Appendix — Henley v. Bell (No. 07-1194)

Supreme Court brief2007

Ask Donna

What actually matters in this document.

Text

UNITEDSTATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

STEVE HENLEY, Petitioner-Appellant,

RICKY BELL, Warden, Riverbend Maximum Security

Institution, Respondent-Appellee.

No. 03-5891.

Argued: Nov. 28, 2006.

Decided and Filed : May 15, 2007.

Rehearing and Rehearing En Banc

Denied Oct. 17, 2007

487 F.3d 379

Before: SILER, COOK, and COLE, Circuit Judges.

COOK, J., delivered the opinion of the court, in

which SILER, J., joined. COLE, J. (pp. 391-96),

delivered a separate opinion concurring in part and

dissenting in part.

OPINION

COOK, Circuit Judge.

Petitioner Steve Henley was convicted of two

counts of murder and aggravated arson in violation of

Tennessee law and was sentenced to death. He filed a

petition for habeas corpus that alleged twenty-one

errors in the state-court proceedings. The district

court denied the petition, but granted a Certificate of

Appealability (COA) as to one issue, and we permitted 4

Henley to expand the COA to include five additional 4

claims. For the reasons set forth below, we affirm the a

judgment of the district court. ss

I. Background 3

The Tennessee Supreme Court found the following :

facts in Henley’s direct appeal, State v. Henley, 774 .

S.W.2d 908, 912 (Tenn.1989): s

In summary the evidence showed that Fred and 4

Edna Stafford lived on Pine Lick Creek Road in a

Jackson County, just a short distance from the farm, x

owned by Henley’s family, where his grandmother

lived. On the day of the Staffords’ death Henley had

visited his grandmother and obtained some

mechanical parts for some work he was doing. Flatt

was with him. Earlier in the day they had been

driving about, tending to business affairs of a

Henley’s. During that time they had consumed 4

some beer and also had taken some drugs, referred )

to in the record as Dilaudids. According to Flatt, as

they passed the Staffords’ residence Henley

commented, “there was some people that lived on

that road that owed his grandmother or grandfather

some money, and they done him wrong, his

grandparents wrong years before, and he was going

to stop and see about collecting some money off

them.” Henley let Flatt out of the truck just before

he reached his grandmother’s house. When he

returned five or ten minutes later he had a .22 rifle

with him. They stopped fifty or seventy-five yards

up the road where Henley loaded some more shells

into the rifle. He also filled a plastic jug with a

gasoline from a five-gallon can he had in the back of 3

the truck. They proceeded on toward the Stafford 4

residence. When they reached there Mr. and Mrs.

Stafford were standing on the left-hand side of the

road looking at a small bridge where some

construction work had recently been done. Henley

stopped the truck, jumped out and told them, “I

want your money, if you don’t give it to me this man

in the truck here, he’s going to kill me.” He then

directed them to go to the house. Mr. Stafford said,

“Steve, if you want money or something, I got $80,

maybe $100, you can have it.” He forced them on to

the house at gunpoint and told Flatt to bring the .22

rifle as he followed behind them. When they got

within 20 or 30 feet of the house he told Flatt to give

him the rifle and go back to the truck and get the

plastic jug of gasoline. Flatt did as directed. As he

reached the porch he saw Henley begin to shoot.

He first shot Mr. Stafford then turned and shot Mrs.

Stafford a time ci: two. While she was laying on the

floor moaning and groaning he threw the rifle to

Flatt, took out his pistol and shot her again with the

pistol. He told Flatt to pour out some of the gas.

Flatt endeavored to do as he was told and poured

out a small amount. When he could not finish

Henley took the container of gas from him and

finished pouring it out. He then directed Flatt to

light it. When Flatt said he could not he struck the

match and as the flames went up they ran to the

truck.

The house burned to the ground. The bodies of the

Staffords were found in the ashes. All that

remained of Mr. Stafford’s body was part of the

right leg and the trunk area. The body of Mrs.

Stafford was similarly burned. It was determined

that Mr. Stafford died from a gunshot wound to the

chest with the bullet passing through his heart.

Mrs. Stafford’s death was caused by burns and

inhalation of noxious gases from the fire. It was the

opinion of the medical examiner that Mrs. Stafford

_ lived a minute or longer after the fire began.

In 1986, a Tennessee jury convicted Henley of two

counts of first-degree murder and one count of

aggravated arson. The jury recommended a death

sentence. The trial court sentenced Henley to death

for each murder and to twenty years imprisonment for

the aggravated arson conviction. The Tennessee

Supreme Court affirmed Henley’s conviction and

sentence on direct appeal. Henley filed a state post-

conviction petition in 1990, which the trial court denied.

The Tennessee Court of Criminal Appeals concluded

that Henley did not receive the effective assistance of

counsel during the sentencing phase of his trial and

vacated his death sentence. The Tennessee Supreme

Court reversed, over a two-justice dissent, and

affirmed the trial court’s denial of Henley’s petition.

Henley v. State, 960 S.W.2d 572 (Tenn.1997). Henley

filed a motion to reopen his state post-conviction

petition in 1999, and the trial court denied it. The

Tennessee Court of Criminal Appeals affirmed this

decision.

Henley filed a petition in the district court pursuant

to 28 U.S.C. § 2254 in 1998, which alleged twenty-one

grounds for relief. The district court denied each claim

and dismissed the petition. The district court granted

Henley a COA as to whether he procedurally defaulted

his claim that his accomplice testified falsely at his

trial, but denied him a COA on all other issues. We

permitted Henley to expand his COA to include the

following five issues: (1) whether women were

underrepresented in the selection of the foreperson for

Henley’s grand jury in violation of his due process

rights and his right to a fair cross-section of the

community serving on his jury; (2) whether Henley’s

counsel rendered ineffective assistance during the

sentencing phase of trial; (8) whether the trial court

improperly instructed the jury that it had to

unanimously find any mitigating factors in sentencing

Henley; (4) whether the prosecutor improperly

appealed to the jury to “send a message” as a reason

for sentencing Henley to death; and (5) whether the

prosecutor improperly vouched for the testimony of

Henley’s accomplice, Terry Flatt.

II. Standard of Review

We review de novo a district court’s legal

conclusions and mixed questions of law and fact, and

we review its factual findings for clear error.

Armstrong v. Morgan, 372 F.3d 778, 781 (6th Cir.2004);

Lucas v. O’Dea, 179 F.3d 412, 416 (6th Cir.1999).

Under the Antiterrorism and Effective Death Penalty

Act (AEDPA), a district court shall not grant a habeas

petition with respect to any claim that was adjudicated

on the merits in the state courts unless the adjudication

resulted in a decision that (1) was contrary to, or

involved an unreasonable application of, clearly

established federal law as determined by the Supreme

Court; or (2) was based on an _ unreasonable

determination of the facts in light of the evidence

presented to the state courts. 28 U.S.C. § 2254(d).

Under the “contrary to” clause, a federal habeas

court may grant the writ if the state court arrives at a

conclusion opposite to that reached by the Supreme

Court on a question of law, or if the state court decides

a case differently than the Supreme Court has on a set

of materially indistinguishable facts. Williams v.

Taylor, 529 U.S. 362, 412-13, 120 S.Ct. 1495, 146

L.Ed.2d 389 (2000). Under the “unreasonable

application” clause, a federal habeas court may grant

the writ if the state court identifies the correct

governing legal principle from the Supreme Court’s

decisions but unreasonably applies that principle to the

facts of the petitioner’s case. Jd. at 413, 120 S.Ct. 1495.

The court may look to lower courts of appeals’

decisions, not as binding precedent, but rather to

inform the analysis of Supreme Court holdings to

determine whether a legal principle had been clearly

established by the Supreme Court. Hill v. Hofbauer,

337 F.3d 706, 716 (6th Cir.2003). Finally, the habeas

petitioner has the burden of rebutting, by clear and

convincing evidence, the presumption that the state

court’s factual findings were correct. See 28 U.S.C.

§ 2254(e)(1); McAdoo v. Elo, 365 F.3d 487, 493-94 (6th

Cir.2004); Warren v. Smith, 161 F.3d 358, 360-61 (6th

Cir.1998).

III. Grand Jury Challenge

Henley claims he is entitled to relief under the Due

Process Clause based on the systematic exclusion of

women from the position of jury foreperson in Jackson

County, Tennessee. He presents evidence that from

1974 to 1994, a woman was never selected to serve as a

grand jury foreperson; Henley was indicted in 1985. At

this time, the foreperson in Tennessee played an

unusually important role because he was selected

independently by the judge as a thirteenth member of

the grand jury. See Campbell v. Louisiana, 523 US.

392, 402, 118 S.Ct. 1419, 140 L.Ed.2d 551 (1998). Thus,

the selection of the foreperson affected the grand jury’s

composition. In Campbell, the Supreme Court held

that defendants have standing to challenge racial

discrimination in the composition of the grand jury

used to indict them. Although Campbell addresses

race alone, Henley contends that this rule extends to

gender-based claims as well. In order to raise this

claim, however, Henley must first show that he may

rely on the rule articulated in Campbell under the

retroactivity doctrine of Teague v. Lane, 489 U.S. 288,

109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), which limits a

petitioner’s ability to obtain relief based on new rules

of criminal procedure announced after his conviction

became final. Henley raised this claim before the

Tennessee Court of Criminal Appeals in his state

petition for post-conviction relief, and the court denied

it, finding that Henley could not rely on a retroactive

application of Campbell under Teague. AEDPA

directs our inquiry to determine whether the

Tennessee Court of Criminal Appeals’ conclusion was

contrary to or an unreasonable application of clearly

established federal law; thus, our question is whether

the Tennessee court’s application of Teague was

unreasonable. We hold that it was not.

In making its determination, the state court cited

favorably our decision in Coe v. Bell, 161 F.3d 320 (6th

Cir.1998), in which we discussed this issue at some

length, concluding that Campbell’s rule cannot be

traced for purposes of retroactivity to either Peters v.

Kiff, 407 U.S. 498, 92 S.Ct. 2163, 33 L.Ed.2d 83 (1972)

(plurality opinion), or Hobby v. United States, 468 U.S.

339, 104 S.Ct. 3098, 82 L.Ed.2d 260 (1984). Although

Coe cannot control our disposition because of the

strictures of AEDPA, we find its reasoning helpful.1

For Henley to succeed, he must show that Hodby or

Peters compelled the result in Campbell to such a

degree that any conclusion to the contrary would be

unreasonable. As Coe suggests, however, Campbell

1 Henley’s case is distinguishable from Coe in that Coe’s

conviction became final before the Supreme Court issued its

decision in Hobby; nevertheless, the decision in Coe extensively

examined the question whether Hobby compelled the Court’s

decision in Campbell. Any argument that Coe is inapposite

because of this distinguishing fact is misplaced as we look to Coe

only for guidance in determining what law is clearly established.

Hofbauer, 337 F.3d at 716.

cannot be traced to Hobby or Peters so clearly. First,

although the Campbell Court cited Peters approvingly

in concluding that a defendant can raise a due process

challenge to the exclusion of members: of another race

from a state grand jury, only three Justices in Peters

based their decision on both the Constitution and a

criminal statute they read to provide defendants this

entitlement. Coe, 161 F.3d at 353 (citing Peters, 407

U.S. at 497-98, 92 S.Ct. 2163). The other three Justices

in the six-Justice majority concluded that the right

stemmed from the statute alone. Id. (citing Peters, 407

U.S. at 505-07, 511, 92 S.Ct. 2163, and Campbell, 523

U.S. at 400-01, 118 S.Ct. 1419). Thus, because “ ‘the

holding of the Court may be viewed as that position

taken by those Members who concurred in the

judgments on the narrowes. grounds,’ Peters cannot be

said to stand for the proposition that the constitution

gave Peters ... the ability to raise a due-process

challenge to the exclusion of Blacks (or women) from

his grand jury.” /d. (citing Marks v. United States, 430

US. 188, 193, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977)). We

find this reasoning sound, and Henley cannot show the

Tennessee appellate court’s decision concluding that

Peters fails to authorize the instant due process

challenge is unreasonable or contrary to clearly

established federal law.

As for Hobby, the Campbell court cited Hobby .

approvingly, but Hobby cannot be said to have

compelled Campbell’s result for retroactivity purposes.

As Coe explained,

In Hobby, a white male defendant challenged his

indictment because he said that the grand jury

excluded Blacks and women. Because Hobby’s

claim had been dismissed as a matter of law, the

Supreme Court assumed that the violation had

occurred and proceeded to consider if Hobby had

any remedy. The Court began by noting that

purposemzi exclusion of women and Blacks from

grand jury service was unconstitutional, without

distinguistung between gender and race. In

proceeding next to the question of r2medy,

therefore, the Court seemed to be assuming

implicitly that Hobby had standing to raise his

claim, both on gender and racial grounds, though it

noted the narrow holding of Peters. In the end, the

Court decided (for reasons that do not concern us)

that Hobby was not entitled to a remedy. The

Campbell Court read Hobby approvingly, as

establishing some sort of due-process protection

with regard to race (the only issue Campbel!

pursued), though it left the determination of the

bounds of that protection, which it said were “still

open,” for the lower court to determine on remand.

We do not doubt that Hobby and Campbell can be

read as extending due-process protection to men

challenging the exclusion of women, though neither

case provided detail on the extent of that protection.

The casual manner in which these cases suggest

such an extension does not mean, however, that the

holdings followed necessarily from “existing

precedent.” Indeed, the failure of Hobby even to

mention the gender/standing question paved the

way for conclusions such as the one we reached later

in Ford v. Seabold [841 F.2d 677 (6th Cir.1988)].

Id. at 354 (citations omitted). Coe also noted that

Justice Marshall issued a dissenting opinion from the

denial of certiorari in Ford v. Kentucky, 469 U.S. 984,

985-86, 105 S.Ct. 392, 83 L.Ed.2d 325 (1984), a case

decided after Hobby, in which he commented that the

third-party standing issue was not definitively resolved

and that the Court had _ issued _ conflicting

pronouncements on the issue. Jd. In sum, Coe’s

10a

reasoning convinces us that the Tennessee court’s

conclusion was neither contrary to nor an unreasonable

application of Teague. Moreover, as Coe noted, when

we examined this issue in Ford v. Seabold we

concluded that a defendant did not “have standing to

challenge the composition of the grand jury pool under

the due process clause.” 841 F.2d 677, 688 (6th

Cir.1988). Seabold bolsters our conclusion in that it

provides a perspective on the state of federal law at a

time quite relevant to our determination of this issue:

after Hobby, but before Campbell. See Hofbauer, 337

F.3d at 716.

Henley also unpersuasively relies on Rose v.

Mitchell for the proposition that an “indictment

returned by [an] unconstitutionally constituted grand

jury [must] be quashed.” 443 U.S. 545, 551, 99 S.Ct.

29938, 61 L.Ed.2d 739 (1979). Rose, however, concerned

an African-American defendant challenging .the

exclusion of African-Americans from the grand jury

and relied on the principle that “[a] criminal defendant

‘is entitled to require that the State not deliberately

and systematically deny to members of his race the

right to participate as jurors in the administration of

justice.’ ” Jd. (quoting Alexander v. Louisiana, 405

U.S. 625, 628-29, 92 S.Ct. 1221, 31 L.Ed.2d 536 (1972)

(emphasis added)). Even if Rose reaches gender,

Henley, a male, could only challenge the exclusion of

other males from the grand jury. Thus, Rose does not

alter our conclusion on Henley’s due process claim.

Henley also raises a Sixth Amendment fair-cross-

section challenge to the foreperson of his grand jury.

Regardless of the logical soundness of arguing that one

person should represent a fair cross-section of a

community, the Supreme Court has never allowed

defendants to challenge the composition of their grand

juries based on the Sixth Amendment. While some

lla

federal courts have permitted a fair-cross-section

challenge to a state grand jury, see, e.g., Murphy v.

Johnson, 205 F.3d 809, 817-19 (5th Cir.2000); O’Neal v.

Delo, 44 F.3d 655, 662 (sth Cir.1995); Ramseur v.

Beyer, 983 F.2d 1215, 1236-37 (8d Cir.1992), we may

grant Henley relief only if this right was clearly

established by the Supreme Court as of 1999, and we

hold that it was not.

IV. Ineffective Assistance of Counsel —

Henley argues his counsel’s failure to investigate

his background and to present mitigating evidence at

his sentencing hearing deprived him of his

constitutional right to effective assistance. Henley can

prevail only if the Tennessee Supreme Court’s denial of

his ineffective-assistance claim was unreasonable in

light of clearly established Supreme Court precedent.

Our review is essentially limited to determining

whether the Tennessee Supreme Court’s decision was

contrary to or an unreasonable application of

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052,

80 L.Ed.2d 674 (1984). Putting aside questions of

counsel’s performance, we find nothing unreasonable in

the Tennessee Supreme Court’s conclusion that Henley

was not prejudiced by counsel’s alleged errors.

Therefore, we reject his ineffective-assistance claim.

