Lemaricus Davidson v. State of Tennessee

08/19/2021

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

August 26, 2020 Session

LEMARICUS DAVIDSON v. STATE OF TENNESSEE

Appeal from the Criminal Court for Knox County

No. 111962 Walter C. Kurtz, Judge

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No. E2019-00541-CCA-R3-PD

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The Petitioner, Lemaricus Davidson, was convicted in the Knox County Criminal Court of

numerous offenses against the two victims, Christopher Newsom and Channon Christian,

including multiple counts of first degree felony and premeditated murder, and the jury

imposed sentences of death for each murder conviction. After this court and our supreme

court affirmed the Petitioner’s convictions and sentences, he filed post-conviction and

coram nobis petitions, seeking relief from those first degree murder convictions and death

sentences. The post-conviction court found that trial counsel were deficient for not

requesting a change of venue but that no prejudice resulted from trial counsel’s deficient

performance and denied relief. The coram nobis court also denied relief. In this

consolidated appeal, the Petitioner raises various issues, including that the post-conviction

court erred by denying his request for expert services; that the post-conviction court erred

by determining that a codefendant’s anticipated testimony at another codefendant’s

upcoming trial was not relevant to the Petitioner’s claim for post-conviction relief; that trial

counsel were ineffective because they failed to request an out-of-county jury, improperly

handled voir dire, and failed to raise certain issues on direct appeal of his convictions; and

that he is entitled to coram nobis relief because a codefendant’s new testimony may have

led to a different verdict as to the first degree premeditated murders of the victims. Based

upon our review of the oral arguments, the record, and the parties’ briefs, we conclude that

the post-conviction court erroneously determined that a codefendant’s anticipated

testimony at another codefendant’s upcoming trial was not relevant to the Petitioner’s

claim for post-conviction relief because the testimony would have invalidated one of the

four aggravating circumstances found by the jury to impose the Petitioner’s death sentence

for Mr. Newsom. However, we also conclude that the error was harmless beyond a

reasonable doubt. We agree with the post-conviction court that trial counsel were deficient

for not requesting a change of venue and that the Petitioner has failed to demonstrate he

was prejudiced by trial counsel’s deficient performance. Therefore, we affirm the denials

of post-conviction and coram nobis relief.

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

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which D. KELLY THOMAS,

JR., and ROBERT H. MONTGOMERY, JR., JJ., joined.

John David Watkins, William Edgar Howell, III, and Christopher M. Minton, Nashville,

Tennessee, for the appellant, Lemaricus Davidson.

Herbert H. Slatery III, Attorney General and Reporter; Andrew C. Coulam, Senior

Assistant Attorney General; Charme P. Allen, District Attorney General; and Ta Kisha

Monette Fitzgerald and Leland Price, Assistant District Attorneys General, for the appellee,

State of Tennessee.

OPINION

Factual Background

The crimes in this case occurred during the weekend of Saturday, January 6, 2007.

The Petitioner and his codefendants, George Thomas, Letalvis Cobbins, Eric Boyd, and

Vanessa Coleman, kidnapped, robbed, raped, and killed the two victims, Christopher

Newsom and Channon Christian.1 The victims were leaving a friend’s apartment Saturday

evening when the defendants carjacked them and took them to the Petitioner’s house. The

facts are summarized in our supreme court’s opinion from the Petitioner’s direct appeal of

his convictions as follows:

Mr. Davidson and his accomplices, using guns, kidnapped Chris and

Channon and stole Channon’s vehicle. They tied Chris’s and Channon’s

hands behind their backs and stole money and personal items. After raping

Chris, Mr. Davidson and his accomplices forced Chris to walk without shoes,

socks, or pants on a January night to a desolate area beside a set of train

tracks. They bound his feet with his belt. They blindfolded Chris, stuck a

sock in his mouth and secured it with a shoelace, and wrapped a hooded

sweatshirt around his head. They shot him three times and killed him. Two

of the bullets removed from Chris’s body were shot from the same gun and

shared class characteristics with the High Standard revolver Mr. Davidson

had in his possession when he was arrested. To hide the evidence of the

murder, they wrapped Chris’s body in a comforter, poured gasoline on him,

and set his body on fire. Afterwards, Mr. Davidson was seen wearing Chris’s

1

Ordinarily, it is the policy of this court to refer to victims of sexual assault by their initials.

However, given that our supreme court referred to the victims by their first and last names in its opinion on

direct appeal of the Petitioner’s convictions, we will forgo the use of their initials in this opinion.

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shoes. Within an hour of the murder, Mr. Davidson tried to contact his

girlfriend by using Chris’s cell phone.

After killing Chris, Mr. Davidson and his friends returned to Mr.

Davidson’s house where they beat and repeatedly raped Channon. Abusing

her for many hours, they then tied her into a fetal position, secured a plastic

bag tightly over her head, put her in five plastic garbage bags, and stuffed her

in a garbage can to suffocate to death. While Channon was dying in the

garbage can, Mr. Davidson left to spend time with his girlfriend. He gave

Channon’s clothes and personal items to his girlfriend.

State v. Davidson, 509 S.W.3d 156, 214 (Tenn. 2016).

On January 11, 2007, officers from the Knoxville Police Department arrested the

Petitioner in a vacant house in Knoxville. Id. at 176-77. Mr. Newsom’s Nike athletic shoes

and a .22 caliber High Standard revolver were found in the house. Id. at 177. The Petitioner

waived his rights and gave a statement to the police in which he told more than five versions

of what occurred from January 6 to January 8. Id. Initially, the Petitioner claimed that he

was not at his house during that time and did not know what may have occurred there. Id.

Ultimately, though, he claimed that Cobbins and Thomas arrived at his house with Mr.

Newsom and Ms. Christian about 10:00 p.m., “saying they had carjacked some people and

they were in the vehicle.” Id. The Petitioner also claimed that Cobbins and Thomas left

with the victims for less than twenty minutes and returned only with Ms. Christian. Id.

The Petitioner denied having sex with Ms. Christian and said that his DNA would not be

found on her. Id.

The State presented the following forensic and scientific evidence at the Petitioner’s

trial: Mr. Newsom was anally penetrated one to two hours before he died and had

“significant” injuries to his anal and genital areas. Id. at 178. He was shot three times,

each time with a small-caliber bullet, and the fatal shot was fired with the muzzle of the

gun against his head. Id. Mr. Newsom was found with a bandana tied around his eyes; a

sock stuffed into his mouth; and bare, muddy feet. Id. His wrists had been tied together

behind his back with a shoelace, and his ankles had been bound together with his belt. Id.

He was wearing a shirt, t-shirt, and underwear but no other clothing. Id. Semen was in his

anus, but the high temperature of the fire destroyed the DNA in the semen. Id.

Ms. Christian suffered injuries around and to her mouth in the hours before her

death, including a torn frenulum, and the injuries were caused by an object, such as a penis,

being forced into her mouth. Id. Her anal and genital areas suffered “tremendous” damage

one to two hours before her death. Id. Some of her injuries were “so grave” that they had

to have been caused by a blunt object. Id. Ms. Christian also had bruises on the back of

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her arms, the top of her head, the front of her legs, and her upper back close to her neck.

Id. Carpet burns and scratches were on her lower back and upper buttocks. Id. She was

in a “tight fetal position” in the garbage can and had a white plastic bag over her head that

had been knotted in back to keep it in place. Id. at 178-79. She suffocated due to the plastic

bag over her head and “due to her positioning” in the garbage can, and her time of death

was estimated to have occurred between Sunday afternoon and Monday afternoon. Id. at

179. She was found wearing only a camisole and a sweater. Id.

The Petitioner’s DNA from sperm was in Ms. Christian’s vagina and anus and was

on her jeans. Id. Cobbins’s DNA was in her mouth and on her camisole, sweater, and

jeans. Id. Fabric found with Mr. Newsom’s body and fabric used to bind Ms. Christian in

the garbage bags came from curtains and fabric that had been given to the Petitioner. Id.

The Petitioner’s fingerprints and palm prints were found on three of the five plastic garbage

bags that contained Ms. Christian’s body, and a palm print on the outermost exterior

garbage bag was consistent with his having lifted the bag with weight in it. Id. His prints

also were on items belonging to both victims that were found in his house. Id. Two bullets

recovered from Mr. Newsom could have been fired from the High Standard revolver that

was in the Petitioner’s possession at the time of his arrest. Id. A revolver associated with

Cobbins was eliminated as the murder weapon. Id.

A Knox County Criminal Court Jury convicted the Petitioner of sixteen counts of

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

especially aggravated robbery; four counts of aggravated kidnapping; nine counts of

aggravated rape of Ms. Christian; three counts of facilitation of aggravated rape as a lesser-

included offense of aggravated rape of Mr. Newsom; one count of theft of property valued

$10,000 or more but less than $60,000; and one count of theft of property valued $500 or

less.2 Id. at 180. In finding the evidence sufficient to support the first degree murder

convictions, our supreme court stated as follows:

Mr. Davidson and his friends could have released Chris and Channon

unharmed after stealing Channon’s vehicle. Mr. Davidson did not know

Chris and Channon and had no reason to kidnap, rape, and murder them.

Chris and Channon had no defensive wounds. According to Mr. Davidson,

Channon asked him if she was going to die, indicating she likely knew her

fate. Viewing the facts in the light most favorable to the State, a reasonable

jury could have easily found beyond a reasonable doubt that Mr. Davidson

acted with premeditation when he shot Chris three times and killed him and

bound Channon and stuffed her into a garbage can to die. A reasonable jury

could have easily found beyond a reasonable doubt that Mr. Davidson

2

After the jury returned its verdicts, the State dismissed two felony murder counts, and the trial

court merged various counts. See id. at 180.

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committed these murders while also committing the crimes of kidnapping,

robbery, and rape.

Id. at 214.

The defendants were tried separately in Knox County, and the Petitioner was the

second to go to trial. Cobbins was tried first before Judge Richard Baumgartner in August

2009. The jury was selected in Davidson County. Although the State sought the death

penalty, Cobbins received sentences of life without the possibility of parole for the first

degree murder convictions plus one hundred years for the remaining convictions. State v.

Letalvis Darnell Cobbins, No. E2013-00476-CCA-R3-CD, 2014 WL 4536564 (Tenn.

Crim. App. at Knoxville, Sept. 12, 2014). The Petitioner was tried next before Judge

Baumgartner in October 2009 and chose a jury from Knox County. After he was convicted,

the jury imposed two death sentences for the first degree murder convictions, and he

received forty years for the remaining convictions. In support of the death penalty, the jury

found the existence of three aggravating circumstances for the murder of each victim: (1)

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

the purpose of avoiding, interfering, or preventing a lawful arrest; and (3) the murder was

committed during the perpetration of another felony. Davidson, 509 S.W.3d at 219 (citing

Tenn. Code Ann. § 39-13-204(i)(5), (6), (7)). The jury found the existence of one

additional aggravating factor for the murder of Mr. Newsom: the defendant knowingly

mutilated the body of the victim after death. Id. (citing Tenn. Code Ann. § 39-13-

204(i)(13)). Thomas was tried before Judge Baumgartner in December 2009 and received

life without the possibility of parole for the first degree murder convictions. A new trial

was granted, and he was retried before Judge Walter C. Kurtz in 2013 and received life

sentences for the murder convictions plus twenty-five years for the remaining convictions.

State v. George Geovonni Thomas, No. E2013-01738-CCA-R3-CD, 2015 WL 513583

(Tenn. Crim. App. at Knoxville, Feb. 5, 2015). Coleman was tried twice and ultimately

received an effective thirty-five-year sentence for her involvement in the crimes. State v.

Vanessa Coleman, No. E2013-01208-CCA-R3-CD, 2014 WL 6908409 (Tenn. Crim. App.

at Knoxville, Dec. 9, 2014). Boyd was convicted on two federal charges of being an

accessory after the fact to carjacking and misprision of a carjacking related to his

involvement in these crimes. United States v. Boyd, 640 F.3d 657 (6th Cir. 2011). In

March 2018, the Knox County Grand Jury charged Boyd by presentment with various

offenses related to the deaths of the victims. He went to trial in August 2019 and ultimately

received two life sentences for the first degree murders of Mr. Newsom and Ms. Christian

plus ninety years for the remaining convictions. His case is currently on appeal before this

court.

On March 10, 2011, Judge Baumgartner resigned due to allegations of drug abuse.

At that time, motions for new trials were pending in the cases of all of the defendants except

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Boyd; Boyd had not yet been charged in state court. Senior Judge Jon Kerry Blackwood

was assigned to the cases. He determined that he could not act as thirteenth juror due to

Judge Baumgartner’s out-of-court conduct and, thus, granted the Petitioner, Cobbins, and

Thomas new trials. The State sought an application for permission to appeal the rulings

pursuant to Rule 10, Tennessee Rules of Appellate Procedure. This court initially denied

the application, but our supreme court granted the State’s request for relief. State v. Letalvis

Cobbins, Lemaricus Davidson and George Thomas, No. E2012-00448-SC-R10-DD (Tenn.

May 24, 2012) (order). Our supreme court held that “in the absence of controlling authority

otherwise, we decline to hold that a trial judge’s out-of-court misconduct, by itself,

constitutes structural error unless there is proof that the misconduct affected trial

proceedings.” Id. Therefore, the court concluded that Judge Blackwood erred in granting

new trials to the Petitioner, Cobbins, and Thomas and remanded the cases to Judge

Blackwood for further review. Id. Coleman was granted a new trial based on Judge

Baumgartner’s in-court conduct during the trial proceedings, but the State did not challenge

that ruling in the extraordinary appeal. See id.

On remand, Judge Blackwood again decided that he could not act as thirteenth juror.

Based upon actions detailed in this court’s opinion, the State again sought, and was granted,

permission to appeal Judge Blackwood’s order denying the State’s motion to recuse. See

State v. Letalvis Cobbins, Lemaricus Davidson, and George Thomas, No. E2012-02025-

CCA-10B-DD, 2012 WL 5266427 (Tenn. Crim. App. at Knoxville, Oct. 25, 2012), perm.

app. denied, (Tenn. Feb. 12, 2013). This court concluded that Judge Blackwood should

have recused himself in the three cases. Id. at *18. On remand, Judge Kurtz was

designated to proceed on the motions for new trials filed by the Petitioner, Cobbins, and

Thomas. Judge Kurtz eventually denied the Petitioner’s motion for new trial. The

Petitioner’s convictions and sentences were then affirmed on direct appeal. Davidson, 509

S.W.3d at 171.

The Petitioner timely filed a pro se post-conviction petition on December 4, 2017.

Following the appointment of counsel, the filing of several amendments to the original

petition, and an evidentiary hearing, the post-conviction court denied relief. The Petitioner

now appeals that ruling.

