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Grogger v. State

Court of Criminal Appeals of Tennessee, Nashville

July 13, 2015


Assigned on Briefs at Knoxville June 23, 2015

Appeal from the Circuit Court for Overton County No. 5990 Leon C. Burns, Jr., Judge

Josh Hoeppner, Livingston, Tennessee, for the appellant, Shane Michael Grogger.

Herbert H. Slatery III, Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney General; Bryant C. Dunaway, District Attorney General; and Mark E. Gore, Assistant District Attorney General, for the appellee, State of Tennessee.

Timothy L. Easter, J., delivered the opinion of the Court, in which Alan E. Glenn and Robert H. Montgomery, Jr., JJ., joined.



This is an appeal from the Overton County Circuit Court's denial of Petitioner's petition for post-conviction relief.

Facts and Procedural Background

Petitioner was convicted of especially aggravated robbery, two counts of first degree murder, and two counts of abuse of a corpse for his involvement in the killing of Sandra and L.J. Looper in 2005. State v. Shane Michael Grogger, No. M2008-02015-CCA-R3-CD, at *1 (Tenn. Crim. App. Nov. 17, 2009), perm. app. denied (Tenn. Apr. 14, 2010). For these crimes, he received an effective sentence of life imprisonment plus fifteen years. Id. His convictions were upheld on direct appeal. Id.

On February 15, 2011, Petitioner filed a pro se petition for post-conviction relief. The post-conviction court entered a preliminary order appointing counsel, who filed an amended petition on May 21, 2014.[1] Petitioner claimed that his trial counsel provided ineffective assistance by failing to adequately investigate Petitioner's mental health and by failing to appeal the trial court's denial of a request for a jury instruction on accessory after the fact. The post-conviction court held an evidentiary hearing on July 25, 2014.

Dr. James Walker testified that he was the Director of Neuropsychology Consultants. He was a board-certified neurologist and forensic psychologist, and he was a licensed psychologist in four states. Dr. Walker had previously testified as an expert witness approximately 200 times, and the post-conviction court qualified Dr. Walker as an expert without objection from the State.

On March 21, 2014, Dr. Walker performed a forensic neuropsychological and psychiatric evaluation of Petitioner over the course of six or seven hours. He had previously performed "several hundred evaluations of criminal defendants, " including "about eighty capital murder cases" and "approximately twenty-five evaluations around the specific issue of false confessions." Dr. Walker was assisted by Dr. David Street, a forensic psychiatrist.

Post-conviction counsel asked Dr. Walker to evaluate Petitioner for mental health issues that may have been relevant to this case, including whether Petitioner had the capacity to make statements to law enforcement officials during their interrogations. Prior to and in preparation for the forensic neuropsychological and psychiatric evaluation, Dr. Walker reviewed Petitioner's medical records. He also reviewed the discovery information produced in Petitioner's criminal case, including descriptions of the crime scenes and the recordings of Petitioner's interrogations by law enforcement officials. Dr. Walker also reviewed the transcript of the trial and this Court's opinion in Petitioner's direct appeal. Dr. Walker's evaluation of Petitioner consisted of the administration of seven tests: Green's Medical Symptom Validity Test ("MSVT"), Mini Mental State Examination ("MMSE"), Wechsler Adult Intelligence Scale-IV ("WAIS-IV"), Repeatable Battery for the Assessment of Neuropsychological Status ("RBANS"), Trail Making Test ("TMT"), Personality Assessment Inventory ("PAI"), and Gudjonsson Suggestibility Scale ("GSS"). After the evaluation, Dr. Walker prepared a formal report of his findings and conclusions, which was entered as an exhibit at the evidentiary hearing.

Petitioner scored perfectly on the performance validity test, which Dr. Walker used to ascertain whether Petitioner was "faking" or attempting to distort his test results. Consequently, it was "very clear" to Dr. Walker that Petitioner was not trying to fake his performance during the evaluation.

The PAI is a questionnaire of 344 questions about symptoms of psychiatric problems. Petitioner acknowledged a serious problem with drugs in his past as well as current drug-related symptoms and problems. Petitioner described some difficulties with social detachment and described himself as suffering from a very severe and upsetting event in his past, which Dr. Walker believed to be the crimes in this case. Petitioner scored outside of the normal limits on the schizophrenia and drug abuse scales. These results suggested that Petitioner either "has no mental disorder, . . . has alcohol abuse, or . . . has a personality disorder." The test contained several validity questions designed to indicate if an examinee was faking, and Petitioner did not exhibit any ...

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