# Micah Ross Johnson v. State of Tennessee

> Court of Criminal Appeals of Tennessee · January 28, 2022

URL: https://www.frixlaw.com/law-library/cases/6113779

## Case

- **Court:** Court of Criminal Appeals of Tennessee
- **Decided:** January 28, 2022
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Judge James Curwood Witt, Jr.
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

01/28/2022
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
November 16, 2021 Session

MICAH ROSS JOHNSON v. STATE OF TENNESSEE

Appeal from the Criminal Court for Knox County
No. 10700 G. Scott Green, Judge

No. E2021-00294-CCA-R3-PC

The petitioner, Micah Ross Johnson, appeals the denial of his petition for post-conviction
relief, which petition challenged his 2011 convictions of first degree murder and especially
aggravated robbery, alleging that he was deprived of the effective assistance of trial
counsel.1 Because the petitioner has established that he is entitled to post-conviction relief,
we reverse the judgment of the post-conviction court and remand the case for a new trial.

Tenn. R. App. P. 3; Judgment of the Criminal Court Reversed; Remanded

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which D. KELLY
THOMAS, JR., and JILL BARTEE AYERS, JJ., joined.

Gregory P. Isaacs and J. Franklin Ammons, Knoxville, Tennessee, for the appellant, Micah
Ross Johnson.

Herbert H. Slatery III, Attorney General and Reporter; Katherine C. Redding, Assistant
Attorney General; Charme P. Allen, District Attorney General; and Kevin Allen, Assistant
District Attorney General, for the appellee, State of Tennessee.

OPINION

This case comes to us following a remand to the post-conviction court for
additional findings of fact and conclusions of law to facilitate our review. See Micah Ross
Johnson v. State, No. E2019-00491-CCA-R3-PC, slip op. at 13-14 (Tenn. Crim. App.,
Knoxville, Sept. 8, 2020).

1
The petitioner was represented by two attorneys at trial, and both attorneys testified at the post-
conviction evidentiary hearing. For the sake of clarity, we will refer to the trial attorneys together as “trial
counsel” and individually as “lead counsel” and “co-counsel.”
In 2011, a Knox County Criminal Court jury convicted the petitioner of one
count of premeditated murder, two counts of felony murder, two counts of especially
aggravated kidnapping, and one count of especially aggravated robbery for the “brutal
beating, slashing, and strangulation of [24]-year old Carrie Daughtry.” State v. Micah
Johnson, Alias, No. E2013-02356-CCA-R3-CD, slip op. at 1-2 (Tenn. Crim. App.,
Knoxville, Mar. 2, 2015). The evidence presented at trial showed that in the early morning
hours of March 19, 2008, the petitioner parked his vehicle one block from the house that
his girlfriend shared with the victim and that he attacked the victim as she returned home
from her job at Barley’s Taproom. Id., slip op. at 2. The petitioner hit the victim in the
head with a brick that he got from the backyard of the residence. Id., at 17.

After the [petitioner] broke the brick by striking the victim with
tremendous force in the head, he did not end the assault but
procured a second weapon from underneath the carport—the
shovel—and proceeded to stab and mutilate the victim with it.
He then retrieved yet a third weapon, either brought with him
or in the same general location as the brick or the shovel, and
attempted to strangle the victim with it. The attack on the
victim lasted over ten minutes . . . .”

Id. The petitioner then “dragged the victim’s body across the front yard to her vehicle
parked on the street” and attempted to place her body in the vehicle but fled the scene when
police arrived. Id.

Strewn across the yard, officers found “the victim’s purse, a bloody jacket,
and a single shoe. A bloody gray t-shirt and a bloody white t-shirt, a set of keys, and the
other shoe were found in the grass close to the victim’s SUV.” Id., slip op. at 6. The
petitioner took the victim’s cellular telephone “to keep her from summoning help,” id., slip
op. at 17, and took $87 in cash that the victim had made in tips that night, id., slip op. at 6.
All three murder weapons were found at the scene with the “bloody shovel next to the
victim’s body and two blood-stained pieces of brick in the yard . . . . A rope was tied
around the victim’s neck.” Id. “The victim suffered extensive wounds from all three of
[the] weapons, some of which were defensive wounds inflicted while she was trying to
protect herself.” Id., slip op. at 16.

After killing the victim, the petitioner returned to the house where he lived
with his father and “immediately showered, changed clothes, and placed his bloody clothes
inside a bag. He then left the house through a window, carrying the bag, and proceeded to
get $500 cash from an ATM. He fled to Georgia but later returned to Tennessee.” Id., slip
op. at 17.

-2-
Officers suspected the petitioner, and, “[d]uring the late evening hours of
March 19, 2008,” two officers attempted to effectuate a traffic stop on the petitioner, but
he led the officers on “[a] short chase.” Id., slip op at 5. “Once on the Henley Street
Bridge, the [petitioner] ‘slammed on his brakes[,]’ exited the car, ran to the side rail, and
jumped up ‘like he had intended to jump[,]’” but an officer was able to pull him from the
edge of the bridge and take him into custody. Id., slip op. at 5-6 (second alteration in
original).

On direct appeal, this court reversed the petitioner’s convictions of especially
aggravated kidnapping and remanded for a new trial on those charges but affirmed the
remaining convictions. Id., slip op. at 1.2

The defendant filed a timely pro se petition for post-conviction relief on
December 14, 2015. The post-conviction court appointed counsel, but the defendant
retained private counsel before the evidentiary hearing and filed an amended petition,
alleging multiple instances of deficient performance by trial counsel, including that (1) trial
counsel performed deficiently in their “selecting, preparing, [and] presenting expert
witness testimony” to support an insanity defense, (2) trial counsel failed to notify the
petitioner of an inquiry by the Tennessee Board of Professional Responsibility (“BPR”)
into alleged misconduct by the prosecutor, (3) lead counsel represented the petitioner
despite an actual conflict of interests, (4) trial counsel failed to object to evidence that the
petitioner would not be subject to confinement if found not guilty by reason of insanity, (5)
trial counsel failed to notify the petitioner that the trial judge had a conflict of interests, and
(6) cumulative error.

