Opposition Brief — Richard Lloyd Odom, Petitioner v. Tennessee
Supreme Court briefAug 16, 2018
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NO. 18-5231
IN THE
SUPREME COURT OF THE UNITED STATES
RICHARD LLOYD ODOM,
Petitioner,
v.
STATE OF TENNESSEE,
Respondent.
ON PETITION FOR WRIT OF CERTIORARI
TO THE TENNESSEE COURT OF CRIMINAL APPEALS
RESPONDENT’S BRIEF IN OPPOSITION
HERBERT H. SLATERY III
Attorney General & Reporter
ANDRÉE SOPHIA BLUMSTEIN
Solicitor General
ZACHARY T. HINKLE
Assistant Attorney General
P.O. Box 20207
Nashville, Tennessee 37202
615-532-0986
Zachary.Hinkle@ag.tn.gov
Counsel of Record for Respondent
CAPITAL CASE
QUESTIONS PRESENTED
I
When a court considers a claim that counsel was ineffective under Strickland v.
Washington, 466 U.S. 668 (1984), for failing to offer certain mitigation proof during a capital
sentencing proceeding, may the court consider the lack of a nexus between this proof and the
offense conduct when weighing the evidence as a part of the prejudice analysis?
II
Did the Tennessee Court of Criminal Appeals properly apply Strickland when it found that
trial counsel provided effective assistance of counsel in choosing not to present evidence of
Petitioner’s neurological deficiency during the capital sentencing hearing because it would
undercut the mitigation strategy that Petitioner did not pose a risk of future dangerousness and
might discredit other mitigation proof?
i
TABLE OF CONTENTS
QUESTIONS PRESENTED………………………………………………………………………i
OPINION BELOW ......................................................................................................................... 1
STATEMENT OF THE CASE....................................................................................................... 1
REASONS WHY THE PETITION SHOULD BE DENIED ......................................................... 7
I. The Nexus Issue Is Irrelevant to the Outcome of Petitioner’s Claim and Was Not
Adequately Presented to the Court of Criminal Appeals. ........................................................... 7
A. The Court of Criminal Appeals only addressed prejudice in dictum when considering
Petitioner’s neurological deficiency evidence. ................................................................. 7
B. The nexus issue was not adequately presented to the Court of Criminal Appeals. .......... 9
II.
Petitioner Has Not Identified a Genuine Split of Authority. ............................................. 10
III. Petitioner Identifies No Issue Worthy of Review in the Strickland Analysis of the Court
of Criminal Appeals. ................................................................................................................. 13
CONCLUSION ............................................................................................................................. 17
CERTIFICATE OF SERVICE ..................................................................................................... 18
ii
TABLE OF AUTHORITIES
CASES
Barwick v. Sec’y, Fla. Dep’t of Corr.,
794 F.3d 1239 (11th Cir. 2015) ...............................................................................................12
Black v. Cutter Labs.,
351 U.S. 292 (1956) ...................................................................................................................8
California v. Rooney,
483 U.S. 307 (1987) ...................................................................................................................8
Camreta v. Greene,
563 U.S. 692 (2011) ...................................................................................................................8
Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc.,
467 U.S. 837 (1984) ...................................................................................................................8
In re Crew,
254 P.3d 320 (Cal. 2011) .........................................................................................................11
Eddings v. Oklahoma,
455 U.S. 104 (1982) .................................................................................................................10
Hannon v. Sec’y, Dep’t of Corr.,
562 F.3d 1146 (11th Cir. 2009) ...............................................................................................11
Hedlund v. Ryan,
854 F.3d 557 (9th Cir. 2017) .......................................................................................10, 11, 12
Howell v. Mississippi,
543 U.S. 440 (2005) ...................................................................................................................9
Hutchinson v. State,
150 S.W.3d 292 (Mo. 2004) ..............................................................................................12, 13
Interstate Circuit, Inc. v. City of Dallas,
390 U.S. 676 (1968) ...................................................................................................................9
Lambright v. Schriro,
490 F.3d 1103 (9th Cir. 2007) .................................................................................................12
Lockett v. Ohio,
438 U.S. 586 (1978) .................................................................................................................10
Mann v. Ryan,
828 F.3d 1143 (9th Cir. 2016) .................................................................................................12
iii
McKinney v. Ryan,
813 F.3d 798 (9th Cir. 2015) ...................................................................................................11
Michigan-Wisconsin Pipe Line Co. v. Calvert,
347 U.S. 157 (1954) ...................................................................................................................9
Odom v. State (Odom IV),
No. W2015-01742-CCA-R3-PD, 2017 WL 4764908,
(Tenn. Crim. App. Oct. 20, 2017) .................................................................................... passim
Ploof v. State,
75 A.3d 840 (Del. 2013) ..........................................................................................................11
Porter v. McCollum,
558 U.S. 30 (2009) ...................................................................................................................13
Poyson v. Ryan,
879 F.3d 875 (9th Cir. 2018) ...................................................................................................12
Robinson v. Schriro,
595 F.3d 1086 (9th Cir. 2010) .................................................................................................12
Sears v. Upton,
561 U.S. 945 (2010) .................................................................................................................13
Smith v. Texas,
543 U.S. 37 (2004) ...................................................................................................................10
State v. Dunlap,
313 P.3d 1 (Idaho 2013)...........................................................................................................12
State v. Newell,
132 P.3d 833 (Ariz. 2006)........................................................................................................11
State v. Odom (Odom I),
928 S.W.2d 18 (Tenn. 1996) ......................................................................................................1
State v. Odom (Odom II),
137 S.W.3d 572 (Tenn. 2004) ....................................................................................................1
State v. Odom (Odom III),
336 S.W.3d 541 (Tenn. 2011) ............................................................................................1, 2, 3
State v. Payne,
199 P.3d 123 (Idaho 2008).......................................................................................................12
State v. Rowland,
520 S.W.3d 542 (Tenn. 2017)..................................................................................................10
iv
Strickland v. Washington,
466 U.S. 668 (1984) ......................................................................................................... passim
Sullivan v. Texas,
207 U.S. 416 (1908) ...................................................................................................................9
Tennard v. Dretke,
542 U.S. 274 (2004) ...........................................................................................................10, 12
Wiggins v. Smith,
539 U.S. 510 (2003) ...........................................................................................................11, 13
Williams v. Taylor,
529 U.S. 362 (2000) .................................................................................................................14
STATUTES
28 U.S.C. § 1257(a) .....................................................................................................................1, 9
Tenn. Code Ann. § 39-13-204 ........................................................................................................3
OTHER AUTHORITIES
Sup. Ct. R. 10 .................................................................................................................................13
Sup. Ct. R. 14(1)(g)(i) ......................................................................................................................9
Tenn. R. App. P. 11........................................................................................................................10
v
OPINION BELOW
The opinion of the Tennessee Court of Criminal Appeals affirming the denial of a petition
for post-conviction relief is unreported but may be found at Odom v. State, No. W2015-01742CCA-R3-PD, 2017 WL 4764908 (Tenn. Crim. App. Oct. 20, 2017).
STATEMENT OF JURISDICTION
The opinion of the Tennessee Court of Criminal Appeals was filed on October 20, 2017.1
(Resp. App. A.) Petitioner filed an application for permission to appeal to the Tennessee Supreme
Court, which the court denied on April 23, 2018. (Pet. App. B.) Petitioner invokes the jurisdiction
of this Court pursuant to 28 U.S.C. § 1257(a).2 (Pet. 1.)
STATEMENT OF THE CASE
In 1991, Petitioner raped and murdered an elderly woman in a parking garage in Memphis,
Tennessee. A jury later convicted Petitioner of first-degree murder during the perpetration of rape
and sentenced him to death. State v. Odom (Odom I), 928 S.W.2d 18, 20-22 (Tenn. 1996). The
Tennessee Supreme Court affirmed the conviction but reversed the death sentence, holding in part
that the evidence was insufficient to support two of the aggravating circumstances. Id. at 26-27,
32-33. On remand, a jury sentenced the defendant to death a second time. State v. Odom (Odom
II), 137 S.W.3d 572, 575 (Tenn. 2004). The Court of Criminal Appeals affirmed the sentence, but
the Tennessee Supreme Court again reversed, finding that evidence of a prior violent felony
offense had been improperly admitted. Id. at 580-87.
In 2007, Petitioner received a third sentencing hearing. State v. Odom (Odom III), 336
Petitioner attached an appendix to his petition, which purports to include a copy of the opinion of the Court of
Criminal Appeals. However, Petitioner attached a copy of an unrelated order of the Court of Criminal Appeals that
addresses a separate filing. A copy of the proper opinion is attached to this response as Appendix A.
1
On the cover of the petition, Petitioner notes that he seeks review from the Tennessee Supreme Court. However, the
final judgment at issue is the judgment of the Court of Criminal Appeals, which Petitioner appears to acknowledge in
the body of the petition. (Pet., at 2-3; see also infra Section I, Subsection B.)
2
1
S.W.3d 541, 549 (Tenn. 2011). Based on the law applicable at the time of the offense, the jury
had two sentencing options: death or life with parole after 25 years’ imprisonment. Id. at 567.
Because Petitioner had already served 17 years at the time of the hearing, he would be releaseeligible after only eight more years if the jury imposed a life sentence.
Id. Given these
circumstances, the defense team presented testimony from a mitigation specialist, who was
qualified as an expert in parole policy and procedure, that Petitioner’s chance for release was “close
to impossible.” Id. at 552. Further, she and another witness explained, in the event he received
parole in Tennessee, Petitioner would be returned to Mississippi to serve out his life sentence for
a prior murder conviction. Id. at 552-53.
The defense team also stressed Petitioner’s successful record while in prison. Id. at 552.
During his Tennessee incarceration, he had an “extremely low number” of write-ups and his record
was “very positive.” Id. Many witnesses from the prison, including instructors, testified positively
about their experiences with Petitioner. Id. at 554. Additionally, Dr. Joseph Angelillo, a clinical
psychologist, opined that the structured environment of the Tennessee prison “behaviorally
defined” Petitioner’s ability to engage in “constructive activities,” and he would continue to thrive
if given a life sentence. Id. at 553.
Finally, the defense team presented proof about the petitioner’s abusive and neglected
upbringing, including limited evidence about his mental health. Both the mitigation specialist and
Petitioner’s family testified about the physical and sexual abuse he suffered as a child and young
man and how it affected him. Id. at 551, 553-54. Dr. Angelillo believed that Petitioner did not
receive sufficient mental health treatment as a child, although he could not arrive at a specific
diagnosis. Id. at 553. The physical and sexual abuse Petitioner suffered, combined with the
rejection he had experienced as a child and the lack of adequate mental health treatment, “all had
2
a profound effect on his development.” Id. In presenting this theory, the defense team was able
to discuss Petitioner’s past diagnoses of potential brain damage, weaving it into their larger theory
that Petitioner had been failed by the system.3 Id. at 552-53; Odom v. State (Odom IV), No.
W2015-01742-CCA-R3-PD, 2017 WL 4764908, at *29, *31 (Tenn. Crim. App. Oct. 20, 2017).
After receiving evidence, the jury sentenced Petitioner to death, relying upon two
aggravating circumstances: that Petitioner had previously been convicted of a prior violent felony
and that the murder was committed during an attempt to commit robbery. Tenn. Code Ann.
§ 39-13-204(i)(2) & (7). The Tennessee Supreme Court affirmed the jury’s imposition of a death
sentence. Odom III, 336 S.W.3d at 577.
In 2012, Petitioner filed a pro se petition for post-conviction relief, claiming ineffective
assistance of counsel and other constitutional violations. (Pet. App. C, at 15a-17a.) Relevant here,
Petitioner claimed his 2007 trial counsel were ineffective because they failed to investigate, obtain,
and present evidence of “neurological and cognitive impairments.” Odom IV, 2017 WL 4764908,
at *24.
Petitioner presented evidence from two mental health professionals, a clinical
neuropsychologist and an expert in neurology and psychiatry, who testified that Petitioner suffered
asymmetries in cognition and deficits in frontal lobe functioning likely due to brain damage, which
was established by a neurological examination. Id. at *12, *14-15. The defense team explained
that they were aware of Petitioner’s history of neurological deficiency, but they decided evidence
of such deficiency would undercut their theory that Petitioner posed little risk of future
dangerousness and conflicted with a previous evaluation of Petitioner. See id. at *7-11.
The post-conviction court denied the petition. (Pet. App. C.) As to this issue, the court
noted that trial counsel considered hiring a neurologist but decided against it in part because the
Since there was at least limited discussion of brain damage during the sentencing hearing, Petitioner is wrong when
he claims no such evidence was presented. (Pet., at 4.)
3
3
defense team believed this proof conflicted with their theory that Petitioner did not pose a risk of
future dangerousness. (Pet. App. C., at 52a-54a.) Moreover, the defense team had the benefit of
past strategies from Petitioner’s previous two sentencing hearings including “serotonin levels[ and]
brain fingerprinting,” which had not been effective. (Pet. App. C, at 53a.)
Further, the court noted, counsel were aware that any neurological proof would conflict
with a past evaluation Petitioner underwent while incarcerated in Mississippi, which revealed no
“organicity” or “neurological deficits.” (Pet. App. C, at 52a-53a.) Counsel was concerned
conflicting proof could look “bought and paid for” to the jury. (Pet. App. C, at 53a.) This
evaluation also contained difficult statements from Petitioner about a prior murder, including that
he shot the victim “for the joy of it” and felt no sorrow about it. (Pet. App. C. at, 52a.)
The court found that trial counsels’ “decision not to pursue a neurological evaluation of
petitioner or a mitigation theory based upon cognitive impairment was made after extensive
investigation into petitioner’s background and social history and considerable discussions about
the viability of various strategies.” (Pet. App. C, at 53a.) The court noted the mitigation
investigator testified about her “extensive investigation,” which included investigation she had
done during the second sentencing proceeding. (Pet. App. C, at 53a-54a.) In fact, she described
the “investigation and presentation of mitigation in petitioner’s case to be the most th[o]rough she
had ever prepared or presented.” (Pet. App. C, at 54a.) It also appeared counsel were aware of
“all the many prior examinations of petitioner and various diagnosis of the different reviewing
mental health and medical professionals.” (Pet. App. C, at 53a.) Because it found no deficiency,
the post-conviction court did not address prejudice. (Pet. App. C, at 52a-54a.)
On appeal, Petitioner again argued that counsel should have performed more extensive
investigation, including hiring a neuropsychologist. Petitioner also addressed prejudice, despite
4
the post-conviction court’s focus on deficiency, although he made no mention of any “nexus”
issue. In his reply brief, Petitioner noted that mitigating evidence need not have any nexus to the
offense conduct to be relevant, but he did not argue that the court was precluded from considering
the absence of a nexus in its prejudice analysis. (Resp. App. C, at 99-100.)
The Court of Criminal Appeals affirmed the denial of post-conviction relief. Relevant to
this issue, the court found that “[c]ounsels’ decision not to pursue a strictly mental health style of
defense in mitigation was developed after they thoroughly investigated the Petitioner’s
background.” Odom IV, 2017 WL 4764908, at *28. The court identified three principal reasons
counsel chose not to present this evidence: they did not want to provide the State ammunition in
the form of Petitioner’s prior statements and diagnoses; the jury might view their expert’s opinion
as “bought and paid for” in light of contradictory mental health evaluations; and counsel did not
want to present proof that “Petitioner could not control his impulses because of his brain damage
and his brain damage would not prevent him from attempting escape in the future” because it
“contradict[ed] their theory that the Petitioner had become well-adjusted in prison, was viewed as
a model inmate, and did not pose any future danger in prison.” Id. On the other hand, the court
noted, counsel pursued a reasonable strategy focused upon Petitioner’s lack of future
dangerousness and the neglect and abuse he had suffered throughout his life. Id. at *29-30.
Counsel pursued this strategy by presenting testimony from Petitioner’s family members as well
as testimony about Petitioner’s experience in the Mississippi prison system. Id.
Although concluding that Petitioner had not established deficient performance, the court
“nevertheless” went on to discuss prejudice. Id at *30. In post-conviction, Petitioner merely
“presented more detailed evidence of his brain damage.” Id. at *31. While neither of Petitioner’s
two mental health experts could connect Petitioner’s brain damage to his actions at the time of the
5
murder, each of them testified that Petitioner lacked capacity to control his impulses, which trial
counsel were “keen on keeping from the jury.” Id. Trial counsels’ mitigation theory “would have
been hampered if mental health experts had testified that the Petitioner lacked the ability to control
his actions.” Id. On the other hand, trial counsel were able to reference this brain damage before
the jury without also establishing that Petitioner presented a risk of future dangerousness. Id.
Finally, the court concluded that the two aggravating circumstances were “firmly
established by the evidence.” Id. (quoting Odom III, 336 S.W.3d at 572). When considering the
proof offered at the resentencing hearing, “the additional post-conviction evidence would not have
affected the jury’s verdict.” Id.