Meanwhile, on June 24, 2019, the Petitioner also filed a petition seeking coram

nobis relief. Therein, he argued that he was entitled to a new trial and/or sentencing hearing

because of new evidence, mainly that Thomas had agreed to testify for the State in Boyd’s

then-upcoming trial that Boyd, not the Petitioner, shot and killed Mr. Newsom and burned

his body. Thomas would further testify that the Petitioner was not present at the scene

when Mr. Newsom was killed. The Petitioner became aware of the Thomas evidence in

September 2018. Evidently, Thomas agreed to a sentence reduction in exchange for his

testimony in Boyd’s trial. The Petitioner previously sought to delay the post-conviction

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evidentiary hearing based on the discovery of this new evidence, but the post-conviction

court denied that request. Following a subsequent hearing on the coram nobis petition, the

coram nobis court denied relief. The Petitioner also now appeals that ruling.

This court has consolidated the Petitioner’s appeals of the denial of post-conviction

and coram nobis relief. Tenn. R. App. P. 16(b). We will individually address the issues

raised by the Petitioner in support of his request for relief under both the post-conviction

and coram nobis statutes.

Post-Conviction

Evidentiary Hearing Testimony

Attorney David Miller Eldridge testified that he served as “first chair” counsel

during the Petitioner’s trial. He had practiced primarily criminal law in Knoxville since

1988 and previously had represented two or three defendants in capital cases. Eldridge

was board certified as a criminal trial advocate in addition to having received other

professional accolades. Along with Douglas A. Trant, whom Eldridge respected and

selected to be appointed after the State filed its notice of intent to seek the death penalty,

the defense team also utilized the services of two other attorneys and law clerks in

Eldridge’s firm at the firm’s own expense. Eldridge stated that the defense team’s case file

filled twenty to twenty-five Bankers Boxes.

Eldridge recalled that the Petitioner had moved to Knoxville about six months

before the crimes and that the other codefendants were not from Knoxville. The two

victims were from Knoxville. Eldridge said the extensive media coverage began as soon

as the crimes occurred and continued throughout the Petitioner’s trial, as well as the trials

of his codefendants. The media portrayed the crimes as “torture slayings,” and the

Petitioner was characterized as the “ringleader.” Eldridge said the media covered

“essentially, every aspect of this case”; he had not handled another case that “generated

[that] level of media coverage.” The defense team maintained a file and collected a

substantial number of local articles which had reported on the case. Eldridge did not

specifically recall, however, collecting or comparing news articles or reports from other

jurisdictions. The defense did not poll people in the local community to determine their

knowledge about the case.

Eldridge testified that posts on various media websites contained hostile comments

directed toward defense counsel and that he tried to avoid reading them. He referred to a

specific article in the Knoxville News Sentinel, which included a photograph showing

counsel and the Petitioner smiling while seated at counsel’s table in the courtroom.

Someone mailed a copy of that photograph to counsel along with a threat to them and their

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families. Eldridge forwarded the mail to federal law enforcement officials. He recalled

that comments expressed opinions that the defendants did not need to face trial but, instead,

“should all be killed.” He also remembered that some people believed the case would have

received more attention in the national news if the victims had been black and the

perpetrators had been white. Eldridge recalled that a Ku Klux Klan march occurred on

Main Street before trial.

Eldridge testified that Cobbins, Coleman, and Thomas all moved for a change of

venue based, primarily, on pretrial publicity. Instead of having their trials moved out of

Knox County, those three codefendants received a change of venire. In July 2009, Trant

e-mailed Eldridge and suggested that they keep a jury of Knox County residents. Prior to

that suggestion, Eldridge had assumed they also would move for a change of venue. In

fact, he replied to Trant expressing his concern that seating a jury with people from

Knoxville who had not already heard or formed an opinion about the case would be

difficult. Eldridge thought that “there was a lot of inflammatory commentary” about this

case that was “potentially prejudicial” to the Petitioner. Eldridge deferred to Trant’s

decision, however, because Trant had more experience in trying capital cases. Eldridge

knew that if a jury could not be seated in Knox County, the case would still have to be

tried. He testified that as lead counsel, he should have overridden Trant’s decision.

Eldridge testified that counsel discussed the matter with the Petitioner. Eldridge

thought the Petitioner understood the risks and benefits of both options. Eldridge also

thought the Petitioner understood counsel’s strategy to use the extensive pretrial publicity

to their advantage in jury selection in hopes of not being able to seat a jury in Knox County.

However, counsel informed the Petitioner that they “might very well get a jury” from Knox

County. Eldridge stated that their strategy was “questionably, a risky effort”; therefore,

they might end up with jurors who had been exposed to prejudicial pretrial publicity.

Eldridge remembered Trant saying, in light of the “extraordinary” evidence against the

Petitioner and the denial of numerous motions to suppress, that “desperate times call for

desperate measures.” Eldridge acknowledged that even a jury from another jurisdiction

would have heard the same evidence and that he “did not have confidence that a jury from

another jurisdiction would react to these facts any differently.” He also thought the death

penalty “was a real possibility” even with an out-of-county jury. Ultimately, the Petitioner

voiced no objection to trying to seat a Knox County jury.

Eldridge testified about the jury questionnaires and jury selection expert the defense

team employed. That expert preferred trying to seat a jury from another jurisdiction.

Eldridge also recalled that the trial judge had been making arrangements for an out-of-

county jury prior to counsel’s announcement that they would seat a jury from Knox County.

Eldridge did not think counsel had a basis to strike for cause those jurors who ended up on

the panel. Furthermore, counsel did not exercise all of their peremptory challenges because

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their expert advised them that there were less favorable jurors remaining in the pool. The

trial judge gave counsel “a great deal of leeway” and did not rush them during jury

selection. Counsel discovered that a number of potential jurors knew about the case, but

those jurors stated they could set aside any preconceived opinion and decide the case on

the facts presented. Eldridge stated that although counsel could have done a better job, he

thought they tried to address the racial undertones of the case during jury selection.

Eldridge testified that the defense moved to suppress the Petitioner’s statement to

the police, and he identified a newspaper article discussing that statement. Eldridge also

identified articles discussing the inadmissibility of the Petitioner’s prior conviction for

carjacking but the admissibility of his prior conviction for aggravated robbery as well as

articles reporting on some other unrelated charges. Eldridge agreed it was important for

the defense to limit potentially damaging evidence about the Petitioner’s criminal history

from reaching the jury.

Eldridge testified that the defense theory of the case was to attempt to blame the

Petitioner’s codefendants and to establish an alternative theory about why the victims were

at the Petitioner’s house. Counsel zealously tried to defend the Petitioner without regard

to the public’s reaction about the theories. Counsel’s actions were not dictated one way or

the other by any threats they received.

Eldridge testified that Cobbins received a sentence of life without the possibility of

parole despite the State having sought the death penalty. Eldridge watched Cobbins’s trial

as it was being broadcast live. Cobbins’s trial strategy was to place the bulk of the blame

on the Petitioner, and the public was aware of that strategy prior to the Petitioner’s trial.

Cobbins and the Petitioner shared some of the same family members, and counsel decided

not to call some of those individuals as witnesses because their sentencing hearing

testimony at Cobbins’s trial could have been harmful to the Petitioner. Eldridge did not

consider the evidence against Cobbins to be “as strong” as the evidence against the

Petitioner. Specifically, the DNA and fingerprint evidence were more damaging to the

Petitioner. Additionally, the Petitioner rented the house where most of the crimes occurred.

Eldridge testified that counsel met with the Petitioner many times and never

witnessed any signs of intellectual disability. The Petitioner appeared intelligent, and he

was polite and courteous. He asked counsel questions about his case and was able to read

the written materials counsel provided to him. Eldridge did not raise any concerns about

the amount of time Dr. Peter Brown, their mitigation expert, spent with the Petitioner prior

to trial. There was no evidence of any organic brain damage.

Eldridge testified that he did not notice any evidence of impairments by Judge

Baumgartner during the trial and that he was “shocked” to learn about the judge’s

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addiction. As far as the atmosphere in the courtroom, Eldridge said he would not describe

it as a “circus.” However, the victims’ families visibly expressed their anger about the

case. Eldridge recalled that “the tension was palpable at all times. And the jury would

have had to have picked up on that.”

Attorney Douglas A. Trant served as “second chair” counsel for the Petitioner at

trial. He had maintained a criminal law practice almost exclusively for approximately

thirty years and had been certified as a “Criminal Trial Specialist” for about thirteen years.

The “division of labor” on the case was shared equally between the two attorneys. They

filed numerous pretrial motions with the intent of trying to suppress as much of the State’s

evidence as possible, and they worked together on the mitigation aspect of the case. They

traveled to Jackson and Memphis to interview the Petitioner’s foster parents and other

family members. Trant said the Petitioner’s family members were, “unfortunately,” not

cooperative. The defense team employed a mitigation specialist and a psychiatrist to assist

with mitigation.

Trant testified about the extensive and “sensational” media coverage of the case.

All of the Knoxville television stations, some of the radio stations, and the Knoxville News

Sentinel covered every aspect of the case from the pretrial hearings until the last day of the

trial. Although the media generally portrayed defense counsel as appointed attorneys “just

doing their job,” many online comments were “hateful” and “threatening.” The reactions

of the victims’ family members were covered extensively by the media. Trant recalled that

the families were “very angry, bitter [and] hurt.” He also recalled threats from the families

and having his access to the courtroom blocked at times by the families and their

supporters. The victims’ family members sat near the jury during the trial and reacted

“physically to testimony, they reacted audibly.” They also wore buttons in support of the

victims.

Trant testified that he did not let the publicity or negative attention toward him affect

his performance as a defense attorney. This case was his tenth capital case that went to

verdict and, other than one prior case where the death sentence was ultimately reversed on

appeal, the only one in which the jury imposed a death sentence. He thought he “did the

best [he] could” for the Petitioner. Trant acknowledged that the evidence against the

Petitioner was “overwhelming and very damaging.”

Trant recalled that Randy Nichols, the Knox County District Attorney General at

the time, asked if the Petitioner would be interested in pleading guilty in exchange for a

sentence of life without the possibility of parole. The Petitioner firmly declined that offer.

Trant’s understanding of why the Petitioner turned down the offer was that “he would just

as soon have death . . . that the difference between the two was not a difference with

distinction for him. And he was steadfast in that regard.” After the trial, though, the

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Petitioner was upset. Trant explained, “I went back to the dock to talk with him and he

was crying then. He said, you know, it’s one thing to anticipate it all this time, but it’s

another thing to finally get it. So I think it finally hit him hard - that he was sentenced to

die. And I think up until that time his resolve was to fight it.”

Trant testified that he proposed seating a jury from Knox County based upon his

experience in a prior capital case in Claiborne County which resulted in a hung jury.

According to Trant, Tennessee law only allowed a defendant to move for a change of

venue. Based on that understanding, he presented a trial strategy to Eldridge that the

Petitioner not move for a change of venue in hopes of not being able to seat a jury from

Knox County. Trant thought that if the jury selection process dragged on, the State might

be forced to negotiate further. He “remember[ed] telling [the Petitioner] that if the jury

believed that he did what the State said he did, we could get a jury from Mars and I thought

they would give him the death penalty.” Trant said the rapes and murders occurred at the

Petitioner’s house, the Petitioner “came from Memphis selling drugs,” and the Petitioner

“probably initiated this carjacking.” Therefore, Trant thought the Petitioner’s culpability

was greater than that of Cobbins, who received a lesser sentence with an out-of-county

jury. Furthermore, the Petitioner was going to have less mitigation support from his family

members at sentencing than Cobbins had.

Trant testified that he told the Petitioner that “if we were not able to seat a jury, that

they could not try him and they could not convict him.” Trant acknowledged that he was

unaware of any case at that time in which “a Judge had to throw up his or her hands and

say, well, I just can’t get a jury in this county and Mr. Defendant, you -- you can walk out

of here.” Although Eldridge disagreed with Trant’s strategy, the Petitioner sided with

Trant, so the defense ultimately chose to seat a jury from Knox County. However, the

defense team did not make their decision lightly. Trant understood that the trial judge was

likely to grant a request for an out-of-county jury as the judge had done in the codefendants’

cases, but Trant was “not a fan of picking a jury somewhere else and bringing them back

to the community.” He stated, “I mean, if the community is outraged, then trying the case

here in Knox County is bound to spill over to a jury, I think, no matter if they’re

sequestered.” The Petitioner was present in the courtroom when counsel announced that

they would not seek a change of venue or venire.

Trant recalled that jury selection lasted eight days. Despite their hopes of reaching

a settlement with the State, defense counsel approached jury selection with the intention of

obtaining a fair and impartial jury. Counsel secured the services of a jury selection expert

to assist with evaluating all potential jurors before and during the selection process. They

researched the jurors, including looking into the jurors’ social media accounts. The trial

court permitted individual voir dire. Trant said “it was fairly evident early on” in the

process when they realized they would be able to seat a jury in Knoxville because they

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“didn’t get the number of challenges for cause that [they] hoped [they] might.” Similarly,

Trant stated they did not need to use all of their peremptory challenges. When questioned

by the post-conviction court as to whether the defense team was satisfied with the jury,

Trant replied, “I don’t know that we were satisfied. I think we were satisfied that we had

done the best we could under the circumstances. Whether it was a fair and impartial jury,

I don’t know.” Trant thought they carefully explored the potential jurors’ exposure to

pretrial publicity. He did not recall, though, whether jurors were asked about potential

racial undertones in the case. Trant said there was nothing he would have done differently

regarding jury selection.

Trant testified that he knew Judge Baumgartner personally as a friend. However,

they had fallen out of favor with one another by the time the Petitioner’s trial started. Trant

also knew Judge Baumgartner had a reputation for using illegal drugs throughout his career

as an attorney and judge, but Trant did not see any signs that Judge Baumgartner was under

the influence of drugs during the Petitioner’s trial.

Trant testified that he met with the Petitioner “dozens” of times during trial

preparation, and he described the Petitioner as “a smart guy . . . always engaged, intelligent,

a perfect gentleman, was not afraid to ask questions.” Trant saw no signs of intellectual

impairments, and Trant entertained no doubt about the Petitioner’s understanding of the

content of their discussions or the intent of counsel’s trial strategies. Trant updated the

Petitioner regularly about defense counsel’s work on the case.

Attorney Loretta Gene Cravens testified that she was employed by Eldridge’s law

firm and that she assisted the Petitioner’s defense team. Cravens was not appointed to

represent the Petitioner and, thus, was not compensated by the State for her work on the

case. She was primarily responsible for discovery management and observing the jury

during the trial. Cravens met with the Petitioner regularly. She found him to be intelligent,

and she did not notice any signs of intellectual disability. The Petitioner interacted well

with his attorneys and asked questions about his case. Cravens said that there were many

outbursts in the audience during the trial and that the jury would have heard the outbursts.

She also recalled an instance in which a member of the prosecution fainted during

testimony about the autopsy photographs. Defense counsel moved for a mistrial, but the

trial court denied the motion. Cravens did not recall anything to indicate Judge

Baumgartner was impaired during the trial.

Cravens remembered that the media coverage characterized the Petitioner as the

“ringleader” of the crimes. The defense team monitored the media coverage before trial

and maintained a media file containing numerous articles. Although they collected stories

from other jurisdictions, they focused their efforts on the Knoxville media. Their collection

contained reports related to the cases against the Petitioners’ codefendants as well,

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including numerous articles published in the spring of 2008 during Boyd’s federal trial.

