Session December 6, 2016
from the Criminal Court for Shelby County No. 91-07049 Don R.
Ash, Senior Judge
Petitioner, Richard Lloyd Odom, appeals the Shelby County
Criminal Court's denial of his petition for
post-conviction relief from his conviction of first degree
felony murder and resulting sentence of death. On appeal, the
Petitioner contends that he received the ineffective
assistance of counsel, raises various issues related to his
post-conviction evidentiary hearing, and challenges the
imposition of the death penalty. Having discerned no error,
we affirm the judgment of the post-conviction court.
R. App. P. 3 Appeal as of Right; Judgment of the Criminal
Jonathan King and Kertyssa Smalls, Assistant Post-Conviction
Defenders, for the appellant, Richard Lloyd Odom.
Herbert H. Slatery III, Attorney General and Reporter;
Zachary T. Hinkle, Assistant Attorney General; Amy P.
Weirich, District Attorney General; and Stephen Jones,
Assistant District Attorney General, for the appellee, State
McGee Ogle, J., delivered the opinion of the court, in which
Alan E. Glenn and Robert L. Holloway, Jr., JJ., joined.
McGEE OGLE, JUDGE
1991, the Petitioner raped and stabbed to death the elderly
victim in a Memphis parking garage. A Shelby County Criminal
Court Jury convicted him of first degree felony murder
committed during the perpetration of rape and sentenced him
to death based upon the finding of three aggravating
circumstances: (1) the Petitioner had been convicted of one
or more prior violent felonies; (2) the murder was especially
heinous, atrocious, or cruel; and (3) the murder was
committed during the Petitioner's escape from lawful
custody. Tenn. Code Ann. § 39-13-204(i)(2), (5), (8).
supreme court affirmed the Petitioner's conviction on
direct appeal but reversed his death sentence. State v.
Odom, 928 S.W.2d 18 (Tenn. 1996). The court concluded
that the trial court erred by excluding mitigating evidence
and in instructing the jury during sentencing. Id.
at 21. The court also concluded that the evidence did not
support the heinous, atrocious, or cruel and the escape
aggravating circumstances. Id. The case was remanded
for a new sentencing hearing. Id.
the second sentencing hearing, a jury again sentenced the
Petitioner to death. The jury found the existence of one
aggravating circumstance: the Petitioner had been convicted
of one or more prior violent felonies. Tenn. Code Ann. §
39-13-204(i)(2). On appeal of the death sentence, our supreme
court again ordered a new sentencing hearing. See State
v. Odom, 137 S.W.3d 572 (Tenn. 2004). The court
concluded that the trial court erroneously admitted detailed
and graphic evidence of the Petitioner's prior violent
felonies. Id. at 575.
conclusion of the third sentencing hearing, a jury again
sentenced the Petitioner to death. The jury found the
existence of two aggravating circumstances: (1) the
Petitioner had been convicted of one or more prior violent
felonies, and (2) the murder was committed during the
commission of a robbery. Tenn. Code Ann. §
39-13-204(i)(2), (7). Our supreme court affirmed the death
sentence on appeal. See State v. Odom, 336 S.W.3d
541 (Tenn. 2011).
the Petitioner timely filed a petition seeking
post-conviction relief. The Office of the Post-Conviction
Defender was appointed to represent the Petitioner and
amended the petition. Following an evidentiary hearing, the
post-conviction court issued a lengthy written order denying
relief. This appeal ensued.
following is a summary of the evidence of the crime from the
1992 guilt phase of the trial:
The record indicates that at approximately 1:15 p.m. on May
10, 1991, Ms. Mina Ethel Johnson left the residence of her
sister, Ms. Mary Louise Long, to keep a 2:30 p.m. appointment
with her podiatrist, Stanley Zellner, D.P.M. She agreed to
purchase a few groceries while she was out. Johnson had not
returned at 5 p.m.; this delay prompted Long to call Zellner.
He told Long that Johnson had not kept her appointment. As a
result of a subsequent call from Long, Zellner agreed to
return to his office and look for Johnson's car in the
parking garage. He located her car in the parking garage and
observed her body inside. He went immediately to the Union
Avenue police precinct and notified officers.
Investigating officers found Johnson's body on the rear
floorboard of her car with her face down in the back seat.
Her dress was up over her back, and an undergarment was
around her ankles. One of several latent fingerprints lifted
from the "left rear seat belt fastener" of
Johnson's car matched a fingerprint belonging to the
defendant, Richard Odom, alias Otis Smith.
The medical examiner testified that Johnson had suffered
multiple stab wounds to the body, including penetrating
wounds to the heart, lung, and liver. These wounds caused
internal bleeding and, ultimately, death. The medical
examiner noted "defensive" wounds on her hands.
Further examination revealed a tear in the vaginal wall and
the presence of semen inside the vagina. In the medical
examiner's opinion, death was neither instantaneous nor
immediate to the wounds but had occurred "rather
Three days after the incident, Sergeant Ronnie McWilliams of
the Homicide Unit, Memphis Police Department, arrested the
defendant. As a result of a search incident to arrest,
McWilliams confiscated a large, open, lock-blade knife from
the defendant. When they arrived at the homicide office,
McWilliams told the defendant of the charges against him and
read his Miranda rights to him. The defendant
executed a "Waiver of Rights" form, signing
"Otis Smith." A short time later he acknowledged
having identified himself falsely, executed a second rights
waiver by signing "Richard Odom" and gave
McWilliams a complete, written statement.
In his statement, the defendant said that his initial
intention was to accost Johnson and "snatch" her
purse after having seen her in the parking garage beside her
car. He ran to her and grabbed her; both of them fell into
the front seat. He then pushed her over the console into the
rear seat. He "cut" Johnson with his knife. Johnson
addressed him as "son." This appellation apparently
enraged the defendant; he responded that "[he] would
give her a son." He penetrated her vaginally; he felt
that Johnson was then still alive because she spoke to him.
Beyond the first wound, the defendant claimed not to have
remembered inflicting the other stab wounds. Thereafter, the
defendant climbed into the front seat and rifled through
Johnson's purse. He found nothing of value to him, except
the car keys, which he later discarded. He then went to an
abandoned building where he had clothing and changed clothes.
The defendant presented no evidence at this phase of the
trial. Based on the evidence above, the jury convicted the
defendant of first-degree murder committed in the
perpetration of rape.
Odom, 928 S.W.2d at 21-22.
following is a summary of the evidence from the 2007
At the third sentencing hearing, the State offered proof that
at approximately 1:15 p.m. on the date of her murder, the
victim, a seventy-eight-year-old woman, left the residence of
her sister, Mary Louise Long, for an appointment with Dr.
Stanley Zellner, a podiatrist. When the victim had not
returned by 4:30 p.m., Ms. Long called Dr. Zellner, who
informed her that the victim had failed to attend her
scheduled appointment. Ms. Long first telephoned the police
department to report the victim's disappearance and then
contacted John Sullivan, a long-time acquaintance, who agreed
to help look for the victim. The two "traced the
route" the victim had to drive and found her car in a
parking garage. When Sullivan approached the vehicle, he
observed the body of the victim on the floor of the backseat.
After returning to the car, he did not inform Ms. Long what
he had seen, explaining that "she was a very nervous,
high strung person." As he drove out of the parking
garage, Sullivan encountered a police car parked on a nearby
street and told the officer where he could find the body.
Sullivan then drove Ms. Long to her residence before
returning to the crime scene to provide the police with a
Donna Michelle Locastro, who was employed by the Memphis
Police Department at the time of the murder, had taken Ms.
Long's missing person's call prior to the discovery
of the body. She and her partner, Don Crowe, first called the
local hospitals, the city wrecker dispatch, and the traffic
bureau before setting out on the route the victim would have
driven to her appointment. The officers arrived at the
parking garage at approximately 8:00 p.m., shortly after
Sullivan had discovered the body. When Officer Locastro
looked inside the vehicle, she noticed what appeared to be
blood on the right front passenger's seat and a wallet
wedged between the emergency brake and the driver's seat.
She also saw that the victim was clutching what appeared to
be a check in her left hand. She and other officers secured
the area and contacted the homicide unit.
