Session October 1, 2013
Appeal from the Criminal Court for Shelby County No. 99-07635 W. Otis Higgs, Jr., Judge
Daniel E. Kirsch and Kertyssa Delynn Smalls, Nashville, Tennessee, for the appellant, Robert Faulkner.
Robert E. Cooper, Jr., Attorney General & Reporter; Andrew Craig Coulam, Assistant Attorney General; Amy P. Weirich, District Attorney General; and John Campbell, Assistant District Attorney General, for the appellee, State of Tennessee.
Norma McGee Ogle, J., delivered the opinion of the Court, in which Joseph M. Tipton, P.J., and Jerry L. Smith, J., joined.
NORMA McGEE OGLE, JUDGE
I. Factual Background
A Shelby County Criminal Court Jury convicted the Petitioner of the first degree premeditated murder of his wife, Shirley Faulkner. The jury sentenced him to death based upon the aggravating circumstance that he was previously convicted of one or more violent felonies. See Tenn. Code Ann. § 39-13-204(i)(2). The Tennessee Supreme Court affirmed the Petitioner's conviction and sentence on direct appeal of his conviction. See State v. Faulkner, 154 S.W.3d 48 (Tenn. 2005).
The Petitioner subsequently sought post-conviction relief. Following an evidentiary hearing, the post-conviction court entered an order denying relief. This appeal followed.
A. Trial Evidence
The Tennessee Supreme Court summarized the evidence presented at trial in its opinion on direct appeal as follows:
At the guilt phase of the trial, the State's proof showed that the defendant, Robert Faulkner, and the victim, Shirley Faulkner, married in September 1998 and separated in December 1998. Faulkner moved in with his grandmother while the victim continued to live at her house in Memphis. On January 18, 1999, the victim filed a complaint with the Memphis Police Department alleging that on the previous night Faulkner struck her with his fist, held an ashtray over her head, and threatened to kill her. According to the victim, who suspected that Faulkner had been high on cocaine, Faulkner also called her several times on the morning of January 18, again threatening to kill her. The officer who took the report testified that the victim was nervous and shaking and that her left temple was swollen. On January 19, the victim visited a physician, who treated her for trauma to the left side of her face. The victim reported to the physician that she had been hit in the face on Sunday, which was January 17.
At approximately 11:00 p.m. on January 21, the victim clocked out from her shift as a cashier at a grocery store. Before leaving, she purchased groceries. Although the victim's supervisor testified that the victim appeared normal when she left, a security guard who escorted the victim to her car described her as shaking and crying. The victim told the guard that she was afraid to go home because her husband might be waiting there. The victim refused the guard's offer to escort her home and left by herself. That same night, the victim's son-in-law, Andre King, decided to check on the victim because a tornado watch was in effect for Memphis. When Mr. King arrived shortly after midnight, he noticed that the lights were on in the victim's house but that no car was in the driveway. Mr. King waited outside for approximately thirty minutes and then left.
The next day, January 22, the victim's friend, Joe Ann Stewart, learned that the victim had not reported for work at her second job as a housekeeper for an apartment complex. Ms. Stewart called the victim's daughter, Twyla King, and asked her to meet Ms. Stewart at the victim's house. Ms. Stewart also contacted the police. Two officers arrived and used Ms. King's key to enter the house, which showed no signs of forced entry. The officers observed bags of groceries in the doorway of the kitchen. The lights were on in the library and the kitchen, and the television was on in the den. However, the victim's bedroom at the back of the house was dark, and the door was closed. When the officers entered the bedroom, they discovered the victim's body which was badly beaten about the head and lying face up on the floor.
Dr. O'Brien Cleary [O.C.] Smith, the Shelby County Medical Examiner, testified that the trauma to the victim was entirely focused on her head. The victim suffered at least thirteen blows to her head, most of them to her face. She had numerous bruises and tears to the skin and fractures of the facial bones. The injuries produced bruising of the brain, and some of the bone fragments cut into the base of her brain. The victim's facial bones were so fragmented that Dr. Smith could not count the fractures or determine the sequence of the blows. The victim's upper denture plate had been split in half. One piece was found on the floor; the other was still in her mouth. In addition, after inhaling her own blood, the victim's efforts to breathe caused a red frothy foam to obstruct her airway. The victim also swallowed over a pint of blood. Dr. Smith testified that the victim must have been alive, although not necessarily conscious, to have swallowed that amount of blood.
Dr. Smith concluded that the cause of death was blunt trauma to the head. He found no defensive injuries on the victim's body or any evidence that she had tried to escape the beating. Blood stains indicated that her head had moved after the beating began but her arms had not. Based on blood-splatter evidence indicating that the attack occurred while the victim was lying on the floor, Dr. Smith opined that the victim had been stunned or rendered unconscious by an initial blow or blows to the back of the head and may have felt nothing after she was first struck. Because the victim's blood had clotted before the end of the attack, Dr. Smith concluded that the beating had lasted six minutes, the minimum time necessary for clotting.
The crime scene unit of the Memphis Police Department discovered blood in the victim's bedroom, in the foyer next to the bedroom, and in the hallway running the entire length of the house. Blood was smeared on the handles of two grocery bags, in the kitchen doorway, and on the inside and outside knobs of the front door. Officers found a broken handle from a skillet on the bed near the victim's body. The rest of the skillet was never located. The victim's car was also missing and was discovered the day after the murder near the residence of Faulkner's sister. Blood stains were found inside the car.
On Sunday morning, January 24, Faulkner went to the fugitive office of the Shelby County Sheriff's Department and announced that he wanted to turn himself in for killing his wife on Thursday. Faulkner was transferred to Sergeant William Ashton of the Memphis Police Department. According to Sergeant Ashton, Faulkner was "very calm and very rational" during the interview. After informing Faulkner of his Fifth Amendment rights and receiving a written waiver, Sergeant Ashton asked Faulkner if he went by any other names. Faulkner replied, "Yes, Skillet." He then grinned and said, "That's what I hit her with, too." Faulkner stated that the incident occurred around 12:00 to 12:30 a.m. on the night of January 21 and 22. He said that he hit his wife with a frying pan and a metal horseshoe. Faulkner claimed that his wife had called him at lunchtime on January 21 and asked him to meet her at her house that evening. Faulkner described what happened:
My conversation with my wife was reconciling, and she had on her mind divorce. She said she just wanted the divorce, and I asked her why didn't she just call me on the phone and tell me that. I said, you didn't have to make me walk all the way from Shasta Street in the rain just to tell me you wanted a divorce. I sat back down on the bed and explained to her that I had enough problems already over my head and had to bury my brother on Monday. Everything I've tried to do since being out has just collapsed. I've lost my job, I've lost my wife, I was subject to being sent back to the penitentiary because I can't be without a job for 30 days. And you called me back here to discuss a divorce, and I only came to reconcile and ask we set aside our differences and go to my brother's funeral together. And she responded she was going, but she wasn't going with me.
* * *
So as we were finishing our conversation that was turning into an argument, I proceeded to walk from her bedroom to the front door as I was leaving. She walked behind me and asked me not to come back while I was standing in the hallway and everything just exploded. And I pushed her back off me and grabbed the two items that I seen, and I struck her repeatedly across the head.
Faulkner estimated that he struck his wife between seven and eight times. He acknowledged that the victim fell to the floor after the second blow and that he continued to hit her while she was on the floor. After the attack, Faulkner put the murder weapons in a bag and drove away in the victim's car. He threw the murder weapons and his bloody clothes into a flooded viaduct and then parked the car where it was later found. He slept in empty houses instead of returning to his grandmother's house. Faulkner concluded his statement by professing, "I loved my wife with all my heart. I never meant to take her life. Everything that I had ever tried to do right turned out wrong. Under all the pressure, stress and strain, I made a wrong decision. I only like to say that I'm sorry." Faulkner requested that he be placed on suicide watch in jail.
Faulkner's proof at the guilt phase consisted in part of testimony showing that the security guard who had escorted the victim from the grocery store to her car did not know Faulkner as the guard had claimed and that the guard had been fired for carrying an unauthorized weapon. Evidence was introduced that Faulkner had lost his job on January 3 and that Jimmy Osby, a close friend whom Faulkner called his "brother, " had committed suicide on January 21. A Shelby County jailer testified that Faulkner was placed on suicide precaution on January 24.
Based upon the above evidence, the jury convicted Faulkner of first degree premeditated murder. A sentencing hearing was conducted to determine punishment.
At the penalty phase, the State presented proof that in March 1976 Faulkner was convicted of assault with intent to commit first degree murder, assault with intent to commit robbery, and assault with intent to commit voluntary manslaughter. Evidence also showed that Faulkner was convicted of four robberies in September 1984 and second degree murder in October 1984.
Paulette Sutton, a forensic serologist and blood-stain expert, testified that based on her analysis of blood-stain patterns, the victim had collapsed fairly quickly but that the attack continued for six minutes. Sutton theorized that the victim's arms had not moved because Faulkner was straddling her during part of the assault, not because she was unconscious.
The final witness for the State was the victim's daughter, Twyla King. Ms. King testified that she had two brothers: Musenda Spencer, age twenty-one, and Jamil Spencer, age seventeen. Musenda was a freshman in college at the time of the murder. Because of the loss of his mother's financial support, Musenda now had to work while attending school. Jamil had "problems" and was incarcerated at the time of the murder. Taking custody of her younger brother affected Ms. King emotionally and financially. Ms. King testified that she and her husband had three daughters. The oldest daughter had been very close to her grandmother, suffered emotionally because of the murder, and was in counseling at the time of the trial. Ms. King concluded by stating that she missed her mother's emotional support.
In mitigation, the defense presented two witnesses. The first witness was Dr. Fred Steinberg, a forensic and clinical psychologist who had interviewed and tested Faulkner for twelve hours. Dr. Steinberg opined that Faulkner was not malingering. Dr. Steinberg testified that Faulkner had experienced a very rough childhood. He was neglected and abused. Both his parents were alcoholics, and one of them abused drugs. Faulkner lived with foster parents at times. Dr. Steinberg testified that Faulkner suffered from chronic substance abuse. According to Dr. Steinberg, on the night of the murder Faulkner's predisposition toward impulsive behavior was made significantly worse by a number of stressors: his attempt to establish himself outside of prison, his difficult relationship with his wife, the loss of his job in early January, his grandmother's hospitalization in early January due to Alzheimer's disease, his friend's suicide the day before the murder, and his frequent use of cocaine. Dr. Steinberg defined "stressor" as a life change that impacts an individual and has an effect upon his psychological and physiological condition. Dr. Steinberg stated that Faulkner had the ability to form intent but that he could not suppress his emotions and that his ability to "cap" his behavior was diminished. Conceding that Faulkner had no mental disease or defect and was sane and competent, Dr. Steinberg diagnosed him as having mixed personality features and exhibiting paranoid thinking typical of cocaine usage. On cross-examination, the State elicited information concerning Faulkner's record of fighting with fellow inmates, possessing weapons, and threatening officers while incarcerated.
