Jessie Dotson v. State of Tennessee

03/23/2022

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

August 17, 2021 Session

JESSIE DOTSON v. STATE OF TENNESSEE

Appeal from the Criminal Court for Shelby County

No. 08-07688 James C. Beasley, Jr., Special Judge

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No. W2019-01059-CCA-R3-PD

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The Petitioner, Jessie Dotson, appeals the post-conviction court’s denial of his post-

conviction petition, in which he challenged his six convictions for first degree

premeditated murder and three convictions for attempted first degree murder and his

resulting sentences of death for each of the first degree murder convictions plus 120

years. On appeal, the Petitioner contends that (1) he received ineffective assistance of

counsel at trial and on appeal; (2) the Administrative Office of the Courts (“AOC”) and

the Chief Justice of the Tennessee Supreme Court improperly vacated the post-conviction

court’s orders granting the Petitioner’s request for funding of experts; (3) the convictions

and death sentences were the result of juror misconduct; (4) the State and the trial court

committed various errors; (5) the Petitioner’s convictions and death sentences and

Tennessee’s execution method are unconstitutional; and (6) cumulative error warrants

relief. Upon reviewing the record, the parties’ briefs and oral arguments, and the

applicable law, we affirm the judgment of the post-conviction court.

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

JOHN EVERETT WILLIAMS, P.J., delivered the opinion of the court, in which D. KELLY

THOMAS, JR., and TIMOTHY L. EASTER, JJ., joined.

Justyna Scalpone, Post-Conviction Defender; and Andrew L. Harris (at hearing and on

appeal), Kelly Gleason (at hearing), and Christopher M. Minton (on appeal), Assistant

Post-Conviction Defenders, for the appellant, Jessie Dotson.

Herbert H. Slatery III, Attorney General and Reporter; Andrée Sophia Blumstein,

Solicitor General; Courtney N. Orr, Assistant Attorney General; Amy P. Weirich, District

Attorney General; and Stephen Jones, Assistant District Attorney General, for the

appellee, State of Tennessee.

OPINION

FACTUAL AND PROCEDURAL HISTORY

In March of 2008, the Petitioner shot and killed his brother, Mr. Cecil Dotson, Sr.;

his brother’s fiancé, Ms. Marissa Williams; his brother’s friend, Mr. Hollis Seals; and Mr.

Seals’s girlfriend, Ms. Shindri Roberson, while at his brother’s home. The Petitioner

then attacked his brother’s five children with kitchen knives and wooden boards. Mr.

Cecil Dotson’s four-year-old son, Cemario, and two-year-old son, Cecil II, died as the

result of injuries sustained from the attack. His nine-year-old son, C.J., five-year-old son,

Cedrick, and two-month-old daughter, Ceniyah, survived the attack.1

A jury convicted the Petitioner of six counts of premeditated first degree murder

and three counts of attempted first-degree murder. The jury sentenced the Petitioner to

death for each of the first degree murder convictions. Following a separate sentencing

hearing, the trial court sentenced the Petitioner as a Range II, multiple offender to forty

years for each conviction of attempted first degree murder to be served consecutively to

each other and to the death sentences. The Tennessee Supreme Court affirmed the

Petitioner’s convictions and sentences on direct appeal. See State v. Dotson, 450 S.W.3d

1, 11-12 (Tenn. 2014).

The Petitioner timely filed a pro se petition for post-conviction relief. The Office

of the Post-Conviction Defender (“OPCD”) was appointed to represent the Petitioner and

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

issued a lengthy written order denying relief. This appeal ensued.

Trial Proceedings

We summarize the evidence presented at trial as it relates to the issues raised in

the post-conviction proceedings.

1

Consistent with the Tennessee Supreme Court’s opinion on direct appeal, we use given names

and abbreviated forms of given names when referring to the child victims. See State v. Dotson, 450

S.W.3d 1, 12 n.2 (Tenn. 2014). The Court noted that the use of the child victims’ given names did not

compromise their privacy because the record reflected that the surviving children’s surnames were

changed following the commission of the crimes. Id.

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A. Guilt Phase

1. Discovery of the Victims

Following the Petitioner’s release from prison in August 2007, he began living

with his sister, Ms. Nicole Dotson, at her apartment in Memphis, while working with his

father, Mr. Jessie Dotson Sr., as a painter. Id. at 12. The Petitioner’s family referred to

him as “Junior.” Id. Ms. Nicole Dotson testified that the Petitioner held a “grudge”

against his family for failing to visit him more often while he was in jail and that the

Petitioner expressed his feelings to her on a daily basis. Id. at 29. She stated that she was

too frightened of the Petitioner to ask him to move out of her apartment. Id. The

Petitioner’s father testified that the Petitioner and Mr. Cecil Dotson had a normal

relationship but that it bothered the Petitioner whenever Mr. Cecil Dotson told others that

the Petitioner had recently been released from jail. Id. at 30.

On Saturday, March 1, 2008, the Petitioner, his father, and his half-brother, Mr.

William Waddell, went to Mr. Cecil Dotson’s Memphis home, which he shared with Ms.

Williams and his children. Id. at 12. The Petitioner’s father recalled seeing a “powder

blue” revolver, which was the type of firearm that did not eject shell casings, on the

counter at the home. Id. at 30. Mr. Cecil Dotson moved the gun, commenting that the

children might mistake it for a toy, and told the Petitioner that he had moved the gun. Id.

Mr. Waddell stated that the Petitioner had a black and silver gun that evening, instead of

the blue revolver that he ordinarily carried. Id. at 31. The Petitioner’s father left during

the early evening, and Mr. Waddell left at 10:30 or 11:00 p.m. Id. at 12.

At 10:00 or 10:30 p.m., the Petitioner and Mr. Cecil Dotson went to the home of

Ms. Sheila Jones, the Petitioner’s girlfriend, but left upon learning that Ms. Jones was not

there. Id. at 26. Ms. Keaira Jones, Ms. Sheila Jones’s daughter, testified that both the

Petitioner and Mr. Cecil Dotson appeared intoxicated. Id. Between 10:30 and 11:30

p.m., the Petitioner, Mr. Cecil Dotson, and Mr. Seals went to the apartment of Mr. Willie

Boyd Hill, Jr. Id. at 27. Mr. Hill, Mr. Seals, and Mr. Cecil Dotson were members of the

Gangster Disciples, while the Petitioner was a member of the Crips gang. Id. Mr. Seals

had recently been released from jail and came to retrieve a pistol he had left with Mr.

Hill. Id. Mr. Seals retrieved a P-232 Sig Sauer, .380-caliber handgun, which could hold

up to eight rounds, consisting of seven-rounds in the magazine and a single round in the

chamber. Id. Mr. Seals took the loaded gun and left with the Petitioner and Mr. Cecil

Dotson. Id.

At around midnight on March 2, 2008, Mr. Cecil Dotson, the Petitioner, and Mr.

Seals went to the home of Ms. Stacey Young, a friend of Mr. Cecil Dotson. Id. at 29.

Mr. Cecil Dotson told her that he would return after dropping off Mr. Seals and the

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Petitioner, but Mr. Cecil Dotson never returned. Id. At approximately 12:30 a.m., Mr.

Cecil Dotson, the Petitioner, and Mr. Seals went to the apartment of Ms. Erika Smith,

Cecil II’s mother, and Mr. Cecil Dotson spoke to her in the parking lot. Id. After the

men left, Ms. Smith called Mr. Cecil Dotson multiple times. Id. During the last call at

approximately 2:00 a.m., Ms. Smith overheard Mr. Cecil Dotson and the Petitioner

arguing and using profanity. Id.

Between 3:00 a.m. and 4:30 a.m., the Petitioner returned to the home of Ms. Sheila

Jones and Ms. Keaira Jones. Id. at 26. Ms. Keaira Jones allowed the Petitioner to enter

the apartment, and she returned to her bedroom. Id. Approximately five minutes later,

the Petitioner knocked on her bedroom door and asked to talk to her. Id. She was putting

her son to sleep and told the Petitioner that she would speak to him shortly. Id. She

heard water running in the bathroom and fell asleep without speaking to the Petitioner.

Id. Ms. Sheila Jones returned home at approximately 5:00 a.m. and found the Petitioner

lying in her bed. Id. at 27. They went to sleep and got up at 10:30 or 11:00 a.m., and she

drove the Petitioner to Ms. Nicole Dotson’s apartment. Id. After the Petitioner and Ms.

Sheila Jones left, Ms. Keaira Jones noticed bleach spots on the brown rug in the

bathroom. Id. at 26. A bottle of Clorox bleach was in the hallway and was not stored in

its usual place. Id.

The Petitioner’s father arrived at Ms. Nicole Dotson’s apartment the next morning

to pick the Petitioner up for work, but the Petitioner was not there. Id. at 12. His father

instructed Ms. Nicole Dotson to tell the Petitioner to contact him if he wanted to keep his

job. Id. Later that evening, the Petitioner called his father and explained that he had not

called earlier because his girlfriend had hidden his cell phone during an argument. Id.

He did not explain why he missed work. Id. The Petitioner and Mr. Waddell went to

dinner that evening, and the Petitioner asked Mr. Waddell if he wanted to pick up Mr.

Cecil Dotson. Id. at 12-13. Because Mr. Waddell had been unable to reach Mr. Cecil

Dotson via telephone numerous times throughout the day, they did not go by Mr. Cecil

Dotson’s home. Id. at 13.

Ms. Smith had not spoken to Mr. Cecil Dotson since the early morning hours of

March 2nd, and no one had come to the door of his home when she knocked that

afternoon. Id. Although the door was partially open and the radio was playing, Ms.

Smith did not see anyone or hear the children. Id. On the morning of March 3rd, Ms.

Smith learned that Mr. Cecil Dotson had not shown up for work and that family members

had not heard from him. Id. She was unable to reach him by telephone and called the

police. Id.

Officer Randall Davis, the first officer to arrive, could “‘smell the dead bodies’” as

he walked into the front door. Id. A firefighter, who arrived later, confirmed that when

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he approached the house, he “‘could smell the blood in the air’” and described it as “‘[a]

thick, spoiled smell like it had been there a while.’” Id. Officer Davis noted that the

storm door was closed and that the interior door was partially open, and he saw a

person’s foot lying on the floor inside. Id. Upon entering the house, he discovered the

four adult victims, all of whom appeared to have sustained multiple gunshot wounds and

were deceased. Id. A paramedic later confirmed that the adult victims were deceased

and noted that the blood on the victims appeared to have dried. Id. at 14.

Officer Davis and other officers continued to search the house. Id. at 13. There

was blood throughout the house, but none of it appeared to be fresh. Id. Officer Davis

discovered C.J. in the bathtub of the hallway bathroom with a knife embedded in his

head. Id. Initially, Officer Davis believed C.J. was deceased but then noticed C.J.’s eyes

twitch. Id. A firefighter who attended to C.J. and transported him to an ambulance saw

cuts on C.J.’s face and a “sawzall blade” sticking out of the top of his head. Id. at 14.

The bathroom was “‘a mess,’” with “‘blood everywhere.’” Id. An emergency medical

technician (“EMT”) testified that upon entering the bathroom, C.J. “‘turned his head and

the next thing we saw was one of the most horrible things I’ve seen, it was a knife stuck

embedded in his skull and it was just stuck there. And it absolutely is the worst thing

I’ve ever seen in my life.’” Id. The EMT noted puncture wounds on C.J.’s abdomen and

superficial cuts to his neck. Id.

Officer Davis discovered Cemario, who was deceased, in a bedroom on the left

side of the hallway (“bedroom two”). Id. at 13. He discovered Cecil II and Cedrick, both

of whom he believed were deceased, in another bedroom (“bedroom one”). Id.

Emergency medical personnel determined that Cedrick was still alive and transported

him in an ambulance. Id. at 14. Another officer discovered Ceniyah, who was still alive,

and removed her from the home. Id. at 13.

2. Crime Scene Evidence

Sergeant Anthony Mullins of the Memphis Police Department’s Homicide Bureau,

who was accepted by the trial court as an expert in general crime scene investigation and

bloodstain pattern analysis, testified regarding his observations of the crime scene and the

collection of evidence by the crime scene processing team. Id. at 15. He described the

crime scene as horrific and said it was the worst he had ever worked. Id. The adult

victims sustained multiple gunshot wounds, and all of the adult victims except Mr. Seals

sustained at least one gunshot wound to the leg. Id. A nine-millimeter firearm and a .380

caliber firearm were used in the shooting, but neither firearm was located at the scene.

Id. Officers recovered spent bullets throughout the living room and two nine-millimeter

and three .380 caliber spent cartridge casings on the living room floor. Id. A sealed

Ziploc bag containing eleven nine-millimeter and five .380 caliber spent cartridge casings

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was located underneath a jacket on the love seat, and Sergeant Mullins concluded that the

perpetrator or perpetrators collected the shell casings after the shootings in order to

remove them from the scene. Id.

Special Agent Cervinia Braswell, a forensic scientist with the Tennessee Bureau of

Investigation (“TBI”), analyzed the eight .380 caliber cartridge casings and the thirteen

nine-millimeter cartridge casings. Id. at 37. She concluded that all of the .380 caliber

casings were fired from the same gun and that all of the nine-millimeter casings were

fired from the same nine-millimeter firearm. Id. She noted that a .380 caliber firearm

typically holds eight rounds, with seven rounds in the magazine and one round in the gun,

and that a nine-millimeter firearm typically told thirteen rounds, with twelve rounds in

the magazine and one round in the gun. Id. She testified that a single person could have

fired all thirteen rounds from the nine-millimeter firearm and all eight rounds from the

.380 caliber firearm within a short period of time. Id.

Mr. Cecil Dotson sustained several gunshot wounds, including multiple wounds to

the front of his body and to his lower legs and one wound to his neck and to the bottom of

his foot. Id. at 15. A different gun was used to shoot his legs than the gun used to shoot

his neck. Id. Sergeant Mullins believed several of the wounds were inflicted close in

time to or after Mr. Cecil Dotson’s death. Id. Officers collected fibers from Mr. Cecil

Dotson’s chin and mouth that were consistent with a pillow having been placed over his

face when he was shot, and officers collected a pillow in the living room through which a

bullet had passed. Id. Mr. Cecil Dotson was in a kneeling position in front of the sofa

with his torso on a sofa cushion and a bag of marijuana in his left hand. Id. Sergeant

Mullins believed Mr. Cecil Dotson’s body had been staged after the shooting. Id. at 16.

He explained that Mr. Cecil Dotson would not have sustained the gunshot wounds to the

front of his body while in the position in which he was discovered, and he likely would

have been facing the shooter when the first shot was fired. Id. Sergeant Mullins further

explained that the bag of marijuana was too large for Mr. Cecil Dotson to close his

fingers around and that he would have dropped it had he been holding it during the

shooting. Id.

Ms. Roberson was “in a seated position on the floor, with her back to the sofa, her

legs extended, and her head to the side, between the sofa and the loveseat. Her shirt was

pulled up, exposing her breasts, and her pants were pulled down, exposing her lower

body from her waist to her knees.” Id. Sergeant Mullins noted little blood on the floor

beneath her body and stated that thick coagulated blood on a nearby sofa cushion was

consistent with the type of blood loss from a gunshot wound similar to a wound sustained

to Ms. Roberson’s leg. Id. Sergeant Mullins believed Ms. Roberson had been pulled

from the sofa to the floor near the time of or after her death. Id. Her pants were

“saturated with blood, and bullet holes in her pants corresponded to the location of the

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gunshot wounds to her legs, indicating that her pants were covering her legs when she

was shot and were pulled down afterwards.” Id. A clear plastic bag containing what

appeared to be crack cocaine was found on the outer portion of her vagina, and Sergeant

Mullins noted that the bag appeared to have been placed on her body. Id.

Ms. Williams was slumped over onto Ms. Roberson on the floor with her legs

across Ms. Roberson’s legs. Id. Sergeant Mullins noted that the carpet was stained with

blood on the side opposite the direction in which Ms. Williams was leaning. Id. at 17.

He stated that based upon the position of Ms. Williams’s legs across Ms. Roberson’s

legs, Ms. Williams’s body was staged after Ms. Roberson was positioned on the floor.