The defense was aware of several Facebook group pages related to this case, and Cravens

monitored those pages to determine if any potential juror had joined any of the groups.

One potential juror who had joined was dismissed from the jury pool. Cravens was not

involved in the decision to try the case in Knox County. She recalled that the media was

present in the courtroom during every hearing in this case and that Court TV live-streamed

Cobbins’s trial.

Cravens recalled that the Knoxville News Sentinel discontinued the public comments

to the articles about the case on the newspaper’s website because some of the comments

were threatening toward the people involved. Other media websites allowed online

comments to continue. Eldridge, his children, and Trant received threats. Although

Cravens was not singled out, she was distressed by the threats in general. However, the

threats did not affect defense counsel’s tactical decisions. As a result of the threats, the

defense team instituted security measures during its representation of the Petitioner, such

as logging threatening telephone calls, avoiding making comments to the media, and

traveling in groups to the courthouse. The courthouse also instituted some “significant”

additional security procedures to protect the defense team. Specifically, additional security

and plain-clothed law enforcement personnel were in the courtroom. The trial judge also

issued directives each morning before trial, reminding everyone to maintain proper

decorum.

Cravens testified about the racial tensions surrounding the case. The defense team

knew that in 2008, the population of Knox County was approximately 430,000 with a

composition of about 87.7 percent white people and 8.9 percent black people. Cravens

specifically remembered a rally taking place sometime around May 2007 by a white

supremacist group that was organized in direct response to the case. She also testified

about the extensive misconception of the facts of this case that were spread by the media

and throughout the community.

Cravens testified that she participated in part of the eight-day jury selection and that

defense counsel was very methodical during the process. Counsel relied heavily upon their

jury selection consultant. The consultant reviewed the extensive jury questionnaires and

rated potential jurors based upon her own research and system. Cravens attended a strategy

meeting between counsel and the jury consultant the weekend before the start of trial.

According to Cravens, most of the potential jurors had heard something about the case.

Moreover, jurors were questioned about the racial dynamics of the case.

Attorney Stephen Ross Johnson represented codefendant Thomas. Johnson testified

that the University of Tennessee played a substantial role in the Knoxville community and

that any story that related to the college certainly attracted the media’s attention. Ms.

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Christian was a student at the University. Johnson recalled that the media coverage of the

killings was “pervasive and intrusive and constant . . . in a way [he had] never seen before

in . . . Knoxville” over the previous twenty years he had lived there. Johnson described the

media coverage of this case as “atypical” and said the coverage increased when the court

hearings began in 2008 and early 2009. According to Johnson, the media “was pretty

aggressive” in its attempts to interview the victims’ family members for their reactions

after court hearings. Johnson opined that, unlike at the time of this hearing in 2019, social

media such as Facebook, Twitter, Instagram, and Snapchat were not as pervasive as in

2009. Thus, the media outlets would “drive traffic to their websites” by allowing online

comments to their articles. Johnson believed that most of the comments were posted

anonymously by local readers. The case was a constant topic of conversation in the

community during that time.

According to Johnson, racial and socioeconomic factors played a part in the trials

and were something defense counsel had to contemplate, especially during jury selection.

Johnson recalled that “a march or a rally [in 2007] by the Ku Klux Klan down Main Street”

occurred and that vigils for the victims were held at the University.

Jessica Thomson served as the paralegal supervisor and data systems manager for

the Office of the Post-Conviction Defender and assisted counsel in preparing for the

evidentiary hearing. She received a report from News Data Services (NDS), a media

monitoring corporation, that contained reports about this case on local and regional

television news broadcasts in Tennessee from January 2007 until October 2009. This

case was mentioned 3,572 times on television news broadcasts in the state during that time

period, with 3,111 reports occurring on Knoxville news stations. The NDS report also

indicated that the case was mentioned 842 times on news broadcasts in Knoxville from

January 2007 through March 2008 compared to 71 times in Nashville and 20 times in

Chattanooga. From June 2007 until September 2008, the case was mentioned 696 times

on television in Knoxville compared to 3 times in Chattanooga. On April 16, 2008, during

the time of Boyd’s trial, the case was mentioned 40 times on news broadcasts in Knoxville

and reached an estimated three million viewers. From November 2008 through August

2009, the case was mentioned 417 times on news stations in Knoxville and zero times in

Chattanooga. During Cobbins’s trial in August 2009, the case was mentioned 478 times

in Knoxville and 15 times in Chattanooga. The day Cobbins testified, there were 14

television news reports in Knoxville with an estimated 408,000 viewers while at the same

time there was one report in Chattanooga with an estimated 25,000 viewers. When the

verdict was announced in Cobbins’s trial, the news stations in Knoxville reported on the

case 98 times with an estimated three million viewers while there were 5 broadcasts in

Chattanooga with an estimated 130,000 viewers.

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The NDS report indicated that the Petitioner was referred to by the Knoxville news

media as the alleged “ringleader” 76 times. The Chattanooga news twice referred to him

as such. The Knoxville news stations also reported 53 times about testimony during the

Boyd and Cobbins trials that characterized the Petitioner as being more culpable than his

codefendants. They referenced the statements of the Petitioner’s codefendants to the police

78 times. The Chattanooga news stations did not air stories about either of those details.

The Knoxville stations aired stories about the Petitioner’s prior convictions 63 times. None

were aired in Chattanooga. During 37 broadcasts, the Knoxville stations aired stories

featuring expressions of frustration from the victims’ families about the sentence of life

without the possibility of parole imposed by the jury in the Cobbins trial and statements

suggesting the Petitioner deserved the death penalty. An estimated 12 million viewers saw

those 300 plus broadcasts from January 2007 through October 2009. Only an estimated

60,000 viewers in Chattanooga saw similar broadcasts.

Thomson also surveyed articles from the Knoxville News Sentinel and the

Chattanooga Times Free Press, which referenced this case during the same period of time

from January 2007 until October 2009. There were 322 articles in the Knoxville News

Sentinel with 100 of those appearing on the front page. There were 24 articles in the

Chattanooga Times Free Press with none appearing on the front page. Cobbins’s trial was

mentioned 28 times in the Knoxville News Sentinel, with many articles appearing on the

front page, and 4 times in the Chattanooga Times Free Press, with no articles appearing

on the front page.

Thomson identified a front-page article from the Knoxville News Sentinel that was

published on August 27, 2009, titled “Life Without Parole. Jury Rejects Death Penalty for

Letalvis Cobbins.” The article was accompanied by a picture of the father of one of the

victims with a caption reading, “He Deserves to Die.” Thomson also identified other

articles from the Knoxville News Sentinel during that time period which reported on the

Petitioner’s prior conviction for carjacking, a prayer vigil for the victims held at the

University, and the race and class differences between the defendants and the victims.

Other articles commented about the difficulty jurors had in avoiding pretrial publicity in

Boyd’s trial and how potential jurors in the Petitioner’s trial “could simply lie about a lack

of opinion on [his] guilt or innocence.” Thomson also identified an article printed during

Cobbins’s trial in which his defense attorney described the Petitioner as the “mastermind.”

Another article published before the Petitioner’s trial quoted someone as saying the

Petitioner’s jury should come from Knoxville because “[t]hose people from outside Knox

County don’t know the whole story.” Thomson also was able to view on the Knoxville

News Sentinel website the unredacted statements the defendants gave to the police, which

were posted in August 2009.

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On cross-examination, Thomson acknowledged that the estimates of viewership of

the various news broadcasts included areas surrounding Knox County. She also

acknowledged that the estimates did not necessarily include “unique viewers.” As to the

online print media, Thomson agreed that it could have been viewed by people all over the

world. Thomson stated that the media coverage declined from the date of the crimes until

the beginning of the Petitioner’s trial; however, it “ebbed and flowed” as well. According

to Thomson, the number of television news broadcasts in Knoxville on certain dates

between January 2007 and October 2009 averaged between 20 and 40. Thomson did not

search the print media to determine how many times the Petitioner was referred to as the

“ringleader.” According to census data introduced during Thomson’s testimony, Knox

County had a population of approximately 430,000 in 2008, and Hamilton County had a

population of about 308,000 in 2010.

The State did not call any witnesses during the evidentiary hearing. It only

introduced into evidence the questionnaires and the transcript of the individual voir dire

for the twelve jurors and the two alternates who sat on the trial.

At the conclusion of the parties’ proof, the post-conviction court questioned

Assistant District Attorney General Leland Price about how the jury selection process was

conducted in this case. Price stated that several weeks before trial, “several hundred”

potential jurors were summoned to appear. Some of those individuals were immediately

excused due to hardships or criminal records. Judge Baumgartner then distributed written

questionnaires to the remaining jurors to fill out. The creation of the questionnaires was a

collaborative effort between both parties and the judge. Copies of the completed

questionnaires were then given to the attorneys for both parties. The judge and both parties

agreed that some of the prospective jurors should not be invited back to participate in

individual voir dire because the responses on their questionnaires reflected unwavering

views one way or the other about the imposition of the death penalty and, possibly as well,

their opinion about the Petitioner’s guilt. Those that were invited back returned to the

courthouse about a week before trial.

The potential jurors were separated into groups for individual voir dire. Price

recounted the “sort of informal” process that occurred: During questioning, the judge, the

attorneys, and each prospective juror sat around a table. The judge first questioned each

juror about his or her exposure to pretrial publicity and views on the death penalty. The

judge also may have questioned the juror about “something that jumped out from their

questionnaire.” After the judge concluded his inquiry, the attorneys took turns questioning

each juror. The attorneys followed-up on the issues of pretrial exposure to publicity and

views on the death penalty. When all of the questioning was completed, Judge

Baumgartner made the initial decision, based on hardships or responses to questions, as to

whether a potential juror would be included in the final pool and participate in the group

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voir dire that occurred before trial. In addition, the attorneys for both sides also agreed that

some of the potential jurors should otherwise be excused from the final pool based on their

responses to questions. Neither party used their peremptory challenges during the

individual voir dire process. At that time, jurors were only challenged and/or excused for

cause. Price stated that the final pool consisted of more than fifty jurors. The individual

voir dire took eight days, and the final group voir dire occurred in one day immediately

before the beginning of trial.

Issues

For the sake of clarity, we have reorganized the order of the issues presented in the

Petitioner’s post-conviction brief.

I. Post-Conviction Court’s Management of Post-Conviction Proceeding

First, the Petitioner raises the following issue regarding the post-conviction court’s

handling of the post-conviction proceeding: “The post-conviction trial court violated

Article I, §§ 8 and 16 of the Tennessee Constitution and abused its discretion when it denied

[the Petitioner] the expert funds, documents, and time needed to investigate, prepare, and

present specified claims.” Specifically, the Petitioner argues that the post-conviction court

abused its discretion by refusing to authorize funds for the expert services of Dr. Pamela

Auble, Dr. James Merikangas, Dr. Bryan Edelman, and Mr. Justin Levinson. He also

contends that the post-conviction court denied him access to certain witnesses and records

and did not afford him a sufficient amount of time to investigate and prepare for the

evidentiary hearing. Finally, the Petitioner argues that the post-conviction court deprived

him of his “right to due process and freedom from cruel and unusual punishment when it

refused to hear claims that his death sentence is constitutionally invalid and requires

resentencing” with respect to the anticipated testimony of Thomas at Boyd’s then-

upcoming trial.

Background

In order to adequately address this issue, we will outline the procedural history of

the Petitioner’s post-conviction proceeding. We also have taken the liberty to quote

extensively from several of the post-conviction court’s orders in order to give context to

the bases for the Petitioner’s arguments.

The Petitioner filed his pro se petition on December 4, 2017. That petition was

prepared with the assistance of the Office of the Post-Conviction Defender (“OPCD”).

That office was eventually appointed as counsel of record on March 1, 2018. The order of

appointment granted counsel thirty days to file any amendments to the pro se petition, and

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the case was originally set for an evidentiary hearing on June 20, 2018. Almost

immediately after their official appointment, counsel filed a motion to reschedule the initial

deadlines imposed.

On May 10, 2018, the post-conviction court entered a new scheduling order which

granted the Petitioner sixty additional days to file an amended petition. The court noted

therein that “although the Post-Conviction Defender’s Office was not appointed to

represent Petitioner until March 1, 2018, attorneys from the Office assisted Petitioner in

drafting his pro se petition for relief. Therefore, Petitioner’s attorneys should be familiar

enough with the case to file an amended petition within the time allowed.” Soon thereafter,

on May 16, 2018, counsel moved the court to extend the filing deadline for the amended

petition. Counsel acknowledged in the motion that they had “[p]rior to and since

appointment . . . diligently requested and reviewed records.” Citing the one-year deadline

imposed by the Post-Conviction Procedure Act for final disposition of petitions in capital

cases, the post-conviction court granted the Petitioner until September 4, 2018, to file his

amended petition. See Tenn. Code Ann. § 40-30-111(d). In its order, the court summarized

the reasons offered by counsel for the requested extension: “Petitioner’s attorneys provide

a lengthy list of tasks they seek to undertake in their representation of Petitioner, including

reviewing the trial transcripts from Petitioner’s and codefendants’ trials, travel to various

cities in which Petitioner has lived, conferring with experts, and reviewing discovery.”

Noting that counsel did not request a specific deadline to file an amended petition, the court

offered the following comments in support of its ruling:

The undersigned judge, having presided over numerous death penalty

trials and post-conviction proceedings over the past three decades, is well

aware of the complex nature of death penalty cases. This Court will not

“rush” this case to a conclusion so as to violate the parties’ due process rights.

The Court will balance the interests of all involved parties and the prevailing

statutes, case law, and Supreme Court rules governing post-conviction cases

in setting a briefing and hearing schedule which is reasonable. The Court is

the ultimate arbiter of what is necessary to ensure a full and fair hearing in

this case, not the parties.

Counsel for the Petitioner appears to confuse the notice requirements

of the petition with trial preparation. In all cases, the pleadings do not limit

the attorneys’ ability to prepare for the case up to the final hearing date. This

Court certainly intends to allow the parties every opportunity to prepare for

the final hearing in this death penalty post-conviction matter.

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Counsel filed the Petitioner’s amended petition on September 4, 2018, and the State filed

its response thereto on October 4, 2018. Supplements to the amended petition also were

filed on October 18, 2018, and December 17, 2018.

In the meantime, on July 2, 2018, the post-conviction court granted the Petitioner

funding for investigative services. The Petitioner subsequently filed separate motions on

July 23, 2018, seeking funding for the services of four experts: Dr. James Lipman, a

pharmacologist, to evaluate the Petitioner’s history of substance abuse; Dr. Pamela Auble,

a neuropsychologist, to examine the Petitioner for evidence of brain dysfunction; Dr. Bryan

Edelman, a social psychologist, to create a media analysis of the pretrial publicity; and Mr.

Justin Levinson, a law professor, to review the extensive pretrial publicity for racial bias.

