Roy E. Keough v. State of Tennessee ( 2010 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
December 1, 2009 Session
ROY E. KEOUGH v. STATE OF TENNESSEE
Direct Appeal from the Criminal Court for Shelby County
No. P-24323 Carolyn Blackett, Judge
No. W2008-01916-CCA-R3-PD - Filed June 30, 2010
Petitioner Roy E. Keough appeals as of right the judgment of the Shelby County
Criminal Court denying his petition for post-conviction relief. On May 9, 1997, a jury found
the Petitioner guilty of the premeditated murder of his wife, Betty Keough, and the attempted
first degree murder of Kevin Berry. For the murder conviction, the jury found that the
Petitioner had previously been convicted of one or more felonies for which the statutory
elements involve the use of violence to the person. See T.C.A. § 39-13-204(i)(2). The jury
further found that this aggravating circumstance outweighed mitigating circumstances
beyond a reasonable doubt. The jury then sentenced the Petitioner to death. The trial court
imposed a forty-year sentence for the attempted murder conviction to be served consecutive
to his sentence of death. The Petitioner’s convictions and sentences were affirmed on direct
appeal by the Tennessee Supreme Court. See State v. Keough, 18 S.W.3d 175 (Tenn. 2000).
On December 12, 2000, the Petitioner filed a pro se petition for post-conviction relief. An
amendment was filed on February 14, 2003, and an addendum to the amended petition was
filed on November 6, 2007. The post-conviction court held hearings on various dates in
September, October, and November 2007. On July 23, 2008, the post-conviction court
entered an order denying relief. On appeal to this Court, the Petitioner presents a number
of claims that can be characterized in the following categories: (1) the Petitioner’s trial
counsel were ineffective, (2) the Petitioner’s appellate counsel were ineffective; (3) the
Petitioner was denied a fair trial and (4) Tennessee’s death penalty statutory scheme is
unconstitutional. Following a thorough and exhaustive review of the record and the
applicable law, we affirm the judgment of the post-conviction court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
T HOMAS T. W OODALL, J., delivered the opinion of the Court, in which J OHN E VERETT
W ILLIAMS and J.C. M CL IN, JJ., joined.
Donald E. Dawson and Sara Willingham, Nashville, Tennessee, for the appellant, Roy E.
Keough.
Robert E. Cooper, Jr., Attorney General and Reporter; Michael Moore, Solicitor General;
James E. Gaylord, Assistant Attorney General; William L. Gibbons, District Attorney
General; and John Campbell, Assistant District Attorney General, for the appellee, State of
Tennessee.
OPINION
Facts Underlying the Petitioner’s Convictions
The following facts are excerpted from our supreme court’s opinion affirming the
Petitioner’s convictions and sentence:
Guilt Phase
The defendant, Roy Keough, and his estranged wife, Betty Keough,
were separated following a stormy marriage of two years that was beset with
problems and arguments. After the separation, the defendant and his girlfriend
rented a room at the home of his girlfriend’s brother, Bobby Holly. In
December of 1995, the defendant moved out of the residence, and Kevin
Berry, a friend of Holly’s, moved in.
On December 24, 1995, the victim, Betty Keough, visited the Holly
residence several times looking for the defendant. At around 11:30 a.m., the
victim told Holly that she had a gun in her car; she threatened to kill the
defendant and his girlfriend if she found them. She returned around 3:00 p.m.;
she appeared to have been drinking, but she did not make any threats during
this visit. Sometime after the victim left, the defendant stopped by the Holly
residence. Kevin Berry told the defendant that the victim was looking for him.
The defendant left.
The victim returned to the Holly residence for the third time around
8:30 p.m. She asked Kevin Berry to join her for a drink at a neighborhood bar.
Although the two had not met before that day, Berry accepted the offer. The
two drove to Irene’s Grill in the victim’s car. Shortly after they departed, the
defendant stopped by the Holly residence to see if the victim had returned.
Holly told the defendant that the victim and Berry had gone to Irene’s Grill.
The defendant seemed calm and did not appear to have been drinking. Holly
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testified that the defendant appeared to have parked his car where it could not
be seen.
The victim and Berry were seated at a table drinking beer when the
defendant arrived at Irene’s Grill. According to witnesses, the defendant and
the victim began “talking loud” and appeared to have an argument. Berry
testified that the defendant got “louder and louder” and wanted to know what
the victim was doing there. The owner of the bar did not hear the victim and
the defendant arguing, but she nonetheless asked them to leave the bar. She
testified that the defendant did not appear to be drunk, but she refused to serve
him a beer. The defendant, the victim, and Berry walked through a hallway
toward the back door. According to one witness, the victim appeared to push
either the defendant or Berry.
Berry testified that the defendant and the victim continued to argue as
the three walked to the victim’s car in the parking lot. The defendant asked
Berry to drive his car back to the Holly residence; Berry, who had been
drinking a beer, declined. Berry testified that the defendant then “pushed [the
victim] with both hands” with “some force behind it.” When Berry stepped
forward to intervene, the defendant stabbed him in the chest with a knife.
Berry tried to run but was pursued by the defendant and stabbed in the thigh.
Berry pushed the defendant away and ran toward the bar; the defendant again
caught him and stabbed him in the back. Berry somehow managed to escape
into the bar where individuals tended to his wounds and called police.
Officer James Currin arrived at the scene at approximately 10:00 p.m.
After checking on Berry’s condition and talking to individuals in the bar, he
went outside to the parking lot and found the victim in her car slumped over
the steering wheel. She was not moving. There was blood on her face and on
the seat of the car. The car doors were locked. Currin broke out the rear
window of the car so paramedics could examine the victim and confirm that
she was dead.
Martha Stephenson, the defendant’s girlfriend, testified that she had
lived with the defendant off and on for about twenty years. The defendant
called her at her daughter’s home around 9:30 p.m. and asked for money for
gasoline. She borrowed ten dollars from her daughter and went to the Holly
residence but was unable to find the defendant. She returned to her daughter’s
home, where she found the defendant in the driveway. The defendant told her
that “he had just stabbed his wife and her boyfriend” and that he had thrown
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the knife away. When she told the defendant that she did not have any money,
he said he would just wait on the police.
Stephenson’s daughter, Mary Stokes, testified that the defendant
showed up at her home and asked to borrow money. She told the defendant
she did not have any money. The defendant said that he and the victim had a
fight. The defendant asked for a drink and went outside to “wait for the
police.” He drank half a fifth of vodka and also some rum. The defendant
asked to use the phone to call his attorney. Stokes testified that she heard the
defendant say that he had “stabbed his wife” and that “she was probably dead.”
An officer later arrived and arrested the defendant. The arresting officer
testified that the defendant asked him, “which one did I get ?”
The defendant gave a statement to Detective James Nichols the next
day. Nichols testified that he read the defendant his Miranda rights and that
attorney Leslie Ballin was present for the interview. According to Nichols, the
defendant said he had been looking for his wife when he found her in the bar
with another man. They became involved in a verbal dispute and were asked
to leave by the management of the bar. Nichols testified that the defendant
told him that the argument with the victim escalated once they went outside
and that he stabbed the victim with a rifle knife. The defendant also told
Nichols that he also stabbed the man who was with his wife at the time. The
defendant further said, however, that “[h]e was angry or ... his emotions were
so high he couldn’t remember how many times or where he had stabbed his
wife or where he had stabbed the man that was with his wife.”
A forensic pathologist testified that the victim, age forty-two, sustained
a large stab wound at the top of her breastbone, which penetrated almost six
inches into her chest cavity. The wound inflicted upon her probably did not
immediately render her unconscious; death probably occurred within two to
five minutes. The wound was consistent with that caused by a bayonet used
with a moderate amount of force. There were no other wounds on the victim
of a defensive nature.
Several witnesses, including three who were present at Irene’s Grill,
testified during the defendant’s proof. Joanne Waine testified that she did not
see any argument or pushing between the defendant and the victim. Lisse
Moore testified that she believed the victim may have pushed the defendant as
they walked out of the bar. Virginia Walden testified that she saw the victim
slap the defendant while still inside the bar. Bobby Holly testified that the
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victim had been looking for the defendant on the day in question. She told
Holly that she would kill the defendant and his girlfriend if she found them.
Holly contacted the defendant and told him about the threat.
After deliberating on the charges, the jury convicted the defendant of
premeditated first degree murder and attempted first degree murder.
Sentencing Phase
Joyce Smart, the victim’s sister, testified that the victim’s first husband
died after he and the victim had been married for twenty-three years. The
victim met the defendant several months later, and they eventually married.
The victim was a grandmother and a very friendly woman. Ms. Smart
concluded that “our Christmases will never be the same.”