At the October 3, 2018 evidentiary hearing, lead counsel testified that when
selecting an expert witness, he routinely sought references from other experienced lawyers.
Lead counsel agreed that his review of an expert’s draft and final reports are material to
the preparation of a defense. He said that it was his practice to review any draft report
prepared by the expert, explaining, “Well, there’s lots that the expert can get wrong.
There’s lots of material that the lawyer understands that the expert may in drafting the
report miss. . . . . You just want to make sure that [the report is] as accurate as it can
possibly be.” He said it was also his practice to discuss with the experts any omissions or
discrepancies in the draft report and ask them to “[c]hange their findings or their opinions.”
Lead counsel knew that a report prepared by an expert would be seen by the State.

Lead counsel testified that in his first meeting with the petitioner, the
petitioner “was in real distress, and he was extremely psychotic” and “struggling mightily.”
He said that the petitioner “was clearly hearing things” and “was obviously physically
2
The record does not indicate a further disposition on the petitioner’s especially aggravated
kidnapping charges.
-3-
trying to resist whatever it was he was being told to do.” Lead counsel said that he had
“[n]o doubt” that the petitioner was suffering from a mental illness. He said that he hired
Doctor Keith Caruso to evaluate the petitioner in an unrelated case in which lead counsel
was also representing the petitioner and that both Doctor Caruso and the State’s expert
determined that the petitioner “could rely on the defense of insanity” in that case. The trial
court gave lead counsel 60 days in which to submit a report from Doctor Caruso in this
case, which deadline Doctor Caruso said that he could not meet. Lead counsel received a
draft report from Doctor Caruso “sometime in the middle of May of [20]09,” which report
lead counsel reviewed, annotated, and discussed with Doctor Caruso. Lead counsel’s
annotated copy of the May 2009 report is included in the record.

Lead counsel said that the petitioner’s version of events reflected in Doctor
Caruso’s draft report was a version that lead counsel had “never heard . . . before.” He said
that he and his staff had met with the petitioner 44 times by that point and that the petitioner
had provided a consistent version of events during those meetings, which version was
inconsistent with the account he relayed to Doctor Caruso. Lead counsel said that he was
concerned about the draft report because he wanted to ensure that it was accurate, agreeing
that the credibility of the expert witness was central to the defense strategy. Lead counsel
said that Doctor Caruso confirmed that the version of events recounted in his draft report
reflected what the petitioner had told him.

Lead counsel said that Doctor Caruso submitted a second report on June 2,
2009, which report indicated that the petitioner had given an account of the offenses that
conformed with the version that he had consistently given trial counsel. Lead counsel
denied that he asked Doctor Caruso to change the report and denied that he told the doctor
the version of events that the petitioner had told him. He said that he only told the doctor
that the version of events in the May 2009 draft report was inconsistent with what the
petitioner had told him. Lead counsel explained that the petitioner’s version of events
recorded in the May 2009 report indicated that he knew who the victim was and that he
understood what he was doing at the time he killed her. The petitioner’s version of events
recorded in the June 2009 report, on the other hand, indicated that at the time of the
offenses, he believed that he was in danger and that he killed the victim believing she was
someone else there to attack him. Lead counsel said that after he told Doctor Caruso that
the petitioner had given him a different version of events, Doctor Caruso said that he would
re-interview the petitioner and “get to the bottom of that.”

Lead counsel said that when he asked the petitioner why he had initially
given Doctor Caruso a different version of events, the petitioner said that he had lied
because the version that he had told to lead counsel “ma[d]e me seem like I’m crazy and
I’m a monster, and I’m not. . . . . I don’t want to be viewed by others as being crazy and
a monster.” The petitioner also told lead counsel that others at the jail had told him that
-4-
lead counsel “was selling me out, you cannot win with a not guilty by reason of insanity
defense, and they’ve told me, ‘You can’t go to trial that way, you’ve got to come up with
a version that makes you look less crazy and less a monster.’” Lead counsel said that he
understood the report of June 2, 2009, to be Doctor Caruso’s final report and that he
provided a copy of the report to the State shortly after receiving it. Lead counsel noted that
it was long past the deadline given by the court to submit the report.

Lead counsel testified that when he reviewed the June 2009 report, he knew
that it did not reference the narrative of events in the May 2009 draft report but said that
the omission did not concern him because he did not consider the May 2009 report to be
anything more than a draft, noting that the doctor did not even sign the May 2009 report.
He said that he “understood the June [2009] report to be the report that [Doctor Caruso]
authorized me to file.” He reiterated that Doctor Caruso “never authorized me to file the
May [2009] report, it was never signed, it was inaccurate, it was a draft, it was submitted
to me originally as a draft. I never saw it as a report.” He acknowledged that the May
2009 report was not marked with the word “draft.”

Lead counsel said that on September 16, 2010, Doctor Caruso issued a
“psychiatric evaluation addendum.” He explained that the doctor “would from time to time
come back and update his evaluation by talking to [the petitioner].” Anytime Doctor
Caruso “updated the report he called it an addendum.” Doctor Caruso issued another
addendum to his report on October 21, 2011.

Lead counsel said that the defense strategy was a “mental health defense”
and that Doctor Caruso’s testimony was “[c]ritical to that defense.” He said that he met
with Doctor Caruso “frequently over three years” leading up to the trial. He said that on
the third day of trial, the State moved for the trial court to order the petitioner to produce
Doctor Caruso’s rough notes. Lead counsel told the prosecutor that he “didn’t have them,
I’d never seen them” but that he “would be glad to call [Doctor] Caruso and get them.”
Upon the request to produce his rough notes, however, the doctor was “‘pushing back’”
and said that he was “‘not going to turn over his rough notes.’” When lead counsel told
Doctor Caruso that the court had ordered his production of the notes, Doctor Caruso gave
his hand-written notes to lead counsel who “turned them over [to the State] before I had
read them.”