The court held an ex parte hearing on those motions and subsequently issued two

orders on August 2, 2018, explaining the reasons for its rulings. The court acknowledged

its obligations regarding the authorization of funding for experts in the Petitioner’s capital

post-conviction case. See Tenn. Sup. Ct. R. 13, § 5. The court granted, in part, funding

for Dr. Lipman. The court denied specific funding for Dr. Edelman and Mr. Levinson but

authorized separate funding for “a law student, paralegal, or other qualified person to aid

Petitioner’s counsel in researching, organizing, and presenting issues related to the pretrial

publicity” in the case. The Petitioner also moved the post-conviction court to fund a

ballistics expert, but the request was denied. Finding that the Petitioner failed to advance

a particularized need, the court denied funding for Dr. Auble but gave the Petitioner an

opportunity to file a renewed motion. The Petitioner filed his renewed motion on

September 4, 2018, which the court denied after finding that the Petitioner again failed to

show a particularized need for Dr. Auble’s services. Another “supplemental” motion

regarding funding for Dr. Auble also was subsequently denied.

Following a status hearing on October 3, 2018, the post-conviction court issued a

“Case Management and Scheduling Order” on October 8, 2018, and set a hearing date for

January 28, 2019. The court noted that the parties had indicated during the status hearing

that neither anticipated filing any additional motions, but the court set a deadline for any

such filings for December 17, 2018. The court also set deadlines for the parties to disclose

any experts they intended to call as witnesses.

On October 18, 2018, the Petitioner filed renewed motions seeking funding for Dr.

Edelman and the ballistic expert, both of which were denied by the court. As to Dr.

Edelman, the court reiterated its finding that Dr. Edelman “would not substantially assist

the Court in resolving the[] weighty issues” surrounding pretrial publicity and jury

selection. Also on October 18, 2018, the Petitioner filed a motion to continue the hearing

date set for January 28, 2019, which the court denied as well. The court explained:

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The Court finds the assertion that Counsel cannot be ready to provide

effective representation at a hearing to begin January 28, 2019, to be not

credible. A reading of the 159 page Amended Petition filed on September 4,

2018, and the 31 page Supplemental Petition filed on October 18, 2018,

clearly shows how conversant the two (2) very capable Counsel and their

staff from the Office of Post-Conviction Defender are with this case. Further

detailed and lengthy filings related to SCR 13, Sec. 5 proceedings further

show their thorough knowledge of the issues and facts in this case.

Administration of court cases is Judge-controlled not lawyer-

controlled. The Court has used its best judgment to strike a balance between

moving this case forward and yet be assured that the parties can fully and

fairly present their case.

There is probably not a lawyer in any significant case, criminal or

civil, who will say that he/she doesn’t need or want more time. This Court,

however, has every confidence that Petitioner’s Counsel are well capable and

will be able to competently present their client’s claims at the hearing

scheduled for January 28, 2019. The Court has considered the issues in this

case and the contention of the Petitioner as to his need to produce witnesses

and other evidence to prove his assertions. The Court is of the opinion that

the time available is well sufficient.

On December 17, 2018, the Petitioner filed a motion seeking subpoenas for the

release of medical and other historical records of some of his family members. He also

filed a motion for funding for another expert, Dr. James Merikangas, a neurologist and

psychiatrist, to evaluate the Petitioner’s mental health. In addition, the Petitioner filed a

motion to compel the production of numerous records related to Judge Baumgartner from

January 2007 to October 2009. Also on December 17, 2018, the Petitioner filed another

motion to continue the evidentiary hearing. The court held an ex parte hearing on all of

those motions on December 21, 2018. On December 31, 2018, the court denied each one

by separate order.

As to the request for subpoenas related to the information about the Petitioner’s

family members, the court held that “[t]he motion . . . does not even suggest how the sought

records might paint a bleaker (or more detailed) picture of [the Petitioner’s] childhood than

shown at trial” which “clearly showed . . . [it] to be one of violence, abuse, and neglect.”

The court found that the motion for funding for Dr. Merikangas did not sufficiently satisfy

the threshold requirements of Rule 13. Acknowledging that Judge Baumgartner’s opioid

addiction during the several trials in this case was well-documented, the post-conviction

court held that the issue as it related to Judge Baumgartner’s alleged impairment during the

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Petitioner’s trial had previously been determined and, thus, there was no need to order the

release of any records related thereto. See Letalvis Cobbins, et al., No. E2012-00448-SC-

R10-DD (order); Davidson, 509 S.W.3d at 227-29.

In a separate thirteen-page order, the post-conviction court also denied the

Petitioner’s request for a continuance. The Petitioner offered, as one reason in support of

his request, the anticipated testimony of Thomas at Boyd’s then-upcoming trial. As

discussed below, the post-conviction court erroneously concluded that information was not

relevant in the post-conviction proceeding. As to the other reasons offered, counsel

asserted that “these post-conviction proceedings have been moving far faster than nearly

all other capital post-conviction proceedings and that the issues associated with this case

are more complex than the ‘average’ capital post-conviction case” and that “extensive

investigation still needed to be undertaken, including the interview of over 100 potential

witnesses.” The court recited its duty to resolve the proceeding in a timely manner and

noted counsel’s insistence that “the time frames established by statute and court rule are

merely directory, and should be ignored.” The court stated:

Were this Court to impose a lengthy continuance, the Court would not be in

substantial compliance with the provisions of Rule 28 and section 40-30-111.

The Court acknowledges its duty to afford the Petitioner the

opportunity to present his claims in a meaningful time and manner.

However, in so doing this Court must remain mindful of the time frames

established by the General Assembly and the Tennessee Supreme Court

regardless of how other trial courts have treated such provisions in the past

or may do so in the future. This Court takes the one-year provision of section

40-30-111 seriously in scheduling matters, and that provision figures

significantly in this Court’s resolution of the current continuance motion.

The court then ruled:

The Court notes post-conviction counsel’s arguments concerning

their other grounds for a continuance largely repeated those raised in earlier

filings and at the October 2018 status conference. Those arguments and the

Court’s analysis regarding those arguments shall not be repeated here.

However, the Court notes that at the hearing on the continuance motion, Mr.

Watkins and Mr. Howell asserted that the OPCD needed more time to

interview over 100 potential witnesses and examine the discovery in this

case. Despite raising these assertions, counsel presented no evidence (in the

form of witness testimony, affidavits, or otherwise) to support these

assertions. As the Court of Criminal Appeals stated in Harris,

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It is undisputed that a continuance may be granted for the

purpose of securing the presence of identifiable witnesses if the

witnesses’ testimony is material and admissible. However, in

this case, the appellant sought a continuance in order to gather

information which, at the time of the motion, was largely

unknown and of entirely speculative value.

[Harris v. State, 947 S.W.2d 156, 174 (Tenn. Crim. App. 1996)]. Counsel

could have filed an affidavit or stated in their continuance motion the types

of witnesses to be interviewed and the information they could have been

expected to provide. Counsel’s providing the Court with only the most

general of information regarding the potential witnesses to be interviewed

and investigation to be completed can only lead the Court to speculate as to

whether the potential witnesses and evidence the OPCD hope to uncover

would benefit the petitioner’s case, assuming such witnesses and evidence

are available at all. Just who these witnesses might be and how they might

contribute to Petitioner’s case is not clear to this Court.

Petitioner’s counsel have officially had this case since early March

2018 and unofficially since December 2017, when they wrote the 24-page

petition which initiated this case. The undersigned judge is very familiar

with this case from his significant involvement in 2012 and 2013. It seems

not credible that two competent lawyers with the resources of their office and

those provided by the Court could not be ready for the scheduled hearing

given their appointment over ten months before the hearing. Further delay

of these proceedings is not warranted, nor is such delay necessary.

....

The Court is confident that beginning the trial as scheduled in late

January will give post-conviction counsel an opportunity to present [the

Petitioner’s] substantial claims in a reasonable time and manner. Petitioner’s

attorneys have not presented this Court with information to suggest that the

hearing will be unfair to [the Petitioner] if it occurs as scheduled.

Accordingly, Petitioner’s motion for a continuance is DENIED.

In the meantime, on December 28, 2018, the Petitioner filed an application in this

court for an extraordinary appeal. See Tenn. R. App. P. 10. The Petitioner sought review

of the post-conviction court’s “denial of sufficient time and resources necessary to

effectuate due process and a full and fair hearing” on his petition. Specifically, the

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Petitioner sought interlocutory review of the post-conviction court’s scheduling orders,

orders on the Petitioner’s various requests for expert funding, and orders related to his

requests for disclosure of records related to Judge Baumgartner and the Petitioner’s family.

Finding that the post-conviction court had not “‘so far departed from the accepted and usual

course of judicial proceedings as to require immediate review,’” this court denied the

Petitioner’s application on January 17, 2019. Lemaricus Davidson v. State, No. E2018-

02294-CCA-R10-PD (Tenn. Crim. App. at Knoxville, Jan. 17, 2019) (order) (citing Tenn.

R. App. P. 10(a)).

On January 3, 2019, the Petitioner renewed his request for funding for Dr.

Merikangas. The court denied that motion on January 9, 2019. On January 7, 2019, the

Petitioner filed a motion to bifurcate the evidentiary hearing due to Dr. Lipman’s

unavailability to appear as scheduled. The court denied the request to bifurcate the hearing,

but offered the Petitioner several alternative means by which to introduce Dr. Lipman’s

testimony at the scheduled hearing. On January 9, 2019, the Petitioner filed petitions for

writs of habeas corpus ad testificandum to secure the presence of codefendants Cobbins,

Thomas, and Coleman at the evidentiary hearing as witnesses. The court denied those

requests on January 10, 2019.

Both parties filed prehearing briefs. The Petitioner filed his twenty-one-page brief

on January 18, 2019, and the State filed its brief on January 24, 2019. On the day of the

scheduled hearing, January 28, 2019, counsel filed “Petitioner’s Notice of Lack of

Readiness for Evidentiary Hearing and Denial of Adequately Prepared Counsel.” Counsel

asserted that “[t]he amount of unfinished record collection, record review, and

investigation render undersigned counsel unable to make an offer of proof of evidence that

could be presented with the benefit of additional time and resources to perform the

numerous tasks necessary to effectuate Petitioner’s rights to due process and a full and fair

hearing.” The trial court held the evidentiary hearing, as scheduled, on January 28 and 29,

2019.

A. Continuance

The Post-Conviction Procedure Act governs the filing, processing, hearing, and

disposition of petitions challenging the abridgment of any state or federal constitutional

right. Tenn. Code Ann. §§ 40-30-101, et seq. In addition to time limits imposed upon a

petitioner, the Act mandates that the post-conviction court proceed under certain deadlines.

See Tenn. Code Ann. § 40-30-102. After the petition and answer are filed, the post-

conviction must enter an order within thirty days scheduling the evidentiary hearing. Tenn.

Code Ann. § 40-30-109(a). The hearing must occur within four months of the post-

conviction court’s scheduling order. Tenn. Code Ann. § 40-30-109(a); Tenn. Sup. Ct. R.

28, § 8(B). That “deadline shall not be extended by agreement, and the deadline may be

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extended only by order of the court based upon a finding that unforeseeable circumstances

render a continuance a manifest necessity. An extension shall not exceed sixty (60) days.”

Tenn. Crim. App. § 40-30-109(a); Tenn. Sup. Ct. R. 28, § 8(B). The Act further directs

that “[t]he court shall rule within sixty (60) days of conclusion of proof.” Tenn. Code Ann.

§ 40-30-111(d). That deadline also “shall not be extended by agreement, and the deadline

may be extended only by order of the court based upon a finding that unforeseeable

circumstances render a continuance a manifest necessity. An extension shall not exceed

thirty (30) days.” Tenn. Code Ann. § 40-30-111(d). Finally, as is specifically relevant to

the Petitioner’s issue in this appeal, and as reiterated by the post-conviction court

throughout its rulings, “[f]inal disposition of a capital case must be made within one (1)

year of the filing of the petition.” Id.

A petitioner is entitled to an evidentiary hearing to prove his or her allegations of

fact by clear and convincing evidence. Tenn. Code Ann. §§ 40-30-109, -110. The United

States Supreme Court has held that the opportunity to be heard “at a meaningful time and

in a meaningful manner” is a requirement of due process accorded to litigants. Mathews

v. Eldridge, 424 U.S. 319, 333 (1976) (quoting Armstrong v. Manzo, 380 U.S. 545, 552

(1965)). Similarly, the Tennessee Supreme Court has held that the requirement of a “full

and fair hearing” is satisfied when “a petitioner is given the opportunity to present proof

and argument on the petition for post-conviction relief.” House v. State, 911 S.W.2d 705,

714 (Tenn. 1995).

The decision to grant or deny a continuance rests within the sound discretion of the

trial court, and reviewing courts will not question that decision absent a showing of abuse

of discretion. State v. Hester, 324 S.W.3d 1, 35 (2010). Our supreme court recently

emphasized that the abuse of discretion standard of review is a “less rigorous review” of a

trial court’s decision and does not permit this court to “second-guess” the trial court or

substitute its judgment for that of the trial court. State v. McCaleb, 582 S.W.3d 179, 186

(Tenn. 2019). The supreme court further explained the standard of review:

Discretionary decisions must take the applicable law and the relevant

facts into account. An abuse of discretion occurs when a court strays beyond

the applicable legal standards or when it fails to properly consider the factors

customarily used to guide the particular discretionary decision. A court

abuses its discretion when it causes an injustice to the party challenging the

decision by (1) applying an incorrect legal standard, (2) reaching an illogical

or unreasonable decision, or (3) basing its decision on a clearly erroneous

assessment of the evidence.

To avoid result-oriented decisions or seemingly irreconcilable

precedents, reviewing courts should review a [trial] court’s discretionary

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decision to determine (1) whether the factual basis for the decision is

properly supported by evidence in the record, (2) whether the [trial] court

properly identified and applied the most appropriate legal principles

applicable to the decision, and (3) whether the [trial] court’s decision was

within the range of acceptable alternative dispositions.

Id. (quoting Lee Med., Inc. v. Beecher, 312 S.W.3d 515, 524 (Tenn. 2010)). “Accordingly,

if the reviewing court determines that ‘reasonable minds can disagree with the propriety of

the decision,’ the decision should be affirmed.” Id. (citation omitted). Moreover, a

petitioner seeking due process relief from the denial of a continuance bears the burden of

establishing actual prejudice by demonstrating that the result of the proceeding would have

been different had the request for a continuance been granted. State v. Odom, 137 S.W.3d

572, 589 (Tenn. 2004).

The Petitioner presents a general theme that the post-conviction court’s timeline for

the post-conviction proceeding was unreasonable. He complains that he had inadequate

time to investigate and present his claims for relief. As he correctly observes, post-

conviction “counsel shall be required to review the pro se petition, file an amended petition

asserting other claims which petitioner arguably has or a written notice that no amended

petition will be filed, interview relevant witnesses, including petitioner and prior counsel,

and diligently investigate and present all reasonable claims.” Tenn. Sup. Ct. R. 28, §

6(C)(2).

