Opposition Brief — Jessie Dotson, Petitioner v. Tennessee

The post-conviction court denied this claim holding that in State v. Hutchison, 482

S.W.3d 893 (Tenn. 2016), the Tennessee Supreme Court found that an autopsy report was not

testimonial and, therefore, this claim has no merit. (PC Vol. 2, 382). The Hutchison opinion,

however, does not state that all autopsies are nontestimonial statements. The Hutchison Court

held that under the circumstances of that particular case, the autopsy report in that case was not

testimonial. Hutchison, 482 S.W.3d at 896.

In Hutchison, an autopsy report was admitted into evidence through the testimony of a

pathologist who did not conduct the autopsy. Jd. at 901. The testifying pathologist was not

permitted to testify about what was in the report but was allowed to indicate that she relied on

both the report and the autopsy photographs in arriving at her independent conclusions. Id. The

Tennessee Supreme Court found that the autopsy report in Hutchinson was not testimonial

because it lacked the formality and solemnity of affidavit, deposition, or prior testimony in that

author of the report neither swore to nor certified facts or findings contained in the report, and

the report was not made for purpose of proving guilt of a particular criminal defendant at trial

because the defendant was in custody at the time of the autopsy. Jd. at 912-14.

Neither of those rationales are applicable here. First, Dr. Laboy stated in all three of the

autopsy reports he prepared that: “The facts stated herein are correct to the best of my knowledge

and belief” and signed directly below that statement on each report. (Trial Exs. 298, 384, 458).

Each report also contained a signed statement from the County Medical Examiner indicating that

the “information contained herein regarding such death is true and correct to the best of my

knowledge and belief.” (/d.). Accordingly, the autopsy reports prepared by Dr. Laboy possess

sufficient “indicia of solemnity.” Williams, 567 U.S. at 110-11 (Thomas, J., concurring) (quoting

Davis 547 U.S. at 836-37).

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Second, in Hutchison, the defendant was arrested at the time the crime was discovered, so

he was already in custody when the autopsy was performed. Hutchison, 482 S.W.3d at 911. The

autopsy was not done in order to “bring an end to an ongoing threat.” Williams, 567 U‘S. at 83.

Once again, that was not the case here. The murders occurred in the early morning hours of

March 2, 2008. The autopsies were conducted on March 4. Mr. Dotson was not arrested until

March 8. Accordingly, at the time Dr. Laboy performed the three autopsies, no one had been

arrested for committing these crimes and the police were searching for suspect(s). As Sergeant

James Max testified, the police initially had “no suspects. It was what they called a cold case”

and the police were investigating whether the murders were committed by members of the

Gangster Disciples. (Trial Vol. 25, 1426, 1447). Thus, the autopsies were conducted, in part, to

aid the police investigation anid produce evidence that would lead to an arrest, “bring an end to

an ongoing threat,” and establish or prove events relevant to the prosecution of this case.

Lastly, in Hutchinson, the testifying pathologist relied solely on her training, expertise,

and judgment to forge independent conclusions. Hutchison, 482 S.W.3d at 91]. She did not

testify about what was in the autopsy report. Yet again, that was not the case here. Dr. Funte

testified at length about the autopsy reports prepared by Dr. Laboy and his conclusions,

including, but not limited to, describing a diagram made by Dr. Laboy and photographs that were

taken during the autopsies that he performed. (See, e.g., Trial Vol. 27, 1806-23). Here, the

Confrontation Clause was violated because Dr. Funte’s testimony did not rely solely on her

independent judgment.

Accordingly, for all of these reasons, Mr. Dotson’s case is distinguishabie from

Hutchison and that opinion is not a bar to relief on this claim.

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At the post-conviction hearing, trial counsel testified that they did not object to Dr. Funte

addressing the three autopsies that she did not perform because the defense was not disputing the

cause of death. (PC Vol. 11, 267-68). That testimony is seemingly contracted by the defense’s

motion in limine asking for a hearing to challenge the introduction of most, if not all, of the

crime scene and related photographs. (Trial Vol. 2, 273-75). Trial counsel testified that the crime

scene photographs were “horrendous,” “some tough stuff,” and “were that bad.” (PC Vol. 10,

56-57). Objecting to the testimony of Dr. Funte regarding three autopsies that she did not

conduct would have been consistent with their strategy to prevent the introduction of

inflammatory photographs.

Mr. Dotson respectfully asks this Court to look at the following two examples of the

numerous inflammatory photographs taken during the autopsies conducted by Dr. Laboy which

would have been excluded if counsel had objected: photograph taken during the autopsy of

Hollis Seals. (Trial Vol. 27, 1800, 1816-17; Trial Ex. 274); and photograph taken during the

autopsy of Cecil Dotson, Sr. (Trial Vol. 27, 1866, 1879-81; Trial Ex. 359).

Counsel had no reasonable strategy for failing to object to Dr. Funte’s testimony

respecting the autopsies Dr. Laboy performed, and that failure allowed the prosecution to put

prejudicial evidence before the jury. In failing to object, counsel rendered ineffective assistance.

XIV. Trial counsel violated Article I, §§ 8, 9, and 16 of the Tennessee Constitution and the

Sixth, Eighth, and Fourteenth Amendments to the United States Constitution when

they failed to challenge effectively the testimony of State witnesses.

Mr. Dotson’s trial counsel failed to meet prevailing professional norms in regard to

witness preparation, which resulted in prejudice to Mr. Dotson. Even in non-capital cases, The

National Legal Aid and Defender Guidelines, Guideline 7.5—Presenting the Defense Case,

require counsel to develop a plan for direct examination of each potential defense witness,

prepare all witnesses for direct and possible cross-examination, and conduct appropriate redirect

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examination. Counsel should anticipate the weaknesses of the State’s proof and prepare for

cross-examination by thoroughly reviewing discovery and integrating the defense theory of the

case. Id., Guideline 7.4. Counsel did not conduct examinations accordingly and thus failed to

submit the State’s case to sufficient adversarial testing. Rather than adhere to baseline

professional standards, trial counsel fell woefully short of them.

Counsel’s cross-examination of police witnesses reflects off-the-cuff questioning by

looking at police supplements, rather than questioning bore of careful review of all records in

order to ascertain a timeline of the police investigation. Jessie Dotson was first interviewed on

March 4, 2008. During Sergeant Walter Davidson’s testimony, counsel questioned him about

asking Sergeants Joseph Stark and James Max to interview Mr. Dotson on March 5, 2008. (Trial

Vol. 24, 1142}. During Mr. Dotson’s testimony, counsel questioned him about his interview with

the police on March 5, 2008. Trial Vol. 29, 2173~—74. This is despite the fact that days earlier Sgt.

Max had clarified that the interview was on March 4, 2008 and his supplement incorrectly dated

the interview as March 5, 2008.74 (Trial Vol. 25, 1431).