Petitioner filed a petition for rehearing, which the Court of Criminal Appeals denied.
Petitioner then filed an application for permission to appeal to the Tennessee Supreme Court in
which he primarily focused upon “Adverse Childhood Experiences” and how they affect
development. (Resp. App. C, at 142-75.) Petitioner also argued, however, that the court erred in
“requiring” a nexus between the mitigation proof and the offense conduct. (Resp. App. C, at 17577.) The Tennessee Supreme Court denied review. (Pet. App. B, 5a.)
Petitioner now seeks a writ of certiorari.
6
REASONS WHY THE PETITION SHOULD BE DENIED
The Court should deny review. First, this case is a poor vehicle to address Petitioner’s
primary issue, which is whether a court may consider the lack of a nexus between proffered
mitigation proof and the offense conduct when assessing prejudice under Strickland v.
Washington, 466 U.S. 668 (1984). The Court of Criminal Appeals only addressed the prejudice
prong in dictum, and the nexus issue was not adequately presented to that court. Second, Petitioner
has not identified a genuine split of authority for this Court to resolve, as courts generally agree
that a sentencer or court may consider the lack of a nexus when weighing mitigation evidence.
Third, as to Petitioner’s general Strickland claim, the Court of Criminal Appeals properly stated
the applicable rule of law and did not err in applying it.
I.
The Nexus Issue Is Irrelevant to the Outcome of Petitioner’s Claim and Was Not
Adequately Presented to the Court of Criminal Appeals.
The Court should deny review because this case is not a good vehicle to address the nexus
issue. When considering counsels’ decision not to present proof of neurological deficiency, the
Court of Criminal Appeals discussed prejudice only in dictum, as the post-conviction court did not
address prejudice on this issue at all. Moreover, Petitioner did not adequately present this nexus
issue to the Court of Criminal Appeals but raised it for the first time in his unsuccessful application
for discretionary review to the Tennessee Supreme Court.
A.
The Court of Criminal Appeals only addressed prejudice in dictum when
considering Petitioner’s neurological deficiency evidence.
In Strickland, the Court established the now-familiar two-part test for assessing an
ineffective assistance of counsel claim. To prevail on a claim, a petitioner must demonstrate (1)
deficient performance, and (2) he must show prejudice, which is “a reasonable probability that,
absent the errors, the sentencer—including an appellate court, to the extent it independently
7
reweighs the evidence—would have concluded that the balance of aggravating and mitigating
circumstances did not warrant death.” Id. at 687-88, 695. However, the Court did not require that
each of these prongs be considered by the reviewing court or that they be considered in order. Id.
at 697.
In resolving Petitioner’s claim regarding neurological deficiency, the post-conviction court
in this case held only that counsel did not perform deficiently. (Pet. App. C, at 52a-54a.) The
court did not address the prejudice prong and therefore never discussed a lack of any “nexus”
between the mitigation proof and the offense conduct. (Pet. App. C, at 52a-54a.)
The Court of Criminal Appeals, following the post-conviction court’s lead, considered at
length Petitioner’s deficiency argument, ultimately concluding “that counsel’s performance in the
presentation of mitigating evidence during the second resentencing hearing in this case was not
deficient.” Odom IV, 2017 WL 4764908, at *24-30. Although the court went on to consider
prejudice, it made clear that this analysis was not necessary to its decision. See id. at *30
(“Although we have concluded that the Petitioner has not satisfied the first prong of the Strickland
standard, we will nevertheless discuss whether counsel’s failure to present evidence similar to that
introduced during post-conviction would have resulted in any prejudice.” (emphasis added)).
Accordingly, the only discussion of prejudice below was unnecessary to the resolution of
Petitioner’s claim.
This Court “reviews judgments, not statements in opinions.” Black v. Cutter Labs., 351
U.S. 292, 297 (1956); see also California v. Rooney, 483 U.S. 307, 311 (1987) (rejecting a
prevailing party’s appeal); Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842
(1984) (“[T]his Court reviews judgments, not opinions[.]”). But see Camreta v. Greene, 563 U.S.
692, 704-08 (2011) (nevertheless addressing constitutional standards established by the
8
intermediate appellate court). Therefore, this case is a poor vehicle for review of the nexus issue
because a decision in Petitioner’s favor would have no effect on the judgment.
B.
The nexus issue was not adequately presented to the Court of Criminal
Appeals.
Nor was the nexus issue adequately raised below.
This Court may review “[f]inal
judgments or decrees rendered by the highest court of a State in which a decision could be had”
when any right “is specially set up or claimed under the Constitution [of the United States].” 28
U.S.C. § 1257(a). Under this statute and its predecessors, “this Court has almost unfailingly
refused to consider any federal-law challenge to a state-court decision unless the federal claim was
either addressed by or properly presented to the state court that rendered the decision [this Court
has] been asked to review.” Howell v. Mississippi, 543 U.S. 440, 443 (2005) (internal quotation
marks omitted).
Petitioner appears to concede he raised the nexus issue for the first time in his unsuccessful
application for permission to appeal to the Tennessee Supreme Court, in which he faulted the Court
of Criminal Appeals for “requiring” a nexus between the mitigation proof and the offense conduct.4
(Pet., at 6; Resp. App. C, at 175-77.) However, when a state supreme court declines to exercise
discretionary review over the judgment of an intermediate appellate court, the “[f]inal judgment”
susceptible to review by this Court is the judgment of the intermediate court. See 28 U.S.C. §
1257(a); Interstate Circuit, Inc. v. City of Dallas, 390 U.S. 676, 678 n.1 (1968); MichiganWisconsin Pipe Line Co. v. Calvert, 347 U.S. 157, 160 (1954); Sullivan v. Texas, 207 U.S. 416,
Before the Court of Criminal Appeals, Petitioner argued in his reply brief that mitigating evidence need not have any
nexus to the offense conduct to be relevant at the mitigation phase, but he never argued, as he does now, that a
reviewing court is precluded from considering the absence of any nexus in its prejudice analysis. (Compare Resp.
App. B, at 99-100, with Pet., at 19-20.) Nor did Petitioner identify this argument in his Statement of the Case as
required by Sup. Ct. R. 14(1)(g)(i). Moreover, Petitioner filed a petition for rehearing before the Court of Criminal
Appeals but did not challenge the court’s prejudice analysis on this point.
4
9
422 (1908).
In this case, because the Tennessee Supreme Court declined to exercise its
discretionary review under Tenn. R. App. P. 11, the final judgment subject to review is the
judgment of the Court of Criminal Appeals. This Court therefore should decline review because
Petitioner did not adequately raise this nexus issue before that court.
Moreover, non-jurisdictional issues raised for the first time in a Tenn. R. App. P. 11
application are typically considered waived. See State v. Rowland, 520 S.W.3d 542, 545 (Tenn.
2017). Thus, this issue was not properly raised before any court below.
II.
Petitioner Has Not Identified a Genuine Split of Authority.
Petitioner also has failed to establish a genuine split of authority regarding the use of a
“nexus” test in a Strickland prejudice analysis. Rather, the cases he cites establish that a court may
consider the absence of a nexus between mitigation proof and the offense conduct when weighing
the evidence during its prejudice analysis, although it may not disregard the evidence on that basis.
A sentencer may not “refuse to consider, as a matter of law, any relevant mitigating
evidence.” Eddings v. Oklahoma, 455 U.S. 104, 114 (1982) (emphasis omitted); see also Lockett
v. Ohio, 438 U.S. 586, 604 (1978). Accordingly, a State may not exclude mitigating evidence
simply because there is no causal nexus between that evidence and the crime. Tennard v. Dretke,
542 U.S. 274, 285-88 (2004); see also Smith v. Texas, 543 U.S. 37, 44 (2004).
The sentencer may, however, “determine the weight to be given relevant mitigating
evidence.” Eddings, 455 U.S. at 114-15. Thus, a sentencer may consider the absence of a causal
nexus when assessing the weight of the evidence. Hedlund v. Ryan, 854 F.3d 557, 587 n.23 (9th
Cir. 2017) (“[A] court may consider causal nexus in assessing the weight of mitigating evidence,
but not in assessing its relevance.” (emphasis in original)).
The weight of the mitigating evidence is also the primary focus of Strickland’s prejudice
10
inquiry in the mitigation context, where a defendant must prove “there is a reasonable probability
that, absent the errors, the sentencer . . . would have concluded that the balance of aggravating and
mitigating circumstances did not warrant death.” Strickland, 466 U.S. at 695. A reviewing court
therefore “reweigh[s] the evidence in aggravation against the totality of available mitigating
evidence.” Wiggins v. Smith, 539 U.S. 510, 534 (2003). Because a sentencer may consider the
lack of a nexus in weighing mitigation evidence, a court may also consider the lack of a nexus
when deciding the prejudice prong of a Strickland claim.
As Petitioner acknowledges, a number of courts have explicitly or implicitly held as much.
E.g., Hannon v. Sec’y, Dep’t of Corr., 562 F.3d 1146, 1157 (11th Cir. 2009) (noting the proof did
not “establish any nexus” between the petitioner’s mental impairment and his offenses); Ploof v.
State, 75 A.3d 840, 864 n.105 (Del. 2013) (noting there is “no requirement that a causal nexus
exist,” but “mitigating evidence that provides an explanation for a defendant’s behavior is more
powerful than evidence that does not provide an explanation”); In re Crew, 254 P.3d 320, 339
(Cal. 2011) (holding mitigation proof may have “elicited some jury sympathy,” but there was no
prejudice in part because there was “no causal connection” to the offense); State v. Newell, 132
P.3d 833, 849 (Ariz. 2006) (“[T]he failure to establish such a causal connection may be considered
in assessing the quality and strength of the mitigation evidence.”).5
Petitioner argues that, contrary to these cases, both the Ninth Circuit and the Missouri
Supreme Court preclude courts from considering the lack of a nexus at all. But the Ninth Circuit
has held repeatedly that a court may consider the absence of any nexus in weighing mitigation
Petitioner argues that the Ninth Circuit rejected this distinction when it was drawn by the Arizona Supreme Court in
Newell. To the contrary, the Ninth Circuit has held that Newell properly recognized that a court may consider the
absence of a nexus when assessing the weight of mitigating evidence. Hedlund, 854 F.3d at 587 n.23 (noting that the
Arizona Supreme Court “correctly” held as much in Newell); McKinney v. Ryan, 813 F.3d 798, 817-18 (9th Cir. 2015)
(citing Newell as a “proper[]” statement of the rule).
5
11
proof. E.g., Poyson v. Ryan, 879 F.3d 875, 888 (9th Cir. 2018) (“The sentencer may, however,
consider causal nexus . . . as a factor in determining the weight or significance of mitigating
evidence.” (internal quotation marks omitted)); Hedlund, 854 F.3d at 587 n.23. Moreover, the
Ninth Circuit has applied this principle to the prejudice prong of a Strickland analysis. See Mann
v. Ryan, 828 F.3d 1143, 1159-60 (9th Cir. 2016) (holding that it was clear the court did not exclude
mitigating evidence due to the lack of any nexus). But see Robinson v. Schriro, 595 F.3d 1086,
1112 (9th Cir. 2010) (holding that the district court erred in relying upon the absence of a nexus to
assign evidence “minimal” weight).
The Ninth Circuit case upon which Petitioner heavily relies, Lambright v. Schriro, 490
F.3d 1103 (9th Cir. 2007), does not hold otherwise. The district court in Lambright “disregarded
virtually all of the mitigating evidence that [the petitioner] presented at the evidentiary hearing on
the basis that it had no ‘explanatory nexus’ to the crime,” “flatly rejecting the majority of the
mitigating evidence” on that basis. Id. at 1114-15. This conflicted with Tennard because it was
“apparent from the district court’s order that it either did not consider mitigating any evidence
without an explicit nexus to the crime, or that it gave such evidence de minimus weight.” Id. at
1115. Thus, Lambright establishes only that evidence must not be disregarded due to the absence
of any explanatory nexus to the crime, as other courts have held. E.g., Barwick v. Sec’y, Fla. Dep’t
of Corr., 794 F.3d 1239, 1256 (11th Cir. 2015).
The same is true for Hutchinson v. State, 150 S.W.3d 292 (Mo. 2004), abrogated on other
grounds by Mallow v. State, 439 S.W.3d 764, 770 n.3 (Mo. 2014), the only other case Petitioner
cites for the proposition that a nexus analysis is precluded in this context.6 In Hutchinson, the trial
To the extent Petitioner relies on the Idaho Supreme Court’s decision in State v. Payne, 199 P.3d 123 (Idaho 2008),
for this proposition as well, his reliance is similarly misplaced. The Idaho Supreme Court has recognized that a
sentencer may consider the absence of a nexus when weighing mitigation evidence. See State v. Dunlap, 313 P.3d 1,
28 (Idaho 2013) (rejecting the defendant’s argument that the prosecutor committed misconduct when urging the jury
6
12
court held that some mental health evidence “would be irrelevant because it was remote in time
from the murders,” and a psychiatrist “could not provide any opinion regarding [the petitioner’s]
state of mind at the time of the crime.” Id. at 305. Similarly, the trial court rejected proposed
testimony from the petitioner’s family because they “were unfamiliar with [his] recent activities
so their testimony was not relevant.” Id. (emphasis omitted). The Missouri Supreme Court found
error on both points, noting that “[i]mpaired intellectual functioning has mitigating dimension
beyond the impact it has on the ability to act deliberately,” and “a defendant need not show a nexus
between his mental capacity and the crime to admit such mitigating evidence.” Id. (emphasis
added) (citing Tennard, 542 U.S. at 288-89). Given the trial court’s disregard of the evidence,
Hutchinson did not establish that a court in Missouri is precluded from considering a nexus at all
during the prejudice analysis.
Accordingly, Petitioner has failed to establish any genuine split of authority, and the Court
should deny review.
III.
Petitioner Identifies No Issue Worthy of Review in the Strickland Analysis of the
Court of Criminal Appeals.
Petitioner also urges the Court to grant review because, in his estimation, the Court of
Criminal Appeals got its Strickland analysis wrong. But a petition for writ of certiorari will be
“rarely granted when the asserted error consists of . . . the misapplication of a properly stated rule
of law.” Sup. Ct. R. 10. For this reason alone, the petition should be denied.
The Court of Criminal Appeals properly cited to Strickland and accurately described the
legal standard. Odom IV, 2017 WL 4764908, at *16-18, *27-30. The court also cited to and
applied relevant capital mitigation cases of this Court, including Sears v. Upton, 561 U.S. 945
(2010), Porter v. McCollum, 558 U.S. 30 (2009), Wiggins v. Smith, 539 U.S. 510 (2003), and
to give mitigation proof little weight due to the absence of a nexus).
13
Williams v. Taylor, 529 U.S. 362 (2000). Odom IV, 2017 WL 4764908, at *27, *30.
Nor has Petitioner established any error by the Court of Criminal Appeals. As to deficient
performance, trial counsel in this case decided “not to pursue a strictly mental health style of
defense in mitigation . . . after they thoroughly investigated the Petitioner’s background.” Id. at
*28. Counsel noted that they were aware there was evidence of brain damage and discussed
retaining a neurologist and neuropsychologist, but they ultimately decided not to pursue this
strategy. Id. at *7, *9-10. Evidence of neurological deficiency, in counsels’ view, would have
undercut their theory that Petitioner did not pose a risk of future dangerousness. Id. at *9-11; (Pet.
App. C, at 21a-26a). Instead, counsels’ theory was that, while the system had failed Petitioner, he
was thriving in prison. Odom IV, 2017 WL 4764908, at *10-11. This strategy was driven primarily
by the jury’s sentencing options: death or life with parole, which would render Petitioner release
eligible merely eight years after the resentencing hearing. Id. at *8, *10.
Counsel were also concerned that evidence of neurological deficiency or brain damage
would discredit their larger mitigation strategy. A 1978 report from a Mississippi State Hospital
noted that psychological testing of Petitioner “did not reveal any signs of organi[c]ity or a
neurological deficit nor did the neurological examination.” Id. at *9 (alteration omitted).7 In light
of this report, counsel feared that any new neurological evidence they presented would look
“bought and paid for” to the jury. Id. at *9-10.
Further complicating the matter, Petitioner’s past evaluations risked presenting difficult
diagnoses to the jury as well as harmful prior statements of Petitioner. The 1978 report concluded
In its recitation of the facts, the Court of Criminal Appeals appears to conflate some of the language and diagnoses
from a 1974 evaluation by Dr. Daniel Cox, which did find mild neurological deficiency, with the 1978 report from
the Mississippi State Hospital, which did not. Compare Odom IV, 2017 WL 4764908, at *9, with (Pet. App. C, at
20a-21a, 52a), and (P.C. Vol. VI, Ex. 12, p. 21; Ex. 13, p. 12). However, the 1978 report also refers in part to Dr.
Cox’s report, quoting portions of it. (P.C. Vol VI, Ex. 13, p. 12.)