Our review of the record confirms that it was not

unreasonable for the Tennessee Supreme Court to

conclude that no prejudice resulted from counsel’s

failure to call additional lay witnesses. Henley’s

grandmother gave a “favorable and _ detailed

description” of Henley. Of course, as the state

appellate court pointed out, it is “possible” that the

jury might have been hostile toward Henley’s

grandmother. Henley v. State, No. 01 C01-9506-CC-

00198, 1996 WL 234075, at * 11 (Tenn.Crim.App. May 9,

1996). But the other lay witnesses likely would not

12a

have painted a better picture in light of “their limited

relationship with Henley at the time of the murders”

and “their personal knowledge of his drug use at the

time of the murders.” See Henley, 960 S.W.2d at 582.

We cannot say that it was unreasonable for the

Tennessee Supreme Court to conclude that counsel’s

failure to call additional lackluster lay witnesses did not

prejudice Henley at the mitigation phase.

We similarly reject Henley’s argument that the

state court unreasonably found no prejudice in

counsel’s failure to call a psychiatric expert to testify,

in counsel’s words, that Henley “has learning

disabilities and dropped out of school, and was, at the

time of the offense, suffering from depression and/or

acting out of character.” In Strickland itself, 466 U.S.

at 676, 700, 104 S.Ct. 2052, the Supreme Court found no

prejudice arising from counsel’s failure to call a

psychiatric expert to testify that the defendant was

“chronically frustrated and depressed” due to his

inability to support his family financially. Henley’s

alleged depression resulting from his bankruptcy is

similar enough to that found wanting in Strickland that

it was not unreasonable to have treated Henley’s claim

the same way. The rest of the proposed expert

testimony is so banal that it was not unreasonable to

conclude that there was no “reasonable probability”

that it would have affected the outcome of the

mitigation phase. See Strickland, 466 U.S. at 694, 104

S.Ct. 2052 (discussing the “reasonable probability”

standard for showing prejudice).

V.. Procedural Default of Due Process Claims

Henley believes that the prosecution gave Flatt

favorable parole treatment in exchange for his

testimony against Henley. Henley’s habeas petition

claims that his due process rights were violated when

Flatt falsely denied receiving these benefits and the

13a

prosecutor let this falsity go uncorrected. He also

argues, relatedly, that the prosecution violated his due

process rights by withholding evidence of this

supposed agreement. Essentially, these arguments

present claims under Brady v. Maryland, 373 U.S. 83,

83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Henley pressed

neither theory before the state courts, and any attempt

to now seek post-conviction relief in the Tennessee

courts would be procedurally barred. Tenn.Code Ann.

§ 40-30-102.

To overcome this procedural default and have these

claims heard by a federal court, Henley must establish

that (1) he had good cause for failing to raise them

before the state courts and (2) he was prejudiced by

the default. See, e.g., Edwards v. Carpenter, 529 US.

446, 451, 120 S.Ct. 1587, 146 L.Ed.2d 518 (2000).2 A

petitioner who has procedurally defaulted a Brady

claim satisfies the “cause and prejudice” test for

overcoming the default by satisfying the second and

third prongs of the Brady test; that is, by showing that

“the reason for his failure to develop facts in state-

court proceedings was the State’s suppression of the

relevant evidence,” and that “the suppressed evidence

is ‘material’ for Brady purposes.” Banks v. Dretke, 540

U.S. 668, 691, 124 S.Ct. 1256, 157 L.Ed.2d 1166 (2004),

see also Strickler v. Greene, 527 U.S. 268, 282, 119 S.Ct.

1936, 144 L.Ed.2d 286 (1999).

Henley cites Banks for the proposition that he had

little responsibility to inquire into the facts

surrounding his Brady claims—that is, he “cannot be

2 Henley could also overcome the procedural default without

establishing “cause and prejudice” if he demonstrated “a sufficient

probability that [the] failure to review his federal claim will result

in a fundamental miscarriage of justice.” Edwards, 529 U.S. at

451, 120 S.Ct. 1587. We do not think this standard is met here.

FER GLE AEDT LIT OT TET ES

l4a

faulted for not catching a prosecutor in his or her lies or

withholding of evidence.” This mischaracterizes

Banks. While Banks did reject a rule that “defendants

must scavenge for hints of undisclosed Brady

material,” see id. at 695, 124 S.Ct. 1256, it retained the

rule that good “cause” must be based on “events or

circumstances ‘external to the defense.’ ” See id. at

696, 124 S.Ct. 1256 (quoting Amadeo v. Zant, 486 U.S.

214, 222, 108 S.Ct. 1771, 100 L.Ed.2d 249 (1988)). That

is, Henley still must demonstrate that because of some

external impediment over which he had no control, he

cannot be expected to have developed his Brady claim

in State court. But he makes no attempt to do so.

Henley points to the fact that Flatt was considered

for early release in 1989 and paroled in 1991—despite

disciplinary violations in prison—long before his 25-

year sentence had run its term, and earlier than

similarly situated offenders tend to be paroled. He also

points to various state officials’ statements indicating

that they supported, or at least did not oppose, Flatt’s

early release. Even assuming these circumstances

suggest a surreptitious deal, Henley never explains

why he did not present them in state post-conviction

proceedings—which pended more than six years after

Flatt’s parole release. For these reasons, we hold that

Henley has failed to establish “cause” sufficient to

excuse the procedural default of his Brady claims.

VI. Prosecutorial Misconduct

Henley raises two prosecutorial misconduct claims:

(1) that the prosecutor improperly vouched for a

witness during the guilt phase, and (2) that the

prosecutor improperly asked the jury to send a

message during the sentencing phase. Because the

Tennessee Supreme Court considered each of these

claims on direct appeal, Henley, 774 S.W.2d at 910-11,

913, we must assess whether that court’s treatment of

“SS 5B e ga e ae

15a

these claims was contrary to or an unreasonable

application of clearly established Supreme Court

precedent.

In Berger v. United States, the Supreme Court

counseled United States Attorneys “to refrain from

improper methods calculated to produce a wrongful

conviction.” 295 U.S. 78, 88, 55 S.Ct. 629, 79 L.Ed. 1314

(1935). Berger was, however, decided on direct review

where the Court could “broad[ly] exercise [its]

supervisory power.” Darden v. Wainwright, 477 US.

168, 181, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986) (citing

Donnelly v. DeChristoforo, 416 U.S. 687, 642, 94 S.Ct.

1868, 40 L.Ed.2d 431 (1974)). At this habeas stage,

Henley must show that any prosecutorial misconduct

“so infected the trial with unfairness as to make the

resulting conviction a denial of due process.” ey:

416 U.S. at 648, 94 S.Ct. 1868.

The Tennessee Supreme Court denied relief to

Henley on direct review by holding that any error in

the prosecutor’s vouching for Flatt was harmless.

Henley, 774 S.W.2d at 911. In response to a credibility

attack by defense counsel, the prosecutor commented,

“I thought Flatt made one of the best witnesses I’ve

ever seen.” Jd. The prosecutor also began to comment

on the “plea bargain process” but “was interrupted by

the objection of defense counsel and he abandoned this

line of argument.” Jd. Although the Tennessee

Supreme Court analyzed these claims under state law,

the absence of prejudice spurred its rejection: the

court labeled the first remark “innocuous” and viewed

the second as resulting from a tense atmosphere where

“the argument was improper on both sides.” Id.; see

also United States v. Young, 470 U.S. 1, 18, 105 S.Ct.

1038, 84 L.Ed.2d 1 (1985) (noting that invited error can

affect how a court determines an improper remark’s

effect on the trial as a whole). In Darden, the most

16a

recent United States Supreme Court precedent

available to the Tennessee Supreme Court as it decided

Henley, the Court assessed the prosecutor’s argument

as improper, some of it as invited, and on balance,

concluded Darden received a fair, if not perfect, trial.

477 U.S. at 182, 106 S.Ct. 2464. Based on both the

limited nature of the prosecutor’s comment in this case,

and in light of Darden and Young, the Tennessee

Supreme Court’s denial of relief for improper vouching

was neither contrary to nor an _ unreasonable

application of Supreme Court precedent.

As for the claim arising from the sentencing

hearing, the Tennessee Supreme Court held that the

prosecutor’s “reference to deterrence ... is an area into

which he may not venture.” 774 S.W.2d at 913. That

court then held, however, that it was “satisfied that the

prosecutor’s comments did not affect the jury’s

sentencing decision.” Jd. In Caldwell v. Mississippi,

the Supreme Court held that a prosecutor’s closing

argument violated the Eighth Amendment by

improperly referring to automatic appellate review of

death sentences. 472 U.S. 320, 336, 340, 105 S.Ct. 2638,

86 L.Ed.2d 231 (1985). The Caldwell Court

distinguished Donnelly both by the nature of the

comment and by noting that the trial judge in Donnelly

gave a curative instruction; in contrast, the trial judge

in Caldwell openly agreed with the prosecutor’s

improper remark. Jd. at 339-40, 105 S.Ct. 2633. In

light of Caldwell, vacatur of Henley’s sentence was not

required because the trial judge sustained the defense

counsel’s objection and admonished the prosecutor to

discontinue that line of argument. We thus hold that

the Tennessee Supreme Court’s decision was neither

contrary to nor an unreasonable application of Caldwell

and other United States Supreme Court precedent.

17a

VII. Jury Instruction

Henley complains that the jury instructions and

verdict forms were worded so as to require the jury to

unanimously find the existence of a mitigating factor.

He attempted to raise this claim in his state post-

conviction proceedings, but the state courts

(erroneously, it seems) concluded that it had been

raised on direct appeal and therefore refused to

consider the claim. None of the post-conviction courts

ever invoked a procedural bar as to this issue, but none

of the state courts adjudicated the claim on its merits,

either—in these circumstances, we review de novo.

See Linscott v. Rose, 436 F.3d 587, 592 (6th Cir.2006).

The jury must be unanimous in determining that an

aggravating factor exists. See Ring v. Arizona, 536

U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). But a

state may not, consistent with the Eighth Amendment,

require that the jury be unanimous in determining that

a mitigating factor exists. H.g., McKoy v. North

Carolina, 494 U.S. 438, 443-44, 110 S.Ct. 1227, 108

L.Ed.2d 369 (1990); Mills v. Maryland, 486 U.S. 367,

373- 75, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988). In this

case, the jury instructions read:

If the jury unanimously determines that at least

one statutory aggravating circumstance ... [has]

been proven by the State beyond a reasonable

doubt, and said circumstance ... [is] not outweighed

by any sufficiently substantial mitigating

circumstances, the sentence shall be death....

If the jury unanimously determines that no

statutory aggravating circumstance ... [has] been

proved by the State beyond a reasonable doubt, or

if the jury unanimously determines that a

statutory aggravating circumstance ... [has] been

proven by the state beyond a reasonable doubt,

18a

but that said circumstance ... [is] outweighed by

one or more mitigating circumstance, the

punishment shall be life imprisonment....

The verdict form for sentencing Henley to death

read:

We, the Jury, unanimously find the following listed

statutory aggravating circumstance or

circumstances.... Secondly, we, the Jury,

unanimously find that there are no mitigating

circumstances sufficiently substantial to outweigh

the statutory aggravating circumstance or

circumstances so listed above....

The question here is whether either of these

admonitions requires the jury to be unanimous in

determining that a mitigating factor exists. Mills

established that if there is a “substantial possibility”

that the answer is yes, the court must remand for

resentencing. 486 U.S. at 377, 108 S.Ct. 1860. But the

plain language of both the instructions and the verdict

form require unanimity as to the weighing of

aggravating and mitigating circumstances—not the

existence of a mitigating circumstance. In other words,

these admonitions simply and unobjectionably require

a unanimous verdict. We _ reviewed identical

instructions and verdict forms in Coe and concluded the

instructions and form required “unanimity as to the

results of the weighing, but this is a far different

matter than requiring unanimity as to the presence of a

mitigating factor.” 161 F.3d at 338. As in Coe,

“(njothing in this language could reasonably be taken

to require unanimity as to the presence of a mitigating

factor. The instructions say clearly and correctly that

in order to obtain a unanimous verdict, each juror

must conclude that the mitigators do not outweigh the

aggravators.” Jd. Thus, we hold that the Tennessee

court did not require the jury to be unanimous in

19a

finding the existence of a mitigating factor, and we

affirm the district court’s denial of this claim.

VIII. Conclusion

For the foregoing reasons, we affirm the district

court’s judgment.

CONCURRING IN PART, DISSEN TING IN

PART

R. GUY COLE, Jr., Circuit Judge, concurring in part

and dissenting in part.

I agree with the majority’s conclusion that (i) the

trial court did not improperly instruct the jury that it

had to unanimously find any mitigating factors in

sentencing Henley; (2) the prosecutor did not

improperly appeal to the jury to “send a message” as a

reason for sentencing Henley to death; (3) the

prosecutor did not improperly vouch for the testimony

of Henley’s accomplice, Terry Flatt; and (4) Henley

procedurally defaulted on his claim that Flatt falsely

testified in exchange for an assurance of early release

from prison. I write separately because I disagree

with the majority’s disposition of Henley’s due-process

challenge to the selection of his grand-jury foreperson

and his ineffective-assistance-of-counsel claim.

The majority concludes that Henley’s due-process

claim, alleging that women were underrepresented in

the selection of his grand-jury foreperson, fails because

Campbell v. Louisiana, 523 U.S. 392, 118 S.Ct. 1419,

140 L.Ed.2d 551 (1998), announced a new rule of

constitutional law. Campbell, however, does not

announce a new rule but rather is dictated by the

Supreme Court’s prior decisions in Peters v. Kiff, 407

U.S. 498, 92 S.Ct. 2163, 33 L.Ed.2d 83 (1972) (plurality

opinion), and Hobby v. United States, 468 U.S. 339, 104

S.Ct. 3093, 82 L.Ed.2d 260 (1984). Moreover, the

majority’s conclusion that it was not unreasonable for

oe Ne a Se

yes Se

20a

the Tennessee Supreme Court to conclude that Henley

was not prejudiced by his trial counsel’s deficient

performance is incorrect. Henley has shown that his

trial counsel’s performance was both deficient and

prejudicial under Strickland v. Washington, 466 U.S.

668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

Accordingly, because I would grant Henley habeas

relief on his ineffective-assistance-of-counsel claim and

would grant Henley an evidentiary hearing on his due-

process challenge, I respectfully dissent.

A. Due-Process Challenge To The Selection Of

Henley’s Grand-Jury Foreperson

Henley asserts a due-process challenge to the

systematic exclusion of women, in Jackson County,

Tennessee, from the position of grand-jury foreperson.

The Tennessee Court of Criminal Appeals determined

that Campbell declared a new rule, and the court

therefore concluded that Teague v. Lane, 489 U.S. 288,

109 S.Ct. 1060, 108 L.Ed.2d 334 (1989), barred

retroactive application of Campbell to Henley’s claim.

Both the Tennessee Court of Criminal Appeals and the

majority erred in concluding that Campbell declared a

new rule.

A conclusion that Campbell is dictated by

precedent (and therefore does not announce a new rule

of constitutional law) is supported by the Supreme

Court’s prior decisions in Peters, Hobby, Rose v.

Mitchell, 443 U.S. 545, 99 S.Ct. 2993, 61 L.Ed.2d 739

(1979), and Powers v. Ohio, 499 U.S. 400, 111 S.Ct. 1364,

113 L.Ed.2d 411 (1991). In the cases leading up to

Campbell, the Supreme Court repeatedly stressed its

concern that discrimination, such as the kind

complained of by Henley, hurts all defendants

regardless of their race or gender and undermines the

fair administration of justice.

Z2la

In Peters, for instance, where a white defendant

claimed that his due-process rights were violated

because blacks were systematically excluded from both

the grand jury that indicted him and the petit jury that

convicted him, the Court explained that the exclusion

of blacks “from jury service injures not only

defendants, but also other members of the excluded

class: it denies the class of potential jurors the

‘privilege of participating equally .. in the

administration of justice,’ and it stigmatizes the whole

class ... by declaring them unfit for jury service and

thereby putting ‘a brand upon them, affixed by law, an

assertion of their inferiority.” ” 407 U.S. at 499,

92 S.Ct.2163 (quoting Strauder v. West Virginia, 100

U.S. 303, 308, 25 L.Ed. 664 (1879)).

The Court’s concern with the integrity of the

judicial system was also apparen*in its decision- in

Rose. In Rose, as in Peters, the Court expressed its

concern that “[slelection of members of a grand jury

because they are of one race and not another destroys

the appearance of justice and thereby casts doubt on

the integrity of the judicial process.” Rose, 443 U.S. at

555-56, 99 S.Ct. 2998. Rose. held that two black

defendants could bring an equal-protection challenge to

their convictions based on racial discrimination in the

selection of the Tennessee grand jury and grand-jury

foreperson that indicted them for murder. In

addressing the harm caused by such discrimination, the

Court stated that

[t]he harm [from discrimination] is not only to the

accused, indicted as he is by a jury from which a

segment of the community is excluded. It is to

society as a whole. The injury is not limited to the

defendant—there 1s injury to the jury system, to the

law as an institution, to the community at large,

22a

and to the democratic ideal reflected in the

processes of our courts.

Id. (quoting Ballard v. United States, 329 U.S. 187, 195,

67 S.Ct. 261, 91 L.Ed. 181 (1946)) Gnternal quotation

marks omitted) (emphasis added).

In Powers, the Court held that Powers, a white.

male defendant, had standing to raise an equal-

protection objection to the prosecutor’s allegedly race-

based exercise of peremptory challenges to exclude

black prospective jurors. 499 U.S. at 402, 111 S.Ct.

