Corinio Pruitt v. State of Tennessee

05/06/2022

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

May 4, 2021 Session

CORINIO PRUITT v. STATE OF TENNESSEE

Appeal from the Criminal Court for Shelby County

No. 06-00460 Chris Craft, Judge

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No. W2019-00973-CCA-R3-PD

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Petitioner, Corinio Pruitt, was convicted in 2008 of first degree felony murder and was

sentenced to death. After Petitioner’s conviction and sentence were affirmed by the

Tennessee Supreme Court on direct appeal, Petitioner filed a post-conviction petition.

After an extensive evidentiary hearing, the post-conviction court denied relief. In this

appeal, Petitioner raises the following claims for relief: 1) the post-conviction judge erred

by failing to recuse himself; 2) Petitioner is ineligible for the death penalty due to his

intellectual disability, and trial counsel were ineffective in their handling of Petitioner’s

intellectual disability claim at trial1; 3) trial counsel were ineffective for failing to

investigate and present additional mitigating evidence regarding Petitioner’s traumatic

social history, mental health, and cognitive impairments; 4) the prosecutors abused their

discretion by seeking the death penalty in this case, operated under a conflict of interest,

and committed misconduct by exercising peremptory strikes against African-American

jurors and making inappropriate statements and arguments, and trial counsel were

ineffective for failing to raise appropriate objections to these issues; 5) trial counsel

rendered ineffective assistance during the course of voir dire, trial, closing argument, and

jury instructions during the guilt phase; 6) the death penalty is unconstitutional and is a

disproportionate sentence in this case; and 7) the cumulative effect of these errors rendered

Petitioner’s trial fundamentally unfair. After a thorough examination of the briefs of the

parties and amici curiae, the records of the post-conviction hearing and direct appeal, and

the applicable law, this court affirms the judgment of the post-conviction court.

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

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Petitioner’s trial predated the 2010 amendment of Tennessee Code Annotated section 39-13-203,

which replaced the term “mental retardation” with “intellectual disability.” This opinion will use the term

“mental retardation” only when referring to the testimony of witnesses or pieces of evidence that used that

term. No disrespect is intended thereby.

JILL BARTEE AYERS, J., delivered the opinion of the court, in which JOHN EVERETT

WILLIAMS, P.J., and D. KELLY THOMAS, JR., J., joined.

Kelly A. Gleason (on appeal and at hearing); Lucie T. Butner (on appeal); and Jonathan

King and Barbara Sidelnik (at hearing), Assistant Post-Conviction Defenders, Nashville,

Tennessee, for the appellant, Corinio Pruitt.

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

General; Benjamin A. Ball, Assistant Attorney General; Amy P. Weirich, District Attorney

General; and Steve Jones, Assistant District Attorney General, for the appellee, State of

Tennessee.

J. David Wicker and Elizabeth Bowden, Nashville, Tennessee; Collin P. Wedel and

Andrew B. Talai, Los Angeles, California; and Alex E. Sirio, Washington, D.C., for the

amicus curiae, the Tennessee Conference of the NAACP.

David R. Esquivel, Sarah B. Miller, and Elizabeth Harwood, Nashville, Tennessee, for the

amicus curiae, Just City.

Ross M. Johnson and Zachary Lawson, Nashville, Tennessee, for the amicus curiae,

Tennessee Conservatives Concerned About the Death Penalty.

John S. Hicks, Nashville, Tennessee, for the amici curiae, the Arc of Tennessee, Professor

Daniel Kiel, and Professor Steven J. Mulroy.

OPINION

Factual and Procedural Background

I. Trial and Direct Appeal

Petitioner, Corinio Pruitt, was indicted for first degree felony murder and first

degree premeditated murder for the death of the victim, Lawrence Guidroz. Both at trial

and on direct appeal, Petitioner was represented by attorneys from the Shelby County

Public Defender’s Office. After a six-day trial in 2008, the jury found Petitioner guilty of

felony murder and the lesser-included offense of second-degree murder, which was merged

into his conviction for felony murder. The jury then imposed the death penalty after

determining that the following aggravating factors outweighed any mitigating

circumstances beyond a reasonable doubt: (1) Petitioner was previously convicted of one

or more felonies, other than the present charge, whose statutory elements involve the use

of violence to the person; (2) the murder was knowingly committed, solicited, directed, or

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aided by Petitioner, while 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 a robbery; and (3) the victim was 70 years of age or older at the time of the murder.

See T.C.A. § 39-13-204(i)(2), (7), (14). Petitioner’s conviction and sentence were affirmed

on direct appeal by both this court and the Tennessee Supreme Court, with two Justices

dissenting as to the proportionality of the death penalty. See State v. Pruitt, 415 S.W.3d

180 (Tenn. 2013), cert. denied sub nom Pruitt v. Tennessee, 134 S. Ct. 2874 (2014).

The Tennessee Supreme Court summarized the facts presented in the trial court as

follows:

A. Evidence at Guilt Phase

On the morning of August 2, 2005, Courtney Johnson encountered

[Petitioner] by chance as he walked to the Apple Market on Winchester Road

in Memphis, Tennessee. [Petitioner] talked about stealing a car and asked Mr.

Johnson if he would get in the car with him if [Petitioner] took one. Although

Mr. Johnson told [Petitioner] “no,” he remained with [Petitioner] outside the

market and spoke to people who came to the market, including [Petitioner]’s

cousin, Michael Rockett. Later, Mr. Johnson’s friend, “Sed,” came to the

market. [Petitioner] remained outside the market as Mr. Johnson and Sed

walked to the Family Dollar store at the other end of the shopping center. Mr.

Johnson testified that he went with Sed to the Family Dollar store because he

did not want to be involved in whatever [Petitioner] was going to do.

Taka Pruitt[, who is unrelated to Petitioner,] arrived at the Apple Market

with her neighbor. They parked directly outside the front door of the market.

Ms. Pruitt stayed in the car while her neighbor went inside. As she waited in

the car, she observed a “younger gentleman,” later identified as [Petitioner],

standing to the left of the door. Ms. Pruitt recognized him as someone who

lived in her apartment complex. After five or six minutes, Ms. Pruitt saw an

older man walk out of the market with groceries in his arms and walk to his

car. As he reached the driver’s side door, [Petitioner] ran up behind the older

man and pushed him into the car. Although she could not see clearly into the

car, it appeared to Ms. Pruitt that the two men were “tussling.” She saw

[Petitioner] on top of the older man, and she could see the older man’s feet

dangling out of the car. After about fifteen seconds, she saw [Petitioner] throw

the older man to the ground, slam the car door, and drive away. When Ms.

Pruitt checked on the victim, he was shaking and having trouble breathing and

he was bleeding from his nose and both ears.

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Ms. Pruitt ran inside the market, told employees that someone had just

been carjacked, and asked them to call 911. She then ran back to the victim

and called 911 on her cell phone. Ms. Pruitt went to the police station after the

carjacking. She identified [Petitioner] from a photo lineup as the person who

beat the victim and took the victim’s car. At trial, Ms. Pruitt was shown a still

photo created from the market’s security camera video. She circled an image

of [Petitioner], identifying him as the younger man she saw push the victim

into his car. Ms. Pruitt also confirmed that [Petitioner] was alone when he

attacked the victim.

Courtney Johnson testified that he saw the victim arrive at the Apple

Market in a brown Chevrolet and walk into the market just before he and Sed

went to the Family Dollar store. Mr. Johnson said that the victim appeared to

be fine when he went into the Apple Market. Mr. Johnson and Sed were in the

Family Dollar store for “three to four minutes.” When they walked back in the

direction of the Apple Market, Mr. Johnson saw “an old man laying down with

blood coming out of his head, and his car was gone.” [Petitioner] was also

gone. Mr. Johnson said he ran inside the market and asked someone to call

911. He left the scene before the police arrived because he did not want to be

involved and did not want to “snitch” on [Petitioner].

Memphis Police Officer Charmell Smith was the first officer on the

scene and arrived before emergency medical personnel. She found the victim

lying on his back on the ground and bleeding from his ears and mouth. She

testified that the victim was “semi-conscious” and that she helped load the

victim into an ambulance when it arrived. Based on her prior medical training

as a certified nursing assistant, she opined that the bleeding from the ears

indicated some kind of head trauma.

Thomas J. Leech III identified the victim, Mr. Lawrence Guidroz, from

a still photo created from the Apple Market’s security camera video. Mr.

Leech testified that he had known Mr. Guidroz for more than twenty-five years

and that he was very close to Mr. Guidroz. Mr. Leech went to the hospital to

see Mr. Guidroz when he heard that Mr. Guidroz had been attacked. Mr. Leech

remained in Mr. Guidroz’s hospital room throughout the night. At no point

was Mr. Guidroz able to communicate with Mr. Leech. Mr. Guidroz died the

next day. Mr. Leech testified that Mr. Guidroz was seventy-nine years old at

the time of his death. Mr. Guidroz was buried in Louisiana after a service in

Memphis. Mr. Leech identified photographs of Mr. Guidroz’s car, bearing the

license plate number CUX 845.

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Following the carjacking, Memphis Police began looking for the

victim’s car. Officer Jonas Holguin found the car parked at the Somerset

Apartments near Tullahoma and Winchester and was instructed to watch it

from a distance. At trial, Officer Holguin was shown the photograph of Mr.

Guidroz’s car, which had been identified by Mr. Leech, and confirmed that the

license plate was the same as the car he was instructed to watch. At some

point, the car was moved from the apartment complex without the knowledge

of the police, and the police began to search the area in an attempt to locate the

car. The car was later observed pulling into a residence at 3180 Beauchamp,

and a team of police officers converged on that location.

The driver of the car, who was wearing a red shirt, went inside the

house. The police made the decision to apprehend the driver. Mr. Johnson

came out of the house and the police took him into custody. According to

Sergeant Robin Hulley, Mr. Johnson yelled, “the guy you want is in the back

yard.” Officers went to the back yard and saw a man wearing a red shirt jump

over a fence and run. Although dogs were called in to track the man, police

had no success in finding him.

Mr. Johnson testified that after the incident at the Apple Market, he did

not see [Petitioner] again until three days later, when [Petitioner] telephoned

and asked to come to Mr. Johnson’s house to take some liquor from Mr.

Johnson’s grandmother’s bar. Because he knew [Petitioner] had stolen the

victim’s car, Mr. Johnson told [Petitioner] not to come to his house.

Nevertheless, [Petitioner] drove to Mr. Johnson’s house and parked the

car in the garage. Shortly thereafter, three to four unmarked police cars arrived

on the scene. Mr. Johnson knew that the police were there for [Petitioner].

Although Mr. Johnson was not aware that Mr. Guidroz had died, [Petitioner]

informed Mr. Johnson that he had “body-slammed” the victim before taking

his car. At trial, Mr. Johnson identified a photograph of himself with

[Petitioner] at the Apple Market on the day of the carjacking and identified the

victim’s car as the one [Petitioner] parked in his garage. Mr. Johnson was

never charged in the case.

The car was taken to the crime scene investigation office, where Officer

Francis Donald Carpenter processed the car for fingerprints. Officer Carpenter

testified that he found several latent prints on the car. Two prints were lifted

from the outside windshield on the front passenger side. Officer Nathan

Gathright, a latent fingerprint examiner for the Memphis Police Department,

testified that these prints belonged to Mbenda McCracken. A print found on

the left rear fender outside the car belonged to Kendricks Scott. Another print

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found on the right rear fender above the wheel belonged to [Petitioner]. Both

Mr. McCracken and Mr. Scott testified at trial.

Mr. McCracken identified [Petitioner] in the courtroom. In August

2005, Mr. McCracken had known [Petitioner] for approximately eight months.

Mr. McCracken identified a photo of the victim’s car and stated that he saw

[Petitioner] driving the car in August 2005. When Mr. McCracken asked

[Petitioner] where the car came from, [Petitioner] told him it was his

girlfriend’s car. Mr. McCracken got into the car and went with [Petitioner] to

buy beer and marijuana. [Petitioner], Mr. McCracken, and a friend named

“Fred” drove around in the car for three to four hours and got high. Mr.

McCracken later saw on the news that the car [Petitioner] was driving had been

taken in a carjacking. Mr. McCracken denied any involvement in the

carjacking.

Before Mr. McCracken testified, he and [Petitioner] were accidentally

placed in the same holding cell for about forty-five minutes. Mr. McCracken

was in custody on an aggravated burglary charge unrelated to the present case.

Mr. McCracken testified that while he and [Petitioner] were in the holding cell,

[Petitioner] told Mr. McCracken that there were two persons involved in the

carjacking and that the other person had not been charged. [Petitioner] said

that he and the other person were trying to get into the victim’s car. When the

victim approached the car, they jumped on him. [Petitioner] told Mr.

McCracken that he grabbed the victim and threw him down. [Petitioner] tried

to persuade Mr. McCracken to testify that he did not know [Petitioner] and that

another man came into the neighborhood to attempt to sell Mr. McCracken

parts from the car.

Kendricks Scott, whose fingerprints were found on the left rear fender,

testified that he saw [Petitioner] driving the victim’s car in August 2005.

[Petitioner] offered Mr. Scott a ride to work and told Mr. Scott that it was “his

auntie’s car.” Mr. Scott opened the rear door of the car and briefly sat in the

back seat with the door open, but did not ride in the car. Another person, whom

Mr. Scott did not know, was in the car at the time. The following day, when

the police came looking for [Petitioner] at the house next door to Mr. Scott’s

residence, Mr. Scott learned that the car had been taken in a carjacking. Mr.

Scott did not volunteer any information to the police at that time.

Alma Rockett is [Petitioner]’s aunt. [Petitioner] was living with Ms.

Rockett in the Somerset Apartments in August 2005. On August 2, 2005, Ms.

Rockett recognized [Petitioner] in video footage shown on a television news

broadcast. She also recognized another man in the video who previously had

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been in her home with [Petitioner]. At trial, she was shown still photographs

from the Apple Market security video. Ms. Rockett identified [Petitioner] as

the man wearing the dark-colored shirt, a larger man as her son, Michael, and

a smaller man as the man who previously came home with [Petitioner]. She

also identified Michael’s car in the photograph with the three men. After

seeing the video footage on the news, Ms. Rockett and her son went downtown

“to straighten it out, to let them know that [Michael] was not involved.” After

that night, [Petitioner] never came back to her house. When [Petitioner] later

called Ms. Rockett, she told him to turn himself in to police.

[Petitioner] testified in his own defense. He acknowledged his prior

convictions for aggravated burglary, robbery, criminal attempt to commit

robbery, and theft over $500. He stated that on the morning of August 2, 2005,

he left for work around 6:00 a.m. When he arrived at work, however, he

discovered he had left his identification badge at home. Although he called

his aunt to confirm the badge was there, he never went home to get it. Instead,

[Petitioner] went to Courtney Johnson’s house and arrived between 8:00 and

8:30 a.m.

[Petitioner] stated that he and Mr. Johnson talked for awhile and went

to the Apple Market for the express purpose of stealing a car. While they were

standing by the drink machine attempting to decide which car to steal,

[Petitioner]’s cousin, Michael, arrived and went into the market. When

Michael came out of the market, Michael, Mr. Johnson, and [Petitioner]

walked to the Family Dollar store. [Petitioner] stated that Michael bought

something, and the three of them returned to the front of the Apple Market by

the drink machine until Michael left. [Petitioner] acknowledged seeing Taka

Pruitt arrive at the market. He claimed that he and Mr. Johnson knew her

because “[they] smoke[d] weed with her.”

Mr. Johnson spoke to Mr. Guidroz when he arrived at the market. After

Mr. Guidroz went inside, Mr. Johnson walked toward the Family Dollar store

because he did not want to be seen on the surveillance camera. According to

[Petitioner], Mr. Johnson “popped up on the other side” from where

[Petitioner] was and “scoped out” Mr. Guidroz’s car. [Petitioner] testified that

he was the lookout while Mr. Johnson got inside the car.

According to [Petitioner], when Mr. Guidroz came out of the store, he

saw Mr. Johnson in Mr. Guidroz’s car. Mr. Guidroz began struggling with Mr.

Johnson. [Petitioner] ran up to Mr. Guidroz, grabbed him, and “slung him”

into the car. He believed that Mr. Guidroz fell to the ground after he hit the

car. [Petitioner] admitted pushing Mr. Guidroz hard. [Petitioner] testified that

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he was scared and that he got into the car and drove it to Mr. Johnson’s house

on Beauchamp. Mr. Johnson did not get into the car with him. When Mr.