Detective Ronnie McWilliams, who was assigned to the case on
the day after the murder, testified that a fingerprint found
in the vehicle led to the identification of "Otis
Smith" as a potential suspect. Three days after the
murder, "Smith" was arrested. He had in his
possession an "Old Timer's Light Blade Knife, "
which had a fold-out blade of over four inches. During the
arrest, Detective McWilliams informed "Smith" of
his rights. When he signed a waiver, however, Detective
McWilliams observed that "Smith" had started to
sign another name. Later, when his true identity was
established, "Smith" signed a second waiver under
the name Richard Odom.
In a written statement to the police, the Defendant, thirty
years old at the time and unemployed, admitted killing the
victim and provided details of the crime. He stated that just
before the murder, he was in the stairwell trying to relax.
When another individual entered the stairway, he entered the
garage area at the same time the victim arrived. Claiming
that he intended only to steal her purse so he could
"get something to eat and catch a nap, " he told
officers that when he ran over to grab her purse, he
"somehow grabbed her arm or hand or whatever and we kind
of fell back into the car." He stated that he always
kept his knife open because of potential danger in the area
and that "somehow or another, " while
"[p]ushing the lady off of me and over the back seat . .
. [, ] I managed to . . . cut her, I guess." The
Defendant also told the police that when "[t]he lady
called me, son, . . . I told her, I would give her a son
[and] I went to the back . . . seat with her. I don't
know if I stabbed her when I got in the back seat with her or
when I got back in the front seat." The Defendant
admitted that he raped the victim and insisted that she was
still alive at the time, claiming that she remarked that she
had never had sex before. He told police that he could not
remember whether he had stabbed the victim again after the
rape. The Defendant acknowledged searching the victim's
purse and wallet, but claimed that he found nothing of value
and left the items in the car. While admitting that he took
the victim's car keys, he stated that he threw them away
as he left the parking garage. At the conclusion of his
interrogation, the Defendant remarked, "I need help
mentally and psychologically, something I can't express
just freely and openly."
Dr. Jerry Thomas Francisco, the Shelby County Medical
Examiner at the time of the murder, conducted the autopsy. He
found a stab wound at the front of the victim's chest and
two on the right side of her body towards the back. He also
observed cuts on the victim's right hand, which he
described as defensive wounds. The knife wound to the front
of her chest passed into the right side of the heart, causing
two tears which, in turn, caused blood to accumulate in the
heart cavity and the left side of her chest. A wound near the
side penetrated her chest cavity and produced a tear in the
lung, which caused bleeding in the lung cavity. The other
wound to the side passed through her abdominal cavity into
the liver, which produced bleeding in the peritoneal cavity.
Dr. Francisco, who determined that the victim was 5 feet 6
inches in height and weighed 113 pounds, characterized each
of the three wounds as lethal. In his opinion, the victim
died between one and two hours after the wounds were
inflicted. During his examination of the body, Dr. Francisco
also discovered a tear of the vagina, a wound he described as
caused by forcible penetration. Fluid samples from the
victim's vaginal area "[r]evealed the presence of
sperm and enzymes that are present in seminal fluid." It
was Dr. Francisco's opinion that the vaginal injuries
were likely the product of forcible rape.
The proof also established that the Defendant had been
convicted of murder in Rankin County, Mississippi in 1998,
seven years after the victim's murder. The 1998
conviction was for a murder that had occurred some twenty
years earlier. The Defendant was sentenced to a term of life.
At the request of defense counsel, the judgment of conviction
was admitted as an exhibit so that the jury would understand
that there was "a detainer in Mississippi waiting on
[the Defendant] no matter what happens in this case."
The defense counsel, in an effort to persuade the jury to
spare the Defendant's life, called Glori Shettles, an
investigator who was qualified as an expert in the field of
mitigation, and several other witnesses to testify. Because
Ms. Shettles had previously worked for the Tennessee Board of
Probation and Parole, she also qualified as an expert in
parole procedure and policies. She testified that her
background study indicated that the Defendant, who had one
older and one younger sister, was born in 1960 to Norman and
Nellie Smith, who were twenty and seventeen years old
respectively. Ms. Shettles described his home life as
"unstable" and testified that his mother abandoned
the family before the Defendant was two-and-a-half years old.
The Defendant never saw his birth mother again. After the
Defendant and his sisters were sometimes left at a daycare
center "for days, " the State intervened and the
Defendant and his two sisters were adopted by members of the
Odom family. The Defendant was adopted by Jimmy and Shirley
Odom, who had three biological children at the time: Cindy,
Jimmy Jr., and Larry, ranging in ages from two to seven. When
the Defendant, at age three, joined the Odom family, he had
cigarette burns on his body. Burns on his feet were so severe
that he was unable to wear socks and shoes. About a year
after adopting the Defendant, the Odoms divorced, and his
adoptive mother married Marvin Bruce, who allegedly
mistreated the Defendant and his brother Larry. According to
Ms. Shettles, Bruce used "excessive discipline" on
both boys and ridiculed the Defendant for wetting the bed by
hanging his sheets and clothes outside for others to see. Ms.
Shettles also learned that when the Defendant and Larry were
bathing, Bruce [. . .] "would scrub them excessively . .
. would pull and tug on their penis [and] call them names and
make fun of them." Her investigation indicated the
Defendant had also endured cruelty at the hands of Shirley
Odom's mother, who never accepted the Defendant as part
of the family and treated him differently from her biological
grandchildren; no one Ms. Shettles interviewed "[had]
the impression that [Shirley Odom's mother] cared
anything for" the Defendant.
The Defendant, when an adolescent, ran away from the Bruce
home and subsequently was ordered into the Mississippi
juvenile court system. A psychological evaluation performed
for the authorities there when the Defendant was fourteen
years old indicated that he suffered from impaired insight,
memory, and reasoning. He was diagnosed as having a moderate
to severe personality disturbance. The evaluator determined
that the Defendant only read at "a beginning second
grade level" and "strongly urge[d that he not be]
place[d] . . . in any academic situation." It was
recommended that he enter a "complete evaluation
program" in order to avoid psychosis or mental
deterioration to the point of institutionalization.
Thereafter, the Defendant was placed in a Caritas program,
but was found unfit to participate after thirty days. After
his release in 1975, the Defendant was returned to the
juvenile authorities. He escaped to be with his birth father,
who lived one hundred and thirty miles away. Afterward, he
voluntarily returned and was placed at the Columbia Training
Center. According to Ms. Shettles, the Defendant tried to run
away from Columbia several times. Because on one occasion the
Defendant was treated for "a severe contusion of the
right eye and jaw, " Ms. Shettles speculated that he had
been beaten while institutionalized there. During this
period, a psychologist, who predicted that the Defendant
would be incarcerated his whole life, described him as
"brain damaged, incorrigible, antisocial, unable to
respond to usual social contingency program [sic] and a loser
with respect to probable adult adjustments." The
psychologist also believed that the Defendant was
"untreatable, unmanageable and a liability to society
for the rest of his natural life, " commenting that
"if this youngster changes for the better, it will be an
act of God." When the Defendant was fifteen, he was
conditionally released and, for a time, helped care for his
uncle, who had lost his legs to gangrene.
Ms. Shettles then addressed the Defendant's record at
Riverbend Maximum Security Prison, where he had been
incarcerated since 1992. During the period since the
victim's murder, he had obtained his GED and a paralegal
certification. He worked as a teacher's aide,
participated in life skills and Bible study classes, and also
engaged in various arts and crafts. He was described by a
correctional officer as a hard worker, having a positive
attitude, being helpful, and treating other inmates and staff
with courtesy. The Defendant's only infraction was in
1996, when he threw a mop bucket towards a guard, who, while
standing behind a glass barrier, had allegedly taunted him.
Ms. Shettles remarked that one write-up during this period of
time was an "extremely low number." She also
commented that the Defendant's prison record was
"very positive, " rating "in the top
In her capacity as an expert on parole procedures, Ms.
Shettles described the Defendant's chances for release on
a life sentence as "close to impossible." She made
specific reference to the Defendant's other murder
conviction in Mississippi, his escape from jail just prior to
the murder of the victim, and prior theft and robbery
convictions. She also testified that even if the Defendant
received parole in Tennessee, he would be returned to
Mississippi to serve the remainder of the life sentence
After reviewing the exhibits pertaining to mitigation, the
jury submitted a series of written questions, including
whether "mandatory parole" and "parole"
could be "define[d] in layman's terms."