1364. The Court stated that “[t]o bar petitioner’s claim

because his race differs from that of the excluded

jurors would be to condone the arbitrary exclusion of

citizens from the duty, honor, and privilege of jury

service.” Jd. at 415, 111 S.Ct. 1864. In reaching its

conclusion, the Court explained that it was not

deviating from past precedent but rather was “once

again declin[ing] to reverse a course of decisions of long

standing directed against racial discrimination in the

administration of justice.” Jd. (quoting Cassell v.

Texas, 339 U.S. 282, 290, 70 S.Ct. 629, 94 L.Ed. 839

(1950) (Frankfurter, J., concurring in judgment)).

In Campbell, the Court. reiterated that

discrimination based on. race “strikes at the

fundainental values of our judicial system.” 523 U.S. at

398, 118 S.Ct. 1419 (quoting Rose, 443 U.S. at 556, 99

S.Ct. 2993). The Court in Campbell concluded that a

white, male defendant had standing to object to

discrimination against blacks in the selection of his

grand jury and grand-jury foreperson. In Campbell,

the Court again addressed its concern that

discrimination in the selection of a grand jury or grand-

jury foreperson hinders the fair administration of

justice and undermines the integrity of our judicial

system—a common thread running through the

opinions preceding Campbell.

23a

Further, the decision in Campbell is dictated by the

Supreme Court’s decision in Hobby and Peters—the

two cases the Court relied on in addressing Campbell’s

due-process challenge. In Peters, three justices agreed

that a defendant, “whatever his race, ... has standing to

challenge the system used to select his grand or petit

jury, on the ground that it arbitrarily excludes from

service the meml ®rs of any race, and thereby denies

him due process of law.” 407 US. at 504, 92 S.Ct. 2163.

In Hobby, the Court held that discrimination in the

selection of a grand-jury foreperson, when that

individual is selected from a properly constituted grand

jury, does not violate due process. 468 U.S. at 344, 104

S.Ct. 3098. In Hobby, unlike in Campbell, the duties of

the foreperson where only “ministerial.” Jd. Although

the Court in Hobby assumed without deciding the

third-party-standing question!, the Court in Campbell

nonetheless stated that its decision in Hobby

“proceeded on the implied assumption that a white

defendant had standing to raise a due process objection

to diseriminatory appointment of a federal grand-jury

foreperson.” 523 U.S. at 401, 118 S.Ct. 1419. Thus, the

holding in Campbell is nothing more than a logical

extension of the Court’s assumption in Hobby, and is

consistent with the Court’s prior statements in Rose,

Peters, Hobby, and Powers regarding the fair

administration of justice. When the Court in Campbell

finally concluded that all defendants, regardless of

their race or sex, have standing to challenge

discrimination against any individual in the selection of

their grand or petit jury, the Court did not break new

1 In Hobby, the Court assumed, but did not decide, that a white,

male defendant had standing to challenge discrimination against

blacks and women. 468 U.S. at 342, 104 S.Ct. 3093 (explaining that

“(i]t is only the narrow question of the remedy that we consider’).

24a

ground. Because Campbell is notvnimp more vnan an

extension of the Court’s prior precedents, Teague does

not bar its retroactive application.

The majority relies on our prior decision in Coe v.

Bell, 161 F.3d 320 (6th Cir.1998), to support its

conclusion that Campbell was not dictated by

precedent. In Coe, however, we did not address

whether Campbell declared a new rule because we

were not required to do so to dispose of Coe’s due-

process claim. Coe’s conviction was final in 1984,

before the Supreme Court’s decision in Hobby, Powers,

and Campbell. Coe, 161 F.3d at 328. We concluded that

Coe did not have third-party standing to bring his due-

process claim because we declared that Hobby, decided

after Coe’s conviction became final, declared a rew .

rule. Jd. at 354. Moreover, statements we made in oe

suggest that Campbell did not announce a new rule. In

Coe, we stated that “(t]he Campbell Court read Hobby

approvingly, as establishing some sort of due-process

protection with regard to race.” 161 F.3d at 354. We

also stated that “[wje do not doubt that Hobby and

Campbell can be read as extending due-process

protection to men challenging the exclusion of women.”

Id. These statements support a conclusion that, ai a

minimum, the Court’s decision in Campbell was

dictated by Hobby.

Further support for the conclusion that Campbell

does not announce a new rule is found in the Fifth

Circuit’s decision in Peterson v. Cain, 302 F.3d 508 (5th

Cir.2002)—the only other circuit to have addressed

whether Campbell announced a new rule. Carter Paul

Peterson’s conviction and sentence became final in

1982. After the Supreme Court’s decision in Campbell,

Peterson sought habeas review in federal court,

claiming that the selection process for his grand-jury

foreperson in Lafayette Parish, Louisiana, violated his

25a

constitutional due-process and equal-protection rights

because the process systematically excluded blacks.

The Peterson court concluded that the equal-protection

portion of Campbell’s holding was dictated by the

Supreme Court’s earlier decisions in Powers and Rose.

Id. at 512. According to the Fifth Circuit, “(there is no

leap in logic nor a significant difference between

Powers and Rose v. Mitchell to Campbell.” Id. at 513.

The Peterson court explained that in Campbell

[o]nce again, the Court’s concern is focused on the

integrity of the judicial process in the selection of a

grand jury foreperson. By. applying rules

established in prior cases, the Court conducted

precisely the same analysis founded in maintaining

judicial integrity as in Powers.

Id.

The Fifth Circuit also concluded that the due-

process portion of Campbell was dictated by

precedent, reasoning that the Court in Campbell only

elaborated on the implied assumption the Court made

in Hobby. Specifically, the Fifth Circuit noted that in

Campbell

the foreperson was selected not merely to conduct

ministerial duties, but was also selected to act as a

voting member of the grand jury, a vote that

directly impacted the defendant. To the extent that

such a selection was made discriminatorily, it ran

afoul of the Hobby implied assumption of due

process. The Court’s decision in Campbell was

therefore dictated by its opinion in Hobby.

Id. 513-514. In Peterson, the Fifth Circuit did not

overlook our decision in Coe. The court noted that this

Court “did address the subject [of Campbell } ... but did

not resolve whether Campbell stood for a new rule,

under either equal protection or due process prongs.”

26a

Id. at 512 n. 3. Further, the Fifth Circuit, in a later

unpublished decision, reiterated that the Supreme

Court’s decision in Campbell was dictated by the

Supreme Court’s earlier decisions in Powers, Rose,

Hobby, and Peters. See Crandell v. Warden, Louisiana

State Penitentiary, 72 Fed.Appx. 48, 49 (5th Cir. July

11, 2003).

Accordingly, because Campbell did not announce a

new rule of constitutional law, but rather was dictated

by prior Supreme Court precedent, Campbell can be

retroactively applied to Henley’s claim. As a result,

the Tennessee Supreme Court’s decision, that Henley

lacks standing to bring his due-process claim, is an

unreasonable application of Teague. Thus, Henley is

entitled to an evidentiary hearing to determine

whether his claim, that women where under-

represented in the selection of his grand-jury

foreperson in Jackson County, Tennessee, from 1974 to

1994, is valid.

B. Ineffective Assistance of Counsel

The majority also concludes that the Tennessee

Supreme Court did not unreasonably apply Strickland

when it held that counsel’s alleged errors during the

sentencing phase did not prejudice Henley. I disagree

and would grant Henley habeas relief on this claim.

I am not alone in my conclusion that Henley’s

counsel at sentencing was constitutionally deficient:

Three judges on the Tennessee Court of Criminal

Appeals and two judges on the Tennessee Supreme

Court also reached the same conclusion. See Henley v.

State, No. 01 C01-9506-CC-00193, 1996 WL 234075, at

*10-12, 1996 Tenn.Crim.App. LEXIS 293, at *31-36

(May 9, 1996); Henley v. Tennessee, 960 S.W.2d 572

(Tenn.1997) (Reid, J. & Birch, J., dissenting). At

Henley’s post-conviction hearing, Henley presented

evidence that although several of his family members

ot ae

ane toe

27a

would have testified on his behalf at his sentencing

hearing, his trial counsel failed to speak to any of them

about such a possibility. Henley, 1997 WL 820889, at

*11, 1996 Tenn.Crim.App. LEXIS 293, at *82; see also

Henley, 960 S.W.2d at 576-77. The Tennessee Court of

Criminal Appeals noted that “[{nJo psychological or

psychiatric evaluation was done on Henley.... There is

no evidence from [Henley’s attorney’s] file or otherwise

that he investigated Henley’s educational background,

employment history, or that he spoke with members of

the community familiar with Henley.” Henley, 1996

WI, 234075, at *12, 1996 Tenn.Crim.App. LEXIS 2938,

at *35. Further, the evidence that Henley’s attorney

did provide at the sentencing hearing was minimal:

only Henley and his grandmother, who had already

testified at trial, testified in mitigation.

The Supreme Court in Strickland explained that

“counsel has a duty to make reasonable investigations

or to make a reasonable decision that makes particular

investigations unnecessary.” 466 U.S. at 691, 104 S.Ct.

2052. In a capital case, an attorney has a duty to speak

to the defendant’s family about the defendant’s

background and about the possibility of them testifying

at the sentencing hearing. See Wiggins, 539 U.S. at

524, 123 §.Ct. 2527 (explaining that in a capital case

trial counsel must undertake “to discover all

reasonably available mitigating evidence and evidence

to rebut any aggravating evidence that may be

introduced by the prosecutor’) (quoting ABA

Guidelines for the Appointment and Performance of

Counsel in Death Penalty Cases 11.4.1(C) (1989));

Strickland, 466 U.S. at 691, 104 S.Ct. 2052 (noting that

“counsel has a duty to make reasonable

investigations”). Moreover, had Henley’s counsel

conducted a proper investigation into Henley’s

background, it may have revealed other mitigating

28a

evidence that could have persuaded just a single juror

to sentence Henley to life in prison as opposed to death.

Because there is no evidence that Henley’s attorney

investigated Henley’s background or spoke to his

family members about testifying at Henley’s

sentencing hearing, despite their willingness to do so,

the performance of Henley’s attorney fell below the

standard for “professionally competent assistance”

required by Strickland. 466 U.S. at 690, 104 S.Ct. 2052.

Further, trial counsel’s failure to call Henley’s

family members to testify coupled with Henley’s

mother’s refusal to testify were prejudicial. At

Henley’s sentencing hearing, Henley’s trial counsel

attempted to call Henley’s mother as a witness. After

being cailed, Mrs. Henley first asked to speak to

Henley’s attorney. After a brief recess, Mrs. Henley

did not testify and Henley’s attorney instead called

Henley’s grandmother to the stand. At his post-

conviction hearing, Henley argued that he was

prejudiced because the jurors saw his mother’s refusal

to testify. According to Mrs. Henley, she refused to

testify at the sentencing hearing because Henley’s

attorney had not contacted her about testifying and she

did not understand the purpose for her testimony or

what she was expected to say. Mrs. Henley did explain

that had she been properly prepared she would have

testified and her testimony would have been positive.

Henley, 960 S.W.2d, at 576. Specifically, Mrs. Henley

would have testified “about her son’s life, her love for

him, and her belief that he would not have committed

the crimes ‘if he was at his right mind.’” Jd.

The Tennessee Court of Criminal Appeals

concluded that Henley’s evidence established prejudice

resulting from his counsel’s deficient performance:

“We do not think it is assuming too much to conclude

that a jury is going to be prejudiced against a

29a

defendant upon that person’s own mother refusing to

testify on his ... behalf.” Henley, 1996 WL 234075, at

*11, 1996 Tenn.Crim.App. LEXIS 293, at *32. Because

of the special relationship between a mother and child,

not having one’s own mother testify on their behalf,

when one’s life is at stake, would surely affect a juror’s

decision. As to the testimony of Henley’s other family

members, the Tennessee Supreme Court concluded

that the testimony was weaker than the grandmother’s

testimony, because of their limited relationship with

Henley, and cumulative of the grandmother’s

testimony, because Henley’s other family members

would have provided no new insight into Henley’s life.

However, having multiple family members plead for a

defendant’s life humanizes the defendant and makes it

more likely that at least one juror will spare his life.

See generally Hardwick v. Crosby, 320 F.3d 1127, 1163

(11th Cir.2003) (explaining that a defendant’s attorney

must conduct a proper investigation to “find witnesses

to help humanize the defendant, given that a jury has

found him guilty of a capital offense”); Mayes v.

Gibson, 210 F.3d 1284, 1288 (10th Cir.2000) (noting that

“mitigation evidence affords an opportunity. to

humanize and explain”). In this context, where the

defendant is charged with a heinous crime, positive

cumulative testimony benefits the defendant because

the testimony of several family members all pleading

for the defendant s life has a greater impact on the jury

than the testimony of a single individual, regardless of

how favorable that person’s testimony is. Thus, had

Henley’s trial counsel not been deficient, “there is a

reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding

would have been different.” Strickland, 466 U.S. at

694, 104 §.Ct. 2052. Accordingly, because the

Tennessee Supreme Court unreasonably applied

aa)

5°]

h—

nie

hand

—

sla

SEE RULE 19 OF THE RULES OF THE COURT OF

CRIMINAL APPEALS RELATING TO

PUBLICATION OF OPINIONS AND CITATION OF

UNPUBLISHED OPINIONS.

COURT OF CRIMINAL APPEALS OF

TENNESSEE, AT NASHVILLE.

STEVE HENLEY, APPELLANT,

STATE OF TENNESSEE, APPELLEE.

C.C.A. NO. 01001-9506-CC-00193

May 9, 1996.

Permission to Appeal Granted March 10, 1997.

—_

1996 WL 234075

AFFIRMED IN PART, REVERSED IN PART,

AND REMANDED FOR RESENTENCING

PEAY OPINION

The petitioner was convicted by a jury of two

counts of first-degree murder and one count of

aggravated arson. The jury set the petitioner's

punishment at death by electrocution for the murder

convictions, and the court sentenced him to twenty

years for the arson offense. The petitioner’s

32a

convictions and sentences were affirmed by our

Supreme Court on direct appeal. State v. Henley, 774

S.W.2d 908 (Tenn.1989). He then filed a petition for

post-conviction relief which was denied after a hearing.

The petitioner now appeals, contending that the

lower court erred in failing to find that:

1. His constitutional rights against unreasonable

searches and seizures were violated when evidence of

Terry Flatt’s identity was obtained during a pretextual

arrest and subsequently used at trial;

2. His due process rights to a fair trial were

violated when

(a) the trial court admitted into evidence a pistol

which was irrelevant and highly prejudicial;

(b) the jury was informed that a criminal defendant

serving a life sentence would be eligible to be

considered for parole in thirty-five years;

medications to him during the course of his trial; and

(d) the State withheld exculpatory information in

violation of Brady v. Maryland, 373 U.S. 83 (1963),

when it failed to inform his counsel about the

medications he was taking;

3. The jury instructions given at the sentencing

phase of his trial were unconstitutional;

4. Tennessee’s death penalty statutes are

unconstitutional;

5. His constitutional right to a trial by jury was

denied when jurors opposed to the death penalty were

excused by the trial court; and

6. He was denied effective assistance of counsel at

the guilt and sentencing phases of his trial and at the

direct appeal of this matter.

33a

We find the petitioner’s complaint of ineffective

assistance of counsel at the sentencing phase to be

meritorious; we find no merit in any of his other

allegations. We will address the petitioner’s issues in

the order given after a brief recitation of the facts.

On July 24, 1985, the petitioner and Terry Flatt

were riding around together in the petitioner’s truck

attending to some of Henley’s business chores. Flatt

testified that they had been drinking beer and taking

Dilaudid (a narcotic). Early in the evening, they drove

up Pine Lick Creek Road in Jackson County, where the

petitioner’s grandmother lived. The victims, Fred and

Edna Stafford, lived on the same road. A short

distance before his grandmother’s house, but after

passing the Stafford residence, Henley let Flatt out of

the truck. Henley then proceeded to his grandmother’s

house where he spent some amount of time less than an

hour. He then returned and picked Flatt up and they

proceeded back down the road.

According to Flatt, Henley returned with a .22 rifle.

Flatt testified that Henley had stopped the truck and

loaded this rifle shortly before reaching the Stafford

residence. Flatt testified that Henley had also poured

some gasoline out of a five gallon can into a smaller

plastic jug. They then proceeded to the Stafford house.

The Staffords were outside as the petitioner and

Flatt reached their house. According to Flatt, Henley

got out of the truck and told the Staffords that Flatt

would kill him if they didn’t give him money. He then

told Flatt to bring the .22 as he walked the Staffords up

their driveway. Flatt testified that, as they had all

gotten closer to the house, Henley took the rifle away

from him and told Flatt to “go back to my truck and get

that gallon of gas.” Flatt did as he was told and Henley

and the Staffords entered the house.

WON cates sack ee MGS HAO GT

CES SO ee

RET EO re OME a at toe

9 carte, 2 Larer oA M S RC ale FY ™

4 OFAC CMeeg F

ee WEES

Rennes

ee pure Be tw sot

9 press iuh

i nn ger

34a

As Flatt approached the house with the gasoline, he

saw Henley shoot Mr. Stafford with the rifle. Henley

next shot Mrs. Stafford with the rifle and then, Flatt

testified, “he took out his pistol and he shot her a time

or two with his pistol.” After shooting the Staffords,

Henley told Flatt to pour out the gas. Flatt poured out

a small amount, and then stopped. Henley took the

plastic jug containing the gas, poured the rest of it out,

and then told Flatt to “light it.” Flatt refused, and

Henley struck a match and set fire to the house.