As noted above, counsel assisted the Petitioner in the filing of his original pro se

petition on December 4, 2017. That form petition checked-off typical grounds for post-

conviction relief, such as ineffective assistance of counsel, and summarily highlighted

counsel’s “failure to pursue a change of venue due to extensive and highly prejudicial

pretrial coverage of the case in the media.” As recounted above, the post-conviction court

granted the Petitioner at least two extensions of time to amend his petition and then

permitted him to twice supplement that amendment. The amended petition, filed

approximately nine months after the filing of the pro se petition, was one hundred fifty-six

pages with almost fifty pages dedicated to issues surrounding pretrial publicity and jury

selection. The first supplement, filed just over a month later, was thirty pages and discussed

primarily the issues related to pretrial publicity and Thomas’s anticipated testimony at

Boyd’s then-upcoming trial. The second supplement, filed one month before the

evidentiary hearing, focused on an issue related to Judge Baumgartner. The Petitioner also

filed a twenty-one-page prehearing brief. Again, the evidentiary hearing was originally

scheduled for June 20, 2018, but was ultimately continued until January 28, 2019. As noted

above, on the day of the hearing, the Petitioner filed a notice of “lack of readiness.” The

post-conviction court did not continue the hearing again but made the following comments

in its final order regarding counsel’s notice:

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Counsel have failed on their motion to continue to bring to the Court’s

attention any specific witnesses it has failed to interview or any missing

witness that might have any information about any valid claims in this case.

Mere vagaries and speculation are insufficient to support a continuance. At

no time did Counsel cite any information from interviews with the three (3)

trial counsel, the mitigation specialist who testified at trial, the psychiatrist

who testified at trial, or the neuropsychiatrist who examined the Petitioner

prior to the 2009 trial. There is no indication that these participants in the

trial preparation in 2008-09 were hostile, refused to be interviewed, or were

unavailable for interviews.

If there were voids in trial counsel preparation in 2008-09 which

would open the door for further expert testimony it was not shown to the

Court.

....

As to the continuance, the Court would have granted a continuance if

there had been any showing to the Court that additional time was necessary

to proceed on a substantive claim. After at least 43 weeks Counsel did not

make such a showing. They could only present the Court with speculation

and an expressed need to proceed on an exploratory investigation with no

reasonable boundary and little relationship to the apparent real issues in the

case. The motion to continue was appropriately denied and the Court is

convinced that Petitioner’s Counsel were able to well present proof at the

hearing focused on the substantive issues in this case.

The extensive prehearing history of this proceeding has been outlined above. The

post-conviction court cited to the relevant authority in support of, and explained in detail

the reasons for, denying the Petitioner’s requests for continuances. Nothing in the record

demonstrates that the post-conviction court abused its discretion. The length of the

amended petition, and the supplements thereto, alone demonstrate that counsel had ample

time to prepare their case. The Petitioner makes a blanket argument in his appellate brief

that because

post-conviction counsel failed to review or collect numerous documents

(including those pertaining to his family members, his non-correctional

medical history, his co-defendants’ trial transcripts and technical records, his

housing in juvenile facilities, his trial counsel’s file, law enforcement

investigative files and collected physical evidence, and the State’s post-

- 26 -

conviction discovery) and failed to interview numerous witnesses (including

family members, friends, neighbors, teachers, law enforcement agents, and

social service providers), [the Petitioner] cannot illustrate the prejudice

caused by the post-conviction court’s denial of time and access to records.

The post-conviction court granted the Petitioner funding for investigative services

on July 2, 2018, almost seven months before the evidentiary hearing occurred. In his brief,

the Petitioner contends that the post-conviction court erred by denying his request, which

he filed on December 17, 2018, just one month before the hearing, seeking subpoenas for

the medial and historical records of his family members. As the State correctly notes, a

petitioner may subpoena witnesses to testify at the evidentiary hearing. Tenn. Sup. Ct. R.

28, § 8(C)(3). Moreover, those witnesses may be subject to subpoenas duces tecum. See

Delvin Allison v. State, No. W2017-00707-CCA-R3-PC, 2018 WL 2338219, at *5 (Tenn.

Crim. App. at Jackson, May 23, 2018). Regardless, the Petitioner does not explain why he

was unable to request any of that information in those intervening months. Counsel

obviously met with the Petitioner at least no later than December 17, 2017, and presumably

was familiar with the courts’ opinions on direct appeal. Thus, post-conviction counsel

could, or should, have learned almost immediately about the Petitioner’s family. Indeed,

in their amended petition filed on September 4, 2018, counsel alluded to the necessity for

defense counsel in a capital case to generally investigate a defendant’s background. Other

than counsel’s bare assertion that the post-conviction court denied them time to investigate

the Petitioner’s family’s background, the record does not support counsel’s claim. In their

amended petition and supplements thereto, counsel did not reference any specific evidence

about the Petitioner’s family that trial counsel was unable to reveal. Moreover, the

Petitioner did not call any of his family members as witnesses at the evidentiary hearing.

The record simply does not support his claim on appeal that the trial court abused its

discretion by denying, one month before the hearing, his motion for those subpoenas.

The Petitioner also argues on appeal that the post-conviction court erred by denying

a similar request he made, also just one month before the hearing, for the production of

records related to Judge Baumgartner. Evidence of Judge Baumgartner’s addictions is

referenced elsewhere in this opinion. As the post-conviction court properly ruled in

denying the Petitioner’s request for those records, any issue as it related to Judge

Baumgartner’s alleged impairment during the Petitioner’s trial had previously been

determined and, thus, there was no need to order the release of any records related thereto.

See Letalvis Cobbins, et al., No. E2012-00448-SC-R10-DD (order); Davidson, 509 S.W.3d

at 227-29. The court, however, afforded the Petitioner the opportunity to present

proof of any misconduct by the trial judge during trial, not previously shown,

that should have been offered by trial counsel in their motion for new trial.

This would include misstatements by the judge, failure to respond,

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prejudicial statements, lapses of memory, slurred speech, confusion, sleeping

on the bench, and failure to properly control the courtroom.

However, neither trial attorney testified during the hearing that he noticed any such

misconduct. This court thus finds the post-conviction court did not abuse its discretion by

denying the Petitioner access to the contested records in that respect.

The fact that counsel may have chosen to assign certain grounds for post-conviction

relief higher priority than others does not equate with the denial of due process. As the

post-conviction court suggested, it was only responsible for supervising the timely

resolution of the petition, not overseeing the management of counsel’s case. More than

one year after the filing of the original petition and approximately four months after the

filing of the amended petition, the proof at the evidentiary hearing focused almost primarily

on two particular grounds for relief. Aside from his argument regarding the post-

conviction court’s management of the post-conviction proceeding, the Petitioner similarly

dedicates the crux of his appellate brief to the pretrial publicity and jury selection issues.

This court finds it highly unlikely, given the procedural history, that counsel did not have

ample time to investigate and litigate all of their alleged grounds for relief. The post-

conviction record in this appeal is large and includes extensive pre- and post-hearing filings

by the Petitioner’s attorneys. Despite its size, the record otherwise clearly demonstrates

that the Petitioner was afforded ample opportunity to present and argue his alleged claims

for relief within a meaningful time and in a meaningful manner. See Mathews, 424 U.S. at

333; House, 911 S.W.2d at 711. The Petitioner simply has failed to demonstrate to this

court how he was denied a “full and fair” hearing as required by the law. We conclude that

the post-conviction court did not abuse its discretion by denying the Petitioner’s request

for another continuance on the date of the scheduled hearing.

B. Expert Services

Tennessee Supreme Court Rule 13 governs funding for expert services for an

indigent petitioner in a capital post-conviction proceeding. Tenn. Sup. Ct. R. 13, § 5.

Pursuant to that Rule, the post-conviction court has the “discretion [to] determine [whether]

investigative or expert services or other similar services are necessary to ensure that the

constitutional rights of the defendant are properly protected. Tenn. Sup. Ct. R. 13, §

5(a)(1). A petitioner must satisfy certain “threshold requirements” in the motion seeking

the funding. Tenn. Sup. Ct. R. 13, § 5(b). If the post-conviction court is satisfied that those

requirements have been met, it must then conduct an ex parte hearing to determine if there

is a “particularized need” for the services. Tenn. Sup. Ct. R. 13, § 5(c)(1). “Particularized

need in the context of capital post-conviction proceedings is established when a petitioner

shows, by reference to the particular facts and circumstances of the petitioner’s case, that

the services are necessary to establish a ground for post-conviction relief and that the

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petitioner will be unable to establish that ground for post-conviction relief by other

available evidence.” Tenn. Sup. Ct. R. 13, § 5(c)(3) (citing Owens v. State, 908 S.W.2d

923, 928 (Tenn. 1995)). The Rule provides that a “particularized need” cannot be

established when a motion contains only:

(A) undeveloped or conclusory assertions that such services would be

beneficial;

(B) assertions establishing only the mere hope or suspicion that favorable

evidence may be obtained;

(C) information indicating that the requested services relate to factual issues

or matters within the province and understanding of the jury; or

(D) information indicating that the requested services fall within the

capability and expertise of appointed counsel.

Tenn. Sup. Ct. R. 13, § 5(c)(4). Because Rule 13 entrusts the decision of whether to grant

funding for services to the sound discretion of the post-conviction court, this court reviews

that decision under an abuse of discretion standard. Reid ex rel. Martiniano v. State, 396

S.W.3d 478, 517 (Tenn. 2013). That standard of review is detailed above. See McCaleb,

582 S.W.3d at 186.

a. Dr. Edelman and Mr. Levinson

The Petitioner sought the assistance of Dr. Edelman and Mr. Levinson in support of

their claim against trial counsel’s decision to seat a jury in Knox County. Dr. Edelman,

who lived in California, would have primarily researched, collected, and organized pretrial

media coverage about the case, given an opinion about the effect of such coverage on the

Knox County jury pool, and given an opinion about the efficacy of trial counsel’s voir dire

of the prospective jurors on the case’s publicity. Mr. Levinson, who lived in Hawaii, would

have given an opinion about how “implicit racial bias” might have affected the trial court

proceedings and how trial counsel might have been ineffective in their voir dire of the

potential jurors.

On appeal, the Petitioner asserts that he “established his need for these experts by

supplying the post-conviction court with detailed information regarding the pretrial

publicity in this case, with the empirical science underlying the experts’ fields, and with

how their specialized knowledge – outside the purview of laypeople – materially assisted

in establishing post-conviction claims.” As he states, “[H]e devoted over ten pages of one

- 29 -

motion to the extensive and pretrial publicity in this case, the surrounding community

outrage and racist response, and his jury’s exposure to the media coverage.”

The post-conviction court explained its reasons for denying specific funding for Dr.

Edelman and Mr. Levinson as follows:

The Court disagrees with Petitioner’s assertions as to the necessity of

these proposed experts. The Court is aware that issues related to the

extensive pretrial publicity in this case, the racial overtones of the case, and

the potential for juror bias all loom large in the current post-conviction

proceedings. The Court also recognizes the Petitioner should be given the

opportunity to present these issues as this case progresses. However, the

Court does not believe these proposed experts “are necessary to establish a

ground for post-conviction relief and that the petitioner will be unable to

establish that ground for post-conviction relief by other available evidence.”

Tenn. Sup. Ct. R. 13, § 5(c)(3).

In this Court’s view, the things necessary to establish the Petitioner’s

claims related to the publicity and jury selection issues are evidence of the

publicity in this case and the relevant case law examining the issues

identified in Petitioner’s motion[s]. Regarding proof of pretrial publicity,

this Court has no doubt that locating, organizing, and presenting evidence of

the overwhelming media publicity and other Internet “noise” this case

generated before Petitioner’s trial will be a significant task. However,

Petitioner does not need an “expert” to perform this task, let alone one well

beyond the 150-mile radius established by Supreme Court Rule 13.

Regarding the relevant case law, counsel for the Petitioner have

identified in these motions several of the leading cases related to juror bias,

pretrial publicity, and presumed juror prejudice. These cases will guide the

Court in its resolution of Petitioner’s claims for relief. The Court is also

confident counsel will continue to provide the Court with relevant case law

and other authority as this case continues. Finally, the Court notes it is well-

qualified to address the Petitioner’s stated issues based solely on the evidence

Petitioner will present to the Court and the relevant case law. As stated at

the July 26 hearing, the undersigned judge has presided over eight capital

jury trials and approximately ten death penalty post-conviction cases. While

none of these prior death penalty cases featured pretrial publicity as extensive

as that generated in [the Petitioner’s] case, this judge’s experience in

conducting capital case voir dire and his familiarity with the issues identified

in Petitioner’s motions are such that the Court would not be substantially

- 30 -

assisted by expert opinion as to these matters. The parties’ presentation of

the law and the facts will be sufficient for the Court to resolve these weighty

issues. Trial judges are well capable of identifying and applying case law

that recognizes those circumstances in which extensive pretrial publicity

and/or racial animus (both direct and subtle), when overlooked during jury

selection or otherwise, may deprive a defendant of a fair trial. As such,

Petitioner’s motions for the services of Mr. Levinson and Dr. Edelman are

DENIED, as there is no particularized need for these experts’ services.

Although it denied expert funding, the court authorized funding for the Petitioner to

organize the enormous amount of media coverage about the trial which he ultimately was

able to present during the hearing. The Petitioner does not explicitly challenge the post-

conviction court’s reasoning but instead argues that the denial of funding for the services

of the two experts “prevented [him] from introducing evidence that would have moved the

needle on this close issue and established his claims.” (Emphasis added). The post-

conviction court’s ruling specifically explained how the Petitioner failed to show a

particularized need for the services of the experts as it related to the presentation of the

proof on pretrial publicity. In fact, the Petitioner was able to present an enormous amount

of just such type of evidence. The general subject matter of the purported testimony of

these two experts was not outside the “province or understanding” of the post-conviction

court or the “capability and expertise” of counsel. Rule 13, § 5(c)(4). As the post-

conviction court emphasized, these two experts “would not substantially assist the Court

in resolving the[] weighty issues” surrounding pretrial publicity and jury selection. The

Petitioner has failed to demonstrate how the trial court’s actions prejudiced the presentation

of his case in any way. The post-conviction court did not abuse its discretion by denying

funding for these two experts.

b. Drs. Auble and Merikangas

The Petitioner sought the assistance of these Drs. Auble and Merikangas in support

of their claim against trial counsel’s presentation of mitigating evidence during sentencing.

The Petitioner sought the assistance of Dr. Auble to essentially challenge the testimony of

Dr. Brown, the Petitioner’s mitigation expert. The Petitioner asserted that “Dr. Auble’s

neuropsychological opinion supported the claim that trial counsel rendered ineffective

assistance in failing to properly consult with their mental health experts and supervise [the]

mitigation presentation.” As to Dr. Merikangas, the Petitioner asserted that a

“neurologist’s testimony would support a claim of ineffective assistance of counsel by

potentially showing the prejudice from trial counsel’s oversight” for failing to seek further

neurological or psychiatric testing. (Emphasis added.) On appeal, the Petitioner argues

that the post-conviction court inappropriately denied funding for these two experts by

requiring “documents and interviews . . . proving that his trial counsel had rendered

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ineffective assistance of counsel by failing to properly communicate, prepare, and

supervise their experts and to request the services of a neurologist.”