Afterward, defense counsel recalled Ms. Shettles, who
testified that if the Defendant was given a life sentence in
this case, he would not be eligible for mandatory parole. She
also explained that if sentenced to life imprisonment, the
Defendant would be eligible for discretionary parole after
twenty-five years, but that his prior murder conviction and
his escape from prison in Mississippi made parole highly
Tim Terry, an inmate records manager at Riverbend, confirmed
that if the Defendant ever received parole in Tennessee, he
would be returned to Mississippi to serve his life sentence
there. He provided assurances that, in the event the
Defendant received a life sentence for the victim's
murder, he would not be moved from Riverbend to a local
Dr. Joseph Angelillo, a clinical psychologist who qualified
as an expert in forensic psychology, evaluated the Defendant
and reviewed his social history. While admitting that he was
unable to make a specific diagnosis, Dr. Angelillo found
indications of "schizoid personality features, "
marked by a tendency to do things alone, sub-par social
skills, lack of joy, withdrawal from others, and a fear of
relationships "unless [there is] absolute assurance that
they're going to be accepted." In his opinion, the
lack of sufficient mental health treatment afforded the
Defendant as a child, the rejection he had experienced, and
the physical and sexual abuse he had undergone all had a
profound effect on his development. Dr. Angelillo testified
that the Defendant's time in the structured environment
of Riverbend had "behaviorally defined . . . his ability
. . . to engage in constructive activities." He believed
that the Defendant would continue to thrive in this
structured environment if given a life sentence.
Dorothy Rowell, the Defendant's adoptive aunt, also
testified on his behalf, describing him as a "part of
our family." She stated that her mother had adopted one
of the Defendant's sisters, and that the other had been
adopted by Ms. Rowell's sister. Ms. Rowell, who had spent
a substantial amount of time with the children prior to the
Odoms' divorce, described the Defendant as "[v]ery
sweet, " "[v]ery loving, " "[a]lways
smiling, " "[h]appy, and a [v]ery precious little
boy." She stated, however, that after the divorce of his
adoptive parents "[h]e wasn't the happy smiling
little boy that I remembered." She testified that the
Defendant, when a teenager, "was very, very good"
with her invalid brother, Charles, and "[t]reated him
like a baby."
Cindy Martin, the Defendant's adoptive sister, described
the Defendant as "[t]he sweetest person you would ever
want to meet" prior to the time Marvin Bruce, his
stepfather, became a part of his life. She described Bruce as
"horrible" and a "terrible person" who
mistreated the Defendant. She stated that after Bruce's
arrival, the children stayed with their grandmother more
often, and while Ms. Martin enjoyed being there because her
grandmother generally "spoil[ed] kids, " their
grandmother "never really accepted [the Defendant] as
her grandchild" and "would hit him with anything
she could find."
Jimmy Odom, Jr., the Defendant's older adoptive brother,
testified that prior to the Odoms' divorce, the Defendant
was treated well, and that they were "kind of like a
family then." He also claimed that things changed after
his mother remarried, and that the Defendant "wasn't
treated like a child" and "never was loved."
He described their grandmother as "a mean woman"
who often struck the Defendant "with belts and stuff
like that, " and who never accepted the Defendant into
the family. He called Marvin Bruce "a pervert-[j]ust a
sorry person." He stated that if the Defendant ever
tried to reach for food at the dinner table before someone
else, his stepfather "would pop him up beside his head,
. . . and just make him wait." Although he never
witnessed Bruce sexually abusing the Defendant, Jimmy, Jr.
stated that he had "no doubt" that he had
physically abused him. He testified that there was "no
love in our family" and that, as a result, the Defendant
"never had a chance."
Like the Defendant, Jimmy, Jr. was housed at Columbia
Training School for a time. He stated that on each day of
their detention, the residents spent forty-five minutes
reading and forty-five minutes on mathematics, but that the
rest of the day was spent "in the fields." He
testified to the excessive forms of discipline at the school,
asserting that "[t]hey would whup you with a board"
and that "if you couldn't take the licks they would
get other people to hold you down." He also stated that
when residents ran away, they would receive a beating from
the staff. Jimmy, Jr., who was an inmate at Parchman Prison
at the same time as the Defendant and their brother Larry,
described it as "a real bad prison, " where
juvenile inmates are not housed separately. He stated that
both Larry and the Defendant were sexually abused by the
older inmates there and that his efforts to take up for his
younger brothers often resulted in fights at the prison.
Several others who had become acquainted with the Defendant
during his time in prison also testified on his behalf.
Celeste Wray, who had been involved in prison ministries for
eighteen years, corresponded with the Defendant on a regular
basis and developed a friendship with the Defendant. She
stated that her letters from the Defendant had "been
pleasurable and enjoyable" and that they were
"always very respectfu[l], which I appreciated."
Ricky Harville, who was an instructor at Riverbend, testified
that the Defendant worked as his aide when he began teaching
at the prison in 2003. He recalled that the Defendant
assisted the other inmates with reading and writing and that
his interaction with them was "very positive." He
stated that the Defendant was "very helpful, " that
he approached his job in a very positive manner, and that he
served as a role model for other inmates who sought
educational opportunities. In his opinion, the Defendant
would continue to impact other inmates in a positive way if
he received a life sentence. Gordon Janaway, a former teacher
in various correctional institutes, taught the Defendant in a
GED class at Riverbend. He testified that after the Defendant
obtained his certificate, he became a clerk in the classroom.
Janaway stated that the other inmates "really respected
him because he had earned a GED . . . which is not easy to do
in corrections." Jim Boyd, who taught a life skills
course at Riverbend, met the Defendant while conducting a
class. Boyd testified that the Defendant was "an active
participant" in the class and observed that the
Defendant had changed "for the better" during his
time in prison. Finally, Helen Cox, who was also involved in
the life skills course, testified that she kept a photo of
the Defendant on her desk that was taken the day he received
his GED. She described the Defendant as a part of her
Odom, 336 S.W.3d at 549-54 (footnotes omitted).
sentencing counsel testified that he was appointed on July
14, 2004, to represent the Petitioner for the 2007
resentencing hearing. Sentencing co-counsel also was
appointed, and Glori Shettles with Inquisitor, Inc., was
hired as the primary mitigation investigator. Counsel had the
benefit of reviewing all of the files and records from the
previous hearings in this case, including the mitigation
investigation previously performed by Ms. Shettles during the
first resentencing hearing. Counsel also had the benefit of
talking with the previous attorneys. The defense team held
numerous meetings to discuss the course of mitigation. Ms.
Shettles regularly kept counsel updated on her investigation,
and the defense team discussed the types of experts that
might be used. According to lead sentencing counsel, Ms.
Shettles recommended securing a forensic psychiatrist to
evaluate the Petitioner.
ultimately filed a motion on October 11, 2007, to secure the
services of Dr. Joseph Angelillo, a forensic psychologist.
The motion was granted that same day. Lead sentencing counsel
said that, although the resentencing hearing was scheduled to
commence approximately two months later, he usually requested
funding for experts further in advance if they were a
"key part" of the case. He said Dr. Angelillo was
not a key part of their strategy. According to lead
sentencing counsel, the defense relied on Dr. Angelillo
merely to determine if anything was missing from the
information they already possessed about the Petitioner's
mental health. Counsel also filed a motion for additional
funding the day the resentencing hearing commenced. The
motion was granted the same day.
sentencing counsel acknowledged reviewing a letter from Ms.
Shettles to previous counsel advising that it would be
beneficial to explore whether the Petitioner suffered from
organic or neurological brain damage. He also reviewed a
document from prior counsel referencing two episodes where
the Petitioner lost consciousness from closed head trauma and
another requesting that the Petitioner undergo a PET
(Positron Emission Tomography) scan. Lead sentencing counsel
also knew about a 1974 psychological evaluation report by Dr.
Daniel Cox indicating the Appellant had a verbal IQ of 67, a
performance IQ of 100, and a full-scale IQ of 81. That report
concluded that the discrepancy between the verbal and
performance scores reflected moderate to severe emotional
personality disturbance and that there was evidence of mild
organic neurological deficiency. Dr. Cox also considered the
Petitioner to be "brain damaged, incorrigible,
antisocial, unable to respond to usual social contingency
programming and a loser with respect to probable adult
adjustments." Dr. Cox recommended in 1974 that the
Petitioner undergo extensive medical, psychiatric, and
psychological evaluations. Lead sentencing counsel said he
was not certain he wanted Dr. Angelillo to see Dr. Cox's
reports. He admitted that there was concern the Petitioner
had organic or neurological brain damage, and he stated that
they discussed retaining a neurologist and neuropsychologist.