Henley and Flatt then ran to the truck and drove

away. While they were driving, Henley pulled some

money out of a pocket and told Flatt to count it. Flatt

testified that he had not seen that money on Henley

before. After they had driven some distance, Henley

stopped the truck and got out and threw the rifle and

pistol off to the side of the road. They then drove on.

The fire was reported, but the house was totally

consumed by the flames. Only portions of Mr. and Mrs.

Stafford’s bodies were recovered. However, sufficient

remains existed to determine that Mr. Stafford died of

a bullet wound through the heart and Mrs. Stafford

died of burns and inhalation of noxious gasses.

Pursuant to a plea bargain agreement, Flatt pled

guilty to two counts of second-degree murder, two

counts of armed robbery and one count of aggravated

arson. Flatt was sentenced as a Range I offender to

twenty-five years for each of the murders, ten years

for each of the robberies, and ten years for the arson,

all to run concurrently.

At trial, Henley testified that he had spent the day

with Flatt but that he had not taken any Dilaudid nor

been intoxicated with alcohol. He testified that he had

asked Flatt to get out of his truck on the way to his

grandmother’s because of F latt’s intoxicated condition,

35a

and that Flatt had taken Henley’s .22 rifle with him,

ostensibly to hunt. Henley adamantly denied killing

the Staffords and setting their house on fire.

“In post-conviction relief proceedings the petitioner

has the burden of proving the allegations in his [or her]

petition by a preponderance of the evidence.” McBee v.

State, 655 S.W.2d 191, 195 (Tenn.Crim.App.1983).

Furthermore, the factual findings of the trial court in

hearings “are conclusive on appeal unless the evidence

preponderates against the judgment.” State v. Buford,

666 S.W.2d 473, 475 (Tenn.Crim.App.1983).

The petitioner’s claim that his arrest was pretextual

rests on the grounds that he was first arrested during

the early morning hours of Friday, July 26, 1985,

pursuant to an outstanding warrant on a contempt of

court charge. We first note that this issue was not

raised in the trial, the direct appeal of this case, or-in

the post-conviction petition. Accordingly, it is waived.

T.R.A.P. 36. However, even if this issue were not

waived, the petitioner is not entitled to any relief on

this ground. :

“The fact that-an accused has been: unlawfully

arrested only becomes relevant when evidence tainted

by the unlawful arrest is sought to be introduced by

the state.” Caldwell v. State, No. 02C01-9405-CC-

00099, p. 12, Madison County (Tenn.Crim.App. filed

December 28, 1994, at Jackson). In this case, the

petitioner contends that he was questioned about the

fire while under arrest on the contempt of court

charge, and that he then gave a statement including

Terry Flatt’s name. Accordingly, the petitioner

argues, any evidence obtained from Flatt is tainted

such that it must be suppressed. However, the record

in this matter is unclear as to the petitioner’s arrest

status at the time he spoke of Flatt. The only written

record of the petitioner’s statement is dated July 30,

36a

1985. Henley testified that he had first spoken to the

fire inspector “within a couple of days” of his initial

arrest. Henley’s testimony at the post-conviction

hearing also indicates that he was arrested a second

time on August 1, 1985. However, there is no

testimony as to when Henley was released after his

first arrest. Thus, even assuming that Henley’s arrest

on tne contempt of court charge was “pretextual,”

there is no clear proof in the record that the petitioner

was still under arrest for this charge at the time he

informed the authorities about Flatt’s identity. This

issue is without merit.

The petitioner also complains that he was denied

due process when a .380 pistol was introduced at trial.

Although Flatt testified that Henley had used a pistol

to shoot Mrs. Stafford, and although the pistol

introduced at trial was recovered in the area where

Flatt said Henley had thrown the guns, Flatt was not

able to identify it. Nor were any bullets or shell

casings recovered from the crime site that were fired

from this pistol. The petitioner’s trial counsel did not

object to the introduction of the pistol into evidence.

This issue was not raised on direct appeal or in the

post-conviction petition, and is therefore waived. Even

if it were not waived, however, this issue is without

merit.

Although Flatt was unable to identify the pistol as

the one which Henley fired, it was found where Flatt

had told authorities it would be found. It was also

found in the vicinity of the .22 rifle. These facts were

sufficient to meet the definition of “relevance” set forth

in Fed.R.Evid. 401, adopted by our Supreme Court in

State v. Banks, 564 S.W.2d 947, 949 (Tenn.1978). Had

an objection been made, the trial court would had to

have determined that the probative value of the pistol

was substantially outweighed by the “danger of unfair

9° ae

37a

prejudice, confusion of the issues, or misleading the

jury ... ” in order to rule it inadmissible. See

Fed.R.Evid. 403, also adopted by our Supreme Court in

State v. Banks. We do not think that it would have

been an abuse of discretion for the trial court to have

overruled an objection. That no bullets or shell casings

matching the pistol were found at the remains of the

Stafford residence, and Flatt’s inability to identify the

pistol, were matters for the jury to take into

consideration in determining the weight of this

particular piece of evidence.

Furthermore, even if the pistol should have been

excluded, the “improper admission or rejection of

evidence is not grounds for reversal unless it shall

affirmatively appear that the alleged error affected the

result of the trial.” State v. Horne, 652 S.W.2d 916, 919

(Tenn.Crim.App.1983). No such affirmative showing

has been made here. Since there was sufficient proof at

trial from which the jury could reasonably have

concluded that Mr. Stafford had been killed by a shot

from the rifle and that Mrs. Stafford had been killed by

the fire, there was sufficient evidence, even absent the

pistol, for the jury to convict Henley of two counts of

first-degree murder.

The petitioner also complains that he was denied a

fair trial when, during final arguments, the trial judge

stated that a defendant serving a life sentence would

be eligible to be considered for parole after serving

thirty-five years. This issue was raised in the direct

appeal and denied. Accordingly, we consider it

previously determined and decline to re-examine it.

T.C.A. § 40-30-111 (1990).

As to the petitioner’s contention that he was denied

due process by the State’s provision to him of certain

medication during his trial, we find that this case is

distinguishable from Riggins v. Nevada, 504 U.S. 127,

38a

112 S.Ct. 1810 (1992), and that no denial of due process

occurred. In Riggins, the defendant had been

prescribed and was taking thioridazine, an

antipsychotic drug. He was taking this drug at the

time he was determined competent to stand trial.

Following his competency hearing, the defendant filed

a motion in the District Court for an order suspending

administration of the drug, contending that its effect on

his demeanor and mental state during his trial would

deny him due process. The District Court denied the

defendant’s motion, with no explanation of its rationale,

and the defendant continued to receive the drug

throughout his trial.

The Supreme Court held that “once Riggins moved

to terminate administration of antipsychotic

medication, the State became obligated to establish the

need for [it] and the medical appropriateness of the

drug.” 504 U.S. at —, 112 S.Ct. at 1815. Because the

record before the Court contained no findings that

would have supported a conclusion that the continued

administration of the medication was necessary to

accomplish an essential state policy, the defendant’s

convictions were reversed and his case remanded.

In the case before us, Henley was taking Xanax and

P.V. Tussin before and during the course of his trial.

Xanax is an antianxiety medication and P.V. Tussin is a

cough syrup which contained alcohol and “a narcotic

cough suppressant.” The expert testimony at the post-

conviction hearing established that these drugs could

have had an adverse effect on both the petitioner’s

demeanor and on ..is ability to fully participate in his

own defense. However, there is no proof in the record

that Henley was being medicated against his will.

According to Dr. Byrne, the prescribing physician, the

petitioner requested medication for his nervousness,

anxiety and sleeplessness. Cf. Groseclose v. Bell, 895

39a

F.Supp. 935, 949 (M.D.Tenn.1995) (“(the defendant] did

not request the medication .. [, tlhere was no

appointment requested by [the defendant] and [he]

never asked for or indicated that he was having any

trouble sleeping.”). Henley specifically requested

Valium, but Dr. Byrne prescribed Xanax instead

because it did not have the dependency potential of

Valium. The P.V. Tussin was prescribed in response to

the petitioner’s complaint of a cough and his specific

request for a medication with hydrocodone, which P.V.

Tussin contained.

On the record before us, we cannot find that

Henley’s own behavior in requesting and taking these

medications violated his due process rights.! To do so

- would be to indicate that an accused could request

medication on the grounds of having difficulty sleeping,

excessive nervousness, high anxiety, depression, etc.,

and then claim that he was denied a fair trial because of

the medication’s impact on his ability to participate in

his own defense and/or because of the medication’s

adverse effect on his credibility. If the State refused to

administer such medication out of concern that the

accused would make such a claim, the accused could

then argue that he had been denied his due process

rights to proper medical care. In other words,

granting Henley relief under the circumstances of this

case would create an unacceptable risk of deliberate

manipulation of State-provided health care services in

an attempt to create grounds for attacking a conviction.

1 Although there is proof in the record that Henley was taking

more than the prescribed dosages, there is no proof in the record

that he was being required to do so by his jailers.

2 Indeed, Henley filed a civil rights action about his pre-trial

incarceration, complaining about the length of time he had to wait

to be taken to the doctor.

40a

Such a result is untenable and not required by our

Constitutions.

As to the petitioner’s contention that the State

withheld exculpatory evidence in violation of Brady v.

Maryland, 373 U.S. 88 (1963), by not informing his trial

counsel about the medication that he was taking, we

also find this issue to be waived. Moreover, this issue

fails on the merits. Evidence required to be provided

under Brady “must be favorable to the accused, his

defense, or the sentence that will be imposed if found

guilty.” State v. Marshall, 845 S.W.2d 228, 232

(Tenn.Crim.App.1992). The petitioner argues that

evidence of the medication he was taking during his

trial was favorable because it explained his demeanor

which, according to Henley’s offer of proof at the post-

conviction hearing, at least some of the jurors found

objectionable.

However, there is no proof in the record that the

prosecution was aware of the effects of these drugs, and

it is only their effects which arguably constituted

favorable evidence. Sheriff Mehaney testified at the

post-conviction hearing that he knew nothing about the

effects of the drugs his prisoner was taking. He also

testified that he noticed no changes in Henley’s

behavior as a result of taking the drugs. The only

person who arguably knew that the medication could

affect Henley’s credibility such that it was

“exculpatory” to begin with, was the physician who

prescribed it. However, there is no proof in the record

that this person was under the control of the

prosecution, and the duty to disclose does not arise as

to information “which is not possessed by or under the

control of the prosecution.” State v. Marshall, 845

S.W.2d at 233. Moreover, the duty to disclose does not

arise as to information “that the accused already

possesses or is able to obtain.” Jd. There is no

Ney

4la

contention here that Henley did not know he was

taking the medication. Moreover, there is proof in the

record that Henley understood the medication’s

soothing effects on him.

The petitioner claims he was denied his

constitutional right to trial by jury because of the trial

court’s dismissal of jurors opposed to the death

penalty. Because this issue was not raised on direct

appeal, it is waived. T.R.A.P. 36. This issue is also

without merit. It is proper for a court to excuse jurors

who indicate that they will not vote for the death

penalty regardless of their instructions. Morgan v.

Illinois, 504 U.S. 719, 728, 112 S.Ct. 2222, 2229 (1992).

Furthermore, “the trial court’s finding on this issue is

to be accorded a presumption of correctness inasmuch

as such findings involve a determination of demeanor

and credibility particularly within the trial court’s

province and ... the burden rests on the [petitioner] to

establish by convincing evidence that the court’s

determination was erroneous.” State v. Harris, 839

S.W.2d 54, 64 (Tenn.1992). The petitioner has failed to

meet this burden.

The petitioner also contends that the sole

aggravating factor relied on by the State in this case

was unconstitutional. In seeking the death penalty, the

State argued that the murders of Fred and Edna

Stafford were each “especially heinous, atrocious, or

cruel in that [each] involved torture or depravity of

mind.”3 T.C.A. § 39-2-203(i)(5) (1982). The petitioner’s

3 The trial court instructed the jury that “the word heinous

means grossly wicked and reprehensible, abominable, atrocious

and vile. Atrocious means extremely evil or cruel, monstrous,

exceptionally bad, abominable. Cruel means disposed to inflict

pain or suffering, causing suffering, painful. Torture means, the

infliction of severe physical pain as a means of punishment or

“a

‘

42a

claim that this aggravating factor was unconstitutional

was denied by our Supreme Court in the direct appeal

of this case. Further, we are bound by our Supreme

Court’s subsequent holdings that this aggravating

factor passes constitutional muster. See, ¢.g., State v.

Hines, — S.W.2d — (Tenn.1995), aff'd. on reh’g, —

S.W.2d — (1996); State v. Keen, — S.W.2d —

(Tenn.1994), reh’g granted; State v. Black, 815 S.W.2d

166 (Tenn.1991); State v. Teel, 793 S.W.2d 236

(Tenn.1990), cert. denied, 498 U.S. 1007 (1990); State v.

Thompson, 768 S.W.2d 239 (Tenn.1989), cert. denied,

497 U.S. 1031 (1990).

Henley also complains about the trial court’s jury

instructions concerning mitigating circumstances.

Again, this issue was previously determined in the

direct appeal of this case and we decline to readdress it

here.

We also decline to disagree with our Supreme

Court’s repeated holdings that Tennessee’s death

penalty statutes are constitutional. See, e.g., State v.

Howell, 868 S.W.2d 238 (Tenn.1993), cert. denied, 62

U.S.L.W. 3624 (1994); State v. Van Tran, 864 S.W.2d

465 (Tenn.1993), cert. denied, 62 U.S.L.W. 3691 (1994);

State v. Black, 815 S.W.2d 166 (Tenn.1991).

Resolution of the foregoing issues leaves us with

the petitioner’s primary complaint, to-wit, that he

received ineffective assistance of counsel at his trial.

We must first note that James H. Reneau, III, who

represented Henley at his trial and on direct appeal,

died before he was able to testify in this proceeding.

Accordingly, we are constrained in our ability to

coercion[; t]he experience of this[;} mental anguish[;] any method

or thing that causes such pain or anguish{;] to inflict would create

[sic] physical or mental pain. Depravity means moral corruption,

wicked, or preversed [sic] acts.”

43a

examine the reasons behind any of Mr. Reneau’s

actions. We do, however, have the benefit of a copy of

Mr. Reneau’s entire file in this matter.

Specifically, the petitioner claims that his counsel

was ineffective in the following ways:

1. He failed to assemble a ‘defense team,” including

a second lawyer, a mental health expert, an

investigator, an arson expert, and “others”;

2. He did not conduct sufficient investigation into

the case, including “appropriate” interviews with

Henley;

3. There was no attempted negotiation toward a

plea bargain; ;

4. He did not challenge Henley’s arrest on the

contempt of court charge;

5. He failed to keep out of evidence the pistol and

mention of a polygraph exam;

6. He failed to move for a change of venue;

7. He did not attempt to rehabilitate jurors excused

by the court because of their views on the death

penalty;

8. He “never developed a strategy” in the case;

9. He made no opening statement to the jury;

10. He did not request a jury instruction on

voluntary intoxication; and

11. He did not prepare adequately for the

sentencing hearing, and did not effectively represent —

the petitioner at the sentencing hearing.

The petitioner also claims that Mr. Reneau was

ineffective on the direct appeal of this matter.

In reviewing the petitioner’s Sixth Amendment

claim of ineffective assistance of counsel, this Court

must determine whether the advice given or services

rendered by the attorney are within the range of

44a

competence demanded of attorneys in criminal cases.

Baxter v. Rose, 523 S.W.2d 930, 986 (Tenn.1975). To

prevail on a claim of ineffective counsel, a petitioner

“must show that counsel’s representation fell below an

objective standard of reasonableness” and that this

performance prejudiced the defense. There must to be

a reasonable probability that but for counsel’s error the

result of the proceeding would have been different.

Strickland v. Washington, 466 U.S. 668, 687-88, 692,

694 (1984); Best v. State, 708 S.W.2d 421, 422

(Tenn.Crim.App.1985). ~

When deciding whether counsel’s performance was

deficient, “every effort [must] 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.” Strickland v. Washington, 466 U.S. at 689.

“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). We must defer

to trial strategy and tactical choices when they are

informed ones based upon adequate preparation. /d.

See also Hellard v. State, 629 S.W.2d 4 (Tenn.1982).

On appeal, we are bound by the lower court’s

findings unless the petitioner carries his burden of

illustrating that the evidence preponderates against

the judgment entered. Black v. State, 794 S.W.2d 752

(Tenn.Crim.App.1990).

With respect to the petitioner’s claim that his trial

counsel was ineffective for failing to develop a trial

strategy, we find that the record belies this assertion.

It is obvious that trial counsel intended to discredit

Flatt and to create reasonable doubt through attacking

the State’s case at every opportunity. This strategy

included attacking Flatt’s version of the events and his

45a

credibility; attacking the identification and/or the

relevance of the guns; attacking the State’s

investigation of the fire; and presenting the testimony

of the petitioner. That trial counsel’s strategy was not

successful does not mean that there was no strategy at

all. The petitioner has failed to carry his burden of

proving that the evidence preponderates against the

lower court’s findings in this regard.