The prosecution introduced court records indicating that the defendant
was convicted of assault to commit voluntary manslaughter in Tennessee in
1974 and of manslaughter in Mississippi in 1989.
Several witnesses testified on behalf of the defendant. The defendant,
fifty-three years old, was one of eight children. Two of the defendant’s sisters
asked the jury to spare his life. Although the defendant was generally cordial
and nice, he and the victim had a “stormy” relationship. William Powers
testified that he worked with the defendant at a body shop for six or seven
years. On one occasion, the victim showed up at work, argued with the
defendant, and tried to hit the defendant with an air ratchet.
The jury found that the prosecution had proven one aggravating
circumstance that the defendant was previously convicted of one or more
felonies whose statutory elements involve the use of violence to the person.
Tenn. Code Ann. § 39-13-204(i)(2) (1997 & Supp.1999). The jury also found
that the evidence of this aggravating circumstance outweighed evidence of any
mitigating circumstances beyond a reasonable doubt and therefore imposed a
sentence of death. In a separate sentencing proceeding, the trial court imposed
a forty year sentence as a Range II offender for the attempted first degree
murder, to run consecutively. The Court of Criminal Appeals thereafter
affirmed the convictions and the sentences.
Keough, 18 S.W.3d at 178 -180.
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Proof at Post-Conviction Evidentiary Hearing
A hearing on the petition for post-conviction relief was held in the Shelby County
Criminal Court. During this hearing, the following proof was presented.
Gary Looney, Chief of Police in Byhalia, Mississippi, testified that in February 1989
he was the Chief Deputy of the Marshall County Sheriff’s Department. Chief Looney was
involved in the investigation of the murder of Robert E. Lee. Chief Looney responded to
the crime scene, where he discovered the victim Robert E. Lee laying in the floor of the
mobile home. Roy Keough, two other women and a child were also in the mobile home.
There was no electricity in the mobile home. The home was in disarray and there were
visible signs that there had been alcohol consumption. A rifle and ammunition were present.
Chief Looney remarked that the adults present were inebriated. He identified the adult
persons present as Roy Keough, Betty Keough, and Evone Perkins. The Betty Keough
present at the incident in Mississippi is not the same Betty Keough who was the victim of the
Petitioner’s Tennessee murder conviction. Robert E. Lee was the Petitioner’s brother-in-law.
Evone Perkins was Betty Keough’s cousin. Robert E. Lee later died as a result of the
gunshot wound.
Chief Looney related that the Petitioner was arrested two days after the homicide and
that he took a statement from the Petitioner. The Petitioner later entered a guilty plea to
voluntary manslaughter.
Joseph Crenshaw testified that he was the shop foreman at Tom Martin’s Body Shop
in Memphis. The Petitioner worked as a body man at the shop for six to eight years. Mr.
Crenshaw stated that he had also worked with the Petitioner’s brother, Charles, at another
body shop. Charles Keough had an alcohol problem. Mr. Crenshaw stated that Charles “had
to have a quite a bit [of alcohol] to [drink] every day” in order to work. In fact, Charles
would drink during the work day. Mr. Crenshaw explained that, if Charles “didn’t have a
certain degree to drink during [the] day he wouldn’t make the full day.”
Joseph Crenshaw testified that, when the Petitioner arrived for work in the mornings,
he could tell “whether he had a good bit to drink the night before and had some overlap
during the day because he would leave during the morning sometimes and disappear for a
while . . . in a little while he’d come back and you could tell he’d gone and gotten something
to drink.” Mr. Crenshaw also stated that sometimes he would smell alcohol on the
Petitioner’s breath when he came to work in the mornings. Mr. Crenshaw stated that, as long
as the Petitioner had a “good bit of alcohol,” he would do his work and “he did real good
work.” Mr. Crenshaw stated that defense counsel never contacted him prior to the
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Petitioner’s May 1997 trial. On cross-examination, Mr. Crenshaw clarified that the time
period he testified to was in the late 1970s and early 1980s.
Bobby Holley was a witness at the Petitioner’s 1997 trial. He explained that he had
met the Petitioner through his sister Ann Stevenson. The Petitioner lived with Mr. Holley
for three to four months. Mr. Holley stated that the Petitioner “would usually be drinking.”
He explained that the Petitioner would typically be drinking but would not appear drunk.
At the Petitioner’s trial, Mr. Holley testified that he saw the Petitioner on December
24, 1995. Mr. Holley testified that the Petitioner did not appear intoxicated. At the post-
conviction hearing, Mr. Holley explained that he never could tell whether the Petitioner had
been drinking. Mr. Holley testified that, on December 24, 1995, he also saw the victim Betty
Keough several times. At trial, he testified that Betty Keough appeared agitated. Mr. Holley
also testified that Betty Keough appeared to have been drinking. He confirmed that his
testimony was basically to establish that the Petitioner’s “angry drunk estranged wife” came
over to his home looking for him. Mr. Holley stated that the Petitioner was the type of
individual who never appeared drunk but who always was drinking.
Dallas Moore is the owner of Blackie’s Auto Body Collision. He testified that the
Petitioner worked at Blackie’s in the late 1960s, the early 1970s, and again in the early
1980s. Mr. Moore testified that the Petitioner was a good body man. He added, however,
that the Petitioner had an alcohol problem. Mr. Moore stated that the Petitioner would
become belligerent and was even fired on at least two occasions. He recalled that the
Petitioner would take long lunch breaks and then would not want to work the rest of the day.
Although he could not recall a specific occasion in which the Petitioner was drinking on the
job, he did observe the Petitioner’s demeanor at work. He stated that he was afraid to fire
the Petitioner. Mr. Moore testified that the Petitioner’s drinking “made him dangerous.”
John Keough, the Petitioner’s brother, testified that he is ten years older than the
Petitioner. John Keough explained that Dorothy was the oldest child, then Charles, Carolyn,
John, Regina, Eleanor, the Petitioner, and Judy. Of the eight children, Charles and Carolyn
were deceased. John Keough testified that they were raised on a farm out near Collierville,
Tennessee. He stated that the family moved to Pennsylvania in the late 1930s so their father
could seek work in the coal mines. They remained in Pennsylvania for a short time and then
returned to Tennessee. When their grandfather passed away, their father inherited the farm.
They worked on the farm until 1950 or 1951. John Keough explained that their father had
to sell the farm due to financial burdens. Their father then ran a type of general store and
drove a school bus. John Keough related an incident where the Petitioner was caught
drinking whiskey when he was about five years old.
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John Keough testified that the Petitioner left school when he was fifteen years old.
The Petitioner moved in with their brother Charles, and Charles got the Petitioner a job in
an automotive body shop. John Keough stated that Charles Keough had served in the service
during the Korean War. After the service, Charles went to school to learn automotive body
repair and worked in that field most of his life. Charles Keough drank alcohol “pretty
regularly,” “[i]n fact, he was an alcoholic.” John Keough testified that when Charles drank
“he would get argumentative and belligerent.” Charles Keough quit drinking around 1980.
John Keough stated that their father drank and that he would also consider him to be
an alcoholic. Their father drank whiskey and would drink it with water or coke. He added
that their father would become argumentative when he drank.
In 1971, John Keough and the Petitioner went into business together, opening a body
fender repair shop. He stated that the business failed because they did not have the insurance
business that a body shop needs to succeed. He added that the Petitioner left the business
first. After 1971, John spent little time with the Petitioner.
John Keough stated that he was never contacted by the Petitioner’s trial counsel. He
stated that he would have talked with them and that he would have been available to testify
at trial. He stated that he knew that the Petitioner had been arrested and sent to prison in
Mississippi. He stated that he did not visit the Petitioner while he was incarcerated in
Mississippi. John Keough stated that he saw the Petitioner on at least one occasion after he
got out of prison in Mississippi. He was aware of the Petitioner’s arrest in Memphis. John
Keough did not visit the Petitioner in jail after his arrest. He stated that he has not visited the
Petitioner nor followed his case.
Tom Martin, Jr., is the owner of an automotive body shop on South Third Street. He
testified that the Petitioner was employed at his shop at various times in the 1970s and 1980s.
He described the Petitioner as a good employee and a hard worker. Mr. Martin stated that,
occasionally, he would have some problems with the Petitioner regarding his alcohol use.
He described the Petitioner’s alcohol use as an “on and off thing.” He continued that he
would usually notice the alcohol use when the Petitioner returned from lunch. Mr. Martin
would notice that there would be a change in the Petitioner’s actions. Mr. Martin stated that
the Petitioner would be much more vocal when he was drinking and sometimes he would
“just completely get out of control . . . using foul language and threatening.” Mr. Martin
stated that he had heard that the Petitioner had gone to prison in Mississippi in 1990.