The second witness was Patricia McNealy, a counselor at an alcohol and chemical abuse center, who had worked with Faulkner beginning in November 1998 when he tested positive for cocaine while on parole. McNealy testified that Faulkner attended classes twice a week. She had noticed the stress in his life and observed that Faulkner began using cocaine again after losing his job in early January 1999. Around January 20, Faulkner called McNealy to tell her that he would not attend his next group session because his "brother" had committed suicide. Faulkner admitted during the call to McNealy that he had been using cocaine.
Based upon this proof, the jury found that the State had proven the statutory aggravating circumstance that the "defendant was previously convicted of one (1) or more felonies, other than the present charge, whose statutory elements involve the use of violence to the person." Tenn. Code Ann. § 39-13-204(i)(2) (1997). The jury further found that the State had proven beyond a reasonable doubt that the statutory aggravating circumstance outweighed any mitigating circumstances. As a result, the jury sentenced Faulkner to death for the murder of Shirley Faulkner.
Faulkner, 154 S.W.3d at 52-56.
B. Post-Conviction Evidence
1. Petitioner's Proof
Lead Counsel testified that at the time of the post-conviction hearing, he had been practicing law for almost forty-three years. When he represented the Petitioner, half of his practice was devoted to criminal defense, and the other half was civil in nature. Lead Counsel had tried multiple capital cases before representing the Petitioner. He was retained to represent the Petitioner and thought he received only $500 for his work. He had represented members of the Petitioner's extended family for some time but was unsure whether he had represented the Petitioner previously. Lead Counsel was contacted by Glenda Williams or Eddie Parker to represent the Petitioner. He said his goal was to negotiate a guilty plea for second degree murder or manslaughter.
Lead Counsel testified that he waived the preliminary hearing in general sessions court. He thought the State only intended to present the testimony of Sergeant William Ashton, the officer who took the Petitioner's statement. Lead Counsel said that in Shelby County, the State would not provide discovery before a preliminary hearing but probably would provide a defendant's statement if the defendant waived the hearing. Lead Counsel assumed the State provided him with the Petitioner's statement as a result of his waiving the preliminary hearing. Lead Counsel later filed a motion for discovery and received discovery from the State. As a general rule, the prosecution only provided defense counsel with the information that the prosecution deemed to be discoverable. Lead Counsel did not recall the prosecutor's giving him a file and telling him to copy whatever he wanted.
Lead Counsel testified that when he signed the court jacket as counsel for the Petitioner, he received a copy of the affidavit of complaint dated January 26, 1999, charging the Petitioner with first degree murder. He never saw an affidavit of complaint dated January 25, 1999, charging the Petitioner with second degree murder. Lead Counsel also never saw a document reflecting a meeting between Assistant Attorney General Ken Roach and Sergeant Ashton. According to the document, General Roach requested to see the Petitioner's criminal record before determining what offense with which to charge him. General Roach reviewed the Petitioner's criminal record and determined the offense with which the Petitioner should be charged. Lead Counsel said he never saw a document reflecting a later meeting between Assistant District Attorney General Jerry Harris and Sergeant Ashton in which General Harris stated he thought the Petitioner should be charged with first degree murder.
Lead Counsel testified that he was unaware before trial that the Petitioner initially was charged with second degree murder. He acknowledged that the general sessions criminal information system report included both the charges for second degree murder and first degree murder. The report also provided that the date for the video arraignment for the second degree murder charge was January 26, 1999, and that the date for the video arraignment for the first degree murder charge was January 27, 1999. Lead Counsel did not think he was present for the arraignments because he had not yet been retained. He said he was retained between February 3 and February 17, 1999.
Lead Counsel testified that he did not know why he did not receive the affidavit of complaint regarding the second degree murder charge. He said that after an attorney signed the court jacket as representing a defendant, the attorney could obtain the affidavit of complaint. Lead Counsel said he may not have signed the court jacket for the second degree murder charge. Regardless, Lead Counsel thought the State should have provided the affidavit of complaint charging second degree murder in discovery.
Lead Counsel testified that he could not determine whether the initial affidavit of complaint charging the Petitioner with second degree murder would have been useful had the State provided it to him. The affidavit charging second degree murder stated that the Petitioner went to the victim's home, that they argued, and that the Petitioner attacked the victim. The affidavit of complaint charging first degree murder did not suggest that an altercation occurred before the attack. Lead Counsel acknowledged that the difference could have been significant in cross-examining Sergeant Ashton. He also acknowledged that the affidavit of complaint for second degree murder tended to support the Petitioner's statement to police that he went to the victim's home to talk with her, that they were involved in an altercation, and that he lost control. Lead Counsel could have used the affidavit of complaint to challenge the prosecutor's closing argument in which he stated that the Petitioner's version of the crime was "phony baloney."
Lead Counsel testified that he did not have any notes of his interviews with the Petitioner. He said he generally did not make notes of any meetings with clients or witnesses. He preferred not to have any notes in case the State requested them at trial as prior statements.
Lead Counsel testified that at some point, the Petitioner told him that the Petitioner had been using drugs and alcohol during and after the offense. Lead Counsel did not attempt to obtain a blood or urine sample from the Petitioner for testing because approximately three weeks had passed between the victim's death and Lead Counsel's being retained to represent the Petitioner. By that time, cocaine and alcohol likely would not have been in the Petitioner's system. Lead Counsel acknowledged that marijuana possibly could have remained in the Petitioner's system if the Petitioner had smoked it just before his arrest. He did not recall the Petitioner's informing him of the drug and alcohol use until some months after the preliminary hearing.
Lead Counsel testified that he did not interview Sergeant Ashton before trial. He generally did not interview police officers. He acknowledged that if he had not waived the preliminary hearing and Sergeant Ashton had testified, he could have learned more information about the charges. Lead Counsel said he may not have learned any additional information because Sergeant Ashton likely would have testified only about the Petitioner's statement. Lead Counsel stated that in Shelby County, preliminary hearings generally were " cut . . . pretty short." He acknowledged that he would have been able to question Sergeant Ashton about the second degree murder charge if he had been aware of it.
Lead Counsel testified that Judge Joseph Dailey appointed Co-Counsel while he remained as lead counsel. Because the Petitioner was indigent, Lead Counsel secured the services of Clark Chapman and Glori Shettles as investigators by court order. Ms. Shettles worked for Inquisitor, Incorporated, and Mr. Chapman owned his own investigation firm. Lead Counsel identified an order entered on June 28, 2000, approving Ms. Shettles's services. Inquisitor requested $18, 000 or $65.00 per hour to perform the mitigation investigation, and the trial court approved initial funds of $5, 000. Lead Counsel also retained Dr. Fred Steinberg, a psychologist.
Lead Counsel testified that he filed a motion for Judge Dailey to recuse himself because Judge Dailey had prosecuted the Petitioner previously. Judge Dailey granted the motion, and Judge Chris Craft became the trial judge. Lead Counsel said that he requested funds for the services of Dr. Diane McCoy, a clinical psychologist in Knoxville, Tennessee. Lead Counsel wanted Dr. McCoy to assist in the mitigation aspect of the Petitioner's case. In her affidavit, Dr. McCoy requested up to $30, 000 and listed the tasks she believed she needed to develop mitigation effectively. Lead Counsel said her services would have been in addition to the services of Dr. Steinberg. However, Judge Craft denied the request.
Lead Counsel testified that he had known Mr. Chapman for some time and that their offices were located on the same floor. They met "a couple of times" each week to discuss the Petitioner's case. Lead Counsel kept a refrigerator containing sodas in his office, and Mr. Chapman would stop by for a soda and update him on developments in the Petitioner's case. Mr. Chapman regularly updated him on the Petitioner's case in an informal way. Mr. Chapman also prepared memoranda regarding his investigation.
Lead Counsel testified that he did not know whether he, Co-Counsel, Ms. Shettles, and Mr. Chapman ever met together as a group. Lead Counsel and Co-Counsel met with Mr. Chapman. Ms. Shettles was conducting the mitigation investigation, and Lead Counsel knew that she and Mr. Chapman discussed the case. Ms. Shettles gathered background information on the Petitioner and sent reports to Lead Counsel and Dr. Steinberg. Lead Counsel thought Ms. Shettles came to his office for a meeting.
Lead Counsel testified that on November 28, 2000, Ms. Shettles sent trial counsel a letter stating that the funds approved by the trial court had been depleted. Ms. Shettles also sent trial counsel a letter dated January 30, 2001, stating that she thought they had completed their work because she no longer had any funds. Lead Counsel thought he obtained additional funds for Ms. Shettles beyond the initial $5, 000 approved by the trial court but did not recall the additional amount. Lead Counsel acknowledged that a few days after the Petitioner's trial, Ms. Shettles sent a letter to trial counsel in which she stated that she assumed they had requested additional funds for her.
Lead Counsel testified that Dr. Steinberg assisted trial counsel with preparing evidence of diminished capacity and mitigation. Lead Counsel said they were trying to show diminished capacity such that the Petitioner was unable to form the intent to commit murder. In his statement to police, the Petitioner had said he killed the victim. Therefore, his defense was based upon his mental state and whether he was capable of premeditation. Lead Counsel noted that around the time of the offense, the Petitioner had used cocaine and was under stress. Moreover, the Petitioner's best friend had committed suicide, and his grandmother was ill or had just died. The Petitioner had lost his job at the Cook Convention Center, and he had marital problems. Lead Counsel said the combination of the Petitioner's drug use and the stress factors caused him to "snap." Lead Counsel said that in addition to evidence of diminished capacity, an intoxication defense possibly existed. Trial counsel presented testimony from Patricia McNeely, a counselor who was helping the Petitioner at an alcohol/drug center.
Lead Counsel testified that Ms. Shettles recommended Dr. Steinberg to trial counsel. The trial court signed the order approving funds to retain Dr. Steinberg on November 5, 2000, shortly before the trial was to begin. The trial was continued, and Lead Counsel said the continuance could have been the result of his failure to provide Dr. Steinberg's report to the State in a timely fashion. Lead Counsel did not recall when he first met with Dr. Steinberg, but they met in his office. There, they discussed the standard for diminished capacity, and he told Dr. Steinberg what the defense needed in order to present such evidence. Dr. Steinberg had information about the Petitioner before the meeting.
Lead Counsel recalled that Dr. Steinberg testified at trial that he could not conclude the Petitioner had a mental disease or defect. The trial court ruled that Dr. Steinberg's testimony did not meet the standard for admissibility of diminished capacity evidence. Lead Counsel said that he had reviewed Dr. Steinberg's report with him before trial and that he knew Dr. Steinberg did not find a mental disease or defect. Nevertheless, Lead Counsel tried to introduce evidence of diminished capacity despite Dr. Steinberg's findings. He did not recall any discussion about retaining a psychiatrist in an attempt to find a mental disease or defect. Rather, Lead Counsel relied entirely upon Dr. Steinberg, stating that Dr. Steinberg "was my expert. He would have superior knowledge than me." Lead Counsel did not know whether he was aware at the time of the Petitioner's case that psychological testing might not detect mental diseases or defects.