Johnson came home, [Petitioner] left. [Petitioner] testified that he did not have

a gun at the time he took the victim’s car and that his intent was to steal the car

and sell its parts.

The next day, Mr. Johnson called [Petitioner] and met him at the

Somerset Apartments, where [Petitioner] was staying. The car was parked at

an apartment complex across the street from the Somerset Apartments.

[Petitioner] believed that Mr. Johnson was the person who moved the car to

that location. [Petitioner] stated that on August 3, 2005, he and Mr. Johnson

went back to Mr. Johnson’s house in the victim’s car and drove it into the

garage. When the police arrived, [Petitioner] ran because he was scared. He

claimed he did not know at the time that the victim had died. The following

day, [Petitioner] turned himself in and gave a statement to the police.

When cross-examined about his statement to the police, [Petitioner]

admitted that he told police he left Mr. Johnson standing outside the Family

Dollar store when he took the victim’s car. He admitted telling police that he

did not leave the victim’s car at Mr. Johnson’s house. He also admitted telling

police that he drove a number of friends around and that he let his friend,

Reggie, use the car. [Petitioner] stated that he initially lied about Mr.

Johnson’s involvement because he did not want to “snitch” on him.

[Petitioner] admitted that his version of the events did not match the security

video, which shows Mr. Johnson walking to the Family Dollar store before the

carjacking and walking back after the carjacking. He said that most of his

statement to police was true. As to any inconsistencies between his version of

events and the testimony from Taka Pruitt and Mr. McCracken, he claimed

both were lying. He maintained that he did not intend to hurt the victim.

The State presented medical evidence regarding Mr. Guidroz’s injuries.

Dr. Karen Chancellor, the Chief Medical Examiner in 2005 for Memphis and

Shelby County, Tennessee, performed Mr. Guidroz’s autopsy. As a result of

her internal and external examinations of Mr. Guidroz, Dr. Chancellor

concluded that the cause of Mr. Guidroz’s death was multiple blunt force

injuries sustained to the head and chest and that the manner of Mr. Guidroz’s

death was homicide.

Dr. Chancellor found an abrasion on the front of Mr. Guidroz’s face and

a laceration on the left side of his forehead. She also noted that “there [was]

ecchymosis or hemorrhag[ing] around both eyes, and that was caused by skull

fractures . . . found inside the body.” The injuries to Mr. Guidroz’s body

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included bruising on the ear, the right and left side of the chest, the upper left

arm, the neck and shoulder, the right ankle, the backs of both hands, both

forearms, and the lips. Dr. Chancellor opined that all the victim’s bruises were

caused at the same time and at the time of the incident at the Apple Market.

As to her internal examination of Mr. Guidroz, Dr. Chancellor noted

that “there was quite a bit of hemorrhage overlying the ribs on the left side”

and a complete fracture of the clavicle. Eleven ribs on Mr. Guidroz’s left side

were fractured, with resulting bruises on the surrounding lung tissue. Dr.

Chancellor remarked that Mr. Guidroz had extensive blunt force injuries to his

head, which included skull fractures, bruises to brain tissue, and hemorrhaging

around the brain. In addition, Mr. Guidroz suffered a subdural hematoma,

which required surgery to avoid severe brain injury. She opined that the skull

fractures were caused by at least three separate blows or impacts to the left side

of the head. Mr. Guidroz also suffered fractures to the orbital plates directly

above the eyes, which resulted in blood collecting around his eyes.

Dr. Chancellor was unaware that Mr. Guidroz had coagulopathy, a

condition making him prone to bleed, but she was aware that Mr. Guidroz had

severe coronary atherosclerosis, a blockage of the blood vessels of the heart.

No evidence of surgical intervention for these blockages was present. Dr.

Chancellor did not collect any of Mr. Guidroz’s fractured bones during the

autopsy. Dr. Chancellor stated that, although the practice of removing bones

during autopsy was once “in vogue,” the practice is no longer common. She

also did not conduct a bone density test on Mr. Guidroz because a bone density

test is not a routine part of an autopsy. Although she opined that Mr. Guidroz’s

injuries were consistent with being beaten, she was not able to determine the

order of his injuries or whether his injuries resulted from being struck by a hard

object, being forcibly thrust against a hard object, or a combination of these

two actions. She did not believe, however, that a fall alone would have caused

all of his injuries.

The defense introduced testimony from Dr. O.C. Smith, former Chief

Medical Examiner for Shelby County, Tennessee. Dr. Smith reviewed the

medical examiner’s files and Mr. Guidroz’s medical records in July 2007. Dr.

Smith noted several deficiencies in the autopsy record. He commented on the

absence of X-rays taken as part of the autopsy procedure and the absence of

bones for review. Dr. Smith testified that bones can be excised, cleaned, and

retained in inventory, or can be preserved with photographs or X-rays. Dr.

Smith testified that when he was the medical examiner, the lab was able to test

for bone density either by X-ray or by excising the bone and examining it. He

opined that loss of bone density due to age or osteoporosis could have made

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Mr. Guidroz’s bones more vulnerable to trauma. Dr. Smith’s routine practice

when he was medical examiner was to excise every fractured bone in a

homicide or suspected homicide. He also commented that he was unable to

examine Mr. Guidroz’s brain specimen because the preserving fluid had been

allowed to dry out.

Dr. Smith testified that Mr. Guidroz’s medical records indicated he

suffered from coagulopathy, which made him prone to bleed. Mr. Guidroz lost

1.5 liters of blood during his brain surgery, which required a transfusion of

blood, fresh frozen plasma, and platelets. Dr. Smith opined that the

coagulopathy, together with the blockages in Mr. Guidroz’s heart, made him

particularly vulnerable to injury. The coagulopathy also would have caused

“seepage” of blood during surgical procedures, which would have made Mr.

Guidroz’s injuries look worse than they actually were. The ecchymosis, or

hemorrhaging or bleeding under the skin, on various parts of Mr. Guidroz’s

body also could have been exacerbated by the coagulopathy. Dr. Smith

discussed a condition known as “senile ecchymosis” that occurs as part of the

aging process and opined that some of Mr. Guidroz’s ecchymosis might be

attributable to his age. He explained that with such a condition, even minor

trauma can cause bruising with superficial bleeding on the skin’s surface. He

conceded that the ecchymosis could be from the original injuries but thought

that it was probably a combination of surgery and original injury. Dr. Smith

agreed that blood beneath the skin on the left side of Mr. Guidroz’s neck likely

resulted from the fracture and dislocation of the clavicle and fractures of the

adjacent ribs, not from surgery.

Dr. Smith found evidence of a “contre-coup” or “decelerating” brain

injury and distinguished between accelerative trauma and contre-coup trauma.

Accelerative trauma occurs when a moving object strikes a fixed head and

leaves a bruise on the skin and causes damage in the area of the brain

immediately beneath the blow. A contre-coup injury, however, is decelerative

trauma caused when a moving head hits a fixed object. Injury to the skin

occurs at the point of impact, but the injury to the brain occurs on the opposite

side of the head. Dr. Smith testified that, although the fractures of Mr.

Guidroz’s skull were on the left side of his head, he suffered a contre-coup

injury to the right side of his brain, indicating that his injuries occurred in a

fall.

Dr. Smith noted that the fractures to the clavicle, ribs, and head were all

on Mr. Guidroz’s left side and opined that the cause of death was “a fall to a

flat surface or some contact where the body is in motion, and then it’s been

arrested by a hard, unyielding surface.” Dr. Smith opined that the fall could

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have been from a standing height, from running and falling, from falling from

a height, or from being propelled, depending on the strength of Mr. Guidroz’s

bones and the force that caused the fall. He ruled out the possibility that blows

or strikes to Mr. Guidroz’s body were the sole cause of his injuries.

Dr. Smith agreed with Dr. Chancellor that the manner of Mr. Guidroz’s

death was homicide and the cause of Mr. Guidroz’s death was blunt force

injury to his head and chest. He also agreed that Mr. Guidroz’s injuries were

consistent with a scenario of

being pushed in on the left-hand side of his car—something was

going [on] in that front seat of the car to the point that an eye

witness saw Mr. Guidroz’s feet dangling . . . out of the driver’s

side door with the [d]efendant on top of him, and then the next

thing that an eye witness sees is this [d]efendant pick up the body

of Mr. Guidroz and sling him out of [the] car onto the concrete.

Dr. Bruce Levy, then Chief Medical Examiner for the State of

Tennessee and the Medical Examiner for Davidson County, testified for the

State in rebuttal. Although Dr. Smith’s routine practice during his tenure was

to remove bones from the body and store them, Dr. Levy testified that this

practice was unique to Memphis and uncommon. In Dr. Levy’s opinion, Dr.

Chancellor, who actually performed the autopsy, was in the best position to

render opinions as to what she saw and to interpret her observations. In his

view, she followed the standard practice of documenting the autopsy by

photographs, diagrams, and narratives describing what she saw.

Dr. Levy stated that Mr. Guidroz suffered blunt force trauma injuries.

He opined that the victim’s skull fractures, which were indicative of at least

two separate blows, combined with the fractures to the ribs and clavicle, led to

a “differential diagnosis.” In other words, there could be different causes for

the injuries: either a fall from some height, a car collision, or an accelerated

fall in which the victim was thrown to the ground with some force. Dr. Levy

opined that breaking eight or nine ribs was not consistent with a simple fall to

the ground, but might be consistent with an accelerated fall. Likewise, the

multiple injuries to the chest, arms, face, and head were inconsistent with a

simple fall.

He testified that when faced with a differential diagnosis, a medical

examiner will rely on the history of the case. In this case, the anecdotal reports

that Mr. Guidroz was assaulted in a carjacking and thrown to the ground were

factors in determining the cause of his injuries. Dr. Levy testified that “body-

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slamming” can cause multiple fractures like the ones observed in Mr. Guidroz.

The presence of complex skull fractures was indicative of a significant amount

of force, “much greater than you could possibly get from simply falling to the

ground and striking your head on a flat surface.”

Based on the evidence, the jury convicted [Petitioner] of first degree

felony murder in the perpetration of a robbery. The jury also convicted

[Petitioner] of second degree murder as a lesser-included offense of the

charged first degree premeditated murder. The trial court merged the two

convictions and proceeded to the penalty phase.

B. Evidence at Penalty Phase

Marie Leech[, wife of Thomas Leech,] was a close family friend of Mr.

Guidroz. She testified that she met Mr. Guidroz at St. Paul the Apostle

Catholic Church and had known him for more than twenty-five years. On

Sundays after church, Mr. Guidroz usually had dinner at Ms. Leech’s home.

Mr. Guidroz was the godfather of Ms. Leech’s middle child and particularly

close to that child. Ms. Leech explained that Mr. Guidroz had a very active

life. He attended Mass daily at different churches throughout Memphis and

went to St. Peter Villa, an assisted living facility, three days a week to visit and

care for residents there. Ms. Leech testified that Mr. Guidroz was fondly

regarded in the Oakhaven neighborhood where he had lived for more than forty

years.

The State introduced [Petitioner]’s indictments and judgments of

conviction from five prior offenses through Shelby County Criminal Court

Deputy Clerk, Alice Robinson. Those offenses were robbery and an attempted

robbery committed on November 26, 2002, and three aggravated robberies

committed on November 4, 1996.

In mitigation, [Petitioner] presented the testimony of Dr. Rebecca

Rutledge, a clinical psychologist, who assessed him in November 1996 at the

request of the Memphis and Shelby County Juvenile Court. [Petitioner] was

sixteen years old at that time. As part of her assessment, Dr. Rutledge

administered to [Petitioner] the Slosson Intelligence Test, a Bender Visual

Motor Gestalt Test, and a Rorschach Psycho-diagnostic Technique Test.

[Petitioner]’s score on the Slosson test was sixty-six, which is in the upper

mildly mentally retarded range. Dr. Rutledge stated that someone who is

mildly mentally retarded would tend to be impulsive and would not likely

consider the consequences of his actions. She noted that at the time of the

assessment, which lasted about forty-five minutes to one hour, [Petitioner] did

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not appear to be taking the process seriously. She stated that [Petitioner]’s test

results may have been slightly lower than his actual level of cognitive

functioning. She opined, however, that had he put forth more effort he would

have continued to test in the mildly mentally retarded range. She did not have

access to [Petitioner]’s academic records at the time of the evaluation and knew

only that he had repeated the first grade. She also commented that mild mental

retardation is difficult to recognize because the person may appear “normal”

until he is engaged in conversation. The level of functioning of a person who

is mildly mentally retarded can improve with training, family support, job

support, and various community resources.

Prior to her testimony, Dr. Rutledge reviewed a report from the Middle

Tennessee Mental Health Institute (“MTMHI”) resulting from a September

2006 evaluation of [Petitioner]. She noted that the MTMHI staff’s diagnosis

of [Petitioner] as mildly mentally retarded was consistent with her 1996

diagnosis.

On cross-examination, Dr. Rutledge conceded that she did not have any

particular memory of [Petitioner]. At the time of the 1996 screening, she did

not find that he suffered from any mental illness that would have prevented his

transfer to adult court, nor did she find any disorders when she administered

the Rorschach and the Bender Gestalt tests. Dr. Rutledge testified that the

juvenile court asked her to administer the Slosson test. She explained that the

Slosson test was designed to provide an estimate of general verbal cognitive

ability in a short time frame. She acknowledged that the Slosson test, unlike

other tests, did not have built-in standards for determining malingering. Dr.

Rutledge testified that the Wechsler Adult Intelligence Screening (“WAIS”)

test is the “gold standard” for functional intelligence quotient (“I.Q.”) testing

and is better at discerning specific areas of impairment. She opined, however,

that [Petitioner] “would have fallen pretty close to [his score on the Slosson

test]” if he had been given the WAIS test in 1996.

Dr. Rutledge was aware of the staff observations in the MTMHI

evaluation that [Petitioner] was exaggerating his mental illness symptoms.

MTMHI had also noted [Petitioner]’s self-reported paranoid schizophrenia,

although there was no record of his having received treatment for the disorder.

Dr. Rutledge conceded that [Petitioner] could have deliberately

underperformed on the 1996 Slosson test to avoid being transferred to adult

court. She also conceded that [Petitioner] had many reasons to underperform

during his 2006 assessment at MTMHI because of his pending capital murder

charges.

- 13 -

[Petitioner]’s mother, Vivian Pruitt, testified that if [Petitioner] were to

receive a death sentence, it “would just kill [her] too.” She recounted that

[Petitioner] was the youngest of five children she had by three different men.

[Petitioner]’s father was about sixteen years younger than Ms. Pruitt, and

[Petitioner] never had a relationship with him. When she was pregnant with

[Petitioner], Ms. Pruitt smoked, but she did not recall drinking. When

[Petitioner] was born, she was married to Walter Lee Pruitt. Although the two

have since divorced, [Petitioner] thought of Walter Lee Pruitt as his father and

was close to him.

Vivian Pruitt detailed a family history of mental health issues. She had

previously been hospitalized at Memphis Mental Health Institute three times

due to addiction problems, but had been sober for fifteen to twenty-five years

at the time of trial. During her period of addiction, she was arrested numerous

times, usually for minor offenses like public intoxication, and was frequently

in and out of prison. On one occasion she was arrested for aggravated assault

when she shot [Petitioner]’s father. When Ms. Pruitt was in prison, [Petitioner]

stayed with his grandmother, Frankie Timberlake.

According to Ms. Pruitt, Ms. Timberlake, who helped raise [Petitioner],

spent time in and out of mental institutions. Several of Ms. Timberlake’s

siblings (Vivian Pruitt’s aunts and uncles) had mental health problems as well.

One of Ms. Timberlake’s siblings died from a drug overdose and another

committed suicide. One of [Petitioner]’s sisters, Tapika Pruitt, had attempted

suicide several times. Vivian Pruitt considered [Petitioner] a normal child with

good test scores, and she never sought any type of treatment for him. He did

not seem “slow” to her, but she believed he was in resource class in fifth and

sixth grade.

Vivian Pruitt testified that [Petitioner]’s first arrest was at age thirteen

or fourteen and that he had experienced “problems” since that time. After

[Petitioner] was released from juvenile court, he was arrested for several other

offenses, including stealing shoes and writing graffiti on the school walls. He

was in and out of juvenile court and was sent at various times to different

juvenile facilities. He escaped from the Memphis Boys Group Home after he

was charged with the three aggravated robbery offenses in 1996. Ms. Pruitt

testified that [Petitioner] eventually quit school “because they had him in

juvenile.”

