It’s hard to limit yourself to just those aggravators.

I want to talk about the witnesses a little bit. John Sullivan was the

first witness to come up here. Nice man. A good man. No doubt about

that.

But there’s a trick in trying to make you mad as hell. What purpose

was there in showing pictures of [the victim] to that man?

They could have easily been introduced by the police officer, the

next witness. Why introduce them through John Sullivan?

Because it’s going to make you forget the burden, it’s going to make

you mad as hell that that seventy-five year old man had to sit up here and

look at those pictures when he didn’t have to.

Because they don’t want you to use the law. They want you to use

passion and anger and you can’t.

There was absolutely no reason to make that man look at those

pictures.

The next witness, Miss Locastro identified them, too. There was

absolutely no reason not to put them in through her.

Keep in mind, these facts that they proved to you were never

disputed. They could have put on his statement.

But by showing you the horrible pictures and they are horrible, my

God, they’re horrible, [the prosecutor] said, look at them when you’re in

the back. Why? It’s not an aggravator. It has nothing to do with your

aggravator at all. Look at them, look at them, look at them, look at them.

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Because they’ve got to get you mad as hell to kill [the Petitioner].

That’s why.

When read in context, this court does not find that, as the Petitioner now claims,

defense counsel’s remarks were an “admission that [the Petitioner’s] actions warranted

the death penalty.” Accordingly, counsel’s performance cannot be deemed to have been

deficient in this respect. The Petitioner is not entitled to relief on this claim.

7. Prosecutorial Misconduct

The Petitioner contends that counsel were ineffective for failing to object to a

statement made by the prosecutor during closing arguments in 2007 that the Petitioner

anally raped the victim when no evidence was introduced to support that statement. The

post-conviction court noted that defense counsel were not questioned during the

evidentiary hearing about their decision in this regard. Nevertheless, the court held that

the Petitioner otherwise failed to demonstrate prejudice because “[t]he trial court properly

instructed the jury statements, arguments, and remarks of counsel are not evidence and

informed the jury if any statements were made they believe are not supported by the

evidence, they should disregard them.”

The statement at issue by the prosecutor was a single, isolated remark. The

propriety of this statement was raised on direct appeal as “an ancillary argument” to an

issue regarding the admission of the crime scene photographs during the second

resentencing hearing. Richard Odom, No. W2008-02464-CCA-R3-DD, 2010 WL

10094693, at *20. Despite the fact that there was no contemporaneous objection by

defense counsel, this court concluded that some of the prosecutor’s remarks during

closing argument, including the statement that the Petitioner anally raped the victim, were

not an improper attempt to urge the jury to weigh nonstatutory aggravating

circumstances. Id. at *22. Our supreme court affirmed this court’s holding. Although it

did not specifically reference the statement at i

This text is long and has been trimmed here. Open the source document for the complete record.