When reading Doctor Caruso’s notes in preparation for Doctor Caruso’s
testimony, lead counsel saw reference to the narrative of events that the petitioner had given
in his first interview with the doctor, which information lead counsel found “shocking.”
Lead counsel said that he “was extremely angry” and asked Doctor Caruso where that
information came from. When Doctor Caruso told lead counsel that he had given him the
information “‘in the report,’” lead counsel replied, “‘I’ve never seen this in my life, and
-5-
you’ve never given it to me.’” At that point, lead counsel believed that Doctor Caruso was
not being forthright with him and called several other attorneys and staff who had assisted
in this case, all of whom said that they had not seen this information before. When an
attorney located the May 2009 report that lead counsel had received from Doctor Caruso,
lead counsel said that he “had no recollection of ever seeing that report.” He knew that he
was “in big trouble” in this case and that “[t]he defense was probably gone.” Lead counsel
said that as soon as he realized that he had the May 2009 report, he turned it over to the
State as well.

Lead counsel said that the next day of trial, he requested an in-chambers
conference with the trial judge and the prosecutor and that he contacted the BPR for ethical
direction “to tell me how much of my predicament I could reveal to the [c]ourt in the
presence of the” district attorney. He said that in the conference, he “was as vague as I
could be to the judge, and to her credit, . . . she knew something was amiss.” The trial
court “gave me a day to try and sort through this to figure out what I was going to do next.”
Lead counsel said that he considered “scrap[ping] a mental health defense and we could
defend on the facts” but decided that “that was a terrible option.” The only other option
that he saw, and the one that he believed to be “the least damaging,” was to present “some
collateral mental health testimony that we could rely on and hope that the damage to
[Doctor] Caruso wouldn’t be fatal.”

Lead counsel said that he called Doctor Caruso to testify but that his
testimony was not effective and that the doctor “was eviscerated” on cross-examination.
He recalled that the State raised the issue of his changing the petitioner’s narrative of events
from the May 2009 report and implied that the doctor was not being truthful in his
testimony. He said that it “appeared that we . . . tried to sneak one by and got caught.”
When asked whether, in his judgment, he was effective in his handling of this matter on
behalf of the petitioner, lead counsel said, “No.”

During trial, the State cross-examined Doctor Caruso about an academic
impropriety that he had committed during medical school. Lead counsel said that he did
not know until after the trial had begun that Doctor Caruso had committed “academic
impropriety.” He explained that he had used Doctor Caruso as an expert in other trials
against other prosecutors from the same district attorney’s office and that the doctor’s past
record “was never an issue with any of them.” He acknowledged that he “should’ve
known” about the doctor’s past record but said that Doctor Caruso had “an unbelievably
impressive Curriculum Vitae” and was “affiliated with a number of incredible institutions”
that did not find his “academic improprieties . . . . to be debilitating.” Lead counsel agreed
that the State’s raising the doctor’s past academic improprieties at trial further damaged the
doctor’s credibility as a witness. He said that the State’s use of the doctor’s past record in
this case was “[d]evastating.”
-6-
Lead counsel testified that in preparation for trial, he learned that the
petitioner had written letters “to various individuals” and that the victim had maintained a
diary in which she indicated that she feared the petitioner because “he was crazy.” He said
that he moved for specific discovery of those items but that “[t]he State became angry with
those motions and maintained to the [c]ourt that they knew what their duties were with
regard to Brady and discovery and that they had complied.” (italics added). In a
subsequent in-chambers meeting with the prosecutor to unseal certain materials that had
been returned to the court from a mental health facility, lead counsel learned that the State
had provided the mental health facility with a copy of the letters and the diary entry and
that it became obvious that the State had not “complied with their obligations” in discovery
as they had alleged. The trial court held a hearing at which the prosecutor told the court
that she had not turned over the letters because, had lead counsel “realized that we were
monitoring the mail,” he would have told the petitioner “to stop writing letters.” The
prosecutor also told the court that she did not turn over the petitioner’s recorded jail
telephone calls because lead counsel would have told the petitioner “to stop making phone
calls.” The trial court ordered the State to provide the defendant with the withheld letters
and diary entry as well as “over a hundred[] telephone calls that they had recorded.”
Because lead counsel received this discovery only “a short time before trial,” he “informed
the [c]ourt that I wasn’t going to listen to them, I didn’t have time and that I would be
ineffective if I didn’t do that.” The trial court limited the State to the use of only 10
recorded telephone calls at trial, and the State provided those calls to lead counsel.

Lead counsel said that “shortly before the November trial date I got a call
from the [BPR] who said that they were looking into [the prosecutor] and that they wanted
to ask me some questions.” Lead counsel said that he did not discuss the BPR investigation
with the petitioner because the investigation was confidential and because he had been
instructed “not to share that with anyone.” He acknowledged that he did not ask the BPR
whether he could share the information with the petitioner. He said that he wrote three
letters to the BPR as part of the investigation and acknowledged that the letters were in
support of the prosecutor and that he did not tell his client about those letters.

Lead counsel recalled that during trial, State witness Doctor Rokeya
Farooque testified that if the petitioner were found not guilty by reason of insanity, he
would be released into the community. Lead counsel said that he did not object to that
testimony because co-counsel was cross-examining the doctor and because “it’s oftentimes
troubling to have somebody else jump up and interject objections when it’s your witness.”
He acknowledged that they should have objected to the testimony and that the statement
“was prejudicial . . . . [a]nd she repeated it multiple times.”

-7-
Lead counsel recalled that “very, very early” in the case, the trial judge
brought to the attention of the parties that her nephew “was dating someone who worked
at Barley’s,” the same restaurant where the victim worked. Lead counsel said that the
petitioner was present in the court room when the judge “announced it from the bench” and
that the petitioner asked lead counsel about it outside of the courtroom. Lead counsel said
that he told the petitioner, “‘Don’t worry about it, we’re in the court we want to be in.’”
He said that the “exchange didn’t last five seconds and was the last time that issue was ever
addressed.” Lead counsel said that he did not believe the issue was a conflict that he needed
to address.