Not only did trial counsel’s failure to notice the date discrepancies signal a lack of

familiarity with the police investigation timeline, but it also marked a lost opportunity to crossexamine the officers on human errors regarding the incorrect supplement which would have

diminished the credibility of the officers who investigated this case. At the post-conviction

hearing, trial counsel testified that their guilt phase defense was that Mr. Dotson was innocent,

these crimes were committed by multiple assailants and “there is not one shred of physical

evidence to corroborate the State’s theory.” (PC Vol. 10, 53: PC Vol. 11, 265). Given trial

24 It is apparent from the time stamp regarding entry of the supplement and the context of the entry that March 4,

2008 was the correct date. (PC Ex. 47).

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counsel’s theory of the case, there can be no reasonable strategy to justify their failure to crossexamine the officers about the incorrect supplement.

Failing to cross-examine key witnesses falls below the reasonable standard of

performance required by the Sixth Amendment. See Higgins v. Reinco, 470 F.3d 632-34 (6th

Cir. 2006). When significant grounds exist to challenge a witness’s testimony, the failure to do

so constitutes ineffective assistance of counsel. Cargle v. Mullin, 317 F.3d 1196, 1211 (10th Cir.

2003); Blackburn v. Foltz, 828 F.2d 1177, 1183 (6th Cir. 1987). Although counsel had a basis to

impeach the officers’ testimony and raise concerns about the integrity of the police investigation

in this case, they failed to use the incorrect supplement to confront the State’s witnesses.

Had the officers been effectively cross-examined, there is a reasonable likelihood that Mr.

Dotson would have been found not guilty of first degree murder.

The post-conviction court denied this claim, finding that the defense team “more than

sufficiently investigated the discovery and prepared for trial.” (PC Vol. 2, 379). The lower court

added that trial counsel planned their defense around the fact that there was no physical evidence

connecting Mr. Dotson to the crimes and strategically focused on the issues which were

beneficial to their case. (/d.) Using the incorrect supplement for cross-examination, however, is

consistent with the defense innocence theory as it undermines the credibility of the police who

investigated the case. Thus, there is no strategic or tactical reason for failing to cross-examine the

police about the inconsistency, and the tools to do so were readily available to trial counsel.

In another instance of ineffective representation, trial counsel failed to object to Sergeant

Anthony Mullins’s testimony as a supposed bloodstain pattern analysis expert. (Trial Vol. 18,

160-61). Dr. Marilyn Miller, a leading expert on crime scene reconstruction, testified on behalf

of Mr. Dotson at his post-conviction hearing and raised concerns about what specialized training

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Sgt. Mullins had in the area of blood spatter analysis. (PC Vol. 12, 344). There is no shortage of

evidence belying Sergeant Mullins’s “expertise.” Sergeant Mullins used incorrect terminology,

misidentified several impact spatters as castoff stains, and testified to opinions which only a

forensic pathologist would hold the expertise to address, such as his testimony that Shindri

Roberson was shot on the couch and then was moved down onto the floor and that the four adult

victims were moved, either close to or possibly after death. (Trial Vol. 19, 261, 278-79; Trial

Vol. 22, 764-65; PC Vol. 12, 401; PC Ex. 55). Dr. Miller raised concerns that Sergeant Mullins

did not write a report. (PC Vol. 12, 371). She noted that most bloodstain pattern analysis experts

will write a report and that report will be reviewed by another bloodstain pattern analysis expert

for completeness and accuracy. (/d.). That did not happen here. Furthermore, a crime scene

reconstruction based on blood stain patterns should be based solely on an analysis of the

evidence found at the crime scene. (/d.) Sergeant Mullins’s conclusions, however, were tainted

by relying on statements of the surviving witnesses and Mr. Dotson which “is not the foundation

of crime scene reconstruction work.” (Id. at 371—72). As a result, Sergeant Mullins’s conclusions

were based on subjectivity, not objectivity. Ud. at 372).

Sergeant Mullins was also allowed to testify as an expert in general crime scene

investigation but testified erroneously in regard to that as well. He incorrectly testified that

control samples of carpet were taken to provide examiners a visual of samples without blood

stains. (Trial Vol. 19, 263). Rather, carpet control samples are taken to ensure background

substrate is not interfering with tests of blood-stained samples. (PC Ex. 55).

In none of these instances did trial counsel object to Sergeant Mullins’s testimony or to

his qualifications as an expert. Blood spatter analysis is regarded as a “complicated subject,”

whose use is to recreate the events of a crime. State v. Halake, 103 S.W.3d 661, 672 (Tenn.

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Crim. App. 2001). Accordingly, a police officer asked to “engage in a blood spatter analysis”—

as was the case in both Halake and the one at hand—may not always be qualified to do so. Jd. In

Mr. Dotson’s case, trial counsel should have objected to qualification of Sergeant Mullins as an

expert and conducted a voir dire to demonstrate his insufficient qualifications. Mr. Dotson was

prejudiced by this failure to object to and challenge Sergeant Mullins’s testimony. A proper voir

dire would have resulted in a limitation of this testimony.

The trial court denied this claim, concluding that Dr. Miller’s testimony does not

establish prejudice. (PC Vol. 2, 379. The lower court is incorrect. Dr. Miller raised numerous

concerns about Sergeant Mullins’s fitness as a bloodstain pattern analyst and crime scene

reconstructionist. Her review of Sergeant Mullins’s methodology and conclusions indicated a

plethora of areas ripe for cross-examination which would have allowed trial counsel to challenge

Sergeant Mullins’s testimony and raised questions about the integrity and validity of the crime

scene investigation in this case. Dr. Miller also testified that if she had been present in the

courtroom during Sergeant Mullins’s trial testimony—because she would not have known in

advance what his conclusions were since he did not issue a report—she could have consulted

with trial counsel and helped the defense craft their cross-examination of him. (PC Vol. 12, 385—

86). Had counsel performed reasonably and effectively cross-examined Sergeant Mullins, the

jury would likely have doubted his credibility and conclusions, which would likely have led

them to question the prosecution’s case. With Sergeant Mullins’s testimony discounted, at least

one juror, looking at the remaining evidence, would have a reasonable doubt about Mr. Dotson’s

guilt or whether he deserved the death penalty.

In another instance of ineffective representation, defense counsel’s attempt to discredit

Willie Boyd Hill (aka “Frank”) backfired badly and completely undermined defense counsel’s

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theory that a group that included persons named Roderick and Cassandra—who C.J. had named

as suspects—-were tied to Willie Hill, who in turn was part of the Gangster Disciples and who

had a motive to kill Cecil, Sr. Counsel questioned Mr. Hill about his Facebook friend Roderick

Deshun Hill. (Trial Vol. 24, 1251-52). The Facebook page of Roderick Deshun Hill was

introduced as an exhibit, as was a picture of Willie Hill’s sister Cassandra. (Trial Exs. 251-52).

When Willie Hill denied personal knowledge of Roderick Hill, counsel asked if he was “sitting

in this courtroom today looking at his picture and you don’t know who he is?” (Trial Vol. 24,

1252). When Hill suggested that Roderick had probably requested him because of the same last

names, counsel asked “[t]hat’s as true as everything else you’ve told us?” (/d.). Hill confirmed

that it was.

The State located Roderick Deshun Hill and presented him as a witness. (Trial Vol. 28,

1986-87). He confirmed his Facebook page, (Trial Ex. 252), and stated that he did not personally

know Willie Hill. Roderick was sixteen years old at the time of trial and thirteen in March of

2008.

