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Davidson v. State

Supreme Court of Tennessee, Nashville

November 17, 2014

JERRY RAY DAVIDSON
v.
STATE OF TENNESSEE

Session February 5, 2014.

As Corrected May 8, 2015.

Page 387

[Copyrighted Material Omitted]

Page 388

Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Criminal Appeals Affirmed in Part; Reversed in Part. Appeal by Permission from the Court of Criminal Appeals Circuit Court for Dickson County. No. CR-7386. Robert E. Burch, Judge.

Judgment of the Court of Criminal Appeals Affirmed in Part; Reversed in Part.

Kelly A. Gleason and Sarah R. King, Office of the Post-Conviction Defender, Nashville, Tennessee, for the appellant, Jerry Ray Davidson.

Robert E. Cooper, Jr., Attorney General and Reporter, William E. Young, Solicitor General, and Jeffrey D. Zentner, Assistant Attorney General; Dan Alsobrooks, District Attorney General and Robert S. Wilson, Assistant District Attorney General, for the appellee, State of Tennessee.

WILLIAM C. KOCH, JR., J., delivered the opinion of the Court, in which SHARON G. LEE, C.J., JANICE M. HOLDER, and CORNELIA A. CLARK, JJ., joined. GARY R. WADE, J., filed an opinion concurring in part and dissenting in part.

OPINION

WILLIAM C. KOCH, JR., JUSTICE.

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This post-conviction appeal addresses the extent of defense counsel's duty to present mitigation evidence during the penalty phase of a capital murder trial. Defense counsel in a capital case possessed evidence that their client suffered from severe lifelong cognitive impairments and personality disorders and that he was predisposed to sexual violence. However, during the defendant's trial, defense counsel presented the jury with no psychological mitigation evidence and only cursory social history mitigation evidence. A Dickson County jury convicted the defendant of premeditated first degree murder and imposed the death penalty. The jury also convicted the defendant of aggravated kidnapping, for which the defendant received a twenty-year sentence. Following unsuccessful

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direct appeals, State v. Davidson, 121 S.W.3d 600 (Tenn. 2003), the defendant filed a petition for post-conviction relief in the Circuit Court for Dickson County. Following a hearing, the post-conviction court denied the petition, and the Court of Criminal Appeals affirmed the post-conviction court's decision. Davidson v. State, No. M2010-02663-CCA-R3-PD, 2013 WL 485222 (Tenn. Crim. App. Feb. 7, 2013). We find that, under the circumstances of this case, defense counsels' failure to develop and present psychological mitigation evidence deprived their client of his right to effective assistance of counsel. While we uphold the client's convictions, we vacate his death sentence and remand for a new capital sentencing hearing.

I.

On the night of September 26, 1995, Virginia Jackson took a taxi cab to a bar in Dickson, Tennessee. When closing time approached, she found herself in need of a ride home. Jerry Ray Davidson, a convicted sex offender,[1] was also at the bar. He offered to give Ms. Jackson a ride home. She was never again seen alive.

On October 19, 1995, two deer hunters found Ms. Jackson's headless body partially buried in the woods a few miles from her house. Ms. Jackson's head was never recovered, and thus her cause of death could not be definitively determined. However, circumstantial evidence strongly suggested that Mr. Davidson had murdered her.

Mr. Davidson was arrested and indicted for kidnapping and murder. His trial counsel procured a set of Mr. Davidson's mental health records from the Tennessee Department of Correction (" TDOC Records" ). These records painted a dim picture, not only of Mr. Davidson's mental health, but also of his social and family history. They also showed that he had been evaluated and unsuccessfully treated during several previous incarcerations for sex crimes and that he had fantasies of raping and hurting women. Included in the records were warnings from those who had tried and failed to rehabilitate Mr. Davidson that he would be a serious danger to the public following his release from prison.

Before trial, Mr. Davidson spent twenty-seven days at the Middle Tennessee Mental Health Institute (" MTMHI" ), where he was observed and psychologically tested. His brain was scanned. Although the records from Mr. Davidson's stay at MTMHI (" MTMHI Records" ) acknowledge his mental illness and his troubled social history, his evaluators did not find that he was incompetent to stand trial or incapable of committing a premeditated murder.

Mr. Davidson's trial counsel obtained the trial court's authorization to hire a mitigation specialist and a neuropsychologist. The mitigation specialist reviewed many of Mr. Davidson's records and sent counsel a brief report highlighting the potential mitigation evidence contained in those records. The mitigation specialist also expressed concern that she lacked sufficient time to build an effective mitigation case.