Id.

Mr. Seals was located across the front door and near a door connecting the kitchen

and the living room, and his pants were pulled below his knees. Id. Sergeant Mullins

noted a pool of blood on the carpet near Mr. Seals’s body with a “void” area where the

carpet was not bloodstained. Id. He stated that the “void” indicated that unstained area

was covered when the blood pool was formed and that the carpet was stained with blood

on the opposite side of Mr. Seals’s body. Id. “Based on the bloodstains, the distance

between them, and the location of Mr. Seals’s legs one atop [of] the other, Sergeant

Mullins believed that Mr. Seals’s body may have originally been lying in the area of the

‘void’ and may have been rolled from that area when his pants were pulled down and his

wallet removed.” Id.

Officers located a loaded twelve-gauge sawed-off shotgun on a stack of clothing in

the living room, a little more than an arm’s length away from Mr. Cecil Dotson, and

officers found additional live rounds of shotgun ammunition under the sofa. Id. at 16.

Blood was found on the end of the shotgun barrel, and Ceniyah was a minor contributor

to the DNA from the blood. Id. Sergeant Mullins testified that the gun was positioned on

the clothing after the shooting because no blood spatter was on the clothing beneath the

gun and the victim to whom the blood belonged was found in another area of the home.

Id.

Sergeant Mullins testified that the sharp force and blunt force injuries sustained by

the children “were inflicted with kitchen knives and wooden boards the perpetrator found

in the home.” Id. at 17. Officers located five knife blades throughout the home, one of

which was lodged into C.J.’s head. Id. The word, “Faberware,” a brand of kitchen

knives, was on one of the blades. Id. Officers located an intact knife handle and what

appeared to be broken pieces of another knife handle, and “Sergeant Mullins believed the

perpetrator removed the knife handles from the blades after the assaults.” Id. A

silverware tray was overturned on the kitchen floor. Id. Officers also located

bloodstained and broken pieces of wood throughout the house. Id. Sergeant Mullins

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stated that “the perpetrator’s use of guns, knives, and boards already present in the home

demonstrated the perpetrator’s familiarity with the home.” Id.

Sergeant Mullins offered extensive testimony regarding the large amount of blood

spatter throughout the home. Id. at 17-19. He stated that “the large amount of blood

spatter found in the bathroom and bedrooms one and two was consistent with a prolonged

‘one-on-one struggle’ rather than a more rapid execution of the children.” Id. at 17. He

identified numerous areas of cast-off spatter throughout the bathroom, indicating multiple

blows with either a wooden board or a knife. Id. at 18. He noted dripped blood caused

by an actively bleeding victim on the toilet tank and down the toilet bowl. Id. He also

identified a bloody partial palm print on the tile wall as a transfer stain, and the print was

later matched to Cemario. Id. at 17-18. Sergeant Mullins believed more than one victim

was assaulted in the bathroom based on the dripped blood and Cemario’s bloody palm

print. Id. at 18. Officers recovered three green beads similar to the beads found in Cecil

II’s hair, which Sergeant Mullins testified could have fallen out during an attack of Cecil

II in the bathroom. Id.

Cemario was discovered in bedroom one face down on the floor in a pool of

blood. Id. Officers discovered two wooden boards and broken pieces of braided hair on

the floor, which Sergeant Mullins said would have broken off as a result of a forceful

blow to Cemario’s head. Id. at 18-19. Based on the broken braids and the pool of blood

beneath Cemario’s head, Sergeant Mullins believed Cemario suffered a fatal blow while

lying on the floor of bedroom one. Id. at 19. Sergeant Mullins believed Cemario also

was assaulted in the bathroom, explaining “‘[t]he level of violence delivered to [Cemario]

couldn’t have happened in [bedroom one] without some additional blood evidence. So

there has to be some movement after the fact.’” Id.

Cecil II and Cedrick were found in bedroom two. Id. Sergeant Mullins testified

regarding the blood spatter in bedroom two, which he stated indicated that multiple blows

were delivered in the room. Id. More green hair beads like those in Cecil II’s hair were

on the floor beneath the bed. Id. Officers discovered a knife blade bent into an “S” shape

with blood on it inside a pillowcase, and Sergeant Mullins believed the blade was bent

when the handle was removed. Id. Officers found a second knife blade between the

mattress and the wall and a bloodstained wooden board inside the room. Id. Sergeant

Mullins testified that a perpetrator could have prevented the children from escaping by

standing in the doorway of the living room because the children would have been

required to travel through the living room to reach an exterior door. Id.

Sergeant Mullins believed the perpetrator spent a considerable amount of time

staging the crime scene following the murders. Id. He stated that the perpetrator was

familiar with the home and comfortable enough to remain in the home to alter the scene.

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Id. at 20. He noted that “knowledge of gangs and drug activity would have been useful in

staging the crime scene.” Id. Based on his experience, he did not believe gang members

would have gone to the scene unarmed, used weapons found in the home to commit the

offenses, and then remained inside the home following the murders. Id. He was

“unaware of any gang-related homicides in which women were murdered and children

were assaulted and killed with knives and boards.” Id.

Blood samples taken from the scene were sent to the TBI for analysis. Id. at 36.

Each of the samples matched one of the victims, but none of the samples matched the

Petitioner. Id. The Petitioner’s DNA was not on any of the other items from the crime

scene that were collected and analyzed. Id. at 37.

3. The Petitioner’s Initial Statements and the Investigation into Whether the Offenses

Were Gang-Related

Ms. Nicole Dotson, along with the Petitioner and their cousin, Ms. Tammy

Randolph, went to the scene on the evening of March 3rd. Id. at 30. Ms. Nicole Dotson

testified that the Petitioner told her not to speak to the media and that they likely would

blame him for the murders due to his criminal history. Id. When Mr. Hill and “Trell,”

another acquaintance, arrived at the scene, the Petitioner became angry and told his sister

that he believed the two men committed the murders. Id.

On the following day, Sergeant James Terry Max and Sergeant Joe Stark

interviewed the Petitioner, who was at that time only considered a possible witness. Id. at

20. The Petitioner stated that he was at Mr. Cecil Dotson’s home with his family on the

evening of March 1st. Id. The Petitioner informed the officers of the various places

where he, Mr. Cecil Dotson, and Mr. Seals visited after leaving the home. Id. at 21. The

Petitioner stated that Mr. Cecil Dotson and Mr. Seals dropped him off at his girlfriend’s

apartment at approximately 2:15 or 2:30 a.m., after which he did not see them again. Id.

The officers asked the Petitioner whether Mr. Cecil Dotson had any enemies, and

the Petitioner told them about an argument between Mr. Cecil Dotson and Mr. Hill about

two weeks prior to the interview. Id. The Petitioner stated that the argument began after

Mr. Hill’s girlfriend called the police from her apartment which she shared with Mr. Hill

after seeing Mr. Cecil Dotson slap Ms. Smith. Id. When officers arrived, Mr. Cecil

Dotson told them that there were drugs inside the apartment. Id. The Petitioner stated

that Mr. Cecil Dotson and Mr. Hill were members of the Gangster Disciples and that

gang members were prohibited from calling the police on other gang members. Id. The

Petitioner stated that Mr. Hill wrote up Mr. Cecil Dotson for a violation of the rule

through “Doc Holiday” and that Mr. Cecil Dotson failed to attend the meeting held by the

gang to determine his guilt. Id. The Petitioner also stated that following the murders,

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Mr. Hill called “Doc Holiday” and asked him what had occurred and who had committed

the murders. Id. at 22.

The police had not been investigating gang members as possible suspects prior to

the Petitioner’s statement. Id. Sergeant Max subsequently spoke to Mr. Cedric Atkins,

who had earlier reported hearing that Mr. Cecil Dotson had stolen $300,000 from a drug

dealer. Id. Sergeant Max also interviewed a confidential informant, who stated that he

heard Mr. Cecil Dotson had stolen $50,000 from “Doc Holiday,” a member of the

Gangster Disciples. Id.

Both Mr. Hill and Ms. Smith confirmed at trial the incident during which Mr.

Hill’s girlfriend called the police on Mr. Cecil Dotson, who then reported to the officers

that marijuana was inside the apartment where Mr. Hill also lived. Id. at 27-29. Mr. Hill

informed “Cato,” who then informed “Doc Holiday,” the “coordinator” of the Gangster

Disciples over the Orange Mound area in Memphis. Id. at 28. Mr. Hill discussed the

matter with “Doc” and “Dread,” the chief of security over the area, who told Mr. Hill to

issue a “write-up” or disciplinary notice to Mr. Cecil Dotson. Id. Possible punishments

for a write-up included anything from beatings to a “death violation.” Id. Mr. Hill

explained that, generally, a death violation only applied to the individual gang member

and not to everyone associated with him. Id. He stated that gang members could have

gotten Mr. Cecil Dotson alone if they had wanted to kill him and that they would not

have waited until 2:00 a.m. to do so. Id. Mr. Hill had never heard of gang members

involving innocent women and children in the punishments. Id. He said that if the gang

members had entered a home to kill someone, they would have been armed and would

have not run out of bullets. Id.

Mr. Hill testified that he never issued a write-up against Mr. Cecil Dotson. Id. He

stated that “Dread” and “Doc” were close friends with Mr. Cecil Dotson and would not

have harmed him. Id. Mr. Hill heard that when “Cato” and “Doc” approached Mr. Cecil

Dotson about a gang violation, Mr. Cecil Dotson told them to “shove it” and refused to

accept the discipline. Id. Mr. Hill also heard that “Doc” had slept with Ms. Williams,

and Mr. Hill testified that Mr. Cecil Dotson and “Doc” had a disagreement over drywall

work that Mr. Cecil Dotson had completed at “Doc’s” apartment. Id. When Mr. Hill

went to the crime scene, he called “Cato” and asked if he and “Doc Holiday” were

involved in the murders, and “Cato” denied any involvement. Id. at 27.

Prior to his death, Mr. Cecil Dotson told his and the Petitioner’s father that he was

worried that members of the Gangster Disciples might harm him because he was trying to

leave the gang. Id. at 30. Mr. Cecil Dotson asked his father to move in with him because

he believed gang members would not harm him if his father was living with him. Id. His

father lived with him for about one month. Id. Mr. Cecil Dotson’s father moved out after

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family members advised him that he likely would be killed if he interfered in Mr. Cecil

Dotson’s situation with other gang members. Id.

“Members of the Gangster Disciples reportedly became angry upon learning that

the gang had been implicated in the murders of women and children.” Id. at 22. The

mother of the Petitioner, Mr. Cecil Dotson, and Ms. Nicole Dotson discovered that her

door had been kicked in by gang members. Id. The Petitioner, his mother, Ms. Nicole

Dotson, and her children moved in with a cousin. Id. Ms. Nicole Dotson contacted the

police after she received calls on her cell phone that appeared to originate from her

apartment. Id. Officers were assigned to protect the home where the Petitioner and his

family were staying. Id. When the marked police car arrived, the Petitioner “became

agitated and ‘frantic.’” Id. The Petitioner expressed a belief that he was the target of the

police investigation and that the police were attempting to “‘pin’” the offenses on him,

and he said that he did not intend to go to jail for an offense he did not commit. He

declared that “[t]hey should ‘just bury [him] with [his] brother.’” Id. The Petitioner

pointed a gun at his head. Id.

The Petitioner’s cousin told the two police officers who were outside the home

that the Petitioner threatened to commit suicide if the officers entered the home. Id.

Officer Laneeze Stepney spoke to the Petitioner on a cell phone, after which the

Petitioner agreed to allow the officers to enter the home. Id. at 22-23. The Petitioner told

the officer, “‘[E]verybody think[s] I did it. I’ve been all on the news and the police

saying I did it….’” Id. at 23. Upon entering the house, Officer Stepney retrieved the gun

from the Petitioner and attempted to calm the Petitioner, “who was acting ‘real nervous

like he had a lot on his mind.’” Id. The officers placed the Petitioner and his family in

protective custody and moved them to a safe house. Id.

4. The Children’s Testimony and the Petitioner’s Confession

Memphis Police Department Deputy Director Toney Armstrong, a lieutenant with

the Homicide Bureau at the time of the murders, and Lieutenant Walter Davidson, the

case coordinator, decided to quarantine the surviving children at the hospital and not

release their identities because they had not yet identified the perpetrator and wanted to

prevent additional attacks. Id. at 14. Family members were not allowed to contact the

children from March 3rd through March 8th. Id.

C.J., Cedrick, and Ceniyah were transported to LeBonheur Children’s Hospital

where Dr. Michael Muhlbauer performed surgery on each of them. Id. at 23. Dr.

Muhlbauer offered the following testimony regarding each of the children’s injuries:

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C.J. had trauma and swelling to his forehead, part of a steak knife sticking

out of his head, and a six-to-seven-inch laceration in his scalp that extended

down his forehead. C.J.’s skull was severely fractured, and large pieces of

his skull had been driven inward with a blunt force object. C.J. also had

either a “glancing” stab wound or two separate stab wounds on the back of

his arm and chest, a superficial laceration across his neck, a laceration on

his right hand, and a laceration on his left thumb. Dr. Muhlbauer said that

without medical intervention C.J. would not have survived the injuries he

sustained.

Dr. Muhlbauer testified that Cedrick exhibited significant facial

trauma and was “essentially semicomatose” when he arrived at the hospital.

Cedrick had sustained injuries that were, in Dr. Muhlbauer’s opinion,

consistent with having been beaten with boards, including multiple

fractures to his face, mid-face, and the lower portion of his skull, a

fractured nose which had been pushed inward, and a small skull fracture

with bruising on the back of his brain. In addition, Cedrick sustained stab

wounds to one eye, his forehead, and his neck. Dr. Muhlbauer testified that

Cedrick would not have survived without medical intervention.

Dr. Muhlbauer testified that Ceniyah arrived at the hospital with

significant head trauma, which included a large cut in her scalp that

exposed her bone. The right side of Ceniyah’s skull had been pushed or

crushed in with a blunt object, resulting in an “open-depressed skull

fracture.” A CT scan revealed that the covering of Ceniyah’s brain was

“probably cut” and that her brain was mildly bruised. Dr. Muhlbauer

testified that Ceniyah’s injuries were consistent with being struck with

boards. She also had stab wounds to her left lower extremity. Dr.

Muhlbauer said that absent medical intervention, Ceniyah would not have

survived these injuries.

Id. (footnote omitted).

On March 5, 2008, two days after C.J.’s surgery, Lieutenant Caroline Mason

attempted to interview him. Id. at 23-24. However, C.J. was “‘in and out’ of

consciousness, cursing, ‘talking crazy,’ and screaming out names, including ‘Cassandra’

and ‘Roderick.’” Id. at 24. Although Ms. Williams had a sister named Cassandra,

officers determined that she was not involved in the offenses. Id. On March 7th,

Lieutenant Mason interviewed C.J. after a nurse called officers and reported that C.J. was

awake and rational. Id. C.J. identified “Uncle Junior,” the Petitioner, as the perpetrator.

Id. After listening to the recording of the interview, Deputy Director Armstrong ordered

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officers to transport the Petitioner to the Homicide Bureau and assigned Lieutenant

Mason and Sergeant Max to interview him. Id.

The Petitioner, “who was under arrest at that time, was advised of his rights,

signed a written waiver, and agreed to speak with the officers.” Id. He essentially

repeated his prior account of the events, varying in only one or two respects. Id.

Lieutenant Mason testified that during the interview, the Petitioner told her and Sergeant

Stark that “he didn’t want to talk to us anymore, to get somebody else in there for him to

talk to.” Lieutenant Mason and Sergeant Max left the interview room, and Deputy

Director Armstrong decided to attempt to interview the Petitioner. Id.

Deputy Director Armstrong

watched the [Petitioner’s] body language as he talked to the [Petitioner]

about how horrific the crimes were. He said the [Petitioner] seemed

“really, really tight, like he was doing everything he could not to talk to

me.” According to Deputy Director Armstrong, the [Petitioner] gave one-

or-two-word answers to questions and would not engage in open

conversation. Deputy Director Armstrong said that “[m]ost of the time if I

asked him a question, he would nod his head or shake his head. But you

could tell he was doing everything he could not to engage me in an open

conversation as to where we had open dialogue back and forth with each

other.”