The State, in guilt phase closing, capitalized on defense counsel’s unforced error,

arguing:

The defense brought you in here and they handed this Facebook page up to Willie

Boyd Hill and he’s, like, I don’t know who this guy is. Yeah, here’s Roderick.

Here’s Roderick. We brought you Roderick in here, didn’t we? We brought you

that middle school kid who was 13 years old at the time in here and let you see

him and talk to him; Roderick. Wasn’t Willie Boyd Hill, GDs or anything else.

(Trial Vol. 30, 2312). In rebuttal closing, the prosecutor again ridiculed defense counsel’s

blunder, tying it in to the defense theory in whole:

Then they bring in a Facebook page of Roderick. We’ve got to pull him out of

school. Why are they doing all this? Because they don’t want you to look at the

proof. They don’t want you to look at the facts and the evidence. It’s smoke and

mirrors.

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(Id. at 2366). Followed by:

How are you going to follow up Roderick and Cassandra? How many Cassandras

are there in the world? Roderick? How many Rodericks are there in the world?

We know one, right? We've got his Facebook page. He was 13 at the time.

How are you going to investigate that? A bloody mask? That kid was laying in a

tub for 40 hours. He was dreaming. He was seeing things. And what’s the moral

to the story, ladies and gentlemen? Think about it. If you get a knife in your head,

if you get a knife in your head and you lay in a tub for 40 hours in your own blood

and you get a craniotomy, be careful what you say because it could help let your

attacker go free. That’s absurd. It’s smoke and mirrors. C.J. knows who put the

knife in his head. He knows it and he told you who did it.

(Id. at 2381).

The post-conviction court denied this claim, finding “the defense clearly put the

reasonable doubt issues before the jury, especially as it related to C.J.’s identification of

Petitioner and version of events.” (PC Vol. 2, 380). In so holding, the lower court assumed the

defense “did all they could with the alternative theory issues.” (Jd.). The lower court ignores the

fact that questioning Mr. Hill about the Facebook page of Roderick Deshun Hill sabotaged any

attempt to connect Roderick and Cassandra—who C.J. had named as suspects—to the Gangster

Disciples. In doing so, the defense implied that a thirteen year old boy was the assailant at Lester

Street. That notion was ludicrous, hurt defense counsel’s credibility, and undermined any

“reasonable doubt” and “alternative theory” issues.

XV. Mr. Dotson’s counsel violated Article J, §§ 8, 9, and 16 of the Tennessee Constitution

and the Sixth, Eighth, and Fourteenth Amendments to the United States

Constitution when they failed to object to inflammatory and irrelevant testimony.

Counsel failed to object and move to strike inflammatory and irrelevant testimony

resulting from the State’s direct examination of Sergeant Walter Davidson. When asked by the

25 As discussed in Section XVII, below, counsel failed to object and move to strike these improper comments. Some

of these issues were raised on appeal, for example “smoke and mirrors,” but they were waived and thus “review

[was] limited to plain error.” Dotson, 450 S.W. 3d at 99.

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prosecution if Sgt. Davidson had “ever seen anything like this,” counsel should have objected—

the sergeant’s personal experience was irrelevant to a finding of Mr. Dotson’s innocence or guilt.

(Trial Vol. 23, 1046). In the absence of an objection, Sergeant Davidson responded “it was a

tough thing to handle, I’ll just say.” (/d.). The prosecutor then commented, not asked, that

Sergeant Davidson “can only speak for [himself] and what was in [his] mind, [his] state of

mind.” (/d.) The prosecutor continued: “did you want to get the person or persons who actually

did it... .?” Ud.). Sergeant Davidson confirmed that he did and would not have rested in the

effort. (d.).

The prosecutor then asked, again with no defense objection, whether Sergeant Davidson

wished he had never been on duty that night and Davidson agreed. (/d.). Sergeant Davidson

testified that, as he prepared for trial and reviewed photographs of things he had done, he

recounted holding a child whose throat was slit and moving the child’s head in order to take

pictures. (Id. at 1047-48). This line of questioning was improper in direct examination as

Sergeant Davidson’s mental state at the time he investigated this case and in preparing for trial

was not at issue.

Trial counsel were ineffective in failing to object and moving to strike this testimony.

There can be no explanation for counsel’s failure to object to such inflammatory testimony. This

prejudiced Mr. Dotson as this testimony served no purpose other than to arouse the passions of

the jury, as the proof was fear-inducing, inflammatory, and distractive to the relevant questions

in Mr. Dotson’s case. See Martin v. Grosshans, 424 F.3d 588, 591-92 (7th Cir. 2005) (counsel

ineffective for failing to object to irrelevant and prejudicial testimony of prosecution witness);

Crotts v. Smith, 73 F.3d 861, 867 (9th Cir. 1996) (counsel ineffective for failing to object to non-

probative inflammatory testimony).

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The traumatic effect that working this case had on this police officer has no bearing on

the question of whether Mr. Dotson committed the Lester Street attacks. Due to counsel’s failure

to object, the jury was informed that the crimes were so egregious they invoked trauma in a

seasoned police detective. Counsel’s failure to object to this testimony permitted the State to

sensationalize and dramatize the offense.

Additionally, appellate counsel was ineffective for failing to raise and preserve this

record-based claim on direct appeal. At the time of Mr. Dotson’s appeal, a death-sentenced

appellant could raise any issue appearing on the face of the record, whether it was raised below

or not, and receive de novo review of the issue. See State v. Bigbee, 885 S.W.2d 797, 805 (Tenn.

1994); State v. Martin, 702 S.W.2d 560, 564 (Tenn. 1985); State v. Duncan, 698 S.W.2d 63, 67—

68 (Tenn. 1985); State v. Strouth, 620 S.W.2d 467, 471 (Tenn. 1981). Because Mr. Dotson’s

challenge to Sergeant Davidson’s testimony has merit, competent counsel should have raised it

on direct appeal and there can be no strategic consideration weighing in favor of appellate

counsel’s failure to litigate this issue. When appellate counsel fails to raise such a clearly

meritorious claim, the failure to do so constitutes ineffective assistance. Claudio v. Scully, 982

F.2d 798, 799 (2d Cir. 1992) (when there is a “reasonable probability that the neglected claim|[s]

would have succeeded on appeal, [] counsel’s failure to raise the claim f[alls] outside the range

of reasonably competent assistance.”); Jackson v. Leonardo, 162 F3d. 81 (2d Cir. 1998) (“In the

instant case, we believe that appellate counsel’s failure to raise a well-established,

straightforward, and obvious... [claim] . . . constitutes ineffective performance.”).

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XVI. Trial counsel violated Article I, §§ 8, 9, and 16 of the Tennessee Constitution and the

Sixth, Eighth, and Fourteenth Amendments to the United States Constitution when

they made improper comments during opening statement at the sentencing hearing.

During opening statement at the penalty phase, defense counsel told the jury that Mr.

Dotson’s case had more aggravating circumstances than he had ever seen. (Trial Vol. 31, 2470).