In the post-conviction court’s August 2, 2018 order, the court offered the following

reasons for denying the Petitioner’s initial request for Dr. Auble’s services:

In his motion, Petitioner states, “The facts of [his] case require a

neuropsychologist to establish a claim of ineffective assistance of counsel in

failing to adequately present evidence of brain dysfunction during

sentencing.” Much of the Petitioner’s argument is spent assailing trial

counsel’s chosen expert:

Trial counsel did not present neuropsychological

testimony to [the Petitioner’s] jury. Unfortunately for [the

Petitioner], counsel instead presented testimony of psychiatrist

Peter Brown. Though ostensibly an expert witness for his case

in mitigation, it is more likely that the impact of Dr. Brown’s

testimony was aggravating and supportive of the State’s case

for death. Dr. Brown mentioned that [the Petitioner] was

referred for a neuropsychological evaluation but did not testify

to the details of who conducted the evaluation, the credentials

of the evaluator, or the neuropsychological tests that were

conducted. Instead, he stated, without adequate qualification

or explanation, that these tests were all within normal ranges.

It is unclear who held the opinion of “normal ranges,” Dr.

Brown or the unnamed evaluator. Considering the predictors

for neurological dysfunction in [the Petitioner’s] childhood,

this seemingly unqualified testimony casts doubt on Dr.

Brown’s opinion of neurological normalcy.

Moreover, of great concern is the testimony of Dr.

Brown, who is not a neuropsychologist or an expert in

intellectual disability or functioning, that from “psychiatric and

psychological testing,” [the Petitioner] had an average IQ and

“probably above average IQ, just low results because of

educational limitations.” Dr. Brown did not explain who

conducted what tests and under what circumstances. Worse,

he did not divulge the scientific basis behind his feeling that

[the Petitioner] had an “above average IQ” not otherwise

shown in presumably standardized, normed tests. The

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proposition that education or academic performance drives IQ

score is, at best, not widely held.

In this post-conviction proceeding, undersigned counsel

must consult with a neuropsychologist 1) to assist in

determining if prior counsel acted reasonably and in

conformity with legal norms in providing records and requests

to their experts; 2) to evaluate any prior testing for potential

errors in administration or scoring; 3) to advise counsel on

whether the testing previously administered was adequate or

whether other tests should have been administered; 4) to

determine whether the prior testing may have shown areas of

impairment the significance of which the evaluator or Dr.

Brown missed, and 5) to conduct further testing if warranted.

Having presided over numerous death penalty trial and post-

conviction proceedings, this Court is well aware that neuropsychological

testing is often part of the mitigation case investigated and presented by a

capital defense team. However, the Court must also recognize this opinion

of the Tennessee Court of Criminal Appeals in the direct appeal of a capital

post-conviction case:

The Tennessee Supreme Court recently recognized that in most

cases, “the decision to select an expert, or which expert to

select, constitutes one of the ‘strategic’ defense decisions that

Strickland v. Washington shields from scrutiny.” Kendrick [v.

State], 454 S.W.3d [450,] 475 [(Tenn. 2015)]. “The selection

of an expert witness is a paradigmatic example of the type of

‘strategic choice[]’ that, when made ‘after thorough

investigation of [the] law and facts,’ is ‘virtually

unchallengeable.’” Hinton v. Alabama, 571 U.S. [263, 275]

(2014) (quoting Strickland, 466 U.S. at 690); see Kendrick, 454

S.W.3d at 474.

....

[Furthermore,] we note that the United States Supreme Court

has rejected a claim of ineffective assistance of counsel

consisting of “the hiring of an expert who, though qualified,

was not qualified enough.” Hinton, 571 U.S. at [274-75]. The

Court declined to “launch federal courts into examination of

- 33 -

the relative qualifications of experts hired and experts that

might have been hired.” Id.

David Lynn Jordan v. State, No. W2015-00698-CCA-R3-PD, 2016 WL

6078573, at *58, *62 (Tenn. Crim. App, Oct. 14, 2016), perm. app. denied,

(Tenn. July 19, 2017). This Court also notes that in another death penalty

post-conviction case, the Court of Criminal Appels concluded that in most

circumstances, “A defense attorney is not required to question a diagnosis

put forth by a professional expert in the field.” Christa Gail Pike v. State,

No. E2009-00016-CCA-R3-PD, 2011 WL 1544207, at *54 (Tenn. Crim.

App. Apr. 25, 2011), perm. app. denied, (Tenn. Nov. 15, 2011).

At this point, this Court has not been presented any evidence

regarding the substance of the proof Dr. Brown was presented during his

evaluations or the nature of his conclusions. For instance, the Court notes

counsel for the Petitioner challenge Dr. Brown’s finding that [the

Petitioner’s] “neuropsychological evaluation was normal,” but counsel has

not presented any specific argument explaining why or how such conclusions

could have been inaccurate. Counsel for the Petitioner also stated they have

not reviewed Dr. Brown’s report or the materials upon which he based his

conclusions, nor have they interviewed Dr. Brown. Absent such proof, the

Court has no way of knowing whether Dr. Brown, or trial counsel, could

have or should have developed different psychological or other mental

health-based mitigation evidence.

Accordingly, in light of the current state of affairs surrounding this

request, this Court must conclude the motion does not state a particularized

need for Dr. Auble’s services. Absent any evidence regarding Dr. Brown’s

work, the motion for services constitutes something that could be considered

either “undeveloped or conclusory assertions that such services would be

beneficial” or “assertions establishing only the mere hope or suspicion that

favorable evidence may be obtained.” Such assertions do not establish

particularized need, nor do they require this Court deviate from the precedent

established in Hinton, Jordan, Pike, and related cases. As such, the motion

for Dr. Auble’s services is DENIED at this time. [Footnotes omitted.]

In the order filed on September 17, 2018, denying the Petitioner’s renewed motion

for the services of Dr. Auble, the post-conviction court stated:

The Petitioner now asserts that the testimony that his

neuropsychological evaluation was normal was not only incorrect but that

- 34 -

his trial counsel, if they had complied with professional standards, should

have known it was incorrect. Petitioner’s attorneys allege his

neuropsychological evaluation was far from normal. Dr. Brown had referred

Mr. Davidson to a neuropsychologist, Malcolm Spica, Ph.D., who had done

the testing and evaluation.

At the September 12, 2018 ex parte hearing, Petitioner’s Counsel

stated that he was no longer asserting trial counsel selected unqualified

experts or the wrong experts. Counsel also conceded that Petitioner’s

Counsel have yet to interview Dr. Brown or neuropsychologist Spica. They

have also not interviewed trial counsel. Therefore the Court was not

informed what Dr. Spica may have communicated to Dr. Brown nor has the

Court been informed as to communications and inquiry by trial counsel with

Dr. Spica and/or Dr. Brown. There is no factual assertion that Mr. Davidson

failed to cooperate during his evaluations nor any assertion that trial counsel

failed to provide the experts with necessary information.

At issue is the information contained in Pamela Auble’s affidavit

attached to the motion now before the Court. She states that after evaluating

Dr. Spica’s test data there was much information indicating that Mr.

Davidson was far from “normal.”

Dr. Auble has received the test data that Dr. Spica relied upon and on

which Dr. Brown, in turn, relied upon in his trial testimony. Dr. Spica did

not testify at the trial. The Auble affidavit then states:

5. From my review of these data, the effort testing

indicated that Mr. Davidson put forth adequate effort on the

testing so it would be considered valid. Mr. Davidson had

some strengths on the testing. His overall IQ was average (50th

percentile), his memory for visual information was above

average (95th percentile), and his speed in doing simple,

repetitive tasks was average. However, he also had some

significant cognitive weaknesses. Mr. Davidson very likely

has a learning disability in reading, written language, and/or

math which would have limited his success in school, and

could have been used for mitigation. His reading was at the

12th percentile, spelling was in the 2nd percentile, and

arithmetic was in the 13th percentile. These scores are

significantly below what would be expected from someone of

average intelligence.

- 35 -

6. Second, Mr. Davidson had difficult[y] in situations

in which he had to organize or manipulate information in order

to solve problems. For instance, his copy of a complex design

was only between the 2nd and 5th percentiles. His ability to

arrange block designs to match a copy was relatively poor

given the other visual tasks on the intelligence test (16th

percentile). His ability to repeat digit strings in reverse order

was much worse than his ability to repeat them in the same

order (6 forward, only 3 backward). He was slow in alternating

between counting and reciting the alphabet (5th percentile).

When his memory was tested, he was normal at remembering

meaningful stories, but when he had to relate pairs of words

together to recall them, his memory deteriorated (50th

percentile vs. 5th percentile).

7. This difficulty putting information together in ways

that it can be effectively used likely had an impact on his ability

to manage his life effectively and could have affected his

behavior at the time of the offense. Thus, [this] is also

information that could have been used in mitigation.

8. Dr. Spica did not do basic testing of language or

speech, but given the evidence of learning disability, there

could be abnormalities in these areas. Such abnormalities

would also have a negative impact on Mr. Davidson’s

adjustment.

Given that Petitioner’s Counsel has not interviewed Dr. Brown, Dr.

Spica or trial counsel, we do not know what Dr. Brown knew or how trial

counsel communicated with experts. It remains to be seen at the hearing in

this case whether trial counsel should have known about this information and

why it was not presented.

Petitioner’s Counsel indicated that both Dr. Brown and Dr. Spica

would be called to testify at the trial in this case. Dr. Auble is simply not

needed. She would add little to what appears already apparent. The Court

assumes that Dr. Spica can testify about these results since they come from

his own testing. Thus there is no particularized need for Dr. Auble. Dr. Spica

can provide the Court with this asserted “missing” information when he

testifies. With this information in the record the Court can determine if trial

- 36 -

counsel were derelict in not knowing about these results and then failing to

present these results, and then whether the absence of this information was

prejudicial.

Based on the above reasoning, the Court sees no prejudice to the

Petitioner by denying funding for Dr. Auble. The motion is denied.

In its order filed on September 19, 2018, which denied the Petitioner’s

“supplemental” motion, the court stated:

[T]his supplemental motion states for the first time that Dr. Lipman (the

neuropharmacologist authorized in the July 31, 2018 Order . . .) says he needs

a neuropsychologist, especially Dr. Auble, to assist him. The Court went

back and read the July 20, 2018 sixteen (16) page motion in support of the

request for Dr. Lipman. It is asserted that Dr. Lipman is necessary “to

establish claims of ineffectiveness for failing to present evidence of

diminished capacity at trial, failing to provide mitigating testimony of how

[the Petitioner’s] substance abuse affected his cognition generally and during

the offense, and failing to establish credible evidence of Judge

Baumgartner’s impairment at trial.”

Nothing in this July 20, 2018 motion nor the order of the Court

granting the motion suggests that authorizing payment to Dr. Lipman means

that the Court must also approve Dr. Auble or any other neuropsychologist

nor that appointing a neuropsychologist was necessary for Dr. Lipman to

opine on the impact of alcohol or drug use on the petitioner in January 2007

(the date of the crime).

If Dr. Lipman needs information about the neuropsychological testing

related to the Petitioner’s mental status in 2007, Dr. Lipman is free to consult

with Dr. Spica. He is also the beneficiary of Dr. Auble’s detailed affidavit

attached to the Petitioner’s July 31, 2018 motion to reconsider, containing

her reading of the Dr. Spica 2009 testing. See TRE 703 and Cohen et al.,

Tennessee Law of Evidence § 7.03[4] and [5] (6th ed. 2011). Thus, access

to the 2009 neuropsychological testing is available to Dr. Lipman and there

is no particularized need shown for further testing.

Contrary to the Petitioner’s contention, the post-conviction court did not utilize an

incorrect standard in analyzing whether the Petitioner demonstrated a particularized need

for the services of Drs. Auble and Merikangas. The court’s orders specifically demonstrate

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that it followed the guidelines set forth in Rule 13. Moreover, the court’s reasoning was

reasonable in reference to the particular facts and circumstances of the Petitioner’s case.

As to the denial of funding for Dr. Auble, the post-conviction court found that the

intent of the Petitioner’s request for her services was to challenge the opinion and testimony

of trial counsel’s chosen expert. Both trial attorneys testified that they noticed nothing

abnormal about the Petitioner’s behavior. Both found him to be intelligent and capable of

understanding the content of their discussions regarding the defense of his case. Moreover,

as the post-conviction court found in its second order denying funding for Dr. Auble,

“There is no factual assertion that [the Petitioner] failed to cooperate during his evaluations

nor any assertion that trial counsel failed to provide the experts with necessary

information.” The court also noted that “[i]t remains to be seen at the hearing in this case

whether trial counsel should have known about this information and why it was not

presented.” Although the Petitioner was evaluated by a psychiatrist, who in turn referred

him to a neuropsychologist for additional testing, post-conviction counsel did not directly

question trial counsel about their decision not to seek further mental health evaluations.

See William Glenn Rogers v. State, No, M2010-01987-CCA-R3-PD, 2012 WL 3776675,

at *58 (Tenn. Crim. App. at Nashville, Aug. 30, 2012). It is evident, though, that trial

counsel relied upon the opinion of their chosen expert, and also upon their own impressions

after meeting with the Petitioner “dozens” of times, in deciding not to further investigate

the Petitioner’s mental health. The Petitioner failed to call either Dr. Brown or Dr. Spica

as witnesses at the evidentiary hearing despite informing the post-conviction court they

would during one of the hearings on the request for funding for Dr. Auble. To that end, in

concluding that the Petitioner failed to show a particularized need, the court found, “Dr.

Auble is simply not needed. She would add little to what appears apparent already.” The

mere hope or suspicion that Dr. Auble’s evaluation would reveal any favorable evidence

beyond what trial counsel already possessed does not create a particularized need for

funding for her services in the Petitioner’s post-conviction pursuit of an ineffective

assistance of counsel claim. Tenn. R. Sup. Ct. 13, § 5(c)(4)(B). As the post-conviction

court correctly observed:

While there may be some cases where the only reasonable defense

strategy involves consultation with experts or introduction of expert

testimony, there are “‘countless ways to provide effective assistance in any

given case. Even the best criminal defense attorneys would not defend a

particular client in the same way.’” Harrington v. Richter, 562 U.S. 86, 106-

07 (2011) (quoting Strickland, 466 U.S. at 689). Cases rarely exist in which

the “‘wide latitude counsel must have in making tactical decisions’ will be

limited to any one technique or approach.” Id. (quoting Strickland, 466 U.S.

at 689). The Tennessee Supreme Court recently recognized that in most

cases, “the decision to select an expert, or which expert to select, constitutes

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one of the ‘strategic’ defense decisions that Strickland v. Washington shields

from scrutiny.” Kendrick, 454 S.W.3d at 475. “The selection of an expert

witness is a paradigmatic example of the type of ‘strategic choic[e]’ that,

when made ‘after thorough investigation of [the] law and facts,’ is ‘virtually

unchallengeable.’” Hinton v. Alabama, 571 U.S. ---, 134 S. Ct. 1081, 1089

(2014) (quoting Strickland, 466 U.S. at 690); see Kendrick, 454 S.W.3d at

474.

David Lynn Jordan, No. W2015-00698-CCA-R3-PD, 2016 WL 6078573, at *58.

Moreover, a defense attorney “is not required to question a diagnosis put forth by a

professional expert in the field.” Christa Gail Pike, No. E2009-00016-CCA-R3-PD, 2011

WL 1544207, at *54.