Eleanor Raley, the Petitioner’s sister, testified that she was three years older than the
Petitioner. She stated that when she was growing up the family was poor and did not have
electricity or running water. She stated that they were poor, but everyone else was too.
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When she was nine years old, her father sold the farm and moved the family to Fayette
County. Her father rented a general store from his brother. The family lived in the back of
the store. She stated that, once at the store, the family’s economic situation became worse.
She blamed this on the fact that their father’s drinking increased as the store sold beer. She
explained that her father would drink the beer instead of selling the beer. She stated that her
father had a problem with alcohol and sometimes would become violent after drinking. Ms.
Raley stated that her brothers, Charles and the Petitioner, also had problems with alcohol.
Ms. Raley stated that their father would take the Petitioner to the whiskey store and would
buy the Petitioner mint gin. She estimated that the Petitioner was five or six years old. She
recalled an incident where the Petitioner and the “neighbor boy” were found underneath the
house drunk.
Ms. Raley stated that their mother had a hard life. In addition to putting up with
threats and violence from their alcoholic father, she had to pick cotton, cook lunch and go
to the fields, all without electricity or running water.
Ms. Raley testified that the Petitioner would not go to school and the truancy officer
would have to come get him. She recalled that the Petitioner dropped out of school in the
ninth grade. She stated that the Petitioner was married to his first wife, Barbara, for twelve
to fifteen years. She added that this marriage ended due to the Petitioner’s violence towards
his spouse. He then married a woman named Betty. This marriage also ended in divorce.
He then married another woman named Betty. This woman was the victim killed December
24, 1995. Ms. Raley stated that she had heard “through the grapevine that both of them were
drinks [sic] and alcohol and fights [sic].”
Ms. Raley stated that she was never contacted by defense counsel prior to the trial.
She stated that, at the time, she was living about 110 miles from Memphis. She conceded
that, after her marriage in 1959, she did not maintain close contact with the Petitioner. She
did visit the Petitioner on numerous occasions when he was in prison in Mississippi.
However, she did not continue the relationship with the Petitioner after he was released from
prison. Ms. Raley learned that the Petitioner had been arrested in Memphis. At the bequest
of her sister Dorothy, Ms. Raley did visit the Petitioner while he was in jail in Memphis.
Regina Holbach, another of the Petitioner’s sisters, testified that, when she was
growing up, the family had no running water or electricity. She stated that they had to sleep
three in the bed. She recalled their father drinking beer and moonshine. She testified that
her brothers Charles and the Petitioner later developed drinking problems as well. Ms.
Holbach stated that Charles’ alcohol problem was pretty bad. He would get mean and want
to fight. Ms. Holbrook testified at the Petitioner’s 1997 trial. She stated that they did not
make inquiry into the family’s background.
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William Gosnell, an attorney practicing in Shelby County, testified that James Ball,
the Petitioner’s trial counsel, suffered a major stroke two years prior to the post-conviction
hearing. Prior to his stroke, Mr. Ball had a hip replacement. Mr. Gosnell reported that the
stroke impaired Mr. Ball’s ability to speak.
Joseph Ozment, along with James Ball, represented the Petitioner at trial and on
appeal. Mr. Ozment testified that he had attended numerous courses in criminal law,
including all capital case seminars in the Capital Resource Center. Regarding investigation,
Mr. Ozment testified that he went to Irene’s Tavern on numerous occasions. He explained
that Irene, the proprietor, did not want to talk with him much. He also talked with family
members during the week of the trial. Mr. Ozment explained that his file in this case was
destroyed in a fire at his office.
Mr. Ozment testified that it was his understanding that they had everything that the
State had given in discovery. He could not recall a hearing on pre-trial motions but was
certain that one was conducted. Mr. Ozment stated that Glory Shettles, an investigator with
Inquisitor, Inc., signed an affidavit stating that a mitigation investigation would take six
months. Mr. Ozment stated that, in his experience since the Keough trial, a mitigation
investigation could take a year or more. Mr. Ozment testified that it was necessary to gather
all of the defendant’s social history to have a presentation at a capital sentencing hearing.
Mr. Ozment recalled that the trial court declined to appoint Inquisitor, Inc., to perform the
mitigation investigation, citing the length of time involved. Additionally, the trial court
refused to authorize the hourly rate requested by Inquisitor, Inc. The trial court did grant a
lower hourly rate and approved the services of Brewer Detective Services. Mr. Ozment
stated that the trial court’s order in this case was consistent with the practice of the courts in
Shelby County at the time. Mr. Ozment confirmed that they did not seek interlocutory review
of the lower court’s order.
Mr. Ozment testified that they did not receive the final report from the Brewer
Detective Agency until after the trial. However, he stated that they were in constant contact
with the Agency from the time of their appointment. He explained that the date of the final
report, i.e., after the trial, was not an accurate reflection of what occurred. The majority of
the information gathered by the Brewer Detective Agency was received prior to trial.
Included in the information gathered is an interview of Dorothy Savage, the Petitioner’s
sister. In this interview, Dorothy Savage related that there was an incident where the victim
held a gun to the Petitioner’s head. It was understood that the victim and the Petitioner had
a very stormy relationship.
The Brewer Detective Agency spent thirty-five hours taking statements and locating
witnesses. The total billed hours was fifty-three hours. Mr. Ozment stated that, in his
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opinion, Brewer could have possibly found more witnesses had they had more time and more
money.
Mr. Ozment testified that the defense theory of the case was self-defense and a lack
of intent due to intoxication. He conceded that they probably did not have a tremendous
amount of proof to support involuntary intoxication. He stated that they did not have an
expert to testify to involuntary intoxication. Mr. Ozment agreed that the involuntary
intoxication instruction requires some proof of mental disease or defect. He stated that, at
some point, they discussed having the Petitioner examined by a mental health expert. He
recalled consulting with Dr. Marsha Little, a psychologist, who went and spoke with the
Petitioner at the jail. Dr. Little was not appointed by the trial court. Mr. Ozment did file a
motion requesting that the court appoint Dr. Ciocca, a psychologist. This request was made
on the third day of trial. Dr. Ciocca was appointed. Mr. Ozment testified that Dr. Ciocca’s
examination was for the purpose of mitigation evidence.
Mr. Ozment testified that he was aware that the Petitioner was an alcoholic. He could
not recall whether he and Mr. Ball discussed the possibility of brain damage or cognitive
impairments resulting from long term alcohol use. He stated that they did not request an
instruction on diminished capacity.
Mr. Ozment testified that the defense also relied upon a theory of voluntary
manslaughter. In support of this theory, the defense focused on the “fight, the heat of passion
that occurred in the bar.” He stated that their defense was not that the Petitioner was an
alcoholic. Rather, part of their defense was that the Petitioner was drunk that night. Mr.
Ozment conceded that the Petitioner’s alcoholism was more necessary for mitigation. Mr.
Ozment stated that there was a theory for the penalty phase of trial. He conceded that in
establishing the Petitioner’s alcoholism as a possible mitigating circumstance that it would
be necessary to talk with family, friends, and employers regarding the Petitioner’s drinking
habits.
Mr. Ozment stated that he could not recall any specific actions completed by defense
counsel which would have led to information regarding the Petitioner’s alcohol abuse. He
again stated that their defense was not that the Petitioner was an alcoholic. Mr. Ozment
stated that, through his attendance at various seminars, he is aware that early childhood
alcohol abuse can have an effect on the brain. Mr. Ozment could not recall taking steps to
have the Petitioner examined for possible brain damage. He added that they had no
indicators to believe that the Petitioner had any difficulties with brain function.
Mr. Ozment could not recall whether the defense team investigated the Petitioner’s
family’s poverty. He stated that he did not believe that the defense team investigated the
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Petitioner’s exposure to toxic fumes in his auto body work. He stated that, due to lack of
funding, he did not investigate hereditary issues involving the males in the Keough family.
Mr. Ozment stated that they did not appeal the lower court’s decision to limit funds.
Regarding the appeal in this matter, Mr. Ozment confirmed that five issues were
raised in the Court of Criminal Appeals. One of the issues addressed the trial court’s refusal
to admit the Petitioner’s written statement. Mr. Ozment related that the theory on appeal was
that the oral statement and the written statement were collectively one statement. He stated
that, if the court determined that the statements were two, “we lose.” Mr. Ozment agreed that
he should have filed a petition to rehear with the Court of Criminal Appeals in light of the
fact that its opinion reflected that the “second statement was taken in a different room by
different officers who apparently . . . were unaware what the defendant told Detective
Nichols.”
On cross-examination, Mr. Ozment agreed that the Petitioner’s family members
appeared to be more cooperative at the post-conviction proceeding. He agreed that at the
time of the trial the Petitioner’s family members appeared estranged from the Petitioner. Mr.