Lead Counsel testified that he reviewed the social history prepared by Ms. Shettles. He acknowledged that Ms. Shettles discussed the issue of fetal alcohol syndrome in her report. Lead Counsel said that he was aware of fetal alcohol syndrome at the time of the Petitioner's case but that he relied upon Dr. Steinberg's expertise in evaluating the Petitioner. Lead Counsel later testified that he did not know whether he was aware of fetal alcohol syndrome or fetal alcohol spectrum disorder before he represented the Petitioner. He said that, regardless, Dr. Steinberg evaluated the Petitioner and did not mention fetal alcohol spectrum disorder in his report. Lead Counsel did not recall anyone in the Petitioner's family having a serious drinking problem.
Lead Counsel testified that he was certain Dr. Steinberg received a copy of Ms. Shettles's report. Lead Counsel said he spoke to Dr. Steinberg "quite a bit before trial" but did not recall whether they discussed any fetal alcohol issues. Lead Counsel also said, "Apparently he didn't find it or he would have said something to us about it." Lead Counsel did not know whether fetal alcohol syndrome could be diagnosed by a psychologist. He did not recall discussing using a neuropsychologist or Dr. Steinberg suggesting a neuropsychologist. Lead Counsel said he was "roughly" aware that a difference between a clinical psychologist and a neuropsychologist existed. He also was aware of the difference between a psychologist and a psychiatrist.
Lead Counsel testified that Dr. Steinberg's report was dated November 12, 2000, and that Dr. Steinberg visited the Petitioner in jail on November 7, 8, and 10, 2000. Lead Counsel thought Dr. Steinberg began working on the case before the trial court entered an order approving funds. Lead counsel said that although trial counsel discussed Dr. Steinberg's findings with him before he drafted his report, he did not provide trial counsel with the report until shortly before the trial was scheduled to begin in November 2000. Trial counsel did not provide Dr. Steinberg's report to the State until after the jury was selected but before it was sworn. The Petitioner's trial was continued from November 2000 to March 2001.
Lead Counsel testified that he researched case law regarding diminished capacity and filed a defense plea of diminished capacity. He explained that he filed the plea to preserve the issue for appellate review. Lead Counsel said Dr. Steinberg attempted to help trial counsel present evidence of diminished capacity. Lead Counsel did not know how far in advance of the March trial that he knew a mental disease or defect was required but spoke with Dr. Steinberg many times before and during the trial regarding the requirement. He thought he gave Dr. Steinberg copies of case law addressing diminished capacity and said Dr. Steinberg tried to find a defect that would qualify.
Lead Counsel testified that he and Co-Counsel spoke often before trial. They also spoke often with Dr. Steinberg. Lead Counsel had Ms. Shettles's reports, and Ms. Shettles provided them with the names of witnesses she thought should testify. Lead Counsel did not know whether he filed a notice of his intent to present psychological testimony during the penalty phase.
Lead Counsel testified that he relied upon diminished capacity in an attempt to obtain a conviction for a lesser offense. He thought that the Petitioner should have been convicted of a lesser offense but that they were "saddled with some bad facts." Lead Counsel did not think that trial counsel "panicked" when the trial court refused to allow them to present Dr. Steinberg's testimony. Rather, he thought the trial court's ruling was wrong. Lead Counsel raised the issue in the motion for new trial as a violation of the Petitioner's right to present a defense.
Lead Counsel testified that after he learned Dr. Steinberg did not find a mental disease or defect, he may have contacted other attorneys involved in capital litigation for any suggestions. He consulted with other criminal defense attorneys regularly. He did not know whether he consulted any attorneys outside of Memphis. Lead Counsel acknowledged that he received a letter from attorney David Keefe on April 27, 2001, approximately six weeks after the Petitioner's trial. However, he did not know if he communicated with Mr. Keefe prior to that date.
Lead Counsel acknowledged that according to Dr. Steinberg's report, the Petitioner received a critically abnormal score on the Luria-Nebraska Screening test. The report noted that the Petitioner's score on the Booklet Category Test showed that he manifested difficulty in abstraction, reasoning, and logical analysis. The report also stated that the Petitioner had difficulty shifting problem-solving strategies when confronted with changing circumstances. Lead Counsel said the Petitioner's statement about the offense could have demonstrated a shift in problem-solving strategy and a change of circumstances. Lead Counsel also said the Petitioner may have demonstrated reasoning and logical difficulties when the Petitioner thought he and the victim were going to reconcile and she told him that she wanted a divorce instead.
Lead Counsel testified that he did not recall seeking any experts to establish that some of the blood found in the victim's house belonged to the Petitioner. He recalled reviewing some documents indicating that the Petitioner was cut during an argument with the victim a few days before her death. He did not recall searching for an expert to challenge the testimony of Dr. O.C. Smith or Paulette Sutton. Lead Counsel was taken by surprise with Ms. Sutton's testimony regarding the blood spatter. He recalled stating at trial that he had not seen a report from her. He did not know whether the defense interviewed Dr. Smith and Ms. Sutton before trial.
Lead Counsel testified that the victim had been working at a Piggly Wiggly on the day of her death. He did not recall seeing a photograph of the bedroom where the victim was found that depicted her work apron and two receipts from Piggly Wiggly on her bed. Lead Counsel said jurors might have disagreed as to whether the apron had been neatly placed or just thrown on the bed. He noted that the victim was found lying at the foot of the bed and that the attack occurred in the hallway. The State's theory was that the Petitioner was in the house when the victim returned. Lead Counsel said he may not have wanted to dwell upon the evidence found in the bedroom because the crime scene officers also found the skillet handle in the bedroom.
Lead Counsel testified that he did not recall an issue regarding the victim's moving her hands and the time of consciousness. Dr. Smith was questioned regarding whether the victim died immediately or suffered. Lead Counsel thought Dr. Smith's answer was helpful to the defense. He did not know whether he would have wanted to present evidence that someone might have moved the victim's hands while checking her pulse.
Lead Counsel testified that he did not recall the Petitioner's filing a complaint against him with the Board of Professional Responsibility. He identified a response that he sent to the Board addressing the reasons he did not present certain witnesses at trial. Trial counsel subpoenaed a warden who would have testified that the Petitioner won a prison essay award. Lead Counsel said the warden did not want to testify and informed Lead Counsel that he would say the Petitioner was a violent person. Lead Counsel discussed the matter with the Petitioner, and the Petitioner agreed that the warden should not testify. Lead Counsel was unable to locate Ms. Nesbitt of the Tennessee Department of Correction (TDOC) Probation and Parole Division. He did not recall Ms. Shettles's stating that the Petitioner's probation and parole records should be certified so that counsel could introduce them.
Lead Counsel testified that the State erred in its wording of the notice that it was seeking the death penalty against the Petitioner. The State attempted to correct the notice but failed to do so. Lead Counsel said he had wanted to wait until the trial began to argue that the State's notice was improper. However, a few days before trial, Co-Counsel went to the trial court regarding the matter. Judge Craft called the prosecutors and allowed them to amend their notice. Lead Counsel stated he might not have learned about the amended notice until the day of trial. He did not think that he saw anything from the State indicating that Judge Craft had assisted the State with correcting the notice.
Lead Counsel testified that the Petitioner had been known as "Skillet" since his youth. The Petitioner told the police that he hit the victim with a skillet. Lead Counsel did not file a motion in limine to prevent any reference to the Petitioner as "Skillet." Instead, he challenged the evidence in a motion to suppress and made an oral objection at trial. Lead Counsel testified that he did not recall evidence presented establishing that the Petitioner had assaulted the victim during an argument on January 18, 1999, a few days before her death. He also did not recall whether the trial court offered a limiting instruction pursuant to Rule 404(b), Tennessee Rules of Evidence. Lead Counsel did not recall Mr. Chapman providing him with a recording of a 911 call by the victim on January 18, 1999, reporting that the Petitioner had stabbed himself and needed an ambulance.
Lead Counsel testified that he thought he subpoenaed Glenda Williams, the Petitioner's cousin, and that she attended the trial. Ms. Williams and her son, Eddie Parker, had approached Lead Counsel about representing the Petitioner. Lead Counsel had previously represented Ms. Williams and Mr. Parker in their respective divorces. Lead Counsel did not recall Ms. Williams telling him that the Petitioner called her several times on the day of the victim's death and told her that he was having difficulty thinking. He said Ms. Williams never told him that she was with the Petitioner after he killed the victim but before he turned himself in to the police or that the Petitioner was using drugs and alcohol. Rather, Lead Counsel said Ms. Williams told him that she did not want to testify.
Lead Counsel testified that he attempted to portray the Petitioner in as positive a light as possible. The defense presented evidence that the Petitioner attempted to turn himself in to the police but was turned away and instructed to return the following day. Lead Counsel did not know why he did not obtain a transcript of the suppression hearing before trial.
On cross-examination, Lead Counsel testified that upon receiving completed questionnaires from potential jurors, he read each questionnaire and made index cards for each potential juror, grading the juror as good or bad for the defense. In the Petitioner's complaint to the Board, the Petitioner alleged that Lead Counsel should have presented at trial the testimony of the prison warden. The warden could have been the warden at the facility where the Petitioner served a prior sentence. According to Lead Counsel, the warden did not want to testify and claimed he would have to testify that the Petitioner was violent in the facility. As a result, Lead Counsel did not want to present him as a witness and discussed the matter with the Petitioner. Lead Counsel said he and Co-Counsel made a "trial decision judgment call" against calling the warden as a witness. Lead Counsel could not locate Ms. Nesbitt to serve her with a subpoena because she was no longer employed by the Department of Probation and Parole.
Lead Counsel testified that the Petitioner also complained to the Board that Dr. Steinberg and Ms. McNeely were not allowed to testify during the guilt phase. Lead Counsel attempted to present their testimony in the guilt phase, but the trial court excluded it. Both witnesses testified during the penalty phase.
Lead Counsel testified that he had retained Mr. Chapman as an investigator in other criminal cases. Mr. Chapman knew how to conduct the investigation, and trial counsel requested that he conduct a follow-up investigation on other matters. Lead Counsel provided Mr. Chapman with a copy of discovery. Mr. Chapman either provided trial counsel with written memoranda or updated them verbally. They had ongoing conversations up to and through the trial. Lead Counsel did not have to direct Ms. Shettles because she knew what to do, and he relied on her to identify experts. Lead Counsel said Ms. Shettles provided him with Dr. Steinberg's name; Lead Counsel did not know Dr. Steinberg before working with him on the Petitioner's case. Lead Counsel provided Dr. Steinberg with all the information he requested and met with him.
Lead Counsel testified that Dr. Steinberg mentioned potential alcohol abuse by the Petitioner's mother in his report. Dr. Steinberg, however, focused on other issues. Lead Counsel was certain that if Dr. Steinberg had thought additional testing was needed, he would have told counsel. Dr. Steinberg never told counsel that additional experts should be retained. Lead Counsel continued to have discussions with Dr. Steinberg after Dr. Steinberg generated his report, and they discussed the issue of mental disease or defect. Dr. Steinberg attempted to establish diminished capacity and was upset that he could not do so.