During cross-examination, lead counsel testified that he developed a mental
health defense as a strategy before receiving Doctor Caruso’s May 2009 draft report and
that he did not see any other viable defense strategy. He said that Doctor Caruso had elite
credentials and was on the Administrative Office of the Court’s (“AOC”) list of approved
psychiatrists. He reiterated that Doctor Caruso had been recommended to him by “the
Post[-]Conviction Defender Office” and that Doctor Caruso “was respected.” Lead
counsel acknowledged that he first learned of the petitioner’s damaging version of events
when he received Doctor Caruso’s May 2009 report. He said that he did not have the
option to hire a second expert to replace Doctor Caruso after the May 2009 report
resurfaced during trial because the AOC would not have paid for it. He acknowledged that
the AOC had previously accommodated his requests for a new expert witness when the
first one did not work out but said that he had never requested a new expert “because I
didn’t like the opinion that I got.” He said that even if he had received the funds for a new
expert, he would “be in a difficult ethical position” concerning Doctor Caruso’s damaging
report.

Lead counsel acknowledged that the petitioner’s lying to Doctor Caruso put
the defense “in a position that [we] couldn’t get out of at that point” but said that “the
mistakes that I made compounded that” problem. He acknowledged that even if he had
remembered the damaging information in Doctor Caruso’s first report before trial, he
“would’ve still had the same dilemma” but asserted that “[i]t would’ve been better had I
discovered it sooner.” He acknowledged that at trial Doctor Caruso was able to explain
why he believed the petitioner’s first narrative of events to be false but said that the doctor’s
testimony was in “the context of the guy tried to sneak one by us and now he’s being caught
and now he’s trying to explain it away versus had we addressed it in the original first report
in June or addendums.” Lead counsel said that the jury may have “seen it differently had
he been and I’d been forthcoming about that early on.” He reiterated “that the perception
in the courtroom was that I had tried to sneak one by and [Doctor] Caruso had and we’d
been caught in the middle of the trial.” Lead counsel said that if he had remembered earlier
the existence of the May 2009 report and had realized that it had not been referenced or
explained in the June 2009 report, he would have “start[ed] with getting a new expert” then
-8-
determined “how much of [Doctor] Caruso’s work do you have to share with the new
expert. And depending on the answer that you reach in that analysis, you may be in no
different -- you may be in a box you can’t get out of.” He also said that had he remembered
the contents of the May 2009 report he could have had Doctor Caruso “own that and have
it show up in every report after that and have [Doctor] Caruso deal with why he believes
that not to be an accurate statement and how it’s consistent with someone who suffers from
schizoaffective disorder.” Lead counsel added that the way that he “handled” the May
2009 report was “all in the context of me believing that that information was a lie. It can’t
go in a report.”

Lead counsel acknowledged that in addition to Doctor Caruso’s testimony,
at least four other expert witnesses testified that the petitioner suffered from psychoses or
some mental disease. He also acknowledged that the fact that the petitioner suffered from
a mental health disorder was not at issue; the contention arose about whether the petitioner
appreciated the wrongfulness of his actions.

Lead counsel said that he knew of Doctor Caruso’s having altered data for a
research project while in medical school before he called Doctor Caruso to testify but that
he did not expect the trial court to allow that information into evidence because it occurred
over 20 years prior and was highly prejudicial. He also said that, at the time, he believed
that “in light of [Doctor Caruso’s] accomplishments post graduate,” the negative impact of
that information would be minimal if admitted.

Lead counsel reiterated that he believed BPR investigations to be
confidential and responses to BPR inquiries to be mandatory. He said that he believed the
prosecutor’s failing to give him the petitioner’s letters and recorded telephone calls was a
discovery issue and not an ethical one. He also said that he received the withheld materials
in February 2011, nine months before the November 2011 trial and that because the trial
court limited the State to using only a few of the recorded telephone calls, he had time to
review all of the materials before trial. Lead counsel said that he did not believe the
discovery violation by the State to be prejudicial at trial because he had time to review the
materials and because the State ended up using none of the recorded telephone calls. He
said that the BPR contacted him about the investigation into the prosecutor “maybe three
weeks before we went to trial.” Upon request by the BPR, lead counsel sent them the
transcript of the hearing in which the prosecutor admitted to withholding evidence to gain
a tactical advantage. He said that he was “troubled by the fact that [the prosecutor] had
stated in open court that she had complied with her obligations” under the rules of
discovery and Brady when she had not provided lead counsel with the materials she sent
to the mental health facility, but he acknowledged that in a letter to the BPR, he said that
he “did not believe that [the prosecutor] was unethical. I did not believe that she would
willingly lie to a judge and I told the Board that.” He clarified that he believed that he and
-9-
the prosecutor disagreed as to the meaning of the discovery rule and that the prosecutor
had explained that she knew of her duty to produce the information but argued that the rule
did not require her to provide it as soon as she came to possess it. Lead counsel said that
the BPR investigation was disconnected from his relationship to the petitioner and his
handling of the case. He said that it never occurred to him to move to disqualify the
prosecutor or the entire district attorney’s office and noted that the petitioner may not “have
been in any better position in terms of the abilities of the prosecutor” if he had moved for
disqualification. He also said that he “didn’t see that [the petitioner] was suffering by my
unwillingness or my failure to move to disqualify her.”

Lead counsel recalled that the State called Doctor Farooque as a rebuttal
witness to Doctor Caruso. Lead counsel acknowledged that Doctor Caruso had testified
that if found not guilty by reason of insanity, the petitioner could be committed to a mental
health facility indefinitely but emphasized that Doctor Caruso had been discredited as a
witness. He acknowledged that eliciting the testimony from Doctor Caruso was a strategic
decision to discourage the jury from thinking that if they found the petitioner not guilty by
reason of insanity, he would be released into the community despite his mental health
issues. Lead counsel acknowledged that he did not always object to every objectionable
issue at trial so as not to draw attention to damaging information. In this case, however,
lead counsel “thought the judge would give a curative instruction” regarding Doctor
Farooque’s testimony, but he acknowledged that he did not ask for one, explaining that he
did not think that he needed to ask for one because the error “was so clear.”