Counsel’s statement solidified in the jurors’ minds that Mr. Dotson was truly the “worst of the

worst” and therefore, deserving of the death penalty.

Counsel’s acquiescence that his client deserved a death sentence was objectively

unreasonable and a violation of counsel’s “duty of loyalty to the client, from which derive[s] the

‘overarching duty to advocate the defendant’s cause. .. .”” See Rickman v. Bell, 131 F.3d 1150,

1154 (6th Cir. 1997). “A defense attorney who abandons his duty of loyalty to his client and

effectively joins the state in an effort to attain a conviction or death sentence suffers from an

obvious conflict of interest.” Osborn v. Shillinger, 861 F.2d 612, 629 (10th Cir. 1988). Indeed,

“an attorney who is burdened by a conflict between his client’s interests and his own sympathies

to the prosecution’s position is considerably worse than an attorney with loyalty to other

defendants, because the interests of the state and the defendant are necessarily in opposition.” Jd.

Counsel’s admission that Mr. Dotson’s actions warranted the death penalty were

obviously prejudicial as the lawyers charged with saving his life were seemingly in agreement

with the prosecutors about the circumstances fitting into a category where death was the most

appropriate option. Mr. Dotson was therefore denied the right to effective assistance of counsel

during this critical stage, which requires his sentences be vacated. See Mazzan v. State, 675 P.2d

409, 412 (Nev. 1984).

In denying relief on Mr. Dotson’s claim, the post-conviction court recounted trial

counsel’s beliefs that (1) if the jury convicted Mr. Dotson of the crimes it would be difficult to

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obtain sentences less than death; (2) they needed to maintain credibility with jurors and, as a

result, they could not deny that the aggravating circumstances applied; and (3) residual doubt

was a strong mitigating circumstance. (PC Vol. 2, 389). But as Mr. Dotson discusses previously,

trial counsel’s defense strategy was fundamentally flawed, and it cannot provide a basis for any

decision counsel made. Even if it could, by the time of the sentencing hearing jurors had already

credited the State’s assertions that Mr. Dotson’s lawyers were engaged in various form of

chicanery aimed at confusing the jurors. (See, e.g., Trial Vol. 13, 2363-64 (defense counsel

deploying smoke and mirrors to confuse jurors); id. at 2386 (defense counsel throwing

unfounded possibilities at jurors in an effort to confuse them); id. at 2388-89 (defense counsel

bashing the victims and the police to make up for a lack of a defense); id. at 2390-91 (defense

counsel throwing ridiculous possibilities against the wall); id. at 2395 (defense counsel offering

ridiculous explanations)). As a result, defense counsel had no credibility left for the sentencing

hearing, and there was nothing that counsel’s opening statement could salvage. Counsel rendered

ineffective assistance by informing jurors he believed the prosecution had shown his client was

the worst of the worst. See Lindstadt v. Keane, 239 F.3d 191, 203 (2d Cir. 2001) (ineffective

assistance found when, among other things, counsel admits in opening statement that the

prosecution had made its case); State v. Harbison, 337 S.E.2d 504, 507-08 (N.C. 1985) (counsel

renders ineffective assistance when he admits the defendant's guilt to the jury without the

defendant’s consent).

XVII. Mr. Dotson’s counsel violated Article I, §§ 8, 9, and 16 of the Tennessee Constitution

and the Sixth, Eighth, and Fourteenth Amendments of the United States

Constitution when they failed to prevent and/or challenge the prosecution’s

improper closing argument.

Tennessee courts recognize that a prosecutor commits misconduct during closing

argument when he:

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(1) intentionally misstates or misleads jurors about the evidence;

(2) expresses a personal belief or opinion as to the defendant’s guilt;

(3) expresses a personal belief about the truth or falsity of any evidence, including

vouching for the trustworthiness of State witnesses;

(4) expresses a personal desire or any desire of the district attorney’s office;

(5) makes statements calculated to make jurors fearful or otherwise inflame their passions

or prejudices, including arguments that jurors must act in a specified way to protect the

community, protect themselves, or provide justice to a victim’s family members;

(6) injects broader issues in the trial other than the guilt or innocence of the accused;

(7) intentionally refers to or argues facts outside the record that are not matters of

common public knowledge;

(8) tells jurors that they have a duty or obligation to vote for a specified result; or

(9) refers to a defendant in abusive terms, directs argument at the defendant or his

counsel, or disparages defense counsel and/or the defendant’s trial strategy.

State v. Sexton, 368 S.W.3d 371, 419-20 (Tenn. 2012); State v. Bigbee, 885 S.W.2d 797, 812

(Tenn. 1994); State v. West, 767 S.W.2d 387, 395 (Tenn. 1989); State v. Beasley, 536 S.W.2d

328, 330 (Tenn. 1976); Vines v. State, 231 S.W.2d 332, 334-35 (1950); Knight v. State, 229

S.W.2d 501, 503-04 (Tenn. 1950); Watkins v. State, 203 S.W. 344, 345-46 (Tenn. 1918); State v.

Goltz, 111 S.W.3d 1, 5-7 (Tenn. Crim. App. 2003); State v. Lunati, 665 S.W.2d 739, 747-48

(Tenn. Crim. App. 1983); State v. Smith, 639 S.W.2d 677, 682 (Tenn. Crim. App. 1982); State v.

Hicks, 618.S.W.2d 510, 519-20 (Tenn. Crim. App. 1981); Jenkins v. State, 509 S.W.2d 240

(Tenn. Crim. App. 1974).

Given the substantial history of Shelby County prosecutors making improper closing

arguments in criminal triais, see State v. Jackson, 444 S.W.3d 554, 590 (Tenn. 2014), trial

counsel were on notice that the attorneys prosecuting Mr. Dotson would engage in misconduct

during argument. Prior to trial, counsel made no effort to prevent the foreseeable from

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transpiring, such as filing a motion in limine. This failure, in and of itself, constitutes a deficient

performance. See White, J. Penny, Tennessee Capital Case Handbook, at 298, 625 (Tennessee

Association of Criminal Defense Attorneys, 2014) (prior to trial, defense counsel in a capital

case should file a comprehensive motion in limine seeking to preclude the prosecution from

making improper comments during closing argument); State v. Brobeck, 751 S.W.2d 828, 832-

34 (Tenn. 1998).

Because trial counsel failed to file a motion in limine, the prosecution was able to again

engage in its historical practice of misconduct. At the guilt stage prosecutors made the following

improper statements during closing argument:

(1) “C.J. knows what happened because he was there and he saw Jessie Dotson do it.”

(Trial Vol. 30, 2305 (personal belief about the truth of a witness’s testimony, vouching));

(2) Prosecutor asks jurors to consider why defense counsel] did not ask C.J. and Cedrick

“Who did this to you?” and offers his answer: “Because they didn’t want the answer.” (/d. at

2307 (comment on defense strategy));

(3) “Never once, not once did they say C.J., can you tell me what happened and

describe.” (/d. (comment on defense strategy));

(4) Regarding the defense suggestion that Gangster Disciples were responsible for the

murders, the prosecutor argues, “[Y]eah, the GDs did this. Lie after lie after lie... .” dd. at 2310

(personal belief about veracity of witness testimony));

(5) “[W]e know who the killer is.” (Id. at 2313 (personal belief));

(6) Cecil was “[t]urned face over in his own house with his pants pulled down.” (/d. at

2362 (fact not in evidence, factually inaccurate));

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(7) “The defense doesn’t have to put on any proof, but they still get to do some things.