7
14
Petitioner had antisocial personality disorder, which also undercut counsels’ future dangerousness
argument. Id. at *26-27, *29. Moreover, included within the prior records was Petitioner’s
indication to prison authorities that he may have committed a prior murder “for the joy of it,” and
he had no “feelings” or “sorrow” related to that murder. Id. at *25.
Assessing that these statements and diagnosis would be difficult to overcome, Petitioner’s
counsel submitted only limited proof about Petitioner’s potential brain damage, which Dr.
Angelillo discussed. Id. at *29. But counsel focused this proof on their larger theory that the
system had failed Petitioner by providing him inadequate treatment, and he now was thriving in
prison. Id. In pursuing this strategy, the defense team was able to present proof to the jury that
Petitioner had limitations without also sacrificing their future dangerousness argument. See id. at
*31.
The Court of Criminal Appeals also properly concluded that Petitioner had not established
any prejudice. The court noted that, while Petitioner offered more detailed evidence of his brain
damage than had already been presented to the sentencing jury, his experts could not connect the
brain damage to his actions at the time of the murder. Id. at *31. Despite this gulf, each of his
post-conviction experts discussed Petitioner’s potential difficulty controlling his impulses, which
was proof trial counsel were “keen on keeping from the jury.” Id. On the other hand, trial counsel
had been able to reference this brain damage without establishing that Petitioner presented a risk
of future dangerousness. Id. The court, after discussing the proffered mitigation proof, also noted
that the two aggravating circumstances were “firmly established by the evidence” and concluded
that “the additional post-conviction evidence would not have affected the jury’s verdict.”8 Id.
Petitioner is wrong that the Court of Criminal Appeals did not discuss the nexus issue in the context of the weight of
the evidence. (Pet., at 19.) At the outset of its analysis, the court recognized that the inquiry in this context is whether
“the sentencer would have concluded that the balance of the aggravating and mitigating circumstances did not warrant
death.” Odom IV, 2017 WL 4764908, at *17 (internal quotation marks and alteration omitted). Nor did the court
8
15
Because Petitioner has identified no issue justifying review, nor any error by the Court of
Criminal Appeals, the petition should be denied.
disregard the evidence. Id. at *30 (“[A] defendant’s background, character, and mental condition are unquestionably
significant.”). The court then considered the value of the new mitigation evidence in the context of the evidence
presented at the sentencing hearing and the strength of the aggravating factors. Id. at *31.
16
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted,
HERBERT H. SLATERY III
Attorney General & Reporter
ANDRÉE SOPHIA BLUMSTEIN
Solicitor General
s/ Zachary T. Hinkle
ZACHARY T. HINKLE
Assistant Attorney General
P.O. Box 20207
Nashville, Tennessee 37202
615-532-0986
Zachary.Hinkle@ag.tn.gov
Counsel of Record for Respondent
17
CERTIFICATE OF SERVICE
I hereby certify that a true and exact copy of the foregoing document has been sent by first
class mail, postage prepaid, to: Deborah Yvonne Drew, Tennessee Office of the Post-Conviction
Defender, P.O. Box 198068, Nashville, TN 37219, on this the 16th day of August, 2018. I further
certify that all parties required to be served have been served.
s/ Zachary T. Hinkle
ZACHARY T. HINKLE
Assistant Attorney General
18
APPENDIX
TABLE OF CONTENTS
Appendix A: Odom v. State, No. W2015-01742-CCA-R3-PD
(Tenn. Crim. App. Oct. 20, 2017) ............................................................................1
Appendix B: Petitioner’s Reply Brief Before the Court of Criminal Appeals ............................83
Appendix C: Petitioner’s Application for Permission to Appeal to the
Tennessee Supreme Court (Appendices Excluded) .............................................115
Appendix A
Odom v. State, No. W2015-01742-CCA-R3-PD
(Tenn. Crim. App. Oct. 20, 2017)
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
December 6, 2016 Session
RICHARD LLOYD ODOM v. STATE OF TENNESSEE
Appeal from the Criminal Court for Shelby County
No. 91-07049
Don R. Ash, Senior Judge
___________________________________
No. W2015-01742-CCA-R3-PD
___________________________________
The Petitioner, Richard Lloyd Odom, appeals the Shelby County Criminal Court’s denial
of his petition for post-conviction relief from his conviction of first degree felony murder
and resulting sentence of death. On appeal, the Petitioner contends that he received the
ineffective assistance of counsel, raises various issues related to his post-conviction
evidentiary hearing, and challenges the imposition of the death penalty. Having
discerned no error, we affirm the judgment of the post-conviction court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
NORMA MCGEE OGLE, J., delivered the opinion of the court, in which ALAN E. GLENN
and ROBERT L. HOLLOWAY, JR., JJ., joined.
Jonathan King and Kertyssa Smalls, Assistant Post-Conviction Defenders, for the
appellant, Richard Lloyd Odom.
Herbert H. Slatery III, Attorney General and Reporter; Zachary T. Hinkle, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Stephen Jones,
Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
I. Factual Background
In 1991, the Petitioner raped and stabbed to death the elderly victim in a Memphis
parking garage. A Shelby County Criminal Court Jury convicted him of first degree
felony murder committed during the perpetration of rape and sentenced him to death
based upon the finding of three aggravating circumstances: (1) the Petitioner had been
convicted of one or more prior violent felonies; (2) the murder was especially heinous,
atrocious, or cruel; and (3) the murder was committed during the Petitioner’s escape from
001
lawful custody. Tenn. Code Ann. § 39-13-204(i)(2), (5), (8).
Our supreme court affirmed the Petitioner’s conviction on direct appeal but
reversed his death sentence. State v. Odom, 928 S.W.2d 18 (Tenn. 1996). The court
concluded that the trial court erred by excluding mitigating evidence and in instructing
the jury during sentencing. Id. at 21. The court also concluded that the evidence did not
support the heinous, atrocious, or cruel and the escape aggravating circumstances. Id.
The case was remanded for a new sentencing hearing. Id.
After the second sentencing hearing, a jury again sentenced the Petitioner to death.
The jury found the existence of one aggravating circumstance: the Petitioner had been
convicted of one or more prior violent felonies. Tenn. Code Ann. § 39-13-204(i)(2). On
appeal of the death sentence, our supreme court again ordered a new sentencing hearing.
See State v. Odom, 137 S.W.3d 572 (Tenn. 2004). The court concluded that the trial
court erroneously admitted detailed and graphic evidence of the Petitioner’s prior violent
felonies. Id. at 575.
At the conclusion of the third sentencing hearing, a jury again sentenced the
Petitioner to death. The jury found the existence of two aggravating circumstances: (1)
the Petitioner had been convicted of one or more prior violent felonies, and (2) the
murder was committed during the commission of a robbery. Tenn. Code Ann. § 39-13204(i)(2), (7). Our supreme court affirmed the death sentence on appeal. See State v.
Odom, 336 S.W.3d 541 (Tenn. 2011).
Thereafter, the Petitioner timely filed a petition seeking post-conviction relief.
The Office of the Post-Conviction Defender was appointed to represent the Petitioner and
amended the petition. Following an evidentiary hearing, the post-conviction court issued
a lengthy written order denying relief. This appeal ensued.
A. Trial Evidence
The following is a summary of the evidence of the crime from the 1992 guilt
phase of the trial:
The record indicates that at approximately 1:15 p.m. on May 10,
1991, Ms. Mina Ethel Johnson left the residence of her sister, Ms. Mary
Louise Long, to keep a 2:30 p.m. appointment with her podiatrist, Stanley
Zellner, D.P.M. She agreed to purchase a few groceries while she was out.
Johnson had not returned at 5 p.m.; this delay prompted Long to call
Zellner. He told Long that Johnson had not kept her appointment. As a
result of a subsequent call from Long, Zellner agreed to return to his office
and look for Johnson’s car in the parking garage. He located her car in the
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parking garage and observed her body inside. He went immediately to the
Union Avenue police precinct and notified officers.
Investigating officers found Johnson’s body on the rear floorboard of
her car with her face down in the back seat. Her dress was up over her
back, and an undergarment was around her ankles. One of several latent
fingerprints lifted from the “left rear seat belt fastener” of Johnson’s car
matched a fingerprint belonging to the defendant, Richard Odom, alias Otis
Smith.
The medical examiner testified that Johnson had suffered multiple
stab wounds to the body, including penetrating wounds to the heart, lung,
and liver. These wounds caused internal bleeding and, ultimately, death.
The medical examiner noted “defensive” wounds on her hands. Further
examination revealed a tear in the vaginal wall and the presence of semen
inside the vagina. In the medical examiner’s opinion, death was neither
instantaneous nor immediate to the wounds but had occurred “rather
quickly.”
Three days after the incident, Sergeant Ronnie McWilliams of the
Homicide Unit, Memphis Police Department, arrested the defendant. As a
result of a search incident to arrest, McWilliams confiscated a large, open,
lock-blade knife from the defendant. When they arrived at the homicide
office, McWilliams told the defendant of the charges against him and read
his Miranda rights to him. The defendant executed a “Waiver of Rights”
form, signing “Otis Smith.” A short time later he acknowledged having
identified himself falsely, executed a second rights waiver by signing
“Richard Odom” and gave McWilliams a complete, written statement.
In his statement, the defendant said that his initial intention was to
accost Johnson and “snatch” her purse after having seen her in the parking
garage beside her car. He ran to her and grabbed her; both of them fell into
the front seat. He then pushed her over the console into the rear seat. He
“cut” Johnson with his knife. Johnson addressed him as “son.” This
appellation apparently enraged the defendant; he responded that “[he]
would give her a son.” He penetrated her vaginally; he felt that Johnson
was then still alive because she spoke to him. Beyond the first wound, the
defendant claimed not to have remembered inflicting the other stab
wounds. Thereafter, the defendant climbed into the front seat and rifled
through Johnson’s purse. He found nothing of value to him, except the car
keys, which he later discarded. He then went to an abandoned building
where he had clothing and changed clothes.
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The defendant presented no evidence at this phase of the trial. Based
on the evidence above, the jury convicted the defendant of first-degree
murder committed in the perpetration of rape.
Odom, 928 S.W.2d at 21-22.
The following is a summary of the evidence from the 2007 resentencing hearing:
At the third sentencing hearing, the State offered proof that at
approximately 1:15 p.m. on the date of her murder, the victim, a seventyeight-year-old woman, left the residence of her sister, Mary Louise Long,
for an appointment with Dr. Stanley Zellner, a podiatrist. When the victim
had not returned by 4:30 p.m., Ms. Long called Dr. Zellner, who informed
her that the victim had failed to attend her scheduled appointment. Ms.
Long first telephoned the police department to report the victim’s
disappearance and then contacted John Sullivan, a long-time acquaintance,
who agreed to help look for the victim. The two “traced the route” the
victim had to drive and found her car in a parking garage. When Sullivan
approached the vehicle, he observed the body of the victim on the floor of
the backseat. After returning to the car, he did not inform Ms. Long what
he had seen, explaining that “she was a very nervous, high strung person.”
As he drove out of the parking garage, Sullivan encountered a police car
parked on a nearby street and told the officer where he could find the body.
Sullivan then drove Ms. Long to her residence before returning to the crime
scene to provide the police with a statement.
Donna Michelle Locastro, who was employed by the Memphis
Police Department at the time of the murder, had taken Ms. Long’s missing
person’s call prior to the discovery of the body. She and her partner, Don
Crowe, first called the local hospitals, the city wrecker dispatch, and the
traffic bureau before setting out on the route the victim would have driven
to her appointment. The officers arrived at the parking garage at
approximately 8:00 p.m., shortly after Sullivan had discovered the body.
When Officer Locastro looked inside the vehicle, she noticed what
appeared to be blood on the right front passenger’s seat and a wallet
wedged between the emergency brake and the driver’s seat. She also saw
that the victim was clutching what appeared to be a check in her left hand.
She and other officers secured the area and contacted the homicide unit.
Detective Ronnie McWilliams, who was assigned to the case on the
day after the murder, testified that a fingerprint found in the vehicle led to
the identification of “Otis Smith” as a potential suspect. Three days after
the murder, “Smith” was arrested. He had in his possession an “Old
-4004
Timer’s Light Blade Knife,” which had a fold-out blade of over four inches.
During the arrest, Detective McWilliams informed “Smith” of his rights.
When he signed a waiver, however, Detective McWilliams observed that
“Smith” had started to sign another name. Later, when his true identity was
established, “Smith” signed a second waiver under the name Richard
Odom.
In a written statement to the police, the Defendant, thirty years old at
the time and unemployed, admitted killing the victim and provided details
of the crime. He stated that just before the murder, he was in the stairwell
trying to relax. When another individual entered the stairway, he entered
the garage area at the same time the victim arrived. Claiming that he
intended only to steal her purse so he could “get something to eat and catch
a nap,” he told officers that when he ran over to grab her purse, he
“somehow grabbed her arm or hand or whatever and we kind of fell back
into the car.” He stated that he always kept his knife open because of
potential danger in the area and that “somehow or another,” while
“[p]ushing the lady off of me and over the back seat . . . [,] I managed to . .
. cut her, I guess.” The Defendant also told the police that when “[t]he lady
called me, son, . . . I told her, I would give her a son [and] I went to the
back . . . seat with her. I don’t know if I stabbed her when I got in the back
seat with her or when I got back in the front seat.” The Defendant admitted
that he raped the victim and insisted that she was still alive at the time,
claiming that she remarked that she had never had sex before. He told
police that he could not remember whether he had stabbed the victim again
after the rape. The Defendant acknowledged searching the victim’s purse
and wallet, but claimed that he found nothing of value and left the items in
the car. While admitting that he took the victim’s car keys, he stated that
he threw them away as he left the parking garage. At the conclusion of his
interrogation, the Defendant remarked, “I need help mentally and
psychologically, something I can’t express just freely and openly.”
Dr. Jerry Thomas Francisco, the Shelby County Medical Examiner
at the time of the murder, conducted the autopsy. He found a stab wound at
the front of the victim’s chest and two on the right side of her body towards
the back. He also observed cuts on the victim’s right hand, which he
described as defensive wounds. The knife wound to the front of her chest
passed into the right side of the heart, causing two tears which, in turn,
caused blood to accumulate in the heart cavity and the left side of her chest.
A wound near the side penetrated her chest cavity and produced a tear in
the lung, which caused bleeding in the lung cavity. The other wound to the
side passed through her abdominal cavity into the liver, which produced
bleeding in the peritoneal cavity. Dr. Francisco, who determined that the
-5005
victim was 5 feet 6 inches in height and weighed 113 pounds, characterized
each of the three wounds as lethal. In his opinion, the victim died between
one and two hours after the wounds were inflicted. During his examination
of the body, Dr. Francisco also discovered a tear of the vagina, a wound he
described as caused by forcible penetration. Fluid samples from the
victim’s vaginal area “[r]evealed the presence of sperm and enzymes that
are present in seminal fluid.” It was Dr. Francisco’s opinion that the
vaginal injuries were likely the product of forcible rape.
The proof also established that the Defendant had been convicted of
murder in Rankin County, Mississippi in 1998, seven years after the
victim’s murder. The 1998 conviction was for a murder that had occurred
some twenty years earlier. The Defendant was sentenced to a term of life.
At the request of defense counsel, the judgment of conviction was admitted
as an exhibit so that the jury would understand that there was “a detainer in
Mississippi waiting on [the Defendant] no matter what happens in this
case.”
The defense counsel, in an effort to persuade the jury to spare the
Defendant’s life, called Glori Shettles, an investigator who was qualified as
an expert in the field of mitigation, and several other witnesses to testify.
Because Ms. Shettles had previously worked for the Tennessee Board of
Probation and Parole, she also qualified as an expert in parole procedure
and policies. She testified that her background study indicated that the
Defendant, who had one older and one younger sister, was born in 1960 to
Norman and Nellie Smith, who were twenty and seventeen years old
respectively. Ms. Shettles described his home life as “unstable” and
testified that his mother abandoned the family before the Defendant was
two-and-a-half years old. The Defendant never saw his birth mother again.
After the Defendant and his sisters were sometimes left at a daycare center
“for days,” the State intervened and the Defendant and his two sisters were
adopted by members of the Odom family. The Defendant was adopted by
Jimmy and Shirley Odom, who had three biological children at the time:
Cindy, Jimmy Jr., and Larry, ranging in ages from two to seven. When the
Defendant, at age three, joined the Odom family, he had cigarette burns on
his body. Burns on his feet were so severe that he was unable to wear
socks and shoes. About a year after adopting the Defendant, the Odoms
divorced, and his adoptive mother married Marvin Bruce, who allegedly
mistreated the Defendant and his brother Larry. According to Ms. Shettles,
Bruce used “excessive discipline” on both boys and ridiculed the Defendant
for wetting the bed by hanging his sheets and clothes outside for others to
see. Ms. Shettles also learned that when the Defendant and Larry were
bathing, Bruce [. . .] “would scrub them excessively . . . would pull and tug
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on their penis [and] call them names and make fun of them.” Her
investigation indicated the Defendant had also endured cruelty at the hands
of Shirley Odom’s mother, who never accepted the Defendant as part of the
family and treated him differently from her biological grandchildren; no
one Ms. Shettles interviewed “[had] the impression that [Shirley Odom’s
mother] cared anything for” the Defendant.