Ozment stated that the defense’s decision not to cross-examine Mrs. Stokes was based on his
belief that Mr. Ball was “scared of this witness for some reason.” He could not recall the
basis of this reasoning, however. He did recall that they perceived Mrs. Stokes as a witness
not favorable to the defense.
Regarding voir dire, Mr. Ozment reaffirmed that every attorney has his own personal
style of voir dire. He stated that Mr. Ball was a very likable person and he was very warm
with the jury, interacting with individual jurors. He agreed that an attorney’s intuition about
potential jurors plays an important role in voir dire. He confirmed that they used nine of their
sixteen challenges. He conceded that it was fair to presume that they were satisfied with the
empaneled jury since they did not use the remaining seven challenges.
Mr. Ozment stated that there was never any indicators from the Petitioner that he was
suffering from alcoholism. He added that there was never any indication that the Petitioner
was withholding information and/or that the Petitioner did not understand what was being
explained by counsel. He stated that had he determined that the Petitioner was unable to
understand him, appropriate steps would have been taken to ensure a mental evaluation of
the Petitioner. Mr. Ozment testified that the Petitioner’s statements to counsel during the
preparation for trial coincided with the statement that the Petitioner gave to police.
Inspector Harvey Sullivan testified that in December 1995 he was a sergeant in the
homicide division of the Memphis Police Department. Inspector Sullivan was the case
coordinator in the Petitioner’s case. He explained that position involved gathering the
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paperwork and submitting it to the District Attorney General. Inspector Sullivan related that,
on December 25, 1995, he arrived at work after receiving a telephone call from Sergeant
Nichols. He was advised that there was a homicide and that a suspect was in custody.
Inspector Sullivan discovered the Petitioner in the interview room. Sergeant Nichols advised
him that the Petitioner was represented by counsel and that the Petitioner had contacted
counsel. Counsel arrived and talked with the Petitioner. Counsel then talked with Inspector
Sullivan and Sergeant Nichols. Inspector Sullivan informed counsel that, based upon what
he was reading, it appeared that the charge would be second degree murder. Counsel
informed Inspector Sullivan that, if he would charge second degree murder, then the
Petitioner would give a signed statement. Inspector Sullivan reported that the District
Attorney General later determined to charge first degree murder. Inspector Sullivan testified
that he was not certain whether he was present for the oral statement given by the Petitioner
on December 25, 1995.
Lieutenant James Nichols testified that, on December 25, 1995, he served as a
detective sergeant in the homicide division of the Memphis Police Department. He explained
that, on Christmas Day, only a skeleton shift would be working. Early Christmas morning,
he called the homicide office and asked whether there had been any homicides the previous
night. He was informed that there was a homicide. Lieutenant Nichols then proceeded to
the morgue to view the body, take Polaroids of the wounds, and take fingerprints to
positively identify the person. He arrived at the homicide office at 8:00 a.m., where he was
informed that a person was waiting in the interview room. Lieutenant Nichols discovered
the Petitioner in the interview room. Lieutenant Nichols poured the Petitioner a cup of coffee
and told him it was okay to smoke a cigarette in the room. The Petitioner then informed
Lieutenant Nichols that he wanted to talk to his attorney, Leslie Ballin.
Leslie Ballin arrived at the homicide office at 10:30 a.m. After meeting with the
Petitioner, Leslie Ballin informed Lieutenant Nichols that the Petitioner was ready to talk to
the officers. Lieutenant Nichols and Inspector Sullivan went into the interview room along
with Leslie Ballin. At this time, the Petitioner was Mirandized and provided an oral
statement. Lieutenant Nichols could not positively confirm that Inspector Sullivan remained
in the room the entire time. He stated that Inspector Sullivan may have left the room to
answer the telephone. Lieutenant Nichols stated that had Inspector Sullivan left the room
and was outside of hearing range that fact would have been documented in the report.
After the oral statement concluded, Lieutenant Nichols was called to attend another
matter. At this time, he turned over the interview of the Petitioner to Inspector Sullivan and
O.W. Stewart.
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Dr. Keith Caruso, a forensic psychiatrist, testified that he was asked to evaluate the
Petitioner. He interviewed the Petitioner on May 28, 2003, June 3, 2003, and August 31,
2007. In addition to his cumulative eight hours of interviews with the Petitioner, Dr. Caruso
reviewed numerous documents, including police and medical records. Dr. Caruso
emphasized that the Petitioner was exposed to alcohol very early in life. In addition to
alcohol use, the Petitioner suffered significant head trauma a number of times. For instance,
in 1975, the Petitioner had a significant injury which required hardware being placed around
the orbit of his eye. Additional head trauma occurred in 1983, 1984, 1988, and in 1994. Dr.
Caruso opined that the Petitioner “suffered some brain damage and some of these insults
occurred at a very early age.” He noted that the Petitioner had exposure to solvents
throughout his career working in auto body repair. The collective result of the exposure and
the head trauma occurring before the offense resulted in brain damage.
Dr. Caruso testified that, in 1995, a referral for psychiatric care of the Petitioner was
made. He stated that the Petitioner was ultimately diagnosed with major depression. Dr.
Caruso reflected that both the Petitioner and Betty Keough were both receiving psychiatric
treatment in 1995.
Dr. Caruso consulted with other experts before arriving at his diagnosis of the
Petitioner. He spoke with Daniel Grant, a psychologist, Murray Smith, a substance abuse
specialist, and Robert Kessler, a neuroradiologist. Dr. Caruso related that the results of the
Petitioner’s PET scan had some abnormal findings. A CT scan of his head showed some
“mild diffused corticotroph,” which are cells of the anterior lobe of the pituitary gland. The
PET scan showed decreased brain function in the frontal lobes of the brain. Dr. Caruso
testified that the Petitioner’s frontal lobes are not functioning.
Dr. Caruso opined that “one of the diagnosis is a severe mental disease, major
depression, another is severe mental defect, and that’s dementia due to multiple ideologies
or multiple causes which would be multiple closed head trauma, chronic alcoholism, and
exposure to solvents.” Dr. Caruso added that the Petitioner was alcohol dependent and, at
the time of the offense, was intoxicated on alcohol. The Petitioner had a history of abusing
other substances, including benzodiazepines, pain medications, and tranquilizers. Dr. Caruso
concluded that the Petitioner satisfied criteria for poly substance abuse. Dr. Caruso added
that the Petitioner met the criteria for anti-social personality disorder with borderline traits.
Dr. Caruso opined that the causes of the Petitioner’s brain damage were multiple. He
delineated chronic exposure to alcoholism that dated to the age of five or six years, multiple
closed head traumas, and exposure to organic solvents. Regarding his diagnosis of alcohol
dependence, Dr. Caruso stated that several witnesses verified the Petitioner’s drinking and,
in 1994, the Petitioner had surgery for a bleeding ulcer. The Petitioner reported that he
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suffered from “the shakes” and other withdrawal symptoms if he did not maintain his
drinking. Dr. Caruso also reflected upon the domestic violence modeling prevalent in the
Petitioner’s family. That is, he explained, if you live in a home in which women are treated
badly, you are at a higher risk for treating women badly and for domestic violence as you get
older.
Regarding the homicide, Dr. Caruso reflected that, at the time, the Petitioner suffered
from a “severe mental defect, the dementia due to the multiple ideologies, the head trauma,
the chronic alcoholism and the solvent exposure.” These defects impacted the Petitioner’s
ability to process information and inhibited his ability to maintain his emotions. The
Petitioner’s intoxication exaggerated the other symptoms. Dr. Caruso opined that the
Petitioner “was in a state of a great deal of passion and excitement at the time of the alleged
offense.” He added that the Petitioner had damage to his brain in the area that controls
impulse control. Dr. Caruso stated that the Petitioner had “diminished impulse control.”
Lisse Wendt testified at the Petitioner’s 1997 trial. Ms. Wendt was present at Irene’s
Bar on the night of the homicide. Ms. Wendt observed the owner of the bar approach the
victim and the Petitioner and ask them to leave the bar. Ms. Wendt also observed Betty
Keough shove the Petitioner. She conceded that she may not have had a clear view of the
incident.
Mary Stokes Kelly also testified at the Petitioner’s 1997 trial. Ms. Kelly is the
daughter of Ms. Stephenson, the Petitioner’s “on again, off again” girlfriend. Ms. Kelly
explained that the Petitioner had spent the evening of December 23, 1995, at her home. She
testified that the Petitioner’s trial counsel did not contact her prior to the trial. Regarding her
relationship with the Petitioner, Ms. Kelly stated that he “raised her for probably a period of
five years,” and she had known him for about thirty years. She testified that the Petitioner
was a “[v]ery frequent” drinker.