Mr. Davidson's trial counsel also retained Dr. Pamela Auble to evaluate Mr. Davidson prior to trial. He provided Dr. Auble with Mr. Davidson's TDOC Records but not his MTMHI Records. Dr. Auble

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interviewed Mr. Davidson for three hours and performed several basic screening tests, but she did not have time to perform the neuropsychological tests she would have normally performed. Like the mitigation specialist, Dr. Auble wrote counsel a letter expressing her concern that she lacked adequate time to properly evaluate Mr. Davidson. Neither Dr. Auble nor the mitigation specialist testified at trial.

Mr. Davidson's trial occurred in August 1997, and a jury in the Circuit Court for Dickson County convicted him of first-degree premeditated murder and aggravated kidnaping. Mr. Davidson's trial counsel offered no clinical mental health evidence whatsoever during the guilt phase of his trial. He also presented no mitigating mental health evidence at the sentencing hearing. We previously summarized Mr. Davidson's mitigation evidence at sentencing as follows:

In mitigation, the defense presented the testimony of Davidson's mother, several of his co-workers, and his minister. Davidson's mother related that, as a child, he had lived with his grandparents and had not completed school because he was always in trouble with the law. She described her son as a quiet boy who had few friends. He had no contact with his father throughout his life. At some indefinite time in the past, he had spent one to two years at Central State Hospital for mental problems. Davidson's mother testified about how badly Davidson had taken his younger brother's death in Vietnam and how he had helped her at home. Next, several of Davidson's coworkers testified that he was a good worker, a good friend, and a nice, considerate man who would help anyone. They found Davidson's involvement in Jackson's murder inconsistent with his behavior when he was around them. The last witness for the defense was Joe Ingle, a minister, who described Davidson as quiet and passive, with an interest in the Bible's prophetic books and an openness to learning new things. Ingle opined that Davidson would not be a threat in prison and would participate in work or educational programs.

State v. Davidson, 121 S.W.3d at 610.

On September 3, 1997, the jury sentenced Mr. Davidson to death after finding that the State had proved three statutory aggravating circumstances beyond a reasonable doubt.[2] The Court of Criminal Appeals affirmed Mr. Davidson's convictions and sentences. State v. Davidson, No. M1998-00105-CCA-R3-CD, 2002 WL 15381 (Tenn. Crim. App. Jan. 7, 2002). In 2003, this Court, in a divided vote, upheld Mr. Davidson's conviction for first degree premeditated murder and his sentence of death, as well his conviction and sentence for aggravated kidnapping. State v. Davidson, 121 S.W.3d at 623.

On August 12, 2004, Mr. Davidson filed a petition for post-conviction relief. His primary allegation was ineffective assistance of counsel. The post-conviction court conducted several evidentiary hearings between 2006 and 2009 and on November 10, 2010, denied Mr. Davidson's petition for post-conviction relief. The Court of Criminal Appeals likewise denied post-conviction relief on each of Mr. Davidson's claims. Davidson v. State, No. M2010-02663-CCA-R3-PD, 2013 WL 485222 (Tenn. Crim. App. Feb. 7, 2013).

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We granted Mr. Davidson permission to appeal. Mr. Davidson raises numerous issues in his supplemental brief to this Court that were not raised in the Court of Criminal Appeals. We deem these new issues waived.

After carefully reviewing the record, we have concluded that Mr. Davidson was prejudiced at his sentencing hearing by his counsel's ineffective assistance because his counsel failed to give the jury any mitigating information regarding Mr. Davidson's intellectual and cognitive deficiencies. Withholding this mental health information stemmed more from counsel's superficial investigation than from a legitimate strategic choice. However, in all other respects we affirm and adopt the reasoning of the Court of Criminal Appeals. Although we uphold Mr. Davidson's convictions for first-degree premeditated murder and aggravated kidnapping, we vacate Mr. Davidson's death sentence and remand the case to the trial court for a new capital sentencing hearing.

This case provides an opportunity to clarify the standards that capital defense attorneys must meet in order to provide effective representation at sentencing. Accordingly, we will begin by reviewing the standards used to assess the effectiveness of counsel's representation, with particular emphasis on the discovery and use of mitigation evidence in capital cases. We will then review the relevant facts from the post-conviction record and explain why this case warrants a new sentencing hearing.

II.

This claim has been brought under Tennessee's Post-Conviction Procedure Act, Tenn. Code Ann. § § 40-30-101 to -122 (2012 & Supp. 2014). The Act directs Tennessee's courts to grant post-conviction relief to a person " in custody" whose " conviction or sentence is void or voidable because of the abridgement of any right guaranteed by the Constitution of Tennessee or the Constitution of the United States." Tenn. Code Ann. § § 40-30-102, -103. Mr. Davidson alleged in his post-conviction petition that his constitutional right to effective assistance of counsel had been abridged. The post-conviction court and the Court of Criminal Appeals found that Mr. Davidson had not proved that he received ineffective assistance of counsel.