The Defendant, when an adolescent, ran away from the Bruce home
and subsequently was ordered into the Mississippi juvenile court system. A
psychological evaluation performed for the authorities there when the
Defendant was fourteen years old indicated that he suffered from impaired
insight, memory, and reasoning. He was diagnosed as having a moderate to
severe personality disturbance.
The evaluator determined that the
Defendant only read at “a beginning second grade level” and “strongly
urge[d that he not be] place[d] . . . in any academic situation.” It was
recommended that he enter a “complete evaluation program” in order to
avoid psychosis or mental deterioration to the point of institutionalization.
Thereafter, the Defendant was placed in a Caritas program, but was
found unfit to participate after thirty days. After his release in 1975, the
Defendant was returned to the juvenile authorities. He escaped to be with
his birth father, who lived one hundred and thirty miles away. Afterward,
he voluntarily returned and was placed at the Columbia Training Center.
According to Ms. Shettles, the Defendant tried to run away from Columbia
several times. Because on one occasion the Defendant was treated for “a
severe contusion of the right eye and jaw,” Ms. Shettles speculated that he
had been beaten while institutionalized there. During this period, a
psychologist, who predicted that the Defendant would be incarcerated his
whole life, described him as “brain damaged, incorrigible, antisocial,
unable to respond to usual social contingency program [sic] and a loser
with respect to probable adult adjustments.” The psychologist also
believed that the Defendant was “untreatable, unmanageable and a liability
to society for the rest of his natural life,” commenting that “if this youngster
changes for the better, it will be an act of God.” When the Defendant was
fifteen, he was conditionally released and, for a time, helped care for his
uncle, who had lost his legs to gangrene.
Ms. Shettles then addressed the Defendant’s record at Riverbend
Maximum Security Prison, where he had been incarcerated since 1992.
During the period since the victim’s murder, he had obtained his GED and
a paralegal certification. He worked as a teacher’s aide, participated in life
skills and Bible study classes, and also engaged in various arts and crafts.
He was described by a correctional officer as a hard worker, having a
-7007
positive attitude, being helpful, and treating other inmates and staff with
courtesy. The Defendant’s only infraction was in 1996, when he threw a
mop bucket towards a guard, who, while standing behind a glass barrier,
had allegedly taunted him. Ms. Shettles remarked that one write-up during
this period of time was an “extremely low number.” She also commented
that the Defendant’s prison record was “very positive,” rating “in the top
three.”
In her capacity as an expert on parole procedures, Ms. Shettles
described the Defendant’s chances for release on a life sentence as “close to
impossible.” She made specific reference to the Defendant’s other murder
conviction in Mississippi, his escape from jail just prior to the murder of the
victim, and prior theft and robbery convictions. She also testified that even
if the Defendant received parole in Tennessee, he would be returned to
Mississippi to serve the remainder of the life sentence there.
After reviewing the exhibits pertaining to mitigation, the jury
submitted a series of written questions, including whether “mandatory
parole” and “parole” could be “define[d] in layman’s terms.” Afterward,
defense counsel recalled Ms. Shettles, who testified that if the Defendant
was given a life sentence in this case, he would not be eligible for
mandatory parole.
She also explained that if sentenced to life
imprisonment, the Defendant would be eligible for discretionary parole
after twenty-five years, but that his prior murder conviction and his escape
from prison in Mississippi made parole highly unlikely.
Tim Terry, an inmate records manager at Riverbend, confirmed that
if the Defendant ever received parole in Tennessee, he would be returned to
Mississippi to serve his life sentence there. He provided assurances that, in
the event the Defendant received a life sentence for the victim’s murder, he
would not be moved from Riverbend to a local county jail.
Dr. Joseph Angelillo, a clinical psychologist who qualified as an
expert in forensic psychology, evaluated the Defendant and reviewed his
social history. While admitting that he was unable to make a specific
diagnosis, Dr. Angelillo found indications of “schizoid personality
features,” marked by a tendency to do things alone, sub-par social skills,
lack of joy, withdrawal from others, and a fear of relationships “unless
[there is] absolute assurance that they’re going to be accepted.” In his
opinion, the lack of sufficient mental health treatment afforded the
Defendant as a child, the rejection he had experienced, and the physical and
sexual abuse he had undergone all had a profound effect on his
development. Dr. Angelillo testified that the Defendant’s time in the
-8008
structured environment of Riverbend had “behaviorally defined . . . his
ability . . . to engage in constructive activities.” He believed that the
Defendant would continue to thrive in this structured environment if given
a life sentence.
Dorothy Rowell, the Defendant’s adoptive aunt, also testified on his
behalf, describing him as a “part of our family.” She stated that her mother
had adopted one of the Defendant’s sisters, and that the other had been
adopted by Ms. Rowell’s sister. Ms. Rowell, who had spent a substantial
amount of time with the children prior to the Odoms’ divorce, described the
Defendant as “[v]ery sweet,” “[v]ery loving,” “[a]lways smiling,” “[h]appy,
and a [v]ery precious little boy.” She stated, however, that after the divorce
of his adoptive parents “[h]e wasn’t the happy smiling little boy that I
remembered.” She testified that the Defendant, when a teenager, “was
very, very good” with her invalid brother, Charles, and “[t]reated him like a
baby.”
Cindy Martin, the Defendant’s adoptive sister, described the
Defendant as “[t]he sweetest person you would ever want to meet” prior to
the time Marvin Bruce, his stepfather, became a part of his life. She
described Bruce as “horrible” and a “terrible person” who mistreated the
Defendant. She stated that after Bruce’s arrival, the children stayed with
their grandmother more often, and while Ms. Martin enjoyed being there
because her grandmother generally “spoil[ed] kids,” their grandmother
“never really accepted [the Defendant] as her grandchild” and “would hit
him with anything she could find.”
Jimmy Odom, Jr., the Defendant’s older adoptive brother, testified
that prior to the Odoms’ divorce, the Defendant was treated well, and that
they were “kind of like a family then.” He also claimed that things changed
after his mother remarried, and that the Defendant “wasn’t treated like a
child” and “never was loved.” He described their grandmother as “a mean
woman” who often struck the Defendant “with belts and stuff like that,”
and who never accepted the Defendant into the family. He called Marvin
Bruce “a pervert—[j]ust a sorry person.” He stated that if the Defendant
ever tried to reach for food at the dinner table before someone else, his
stepfather “would pop him up beside his head, . . . and just make him wait.”
Although he never witnessed Bruce sexually abusing the Defendant,
Jimmy, Jr. stated that he had “no doubt” that he had physically abused him.
He testified that there was “no love in our family” and that, as a result, the
Defendant “never had a chance.”
-9009
Like the Defendant, Jimmy, Jr. was housed at Columbia Training
School for a time. He stated that on each day of their detention, the
residents spent forty-five minutes reading and forty-five minutes on
mathematics, but that the rest of the day was spent “in the fields.” He
testified to the excessive forms of discipline at the school, asserting that
“[t]hey would whup you with a board” and that “if you couldn’t take the
licks they would get other people to hold you down.” He also stated that
when residents ran away, they would receive a beating from the staff.
Jimmy, Jr., who was an inmate at Parchman Prison at the same time as the
Defendant and their brother Larry, described it as “a real bad prison,”
where juvenile inmates are not housed separately. He stated that both Larry
and the Defendant were sexually abused by the older inmates there and that
his efforts to take up for his younger brothers often resulted in fights at the
prison.
Several others who had become acquainted with the Defendant
during his time in prison also testified on his behalf. Celeste Wray, who
had been involved in prison ministries for eighteen years, corresponded
with the Defendant on a regular basis and developed a friendship with the
Defendant. She stated that her letters from the Defendant had “been
pleasurable and enjoyable” and that they were “always very respectfu[l],
which I appreciated.” Ricky Harville, who was an instructor at Riverbend,
testified that the Defendant worked as his aide when he began teaching at
the prison in 2003. He recalled that the Defendant assisted the other
inmates with reading and writing and that his interaction with them was
“very positive.” He stated that the Defendant was “very helpful,” that he
approached his job in a very positive manner, and that he served as a role
model for other inmates who sought educational opportunities. In his
opinion, the Defendant would continue to impact other inmates in a positive
way if he received a life sentence. Gordon Janaway, a former teacher in
various correctional institutes, taught the Defendant in a GED class at
Riverbend. He testified that after the Defendant obtained his certificate, he
became a clerk in the classroom. Janaway stated that the other inmates
“really respected him because he had earned a GED . . . which is not easy to
do in corrections.” Jim Boyd, who taught a life skills course at Riverbend,
met the Defendant while conducting a class. Boyd testified that the
Defendant was “an active participant” in the class and observed that the
Defendant had changed “for the better” during his time in prison. Finally,
Helen Cox, who was also involved in the life skills course, testified that she
kept a photo of the Defendant on her desk that was taken the day he
received his GED. She described the Defendant as a part of her extended
family.
- 10 010
Odom, 336 S.W.3d at 549-54 (footnotes omitted).
B. Post-Conviction Evidence
Lead sentencing counsel testified that he was appointed on July 14, 2004, to
represent the Petitioner for the 2007 resentencing hearing. Sentencing co-counsel also
was appointed, and Glori Shettles with Inquisitor, Inc., was hired as the primary
mitigation investigator. Counsel had the benefit of reviewing all of the files and records
from the previous hearings in this case, including the mitigation investigation previously
performed by Ms. Shettles during the first resentencing hearing. Counsel also had the
benefit of talking with the previous attorneys. The defense team held numerous meetings
to discuss the course of mitigation. Ms. Shettles regularly kept counsel updated on her
investigation, and the defense team discussed the types of experts that might be used.
According to lead sentencing counsel, Ms. Shettles recommended securing a forensic
psychiatrist to evaluate the Petitioner.
Counsel ultimately filed a motion on October 11, 2007, to secure the services of
Dr. Joseph Angelillo, a forensic psychologist. The motion was granted that same day.
Lead sentencing counsel said that, although the resentencing hearing was scheduled to
commence approximately two months later, he usually requested funding for experts
further in advance if they were a “key part” of the case. He said Dr. Angelillo was not a
key part of their strategy. According to lead sentencing counsel, the defense relied on Dr.
Angelillo merely to determine if anything was missing from the information they already
possessed about the Petitioner’s mental health. Counsel also filed a motion for additional
funding the day the resentencing hearing commenced. The motion was granted the same
day.
Lead sentencing counsel acknowledged reviewing a letter from Ms. Shettles to
previous counsel advising that it would be beneficial to explore whether the Petitioner
suffered from organic or neurological brain damage. He also reviewed a document from
prior counsel referencing two episodes where the Petitioner lost consciousness from
closed head trauma and another requesting that the Petitioner undergo a PET (Positron
Emission Tomography) scan. Lead sentencing counsel also knew about a 1974
psychological evaluation report by Dr. Daniel Cox indicating the Appellant had a verbal
IQ of 67, a performance IQ of 100, and a full-scale IQ of 81. That report concluded that
the discrepancy between the verbal and performance scores reflected moderate to severe
emotional personality disturbance and that there was evidence of mild organic
neurological deficiency. Dr. Cox also considered the Petitioner to be “brain damaged,
incorrigible, antisocial, unable to respond to usual social contingency programming and a
loser with respect to probable adult adjustments.” Dr. Cox recommended in 1974 that the
Petitioner undergo extensive medical, psychiatric, and psychological evaluations. Lead
sentencing counsel said he was not certain he wanted Dr. Angelillo to see Dr. Cox’s
reports. He admitted that there was concern the Petitioner had organic or neurological
- 11 011
brain damage, and he stated that they discussed retaining a neurologist and
neuropsychologist. Lead sentencing counsel said, though, that he would not always
present evidence of a defendant’s brain damage during a capital sentencing trial. He said
it depended on the case.
Counsel knew life without the possibility of parole was not a sentencing option for
the Petitioner. However, as part of their defense, they tried to explain to the jury that it
was extremely unlikely the Petitioner would ever be considered eligible for parole if
given a life sentence. Lead sentencing counsel identified a motion the defense drafted to
strike the Petitioner’s prior murder conviction from consideration as an aggravating
circumstance because the crime was committed while the Petitioner was a juvenile. They
decided not to file it, though, because they “felt that it was clear that was coming in, and
that we were going to keep some of the details of that out that were going to drift in if we
opened the door on it.”
On cross-examination, lead sentencing counsel testified that, although their
investigation team pursued aspects of the guilt phase of the trial, the presentation of a
residual doubt defense during mitigation was not part of their strategy. Lead sentencing
counsel acknowledged that the Petitioner was willing to submit to DNA testing and that
the investigators identified a handwriting expert willing to examine the Petitioner’s
statement to the police. Lead sentencing counsel said he reviewed all of the information
obtained by their investigators and ultimately concluded there was no evidence to
reasonably support a residual doubt defense during the resentencing hearing.
Lead sentencing counsel praised the investigative work performed by Ms. Shettles.
He respected her opinion and listened to her suggestions. Lead sentencing counsel
thought defense counsel and the investigative team maintained open communication and
had a good working relationship. Lead sentencing counsel said it was “the best
mitigation [he] ever had” in a capital case. The entire defense team met numerous times
and discussed and considered the different mitigation strategies available in this case.
According to lead sentencing counsel, possibly the most difficult obstacle they faced was
the fact that the jury would be informed the Petitioner would be eligible for parole after
serving twenty-five years if given a life sentence, which in the Petitioner’s case would
have been eight years from the second resentencing hearing. Counsel unsuccessfully
objected to that jury instruction. Counsel’s strategy then was to convince the jury that the
Petitioner would almost certainly never be paroled, especially given his prior murder
conviction in Mississippi. To that end, the defense incorporated into their mitigation
strategy the fact that the Petitioner stood convicted of another first degree murder. Lead
sentencing counsel said they used the prior murder conviction to bolster their case to the
jury that even if the Petitioner were paroled in Tennessee, he would be sent directly to
Mississippi to serve his other life sentence. Lead sentencing counsel did not think his
motion to strike that conviction as an aggravator would be successful, so they decided to
“embrace it.”
- 12 012
Defense counsel’s strategy included generating empathy with the jury based upon
evidence of the Petitioner’s disadvantaged past and demonstrating the Petitioner would
never be released from prison. The Petitioner initially did not want counsel to show the
jury evidence of his troubled past. According to lead sentencing counsel, the Petitioner’s
family members also initially did not fully cooperate with defense counsel. Lead
sentencing counsel said, however, that they eventually agreed to assist counsel and testify
on the Petitioner’s behalf. Lead sentencing counsel said the testimony by the Petitioner’s
family members was “incredible” and “very compelling.” Lead sentencing counsel did
not think the mental health aspect of mitigation in this case would have presented the
same emotional impact as the testimony by the family members. He said having the
family members tell stories about the Petitioner’s history was much more compelling
than an expert reciting results from an evaluation. Lead sentencing counsel stated, “I
really think we put on what we thought was our spear point, and it wasn’t enough.”
According to lead sentencing counsel, Dr. Angelillo’s report supported their theory of
pursuing empathy through the testimony of the Petitioner’s family members. Lead
sentencing counsel stated, “I don’t think we would have put him on at all if we hadn’t
thought that, if it didn’t move with our theme.” The defense attempted to highlight the
differences between the prison system in Mississippi, where the Petitioner was housed as
a teenager, and the more structured environment in Tennessee, where the Petitioner was
housed at Riverbend. According to lead sentencing counsel, the Petitioner had adapted
well in his current prison environment, and showing the jury that fact was a main point of
the defense.
Again, counsel had the benefit of reviewing all of the evaluations from the
previous hearings. Lead sentencing counsel acknowledged that the State would have
been allowed to cross-examine their expert witness if the defense questioned a witness
about the previous evaluations. Lead sentencing counsel highlighted the statements made
by Dr. Cox that counsel believed were “so atrocious.” Although counsel did not want the
State to exploit that information during cross-examination of their mental health expert,
the defense was able to introduce Dr. Cox’s opinion into evidence through the testimony
of their investigator. That information supported the mitigation theory that the system in
Mississippi failed the Petitioner. Lead sentencing counsel said, however, that if the State
was allowed to question Dr. Angelillo about previous reports of antisocial personality
disorder, their mitigation theory of a lack of future dangerousness in the prison setting
would have been compromised.