Ms. Kelly related that, on the morning of December 24, 1995, the Petitioner, upon
arising, asked her for a beer. Ms. Kelly informed him that she did not have beer but that she
had vodka and rum. The Petitioner asked her for the vodka. She stated that the Petitioner
first drank a six-ounce glass of vodka and then approximately three more ounces of vodka.
The Petitioner then filled a flask with vodka, which he continued to drink out of during the
day. The Petitioner later purchased at least two large cans of beer, which he drank. When
the group returned to Ms. Kelly’s home, the Petitioner received telephone calls from Bobby
Holley. The Petitioner then left. At the time of the Petitioner’s departure, Ms. Kelly reported
that less than three-quarters of the vodka was left. When the Petitioner later returned to her
home, he finished the bottle of vodka and drank half of the half-gallon bottle of rum.
-15-
Dr. Daniel Grant, a neuropsychologist, testified that, in February 2005, he met with
the Petitioner on two occasions in order to perform a neuropsychological assessment. Dr.
Grant consulted with Dr. Caruso, a psychiatrist, and Dr. Smith, an addictionologist. Dr.
Grant also had access to the report of Dr. Kessler. Dr. Grant concluded that the Petitioner
suffered from “dementia due to multiple ideologies,” resulting from “ a number of head
injuries. . . .” He added that the dementia could be “due to the head trauma, due to substance
abuse which would have been the alcohol, and also solvent exposure through the use of
working with the paints and chemicals in the body shop and also then major depression
which was recurring.”
Dr. Grant testified that the Petitioner’s general level of functioning was 55. He
explained that the average person is functioning at 75 or higher. Dr. Grant confirmed that
the Petitioner completed an eight-week alcohol and drug program while incarcerated in
Mississippi.
Dr. Murray Smith, a certified specialist in addiction medicine, testified that he was
retained by post-conviction counsel to evaluate the Petitioner. Dr. Smith met with the
Petitioner on two occasions, once in September 2006, and again early September 2007. He
testified that, as a result of these interviews, he learned that the Petitioner’s life has been
severely and drastically impacted by his use of alcohol. Dr. Smith stated that alcoholism is
genetic. In this regard, it was important to have an understanding of the Petitioner’s family
history of alcoholism. The Petitioner’s older brother Charles was “a very severe alcoholic,”
who suffered from rage episodes. Dr. Smith also related that the Petitioner’s father was
clearly an alcoholic. The Petitioner’s father had temper episodes to a lesser extent than the
Petitioner and Charles. In addition to the hereditary aspects of alcoholism, there is also the
psychosocial and environmental issues that impact the use of alcohol. Environmentally, the
Petitioner was exposed to alcohol very early in life and by the age of sixteen, was drinking
on a daily basis. Dr. Smith stated that alcoholism is a progressive illness, i.e., it worsens as
time goes on.
Dr. Smith learned that the Petitioner worked regularly throughout his life in the auto
body repair industry. In this line of work, the Petitioner was routinely exposed to solvents.
Dr. Smith related the Petitioner’s exposure to “huffing,” or inhaling things. He stated that
the solvents used in auto body repair had a similar impact on the brain as alcohol with the
exception that they tend to cause more brain damage. Dr. Smith testified that the Petitioner
reported drinking a fifth of Old Charter on a daily basis. Dr. Smith also stated that the
Petitioner suffered from multiple head injuries. Dr. Smith related that the Petitioner had
“episodes of rage that started when he was a teenager.” This was especially volatile when
accompanied with alcoholism. He stated that episodes of violence are not uncommon when
combined with the use of alcohol.
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Dr. Smith opined that the Petitioner “is a chronic alcoholic who also has evidence of
brain damage, most likely related to multiple factorial causes which included closed head
trauma, the exposure to the solvents and the chronic alcoholism.” In reaching his diagnosis,
Dr. Smith related three factors that comprise addiction: (1) preoccupation with alcohol, (2)
loss of control or compulsive use of alcohol, and (3) continuing use even when presented
with problems. He stated that the Petitioner’s history satisfies these three criteria for
addiction. Dr. Smith confirmed that the Petitioner had been diagnosed by other professionals
as suffering from dementia, cognitive deficits, and frontal lobe brain dysfunction. Dr. Smith
testified that when you add alcoholism to these impairments, the deficits or dysfunction is
magnified. As to the night of the offenses, Dr. Smith stated that the Petitioner was
intoxicated and he was in a rage. The Petitioner’s rage took over and he became impulsive
which is multi-factorial from both the alcohol and the brain injuries. Dr. Smith stated that
“[i]mpulsivity is the opposite of reflectivity.” The Petitioner’s “[i]mpulsivity was
accentuated by the alcohol. Dr. Smith testified that “rage is not premeditated.” He stated
that the Petitioner did not choose to go into a rage on that night.
Dr. Smith testified that, since the Petitioner’s incarceration, there have been no
incidents of inappropriate or rageful behavior. He concluded that this was based on the
combination of things including the fact that the disinhibitory effect of alcohol has not been
present.
Dr. Ciocca testified that he could not recall ever performing an evaluation of the
Petitioner.
James Robert Carter, Jr., was the lead prosecutor in Petitioner’s case in the trial court.
Mr. Carter stated that he was not involved in the decision to file the death notice in this case.
He stated that a plea offer was made in this case, but that was not unusual. Mr. Carter agreed
that the decision of whether a sentence of death was appropriate in any given case was
ultimately the decision of the jury. He stated that there is no ban to the offer or acceptance
of a plea after the death notice was filed.
Judge Leonard T. Lafferty presided over the Petitioner’s 1997 trial in the Shelby
County Criminal Court. Judge Lafferty testified that, in selecting James Ball and Joseph
Ozment to replace the Public Defender’s Office in representing the Petitioner, he had
confidence in James Ball’s abilities and that Mr. Ball had an extraordinarily good knowledge
of the law as well as a great rapport with juries. He related that, in his opinion, Mr. Ball and
Mr. Ozment appeared prepared for the case, both at the guilt and penalty phase.
Judge Lafferty testified that the aggravating circumstance relied upon by the State in
support of the imposition of the death penalty was the fact that the Petitioner had been
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previously convicted of a felony whose elements involved violence to a person. He
confirmed that this factor is generally a more significant aggravator. Judge Lafferty stated
that, because of the facts of this case, he charged second degree murder and voluntary
manslaughter. He also charged self-defense.
Regarding expert services in this case, Judge Lafferty conceded that the request for
mitigation services submitted twelve days prior to trial was “calling it close.” Judge Lafferty
also recognized that when an attorney was asking for an instruction on intoxication it was
logical to presume some evidence of alcoholism. He stated that, in his opinion, had James
Ball known about the Petitioner’s alcoholism, he would have requested an expert in mental
health to prepare this issue.
Standard of Review
Post-conviction relief is only warranted when a petitioner establishes that his or her
conviction is void or voidable because of an abridgement of a constitutional right. T.C.A §.
40-30-103. The petition challenging Petitioner Keough’s convictions is governed by the
1995 Post-Conviction Act, which requires that allegations be proven by clear and convincing
evidence. See T.C.A. § 40-30-110(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 has ruled upon a petition, its findings of fact are
conclusive on appeal unless the evidence in the record preponderates against them. Wallace
v. State, 121 S.W.3d 652, 656 (Tenn. 2003); Nichols v. State, 90 S.W.3d 576, 586 (Tenn.
2002) (citing State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999)). This Court may not reweigh
or reevaluate the evidence or substitute its inferences for those drawn by the post-conviction
court. Nichols, 90 S.W.3d at 586. Questions concerning the credibility of witnesses and the
weight to be given their testimony are for resolution by the post-conviction court. Id. (citing
Henley v. State, 960 S.W.2d 572, 579 (Tenn. 1997)). It is, therefore, the burden of the
petitioner to show that the evidence preponderated against those findings. Clenny v. State,
576 S.W.2d 12, 14 (Tenn. Crim. App. 1978).
Notwithstanding, determinations of whether counsel provided a defendant
constitutionally deficient assistance present mixed questions of law and fact. Wallace, 121
S.W.3d at 656; Nichols, 90 S.W.3d at 586. As such, the findings of fact are reviewed under
a de novo standard, accompanied with a presumption that those findings are correct unless
the preponderance of the evidence is otherwise. See Fields v. State, 40 S.W.3d 450, 458
(Tenn. 2001) (citations omitted). In clarifying the standard, our supreme court explained that
the standard for reviewing the factual findings of a trial court has always been in accordance
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with the requirements of the Tennessee Rules of Appellate Procedure, specifically Rule
13(d). Id. at 456.