Deputy Director Armstrong said that, when he entered the interview

room, he knew that the [Petitioner] was very familiar with the criminal

justice system and that the [Petitioner] had only recently been released from

prison. When Deputy Director Armstrong asked the [Petitioner] whether

he believed in God and in heaven and hell, the [Petitioner] said that he did.

Deputy Director Armstrong stated that the [Petitioner] was “struggling to

try to maintain his composure” and at times during the interview leaned

forward as if he wanted to make a statement but would then lean back.

Deputy Director Armstrong said that he could tell the [Petitioner] was

hiding something.

At one point, Deputy Director Armstrong allowed the [Petitioner] to

grab his hands, attempting to convey to the [Petitioner] that he knew

something was weighing heavily on the [Petitioner’s] mind. Although it

appeared to Deputy Director Armstrong as if the [Petitioner] were about to

speak to him, the [Petitioner] refused to engaged in conversation and asked

to go to the restroom. Deputy Director Armstrong allowed him to go.

- 13 -

When the interview resumed, Deputy Director Armstrong asked the

[Petitioner] what his family called him, and the [Petitioner] replied,

“Junior.” He asked the [Petitioner] if anyone else in his family was referred

to as “Junior,” and the [Petitioner] said, “[N]o.” In response to questions,

the [Petitioner] also told Deputy Director Armstrong that no one else in his

family looked like him and no one in the family had ever confused him

with someone else in the family. When the [Petitioner] was asked whether

a member of his family would be referring to him if the person used the

name “Junior,” the [Petitioner] said yes.

Deputy Director Armstrong then played the tape recording of C.J.

stating that he had been stabbed by his “Uncle Junior.” According to

Deputy Director Armstrong, the [Petitioner] became visibly upset and

appeared as if he were about to cry. The [Petitioner] then told Deputy

Director Armstrong that he and Cecil went somewhere to get a gun, began

arguing, and continued to argue during the drive back to Cecil’s house.

The [Petitioner] said that when they returned to Cecil’s home, the argument

escalated. When Cecil reached for a shotgun, the [Petitioner] began

shooting, using both his gun and Ms. Williams’s gun. The [Petitioner] said

that he then attempted to “get rid” of the children because they had seen

him. The [Petitioner] stated that he “stuck them,” using the knives from the

kitchen drawer.

According to Deputy Director Armstrong, the [Petitioner] began to

cry and appeared as if “he had gotten the weight of the world off his

shoulders. But it was almost like I’m defeated.” Deputy Director

Armstrong testified that when he began to question the [Petitioner] in

greater detail about what had occurred in the house, using his knowledge of

the crime scene to frame the questions, the [Petitioner] asked for an

attorney, and the interview ceased. The [Petitioner] also asked to speak

with his mother….

Id. at 24-25.

Officers retrieved the Petitioner’s mother from the safe house and transported her

to the police station, where she spoke to the Petitioner. Id. at 25-26. She held the

Petitioner’s hands and asked him what was happening and whether the police were

“‘trying to put it on him.’” Id. at 26. The Petitioner initially did not respond but then told

her that he “‘did it.’” Id. His mother asked him “‘why the babies,’” and the Petitioner

responded that they had seen him. Id. The Petitioner stated that he and Mr. Cecil Dotson

had argued all day and that Mr. Cecil Dotson had a gun. Id. Although Mr. Cecil Dotson

- 14 -

did not point the gun, he was “‘swinging it.’” Id. The Petitioner said he began shooting

once Mr. Cecil Dotson put the gun down and that the Petitioner later rode a bicycle away

from the scene to his girlfriend’s home. Id. The Petitioner’s mother testified that she

“‘asked him [why] the kids and he said they saw me. And I said but the baby, the baby.

He didn’t say nothing, just shook his head. And I got up and told him I love him and I

left.’” Id.

Officers subsequently located C.J.’s yellow bicycle in a shed behind Ms. Jones’s

home. Id. Neither the blood of any of the victims nor the Petitioner’s DNA was found

on the bicycle. Id. None of the victims’ blood was on the Petitioner’s clothing seized

following his arrest. Id. at 37.

C.J. testified at trial that he was watching television in his sister’s bedroom when

he heard a gunshot. Id. at 31. C.J. said he

walked out of his sister’s room and into the hallway. C.J. recalled peeking

into the living room and seeing “my Uncle Junior point a gun toward my

daddy,” who was not saying anything. C.J. testified that he saw “some

smoke and sparks come out [of] the gun” and then looked down on the

ground” and “saw [a] dude on the floor[ ],” who was wearing a black shirt

and black pants.

C.J. testified that when he heard another gunshot, he “peeked”

through the door, walked into the hallway, and saw the [Petitioner]

shooting at a woman who was on the arm of the couch. C.J. did not

recognize the woman, but he recalled that she was telling the [Petitioner]

that she loved him, but the [Petitioner] “just kept on shooting.”

C.J. said that he then returned to his sister’s room and sat down on

the bed. Hearing footsteps coming toward the door, he turned and saw the

[Petitioner] holding a “handheld knife,” which C.J. described as the type

that opens and closes. C.J. said that when the [Petitioner] cut him on his

neck, he told the [Petitioner] that he loved him, but the [Petitioner] replied,

“[N]o, you don’t.” C.J. then lay down on the bed, and Cecil II began

crying. C.J. heard the [Petitioner] then say to Cecil II, “[D]on’t worry

about it, you ain’t going to get hurt.”

C.J. testified that he tried to retrieve the telephone from the hallway

to call the police, but before he could do so, he saw the [Petitioner’s] feet in

the doorway and heard the [Petitioner] ask him what he was doing. When

C.J. told the [Petitioner] that he was going to call the police, the [Petitioner]

- 15 -

said he would kill C.J.’s parents and Cecil’s friends if C.J. did so. C.J.

recalled asking the [Petitioner] if he could use the bathroom and noticing

that the [Petitioner] had a “kitchen knife” in his hand. C.J. recalled the

[Petitioner] allowing him to go to the bathroom, but stated that the

[Petitioner] “ma[d]e [him] put [his] head in the tub.” When he had done so,

the [Petitioner] tried to stab C.J. in the chest, but C.J. put his hand up to

block the blow, and the knife went into his head instead.

C.J. recalled seeing his mother, Ms. Williams, in the doorway of the

bathroom saying that she did not want to die. The [Petitioner] asked her for

Cecil’s cellphone and car keys, and Ms. Williams replied that the keys

likely were in Cecil’s car. C.J. recalled the [Petitioner] then saying to Ms.

Williams, “sorry because I ain’t let your husband or your husband’s friends

get away with it and the kids.” Then C.J. heard what he described as a

“huge fall on the ground.”

C.J. testified that he next saw the [Petitioner] walking in the hallway

with a garbage bag and another kitchen knife, going into C.J.’s sister’s

bedroom. C.J. heard someone yelling and heard the [Petitioner] saying

“shut up.” C.J. then heard Cemario ask to use the bathroom and saw blood

dripping from Cemario’s head onto the rim of the toilet seat. He said that

Cemario asked the [Petitioner] if he could return to his room and the

[Petitioner] said that he could. Next, C.J. said, the [Petitioner] went into the

kitchen, grabbed another knife, and entered the bedroom of C.J. and his

brothers. C.J. said he saw Cemario lying on the bed and the [Petitioner]

stab Cemario, who then fell on the floor. C.J. said he heard “rambling” in

the hallway near the laundry room, as if the [Petitioner] were attempting to

move something out of the way. C.J. then fell asleep in the bathtub and

heard nothing more that night.

C.J. testified that when he awoke, he saw firemen in his bedroom

looking at Cemario. One of the firemen came into the bathroom and got

C.J. out of the bathtub. C.J. was transported to the hospital by ambulance.

C.J. said that no one was with the [Petitioner] during the attacks and that

the [Petitioner] acted alone. By the time of trial, more than two years had

passed since C.J. identified the [Petitioner] as the lone perpetrator of the

crimes. During that time, C.J. had not wavered in his identification of the

perpetrator.

However, C.J. also testified at trial that he had told “Ms. Pat” in a

previous interview that on the same night that the “bad thing” happened, a

- 16 -

woman named “Cassandra” knocked on the door and said that she needed

to use the bathroom. She and some other people, including a man wearing

a mask with “[a] little bit of blood” on it, entered the house. C.J. had never

seen the man before, but he recalled Cecil referring to the man as

“Roderick.” C.J. did not recall who allowed “Roderick” to enter the house,

although he acknowledged that he had previously told “Ms. Pat” that Cecil

allowed “Roderick” to enter the house and that he was mad at Cecil for

doing so. C.J. testified that “Roderick” said something to Cecil about the

gang and also told Cecil, “[Y]ou got too big, boy.” According to C.J.,

“Roderick” fired a gun at Cecil and said, “[N]ever stop playing with the

gang boy, … you never know what would happen, boy.”

On redirect examination, C.J. again identified the [Petitioner] as the

person who stabbed him in the head, shot his parents and their friends, and

hurt his brothers and baby sister.

On recross-examination, C.J. testified that he saw a fight in the

living room between Cecil and the man in the mask and again maintained

that the man was shooting at Cecil. He also agreed that he had met with

“Ms. Caroline” and “Ms. Pat” at “Ms. Pat’s” office, and had said, when

they asked him how he knew some of the things he told them, that his

“granny” had told him.

Id. at 31-32.

Cedrick, who was eight years old at the time of trial, testified that the Petitioner

“stabbed him on the nose, forehead, and wrist and that no one else was with” the

Petitioner. Id. at 32. According to Cedrick,

the attacks occurred at night but before he had eaten dinner. He did not

recall hearing gunshots that night and also did not recall seeing the

[Petitioner] shoot anyone. He said that no one had told him that the

[Petitioner] shot anyone. Cedrick testified that the [Petitioner] got the knife

he used to stab them from his car, but he could not remember the color of

the [Petitioner’s] car. Cedrick said that, although he had not seen the

[Petitioner] stabbing his parents, he recalled that his parents and their

friends were stabbed. Cedrick said that when his parents were killed, all of

the children, other than one of his brothers and the baby, were locked in his

sister’s bedroom. Cedrick stated that his brother had told him that Ms.

Williams was injured while she was in the living room changing the baby’s

diaper.

- 17 -

Cedrick testified that he heard Ms. Smith on the telephone calling

the police, and he recalled that [Ms.] Nicole [Dotson], whom he referred to

as “Auntie Foxy,” was also present when they were attacked. Cedrick

acknowledged previously telling “Ms. Pat” and C.J. that his father never

should have opened the door. Cedrick explained that a fight began after his

father opened the door, and he remembered many people fighting that

night, and specifically recalled a man, whom he did not know, fighting with

his father and his father’s friends. Cedrick also remembered C.J. sneaking

out of the house after the [Petitioner] had stabbed him and riding on his

bicycle to his grandmother’s home. Cedrick testified that he had sneaked

up on his “Uncle Jessie,” got on his own bike, and also rode away to his

grandmother’s home. Cedrick recalled that when he and C.J. left, everyone

was still alive in the house and [they] were talking, singing, and having fun.

On redirect examination, Cedrick said that he had been in his sister’s

room when the [Petitioner] stabbed him, and he also recalled telling “Ms.

Pat” that the [Petitioner] stabbed him. On recross-examination, Cedrick

testified that he had talked to “Ms. Pat” after he had been living with his

family for a period of time and after he had listened to others discussing the

homicides and attacks.

Id. at 32-33.

Dr. Lisa Funte, a Shelby County medical examiner and expert in forensic

pathology, performed the autopsies of Ms. Williams, Ms. Roberson, and Cecil II. Id. at

33-34. Dr. Miguel Laboy, another medical examiner in the Shelby County Medical

Examiner’s Office, performed the autopsies of Mr. Seals, Mr. Cecil Dotson, and

Cemario. Id. at 33-35. Dr. Funte testified at trial regarding the autopsies of all six

deceased victims. Id.

Mr. Seals died as the result of multiple gunshot wounds, including one to his

mouth, one of his midline upper chest area, and one to the side of his chest near his right

armpit. Id. at 33. Ms. Williams sustained five gunshot wounds: one to the left side of

her head, one to the right side of her chest, one to her left leg, one to her right thigh, and

one to the left side of her abdomen. Id. Ms. Roberson sustained four gunshot wounds:

one to her right thigh, one to her left knee, one to her left calf, and one to her left thigh.

Id. at 34. Dr. Funte testified that based upon the wound pattern on Ms. Roberson’s legs

on her jeans, she was wearing the jeans when she was shot, and her clothes were

rearranged later. Id. Mr. Cecil Dotson sustained eight gunshot wounds: one to his head,

one to his neck, one to his chest, one to his right thigh, two to his left thigh, one to his left

- 18 -

leg, and one to his left foot. Id. According to Dr. Funte, “fiber found in the area around

the entry of the gunshot wound to Cecil’s head was consistent with the shooter placing a

fiber-filled pillow over Cecil’s face and firing the gun through the pillow.” Id.

Nine-millimeter and .380 caliber bullets and jackets were recovered from the

bodies of the adult victims. Id. at 37. No gunshot residue was found on the clothing of

Mr. Cecil Dotson, Ms. Roberson, or Ms. Williams. Id. at 38. Special Agent Braswell

testified that the lack of gunshot residue “meant either that the shooter was far enough

away from the victims when the gun was fired that it left no residue, or that an object,

such as a pillow, had been placed between the gun and the victim.” Id. Gunpowder

particles were on the bullet holes in Mr. Seals’s shirt. Id. Special Agent Braswell

estimated that the gun was at least two feet and no more than four feet away from Mr.

Seals when it was fired. Id.

Dr. Funte testified that “Cecil II died of multiple sharp force injuries, including

multiple incised and stab wounds to his head, torso, and extremities.” Id. at 34. Cecil II

sustained seven stab wounds that penetrated and fractured his skull, as well as

a puncture-style stab wound to the right side of his head, two puncture-style

stab wounds to his left cheek, two incised wounds on the left side of his

face near his eye, an incised wound to his right ear, beginning at the top of

his ear and continuing along the inside of the ear, a group of incised

wounds of varying lengths and an incised wound leading to a stab wound

on his torso, multiple incised and stab wounds on his back, and a mixture of

sharp force and blunt force injuries on the left side of his torso.

Id. at 34-35. Cecil II also sustained multiple blunt force injuries resulting in abrasions

and contusions, including an abrasion on the right side of his head that almost formed the

outline of a rectangle and was consistent with him being struck on the right side of his

head with a board. Id. at 35. Dr. Funte stated that based on the nature of Cecil II’s

injuries, he attempted to fend off his attacker. Id. Cecil II possibly could have survived

had he received medical treatment within an hour of receiving his injuries, although it

was not “‘necessarily probable.’” Id.

Cemario died of blunt force and sharp force injuries. Id. He sustained

blunt force trauma to his head, with lacerations and bruises, multiple linear

depressed fractures of the calvarium and the base of his skull, deep scalp

and subarachnoid hemorrhage, and multiple contusions to his brain. Dr.

Funte also noted areas of abrasions and lacerations on Cemario’s head, as

- 19 -

well as an incised wound above his left ear that tore part of his scalp away

from his skull.

Id. Cemario also sustained

incised wounds to his head, neck, and right hand. A stab wound to his

chest went all the way through his body, injuring his left lung and

hemidiaphragm, as well as his stomach, spleen, and liver. Cemario also

sustained linear abrasions and bruises on his left arm, abrasions on his

forehead, an abrasion and bruising on his right ear, a gaping incised wound

to his neck, abrasions on his right arm, and an incised wound on his ring

finger, which was consistent with Cemario having attempted to defend

himself by holding up his hand or grabbing the knife.

Id.

5. The Defense Proof

The defense presented the testimony of Mr. Cedric Atkins, who said that

approximately one and one-half weeks prior to the murders, Mr. Cecil Dotson told him

that he owed about $300,000 to the “‘mob.’” Id. at 38. Mr. Atkins testified that he

relayed this conversation to a police officer after the murders and maintained that he

never demanded money from the officer in exchange for the information. Id. Mr. Atkins

did not recall asking the officer what was “‘in it for [him].’” Id.