Trial counsel’s strategic decision not to move for a

change of venue was a valid tactical choice. Henley

testified that Mr. Reneau had told him that he wanted

the trial to be where Henley had been born and raised.

Obviously, Mr. Reneau considered, and rejected,

attempting to move the trial. Similarly, counsel’s

choice not to make an opening statement was not

shown to be ineffective. The State introduced expert

evidence at the _ post-conviction hearing that

experienced criminal defense attorneys occasionally

choose not to make an opening statement for strategic

reasons. Of course, the petitioner introduced expert

testimony contending that an opening statement is

crucial to the defense. Since it is the petitioner’s

burden :of proving the ineffectiveness of his counsel,

and since Henley has shown no prejudice attaching

particularly to Mr. Reneau’s failure to make an opening

statement, we cannot find that, in this regard, the

evidence preponderates against the lower court’s

decision that Henley received competent counsel at the

trial.

Mr. Reneau’s decision not to attempt to rehabilitate

jurors excused by the court because of their views on

the death penalty was also a valid choice. See Cooper v.

State, 847 S.W.2d 521, 535 (Tenn.Crim.App.1992) (Trial

attorney “not fault[ed]” for not attempting to

rehabilitate prospective jurors who stated that they

would not impose the death penalty regardless of the

46a

evidence.) Moreover, there is no proof in the record

that any attempted rehabilitation would have been

successful, hence no prejudice from Mr. Reneau’s

“omission” has been shown.

Trial counsel’s decision not to request a jury

instruction on the petitioner’s alleged intoxication at

the time of the offenses was also a valid tactical choice.

The petitioner consistently and adamantly maintained

that he had not been intoxicated at the time. Although

trial counsel could legitimately have requested the jury

instruction as a way of “hedging his bets” against the

possibility that the jury would believe Flatt rather

than his own client, we decline to find that his choice

constituted deficient performance. Had Mr. Reneau

argued voluntary intoxication, he ran the risk of being

perceived as not believing his own client: a classic

“damned if you do and damned if you don’t” situation.

Mr. Reneau’s choice was reasonable under the

circumstances.

The petitioner’s complaint that Mr. Reneau was

ineffective because he did not attempt to negotiate a

plea is not supported by anything in the record

indicating that such an attempt might have been

successful. Attorney General Thompson, who. also

prosecuted the case against Henley, stated during the

post-conviction hearing that a plea bargain “wasn’t an

option” and Henley testified that he would not have

pled guilty to anything before his trial because he was

innocent. Accordingly, the petitioner has failed to

show any prejudice resulting from this alleged

deficiency.

Similarly, as set forth above, the record does not

support the petitioner’s claim that tainted evidence

was obtained during a pretextual arrest. Accordingly,

no showing of prejudice has been made from trial

counsel's failure to challenge this arrest.

47a

As to Henley’s claim that counsel was deficient in

failing to keep out the pistol, we agree that an objection

to its admissibility should have been made.4 However,

Mr. Reneau did an effective job of challenging the

materiality of the pistol, and the record does not

demonstrate that the result of the trial would probably

have been different had the pistol been excluded.

Accordingly, we find that the petitioner was not denied

effective assistance of counsel in this regard.

Henley also fails to show how his trial counsel was

deficient in failing to keep out Flatt’s offhand reference

to a period of time when he and Henley were waiting in

a room “for the polygraph test.” This reference could

not have been anticipated from the question asked

Flatt, and an objection arguably would simply have

drawn more attention to it. Similarly, Chief Deputy

Clifton Long’s reference to a polygraph test was

offhand and could not have been anticipated from the

question asked. No witness testified that the tests had

actually been administered, or as to the results of any

polygraph tests. Counsel was not deficient in this

regard.

Finally, we address Henley’s contention that his

trial counsel did not adequately investigate or prep:.re

his case. With respect to the guilt phase of the trial, we

do not find that the petitioner has carried his burden of

overcoming the trial court’s findings that Mr. Reneau

was not deficient in his investigation and preparation of

4 Before the pistol was admitted into evidence, Mr. Reneau

objected to the sheriff being questioned about where it was found

on the basis of no personal knowledge. The trial court allowed the

sheriff to testify about how he’d come into possession of it as it

was shown to him by the prosecutor. When the pistol was later

marked for identification, and subsequently entered into evidence,

no objection was made.

i a

Ree

48a

this case for failing to interview him more

“appropriately,” to request an additional lawyer on the

case, or for failing to otherwise assemble what the

petitioner calls a “defense team.” Henley-has not

shown any prejudice stemming directly from Mr.

Reneau’s decision to try this case by himself.

' Additionally, while Mr. Reneau did not hire the arson

expert that the petitioner’s post-conviction counsel

did5 Mr. Reneau did offer some effective expert

testimony challenging the State’s investigation of the

fire. Mr. Reneau also did an effective job of cross-

examining the State’s witness who conducted the fire

investigation. :

As to Mr. Reneau’s failure to discover and

investigate the petitioner’s medicated state during the

trial, the record simply does not support a finding that

Mr. Reneau was deficient because he did not notice

that his client was under the influence of drugs. The

petitioner repeatedly denied abusing drugs, and never

disclosed to Mr. Reneau that he was currently taking

medication. Other than Henley’s mother and exwife’s

testimony at the post-conviction hearing that he “just

didn’t act himself’ and that he acted “[l]ike he was

drugged” before the trial, the record is bereft of any

proof that Henley was behaving in such a way that

should have alerted his counsel to inquire as to his

> We can only speculate as to what this expert’s testimony

would have been had he actually investigated the fire. It is

possible that he would have found incriminating evidence.

6 Because Mr. Reneau died before he could testify in this

proceeding, it is impossible to know for certain whether or not he

was aware that Henley was taking Xanax and P.V. Tussin during

the trial. It is possible that Mr. Reneau did know, and that he

approved. However, the record supports the inference.

49a

health.” Indeed, the sheriff in charge of the jail where

Henley awaited trial testified that he hadn’t noticed

any change in Henley’s behavior when he was taking

the medication. Apparently, neither did Mr. Reneau,

who had been meeting with Henley since August 1985.

Henley started taking the medication at issue in

December 1985.

We are disturbed about the possible effects that the

drugs had on the petitioner’s demeanor at trial and that

there was no testimony explaining these effects to the

jury. We are similarly disturbed that the petitioner’s

attorney had no psychological or psychiatric evaluation

done on his client before trial which might have

resulted in Henley being taken off of the drugs, or at

least in an explanation about their effects. We are

disturbed that Henley’s attorney, apparently, was not

aware that his client was taking these drugs.

However, we are unwilling to hold that Mr. Reneau’s

performance was deficient because he failed to discern

or investigate his client’s medicated state, particularly

in a case such as this where there is reason to believe

that the client might have lied upon simple inquiry.8

Moreover, the petitioner has to bear some

responsibility for his own failure to inform his attorney

about the medications he was taking. See, e.g., State v.

7 Defense counsel’s offer of proof at the post-conviction hearing

about the jurors’ perceptions of the petitioner’s demeanor at trial

does not establish that his demeanor there was significantly

different from what it normally was. Only a person who was

familiar with the defendant’s demeanor, both while he was taking

the medication at issue and while he was not, would be competent

to offer testimony about any change which arguably should have

triggered an investigation.

8 Although Henley steadfastly maintained at trial that he did

not abuse drugs, Dr. Byrne testified that Henley had told him that

he was “used to shooting four milligram{s] ... [of] Dilaudid.”

50a

Russell, 866 S.W.2d 578, 583 (Tenn.Crim.App.1991)

(counsel not ineffective for failing to attack prior

convictions on grounds that the defendant was under

the influence of narcotics at the time she pled guilty

where the defendant never told her attorney that she

had been under the influence at the time); Cf

Groseclose v. Bell, 895 F.Supp. 935, 950

(M.D.Tenn.1995) (ineffective assistance where, among

other things, the defendant told his lawyer that the

State was giving him medication which he had never

requested, but which had been prescribed, and counsel

simply responded “then take it”). Finally, even if Mr.

Reneau’s performance in this regard was deficient,

Henley has failed to show a reasonable probability that

his medicated state had an adverse effect on the

outcome of his trial. It is quite possible that Henley’s

demeanor while not on medication would have been

equally unappealing to the jury.?

The record does not support a finding of deficient

investigation into any other aspect of the guilt phase of

Henley’s trial.

As to Henley’s contention that Mr. Reneau was also

ineffective on the direct appeal of this matter, we find

this issue without merit. We have addressed all of the

issues which Henley claims should have been raised in

the direct appeal, but weren’t, and found that they do

not afford him any grounds for relief. The petitioner

therefore suffered no prejudice from Mr. Reneau’s

decision not to include them in the appeal.

Accordingly, Henley’s claim of ineffective assistance of

9 Given that Henley was also taking antianxiety medication at

the post-conviction hearing, we can only infer that he has difficulty

dealing with stressful situations without the benefit of such

medication.

5la

counsel on appeal fails. Cooper v. State, 849 S.W.2d

744, 747 (Tenn.1993).

We affirm the lower court’s judgment that Henley

is not entitled to any postconviction relief with respect

to his convictions.

With respect to the sentencing phase of the trial,

however, we find that Mr. Reneau’s investigation and

preparation were constitutionally deficient. Our Court

has recognized that

‘{a] lawyer also has a substantial and important role

to perform in raising mitigating factors both to the

prosecutor initially and to the court at sentencing. This

cannot effectively be done on the basis of broad general

emotional appeals or on the strength of statements

made to the lawyer by the defendant. Information

concerning the defendant’s background, education,

employment record, mental and emotional stability,

family relationships, and the like, will be relevant, as

will mitigating circumstances’ surrounding the

commission of the offense itself. Investigation is

essential to fulfillment of these functions.’

Adkins v. State, No. 03C01-9106-CR-00164, pp. 42-3,

Washington County (Tenn.Crim.App. filed December

2, 1994, at Knoxville) (citation omitted). Personal

background and character information are highly

relevant at a capital sentencing hearing “because of the

belief, long held by this society, that defendants who

commit criminal acts that are attributable to a

disadvantaged background, or to emotional and mental

problems, may be less culpable than defendants who

have no such excuse.” California v. Brown, 479 US.

538, 545 (1987) (O’Connor, J., concurring).

Although many of Henley’s family members,

including his mother, testified at the post-conviction

hearing that. they would have been willing to testify on

52a

Henley’s behalf had they been asked, Mr. Reneau

spoke to none of them prior to the sentencing hearing.

Mr. Reneau called the petitioner’s mother to the stand

at the sentencing hearing without ever having spoken

to her about testifying. Not understanding what was

expected of her, she refused—in front of the jury—to

testify. We do not think it is assuming too much to

conclude that a jury is going to be prejudiced against a

defendant upon that person’s own mother refusing to

testify on his or her behalf.!°

Had they been prepared and called at the

sentencing hearing, Henley’s family members would

have testified that they loved the petitioner; that he

was a good and loving man; that he was not a violent

man; that the offenses of which he was convicted were

totally out of character for him; and that they were

shocked by his arrest. They would have pled for his

life. Additionally, the petitioner produced evidence at

the post-conviction hearing that other potentially

mitigating evidence existed that would have been

discovered had Mr. Reneau conducted a more thorough

_ investigation. Expert testimony indicated the

possibility that Henley had suffered from depression,

alcohol and drug abuse, and learning disabilities. In

grade school, Henley’s I.Q. tested at 89. He dropped

out of high school after the tenth grade. Not long

before the murders, Henley suffered severe financial

losses, was forced to file bankruptcy, and lost the

family farm. All of this would have been proper

testimony for mitigation. Eddings v. Oklahoma, 455

U.S. 104, 117 (1982) (the Constitution requires the

sentencer to “consider and weigh all of the mitigating

10 In the petitioner’s offer of proof at the post-conviction

hearing, one juror was quoted as saying, “If a man’s own mother

won't testify on his behalf then we know what we’ve got to do.”

53a

evidence concerning the petitioner’s family background

and personal history.”) (O’Connor, J., concurring);

Lockett v. Ohio, 438 U.S. 586 (1978).

In spite of all the mitigating evidence available, onty

two people testified on Henley’s behalf at the

sentencing hearing: Henley himself and _ his

grandmother. The jury had already indie“‘ed that it

did not believe Henley when it convicted him.

Accordingly, it is reasonable to presume that Henley’s

testimony at his sentencing hearing would not have

been particularly persuasive. It is also possible, if not

likely, that Henley’s grandmother was viewed with a

certain amount of hostility because Flatt testified that

it was on her behalf that Henley had felt compelled to

attack the Staffords. Thus, of all the people that Mr.

Reneau had available to him, the only two that testified |

were arguably the two least helpful.

“When the record shows a substantial deficiency in

investigation, the normal deference afforded trial

counsel’s strategies is particularly inappropriate....

[This] Court will not credit a strategic choice: by

counsel when counsel ‘did not even know what

evidence was available.’ ” Cooper v. State, 847 8.W.2d

at 530 (citation omitted). The record in this case shows

such a substantial deficiency. No psychological or

psychiatric evaluation was done on Henley. Other than

Henley’s grandmother, Mr. Reneau did not speak with

Henley’s family members prior to the sentencing

hearing. There is no evidence from Mr. Reneau’s file or

otherwise that he investigated Henley’s educational

background, employment history, or that he spoke with

members of the community familiar with Henley. He

“ ‘should have investigated his background, checked his

school records, ... his medical history, tried to find

witnesses to demonstrate all aspects of his character.”

[He] should have requested a_ psychological

54a

evaluation.” Bell v. State, No. 08C01-9210-CR-00364, p.

42, Hamilton County (Tenn.Crim.App. filed March 15,

1995, at Knoxville), cert. denied, (quoting the court

below).

While we have held that Mr. Reneau’s failure to

investigate his client’s mental health was _ not

ineffective assistance of counsel with respect to the

guilt phase of this trial, we do find that it was

ineffective with respect to the sentencing phase.

“(T]here is a qualitative difference between

obtaining psychological information for the purpose of

preparing a defense to the charges and using such

evidence for the purpose of mitigating the punishment.

Thus, it is not incompatible to present evidence of

psychological or mental impairment during sentencing,

even where’a defense of factual innocence has been

interposed at the guilt phase.”

Bell v. State, supra at 46 (citation omitted).

Combined with Mr. Reneau’s failure to investigate

Henley’s family’s availability and willingness to testify,

and his failure to investigate other aspects of Henley’s

past, Mr. Reneau failed to meet the level of competence

required by attorneys representing clients at the

sentencing phase who are faced with the death penalty.

See State v. Terry, 813 S.W.2d 420, 425 (Tenn.1991) the

qualitative difference between the death penalty and

all other punishments requires greater reliability in the

sentencing determination).

We also find that Mr. Reneau’s deficient

performance at the sentencing phase prejudiced the

petitioner. The petitioner made an offer of proof at the

postconviction hearing that the jury considered the fact

that Henley’s mother refused to testify on her son’s

behalf. Even without this offer of proof, we hold that

the dearth of favorable testimony offered at the

55a

-sentencing hearing, when significant amounts of

favorable testimony were available, establishes a

reasonable probability that, but for Mr. Reneau’s

deficient performance with respect to the sentencing

phase of Henley’s trial, the result of the proceeding

would have been different.!1

We find that the evidence preponderates against

the lower court’s finding that Henley received effective

assistance of counsel at sentencing, and accordingly

reverse that portion of the decision below, vacate the

petitioner’s death sentence and remand this matter for

a new sentencing hearing. that Mr. Reneau was

unaware that Henley was taking these drugs.

11 Unlike State v. Melson, 772 S.W.2d 417 (Tenn. 1989), this was

not a case where the available mitigation evidence had already

been presented during the guilt phase of the petitioner’s trial.

56a

SUPREME COURT OF TENNESSEE, AT

NASHVILLE.

STEVE HENLEY, Appellee,

STATE OF TENNESSEE, Appellant.

Dec. 15, 1997.

Rehearing Denied Jan. 26, 1998.

960 S.W.2d 572

| OPINION

DROWOTA, Justice.

In this post conviction proceeding, the trial court

denied relief on all grounds alleged, and specificaily

found that the petitioner, Steve Henley, had been

afforded his constitutional right to effective assistance

of counsel at the sentencing phase of his capital trial.

The Court of Criminal Appeals found that the evidence

preponderated against the trial court’s denial of relief

with respect to the sentencing phase, and concluded

that Henley had been denied his right to effective

assistance of counsel because trial counsel had failed to

adequately investigate and prepare witnesses to testify

on Henley’s behalf and had failed to adequately

investigate Henley’s mental condition and request that

he undergo a mental evaluation. Accordingly, the

Court of Criminal Appeals reversed Henley’s sentence

of death and ordered a new sentencing hearing.

57a

Thereafter, we granted the State permission to appeal

to determine whether the intermediate court erred in

concluding that the evidence preponderates against the

trial court’s finding that Henley was afforded his right

' to effective assistance of counsel at sentencing. After

carefully reviewing the record, we have determined

that the evidence supports the trial court’s finding.

Accordingly the judgment of the Court of Criminal

Appeals ordering a new sentencing hearing is

reversed, and the trial court’s decision denying the

petition for post conviction relief on all grounds alleged

is reinstated.!