Lead Counsel testified that he presented Dr. Steinberg's testimony in mitigation. Dr. Steinberg testified about the Petitioner's cocaine abuse and the stressors that he was experiencing, including his failing marriage. The Petitioner's friend had committed suicide, and the Petitioner had employment and financial issues. Lead Counsel recalled that both Dr. Steinberg and Ms. Shettles provided him with those issues to present. Lead Counsel also presented testimony from Ms. McNeely regarding the Petitioner's drug treatment and requested certain jury instructions regarding mitigation. The defense received information from the Petitioner's family members, and the Petitioner cooperated with trial counsel, Dr. Steinberg, and Ms. Shettles.
Lead Counsel testified that the defense strategy at the guilt phase was that the Petitioner's capacity was diminished and that the State should not have charged him with first degree murder. They also tried to show that the homicide was spontaneous and a crime of passion. The mitigation strategy was that the Petitioner reacted without thinking, had been using cocaine, and had been subject to multiple stress factors.
On redirect examination, Lead Counsel testified that Ms. Shettles interviewed Warden Warren Douglas and provided Lead Counsel with a memorandum summarizing the interview. The memorandum stated that the warden had described the Petitioner as a good inmate who had taken responsibility for his past crimes. The memorandum also stated that the warden had agreed to testify on the Petitioner's behalf. Lead Counsel said the warden's testimony was relevant to the Petitioner's past behavior in prison and his belief that the Petitioner would not pose a threat to anyone in the prison system. Lead Counsel said the warden later called and said it would not be in the defense's best interest to present him as a witness because he would testify that the Petitioner had been a violent person. Lead Counsel said he would have had difficulty impeaching his own witness, particularly in front of a jury. He was certain that he told the warden what he wanted from the warden's testimony. Lead Counsel acknowledged that the jury was going to think that the Petitioner might be a violent person when it learned of his past record, but Lead Counsel "didn't need to add any more fuel to the fire." Lead Counsel thought the essay award would reflect favorably on the Petitioner. Warden Douglas thought the Petitioner's essay no longer existed.
Lead Counsel testified that trial counsel may have attempted to secure additional funds for Ms. Shettles but that the trial judge was not willing to grant additional funds. He said that rather than filing a motion, trial counsel may have approached the judge and asked whether he would grant additional funds.
Lead Counsel testified that if Dr. Steinberg had thought the use of alcohol by the Petitioner's mother was vital evidence, he would have advised trial counsel to consult other experts. Lead Counsel did not recall whether he was aware at the time of the trial that Dr. Smith was going to testify that blood clotted within five to six minutes. He did not retain any experts to challenge that testimony.
On recross examination, Lead Counsel acknowledged that according to Dr. Steinberg's report, the Petitioner yielded a critically abnormal score on the Luria-Nebraska screening testing that "typically [was] marginally indicative of brain damage and [needed] further neuropsychological testing." However, the next sentence in the report stated, "However, upon closer inspection his difficulties noted above in math were largely responsible for this marginal score. Therefore, the results on this test are seen as being consistent with his above mentioned intellectual functioning." Lead Counsel acknowledged that that sentence meant the abnormal score was not as significant.
Co-Counsel testified that he became licensed to practice law in 1993 and that Judge Dailey appointed him to this case on October 11, 1999. Prior to the appointment, Judge Dailey questioned him regarding his background and experience. Co-Counsel had recently been certified to serve as second chair in capital cases and had represented defendants in ten to fifteen jury trials, including one first degree murder case. However, this was his first capital trial.
Co-Counsel testified that he met with the Petitioner on a number of occasions before trial and took notes of their meetings. Lead Counsel met with the Petitioner's family because he was familiar with them. Co-Counsel said he mentioned to Lead Counsel about filing a motion in limine to exclude evidence of the Petitioner's nickname, but the motion was not filed.
Co-Counsel testified that he and Lead Counsel had informal meetings in which they discussed the case and divided out responsibilities. They discussed ideas about the direction of the case. Lead Counsel ultimately determined what tasks needed to be completed and who should complete them. Co-Counsel was to approach Judge Dailey and request funds for experts.
Co-Counsel testified that he did not draft a motion requesting funds for experts. Rather, he met with Judge Dailey on multiple occasions and requested experts. Judge Dailey denied any funds to retain Inquisitor, Incorporated. Judge Dailey thought Inquisitor overcharged, and Co-Counsel "got the sense he didn't like them." Initially, Judge Dailey only granted funds to retain Mr. Chapman. When the Petitioner's case was transferred to Judge Craft, Co-Counsel went to him and requested the same experts for whom Judge Dailey had denied funds.
Co-Counsel testified that trial counsel were aware of issues regarding the Petitioner's current and past mental state. They wanted to retain a mental health expert and an expert who would determine whether there were any issues as a result of the Petitioner's childhood. The trial court never granted funds to retain such an expert. Co-Counsel did not think he filed a formal motion requesting the funds.
Co-Counsel testified that he prepared a motion requesting funds to retain Dr. Diane McCoy, a psychologist, to address mitigation issues regarding the Petitioner's childhood and mental health issues. Co-Counsel acknowledged that according to Dr. McCoy's affidavit, her services related to those of a mitigation specialist who would prepare a social history. Co-Counsel explained that Ms. Shettles was not a psychologist and that the defense needed a mental health expert to explain to the jury that the Petitioner's past and present mental health issues may have affected his behavior. Co-Counsel did not request a hearing on the record regarding Dr. McCoy, and the trial court never approved funds to retain her. Co-Counsel said, "We were just shot down by that."
Co-Counsel acknowledged that other than the date on which he was appointed, he did not include any other entries on his fee claim for 1999. He explained that trial counsel did not perform many tasks in 1999 because the holidays were near, and they knew they had some time to complete the tasks before trial. The next court date listed on Co-Counsel's fee claim was April 11, 2000, in which he had a conference with the trial court regarding his request for funds to retain Dr. McCoy. Co-Counsel recalled having several conversations with Judge Craft regarding Dr. McCoy.
Co-Counsel testified that Lead Counsel knew the Petitioner's family and that Lead Counsel told him the family had a history of drug and alcohol abuse existed. Lead Counsel thought the Petitioner's past history of incarceration, family, and current mental health issues needed to be explored. Co-Counsel thought obtaining a social history was "vital." The purpose of the social history was to inform the jury that the events that occurred on the night of the victim's death should not be considered in a vacuum. Co-Counsel said the social history prepared by Ms. Shettles showed that the Petitioner's mother drank alcohol heavily during pregnancy and throughout her life. Ms. Shettles noted the Petitioner's low birth weight and questioned whether it was the result of fetal alcohol syndrome. Ms. Shettles discussed other indicators of fetal alcohol syndrome. Co-Counsel told Lead Counsel that an expert in fetal alcohol syndrome was needed and requested funds from the trial court for such an expert. Co-Counsel could not recall whether he filed a formal motion requesting the funds.
Co-Counsel testified that fetal alcohol syndrome was a new issue being raised in capital defenses. Initially, he requested funds from the trial court for an expert in fetal alcohol-related illness. However, he never made the request in a formal motion. He said that Dr. McCoy would have addressed those areas but that his request for funding was denied. Co-Counsel contacted defense attorneys from Memphis for the names of experts in fetal alcohol-related illness but did not contact any national or state-wide organizations.
Co-Counsel testified that the case was scheduled to go to trial in November 2000. After the jury was selected, the trial was continued before the jury was sworn. The continuance was due in part to trial counsel's providing the State with a copy of Dr. Steinberg's report the day after the jury was selected. Co-Counsel said they provided the report to the State shortly after receiving it. The trial was continued until March 5, 2001.
Co-Counsel testified that he did not recall interacting with Ms. Shettles often. He identified three letters from Ms. Shettles dated November 28, 2000; January 30, 2001; and March 14, 2001. In the November and January letters, she said she had run out of funds. In the January letter, she also asked whether trial counsel wanted her to complete any additional tasks. In the March letter, Ms. Shettles requested that trial counsel have her fees approved by the trial court. Co-Counsel noted that the January and March letters were addressed only to Lead Counsel. He could not recall whether he had any interaction with Ms. Shettles between November 2000 and March 2001.
Co-Counsel testified that his fee claim did not include any out-of-court hours between November 14, 2000, and January 31, 2001. The next entry on his fee claim was February 28, 2001, when he interviewed Dr. O.C. Smith for two and one-half hours. Co-Counsel said he was surprised by Ms. Sutton's testimony. He said the information he had obtained from his interviews with Dr. Smith and Ms. Sutton was completely different from their trial testimony. Co-Counsel requested funds from the trial court to retain a forensic expert, but the court denied the request. Co-Counsel did not file a formal motion for funds for a forensic expert.
Co-Counsel testified that he performed the majority of the work regarding the diminished capacity issues. Trial counsel attempted to determine a way to present evidence of diminished capacity despite Dr. Steinberg's report. Co-Counsel acknowledged that the task was difficult. Trial counsel wanted to question the jurors during voir dire regarding diminished capacity, and they discussed the issue at trial. They attempted to present Dr. Steinberg's testimony during the guilt phase, but the trial court did not permit him to testify because he could not find a mental disease or defect.
Co-Counsel testified that he had multiple meetings with Lead Counsel regarding Dr. Steinberg's failure to find a mental disease or defect. Co-Counsel recalled meeting with Dr. Steinberg in Dr. Steinberg's office either before or after receiving his report. Co-Counsel said that diminished capacity was a primary issue and that Dr. Steinberg's report "caught us off guard." Neuropsychological testing was discussed with Dr. Steinberg during the meeting, but Co-Counsel did not recall the outcome of the discussion. He said Lead Counsel was responsible for interacting with Dr. Steinberg. Co-Counsel thought the Petitioner had mental health issues, and Co-Counsel wanted to retain as many mental health experts as possible. Trial counsel discussed presenting an intoxication defense and attempted to argue that the Petitioner's drug and alcohol addictions were mental illnesses. Co-Counsel acknowledged that according to a police department "law incident table, " an officer had suspected the Petitioner of using alcohol at the time of the offense. Co-Counsel also acknowledged that the table could have been valuable in his cross-examination of the State's witnesses.
Co-Counsel testified that he had contact with Mr. Chapman and was aware that Mr. Chapman had located a woman with whom the Petitioner had reported using drugs before the victim's death. Trial counsel did not issue a subpoena for her. Mr. Chapman informed trial counsel that the woman's drug problems were so serious that she might not be a credible witness. Co-Counsel thought Mr. Chapman may have had problems locating her near the time of trial. Co-Counsel wanted to present the woman as a witness, but Lead Counsel decided not to do so.
Co-Counsel testified that he decided the Petitioner should not testify at trial. Co-Counsel and the Petitioner discussed in detail the possibility of the Petitioner's testifying. Co-Counsel recalled that when the Petitioner testified at the suppression hearing, he was "totally confused" and did not testify well on cross-examination. One of the considerations in Co-Counsel's decision not to present the Petitioner as a witness at trial was that the Petitioner had testified so poorly during the suppression hearing.