Sergeant Stark testified that following the murders, he interviewed Mr. Waddell,

who stated that Mr. Hill had told him that the victims were tortured and that Mr. Cecil

Dotson’s fingers were severed. Id. Mr. Waddell also stated that Mr. Cecil Dotson and

“Doc” had a “‘falling out.’” Id.

Dr. Nancy Aldridge, a psychotherapist and expert in the forensic evaluation of

children, testified regarding her concerns about the manner in which the interviews of

C.J. and Cedrick were conducted. Id. at 39. She noted that C.J. was interviewed on four

or five different occasions, including shortly after he was found, and that he gave

different statements about what had occurred. Id. She also noted that the formal forensic

interviews were not held until more than five months after the murders, which increased

the potential that the children had been exposed to information about the crimes from

other family members. Id. Dr. Aldridge testified that C.J.’s initial account in which he

named “Cassandra” was “‘possibly’” reliable because those who observed the interview

said C.J. appeared to relive the trauma while giving the statement and the interviewers

appropriately used open-ended questions. Id. Dr. Aldridge stated that a child’s memory

- 20 -

becomes less clear with the passage of time and that a child who continues to be

questioned after providing an answer may provide a different answer, thinking that the

initial answer was unacceptable. Id.

Dr. Aldridge stated that C.J. and Cedrick appeared to be prepared for their

testimony at trial in that they appeared to know what questions were going to be asked

ahead of time and what their answers would be. Id. at 40. Dr. Aldridge testified that

“although the reliability of C.J.’s testimony was an issue for the jury, she questioned its

reliability because C.J. seemed to agree with whatever question was asked of him.” Id.

She noted the potential for contamination of their memories based upon the time period

that had elapsed between the murders and the trial. Id. She acknowledged on cross-

examination that she was unaware of whether C.J.’s identification of the Petitioner as the

attacker was incorrect but noted that she had “‘concerns.’” Id.

The Petitioner testified that the murders were committed by unknown assailants as

he was hiding under the bed in the master bedroom. Id. He stated that earlier that night,

Mr. Cecil Dotson had argued with a man in a parking lot while Mr. Seals was at Mr.

Hill’s apartment retrieving a gun. Id. The Petitioner stated the argument involved the

incident during which Mr. Cecil Dotson reported to police that there was marijuana inside

the apartment where Mr. Hill lived. Id.

The Petitioner testified that after making several stops, they returned to Mr. Cecil

Dotson’s home where the Petitioner and the four adult victims gathered in the living

room. Id. at 40-41. Mr. Cecil Dotson asked Ms. Williams to put clean sheets on the bed

in the master bedroom because he planned to allow Ms. Roberson and Mr. Seals, who

had recently been released from jail, to use the master bedroom. Id. at 41. The Petitioner

stated that he volunteered to change the sheets and that he heard two or three gunshots

while in the master bedroom. Id. Although he had a blue .44 caliber handgun, he hid

under the bed when he heard screaming. Id. He heard a few gunshots at first, followed

by more gunshots seconds later. Id. The Petitioner stated that after several minutes, he

left his hiding place and returned to the living room where he found the victims’ bodies.

Id. He said he believed everyone in the house, including the children, were deceased, and

he rode away on a bicycle that was behind a door in the living room. Id. at 41-42. He

stated that he rode the bicycle to Ms. Jones’s home where he vomited in the bathroom.

Id. at 42. He then used bleach to clean the vomit from the sink, dropping some of the

bleach on the floor. Id.

The Petitioner explained that he did not report what he had witnessed to the police

because, “‘Y’all done heard testimony about the gangs. I’m in a gang. We don’t call the

police. It’s just that simple. We don’t call the police. It’s not part of what we do. If I

call the police, I’ll be just like my brother.’” Id. He testified that he did not tell the truth

- 21 -

when initially questioned by the police because he “‘[doesn’t] talk to police.’” Id. The

Petitioner testified that prior to his interview with Deputy Director Armstrong,

he had been in the Homicide Bureau for hours and was handcuffed to a

table. The [Petitioner] said that Deputy Director Armstrong played a tape

recording of C.J. identifying him as the perpetrator but did not play earlier

taped interviews of C.J. identifying other individuals. The [Petitioner]

stated that after playing the recording, Deputy Director Armstrong began

screaming about the [Petitioner’s] family and said that he was tired of

“playing games.” According to the [Petitioner], Deputy Director

Armstrong said he knew the [Petitioner] was “bullshitting” and that he was

“sick of it.” The [Petitioner] said that Deputy Director Armstrong began

“pounding” on the table and demanding to have answers “now.”

Id.

The Petitioner denied that he was telling the truth to Deputy Director Armstrong

and his mother when he admitted to shooting the adult victims and attacking the children.

Id. He explained that

when he was interviewed on March 7th, he had not slept since the

homicides were discovered on March 3rd and that he had cried and had

been depressed about what had happened. The [Petitioner] stated that he

asked to see his mother approximately three times during the interview, but

Deputy Director Armstrong told him that he would not be allowed to see

anyone until the [Petitioner] told him what he wanted to know. The

[Petitioner] said that, earlier on March 7th, he had told other officers that he

did not kill the victims. The [Petitioner] insisted that his statement to

Deputy Director Armstrong admitting his guilt was not true, and he

proclaimed his innocence of the crimes, stating that he did not kill Cecil or

any of the other victims.

Id. at 42-43.

On cross-examination, the Petitioner admitted that he did not call 9-1-1 after

discovering the victims and that he did not report the crimes to anyone the following day.

Id. at 43. He also admitted that he had lied to family members about the last time that he

had seen Mr. Cecil Dotson. Id. He did not attempt to use the cordless phone in the

master bedroom to call for help. Id. He remained under the bed for approximately thirty

minutes and denied hearing the children scream or hearing anyone hitting the children

with boards. Id. He stated that when he entered the living room, Ms. Roberson was in

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the position in which she was discovered by police. Id. The Petitioner said that he saw

C.J. lying in the bathtub but that he did not “‘pay attention’” to the knife in C.J.’s head

and did not check to determine whether C.J. was alive. Id.

With regard to his confession to Deputy Director Armstrong, the Petitioner

testified that

he was in the interview room with Deputy Director Armstrong for four or

five hours, and the [Petitioner] maintained that he had confessed only after

Deputy Director Armstrong screamed at him and threatened him. The

[Petitioner] explained:

He didn’t pound on the table. It was he asked me when he

played the tape and after he played the tape, he played the

tape what, [twelve, thirteen] times. And after he played it

[twelve] to [thirteen] times, after I still told him I didn’t do it,

that’s when he said I’ll kill your mother f***ing ass myself,

you cold-hearted murdering killing mother f***er.

According to the [Petitioner], Deputy Director Armstrong then said: “I got

something for you. I’m going to throw your ass on that 4th floor and I’m

going to let them kill your mother f***ing ass.”

Id.

With respect to his meeting with his mother, the Petitioner testified that

he had leaned across the table and told his mother, “[T]hey trying to put

this on [me].” His mother asked for the names of those who were trying to

do this so that she could get him help. The [Petitioner] said that he told her

he did not know their names and that they were watching him. The

[Petitioner] said that he and his mother then grabbed each other’s hands,

that he told his mother not to worry, and then admitted to committing the

offenses. The [Petitioner] acknowledged that he told his mother that he and

Cecil began arguing and that, after Cecil put down his gun, he had begun

shooting. The [Petitioner] also recalled both his mother asking him how he

got away from the house and his response that he rode away on a bicycle.

The [Petitioner] agreed that he had told his mother that he killed the

children because they saw him. However, the [Petitioner] insisted that he

lied to his mother and that his trial testimony was truthful.

- 23 -

Id. at 43-44.

The jury convicted the Petitioner of six counts of premeditated first degree murder

for the deaths of Mr. Cecil Dotson, Ms. Williams, Mr. Seals, Ms. Roberson, Cemario,

and Cecil II. The jury also convicted the Petitioner of three counts of attempted

premediated first degree murder for attacking C.J., Cedrick, and Ceniyah.

B. Penalty Phase

During opening statements in the penalty phase, counsel for the Petitioner argued

that based upon the Petitioner’s age, he would never be released from prison even if the

jury imposed a sentence of less than death. Counsel noted that there were structures in

place to help defendants “be better and live lives in prison.” Counsel also asked the jury

to consider the Petitioner’s background in determining an appropriate sentence.

The State relied upon the proof submitted during the guilt phase of the trial and

introduced three additional photographs of Cemario and Cecil II as evidence of the

heinous, atrocious, and cruel aggravating circumstance. The parties stipulated that the

Petitioner previously had been convicted of second degree murder, which qualified as a

felony involving the use of violence to the person.

The State presented victim impact evidence through the testimony of Ms.

Williams’s mother and Mr. Seals’s aunt. Ms. Williams’s mother testified that she had

adopted her surviving grandchildren and was raising them and that, as a result, she had

lost her job and was struggling financially. She and her family were in counseling as a

result of the offenses. Mr. Seals’s aunt testified that Mr. Seals had three children, whom

he loved and was supporting at the time of his death. She stated that Mr. Seals’s death

deeply affected her because he was like a younger brother to her before his mother died

and she acted as a mother figure to him following his mother’s death.

The defense presented the testimony of Ms. Glori Shettles, a mitigation specialist,

regarding the Petitioner’s family history and background. She stated that prior to

becoming a mitigation specialist, she worked as a parole officer and became familiar with

the prison system in Tennessee. She offered testimony regarding the different

classifications and tasks that could be assigned to a prisoner based upon the prison where

he or she was assigned.

Ms. Shettles testified that she gathered all available records regarding the

Petitioner, spent a great deal of time with the Petitioner, who was “open” about his

background, and interviewed several family members, who were willing to provide

information but were not willing to testify. According to Ms. Shettles, the Petitioner’s

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parents were married in 1972 when his mother was fifteen years old and his father was

nineteen years old. Their first child, Ms. Nicole Dotson, was subsequently born. The

Petitioner’s father joined the Army and was stationed in Florida where the Petitioner was

born. At some point, the Petitioner’s mother and Ms. Nicole Dotson returned to

Memphis, and Ms. Nicole Dotson became very ill, after which the Petitioner’s father left

his station and returned to Memphis. The Petitioner’s father served about three years in

the Army and received an honorable discharge. He was unable to find employment in

Florida, so he moved his family back to Memphis.

Upon their return to Memphis, the Petitioner’s mother began leaving the children

at home, and his father became jealous of her. She returned from a church trip to New

Orleans with a boyfriend and told the Petitioner’s father that she no longer wanted to be

married to him. They remained married for a period, during which time the children

witnessed their parents arguing and the Petitioner’s father being physically abusive to his

mother. By this time, Mr. Cecil Dotson, who was three years younger than the Petitioner,

was born. The Petitioner’s mother saved up money and left with the children without

telling the Petitioner’s father. She did not contact the Petitioner’s father until four or five

months later. The Petitioner, who was about six years old, and the other children did not

know what had happened to their father. The Petitioner and his siblings had little contact

with their father during their childhood. When the Petitioner was nine years old, his

mother began a relationship with the father of her next two children. The man treated the

Petitioner, his siblings, and his mother well, but the relationship ended.

Ms. Shettles noted a great amount of instability in the family, stating that the

family moved often and that the Petitioner attended ten different schools. The Petitioner

was diagnosed with a learning disability in reading and math, and he was enrolled in

resource classes as a result. He also had disciplinary problems at school and at home.

According to school mental health records, the Petitioner received individual counseling

and benefited from it. The records also indicated that his mother canceled appointments

to meet with school mental health officials or would not be home when home visits were

scheduled. The Petitioner repeated the fourth grade twice, not due to poor grades but due

to excessive absences. The Petitioner and his siblings were teased at school because they

did not have proper clothing, so the Petitioner would not go to school. He was socially

promoted in other grades.

The Petitioner became involved in the juvenile court system when he was fifteen

years old and was arrested several times. His mother reported being unable to control

him, and job corps was recommended but was not followed through. His mother

attended juvenile court proceedings involving the Petitioner on many occasions. On one

occasion, Ms. Nicole Dotson, who was about two years older than the Petitioner, attended

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a juvenile court proceeding involving both the Petitioner and Mr. Cecil Dotson because

their mother was unable to attend.

The Petitioner’s mother often was not at home, and Ms. Nicole Dotson cared for

her brothers. The food was locked up in the home so that the Petitioner and his siblings

did not have access to it. The family often went to the home of the Petitioner’s maternal

grandmother for Sunday dinner, and the Petitioner and Mr. Cecil Dotson took money

from her purse. Ms. Shettles testified that although they did not tell people why they

were taking the money, they were doing so in order to purchase food. They were

punished severely for taking the money, and the Petitioner’s grandmother told his mother

that the Petitioner and Mr. Cecil Dotson were no longer welcome in her home.

The Petitioner withdrew from school at the age of sixteen while in the eighth

grade. For a three-month period, the Petitioner lived with his cousin and her mother, and

several relatives lived nearby. The Petitioner was happy while living there, but his

mother asked him to return home to help care for her three young children. The

Petitioner worked as a security guard for a very short period of time at the age of

eighteen, and Ms. Shettles stated this was the only legitimate job that he ever held.

At the age of nineteen, the Petitioner pleaded guilty to second degree murder and

received an eighteen-year sentence. Ms. Shettles detailed the restrictions and various

punishments for violating rules in prison. She said that the Petitioner had many write-ups

during the first few years, most of which were for non-violent acts, but that he also had

one write-up for a violent act. The Petitioner was denied parole on two different

occasions before he was granted parole after serving fourteen years in prison. Ms.

Shettles detailed the various programs completed by the Petitioner while in prison.

While the Petitioner was in prison, his mother and her husband visited him on one

occasion, and no other relatives ever visited him. He spoke to his father “a couple of

times” on the telephone. Ms. Shettles noted that the Petitioner has family members who

care for him, including a son, a personal friend, and a friend of his grandmother.

On cross-examination, Ms. Shettles acknowledged that when the Petitioner was

younger, he often was in trouble at school and at home and that he had been suspended

from school so often that the school system refused to allow him to continue his

enrollment. She noted that several of the Petitioner’s adjudications in juvenile court

involved weapons and that his school and juvenile court records referenced problems

with his brother. Ms. Shettles was aware that the Petitioner became a member of the

Crips gang while in prison. She recalled that while in prison, the Petitioner and four

other inmates were accused of cutting another inmate during a gang-related altercation.

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On redirect examination, Ms. Shettles testified that the Petitioner also witnessed

violence as a child, including physical fights between his parents. When he was

seventeen years old, he saw his mother place her baby in scalding hot water. The

Department of Children’s Services investigated the incident and concluded the matter to

be unfounded. The Petitioner maintained that the incident occurred.

During closing arguments, counsel for the Petitioner requested that the jury

consider the Petitioner’s background, as well as any residual doubt, and to impose a

sentence of life without parole. At the conclusion of the closing arguments, the trial court

instructed the jury regarding the following mitigating circumstances: (1) any lingering or

residual doubt as to the Petitioner’s guilt; (2) the Petitioner was raised in a dysfunctional

family; (3) he suffered childhood neglect; (4) his parents separated when he was six years

old, and his father was not a part of his life; (5) the Petitioner experienced numerous

changes of residences and schools throughout early childhood; (6) he was retained twice

in the fourth grade due to truancy and was absent from school many times; (7) he was

diagnosed with a learning disability; (8) his mother was not compliant with scheduled

meetings and failed to appear at juvenile court hearings on several occasions; (9) he

witnessed what he believed to be intentional physical abuse of his younger brother by his

mother; and (10) any other mitigating facts raised by the evidence.

At the conclusion of the penalty phase, the jury returned sentences of death for

each of the first degree murder convictions. With regard to the murder of Mr. Cecil

Dotson, the jury found the following three aggravating circumstances set forth in

Tennessee Code Annotated section 39-13-204(i): (2) the Petitioner previously was

convicted or one or more felonies involving the use of violence; (3) he knowingly created

a great risk of death to two or more people, other than the victim murdered, during the act

of murder; and (12) he committed mass murder. With regard to the murders of Ms.