BACKGROUND

In 1986, the petitioner was convicted of aggravated

arson and two counts of first degree premeditated

murder for the killings of Fred and Edna Stafford, an

elderly couple who were close neighbors to Henley’s:

grandmother. According to the testimony of his co-

defendant, Terry Flatt, the petitioner ordered both

victims inside their home, shot them multiple times,

and set their house on fire. The proof introduced at

trial to establish the defendant’s guilt was summarized

by this Court on direct appeal as follows:

[T]he evidence showed that Fred and Edna Stafford

lived on Pine Lick Creek Road in Jackson County,

just a short distance from the farm, owned_ by

Henley’s family, where his grandmother lived. On

the day of the Staffords’ death Henley had visited

his grandmother and obtained some mechanical

parts for some work he was doing. Flatt was with

him. Earlier in the day they had been driving about,

1 Oral arguments were heard in this case on October 8, 1997 in

Columbia, Maury County, as part of this Court’s S.C.A.L.ESS.

(Supreme Court Advancing Legal Education for Students)

project.

58a

tending to business affairs of Henley’s. During that

time they had consumed some beer and also had

taken some drugs, referred to in the record as

Dilaudids. According to Flatt, as they passed the

Staffords’ residence Henley commented, ‘there was

some people that lived on that road that owed his

grandmother or grandfather some money, and they

done him wrong, his grandparents wrong years

before, and he was going to stop and see about

collecting some money off them.’ Henley let Flatt

out of the truck just before he reached his

grandmoether’s house. When he returned five or ten

minutes later he had a .22 rifle with him. They

stopped fifty or seventy-five yards up the road

where Henley loaded some more shells into the rifle.

He also filled a plastic jug with gasoline from a five-

gallon can he had in the back of the truck. They

proceeded on toward the Stafford residence. When

they reached there Mr. and Mrs. Stafford were

standing on the left-hand side of the road looking at

a small bridge where some construction work had

recently been done, Henley stopped the truck,

jumped out and told them, ‘I want your money, if

you don’t give it to me this man in the truck here,

he’s going to kill me.’ He then directed them to go to

the house. Mr. Stafford said, ‘Steve, if you want

money or something, I got $80, maybe $100, you can

have it.’ He forced them on to the house at gunpoint

and told Flatt to bring the .22 rifle as he followed

behind them. When they got within 20 or 30 feet of

the house he told Flatt to give him the rifle and go

back to the truck and get the plastic jug of gasoline.

Flatt did as directed. As he reached the porch he

saw Henley begin to shoot. He first shot Mr.

Stafford then turned and shot Mrs. Stafford a time

or two. While she was laying on the floor moaning

59a

and groaning he threw the rifle to Flatt, took out his

pistol and shot her again with the pistol. He told

Flatt to pour out some of the gas. Flatt endeavored

to do as he was told and poured out a small amount.

When he could not finish Henley took the container

of gas from him and finished pouring it out. He then

directed Flatt to light it. When Flatt said he could

not he struck the match and as the flames went up

they ran to the truck.

The house burned to the ground. The bodies of

the Staffords were found in the ashes. All that

remained of Mr. Stafford’s body was part of the

right leg and the trunk area. The body of Mrs.

Stafford was similarly burned. It was determined

that Mr. Stafford died from a gunshot wound to the

chest with the bullet passing through his heart.

Mrs. Staffora’s death was caused by burns and

inhalation of noxious gases from the fire. It was the

opinion of the medical éxaminer that Mrs. Stafford

lived a minute or longer after the fire began.

State v. Henley, 774 S.W.2d 908, 912 (Tenn.1989).

At trial Henley maintained his innocence and

attempted to discredit the prosecution’s evidence,

particularly the testimony of co-defendant Flatt which

was crucial to the State’s case. The defense showed

that by testifying, Flatt had gained the benefit of a plea

bargain agreement, pursuant to which, Flatt had been

allowed to plead guilty to two counts of second degree

murder, two counts of armed robbery and one count of

aggravated arson. Flatt was sentenced as a Range I

offender to twenty-five years for each of the murders,

ten years for each of the robberies, and ten years for

the arson, all to run concurrently, for an effective

sentence of twenty-five years.

60a

Testifying in his own defense, Henley adamantly

denied all knowledge of and involvement in the

murders and arson. Henley acknowledged that he had

spent the day in the company of Flatt, and he admitted

that he had drank some beer. However, Henley flatly

denied that he was intoxicated or under the influence of

drugs. Henley said he did not like to drink beer and

had never abused drugs. Henley testified that it was

Flatt who was intoxicated and under the influence of

the drug referred to in the record as Dilaudid. Henley

said that he dropped F'latt off before arriving at his

grandmother’s house because of Flatt’s intoxicated

condition. Flatt left the truck with Henley’s .22 gauge

rifle planning to hunt rabbits. Henley said he

proceeded to his grandmother’s house and remained

there for about forty-five minutes,to an hour. Henley

picked Flatt up when he left, but had no knowledge of

Flatt’s activities during the intervening time frame.

Henley claimed that he did not see the fire at the

Staffords’ home and was not aware of their deaths until

the next day. On cross-examination, Henley admitted

that he previously had pleaded guilty to transporting

stolen goods in interstate commerce. In addition,

Henley admitted that, he owed a substantial farming

debt near the time of the killings and had filed for

bankruptcy.

The defense called other witnesses during the guilt

phase to corroborate \Henley’s testimony about his

activities on the day of the murders and to provide

background information about Henley’s life. Henley’s

grandmother testified that around the time of the

murders, Henley arrived at her home alone and stayed

there for forty to forty-five minutes. On cross-

examination, she admitted that she had seen Henley

with the .22 rifle on Saturday before the Staffords were

murdered on Wednesday.

6la

After the jury convicted Henley of two counts of

premeditated murder and arson, the case proceeded to

sentencing. The State relied upon the proof it had

presented at the guilt phase.

The defense offered further proof, first calling

Henley’s mother, who, in the presence of the jury said,

“I want to talk to you Mr. Reneau.” Defense counsel,

J.H. Reneau, III, requested and was granted a short

recess. He exited the courtroom with Dorothy Henley.

When the sentencing hearing resumed, she did not take

the stand, and the jury was not given an explanation

for her failure to testify. Instead, the defense recalled

Bertha Henley, the petitioner’s seventy-five-year-old

grandmother who testified that Henley, along with his

parents, had lived in her household from the time he

was born until he was two years old. In addition,

Henley had spent every weekend and summer vacation

thereafter in her horme until he completed high school.

She said that Henley had a very close relationship with

his grandfather, and that, from a very young age,

Henley had helped his grandfather with farm work.

She described Henley as a “good child” who “minded”

her well and who “always loved” her. Henley married

when he was eighteen-years-old, and had two children,

Gregg and Leanne. Even after his marriage, however,

Henley’s close relationship with his grandparents

continued. Though he and his family moved from

Tennessee to Maryland, Henley returned to Tennessee

when his grandfather was diagnosed with cancer in

May of 1976 and lived with his family in a trailer across

from his grandparents’ home so that he could help his

grandfather with the farm work. After his grandfather

died of cancer in July of 1976, Henley began working on

the family farm full time and continued in that

occupation from 1977 to 1983. During that time,

Henley visited his grandmother almost everyday, and

62a

continued to check on her regularly thereafter. She

could not drive because she had suffered a heart attack,

so Henley would drive her to the doctor and into town

once a week to pay bills and buy groceries. Henley’s

grandmother described him as a “tender hearted”

person who would cry when his feelings were hurt.

She said he had always been kind and good to her, ever

willing to provide her with needed assistance. She told

the jury that she loved Henley, the eldest of her four

grandchildren, and did not want to see anything

happen to him. The State did not cross examine Bertha

Henley at the sentencing hearing.

Henley also testified about his relationship with his

grandparents and how he had played and worked on

the farm from a very young age. When asked why he

stayed with his grandparents, rather than his parents,

on the weekends and during his summer vacations,

Henley replied, “I’d just love them more than anything

in the world. There’s no way to explain my

granddaddy, I don’t guess. He was just the best

person in the world.” Henley recourted how he had

given up his job in Maryland as a certified marine

mechanic to return to Tennessee and assist his

grandfather when he was diagnosed with cancer.

Henley said he worked full time on the family farm

from 1977 to 1983, and was successful for a time. His

farming difficulties began with a drought in 1980 or

1981. To compensate for losses during the drought, he

planted nearly seven hundred acres of wheat. Because

of severe flooding, Henley was unable to harvest the

wheat and lost his entire crop and ultimately was

forced to file for bankruptcy protection. When trial

counsel gave Henley the opportunity to make a final

comment to the jury, Henley told the jurors, “I think

each and everyone of you has made a mistake, and it’s a

mistake you all will have to live with. And one day and

63a

time when we’re all, wherever we go, we'll all have to

face that.” The State did not cross examine Henley at

the sentencing hearing.

After hearing the proof, the jury sentenced Henley

to death for both murders, finding that each murder

was “especially heinous, atrocious, or cruel in that it

involved torture or depravity of mind.” Tenn.Code

Ann. § 39-2-203(1)(5) (1982). This Court affirmed the

convictions and sentences on direct appeal. State v.

Henley, 774 S.W.2d 908 (Tenn.1989).

Thereafter, Henley instituted this action seeking

post conviction relief. Among other things, Henley

alleged that he was denied his constitutional right to

effective assistance of counsel at the sentencing phase

of his capital trial. Henley alleged that trial counsel’s

failure to investigate and prepare family members to

testify on his behalf deprived the jury of hearing proof

of his good character and non-violent nature. In

addition, Henley alleged that trial counsel’s failure to

completely investigate his mental condition and

request a mental evaluation constituted ineffective

assistance of counsel. At the time of the evidentiary

hearing on the petition, both the original trial judge,

Robert H. Bradshaw, and the sole trial defense

attorney, J.H. Reneau, III, were deceased.

In support of his first claim, Henley offered the

testimony of his mother, his two sisters, his two

children, and his second wife. Dorothy Henley, the

petitioner’s mother, said that trial counsel had not

contacted her prior to trial and that the only time he

had spoken to her about testifying was during the

recess she requested after he had called her to the

witness stand at the sentencing hearing in the presence

of the jury. Mrs. Henley admitted that she told trial

counsel during the recess that she did not want to

— testify, but said she had refused to testify only because

64a

she had not understood the purpose of her testimony

nor what she would have been expected to say on the

witness stand. Had trial counsel explained to her the

purpose of her testimony before the sentencing

hearing, Mrs. Henley claimed she would have testified

on behalf of her son.

Had she been properly prepared, Mrs. Henley said

that she would have given testimony about her son’s

life, her love for him, and her belief that he would not

have committed the crimes “if he was at his right

mind.” She would have told the jury that Henley was a

good son who had a close relationship with his

grandparents and who had suffered financial losses

because of the failure of his farming operation. On

cross-examination, Mrs. Henley acknowledged that she

had lived in Davidson county at the time of the

murders and that she had little contact with her son

during the year preceding the homicides. She conceded

that she had no more information about Henley’s

background than what his grandmother had testified

about at the sentencing hearing.

The petitioner’s children, Greg and Leanne Henley,

testified that they were not told about the petitioner’s

trial until it had concluded. These witnesses said that,

had they been contacted by trial counsel, they would

have given evidence that Henley was a good father.

Greg was twelve or thirteen years old at the time of

the trial and Leanne was ten or eleven years old. At

the time of Henley’s trial, both children lived with their

mother, Henley’s first wife. In an affidavit offered by

the petitioner at the evidentiary hearing, their mother

stated that she would have allowed the children to

testify if she had been contacted by trial counsel.

Stefanie Robinson, the petitioner’s younger sister

testified that she had not been contacted by trial

counsel, but said, had she been afforded the

65a

opportunity, she would have told the sentencing jury

that Henley was a good brother and that he had been

very upset when he could not pay the money he had

borrowed against the family farm. According to

Robinson, Henley was not a violent person. On cross-

examination, Robinson admitted that she had seen the

petitioner drink beer and smoke marijuana.

Patricia Woodard, the petitioner’s older sister, said

that she would have been willing to testify on Henley’s

behalf had she been contacted by trial counsel.

Woodard would have told the jury that the petitioner

had taught her to ride a bicycle when they were young,

and that she had never seen the petitioner become

violent. On cross-examination, Woodard admitted that

she had lived in Carthage, Tennessee, for five years

prior to the murders and had not spent a great deal of

time with the petitioner in the years preceding his

arrest and trial.

Cynthia Brown, the petitioner’s second wife

testified that, had she been contacted by trial counsel,

she would have testified in Henley’s behalf and told the

jury that she had never seen Henley exhibit violent

behavior and that he had been very kind to her son by

a previous marriage and had intended to adopt the boy.

On cross-examination, Brown admitted that Henley

drank alcohol and used marijuana during their

marriage.

With respect to the petitioner’s second claim that

trial counsel should have further investigated his

mental condition, Henley offered the testimony of

attorney Robert Massey who said that trial counsel

should have engaged an independent psychologist to

assist in the document gathering process and to do an

examination of those documents to determine whether

or not there would be any mitigation evidence that

might be presented from those documents to the jury

66a

at the penalty phase. Mr. Massey had tried one death

penalty case at the time of offering this testimony and

had settled six others. He had never tried a case in

Jackson county, nor had he been acquainted with the

petitioner’s original trial counsel.

The petitioner also offered the testimony of Dr.

William D. Kenner, a psychiatrist who had interviewed

Henley once for two hours in August of 1992, reviewed

the results of tests administered by a licensed clinical

psychologist, reviewed the interviews of family

members conducted by post conviction counsel, and

reviewed the trial testimony of Henley and co-

defendant Flatt. Dr. Kenner had not spoken directly

with Henley’s family, nor reviewed the entire trial

transcript, nor asked Henley to recount what trial

counsel had talked about with him. Dr. Kenner did not

question Henley’s competency to stand trial, but said

that Henley had been depressed at the time of the

homicides because of his farming failures and may have

been “self-medicating” by using alcohol and drugs. On

IQ tests given, Dr. Kenner said that Henley had sccred

in the average range with a performance score of 109, a

verbal score of 94, and a full scale score of 99.

According to Dr. Kenner, such a divergence between

the performance score and the verbal score is often

indicative of a learning disability. According to Dr.

Kenner, a learning disability could have caused Henley

to have difficulty managing his finances and could have

been the actual cause of Henley’s farming failures. Dr.

Kenner also said that because of Henley’s close

relationship with his grandfather, losing the family

farm was the equivalent to Henley of his grandfather

dying a second time.

Finally, Henley testified at the post conviction

hearing. On direct examination, Henley denied having

any meaningful consultation with Reneau. Henley said

“4

67a

that Reneau never asked him for a history of his life or

for any personal records such as school or medical

records. Henley also said that Reneau had not spoken

with any of his family members about testifying at the

sentencing hearing. The petitioner admitted that he

had never asked his family members to testify in his

behalf. Finally, Henley continued to maintain that he

was innocent of the crimes for which he had been

convicted and sentenced to death.

Upon hearing the proof, the trial judge denied the

petition for post conviction relief on all grounds alleged.

Though the trial court made no explicit finding with

respect to the claim that trial counsel was ineffective

because he failed to investigate Henley’s mental

condition and request an evaluation, with respect to

Henley’s claim that trial counsel should have prepared

more witnesses for the sentencing phase, the trial court -

stated:

Heard a lot of witnesses about the sentencing

phase. If there’s any part of it that really—kind of

bothers me a little bit, it’s the sentencing phase, »

and I'll have to state that. I would have like to

have had another witness maybe to have been put

on. I would like for the mother to have testified

when she refused. Now whether he had talked to

her two days ahead of time or that day it really

doesn’t make much difference. If they went in the

back roem and he talked to her and she still didn’t

want to testify, maybe she had a reason. Maybe

she had a reason then that she doesn’t have now, I

don’t know. I do know this, the attorney asked her.

So he come back and got the grandmother and she

testifieu, and I thought did a beautiful job as far as

words, the way they read. She answered the

questions, she took him through his life, she told it.

And the jury had basically everything that these

68a

witnesses the last two days have talked about in

that record before them. They didn’t have the

numbers of people saying this, but they all knew

about his family. They all knew about his

grandmother, his granddaddy, they knew all about

these things, it was all there. It wasn’t repeated

over and over by several people, but they did have

that in the case when they looked at it. But again, I

would have like to have seen another witness. or

two, but that’s trial strategy. He may have

thought that’s enough. She may have done such a

good job that he thought this is the best I’m going

to get. That was the choice to make.

The petitioner appealed and the Court of Criminal

Appeals held tr at the evidence preponderated against

the trial court’s finding that Henley had been afforded

his right to effective assistance of counsel at the

sentencing phase of the trial. Specifically, the Court of

Criminal Appeals found that counsel’s failure to

adequately investigate and prepare witnesses to testify

on Henley’s behalf and to adequately investigate

Henley’s mental condition resulted in a denial of

Henley’s right to effective assistance of counsel at

sentencing. Accordingly, the Court of Criminal

Appeal’s reversed Henley’s death sentence and

remanded for a new sentencing hearing.

Thereafter, we granted the State’s application for

permission to appeal to determine whether the Court

of Criminal Appeals erred in concluding that the

evidence preponderates against the trial court’s finding

that Henley was afforded his constitutional right to

effective assistance of counsel at the sentencing

hearing. For the reasons that follow, we reverse the

judgment of the Court of Criminal Appeals and

reinstate the judgment of the trial court denying post

conviction relief.