A post-conviction petitioner bears " the burden of proving the allegations of fact by clear and convincing evidence." Tenn. Code Ann. § 40-30-110(f); see also Tenn. S.Ct. R. 28, § 8(D)(1). In this case, the facts are not materially in dispute. The question we must consider is whether the undisputed facts concerning trial counsel's pursuit and presentation of mitigation evidence show that counsel's performance was constitutionally deficient and prejudicial. Both prongs of this analysis involve mixed questions of law and fact -- questions this Court reviews de novo without any presumption that the court below was correct. Strickland v. Washington, 466 U.S. 668, 698, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Calvert v. State, 342 S.W.3d 477, 485 (Tenn. 2011); see also Williams v. Taylor, 529 U.S. 362, 419, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (Rehnquist, C.J., concurring in part and dissenting in part).

Article I, section 9 of the Tennessee Constitution establishes that every criminal defendant has " the right to be heard by himself and his counsel." The Sixth Amendment to the United States Constitution likewise guarantees that all criminal defendants " shall enjoy the right . . . to have the [a]ssistance of [c]ounsel." These constitutional provisions have been interpreted to guarantee a criminal defendant the right to the " effective assistance of

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counsel" at trial. Strickland v. Washington, 466 U.S. at 686; Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975).

To prevail on a claim of ineffective assistance of counsel, a petitioner must prove both that counsel's performance was deficient and that the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. at 687; Felts v. State, 354 S.W.3d 266, 276 (Tenn. 2011). A court need not address both prongs if the petitioner fails to demonstrate either one of them. Strickland v. Washington, 466 U.S. at 697; Garcia v. State, 425 S.W.3d 248, 257 (Tenn. 2013).

Deficient performance means that " counsel's representation fell below an objective standard of reasonableness." Strickland v. Washington, 466 U.S. at 688. To determine reasonableness, a reviewing court must consider the " professional norms" prevailing at the time of the representation. Strickland v. Washington, 466 U.S. at 688; see also Baxter v. Rose, 523 S.W.2d at 932-33. Counsel's performance is not deficient if the advice given or the services rendered " are within the range of competence demanded of attorneys in criminal cases." Baxter v. Rose, 523 S.W.2d at 936. In Strickland v. Washington, the United States Supreme Court explained that

strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments.

Strickland v. Washington, 466 U.S. at 690-91.

Therefore, we begin our review with the strong presumption that counsel provided adequate assistance and used reasonable professional judgment to make all strategic and tactical significant decisions. The petitioner bears the burden of overcoming this presumption. Strickland v. Washington, 466 U.S. at 690; see also Burt v. Titlow, 571 U.S. , , 134 S.Ct. 10, 17, 187 L.Ed.2d 348 (2013); State v. Burns, 6 S.W.3d 453, 462 (Tenn. 1999). Reviewing courts should resist the urge to evaluate counsel's performance using " 20-20 hindsight." Mobley v. State, 397 S.W.3d 70, 80 (Tenn. 2013) (quoting Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982)); see also Strickland v. Washington, 466 U.S. at 689 (instructing reviewing courts to try " to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time" ).

The second prong of Strickland concerns whether counsel's deficient performance " prejudiced" the defendant. The question under this prong is " whether counsel's deficient performance renders the result of the trial unreliable or the proceeding fundamentally unfair." Lockhart v. Fretwell, 506 U.S. 364, 372, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993) (citing Strickland v. Washington, 466 U.S. at 687). To prove prejudice, the petitioner must establish " a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding

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would have been different." Strickland v. Washington, 466 U.S. at 694. A " reasonable probability" is a lesser burden of proof than " a preponderance of the evidence." Williams v. Taylor, 529 U.S. at 405-06; Pylant v. State, 263 S.W.3d 854, 875 (Tenn. 2008). A reasonable probability is " a probability sufficient to undermine confidence in the outcome." Strickland v. Washington, 466 U.S. at 694; see also Vaughn v. State, 202 S.W.3d 106, 116 (Tenn. 2006); Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996).