I. Denial of Right to Full and Fair Post-Conviction Evidentiary Proceeding
Due process in the post-conviction setting requires that the defendant have “the
opportunity to be heard at a meaningful time and in a meaningful manner.” Stokes v. State,
146 S.W.3d 56, 61 (Tenn. 2004). The Petitioner asserts that he was denied a full and fair
post-conviction evidentiary proceeding in that the trial court denied the Petitioner’s motion
for limited cross-examination.
The Petitioner filed a motion for a declaration that he retain his right against self-
incrimination and to permit him to testify regarding his relationship with trial counsel and
the circumstances of a plea offer without subjecting himself to cross-examination on the
circumstances of the offense. The post-conviction court found that, although the Petitioner
retained a right not to testify, if he did testify regarding any post-conviction claim he would
waive that right and would be subject to cross-examination on any issue by the State.
Counsel for the Petitioner then entered a proffer of the evidence to which the Petitioner
would testify if he had been permitted to testify without being cross-examined on the facts
and circumstances of the offense. The proffer included the following information:
The Petitioner and trial counsel never discussed the facts of the case.
Counselor Ball visited the Petitioner at least once in jail, during which Mr.
Ball discussed religion and not the Petitioner’s case.
The Petitioner asked Mr. Ball whether he could get a plea offer. Mr. Ball
responded that he would have to wait for the State to voluntarily make the
offer.
The Petitioner met with Counselor Ozment twice, during which time they
never discussed the facts of his case.
The Petitioner asked Counselor Ball to subpoena certain witnesses. Mr. Ball
responded that they were not able to subpoena these witnesses.
The Petitioner did not see a psychologist or psychiatrist prior to trial.
The first plea offer was made during voir dire. This offer was for twenty-five
years to second degree murder. No further offers were made.
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The Petitioner asked Mr. Carter if he could work with him a little bit. Mr.
Carter said no because he could get at least twenty-five years.
A witness may be cross-examined on any matter relevant to any issue in the case. See
Tenn. R. Evid. 611(b). At trial, the scope of cross-examination of a criminal defendant is
defined by Rule 611(b), which permits cross-examination on any relevant subject. Tenn. R.
Evid. 611(b). The propriety, scope, manner, and control of cross-examination of witnesses
rests within the sound discretion of the trial court. State v. Dishman, 915 S.W.2d 458, 463
(Tenn. Crim. App. 1995) (citations omitted). The Petitioner seeks to limit the scope of his
cross-examination with disregard to the court’s discretion and/or the Rules of Evidence. In
support of his request, the Petitioner cloaks himself within the protections of the Fifth
Amendment.
The Fifth Amendment, by its terms, prevents a person from being “compelled in any
criminal case to be a witness against himself.” U.S. Const., Amendment V. An individual’s
privilege against self-incrimination is rooted in our society’s “traditional respect for the
individual.” Maness v. Meyers, 419 U.S. 449, 461, 95 S. Ct. 584, 592 (1975). The privilege
ensures the continued vitality of our accusatorial system of justice. See United States v.
Rivas-Macias, 537 F.3d 1271, 1277 (10th Cir. 2008) cert. denied, – U.S. –, 129 S. Ct. 1371
(2009).
In order for the privilege to apply, the individual must face “some authentic danger”
of self-incrimination. Id. at 1277 (citing United States v. Castro, 129 F.3d 226, 229 (1st Cir.
1997); see also Zicarelli v. New Jersey State Comm’n of Investigation, 406 U.S. 472, 478,
92 S. Ct. 1670, 1675 (1972); Ullman v. United States, 350 U.S. 422, 439, 76 S. Ct. 497, 507
(1956)). When no further danger of incrimination is present, the privilege ceases to apply.
In Mitchell v. United States, 526 U.S. 314, 119 S. Ct. 1307 (1999), the United States
Supreme Court determined, as a general rule, that where there can be no further
incrimination, there is no basis for the assertion of the privilege. Id. at 326, 119 S. Ct. at
1314. If no adverse consequences can be visited upon the convicted person by reason of
further testimony then there is no further incrimination to be feared. Id. In the present case,
the Petitioner asserts that, because “[t]he purpose of a post-conviction proceeding is to
provide a remedy for those individuals who have been unconstitutionally deprived of a fair
trial;” i.e., a new trial, “there is certainly a possibility that the Petitioner’s testimony could
be used against him.” The State asserts that there is no basis for the assertion of the privilege
where the sentence has been fixed and the judgment of conviction has become final.
In Nichols v. State, the State called Nichols to testify at the post-conviction
evidentiary hearing. Nichols invoked his constitutional right against self-incrimination and
refused to answer questions. Nichols, 90 S.W.3d at 586. Nichols was permitted to assert
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his right against self-incrimination by the trial court and did not answer any of the questions
asked by the prosecutor about the offenses and the post-conviction allegations. Although not
raised as an issue on direct appeal, a panel of this Court concluded that Nichols should not
have been permitted to invoke his right against self-incrimination in the post-conviction
proceedings. Nichols, 90 S.W.3d at 586. Specifically, the panel determined that there is no
right against self-incrimination in a post-conviction case because Nichols had already been
convicted of the offenses being challenged. The Tennessee Supreme Court, however, agreed
with both parties that the Court of Criminal Appeals erred in addressing this issue. Id. at 607
(citing Tenn. R. App. P. 13(b)). The state’s highest court determined that to review and reach
a decision of whether a right against self-incrimination applies in post-conviction cases under
the facts and circumstances of the case would amount to an advisory opinion and declined
to review the issue. Id. Accordingly, this Court is presented anew with the determination
of whether the privilege against self-incrimination applies in a post-conviction proceeding.
Relief under the statutorily-created post-conviction procedure is limited to
constitutional errors rendering the conviction or sentence void or voidable. See T.C.A. § 40-
30-103. Relief in such cases is generally a new trial or a new sentencing hearing. It is
generally recognized that, even after conviction, a defendant who shows a “real and
appreciable risk” of subsequent conviction may be entitled to assert the privilege against self-
incrimination with regard to the crime. 1 John William Strong et. al., McCormick on
Evidence §§ 121, 122 (4th ed. 1992); see also Taylor v. Best, 746 F.2d 220, 222-24 (4th Cir.
1984). What constitutes incriminating evidence not only consists of answers that would in
themselves support a conviction, but also information that would “furnish a link in the chain
of evidence that could lead to prosecution.” Maness, 419 U.S. at 461, 95 S. Ct. 584.
“[T]he availability of the privilege does not turn upon the type of proceeding in which
its protection is invoked, but upon the nature of the statement or admission and the exposure
which it invites.” Estelle v. Smith, 451 U.S. 454, 462, 101 S. Ct. 1866, 1873 (1981) (quoting
Application of Gault, 387 U.S. 1, 49, 87 S. Ct. 1428, 1455 (1967)). “To sustain the privilege,
it need only be evident from the implications of the question in the setting in which it is
asked, that a responsive answer to the question or an explanation of why it cannot be
answered might be dangerous because injurious disclosure could result.” Martin v. Flanagan,
789 A.2d 979, 984 (Conn. 2002) (quoting Hoffman v. United States, 341 U.S. 479, 486-87,
71 S. Ct. 814 (1951)). In a post-conviction setting where there exists a real possibility of a
new trial, the privilege against self-incrimination remains.
Our inquiry, however, does not end here. The Petitioner seeks to assert the privilege
to secure a limited right of cross-examination by the prosecution. In support of his position,
the Petitioner relies upon State v. Cazes, 875 S.W.2d 253, 264 (Tenn. 1994). In Cazes,
defense counsel moved, prior to the start of the penalty phase of a capital trial, that the State
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be prohibited from cross-examining the defendant during the sentencing hearing with regard
to the circumstances of the offense. The trial court denied the motion, agreeing with the
State that cross-examination should be permitted on all matters relevant to sentencing,
including the circumstances of the offense. Cazes, 875 S.W.2d at 264.
On appeal, the State conceded that the lower court erred by denying Cazes’ motion.
Our supreme court recognized that the Eighth Amendment to the United States Constitution
“requires States to allow consideration of mitigating evidence in capital cases.” Id. at 266
(citing McKoy v. North Carolina, 494 U.S. 433, 442, 110 S. Ct. 1227, 1233 (1990) (emphasis
in original); see also Boyde v. California, 494 U.S. 370, 377-78, 110 S. Ct. 1190, 1196
(1990)). The court noted that there is a serious risk that the death penalty would be imposed
erroneously should the sentencer fail to consider all of the mitigating evidence. Cazes, 875
S.W.2d at 266 (citations omitted). Our supreme court, acknowledging the interplay between
the Fifth and Eighth Amendment implications raised in a decision whether to permit only
limited cross-examination of a defendant at a capital sentencing hearing, determined that
“only in the limited sphere of a death penalty sentencing hearing, a capital defendant’s
testimony regarding mitigating factors that are wholly collateral to the merits of the charges
against him does not operate as a complete waiver of the privilege against self-
incrimination.” Id. at 266. Accordingly, the Tennessee Supreme Court held that a defendant
has a right to limited cross-examination if he or she wishes to testify about only collateral
mitigating circumstances at the penalty phase of a capital trial. Id. Notwithstanding this
limited waiver, the court noted that the defendant may nonetheless be completely and
thoroughly cross-examined about all testimony given or fairly raised by the defendant on
direct examination. Id.