69a

STANDARD OF APPELLATE REVIEW

In resolving the issues in this appeal, we are guided

by certain well-settled rules. The burden was on the

petitioner at the evidentiary hearing to prove his case

by a preponderance of the evidence. Tidwell v. State,

922 S.W.2d 497, 500 (Tenn.1996); Cooper v. State, 847

S.W.2d 521, 527 (Tenn.Crim.App.1992). The findings of

fact of the trial judge on a petition for post conviction

relief are afforded the weight of a jury verdict and are

conclusive on appeal unless the evidence in the record

preponderates against those findings. Tidwell, 922

S.W.2d at 500; Cooper v. State, 849 S.W.2d 744, 746

(Tenn.1993); Butler v. State, 789 S.W.2d 898, 899

(Tenn.1990). In evaluating whether the evidence

preponderates against the trial court’s findings, we are

guided by longstanding rules of appellate procedure.

Appellate courts in this State do not reweigh or

reevaluate the evidence. We can not substitute our

inferences for those drawn by the trial judge..

Moreover, questions concerning the credibility of the.

witnesses, the weight and value to be given their.

testimony, and the factual issues raised by the evidence’.

are to be resolved by the trial judge. Finally, the party

seeking to overturn the findings of the trial judge bears

the burden on appeal of demonstrating why the

evidence contained in the record preponderates against

the findings of the trial judge. Bolin v. State, 219'Tenn.

4,11, 405 S.W.2d 768, 771 (1966); Cooper, 847 8.W.2d at

527; Black v. State, 794 S.W.2d 752, 755

(Tenn.Crim.App.1990). It is with these principles in

mind that we evaluate the findings of the trial court

and the Court of Criminal Appeals with respect to the

petitioner’s claim of ineffective assistance of counsel at

sentencing.

70a

INEFFECTIVE ASSISTANCE OF COUNSEL

A. Legal Standards

Article I, Section 9 of the Tennessee Constitution

provides “that in all criminal prosecutions, the accused

hath the right to be heard by himself and his

counsel....” Similarly, “the Sixth Amendment? to the

Constitution of the United States guarantees that in all

criminal prosecutions, the accused shall enjoy the right

. to have the assistance of counsel for his defense.”

These constitutional provisions afford to the accused in

a criminal prosecution the right to effective assistance

of counsel. Baxter v. Rose, 523 S.W.2d 930, 936

(Tenn.1975) and Strickland v. Washington, 466 U.S.

668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To establish

a denial of the right, a petitioner bears the burden of

proving both that counsel’s performance was deficient

and that the deficiency prejudiced the defense. Goad v.

State, 938 S.W.2d 363, 369 (Tenn.1996); Strickland, 466

US. at 687, 104 S.Ct. at 2064.

With respect to the first prong of the claim, we

recognized early on that counsel’s performance is

effective if the advice given or the services rendered

are within the range of competence demanded of

attorneys in criminal cases. Baxter, 523 S.W.2d at 936;

see also, Goad, 988 S.W.2d at 369. To prove a

deficiency, therefore, the petitioner must show that

counsel’s acts or omissions were so serious as to fall

below an objective standard of reasonableness under

prevailing professional norms. Goad, 938 S.W.2d at

369; Strickland, 466 U.S. at 688, 104 S.Ct. at 2065.

When assessing an attorney’s performance it is not our

function to “second guess” tactical and strategic choices

2 The Sixth Amendment is applicable to the states through the

Fourteenth Amendment. See Pointer v. Texas, 380 U.S. 400, 85

S.Ct. 1065, 13 L.Ed.2d 923 (1965).

3 u

Tla

pertaining to defense matters or to measure a defense

attorney’s representation by “20-20 hindsight.” Hellard

v. State, 629 S.W.2d 4, 9 (Tenn.1982). As the United

States Supreme Court has recognized,

Judicial scrutiny of counsel’s performance must. be

highly deferential. It is all too tempting for a

_ defendant to second-guess counsel’s assistance after

conviction or adverse sentence, and it is all too easy

for a court, examining counsel’s defense after it has

proved unsuccessful, to conclude that a particular

act or omission of counsel was unreasonable.

Strickland, 466 U.S. at 689, 104 S.Ct. at 2065; see also

Burger v. Kemp, 483 U.S. 776, 789, 107 S.Ct. 3114, 3123,

97 L.Ed.2d 638 (1987). When reviewing the facts and

circumstances of a case, therefore, a “fair assessment ...

requires that every effort be made to eliminate the

distorting effects of hindsight, to reconstruct the

circumstances of counsel’s challenged conduct, and to

evaluate the conduct from counsel’s perspective at the

time.” Strickland, 466 U.S. at 689, 104 S.Ct. at 2065; see

also Goad, 938 S.W.2d at 369.

To establish the second prong of the claim—that

counsel’s deficiency resulted in prejudice to the

defense—a petitioner “must show that there is a

reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding

would have been different. A reasonable probability is

a probability sufficient to undermine confidence in the

outcome.” Strickland, 466 U.S. at 694, 104 S.Ct. at

2068; see also Goad, 938 S.W.2d at 370. When

challenging a death sentence, a petitioner must show

that “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, 104

S.Ct. at 2069.

72a

In determining whether a petitioner has discharged

the burden of establishing prejudice, a court

must consider the totality of the evidence before

the judge or jury. Some bf the factual findings will

have been unaffected by the errors, and factual

findings that were affected will have been affected

in different ways. Some errors will have had a

pervasive effect on the inferences to be drawn from

the evidence, altering the entire evidentiary

picture, and some will have had an isolated trivial

effect...

Strickland, 466 U.S. at 696-97, 104 S.Ct. at 2069; see

also Goad, 938 S.W.2d at 371. Where, as here, the

alleged deficiency involves counsel’s failure to present

mitigating evidence in the penalty phase of a capital

trial, in assessing prejudice under Strickland, several

factors are significant, including whether substantially

similar mitigating evidence was presented to the jury

in either the guilt or penalty phase of the proceedings;

the nature and extent of the mitigating evidence that

was available but not presented; and whether there

was such strong evidence of aggravating factors that

the mitigating evidence would not have affected the

jury’s determination. Goad, 938 S.W.2d at 371 (citing

cases).

Because a petitioner must establish both prongs of

the test to prevail on a claim of ineffective assistance of

counsel, failure to prove either deficient performance

or resulting prejudice provides a sufficient basis to

deny relief on the claim. Indeed, a court need not

address the components in any particular order or even

address both if the defendant makes an insufficient

showing of one component. Strickland, 466 U.S. at 697,

104 S.Ct. at 2069; Goad, 938 S.W.2d at 370.

73a,

Applying the principles outlined above, we must

now determine whether the evidence in the record

preponderates against the trial court’s finding that the

petitioner failed to establish that he was denied his

constitutional right to effective assistance of counsel.

B. Failure to Prepare/Call Other Witnesses

Though the trial court did not use the term, it is

evident from its finding that the trial court concluded

that the petitioner had failed to establish prejudice

resulting from counsel’s alleged failure to prepare and

call witnesses. In denying post conviction relief, the

trial judge observed that the sentencing jury “had

basically everything that these witnesses the last two

days have talked about in that record before them.”

In reversing the decision of the trial court, the

Court of Criminal Appeals stated, “[w]e do not think it

is assuming too much to conclude that a jury is going to

be prejudiced against a defendant upon that person’s

own mother refusing to testify on his or her behalf.” As

evidence of prejudice, the intermediate court quoted

from the affidavit of a juror which was submitted as

part of the petitioner’s offer of proof at the post

conviction hearing in which the juror said, “If a man’s

own mother won’t testify on his behalf then we know

what we’ve got to do.” In addition, the intermediate

court stated that, “[e]ven without this offer of proof, we

hold that the dearth of favorable testimony offered at

the sentencing hearing, when significant amounts of

favorable testimony were available establishes a

reasonable probability that, but for Mr. Reneau’s

deficient performance with respect to the sentencing

hearing of Henley’s trial, the result of the proceeding

would have been different.”

Initially we note that the juror’s affidavit statement

regarding the effect on the sentencing jury of Dorothy

74a

Henley’s failure to testify should not have been

considered by the intermediate appellate court as proof

of prejudice. Indeed, the affidavit should not have been

considered for any purpose. Rule 606(b) of the

Tennessee Rules of Evidence, expressly prohibits a

juror from testifying or offering an affidavit “as to any

matter or statement occurring during the course of the

jury’s deliberations or to the effect of anything upon

any juror’s mind or emotion as influencing that juror

to assent to or dissent from the verdict ...” (Emphasis

added.) In this case, the juror’s affidavit related to the

precise subject matter about which a juror is strictly

forbidden from testifying by Rule 606(b)—the effect of

the mother’s failure to testify on the jury verdict. The

affidavit violates the express terms of Rule 606(b) and

should not have been considered by the intermediate

court as evidence of prejudice. See State v. Stephenson,

878 S.W.2d 530, 554 (Tenn.1994)

Moreover, Henley’s mother did not refuse to testify

in the presence of the jury. Instead, she asked to first

speak with trial counsel. Although the record reflects

that she thereafter did not testify, at no time did she

openly refuse to testify on Henley’s behalf in the

presence of the jury as the Court of Criminal Appeals

decision indicates. In addition, the fact that the jury

was not provided with an explanation as to why

Dorothy Henley did not testify does not justify a

finding of prejudice. The jury was instructed to base

its sentencing decision on the evidence presented at

trial, not upon speculation about why a particular

witness did not testify. Jurors are presumed to follow

the instructions given them in arriving at a verdict.

State v. Laney, 654 S.W.2d 383, 389 (Tenn.1983); State

v. Blackmon, 701 S.W.2d 228, 233

(Tenn.Crim.App.1985). Therefore, it is not appropriate

to “assume” the defense was prejudiced because

75a

Henley’s mother was not called as a witness in his

behalf at the sentencing hearing. The fact that

Dorothy Henley asked to speak with counsel when

called as a witness and thereafter did not testify does

not constitute a reasonable probability sufficient to

undermine confidence in the outcome of the proceeding

Finally, the record does not support the Court of

Criminal Appeals’ statement that prejudice was

established because there was a “dearth of favorable

testimony offered at the sentencing hearing, when

significant amounts of favorable testimony were

available.” As was previously stated, when assessing

the existence of prejudice in the face of an alleged

deficiency involving counsel’s failure to present

mitigating evidence in the penalty phase of a capital

trial, we consider whether substantially similar

mitigating evidence was presented to the jury in either

the guilt or penalty phase of the proceedings; the

nature and extent of the mitigating evidence that was

available but not presented; and whether there was |

such strong evidence of aggravating factors that the

mitigating evidence would not have affected the jury’s .

determination. Goad, 938 S.W.2d at 371 (citing cases).

In this case, the record fully supports the trial

court’s statement that, through the testimony of

Bertha Henley and the petitioner, the original

sentencing jury had before it basically the same

favorable mitigation evidence that was offered by the

many witnesses at the evidentiary hearing on the post

conviction petition. As previously summarized herein,

the jury heard extensive testimony about Henley’s

relationship with his grandparents, including his own

testimony that he loved them more than anyone else in

the world. It is difficult to imagine a more favorable

and detailed description of the petitioner’s character

than that given by Bertha Henley. It is clear from the

. 1a

proof at trial and the evidentiary hearing in this case

that the petitioner had a closer relationship with his

grandmother, Bertha Henley, than with any other

living family member. Indeed, the petitioner’s own

mother acknowledged that she could have offered no

further information about Henley and his life than that

given by Bertha Henley at the sentencing hearing.

Dorothy Henley admitted that in the years

preceding the murders she had resided in Davidson

County and had little contact with her son. On cross-

examination, Dorothy Henley also admitted that she

visited her son only a few times in jail before his trial.

Overall, Dorothy Henley used very general terms to

describe her relationship with her son. Similarly,

Henley’s older sister gave only general information

about the petitioner, and conceded that she had little

contact with her brother during the five years

preceding the homicides.

While Henley’s younger sister and second wife had

closer associations with him near the time of the

murders, both also had personal knowledge about his

use of drugs, specifically marijuana, which was brought

out during cross-examination at the evidentiary

hearing. Had these two witnesses testified at the

sentencing hearing, that same information, no doubt,

would have been brought to light. In view of Henley’s

testimony throughout the trial that he had never

abused drugs, the testimony of two family members to

the contrary would have been extremely detrimental to

the defense.

The only other testimony offered at the evidentiary

hearing was that of Henley’s children who claimed they

would have testified had trial counsel contacted their

mother with whom they were residing. However the

children, eleven and thirteen years old at the time of

Tla

the trial, admittedly were not informed about the trial

until its conclusion.

Therefore, the witnesses which were available but

not called as witnesses at the original trial, would have

offered general, vague testimony about the petitioner’s

character, and the evidence regarding the petitioner’s

use of drugs and alcohol was unfavorable. Moreover,

none of these witnesses had a particularly close

relationship with the petitioner near the time of the

killings. In contrast, the mitigating proof actually

presented was detailed, poignant, and favorable and

was provided by the petitioner and his grandmother,

with whom he had a close relationship. It is significant

that the State did not cross examine either the

petitioner or his grandmother at the sentencing

hearing.

Clearly, trial counsel has a duty to investigate and

prepare for the penalty phase of a capital trial since

“evidence about the defendant’s background and

character is relevant because of the belief ... that

defendants who commit criminal acts that are

attributable to a disadvantaged background, or to

emotional and mental problems may be less culpable

than defendants who have no such excuse.” California

v. Brown, 479 U.S. 538, 544, 107 S.Ct. 837, 841, 93

L.Ed.2d 934 (1987). However, in this case, the proof

does not preponderate against the trial court’s finding

that the petitioner suffered no prejudice even assuming

trial counsel failed to competently fulfill that duty.

Nothing was adduced at the post conviction hearing

which could possibly have added anything favorable to

the mitigation proof that was offered at the original

trial by the petitioner and his grandmother. Though

the petitioner offered a large number of witnesses who

claimed they would have testified on his behalf at the

sentencing hearing but for counsel’s incompetence, the

78a

quality of their testimony was weakened either by

their limited relationship with Henley at the time of

the murders or by their personal knowledge of his drug

use at the time of the murders. As the trial judge

implicitly found, the testimony offered at the post

conviction hearing was, at most, cumulative. State v.

Melson, 772 S.W.2d 417, 419 (Tenn.1989). Appellate

courts must consider the quality of the proposed

testimony rather than the quantity of witnesses when

determining whether prejudice has been established.

Finally, proof of the aggravating circumstance in this

case, that the murders were “especially heinous,

atrocious, or cruel in that it involved torture or

depravity of mind,” Tenn.Code Ann. § 39-2-203(I)(5)

(1982), was strong. The victims were forced at

gunpoint from the road to their home. The wife

watched as her husband was shot. She was then shot

several times, but, according to the testimony at trial,

she remained alive and conscious for a time after the

fire had begun, and actually died of smoke inhalation.

In our view, the petitioner has not established the

existence of 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, 104

S.Ct. at 2069.

C. Failure to Investigate Mental Condition and

Request Evaluation

The Court of Criminal Appeals also found that the

evidence preponderates against the trial court’s denial

of Henley’s claim that counsel inadequately

investigated the petitioner’s mental condition and

failed to request a mental evaluation.

At the evidentiary hearing, Henley offered the

testimony of Dr. Kenner who said that Henley lost the

family farm because he had a learning disability and

79a

was a bad manager and that Henley was depressed

about the loss of the family farm and was “self-

medicating” with alcohol and drugs near the time of the

homicides. Based upon Dr. Kenner’s testimony,

Henley claimed that had trial counsel properly

investigated his mental condition and requested that he

undergo a mental evaluation, Reneau would have

learned of this mitigating proof dnd presented it at the

sentencing hearing. In reversing the trial court’s

denial of relief, the Court of Criminal Appeals

implicitly found that trial counsel had been deficient in

failing to investigate and offer this proof and that the

deficiency has resulted in prejudice to Henley. We

disagree.

While it is true that often a greater duty of inquiry

into a client’s mental health is imposed for the penalty

also well-established that

the reasonableness of counsel’s actions may be

determined or substantially influenced by the

defendant’s own statements or actions ... And when

a defendant has given counsel reason to believe that

pursuing certain investigations would be fruitless

or even harmful, counsel’s failure to pursue those

investigations may not later be challenged as

unreasonable.

Strickland, 466 U.S. at 691, 104 S.Ct. at 2066.

At the trial of this case, the defendant maintained

his innocence, flatly denied that he had been

intoxicated on the day of the murders, and also denied

ever abusing drugs. Moreover, Henley said his

farming operation had failed because of unpredictable

weather, a drought followed the next year by floods.

Clearly then, the evidence for which trial counsel is

now faulted for not discovering and introducing would

80a

have been inconsistent with the defendant’s own

testimony and harmful to the defense theory

throughout the trial. When assessing the performance

of triai counsel, courts must eliminate the “distorting

effects of hindsight” and evaluate the challenged

conduct from counsel’s perspective at the time, rather

than from the perspective of a mental health expert

offering testimony in a post conviction proceeding.