Co-Counsel testified that before trial he obtained the affidavit of complaint charging the Petitioner with first degree murder. He never saw the affidavit of complaint charging second degree murder. Co-Counsel said the affidavit of complaint charging second degree murder would have been helpful at trial because the entire focus of the defense was to explain to the jury exactly what had occurred. He said the affidavit also would have been helpful during his cross-examination of Sergeant Ashton. Co-Counsel could not say what he would have done if the affidavit had been provided to him. He said the events listed were essentially his closing argument, which the prosecutor referred to as "a bunch of hocus pocus or whatever words he used."
Post-Conviction Counsel showed Co-Counsel two documents reflecting meetings between an officer and two assistant district attorneys general. Co-Counsel acknowledged that according to one of the documents, General Roach had accepted the Petitioner's claim that the victim's death was the result of a domestic disturbance that got out of control. Co-Counsel noted that according to the document, General Roach had examined the Petitioner's criminal record before authorizing the charge of second degree murder. Co-counsel said that if he had had the document at trial, his cross-examination of Sergeant Ashton would have been "totally different."
Co-Counsel acknowledged that during the pretrial suppression hearing, he conducted Sergeant Ashton's cross-examination and the Petitioner's direct examination. Co-Counsel also acknowledged that he attempted to impeach Sergeant Ashton's trial testimony with his suppression hearing testimony. However, Co-Counsel had "numerous problems with that" because he did not have the suppression hearing transcript. He did not recall a reason for not obtaining the transcript before trial.
Co-Counsel testified that three days before the trial was set to begin, he approached Judge Craft to determine whether the trial was going forward as a death penalty case because the death notice was improper. Co-Counsel had told Lead Counsel that he planned to approach the trial court about the issue. He said that if Lead Counsel had told him not to approach the trial court, he would not have done so. Co-Counsel said Judge Craft informed the prosecutors about the improper notice and instructed them on how to draft the notice properly. Co-Counsel did not consider filing a motion for Judge Craft to recuse himself.
Co-Counsel testified that trial counsel did not file a motion arguing that the death penalty was unconstitutional under the First Amendment. The motion was filed in a different case, and trial counsel decided to wait for that result before filing the motion in this case. The motion was denied in the previous case, so Lead Counsel decided not to file the motion in the Petitioner's case.
On cross-examination, Co-Counsel testified that he did not know which officer entered the information in the law incident table regarding the suspicion about the Petitioner's using alcohol. He acknowledged that the statement had to be admissible in order for him to question a witness about it. He also acknowledged that if he had discovered that Sergeant Ashton did not make the entry in the table, he could not have used the statement to impeach the officer's testimony.
Co-Counsel testified that he and Lead Counsel made a list of experts they wanted to retain and discussed the list. Co-Counsel said they needed an investigator, a mental health expert to assess the Petitioner's present-day mental health issues, an expert to review his childhood issues resulting from drug and alcohol abuse, a forensic expert, and a jury consultant. He also thought they needed a psychological expert to educate the jury about how a person who had spent the majority of his or her life incarcerated would react to the outside world. Co-Counsel approached Judge Dailey and requested funds for the experts. Judge Dailey denied his request for funds to retain Inquisitor but granted his request for funds to retain Mr. Chapman. When Judge Craft became the trial judge in the case, Co-Counsel approached him with the same list of experts. Judge Craft granted the request for funds to retain Ms. Shettles to conduct the mitigation investigation but denied the request for funds to retain Dr. McCoy, a forensic pathologist, and a jury consultant.
Co-Counsel testified that he thought Lead Counsel suggested Dr. Steinberg. Co-Counsel said they expected Dr. Steinberg to conclude that the Petitioner had a mental health disease and that they were going to use the diagnosis to establish diminished capacity. Dr. Steinberg, however, did not find any mental illness. Co-Counsel did not recall Dr. Steinberg's ever stating that he would change his opinion.
Co-Counsel testified that according to Dr. Steinberg's report, Dr. Steinberg considered the Petitioner's statement, jail records, mental records, school records, juvenile court records, parole records, employment records, drug treatment records, and correction center records. Dr. Steinberg also considered the social history prepared by Ms. Shettles; her interview with Leon Brown, Patti McNeely, Sherry Osby, and the Petitioner's family; an incident report involving Jimmy Osby; Ms. Shettles's summary of the Petitioner's prior convictions; and photographs. Dr. Steinberg focused on the Petitioner's life and the traumatic incidents that had occurred in his life. Dr. Steinberg discussed dysfunctional lifestyles, drug abuse, and a number of stressors that were in the Petitioner's life before the victim's death. The stressors included the Petitioner's disintegrating marriage, his problems with employment, drug and alcohol abuse, failed drug screens, and his relationship with another woman.
Co-Counsel testified that Dr. Steinberg diagnosed the Petitioner with poly-substance abuse under Axis I and personality disorder not otherwise specified under Axis II. Under Axis IV, Dr. Steinberg noted problems related to the Petitioner's primary support group, his interaction with the legal system, his occupation, and his social environment and housing. Dr. Steinberg's global assessment of the Petitioner was 60. Co-Counsel said he, Lead Counsel, and Dr. Steinberg discussed whether another expert should evaluate the Petitioner. According to Co-Counsel, the trial court refused to grant funds to retain any other mental health expert for any other reason. Co-Counsel did not recall Dr. Steinberg's suggesting another expert.
Co-Counsel testified that he met with Dr. Smith and Ms. Sutton at the medical examiner's office. They discussed the autopsy, the cause of the victim's death, the victim's injuries, and the crime scene. They also discussed that a cast iron skillet was used and that the handle of the skillet was broken off. Co-Counsel asked Dr. Smith how the handle could have broken, and Dr. Smith said it could have broken if the skillet was old or worn. Co-Counsel said he was surprised by Dr. Smith's answer because he had expected Dr. Smith to state that the handle was broken because the victim was beaten to the point that she was unrecognizable. Co-Counsel stated that the victim was beaten badly and that the scene was "gruesome." Dr. Smith discussed with Co-Counsel the gravity of the victim's injuries and how she died. Ms. Sutton educated Co-Counsel about blood spatter and what the evidence would mean at trial. Co-Counsel said that at trial, Dr. Smith discussed war injuries and "the explosive type thing." Dr. Smith described the crime scene as a "two hour torture scene." Co-Counsel said Dr. Smith's testimony took him by "complete surprise."
Co-Counsel testified that the Petitioner told him about the night of the victim's death, his job, his relationship with the victim, and how his prison experience had formed his ability to function in the outside world. Co-Counsel said the Petitioner was unable to explain with clarity what occurred on the night of the victim's death or how the death occurred. The Petitioner was able to answer Co-Counsel's questions regarding the facts, the events, and his background and history. The Petitioner was able to provide emotional detail regarding his family and his past.
Co-Counsel testified that he had a good relationship with Lead Counsel and that Lead Counsel listened to his thoughts and suggestions. Co-Counsel spoke with Mr. Chapman frequently. Co-Counsel said that if he requested additional funds, the money was either for Mr. Chapman or Dr. Steinberg. Co-Counsel thought that he requested additional funds for Mr. Chapman and that the trial judge approved the request. Co-Counsel did not know if he requested additional funds for Dr. Steinberg.
Co-Counsel testified that he received Ms. Shettles's report shortly after the date on the report. He was unsure whether Lead Counsel requested that Ms. Shettles complete any additional tasks. Co-Counsel did not think there were any other tasks she needed to complete.
Co-Counsel testified that he conducted voir dire with the benefit of jury questionnaires. He and Lead Counsel reviewed the questionnaires and ranked the potential jurors. Co-Counsel said Lead Counsel had a unique system in that he wrote information about each juror on index cards. Lead Counsel, Co-Counsel, and the Petitioner decided whether to keep or strike a juror. Co-Counsel said that when considering potential jurors, he considered not only those in the jury box but those who could replace them.
On redirect examination, Co-Counsel testified that he did not request funds for experts in a formal motion or ask for a formal hearing. Instead, Co-Counsel spoke with Judge Dailey and later Judge Craft. The judges always wanted to know how much an expert was going to cost, and Co-Counsel would tell them that he did not know. The judges also wanted to know why Mr. Chapman or Dr. Steinberg could not complete the tasks. Ultimately, the judges always concluded that the expert was not needed. Co-Counsel acknowledged that he could not appeal their rulings if his requests were not in writing.
Clark Chapman, a private investigator, testified that he was hired by trial counsel in March or April 2000. He met with both of them but met more frequently with Lead Counsel because their offices were close. He occasionally spoke with Co-Counsel over the telephone or at Co-Counsel's office. Mr. Chapman's meetings with trial counsel were usually brief. However, he had one meeting with Co-Counsel and the Petitioner that lasted several hours. Mr. Chapman spoke to Ms. Shettles on the telephone and talked with her several times when they met with the Petitioner.
Mr. Chapman testified that he was retained to conduct the guilt/innocence portion of the investigation. The Petitioner was knowledgeable about the people involved in the case and identified witnesses for Mr. Chapman to interview. Mr. Chapman thought the case was more related to mitigation. He explained that based on the Petitioner's statements to him and the police, his job was to determine what took place and what led to the victim's death.
Mr. Chapman testified that the defense was concerned about the Petitioner's mental status at the time of the crime. Mr. Chapman researched the issue and interviewed witnesses the Petitioner identified as possibly being able to develop his actions before the victim's death. Mr. Chapman said that the information was important to both the guilt and penalty phases and that he hoped the jury would convict the Petitioner of a lesser offense.
Mr. Chapman testified that he interviewed Glenda Williams, prepared a memorandum of the interview, and gave the memorandum to trial counsel. Ms. Williams reported that the Petitioner had contacted her and asked her to pick him up on the night of the victim's death. The Petitioner reported problems with his mental state. Ms. Williams refused to pick him up because of a storm that night.
Mr. Chapman testified that he searched for Terri Strickland, who lived close to the home of the Petitioner's grandmother. The Petitioner was alleged to have been with her before the victim's death. Mr. Chapman located Ms. Strickland and spoke with her briefly several times. He said Ms. Strickland was "fidgety" and appeared to be a "street person" or "a person who [was] very visibly on drugs." Mr. Chapman was unable to complete an interview with her because she could not maintain a conversation for more than a few minutes. Ms. Strickland admitted that she was with the Petitioner on the afternoon before the victim's death and that they were "partying." When Mr. Chapman attempted to question Ms. Strickland about the partying, she told him to return later and she would tell him about it. The last time Mr. Chapman spoke with Ms. Strickland, she told him that she would call him at 9:00 p.m. that night. However, she never called. Mr. Chapman did not recall trial counsel's instructing him to subpoena Ms. Strickland for trial.
Mr. Chapman testified that approximately 90% of his work involved criminal defense. During the course of his career, he had spoken to other witnesses and defendants about partying and had observed others that were "fidgety" or "jumpy." Mr. Chapman thought "partying" involved drug use. He submitted a preliminary timeline to trial counsel, stating that on Thursday, January 21, 1999, the Petitioner visited Ms. Strickland at 8:30 p.m. and smoked cocaine. The timeline also included an entry for 4:30 p.m. that same day regarding the Petitioner's smoking cocaine. Mr. Chapman recalled discussions about an intoxication defense.