Lead sentencing counsel was further questioned about a 1978 report from
Mississippi State Hospital, where the Petitioner was evaluated after committing the
previous murder. The report stated that the Petitioner “had no feelings, no sorrow about
it.” It also said the Petitioner “showed no signs or symptoms of a psychosis,” his
“psychological and neurological examination were within normal limits,” “there is
evidence of mild organic (neurological) deficiencies although I don’t believe it is
- 13 013
interfering with him in a major way at this time,” and the Petitioner possessed “a
moderately disturbed personality with a marginal adjustment.” The report diagnosed the
Petitioner “as a schizoid personality with possible organic pathology [sic] present.”
Psychological testing at that time “did not reveal any signs of organisity [sic] or a
neurological deficit nor did the neurological examination.” The report found that the
Petitioner had a full scale IQ of 93, and “he was found to be without psychosis and the
clinical impression was a personality disorder with antisocial features [and] he was
competent and responsible.” Lead sentencing counsel said he reviewed that report prior
to the resentencing hearing and thought its findings would have contradicted any
allegation the defense asserted concerning the Petitioner’s neurological deficits. He
reiterated that an evaluation of antisocial personality would not have benefitted their
theory of mitigation.
Lead sentencing counsel talked to defense counsel from the first resentencing
hearing about their theory of mitigation before deciding on the approach to take during
the second resentencing hearing. Prior to that hearing, counsel filed a notice of potential
expert witnesses they considered calling to testify about how serotonin levels related to
human behavior. Lead sentencing counsel said that although they had already ruled out
that mitigation approach, they wanted the option to change their minds. Lead sentencing
counsel also stated that Dr. Angelillo was provided a summary of the defense theory prior
to the hearing.
Sentencing co-counsel testified that he reviewed all of the files and records from
the previous hearings in this case. He also spoke with counsel from the first resentencing
hearing. Sentencing co-counsel said they had the benefit of Ms. Shettles, who also
worked on the first resentencing hearing. Sentencing co-counsel considered the defense a
team effort wherein everyone involved in the case shared thoughts and ideas about how
to proceed with the presentation of mitigating evidence. Sentencing co-counsel
confirmed that the defense team discussed using mental health experts but ultimately
decided against that particular approach. Sentencing co-counsel summarized their theory
of defense as follows:
[The Petitioner] never had a chance to begin with, from his early
childhood, from the horrible family situation, to the torture, to the
institution he was sent to in Mississippi that was shut down by the Federal
Government for essentially torturing children, to incarceration at Parchman,
how he was removed from Parchman and why. How he, once he was reinstitutionalized, thrived, and he wasn’t a danger to anybody where he was.
And part of the defense, and I think we put on proof that,
realistically, [the Petitioner] was never going to get out of prison with the
Tennessee conviction and the Mississippi conviction, and that that was
sufficient punishment.
- 14 014
Regarding the Petitioner’s mental health, sentencing co-counsel testified:
[The Petitioner] had a long history of – of evaluations and being
looked at, and there was a lot of information in there. The danger in my
opinion with these older cases is, if I come in with an expert that is new to
the case and he comes up with something that is much more magnificent
than anybody else has ever seen, I think it’s disingenuous to the jury
sometimes, and I think it appears to be bought and paid for.
It – from what we had seen earlier in the information we had, could I
have found a doctor to – to get up here to the jury and say that that all
greatly affected him? Probably.
But I think in the long run, when the State prosecutors were done
with that doctor, it would have harmed [the Petitioner’s] case more than it
would have helped it because I don’t think the earlier information would
have really corroborated what the new doctor would have said and I only
would have put him on if it had been really good, if that makes sense.
When asked how he could know “whether the information is really good without doing
the examination,” sentencing co-counsel replied,
It didn’t matter if it was good. If I knew if it was really, really good,
if I had a doctor who was going to get up here and say that he did all this
because he was brain damaged and all of this and all of that, that would
have directly gone against what every other doctor had said in the past, and
I think that testimony would have looked like it was bought and paid for.
Sentencing co-counsel also thought any residual doubt defense during
resentencing had the potential of backfiring. Sentencing co-counsel admitted that the
instruction informing the jury that the Petitioner would be eligible for parole after serving
twenty-five years of a life sentence was “the single hardest thing some juror’s going to be
able to get past.” He also confirmed that they decided not to move to strike the
Petitioner’s prior murder conviction for consideration as an aggravating circumstance, in
part, because it was part of their strategy to convince the jury the Petitioner would never
be released from prison. Sentencing co-counsel, though, did not otherwise believe there
was a legal basis for their position. According to sentencing co-counsel, Ms. Shettles
testified as an expert about her experience working for the Board of Probation and Parole
for twenty years, and it was her opinion that the Petitioner would never be paroled.
During cross-examination, sentencing co-counsel opined, “[W]e had very
powerful in my opinion mitigation on his life. Very strong witnesses testifying to the
- 15 015
things that had happened to him as a child, the trouble he got into, how he thrived in
prison when he was there, and basically, there was no reason to execute him.” He agreed
with lead sentencing counsel that no “mental health expert ever could have gotten the
emotion that we were able to get out of” the lay witnesses. According to sentencing cocounsel’s impression, the jury was able to understand the Petitioner as “a very damaged
human being.” Sentencing co-counsel said the defense tried to show the jury how the
system in Mississippi failed the Petitioner because he never received the help
recommended by the mental health experts who evaluated him. In contrast, they were
able to show the jury how he had adjusted well to the prison environment in Tennessee.
Sentencing co-counsel did not believe presenting evidence both that the Petitioner acted
violently in the past because of low serotonin levels or brain damage and that he adjusted
well in a controlled prison setting would have been an effective or complementary
defense. Sentencing co-counsel did not want to provide “ammunition for the State” by
relying upon a diagnosis of
borderline personality, antisocial behavior. Things like that are never
helpful to a defendant and our other stuff showed that that wasn’t the way
he behaved, and you know, it was a good theory. The system had failed
him, but once the system essentially fixed him when he was incarcerated
and when he was structured and when he was provided what he needed, he
thrived. I mean, he – he – he was a model inmate.
Trial co-counsel testified that she and lead trial counsel were both employed by
the Office of the Public Defender at the time of trial and that lead trial counsel previously
served as the District Public Defender. Lead trial counsel was deceased at the time of the
evidentiary hearing. In addition to the two attorneys, the Petitioner had the benefit of a
factual investigator and a mitigation specialist. Trial co-counsel said the Petitioner was
examined by Dr. John Hutson, a clinical psychologist, prior to trial. Trial co-counsel
recalled reviewing the Mississippi records related to the Petitioner’s prior mental health
evaluations. She also remembered requesting discovery from the prosecution, but she did
not think they received the entire police investigation file. Trial co-counsel said, though,
that if the police file identified other people who were in the parking garage at the time,
but they were not detained as suspects by the police, then counsel probably would not
have pursued them. Defense counsel did not seek to have the Petitioner’s signed
statement analyzed by a forensic document examiner.
Trial co-counsel testified on cross-examination that she did not think counsel was
unprofessional for failing to move for a continuance due to lead trial counsel’s health.
She did not notice anything concerning about his health, and she stated that if lead trial
counsel did not believe he could continue, he would have said so. According to trial cocounsel, the prosecutor on the case at the time would have allowed defense counsel to
review the State’s entire case file. She also confirmed that the record of the original trial
reflected that defense counsel was given the opportunity to review everything the State
- 16 016
possessed in its file.
According to trial co-counsel, the defense team did not notice anything peculiar
after interacting with the Petitioner that gave them concern about his mental health. The
defense attempted to get any relevant records from the Petitioner’s past, including prison
and mental health records. One of the first records trial co-counsel reviewed from 1978
opined that the petitioner “was without psychosis, responsible and competent to stand
trial” and that “psychological and neurological examinations were within normal limits.”
Trial co-counsel also learned that the Petitioner earned his G.E.D. in prison in Mississippi
and completed some junior college courses. Trial co-counsel said Dr. Hutson’s finding
of a personality disorder was not helpful. According to trial co-counsel, the Petitioner’s
family members did not want to testify on his behalf.
Trial co-counsel testified that the decision making process of the defense team was
influenced by the information about the case known to them at the time, including the
details contained in the Petitioner’s confession. As such, trial co-counsel did not see any
benefit to testing the clothing the Petitioner wore during the murder. Similarly, she saw
no reason to test the hair samples found in the victim’s hand or the blood samples from
the parking garage. Despite being unsuccessful in moving to suppress the Petitioner’s
statement, the defense theory during the guilt phase of the trial was that the Petitioner was
coerced into confessing.
Betsy Chandler worked at Parchman Prison in Mississippi from 1985 until 2005.
She worked in the law library and as a case manager. Ms. Chandler remembered the
Petitioner when he was housed at the prison, and she remembered he was victimized by
other inmates because he was younger and smaller. She did not remember him receiving
many visitors or receiving items from people outside the prison. According to Ms.
Chandler, the Petitioner was “emotionally needy” and “worrisome.” She also identified a
report detailing the Petitioner’s placement into protective custody because he was
accused of rape and being a problem inmate. Frank Nobles was housed at Parchman
Prison with the Petitioner. He testified about the violent nature of the prison environment
and how the weaker inmates were victimized by the stronger ones. Mr. Nobles described
the Petitioner as a weaker inmate. Robert Tubwell was also housed with the Petitioner at
Parchman Prison. Mr. Tubwell remembered the Petitioner seeking the protection of two
stronger inmates at different times. The stronger inmates in the prison would typically
require things in return for offering protection such as sexual favors, washing clothes, and
running errands. The weaker inmates would be referred to as “sons” by their protectors.
Mr. Tubwell saw the Petitioner wear makeup and dress in women’s clothing one or two
times. Mr. Tubwell also remembered the Petitioner filing grievances with guards.
According to Mr. Tubwell, inmates often retaliated against inmates who filed grievances
against them.
Dr. Tora Brawley, a clinical neuropsychologist, testified on behalf of the
- 17 017
Petitioner. She examined the Petitioner prior to the evidentiary hearing and had the
benefit of reviewing records from the Petitioner’s past. Dr. Brawley administered the
Wechsler Adult Intelligence Scale IV test, which measured IQ as well as different areas
of brain function. The Petitioner measured a full-scale IQ of 94, which was average
according to Dr. Brawley. His verbal comprehension score was 89, which was low
average, and his perceptual reasoning score was 104, which was average. However, Dr.
Brawley said the discrepancy between the verbal and performance skills was statistically
and clinically significant. She also administered the Wechsler Memory Scale IV test,
which examined memory function. The Petitioner performed in the ninth and sixteenth
percentiles on verbal memory tests, but he performed in the fiftieth and seventy-fifth
percentiles on visual memory tests. The Petitioner performed poorly on non-verbal
abstract reasoning and verbal learning tests. He scored in the fourth percentile on a
verbal fluency test. Dr. Brawley also observed some asymmetry between the Petitioner’s
left and right hands after administering a simple test that measured the Petitioner’s
manual motor speed.
Based upon her examination of the Petitioner, Dr. Brawley concluded that he had
significant asymmetries in several areas of cognition to include memory, intellectual, and
motor functioning. She also observed deficits in his frontal lobe functioning and mental
flexibility. Those deficits most probably affected the Petitioner’s behavior and
personality over his life span and could have significantly impacted his judgment,
impulsivity, and decision making. Dr. Brawley said the results from some of the
Petitioner’s past records corresponded with her findings. She also said the fact that the
Petitioner previously escaped from prison would be consistent with his inability to make
good choices. She stated, however, that the Petitioner’s issues and deficits had likely
improved over time because he had been confined for many years in a very structured
prison environment in Tennessee. According to Dr. Brawley, neuropsychological
impairment was not synonymous with mental retardation.
On cross-examination, Dr. Brawley testified that drug use could contribute to
neurological damage. She said the Petitioner suffered head trauma, which resulted in loss
of consciousness, on three occasions when he was between seventeen and twenty-one
years old. Dr. Brawley said the Petitioner’s neurological damage may or may not have
contributed to his actions at the time of the murder. During the examination, the
Petitioner informed Dr. Brawley that two of the top three stressors he faced at that time
were being “locked up for something [he] didn’t do” and “trying to get the work records
of Tanya D. Tiller,” both of which related to his guilt.
Alysandra Finn, an investigator with the Office of the Post-Conviction Defender,
was assigned to investigate the mitigating evidence on behalf of the Petitioner. She
testified that she uncovered information not reported by Glori Shettles during the second
resentencing hearing. The Petitioner’s biological father, Richard Norman Smith, was
born out of wedlock. Mr. Smith did not have a good relationship with his mother, who
- 18 018
committed suicide when Mr. Smith was sixteen years old. Mr. Smith’s stepfather started
binge drinking soon thereafter. Mr. Smith’s brother and nephew also committed suicide.
Mr. Smith wreaked havoc in the community as a teenager and was eventually placed in a
juvenile facility.
Ms. Finn also interviewed the Petitioner’s biological mother, Holly Taylor (Nellie
Ruth Holly). Ms. Taylor’s father was extremely abusive to her and her sister and acted
violently towards others in the community. Ms. Taylor’s father raped his daughter from
another marriage and was eventually murdered in prison. Ms. Taylor’s mother was
described as mean and uncaring. Ms. Taylor’s mother remarried, and her new husband
sexually abused Ms. Taylor and her sister. According to Ms. Finn, Ms. Taylor was
described as a mean child. When Ms. Finn interviewed Ms. Taylor, she was living in
filth in a tiny trailer.
The Petitioner’s parents were teenagers when they met. By the time they married,
they were both drinking and partying regularly. Ms. Taylor continued to drink during her
pregnancies. The Petitioner had an older sister and a younger sister. Neither parent was
described as caring or loving. The Petitioner’s mother informed Ms. Finn that she was a
lot meaner to the children than their father was. The Petitioner’s father physically abused
the Petitioner’s mother. The family eventually settled in Mississippi. Ms. Taylor
abandoned the family when the Petitioner was one and one-half years old. The
Petitioner’s father then had to take on additional employment, so he would leave the
children with a neighbor, Gladys McClendon. The Petitioner and his sisters were not
well-cared for by their father; the Petitioner was seen with cigarette burn marks on his
arms and feet at the time. Ms. McClendon’s home was the de facto day care for the
neighborhood. The Petitioner and his sisters eventually spent more time living with Ms.
McClendon. The Petitioner was finally adopted when he was about two years old by Ms.
McClendon’s daughter, Shirley1, and Shirley’s husband, Jimmy Odom. The Petitioner’s
two sisters were adopted by other member of the community. According to Ms. Finn,
neither fared much better in their adoptive households than the Petitioner. At the time of
her investigation, Ms. Finn said both sisters suffered from depression. Mr. Smith resisted
the adoptions at first but ultimately agreed when he was threatened with being reported
for sexually abusing his daughters. The Petitioner’s biological parents attempted to
reconcile at some point but to no avail.
Shirley was fifteen when she married Jimmy Odom, who was sixteen. They had
three biological children together. Jimmy Odom had just been released from prison when
the Petitioner arrived in the family. The Odoms were described as incompetent parents.
Jimmy Odom was always partying, and Shirley Odom “had no control over the house. It
was filthy.” Jimmy Odom was known to be a womanizer, and the Odoms had an abusive
1
Because some of the Petitioner’s family members share a surname, we will refer to them by
their first names for clarity. We mean no disrespect to these individuals.
- 19 019
and volatile relationship. They eventually divorced when the Petitioner was four years
old, and Gladys McClendon resumed primary responsibility for the Petitioner. She also
cared for many other children at the same time. Ms. Finn described the scene at the
McClendon house as “constant chaos.” Ms. McClendon was extremely cruel to the
Petitioner. She did not want him around and would beat him.
Shirley Odom married a man named Marvin Bruce when the Petitioner was about
five years old. Mr. Bruce was an alcoholic, and he and Shirley had three biological
children together. According to Ms. Finn, the Petitioner was treated as the outcast and
severely abused by Mr. Bruce and Shirley. The Petitioner wet the bed until he was about
nine years old, and Mr. Bruce would hang the sheets outside of the house to embarrass
the Petitioner. Shirley also would humiliate the Petitioner when he wet the bed by
pulling down his pants and smacking his “privates” in front of the other children. Shirley
drank during the day. The house was a mess, and there were times when there was no
food in the house. The children were filthy and were not taught how to maintain any
personal hygiene. The police were frequently called to the home.
When the Petitioner was twelve years old, he and his brother Larry would solicit
oral sex for money. According to Ms. Finn, the Petitioner also started living on the
streets at that age. At a young age, the Petitioner was reported to have started having
“spells” during which he would “check out” and would not respond when called. The
Petitioner was placed in special education in school. The Petitioner stayed in trouble
with the police and eventually was placed in Columbia Training School, a juvenile
facility. The Petitioner was described as malnourished at the time. The juveniles were
punished if they attempted to escape, and the Petitioner spent one hundred and twenty
days in the “hole” in isolation for running away. The Petitioner received no mail or
visitors when he was at Columbia. The Petitioner was evaluated by Dr. Cox once before
he entered the training school and once while in attendance. Dr. Cox requested that the
Petitioner undergo an EEG, which Ms. Finn said was unusual.