Williams, Mr. Seals, and Ms. Roberson, the jury found the same three aggravating

circumstances applied to Mr. Cecil Dotson’s murder, as well as the following two

additional aggravating circumstances: (6) the murder was committed for the purpose of

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

or another; and (7) the murder was knowingly committed while the Petitioner had a

substantial role in committing, or attempting to commit, or was fleeing after having a

substantial role in committing or attempting to commit any first degree murder. See

T.C.A. § 39-13-204(i)(6), (7). With regard to the murders of two of the minor children,

the jury found the same five aggravating circumstances applied to the first degree

murders of Ms. Williams, Mr. Seals, and Ms. Roberson, as well as the following two

additional aggravating circumstances: (1) the victim was less than twelve years old and

the Petitioner was eighteen years or older; and (5) the murder was especially heinous,

atrocious, or cruel in that it involved torture or serious physical abuse beyond that

necessary to produce death. See T.C.A. § 39-13-204(i)(1), (5).

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During a separate sentencing hearing, the trial court sentenced the Petitioner to

forty years as a Range II, multiple offender for each of his convictions for attempted first

degree murder to be served consecutively to each other and to the death sentences. The

Petitioner appealed to this court, raising twenty-one issues, and this court affirmed the

Petitioner’s convictions and sentences on direct appeal. See State v. Jessie Dotson, No.

W2011-00815-CCA-R3-CD, 2013 WL 4728679, at *1 (Tenn. Crim. App. June 25, 2013),

affirmed by State v. Dotson, 450 S.W.3d 1 (Tenn. 2014). On automatic review, the

Tennessee Supreme Court also affirmed the convictions and sentences. See Dotson, 450

S.W.3d at 12.

Post-Conviction Proceedings

On August 17, 2015, the Petitioner filed a timely pro se petition for post-

conviction relief, alleging ineffective assistance of counsel and errors by both the trial

court and the State. Shortly thereafter, the post-conviction court appointed counsel to

represent the Petitioner. On May 31, 2017, the Petitioner filed an amended petition. The

evidentiary hearing was continued on multiple occasions, and much of the pre-hearing

litigation centered on the denial of funding for expert witnesses, the admissibility of

testimony of jurors from the Petitioner’s trial, and various discovery issues. The

evidentiary hearing occurred October 1-4, 2018.

At the evidentiary hearing, co-counsel testified that he and lead counsel were

appointed to represent the Petitioner at trial. Co-counsel had been practicing law since

1996 and had attended capital defense training sessions prior to the Petitioner’s trial. He

had represented defendants in six or seven capital cases prior to the Petitioner’s trial. Co-

counsel had approximately fifty cases when he was representing the Petitioner, some of

which were non-capital homicides.

Co-counsel testified that the defense at trial was that “there [was] no way one

person shot two guns, killed all these people and left no trace in there,” that “the State’s

theory [did] not make sense,” and that “there was [not] one shred of physical evidence to

corroborate the State’s theory.” Co-counsel stated that he was in charge of preparing for

the penalty phase and almost half of the guilt phase and that he spent approximately

seven-five percent of his time preparing for the guilt phase.

Trial counsel retained Ms. Rachael Geiser as the guilt/innocence investigator and

Ms. Glori Shettles as the mitigation investigator, and trial counsel had worked with both

Ms. Geiser and Ms. Shettles in numerous prior cases. Trial counsel provided the

investigators with direction, but the investigators also often came to trial counsel about

issues. Trial counsel had multiple meetings with the investigators and communicated

with them through telephone calls and email. Co-counsel stated that he also spoke to the

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investigators when he saw them at the courthouse about once a week. Co-counsel did not

interview any witnesses at their homes, explaining that the majority of the witnesses were

uncooperative.

The trial court granted a limited change of venue and ordered that the jury be

selected in Nashville and then transported back to Memphis for the trial. Co-counsel

stated that he and lead counsel believed that if the jury convicted the Petitioner of the

offenses, the jury would impose the death penalty. As a result, trial counsel chose some

jurors, whom trial counsel believed would be favorable to the defense regarding issues of

guilt or innocence, even though trial counsel did not believe those jurors would be

favorable regarding death penalty issues.

Co-counsel testified that one of the jurors who was chosen for the jury (“Juror 1”)

stated in his jury questionnaire that he had “no problem with the death penalty as [he]

believe[d] no person has a right to take any person’s life under any circumstance.” Co-

counsel acknowledged that during voir dire, Juror 1 indicated that he could not consider a

sentence of less than death for the killing of a child and that it would be difficult to

mitigate the murder of a child. Co-counsel acknowledged that some judges would

exclude a prospective juror for cause if the juror was unable to consider a sentence of less

than death for the killing of a child and that a defense attorney should seek to exclude

such a juror for cause unless the attorney wanted the juror “for some other reason.” Co-

counsel stated that while he generally did not want such a juror on the jury for a capital

case, trial counsel chose jurors who were “far less appealing” regarding death penalty

decisions because trial counsel wanted jurors who could comprehend the forensic

evidence. Co-counsel said that the DNA and hair evidence was more complicated than in

a “usual trial” and that, as a result, they chose jurors whom they generally would not have

chosen. In response to questioning by the post-conviction court, co-counsel agreed that

he and trial counsel were attempting to select jurors who they believed could comprehend

the issues during the guilt phase of the trial, even though they did not like the prospective

jurors’ answers to questions involving the penalty phase. Co-counsel testified that they

did not have a strong mitigation case and that residual doubt might have been their

strongest argument during the penalty phase.

Co-counsel testified that the parties had possession of the completed juror

questionnaires for some time prior to jury selection and that the defense team had a

meeting during which they discussed those prospective jurors whom they wanted and did

not want on the jury. Co-counsel did not recall whether he and lead counsel had a

strategic reason for failing to exhaust all of their peremptory challenges. He explained

that in determining whether to exercise a challenge, they had to examine the prospective

juror’s replacement, utilizing both the questionnaires and their notes about each

prospective juror. Co-counsel further explained that he and lead counsel were making

- 29 -

complex decisions based upon the prospective juror’s replacement and those prospective

jurors who they believed would comprehend their experts and the DNA evidence.

Co-counsel testified that he did not have a strategic reason for declining to object

to the State’s questioning prospective jurors first. He stated that while he had made the

objection in prior cases, he had never won the objection or heard of any other defense

attorney who had. He said he did not have a strategic reason for declining to question

prospective jurors about their attitudes on race other than he did not believe race was an

issue that needed to be overcome in the case. Co-counsel stated that he would not

question the prospective jurors about implicit bias unless he felt it was necessary based

upon a prospective juror’s responses to the questionnaire, responses during voir dire, or

demeanor. He explained, “I’ve got to pick a jury that’s still going to be able to listen to

us and like us the next day. I don’t mean in a popularity kind of sense. I mean in a

willing-to-give-me-a-fair-shot kind of sense because you win or lose those jurors at the

beginning in my opinion.”

Co-counsel recalled that there were two to three hundred crime scene photographs

and described the photographs as “[h]orrendous.” Trial counsel attempted to limit the

photographs shown to the jury. Co-counsel stated that he wanted some of the crime

scene photographs introduced because they were relevant to the defense’s claims

regarding the forensic evidence. Once the trial court became aware of the number of

photographs, the court ordered the parties to meet and attempt to reach an agreement

regarding which photographs should be admitted. Co-counsel believed the State agreed

to not enter ten to fifteen of the photographs, but he could not recall the number of

photographs to which the trial court had to determine the admissibility due to the parties’

inability to reach an agreement. Co-counsel explained that he did not object to the

admissibility of every single photograph because “[y]ou lose too much credibility if you

can’t agree on just the basic start of how do we do business.”

Co-counsel did not recall a meeting with the defense team during which they

decided that Dr. Funte’s testimony regarding three autopsies performed by another

forensic examiner was an issue. Co-counsel did not believe that the issue was of

particular importance because the defense knew the cause of the victims’ deaths. He

explained, “I can’t think of a time when I’ve been about to win a murder trial over the

cause of death. It could happen. This just wasn’t that case.”

Co-counsel testified that the defense retained Dr. Aldridge to consult with them

about their cross-examination of the children at trial. The defense team decided that co-

counsel should cross-examine the children at trial because he appeared “more

approachable and less threatening” than lead counsel. The family did not allow the

defense to meet with the children prior to trial. Co-counsel recalled that he spent a great

- 30 -

deal of time preparing to show the discrepancies between what he believed C.J.’s

testimony would be and C.J.’s statements to the police. Co-counsel was not confident

that he would get a single answer that he wanted when he undertook the cross-

examination of the children. He stated that, however, the children basically agreed to

everything that the prosecutor said on direct examination and then agreed with everything

that co-counsel said on cross-examination. Co-counsel also stated that while he had

wanted the jury to see C.J.’s video-recorded statements to the police, co-counsel could

only present the recordings as impeachment if C.J. disagreed with co-counsel on cross-

examination, and C.J. never disagreed with him. Co-counsel said he ended the cross-

examination because the defense team felt co-counsel had “gotten the best we could do

and we could only mess up after that.”

Co-counsel testified that although the defense obtained some of C.J.’s medical

records, co-counsel did not recall seeing a report of C.J.’s evaluation from Center of

Pediatric Neuropsychology approximately two months after the murders. According to

the report, C.J. “displayed relatively intact storage abilities for both verbal and visual

memory; however, his ability to consistently recall information appear[ed]

compromised.” The report stated that C.J. displayed significant impairments in many

areas of executive functioning, including “consistent long-term recall from memory.”

Co-counsel agreed that he would have wanted to use the result of this evaluation to

impeach C.J.’s testimony.

When questioned regarding his failure to utilize C.J.’s medical records, which

were in the possession of the the defense team prior to trial and which reflected that C.J.

had impairments in functioning and had been prescribed medication to treat mental health

issues, co-counsel testified that while there was “no question” that C.J. had mental health

issues based upon his video-recorded statements to the police, co-counsel was concerned

that bringing out such information during cross-examination would offend the jury. Co-

counsel explained that the defense team believed they were “walking a narrow line”

between trying to get the necessary information from C.J. and doing as little damage as

possible in the way of offending the jury. Co-counsel also expressed concern that

introducing evidence of C.J.’s mental health issues would give “whoever is the smartest

from a medical standpoint person on the jury” a reason to disregard C.J.’s testimony on

cross-examination that was favorable to the defense.

Co-counsel acknowledged that he would have wanted to attack the reliability and

voluntariness of the Petitioner’s confessions to the police and to his mother. The

Petitioner’s confessions were recorded as part of The First 48 television production, and

an edited portion of the questioning and the Petitioner’s statements were included in the

episode. Because the entire recording of the Petitioner’s statements to the police and his

mother was unavailable, the defense convinced the trial court to exclude the portion of

- 31 -

the recording that was available. Co-counsel recalled that the Petitioner’s statement was

“bad,” that the available portion of the recording of the statement was “much worse,” and

that he suspected an unedited recording of the interview would have been “even worse.”

The trial court found that the State could not present the edited recording of the

Petitioner’s statements unless the defense opened the door to allow for the admission of

such evidence. Co-counsel stated that the defense’s “number one strategy was not

screwing that up” and that one of the ways in which the defense could open the door was

to argue that the Petitioner made other statements during the interview that were edited

out of the recording.

Co-counsel testified that he and lead counsel did not believe that grounds existed

to file a “generic” motion to suppress the Petitioner’s statements. Co-counsel noted that

the trial court essentially suppressed some of the statements in excluding the edited video.

He also noted that at trial, trial counsel moved to suppress the Petitioner’s statements to

his mother, arguing that his mother was acting as an agent of the Memphis Police

Department when she spoke to him in the interview room. However, the trial court

denied the motion. Co-counsel agreed that the Petitioner testified at trial that his

statements were coerced and that an officer threatened him.

Co-counsel did not recall having any reason to believe the Petitioner was under the

influence of drugs or alcohol when he made statements to the police. Co-counsel

testified that the defense team discussed whether the Petitioner’s alcohol and marijuana

use on the night of the murders affected his mental state as it related to the offenses. The

defense team did not retain an expert to explore the theory, but co-counsel did not believe

voluntary intoxication was a strong defense.

Co-counsel identified a report from Dr. Robert Parr, a clinical psychologist,

regarding a psychological assessment of the Petitioner in October 1991 when the

Petitioner was sixteen years old. The assessment reflected that the Petitioner had limited

intellectual functioning, was naïve and immature, had simplistic and concrete thought

processes, was generally rebellious and negative, and had problems with impulse control,

a high potential for acting out and using poor judgment, and feelings of social alienation.

The defense team explored whether the Petitioner’s deficits had any bearing on the

voluntariness and reliability of his statements, and they retained Dr. Richard Leo, a false

confessions expert. Trial counsel had the Petitioner prepare a handwritten statement of

what he maintained occurred to Dr. Leo, and trial counsel also provided Dr. Leo with the

edited video from The First 48 to review. Dr. Leo did not provide any substantive

opinions to the defense. Co-counsel recalled that the defense team determined that Dr.

Leo’s testimony was not necessary because they had been able to persuade the trial court

to exclude the recording of the Petitioner’s statements and they were running the risk of

opening the door to the admission of the recording by challenging the confessions as

- 32 -

false. Co-counsel stated that abiding by the parameters set forth by the trial court in

granting the defense’s motion to exclude the edited video was “among our most

important priorities.” Co-counsel did not recall why Dr. Leo only performed eight hours

of work on the case.

Co-counsel testified that he was aware that a company called Granada

Entertainment Group (“Granada”) filmed the homicide investigation for The First 48 and

that the defense never obtained any footage shot by Granada other than the actual edited

episode that was aired. Co-counsel identified a memorandum prepared by Ms. Geiser to

trial counsel in which she stated that she reached out to Granada on February 10, 2009.

According to the memorandum, Granada asserted protection under the media shield law

and stated that they recycle the raw or unused footage after each episode is produced.

Co-counsel stated that the defense team did not seek to challenge Granada’s assertion of

the media shield law since the raw footage did not exist. Co-counsel did not know the

reason for waiting until August 10, 2010, to file a request under Brady for the State to

produce the raw footage. He said that lead counsel questioned an officer on cross-

examination at trial regarding the missing footage and that co-counsel questioned officers

about the role of The First 48 and its crew. Co-counsel stated that they were careful to

avoid opening the door for the State to introduce the edited recording of the Petitioner,

but they wanted the jury to know that the missing footage was a “screw up.” Co-counsel

testified that the only reason he believed that trial counsel did not request a missing

evidence instruction regarding the missing footage was the trial court’s warning about the

defense opening the door to the admission of the edited footage. Co-counsel did not

believe that the defense team interviewed any of the crew members with The First 48 and

stated that they did not have a strategic reason for not doing so.

Due to the “technical” nature of the DNA evidence, the defense team retained

Bode Technologies to consult with them and ensure that the testing conducted by the

State was adequate and that trial counsel understood the testing and the results. The

defense team also retained Ms. Jeanine Barrett as a gang expert in order to explore the

defense theories about whether the murders could have been caused by a “gang hit.”

Co-counsel testified that trial counsel did not file a motion in limine to prevent

improper comments by the prosecution during the closing arguments. He stated that it

never occurred to him to address potential problems involving prosecutorial misconduct

pretrial unless he had a good faith reason for doing so. He did not know why he did not

object to the prosecutor’s argument during rebuttal closing arguments in the penalty

phase, stating, “And now Jessie is begging for his life. Did Marissa get a jury? What

about Shindri? Did she get a jury? Do[es] somebody have to find aggravating

circumstances for her to get the death penalty?”

- 33 -

Co-counsel testified that the mitigation strategy during the penalty phase was

based upon the significant trauma suffered by the Petitioner as a child. Ms. Shettles

prepared numerous memoranda to trial counsel regarding the information that she found

relating to the Petitioner’s history. She also prepared a mitigation timeline and a

document summarizing the Petitioner’s significant life events and themes. Co-counsel

stated that trial counsel did not call any of the Petitioner’s family members as witnesses

during the penalty phase because none of them were willing to testify on the Petitioner’s

behalf. Co-counsel said Ms. Shettles was the only witness called by the defense in

mitigation because trial counsel believed they could present all of the pertinent

information about the Petitioner through her. Co-counsel believed Ms. Shettles was able

to allude to the Petitioner’s intellectual impairments during her testimony.