Ms. Pruitt said that [Petitioner] was living with his aunt, Alma Rockett,

on the day of the carjacking and was scheduled to work at Patterson

Warehouse. She indicated that [Petitioner] had moved in with Ms. Rockett

- 14 -

after he and his sister, Quiana Pruitt, with whom he had been living, had a

dispute about [Petitioner]’s discipline of Quiana’s son. Vivian Pruitt believed

[Petitioner] was experiencing stress over the fight with his sister and his

housing situation at the time of the offense.

Quiana Pruitt testified that if her brother were sentenced to death and

executed it would “really hurt [her].” She and [Petitioner] have the same

father, who was not involved in their lives, and she considered Walter Pruitt

her father. She recounted that she and [Petitioner] had a difficult upbringing.

Their grandmother, Ms. Timberlake, was their primary caretaker because their

mother was frequently in prison. Their aunt, Alma Rockett, told them their

mother was “on drugs, didn’t want [them], [and] neglected [them].” Quiana

Pruitt also recounted the family history of mental health problems. Her mother

and extended family on her mother’s side – including an uncle and two aunts

– suffered from paranoid schizophrenia. Their sister, Tapika, had mental

health and drug problems. Ms. Timberlake had Alzheimer’s disease and was

hospitalized in a mental institution in 2000.

Quiana Pruitt did not consider her brother “slow” when he was growing

up. She recalled that [Petitioner] began getting into trouble at the age of

thirteen or fourteen and was in and out of “juvenile.” He eventually dropped

out of school in the seventh grade. [Petitioner] moved in with Quiana Pruitt

and their mother following his release from prison after serving his sentence

for the 1996 aggravated robbery convictions. [Petitioner] left their home after

attempting to discipline Quiana Pruitt’s son and went to live with his aunt,

Alma Rockett.

In rebuttal, the State presented Sandra Atkinson, the records supervisor

for Memphis City Schools. Ms. Atkinson reported that [Petitioner] was

enrolled in the first grade at Carnes Elementary School in September 1987.

Although his grades and conduct were average in the first grade, he was

retained and repeated the first grade. During April of his second year in the

first grade, he transferred to Larose Elementary School, where he remained for

the rest of his elementary school years. [Petitioner] received mostly As and Bs

for grades, and Es and Ss for conduct. His Tennessee Comprehensive

Assessment Program (“TCAP”) scores varied somewhat from year to year but

at times were exceptional. He scored in the ninety-eighth percentile overall

during his fifth-grade year and in the ninety-fifth percentile overall during his

sixth-grade year.

[Petitioner]’s academic performance declined dramatically during his

seventh-grade year. He enrolled at Vance Middle School in the Fall of 1994

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and attended until December, when he transferred to Colonial Middle School

for one week, then returned to Vance Middle School until May 5, 1995, after

which he withdrew. Ms. Atkinson testified that [Petitioner] was frequently

absent in the seventh grade. No grades were available because he did not

complete his seventh-grade year. Although [Petitioner] took some of the

TCAP tests, he apparently missed some of the testing days because he had no

scores for reading or spelling. [Petitioner]’s remaining scores were poor,

ranging from a low in the eighth percentile for science to a high in the forty-

second percentile for study skills.

Although [Petitioner] did not complete the seventh grade, he was

nevertheless promoted to the eighth grade. During his eighth-grade year in

1995, however, he did not attend school until November 2, 1995, and he

stopped attending after January 30, 1996. His grades were dramatically lower

his eighth-grade year, reflecting all Fs for the semester. His records were

transferred to an alternative school on April 26, 1996. Ms. Atkinson testified

that the transfer to an alternative school could have been for non-attendance or

behavior issues, but the records did not reflect the reason. Nothing in

[Petitioner]’s records indicates that he was ever in a resource class.

In surrebuttal, the defense recalled Vivian Pruitt to explain the dramatic

decline in [Petitioner]’s academic performance following elementary school.

She testified that [Petitioner] fell in the fifth grade and struck his head. She

stated that he had persistent headaches following that injury, but that she

“didn’t think it was that serious.” When he was in the seventh grade, four of

[Petitioner]’s friends were killed in a particularly gruesome car wreck.

[Petitioner] went to the scene and observed their injuries. [Petitioner]’s

behavior declined after witnessing the accident. [Petitioner] also had a brother

who died from AIDS during this period. Ms. Pruitt testified that she did not

believe [Petitioner] knew right from wrong or that he meant to kill Mr.

Guidroz.

Prior to the jury charge in the penalty phase and before closing

arguments, [Petitioner] made an oral motion challenging the appropriateness

of the death penalty in his case pursuant to Tennessee Code Annotated section

39-13-203 because he had a functional I.Q. “below seventy” and deficits in

adaptive behavior. The trial court denied the motion, noting that neither the

court nor the State had been provided notice that a motion pursuant to

Tennessee Code Annotated section 39-13-203 would be made. The trial court

commented that the motion should have been filed prior to trial and stated that

the timing of the motion was improper.

- 16 -

The jury found that the State had proven beyond a reasonable doubt the

aggravating circumstances that: (1) [Petitioner] was previously convicted of

one or more felonies, other than the present charge, whose statutory elements

involve the use of violence to the person; (2) the murder was knowingly

committed, solicited, directed, or aided by the [Petitioner], while [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 a

robbery; and (3) the victim was seventy years of age or older at the time of the

murder. See Tenn. Code Ann. § 39-13-204(i)(2), (7), (14) (2010). The jury

further found that the State had proven beyond a reasonable doubt that the

statutory aggravating circumstances outweighed any mitigating circumstances

and sentenced [Petitioner] to death.

C. Evidence at the Hearing on the Motion for New Trial

After the jury returned a sentence of death, [Petitioner] filed a motion

for new trial, in which he challenged, among other things, the trial court’s

refusal to consider his oral motion to disallow the consideration of the death

penalty due to intellectual disability. At a hearing, trial counsel testified that

he had given the State a “Notice of Intent to Present Expert Testimony

Regarding Mental Condition” on February 5, 2008, but failed to formally file

this motion with the trial court clerk until March 10, 2008, after the trial had

ended. He argued that this motion, together with the proof at trial of

[Petitioner]’s diagnosis of “mild mental retardation” gave the State sufficient

notice that he was challenging the applicability of the death penalty.

The trial court held a hearing on December 12, 2008, and January 16,

2009, on the issue of [Petitioner]’s eligibility for the death penalty. The

defense initially rested on the proof presented at trial by Dr. Rutledge. The

State introduced testimony from Dr. Sam Craddock, a clinical psychologist at

MTMHI, who testified that he evaluated [Petitioner] from August 31 to

September 27, 2006, at MTMHI. During this evaluation, MTMHI staff

observed [Petitioner] “around the clock.” Dr. Craddock administered I.Q.

tests, aptitude tests, and a personality test. In addition to interviewing

[Petitioner]’s mother, Dr. Craddock also examined law enforcement files in

the case, certain court documents filed in the case, and a forensic evaluation

conducted by the Midtown Mental Health Center.

Dr. Craddock identified a staff conference report from MTMHI dated

September 22, 2006. Noted on the report was an Axis I diagnosis of

“schizophrenia, differentiated type,” and an Axis II diagnosis of “mild mental

retardation.” Dr. Craddock testified that the latter diagnosis was recorded in

- 17 -

error and should have read “borderline intellectual functioning.” Other notes

throughout the file, including the discharge summary, recorded the Axis II

diagnosis as borderline intellectual functioning, not mental retardation. Dr.

Craddock could not explain why he had made the transcription error. After

reviewing [Petitioner]’s records, Dr. Craddock prepared an addendum to the

report stating that the “mild mental retardation” note was made in error.

Dr. Craddock testified that there are three requirements for a diagnosis

of mental retardation: subaverage intellectual functioning demonstrated by an

I.Q. below seventy, impairments in the subject’s adaptive functioning, and a

diagnosis before the age of eighteen. [Petitioner]’s I.Q. score was sixty-eight

on the test Dr. Craddock administered at MTMHI. Dr. Craddock

acknowledged that his report indicated [Petitioner] appeared to be making a

good effort on the test “[w]ith the exception of him occasionally giving quick

responses with accompanying little thought.” Dr. Craddock therefore believed

that [Petitioner]’s I.Q. was actually higher than his scores reflected.

Other factors led Dr. Craddock to conclude that [Petitioner]’s score was

not indicative of mental retardation. For instance, at the age of eighteen,

[Petitioner] had received a score of eighty-one on a Beta test administered

through the Department of Correction. At that time, [Petitioner] indicated an

interest in earning his Graduate Equivalency Degree and learning about small

engine repair. The Beta test score indicated that [Petitioner] was reading at an

eighth-grade level, spelling at a high school level, and understanding math at

a fifth-grade level. Furthermore, [Petitioner]’s school records indicated he had

performed well both academically and on his TCAP tests until the sixth grade.

School records did not indicate that [Petitioner] was ever in special education

classes, which Dr. Craddock would have expected if [Petitioner] was mentally

retarded.

Dr. Craddock also did not see any deficits in [Petitioner]’s adaptive

behavior. [Petitioner] had stated to Dr. Craddock that one of his interests was

playing chess, which Dr. Craddock noted is inconsistent with someone who is

mentally retarded. Also, Dr. Craddock “question[ed] the scores because

mentally retarded individuals . . . typically score high on performance and low

on verbal.” [Petitioner]’s scores revealed just the opposite. Dr. Craddock

stated that

[w]hen you score low on performance, there is an implication

there that you may not be making your best effort. So, if you

look in the textbooks, time after time, mentally retarded people,

they have poor[er] verbal, math skills, and so forth than they do

- 18 -

manipulation skills, visual skills, but that was not the case with

[Petitioner].

In rebuttal, [Petitioner] presented the testimony of Dr. Rutledge. She

had compared the results of the test that she administered to [Petitioner] with

the results of the test administered by Dr. Craddock. She stated that both tests

indicated [Petitioner] had an I.Q. of approximately sixty-eight. Dr. Rutledge’s

memory of [Petitioner]’s adaptive skills was that he had fifth-grade reading

skills, third-grade math skills, was unable to live independently, and was

unable to remain gainfully employed. She admitted that she last saw

[Petitioner] twelve years earlier, when he was sixteen years old and spent, at

most, an hour with him. She also admitted that at the time she thought his

scores might not accurately reflect his actual ability. She did not have his

school records and was unaware that at one point he scored in the ninety-eighth

percentile on his TCAP tests.

On May 22, 2009, the trial court entered an order denying [Petitioner]’s

motion for new trial and found that [Petitioner] had failed to prove by a

preponderance of the evidence that he was intellectually disabled and thus

ineligible for the death penalty under Tennessee Code Annotated section 39-

13-203. The trial court found that [Petitioner] had failed to prove by a

preponderance of the evidence that he had significantly subaverage intellectual

functioning as evidenced by an I.Q. of seventy or below. The court found that

neither the test score in 1996 nor the test score in 2006 was the product of

[Petitioner]’s best efforts and that his grades in school and TCAP scores

indicated that the 1996 and 2006 test scores were unreliable. The trial court

also determined that [Petitioner] failed to prove by a preponderance of the

evidence that he suffered deficits in his adaptive behavior. The trial court

based this finding on [Petitioner]’s excellent performance in school through

the sixth grade and testimony from his mother that he seemed like a “normal”

child. The trial court also noted Dr. Craddock’s testimony that he did not see

any deficits in [Petitioner]’s adaptive behavior. The trial court found that the

drop in [Petitioner]’s grades and test scores after the sixth grade appeared to

result from traumatic events in his life, drug use, incarceration, and absence

from school.

Id. at 187-200 (footnotes omitted).

On the issue of intellectual disability, the Tennessee Supreme Court noted that the

“review of [Petitioner]’s intellectual disability claim has been made more difficult by

[Petitioner]’s timing in raising the issue at trial” and that the “best practice” would have

been “to raise the issue in a pretrial setting to ensure that both the State and the defendant

- 19 -

are provided a full and fair opportunity to collect, exchange, and present the requisite

proof.” Id. at 201. However, the supreme court reviewed the evidence in the record “to

determine if [Petitioner] has an intellectual disability that precludes imposition of the death

penalty.” Id.; see T.C.A. § 39-13-203(b) (2010). The supreme court held that the evidence

preponderated against the trial court’s finding that Petitioner’s I.Q. scores were

“unreliable” because “neither expert opined that [Petitioner]’s I.Q. was greater than 70,

whether through lack of effort or on some other basis for adjustment of the raw score.”

Pruitt, 415 S.W.3d at 203. Therefore, the supreme court concluded that Petitioner had met

his burden of proving by a preponderance of the evidence that he had significantly

subaverage general intellectual functioning as evidenced by a functional I.Q. of 70 or

below. Id.; see T.C.A. § 39-13-203(a)(1) (2010).2 However, the supreme court noted that

“little evidence was presented” regarding whether Petitioner had any deficits in adaptive

behavior and whether his intellectual disability manifested before the age of eighteen.

Pruitt, 415 S.W.3d at 204; see T.C.A. §§ 39-13-203(a)(2), (3) (2010). Accordingly, the

supreme court affirmed the trial court’s finding that Petitioner failed to establish that he

had an intellectual disability that rendered him ineligible for the death penalty. Pruitt, 415

S.W.3d at 204.

The Tennessee Supreme Court was split on the issue of the comparative

proportionality of the death penalty in this case. See T.C.A. 39-13-206(c)(1)(D). The

majority opinion reaffirmed the analysis set out in State v. Bland, 958 S.W.2d 651 (Tenn.

1997), which compared the case at bar to other first degree murder cases in which a capital

sentencing hearing had been conducted. Pruitt, 415 S.W.3d at 213-17. Upon conducting

a comparative proportionality review with such cases, the majority determined that

Petitioner’s death sentence was not disproportionate. Id. at 217-223. Two Justices

concurred with the majority’s decision to affirm Petitioner’s conviction but dissented with

respect to both the appropriate pool of comparison cases as well as to the proportionality

of the death penalty in this case. Id. at 223 (Koch and Lee, JJ. concurring in part and

dissenting in part). The dissenting Justices staunchly disagreed with the Bland analysis

and argued that the pool of comparison cases should include all cases that resulted in a

conviction for first degree murder. Id. at 225-232. The dissenting Justices, comparing

Petitioner’s case both to cases in which the death penalty was sought and cases in which it

was not, concluded that Petitioner’s offense was “much more similar to crimes that did not

result in the death penalty than to crimes that did.” Id. at 232-237.

II. Post-Conviction Proceedings

2

Tennessee Code Annotated section 39-13-203(a)(1) was amended effective May 11, 2021,

removing the language “as evidenced by a functional intelligence quotient (I.Q.) of seventy (70) or below.”

See 2021 Tenn. Pub. Acts, ch. 399, § 1. The amendment of this subsection, and the addition of subsection

(g), does not affect our opinion in this case.

- 20 -

Petitioner subsequently filed a timely petition for post-conviction relief. Post-

conviction counsel was appointed, and an amended petition was filed raising numerous

claims related to ineffective assistance of counsel, prosecutorial misconduct, intellectual

disability, and the constitutionality of the death penalty. Petitioner filed a motion seeking

the recusal of the post-conviction judge, the denial of which was affirmed by this court in

an accelerated interlocutory appeal pursuant to Tennessee Supreme Court Rule 10B, § 2.

See Corinio Allen Pruitt v. State, No. W2017-00960-CCA-T10B-CO (Tenn. Crim. App.,

at Jackson, July 31, 2017) (order), perm. app. denied (Tenn. Oct. 17, 2017). The

evidentiary hearing in this case was conducted over multiple days between April and

August 2018, during which the following testimony was presented.

A. The Prosecutors and General Weirich’s Family

Assistant District Attorney Carolyn Alanda Dwyer testified that she was the lead

prosecutor in the Special Prosecution Unit. Ms. Dwyer explained that Petitioner’s case

qualified for the Special Prosecution Unit because of his prior record. Ms. Dwyer testified

that she was involved in Petitioner’s case since it was indicted, although she did not recall

handling Petitioner’s preliminary hearing. She testified that the usual practice in Shelby

County was for the prosecutor handling the case to determine the charges to be presented

to the grand jury, so it would have been her decision to charge Petitioner with both felony

murder and premeditated murder. Before filing a notice of intent to seek the death penalty,

Ms. Dwyer reviewed the facts of the case and the applicable aggravating factors with then-

District Attorney General William L. Gibbons and received his approval to file the notice.

