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Odom v. State

Court of Criminal Appeals of Tennessee, Jackson

October 20, 2017

RICHARD LLOYD ODOM
v.
STATE OF TENNESSEE

          Session December 6, 2016

         Appeal from the Criminal Court for Shelby County No. 91-07049 Don R. Ash, Senior Judge

         The 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.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

          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 of Tennessee.

          Norma McGee Ogle, J., delivered the opinion of the court, in which Alan E. Glenn and Robert L. Holloway, Jr., JJ., joined.

          OPINION

          NORMA McGEE OGLE, JUDGE

         I. Factual Background

         In 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).

         Our 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.

         After 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.

         At the 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).

         Thereafter, 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.

         A. Trial Evidence

         The 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 quickly."
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.

         The following is a summary of the evidence from the 2007 resentencing hearing:

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 statement.
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 three."
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 there.
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 unlikely.
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 county jail.
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 extended family.

Odom, 336 S.W.3d at 549-54 (footnotes omitted).

         B. Post-Conviction Evidence

         Lead 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.

         Counsel 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.

         Lead 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 case.

         Counsel 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."

         On 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.

         Lead 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 it."

         Defense 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.

         Again, 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 compromised.

         Lead 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 of mitigation.

         Lead 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.

         Sentencing 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 follows:

[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.

         Regarding the Petitioner's mental health, sentencing co-counsel testified:

[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.

         When asked how he could know "whether the information is really good without doing the examination, " sentencing co-counsel replied,

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.

         Sentencing 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.

         During 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.

         Trial 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 document examiner.

         Trial 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 file.

         According 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.

         Trial 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.

         Betsy 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.

         Dr. 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.

         Based 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 retardation.

         On 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.

         Alysandra 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.

         Ms. 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.

         The 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[1], 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.

         Shirley 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.

         Shirley 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.

         When 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.

         After 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.

         The 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.

         Ms. 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.

         Dr. 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.

         The 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.

         Reviewing 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 his brain.

         Dr. 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.

         During 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.

         Sean 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.

         Glori 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 hearing.

         Ms. 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.

         II. Analysis

         The 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. App. 1998).

         Once 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).

         The 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.

         A. Ineffective Assistance of Counsel

         Claims 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.

         The 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 ineffectiveness:

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).

         Upon 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.

         If a 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).

         Reviewing 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.

         As 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. App. 1987).

         1992 Counsel

         1. Jury Selection

         The 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 disqualification.

         This 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 sentence.

Morgan v. Illinois, 504 U.S. 719, 734 n.7, 112 S.Ct. 2222 (1992) (quoting Smith v. Balkcom, 660 F.2d 573, 578 ...


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