Upon review, this court concludes that the post-conviction court did not abuse its

discretion by denying funding for Dr. Auble. In making its decision, the post-conviction

court clearly considered “the applicable law” and took “the relevant facts into account.”

McCaleb, 582 S.W.3d at 179. The court did not “stray[] beyond the applicable legal

standards” or “fail[] to properly consider the factors customarily used to guide” its

decision.” Id. This court will not “second-guess” the post-conviction court’s decision in

that respect.

Approximately one month before the evidentiary hearing, the Petitioner filed his

first motion seeking the services of Dr. Merikangas to determine whether the Petitioner

suffered from an organic brain injury. Noting that the motion was filed well-beyond the

July 20, 2018, deadline it had set for motions seeking funding for expert services, the post-

conviction court denied the motion because it did not satisfy Rule 13’s threshold

requirements. In its January 9, 2019, order denying the Petitioner’s renewed motion for

funding for Dr. Merikangas, the court initially noted, “At this late date Petitioner’s

attorneys wish to explore the possibility that [the Petitioner] suffers from a brain injury or

other neurocognitive d[y]sfunction. These claims are based on an asserted history of head

trauma during [the Petitioner’s] childhood.” The court recalled that trial counsel hired a

mitigation specialist and a mental health expert to explore any possible brain dysfunction.

As discussed previously, Dr. Brown testified during the sentencing hearing that the

Petitioner’s intelligence level was above-average and his neuropsychological evaluation

was normal. During Dr. Brown’s trial testimony, in which he relied, in part, on Dr. Spica’s

neuropsychological test results, he stated that there was no evidence of any mental

disorders or history of organic brain injuries that were normally associated with violent

criminal behavior. The post-conviction court offered the following additional observations

before explaining the reasons for denying funding for Dr. Merikangas:

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In addition to counsel’s arguments as to why the motion should be

granted (see below), the motion includes two affidavits. One affidavit was

completed January 3, 2019, by Post-Conviction Defender’s Office

investigator Elizabeth Redwine. In the affidavit, Ms. Redwine states that in

November and December 2018, unnamed relatives of the Petitioner informed

her: (1) Petitioner’s mother had been diagnosed with Fetal Alcohol

Syndrome; (2) As a Child, Petitioner suffered two head injuries and exhibited

poor motor skills, bed-wetting, and a weakened immune system; and (3)

Petitioner had a “history of observable dissociative episodes.”

The second affidavit was completed by Dr. Pamela Auble, a clinical

psychologist, in August 2018. Dr. Auble’s affidavit makes several claims

which appear to contradict Dr. Brown’s testimony. For instance, after stating

she reviewed the testing data as completed by Dr. Malcom Spica, the

psychologist with whom Dr. Brown conferred before trial, Dr. Auble writes,

“Dr. Spica was never asked to write a report of his findings by the trial

attorneys. . . . Dr. Peter Brown testified that there were no abnormalities on

the neuropsychological testing from Dr. Brown’s conversation with Dr.

Spica, but Dr. Spica did not testify at the trial.” [The court then quoted

further from Dr. Auble’s affidavit, which is detailed above.]

....

Counsel for the Petitioner argue [he] is entitled to Dr. Merikangas's

services for the following reasons:

It is deficient performance to delegate strategic-decision

regarding the presentation of mitigation to mental health

experts. Foust v. Houk, 655 F.3d 524, 536 (6th Cir. 2011).

Trial counsel have an on-going duty to supervise the mitigation

team, including their expert witnesses. Id.; see also Chatman

v. Walker, 297 Ga. 191, 202 (2015) (finding counsel’s

performance deficient for delegating responsibility of

mitigation investigation).

[The Petitioner] has met his burden in establishing his

particularized need for Dr. Merikangas’s services. [The

Petitioner] raises claims related to ineffective assistance of

counsel[,] specifically related to the preparation and

supervision of the mental health expert presented at trial, as

well as the failure to present mitigating evidence available to

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trial counsel. These claims pertain to trial counsel’s (1) failure

to adequately consult with experts; (2) failure to provide

experts with information critical to their evaluations; (3) failure

to work with their experts in developing mitigation evidence;

(4) failure to properly supervise their mitigation team,

including expert witnesses, and ([5]) failure to fully present a

compelling case for life during the penalty phase. See Am. Pet.

[The Petitioner] . . . also raises a claim of ineffective assistance

of counsel for failure to investigate or otherwise pursue a

diminished capacity defense. Id.

Here, post-conviction counsel has discovered

information relevant to [the Petitioner’s] neurological and

psychiatric functioning not developed or presented at trial. As

[the Petitioner’s] prior counsel deficiently failed to uncover

this mitigating evidence, they did not tender it to their expert

in anticipation of his trial testimony. As such, no neurological

testing occurred before trial. Lacking basic neurological

testing and a full record of information relevant to psychiatric

assessments, the psychiatrist at trial did not present the whole

picture of [the Petitioner’s] functioning.

[The Petitioner] needs Dr. Merikangas’ services in

order to conduct this basic neurological testing, as indicated by

information uncovered during the post-conviction

investigation.

[The Petitioner] also needs Dr. Merikangas’ services to

perform a psychiatric evaluation that incorporates all

information relevant to such an assessment. Due to prior

counsel’s ineffective investigation, an adequate psychiatric

evaluation has not been previously been performed. [The

Petitioner] cannot establish this claim without his own expert’s

testimony.

....

[T]he Court is not convinced Petitioner has established particularized need

for Dr. Merikangas’s services. In support of their assertion testing is

necessary because Drs. Brown and Spica did not perform adequate testing,

counsel for the [P]etitioner have attached two affidavits: one by an

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investigator and one completed by Dr. Auble. The affidavit completed by

the investigator states the Petitioner’s family members have informed the

investigator that the Petitioner, as a child, suffered from two brain injuries

and was also seen as “sickly” and suffering from enuresis and reduced motor

skills. Trial counsel’s mitigation specialist, Ms. Andrews, testified at the

penalty phase of [the] trial regarding one episode in which [the Petitioner]

was “knocked out” after being hit in the head during a fight which occurred

when Petitioner was an adolescent. The other episodes referenced by

Petitioner’s post-conviction investigator were not explicitly referenced

during the testimony of Ms. Andrews and the other family members who

testified on Petitioner’s behalf, but the Court is not convinced that these facts,

even if newly discovered, would create the need for the testing Petitioner

currently seeks.

Petitioner appears to base his assertions regarding the incorrectness of

the findings of Drs. Brown and Spica on the affidavit of Dr. Auble. At first

glance, the figures cited in Dr. Auble’s affidavit appear to contradict Dr.

Brown’s testimony in which he claimed the results of his (and Dr. Spica’s)

various tests on the Petitioner were within “normal” ranges. However,

Petitioner’s motion leaves many relevant questions unanswered. Dr.

Brown’s report and the test data generated by Dr. Spica were not introduced

into evidence at trial, and they also have not been submitted to this Court at

any time during these proceedings. Thus, the Court has no way of knowing

what tests were performed on Petitioner before trial and whether Petitioner’s

test results were normal (as Dr. Brown testified at trial) or below average (as

counsel for the Petitioner, aided by Dr. Auble, assert). This Court also has

no evidence before it regarding whether trial counsel were aware of the test

results at the time of trial. This Court does not know whether counsel asked

to review the test results or if Drs. Brown and Spica spoke to trial counsel at

all regarding the test results. Absent such evidence, the Court must conclude

that Petitioner has only presented the forth [sic] with the “mere hope or

suspicion” that Dr. Merikangas’s testing would reach conclusions other than

those put forth at trial: namely, that Dr. Brown evaluated Petitioner - an

evaluation which included review of past records, original testing by both

Dr. Brown and Dr. Spica, and an interview with [the Petitioner] - and Dr.

Brown found Petitioner to be of average or above-average intelligence.

Furthermore, as stated above, Dr. Brown found no proof [the Petitioner]

suffered from psychological disorder or organic brain injury. Furthermore,

the Court notes there is no information in the record suggesting Drs. Brown

and Spica, trial attorneys Doug Trant and David Eldridge, and trial mitigation

specialist Rosalind Andrews would be unwilling or unable to speak with

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post-conviction counsel and provide them with any information necessary to

advance Petitioner’s interests in the upcoming hearing - including the

information which would be necessary to address the unresolved questions

in the present motion. Thus, information which is available to [P]etitioner’s

counsel and directly pertinent to the issue asserted in this motion has not been

provided to the Court.

The post-conviction court granted the Petitioner investigative services in the

beginning of July 2018, but the Petitioner did not request the services of Dr. Merikangas

until counsel learned about information from unidentified family members just a month or

so before the evidentiary hearing. As the post-conviction court stated, some of that

information was already known to trial counsel from their pretrial trial investigation.

Again, trial counsel testified that they saw no evidence of impairment. Likewise, trial

counsel’s chosen expert testified that the Petitioner had a normal brain. Dr. Brown’s

testimony was based upon his evaluation as well as that of Dr. Spica. The mere hope that

Dr. Merikangas would reach a different conclusion does not establish a particularized need

in support of a claim of ineffective assistance of counsel in that respect. See David Lynn

Jordan, No. W2015-00698-CCA-R3-PD, 2016 WL 6078573, at *61; Christa Gail Pike,

No. E2009-00016-CCA-R3-PD, 2011 WL 1544207, at *54.

This court concludes that the post-conviction court did not abuse its discretion by

denying funding for Dr. Merikangas. Again, in making its decision, the post-conviction

court clearly considered “the applicable law” and took “the relevant facts into account.”

McCaleb, 582 S.W.3d at 179. The court did not “stray[] beyond the applicable legal

standards” or “fail[] to properly consider the factors customarily used to guide” its

decision.” Id. Again, this court cannot “second-guess” the post-conviction court’s decision

in that respect.

The post-conviction court offered insightful and reasonable explanations for its

actions on each of the ex parte motions filed by the Petitioner. The Petitioner has failed to

demonstrate how the post-conviction court’s actions as to funding prejudiced the

presentation of his case in any way. As our supreme court cautioned in Owens, a trial

court’s authority to authorize funding for expert services in capital post-conviction cases

should not be interpreted as a “blank check.” 908 S.W.2d at 923. The post-conviction

court appropriately denied those services for which it concluded that the Petitioner had

failed to establish a particularized need.

C. Thomas Testimony

The Petitioner next argues that the post-conviction court erred by denying him the

opportunity to present evidence of Thomas’s anticipated testimony at Boyd’s then-

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upcoming state trial. In the supplemental amended petition he filed on October 18, 2018,

the Petitioner asserted that the State had recently informed counsel that Thomas had agreed

to testify in Boyd’s trial in exchange for post-conviction relief “where Thomas would serve

fifty years in prison with eligibility for release after serving eighty-five percent of that

sentence.” The State further informed counsel that “Thomas would testify in the upcoming

trial that Boyd killed Mr. Newsom and set his body on fire. Thomas would also testify that

[the Petitioner] was not present when this occurred.” Boyd’s trial was originally scheduled

for January 3, 2019, but was ultimately continued until August 2019. In support of his

request for a continuance of the post-conviction evidentiary hearing, the Petitioner argued

that he should be allowed to present the Thomas testimony in support of the Eighth

Amendment ground for relief he asserted in his amended post-conviction petition. That

ground alleged that the Petitioner was “innocent of the death penalty” because the proposed

Thomas testimony would invalidate one of the aggravating circumstances, i.e., that the

Petitioner knowingly mutilated Mr. Newsom’s body after his death. See Sochor v. Florida,

504 U.S. 527, 532 (1992) (acknowledging “Eighth Amendment error when the sentencer

weighs an ‘invalid’ aggravating circumstance in reaching the ultimate decision to impose

a death sentence”). Although the Petitioner stated that he could anticipate the general

substance of Thomas’s testimony, he could not know in detail the actual extent of that

testimony until after Boyd’s trial.

The post-conviction court denied the Petitioner’s request to continue. Although the

State agreed to stipulate to the anticipated content of Thomas’s testimony, the Petitioner

again asserted that such a stipulation would be insufficient without knowing the actual

content of the testimony. According to the post-conviction court, however, the Petitioner’s

claim that he was innocent of the death penalty was not cognizable in a post-conviction

proceeding. Citing a recent opinion from this court, the post-conviction court noted that

claims of actual innocence based on newly discovered “non-scientific” evidence were not

proper for post-conviction review. See Marlon Duane Kiser v. State, No. E2016-01644-

CCA-R3-PD, 2017 WL 6549893, at *19 (Tenn. Crim. App. at Knoxville, Dec. 21, 2017).

However, the Marlon Duane Kiser opinion was addressing a claim of actual innocence of

the murder itself. Id. In this case, the Petitioner advanced a cognizable challenge under

the Eighth Amendment of the United States Constitution and article I, section 16 of the

Tennessee Constitution alleging that the imposition of the death penalty in light of the

invalid aggravating circumstance represented cruel and unusual punishment. Thus, the

post-conviction court’s reasoning was erroneous. Johnson v. Mississippi, 486 U.S. 578

(1988) (addressing Eighth Amendment violation based on invalid aggravator in post-

conviction context).

Regardless, the Petitioner is unable to demonstrate prejudice resulting from the post-

conviction court’s denial of his request for a continuance based on Thomas’s anticipated

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testimony. Again, the Petitioner ultimately sought error coram nobis relief based on that

testimony, and this court will address the coram nobis court’s ruling later in this opinion.

The United States Supreme Court recently issued its opinion in McKinney v.

Arizona, 140 S. Ct. 702 (2020). Therein, the Supreme Court considered whether a

reviewing court could reweigh the sentencing factors in a capital case when either an

aggravating circumstance was improperly considered or a mitigating circumstance was

improperly excluded. Id. The Supreme Court reiterated its holding in Clemons v.

Mississippi, 494 U.S. 738 (1990), which permits “a state appellate court [to] uphold[] a

death sentence that is based in part on an invalid or improperly defined aggravating

circumstance either by reweighing of the aggravating and mitigating evidence or by

harmless-error review.” McKinney, 140 S. Ct at 706. The Supreme Court further held that

“[t]here is no good reason . . . why state courts may not likewise conduct a Clemons

reweighing on collateral review.” Id. at 709. See Barber v. State, 889 S.W.2d 185 (Tenn.

1994) (citing State v. Howell, 868 S.W.2d 238 (Tenn. 1993) (discussing application of

harmless error analysis in both post-conviction and direct appeal context upon finding of

invalid aggravating circumstance)).

In light of the Thomas testimony at Boyd’s trial, the State concedes that application

of the (i)(13) aggravating circumstance, that “[t]he defendant knowingly mutilated the

body of the victim after death,” was not supported by the trial evidence and could not

otherwise be applied vicariously to the Petitioner. See Johnson v. State, 38 S.W.3d 52, 63

(Tenn. 2001) (aggravating circumstance focusing on defendant’s actions and intent, rather

than circumstances of killing, could not be applied vicariously). Again, the Petitioner

properly raised a constitutional claim regarding the invalidity of that aggravating

circumstance in his amended petition. Thus, a harmless error analysis must be undertaken

to determine its effect on the death sentence as applied to the murder of Mr. Newsom.