Ms. Dwyer testified that there was no formal process for the defense to present mitigating

evidence at the time the charging decision or the decision to seek the death penalty is made

and that she had no information regarding Petitioner’s mental health or I.Q. at that time.

Ms. Dwyer did not recall signing an agreed order to have Petitioner evaluated at

MTMHI because the doctor at Midtown Mental Health Center had concerns about his

competency, but she explained that such an order was a “form order that we enter on most

homicide cases.” Ms. Dwyer acknowledged that she received notice of the defense team’s

intent to present expert testimony regarding Petitioner’s mental condition through Dr.

Rutledge, but she did not recall when she received such notice. She agreed that there was

a note in her file to obtain Petitioner’s mental health records in order to rebut such

testimony and that she subpoenaed records from TDOC in February of 2008. Ms. Dwyer

agreed that her file contained “form responses” to defense motions requesting individual

voir dire and jury questionnaires that she printed but never filed because the defense never

filed such motions in this case. She explained that individual voir dire was not a common

practice in Shelby County at the time, though it was more common at the time of the post-

conviction hearing.

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Ms. Dwyer testified that then-Assistant District Attorney Amy Weirich3 became

involved in the case just a week or two before trial. Ms. Dwyer testified that another

prosecutor had recently left the office so she asked Gen. Weirch to help her pick the jury.

Ms. Dwyer testified that “it had been awhile since I had done a death penalty case” and

that she relied on Gen. Weirich’s experience. Ms. Dwyer denied that she had ever seen a

“Voir Dire Manual” that was supposedly used by the District Attorney’s Office as a

training tool. She disagreed with some of the manual’s suggestions that the goal of voir

dire is to establish the credibility of the prosecutor and “to get [the jury] on the side of the

State,” explaining that “the most important thing is the jury understand their duty and

they’re to follow the law.”

Katherine4 Alfonso Weirich, the mother-in-law of Gen. Weirich, testified that she

was employed at St. Paul Catholic Church as an administrative assistant and choir director.

Mrs. Weirich knew the victim in this case because he sang in the choir that usually

performed at funerals. She testified that the victim was a “very private person. He was in

my choir, but I can’t say that I knew him other than he was always there to come and sing.”

She testified that she did not socialize with the victim, though she was friends with Marie

and Thomas Leech, who both testified for the State at trial. Because of her employment at

the church, Mrs. Weirich received a call that the victim had been “carjacked and beat up,”

so she went to the hospital. After the victim passed away, Mrs. Weirich assisted with his

funeral arrangements, “pretty much [taking] care of . . . the planning, the reading, the songs

and all that.” She also directed the choir that sang at the victim’s funeral, which was not

unusual given her role at the church. Mrs. Weirich attended Petitioner’s trial as a

representative of the church, and she knew that her daughter-in-law was one of the

prosecutors. Mrs. Weirich did not have any discussions with the prosecution regarding the

potential outcome of the sentencing phase. Mrs. Weirich had attended other trials as an

observer, including at least two murder trials prosecuted by Gen. Weirich.

Charles Weirich, Gen. Weirich’s husband, testified that he is an attorney in the

Memphis area. Mr. Weirich and his family attended St. Paul Catholic Church until they

moved to East Memphis. At that point, Mr. Weirich continued to attend St. Paul as a lector

while his family attended a different church. Mr. Weirich would advertise his services as

an attorney at St. Paul. In 2002, Mr. Weirich was contacted by the victim, whom he

recognized from the church, about drafting a will. At the time, the law required an executor

to live in Tennessee, so Mr. Weirich agreed to be co-executor of the victim’s will with

Thomas Leech, who lived out of state. After the victim’s death, Mr. Weirich filed a petition

3

In January of 2011, after Petitioner’s trial but before the post-conviction hearing, Amy Weirich

became the District Attorney General of Shelby County. Accordingly, we will refer to her throughout the

opinion as Gen. Weirich, particularly as it distinguishes her from other witnesses who share her last name.

4

Petitioner’s brief indicates that this witness’s name may actually be spelled “Catherine.” This

opinion will utilize the spelling used in the transcript and the post-conviction court’s order. No disrespect

is intended if this is an incorrect spelling.

- 22 -

to probate the estate in his role as an attorney. He attempted to renounce his role as a co-

executor, but the probate judge wanted either an in-state executor who was subject to the

contempt power of the court or for Mr. Leech to post a bond. Mr. Weirich agreed to stay

on as co-executor, and he was eventually paid $5,000 “for fees and expenses related to the

administration of the estate.” The estate was closed in September of 2007, several months

before Petitioner’s trial. Mr. Weirich testified that the outcome of the criminal prosecution

in this case had no bearing on the probate proceedings.

District Attorney General Amy P. Weirich testified that in 2008, she was the head

of the Gang and Narcotics Prosecution Unit for the Shelby County District Attorney’s

Office. She became involved in Petitioner’s trial when Ms. Dwyer asked her to assist with

the case the week before trial. Because of other cases she was trying, Gen. Weirich did not

read through the file until the weekend prior to the start of trial. Gen. Weirich testified that

she was aware that the defense team would present evidence that Petitioner was

intellectually disabled but that she was not involved in any pretrial discussions of the

matter. Gen. Weirich did not specifically recall that she was the “primary attorney handling

voir dire” or that voir dire was completed in a single day. Gen. Weirich testified that she

had seen the “Voir Dire Manual” as a reference available in the District Attorney’s Office

but that she had never been instructed by previous supervisors to study it or relied on it in

preparing for voir dire. Gen. Weirich testified that she had participated in capital cases

where individual voir dire was used but that it was not a common practice.

Gen. Weirich recalled that Thomas Leech testified as a witness during the guilt

phase of Petitioner’s trial and that his wife, Marie Leech, testified during the sentencing

phase. Gen. Weirich testified that she knew the Leeches prior to trial because they were

“good friends of my in-laws” as well as through attending St. Paul Catholic Church. Gen.

Weirich testified that she was not aware of the probate of the victim’s estate at the time of

trial. Gen. Weirich testified that she did not have an independent recollection of her

mother-in-law attending the trial but that it would not surprise her that Mrs. Weirich would

attend as a representative of the church and as support for the Leech family. Gen. Weirich

was unaware that Mrs. Weirich was involved in the victim’s funeral arrangements but

explained “that was one of her main responsibilities for members of the parish who died[.]”

Gen. Weirich testified that she did not attend the victim’s funeral.

B. Petitioner’s Defense Team

Lead counsel5 testified that when he first began representing Petitioner in 2005, he

was employed part-time in the Capital Case Unit of the Shelby County Public Defender’s

5

Petitioner was initially represented by two attorneys from the Shelby County Public Defender’s

Office. When one attorney left the Capital Case Unit, a new attorney joined the defense team. All three

attorneys testified at the post-conviction evidentiary hearing. For the sake of clarity, we will refer to the

trial attorneys together as “trial counsel” and individually as “former lead counsel,” “lead counsel,” and

- 23 -

Office while also maintaining a private practice consisting of both criminal and civil cases.

Throughout the three years leading up to Petitioner’s trial, lead counsel was also assigned

to approximately 38 other cases with the Capital Case Unit for varying lengths of time,

although not every case resulted in a capital trial. Lead counsel was originally assigned to

Petitioner’s case as co-counsel with another attorney in the Public Defender’s Office.

Former lead counsel was primarily in charge of case development while lead counsel

assisted “mostly under her direction.” When former lead counsel left the capital case unit

prior to Petitioner’s trial, lead counsel took over and new co-counsel joined the team. At

that point, the primary responsibility for case development shifted to lead counsel because

he had more experience handling capital cases. Petitioner’s defense team also consisted of

Ralph Nally as a fact investigator and Jeanette Stanback as a social investigator.

Lead counsel testified that he attended an initial intake interview of Petitioner on

August 26, 2005, along with other members of the defense team. Lead counsel testified

that he attended monthly case reviews with the entire Capital Case Unit where pending

cases “were discussed and strategized.” Lead counsel identified some formal, written

requests for Mr. Nally to investigate certain issues, and he testified that he also made casual,

verbal requests for investigation. The defense team was able to put together an arrest

history for Petitioner’s mother, Vivian Pruitt, going back to Petitioner’s birth, but lead

counsel acknowledged that he did not obtain records for any arrests during Vivian’s

pregnancy with Petitioner. One of the defense’s mitigation theories was “bad family

situation,” which lead counsel explained included “Vivian Pruitt’s history with respect to

arrests before and other behavior.” However, lead counsel agreed on cross-examination

that he made strategic choices based on how the jury may view the evidence and that he

did not think that Vivian’s arrests would be viewed as mitigating.

Lead counsel recalled that the trial court signed an agreed order in June 2006 for

Petitioner to be evaluated at Midtown Mental Health Institute to determine his competency

to stand trial and mental status at the time of the offense. In August 2006, clinical

psychologist Dr. John Whirley sent a letter to the trial court expressing concerns about

Petitioner’s competency to stand trial and recommending that Petitioner be transferred to

MTMHI for further evaluation. During the evaluation at MTMHI, Dr. Craddock

administered the Wechsler Adult Intelligence Scale 3 (WAIS-3) and determined that

Petitioner had a full-scale I.Q. score of 68. Lead counsel acknowledged that Dr. Craddock

did not administer any tests of adaptive functioning or have any adaptive rating scales from

family members. Lead counsel did not recall providing any information to MTMHI to

assist with an adaptive behavior assessment. However, Dr. Craddock’s psychological

evaluation report indicated that Petitioner was diagnosed with mild mental retardation in

addition to schizophrenia and substance abuse.

“co-counsel.” Petitioner was represented by a different attorney from the Public Defender’s Office on direct

appeal, but appellate counsel did not testify at the post-conviction hearing.

- 24 -

Lead counsel recalled that prior to the time he became lead counsel, the defense

team retained the services of clinical psychologist Dr. Fred Steinberg to evaluate Petitioner.

Case review memos from July and September 2007 listed Dr. Steinberg as a potential

defense expert and cited the discharge summary from MTMHI diagnosing Petitioner with

schizophrenia and “borderline” mental retardation as one of the working mitigation

theories. Lead counsel testified that he spoke to Dr. Steinberg many times, although he did

not recall meeting with him in person. Lead counsel testified, “my recollection was that

[Dr. Steinberg] was not - - his opinion would not help us in this case.”

In January 2008, lead counsel retained the services of Dr. Rutledge to testify during

the sentencing phase regarding her evaluation of Petitioner for Juvenile Court in 1996 and

her diagnosis of mild mental retardation. In preparing for the case, Dr. Rutledge primarily

reviewed her report and the records from MTMHI. After the trial court granted the ex parte

motion for expert services, lead counsel provided the State with a notice of intent to present

expert testimony regarding Petitioner’s mental condition at trial. Although the copy of the

notice in the Public Defender’s file had a handwritten notation that it was filed on February

5, 2008, a copy could not be found in the trial court clerk’s file. Lead counsel testified that

he intended the notice to be an attempt to communicate the defense’s position that

Petitioner was exempt from the death penalty due to intellectual disability. Lead counsel

did not have an independent recollection of the prosecutor indicating that the State might

seek an evaluation from its own expert. Lead counsel recalled moving for a directed verdict

on the death penalty on the basis that the State had not presented any evidence to contradict

Dr. Rutledge’s testimony during the sentencing phase. Lead counsel testified that one of

the reasons for this decision was the fact that the defense team could not afford to pay Dr.

Rutledge twice for her testimony. Additionally, the statute indicated that the issue could

be raised at trial and did not mandate that it be raised pretrial.6

Ultimately, the trial court denied the motion for a directed verdict because of the

lack of a pretrial motion. However, when ruling on the motion for new trial, the trial court

concluded that the timing of the motion was an issue of first impression and reserved ruling

on the intellectual disability issue. Lead counsel filed a formal written motion for a hearing

on July 17, 2008, and attached the reports from MTMHI and Dr. Rutledge, which were

consistent in diagnosing Petitioner with mild mental retardation. However, prior to the

hearing, lead counsel learned that Dr. Craddock had sent a letter to the prosecution stating

that he had erred in diagnosing Petitioner with mild mental retardation and changing his

diagnosis to borderline intellectual functioning. Lead counsel contacted Dr. Rutledge again

in August 2008 and requested the raw data from MTMHI for her to review. Dr. Rutledge

told lead counsel that she “did not see any reason to justify change of diagnosis.”

6

See T.C.A. § 39-13-203(e) (2003).

- 25 -

In an email from November 2008 discussing scheduling Dr. Rutledge’s rebuttal

testimony in this case, lead counsel asked if Dr. Rutledge would also be willing to be

involved in another case. In that email, lead counsel stated that he wanted to “consider

some measure of adaptive behavior” for the other defendant because that was “classically

the area in which we lose on [the intellectual disability] issue” and asked Dr. Rutledge if

there was “any test or scale which might facilitate our proof of such deficits.” Lead counsel

testified that adaptive functioning was an important area to explore in any case and that he

was aware of the Adaptive Behavior Assessment System (“ABAS”) test for adaptive

deficits. Additionally, Dr. Rutledge’s response to his email referred to the Vineland

Adaptive Behavior Scales when she offered to evaluate the other defendant. However,

lead counsel never asked Dr. Rutledge to perform any adaptive behavior assessments of

Petitioner, nor did she interview Petitioner or any of his family members. However, on

cross-examination, lead counsel agreed that a diagnosis of mild mental retardation required

a finding of adaptive deficits. Lead counsel agreed that he relied on the opinions of the

experts and did not tell them what tests they needed to do.

Lead counsel testified that he did not consider filing a motion challenging the State’s

dual charging of felony murder and premeditated murder. He testified that Ms. Dwyer was

the lead prosecutor throughout the case and that he did not recall the circumstances of Gen.

Weirich becoming involved in this case. Lead counsel stated that he “never heard anything

to th[e] effect” that Gen. Weirich knew the victim, and he did not recall Gen. Weirich

disclosing that her family was close to the victim’s family at any point during the trial.

Lead counsel testified that if he had known that Mr. Weirich was co-executor of the

victim’s estate, he would have addressed that issue during his cross-examination of Mr.

Leech. Lead counsel was not aware that Mrs. Weirich attended the trial or that she was

Gen. Weirich’s mother-in-law.

Lead counsel estimated that he met with Petitioner in person approximately 20 to

30 times prior to trial to discuss the facts of the case and Petitioner’s social history. Lead

counsel’s notes from a meeting on February 8, 2008, indicated that Petitioner was

depressed and had been prescribed Cogentin and Risperdal, which lead counsel believed

were both psychotropic drugs. Lead counsel could not recall what dosages Petitioner was

taking but testified that he had the jail medical records available. On cross-examination,

lead counsel agreed that the upcoming trial could have been a cause of Petitioner’s

depression. Lead counsel testified that he did not notice anything about Petitioner’s

demeanor, behavior, or ability to communicate that would have indicated that Petitioner

was impaired by the medication and that he would have addressed the matter with the court

if he had. On redirect examination, Lead counsel agreed that he did not consult with a

medical doctor regarding Petitioner’s medication.

Lead counsel testified that he participated in the ongoing process of investigating

mitigation evidence. He believed that he met with Petitioner’s family members in their

- 26 -

homes, though he admitted he could be confusing this case with another. Lead counsel did

not recall meeting with any of Petitioner’s teachers or any of his friends and former

neighbors from the Fowler Homes neighborhood. When presented with a photograph from

the Public Defender’s file labeled “Corinio Pruitt family,” lead counsel testified that he did

not recognize any of the children in the photo but that he had “no reason to doubt that that

is his family.” Lead counsel conceded that he requested a mitigation instruction regarding

Petitioner’s prenatal exposure to drugs and alcohol even though Vivian Pruitt denied

drinking while she was pregnant, and no other witnesses testified on the issue. Lead

counsel also requested a mitigation instruction that Petitioner experienced “significant

ad[a]ptive deficits,” even though including the term “significant” when it was not in the

statute “was probably a mistake.” Lead counsel also testified that he would generally agree

with the Tennessee Supreme Court’s opinion that “little evidence” of Petitioner’s deficits

in adaptive behavior was presented.7 Lead counsel agreed that in investigating adaptive

deficits and mitigating circumstances, “all the records that are available should be

obtained.” Lead counsel also agreed that it was important “to attempt to interview anyone

that would know anything about that issue,” including family, friends and neighbors “if we

were aware of [them].” On cross-examination, lead counsel agreed that it was possible for

the jury to determine that Vivian Pruitt was not being truthful when she denied drinking

while she was pregnant with Petitioner.