Mr. Chapman testified that he tried to locate Rosie Puryear or "Bee." He went to her home, left his number there, and spoke to a man who lived at the home. He also telephoned Ms. Puryear. However, Ms. Puryear did not cooperate. He acknowledged that he could have conducted surveillance of her home in an attempt to interview her. He talked with trial counsel numerous times about his attempts to contact Ms. Puryear.
Mr. Chapman testified that he obtained a 911 tape recording regarding an altercation between the Petitioner and the victim that had occurred at the home of the Petitioner's grandmother several days before the victim's death. He prepared a memorandum summarizing the tape recording and provided the recording to counsel. He reviewed the social history prepared by Ms. Shettles. Mr. Chapman did not recall meeting with Dr. Steinberg before trial but spoke with him during the course of trial.
On cross-examination, Mr. Chapman testified that he knew his responsibilities regarding the investigation. He, Co-Counsel, and the Petitioner met in the jail for several hours. The Petitioner identified witnesses and the general vicinity where the witnesses could be located. Mr. Chapman compiled a timeline based upon his interviews with the Petitioner and witnesses and the records that he obtained.
Mr. Chapman testified that the Petitioner did not deny killing the victim. According to his statement to police, the Petitioner beat the victim with a skillet. Mr. Chapman said the only issue was the Petitioner's mental state. As a result, Mr. Chapman's investigation was very limited. He thought the majority of the investigation related to the issues for which Ms. Shettles was responsible.
Mr. Chapman testified that the Petitioner identified Ms. Puryear as a witness but that Ms. Puryear basically "dodged" him. At first, he left messages for her to contact him but did not provide a reason. Later, he left messages stating that he needed to talk with her about the Petitioner's case. Mr. Chapman telephoned her home, spoke to a man, and told him the reason for the call. Ms. Puryear never returned his messages, and Mr. Chapman said it appeared that she was unwilling to cooperate. Mr. Chapman discussed the matter with the Petitioner. The Petitioner said that he knew the man and that he thought the man had told Ms. Puryear not to get involved.
Mr. Chapman testified that Ms. Strickland appeared to be a drug addict. The Petitioner told him that Ms. Strickland used cocaine and other drugs heavily. Mr. Chapman said Ms. Strickland's appearance and behavior confirmed the Petitioner's statement. Mr. Chapman met with Ms. Strickland twice, but she always "put him off" until later. He said she could not stand still long enough to tell him what he needed to know. He informed trial counsel and the Petitioner about his difficulties with interviewing Ms. Strickland.
On redirect examination, Mr. Chapman testified that he and counsel typically interviewed a defendant and built a task list based upon the witnesses to be interviewed and the documents to be obtained. Counsel determined whether Mr. Chapman should spend a great amount of time investigating certain areas. Counsel usually determined which records and witnesses were to be subpoenaed.
Mr. Chapman testified that he never spoke with Ms. Puryear and just left her messages. He acknowledged that Ms. Puryear never told him directly that she did not want to be involved. He also acknowledged that he could have issued a subpoena for her.
Mr. Chapman testified that the Petitioner described the events of the offense to him. The Petitioner and the victim had separated, but the Petitioner thought they were going to reconcile. The Petitioner claimed that when the victim told him she wanted a divorce, he "snapped."
Glori Shettles, a mitigation investigator with Inquisitor, Incorporated, testified that she conducted the mitigation investigation for the Petitioner's case and prepared a social history for the Petitioner. The purpose of the social history was to develop case strategy and identify which witnesses to present during the guilt and penalty phases. An expert could use the social history as an overall assessment of the defendant's life. The social history included the places, people, and records from which the information was obtained.
Ms. Shettles testified that she never received any feedback from trial counsel regarding the information she provided, that they never asked her to follow up on any information, and that she attempted to contact them many times about the information. Trial counsel did not ask her to provide any insight into the appropriate experts that might be needed.
Ms. Shettles testified that she did not recommend Dr. Steinberg to trial counsel and did not recall ever working with him before the Petitioner's case. Dr. Steinberg requested Ms. Shettles's assistance in obtaining documentation. Ms. Shettles wrote a letter to Lead Counsel dated October 17, 2000, regarding Dr. Steinberg's request. At that time, the Petitioner's trial was scheduled for November 2000. Ms. Shettles provided the Petitioner's social history to Dr. Steinberg on November 2, 2000, and to trial counsel the following day. Ms. Shettles referred to the possibility of fetal alcohol damage in the social history. She talked with the Petitioner's family members about their personal knowledge of his mother's drinking alcohol during her pregnancy. Ms. Shettles said the Petitioner's birth records reflected problems with the birth and the Petitioner's low birth weight, indicators of fetal alcohol syndrome. Ms. Shettles said she learned of fetal alcohol syndrome during training and through research. She was aware of the possibility of cognitive impairments, developmental problems, and neurological or brain damage in people with fetal alcohol syndrome.
Ms. Shettles testified that if she been asked to recommend an expert, she would have suggested a neuropsychologist. A neuropsychologist had areas of expertise and training on cognitive issues and in administering tests that were indicators of neuropsychological problems. She said the areas would have related to mental defects rather than mental diseases. Ms. Shettles assumed that Dr. Steinberg would have been alerted to possible issues or problems and would have made the recommendation.
Ms. Shettles testified that she was unaware trial counsel intended to present evidence of diminished capacity. She knew diminished capacity required a showing of a mental disease or defect such that the person's capacity to form intent was diminished. Ms. Shettles said that because Dr. Steinberg did not find a mental disease or defect, trial counsel should have used another expert to address fetal alcohol syndrome as a defect.
Ms. Shettles testified about difficulties she had in communicating with trial counsel. Trial counsel did not return her telephone calls or respond to her letters. On August 22, 2000, shortly after meeting with the Petitioner and obtaining initial information about the case, Ms. Shettles wrote Lead Counsel and requested information that could have been helpful for obtaining records. Lead Counsel did not respond. Ms. Shettles met with Lead Counsel within two or three weeks of the original November trial date. According to Ms. Shettles's memorandum about the meeting, the trial date was scheduled for November 13, and the meeting occurred on November 9. Co-Counsel did not attend the meeting, even though Ms. Shettles had requested that he do so. During the meeting, Lead Counsel informed Ms. Shettles that he intended to call Dr. Steinberg and the Petitioner as witnesses. Lead Counsel did not ask Ms. Shettles to complete any additional tasks.
Ms. Shettles testified that the Petitioner sent a letter to her and Mr. Chapman, stating that he was concerned because he did not know what evidence would be presented. The Petitioner said he was unaware of the trial strategy and did not have any contact with Lead Counsel. When Ms. Shettles met with Lead Counsel, he informed her that he planned to meet with the Petitioner that upcoming Saturday. Ms. Shettles and Mr. Chapman visited the Petitioner on Sunday and learned that Lead Counsel had not met with him.
Ms. Shettles testified that she never met with Co-Counsel and that Mr. Chapman had a better relationship and rapport with Co-Counsel. Mr. Chapman told Ms. Shettles that he communicated with Co-Counsel because Lead Counsel would not return his calls. Ms. Shettles later learned from Mr. Chapman that the Petitioner's trial had been continued to March 2001.
Ms. Shettles testified that she interviewed several family members and was the primary contact for the family. Through her interviews, she learned that the Petitioner's mother drank alcohol during her pregnancy. The primary source of that information was the Petitioner's first cousin, Willie Mae Avery, who was at least twenty years older than the Petitioner. Ms. Shettles met with Ms. Avery on one occasion and may have spoken with her briefly on the telephone. Ms. Avery passed away in 2006. Ms. Shettles described the Petitioner's family as extremely cooperative. She informed family members that they may be called to testify, and no one objected. Ms. Shettles learned that the Petitioner's father was a heroin addict. She said a history of drug and alcohol abuse on both sides of a family made a person more likely to have substance abuse problems.
Ms. Shettles testified that she interviewed Warden Wayne Douglas, whom she had known for many years. Warden Douglas had worked at Fort Pillow Prison, and Ms. Shettles questioned him regarding the Petitioner's issues in prison. The Petitioner respected Warden Douglas both personally and professionally and thought he would be a very credible witness. Ms. Shettles did not recall the warden's suggesting that his testimony would negatively impact the Petitioner. The warden planned to testify about an award the Petitioner had won in a contest during Black History Month, and Ms. Shettles recommended that trial counsel present Warden Douglas as a witness. Ms. Shettles said Warden Douglas had no reservations about testifying and that he "would not gloss over" any negative aspects in the Petitioner's disciplinary record. Ms. Shettles thought Warden Douglas could have explained the issues that existed in prison and prisoners' experiences, especially for the length of time the Petitioner had been incarcerated.
Ms. Shettles testified that she contacted Leon Brown, the Petitioner's former employer, who described the Petitioner as an excellent employee. Mr. Brown had a contract with the City of Memphis to clean the Cook Convention Center. The contract changed to require criminal background checks. When Mr. Brown told the Petitioner about the new requirement, the Petitioner said he would not be able to pass a criminal background check and informed Mr. Brown about his criminal history. Mr. Brown was "shocked" when he learned that the Petitioner had been charged with killing the victim. On January 17, 1999, the Petitioner had been involved in an incident with the victim. Ms. Shettles learned about the incident from the Petitioner and the police incident report.
Ms. Shettles testified that one of her roles in capital cases was to prepare witnesses to testify. However, trial counsel did not ask Ms. Shettles to prepare witnesses to testify in this case. Ms. Shettles said she made it clear that she was willing to help trial counsel in any way, but she did not think she specifically told trial counsel that she could prepare witnesses for trial.
Ms. Shettles testified that she never discussed the Petitioner's social history or her concerns about fetal alcohol syndrome with Dr. Steinberg. Dr. Steinberg requested the records and the discovery materials from Ms. Shettles. Ms. Shettles said that Dr. Steinberg wanted to know whether the Petitioner had given a statement to the police and that she was not provided with any statement. Ms. Shettles never received a copy of Dr. Steinberg's report. She said that when she first began working on a case, she determined what counsel considered her role to be. Some attorneys welcomed her input, and some attorneys rarely communicated with her. Ms. Shettles said that she had no communication with Lead Counsel and that she assumed he did not want her input or help. Ms. Shettles was unaware of the theory of defense in this case and said that trial counsel did not discuss with her any theory related to either phase of the trial.
Ms. Shettles testified that following her meetings with Lead Counsel and the Petitioner, her only other task was to deliver a subpoena to Glenda Williams. Once the trial was continued, trial counsel never contacted her again. Ms. Shettles sent a letter to trial counsel asking them whether they wanted her to complete any other tasks, but she did not receive a response.
Ms. Shettles testified that the mitigation investigation of the Petitioner's case was not adequately funded. She originally requested $18, 000 at $65 per hour. She based her request upon her investigation in other cases and from the standard recommended at training. The total amount the trial court originally approved was $5, 000. Ms. Shettles's investigation exceeded that amount.