After the Petitioner left the juvenile training school, he was arrested and convicted
of homicide in 1978 and incarcerated at Parchman Prison to serve a life sentence. Ms.
Finn described the conditions at the prison at that time. Hundreds of inmates were
housed in individual units consisting of open bunk bedding. Violence among the inmates
apparently was widespread, and the smaller white inmates were particular targets. Ms.
Finn described the relationships between the “gal boys” or “sons,” the weaker inmates,
and their “protectors” or “daddies,” the stronger inmates. The “sons” would exchange
sexual favors for protection. “Punks,” as they were called, were former “sons” who
became “free game” to the rest of the inmates. According to Ms. Finn, the Petitioner was
described as having been both a “son” and a “punk.” As part of the role of “son,” the
Petitioner at times was forced to wear makeup and women’s clothing. Ms. Finn also said
the guards routinely beat the inmates.
- 20 020
The Petitioner’s brother, Larry, was incarcerated at Parchman with the Petitioner,
and he attempted suicide a couple of times. According to Ms. Finn, Larry had similar
experiences as the Petitioner because of his size. The Petitioner’s other brother, Jimmy,
Jr., who also was housed at Parchman, associated himself with the Aryan Brotherhood,
became an “enforcer,” and was able to protect himself. Ms. Finn learned that Jimmy, Jr.,
did not associate with the Petitioner or Larry because of their status as “sons” and
“punks” and, thus, did not protect them for fear of retaliation from his gang.
Ms. Finn referred to reports that the Petitioner had been assaulted in prison.
According to Ms. Finn, however, the prisoners who reported assaults faced ridicule and
retaliation from other inmates and the guards because the reports apparently were not
kept confidential. Records reflected that the Petitioner contracted syphilis at Parchman.
Ms. Finn said that although his two brothers received visitors in prison, the Petitioner did
not. The Petitioner was eventually transferred from Parchman Prison to a county jail.
According to Ms. Finn’s findings, the Petitioner was transferred because he was assisting
with an official investigation. The Petitioner escaped from that jail prior to committing
the murder in this case.
Dr. James Merikangas testified for the Petitioner as an expert in neurology and
psychiatry. Dr. Merikangas reviewed the Petitioner’s numerous historical reports and
conducted an interview with the Petitioner. He also conducted a neurological
examination, including an MRI (Magnetic Resonance Imaging) and PET scan, as well as
a physical examination of the Petitioner. Dr. Merikangas said executive functioning,
which was the ability to plan and control behavior, was located in the frontal lobe of the
brain. Based upon his review of the Petitioner’s records, including reports of the
Petitioner’s mother drinking while pregnant, a high fever the Petitioner experienced as a
child, and the various head injuries the Petitioner suffered, as well as his initial physical
examination of the Petitioner, Dr. Merikangas concluded that the Petitioner had some sort
of brain damage which needed to be explored further.
The MRI, which according to Dr. Merikangas examined the anatomy of the brain,
revealed loss of brain tissue in the Petitioner’s temporal lobe. In addition, the Petitioner
had an enlarged third ventricle which reflected a loss of cognitive functioning. Dr.
Merikangas also identified scarring of the brain tissue, which likely was caused by head
injuries, as well as evidence of damage associated with fetal alcohol syndrome among
other things. Dr. Merikangas testified that, based upon the discrepancy between the
Petitioner’s verbal and performance IQ scores, there was a disconnect between the
functionality of the Petitioner’s left and right brain hemispheres. The PET scan, which
measured brain function, revealed that the Petitioner’s temporal lobes were not
functioning as well as the rest of his brain. Dr. Merikangas said the temporal lobes,
which controlled behavior, were likely to be damaged during head trauma. The PET scan
also revealed asymmetry between the functionality of the left and right hemispheres of
the Petitioner’s brain. Dr. Merikangas also administered a Diffusion Tensor Imaging
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(DTI) test, which was a type of MRI that examined the flow of fluid in the axons, or
nerve connections in the brain. The DTI revealed some problem with the connections
between the two sides of the Petitioner’s brain.
Reviewing a previous IQ score the Petitioner received in 1974, Dr. Merikangas
testified that the full-scale score of 81 was just above borderline mental retardation and
that the thirty-three-point difference between the verbal and performance scores was
highly significant and suggestive of brain damage. Dr. Merikangas also reviewed a
report from a 1976 EEG, which revealed evidence of brain damage. According to Dr.
Merikangas, the fact that the Petitioner had an EEG a couple of years later, which was
normal, did not necessarily discount the earlier abnormal results. Although the Petitioner
was treated for syphilis at a young age, Dr. Merikangas could not comment on whether
the disease affected his brain.
Dr. Merikangas testified that the test results revealed brain damage, which the
Petitioner probably had his entire life. When asked by the court what it meant to have
brain damage, Dr. Merikangas answered, “It generally means that your intelligence is not
as good as it should be, and your ability to plan and carry out actions or to control your
impulses is not as good as it should be.” According to Dr. Merikangas, studies showed
that emotional and psychological abuse of children could inhibit the development of their
brains. In the Petitioner’s case, Dr. Merikangas attributed his brain damage to a
combination of his long-term history of physical, sexual, and psychological abuse and
physical head trauma, i.e., both congenital and acquired brain damage. Dr. Merikangas
testified that “many parts” of the Petitioner’s brain were damaged. He ruled out a
diagnosis of personality disorder.
During cross-examination, Dr. Merikangas testified that he was not aware the
Petitioner escaped from Parchman Prison in 1981. He further testified that knowledge of
that information would not change his opinion. He said, though, that the Petitioner’s
brain damage would not prevent him from attempting to escape in the future. Dr.
Merikangas did not opine whether the Petitioner’s brain damage prevented him from
knowing right from wrong, and he did not comment on whether the Petitioner’s brain
damage caused him to commit the two murders. Dr. Merikangas opined that drug use did
not cause the Petitioner’s brain damage. Although Dr. Merikangas did not think the
Petitioner’s brain damage had improved any, he said the Petitioner’s behavior had
improved while on death row. Dr. Merikangas acknowledged that the Petitioner had a
subsequent full-scale IQ score in the 90s, but he also opined that a similar discrepancy
between the verbal and performance scores indicated brain damage. Dr. Merikangas
could not explain why the Petitioner had two different readings from EEGs conducted in
1976 and 1978, but he said they were not relevant to his diagnosis.
Sean Lester, the Custodian of Records for the Shelby County Medical Examiner’s
Office, testified for the State. Mr. Lester was asked to identify any evidence remaining
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from the autopsy of the victim in this case. He located three items: two glass vacuum
containers, one labeled “rectal swabs” and one labeled “vaginal swabs,” and a sealed
envelope labeled “hair and fiber from right hand.” To Mr. Lester’s knowledge, there had
never been a request to test those samples for DNA. James Hill, an officer with the
Memphis Police Department’s Latent Fingerprint Section, provided for the record in this
case all of the fingerprint-related evidence retained by the department. William D.
Merritt, an investigator with the Shelby County District Attorney General’s Office,
provided for the record in this case all of the residual evidence remaining in the custody
of the trial court clerk that was not introduced during any of the earlier trials.
Glori Shettles testified on behalf of the State. She worked for Inquisitor, Inc., for
twenty-one and one-half years as a mitigation investigator prior to working for the Shelby
County Public Defender’s Office. She said that she worked on approximately ninety
capital cases during her career and that she worked with defense counsel during the
Petitioner’s first and second resentencing hearings. According to Ms. Shettles, the
attorneys made their own arrangements for expert witnesses during the first resentencing
hearing. She said, though, that she obtained some of the Petitioner’s records related to
his mental health. Ms. Shettles said that, having worked on both hearings, she had an
advantage in preparing mitigating evidence during the second resentencing hearing
because she did not have to duplicate some of the investigation. She prepared a
comprehensive mitigation timeline of the Petitioner’s history to give counsel in
preparation of the hearing. Ms. Shettles further said she had difficulty prior to the first
resentencing hearing soliciting information and assistance from the Petitioner’s family,
but she said she experienced better cooperation from the family members during her
work on the second resentencing hearing.
Ms. Shettles thought she developed a good working relationship with lead
sentencing counsel and sentencing co-counsel. Ms. Shettles said both attorneys were
very responsive and maintained open lines of communication. She said she was much
more involved in the mental health aspect of mitigation during the second resentencing
hearing than the first, and she identified the several experts she contacted during her
investigation. Ms. Shettles also attested to the amount of time she spent on her
investigation into potential mental health evidence. She recommended experts who
counsel ultimately decided not to rely upon at the hearing. Nevertheless, Ms. Shettles
testified that her investigation into the Petitioner’s background was as thorough as any
other case in which she had participated.
II. Analysis
The Petitioner’s post-conviction petition is governed by the Post-Conviction
Procedure Act. See Tenn. Code Ann. §§ 40-30-101 to -122. To obtain post-conviction
relief, a petitioner must show that his or her conviction or sentence is void or voidable
because of the abridgment of a constitutional right. Tenn. Code Ann. § 40-30-103. The
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petitioner must establish the factual allegations contained in the petition by clear and
convincing evidence. Tenn. Code Ann. § 40-30-110(2)(f). Evidence is clear and
convincing when there is no serious or substantial doubt about the accuracy of the
conclusions drawn from the evidence. Hicks v. State, 983 S.W.2d 240, 245 (Tenn. Crim.
App. 1998).
Once the post-conviction court rules on the petition, its findings of fact are
conclusive on appeal unless the evidence preponderates against them. State v. Nichols,
90 S.W.3d 576, 586 (Tenn. 2002) (citing State v. Burns, 6 S.W.3d 453, 461 (Tenn.1999));
Cooper v. State, 849 S.W.2d 744, 746 (Tenn. 1993). The Petitioner has the burden of
establishing the evidence preponderates against the post-conviction court’s findings.
Henley v. State, 960 S.W.2d 572, 579 (Tenn. 1997). This court may not re-weigh or
reevaluate the evidence or substitute its inferences for those drawn by the post-conviction
court. Nichols, 90 S.W.3d at 586. Furthermore, the credibility of the witnesses and the
weight and value to be afforded their testimony are questions to be resolved by the postconviction court. Bates v. State, 973 S.W.2d 615, 631 (Tenn. Crim. App. 1997).
The Petitioner challenges aspects of his original trial attorneys’ representation as
well as the representation of his attorneys during the third sentencing hearing. He also
presents issues related to the conduct of the 1992 trial, the 2007 resentencing hearing, and
the post-conviction evidentiary hearing, as well as familiar issues against the imposition
of the death penalty. For the sake of clarity in the opinion, we have reorganized the order
of the issues the Petitioner presents in his appellate brief.
A. Ineffective Assistance of Counsel
Claims of ineffective assistance of counsel are regarded as mixed questions of law
and fact. State v. Honeycutt, 54 S.W.3d 762, 766-67 (Tenn. 2001); Burns, 6 S.W.3d at
461. As such, the post-conviction court’s findings of fact underlying a claim of
ineffective assistance of counsel are reviewed under a de novo standard, accompanied by
a presumption that the findings are correct unless the preponderance of the evidence is
otherwise. Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001) (citing Tenn. R. App. P.
13(d)). However, a post-conviction court’s conclusions of law are reviewed under a
purely de novo standard, with no presumption of correctness. Id.
The Sixth Amendment provides, in pertinent part, “In all criminal prosecutions,
the accused shall enjoy the right . . . to have the Assistance of Counsel for his defense.”
U.S. Const. amend. VI. This right to counsel is “‘so fundamental and essential to a fair
trial, and so, to due process of law, that it is made obligatory upon the States by the
Fourteenth Amendment.’” Gideon v. Wainwright, 372 U.S. 335, 340 (1963) (quoting
Betts v. Brady, 316 U.S. 455, 465 (1942)). Inherent in the right to counsel is the right to
the effective assistance of counsel. Cuyler v. Sullivan, 446 U.S. 335, 344 (1980). “The
benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct
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so undermined the proper functioning of the adversarial process that the trial cannot be
relied on as having produced a just result.” Strickland v. Washington, 466 U.S. 668, 686
(1984); see Combs v. Coyle, 205 F.3d 269, 277 (6th Cir. 2000).
The United States Supreme Court has adopted a two-prong test to evaluate a claim
of ineffectiveness:
First, the defendant must show that counsel’s performance was deficient.
This requires showing that counsel made errors so serious that counsel was
not functioning as the “counsel” guaranteed the defendant by the Sixth
Amendment. Second, the defendant must show that the deficient
performance prejudiced the defense. This requires showing that counsel’s
errors were so serious as to deprive the defendant of a fair trial, a trial
whose result is reliable.
Strickland, 466 U.S. at 687. The performance prong of the Strickland test requires a
showing that counsel’s representation fell below an objective standard of reasonableness,
or “outside the wide range of professionally competent assistance.” Id. at 690. “Judicial
scrutiny of performance is highly deferential, and ‘[a] fair assessment of attorney
performance requires that every effort be made to eliminate the distorting effects of
hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to
evaluate the conduct from counsel’s perspective at the time.’” Combs, 205 F.3d at 278
(quoting Strickland, 466 U.S. at 689).
Upon reviewing claims of ineffective assistance of counsel, courts “must indulge a
strong presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance; that is, the defendant must overcome the presumption that, under
the circumstances, the challenged action ‘might be considered sound trial strategy.’”
Strickland, 466 U .S. at 689. Additionally, the courts will defer to trial strategy or tactical
choices if they are informed ones based upon adequate preparation. Hellard v. State, 629
S.W.2d 4, 9 (Tenn. 1982). Finally, we note that criminal defendants are not entitled to
perfect representation, only constitutionally adequate representation. Denton v. State,
945 S.W.2d 793, 796 (Tenn. Crim. App. 1996). In other words, “in considering claims of
ineffective assistance of counsel, ‘we address not what is prudent or appropriate, but only
what is constitutionally compelled.’” Burger v. Kemp, 483 U.S. 776, 794 (1987) (quoting
United States v. Cronic, 466 U.S. 648, 655 n.38 (1984)). Notwithstanding, we recognize
that “[o]ur duty to search for constitutional error with painstaking care is never more
exacting than it is in a capital case.” Id. at 785.
If a petitioner shows that counsel’s performance fell below a reasonable standard,
then he or she must satisfy the prejudice prong of the Strickland test by demonstrating
“there is a reasonable probability that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different.” 466 U.S. at 694. “A reasonable
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probability is a probability sufficient to undermine confidence in the outcome.” Id. In
evaluating whether a petitioner satisfies the prejudice prong, this court must determine
“whether counsel’s deficient performance render[ed] the result of the trial unreliable or
the proceeding fundamentally unfair.” Lockhart v. Fretwell, 506 U.S. 364, 372 (1993)
(citing Strickland, 466 U.S. at 687). In other words, a petitioner must establish the
deficiency of counsel was of such a degree that it deprived the petitioner of a fair
sentencing hearing and called into question the reliability of the outcome. Nichols, 90
S.W.3d at 587. That is, the evidence stemming from the failure to prepare a sound
defense or to present witnesses must be significant, but it does not necessarily follow that
the trial would have otherwise resulted in a lesser sentence. State v. Zimmerman, 823
S.W.2d 220, 225 (Tenn. Crim. App. 1991). “A reasonable probability of being found
guilty of a lesser charge, or a shorter sentence, satisfies the second prong in Strickland.”
Id. Similarly, a petitioner must show “‘there is a reasonable probability that, absent the
errors, the sentencer . . . would have concluded that the balance of the aggravating and
mitigating circumstances did not warrant death.’” Henley, 960 S.W.2d at 579-80
(quoting Strickland, 466 U.S. at 695).
Reviewing courts must indulge a strong presumption the conduct of trial counsel
falls within the wide range of reasonable professional assistance. Strickland, 466 U.S. at
689. Our supreme court has stated:
“Hindsight can always be utilized by those not in the fray so as to cast
doubt on trial tactics a lawyer has used. Trial counsel’s strategy will vary
even among the most skilled lawyers. When that judgment exercised turns
out to be wrong or even poorly advised, this fact alone cannot support a
belated claim of ineffective counsel.”
Hellard, 629 S.W.2d at 9 (quoting Robinson v. United States, 448 F.2d 1255, 1256 (8th
Cir. 1971)). “It cannot be said that incompetent representation has occurred merely
because other lawyers, judging from hindsight, could have made a better choice of
tactics.” Id. This court must defer to counsel’s trial strategy and tactical choices when
they are informed ones based upon adequate preparation. Id.
As noted earlier, criminal defendants are not entitled to perfect representation,
only constitutionally adequate representation. Denton, 945 S.W.2d at 796. “Thus, the
fact that a particular strategy or tactic failed or even hurt the defense does not, alone,
support a claim of ineffective assistance.” Cooper v. State, 847 S.W.2d 521, 528 (Tenn.