And they did them in this trial. Smoke and mirrors.” (/d. at 2363-64 (comment on defense

strategy);

(8) “There’s so much smoke in this courtroom right now I’m surprised you can even see

Jessie Dotson sitting over there, taking your attention off of the facts and the proof in this case

and putting it on everyone else.” (/d. at 2364 (comment on defense strategy));

(9) “Using confusion and mere possibility to make you think there’s reasonable doubt in

this case.” (Id. (comment on defense strategy));

(10) “And it’s interesting to me how the defense can stand up here and talk about Vernon

Motley and the Gangster Disciples and all these things with some gusto and then when they talk

about his confession, oh, you need to throw that out.” (Ud. at 2364-65 (comment on defense

strategy);

(11) Regarding Roderick: “We've got to pull! him out of school.” (Id. at 2366 (fact not in

evidence));

(12) “The women would have been in shock.” (/d. at 2369 (fact not in evidence));

(13) “As soon as he shot Cecil, [Shindri] was jumping up to the back. That’s why she’s

up on the chair. She’s like oh, my God, She’s in shock.” (Jd. at 2369-70 (facts not in evidence));

(14) “What do you think the women are going to do? They don’t have a gun. They just

saw two men murdered in front of them. You don’t think they’re going to be scared to death and

maybe hoping, hoping he would stop there and not kill women. They might have believed in

their hearts that they wouldn’t die. What are they going to do?” (/d. at 2371 (facts not in

evidence));

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(15) “And I don’t care what gang members and we’re not here defending gang members.

That’s ridiculous.” (/d. at 2374 (comment on defense strategy));

(16) “Cecil Dotson, Senior’s, pants were pulled down. If you look at the blood, Jessie

turned him and then pulled his pants down. What’s the purpose of that?” Ud. at 2376 (facts not in

evidence, incorrect));

(17) “You want to bring in experts and confuse kids? Fine. You want to sit a chair here

in front of that poor kid and lead him through things so he says yes, sir, which their expert told

them not to do, fine. But don’t not believe that kid. Because he took courage to come in here and

he survived this for a reason.” (/d. at 2382 (comment on defense strategy, personal belief,

vouching));

(18) “[W]hat do you have to do to somebody to make them confess to that? I don’t think

that exists. I don’t think there is anything a human being could do to another human being to

make them confess to slicing up kids, sorry.” Ud. (personal belief, vouching));

(19) “Why did [Skahan] leave [“a doubt that may arise from possibility”] out? Because

that’s exactly all they’ve done in this case, is try to throw possibilities at you, try to take your

focus away from Jessie Dotson.” (Jd. at 2386 (comment on defense strategy));

(20) “Now when there is no defense in a case, this is the kind of stuff you’re going to

see. You judge whether or not you’ve seen this in this trial. You judge it. Bash the victim. Well

that’s not hard, right, because Cecil was a gang member.” (/d. at 2388 (comment on defense

strategy));

(21) “The big one, attack the police. That’s defense 101. If they’ve got a strong case, if

they’ ve got a strong case, go after the police because they’re a bunch of big, bad mean people

that don’t care about anybody. Really?” (/d. at 2389 (comment on defense strategy));

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(22) “They’re getting blamed for a case they didn’t solve. C.J. solved it.” (id. (comment

on defense strategy, personal belief, vouching));

(23) “The rabbit did it theory. I came up with that one because these hairs, no pun

intended. Think about it. They found a rabbit hair clutched in one of the women’s hands. Does

that mean the rabbit did it? And I’m not trying to insult your intelligence. What I’m trying to

show you is how ridiculous it is what they’re throwing up on the wall and trying to get you to

grab.” (Id. at 2390-91 (comment on defense strategy));

(24) “Wow. J lost count, ladies and gentlemen. J think we had the Asian heroin cartel,

Mexican drug cartel, Craig Petties, Vernon Motley, Roderick and Cassandra, guy in a bloody

mask and I’m not sure if that’s Roderick. ... Every bit of that was to take your focus off the guy

sitting over there.” (/d. at 2393 (comment on defense strategy));

(25) “Because [Jessie Dotson] lied to you and you know he did [in his testimony].” Ud.

(personal belief re witness testimony));

(26) “The first thing you need to look at and I don’t think it’s dispositive. I don’t think he

could have fit under (a bed in the master bedroom.)” (/d. (personal belief));

(27) “So [Jessie’s] lying. . .. But see, when you’re going to get up on the witness stand

and lie in a case like this, you’re going to get caught. ” (Ud. at 2394 (personal belief re witness

testimony));

(28) “The bleach explanation is ridiculous. The coerced statement is ridiculous.” (/d. at

2395 (personal belief re witness testimony, comment on defense strategy));

(29) “Did you see the cross of his mother? He didn’t touch her. A couple questions and

sat down. Why? Because truth that strong you can’t touch, not even with good lawyering skills.”

(Id. (personal belief re witness testimony, comment on defense strategy));

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(30) “And his mother did something that she had to do. She had to tell you the truth. Just

like Jessie told her the truth.” (/d. (personal belief about the truthfulness of witness testimony));

(31) “And any other verdict than guilty just tells those boys they survived for nothing.”

(Ud. at 2397 (inflammatory - suggesting jurors should provide victim’s justice)); and

(32) “It’s time. It’s time for everybody to get out of this house. It’s time for every victim

to leave this house. And there’s only one way, justice. It’s the only way. It’s the only way.” (dd.

at 2397. (inflammatory - suggesting jurors should provide victims justice)).

For the reasons set out in the parentheticals following the incidents inventoried above, the

prosecution’s statements constituted misconduct. Given the repeated nature of the prosecution’s

improper statements, these statements violated Mr. Dotson’s rights to due process and a fair trial.

Defense counsel rendered a deficient performance when they failed to file a motion in

limine seeking to preclude the prosecution’s improper comments, to object to those comments, to

move for a mistrial, and to challenge them on direct appeal. Had counsel done so, a reasonable

probability exists that the trial court would have granted a mistrial or the appellate court would

have granted a new trial due to the prosecution’s due process violations. See Tappan v. State,

2010 WL 3463310 at *7—-8 (Tenn. Crim. App. Sept. 3, 2010); Johnson v. State, 2006 WL 721300

at *15—18 (Tenn. Crim. App. 2006); Holmes v. State, 2004 WL 2253991 at *4 (Tenn. Crim. App.

2004); Taylor v. State, 2004 WL 350641 at *9 (Tenn. Crim. App. 2004).

In its sentencing rebuttal closing argument, the State made the following improper

remark: “And now Jessie is begging for his [life]? Did Marissa get a jury? What about Shindri?