The defense team retained Dr. James S. Walker, a clinical neuropsychologist, to

evaluate the Petitioner. Co-counsel said the defense team was aware that the Petitioner

had some deficits and that they wanted to explore how the deficits could configure into

their defense. Dr. Walker evaluated the Petitioner and issued a report, which was entered

as an exhibit during the post-conviction hearing. According to the report, Dr. Walker

diagnosed the Petitioner under Axis I with adjustment disorder with depressed and

anxious mood, alcohol dependence, cannabis dependence, and cognitive disorder not

otherwise specified based upon the Petitioner’s verbal learning problems. Dr. Walker

diagnosed the Petitioner under Axis II with antisocial personality characteristics and

under Axis IV with current psychosocial stressors of incarceration and legal problems.

The Petitioner had a Global Assessment of Functioning score of sixty, which co-counsel

acknowledged indicated that the Petitioner had deficiencies. Dr. Walker concluded that

the Petitioner was competent to stand trial and did not appear to have a viable insanity

defense. Dr. Walker identified several mitigating factors, including physical abuse

suffered by the Petitioner as a child, the violent neighborhood in which he was raised, his

brother’s violent history and intoxication on the night of the murders, the Petitioner’s

significant academic difficulties and verbal learning problems, the family’s neglect of

him as a child, his prior criminal history, his intoxication on the night of the murders, and

his chances of being a violent adult based upon genetic testing and the abuse he suffered

as a child.

Dr. Walker noted that the Petitioner reported that his arrest was the result of a false

confession and detailed his conversation with the Petitioner about what occurred on the

night of the murders. Dr. Walker noted that factors consistent with a false confession

included the absence of a recorded statement, the presence of only the written reports of

the officers involved, and the several hours of interrogation prior to the confession. Dr.

Walker also noted that the Petitioner had reason to fear for his life if incarcerated after

being identified as a child killer. However, Dr. Walker also noted that the Petitioner was

not easily led or influence by others and was not unduly suggestible or easily talked into

- 34 -

endorsing false information during the “non-threatening context of a psychological

evaluation.” Dr. Walker stated that the Petitioner’s version of the events seemed

“unlikely.” Dr. Walker explained:

For example, the autopsy reports describe the victims as being horrifically

injured prior to their deaths, for what must have represented a lengthy, and

very noisy, set of events. Yet [the Petitioner] did not report hearing the

sounds that would accompany such torture, or even suspicion that extreme

violence was taking place in the next room. The fact that he admittedly left

the severely injured children there without seeking medical assistance also

raises concerns regarding his potential involvement.

Co-counsel testified that he had conversations with Dr. Walker about his findings

and that the defense team decided against calling Dr. Walker to testify due to his findings

of antisocial personality characteristics. At times during his testimony, co-counsel

referred to the Petitioner’s diagnosis as “antisocial personality disorder.” Co-counsel

stated that he viewed antisocial personality as “one of the more dangerous labels in the

criminal justice system” because such a diagnosis does not result in as much empathy or

sympathy as other more serious mental health diagnoses. He recalled that lead counsel

strongly felt that such a diagnosis should not be presented to the jury. Co-counsel stated

that he and lead counsel believed that the best chance in mitigation was based on residual

doubt with “one juror saying ‘I went along and made the deal to convict him, but I’m not

giving this guy the death penalty.’”

Co-counsel testified that the defense team retained Dr. Geraldine Bishop to

conduct a psychological evaluation of the Petitioner. Co-counsel stated that Dr. Bishop

expressed reluctance to work on the case once she learned of the facts. He did not recall

why Dr. Bishop performed the majority of her work in September and October of 2010,

and co-counsel believed that Dr. Bishop had been retained prior to that time. The defense

team did not retain a neurologist to evaluate the Petitioner.

Co-counsel testified that during the opening statements of the penalty phase, he

told the jury that the case had more aggravating circumstances than he had ever seen in

an effort to “buy credibility” with the jury. He stated that he did not object to a jury

instruction indicating that jurors could not have any sympathy for the Petitioner because

co-counsel believed the instruction was a correct statement of the law.

On cross-examination, co-counsel testified in February 2015, he loaned his file in

this case to the OPCD under the agreement that they would make a copy of it and return

it to him. Approximately one month prior to the post-conviction hearing, co-counsel

contacted the OPCD to obtain a copy of his file as he had been promised, but the OPCD

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refused to provide a copy of the file. As a result, co-counsel was unable to review his

entire file in the OPCD’s possession prior to testifying.

Co-counsel testified that the murders occurred in March 2008 and that the trial

occurred in September 2010. He believed the case was tried on its third setting and stated

that he would have requested a continuance if he felt that it was necessary. The State had

open-file discovery and maintained the physical evidence in a large room in the

courthouse.

Co-counsel had no recollection of the Petitioner’s wearing stun cuffs at trial. Co-

counsel did not recall discussing or litigating the issue. Co-counsel stated that he did not

have a strategic reason to refrain from objecting to the trial court’s order for the Petitioner

to wear stun cuffs if such an order was issued. The State entered as an exhibit an order

entered by the trial court on September 17, 2010, requiring the Petitioner to be in stun

cuffs during the trial.

Co-counsel stated that in evaluating the prospective jurors, trial counsel used a

numbering system in which lead counsel and co-counsel individually rated each

prospective juror and then discussed them. Co-counsel testified that he and lead counsel

did not feel that a jury would impose a sentence of less than death if the Petitioner was

convicted. Rather, they believed they had a stronger defense related to the guilt phase

and considered the defense in weighing each prospective juror. Co-counsel stated that he

used sticky notes and a juror sheet in evaluating the jurors, all of which would have been

maintained in his case file.

Co-counsel noted that Juror 1 had military experience. Co-counsel explained that

while he generally did not like to choose jurors with military experience because he

believed they would favor the police, he believed Juror 1’s knowledge of ballistics and

other forensic issues based upon his military experience was valuable to the defense.

Juror 1 answered in his questionnaire, “I believe the death penalty is the appropriate form

of punishment in some murder cases, and I can return a verdict of death if I believed it

was warranted in a particular case, depending on the evidence, the law, and what I

learned about the defendant.” Co-counsel said this was a common answer by prospective

jurors in death penalty cases.

Co-counsel testified that in prior cases, he and Ms. Shettles had interviewed

witnesses together but that in this case, only a few lay witnesses were willing to talk to

the defense. Co-counsel agreed that during the penalty phase, Ms. Shettles was able to

testify about all the information she had discovered during her investigation regardless of

whether the evidence constituted hearsay. He stated that although Ms. Shettles was

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unable to provide a diagnosis or an expert opinion, she was able to present evidence

related to the Petitioner’s mental health to the jury.

Co-counsel testified that trial counsel retained Mr. Richard Earnest as a crime

scene expert, hoping he would challenge the State’s theory that one person committed the

crimes. However, Mr. Earnest was unable to definitively state that a single person could

not have committed the crimes. Co-counsel stated that the defense chose to retain Dr.

Aldridge as an expert in interviewing children of trauma over another expert because she

had testified for the State more often, which made it more difficult for the State to cross-

examine her.

Co-counsel agreed that C.J. made inconsistent statement to the police as to the

identity of the perpetrator. Co-counsel believed he played portions of C.J.’s video-

recorded statement to the police at trial for impeachment purposes. Later during the post-

conviction hearing, the post-conviction court found that according to the trial transcript,

co-counsel asked during a jury-out hearing to play portions of C.J’s video-recorded

statement as inconsistent statements and that the State argued that C.J’s statements were

not inconsistent with his testimony on cross-examination. The post-conviction court

stated that following a break and before the trial court issued a ruling, trial counsel

announced that they did not have any further questions.

Lead counsel testified that at the time of the Petitioner’s case, he was in private

practice and that approximately ninety percent of his practice was criminal defense. He

was appointed to represent the Petitioner in general sessions court approximately one

week after the Petitioner was arrested, and lead counsel and co-counsel were appointed to

represent him after he was indicted. Lead counsel stated that he worked more on the

guilt/innocence aspect of the case, while co-counsel worked more on the mitigation

aspect. Lead counsel said they were both familiar with every witness and every aspect of

the trial. Approximately two months after the Petitioner’s trial, lead counsel left private

practice and joined the Shelby County Public Defender’s Office. As a result, a portion of

his file was incorporated into co-counsel’s file, and the other portion of the file was

placed into storage and was later destroyed by water damage.

Lead counsel did not recall any discussion with the Petitioner about his wearing

stun cuffs while in Nashville for jury selection. Lead counsel did not recall the trial

court’s entering an order requiring that the Petitioner wear stun cuffs or the Petitioner’s

wearing stun cuffs at trial. Lead counsel stated that had he been aware that the Petitioner

was wearing stun cuffs, he would have strenuously objected.

Lead counsel testified that in selecting a jury in a death penalty case, “the issue is

do you want guilt/innocence or mitigation people.” He stated that trial counsel sought

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jurors who they believed would be favorable in the guilt phase of the trial because they

believed that due to the number of victims and the Petitioner’s prior murder conviction, it

would be “extremely difficult” to find a juror who would not vote for the death penalty.

Lead counsel said he did not intend to question all of the prospective jurors to ensure that

they would be able to return a verdict of life imprisonment in the event that they

convicted the Petitioner of the charges. He explained that, generally, if a prospective

juror stated that he could not return any sentence less than death under the facts of the

case, lead counsel likely would challenge the prospective juror for cause eventually but

that he preferred to use the prospective juror to educate the rest of the jury. Lead counsel

stated that based upon his experience, there were certain prospective jurors that he liked

and did not like based upon their religion, occupation, or sexual orientation and that “a lot

of it is just gut feeling, how they look at you, how they look at my client.”

Trial counsel had the jury questionnaires one to two weeks before trial, and the

parties spent one to two days individually questioning those prospective jurors who the

State or the defense believed were problematic based upon their responses to the

questionnaires. When questioned about why he did not move to strike Juror 1 for cause,

lead counsel explained that he conducted voir dire different from many other attorneys

and that he often used jurors with extreme views who would offend other jurors with

their answers. He stated that he did not want jurors to get along and tried to choose jurors

with personalities that would clash. He said he did not question the prospective jurors

about race or implicit bias because he did not believe the case involved racial issues.

Lead counsel testified that he had worked with Ms. Geiser and Ms. Shettles on

previous cases and that while they discussed different avenues to pursue, it was not

necessary for him to instruct them on which witnesses to interview. Lead counsel said

that he did not personally interview the lay witnesses and the officers involved in the case

and that he probably interviewed the medical examiner. He stated that he always met

with the medical examiner if the medical examiner agreed to do so. He testified that he

did not object to Dr. Funte’s testimony at trial regarding the autopsies performed by Dr.

Laboy as violating the Petitioner’s confrontation rights because the defense was not

disputing the cause of the victims’ deaths. Rather, their defense was that the Petitioner

was not the perpetrator. Lead counsel believed that objecting too often at trial could

“turn the jury off” and make it appear as if the attorney is trying to hide something.

Lead counsel testified that co-counsel wanted to cross-examine the children at trial

and that co-counsel likely believed that lead counsel would frighten the children. Lead

counsel explained that co-counsel wanted “treat these kids with kid gloves” and that lead

counsel, generally, was more aggressive in cross-examining witnesses. Lead counsel had

no independent recollection of ever seeing a report on C.J. from the Center for Pediatric

Neuropsychology. Lead counsel did not believe he would have questioned C.J. about his

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cognitive memory problems from the report. He explained that with any issue involving

a jury, he wanted to “walk them down the path” without giving them the final answer,

which was “usually pretty obvious,” in order to allow the jury to “figure it out and then

they would think they’d figured out the whole thing.” He stated that “you want the jury

to think they’re smart and they can figure the crime out because all these people watch

Law and Order TV shows and crime shows.” He also stated that based upon the fact that

C.J had a knife embedded in his skull and the physician’s testimony regarding the process

required to remove the knife, “[t]here’s absolutely no doubt in any juror’s mind that child

had brain damage.”

Lead counsel testified that it was “pretty obvious” that the children did not have an

independent recollection of the offenses. He said the children had been around family

members and other adults while they were discussing the offenses and that the children

were repeating what they had heard. He stated that he wished the jury had believed the

children because he did not think the children’s testimony was consistent with the State’s

theory and, instead, created reasonable doubt.

Lead counsel testified that prior to trial, he was aware that the State intended to

introduce evidence of confessions made by the Petitioner to the police and to his mother.

The defense team retained Dr. Leo as a false confession expert, and lead counsel stated

that they used Dr. Leo in part to set up an argument that the State should not be allowed

to use any of the edited video of the Petitioner’s confession from The First 48 because the

false confession expert did not have access to the entire interview. Lead counsel

attempted to obtain the unedited footage and had a telephone conversation with someone

from the production company, who stated that the recordings are edited immediately and

the unused footage is quickly discarded. Lead counsel stated that the person confirmed to

him that one of the reasons for the procedure was to avoid being “dragged” into litigation.

Lead counsel did not have an independent recollection of the mitigation theory

used at trial but testified that the theory was likely based on the value of the Petitioner’s

life and on residual doubt. He did not recall whether he or co-counsel questioned Ms.

Shettles at trial, and he did not have any independent recollection of Dr. Bishop.

On cross-examination, lead counsel testified that he had represented defendants in

a “[c]ouple hundred” homicide cases, including fifty capital cases, and had tried over one

hundred jury trials. Lead counsel stated that in the Petitioner’s case, the State maintained

the physical evidence and the State’s file in a room on the second floor of the courthouse

and that “[i]t was a room full of paper.” He said that he and the prosecutor spent

“hundreds of hours” together in the room reviewing the material and that the prosecutor

provided him with a copy of any document that lead counsel requested. Lead counsel

and the prosecutor met about the photographs that the State intended to present at trial,

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and the trial court held a hearing prior to trial regarding any photographs to which the

defense objected.

Lead counsel testified that the defense team did not call Dr. Leo as a witness at

trial because the defense team was able to convince the trial court to exclude the edited

video recording of the Petitioner’s confession and the trial court warned the defense team

that they could open the door to the admissibility of the video if they were not careful

about what they said or argued. Lead counsel stated that the trial court’s ruling was a

“huge” win because the video was “terrible” and “damning.” He explained that the

defense team did not present Dr. Earnest as a witness at trial because he was unable to

conclude that one person could not have committed the offenses. Lead counsel said the

defense team did not call Dr. Walker as a witness because he gave the Petitioner a

diagnosis related to antisocial personality. Lead counsel stated, “To me as a defense

lawyer in a homicide case, I cannot think of a worse diagnosis unfortunately than

antisocial and that’s what I was worried about in this case.”

Ms. Rachael Geiser, a licensed private investigator, testified that she had been an

investigator since May 1999, had conducted the guilt/innocence investigation in the

Petitioner’s case, and had worked on capital cases prior to the Petitioner’s case. Lead

counsel asked Ms. Geiser to be the investigator in the case in March 2008 shortly after he

was appointed to represent the Petitioner in the general sessions court. She agreed to

work pro bono at that point because the Petitioner had not yet been indicted. In addition

to her general duties as an investigator, Ms. Geiser assisted in the coordination of experts

related to the fact investigation, discussed trial strategy with the defense team,

subpoenaed and coordinated witnesses, and met with the Petitioner and trial counsel to

prepare for trial. Ms. Geiser stated that she was in regular contact with trial counsel and

that the preparation for trial involved a collaborative effort. She assisted trial counsel in

developing the defense theory that the Petitioner did not commit the offenses.

Ms. Geiser agreed that the defense team wanted to attack the reliability and

voluntariness of the Petitioner’s statements and that the Petitioner testified at trial that the

statements were coerced. She testified that once the defense received discovery from the

State, she learned that the Petitioner did not provide an official statement to the police

and that his statements were summarized in a supplemental police report. The defense

also received in discovery the interview of the Petitioner’s mother with police during

which she detailed the Petitioner’s confession to her. The defense team retained Dr. Leo,

a false confessions expert from San Francisco, California, with whom Ms. Geiser had

worked on prior cases. Ms. Geiser testified that Dr. Leo requested that the Petitioner

write out his version of the events and that the Petitioner complied with the request. Dr.