Crim. App. 1992). Moreover, “an accused is not deprived of the effective assistance of
counsel because a different procedure or strategy might have produced a different result.”
Vermilye v. State, 754 S.W.2d 82, 85 (Tenn. Crim. App. 1987).
1992 Counsel
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1. Jury Selection
The Petitioner contends that his original trial counsel were ineffective for failing to
utilize a jury questionnaire or retain an expert in jury selection, failing to ensure the jury
could consider and give effect to mitigation evidence, failing to inquire about the
prospective jurors’ attitudes toward mental health defenses, and failing to question jurors
about potential biases and other grounds for disqualification.
This court has addressed the role of defense counsel during jury selection in a
capital case:
Jury selection implicates an accused’s state and federal
constitutional rights to a competent, fair-minded, and unbiased jury. See
Smith v. State, 357 S.W.3d 322, 347 (Tenn. 2011) (recognizing that “[b]oth
the United States and the Tennessee Constitutions guarantee a criminal
defendant the right to a trial by an impartial jury.”) . . . The process of voir
dire is aimed at enabling a defense lawyer (as well as a prosecutor) to purge
the jury of members not meeting these criteria. See United States v. Nell,
526 F.2d 1223, 1229 (5th Cir. 1976) (“[T]he principal way this right [to an
impartial jury] is implemented is through the system of challenges
exercised during the voir dire of prospective jurors.”); Smith, 357 S.W.3d at
347 (recognizing that “‘[t]he ultimate goal of voir dire is to ensure that
jurors are competent, unbiased and impartial.’”) (quoting State v. Hugueley,
185 S.W.3d 356, 390 (appx) (Tenn. 2006) . . . . As emphasized by the
United States Supreme Court,
The process of voir dire is designed to cull from the venire
persons who demonstrate that they cannot be fair to either
side of the case. Clearly, the extremes must be eliminated –
i.e., those who, in spite of the evidence, would automatically
vote to convict or impose the death penalty or automatically
vote to acquit or impose a life sentence.
Morgan v. Illinois, 504 U.S. 719, 734 n.7, 112 S. Ct. 2222 (1992) (quoting
Smith v. Balkcom, 660 F.2d 573, 578 (5th Cir. 1981)).
As the United States Court of Appeals for the Sixth Circuit has
asserted, “[a]mong the most essential responsibilities of defense counsel is
to protect his client’s constitutional right to a fair and impartial jury by
using voir dire to identify and ferret out jurors who are biased against the
defense.” Miller v. Francis, 269 F.3d 609, 615 (6th Cir. 2001). By posing
appropriate questions to prospective jurors, a defense lawyer is able to
exercise challenges in a manner that ensures the jury passes constitutional
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muster. See United States v. Blount, 479 F.2d 650, 651 (6th Cir. 1973).
Despite its significance, a trial lawyer is “accorded particular
deference when conducting voir dire” and his or her “actions during voir
dire are considered to be matters of trial strategy.” Hughes v. United States,
258 F.3d 453, 457 (6th Cir. 2001). Also, “[a] strategic decision cannot be
the basis for a claim of ineffective assistance unless counsel’s decision is
shown to be so ill-chosen that it permeates the entire trial with obvious
unfairness.” Id. Thus, it is imperative for a petitioner claiming ineffective
assistance of counsel during jury selection to demonstrate that the resulting
jury was not impartial. See Smith, 357 S.W.3d at 348 (citing James A.
Dellinger v. State, No. E2005-01485-CCA-R3-PD, 2007 WL 2428049, at
*30 (Tenn. Crim. App., Aug. 28, 2007)).
William Glenn Rogers v. State, No. M2010-01987-CCA-R3-PD, 2012 WL 3776675, at
*35-36 (Tenn. Crim. App. at Nashville, Aug. 30, 2012).
The post-conviction court ruled as follows on this particular claim of ineffective
assistance of counsel:
Initially, this court notes [post-conviction] counsel asked attorney
[trial co-counsel] very few questions about the jury selection in petitioner’s
case and presented little evidence in general relating to the selection of the
jury in petitioner’s case. As to his contention trial counsel should have
utilized a jury questionnaire, this court finds petitioner has presented no
evidence to support his claim prospective jurors’ responses would have
differed had a jury questionnaire been utilized. There simply was no proof
presented at the post-conviction hearing to suggest prospective jurors
would have been more candid in their responses if responding via a jury
questionnaire. Moreover, this court notes juror questionnaires are
discretionary and are routinely either denied or modified by trial courts.
This was likely particularly true in the early 1990s. Thus, this court does
not find trial counsel’s failure to request a questionnaire, alone, falls so far
below the accepted level of representation as to render their representation
of petitioner ineffective. Petitioner also asserts absent a jury consultant,
trial counsel failed to conduct adequate voir dire and failed to select a fair
and impartial jury. However, this court finds petitioner has again failed to
present evidence supporting his claim the jury was not fair and impartial
based upon the failure of trial counsel to hire a jury consultant.
As to the issue of life qualifying the jury, this court finds, although
trial counsel may not have extensively inquired into each potential jurors
ability to consider mitigation and if appropriate impose a sentence less than
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death, both the prosecution and the court thoroughly covered the sentencing
process. Thus, even if this court were to find trial counsels’ questioning of
the jurors on this issue was deficient, given the jurors were properly
informed by the court of their obligations to consider all forms of
punishment and hold the state to their burden of proof, this court finds
petitioner was not prejudiced by counsels’ inaction.
We agree with the post-conviction court. The argument presented by the
Petitioner in his brief on appeal on the issue of jury questionnaires and a selection expert
consists solely of the following statement: “Mr. Odom’s 1992 trial counsel failed to
move for and/or utilize a jury questionnaire or retain expert assistance in jury selection.”
The Petitioner offers no other argument, citation to authorities, or appropriate references
to the record in support thereof. This ground for relief must, therefore, be considered
waived. See Tenn. Ct. Crim. App. R. 10(b) (“Issues which are not supported by
argument, citation to authorities, or appropriate references to the record will be treated as
waived in this court.”). In any event, the Petitioner has failed to demonstrate any actual
prejudice resulting from counsels’ failure to utilize questionnaires or an expert during
jury selection. Nothing in the record suggests the jury impaneled was impartial. “It is
incumbent upon the petitioner and his post-conviction counsel to demonstrate how a jury
questionnaire or an expert in the field of jury selection might have made a difference.”
Prentiss Phillips v. State, No. W2004-01626-CCA-R3-PC, 2005 WL 1123612, at *6
(Tenn. Crim. App. at Jackson, May 12, 2005). This court held in Prentiss Phillips that,
because the petitioner did not call a jury expert during the evidentiary hearing, it was
unable to find prejudice. The same holds true here.
The Petitioner presents similarly meager arguments regarding counsel’s
questioning about jurors’ attitudes toward mitigation and mental health defenses: “They
also failed to ensure the jurors could consider and give effect to mitigation evidence, as
required by Morgan v. Illinois, 504 U.S. 719 (1992). Further, they failed to inquire about
the potential jurors’ attitudes toward mental disorders and mental state defenses.” These
unsubstantiated assertions must also be considered waived. See Tenn. Ct. Crim. App. R.
10(b). Regardless, because the Petitioner was granted a new sentencing hearing
following his initial direct appeal, no prejudice can be shown in this instance.
As to the questioning of specific jurors, the post-conviction court stated:
Petitioner also asserts trial counsel failed to inquire into potential
bias of certain prospective jurors. Specially, he argues trial counsel failed
to: (a) sufficiently rehabilitate Juror Bradley who stated he expected the
defense team to prove petitioner’s innocence; (b) sufficiently question Juror
Christopher who was robbed at gunpoint while working as a bank teller; (c)
sufficiently question Juror Davis who was also a victim of robbery; (d)
question Juror Nettles, a robbery victim, and the mother of a Memphis
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Police Officer who stated she believed a police officer’s credibility was
higher than the other witnesses. None of these witnesses testified at
petitioner’s post-conviction hearing and post-conviction counsel did not
question attorney [trial co-counsel] about the defense teams questioning or
lack of questioning of these jurors. Thus, this court finds even if trial
counsel were ineffective in their questioning of the jurors, petitioner has
failed to demonstrate he was prejudiced by counsels’ inaction.
Citing Smith v. State, the post-conviction court held that bias cannot be presumed “absent
either an affirmative statement of bias, willful concealment of bias, or failure to disclose
information that would call into question the juror’s bias.” 357 S.W.3d at 348.
The Petitioner did not present any proof during the evidentiary hearing that would
call into question trial counsel’s performance with regard to the questioning of these
jurors. Regardless, the trial transcript reveals that counsel did question each juror about
whether their past experiences would affect their ability to remain impartial and neutral.
Accordingly, the Petitioner’s argument that “[d]efense counsel ignored these glaring
biases” is without merit especially when all three jurors (Christopher, Davis, and Nettles)
stated they could remain impartial despite their experiences. As to Juror Bradley, the
Petitioner acknowledges that this juror was rehabilitated during voir dire. The Petitioner,
however, did not ask trial co-counsel during the evidentiary hearing why a peremptory
challenge was not used against that particular juror. Accordingly, it must be presumed
that counsels’ decision in that respect was reasonable trial strategy. Counsel cannot be
deemed to have been ineffective in this instance. The Petitioner is not entitled to relief
with respect to 1992 counsels’ actions during jury selection.
2. Jury Instructions
The Petitioner contends that counsel were ineffective during the original trial for
failing to object to the trial court’s jury instruction, which listed first degree murder as the
first option to consider and “not guilty” as the final option. As the post-conviction court
observed, however, our supreme court has held that sequential jury instructions do not
deprive a defendant of his or her constitutional right to a jury trial. See State v. Davis,
266 S.W.3d 896, 905 (Tenn. 2008). Accordingly, counsel cannot be deemed ineffective
for failing to challenge the jury charge in this respect.
3. Motion to Suppress Statement
The Petitioner contends that his original trial counsel were ineffective for failing to
argue competently that his statement to the police should have been suppressed. The
Petitioner complains that counsel filed only three “boilerplate” motions to suppress the
statement and did not present any evidence in support of their argument at the
suppression hearing other than the testimony of the Petitioner himself. The Petitioner
- 30 030
argues that counsel should have presented evidence of his troubled past to demonstrate
how he endured “reasonable fear and confusion during the nightlong interrogation.” He
also argues that his statement to the police would have been suppressed if the trial court
had been aware of his brain damage.
The post-conviction court disagreed, stating:
This court finds trial counsel were not ineffective in this regard.
Attorney [trial co-counsel] testified the defense argued the statements were
coerced but the trial court did not suppress the statement. However,
although the statements were not suppressed, she stated, the defense team
argued to the jury petitioner had been coerced by the police into giving a
statement. Furthermore, as noted elsewhere in this order, counsel did have
petitioner evaluated and Dr. Hutson did not indicate petitioner was
suffering from any conditions which could support a challenge to the
voluntariness or reliability of his confession. Likewise, neither Tora
Brawley nor Dr. Merikangas could say with certainty petitioner’s cognitive
deficits would have precluded him from exercising a valid waiver and
voluntarily providing a statement to police. The record in this case
indicates[] petitioner had the cognitive ability to be deceptive during his
police interrogation as he initially provided police with a false name.
Petitioner was able to discuss the commission of the offense in great detail
both with the police and with the defense team. Moreover, at the Motion to
Suppress [hearing] Sergeant McWilliams testified the petitioner had
indicated he understood his rights and stated the petitioner had never been
threatened or coerced. Upon hearing all the proof the trial court found
petitioner was not credible. This court finds nothing about the testimony
offered by Dr. Merikangas or Brawley would have likely influenced the
trial court’s conclusion the statement was voluntarily and knowingly given.
Thus, even if counsel were ineffective in failing to employ this strategy,
this court finds petitioner has failed to demonstrate he was prejudiced by
their inaction as it appears such an argument likely could not have been
sustained.
Based upon our review of the record, we conclude that trial counsel were not
ineffective in the handling of the motion to suppress. As noted above, the fact that a
particular strategy or tactic failed does not equate with deficient performance. Cooper,
847 S.W.2d at 528. Trial counsel moved to suppress the statement but were simply
unsuccessful in their attempt. Regardless, the Petitioner has not otherwise shown any
resulting prejudice. “In order to show prejudice, [the] Petitioner must show by clear and
convincing evidence that (1) a motion to suppress would have been granted and (2) there
was a reasonable probability that the proceedings would have concluded differently if
counsel had performed as suggested. Vaughn v. State, 202 S.W.3d 106, 120 (Tenn. 2006)
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(citing Strickland, 466 U.S. at 687, 104 S. Ct. at 2064-65). “In essence, the petitioner
should incorporate a motion to suppress within the proof presented at the post-conviction
hearing.” Terrance Cecil v. State, No. M2009-00671-CCA-R3-PC, 2011 WL 4012436,
at *8 (Tenn. Crim. App. at Nashville, Sept. 12, 2011). Contrary to his argument, the
Petitioner presented no clear and convincing evidence demonstrating a motion to
suppress would have been granted under some alternate theory. Accordingly, we agree
with the post-conviction court’s findings in this respect. Although he challenged trial
counsel’s failure to contest the signature on the statement as being his own, he does not
raise that issue on appeal. The Petitioner is not entitled to relief on this claim.
4. Presentation of Case
The Petitioner argues that counsel were ineffective during the guilt phase of the
original trial because they presented no witnesses on his behalf and failed to effectively
cross-examine the State’s witnesses. As the State observes, the Petitioner does not now
identify any potential witness trial counsel should have called to testify. In order to
prevail on a claim of ineffective assistance of counsel for failure to call a witness at trial,
a petitioner should present that witness at the post-conviction hearing. Pylant v. State,
263 S.W.3d 854, 869 (Tenn. 2008). “‘As a general rule, this is the only way the
petitioner can establish that . . . the failure to have a known witness present or call the
witness to the stand resulted in the denial of critical evidence which inured to the
prejudice of the petitioner.’” Id. (quoting Black v. State, 794 S.W.2d 752, 757 (Tenn.
Crim. App. 1990)).
As to the cross-examination of State witnesses, in the Petitioner’s brief on appeal,
he merely references the supplemental amended petition for post-conviction relief he
filed in which he challenged counsel’s failure “to effectively cross-examine police
witnesses on the poor chain of custody and crime scene handling of fingerprint
evidence.” The post-conviction court concluded that the Petitioner failed to establish
ineffective assistance of counsel on this ground:
He argues within fifteen minutes of the first officers arriving on the
scene, numerous police personnel were milling about the crime scene and
several individuals has [sic] access to the interior of the car where his
fingerprints were found. He contends trial counsel failed to ask any
questions challenging the possible contamination of the crime scene. He
further argues trial counsel were ineffective in questioning Officer William
Lee regarding the methodology Lee used to lift the print implicating him in
the crime. Specifically he argues trial counsel should have asked Lee about
whether he photographed the print prior to the lift. Finally, petitioner
contends trial counsel were ineffective in failing to question latent print
examiner, James Holder, about the inherent subjectivity in latent print
identification. . . .
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This court finds petitioner has failed to present any proof in support
of this allegation. There was no testimony about latent print examination
presented at the post-conviction hearing. No evidence was presented
demonstrating the crime scene was not properly secured; chain of custody
properly maintained; or, the lifting and examination of the prints properly
conducted. Moreover, in addition to the fingerprint evidence, petitioner
gave a statement in which he admitted to being present at the crime scene
and raping and stabbing the victim. Thus, even if counsel were [deficient]
in failing to challenge the fingerprint evidence in his case, petitioner has
failed to demonstrate he was prejudiced by counsel’s inaction.
The Petitioner does not explain how the post-conviction court’s ruling in this
respect is erroneous; instead, he simply refers to the authority cited in his supplemental
amended petition. In other words, the Petitioner offers no argument on appeal in support
of his claim that trial counsel were ineffective for failing to cross-examine the State’s
witnesses effectively. The issue must therefore be considered waived on appeal. See
Tenn. Ct. Crim. App. R. 10(b). Regardless, we agree with the post-conviction court that
the Petitioner is otherwise unable to demonstrate any resulting prejudice.
5. Juror Question
The Petitioner argues that trial counsel should have objected during the guilt phase
of the trial when a juror asked the medical examiner a question about the depth of one of
the stab wounds to the victim in relation to the length of the blade on the knife found on
the Petitioner at the time of his arrest. After testifying about the nature of the stab
wounds to the victim, the medical examiner testified that, although he could not
affirmatively state that the exact knife found on the Petitioner caused the wounds “to the
exclusion of all others in the world,” that knife was “quite consistent with producing the
wounds” to the victim. At the conclusion of the medical examiner’s testimony, a juror,
with permission from the trial court, asked the medical examiner a question about the
knife. The following is the entire verbal exchange between the juror and the medical
examiner:
Juror: Yes, sir. Sir, could you tell me how long that blade is on that knife?