Did she get a jury? Did somebody have to find aggravating circumstances for her to get the death

penalty?” (Trial Vol. 31, 2547). These remarks improperly commented on Mr. Dotson’s

invocation of his constitutional right to a jury trial. See State v. Bond, 2006 WL 2689688 at *8—9

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(Tenn. Crim. App. Sept. 20, 2006) (finding that the prosecutor’s remarks blaming the defendant

for the lengthy trial and jury sequestration were “improper” insofar as they asked the jury to

penalize the defendant for exercising his constitutional right to a jury trial). See also State v.

Hines, 919 8.W.2d 573 (Tenn. 1995) (a violation of the defendant’s right to counse} occurs when

a prosecutor seeks to penalize the defendant for exercising his constitutional right); State v.

Jackson, 444 $.W.3d 554, 590 (Tenn. 2014) (improper comment on right not to testify).

Because counsel failed to object to the prosecution’s sentencing comment and other

additional instances of prosecutorial misconduct, on direct appeal this Court concluded that it

was limited to plain error review of them, and it denied relief under that review standard. Dotson,

450 S.W. 3d at 99-101. Had this Court not been limited to plain error review, a reasonable

probability exists that it would have concluded that the cumulative effect of the State’s

intentional, inflammatory comments designed to prejudice the jurors during closing and rebuttal

arguments required reversal of Mr. Dotson’s convictions and/or death sentences. See, ¢.g., Delk

v. State, 590 S.W.2d 435 (Tenn. 1979) (improper comment on defendant’s failure to call witness

and improper questions designed to suggest presence of inadmissible evidence); see also State v.

Sexton, 368 S.W.3d 371, 413-26 (Tenn. 2012). As a result, counsel’s failure to object to the

prosecution’s misconduct and challenge it on direct appeal constitutes ineffective assistance.

In denying relief on Mr. Dotson’s ineffective assistance of counsel claim, the postconviction court expressed its belief that the challenged prosecution comments were based on the

evidence presented at trial and reasonable inferences drawn therefrom. (PC Vol. 2, 387-88). But

the lower court does nothing to explain the basis for its belief. It provides no record cites

supporting its belief, nor does it explain how its belief overcomes the impropriety of the

comments Mr. Dotson identified. As a result, the lower court’s ruling does not comply with the

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Post-Conviction Procedures Act’s requirement that post-conviction decisions must state findings

of facts and conclusions of law with regard to each ground a petitioner raises. Tenn. Code Ann. §

40-30-111(b). This failure is more than a technicality, given that the lower court’s basis for

denying relief cannot apply to prosecution comments vouching for a witness’s credibility,

comments expressing the prosecutor’s personal beliefs, and comments seeking to inflame the

jurors’ passions or prejudices. Because the lower court’s explanation for its decision fails to

provide the grounding Section 111(b) requires, it fails to provide a legitimate basis for the lower

court’s denial of relief. See Nance, 2006 WL 1575110 at *3.

XVIII.The prosecution violated Article I, §§ 8, 9 and 16 of the Tennessee Constitution and

the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution

when it made improper remarks during closing argument.

For the reasons expressed above, the prosecution’s closing argument violated Article I,

§§ 8, 9, and 16 of the Tennessee Constitution and the Sixth, Eighth, and Fourteenth Amendments

to the United States Constitution.

In denying relief on Mr. Dotson’s prosecutorial misconduct claim, the post-conviction

court stated without any analysis or citation to authority that “these claims have been waived

and/or previously determined.” (PC Vol. 2, 383, 388). This cursory statement does not comply

with the Post-Conviction Procedures Act. Section 40-30-111(b) required the lower court to state

its findings of facts and conclusions of law with regard to each ground Mr. Dotson raised in his

petition. Tenn. Code Amn. § 40-30-111(b). As to Mr. Dotson’s misconduct claim, the lower

court’s cursory order does not do so. The order does not identify which portions of Mr. Dotson’s

misconduct claim the court believed were waived. Nor does it identify those portions the court

believed previously determined. Nor does it find facts or set out legal conclusions as to any

portion of Mr. Dotson’s misconduct claim. As a result, the lower court’s cursory “waived and/or

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previously determined” ruling provides no basis for denying Mr. Dotson relief. See Nance, 2006

WL 1575110 at *3.

XIX. Mr. Dotson’s counsel violated Article I, §§ 8, 9, and 16 of the Tennessee Constitution

and the Sixth, Eighth, and Fourteenth Amendments to the United States

Constitution when they failed to challenge/request jury instructions.

Counsel’s negligent failure to object to a proposed jury instruction can provide the basis

for an ineffective assistance of counsel claim, see Dean v. State, 59 S.W.3d 663, 666-67 (Tenn.

2001), as can counsel’s failure to request a specified instruction. In Mr. Dotson’s case, counsel

rendered ineffective assistance in regard to the following jury instructions.

A. Trial counsel failed to object to the instruction requiring jurors to consider

the court’s substantive instructions in a specific order.

Counsel failed to object to (1) the order of the jury instructions which listed first degree

murder as the first option and not guilty as the final option; and (2) the instructions’ requirement

that, before jurors could consider the lesser included offenses of first degree murder, the jury had

to unanimously agree that Mr. Dotson was not guilty of first degree murder. (Trial Vol. 6, 15-16;

Trial Vol. 30, 2400-03).

When lesser included offenses are charged, as occurred in this case, the highest degree

should not be the first instruction. Rather, the order must begin with the lesser charges to ensure

that the defendant’s defense is reliably considered by the jurors. See Falconer v. Lane, 905 F.2d

1129, 1136-37 (7th Cir. 1990). The order and manner in which a jury is asked to consider

degrees of guilt is critical to their determination, and the instructions here created a presumption

in favor of for first degree murder convictions.

The post-conviction court rejected this claim, citing State v. Davis, 266 S.W.3d 896, 901—

05 (Tenn. 2008), where the Tennessee Supreme Court upheld “acquittal-first” jury instructions.

(PC Vol. 2, 391). Mr. Dotson respectfully asserts that Davis was wrongly decided and that

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acquittal-first instructions are inherently coercive. See Davis, 266 S.W.3d at 912 (Wade, J.,

concurring in result only) (finding that “acquittal-first instructions” are inherently coercive and

therefore erroneous and recommending the adoption of a “reasonable efforts” instruction in

which jury could consider lesser offense if unable to agree); see also Tenn. Op. Atty. Gen. No.

06-006 at *2 (2006) (instruction that allows jury to consider lesser offense if unable to agree on

greater is consistent with Tennessee law). The instructions violated Mr. Dotson’s rights to a fair

trial and to due process under that state and federal constitutions.

B. Trial counsel failed to object to the eyewitness identification instruction.

At trial, the State presented C.J. and Cedrick’s testimony that they had purportedly seen

Mr. Dotson commit the Lester Street attacks. But for the reasons Mr. Dotson sets out in Section

IVE of his Statement of Facts, supra, both of these identifications were fundamentally flawed,

and their testimony was unreliable. Accordingly, it was critical for Mr. Dotson’s jurors to have

the proper tools to weigh their credibility. The jurors, however, were instructed to consider

several factors regarding the credibility of identification testimony, among which was “the

degree of certainty expressed by the witness regarding the identification . . . .” (Trial Vol. 18,

62). Trial counsel rendered ineffective assistance by failing to object to the eyewitness

identification instruction. Not only did counsel fail to object to the improper instruction, they

compounded this error by telling the jury, during closing argument, to consider the degree of

certainty. (Trial Vol. 30, 2320).