Ms. Shettles testified that on November 28, 2000, she wrote trial counsel a letter regarding information that the Petitioner had requested she provide to them. Ms. Shettles informed trial counsel that Angela Chillis, who had been the Petitioner's parole officer, was no longer in the office but that Susan Shettlesworth could be used as a witness if they needed her. Ms. Shettles also asked trial counsel whether they wanted her to complete any other tasks and informed them that the funds granted by the trial court had been depleted. Ms. Shettles never received a response from trial counsel. She said she also told Lead Counsel that he would be required to subpoena the probation and parole records in order to obtain them.
Ms. Shettles testified that on January 30, 2001, she wrote trial counsel a letter and enclosed an affidavit requesting payment for monies that had exceeded the original $5, 000 granted by the trial court. She noted in the letter that she had not spoken with trial counsel since the trial had been continued and that she assumed they did not need her to complete any additional tasks because she had not heard from them. In March 2001, Ms. Shettles wrote a letter to Lead Counsel informing him that she had learned of the outcome of the trial in the newspaper. She reiterated in the letter that her funds had been exhausted and that she assumed Lead Counsel had not requested any additional funds for her. She asked for payment for services in excess of the original $5, 000 and attached an invoice for the time after the money had been depleted, which began on October 27, 2000.
On cross-examination, Ms. Shettles testified that the Administrative Office of the Courts (AOC) ultimately decided the amount of money she should receive. The AOC could limit the amount and may have done so. Ms. Shettles said the AOC had limited amounts in other cases when it did not consider all of the funds necessary. She said it was unusual, though, for no effort to be made to obtain additional funds after the initial funds were expended.
Ms. Shettles testified that she did not remember whether she had any other conversations with Dr. Steinberg after November 2000. She did not recall them discussing the substance of her work or the records. Dr. Steinberg had the benefit of the social history she prepared.
Ms. Shettles testified that the Petitioner discussed his drug abuse with her. She said she knew he was abusing cocaine and thought he was abusing alcohol and marijuana. Ms. Shettles thought the Petitioner had access to many drugs around the time of the offense. The victim had suspected that the Petitioner used cocaine during a prior altercation.
Ms. Shettles testified that she did not recall discussing the offense at length with the Petitioner. The Petitioner did not deny killing the victim. Rather, the issue involved the factors and events that led up to the killing.
Ms. Shettles testified that the Petitioner's family members were cooperative. They informed her of the Petitioner's background and his family's background. She obtained the Petitioner's prison and school records. Ms. Shettles had information about family members who were deceased. She reviewed information regarding the alcohol and addiction history of other family members. She submitted the information to trial counsel and Dr. Steinberg.
Ms. Shettles testified that although her meeting with Lead Counsel lasted for approximately one hour, the time was not devoted entirely to the case because another client walked in during the meeting. Ms. Shettles attempted to determine trial counsel's strategy and wanted to suggest family members who would testify. Lead Counsel told her that he had not allowed sufficient time for Dr. Steinberg to testify in the guilt phase. As a result, he planned to present both Dr. Steinberg and the Petitioner as witnesses during the penalty phase.
Ms. Shettles testified that she spoke with Co-Counsel over the telephone two days before her meeting with Lead Counsel. She told him that she would like to meet, and he agreed. She said that Co-Counsel was "running for judge" at the time and that she never heard from him.
On redirect examination, Ms. Shettles testified that the Petitioner told her that he never used cocaine before his release from prison. Ms. Shettles did not know what trial counsel did with the records and the information that she provided. She received no communication, instructions, or direction from trial counsel.
Ms. Shettles testified that John Black was a well-known gangster and drug dealer in Memphis. Mr. Black and the Petitioner's father had grown up together and were very good friends. Ms. Shettles said Mr. Black was present in the Petitioner's life.
Sergeant William Ashton of the Memphis Police Department testified that he was the case coordinator and prepared a supplemental report on January 24, 1999. According to the report, the Petitioner came to the police department to turn himself in. After the Petitioner gave a written statement, he was taken to jail and booked. The Petitioner requested that he be placed on suicide watch. Sergeant Ashton said it was possible the Petitioner attempted to turn himself in to police the day before but was turned away and told to return the following day because no one was there. After taking the Petitioner's statement, Sergeant Ashton began the process of charging the Petitioner.
Sergeant Ashton testified that he prepared a supplemental report dated January 25, 1999, reflecting a meeting he had with Assistant Attorney General Ken Roach. According to the report, General Roach requested that Sergeant Ashton obtain the Petitioner's criminal record before General Roach decided how to the charge the Petitioner. After Sergeant Ashton provided General Roach with the Petitioner's criminal history, General Roach signed the Attorney General's Authorization to Charge form, charging the Petitioner with second degree murder. Sergeant Ashton said General Roach's request for the Petitioner's criminal record was not unusual. Sergeant Ashton then prepared an affidavit of complaint charging the Petitioner with second degree murder. The information in the affidavit was based on the Petitioner's statement and the information obtained from the ongoing investigation.
Sergeant Ashton testified that Assistant District Attorney General Jerry Harris spoke with him about changing the charge to first degree murder and determined that a charge of first degree murder was more appropriate. Assistant District Attorney General Jennifer Nichols instructed Sergeant Ashton on how to complete the new arrest ticket, and the charge was changed to first degree murder on January 26, 1999. Sergeant Ashton did not recall whether it was the first time that he had changed a charge in a case and completed a new arrest ticket and a new affidavit of complaint. He said the information in both affidavits of complaint was true.
Sergeant Ashton testified that he was unaware of the Petitioner's medical history. He understood that the Petitioner previously had been charged with second degree murder after he killed a drug dealer from whom he was trying to purchase drugs. Sergeant Ashton did not know when that offense occurred. Sergeant Ashton identified the law incident table in which an officer had suspected the Petitioner of using alcohol. Sergeant Ashton denied entering the notation but said another officer may have done so. Sergeant Ashton did not recall speaking with trial counsel before trial.
Dr. Gregory James Davis, the Director of the Forensic Consultation Services for the Department of Pathology and Laboratory Medicine at the University of Kentucky College of Medicine, testified as an expert in forensic pathology that he was asked to assess the case from the perspective of the injuries sustained by the victim, examine the testimony regarding the period of time that those injuries may have been sustained, and determine whether he agreed with the opinions of Ms. Sutton and Dr. Smith. Dr. Davis reviewed Dr. Smith's autopsy report, color photographs of the crime scene, crime scene diagrams, the Petitioner's statement to police, and the transcript of the testimony of Dr. Smith and Ms. Sutton.
Dr. Davis testified that the amount of time the Petitioner attacked the victim could not be determined. Testimony at trial had suggested that the attack lasted a minimum of six minutes due to a conclusion that some of the blood spatter was clotted blood. However, Dr. Davis found no scientific basis to state that the attack lasted six minutes or more. While he acknowledged that the attack could have occurred for more than six minutes, he said it was equally possible that the attack occurred for a much shorter period of time, such as thirty seconds to one minute. He did not think any scientific method existed to discern one way or the other.
Dr. Davis testified that he did not understand testimony at trial that a blood clot had spattered onto a wooden surface. From the photographs, he saw blood spatters that would have been liquid blood that subsequently clotted. Although Ms. Sutton testified that blood required six minutes to clot in a clinical scenario, the crime scene was not a clinical scenario. Dr. Davis explained that blood could coagulate rapidly when it hit a surface. He noted that the victim sustained severe head trauma that would have released thromboplastin into her system, causing the blood to clot extremely quickly.
Dr. Davis testified that based upon his review of the photographs of the blood, he did not know the time span over which the assault occurred and did not think the time span could be determined. He said that while the attack could have occurred over a period of minutes, it easily could have occurred for one-half of a minute. Dr. Davis did not think there was any way to conclude that the blood clotted before it was "cast off" and landed on a different surface. He said it was equally plausible that large droplets of liquid blood landed on the surface and coagulated.
Dr. Davis testified that thromboplastin was a tissue factor that was extremely concentrated in the brain and interacted with blood following a head injury, causing the blood to clot more rapidly. Dr. Davis said that due to the extent of the victim's head trauma, it was highly likely that the thromboplastin mixed with the projected blood. He also said that regardless of the existence of thromboplastin, he found no evidence that the blood was clotted before it was cast off and struck the surfaces.
Dr. Davis testified that he had never encountered an attempt to determine the minimum length of time of an assault based upon the amount of time that blood clotted in a clinical setting. He said that a six-minute determination was not a reasonable medical conclusion and that "I don't know" would have been a more reasonable assertion in this case. Dr. Davis said, "I'm not saying it's out of the bounds of possibility, I'm just saying I've never seen it or heard of it." He had never read peer-reviewed or non-peer-reviewed literature addressing the subject.
Dr. Davis testified that expiratory blood, or blood upon exhaling, was common in people who experienced trauma. The victim had basilar skull fractures that caused blood to aspirate into her windpipe. Dr. Davis said blood could come out of the mouth and/or nose even after the person lost consciousness but continued to breathe for a period of time. He did not think that the presence of blood in the victim's windpipe was relevant to the case and stated that it only meant she breathed for a period of time after sustaining the injuries. The evidence of blood did not relate to her state of consciousness during that time.
Dr. Davis testified that he disagreed with Dr. Smith's testimony that the victim swallowed thirty-six to thirty-seven times. Dr. Davis saw no evidence supporting Dr. Smith's conclusion. He explained that in head trauma cases, he often saw up to 400 millimeters of blood in the stomach or windpipe. In any case with basilar skull fractures, blood began escaping into the windpipe immediately. Physical swallowing or breathing of the blood in the nature of thirty-six to thirty-seven swallows was not required. Dr. Davis said an estimate of fifteen millimeters per swallow as provided by Dr. Smith was more precise than science allowed.
Dr. Davis noted that Ms. Sutton testified that the victim sustained a minimum of five blows, while Dr. Smith testified that the victim sustained a conservative estimate of thirteen blows. Dr. Davis said the discrepancy in their testimony was understandable because one blow to the head could appear as multiple blows due to the irregular surface of the head. Dr. Davis said that either the testimony of Dr. Sutton or Dr. Smith regarding the number of blows was plausible. The multiple blows could have occurred quickly.
Dr. Davis testified that based upon the extent of the victim's skull and brain injuries, he agreed with Dr. Smith's conclusion that the victim was unconscious when she fell to the floor. The non-specific pattern of blood spatter on her hands did not reveal any information to Dr. Davis. Rather, the blood spatter showed that the surfaces of the victim's hands were exposed to blood when the victim was struck. The positions of the victim's hands and head did not reveal any information to Dr. Davis regarding her consciousness or unconsciousness.
Dr. Davis testified that the evidence did not support the claim that the Petitioner had to straddle the victim to prevent her from moving her arms. Dr. Davis said that while the Petitioner could have had his knees on the victim's arms to restrain their movement, there was no evidence he did so. Dr. Davis did not think such information could be obtained by forensic science.