In order to guarantee the precision that individualized sentencing

considerations demand and provide a principled explanation for our

conclusion in each case, it is important, when conducting harmless error

review, to completely examine the record for the presence of factors which

potentially influence the sentence ultimately imposed. These include, but are

not limited to, the number and strength of remaining valid aggravating

circumstances, the prosecutor’s argument at sentencing, the evidence

admitted to establish the invalid aggravator, and the nature, quality and

strength of mitigating evidence.

Howell, 868 S.W.2d at 260-61. This court must conclude “beyond a reasonable doubt that

the sentence would have been the same had the jury given no weight to the invalid . . .

aggravating factor.” Id. at 262.

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The jury found three other aggravating circumstances applied to the murder of Mr.

Newsom: the murder was especially heinous, atrocious, or cruel; the murder was

committed for the purpose of avoiding, interfering with, or preventing a lawful arrest; and

the murder was committed during the perpetration of a felony. Tenn. Code Ann. § 39-13-

204(i)(5), (6), (7). Significantly, in the context of post-conviction relief, the Petitioner does

“not allege that this new evidence called into question his conviction for the murder of Mr.

Newsom.” He does advance such a claim in support of his request for error coram nobis

relief, which we will address later in this opinion. The Petitioner also does not contest that

the remaining three aggravating circumstances can be applied vicariously against him. The

(i)(5), (6), and (7) aggravators, “by their plain language, clearly encompass consideration

of the nature and circumstances of the crime itself.” Johnson, 38 S.W.3d at 62 (quoting

Owens v. State, 13 S.W.3d 742, 763 (Tenn. Crim. App. 1999)) (emphasis in original). “The

emphasis in the (i)(5)[, (6), and (7)] aggravator[s] is on the manner of killing, not on the

defendant’s actual participation.” Id. (emphasis in original).

In his post-conviction brief, the Petitioner merely argues that “had jurors known that

Eric Boyd, not [the Petitioner], was responsible for the conduct supporting them, they

would have given those [aggravating] circumstances less weight than the weight they

attributed them under a false belief that [the Petitioner] killed Mr. Newsom and set his body

on fire.” He also asserts that “[t]he same evidence was presented to the juries of [his]

codefendants, including evidence of the aggravating circumstances that could be applied

vicariously, and none of them were sentenced to death.” However, the juries’ verdicts in

the codefendants’ trials have no bearing on our harmless error analysis. Moreover, the

invalid aggravator does not affect the sentence imposed for Ms. Christian’s murder because

that aggravating circumstance applied only to Mr. Newsom’s murder.

On direct appeal, our supreme court summarized the evidence supporting the

aggravating circumstances. As to the heinous, atrocious, and cruel circumstance, that court

observed:

The State’s proof showed that Chris was robbed at gunpoint and taken

against his will to a place where he was anally raped with sufficient force to

injure his anus. After being raped, he was forced to walk without shoes,

socks, and pants to a desolate area beside a set of train tracks. Chris was

blindfolded with a bandana, his sock was forced in his mouth and tied with a

shoelace, and his head wrapped in a sweatshirt. His ankles were bound by

his belt and a strip of fabric, and his wrists were tied behind his back. He

was shot three times - in his lower back, his neck, and his head. The

trajectory of the bullet to his back indicated he was bent over when the shot

was fired. The contact shot to his head was fatal. He had a hematoma in the

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right forehead region, indicating blunt force trauma possibly resulting from

his fall to the ground after being shot. Chris had no defensive wounds

because, according to the medical examiner, he could not defend himself.

509 S.W.3d at 220. The court held that “[w]ithout question,” the murder of Mr. Newsom

was “especially heinous, atrocious, or cruel and clearly involved torture and serious

physical abuse beyond that necessary to produce death. The evidence is more than

sufficient to support the jury’s finding of this aggravating circumstance.” As to the (i)(6)

aggravator, the court stated:

The State’s proof showed that Chris and Channon were forcibly

abducted from the Washington Ridge Apartments, robbed, and taken in

Channon’s vehicle to [the Petitioner’s] house. Chris and Channon were

witnesses to the robbery and kidnapping. [The Petitioner] was determined to

avoid detection. Chris and Channon were murdered, the stolen vehicle was

“wiped down” to remove fingerprints, identifying decals were removed from

it, bleach was sprayed into Channon’s mouth to attempt to destroy DNA,

gasoline was poured on Chris’s body and set on fire in an apparent attempt

to hide his identity and destroy DNA, and Channon’s body was hidden in a

garbage can. In his statement to police, [the Petitioner] admitted he had

expressed concern to Mr. Cobbins that Channon had been brought into the

house after the carjacking without a blindfold and had seen them.

The evidence fully supports the conclusion that the murders of Chris

and Channon were committed to avoid [the Petitioner’s] arrest or prosecution

for robbery and kidnapping. The evidence is more than sufficient to support

the jury’s finding of this aggravating circumstance.

Id. at 221. Finally, as to the (i)(7) aggravating circumstance, the court noted that

[b]esides the murder convictions, [the Petitioner] was convicted of two

counts of especially aggravated robbery, two counts of especially aggravated

kidnapping, three counts of aggravated rape of Channon, and one count of

facilitation of aggravated rape of Chris. The murders of Chris and Channon

occurred in relation to [the Petitioner’s] commission of especially aggravated

robbery, especially aggravated kidnapping, aggravated rape, and facilitation

of aggravated rape. The evidence is more than sufficient to support the jury’s

finding of this aggravating circumstance.

Id. Our supreme court also summarized the mitigating proof as follows:

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From this evidence, it appears that [the Petitioner] had a difficult

childhood due to a neglectful, drug-addicted, abusive mother and an absent

father. He had numerous adverse childhood experiences that predisposed

him to committing violent acts as an adult. [The Petitioner], however, was

given opportunities to better himself. He had above-average intelligence and

no apparent psychological issues. He was removed from his mother’s

abusive home and began living at the [West Tennessee] Children’s Home.

Ms. [Alice] Rhea and Mr. [Jason] Bramblett at the Children’s Home took an

interest in him and encouraged and supported him. After [the Petitioner] left

the Children’s Home, Mr. and Mrs. [Carl] Rudd took him into their home

and treated him as one of their own children. He attended a private high

school, was provided tutoring assistance, went to church, played football, and

had friends and a supportive foster family. Yet, he violated Mr. and Mrs.

Rudd’s rule on drug use - not once but twice - and [the Petitioner] had to

leave their home. Even then, a coach at [the Petitioner’s] school gave him a

place to live until he could get a job and find housing. Despite this support

and assistance, [the Petitioner], at the age of nineteen, committed aggravated

robbery and carjacking and was incarcerated. [The Petitioner] had a chaotic

and unstable childhood, but as an adult, he had choices. Unfortunately, he

made bad choices.

Id. at 223. As to the State’s opening remarks during the sentencing phase of the trial, the

prosecuting attorney devoted little argument to the invalid aggravating factor:

We believe the sixth aggravating circumstance to be that the defendant

knowing[ly] mutilated the body of Chris Newsom at death. Again, we’re

relying upon Dr. Mileusnic’s testimony in that she told you that Mr. Newsom

was already dead when an accelerant was poured on him and he was set on

fire. The fact that his body was burned that is our proof that his body was

mutilated after death.

During the State’s initial closing remarks, the prosecuting attorney did not mention this

aggravating circumstance. In rebuttal to the Petitioner’s closing argument, the State made

the following remarks:

And then, finally, sort of one that often gets overlooked that I want to end on

this morning. The [Petitioner] knowingly mutilated the body of Chris

Newsom. Now, why is that an aggravator? Why does that even come in?

He was already dead. Dr. Mileusnic told you that he didn’t inhale any smoke.

He was already dead. Nobody has ever suggested otherwise. But that’s

important because instead of -not only did [the Petitioner] and his

- 48 -

accomplices take Chris Newsom from his life and from his family, they took

that body out, put it on that railroad tracks and burned it. Left him there for

the whole world to see, exposed, nude from the waist down. This family

would not get to have a funeral and see him lying peacefully there in that

casket. They were deprived of even that! The last image they have of their

son is lying there on those railroad tracks mutilated.

The State’s opening and closing remarks totaled approximately twenty pages of transcript

and were devoted primarily to advancing the other three aggravating circumstances and

discrediting the mitigating proof. Furthermore, the evidence introduced in support of the

invalid aggravator, as the prosecutor remarked in her opening statement during sentencing,

was minimal and straightforward.

Upon consideration of the Howell factors, this court can affirmatively conclude

beyond a reasonable doubt that the sentence of death the jury imposed for Mr. Newsom’s

murder would have been the same even without its consideration of the (i)(13) aggravating

circumstance. Again, the three remaining aggravating circumstances focused on the

manner of the murders, not on the Petitioner’s actual participation. To that end, as our

supreme court held on direct appeal of the Petitioner’s convictions, “[A] reasonable jury

could have easily concluded that any one or all four aggravating circumstances outweighed

the mitigating circumstances presented by [the Petitioner].” 509 S.W.3d at 223 (emphasis

added). Thus, the Petitioner was not prejudiced when the post-conviction court denied him

the opportunity to present evidence about the Thomas testimony, and his free-standing

Eighth Amendment ground for relief in this respect is without merit.

Next, we will address the grounds for post-conviction relief alleged in the petition

and amendments thereto.

Burden of Proof and Standard of Review

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 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 petitioner

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

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

is no serious or substantial doubt about the accuracy of the conclusions drawn from the

evidence. Hicks v. State, 983 S.W.2d 240, 245 (Tenn. Crim. App.1998).

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

conclusive on appeal unless the evidence preponderates against them. State v. Nichols, 90

- 49 -

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 reweigh 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 advances various grounds for relief, including ineffective assistance

of counsel, prosecutorial misconduct, and other challenges to the imposition of the death

sentence. A number of those grounds relate to issues that could have been, or actually

were, raised on direct appeal. In order to avoid waiver, the Petitioner cursorily alleges in

his appellate brief that counsel were ineffective for either failing to voice objections or to

raise the issues on appeal. As the post-conviction court observed, the Petitioner did not

offer any proof in support of most of the grounds alleging ineffective assistance of counsel.

Nevertheless, we will address the merits of each alleged ground for relief that are not

otherwise waived or previously determined. “A ground for relief is waived if the petitioner

personally or through an attorney failed to present it for determination in any proceeding

before a court of competent jurisdiction in which the ground could have been presented

unless” the ground is based on a newly created constitutional right not previously

recognized or the failure to present the ground was the result of an unconstitutional state

action. Tenn. Code Ann. § 40-30-106(g). “A ground for relief is previously determined if

a court of competent jurisdiction has ruled on the merits after a full and fair hearing.” Tenn.

Code Ann. § 40-30-106(h). “A full and fair hearing has occurred where the petitioner is

afforded the opportunity to call witnesses and otherwise present evidence, regardless of

whether the petitioner actually introduced any evidence.” Id.

II. 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 trial 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, that “[i]n all criminal

prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for

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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 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

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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 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). 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 that trial counsel’s conduct

fell 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

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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).

A. Jury Selection

The Petitioner challenges trial counsel’s representation in a number of instances, but

the focus of his argument relates to jury selection and, more specifically, the decision to

seat a jury from Knox County. As the summary of the evidentiary hearing above

demonstrates, the pretrial publicity in this case was unusually pervasive, extensive, and, at

times, inflammatory. The Petitioner asserts that because of that publicity, the jurors who

served during the trial were presumptively biased and were not impartial. The Petitioner

thus argues that counsel were ineffective for failing to request an out-of-county jury. The

Petitioner also argues that counsel did not competently conduct voir dire. We will address

each claim in turn.

1. Venue

In Tennessee, a criminal defendant has the constitutional right to be tried in the

county in which the crime occurred. Tenn. Const., art. I, § 9; see also Tenn. R. Crim. P.

18(a). The venue of the trial may only be changed upon motion of the defendant or by the

court’s own motion with the defendant’s consent. Tenn. R. Crim. P. 18(a). Rule 18(a)

provides that a “court should order a venue change when a fair trial is unlikely because of

undue excitement against the defendant in the county where the offense was committed or

for any other cause.” Id.

Because the Petitioner is alleging that trial counsel were ineffective because they

failed to request an out-of-county jury, the Strickland analysis applies. Thus, like the post-

conviction court, we must first determine whether counsel’s actions were objectionably

reasonable and, if not, whether there was any resulting prejudice. “The ultimate test is

whether the jurors who actually sat and rendered verdicts were prejudiced by the pretrial

publicity.” State v. Kyger, 787 S.W.2d 13, 18-19 (Tenn. Crim. App. 1989). “The mere

fact that jurors have been exposed to pre-trial publicity will not warrant a change of venue.”

State v. Mann, 959 S.W.2d 503, 532 (Tenn. 1997); see also Keith Whited v. State, No.

M2012-02294-CCA-R3-PC, 2014 WL 1832962, at *12 (Tenn. Crim. App. at Nashville,

May 7, 2014) (“Prejudice will not be presumed by a mere showing that there was

considerable pretrial publicity.”). Instead, a “defendant must demonstrate that the jurors

who actually sat were biased or prejudiced against him.” State v. Evans, 383 S.W.2d 185,

192 (Tenn. 1992). As an aside, the Petitioner complains about trial counsel’s decision

regarding a change of venire, not a change of venue. As the post-conviction court

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recognized, the distinction between a change of venire and a change of venue is slight for

the purpose of reviewing the Petitioner’s claim in this instance. See Tenn. Code Ann. §

20-4-201.

a. Performance

The post-conviction court held that “[t]he decision to not ask for a change of venue

was not the result of inattention or lack of experience but of the considered judgment of

counsel after a full discussion of the risk with their client. The [Petitioner] concurred with

the decision.” The court noted that “[t]he trial lawyers had thoroughly investigated the

case, knew everything that was to be known, to include the massive and prejudicial

negative publicity.” The court further observed, “After a debate [counsel] still then decided

[not to ask] for a change of venue/venire as they concluded that a jury could not be seated

in Knox County and that somehow then the case would be aborted/dismissed.” The court

thus concluded that counsel’s decision was objectively unreasonable. In reaching that

decision, the post-conviction court offered the following reasoning:

[U]nder the circumstances of this case, and even given the required deference

and strong presumption in favor of trial counsel’s decision, the Court finds

that no competent counsel would have taken the action of trial counsel in this

case. Put another way, no competent attorney reasonably could have decided

not to move for a change of venue/venire.

There are a multitude of reasons in support of the Court’s opinion.

(1) There was no end game to the idea that no jury could be chosen in

Knox County. No authority by trial counsel was ever cited that the inability

to be able to choose a jury in Knox County would somehow lead to a

dismissal or light sentence by plea agreement. The Court is now aware of

Kirk v. State, 41 Tenn. 344 (1860) although it was never cited by trial

counsel. In Kirk the court did rule in 1860 that venue could not be changed

over a defendant’s objection even though the trial judge certified that no jury

could be seated in Lawrence County because of prior knowledge of the case.

The murder conviction in the adjoining county was re

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