Lead counsel said that he would not have achieved a different outcome at
trial if the trial judge had recused herself to avoid a potential conflict of interests. He also
said that he did not believe that the potential conflict affected the trial judge’s conduct or
decisions during trial.

On redirect examination, lead counsel testified that the “way to deal” with
Doctor Caruso’s credibility issue was to have him reference the petitioner’s changed
narrative in his subsequent reports and explain why he believed the damaging narrative to
be untruthful. Lead counsel said that he believed such an action could have mitigated the
credibility issue.

Co-counsel testified that he joined the petitioner’s defense team in August
2011, three months before trial. He said that when he joined the team, he reviewed Doctor
Caruso’s latest report and that “it was very long and . . . even though it mentioned there
were other reports, it seemed like a stand-alone document.” He understood that
“[e]verything was contained in that one long report” and that he did not need to review the
draft report. He said that because insanity was the only defense in this case, Doctor
Caruso’s credibility was vital. Co-counsel said that his role at trial was “[h]andling the
-10-
experts” and noted that he questioned all except one of the expert witnesses at trial. He
said that in the middle of the trial, the trial court ordered the petitioner to provide Doctor
Caruso’s rough notes to the State and that lead counsel coordinated getting the notes from
the doctor. Co-counsel said that he met with Doctor Caruso prior to trial and believed him
to be a credible witness; co-counsel acknowledged that he did not know about Doctor
Caruso’s academic misconduct at that time, saying that he did not find out about it until
the middle of trial. Co-counsel explained that he did not think that Doctor Caruso’s past
misconduct “standing alone . . . would’ve been that big of an issue” but that it negatively
impacted his credibility when combined with the late discovery of his rough notes.

Co-counsel recalled first reading Doctor Caruso’s rough notes on a Friday
evening after the trial had begun and realizing that “there was . . . a problem” because the
version of events that the petitioner “had first told [Doctor Caruso] was completely
different” than the version “in his report and basically it did away with any insanity
defense.” Co-counsel asserted that had Doctor Caruso addressed the changed narrative in
his final report, the issue would not have damaged the doctor’s credibility as an expert
witness. He acknowledged that the way that the issue arose at trial gave the appearance
that the defense team and Doctor Caruso were trying to hide evidence. Co-counsel said
that “it was awful” and agreed that Doctor Caruso “was eviscerated” during cross-
examination. He believed that Doctor Caruso had no credibility with the jury by the end
of his testimony. Co-counsel testified that he believed that the correct professional and
ethical course of action was for lead counsel to have ensured that Doctor Caruso’s final
report and addendums addressed the May 2009 report and the petitioner’s changed
narrative. He said that no one on the defense team disputed that they had made a mistake
in handling Doctor Caruso’s reports.

Co-counsel acknowledged that he did not object to Doctor Farooque’s
testifying that the petitioner could be released into the community if found not guilty by
reason of insanity and explained that he did not realize until after trial that “what she had
testified to was inappropriate.” He said that he raised the issue in the motion for new trial
but was limited to plain error review. He acknowledged, “I should have known and should
have objected.”

During cross-examination, co-counsel acknowledged that “[t]he physical
proof that [the petitioner] was the one” who committed the offenses “was overwhelming”
and that insanity was the only plausible defense. He also acknowledged that all of the
experts, including the State’s witnesses, agreed that the petitioner suffered from a mental
disease or defect.

Co-counsel laid out the timeline of events, saying that jury selection began
on November 7, and the State rested its case-in-chief on November 11, a Friday. He
-11-
received Doctor Caruso’s rough notes that Friday evening and had the weekend to review
them and consider how to deal with the petitioner’s false narrative and Doctor Caruso’s
credibility. On Monday, November 14, the parties had an in-chambers conference with the
trial court that led to the court’s granting the petitioner a one-day continuance. Co-counsel
said that they decided to call Doctor Caruso to testify “because we had nothing else,” and
on direct examination, Doctor Caruso explained his omitting any reference to the May 2009
report in his future reports. Co-counsel acknowledged that Doctor Malcolm Spica’s
neuropsychological test supported Doctor Caruso’s explanation for why he believed the
petitioner’s first narrative of events was false but explained that Doctor Caruso “was the
only one who could say that for this crime [the petitioner] fit the insanity test”; the other
evidence was “background” and “supporting stuff.” He acknowledged that he expected
Doctor Farooque to testify that the petitioner understood the wrongfulness of his conduct
at the time of the offenses and that he was relying on Doctor Caruso’s testimony to counter
that evidence.

Co-counsel said that he elicited testimony from Doctor Caruso on direct
examination that if found not guilty by reason of insanity, the petitioner would be
committed to a psychiatric facility to alleviate any concerns of the jury that the petitioner
“would get out the door tomorrow.” “[W]e thought it was necessary to let them know that
that’s not how it works, that he doesn’t just get let out, that there’s this other process.” He
acknowledged that he understood Doctor Farooque’s testimony that the petitioner “was not
committable” was in response to Doctor Caruso’s testimony but reiterated that he was not
aware at the time that it was objectionable.

Upon questioning by the court, co-counsel testified that he believed the
petitioner lied to Doctor Caruso in his first narrative of events because the petitioner had
read an article stating that no defendant had been successful in presenting an insanity
defense “in the entire state” since a change in the relative law.

Doctor Katherine Rae Smith testified at the post-conviction evidentiary
hearing as an expert in forensic psychology. She said that when “doing a court ordered
evaluation, it’s expected that I’m going to prepare a report, that’s just part of the job.” She
said that if she is “retained by defense counsel, then I complete my evaluation and report
findings to the attorney. And I typically wait to be asked to prepare a report.” She
explained that attorneys do not always “want a report because there’s not anything that
they expect to use.”