In death-penalty cases, the right to effective assistance of counsel extends beyond the guilt-and-innocence phase of the trial. We have said that courts must be

particularly cautious in preserving a defendant's right to counsel at a capital sentencing hearing. The Eighth and Fourteenth Amendments to the United States Constitution mandate that a death sentence be based on a particularized consideration of relevant aspects of the character and record of each defendant. In this respect, evidence about the defendant's background and character is relevant because of the belief that defendants who commit criminal acts that are attributable to a disadvantaged background, or to emotional and mental problems may be less culpable than defendants who have no such excuse. Thus, although there is no requirement that defense counsel present mitigating evidence in the penalty phase of a capital trial, counsel's duty to investigate and prepare for a capital trial encompasses both the guilt and sentencing phases. [Defense attorneys who anticipate a capital sentencing hearing possess a] greater duty of inquiry into a client's mental health . . . [C]ounsel may not treat the sentencing phase as nothing more than a mere postscript to the trial.

Goad v. State, 938 S.W.2d at 369-70 (citations, ellipses, and quotation marks omitted). At the sentencing hearing, the jury hears new evidence and new arguments to help the jury determine whether to impose death by execution, lifetime imprisonment without parole, or a life sentence. See Williams v. Taylor, 529 U.S. at 393; Tenn. Code Ann. § 39-13-202 (2014).

Because mitigation evidence is often a critical component in a capital sentencing trial, the United States Supreme Court has held that the Constitution requires that " the sentencer in capital cases must be permitted to consider any relevant mitigating factor." [3] Porter v. McCollum, 558 U.S. 30, 42, 130 S.Ct. 447, 175 L.Ed.2d 398 (2009) (quoting Eddings v. Oklahoma, 455 U.S. 104, 112, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982)). Under the Eighth Amendment's " cruel and unusual punishments" clause, the death penalty is only appropriate for the worst murderers. Roper v. Simmons, 543 U.S. 551, 568, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005) (" Capital punishment must be limited to those offenders who commit 'a narrow category of

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the most serious crimes' and whose extreme culpability makes them 'the most deserving of execution.'" (quoting Atkins v. Virginia, 536 U.S. 304, 319, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002))). Tennessee law concomitantly requires capital sentencing juries to find beyond a reasonable doubt that the aggravating factors in the case outweigh any mitigating factors. Tenn. Code Ann. § 39- 13-204(f)(2).

Mitigation evidence includes facts about the defendant's personal makeup and life history. See Tenn. Code Ann. § 39-13-204(j) (listing types of mitigation evidence). This evidence often serves to humanize the defendant and reveals aspects of the defendant's life or inner workings that might affect the jury's assessment of the defendant's moral culpability for the crime. Again, mitigation evidence is critical " because of the belief, long held by this society, that defendants who commit criminal acts that are attributable to a disadvantaged background, or to emotional and mental problems, may be less culpable than defendants who have no such excuse." Penry v. Lynaugh, 492 U.S. 302, 319, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989) (quoting California v. Brown, 479 U.S. 538, 545, 107 S.Ct. 837, 93 L.Ed.2d 934 (1987) (O'Connor, J., concurring)); see also Zagorski v. State, 983 S.W.2d 654, 658 (Tenn. 1998).

Counsel representing a defendant in a capital case is not required to present mitigating evidence at sentencing in every case or to run down every conceivable line of potentially mitigating evidence. Wiggins v. Smith, 539 U.S. 510, 533, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003). However, for counsel's strategic and tactical choices to be entitled to deference, they must be " informed ones based upon adequate preparation." Goad v. State, 938 S.W.2d at 369. The United States Supreme Court has noted that " 'strategic choices made after less than complete investigation are reasonable' only to the extent that 'reasonable professional judgments support the limitations on investigation.'" Wiggins v. Smith, 539 U.S. at 533 (quoting Strickland v. Washington, 466 U.S. at 690-91). Accordingly, counsel's decision not to investigate or present mitigation evidence " must be directly assessed for reasonableness in all circumstances." Strickland v. Washington, 466 U.S. at 691.

Between 2000 and 2010, the United States Supreme Court has had several opportunities to address claims of ineffective assistance of counsel in the context of investigating and presenting mitigating evidence in capital proceedings. The Court noted that presenting some mitigating evidence does not " foreclose an inquiry into whether a facially deficient mitigation investigation might have prejudiced the defendant." Sears v. Upton, 561 U.S. 945, 130 S.Ct. 3259, 3266, 177 L.Ed.2d 1025 (2010). It also stated that its inquiry in these cases called for a " probing and fact-specific analysis" that included consideration of " the totality of the available mitigation evidence -- both that adduced at trial and the evidence adduced in the [collateral] proceeding." Sears v. Upton, 130 S.Ct. at 3266; see also Wiggins v. Smith, 539 U.S. at 527.

III.

We will now apply the principles identified in Goad v. State and those employed by the United States Supreme Court with regard to the presentation of mitigation evidence in capital cases. The following facts from Mr. Davidson's post-conviction record are relevant to the question ...


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