Lead counsel did not recall if there was a strategic decision not to file a motion

requesting individual voir dire but testified that such a motion was in the “standard motion

packet” created by a former supervisor of the Capital Case Unit, although “it was

commonly overruled.” Lead counsel testified that he was familiar with juror questionnaires

and had used them previously with this particular trial judge and in other capital cases, so

he “probably” made “a conscious strategic decision” not to use them in this case. Lead

counsel recalled that voir dire was conducted as a group in the courtroom and that more

than one juror responded that they had heard of the defense expert, Dr. Smith, and would

not credit his testimony. Lead counsel was aware that Dr. Smith had stepped down from

his position as Shelby County Medical Examiner after he was charged with possession of

explosives and lying to investigators, a case that ultimately ended in a mistrial. Lead

counsel had not seen an episode of the television show, 48 Hours, featuring Dr. Smith’s

story and discussing his “history of lying.” On cross-examination, lead counsel agreed that

Dr. Smith had been employed by defense attorneys on numerous occasions and that as a

former medical examiner, he was in a unique position to review and critique autopsy

procedures. Dr. Smith also testified about his practice of preserving bones during an

autopsy. On redirect-examination, lead counsel testified that he was not aware of the case

of State v. Jerry Ray Davidson where a pathologist from Arkansas provided similar

7

See Pruitt, 415 S.W.3d at 204.

- 27 -

testimony for the defense.8 Lead counsel testified that he would not be surprised if there

were other experts but that he had known Dr. Smith for several years, had seen him testify

before in other cases, and had a certain rapport with him despite his legal issues.

Lead counsel did not have an independent recollection of delivering the closing

argument in this case but recognized a document he created containing notes of topics that

he wanted to discuss. He acknowledged that the notes contained the statement, “What

happened here to Lawrence Guidroz? No one cared about him.” Lead counsel did not

recall reading an article in a local newspaper just after the murder describing the high

regard in which the victim’s neighbors held him. Lead counsel did not speak to anyone

from St. Paul Catholic Church before the trial, although he did meet Mr. Leech and other

parishioners outside of the courtroom during the trial. Lead counsel recalled that Mr. Leech

told him that “they were not out for blood.”

Lead counsel testified that he did not recall a plea offer but that the State would

usually approve a plea agreement if the victim’s family did not object. Lead counsel

testified that he discussed settling the case with Petitioner many times, but Petitioner

“would have no part of it.” Lead counsel explained to Petitioner the possible defenses and

the likelihood of conviction at trial. With regard to whether Petitioner understood the

charges against him, lead counsel testified, “I think he understood it but I don’t think he

accepted it” because “his position all along . . . was that at most he was guilty of

carjacking.” Lead counsel explained that Petitioner did not believe he was guilty of murder

because he did not intend to kill the victim, even though he had several lengthy

conversations with the defense team about the elements of felony murder. During one

interview with Petitioner in September 2005, which lead counsel recorded and transcribed,

Petitioner recited from memory the legal concept of criminal responsibility for felony

murder and asked why his “trial partner” was “out on the street.” During this interview,

Petitioner admitted that he knew Courtney Johnson intended to rob somebody, and

Petitioner also admitted that he grabbed the victim and threw him to the ground, causing

the victim to hit his head on the concrete. Lead counsel explained that even though

Petitioner could recite the elements of felony murder, “I don’t believe he ever accepted

felony murder” because he “had made his mind up that he wasn’t guilty of felony murder

and that’s what he wanted.” Lead counsel testified that his advice to Petitioner was not to

testify during the guilt phase but only during the sentencing phase. However, after a

Momon hearing,9 Petitioner decided that he wanted to testify during the guilt phase of the

trial, which lead counsel recalled was “definitely unhelpful.”

8

See State v. Jerry Ray Davidson, No. M1998-00105-CCA-R3-CD, 2002 WL 15381 (Tenn. Crim.

App., at Nashville, Jan. 7, 2002), aff’d, 121 S.W.3d 600 (Tenn. 2003).

9

See Momon v. State, 18 S.W.3d 152 (Tenn. 2000).

- 28 -

On cross-examination, lead counsel testified that the Public Defender’s file

contained copies of letters that Petitioner had sent to his mother, which included

instructions to call certain people along with phone numbers and directions on how to

access messages on an answering machine. Lead counsel agreed that the records from

MTMHI indicated that Petitioner began using marijuana at age fourteen, cocaine at age

sixteen, and methamphetamine and various pills at age twenty-two. Lead counsel agreed

that the Public Defender’s file also contained a psychological evaluation of Petitioner from

1998 in which he reported that he began selling drugs at the age of fourteen and that he

typically made a $350 weekly profit. A September 2006 discharge summary from MTMHI

indicated that Petitioner was diagnosed with schizophrenia, undifferentiated type; history

of cocaine and cannabis abuse; and borderline intellectual functioning. On redirect

examination, lead counsel read from a staff conference report from MTMHI that indicated

Petitioner’s “below average cognitive abilities” would limit his ability to assist in his

defense, though he did have “sufficient ability” to work with his attorneys, understand the

evidence, and weigh the merits of a plea offer.

Lead counsel identified a “social chronology” for Petitioner listing his juvenile and

adult arrests, psychological evaluations, periods of incarceration, and suicide attempts prior

to his arrest in this case. Lead counsel obtained the presentence reports from Petitioner’s

prior convictions, which indicated that Petitioner was in a gang. Lead counsel obtained

records from Petitioner’s employer at the time of the offense as well as Petitioner’s school

records. Lead counsel testified that he and former lead counsel presented Petitioner’s case

at a seminar put on by the National Association of Criminal Defense Lawyers where the

participants were able to consult with experienced attorneys and mitigation experts in order

to brainstorm ways to defend their cases. On redirect examination, lead counsel testified

that the seminar probably included presentations on Atkins v. Virginia and that he

purchased the AAMR manual around that time.

Co-counsel testified that he worked for the Public Defender’s Office and that he

joined the Capital Case Unit in 2007. He was assigned to Petitioner’s case as second chair

after former lead counsel left the Capital Case Unit and lead counsel became first chair.

Co-counsel agreed that his role was to assist lead counsel, who had the primary

responsibility to manage the defense team. Co-counsel testified that he participated in the

monthly case reviews with the rest of the capital defense team. On cross-examination, co-

counsel testified that this was his first capital trial. Co-counsel acknowledged that capital

defense is “constantly evolving” and that attorneys must “do the best we can at the time.”

Co-counsel first met with Petitioner in February 2007, and his notes from that

meeting indicated that Petitioner was taking Risperdal and Cogentin. Co-counsel believed

that Risperdal was “an anti-psychotic or something they prescribe for people with

schizophrenia” and that “Cogentin deals with the side effects of Risperdal.” Co-counsel

was not aware of the dosages Petitioner was receiving or why those drugs had been

- 29 -

prescribed. Co-counsel testified that the defense obtained Petitioner’s jail medical records

and that they discussed it with their experts. Co-counsel testified that he and lead counsel

discussed whether to inform the jury regarding Petitioner’s medication, but they considered

it to be “a double edge sword” because the jury might be more fearful of a defendant who

is psychotic. Co-counsel testified that Petitioner “didn’t appear crazy to me but I’m not a

doctor.” Co-counsel did not recall any discussion of retaining a psychiatrist or

neuropharmacologist. On cross-examination, co-counsel testified that he never had an

indication that Petitioner’s medication was interfering with his ability to communicate and

that he would have brought it to the attention of the trial court if he had.

When presented with a report from MTMHI that indicated that Petitioner’s “below

average cognitive abilities will limit the quality of what he contributes to his defense,” co-

counsel agreed that he experienced communication issues with Petitioner. Specifically,

co-counsel explained that he did not “know that we ever got through to him” that felony

murder was first degree murder and was death penalty eligible. On cross-examination, co-

counsel testified that Petitioner had the opportunity to plead guilty and receive a sentence

of either life or life without parole. Co-counsel agreed that he advised Petitioner with

regard to that offer and discussed possible defenses and the likelihood of conviction at trial,

but Petitioner chose not to plead guilty. Co-counsel testified he discussed the concept of

felony murder and the fact that it was death eligible with Petitioner “[m]any times.”

Co-counsel testified that he did not have any contact with Dr. Steinberg, whose work

on the case had been conducted prior to co-counsel’s joining the team. Co-counsel’s notes

from a conversation with former lead counsel in January 2007 reflected that Petitioner had

been diagnosed as schizophrenic and “borderline” intellectually disabled by MTMHI but

that former lead counsel agreed with Dr. Steinberg’s opinion that there was “nothing

wrong” with Petitioner. The notes also indicated that there was “lots of mitigation,” that

Petitioner had a bad family situation and a long juvenile record, and that the biggest

problem would be the facts of the case. Co-counsel testified that it would not “surprise”

him if Dr. Steinberg’s report was not located in the Public Defender’s Office’s files for this

case “because if we have a conversation with our doctors and it’s not going to be helpful,

we’ll often tell them to not bother writing a report.” Co-counsel did not know whether Dr.

Steinberg’s testing resulted in an I.Q. score of less than 70, stating, “All I know is I was

told that he was not helpful to us.” On cross-examination, co-counsel testified that he did

not recall if Dr. Steinberg had indicated that Petitioner was malingering.

Co-counsel testified that lead counsel was primarily responsible for contacting and

preparing Dr. Rutledge. Co-counsel did not specifically recall discussing with lead counsel

the reason for not having a pretrial hearing on the intellectual disability issue but testified

that “some of it had to do with Doctor Rutledge’s schedule.” Co-counsel also explained

that “part of it also was we had the report from [] MTMHI that was helpful and that we

were not going to press the issue because we were afraid that the State was going to fix it

- 30 -

if we did.” Co-counsel explained that by “fix it,” he meant having an expert testify that

the report was inaccurate, which is ultimately what happened during the post-trial hearing.

Co-counsel’s notes from that hearing indicated that the trial court agreed to consider

evidence of intellectual disability and deficits in adaptive behavior presented during the

mitigation phase. The defense waived the presence of Dr. Rutledge during the initial

hearing because of her illness, and the trial court agreed to bifurcate the hearing to allow

Dr. Rutledge to testify in rebuttal on a later date. Co-counsel’s notes taken during Dr.

Craddock’s testimony for the State indicated “no work done” with regard to “measures of

adaptive behavior,” which co-counsel believed meant “there’s no scale for adaptive

behavior.” Co-counsel testified that his understanding of the “clinical standard” for

adaptive deficits was “you either have deficits or you don’t” and that adaptive strengths

did not matter. With regard to whether the defense team made a strategic decision not to

investigate Petitioner’s adaptive deficits, co-counsel testified that “we did endeavor to

develop those things.” On cross-examination, co-counsel testified that only an expert could

diagnose intellectual disability and that such a diagnosis required a finding of adaptive

deficits and manifestation before the age of eighteen. On redirect examination, co-counsel

testified that the “legal standard” for intellectual disability under Tennessee’s statute

“includes not just I.Q. score but also deficits,” which was based on the “current level of

medical standards.”

With regard to the mitigation investigation, co-counsel testified that he was involved

in some of the family meetings but that lead counsel had primary responsibility for

mitigation since that had been his job when he was second chair. Co-counsel testified that

he did not accompany Ms. Stanback when she met with Petitioner’s family members in

their homes but that he met with them in the office. Co-counsel did not meet with any of

Petitioner’s teachers, friends, or former neighbors. Co-counsel’s notes from a team

meeting two months before trial indicated that “no family members will help” with

mitigation, and co-counsel explained that they were relying on Ms. Stanback “to marshal

the family” to Petitioner’s defense. Co-counsel testified that one of the possible mitigation

themes was Petitioner’s “horrendous childhood.” Co-counsel denied that there was a

strategic decision not to seek out or develop mitigating evidence. On cross-examination,

co-counsel acknowledged that some of the mitigation evidence could “cut the other way.”

Co-counsel’s notes also reflected that the defense team was considering the

possibility of having someone form the victim’s church testify that the Catholic Church is

against the death penalty. However, co-counsel explained that he did not know whether

such testimony would be admissible and that they were simply “brainstorming” possible

mitigation theories. Co-counsel acknowledged that a news report after the trial indicated

that Mr. and Mrs. Leech did not necessarily agree with Petitioner’s death sentence. On

cross-examination, co-counsel testified that he presumed from the outset that the Leeches

were against the death penalty because of their religion. Co-counsel testified that he did

not recall “how far we got” with calling a Catholic priest to testify about the Church’s

- 31 -

position but that he would not dispute the record showing that the State’s objection to such

testimony was sustained.

Co-counsel reviewed his notes from a meeting with Petitioner’s family on the

Saturday before the start of trial that included Shirley Pruitt, the widow of Petitioner’s

stepfather, Walter Pruitt. The notes reflected that Petitioner’s grades dropped in the sixth

grade after his parents split up. Both of Petitioner’s parents, as well as his grandmother,

were drinking a lot, and “everything was very dysfunctional.” Petitioner grew up moving

from place to place, and his mother was not always around. Co-counsel’s notes reflected

that there was always “some fighting going on,” including one incident in which

Petitioner’s mother shot or stabbed her boyfriend, and he ended up in the hospital;

Petitioner was twenty-four years old at the time. According to Shirley Pruitt, Petitioner

never had a job long enough to get his own apartment or be self-sufficient, and he never

had a steady girlfriend.

Co-counsel’s notes reflected that there was a second family meeting that same day

with Vivian and Antonio Pruitt. At the time of the post-conviction hearing, co-counsel did

not recall that Vivian Pruitt was Petitioner’s mother. The notes from that meeting reflected

that there was some discussion as to whether Alma Rockett or Quiana Pruitt would act as

the “family historian” during the mitigation phase. According to the notes, Petitioner’s

mother agreed that an I.Q. test of Petitioner at sixteen years old indicated that he was

“mildly mentally retarded.” Petitioner’s mother indicated that Petitioner never did

anything wrong around her, denied “early drinking,” but stated that “all boys smoked

marijuana.” The notes indicated that whenever Petitioner’s mother was arrested, he would

stay with his grandmother, who was mentally ill, and that mental illness ran in the family.

On cross-examination, co-counsel testified that “probably a lot of kids did smoke

marijuana” in the neighborhood where Petitioner grew up. With regard to whether

Petitioner’s lack of a job and lack of a stable living situation were unusual compared to his

other clients, co-counsel testified that “[p]eople who are defendants often have trouble

because of their situations, their traumatized childhoods, their adolescent development or

lack thereof I think it’s typical for the clients that I deal with.”

Co-counsel testified that most of the pretrial motions had been filed before he

became involved in the case. He did not recall if there was a specific strategic decision for

not filing motions requesting individual voir dire or the use of juror questionnaires. Co-

counsel testified that lead counsel primarily handled voir dire while co-counsel took notes.

During the State’s voir dire, co-counsel noted that the prosecutor stated that mitigating

circumstances are “something that makes it not so bad,” which co-counsel circled because

he thought it was a misstatement of the law. Co-counsel denied making a conscious

strategic decision not to object to the prosecutor’s statement. Co-counsel did not dispute

that more than one juror stated that they had heard about Dr. Smith and would not credit

his testimony. Dr. Smith had been retained as an expert witness before co-counsel became

- 32 -

involved in the case. Co-counsel was aware that Dr. Smith had resigned as the county

medical examiner after he was charged with possessing explosives and lying to

investigators, though co-counsel was not aware of the specific allegations. Co-counsel

denied seeing an episode of 48 Hours discussing Dr. Smith’s story, though he was aware

that “there was some media exposure there.” On cross-examination, co-counsel testified

that he had never heard of using juror questionnaires or individual voir dire until he started

working on capital cases.

Co-counsel testified that during the trial, lead counsel was able to lean back to confer

with Petitioner, who was seated behind counsel table. Co-counsel testified that even

though the attorneys had advised Petitioner not to testify during the guilt phase but only

during the sentencing phase, “he did exactly the opposite.” On cross-examination, co-

counsel testified that the defense planned to use remorse as a mitigating circumstance but

that “kind of required Mr. Pruitt to take the stand during the Sentencing Phase and he

decided not to.” With regard to whether Petitioner expressed remorse during his guilt phase

testimony, co-counsel recalled that Petitioner was not “the best witness for himself.”