Doctor Smith said that in this post-conviction case, she was retained to
review certain materials, including “the trial transcript and mental health records that were
relied upon in the evaluation and records of the evaluation reports that were produced” for
trial, including Doctor Caruso’s May 2009 report. She said that it was her practice to “give
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a draft report labeled draft and then . . . ask the attorney to review it, and if there are factual
areas or typos or problems to inform me of those so that I can make it accurate.” She then
would “wait to be asked for a final report.” She said that, on occasions, attorneys have
“disclosed my draft reports, which I don’t like that, but I don’t have any control over that.”

Doctor Smith testified that Doctor Caruso violated the professional standards
of the American Psychological Association by failing to incorporate the May 2009 report
into his subsequent reports, noting that Doctor Caruso’s omission “was misleading.” She
explained that “it’s okay to have new data, but he completely omitted it from anything that
he produced after the initial report. And it gave the appearance that the version that was
included in the later reports was the only version.” She said that had a new psychologist
taken over the case, Doctor Caruso would have been ethically obligated to turn over the
draft report of May 2009. She said that in her professional opinion, Doctor Caruso should
have incorporated the changed narrative into his reports; “[i]t could not be ignored.” She
opined that “the way to communicate that would be to just describe the process or the
progression of data and to spell out why he felt that the later version, the second version, .
. . was more compelling or more persuasive.” She believed that Doctor Caruso’s omission
in his later reports damaged his credibility, which she said was a hallmark of an expert
witness.

During cross-examination, Doctor Smith testified that in Doctor Caruso’s
May 2009 report with the petitioner’s first narrative of events, Doctor Caruso concluded
that the petitioner suffered from a mental disease and that he could not appreciate the
wrongfulness of his actions. She acknowledged that Doctor Caruso’s opinion as to the
petitioner’s insanity did not change with the petitioner’s changed narrative but said that
“the story matters” and “is contextualized.” She agreed that the petitioner’s changed
narrative was relevant to Doctor Caruso’s professional conclusions. She said that she did
not believe “that you can have a fair fight about [the petitioner’s] knowledge of
wrongfulness” at the time of the offenses “without a solid evaluation” by the petitioner’s
expert, “not a messy unprofessional, incomplete evaluation that got exposed during the
trial.”

The State exhibited to the hearing an affidavit of Lacey Wilber, General
Counsel for the AOC, and the AOC’s records showing that Doctor Caruso had been used
as an expert witness numerous times since the petitioner’s trial.

At the close of the hearing, the post-conviction court asked the parties to
submit supplemental briefs to further address the issue of whether lead counsel would have
had an obligation to disclose Doctor Caruso’s May 2009 report to a subsequent expert
witness had he hired one.

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The post-conviction court issued an order denying post-conviction relief on
February 26, 2019. In its order, the post-conviction court addressed only the issues of
whether trial counsel performed deficiently in their selection of Doctor Caruso as an expert
witness and in their handling of the May 2009 report. The post-conviction court found that
although Doctor Caruso’s “testimony was of vital importance to the defense, his testimony
was far from the only evidence presented” in support of his insanity defense. The court
also found that “trial counsel were diligent in their selection of D[octor] Caruso as an
expert” and that the petitioner’s “alternate narrative” of events given to Doctor Caruso
“burdened” his defense “with this narrative whether through the testimony of D[octor]
Caruso, the advocacy of trial counsel, or through a successor to one or both.”

The petitioner timely appealed the post-conviction court’s denial of relief,
and this court concluded that the post-conviction court’s findings of fact and conclusions
of law were inadequate to facilitate meaningful review, reversed the post-conviction
court’s judgment, and remanded the case to the post-conviction court for an order
addressing all of the issues raised in the amended post-conviction petition. Micah Ross
Johnson, slip op. at 13-14.

On remand, the post-conviction court entered a new order on February 22,
2021, denying post-conviction relief and “incorporat[ing] by reference the content and
findings set forth in the [c]ourt’s Final Order” of February 26, 2019. In its February 2021
order, the post-conviction court found that the trial court had “properly advised the parties
that a potential conflict of interest[s] existed,” that “the witness who created the potential
conflict was never called at trial,” and that the petitioner failed to show that he was
prejudiced by the “tangential and ultimately unrealized” conflict. As to lead counsel’s
failure to apprise the petitioner of the BPR investigation against the prosecutor, the post-
conviction court found that the petitioner failed to show that he was prejudiced by counsel’s
action. The court also found that lead counsel’s participation in the BPR’s investigation
amounted to his being “a fact witness” and did not create an actual or potential conflict of
interests. Finally, the post-conviction court found that the petitioner failed to establish that
trial counsel’s failure to object to testimony that the petitioner “‘was not commit[t]able to
a mental health facility’” prejudiced his defense.

In this timely appeal, the petitioner reasserts the claims raised in his amended
post-conviction petition.

We view the petitioner’s claim with a few well-settled principles in mind.
Post-conviction relief is available only “when the conviction or sentence is void or voidable
because of the abridgment of any right guaranteed by the Constitution of Tennessee or the
Constitution of the United States.” T.C.A. § 40-30-103. A post-conviction petitioner bears
the burden of proving his or her factual allegations by clear and convincing evidence. Id.
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§ 40-30-110(f). On appeal, the appellate court accords to the post-conviction court’s
findings of fact the weight of a jury verdict, and these findings are conclusive on appeal
unless the evidence preponderates against them. Henley v. State, 960 S.W.2d 572, 578-79
(Tenn. 1997); Bates v. State, 973 S.W.2d 615, 631 (Tenn. Crim. App. 1997). By contrast,
the post-conviction court’s conclusions of law receive no deference or presumption of
correctness on appeal. Fields v. State, 40 S.W.3d 450, 453 (Tenn. 2001).

Before a petitioner will be granted post-conviction relief based upon a claim
of ineffective assistance of counsel, the record must affirmatively establish, via facts
clearly and convincingly established by the petitioner, that “the advice given, or the
services rendered by the attorney, are [not] within the range of competence demanded of
attorneys in criminal cases,” see Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975), and
that counsel’s deficient performance “actually had an adverse effect on the defense,”
Strickland v. Washington, 466 U.S. 668, 693 (1984). In other words, the petitioner “must
show that there is a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Id. at 694. Should the
petitioner fail to establish either deficient performance or prejudice, he is not entitled to
relief. Id. at 697; Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996). Indeed, “[i]f it is
easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice,
. . . that course should be followed.” Strickland, 466 U.S. at 697.