Lead sentencing counsel said, though, that he would not
always present evidence of a defendant's brain damage
during a capital sentencing trial. He said it depended on the
knew life without the possibility of parole was not a
sentencing option for the Petitioner. However, as part of
their defense, they tried to explain to the jury that it was
extremely unlikely the Petitioner would ever be considered
eligible for parole if given a life sentence. Lead sentencing
counsel identified a motion the defense drafted to strike the
Petitioner's prior murder conviction from consideration
as an aggravating circumstance because the crime was
committed while the Petitioner was a juvenile. They decided
not to file it, though, because they "felt that it was
clear that was coming in, and that we were going to keep some
of the details of that out that were going to drift in if we
opened the door on it."
cross-examination, lead sentencing counsel testified that,
although their investigation team pursued aspects of the
guilt phase of the trial, the presentation of a residual
doubt defense during mitigation was not part of their
strategy. Lead sentencing counsel acknowledged that the
Petitioner was willing to submit to DNA testing and that the
investigators identified a handwriting expert willing to
examine the Petitioner's statement to the police. Lead
sentencing counsel said he reviewed all of the information
obtained by their investigators and ultimately concluded
there was no evidence to reasonably support a residual doubt
defense during the resentencing hearing.
sentencing counsel praised the investigative work performed
by Ms. Shettles. He respected her opinion and listened to her
suggestions. Lead sentencing counsel thought defense counsel
and the investigative team maintained open communication and
had a good working relationship. Lead sentencing counsel said
it was "the best mitigation [he] ever had" in a
capital case. The entire defense team met numerous times and
discussed and considered the different mitigation strategies
available in this case. According to lead sentencing counsel,
possibly the most difficult obstacle they faced was the fact
that the jury would be informed the Petitioner would be
eligible for parole after serving twenty-five years if given
a life sentence, which in the Petitioner's case would
have been eight years from the second resentencing hearing.
Counsel unsuccessfully objected to that jury instruction.
Counsel's strategy then was to convince the jury that the
Petitioner would almost certainly never be paroled,
especially given his prior murder conviction in Mississippi.
To that end, the defense incorporated into their mitigation
strategy the fact that the Petitioner stood convicted of
another first degree murder. Lead sentencing counsel said
they used the prior murder conviction to bolster their case
to the jury that even if the Petitioner were paroled in
Tennessee, he would be sent directly to Mississippi to serve
his other life sentence. Lead sentencing counsel did not
think his motion to strike that conviction as an aggravator
would be successful, so they decided to "embrace
counsel's strategy included generating empathy with the
jury based upon evidence of the Petitioner's
disadvantaged past and demonstrating the Petitioner would
never be released from prison. The Petitioner initially did
not want counsel to show the jury evidence of his troubled
past. According to lead sentencing counsel, the
Petitioner's family members also initially did not fully
cooperate with defense counsel. Lead sentencing counsel said,
however, that they eventually agreed to assist counsel and
testify on the Petitioner's behalf. Lead sentencing
counsel said the testimony by the Petitioner's family
members was "incredible" and "very
compelling." Lead sentencing counsel did not think the
mental health aspect of mitigation in this case would have
presented the same emotional impact as the testimony by the
family members. He said having the family members tell
stories about the Petitioner's history was much more
compelling than an expert reciting results from an
evaluation. Lead sentencing counsel stated, "I really
think we put on what we thought was our spear point, and it
wasn't enough." According to lead sentencing
counsel, Dr. Angelillo's report supported their theory of
pursuing empathy through the testimony of the
Petitioner's family members. Lead sentencing counsel
stated, "I don't think we would have put him on at
all if we hadn't thought that, if it didn't move with
our theme." The defense attempted to highlight the
differences between the prison system in Mississippi, where
the Petitioner was housed as a teenager, and the more
structured environment in Tennessee, where the Petitioner was
housed at Riverbend. According to lead sentencing counsel,
the Petitioner had adapted well in his current prison
environment, and showing the jury that fact was a main point
of the defense.
counsel had the benefit of reviewing all of the evaluations
from the previous hearings. Lead sentencing counsel
acknowledged that the State would have been allowed to
cross-examine their expert witness if the defense questioned
a witness about the previous evaluations. Lead sentencing
counsel highlighted the statements made by Dr. Cox that
counsel believed were "so atrocious." Although
counsel did not want the State to exploit that information
during cross-examination of their mental health expert, the
defense was able to introduce Dr. Cox's opinion into
evidence through the testimony of their investigator. That
information supported the mitigation theory that the system
in Mississippi failed the Petitioner. Lead sentencing counsel
said, however, that if the State was allowed to question Dr.
Angelillo about previous reports of antisocial personality
disorder, their mitigation theory of a lack of future
dangerousness in the prison setting would have been
sentencing counsel was further questioned about a 1978 report
from Mississippi State Hospital, where the Petitioner was
evaluated after committing the previous murder. The report
stated that the Petitioner "had no feelings, no sorrow
about it." It also said the Petitioner "showed no
signs or symptoms of a psychosis, " his
"psychological and neurological examination were within
normal limits, " "there is evidence of mild organic
(neurological) deficiencies although I don't believe it
is interfering with him in a major way at this time, "
and the Petitioner possessed "a moderately disturbed
personality with a marginal adjustment." The report
diagnosed the Petitioner "as a schizoid personality with
possible organic pathology [sic] present." Psychological
testing at that time "did not reveal any signs of
organisity [sic] or a neurological deficit nor did the
neurological examination." The report found that the
Petitioner had a full scale IQ of 93, and "he was found
to be without psychosis and the clinical impression was a
personality disorder with antisocial features [and] he was
competent and responsible." Lead sentencing counsel said
he reviewed that report prior to the resentencing hearing and
thought its findings would have contradicted any allegation
the defense asserted concerning the Petitioner's
neurological deficits. He reiterated that an evaluation of
antisocial personality would not have benefitted their theory
sentencing counsel talked to defense counsel from the first
resentencing hearing about their theory of mitigation before
deciding on the approach to take during the second
resentencing hearing. Prior to that hearing, counsel filed a
notice of potential expert witnesses they considered calling
to testify about how serotonin levels related to human
behavior. Lead sentencing counsel said that although they had
already ruled out that mitigation approach, they wanted the
option to change their minds. Lead sentencing counsel also
stated that Dr. Angelillo was provided a summary of the
defense theory prior to the hearing.
co-counsel testified that he reviewed all of the files and
records from the previous hearings in this case. He also
spoke with counsel from the first resentencing hearing.
Sentencing co-counsel said they had the benefit of Ms.
Shettles, who also worked on the first resentencing hearing.
Sentencing co-counsel considered the defense a team effort
wherein everyone involved in the case shared thoughts and
ideas about how to proceed with the presentation of
mitigating evidence. Sentencing co-counsel confirmed that the
defense team discussed using mental health experts but
ultimately decided against that particular approach.
Sentencing co-counsel summarized their theory of defense as
[The Petitioner] never had a chance to begin with, from his
early childhood, from the horrible family situation, to the
torture, to the institution he was sent to in Mississippi
that was shut down by the Federal Government for essentially
torturing children, to incarceration at Parchman, how he was
removed from Parchman and why. How he, once he was
re-institutionalized, thrived, and he wasn't a danger to
anybody where he was.
And part of the defense, and I think we put on proof that,
realistically, [the Petitioner] was never going to get out of
prison with the Tennessee conviction and the Mississippi
conviction, and that that was sufficient punishment.
the Petitioner's mental health, sentencing co-counsel
[The Petitioner] had a long history of - of evaluations and
being looked at, and there was a lot of information in there.
The danger in my opinion with these older cases is, if I come
in with an expert that is new to the case and he comes up
with something that is much more magnificent than anybody
else has ever seen, I think it's disingenuous to the jury
sometimes, and I think it appears to be bought and paid for.
It - from what we had seen earlier in the information we had,
could I have found a doctor to - to get up here to the jury
and say that that all greatly affected him? Probably.