Upon consideration of the applicable principles of law and with consideration of the
differences in the nature and circumstances of a capital sentencing proceeding compared to
a capital post-conviction proceeding, we decline the opportunity to extend the Cazes limited
cross-examination rule to capital post-conviction proceedings. The competing interests of
the Fifth and Eighth Amendments are not necessarily present in a post-conviction
proceeding. Similarly, evidence which is constitutionally guaranteed to be admissible
evidence in a capital sentencing hearing is not afforded that same guarantee in a capital post-
conviction proceeding. Accordingly, we recognize and reiterate the long-standing principle
that “[a] defendant who chooses to testify waives his privilege against self-incrimination with
regard to the testimony he gives.” Harrison v. United States, 392 U.S. 219, 222, 88 S. Ct.
2008, 2010 (1968). A defendant who elects to testify on direct examination at his/her post-
conviction hearing is bound to answer questions on cross-examination. State v. Stapleton,
638 S.W.2d 850, 855 (Tenn. Crim. App. 1982); see also Rogers v. United States, 340 U.S.
367, 71 S. Ct. 438 (1951). In other words, the privilege is waived for matters to which the
witness testifies. The waiver’s scope is determined by the scope of the relevant cross-
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examination. Mitchell, 526 U.S. at 314, 119 S. Ct. at 1308; Brown v. United States, 356
U.S. 148, 154, 78 S. Ct. 622, 626 (1958);
In the present case, the Petitioner seeks to choose his testimony and deny the
prosecution the right to question him about these statements. A witness may not testify
voluntarily about a subject and then assert the privilege against self-incrimination when
questioned about the details. Rogers, 340 U.S. at 373, 71 S. Ct. at 442. No unfairness enures
to a defendant’s detriment by our ruling. It is the defendant who determines the area of
disclosure and therefore of inquiry. Brown, at 155, 78 S. Ct. at 622. To permit a witness to
selectively pick and choose what aspects of a particular subject to discuss would cast serious
doubt on the trustworthiness of the statements and would diminish the integrity of the factual
inquiry. Mitchell, 526 U.S. at 322, 119 S. Ct. at 1312.
For the reasons heretofore stated, we cannot conclude that the trial court erred by
refusing to grant the Petitioner a limited right of cross-examination in a capital post-
conviction proceeding. The Petitioner was able to claim the privilege or elect to testify. The
Petitioner made a knowing decision to assert the privilege. The Petitioner is not entitled to
relief on this issue.
II. Ineffective Assistance of Counsel
A. Standard of Review
The Sixth Amendment provides, in pertinent part, that, “[i]n 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, 350, 83 S. Ct. 792, 800 (1963) (quoting
Betts v. Brady, 316 U.S. 455, 465, 62 S. Ct. 1252, 1257 (1942)). Inherent in the right to
counsel is the right to effective assistance of counsel. Cuyler v. Sullivan, 446 U.S. 335, 344,
100 S. Ct. 1708, 1716 (1980); McMann v. Richardson, 397 U.S. 759, 771 n. 14, 90 S. Ct.
1441, 1449 (1970); see also Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052,
2063 (1984).
“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, 466 U.S. at 686, 104 S. Ct. at
2064; Combs v. Coyle, 205 F.3d 269, 277 (6th Cir. 2000). A two-prong test directs a court’s
evaluation of a claim of ineffectiveness:
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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, 104 S. Ct. at 2064; see also Combs, 205 F.3d at 277.
The performance prong of the Strickland test requires a petitioner raising a claim of
ineffectiveness to show that counsel’s representation fell below an objective standard of
reasonableness, or “outside the range of professionally competent assistance.” Strickland,
466 U.S. at 690, 104 S. Ct. at 2066; see also Kimmelman v. Morrison, 477 U.S. 365, 386,
106 S. Ct. 2574, 2588 (1986). “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. Upon reviewing claims of ineffective assistance of counsel, the court “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 actions ‘might be considered sound trial strategy.’” Strickland,
466 U.S. at 689, 104 S. Ct. at 2065. Additionally, courts should 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, it is acknowledged 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, 107 S. Ct. 3114,
3126 (1987). Notwithstanding, it is the duty of this Court to “search for constitutional
[deficiencies] with painstaking care” as this responsibility is “never more exacting than it is
in a capital case.” Id. at 785, 107 S. Ct. at 3121.
B. Guilt Phase Deficiencies
The Petitioner claims that trial counsel, James Ball and Joseph Ozment, failed to
function as effective counsel as guaranteed by both the Tennessee and United States
Constitutions. In this regard, Petitioner asserts that counsel denied him effective
representation by breaching acceptable standards for capital representation at the guilt phase
in that:
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1. Trial counsel failed to adequately investigate the circumstances of the
crimes and the Petitioner’s background.
2. Trial counsel failed to request expert services within a reasonable time.
3. Trial counsel failed to effectively question and cross-examine witnesses to
support the theory of the defense.
4. Trial counsel failed to investigate the Petitioner’s mental, physical, or
psychological condition to establish that the Petitioner was unable to
premeditate the offense.
5. Trial counsel failed to properly select a jury and request appropriate jury
instructions.
6. Trial counsel failed to correct implications of the State’s proof that
Lieutenant Nichols was alone at the time of the oral statement.
1. Failure to adequately investigate the circumstances of the crimes and the
Petitioner’s background, including the Petitioner’s mental, physical, and psychological
condition.
The Petitioner contends that trial counsel’s failure to adequately investigate the
circumstances of the offense and his background resulted in a trial absent constitutional
guarantees of fairness and reliability in the verdict. The Petitioner asserts that the duty to
properly investigate was well-established prior to the Petitioner’s 1997 trial. He asserts that
trial counsel’s deficient performance requires reversal of his convictions and sentences
because counsel’s numerous errors undermine confidence in the outcome. The Petitioner
contends that trial counsel’s failures denied the jury information about the Petitioner’s
mental, physical, and psychological condition that was critical to a fair determination of the
Petitioner’s degree of guilt and sentence. He asserts that had the jury been privy to the
information that counsel failed to discover there is a reasonable probability that the outcome
would have been different.
a. Petitioner’s Alcoholism
Petitioner asserts that trial counsel was aware that he had a drinking problem. He
contends that, despite having this information, trial counsel was deficient for failing to
investigate further into the Petitioner’s addiction. He contends that had counsel done so,
counsel would have been able to make a convincing argument to the jury that the Petitioner
-25-
was unable to premeditate the offenses. He adds that, with appropriate expert testimony, trial
counsel could have requested and received an instruction that due to a mental disease or
defect, the Petitioner was unable to form the requisite culpable mental state.
At the post-conviction evidentiary hearing, the following proof was presented
regarding the Petitioner’s addiction to alcohol. The Petitioner was first exposed to alcohol
at age five or six. By the age of sixteen, the Petitioner was drinking on a daily basis. The
Petitioner’s father and older brother Charles were both alcoholics. The Petitioner and his
brother Charles suffered from rage episodes which were magnified by the use of alcohol.
Their father also was predisposed to such episodes but to a lesser degree. The rage episodes
were impulsive and cannot be premeditated. Alcoholism is genetic and is a progressive
disorder. An addictionologist, Dr. Smith, diagnosed the Petitioner as satisfying the criteria
for being an alcoholic. The Petitioner, as an alcoholic, had the need to introduce the
chemical into his body or he would suffer withdrawal symptoms. This expert testimony was
consistent with lay witness observations that the Petitioner could drink large amounts of
alcohol and still appear calm. The Petitioner had surgery for a bleeding ulcer which was
related to his alcoholism. Alcoholism will magnify other mental deficits.
b. Evidence of other mental deficits and defects
At the post-conviction evidentiary hearing, evidence was presented to establish that,
not only did the Petitioner suffer from the effects of alcoholism, but also that the Petitioner
had suffered from numerous head traumas during his lifetime. Dr. Caruso testified that the
Petitioner suffered some brain damage as a result of these injuries. Additionally, by the very
nature of his profession in the auto body repair industry, the Petitioner was routinely exposed
to solvents. The combination of the head injuries, the exposure to industrial solvents, and
his alcoholism resulted in impairments to his brain function.