More than fifty years ago, in United States v. Wade, 388 U.S. 218, 229 (1967), the United

States Supreme Court recognized that “the vagaries of eyewitness identification are well known;

the annals of criminal Jaw are rife with instances of misidentification.” Jd. Eyewitness

misidentification is “the single most important factor leading to wrongful convictions in the

United States.” United States v. Brownlee, 454 F.3d 131, 141 (3d Cir. 2006) (quoting C. Ronald

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Huff et al., Guilty Until Proven Innocent: Wrongful Conviction and Public Policy, 32 Crime &

Deling. 518, 524 (1986)). Many jurists agree that eyewitness identifications are the most

devastating and persuasive evidence in criminal trials. See, e.g., Watkins v. Sowders, 449 U.S.

341, 352 (1981) (stating that “[t]here is almost nothing more convincing than a live human being

who takes the stand, points a finger at the defendant, and says ‘That’s the one!’”) (Brennan, J.,

dissenting) (citations omitted). Up to eighty percent of the time, juries believe witnesses making

eyewitness identifications, regardless of whether the witnesses are correct in their identification.

Gary L. Wells et al., Effects of Expert Psychological Advice on Human Performance in Judging

the Validity of Eyewitness Testimony, 4 Law & Hum. Behav. 275, 278 (1980).

Decades of social science research—published before Mr. Dotson’s trial—has confirmed

the lack of connection between the certainty of an eyewitness identification and its accuracy. See,

e.g., Wells & Olson, Eyewitness Testimony, 54 Ann. Rev. Psych. 277, 285-90 (2003) (reviewing

major developments in experimental literature relating to the accuracy of eyewitness

identification). One survey concluded that 74 percent of eyewitness identification experts agreed

that confidence does not predict accuracy. Brewer, Keast & Rishworth, The Confidence-

Accuracy Relationship in Eyewitness Identification: The Effects of Reflection and

Disconfirmation on Correlation and Calibration, 8 J. Experimental Psych. 44-56 (2002). Some

studies have even indicated that there is a negative correlation between a witness’s memory of

events surrounding an incident and the accuracy of their identification. Brian L. Cutler et al., The

Reliability of Eyewitness Identification: The Role of System and Estimator Variables, 11 L. &

Hum. Behav. 233, 253-54 (1987); Pigott & Brigham, The Relationship Between the Accuracy of

Prior Description and Facial Récognition, 70 J. Applied Psych. 547 (1985).

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These developments in the social sciences have led several states’ highest courts to

conclude that instructions that jurors should consider an eyewitness’s certainty about their

identification are based on fallacy and are unfairly harmful to defendants, as it was to Mr.

Dotson. In determining that courts should not instruct the jury to consider the certainty of the

eyewitness, the Massachusetts Supreme Court explained:

[I]n cases tried hereafter, the challenged language should be omitted from the

standard instruction concerning eyewitness testimony. It is probably true that the

challenged instruction has merit so far as it deals with the testimony of a witness

who expressed doubt about the accuracy of her identification, whether that

identification was made during her testimony, or at a “showup” or lineup. Where,

however, the witness has expressed great confidence in her identification of the

defendant, the challenged instruction may pose a problem because . . . there is

significant doubt about whether there is any correlation between a witness’s

confidence in her identification and the accuracy of her recollection.

Commonwealth v. Santoli, 680 N.E.2d 1116, 1121 (Mass. 1997). See also New Jersey v.

Henderson, 27 A.3d 872, 917, 926-27 (N.J. 2011) (citation omitted) (the New Jersey Supreme

Court, based on scientific research, ordered lower courts to utilize jury instructions that did not

mention the consideration of witness certainty, observing that when “social scientific

experiments in the field of eyewitness identification produce ‘an impressive consistency in

results,’ those results can constitute adequate data on which to base a ruling”); People v.

LeGrand, 867 N.E.2d 374, 380 (N.Y. 2007) (the New York Court of Appeals noted research

findings showing that “the professed confidence of the subjects in their identifications bears no

consistent relation to the accuracy of these recognitions”) (citing 1 McCormick, Evidence §206,

880 (6th ed. 2006)); Brodes v. State, 614 $.E.2d 766, 770—72 (Ga. 2005) (the Georgia Supreme

Court held that the eyewitness certainty factor be omitted from the standard instruction because

empirical studies showed no correlation between eyewitness certainty and accuracy).

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Federal courts have also acknowledged the jack of correlation between a witness’s

certainty and their accuracy in identifying a suspect. See, e.g., United States v. Bartlett, 567 F.3d

901, 906 (7th Cir. 2009); Brownlee, 454 F.3d at 142-44. Trial counsel should have objected to

the eyewitness identification instruction and refrained from furthering its false implications.

The failure to ensure that the jury is properly instructed constitutes prejudicially deficient

performance in violation of Article I, §§ 9, and 16 of the Tennessee Constitution and the Sixth

and Fourteenth Amendments to United States Constitution. See Everett v. Beard, 290 F.3d 500,

509 (3d Cir. 2002) (trial counsel ineffective for failing to object to jury instructions that lessened

the prosecution’s burden of proving specific intent); Burns v. Gammon, 260 F.3d 892, 897 (8th

Cir. 2001) (finding ineffective assistance where counsel failed to request a curative cautionary

jury instruction); Combs v. Coyle, 205 F.3d 269, 286 (6th Cir. 2000) (counsel ineffective for

failing to object to jury instruction on both state law and constitutional grounds); Freeman v.

Class, 95 F.3d 639, 642 (8th Cir. 1996) (counsel was constitutionally ineffective for failing to

request a cautionary instruction on accomplice testimony that was available under state law);

Nero v. Blackburn, 597 F.2d 991 (5th Cir. 1979) (counsel was ineffective for failing to move for

a mistrial which would have been mandatory under state law).

Trial counsel could not have any strategic basis for failing to object to an eyewitness

identification instruction that bolstered the questionable eyewitness testimony and was in conflict

with a wealth of social science research and studies. Nor could trial counsel have a strategic

reason for compounding this error during closing argument. As the federal court held in Whitney

v. Horn, 280 F.3d 240, 258 (3d Cir. 2002), where counsel had failed to object to an erroneous

intoxication instruction, “we cannot imagine any justification for a defense attorney not

attempting to correct this type of error in an instruction ....” Jd. As a result, Mr. Dotson was

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prejudiced, as the jury could have followed the court’s instruction and convicted Mr. Dotson of

first degree murder based on the degree of certainty C.J. and Cedrick expressed regarding their

identifications of Mr. Dotson. Accordingly, Mr. Dotson’s rights to due process and a fair trial

were violated.