But I think in the long run, when the State prosecutors were
done with that doctor, it would have harmed [the
Petitioner's] case more than it would have helped it
because I don't think the earlier information would have
really corroborated what the new doctor would have said and I
only would have put him on if it had been really good, if
that makes sense.
asked how he could know "whether the information is
really good without doing the examination, " sentencing
It didn't matter if it was good. If I knew if it was
really, really good, if I had a doctor who was going to get
up here and say that he did all this because he was brain
damaged and all of this and all of that, that would have
directly gone against what every other doctor had said in the
past, and I think that testimony would have looked like it
was bought and paid for.
co-counsel also thought any residual doubt defense during
resentencing had the potential of backfiring. Sentencing
co-counsel admitted that the instruction informing the jury
that the Petitioner would be eligible for parole after
serving twenty-five years of a life sentence was "the
single hardest thing some juror's going to be able to get
past." He also confirmed that they decided not to move
to strike the Petitioner's prior murder conviction for
consideration as an aggravating circumstance, in part,
because it was part of their strategy to convince the jury
the Petitioner would never be released from prison.
Sentencing co-counsel, though, did not otherwise believe
there was a legal basis for their position. According to
sentencing co-counsel, Ms. Shettles testified as an expert
about her experience working for the Board of Probation and
Parole for twenty years, and it was her opinion that the
Petitioner would never be paroled.
cross-examination, sentencing co-counsel opined, "[W]e
had very powerful in my opinion mitigation on his life. Very
strong witnesses testifying to the things that had happened
to him as a child, the trouble he got into, how he thrived in
prison when he was there, and basically, there was no reason
to execute him." He agreed with lead sentencing counsel
that no "mental health expert ever could have gotten the
emotion that we were able to get out of" the lay
witnesses. According to sentencing co-counsel's
impression, the jury was able to understand the Petitioner as
"a very damaged human being." Sentencing co-counsel
said the defense tried to show the jury how the system in
Mississippi failed the Petitioner because he never received
the help recommended by the mental health experts who
evaluated him. In contrast, they were able to show the jury
how he had adjusted well to the prison environment in
Tennessee. Sentencing co-counsel did not believe presenting
evidence both that the Petitioner acted violently in the past
because of low serotonin levels or brain damage and that he
adjusted well in a controlled prison setting would have been
an effective or complementary defense. Sentencing co-counsel
did not want to provide "ammunition for the State"
by relying upon a diagnosis of
borderline personality, antisocial behavior. Things like that
are never helpful to a defendant and our other stuff showed
that that wasn't the way he behaved, and you know, it was
a good theory. The system had failed him, but once the system
essentially fixed him when he was incarcerated and when he
was structured and when he was provided what he needed, he
thrived. I mean, he - he - he was a model inmate.
co-counsel testified that she and lead trial counsel were
both employed by the Office of the Public Defender at the
time of trial and that lead trial counsel previously served
as the District Public Defender. Lead trial counsel was
deceased at the time of the evidentiary hearing. In addition
to the two attorneys, the Petitioner had the benefit of a
factual investigator and a mitigation specialist. Trial
co-counsel said the Petitioner was examined by Dr. John
Hutson, a clinical psychologist, prior to trial. Trial
co-counsel recalled reviewing the Mississippi records related
to the Petitioner's prior mental health evaluations. She
also remembered requesting discovery from the prosecution,
but she did not think they received the entire police
investigation file. Trial co-counsel said, though, that if
the police file identified other people who were in the
parking garage at the time, but they were not detained as
suspects by the police, then counsel probably would not have
pursued them. Defense counsel did not seek to have the
Petitioner's signed statement analyzed by a forensic
co-counsel testified on cross-examination that she did not
think counsel was unprofessional for failing to move for a
continuance due to lead trial counsel's health. She did
not notice anything concerning about his health, and she
stated that if lead trial counsel did not believe he could
continue, he would have said so. According to trial
co-counsel, the prosecutor on the case at the time would have
allowed defense counsel to review the State's entire case
file. She also confirmed that the record of the original
trial reflected that defense counsel was given the
opportunity to review everything the State possessed in its
to trial co-counsel, the defense team did not notice anything
peculiar after interacting with the Petitioner that gave them
concern about his mental health. The defense attempted to get
any relevant records from the Petitioner's past,
including prison and mental health records. One of the first
records trial co-counsel reviewed from 1978 opined that the
petitioner "was without psychosis, responsible and
competent to stand trial" and that "psychological
and neurological examinations were within normal
limits." Trial co-counsel also learned that the
Petitioner earned his G.E.D. in prison in Mississippi and
completed some junior college courses. Trial co-counsel said
Dr. Hutson's finding of a personality disorder was not
helpful. According to trial co-counsel, the Petitioner's
family members did not want to testify on his behalf.
co-counsel testified that the decision making process of the
defense team was influenced by the information about the case
known to them at the time, including the details contained in
the Petitioner's confession. As such, trial co-counsel
did not see any benefit to testing the clothing the
Petitioner wore during the murder. Similarly, she saw no
reason to test the hair samples found in the victim's
hand or the blood samples from the parking garage. Despite
being unsuccessful in moving to suppress the Petitioner's
statement, the defense theory during the guilt phase of the
trial was that the Petitioner was coerced into confessing.
Chandler worked at Parchman Prison in Mississippi from 1985
until 2005. She worked in the law library and as a case
manager. Ms. Chandler remembered the Petitioner when he was
housed at the prison, and she remembered he was victimized by
other inmates because he was younger and smaller. She did not
remember him receiving many visitors or receiving items from
people outside the prison. According to Ms. Chandler, the
Petitioner was "emotionally needy" and
"worrisome." She also identified a report detailing
the Petitioner's placement into protective custody
because he was accused of rape and being a problem inmate.
Frank Nobles was housed at Parchman Prison with the
Petitioner. He testified about the violent nature of the
prison environment and how the weaker inmates were victimized
by the stronger ones. Mr. Nobles described the Petitioner as
a weaker inmate. Robert Tubwell was also housed with the
Petitioner at Parchman Prison. Mr. Tubwell remembered the
Petitioner seeking the protection of two stronger inmates at
different times. The stronger inmates in the prison would
typically require things in return for offering protection
such as sexual favors, washing clothes, and running errands.
The weaker inmates would be referred to as "sons"
by their protectors. Mr. Tubwell saw the Petitioner wear
makeup and dress in women's clothing one or two times.
Mr. Tubwell also remembered the Petitioner filing grievances
with guards. According to Mr. Tubwell, inmates often
retaliated against inmates who filed grievances against them.
Tora Brawley, a clinical neuropsychologist, testified on
behalf of the Petitioner. She examined the Petitioner prior
to the evidentiary hearing and had the benefit of reviewing
records from the Petitioner's past. Dr. Brawley
administered the Wechsler Adult Intelligence Scale IV test,
which measured IQ as well as different areas of brain
function. The Petitioner measured a full-scale IQ of 94,
which was average according to Dr. Brawley. His verbal
comprehension score was 89, which was low average, and his
perceptual reasoning score was 104, which was average.
However, Dr. Brawley said the discrepancy between the verbal
and performance skills was statistically and clinically
significant. She also administered the Wechsler Memory Scale
IV test, which examined memory function. The Petitioner
performed in the ninth and sixteenth percentiles on verbal
memory tests, but he performed in the fiftieth and
seventy-fifth percentiles on visual memory tests. The
Petitioner performed poorly on non-verbal abstract reasoning
and verbal learning tests. He scored in the fourth percentile
on a verbal fluency test. Dr. Brawley also observed some
asymmetry between the Petitioner's left and right hands
after administering a simple test that measured the
Petitioner's manual motor speed.
upon her examination of the Petitioner, Dr. Brawley concluded
that he had significant asymmetries in several areas of
cognition to include memory, intellectual, and motor
functioning. She also observed deficits in his frontal lobe
functioning and mental flexibility. Those deficits most
probably affected the Petitioner's behavior and
personality over his life span and could have significantly
impacted his judgment, impulsivity, and decision making. Dr.
Brawley said the results from some of the Petitioner's
past records corresponded with her findings. She also said
the fact that the Petitioner previously escaped from prison
would be consistent with his inability to make good choices.