Applying that standard, it is clear that trial counsel’s

performance and investigation of Henley’s mental

condition was not deficient. Accordingly, the evidence

does not preponderate against the trial court’s denial of

post conviction relief.

CONCLUSION |

After carefully reviewing the record, we have

determined that the Court of Criminal Appeals erred

in concluding that the evidence preponderates against

the trial court’s denial of post conviction relief.

Accordingly, the judgment of the Court of Criminal

Appeals reversing Henley’s death sentence and

ordering a new sentencing hearing is reversed, and the

judgment of the trial court denying the petition for

post conviction relief is reinstated. The sentence of

death shall be carried out as provided by, law on the

27th day of April, 1998, unless stayed by this Court or

other appropriate authority.

ANDERSON, C.J., and HOLDER, J., concur.

REID and BIRCH, JJ., dissent with separate

dissenting opinion.

REID, Justice, dissenting.

I dissent from the majority’s decision that the

petitioner in this case received effective assistance of

counsel.

8la

Even though the trial court denied the petition for

relief, that court obviously was not pleased with

counsel’s performance and attributed counsel’s failure

to call any witnesses other than _petitioner’s

grandmother to “trial strategy.” In announcing his

decision, the court stated: “I would have liked to have

had another witness maybe to have been put on. I

would have liked for the mother to have testified when

she refused.” And again: “I would have liked to have

seen another witness or two, but that’s trial strategy.”

The Court of Criminal Appeals found that counsel’s

performance at the sentencing phase of the trial was

deficient and also prejudicial, and the case was

remanded by that court to the trial court for a new

sentencing hearing. In support of my dissent, I rely

upon the following portions of the Court of Criminal

Appeals’ opinion, which was written by Judge John H.

Peay, with Presiding Judge Joe B. Jones and Special

Judge Joseph H. Walker concurring: 3

With respect to the sentencing phase of the trial,

however, we find that Mr. Reneau’s investigation and.

preparation were constitutionally deficient. Our Court.

has recognized that

‘[a] lawyer also has a substantial and important role

to perform in raising mitigating factors both to the

prosecutor initially and to the court at sentencing.

This cannot effectively be done on the basis of

broad general emotional appeals or on the strength

of statements made to the lawyer by the defendant.

Information concerning the defendant’s

background, education, employment record, mental

and emotional stability, family relationships, and

the like, will be relevant, as will mitigating

circumstances surrounding the commission of the

offense _ itself. Investigation is essential to

fulfillment of these functions.’

~ Ar

Sid

82a

Adkins v. State, 911 S.W2d 334, 356

(Tenn.Crim.App.1994) (citation omitted). Personal

background and character information are highly

relevant at a capital sentencing hearing “because of the

belief, long held by this society, that defendants who

commit criminal acts that are attributable to a

disadvantaged background, or to emotional and mental

problems, may be less culpable than defendants who

have no such excuse.” California v. Brown, 479 U.S.

538, 545, 107 S.Ct. 837, 841, 98 L.Ed.2d 934 (1987)

(O’Connor, J., concurring).

Although many of Henley’s family members,

including his mother, testified at the post-conviction

hearing that they would have been willing to testify on

Henley’s behalf had they been asked, Mr. Reneau

spoke to none of them prior to the sentencing hearing.

Mr. Reneau called the petitioner’s mother to the stand

at the sentencing hearing without ever having spoken

to her about testifying. Not understanding what was

expected of her, she refused—in front of the jury—to

testify. We do not think it is assuming too much to

conclude that a jury is going to be prejudiced against a

defendant upon that person’s own mother refusing to

testify on his or her behalf.}

Had they been prepared and called at the

sentencing hearing, Henley’s family members would

have testified that they loved the petitioner; that he

was a good and loving man; that he was not a violent

man; that the offenses of which he was convicted were

totally out of character for him; and that they were

shocked by his arrest. They would have pled for his

life. Additionally, the petitioner produced evidence at

1 In the petitioner’s offer of proof at the post-conviction hearing,

one juror was quoted as saying, “If a man’s own mother won’t

testify on his behalf then we know what we’ve got to do.”

83a

the post-conviction hearing that other potentially

mitigating evidence existed that would have been

discovered had Mr. Reneau conducted a more thorough

investigation. Expert testimony indicated the

possibility that Henley had suffered from depression,

alcohol and drug abuse, and learning disabilities. In

grade school, Henley’s 1.Q. tested at 89. He dropped

out of high school after the tenth grade. Not long

before the murders, Henley suffered severe financial

losses, was forced to file bankruptcy, and lost the

family farm. All of this would have been proper

testimony for mitigation. Eddings v. Oklahoma, 455

U.S. 104, 117, 102 S.Ct. 869, 878, 71 L.Ed.2d 1 (1982)

(the Constitution requires the sentencer to “consider

and weigh ali of the mitigating evidence concerning the

petitioner’s family background and personal history.”)

(O’Connor, J., concurring); Lockett v. Ohio, 438 U.S.

586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978).

In spite of all the mitigating evidence available, only

two people testified on Henleys behalf at the

sentencing hearing: Henley himself and _ his

grandmother. The jury had already indicated that it

did not believe Henley when it convicted him.

Accordingly, it is reasonable to presume that Henley’s

testimony at his sentencing hearing would not have

been particularly persuasive. It is also possible, if not

likely, that Henley’s grandmother was viewed with a

certain amount of hostility because Flatt testified that

it was on her behalf that Henley had felt compelled to

attack the Staffords. Thus, of all the people that Mr.

Reneau had available to him, the only two that testified

were arguably the two least helpful.

“When the record shows a substantial deficiency in

investigation, the normal deference afforded trial

counsel’s strategies is particularly inappropriate...

[This] Court will not credit a strategic choice by

84a

counsel when counsel ‘did not even know what

evidence was available.’ “ Cooper v. State, 847 S.W.2d

at 530 (citation omitted). The record in this case shows

such a substantial deficiency. No psychological or

psychiatric evaluation was done on Henley. Other than

Henley’s grandmother, Mr. Reneau did not speak with

Henley’s family members prior to the sentencing

hearing. There is no evidence from Mr. Reneau’s file or

otherwise that he investigated Henley’s educational

background, employment history, or that he spoke with

members of the community familiar with Henley. He “

‘should have investigated his background, checked his |

school records, ... his medical history, tried to find -

witnesses to demonstrate all aspects of his character.

[He] should have requested a psychological evaluation.’

“ Bell v. State, No. 03C01-9210-CR-00364, p. 42,

Hamilton County, 1995 WL 113420 (Tenn.Crim.App.

filed March 15, 1995, at Knoxville), cert. denied,

(quoting the court below).

While we have held that Mr. Reneau’s failure to

investigate his client’s mental health was not

ineffective assistance of counsel with respect to the

guilt phase of this trial, we do find that it was

ineffective with respect to the sentencing phase.

“(T]here is a qualitative difference between

obtaining psychological information for the purpose

of preparing a defense to the charges and using

such evidence for the purpose of mitigating the

punishment. Thus, it is not incompatible to present

evidence of psychological or mental impairment

during sentencing, even where a defense of factual

innocence has been interposed at the guilt phase.”

Bell v. State, supra, at 46, 1995 WL 113420 (citation

omitted). Combined with Mr. Reneau’s failure to

investigate Henleys family’s availability and

willingness to testify, and his failure to investigate

85a

other aspects of Henley’s past, Mr. Reneau failed to

meet the level or competence required by attorneys

representing clients at the sentencing phase who are

faced with the death penalty. See State v. Terry, 813

S.W.2d 420, 425 (Tenn.1991) (the qualitative difference

between the death penalty and all other punishments

requires greater reliability in the sentencing

determination).

We also find that Mr. Reneau’s deficient

performance at the sentencing phase prejudiced the

petitioner. The petitioner made an offer of proof at the

post-conviction hearing that the jury considered the

fact that Henley’s mother refused to testify on her

son’s behalf. Even without this offer of proof, we hold

that the dearth of favorable testimony offered at the

sentencing hearing, when significant amounts of

favorable testimony were available, establishes a

reasonable probability that, but for Mr. Reneau’s

deficient performance with respect to the sentencing

phase of Henley’s trial, the result of the proceeding

would have been different.2 ;

This well reasoned opinion by the Court of Criminal

Appeals compels the conclusion that the petitioner was

denied effective assistance of counsel guaranteed by

the state and federal constitutions and therefore is

entitled to a new sentencing hearing.

I am authorized to state that Justice BIRCH joins

in this Dissenting Opinion.

2 Unlike State v. Melson, 772 S.W.2d 417 (Tenn.1989), this was

not a case where the available mitigation evidence had already

been presented during the guilt phase of the petitioner’s trial.

86a

IN THE COURT OF CRIMINAL APPEALS OF

TENNESSEE AT NASHVILLE

STEVE HENLEY, )

)

Appellant, ) C.C.A. No. 01C01-

) 9908-CR-00307

VS. ) JACKSON COUNTY

STATE OF TENNESSEE _ ) FILED

) OCT 5 1999

Appellee. ) [illegible]

ORDER

This matter is before the Court upon the

petitioner’s application from the trial court’s denial of

his motion to reopen his post-conviction petition

pursuant to T.C.A: § 40-30-217. The state opposes the

application. In his application, the petitioner raises the

following issues:

1. Whether the trial court’s instructions on the

meaning of “reasonable doubt” lessened the

state’s burden of proof at both the guilt and

sentencing phases of the trial.

2. Whether the petitioner is entitled to relief

based on a claim of discrimination against

women in the selection of the grand jury

foreperson.

3. Whether the jury found an_ invalid

aggravating circumstance.

87a

4. Whether the jury was misled into believing

that mitigating circumstances had to be

found unanimously at the sentencing phase.

5. Whether the jury should have been

instructed on the effect of a non-unanimous

verdict at the sentencing phase.

6. Whether the death penalty constitutes cruel

and unusual punishment as a result of the

length of time the petitioner has been

incarcerated on death row.

Relief under T.C.A. § 40-30-217(a) may only be

granted where (1) the claim in the motion is based upon

a final ruling of the highest state appellate court or the

United States Supreme Court establishing a

constitutional right that was not recognized as existing

at the time of trial, if retrospective application of that

right is required and the motion is filed within one year

of the ruling; or (2) the claim in the motion is based

upon new scientific evidence establishing that the

petitioner is actually innocent of the offense or offenses

for which the petitioner was convicted; or (3) the claim .

asserted in the motion seeks relief from a sentence that

was enhanced because of a previous conviction and

such conviction in the case in which the claim is

asserted was not a guilty plea with an agreed sentence

and the motion is filed within one year of the finality of

the ruling holding the previous conviction to be invalid;

and (4) it appears that the facts underlying the claim, if

true, would establish by clear and convincing evidence

that the petitioner is entitled to have the conviction set

aside or the sentence reduced. Moreover, in reviewing

the derial of a motion to reopen, this Court shall not

grant the application unless it appears that the trial

court abused its discretion in denying the motion.

T.C.A. § 40-30-217(c).

88a

Having reviewed the petitioner’s application, the

attached pleadings, and the state’s response, the Court

finds that the trial court did not abuse its discretion in

denying his motion to reopen and that the application

for permission to appeal should be denied.

I. Reasonable Doubt Jury Instruction

First, the petitioner contends that the jury

instructions given on reasonable doubt were

unconstitutional. While conceding that the Tennessee

courts have rejected his argument, he contends that

granting relief on this claim would establish a

“constitutional right that was not recognized as

existing at the time of trial.” T.C.A. § 40-30-217(a)(1).

The Court rejects this argument.

In Victor v. Nebraska, 511 U.S. 1, 114 S.Ct. 1239,

127 L.Ed.2d 583 (1994), the United States Supreme

Court expressed criticism of the continued use of the

“moral certainty” phrase, however, the Court did not

actually hold it to be constitutionally invalid. Instead,

the Court looked to the full jury charge to determine if

the phrase was placed in such a context that a jury

would understand that it meant certainty with respect

to human affairs. Id. at 13-17, 114 S.Ct. at 1247-48. In

particular, the Supreme Court was concerned with use

of the terms “grave uncertainty” and “actual

substantial doubt.” Cage v. Louisiana, 498 U.S. 39, 41,

111 S.Ct. 328, 329-30,112 L.Ed.2d 339 (1990).

In this case, it does not appear that the terms of

particular concern to the United States Supreme Court

were included in the charge. As conceded by the

petitioner, this Court has upheld similar instructions as

consistent with constitutional principles. See |

Pettyjohn v. State, 885 S.W.2d 364, 365-66 (Tenn. Crim.

App. 1994); State v. Hallock, 875 S.W.2d 285, 294 (Tenn.

| 89a

Crim. App. 1993). Moreover, our Supreme Court has

held that “(t]he use of the phrase ‘moral certainty’ by

itself is insufficient to invalidate an instruction on the

meaning of reasonable doubt.” State v. Nichols, 877

S.W.2d 722, 734 (Tenn. 1994), and more recently, the

constitutionality of this jury instruction was upheld in

Austin v. Bell, 126 F.3d 843,845-47 (6th Cir. 1997), cert.

denied, _ U.S. __,118 S.Ct. 1526, 140 L.Ed.2d 677

(1998).

II. Exclusion of Women as Grand Jury Foreperson

The petitioner contends that in

Louisiana, 523 U.S. 392, 118 S.Ct. 1419, 140 L.Ed.2d

551 (1998), the Supreme Court created a new

constitutional right. Specifically, he submits that in

Campbell, the United States Supreme Court held that

a male has standing to contest discrimination against

women in the selection of the grand jury and the grand

jury foreperson.

In State v. Meadows, 849 S.W.2d 748, 154 (Tenn.

1993), our Supreme Court stated that “a case

announces a new rule if the result was not dictated by.

precedent existing at the time the defendants

conviction became final.” Id. at 751 (quoting Teague v.

Lane, 489 U.S. 288, 301, 109 S.Ct. 1060, 103 L.Ed.2d 334

(1989) (emphasis in original)). Formerly, under State v.

Coe, 655 S.W.2d 903 (Tenn. 1983), a male did not have

standing to contest the systematic exclusion of women

from the grand jury. Accordingly, it appears that a

new constitutional right was created by the Supreme

Court in Campbell.

Next, this Court must determine’ whether

retroactive application is required. A new rule of

federal constitutional law must be given retroactive

application to cases on collateral review where: (1) the

90a

rule places certain kinds of primary, private individual

conduct beyond the power of the state to proscribe, or

(2) the rule requires the observance of procedures

implicit in the concept of ordered liberty. Teague v.

Lane, 489 U.S. at 307, 109 S.Ct. at 1073. In the present

case, the decision which the petitioner claims sets forth

a new constitutional rule requiring retroactive

application is federal. Thus, we must apply the federal

retroactivity analysis. See Great Northern Ry. Co. v.

Sunburst Oil & Refining Co., 287 U.S. 358, 364-65, 53

S.Ct. 145, 148-49, 77 L.Ed. 360 (1932).

As pointed out by the state, this analysis was

performed by the 6th Circuit Court of Appeals in Coe

v. Bell, 161 F.3d 320 (6th Cir. 1998), petition for cert.

filed (U.S. May 24, 1999) (No. 98-9606), in which the

Court determined that retroactive application of

Campbell v. Louisiana was barred by Teague, 161 F.3d

at 355. We agree with this determination.

III. Validity of Aggravating Circumstance

Found by the Jury

The petitioner submits that the jury failed to find a

valid aggravating circumstance in sentencing him to

death by electrocution. Specifically, the petitioner

submits that the jury wrote “[w]e the jury found the

following statutory aggravating circumstances

Atrocious Cruel Torture.” As authority for his

position, the petitioner cites to State v. Harris, 989

S.W.2d 307 (Tenn. 1999), as creating a new

constitutional right.

In Harris, the issue raised on appeal was whether

the jury’s incomplete verdict regarding the heinous,

atrocious, or cruel aggravating circumstance was

harmless error in a non-capital case. In reviewing the

issue, the Supreme Court noted that the jury’s

9la

incomplete finding with respect to the heinous,

atrocious, or cruel aggravating circumstance would

have implicated constitutional vagueness concerns had

the jury imposed a sentence of death. Id. at 316. From

a complete reading of Harris, it is clear that the

Supreme Court was not creating a new rule of

constitutional law. Instead, the Supreme Court was

merely reiterating the constitutional principles set

forth in Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct.

1759, 1764, 64 L.Ed.2d 398 (1980). Moreover, the

petitioner raised this complaint on direct appeal, and

our Supreme Court rejected it. See State v. Henley,

774 S.W.2d 908, 917 (Tenn. 1989).

IV. Jury Instruction on Mitigating Circumstances

The petitioner contends that the jury charge misled

the jury into believing that mitigating circumstances

had to be found unanimously. While conceding that

this issue has been decided adversely by Tennessee

courts, the petitioner urges this Court to establish a

new rule in this case. Our courts have repeatedly held

that the instructions do not misled the jury. See State

v. Thompson, 768 SW.2d 239, 251-52 (Tenn. 1989); State

v. Bates, 804 S.W.2d 868, 883 (Tenn. 1991). As an

intermediate appellate court, it is our duty to apply the

law as promulgated by the legislature or as announced

by our Supreme Court.

V. No Instruction on Effect of Lack of Unanimity

Next, the petitioner contends that this Court should

acknowledge the constitutional infirmity arisin

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.