The post-conviction court denied relief because in 1995 the Tennessee Supreme Court

issued an opinion in State v. Dyle approving eyewitness jury instructions that encourage juror

consideration of an eyewitness’s claim of certainty. (PC Vol. 2, 392); see State v. Dyle, 899

S.W.2d 607 (Tenn. 1995). But, as Mr. Dotson sets out above, research and court opinions since

then, and prior to Mr. Dotson’s trial, combine to establish flaws in the assumptions underlying

the Court’s Dyle opinion. As a result, counsel had available arguments that “time and subsequent

cases have washed away the logic of [Dyle,]” see Hurst v. Florida, 577 U.S. 92, 102 (2016), and

counsel were ineffective for failing to make them in an effort to keep jurors from receiving the

eyewitness certainty instruction. See Woodson, 428 U.S. at 305 (the Eighth Amendment

mandates a heightened need for reliability in capital cases).

C. Trial counsel failed to object to confusing sentencing instructions regarding

unanimity and failed to request an instruction explaining the consequences of

a hung sentencing jury.

The trial court gave Mr. Dotson’s sentencing jury two different instructions on what it

should do upon unanimously finding an aggravating circumstance or circumstances. First, the

court told the jury that upon unanimously finding an aggravating circumstance or circumstances,

jurors “shall” sentence Mr. Dotson to either life imprisonment without the possibility of parole or

imprisonment for life. (Trial Vol. 6, 57-58). But after doing so, the trial court gave the jurors a

contradictory instruction that should they unanimously find an aggravating circumstances or

circumstances, they should then go on to consider whether they should sentence Mr. Dotson to

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death. (Id. at 58-59). These two confusing instructions are impossible to reconcile, and they

could only foster confusion among the sentencing jurors. Trial counsel’s failure to take measures

aimed at letting jurors know the legal effect of their confusion further impugned the jurors’

sentencing hearing deliberations.

The Tennessee death penalty statute provides that

If the jury cannot ultimately agree on punishment, the trial judge shall inquire of

the foreperson of the jury whether the jury is divided over imposing a sentence of

death. If the jury is divided over imposing a sentence of death, the judge shall

instruct the jury that in further deliberations, the jury shall only consider the

sentences of imprisonment for life without possibility of parole and imprisonment

for life. If, after further deliberations, the jury still cannot agree as to sentence, the

trial judge shall dismiss the jury and the judge shall impose a sentence of

imprisonment for life.

Tenn. Code Ann. § 39-13-204(h). Even though a hung sentencing jury meant a sentence less than

death for Mr. Dotson, trial counsel failed to ask the trial court to inform jurors of this reality. As

a result, jurors facing the confusing unanimity instructions pointing to two different paths upon

their finding of an aggravating circumstance or circumstances had no idea of the results that their

subsequent actions or inactions would trigger. Counsel could have remedied this defect by

requesting that the trial court instruct the jurors about the legal effects of their inability to agree

on a sentence as a result of their confusion.

Mr. Dotson acknowledges that the Tennessee death penalty statute provides that the trial

court cannot inform a capital sentencing jury on the effect of its failure to agree on a punishment.

Tenn. Code Ann. § 39-13-204(h). But trial counsel could have argued that under the

circumstances present in Mr. Dotson’s case, failure to instruct the jury of the consequences of a

hung sentencing verdict would violate Mr. Dotson’s constitutional rights.

Article I, §§ 8 and 16 of the Tennessee Constitution and the Eighth and Fourteenth

Amendments to the United States Constitution require that capital sentencing procedures must

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provide a process that will guarantee, as much as is humanly possible, that a death sentence will

not be imposed out of whim, passion, prejudice, or mistake. Eddings'v. Oklahoma, 455 U.S. 104,

118 (1982)(O’ Connor, J., concurring). Without knowing the legal effect of their failure to agree

on a punishment, jurors could allow into their sentencing deliberations mistaken beliefs about

what could happen if they do not agree. Jurors could misbelieve that their failure to agree might

require a new trial, and that misbelief’s added pressure could convince a juror holding out for life

to vote for death. As a result, the Section 204(h) prohibition introduces the possibility of

mistaken information entering into a capital sentencing jury’s deliberation, and it therefore

violates Article I, §§ 8 and 16 of the Tennessee Constitution and the Eighth and Fourteenth

Amendments to the United States Constitution. See Mak v. Blodgett, 970 F.2d 614, 624 (9th Cir.

1992). Had trial counsel requested a hung sentencing jury instruction, they could have presented

this argument, and a reasonable probability exists that either (1) the trial court would have

instructed the jurors on the consequences of their inability to agree unanimously on Mr. Dotson’s

punishment; or (2) an appellate court would have vacated Mr. Dotson’s death sentence had the

trial court not given the hung jury instruction. See McFarland v. Yukins, 356 F.3d 688, 710 (6th

Cir.2004); Tappan v. State, 2010 WL 3463310 at *7-8 (Tenn. Crim. App. 2010); Johnson v.

State, 2006 WL 721300 at *15—18 (Tenn. Crim. App. 2006); Holmes v. State, 2004 WL 2253991

at *4 (Tenn. Crim. App. 2004).

In denying relief on Mr. Dotson’s ineffective assistance of counsel claim, the postconviction court cited State v. Ivy, 188 S.W.3d 132 (Tenn. 2006), to support a statement that the

Tennessee Supreme Court has upheld the constitutionality of capital sentencing unanimity

instructions. (PC Vol. 2, 391). As to federal constitutional issues, however, the United States

Supreme Court is the final arbiter. See State v. Gomez, 163 S.W.3d 632, 650-51 (Tenn. 2005). In

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addition, the lower court failed to recognize that a valid ineffective assistance of counsel claim

does not require counsel's act or omission to involve a violation of another constitutional right.

Dean, 59 S.W.3d at 667. For the reasons discussed above, irrespective of whether the Tennessee

Supreme Court has rejected challenges to confusing unanimity instructions such as those given

Mr. Dotson’s sentencing jury, and irrespective of whether those violations violated the State

and/or federal constitutions, counsel rendered ineffective assistance when they failed to take

action aimed at removing uncertainty and misinformation from the jurors’ sentencing decision.

D. Trial counsel failed to object to defective reasonable doubt instructions.

Prior to the jurors’ guilt stage deliberations, the trial court instructed them that

A reasonable doubt is that doubt created by an investigation of all the proof in the

case and an inability, after such investigation, to let the mind rest easily as to the

certainty of guilt. Absolute certainty of guilt is not demanded by the law to

convict of any criminal charge, but moral certainty is required and this certainty is

required as to every element of proof necessary to constitute the offense.

(Trial Vol. 6, 5-6). Prior to the jurors’ sentencing deliberations, the trial court gave them

an identical instruction, adding that “Reasonable doubt does not mean a doubt that may

arise from a possibility.” (Trial Vol. 6, 45). These instructions violated Article I, §§ 8 and

16 of the Tennessee Constitution and the Eighth and Fourteenth Amendments to the

United States Constitution.

Because all doubt arises from possibilities, the trial court’s instruction that reasonable

doubt does not include a doubt arising from a possibility excluded jurors from considering any

doubt, including a reasonable one, in their deliberations. After precluding jurors from

considering any doubt, the trial court improperly told them to base their guilt and sentencing

decisions on a “moral certainty” as opposed to an evidentiary certainty. Individually and in

combination, these instructions gave rise to a reasonable likelihood that jurors believed they

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