Leo also requested the unedited footage from The First 48. Ms. Geiser said that the

defense team was unable to obtain the unedited footage, which hindered Dr. Leo’s ability

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to determine whether the Petitioner’s confessions were false. She sent Dr. Leo the police

supplemental report, which summarized the Petitioner’s statement, and the edited footage

from The First 48. Ms. Geiser said Dr. Leo did not issue a report because he was unable

to provide any substantive opinions.

Ms. Geiser testified that the episode of The First 48 aired in July 2008, which was

when the defense team first learned how damaging the Petitioner’s interview was. The

Petitioner was indicted in December 2008, and Ms. Geiser was appointed as the

investigator shortly thereafter and then officially had the subpoena power to obtain the

footage. She said she issued a subpoena to Granada Entertainment USA, which filmed

the footage for The First 48, for the unedited footage as quickly as she could in February

2009 and that she believed she also requested the names of the field producers who may

have been present during the Petitioner’s interview with police. On February 26, 2009,

Granada’s attorney submitted a letter to Ms. Geiser, stating that the unedited footage was

no longer available, declining to provide the names of any producers, and maintaining

that the information she sought to obtain was protected by the media shield law.

Ms. Geiser testified that during the time in which she was attempting to obtain

unedited footage from Granada for the Petitioner’s case, she also was attempting to

obtain unedited footage and the identities of the film crew members on another case. She

stated that the second case involved a hearing during which Granada’s counsel alleged

that the information was protected by the media shield law. During the hearing, a witness

testified that no unedited raw footage existed because the editors cut or discarded the

footage during the editing process. The witness also testified that an employee would

review the footage and type a rough draft of a transcript of what everyone said during the

recording. Ms. Geiser stated that a transcript could have existed in the second case, as

well as in the Petitioner’s case, but the trial court in the second case held that the defense

was not entitled to the transcript.

Ms. Geiser was never able to obtain the names of the film crew members other

than the name of cameraman listed in discovery as being present at the crime scene. She

did not know whether the same cameraman was present during the filming of the

Petitioner’s interview with police and his conversation with his mother. Ms. Geiser did

not interview any of the crew members involved in the Petitioner’s case. She testified

that when she was working on the second case, she interviewed a field producer from

Granada who had worked on cases filmed in Louisiana and who informed her that

generally the cameraman sets up the video camera in the police department’s homicide

office to record an officer’s interview with a suspect and then walks away. The field

producer was unable to confirm to Ms. Geiser that the cameraman “did it here.”

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Ms. Geiser testified that the defense team retained Ms. Barrett as a gang expert to

consult with them about whether the offenses could have been committed by a gang. Ms.

Geiser believed Ms. Barrett opined that the offenses could have been committed by a

gang and that it was possible that an Asian gang committed the offenses. Ms. Geiser did

not believe Ms. Barrett was asked to prepare a report, and she did not testify at trial.

Ms. Geiser testified that the defense team retained Mr. Ernest, a ballistics expert,

to assist in deciphering the crime scene and that one of the primary defense theories was

that one person could not have committed the offenses. Ms. Geiser had a telephone

conversation with Mr. Ernest during which he opined that one person could have

committed the offenses. As a result, the defense team did not have him prepare a report.

Ms. Geiser stated that she sent various reports, case summaries, and other

documents to Dr. Walker to assist in his evaluation of the Petitioner. She did not recall

why Dr. Walker did not testify. She recalled that Dr. Walker’s report included a possible

antisocial diagnosis. She testified that based upon her experience in working on death

penalty cases, an antisocial diagnosis was damaging because “[j]uries don’t respond well

to it typically.”

On cross-examination, Ms. Geiser testified that she never had any issues in

obtaining discovery from the State. She also accompanied one of the trial counsel to

view the State’s physical evidence on a few occasions. Although she did not attend the

jury selection in Nashville, Ms. Geiser sat next to the Petitioner throughout the trial and

spoke to him while he was in the holding cell during breaks. She said that she never

observed him wearing any type of shocking equipment and that she did not recall the

Petitioner or anyone else complaining that he was wearing such equipment.

In response to questioning by the post-conviction court, Ms. Geiser testified that

an antisocial diagnosis was not evidence that a defense team would want to present to a

jury in a capital case. She said the decision not to present a mental health expert who

made such a diagnosis was “[p]retty typical,” especially after arguing throughout the guilt

phase that the client is innocent.

Ms. Glori Shettles, who had been a mitigation specialist for twenty-five years, was

the mitigation specialist on the Petitioner’s defense team. She obtained records

pertaining to the Petitioner and his family and interviewed multiple witnesses. She

prepared a chronological timeline based on those records and a summary of the

Petitioner’s significant life events and themes based upon the records and interviews and

provided the documents to trial counsel. She testified that the significant events included

a dysfunctional family from the time of the Petitioner’s birth; the abandonment and lack

of affection, love, and nurturing by his mother; the neglect and deprivation of food; the

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witnessing of domestic violence; the use of excessive corporal punishment by both

parents; the witnessing of inappropriate sexual behavior by his mother; his retention

twice in the fourth grade due to truancy; his exposure to drug use; his use of drugs with

his mother; the recommendation of mental health counseling at the age of fourteen due to

many issues including poor impulse control and anger; his witnessing of intentional

physical abuse of his younger brother by his mother; his obtaining his GED in prison; his

effect on his son; and his good employment history. Ms. Shettles also prepared a list of

possible mitigating circumstances, which was provided to defense counsel and to the

jury.

Ms. Shettles testified that the Petitioner’s mother had a son with Mr. Joseph Shaw,

with whom his mother sought to continue to have a relationship. Ms. Shettles stated that

at the age of eighteen, the Petitioner witnessed his mother place the child in scalding hot

water, injuring him and requiring hospitalization. Ms. Shettles said the likely intended

purpose of the Petitioner’s mother in injuring the child was to get the attention of Mr.

Shaw, and Mr. Shaw went to the hospital to check on the child. The Tennessee

Department of Children’s Services investigated the child’s injuries. The Petitioner’s

mother claimed that the injuries were accidental and that the child’s injuries were caused

by bleach and not by hot water.

Ms. Shettles testified that she interviewed a woman who began a relationship with

the Petitioner after she watched The First 48 episode. The woman told her that the

Petitioner revealed that he was sexually abused by a family member when he was ten or

eleven years old. Ms. Shettles also interviewed Mr. James Hathaway, a prison inmate

who had known the Petitioner and his family throughout his life. According to Ms.

Shettles’s memorandum of the interview, Mr. Hathaway had a prior brain injury, which

resulted in memory issues. Mr. Hathaway stated that the Petitioner’s mother often left

her children home alone with no food; that the Petitioner had anger issues, which caused

the Petitioner’s family to be afraid of him; that the Petitioner possessed guns as a

juvenile; that Mr. Hathaway and the Petitioner were in prison together after the Petitioner

was convicted of second degree murder; that the Petitioner made money in prison by

selling drugs to inmates; that the Petitioner’s family never contacted him while he was in

prison; that the Petitioner volunteered to participate in a gang program while in prison,

which was contrary to the information that Ms. Shettles received from the Security Threat

Group coordinator; and that Mr. Hathaway did not believe the Petitioner committed the

murders.

Ms. Shettles testified that she was the only witness presented on behalf of the

defense during the penalty phase. She became aware that she might testify approximately

two months prior to trial. She did not recall whether she met with trial counsel regarding

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her testimony before she testified. She stated that co-counsel instructed her “just to talk,”

which meant “just tell the social history, tell the story.”

Ms. Shettles testified that she worked with some mental health experts on the

Petitioner’s case, but she did not recall working with Dr. Bishop. Ms. Shettles did not

recall whether Dr. Bishop had information regarding the Petitioner’s mother’s scalding

her son with hot water. Ms. Shettles identified letters and emails regarding Dr. Bishop

and stating that Ms. Shettles was Dr. Bishop’s primary contact on the case.

On cross-examination, Ms. Shettles testified that the defense team had a “very

good” working relationship, that they had previously worked together on other cases, and

that she did not recall any problems amongst the defense team. She stated that dealing

with the Petitioner’s family was difficult and that whenever she met with members of his

family, she believed she had to spend as much time with them as they would allow

because she was afraid that she would not have another opportunity to speak with them.

Ms. Shettles recalled that the mother of the Petitioner’s fourteen-year-old son did not

want her son involved in the trial. Ms. Shettles was with the Petitioner during the trial

and brought him clothes to wear each day of the trial. She did not recall seeing him

wearing stun cuffs.

In response to questioning by the post-conviction court, Ms. Shettles testified that

in preparing for her testimony during the penalty phase, she drafted a social history of the

Petitioner’s life that included information received from the Petitioner, people who she

had interviewed, and records that she had obtained. Ms. Shettles stated that the purpose

of her testimony at trial was to inform the jury about the Petitioner’s life in hopes that

that the jury would find something from his childhood or the events in his life that would

lead them to impose a sentence less than death. She recalled that she testified about

social issues, the traumatic events in the Petitioner’s life, his mother’s abuse, his

problems at school, his issues with incarceration, and his mother’s scalding his half-

brother. Ms. Shettles noted that Dr. Bishop had emailed her, requesting the hospital

records of the Petitioner’s half-brother. Ms. Shettles obtained the hospital records and

testified at trial regarding the scalding incident. She recalled that following her

testimony, the Petitioner’s mother became extremely upset with Ms. Shettles and

followed her out of the courtroom.

Ms. Shettles agreed that the defense team consulted with many experts, who

provided information regarding mitigation themes and the Petitioner’s background and

that she was able to testify to the information during the penalty phase. She did not recall

the prosecutors interrupting her or asking her many questions. She believed that in

testifying at sentencing, she had “more free reign” to provide information than an expert

because her testimony related to factual information as to what occurred in the

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Petitioner’s life rather than an expert’s opinion. She further explained that she believed

that the defense team felt that the opinions of the experts with whom they consulted may

have been more harmful than helpful to the Petitioner. She agreed that she was able to

get information to the jury that would otherwise have come in through expert witnesses

without being in “that confrontational mode.”

The Petitioner presented Dr. Marilyn Miller, an associate professor in the

Department of Forensic Science at Virginia Commonwealth University, as an expert in

crime scene reconstruction, forensic science, and serology. She testified that she was

asked to review the crime scene investigation performed by the officers and to determine

whether reconstruction of the crime scene was possible. She reviewed “a good bit” of the

evidence collection methods employed by the officers, the trial testimony, and the trial

exhibits.

Dr. Miller testified that at least thirty people were in and out of the crime scene

over the course of the investigation and that “at least one” person and possibly more who

entered the crime scene were not members of the Memphis Police Department. She

criticized the presence of the film crew for The First 48 at the crime scene, stating, “Why

would you run the risk of changing or altering or losing or contaminating evidence that’s

at a scene?” She noted that the fact that some of the victims survived the attacks also

could have affected the crime scene. She stated that it appeared from a photograph that a

cameraman at the crime scene was not wearing personal protective equipment and that

the failure to wear such equipment creates the potential for contamination of the crime

scene. She noted that although Sergeant Mullins testified at trial that he wore booties

while at the crime scene, he should have worn other protective clothing.

Dr. Miller identified instances in which evidence was moved at the crime scene.

She testified that the toilet seat in the bathroom was lowered, raised, and lowered again;

that the boards were shown in different locations in photographs; and that a sweatshirt

and a pillow were moved and then photographed. She stated that by moving evidence,

“[i]t may change or alter something.” She said that moving evidence with blood on it

could change the pattern of the blood or force it off of the object, which would affect any

conclusions about how the evidence was created.

Dr. Miller testified that in this case, the detectives were responsible for

investigating the crime scene and determining what evidence to collect and process. She

stated that the search for evidence at a crime scene and the determination of what

evidence to collect and process should be performed by crime scene investigators, who

understand the nature of the evidence and the use of enhancement methods to find the

evidence. She said that in many cases, the detectives are not up-to-date on the

investigation methods.

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Dr. Miller noted trial testimony that only one perpetrator could have committed

the offenses because the crime scene was so small, and she testified that she was unable

to reconcile the opinion with the number of people who entered the crime scene in the

small area. She agreed that it was “possible” that a sole perpetrator could have

committed the offenses. She testified that another reason used at trial to support the

claim that the offenses were committed by a sole perpetrator was that the offenses could

have been “easily” committed through “a careful sequencing of the events.” She said that

if a sole perpetrator committed the offenses, she expected that perpetrator to have a great

amount of blood on him or her and that a number of blood fingerprints or palm prints and

footwear impressions would have been discovered throughout the house with one person

responsible for those prints or impressions. Dr. Miller was unable to discern any specific

footwear impressions but noted footwear patterns on some of the wooden boards that

resulted from a surface that was not stained with blood touching or stepping on the

boards. She stated that no examination was performed on the footwear impression

transfer patterns on the wooden boards.

Dr. Miller testified that a perpetrator who stabs a victim commonly cuts himself or

herself with the knife and that as a result, she reasonably expected to find the

perpetrator’s blood at the crime scene. She understood that none of the Petitioner’s blood

was found at the crime scene and that there was only one fingerprint belonging to the

Petitioner among the evidence collected from the home. She said no cuts were on the

Petitioner’s hands at the time of his arrest, which she found to be “highly unusual” due to

the number of sharp force trauma wounds inflicted on the victims. She stated that since

2015, crime scene investigators process the handles of weapons for DNA and examine

shoe laces of a suspect “if we’re trying to tie a shoe into a particular person because

they’ve touched that area.” She said that while these types of investigations were not

common at the time of the offenses, they “certainly could be done subsequently.”

Dr. Miller testified that the wooden boards could have been used as weapons

based upon the blood stain patterns, the infliction of blunt force trauma on some of the

victims, and the condition of the broken or splintered boards. She noted that the

Petitioner did not have any splinters or any evidence of prior splinters on his hands when

he was arrested, which Dr. Miller believed to be unusual given the number of blunt force

wounds caused by the wooden boards and the condition of the broken or splintered

boards.

Dr. Miller testified that although most blood stain analysts and crime scene

reconstruction experts prepare a report of their findings, which will then be subject to

peer review, Sergeant Mullins failed to prepare a report. She stated that Sergeant Mullins

also improperly relied upon the witness statements of the two surviving children and the

Petitioner’s statement in reaching his conclusions. She explained that the foundation of

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crime scene reconstruction is to base the findings on the blood stain patterns and the

physical evidence at the scene and that statements from witnesses should not be

considered.

On cross-examination, Dr. Miller testified that she did not conclude that one

person could not have committed the offenses. She stated that it was “equally possible”

that more than one perpetrator committed the offenses due to the amount of bloodshed

and the physical evidence. She explained that “based on … improper investigative

techniques, we may or may not be able to know precisely one or the other” and that

“[i]t’s not a sole perpetrator to the exclusion of the possibility that there were others

based on the evidence.”

Dr. Miller testified that the methodology used in investigating the crime scene was

tainted or flawed in that many of the blood stain patterns possibly could have led to the

collection or testing of other evidence. She also testified that the tainted methodology

possibly may have changed the evidence or the crime scene and led to erroneous

conclusions. She suggested that “there could have been some differences that would

have prevented the methodology from being flawed.”

On redirect examination, Dr. Miller testified that had she been present in the

courtroom when Sergeant Mullins testified, she could have assisted the defense team in

developing a cross-examination of Sergeant Mullins regarding the various errors of

methodology. On recross examination, Dr. Miller stated that she would have told defense

counsel that it was possible that one perpetrator could have committed the offenses but

that this conclusion was “not to the exclusion of all of the other possibilities.” She did

not know whether the perpetrator was wearing gloves while stabbing the victims in order

to protect him from cuts. She believed a sufficient time had passed before the offenses

were discovered to allow the perpetrator to dispose of his clothing.

In response to questioning by the post-conviction court, Dr. Miller agreed that her

testimony was based upon the proper procedures that should be followed by a crime

scene reconstructionist and that she was not asked to render an opinion regarding the

correctness of the conclusions reached. She testified that Sergeant Mullins misidentified

two patterns of impact spatter in one of the bedrooms as castoff stains.