When considering a claim of ineffective assistance of counsel, a reviewing
court “begins with the strong presumption that counsel provided adequate assistance and
used reasonable professional judgment to make all significant decisions,” Kendrick v.
State, 454 S.W.3d 450, 458 (Tenn. 2015) (citation omitted), and “[t]he petitioner bears the
burden of overcoming this presumption,” id. (citations omitted). We will not grant the
petitioner the benefit of hindsight, second-guess a reasonably based trial strategy, or
provide relief on the basis of a sound, but unsuccessful, tactical decision made during the
course of the proceedings. Adkins v. State, 911 S.W.2d 334, 347 (Tenn. Crim. App. 1994).
Such deference to the tactical decisions of counsel, however, applies only if the choices are
made after adequate preparation for the case. Cooper v. State, 847 S.W.2d 521, 528 (Tenn.
Crim. App. 1992).

Doctor Caruso

The petitioner asserts that trial counsel performed deficiently by relying on
Doctor Caruso as an expert witness and by “failing to select and vet a credible expert
witness to support [his] insanity defense.” Additionally, the petitioner argues that trial
counsel should have discovered that Doctor Caruso’s initial, damaging report was not
referenced or included in his later report, positing that trial counsel’s conduct destroyed
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Doctor Caruso’s credibility and destroyed his sole defense of insanity.

Generally, the selection of an expert witness lies within the sound discretion
of trial counsel. See Kendrick, 454 S.W.3d at 475. Here, the evidence established that lead
counsel selected Doctor Caruso from a list of experts approved by the AOC based on the
recommendation of other experienced attorneys who had used Doctor Caruso’s services.
Lead counsel also reviewed Doctor Caruso’s curriculum vitae and determined that he had
elite credentials in his field. Although Doctor Caruso acknowledged at trial that he had
committed academic misconduct in medical school, that misconduct did not appear to have
impeded Doctor Caruso’s excelling in his career. The petitioner has failed to establish that
trial counsel performed deficiently in his selection of Doctor Caruso as an expert witness.
The petitioner put on no evidence that trial counsel would have elected not to use Doctor
Caruso’s services had he known about the doctor’s 20-year-old act of academic
misconduct. Lead counsel testified that he did not expect the trial court to admit the
doctor’s misconduct into evidence, and co-counsel testified that the academic misconduct
alone was likely insufficient to render the doctor’s testimony incredible. Because trial
counsel indicated that they did not believe that the doctor’s academic misconduct would
be an issue at trial, it is unlikely that they would have forgone his services on that ground
alone.

Trial counsel did, however, perform deficiently in their handling of Doctor
Caruso’s May 2009 report. The record establishes that lead counsel knew of and was in
possession of Doctor Caruso’s May 2009 report and the petitioner’s damaging narrative of
events two years before trial. That lead counsel believed the May 2009 report to be only a
draft does not excuse his neglect in forgetting about the petitioner’s changed narrative or
in failing to notice the omission of any reference to that narrative in the June 2009 report.
The information contained in the May 2009 report was damaging to the petitioner’s
defense, and trial counsel did nothing in advance of trial to mitigate that damage.
Furthermore, counsel did nothing to mitigate the damage posed to Doctor Caruso’s
credibility by his omission of the changed narrative in his subsequent reports.

Although the post-conviction court found that the jury would have heard the
damaging narrative of events regardless of what trial counsel had done, whether the jury
heard the evidence was not the only potential prejudice posed by counsel’s actions. The
petitioner argues, and the post-conviction court did not address, that trial counsel’s failure
to realize Doctor Caruso’s omission of the changed narrative in his June 2009 and
subsequent reports caused Doctor Caruso to appear incredible to the jury. Although Doctor
Caruso addressed the omission in his testimony, trial counsel testified that they could have
mitigated the damage to Doctor Caruso’s credibility by pointing out the omission to Doctor
Caruso and having him include a reference to the May 2009 report and the petitioner’s
changed narrative in his subsequent reports. Doctor Caruso’s subsequent reports could
-16-
also have provided his professional opinion as to why the petitioner’s first narrative of
events was untruthful.

The trial transcript shows that on direct examination, Doctor Caruso
explained that the petitioner had given him a false version of events and told the doctor that
he lied because “voices” or “other inmates told me not to tell you the truth.” Doctor Caruso
also testified that the petitioner told him that he had lied in his first narrative of events
because he did not want to “look like a monster.” Doctor Caruso explained that the
petitioner admitted to lying in his first interview and that he did not believe the petitioner’s
first account of the events. Although the jury heard Doctor Caruso’s explanations, the State
used Doctor Caruso’s omission of the changed narrative in his subsequent reports to attack
his credibility.

When the State cross-examined Doctor Caruso at trial, he read into the record
portions of his hand-written notes of his interviews with the petitioner. The State attacked
Doctor Caruso’s credibility by raising the discrepancies in word choice between his hand-
written notes and his typed reports. The State also raised the fact that the June 2009 report
contained no reference to the May 2009 report or the changed narrative, and Doctor Caruso
explained that he should have labeled the June 2009 report an addendum and that it “was
an error” to not reference the May 2009 report in the subsequent reports. Doctor Caruso
also testified that it was his understanding that the May 2009 report was not a draft and that
he believed that the State had received it with discovery materials; he said that he was “not
trying to suppress anything.” He pointed out that in all of the reports, he noted that he had
interviewed the petitioner on October 9 and 10, 2008, which interviews formed the basis
of his May 2009 report. The State also impeached Doctor Caruso with his having “altered
data on a med[ical] student research project” when he was in medical school in the late
1980s. Doctor Caruso explained that he never published the manipulated data and
graduated the following year and that the misconduct “hasn’t been an issue the rest of my
career.”