Witness: I would have to have a ruler to measure it. It looks like about
three inches. (Pause) It appears to be about three inches, but I would have
to have a ruler to actually measure it.
Juror: And you said the penetration was four inches –
Witness: That’s correct.
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Juror: -- amongst the -Witness: What happens is that as the knife is penetrating the chest cavity
there’s some give to the chest cavity, so a three inch blade can produce a
five inch deep wound. It’s because of that give.
Trial Judge: All right, doctor, you may step down.
The Petitioner argues that the previously unsolicited testimony from the medical
examiner prejudiced his defense. The Petitioner cites State v. Jeffries, 644 S.W.2d 432
(Tenn. Crim. App. 1982), and Tennessee Rule of Criminal Procedure 24.1 in support of
his argument. The post-conviction court noted that Rule 24.1 was not adopted until 2003
and, thus, inapplicable to the Petitioner’s claim. The court also recognized that prior to
the implementation of Rule 24.1, “although the practice was discouraged, there was no
outright bar to juror questioning at the time of” the trial in 1992. See Byrge v. State, 575
S.W.2d 292 (Tenn. Crim. App. 1978); Raynor v. State, 447 S.W.2d 391 (Tenn. Crim.
App. 1969).
Initially, we agree with the State that the Petitioner has failed to carry his burden
of establishing deficient performance on the part of trial counsel. The Petitioner did not
question trial co-counsel as to why trial counsel did not object when the trial court
allowed the juror to question the witness. Given that the knife blade was shorter than the
depth of the stab wounds, the failure to object very well may have been tactical.
In any event, even if counsel should have objected, the post-conviction court
correctly ruled that at the time of the Petitioner’s trial, there was no absolute prohibition
to a juror being permitted to question a witness. As this court announced in Byrge,
“[E]ach case must be judged on its own facts in determining whether error has been
committed.” 575 S.W.2d at 295. Given the nature of the medical examiner’s testimony
and the limited line of questioning by the juror, the Petitioner has failed to demonstrate
that the trial court would have sustained an objection to the juror’s question. To the
extent the Petitioner couches his argument in terms of trial court error, said issue is
waived because the Petitioner failed to raise it on direct appeal. See Tenn. Code Ann. §
40-30-106(g). Accordingly, the Petitioner is not entitled to relief on this ground.
6. Investigation
The Petitioner contends that his original trial counsel “failed to investigate other
suspects and evidence supporting an argument that someone else may have been
responsible for the incident.” The testimony of trial co-counsel is summarized above.
She identified the members of the defense team, which included two attorneys and two
investigators, and she described the team’s strategy. Trial co-counsel explained that the
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decision making process was influenced by information about the case they already
knew, including the Petitioner’s confession. Upon review of the evidence presented in
post-conviction, the post-conviction court concluded that the Petitioner failed to
demonstrate how trial counsel were ineffective in their factual investigation: “Given the
constraints on the defense based upon petitioner’s confession to the crime and physical
evidence confirming his presence at the crime scene, counsel chose the only strategy
available to them and attempted to challenge the validity of petitioner’s statement.”
The Petitioner does not support his blanket statement on appeal that “the defense
team failed to conduct any meaningful investigation into the State’s case” with references
to any other evidence his attorneys should have uncovered. We agree with the State that
the Petitioner is required to demonstrate how counsel’s action or inaction affected the
outcome of the trial. The Petitioner has simply failed to carry his burden on this
particular claim and is, therefore, not entitled to any relief. See Tony Carruthers v. State,
No. W2006-00376-CCA-R3-PD, 2007 WL 4355481at *40 (Tenn. Crim. App. at Jackson,
Dec. 12, 2007) (“Moreover, the petitioner did not produce any witnesses or evidence that
pretrial counsel failed to investigate or uncover that would have altered the outcome of
the trial.”); Demarcus Sheriff Smith v. State, No. W2001-01353-CCA-R3-PC, 2002 WL
1482697, at *4 (Tenn. Crim. App. at Jackson, Mar. 8, 2002) (“If the claim is based upon
a failure to properly investigate, then the evidence or witness must be produced so that
the post-conviction court judge can properly evaluate the evidence or the witness.”) This
court may not guess as to what evidence further investigation may have uncovered.
Black, 794 S.W.2d at 757.
2007 Counsel
1. Evidence of Petitioner’s Neurological and Cognitive Impairments
The Petitioner claims that counsel rendered ineffective assistance during the third
sentencing hearing by not timely investigating, obtaining, and presenting evidence of his
neurological and cognitive impairments in mitigation despite the existence of evidence
that those impairments had existed since 1974. The Petitioner argues that his attorneys
waited too long before requesting the services of Dr. Angelillo to determine whether they
overlooked anything regarding the Petitioner’s mental health. He also argues that the fact
that Dr. Angelillo was called as a witness belies counsel’s assertion that they had ruled
out a mental health strategy in mitigation. Dr. Angelillo could not offer a specific
diagnosis about the Petitioner’s potential brain damage. The Petitioner blames counsel
for the incomplete evaluation because they did not retain the services of Dr. Angelillo in
a timely manner. The Petitioner contends that a mental health expert would have
complimented and contextualized lay witness and mitigation expert testimony by
explaining that the Petitioner’s traumatic experiences throughout childhood and
adolescence compromised his brain development. The Petitioner also argues that
counsel’s fear of arming the prosecution with ammunition of a personality disorder
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diagnosis came to fruition when Dr. Angelillo testified that the Petitioner had signs of a
personality disorder.
The Petitioner insists that had counsel further investigated evidence of his brain
damage, they would have been able to introduce the same type of evidence presented
during the post-conviction hearing. Citing Davidson v. State, the Petitioner asserts,
“Because mental illness can render a defendant less morally blameworthy, capital defense
attorneys who possess compelling evidence of mental defects have an obligation to make
a reasonable and fully-informed decision about presenting that evidence to the jury.” 453
S.W.3d 386, 405 (Tenn. 2014). He argues that, despite numerous “red flags” in the
reports found by counsel during their investigation, counsel did not subject him to
neuropsychological testing, which would have revealed impairments in his executive
functioning and cognitive deficits. According to the Petitioner’s argument, had counsel
presented the same type of mental health evidence he presented during the postconviction hearing, there is a reasonable probability that at least one juror would have
voted against the death penalty.
In addressing this claim, the post-conviction court issued the following findings:
At the post-conviction hearing [lead sentencing counsel] testified he
believed the defense had considered retaining a neurologist and conducting
a neurological examination of petitioner. However, [lead sentencing
counsel] testified when petitioner was confined to Parchman he was given a
battery of psychological tests and underwent a physical examination. He
stated the petitioner’s EEG was normal and the records indicate petitioner
suffers from traits of anti-social personality disorder but had no other
psychological issues. Testing was conducted by the Parchman officials to
determine if petitioner possessed any “organicity” or neurological deficits.
This examination found no neurological deficits and petitioner was found to
have a full scale IQ of 93. [Lead sentencing counsel] stated much of this
information had been discussed in petitioner’s prior sentencing
proceedings. In some cases, [lead sentencing counsel] testified he would
raise the issue of brain damage as mitigation; however, in petitioner’s case,
the defense theory was centered on petitioner’s future dangerousness and
behavior within the prison system. [Lead sentencing counsel] testified the
defense team considered these records in developing a theory of mitigation.
However, he again pointed out a diagnosis of anti-social personality
disorder directly undercut their arguments regarding future dangerousness.
He further stated these records would have contradicted any claim the
defense team would have made regarding neurological deficits or disorders.
[Lead sentencing counsel] testified petitioner underwent numerous
examinations over the years. He stated Dr. Cox’s assessment included
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particularly damaging information, specifically as it relates to future
dangerousness. Specifically, [lead sentencing counsel] recalled the records
from Parchman prison further indicated petitioner stated, “maybe I did it for
the joy of it,” referring to firing the second shot which killed the victim in
his Mississippi case and indicated “he had no feelings” or “sorrow” with
regard to his actions. The report also referenced Dr. Cox’s findings and
indicated Dr. Cox had diagnosed petitioner as possible schizo personality.
Attorney [sentencing co-counsel] likewise testified he was concerned about
the information which might be elicited if the defense team pursued a
defense based upon mental health and neurological deficits and stated based
upon the prior evaluations. [Sic].
[Sentencing co-counsel] stated usually a defense team would want to
put forward evidence of brain damage, if it exists, in a capital case.
However, in petitioner’s case, there was a long history of evaluations which
did not support such a claim. To present such proof, according to
[sentencing co-counsel], might appear disingenuous when considered in
light of petitioner’s complete mental health history; in such instances, there
is the potential such testimony may appear to be “bought and paid for.”
Thus, the defense chose to present emotional testimony from the
petitioner’s family relating to his traumatic childhood and difficulty in the
Mississippi juvenile system as well as a picture of petitioner as a productive
member of the penal system and someone highly amendable to
rehabilitation so long as he is confined to the prison system. [Sentencing
co-counsel] testified he reviewed petitioner’s complete mental health and
medical history before rejecting a mitigation theory based upon mental
health issues or cognitive impairments.
Both [lead sentencing counsel and sentencing co-counsel] testified
there were numerous discussions about theories of mitigation and the
proper strategy for the resentencing proceeding. He stated certain strategies
were rejected such as a theory based upon serotonin levels, brain
fingerprinting, and eventually a defense based upon supposed
neuropsychological deficiencies or disorders.
Likewise mitigation
investigator Shettles testified numerous theories of mitigation were
considered and rejected. Shettles specifically stated the defense team had
the benefit of seeing the two prior proceedings and reviewing what worked
and what did not work as a mitigation theory and indicated they formed the
mitigation strategy based in part of the failures of those prior proceedings.
The court continued:
Petitioner argues trial counsel failed to provide the retained experts
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all of the information needed to make a complete and proper assessment of
his cognitive and psychological issues. Specifically, petitioner asserts 2007
trial counsel ignored their own mitigation expert’s recommendation to
obtain a neuropsychological expert to testify to his temporal lobe
impairments. He asserts counsel did not request funding for a qualified
expert until nearly two months prior to his resentencing hearing. He
argues, because of trial counsels’ failure to timely act, Dr. Angelillo did not
have adequate time to review his extensive social history and mental health
background and records. Petitioner contends Dr. Angelillo administered
personality testing to petitioner but conducted no intelligence testing or
neuropsychological testing. He contends the testimony of Dr. Angelillo at
trial demonstrates his lack of preparedness. He asserts Dr. Angelillo
informed the jury, because he did not have the data he had requested by
prior mental health experts, notably a neuropsychological evaluation, a PET
scan, and an EEG, he was unable to administer the tests necessary to
evaluate petitioner to determine if he had a major mental disorder. He
argues, as a consequence, Dr. Angelillo stated he had a difficult time
determining how much of petitioner’s impairments and behaviors were due
to physical organic brain injury and how much was due to psychological
issues.
At the post-conviction hearing, [lead sentencing counsel and
sentencing co-counsel] testified Dr. Angelillo’s testimony was not the
primary focus of their mitigation strategy. Rather, counsel stated they
attempted to present a theory of mitigation to the jury based upon the fact
petitioner, due to his prior life sentence in Mississippi, would never be
released from prison if the jury gave a life sentence. Counsel stated in
conjunction with this argument they attempted to demonstrate petitioner
had a good record while incarcerated and would not pose a danger to others
if the jury spared his life. Trial counsel testified, in addition to this primary
theory, the defense also used petitioner’s difficult background to argue to
the jury petitioner was essentially forsaken by the system. Both [lead
sentencing counsel and sentencing co-counsel] indicated they felt this proof
was best presented by the petitioner’s family members and indicated the
role of Dr. Angelillo was merely to enhance and support much of the
information provided by the family and to support their assertion petitioner
posed no real future dangerousness so long as he was incarcerated.
At trial, Dr. Angelillo testified the lack of sufficient mental health
treatment afforded the petitioner as a child, the rejection he had
experienced, and the physical and sexual abuse he had undergone all had a
profound effect on his development. Dr. Angelillo testified the petitioner’s
time in the structured environment of Riverbend had been beneficial in
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modifying his behaviors and modulating his ability to engage in
constructive activities. Dr. Angelillo expressed an opinion the petitioner
would continue to thrive in this structured environment if given a life
sentence. In addition to the testimony of Dr. Angelillo, Glori Shettles, the
mitigation investigator in both petitioner’s 1999 and 2007 resentencing
proceedings testified as an expert in parole procedures and stated it was
very unlikely petitioner would ever be released from prison. Her
statements were supported by other prison officials. Shettles spent
extensive time interviewing and building relationships with petitioner’s
family. Due to these relationships Shettles was able to convince several
family members to testify on petitioner’s behalf. Petitioner’s family
described the extremely difficult, neglectful and abusive circumstances of
petitioner’s childhood and petitioner’s brother described the conditions
experienced by petitioner while incarcerated at Columbia Training School
and Parchman Prison. Both attorneys and Shettles stated this testimony
was incredibly powerful.
Considering a theory based upon cognitive impairments had been
previously unsuccessfully utilized by 1999 trial counsel, this court does not
find 2007 trial counsel were ineffective in failing to present an alternative
mitigation theory. Under these circumstances, this court does not find the
use of Dr. Angelillo as a compliment to this theory instead of as the
centerpiece of mental health mitigation case was ineffective.
It appears the decision to forego a strictly or even primary mental
health based theory of mitigation was made after extensive investigation by
counsel and the mitigation investigator after substantive deliberations
amongst the entire defense team. When asked about the decision at the
post-conviction hearing, counsel provided reasoned responses explaining
the exact investigation and considerations that went into making the
decision to follow a different strategy than prior counsel. Specifically,
attorney [sentencing co-counsel] acknowledged some of petitioner’s prior
mental health records contained warnings about petitioner’s mental
condition. However, according to [sentencing co-counsel], the fear of the
defense team was the introduction of this information might show evidence
of future dangerousness. He stated the goal of the defense team was to
demonstrate petitioner had been failed by the system. He expressed his
concern that, if petitioner was evaluated, the defense team could end up
with an adverse diagnosis such as anti-social personality disorder.
Based upon all the proof presented at the post-conviction hearing,
the testimony presented at petitioner’s 2007 resentencing proceeding and
the evidence presented at the prior proceedings, this court finds counsel
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were not ineffective in their preparation an[d] utilization of Dr. Angelillo’s
services.
Our supreme court has summarized the following principles specific to mitigation
in a capital case:
Capital defendants possess a constitutionally protected right to
provide the jury with mitigation evidence that humanizes the defendant and
helps the jury accurately gauge the defendant’s moral culpability. Porter v.
McCollum, [558 U.S. 30, 41, 130 S. Ct. 447 (2009)]; Williams v. Taylor,
[529 U.S. 362, 393, 120 S. Ct. 1495 (2000)]. Accordingly, capital defense
attorneys have an obligation to conduct a thorough investigation of the
defendant’s background. Williams v. Taylor, 529 U.S. at 396, 120 S. Ct.
1495. Defense counsel should make an effort to discover all reasonably
available mitigating evidence and all evidence to rebut any aggravating
evidence that the State might introduce. Wiggins v. Smith, [539 U.S. 510
524, 123 S. Ct. 2527 (2003)].
To provide effective representation, counsel must make either a
reasonable investigation or a reasonable decision that particular
investigations would be unhelpful or unnecessary. Wiggins v. Smith, 539
U.S. at 521, 123 S. Ct. 2527. Either way, counsel’s decision must indicate
a reasoned strategic judgment. Wiggins v. Smith, 539 U.S. at 526, 123 S.
Ct. 2527. Defense counsel should investigate the defendant’s medical
history, educational history, employment and training history, family and
social history, adult and juvenile correctional experiences, and religious and
cultural influences. Wiggins v. Smith, 539 U.S. at 524, 123 S. Ct. 2527.
Counsel is not required to investigate every conceivable line of
mitigating evidence, no matter how unlikely it is to help the defense. Nor
must counsel present mitigating evidence in every case. But “strategic
choices made after less than complete investigation are reasonable only to
the extent that reasonable professional judgments support the limitation of
the investigation.” Wiggins v. Smith, 539 U.S. at 533, 123 S. Ct. 2527
(internal quotation marks omitted). To determine whether counsel’s actions
were reasonable, a reviewing court should “consider not only the quantum
of evidence already known to counsel, but also whether the known
evidence would lead a reasonable attorney to investigate further.” Wiggins
v. Smith, 539 U.S. at 527, 123 S. Ct. 2527.
Davidson, 453 S.W.3d at 402.
The Davidson court concluded that trial counsel rendered ineffective assistance
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during sentencing because they failed to present evidence of the defendant’s brain
damage and cognitive disorders. The Petitioner in the case at hand relies on Davidson for
the proposition that his attorneys were ineffective for the same reason. Our supreme
court reached its conclusion in Davidson, however, based upon counsel’s “superficial
investigation.” Id. at 392. The attor
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