Deputy Carlos Atkins with the Shelby County Sheriff’s Department testified that

he was the Petitioner’s escort officer during the trial and that he was trained and certified

in operating stun cuffs. Deputy Atkins identified the trial court’s order to have stun cuffs

applied to the Petitioner. He did not accompany the Petitioner to Nashville for jury

selection. He recalled placing a stun cuff on the Petitioner’s left ankle. He stated that

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during the guilt phase of the trial, the Petitioner was wearing slacks and a long sleeve,

button up shirt and that the slacks covered the stun cuff.

Deputy Atkins testified he placed a stun cuff on the Petitioner during the

sentencing hearing when the Petitioner was wearing his jail uniform. Deputy Atkins

stated that the jury was present during this sentencing hearing. He recalled the Petitioner

saying that since the jury already thought that he was a “monster,” there was no need for

him to wear street clothes and that he would just wear his jail uniform. Deputy Atkins

never activated the stun cuff.

On cross-examination, Deputy Atkins testified that he placed the stun cuff on the

Petitioner on two separate days, the day in which the Petitioner wore his jail uniform

during the trial and the day when the Petitioner returned for a sentencing hearing in order

to sign paperwork. The Petitioner was not wearing a stun cuff when he testified at trial.

Deputy Atkins stated that before he placed the stun cuff on the Petitioner on the day that

he wore his jail uniform, Deputy Atkins told a man and a woman, who were speaking to

the Petitioner while he was in the holding cell, that a stun cuff would be placed on the

Petitioner. Deputy Atkins agreed that the two days during which the Petitioner wore a

stun cuff were far apart in time.

In response to questioning by the post-conviction court, Deputy Atkins agreed that

he placed stun cuffs on the Petitioner on only two occasions. He also agreed that the first

time that the Petitioner wore stun cuffs was during the sentencing phase of the trial after

the verdict had been returned and when the Petitioner decided to remain in his jail

uniform. Deputy Atkins stated that he placed a stun cuff on the Petitioner “that day.”

Deputy Atkins stated that the second occasion during which the Petitioner wore a stun

cuff occurred much later on during another proceeding.

The post-conviction court, which also was the trial court, recalled that there were

never any problems with the Petitioner throughout the proceedings. The court stated that

the sheriff requested an order allowing stun cuffs to be placed on the Petitioner in the

event that “something occurred” such that he believed the stun cuffs were necessary. The

court explained that it went ahead and entered the order so that it did not have to stop the

proceedings to enter an order in the event stun cuffs became necessary.

The State presented the testimony of Deputy Keley Gray with the Shelby County

Sheriff’s Department, who worked on the Gang Unit inside the jail. Deputy Gray

escorted the Petitioner to Nashville for jury selection and back to Memphis and

accompanied the Petitioner throughout the trial. Deputy Gray testified that the Petitioner

never wore a stun cuff during the proceedings. Deputy Gray stated that Deputy Atkins

would have been responsible for placing the stun cuff on the Petitioner because he was

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certified to do so but that Deputy Gray would have known if Deputy Atkins had placed

the stun cuff on the Petitioner.

On cross-examination, Deputy Gray testified that if the Petitioner was wearing

street clothes, the stun cuff would be placed so that it would not have been seen

underneath the trouser. Deputy Gray recalled that the Petitioner was wearing street

clothes during the guilt phase of the trial and that the Petitioner was wearing a stun cuff

on his ankle on the “sentencing date.” On redirect examination, Deputy Gray clarified

that the “sentencing date” was the day in which the trial court sentenced the Petitioner.

Deputy Gray did not believe the jury was present on the day in which the Petitioner wore

a stun cuff.

The State also presented the testimony of Assistant District Attorney General Ray

Lepone, who was the prosecutor at trial and in charge of the discovery. He testified that

he had worked with both trial counsel on numerous homicide cases and always had an

open-file policy, which he stated meant “they’re going to see everything in my file unless

it’s something protected by statute where the judge orders that neither one of us can see it

or that it’s protected.” He maintained the State’s file in a conference room, and when

lead counsel sought to view the file, General Lepone either accompanied lead counsel

into the room or left lead counsel and Ms. Geiser in the room alone to view the file.

General Lepone testified that each of the children were evaluated and that the

records of their evaluations were placed in separate folders that were labeled and had blue

checkmarks, which General Lopone stated he made on the folders to indicate that he was

present when lead counsel reviewed the file. He recalled discussing the reports with lead

counsel and stated that Dr. Vicki Brewer, who evaluated the children, was on the State’s

witness list provided to the defense. He also stated that he announced on the record

during a hearing that he was turning over the names of those who treated and evaluated

the children to the defense and that lead counsel responded that the defense team would

issue subpoenas if they believed it was necessary.

General Lepone testified that the children made many different statements and that

their forensic interviews were “all over the place.” He stated that the defense’s cross-

examination of the children was “amazing” and that they did a “fabulous job.” He noted

that co-counsel was able to get C.J. to agree with him on everything and that co-counsel

was able to bring out the different suspects whom the children had identified and the

inconsistencies in their forensic interviews.

On cross-examination, General Lepone agreed that during the State’s rebuttal

closing argument in the guilt phase of the trial, he stated that “C.J. knows who put the

knife in his head. He knows it and he told you who did it” and that C.J. solved the case.

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General Lepone also agreed that the prosecutor who gave the initial closing argument

referred to C.J. as the “hero of the case” because he survived in a bathtub with a knife in

his head for forty hours. General Lepone noted that Lieutenant Davidson also referred to

C.J. as a “hero” multiple times during his testimony. General Lepone recalled that the

other prosecutor also argued to the jury, “C.J. knows what happened because he was

there and he saw [the Petitioner] do it. I wanted you to see C.J. I wanted you to hear

C.J.”

General Lepone testified that the only defense theory that could have been

presented was that the Petitioner was not the perpetrator because the defense did not have

a valid argument that the murders were committed in self-defense or constituted second

degree murder. The State initially believed that a gang could have committed the

offenses. General Lepone stated that as a result, police officers “actually build in a lot of

the defense” for the Petitioner because they searched for “the worst of the worst” and

interviewed gang members, including members of the Gangster Disciples. Law

enforcement sought the assistance of FBI profilers, who stated that a Mexican gang could

have committed the murders. Law enforcement identified numerous possible suspects

and prepared numerous supplemental reports, all of which were provided to the defense

in discovery. General Lepone stated that the defense presented this information to the

jury, including evidence that Mr. Cecil Dotson was a Gangster Disciple and had an

altercation with another gang member one or two weeks prior to the murders.

General Lepone testified that based upon information from experts regarding the

trauma and nature of the injuries suffered by the children, he and the other prosecutors

decided early in the case that it would not be prudent to attempt to talk to the children.

General Lepone said that when the State called the children as witnesses, the prosecution

had “no idea what they were going to say or if they would every say anything” but that

the prosecution knew that the jury would want to at least hear from C.J. General Lepone

agreed that it was clear from the defense’s cross-examination of C.J. that they wanted to

call C.J.’s identification of the Petitioner as the perpetrator into question. General

Lepone stated that co-counsel “did an amazing job” in cross-examining the children and

“pretty much washed the entire direct examination away.” He said he did not believe

“there’s anything else those lawyers could have done with information in our file to

attempt to discredit those children after they got up here and pretty much told the jury

what they had to tell them.”

General Lepone testified that he recalled discussing Dr. Brewer’s report of her

neuropsychological evaluation with lead counsel. General Lepone did not discuss the

report with co-counsel and did not know whether he made a copy of the report or

provided it to Ms. Geiser. General Lepone stated that lead counsel told him that the

portion of the report regarding C.J.’s memory could be proven through any of the State’s

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evidence. General Lepone noted that C.J. had a knife in his head, lay in a bathtub for

forty hours, and underwent brain surgery. He explained, “I don’t think it was any secret

that somebody could stand up without any of that documentation and start to question the

child’s memory.” He stated that his conversation with lead counsel involved whether

C.J.’s long-term memory issues would benefit the State or the defense, and General

Lepone believed the child’s long-term memory issues benefitted the State at trial. He

explained that C.J.’s initial identification of the Petitioner as the perpetrator while at the

hospital involved short-term memory and that C.J. was unable to remember the events as

well by the time of the trial due to his issues with long-term memory. General Lepone

noted that instead of focusing on C.J’s long-term memory issues, the defense focused on

the inconsistent statements made by the children. He stated that at trial, “that was

probably the worst day for the State [due to] how effectively they cross-examined those

children.”

General Lepone testified that the Petitioner testified at trial regarding his entire

version of the events and kept saying, “Look at the tape.” The State argued that as a

result, the edited version of the Petitioner’s interview should be admitted, but the trial

court denied the request. General Lepone noted that the Petitioner testified that as he was

talking to his mother in the interview room, he was also whispering to his mother that he

did not commit the offenses. General Lepone stated that while the Petitioner’s mother

also denied that the Petitioner whispered to her, the edited recording would have

established that the Petitioner’s claims were untrue.

Following the hearing, the post-conviction court entered digital copies of the files

from co-counsel, Ms. Geiser, and Ms. Shettles as late-filed exhibits. The post-conviction

court entered an order finding that co-counsel had given the defense’s original trial file to

the OPCD based upon representations from the OPCD that a copy of the file would be

provided to him and that the OPCD then refused to provide a copy to co-counsel in order

to allow him to prepare for his testimony at the post-conviction hearing. The post-

conviction court found that as a result, co-counsel was unable to recall the reasoning for

some of the decisions made regarding the trial when questioned about them at the post-

conviction hearing. The post-conviction court also found that the OPCD violated the

court’s order requiring them to provide to the State a copy of all the materials from the

defense team’s trial file that were relevant to the issues raised in the petition.

The Petitioner did not testify at the post-conviction hearing. On May 16, 2019, the

post-conviction court entered a 109-page order addressing the Petitioner’s claims raised

in his various petitions and denying the Petitioner’s request for post-conviction relief.

This appeal followed.

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ANALYSIS

The Petitioner contends that (1) he received ineffective assistance of counsel at

trial and on direct appeal; (2) the AOC and the Chief Justice of the Tennessee Supreme

Court improperly vacated the post-conviction court’s orders granting the Petitioner’s

request for funding of experts; (3) the State improperly failed to preserve the videotape of

the Petitioner’s custodial interrogation by police and his interactions with this mother; (4)

the State improperly withheld evidence; (5) the use of a stun cuff during the trial violated

the Petitioner’s due process rights; (6) a juror’s service on the jury violated the

Petitioner’s constitutional rights; (7) the Petitioner’s convictions and death sentences

were the result of juror misconduct; (8) the State made improper comments during

closing arguments; (9) the Petitioner’s convictions and death sentences and Tennessee’s

execution method are unconstitutional; and (11) cumulative error warrants relief.

The Post-Conviction Procedure Act provides for relief when a petitioner’s

“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. The burden of proving allegations of fact by clear and convincing

evidence falls to the petitioner seeking relief. T.C.A. § 40-30-110(f). The post-

conviction court’s findings of fact are binding on the appellate court unless the evidence

preponderates against them. Kendrick v. State, 454 S.W.3d 450, 457 (Tenn. 2015).

Accordingly, the reviewing court defers to the post-conviction court’s findings regarding

the credibility of witnesses, the weight and value of witness testimony, and the resolution

of factual issues. Id. Questions of law and mixed questions of law and fact are reviewed

de novo. Id.

I. Ineffective Assistance of Counsel

The Petitioner maintains that trial counsel were ineffective in their investigation

prior to trial, during jury selection, during both phases of the trial, and on appeal. He

asserts that trial counsel were ineffective prior to trial in failing to (1) pursue the

suppression of the Petitioner’s statements to the police and to his mother; (2) obtain the

unedited video recording of the Petitioner’s interview with the police and his interactions

with his mother; (3) and challenge the State’s failure to preserve the unedited video

recording. He asserts that trial counsel were ineffective during jury selection in failing to

(1) challenge the trial court’s death qualification procedures; (2) question prospective

jurors about racial and implicit bias; (3) rehabilitate prospective jurors; (4) challenge a

juror for cause; and (5) exhaust their peremptory challenges. The Petitioner argues that

trial counsel were ineffective during both phases of the trial in failing to (1) object to the

use of a stun cuff on the Petitioner; (2) present evidence of C.J.’s long-term memory

deficits; (3) object to the introduction of photographs of the crime scene; (4) object to the

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forensic pathologist’s testimony about three autopsies that she did not perform; (5)

effectively challenge the testimony of the State’s witnesses; (6) object to testimony as

inflammatory and irrelevant; (7) prepare the Petitioner for his testimony; (8) present

mitigating evidence during the penalty phase; (9) make a proper opening statement

during the penalty phase; (10) prevent and/or challenge the State’s improper comments

during closing arguments; and (11) object to various jury instructions. The Petitioner

also asserts that trial counsel were ineffective in failing to raise challenges on direct

appeal to an officer’s testimony as inflammatory and irrelevant and to the trial court’s

jury instructions.

Under the Sixth Amendment to the United States Constitution and article I, section

9 of the Tennessee Constitution, the accused is guaranteed the right to effective assistance

of counsel. Moore v. State, 485 S.W.3d 411, 418 (Tenn. 2016). To prevail on a claim

that he was denied his constitutional right to effective assistance of counsel, a petitioner

must prove both that counsel’s performance was deficient and that the deficient

performance caused prejudice to the defense. Kendrick, 454 S.W.3d at 457 (citing

Strickland v. Washington, 466 U.S. 668, 687 (1984)). A claim may be denied for failure

to establish either deficiency or prejudice, and the reviewing court need not address both

components if a petitioner has failed to establish one. Goad v. State, 938 S.W.2d 363,

370 (Tenn. 1996). Each element of a claim of ineffective assistance of counsel is a mixed

question of fact and law reviewed de novo. Kendrick, 454 S.W.3d at 457.

“Establishing deficient performance requires showing ‘that counsel’s

representation fell below an objective standard of reasonableness,’ which standard is

measured by ‘professional norms’ prevailing at the time of the representation.” Garcia v.

State, 425 S.W.3d 248, 256-57 (Tenn. 2013) (quoting Strickland, 466 U.S. at 688). So

long as counsel’s representation was “‘within the range of competence demanded of

attorneys in criminal cases,’” counsel will not be deemed to have performed deficiently.

Felts v. State, 354 S.W.3d 266, 276 (Tenn. 2011) (quoting Baxter v. Rose, 523 S.W.2d

930, 936 (Tenn. 1975)). Deficient performance requires a showing of errors so serious

that “‘counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth

Amendment.’” Id. (quoting Strickland, 466 U.S. at 687).

The reviewing court should not second-guess strategic choices or measure

counsel’s performance by “‘20-20 hindsight.’” Henley v. State, 960 S.W.2d 572, 579

(Tenn. 1997) (quoting Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982)). In reviewing

counsel’s professional decisions, a “‘fair assessment ... 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.’” Goad, 938 S.W.2d at 369 (quoting Strickland, 466 U.S. at 689). Strategic

decisions based on a thorough investigation of law and relevant facts are virtually

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unchallengeable. Felts, 354 S.W.3d at 277. However, deference is only given to

strategic decisions which “are informed ones based upon adequate preparation.” Moore,

485 S.W.3d at 419.

In determining prejudice, the reviewing court must decide if there is “‘a

reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.’” Calvert v. State, 342 S.W.3d 477, 486 (Tenn.

2011) (quoting Strickland, 466 U.S. at 694). A reasonable probability is “‘a probability

sufficient to undermine confidence in the outcome.’” Id. (quoting Strickland, 466 U.S. at

694). The reasonable probability standard “requires a ‘substantial,’ not just

‘conceivable,’ likelihood of a different result.” Cullen v. Pinholster, 563 U.S. 170, 189

(2011). In evaluating whether a petitioner satisfied the prejudice prong, a court must ask

“whether counsel’s deficient performance renders the result of the trial unreliable or the

proceeding fundamentally unfair.” Lockhart v. Fretwell, 506 U.S. 364, 372 (1993)

(citing Strickland, 466 U.S. at 687). In other words, “a petitioner must establish that the

deficiency of counsel was of such a degree that it deprived the [petitioner] of a fair trial

and called into quest

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