In closing arguments at trial, the State argued that, for the jury to find the
defendant not guilty by reason of insanity, they had to believe Doctor Caruso’s testimony.
The State went on to argue that Doctor Caruso’s failure to incorporate the May 2009
narrative of events into his subsequent reports conveniently supported the petitioner’s
insanity defense. The State also emphasized that Doctor Farooque, in contrast to Doctor
Caruso, had conducted a thorough and open-minded investigation and had concluded that
the petitioner could appreciate the wrongfulness of his conduct at the time of the offenses.

The State argues that the petitioner has failed to establish that he was
prejudiced by counsel’s actions, asserting that the jury convicted the petitioner on the basis
of the narrative of events contained in the May 2009 report and that the jury would have
-17-
heard that evidence regardless of counsel’s conduct. The State also argues that other
evidence, namely testimony from the petitioner’s father and stepmother and an entry from
the victim’s diary, supported the petitioner’s insanity defense. Additionally, the State
points out that evidence from Doctor Malcolm Spica indicated that the petitioner “would
likely only be violent during a state of psychosis” and that another doctor had determined
that the petitioner could not appreciate the wrongfulness of his actions when he committed
an assault in an unrelated case. As the petitioner points out, however, the fact of the
petitioner’s suffering from a mental disease or defect was not at issue. The only point of
disagreement was whether the petitioner could understand the wrongfulness of his actions
during the offenses in this case. That the petitioner was deemed insane in an unrelated case
does not speak to whether he was insane at the time of the offenses in this case. Moreover,
that the petitioner may have been violent only during a state of psychosis does not speak
to whether the petitioner could understand the wrongfulness of his actions during such a
psychotic state. Therefore, Doctor Caruso was the only defense witness who could speak
to the ultimate issue of whether the petitioner understood the wrongfulness of his actions
at the time that he killed the victim.

Because insanity was the petitioner’s sole defense and because, as the State
pointed out in its closing argument, Doctor Caruso’s credibility was vital to that defense,
we conclude that trial counsel’s deficient performance in dealing with the May 2009 report
damaged Doctor Caruso’s credibility “sufficient[ly] to undermine [our] confidence in the
outcome” of the case. See Strickland, 466 U.S. at 694. Consequently, the judgment of the
post-conviction court is reversed and the case is remanded for a new trial.

To facilitate further review, we will address the petitioner’s remaining issues

BPR Investigation

As to the petitioner’s assertion that lead counsel should have disclosed to the
petitioner that the BPR was investigating the prosecutor for her handling of discovery
materials in his case, the petitioner has failed to establish that he is entitled to post-
conviction relief on this ground. First, lead counsel testified that he maintained the
confidentiality of the investigation as he was ordered to by the BPR, and the rules
governing the BPR’s investigations required lead counsel to keep the investigation and his
correspondence with the BPR confidential. Tenn. Sup. Ct. R. 9, § 32.1 (“All matters,
investigations, or proceedings involving allegations of misconduct by . . . an attorney,
including all information, records, minutes, correspondence, files or other documents of
the Board . . . shall be confidential and privileged . . . .”). The petitioner has not shown
that lead counsel performed deficiently by following the rules of the BPR. Furthermore,
the petitioner has not shown that having the prosecutor removed from his case would have
changed the outcome of the trial and has not shown that his knowledge of the investigation
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would have changed his trial strategy in any way. He is not entitled to relief on this ground.

Trial Court’s Conflict of Interests

The petitioner also argues that trial counsel were ineffective by not seeking
the recusal of the trial judge because of a potential conflict of interests. The record
establishes that the trial judge disclosed the potential conflict and that trial counsel made a
strategic decision not to seek the judge’s removal from the case. This is precisely the sort
of strategic decision that is left to the sound discretion of trial counsel. See Adkins v. State,
911 S.W.2d at 347. Moreover, the petitioner has failed to show that the he was prejudiced
by counsel’s failure to seek the judge’s recusal. The witness with whom the trial judge had
a potential conflict was not called to testify at trial, and the petitioner has not shown that
he would have achieved a different outcome had he had a different trial judge.

Failure to Object

Next, the petitioner argues that trial counsel performed deficiently by failing
to object to Doctor Farooque’s testimony that the petitioner would not be committable to a
mental health institution if he were found not guilty by reason of insanity and by failing to
preserve the issue for appellate review. The petitioner has failed to establish that he was
prejudiced in this matter. Lead counsel testified that, although he should have objected to
the statement, he did not object because co-counsel was cross-examining Doctor Farooque
and that he did not want to interrupt or distract co-counsel. Co-counsel testified that he did
not realize that the testimony was inappropriate and objectionable at the time. Even if trial
counsel had objected and the trial court had struck Doctor Farooque’s statement, the
petitioner has not shown that he would have achieved a different outcome in this case. The
trial court instructed the jury: “A verdict of ‘not guilty by reason of insanity’ shall result
in the automatic detention of the [d]efendant in a mental hospital or treatment center
pending further medical and legal findings.” (italics in original). The trial court also
instructed the jury to decide the case “only after an impartial consideration of the evidence”
and to “have no prejudice or sympathy or allow anything but the law and the evidence to
have any influence upon your verdict. You must render your verdict with absolute fairness
and impartiality as you think justice and truth dictate.” The jury is presumed to have
followed these instructions, see State v. Kiser, 284 S.W.3d 227, 272 (Tenn. 2009) (citing
State v. Banks, 271 S.W.3d 90, 134 (Tenn. 2008)), and the petitioner presented no evidence
to the contrary.

Cumulative Error

Finally, the petitioner argues that he is entitled to post-conviction relief
because of the cumulative effect of trial counsel’s errors. Because the petitioner has
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established only one instance of trial counsel’s deficient performance, we need not consider
the aggregate prejudicial effect of counsel’s conduct.

Accordingly, the judgment of the post-conviction court is reversed and the
case is remanded for a new trial.

_________________________________
JAMES CURWOOD WITT, JR., JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6113779. Public record. Not legal advice.