She stated, however, that the Petitioner's issues and
deficits had likely improved over time because he had been
confined for many years in a very structured prison
environment in Tennessee. According to Dr. Brawley,
neuropsychological impairment was not synonymous with mental
cross-examination, Dr. Brawley testified that drug use could
contribute to neurological damage. She said the Petitioner
suffered head trauma, which resulted in loss of
consciousness, on three occasions when he was between
seventeen and twenty-one years old. Dr. Brawley said the
Petitioner's neurological damage may or may not have
contributed to his actions at the time of the murder. During
the examination, the Petitioner informed Dr. Brawley that two
of the top three stressors he faced at that time were being
"locked up for something [he] didn't do" and
"trying to get the work records of Tanya D. Tiller,
" both of which related to his guilt.
Finn, an investigator with the Office of the Post-Conviction
Defender, was assigned to investigate the mitigating evidence
on behalf of the Petitioner. She testified that she uncovered
information not reported by Glori Shettles during the second
resentencing hearing. The Petitioner's biological father,
Richard Norman Smith, was born out of wedlock. Mr. Smith did
not have a good relationship with his mother, who committed
suicide when Mr. Smith was sixteen years old. Mr. Smith's
stepfather started binge drinking soon thereafter. Mr.
Smith's brother and nephew also committed suicide. Mr.
Smith wreaked havoc in the community as a teenager and was
eventually placed in a juvenile facility.
Finn also interviewed the Petitioner's biological mother,
Holly Taylor (Nellie Ruth Holly). Ms. Taylor's father was
extremely abusive to her and her sister and acted violently
towards others in the community. Ms. Taylor's father
raped his daughter from another marriage and was eventually
murdered in prison. Ms. Taylor's mother was described as
mean and uncaring. Ms. Taylor's mother remarried, and her
new husband sexually abused Ms. Taylor and her sister.
According to Ms. Finn, Ms. Taylor was described as a mean
child. When Ms. Finn interviewed Ms. Taylor, she was living
in filth in a tiny trailer.
Petitioner's parents were teenagers when they met. By the
time they married, they were both drinking and partying
regularly. Ms. Taylor continued to drink during her
pregnancies. The Petitioner had an older sister and a younger
sister. Neither parent was described as caring or loving. The
Petitioner's mother informed Ms. Finn that she was a lot
meaner to the children than their father was. The
Petitioner's father physically abused the
Petitioner's mother. The family eventually settled in
Mississippi. Ms. Taylor abandoned the family when the
Petitioner was one and one-half years old. The
Petitioner's father then had to take on additional
employment, so he would leave the children with a neighbor,
Gladys McClendon. The Petitioner and his sisters were not
well-cared for by their father; the Petitioner was seen with
cigarette burn marks on his arms and feet at the time. Ms.
McClendon's home was the de facto day care for the
neighborhood. The Petitioner and his sisters eventually spent
more time living with Ms. McClendon. The Petitioner was
finally adopted when he was about two years old by Ms.
McClendon's daughter, Shirley, and Shirley's husband,
Jimmy Odom. The Petitioner's two sisters were adopted by
other member of the community. According to Ms. Finn, neither
fared much better in their adoptive households than the
Petitioner. At the time of her investigation, Ms. Finn said
both sisters suffered from depression. Mr. Smith resisted the
adoptions at first but ultimately agreed when he was
threatened with being reported for sexually abusing his
daughters. The Petitioner's biological parents attempted
to reconcile at some point but to no avail.
was fifteen when she married Jimmy Odom, who was sixteen.
They had three biological children together. Jimmy Odom had
just been released from prison when the Petitioner arrived in
the family. The Odoms were described as incompetent parents.
Jimmy Odom was always partying, and Shirley Odom "had no
control over the house. It was filthy." Jimmy Odom was
known to be a womanizer, and the Odoms had an abusive and
volatile relationship. They eventually divorced when the
Petitioner was four years old, and Gladys McClendon resumed
primary responsibility for the Petitioner. She also cared for
many other children at the same time. Ms. Finn described the
scene at the McClendon house as "constant chaos."
Ms. McClendon was extremely cruel to the Petitioner. She did
not want him around and would beat him.
Odom married a man named Marvin Bruce when the Petitioner was
about five years old. Mr. Bruce was an alcoholic, and he and
Shirley had three biological children together. According to
Ms. Finn, the Petitioner was treated as the outcast and
severely abused by Mr. Bruce and Shirley. The Petitioner wet
the bed until he was about nine years old, and Mr. Bruce
would hang the sheets outside of the house to embarrass the
Petitioner. Shirley also would humiliate the Petitioner when
he wet the bed by pulling down his pants and smacking his
"privates" in front of the other children. Shirley
drank during the day. The house was a mess, and there were
times when there was no food in the house. The children were
filthy and were not taught how to maintain any personal
hygiene. The police were frequently called to the home.
the Petitioner was twelve years old, he and his brother Larry
would solicit oral sex for money. According to Ms. Finn, the
Petitioner also started living on the streets at that age. At
a young age, the Petitioner was reported to have started
having "spells" during which he would "check
out" and would not respond when called. The Petitioner
was placed in special education in school. The Petitioner
stayed in trouble with the police and eventually was placed
in Columbia Training School, a juvenile facility. The
Petitioner was described as malnourished at the time. The
juveniles were punished if they attempted to escape, and the
Petitioner spent one hundred and twenty days in the
"hole" in isolation for running away. The
Petitioner received no mail or visitors when he was at
Columbia. The Petitioner was evaluated by Dr. Cox once before
he entered the training school and once while in attendance.
Dr. Cox requested that the Petitioner undergo an EEG, which
Ms. Finn said was unusual.
the Petitioner left the juvenile training school, he was
arrested and convicted of homicide in 1978 and incarcerated
at Parchman Prison to serve a life sentence. Ms. Finn
described the conditions at the prison at that time. Hundreds
of inmates were housed in individual units consisting of open
bunk bedding. Violence among the inmates apparently was
widespread, and the smaller white inmates were particular
targets. Ms. Finn described the relationships between the
"gal boys" or "sons, " the weaker
inmates, and their "protectors" or "daddies,
" the stronger inmates. The "sons" would
exchange sexual favors for protection. "Punks, " as
they were called, were former "sons" who became
"free game" to the rest of the inmates. According
to Ms. Finn, the Petitioner was described as having been both
a "son" and a "punk." As part of the role
of "son, " the Petitioner at times was forced to
wear makeup and women's clothing. Ms. Finn also said the
guards routinely beat the inmates.
Petitioner's brother, Larry, was incarcerated at Parchman
with the Petitioner, and he attempted suicide a couple of
times. According to Ms. Finn, Larry had similar experiences
as the Petitioner because of his size. The Petitioner's
other brother, Jimmy, Jr., who also was housed at Parchman,
associated himself with the Aryan Brotherhood, became an
"enforcer, " and was able to protect himself. Ms.
Finn learned that Jimmy, Jr., did not associate with the
Petitioner or Larry because of their status as
"sons" and "punks" and, thus, did not
protect them for fear of retaliation from his gang.
Finn referred to reports that the Petitioner had been
assaulted in prison. According to Ms. Finn, however, the
prisoners who reported assaults faced ridicule and
retaliation from other inmates and the guards because the
reports apparently were not kept confidential. Records
reflected that the Petitioner contracted syphilis at
Parchman. Ms. Finn said that although his two brothers
received visitors in prison, the Petitioner did not. The
Petitioner was eventually transferred from Parchman Prison to
a county jail. According to Ms. Finn's findings, the
Petitioner was transferred because he was assisting with an
official investigation. The Petitioner escaped from that jail
prior to committing the murder in this case.
James Merikangas testified for the Petitioner as an expert in
neurology and psychiatry. Dr. Merikangas reviewed the
Petitioner's numerous historical reports and conducted an
interview with the Petitioner. He also conducted a
neurological examination, including an MRI (Magnetic
Resonance Imaging) and PET scan, as well as a physical
examination of the Petitioner. Dr. Merikangas said executive
functioning, which was the ability to plan and control
behavior, was located in the frontal lobe of the brain. Based
upon his review of the Petitioner's records, including
reports of the Petitioner's mother drinking while
pregnant, a high fever the Petitioner experienced as a child,
and the various head injuries the Petitioner suffered, as
well as his initial physical examination of the Petitioner,
Dr. Merikangas concluded that the Petitioner had some sort of
brain damage which needed to be explored further.