Co-counsel did not recall when Gen. Weirich became involved in this case. Co-

counsel testified that Gen. Weirich did not inform the defense that her husband handled the

victim’s estate and that co-counsel did not learn that information until “much later.” Co-

counsel testified that he was aware that Gen. Weirich knew the victim through “her church

community” but that he did not know if “she had much personal interaction” with the

victim. Co-counsel testified that he did not think that Mr. Weirich’s prior representation

of the victim would have been important to the defense. Co-counsel testified that he was

not sure if he would have filed a motion to disqualify Gen. Weirich on that basis but that

he “would have considered anything to get either Ms. Dwyer or [Gen.] Weirich off the case

because they’re both good trial lawyers.” Co-counsel testified that he may have addressed

the issue during the cross-examination of Mr. Leech but that he did not know “what

inference that might have raised for the jury.”

During the State’s rebuttal closing argument in the guilt phase, co-counsel objected

to Gen. Weirich’s statement that she “t[ook] offense” to lead counsel’s argument that

“nobody care[d]” about the victim because he thought it was inflammatory and improperly

“put[] her opinion in front of the jury.” Co-counsel testified that he was not aware that lead

counsel was going to argue that the victim had no family and was “a little surprised that he

mentioned that at all.” Co-counsel testified that he continued to object during Gen.

Weirich’s rebuttal closing argument because he was “trying to slow her down.” In co-

counsel’s notes, he circled the term “predators” because he “thought maybe it was an

improper argument, improper way of describing my client.” However, co-counsel testified

that he “probably” made a strategic decision not to object to that argument “because I

objected a bunch and I think that at a certain point the jury holds it against you when you

interfere, and she was about to close, be done anyway so I didn’t want to stop her and have

- 33 -

her restart and get her going again.” Co-counsel explained that whenever Gen. Weirich

gave a closing argument, he would “read this chapter on prosecutorial misconduct because

she played it very close to the line.” Co-counsel testified that he did not consider filing a

motion in limine regarding improper argument, explaining that Gen. Weirich “was really

good at what she did, you know. We just had to be on our toes to catch her where we

could.”

On cross-examination, co-counsel testified that the defense team had copies of

Petitioner’s report cards from elementary school. Co-counsel testified that Petitioner had

“done really well” on some tests in the fourth and fifth grades but that “his academic

performance had dropped off precipitously around the sixth grade, maybe had a head injury

at that point.” The report cards reflected that Petitioner made the honor roll and principal’s

list in second, third, and fourth grade. Some of the handwritten comments from Petitioner’s

teachers indicated that Petitioner was “smart,” “a good learner,” “an excellent student,”

and had “great potential,” though some cautioned about his behavior and excessive

absences. On redirect examination, co-counsel testified that he had not been to Larose

Elementary and did not recall that Petitioner grew up in the adjacent Fowler Homes

neighborhood. With regard to the safety and security of the children living in that area and

whether the teachers cared for the children by providing food and clothes, co-counsel

testified that he “relied on Ms. Stanback for a lot of that information” since “[s]he knew

about the area and the culture a lot better than I ever will.”

On cross-examination, co-counsel recalled seeing Petitioner being interviewed on a

show called Gangland that aired shortly after the trial. Co-counsel was “a little taken back”

when he saw the episode so close after trial because “[i]t appeared that [Petitioner] had

done meetings with these people during my representation of him” and not told his

attorneys about it. With regard to Petitioner’s demeanor, co-counsel testified that “[h]e

seemed very well spoken and articulate on this episode.” Co-counsel testified that during

the interview, Petitioner “went into some detail” about the Lemoyne Gardens gang, or

LMG, including “how it was organized and who some of the players were.” Co-counsel

testified that defendant “knew [Petitioner] had some affiliation” with a gang, so he “wasn’t

surprised by that.” On redirect examination, co-counsel testified that he did not know when

or where the interview was filmed and that he did not know how much of the interview

was edited out of the episode that eventually aired. Co-counsel agreed that because he saw

the episode after Petitioner’s trial, it did not affect his trial strategy but that he probably

would have advised Petitioner not to participate.

Former lead counsel testified that she had worked for the Public Defender’s Office

for twenty-three years and was the lead attorney on Petitioner’s case until she left the

Capital Case Unit in December 2006. She recalled handling Petitioner’s preliminary

hearing in September 2005. In July 2006, Petitioner was evaluated by Midtown Mental

Health, who subsequently referred Petitioner to MTMHI for further evaluation because his

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competency was “questionable.” Former lead counsel testified that in her experience, it

was “rare” that Midtown would refer someone to MTMHI. She had Petitioner sign a

release so that the defense could have access to the records from MTMHI, including copies

of social histories and staff reports. Former lead counsel recalled filing an ex parte motion

requesting funds to hire Dr. Fred Steinberg to conduct an independent psychological

evaluation of Petitioner. In December 2006, she signed a certification of the time that Dr.

Steinberg spent on the case, including the time he spent drafting a forensic report. Former

lead counsel testified that even after leaving the Capital Case Unit, she was willing to assist

in Petitioner’s case and that lead counsel even asked the supervisor if she could be “third

chair” at trial, but Petitioner “said no.”

On cross-examination, former lead counsel testified that she still worked in the

Public Defender’s Office after leaving the Capital Case Unit and was available to consult

with Petitioner’s defense team. She recognized a copy of Dr. Steinberg’s report and

testified that she did not know why a copy could not be located in the Public Defender’s

Office’s file for Petitioner. She testified that she “wouldn’t have signed the certification if

the work hadn’t been done, so I would have had to have received it at least at some point

in time.” Dr. Steinberg’s report indicated that Petitioner “was noticeably medicated and

somewhat slowed in psychomotor response in the initial sessions” but that “he was more

spontaneous and normal in psychomotor response” during a later session. The report stated

that Petitioner’s I.Q. test “indicates that he is functioning within the Borderline range of

intelligence.” The report indicated that Petitioner had a “tendency to exaggerate and feign

mental illness” and that there was “corroborating data suggestive of symptom exaggeration

and malingering of psychiatric symptoms.” The report stated that further

neuropsychological testing was not necessary in light of these results. Former lead counsel

testified that she did not recall following up with Dr. Steinberg about his report but that she

would have shared the substance of her conversation with the other members of the defense

team.

Former lead counsel recognized her notes from a meeting with Petitioner in

September 2005 in which Petitioner relayed his version of the incident, including detailed

directions of how he and Courtney Johnson walked to the store. Former lead counsel also

recognized a letter she sent to Petitioner in January 2006, which stated that she was

providing Petitioner with copies of his discovery and pretrial motions that she had filed on

his behalf. Former lead counsel’s notes from April 2006 indicated that “Aunt Alma doesn’t

want us calling or coming to see her anymore.” At some point, Petitioner indicated to her

that he was not willing to accept any plea offers. Former lead counsel’s notes from a

meeting with Petitioner in December 2006 indicated that Petitioner wanted the charges

reduced to manslaughter and that she explained to him that there was no chance of that

happening and that the best offer the State was willing to make was life. The notes also

indicated that Petitioner did not want to take the stand. Former lead counsel testified that

she attended a conference with Ms. Stanback and lead counsel during which they

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developed mitigation themes for this case. Former lead counsel acknowledged that

Petitioner filed a complaint about her with the Board of Professional Responsibility and

that she wrote a response detailing the work she had done on the case.

On redirect examination, former lead counsel testified that she could not recall an

occasion where she did not get a report from an expert who had worked on one of her cases.

She testified that she would have concerns about discoverability if the report was unhelpful

to her client but denied that she would fail to put it in her file or shred it for that reason.

She testified that while she would not plan on calling such a witness to testify, she would

put the report in the file if for no other reason than to be able to show on post-conviction

that the evaluation was performed. Former lead counsel noted that she signed the

certification for Dr. Steinberg on December 22, 2006, not long before she left the case, so

she “can’t say” if the report was received after she left and “somebody else did something

with it.” However, she testified that she would have put the report in the file had she

received it so that “the people who came behind me would be able to look at it and see

what’s there.” She also testified that she was not aware of anyone in the Public Defender’s

Office removing reports from files and that doing so would be an ethical issue. She testified

that the copy of the report that was entered into evidence had underlining and handwritten

notes, but she did not recognize the handwriting. On recross-examination, former lead

counsel testified that she recalled being “a little surprised” by the results of Dr. Steinberg’s

evaluation “because it came back very different from what I had heard from Middle

Tennessee, and I was disappointed that it didn’t say the same thing.”

Jeannette Stanback testified that she worked on Petitioner’s case as a mitigation

investigator. She was present with former lead counsel and lead counsel during Petitioner’s

intake interview and took notes. Ms. Stanback gave a lay opinion that Petitioner’s behavior

was consistent with other defendants she had worked with who were assessed as having a

low I.Q. score. Ms. Stanback testified that she regularly met with Petitioner in preparation

for trial, meeting with him at the jail at least once a month if not more frequently. Ms.

Stanback testified that her initial impression of Petitioner was that he was “stoic” and

“unpenetrable” and that it took some time to get through to him. Ms. Stanback agreed that

Petitioner was prone to child-like outbursts and was easily influenced by jailhouse lawyers.

She could not recall if Petitioner was taking anti-psychotic medication.

Ms. Stanback testified that she gathered records from the jail, MTMHI, and other

places. Ms. Stanback also interviewed various witnesses and compiled a report of

Petitioner’s social history. She testified that everyone on the defense team had access to a

shared file and that they would share theories and notes during meetings. Ms. Stanback

recalled the defense team meeting with Dr. Steinberg, though she admitted that she may

have confused him with someone else.

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Ms. Stanback testified that Petitioner grew up in South Memphis. Petitioner lived

with his mother and sister in the Clementine Apartments, a poor, high-crime neighborhood.

Petitioner sometimes lived with his aunt, Alma Rockett, where the conditions were better.

However, at the time of his arrest, Petitioner was “couch surfing” among different

residences. Ms. Stanback testified that she was familiar with the Fowler Homes

neighborhood, which in the 1980s and 1990s had a reputation as being a very volatile

community with high crime and low income and education.

C. Lay Witnesses

Gaynell Talley, a retired teacher, testified that she taught in the Memphis City

School system for thirty-five years. Much of that time, she taught third and fifth grade at

Larose Elementary School. Ms. Talley also taught a special reading program under Title

I, which she explained was a government program for students who had low test scores

and were living below the poverty line. Ms. Talley testified that 99% of the students at

Larose were on the free lunch program, and a majority lived the nearby Fowler Homes

housing project. Ms. Talley testified that the school provided a clothes closet, free school

supplies, and basic hygiene products for the children. The teachers encouraged attendance

by calling and visiting the children’s homes. The school provided a safe and nurturing

environment for the children. Ms. Talley recalled Petitioner’s name, but she did not

recognize him, and he was never assigned to one of her classes.

Sirderrick Payne testified that he grew up in the Fowler Homes housing project and

that he had been best friends with Petitioner since they were about eight or nine years old.

Mr. Payne described the neighborhood as being “rough” with a lot of violence, crime, and

drug use. On one occasion, when they were about nine or ten years old, Mr. Payne and

Petitioner were outside playing curb ball when “Marco the Beast” shot at Petitioner’s house

while Petitioner’s mother and sisters were inside. The boys hit the ground during the

shooting, then afterwards ran to the house and saw big holes in the walls and door.

Petitioner could not stop crying and “was crazy.” Mr. Payne testified that, to his

knowledge, the holes in the walls were never fixed.

Mr. Payne also described Petitioner’s home life as “rough.” Petitioner lived with

his mother, his grandmother, his two older sisters, and his two older brothers, as well as

one of his sisters’ children. Although the house had five bedrooms, Petitioner did not have

his own bedroom and often slept on the couch. Mr. Payne testified that Petitioner’s mother

and siblings were all using drugs, selling drugs, and/or engaging in prostitution. Mr. Payne

testified that Petitioner’s house was always loud and there was a lot of traffic in and out of

the house at all hours. Petitioner’s house was considered the place to “hang out, smoke,

shoot dice, [and] have sex . . . [I]t was like they don’t sleep.”

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Mr. Payne testified that Petitioner’s mother could not control her drug addiction.

On one occasion when he was eleven years old, Petitioner’s mother offered to have sex

with Mr. Payne in exchange for drugs. Petitioner’s mother also used her welfare checks

and food stamps to buy drugs, so by the end of the month Petitioner would either come

over to Mr. Payne’s house for food or would have to steal to get food. Mr. Payne testified

that although his own mother was also a drug addict, she always made sure to feed and

clothe her children, unlike Petitioner’s mother who “ran the street to make sure she got

high.” Additionally, unlike Petitioner’s older siblings, Mr. Payne’s older siblings looked

out for him and helped to provide for him.

Mr. Payne testified that the interactions between Petitioner and his mother were

often violent. Petitioner’s mother would yell and curse at Petitioner, call him names, and

beat him with an extension cord or a belt. On one occasion, Petitioner’s mother smacked

Petitioner so hard that Mr. Payne thought she had broken his neck. Petitioner’s mother

was also violent with her boyfriends. She and her boyfriend “Buck” would get drunk or

high and start fighting most days of the week. Mr. Payne testified that it happened so often

that the Memphis Police Department stopped responding to the domestic disturbance calls.

Both Petitioner and Mr. Payne attended Larose Elementary School, which Mr.

Payne described as “fun” and a place “where you can go, really, to feel most safe at” and

where “[y]ou can eat and have food.” The situation was much different at Vance Middle

School, which was located near a different housing project. Mr. Payne testified that if they

walked through the other housing project to get to school, they risked getting “jumped.”

However, if they walked the long way around, they would not get to school on time and

either the doors would be locked or they would be written up for tardiness. Petitioner and

Mr. Payne stopped attending school, and Mr. Payne eventually transferred to a different

school because of the violence.

Mr. Payne described Petitioner as a “follower . . . [m]eaning he can’t think for

himself.” Petitioner was constantly asking Mr. Payne what to do. Petitioner was bullied

as a child because he tried to stand up for his older brother who was gay. The other children

picked on Petitioner, hit him, and stole his shoes, and Petitioner was afraid to go to school.

Mr. Payne testified that he started selling drugs around age nine or ten because he saw the

older boys doing it and buying nice things. However, Petitioner did not sell drugs because

“he didn’t know how” and did not have the “mind set” to do it. Mr. Payne gave an example

where someone switched real drugs for “fake” drugs without Petitioner noticing, and

Petitioner ended up having to refund money to the people to whom he inadvertently sold

the fake drugs. Petitioner would often lose money when trying to sell drugs, and Mr. Payne

would have to help him pay for it. Mr. Payne testified that to his knowledge, Petitioner did

not use drugs and denied that Petitioner was in a gang. Mr. Payne admitted that he was a

member of the Vice Lords and that he was incarcerated on a second-degree murder

conviction at the time of Petitioner’s trial.

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Myron Stewart testified that he grew up in the Fowler Homes housing project about

a block away from Petitioner. Mr. Stewart testified that many of the kids who lived in

Fowler Homes stopped attending school because of the difficulty involved in walking to

Vance Middle School. Mr. Stewart testified that there were frequent gang fights and that

“[a] lot of kids was getting jumped on and chased from school, back in the day.” However,

because he played sports, Mr. Stewart “had like a pass to go through different projects.”

Mr. Stewart also had the opportunity to spend time with family in Chicago and nicer

neighborhoods in Memphis, which motivated him to do better. Mr. Stewart eventually

graduated high school and attended community college. In his career, Mr. Stewart worked

for the local jail, prison, and police department before leaving the criminal justice field

because of too many encounters with people he knew from the old neighborhood.

Mr. Stewart explained that growing up, his house was better than most in terms of

cleanliness and discipline. His mother also provided food for many of the kids, including

Petitioner. Mr. Stewart testified that Petitioner’s family was “dysfunctional” in

comparison. Petitioner’s mother had a reputation for her drinking and drug use, and there

was no one to be a father figure to Petitioner. Mr. Stewart also described the violence in

the neighborhood, including shootings and gang fights. Many of the young men who had

stopped attending Vance Middle School were selling marijuana for a man named “Jab-

Blue” because he let them smoke as much of the marijuana as they wanted.

Mr. Stewart testified that he worked in the Shelby County Jail at the time Petitioner

was incarcerated there before trial. Mr. Stewart testified that Petitioner did not seem like

the same person he knew, and he was not sure that Petitioner recognized him. Mr. Stewart

testified that Petitioner did not want to get up to eat or shower and that he seemed “[s]low

. . . like he was out of it.” Mr. Stewart testified that he had worked on the medical floor of

the jail where inmates were prescribed psychiatric drugs and that Petitioner exhibited

behavior like someone who had been prescribed a high dose of such drugs.

