holding defense counsel did not perform deficiently for failing to present additional mitigation witnesses at a penalty hearing where their testimony would have been cumulative to evidence already presented at the sentencing hearing
How later courts described this case
- holding defense counsel did not perform deficiently for failing to present additional mitigation witnesses at a penalty hearing where their testimony would have been cumulative to evidence already presented at the sentencing hearing
- providing that when examining factual issues, this Court will not re-weigh or re-evaluate the evidence, but will defer to the post-conviction court’s findings with regard to the credibility of witnesses or the weight of their testimony
- observing that in order to establish ineffective assistance of counsel in a claim involving a guilty plea, a petitioner must establish that but for the deficiency, he would have proceeded to trial rather than entering the guilty plea
- stating that “a defendant’s statements or confessions do not eliminate counsel’s duty to investigate”
Written by the judges who cited it.
The opinion
ADOLPHO A. BIRCH, JR., J.,
concurring and dissenting.
I fully concur in the conclusion of the majority that Nichols’s convictions should be affirmed. To the extent, however, that the petitioner’s allegations of ineffective assistance of counsel may be interpreted to include the failure to object to the method of proportionality review, I continue to adhere to the views expressed in a long line of dissents beginning with State v. Chalmers, 28 S.W.3d 913, 923-25 (Tenn.2000) (Birch, J., concurring and dissenting), and elaborated upon in State v. Godsey, 60 S.W.3d 759, 793-800 (Tenn.2001) (Birch, J., concurring and dissenting). Those dissents suggest, essentially, that the comparative proportionality review protocol currently embraced by the majority is inadequate to shield defendants from the arbitrary and disproportionate imposition of the death penalty. See Tenn.Code Ann. § 39-13-206(e) (1997). Accordingly, while I concur in the affirmance of Nichols’s convictions, I cannot, for the reasons above stated, concur in the imposition of the death penalty in this case.