MRI, which according to Dr. Merikangas examined the anatomy
of the brain, revealed loss of brain tissue in the
Petitioner's temporal lobe. In addition, the Petitioner
had an enlarged third ventricle which reflected a loss of
cognitive functioning. Dr. Merikangas also identified
scarring of the brain tissue, which likely was caused by head
injuries, as well as evidence of damage associated with fetal
alcohol syndrome among other things. Dr. Merikangas testified
that, based upon the discrepancy between the Petitioner's
verbal and performance IQ scores, there was a disconnect
between the functionality of the Petitioner's left and
right brain hemispheres. The PET scan, which measured brain
function, revealed that the Petitioner's temporal lobes
were not functioning as well as the rest of his brain. Dr.
Merikangas said the temporal lobes, which controlled
behavior, were likely to be damaged during head trauma. The
PET scan also revealed asymmetry between the functionality of
the left and right hemispheres of the Petitioner's brain.
Dr. Merikangas also administered a Diffusion Tensor Imaging
(DTI) test, which was a type of MRI that examined the flow of
fluid in the axons, or nerve connections in the brain. The
DTI revealed some problem with the connections between the
two sides of the Petitioner's brain.
a previous IQ score the Petitioner received in 1974, Dr.
Merikangas testified that the full-scale score of 81 was just
above borderline mental retardation and that the
thirty-three-point difference between the verbal and
performance scores was highly significant and suggestive of
brain damage. Dr. Merikangas also reviewed a report from a
1976 EEG, which revealed evidence of brain damage. According
to Dr. Merikangas, the fact that the Petitioner had an EEG a
couple of years later, which was normal, did not necessarily
discount the earlier abnormal results. Although the
Petitioner was treated for syphilis at a young age, Dr.
Merikangas could not comment on whether the disease affected
Merikangas testified that the test results revealed brain
damage, which the Petitioner probably had his entire life.
When asked by the court what it meant to have brain damage,
Dr. Merikangas answered, "It generally means that your
intelligence is not as good as it should be, and your ability
to plan and carry out actions or to control your impulses is
not as good as it should be." According to Dr.
Merikangas, studies showed that emotional and psychological
abuse of children could inhibit the development of their
brains. In the Petitioner's case, Dr. Merikangas
attributed his brain damage to a combination of his long-term
history of physical, sexual, and psychological abuse and
physical head trauma, i.e., both congenital and acquired
brain damage. Dr. Merikangas testified that "many
parts" of the Petitioner's brain were damaged. He
ruled out a diagnosis of personality disorder.
cross-examination, Dr. Merikangas testified that he was not
aware the Petitioner escaped from Parchman Prison in 1981. He
further testified that knowledge of that information would
not change his opinion. He said, though, that the
Petitioner's brain damage would not prevent him from
attempting to escape in the future. Dr. Merikangas did not
opine whether the Petitioner's brain damage prevented him
from knowing right from wrong, and he did not comment on
whether the Petitioner's brain damage caused him to
commit the two murders. Dr. Merikangas opined that drug use
did not cause the Petitioner's brain damage. Although Dr.
Merikangas did not think the Petitioner's brain damage
had improved any, he said the Petitioner's behavior had
improved while on death row. Dr. Merikangas acknowledged that
the Petitioner had a subsequent full-scale IQ score in the
90s, but he also opined that a similar discrepancy between
the verbal and performance scores indicated brain damage. Dr.
Merikangas could not explain why the Petitioner had two
different readings from EEGs conducted in 1976 and 1978, but
he said they were not relevant to his diagnosis.
Lester, the Custodian of Records for the Shelby County
Medical Examiner's Office, testified for the State. Mr.
Lester was asked to identify any evidence remaining from the
autopsy of the victim in this case. He located three items:
two glass vacuum containers, one labeled "rectal
swabs" and one labeled "vaginal swabs, " and a
sealed envelope labeled "hair and fiber from right
hand." To Mr. Lester's knowledge, there had never
been a request to test those samples for DNA. James Hill, an
officer with the Memphis Police Department's Latent
Fingerprint Section, provided for the record in this case all
of the fingerprint-related evidence retained by the
department. William D. Merritt, an investigator with the
Shelby County District Attorney General's Office,
provided for the record in this case all of the residual
evidence remaining in the custody of the trial court clerk
that was not introduced during any of the earlier trials.
Shettles testified on behalf of the State. She worked for
Inquisitor, Inc., for twenty-one and one-half years as a
mitigation investigator prior to working for the Shelby
County Public Defender's Office. She said that she worked
on approximately ninety capital cases during her career and
that she worked with defense counsel during the
Petitioner's first and second resentencing hearings.
According to Ms. Shettles, the attorneys made their own
arrangements for expert witnesses during the first
resentencing hearing. She said, though, that she obtained
some of the Petitioner's records related to his mental
health. Ms. Shettles said that, having worked on both
hearings, she had an advantage in preparing mitigating
evidence during the second resentencing hearing because she
did not have to duplicate some of the investigation. She
prepared a comprehensive mitigation timeline of the
Petitioner's history to give counsel in preparation of
the hearing. Ms. Shettles further said she had difficulty
prior to the first resentencing hearing soliciting
information and assistance from the Petitioner's family,
but she said she experienced better cooperation from the
family members during her work on the second resentencing
Shettles thought she developed a good working relationship
with lead sentencing counsel and sentencing co-counsel. Ms.
Shettles said both attorneys were very responsive and
maintained open lines of communication. She said she was much
more involved in the mental health aspect of mitigation
during the second resentencing hearing than the first, and
she identified the several experts she contacted during her
investigation. Ms. Shettles also attested to the amount of
time she spent on her investigation into potential mental
health evidence. She recommended experts who counsel
ultimately decided not to rely upon at the hearing.
Nevertheless, Ms. Shettles testified that her investigation
into the Petitioner's background was as thorough as any
other case in which she had participated.
Petitioner's post-conviction petition is governed by the
Post-Conviction Procedure Act. See Tenn. Code Ann.
§§ 40-30-101 to -122. To obtain post-conviction
relief, a petitioner must show that his or her conviction or
sentence is void or voidable because of the abridgment of a
constitutional right. Tenn. Code Ann. § 40-30-103. The
petitioner must establish the factual allegations contained
in the petition by clear and convincing evidence. Tenn. Code
Ann. § 40-30-110(2)(f). Evidence is clear and convincing
when there is no serious or substantial doubt about the
accuracy of the conclusions drawn from the evidence.
Hicks v. State, 983 S.W.2d 240, 245 (Tenn. Crim.
the post-conviction court rules on the petition, its findings
of fact are conclusive on appeal unless the evidence
preponderates against them. State v. Nichols, 90
S.W.3d 576, 586 (Tenn. 2002) (citing State v. Burns,
6 S.W.3d 453, 461 (Tenn.1999)); Cooper v. State, 849
S.W.2d 744, 746 (Tenn. 1993). The Petitioner has the burden
of establishing the evidence preponderates against the
post-conviction court's findings. Henley v.
State, 960 S.W.2d 572, 579 (Tenn. 1997). This court may
not re-weigh or reevaluate the evidence or substitute its
inferences for those drawn by the post-conviction court.
Nichols, 90 S.W.3d at 586. Furthermore, the
credibility of the witnesses and the weight and value to be
afforded their testimony are questions to be resolved by the
post-conviction court. Bates v. State, 973 S.W.2d
615, 631 (Tenn. Crim. App. 1997).
Petitioner challenges aspects of his original trial
attorneys' representation as well as the representation
of his attorneys during the third sentencing hearing. He also
presents issues related to the conduct of the 1992 trial, the
2007 resentencing hearing, and the post-conviction
evidentiary hearing, as well as familiar issues against the
imposition of the death penalty. For the sake of clarity in
the opinion, we have reorganized the order of the issues the
Petitioner presents in his appellate brief.
Ineffective Assistance of Counsel
of ineffective assistance of counsel are regarded as mixed
questions of law and fact. State v. Honeycutt, 54
S.W.3d 762, 766-67 (Tenn. 2001); Burns, 6 S.W.3d at
461. As such, the post-conviction court's findings of
fact underlying a claim of ineffective assistance of counsel
are reviewed under a de novo standard, accompanied by a
presumption that the findings are correct unless the
preponderance of the evidence is otherwise. Fields v.