Dr. Davis testified that he did not review any evidence suggesting that the victim was conscious throughout the attack. He said that while the victim was conscious before the attack, there was no way to determine whether she was rendered unconscious following the first or second blow. He said that while her basilar skull fractures and other injuries indicated that she lost consciousness rapidly, Dr. Davis could not provide an "exact second to second time."
On cross-examination, Dr. Davis testified that he visited crime scenes on "rare occasions." He acknowledged that visiting a crime scene allowed the forensic expert to view the body, the circumstances, and the surroundings before reaching a conclusion. While Dr. Davis was perplexed by some of Dr. Smith's conclusions, he did not speak with Dr. Smith about the case or go to the medical examiner's office to review the file. Instead, he only reviewed the materials that were sent to him. He acknowledged that the autopsy report was not the entire autopsy file. The autopsy would have included a number of photographs of tissue injuries and possibly samples that had been retained.
Denise Oher, the Petitioner's sister, testified that she was two years younger than the Petitioner and three years older than her other brother, Albert Riley. Ms. Oher did not have a close relationship with her mother, Ilene Riley. When Ms. Oher was a child, she lived with her grandmother, along with her two brothers, her mother, an aunt, and her aunt's children. Seven to nine people lived in a house with a living room, one bedroom, a kitchen, and one bathroom. Ms. Oher said her grandmother cared for her and ensured that she had enough to eat. Ms. Oher did recall her mother being present during that time.
Ms. Oher testified that when she was eight or nine years old, her grandmother died and that her family "broke up" as a result. Ms. Oher, her mother, and her two brothers moved down the street to a "rooming house" with different apartments. Their living area consisted of one large room, a kitchen, and a bathroom. Ms. Oher, her mother, and her brothers all slept on a "laid out couch." After some time, Ms. Oher's stepfather, Walter Turner, moved in with them.
Ms. Oher testified that Mr. Turner was a "mean man." Both he and Ms. Riley were intoxicated most of the time and fought often in front of Ms. Oher and her brothers. Ms. Oher said that when Mr. Turner became intoxicated, he would wake her and her brothers and beat them. She said the beatings seemed to occur on a nightly basis. Ms. Oher recalled that Mr. Turner appeared to be harder on the Petitioner and beat him with an electrical cord on one occasion. On other occasions, Mr. Turner beat them with a belt or his hand. At the time, Ms. Oher was eight or nine years old, and the Petitioner was ten or eleven years old. The Petitioner was small for his age, and Ms. Oher may have been taller than him.
Ms. Oher testified that she did not recall food being available when she lived with her mother and Mr. Turner. Ms. Oher and her brothers would escape to a shed in the back of their home and hide and sleep. Her mother and Mr. Turner never missed them when they hid. Ms. Oher recalled that Mr. Turner attempted to sexually assault her on one occasion while he was intoxicated but that she managed to escape from him.
Ms. Oher testified that at age ten or eleven, she and the Petitioner were placed in Goodwill Home for Children and remained there for two years. While at the foster home, Ms. Oher and the Petitioner attended school daily and lived in a more stable environment. Ms. Oher could not recall attending school when she lived with her mother. Anna Clark, a social worker, ensured that the children had everything they needed. Ms. Oher said she also had a good relationship with Delores Rose, a secretary, and continued to see her regularly after Ms. Oher left Goodwill Home.
Ms. Oher testified that after she left Goodwill Home, she returned to live with her mother, while the Petitioner lived with his father. The Petitioner's father had a girlfriend, who had twelve or thirteen children. When Ms. Oher visited the home of the Petitioner's father, she also visited those children. Ms. Oher was unaware of the Petitioner's getting into trouble during that time period because she was not with him often. The Petitioner associated with a different group of people. Ms. Oher recalled that the Petitioner's nickname was "Skillet" and that he got the nickname when was thirteen years old or younger.
Ms. Oher testified that she knew the victim and thought the Petitioner and the victim were in a relationship for seven or eight years. They were in a relationship before the Petitioner was incarcerated for other offenses, and the Petitioner moved in with the victim following his release from prison. Ms. Oher visited the victim's home and attended a family gathering in the victim's backyard. The victim had one daughter and two sons, and the victim's sons did not appear to like the Petitioner.
Ms. Oher testified that she had thirteen children, two of whom were deceased. She had a history of alcohol and drug problems and received treatment and counseling. Ms. Oher said no one from the Petitioner's defense team contacted her before trial and that she would have testified if she they had asked her to do so.
Anna Clark, a case worker at Goodwill Home, testified that the Petitioner and Ms. Oher were sent to Goodwill Home by court order due to lack of supervision by a parent. Thelma Bush, a case worker from juvenile court, assisted in placing the Petitioner and Ms. Oher at Goodwill Home. Ms. Clark said Goodwill Home only accepted African-American children. At that time, other institutions in the city did not accept African-American children.
Ms. Clark testified that the staff at Goodwill Home was primarily female. The employees were very supportive of the children and cared for them as if the children were their own. The children received breakfast every day and were transported to school and field trips. The staff attempted to provide the children with everything they did not receive from their natural parents.
Ms. Clark testified that the Petitioner's and Ms. Oher's mother neglected them. The children did not have proper clothing, adequate food, or proper supervision. No emotional support or love was in their home. Ms. Clark described the Petitioner's mother as "selfish" and an alcoholic who was unable to care for her children properly. She remained with her "drinking buddies" rather than supervising her children. She took care of her needs first, which included drinking alcohol, and never visited the children while they were at Goodwill Home.
Ms. Clark testified that the Petitioner was a "normal" child in that he did not engage in any outstanding negative behavior. He got along well with the other children and was more of a follower than a leader. The Petitioner was more passive in his interactions with other children. The children called the Petitioner "Skillet." At some point, the Petitioner and Ms. Oher returned to their mother. Ms. Clark did not think that was wise or that their mother had changed. Ms. Clark was living in Memphis in 2001, but the Petitioner's defense team did not contact her. She said she would have testified if had she been requested to do so.
Dolores Rose testified that she had been employed at Goodwill Home since 1962 and recalled the Petitioner and Ms. Oher. At that time, twenty to thirty children were housed in one building. After the Petitioner and Ms. Oher left Goodwill Home, the facility was expanded to house approximately forty children. The home was a family-like setting, and the staff treated the children as family.
Ms. Rose testified that the Petitioner and Ms. Oher had been removed from their home due to neglect. She thought their mother associated with people who primarily partied and drank alcohol. Ms. Rose described the Petitioner's mother as a good person who abused alcohol. She recalled occasions in which the Petitioner and Ms. Oher were unable to attend weekend visits with their mother because no one was home. Thelma Bush, who worked in the juvenile court system, placed the Petitioner and Ms. Oher in Goodwill Home. Ms. Rose said Ms. Bush was alive in 2001 and would have been available for trial counsel to interview.
Ms. Rose testified that the Petitioner was a "normal" boy who did "normal boy pranks and things like that." He was not a troublemaker but a follower. Ms. Rose said the Petitioner's records from Goodwill Home were destroyed in a flood but would have been available at the time of trial in 2001.
Ms. Rose testified that she had contact with the Petitioner and Ms. Oher as adults. She was aware of Ms. Oher's drug problem and saw her under the influence on occasion. She was unaware of the Petitioner's problems. Ms. Rose said that when she saw the Petitioner after she had not seen him for some time, he told her that he had been incarcerated. Ms. Rose saw the Petitioner and the victim at a grocery store shortly after they were married, and they seemed happy. Ms. Rose stated that no one from the Petitioner's defense team contacted her and that she would have been willing to testify.
Glenda Williams, the Petitioner's cousin, testified that she was three years older than the Petitioner and had known him all of his life. Her mother was Willie Mae Avery. When Ms. Williams and the Petitioner were children, they lived with the Petitioner's grandmother, Clara Riley, and the Petitioner's mother, Ilene Riley. Ms. Oher was born two years later. Ilene Riley and Ms. Avery were close in age and drank alcohol together. The Petitioner weighed approximately three pounds when he was born. He seemed small for his age, and Ms. Williams looked out for him. Ms. Williams described the Petitioner as a follower rather than a leader. Following Clara Riley's death, Ms. Williams and her mother moved in with Ms. Williams's grandmother. The Petitioner and his family remained in Clara Riley's home for approximately one month. Ms. Williams lived about fifteen to twenty minutes away but continued to see the Petitioner daily. Ilene Riley then moved and took her children with her.
Ms. Williams testified that Ilene Riley lacked "motherly instincts." She told her children to "shut up" and did not know how to "cuddle." Ms. Williams said Ms. Riley was more interested in herself than her children, drank alcohol, and did not spend time with the children or help them with their homework. Ms. Williams stated that when she was thirteen years old, Ms. Riley gave her a jar of corn liquor and told her to drink it. Ms. Williams drank the liquor and choked.
Ms. Williams testified that the Petitioner and his siblings visited her at her grandmother's home and that her grandmother fed them. Her grandmother then sent the children home. On occasion, the Petitioner and his siblings returned because no one was at their home and they could not get into the house. Ms. Williams's grandmother allowed them to spend the night and sent them home the following morning.
Ms. Williams testified that the Petitioner and his siblings told her that their mother threw shoes at them, hit one of them with a broom, and injured one of their arms. Walter Turner, the Petitioner's stepfather, beat the children. The Petitioner and Ms. Oher were removed from the home and lived at Goodwill Home. After they left Goodwill Home, the Petitioner lived with his father, and Ms. Oher lived with Ms. Williams.
Ms. Williams testified that following the Petitioner's release from prison in 1997, he lived with her. The Petitioner had been dating the victim before he was incarcerated. The Petitioner moved out of Ms. Williams's home and moved in with the victim in a home located in North Memphis. Ms. Williams said she did not want the Petitioner to live with the victim. She explained that the Petitioner was raised in North Memphis and had gotten into trouble there. Ms. Williams lived in East Memphis and thought the Petitioner needed something different in his life.
Ms. Williams testified that the North Memphis neighborhood in which she and the Petitioner were raised was "terrible." When they were children, they witnessed violence in the neighborhood. Before age eleven, Ms. Williams saw people cut and shot. One time, she saw a man in the neighborhood lying in a gutter with his intestines exposed.
Ms. Williams testified that the Petitioner and the victim separated in December 1998 or January 1999. The Petitioner moved in with his paternal grandmother in North Memphis. Ms. Williams visited the Petitioner at his grandmother's house on occasion. She said that although they were separated, the victim also visited the Petitioner at the home, did his laundry, and brought him dinner.
Ms. Williams testified that on the day of the victim's death, the Petitioner called her and asked her to pick him up and drive him to her home. The Petitioner told Ms. Williams that he did not "feel right" and needed to get away. The Petitioner said he was not sick but felt "bad." The Petitioner sounded depressed. A storm was coming, so Ms. Williams told the Petitioner to wait and see about the weather. Ms. Williams explained that she did not want to drive in a storm and that her car was not operating well at that time. The Petitioner telephoned Ms. Williams several times that day. During his last call, the Petitioner told Ms. Williams not to come. The Petitioner said the victim had called him and asked him ...