Talon Williams testified that he grew up in the Fowler Homes housing project and

that he met Petitioner when they played basketball as kids. Mr. Williams testified that his

mother, Doris Barker, tried to make sure that the kids in the neighborhood had clean clothes

to wear, enough food to eat, and organized social activities and outings to keep them

engaged. Petitioner participated in one of her programs and played on the neighborhood

basketball team. Although Petitioner was a good player, he would get frustrated that he

could not read the defenses and would quit a lot. Even though Petitioner wanted to be

included in things, he was not good in group settings and generally did not fit in.

Petitioner spent a lot of time at Mr. Williams’s house because his own house “wasn’t

the best place to be.” Mr. Williams testified that even among others in the housing project,

Petitioner’s family stood out for their poverty, violence, and drug use. Petitioner’s entire

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family used or sold drugs. Petitioner’s mother was always high or drunk. Petitioner’s

mother and her boyfriends would fight in the front yard “pretty regular[ly],” and “it was

kind of like a spectacle where people were drawn to watch them and laugh.” Petitioner’s

house was “dark, smelly, garbage everywhere, a lot of people in and out.” Mr. Williams

testified that you could not sit on the minimal furniture there was because it was all infested

with bed bugs. Petitioner’s house was always hot in the summer because the only air

conditioning unit was located in one of his brothers’ bedroom behind a locked door. On

one occasion, the family got evicted for failing to pay rent, and all of their belongings were

put out on the curb. The community had to come together to pay their rent so that they

could go back inside.

Mr. Williams testified that Petitioner did not have a lot of family support growing

up. Petitioner’s grandmother would stare at the television all day and mumble to herself,

or she would wander off and knock on other people’s doors. Mr. Williams testified that he

later learned that she was mentally ill. Petitioner’s brother, Tony, sold drugs and usually

kept to himself and his “crew” without paying attention to Petitioner. Petitioner’s sister,

Tapika, was “strung out on drugs” and would often leave her children for days at a time.

Petitioner’s brother, Rico, was gay and was frequently assaulted due to the homophobia in

the community. Mr. Williams often provided Petitioner with clothes off of his own back,

made sure that he ate, and would give him a haircut when he had not had one in a while.

Mr. Williams testified that he observed Petitioner using marijuana and cocaine as a

teenager. On one occasion, Petitioner was “hanging out with a group of wrong characters”

and had been using cocaine for three or four days. When Mr. Williams tried to get

Petitioner out of there, Petitioner was “just spaced out, out of his mind on drugs.” Mr.

Williams testified that Petitioner obtained money to buy drugs by robbing people and

gambling. Mr. Williams testified that Petitioner would “try to hustle crap games” but that

he was usually not successful at making money because he did not understand the game.

Mr. Williams testified that he spent time in the Shelby County Jail with Petitioner

prior to trial in this case. He noticed that Petitioner was “lethargic and incoherent and

seemed spaced out.” Mr. Williams testified that Petitioner would sit very still and that

Petitioner spoke slowly and could not complete a sentence.

Doris Barker, Mr. Williams’s mother, testified that she lived in the Fowler Homes

housing project in the 1980s and 1990s and that she knew Petitioner as “one of the children

that [she] helped to raise in our development.” She first met Petitioner when he was eight

or nine years old. She described Petitioner as “[a] real nice boy” who came to many of the

programs that she organized. Ms. Barker explained that she planned social activities for

the children in the neighborhood and tried to make sure that they did not go hungry and

that they knew they were loved. Ms. Barker received a grant called Esteem Fifty for three

years, which allowed her to provide tutors and organize excursions outside of the housing

- 40 -

project. Petitioner successfully completed that program despite lacking the required

parental involvement.

Ms. Barker testified that she was familiar with Petitioner’s family because they lived

just around the corner. Ms. Barker testified that Vivian Pruitt “wasn’t one of the best

mothers in the world” and that she tended to prioritize her own needs while the rest of her

family “just struggle[d] along.” Ms. Barker testified that Vivian “wanted to be high. She

wanted to drink, or smoke crack and have a good time. She just didn’t care.” Ms. Barker

never saw Vivian go to the grocery store or hug her children. Ms. Barker testified that

Vivian only ever called on Petitioner when she needed something. For example, whenever

Vivian found out that Petitioner had some money from dancing, she would take it from

him.

Although Petitioner “had a roof over his head,” Ms. Barker described the house as

“an open door, no locks or nothing, people just walking in and there was always some

confusion at that house.” Ms. Barker testified that there was “[a] lot of fighting and cutting

and cussing” and that Petitioner was “a child with nobody to teach him anything.” Ms.

Barker testified that she worked as a housing inspector for the Memphis Housing

Authority. On one occasion, Vivian failed her inspection because “[t]he whole house was

just torn up and in chaos. In the kitchen, dishes piled all up and people running in and out

of the house, whatever time of night, it just was bad.” A second failed inspection would

have meant eviction, but Vivian was able to pass the second inspection.

Ms. Barker testified that although everyone in the neighborhood was “poverty

stricken” and “financial prisoners,” most families “held together” while Petitioner’s family

had “no unity” and lacked any sense of caring, nurturing, or love. Petitioner’s family also

had trouble making the rent, which was usually around $30 or $35 per month. With regard

to the violence in the home, Ms. Barker testified that Vivian, her live-in boyfriend “Buck,”

and Petitioner’s siblings would fight all the time both inside and outside of the house.

There were frequent occasions where someone would get stabbed or end up with a black

eye. Ms. Barker testified that the neighbors eventually got used to the fighting and tried to

ignore it, while the children did their best to try to escape it.

Ms. Barker testified that she met Petitioner’s grandmother, Frankie Hamilton, one

day when she knocked on Ms. Barker’s door and asked for “a sandwich and some snuff.”

Ms. Hamilton told Ms. Barker that she did not have any money because her daughter,

Vivian, was taking her monthly checks. Ms. Barker continued to periodically help Ms.

Hamilton by feeding her and sending someone to the store to buy her snuff. Ms. Barker

testified that Ms. Hamilton was a “sweet person” who “really loved” Petitioner and tried

to do what she could for him. Ms. Hamilton often babysat Petitioner and his siblings’

children. However, Ms. Hamilton was in bad health and had dementia. She could not go

to the grocery store because of the concern that she might wander off.

- 41 -

Ms. Barker was also familiar with Petitioner’s oldest sister, Tapika, who lived next

door. Ms. Barker testified that Tapika had four children, and Ms. Barker found out that

they had never been to school, had never received their immunizations, and did not know

how to eat with utensils. Tapika fed the children only “powder eggs and Ramen noodles,”

while she gave her money and food stamps to “a couple of gigolo guys.” Tapika was

frequently partying and doing whatever she wanted, and she would leave the children for

days at a time. Tapika also smoked crack cocaine and engaged in prostitution. Ms. Barker

testified that Tapika failed to provide for her children because she was simply “repeating

what she saw” from her own mother.

Ms. Barker testified that she received a letter from Petitioner about a year before the

hearing in this case, thanking her for always being there for him. Ms. Barker testified that

Petitioner’s writing in the letter made sense and was not rambling, but it was very simple,

“kind of like a kid wrote it.”

Davey Floyd testified that he knew Petitioner since they were around ten or eleven

years old and considered him to be his best friend growing up. Although Mr. Floyd lived

elsewhere, he spent time in the Fowler Homes housing project with his father, who was

known as “Jab-Blue” and was the major distributor of marijuana and cocaine in the

neighborhood. Like many of the kids in the neighborhood, Petitioner started selling drugs

for Mr. Floyd’s father when he was twelve or thirteen years old. This gave Petitioner

unlimited access to marijuana, and he smoked “a hell of a lot” it, “way more” than the other

kids. Petitioner also played dice to try to increase the money he made from selling drugs.

Mr. Floyd testified that Petitioner grew up in “a very harsh, violent, uncaring,

gruesome environment.” Mr. Floyd described Petitioner’s house as “[n]asty, un-kept,

roaches, rats, trash everywhere, smells, bullet holes in the walls.” Petitioner’s family was

“[c]razy, violent, abusive.” Mr. Floyd testified that while other families in the

neighborhood were able to “handle their responsibilities” and “provide,” he knew of no

other family “to be so abusive and so dysfunctional” as Petitioner’s family. Mr. Floyd

explained that Petitioner’s mother caused much of the dysfunction with her extreme drug

addiction, alcoholism, violence, and prostitution. Petitioner’s mother had no self-control

and neglected all of her responsibilities, including her own personal hygiene. She would

engage in fights in the courtyard, and people would laugh or look at her with disgust.

Mr. Floyd testified that Petitioner’s mother was physically and verbally abusive

toward Petitioner and did not provide for him, feed him, care for him, or tell him that she

loved him. On one occasion when Petitioner was fourteen years old, he asked her for

money to buy something to eat, and she cursed him out, shoved him against the wall by his

throat, and then made him leave. Mr. Floyd testified that Petitioner’s brother, Rico, was a

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child molester and that he sexually abused Petitioner and other teenaged boys. Rico also

engaged in prostitution in exchange for drugs and eventually died from AIDS.

Mr. Floyd testified that Petitioner was bullied as a child. Petitioner was picked on

and pushed around more than other kids because he was “a quiet, inward type person”

rather than “outgoing or witty.” In contrast, Petitioner’s brother, Tony, “had personality

and character” and was the “life of the party.” People wanted to be around Tony and often

provided him with food and money; however, Tony did not look out for Petitioner or feed

him when he was hungry. Petitioner’s sister, Quiana, also had “everything she needed”

because she dated older guys who had money. Often the only food in the house was her

personal food that she kept in her room, but she would only give Petitioner “something

small” when he was “absolutely hungry” because he had not eaten in a couple of days. Mr.

Floyd testified that he would give Petitioner food and money whenever he had any to spare.

Mr. Floyd testified that he was housed in the same pod of the Shelby County Jail as

Petitioner before trial. Every time he saw Petitioner, Mr. Floyd noticed that Petitioner was

“doped up on so much psych meds that he was out of it.” Mr. Floyd described Petitioner

as follows: “eyes rolling up in the back of his head, drooling, slobbering, coming out of his

mouth . . . slow talking, can’t think straight, not . . . responding properly . . . no mind

function.”

Shirley Jean Pruitt testified that she married Walter Pruitt in 1994. Walter was

previously married to Petitioner’s mother, Vivian Pruitt. Shirley testified that Vivian was

much younger than Walter and “they just didn’t get along.” When Walter was with Vivian,

he drank heavily and “was in and out of trouble and jail.” After Walter met Shirley, he

eventually stopped drinking and started attending church. Even though Walter was not

Petitioner’s biological father, he considered Petitioner to be his son, and Walter introduced

Petitioner and his siblings to Shirley as his children. Shirley testified that Walter tried to

maintain contact with the children after he and Vivian split up. Vivian would not interfere

with these visits if Walter brought her some money or something to drink. However, if

Walter told her that he did not have anything, Vivian would start cursing and complaining

about his relationship with Shirley, asking “why was he bringing this ‘B’ to her house.”

Vivian would even grab at Shirley through the window of Walter’s truck. Eventually,

Shirley stopped accompanying Walter on these visits because “it was just too much of a

problem.” Shirley testified that Walter only saw Petitioner “off and on.” Shirley testified

that Walter “loved [Petitioner] and cared about him, but Walter was kind of guilty, he felt

guilty about not staying there with them.”

Shirley testified that she met with Petitioner’s attorneys when they asked her to

provide some clothes for him to wear at trial. However, they did not ask her any questions

about Petitioner’s life and simply told her that they were going to raise an insanity plea

because paranoid schizophrenia ran in Petitioner’s family. Shirley identified a photograph

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from trial counsel’s file that was marked “Corinio Pruitt’s family.” Shirley testified that

the picture did not depict Petitioner and his siblings but was instead a picture of Walter’s

daughter from a prior relationship with her half-siblings, who lived in St. Louis and who

Petitioner had never met.

Marsha McMillan testified that she knew Petitioner because she was married to

Walter Pruitt’s brother. Additionally, both Ms. McMillan and Petitioner worked at

Patterson Warehouse through a temporary agency called LSI. Ms. McMillan was a

supervisor at Patterson Warehouse, and Petitioner worked there for three or four months

before his arrest in this case. Ms. McMillan testified that Petitioner would take the bus to

get to work and sometimes would arrive late. Ms. McMillan testified that Petitioner had

trouble reading instructions on paperwork for loading specific items on a pallet and often

had to work with Ms. McMillan to get it right. When putting together a display, most

employees were able to correctly follow the model, but Petitioner struggled such that Ms.

McMillan had to step in and show him how to do it. Petitioner had an accident with a

hand-jack loader where a pallet turned over, and Ms. McMillan testified that other

employees did not have similar accidents on a regular basis. Petitioner also had problems

putting items into the compactor the correct way so that it would not get jammed. Ms.

McMillan testified that to her knowledge, Petitioner was not high while he was at work,

but she only found out about Petitioner’s drug use after the fact.

D. Petitioner’s Expert Witnesses

Dr. Jonathan Joseph Lipman testified as an expert in the field of

neuropharmacology, which he explained is the science of how drugs act on the brain and

affect behavior. Dr. Lipman testified that in this case, he was asked to “opine on the

possible forensic relevance of [Petitioner’s] early adolescent cannabis use.” Dr. Lipman

reviewed records from court files, the reports of psychological evaluations of Petitioner

conducted by other experts, medical records, and collateral witness interviews provided by

post-conviction counsel. Dr. Lipman did not personally interview Petitioner but relied on

interviews conducted by other experts in this case. Dr. Lipman testified that these sources

indicated that Petitioner started smoking marijuana at age fourteen, or possibly as early as

age twelve, and that Petitioner smoked “frankly an outrageous amount” of 2 to 2.5 ounces

of marijuana per day. Dr. Lipman opined that Petitioner’s early and heavy marijuana use

“likely added to the pre-existing intellectual impairments and the cognitive dysfunction”

and that “drug abuse more likely than not interfered detrimentally in his brain’s

development during this critical period of brain maturation in his teenage years.”

Dr. Lipman testified that brain development during childhood “is an extremely

dynamic process” and that “[t]here are so many opportunities to interrupt that,” including

pre-natal development, social and environmental factors, and drug use, which can “produce

profound chemical changes in the brain” and “synergize with each other to produce a more

- 44 -

than addictive impairment.” Dr. Lipman testified that Petitioner likely had pre-existing

impairments due to his pre-natal exposure to drugs and alcohol and his “chaotic”

upbringing. Petitioner’s mother had a “profound arrest history for drug and other offenses

during pregnancy,” including being arrested for shooting Petitioner’s biological father

three days before Petitioner’s birth. Petitioner’s birth records indicated that “he was not

normal at birth.” Specifically, Petitioner’s birth weight was at the “low end of normal,”

his head circumference was in the third percentile, the sagittal suture in his skull was

“gaping open,” and his left eye “bugging out and swollen.” Petitioner was then “brought

up in frankly deprived circumstances” where his “main caregiver was a paranoid

schizophrenic lady” and his mother “exchanged drugs for sex and . . . was constantly being

arrested.” Dr. Lipman explained that the “synergistic impacts” of Petitioner’s gestational

impairments and social deprivation meant that “[h]e was not a normal child when he started

to abuse marijuana at age [twelve] to [fourteen].”

Dr. Lipman described a large epidemiological study that found that early marijuana

use “produces measurable intellectual and cognitive deficits later on in life.” The study

found that certain participants “had neuropsychological impairments that could not be

attributed to anything other than early marijuana use” and that were distinct from those

who started using marijuana after their brains were more fully developed. Dr. Lipman

explained that marijuana’s impact on I.Q. scores and neuropsychological testing was “an

indication of neurotoxicity.” Dr. Lipman explained that the frontal lobe, which controls

executive functions such as planning and judgment, is the last part of the brain to develop

and is the most sensitive to damage. Dr. Lipman testified that some people might be able

to “resist some of the damage that marijuana can do at that age” if they had a “well

nourished brain that had been properly stimulated from birth with nurturing learning

experiences,” but that Petitioner’s “was not such a brain.” Dr. Lipman testified that

Petitioner’s various I.Q. scores were “consistent with a degenerative process as occurring

at or after age fourteen,” when he achieved his highest score on an intelligence test. Dr.

Lipman testified that Petitioner’s arrest record was consistent with someone with a

damaged frontal lobe, since such “individuals are impulsive and they get into a lot of

trouble.”