State, 40 S.W.3d 450, 458 (Tenn. 2001) (citing Tenn. R.
App. P. 13(d)). However, a post-conviction court's
conclusions of law are reviewed under a purely de novo
standard, with no presumption of correctness. Id.
Sixth Amendment provides, in pertinent part, "In all
criminal prosecutions, the accused shall enjoy the right . .
. to have the Assistance of Counsel for his defense."
U.S. Const. amend. VI. This right to counsel is "'so
fundamental and essential to a fair trial, and so, to due
process of law, that it is made obligatory upon the States by
the Fourteenth Amendment.'" Gideon v.
Wainwright, 372 U.S. 335, 340 (1963) (quoting Betts
v. Brady, 316 U.S. 455, 465 (1942)). Inherent in the
right to counsel is the right to the effective assistance of
counsel. Cuyler v. Sullivan, 446 U.S. 335, 344
(1980). "The benchmark for judging any claim of
ineffectiveness must be whether counsel's conduct so
undermined the proper functioning of the adversarial process
that the trial cannot be relied on as having produced a just
result." Strickland v. Washington, 466 U.S.
668, 686 (1984); see Combs v. Coyle, 205 F.3d 269,
277 (6th Cir. 2000). The United States Supreme Court has
adopted a two-prong test to evaluate a claim of
First, the defendant must show that counsel's performance
was deficient. This requires showing that counsel made errors
so serious that counsel was not functioning as the
"counsel" guaranteed the defendant by the Sixth
Amendment. Second, the defendant must show that the deficient
performance prejudiced the defense. This requires showing
that counsel's errors were so serious as to deprive the
defendant of a fair trial, a trial whose result is reliable.
Strickland, 466 U.S. at 687. The performance prong
of the Strickland test requires a showing that
counsel's representation fell below an objective standard
of reasonableness, or "outside the wide range of
professionally competent assistance." Id. at
690. "Judicial scrutiny of performance is highly
deferential, and '[a] fair assessment of attorney
performance requires that every effort be made to eliminate
the distorting effects of hindsight, to reconstruct the
circumstances of counsel's challenged conduct, and to
evaluate the conduct from counsel's perspective at the
time.'" Combs, 205 F.3d at 278 (quoting
Strickland, 466 U.S. at 689).
reviewing claims of ineffective assistance of counsel, courts
"must indulge a strong presumption that counsel's
conduct falls within the wide range of reasonable
professional assistance; that is, the defendant must overcome
the presumption that, under the circumstances, the challenged
action 'might be considered sound trial
strategy.'" Strickland, 466 U.S. at 689.
Additionally, the courts will defer to trial strategy or
tactical choices if they are informed ones based upon
adequate preparation. Hellard v. State, 629 S.W.2d
4, 9 (Tenn. 1982). Finally, we note that criminal defendants
are not entitled to perfect representation, only
constitutionally adequate representation. Denton v.
State, 945 S.W.2d 793, 796 (Tenn. Crim. App. 1996). In
other words, "in considering claims of ineffective
assistance of counsel, 'we address not what is prudent or
appropriate, but only what is constitutionally
compelled.'" Burger v. Kemp, 483 U.S. 776,
794 (1987) (quoting United States v. Cronic, 466
U.S. 648, 655 n.38 (1984)). Notwithstanding, we recognize
that "[o]ur duty to search for constitutional error with
painstaking care is never more exacting than it is in a
capital case." Id. at 785.
petitioner shows that counsel's performance fell below a
reasonable standard, then he or she must satisfy the
prejudice prong of the Strickland test by
demonstrating "there is a reasonable probability that,
but for counsel's unprofessional errors, the result of
the proceeding would have been different." 466 U.S. at
694. "A reasonable probability is a probability
sufficient to undermine confidence in the outcome."
Id. In evaluating whether a petitioner satisfies the
prejudice prong, this court must determine "whether
counsel's deficient performance render[ed] the result of
the trial unreliable or the proceeding fundamentally
unfair." Lockhart v. Fretwell, 506 U.S. 364,
372 (1993) (citing Strickland, 466 U.S. at 687). In
other words, a petitioner must establish the deficiency of
counsel was of such a degree that it deprived the petitioner
of a fair sentencing hearing and called into question the
reliability of the outcome. Nichols, 90 S.W.3d at
587. That is, the evidence stemming from the failure to
prepare a sound defense or to present witnesses must be
significant, but it does not necessarily follow that the
trial would have otherwise resulted in a lesser sentence.
State v. Zimmerman, 823 S.W.2d 220, 225 (Tenn. Crim.
App. 1991). "A reasonable probability of being found
guilty of a lesser charge, or a shorter sentence, satisfies
the second prong in Strickland." Id.
Similarly, a petitioner must show "'there is a
reasonable probability that, absent the errors, the sentencer
. . . would have concluded that the balance of the
aggravating and mitigating circumstances did not warrant
death.'" Henley, 960 S.W.2d at 579-80
(quoting Strickland, 466 U.S. at 695).
courts must indulge a strong presumption the conduct of trial
counsel falls within the wide range of reasonable
professional assistance. Strickland, 466 U.S. at
689. Our supreme court has stated:
"Hindsight can always be utilized by those not in the
fray so as to cast doubt on trial tactics a lawyer has used.
Trial counsel's strategy will vary even among the most
skilled lawyers. When that judgment exercised turns out to be
wrong or even poorly advised, this fact alone cannot support
a belated claim of ineffective counsel."
Hellard, 629 S.W.2d at 9 (quoting Robinson v.
United States, 448 F.2d 1255, 1256 (8th Cir. 1971)).
"It cannot be said that incompetent representation has
occurred merely because other lawyers, judging from
hindsight, could have made a better choice of tactics."
Id. This court must defer to counsel's trial
strategy and tactical choices when they are informed ones
based upon adequate preparation. Id.
noted earlier, criminal defendants are not entitled to
perfect representation, only constitutionally adequate
representation. Denton, 945 S.W.2d at 796.
"Thus, the fact that a particular strategy or tactic
failed or even hurt the defense does not, alone, support a
claim of ineffective assistance." Cooper v.
State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992).
Moreover, "an accused is not deprived of the effective
assistance of counsel because a different procedure or
strategy might have produced a different result."
Vermilye v. State, 754 S.W.2d 82, 85 (Tenn. Crim.
Petitioner contends that his original trial counsel were
ineffective for failing to utilize a jury questionnaire or
retain an expert in jury selection, failing to ensure the
jury could consider and give effect to mitigation evidence,
failing to inquire about the prospective jurors'
attitudes toward mental health defenses, and failing to
question jurors about potential biases and other grounds for
court has addressed the role of defense counsel during jury
selection in a capital case:
Jury selection implicates an accused's state and federal
constitutional rights to a competent, fair-minded, and
unbiased jury. See Smith v. State, 357 S.W.3d 322,
347 (Tenn. 2011) (recognizing that "[b]oth the United
States and the Tennessee Constitutions guarantee a criminal
defendant the right to a trial by an impartial jury.") .
. . The process of voir dire is aimed at enabling a defense
lawyer (as well as a prosecutor) to purge the jury of members
not meeting these criteria. See United States v.
Nell, 526 F.2d 1223, 1229 (5th Cir. 1976) ("[T]he
principal way this right [to an impartial jury] is
implemented is through the system of challenges exercised
during the voir dire of prospective jurors.");
Smith, 357 S.W.3d at 347 (recognizing that
"'[t]he ultimate goal of voir dire is to ensure that
jurors are competent, unbiased and impartial.'")
(quoting State v. Hugueley, 185 S.W.3d 356, 390
(appx) (Tenn. 2006) . . . . As emphasized by the United
States Supreme Court,
The process of voir dire is designed to cull from the venire
persons who demonstrate that they cannot be fair to
either side of the case. Clearly, the extremes must
be eliminated - i.e., those who, in spite of the evidence,
would automatically vote to convict or impose the death
penalty or automatically vote to acquit or impose a life
Morgan v. Illinois, 504 U.S. 719, 734 n.7, 112 S.Ct.
2222 (1992) (quoting Smith v. Balkcom, 660 F.2d 573,