Dr. Lipman testified that a person with frontal lobe damage might be more likely to

develop a drug abuse habit because they “cannot apply judgement [as] clearly as a normal

person and cannot resist as easily as a normal person.” Dr. Lipman testified that one’s

social environment can also contribute to drug abuse “because modeling is where children

get their ideas of what normality is. When everyone is buying, selling and using drugs that

may seem normal to a child, not the thing to be resisted.” Dr. Lipman testified that post-

traumatic stress disorder can also “predispose someone to an appetite for tranquilizing

drugs particularly” and that they “might self-medicate with marijuana.”

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On cross-examination, Dr. Lipman agreed that certain drugs may be associated with

violent crime and that neurotoxicity can cause violent behavior as well as other

neurological diseases. Dr. Lipman agreed that marijuana can be addictive, can be a

gateway drug, and can increase rates of juvenile crime. Dr. Lipman testified that marijuana

use can lead to mental health issues “[i]n vulnerable people” and “can provoke psychosis”

in those who may be predisposed. Dr. Lipman testified that he was not aware how common

Petitioner’s experiences were compared to others in Memphis, including the lack of

prenatal care, the stressful home environment, parental arrest records, and juvenile use of

marijuana. The State presented Dr. Lipman with a longitudinal study of twins that

suggested that the decline in I.Q. scores may not be attributable solely to marijuana

exposure but to underlying environmental factors that are common to both marijuana use

and low intellectual attainment. The State also presented Dr. Lipman with a recent meta-

analysis that suggested that “the magnitude and persistence of cognitive deficits”

associated with marijuana use may have been “overstated” in previous studies. The meta-

analysis suggested that observed deficits may be associated with “acute use or withdrawal”

and that abstinence may be associated with “restored cognitive functioning.” However,

Dr. Lipman testified that the meta-analysis only compared cross-sectional studies and

specifically excluded longitudinal studies like the one he described on direct examination,

so the results may not necessarily be contradictory.

On redirect examination, Dr. Lipman testified that the twin study suggested that

there were “multiple interacting factors” causing intellectual decline; however,

“environmental stress” would be consistent between the twins living in the same home.

The study found that “the effects of the environment was greater than the effect of the

marijuana use, although marijuana users had lower test scores relative to non-users and

showed a significant decline in crystallized intelligence between pre-adolescence and later

adolescence.” Dr. Lipman described Petitioner’s environment as follows:

His upbringing was -- I don’t want to say deprived but emotionally, socially,

educationally, intellectually and in terms of adult modeling was

impoverished, and stressful. People are being shot around him. He was

unwashed, he was not cared for, he smelled of urine according to his school

friends, his neighborhood friends. He was afraid to go home. He had a very

stressful upbringing. His responsible caregiver, his grandmother who was

apparently schizophrenic, his mother was a most unsuitable lady.

Dr. Lipman explained that gestational impairment, environmental stress, and neurotoxicity

from substances like marijuana have a “synergistic effect,” meaning that while “it might

be possible to survive any one of them[,] when they are combined the damage is more than

additive.” Dr. Lipman testified that he relied on multiple studies showing the effect of

marijuana on brain development in writing his report in this case.

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Katy Spurlock with the Urban Child Institute testified as an expert in “identifying

and communicating information regarding early childhood brain development and

trauma.” Ms. Spurlock testified that she worked with nonprofit organizations, health care

providers, and policymakers to develop training programs and public awareness campaigns

designed to translate the scientific research on early childhood development into terms that

lay people can understand and use to change their behavior in order to improve public

health outcomes.

Ms. Spurlock testified regarding the impact of adverse childhood experiences

(“ACEs”) on childhood development and public health outcomes. An initial study by

Kaiser Permanente in the 1990s identified ten ACEs related to abuse (physical, emotional,

and sexual), neglect (physical and emotional), and household dysfunction (mental illness,

incarceration, substance abuse, death, and divorce). Subsequent studies have identified

additional ACEs, including poverty, racism, community violence, and bullying. These

studies have found that 30% of people had experienced at least one ACE, while 12-15%

had experienced four or more. Ms. Spurlock testified that the studies showed a “dose

response relationship,” meaning that the more ACEs a person has had, the worse their

health and educational outcomes are over the course of their life. Ms. Spurlock testified

that the odds for certain outcomes, such as substance abuse, mental health issues, attempted

suicide, and involvement in the criminal justice system, are “pretty astronomical” for

people with four or more ACEs.

Ms. Spurlock explained that the brain continues to grow and develop after birth and

is not fully developed until around age 25. Ms. Spurlock explained that “those early years

when the brain is not fully formed, an assault to the brain that is related to these adverse

childhood experiences and trauma, is particularly damaging when the brain is at its most

vulnerable.” Ms. Spurlock testified that if the stress and trauma associated with ACEs are

not mitigated in any way, such as with the support of a caring adult, they can cause lasting

damage to the developing brain. Ms. Spurlock explained the “cascade effect,” where a

disruption in cognitive development can lead to a “lack of success in school and

relationships and health,” which leads to risk taking, social and emotional issues, adverse

health outcomes, and eventually an early death. Ms. Spurlock explained that a child may

be able to overcome the effects of ACEs if they receive adequate family or community

support, known as “building resiliency.” However, it becomes more difficult to build

resilience as the child gets older and experiences more ACEs. Additionally, poverty

exacerbates the effects of ACEs because of the increased family stress and lack of access

to resources to address psychological needs.

On cross-examination, Ms. Spurlock testified there is a correlation between ACEs

and criminal behavior later in life. Ms. Spurlock testified that someone who does well in

their elementary school years may have someone in their life, such as a teacher, who is

“nurturing them in a way that helps them that mitigates some of those adverse childhood

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experiences for some success.” Ms. Spurlock testified that a 2014 study conducted in

Memphis showed while the percentage of people who reported having at least one ACE

was similar to the results of studies conducted nationwide, there was an increased rate of

emotional abuse and neglect, domestic violence, and sexual abuse.

Dr. Richard G. Dudley, Jr., a physician with a specialty in psychiatry, testified that

he was asked to conduct a psychiatric evaluation of Petitioner. Dr. Dudley conducted a

clinical interview with Petitioner over the course of four days, gathering background

information and evaluating Petitioner’s mental status and possible symptoms. Dr. Dudley

also reviewed various records related to Petitioner’s trial and family history, social history

interviews, and the evaluations conducted by the other experts in this case. Dr. Dudley

testified that it was his opinion that Petitioner’s psychiatric difficulties could have been

presented as mitigation evidence and also impacted his competency to stand trial.

Dr. Dudley explained that examining any family history of mental health issues was

important because of the increased genetic risk of Petitioner’s developing psychiatric issues

as well as the impact such issues would have on the environment in which Petitioner was

raised. Dr. Dudley testified that Petitioner’s family history was replete with a variety of

mental health disorders, substance abuse, seizure disorders, intellectual disorders, and

lengthy criminal records. Specifically, Petitioner’s maternal grandmother, Frankie

Hamilton – who was one of Petitioner’s primary caretakers – suffered from schizophrenia,

did not consistently comply with treatment, and was periodically hospitalized in psychiatric

institutions. Petitioner’s biological father, Terry McGirt, was assessed as having an I.Q.

score of 68 when he was sixteen years old. Petitioner’s mother, Vivian Pruitt, had a history

of drug and alcohol abuse, drank during her pregnancy with Petitioner, was incarcerated

on multiple occasions, and had a “long history of difficult relationships with considerable

domestic violence.”

Dr. Dudley gave his opinion that Petitioner “suffered from multiple psychiatric and

neuropsychiatric difficulties” related to trauma endured during childhood and adolescence,

which occurred in “the absence of the type of parenting that might have helped to mitigate

its effect.” Petitioner displayed “the classic symptoms of trauma, hypervigilance, over

reactivity, and the like, even some dissociation.” Additionally, Petitioner had “other

developmental difficulties characterized by instability” affecting “important areas of

functioning such as attachment, sense of self, mood regulation and decision making,” as

well as “intellectual and/or other cognitive difficulties.” Petitioner’s birth records indicated

“some gestational difficulties” associated with his mother’s use of alcohol during

pregnancy and lack of prenatal care, which may have contributed to the development of

some of Petitioner’s mental health issues and cognitive deficits. Dr. Dudley attributed

Petitioner’s “significant history of marijuana use and abuse” to his family history of

substance abuse, to the fact that it was common in the environment in which Petitioner

grew up, and to Petitioner’s discovery that “marijuana was helpful in calming some of the

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symptoms” previously described. As Petitioner grew older, he “struggle[d] with

depression often accompanied with suicidal ideations and some attempts, and also then

there was the emergence of psychotic symptoms characterized primarily by paranoia

delusions and periods of auditory hallucinations.”

In describing Petitioner’s history of trauma, Dr. Dudley explained that Petitioner

experienced various traumas inside the home during his early childhood as well as traumas

outside the home and in the community as a teenager. Dr. Dudley explained that Petitioner

had more difficulty acknowledging and talking about the traumas he experienced in the

home. As a child, Petitioner was exposed to both his mother’s and grandmother’s

“difficulties,” including his mother’s being stabbed when Petitioner was nine years old.

When he was five years old, Petitioner was sexually abused for a period of time by a friend

of his mother. Although his grandmother may have known, the abuse was never discussed

with Petitioner’s family and contributed to his feelings of being unsafe and not protected.

The family’s money often went toward drugs rather than caring for Petitioner and his

siblings, and Petitioner began performing in the streets to try to raise money to take care of

some basic needs. As a teenager, Petitioner was assaulted, robbed, had a gun pointed at

this head, and was in and out of juvenile detention. Petitioner’s home was shot at, and

there were frequent shootings in the neighborhood. When he was fifteen years old,

Petitioner lost a group of friends to a violent car accident. Dr. Dudley acknowledged that

there was some discrepancy as to whether Petitioner actually witnessed the accident or

whether he was in juvenile detention at the time. However, Dr. Dudley testified that

“clearly [Petitioner] knew about it and knew the details associated with it” such that it

“contribut[ed] to the larger picture of the kind of multiple traumas that he endured during

his adolescent years.”

During the clinical interviews with Dr. Dudley, Petitioner talked a lot about his

feelings of hypervigilance and concerns about harm. He described the nightmares and

intrusive thoughts he had about the violence he witnessed. He became anxious, nervous,

and depressed when describing his past traumas as well as displayed “some spacey

dissociative sorts of symptoms.” Dr. Dudley explained that Petitioner lacked any kind of

nurturing parental support to help him build resiliency and cope with the repeated exposure

to violence. Dr. Dudley testified that the situation was further complicated by Petitioner’s

intellectual and cognitive impairments as well as his marijuana use, explaining that “while

each of them have their own individual effect on a person’s ability to function, . . . they’re

also interactive with each other and . . . in many cases they exacerbate the effect of each

other and their interaction.”

Dr. Dudley testified regarding the stressors in Petitioner’s life around the time of

the offense in this case. Petitioner was released from prison in 2004 and was “trying to get

his life on track in some sort of positive way” by having a job and being able to support

himself. However, Petitioner had “difficulty sustaining employment for a variety of

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reasons,” including difficulty learning the tasks required and being able to do them

efficiently. Because Petitioner was not able to financially support himself, he moved

around living with different family members. For a time, Petitioner was in a relationship

that was “quite supportive” and contributed a sense of stability, so it was “pretty

devastating” when that relationship ended. Petitioner was struggling with depression and

the emergence of psychotic symptoms.

Dr. Dudley reviewed Petitioner’s jail medical records. Petitioner was prescribed

Risperdal and Cogentin to treat his schizophrenia and depression. Petitioner was

prescribed a dosage of 6 milligrams of Risperdal throughout the course of the trial. Dr.

Dudley testified that the “normal dosage” was 2-3 milligrams and that a 6 milligram dose

was “high enough that it would leave most people sedated.” Dr. Dudley believed that

Petitioner was taking the Risperdal in the evening, which “would leave him . . . sedated in

the morning.” People who observed Petitioner described him as acting “doped up,

sedated.” Petitioner also reported feeling sedated, unable to focus or pay attention, and not

understanding what his attorneys were telling him. Petitioner also believed that his

attorneys were working against him and trying to harm him. Dr. Dudley had “a serious

question about [Petitioner’s] competency at the trial” due to the combination of his

intellectual cognitive difficulties, psychotic symptoms and paranoia, and the sedation

caused by the medication, all of which interfered with his ability to trust and work with his

attorneys and to understand the nuances of important decisions, such as whether to testify.

Dr. Dudley testified that Petitioner was still “in a lot of physical and emotional distress at

the time that I saw him” in 2015 and 2016. Petitioner complained about his health and

various bizarre medical issues, such has leaking bodily fluids, and he expressed a belief

that the doctors were part of a larger plot to torture him. Dr. Dudley testified that

Petitioner’s “underlying intellectual cognitive difficulties were evident clinically” and

would have caused difficulty in trying to get Petitioner “to understand and demonstrate a

capacity to make some reasonable decisions.”

On cross-examination, Dr. Dudley testified that he always considers the possibility

of malingering when conducting an evaluation. In his opinion, Petitioner was not

malingering. Dr. Dudley acknowledged that he did not administer a standardized test for

malingering and that he does not do so as part of his regular practice. Dr. Dudley explained

that he instead considered “whether the symptoms . . . [are] presented in the way that we

know that they present as opposed to . . . a way that a lay person might think that mental

illness looks like[.]” Additionally, Dr. Dudley considered other sources of information to

see whether similar symptoms were being reported before the offense. Dr. Dudley believed

that “the things that [Petitioner] told me were essentially true.” However, with regard to

the incident in which several of Petitioner’s friends died in a car crash, Dr. Dudley

acknowledged that Petitioner told him that the friends had asked him to accompany them

joyriding and that he witnessed the scene of the crash even though records indicated that

Petitioner may have actually been in juvenile detention at the time. Dr. Dudley

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acknowledged that he did not interview anyone other than Petitioner and that the all of the

documents and interview summaries he reviewed were provided by the post-conviction

defense team.

Dr. Dudley testified that it was unlikely that Petitioner’s grandmother’s

schizophrenia was caused by syphilis because she had a long history of psychotic

symptoms that predated her other health problems as well as a family history of

schizophrenia. Dr. Dudley testified that Petitioner’s biological father was a juvenile at the

time he fathered Petitioner. Although Dr. Dudley testified that Petitioner’s birth records

were consistent with gestational difficulties and a lack of prenatal care, he did not know

the medical significance of the notation that Petitioner’s sagittal suture was open.

Dr. Dudley testified that when Petitioner first began to use marijuana, he discovered

that it helped alleviate some of the fear and anxiety associated with his trauma, which

rapidly lead to his abuse of marijuana. Additionally, Petitioner grew up in an environment

in which substance abuse was common, and he may have also enjoyed the feeling of being

high. Dr. Dudley testified that someone who is “psychologically pulled together” may be

more successful in addressing a substance abuse problem “compared to individuals who

suffer from a combination of substance abuse difficulties and other psychiatric difficulties

and intellectual difficulties and a mixture of things like [Petitioner].” Dr. Dudley agreed

that it was “fair to say” that a lot of people in Memphis have substance abuse problems,

especially in “neighborhoods where there’s been considerable violence, drugs, and

poverty.” Dr. Dudley agreed that Petitioner grew up in such a neighborhood. In addition

to using marijuana continuously since the age of fourteen, Petitioner also used cocaine for

a period of time when he was sixteen, but he eventually stopped using it because he found

it made him more anxious and paranoid. As an adult, Petitioner also used various pills,

like Xanax and Lortab, and also tried methamphetamine. Petitioner did not mention to Dr.

Dudley that he was in a gang, but Dr. Dudley testified that it was not uncommon for

someone who grew up in a violent neighborhood to join a gang.

Dr. Dudley testified that he would consider depression and suicidal ideation to be

unusual, but not unheard of, in jail populations. Dr. Dudley testified that Petitioner

experienced depression and suicidal ideation both while in and out of incarceration. In Dr.

Dudley’s opinion, Petitioner was incompetent at the time of trial due to the combination of

his intellectual disability, “other psychiatric difficulties,” and the high doses of anti-

psychotic medication that he was taking. Dr. Dudley agreed that the Physician’s Desk

Reference indicated that the recommended dose of Risperdal is between 4 and 8 milligrams

per day, which Dr. Dudley testified is usually given in divided doses. Dr. Dudley testified

that in his opini

This text is long and has been trimmed here. Open the source document for the complete record.