In 1995, the Petitioner was diagnosed with major depression. The Petitioner’s frontal
lobes of the brain also are not functioning. Additionally, Dr. Caruso testified that the impact
of domestic violence modeling was prevalent in the Petitioner’s family. In other words, there
was a higher likelihood that the Petitioner would treat women badly if he was exposed to
domestic violence during his formative years. There was evidence that the Petitioner’s
mother was abused by his father. Dr. Caruso determined that the Petitioner suffered from
a “severe mental defect, the dementia due to the multiple ideologies, the head trauma, the
chronic alcoholism and the solvent exposure.” He opined that these defects impacted the
Petitioner’s ability to process information and inhibited his ability to maintain his emotions.
Dr. Caruso stated that the Petitioner had “diminished impulse control” and, at the time of the
offense, “was in a state of a great deal of passion and excitement.”
-26-
Dr. Grant corroborated Dr. Caruso’s diagnoses. He concluded that the Petitioner
suffered from “dementia due to multiple ideologies,” resulting from “a number of head
injuries. . . .” He explained that the dementia could be from the head trauma, substance
abuse, and solvent exposure.
c. Post-Conviction Court’s Findings
The post-conviction court acknowledged the testimony of the experts presented at the
evidentiary hearing. Notwithstanding, the post-conviction court declined to find prejudice
resulting from the failure to investigate the Petitioner’s mental condition. Specifically
regarding the experts’ diagnosis as to the Petitioner’s ability to form the requisite mental
state, the post-conviction recognized that Dr. Caruso acknowledged that the Petitioner was
composed enough and had enough cognition to calmly wait for police; contact his attorney
prior to their arrival; and preliminarily negotiate with law enforcement officers a potentially
lesser charge in exchange for his statement. The post-conviction court further determined
that the decision not to present a theory of diminished capacity to the jury was a tactical
decision. The post-conviction court also recognized that it was within sound trial strategy of
the defense not to present the Petitioner as a “drunk.”
d. Analysis of Alleged Failure to Investigate
The proper standard for attorney performance is that of “reasonably effective
assistance,” or, in other words, the Petitioner must show that trial counsel’s performance fell
below an objective standard of reasonableness considering all the circumstances. Strickland,
466 U.S. at 687-88, 104 S. Ct. 2052. Counsel’s reasonableness must be assessed on the facts
of the particular case, viewed as of the time of counsel’s conduct. Id. at 689, 104 S. Ct. 2052.
In the context of ineffective assistance based on counsel’s failure to investigate, the court
must determine whether counsel exercised “reasonable professional judgment.” Wiggins v.
Smith, 539 U.S. 510, 522-23, 123 S. Ct. 2527, 2535 (2003).
The Petitioner alleges that had counsel investigated his history of chronic alcoholism
and his mental defects counsel would have been able to present a strong case negating the
requisite intent for the offense of first degree murder, i.e., premeditation. Trial counsel was
aware that the Petitioner was intoxicated on the night of the offense and part of their defense
was that the Petitioner’s intoxication impaired his capacity to form intent. During closing
argument, Mr. Ball focused on the fact that both Betty Keough and the Petitioner were
drinking prior to the offense. The trial court instructed the jury as to the defense of
intoxication.
-27-
It is unclear whether the defense team believed the Petitioner to be an alcoholic. It
appears that a rudimentary investigation would have revealed the Petitioner’s 1994 surgery
for a bleeding ulcer, the Petitioner’s completion of alcohol and drug counseling when in
prison in Mississippi, and the predisposition of his family for alcoholism which would have
triggered the need for further investigation as to the severity of the Petitioner’s alcohol use.
However, it is just as likely that family members would have remained silent and would not
have revealed facts about their personal life, especially when such facts suffer a social
stigma. Regardless, the fact that Petitioner was an alcoholic or was merely just intoxicated
on the date of the offense does little, under the law, to change the result in the present case.
The jury heard testimony that the Petitioner was intoxicated or had imbibed alcohol on the
night in question. The jury was provided an instruction on voluntary intoxication. The jury
was able to consider the Petitioner’s state of intoxication in as much as the intoxication
would negate the culpable mental state. Clearly, by their verdict, the jury rejected a defense
of voluntary intoxication.
Involuntary intoxication absolves one of criminal responsibility due to his or her
intoxicated condition. See Advisory Comm’n Comments, T.C.A. § 39-11-504. Involuntary
intoxication means intoxication that is not voluntary. See T.C.A. § 39-11-503(d)(2).
Voluntary intoxication means intoxication caused by a substance that the person knowingly
introduced into the person’s body, the tendency of which to cause intoxication was known
or ought to have been known. See T.C.A. § 39-11-503(d)(3). Involuntary intoxication is a
very rare thing, and can never exist where the person intoxicated knows what he or she is
drinking, and drinks the intoxicant voluntarily, and without being made to do so by force or
coercion. 2 Crim. Prac. Manual §40:2 (citing State v. Highsmith, 619 S.E.2d 586 (N.C. Ct.
App. 2005)). Intoxication is voluntary so long as the accused has exercised independent
judgment or volition when taking the intoxicant, regardless of a physiological “need.” 2
Crim. Prac. Manual §40:2 (citing Watson v. State, 654 S.W.2d 730 (Tex. App. 1983)). It is
generally recognized that chronic alcoholism cannot as a matter of law be used to establish
involuntary intoxication. See, e.g., Hernandez v. Johnson, 213 F.3d 243, 249-50 (5th Cir.
2000), cert. denied, 531 U.S. 966, 121 S. Ct. 400 (2000); Miller v. State, 439 So. 2d 800 (Ala.
Crim. App. 1983); Evans v. State, 645 P.2d 155 ( Alaska 1982) See v. State, 757 S.W.2d 947
(Ark. 1988); Ford v. State, 298 S.E.2d 327 (Ga. Ct. App. 1982); Polk v. State, 567 A.2d
1290, 1292 (Del.1989); State v. Burroughs, 729 S.W.2d 571 (Mo. Ct. App. 1987);
Commonwealth v. Plank, 478 A.2d 872 (Pa. Super. Ct. 1984); Heard v. State, 887 S.W.2d
94, 98 (Tex. App.1994); Loveday v. State, 247 N.W.2d 116, 121-22 (Wis. 1976). The
Petitioner has failed to establish that had the jury had testimony relating to the Petitioner’s
“chronic alcoholism” the jury would not have found him guilty of premeditated murder. He
is not entitled to relief on this ground.
-28-
The Petitioner also contends that had trial counsel discovered and investigated
evidence of his mental deficits, this would have supported a defense of “diminished
capacity,” and would have prevented the jury from concluding that the Petitioner had the
requisite mens rea to support a conviction for premeditated first degree murder. At the post-
conviction evidentiary hearing, the Petitioner introduced the testimony of three experts to
establish that the Petitioner suffered from depression, dementia and diminished impulse
control. The experts agreed that these multiple defects were likely the result of head trauma,
chronic alcoholism and solvent exposure. Hindsight is “twenty-twenty.” That maxim is
absolutely applicable to the present case. We will not measure the level of an attorney’s
investigation at the trial level against what has been revealed after an extensive and
exhaustive search for errors and additional evidence conducted over a period of almost five
years. A trial attorney is in a unique position. He must weigh the need to investigate and the
areas to investigate under the time and financial constraints imposed by the trial court. We
are unable to conclude that trial counsel rendered deficient performance by not marshaling
evidence which took post-conviction counsel several years to develop.
In the present case, the record is silent to and the Petitioner identifies no evidence of
a cognitive impairment which would have triggered trial counsel’s duty to further investigate
the Petitioner’s mental and psychological condition. In assessing the reasonableness of an
attorney’s investigation, a court must consider not only the quantum of evidence already
known to counsel, but also whether the known evidence would lead a reasonable attorney to
investigate further. Wiggins, 539 U.S. at 527, 123 S. Ct. at 2538. Due to a debilitating
stroke, Mr. Ball was unable to testify at the post-conviction hearing. Mr. Ozment testified
that his case file on this matter was destroyed in a fire. Moreover, ten years had elapsed
between the trial and the post-conviction evidentiary hearing. Mr. Ozment did, however,
recall that there were no indicators to counsel that the Petitioner had any difficulties with
brain function. He added that there were no indicators to counsel that the Petitioner was
withholding information. Finally, Mr. Ozment stated that there were no indicators that the
Petitioner was unable to understand what was being explained by counsel. Accordingly, we
cannot conclude that trial counsel was deficient in failing to investigate the Petitioner’s
mental condition. The Petitioner is not entitled to relief on this issue.
2. Failure to request expert services in a reasonable time.
Trial counsel was appointed eight months before the Petitioner’s trial. Seventeen days
prior to trial, counsel requested the services of an investigator and a mitigation specialist.
Affidavits submitted with the request estimated that the mitigation investigation would take
six months. The trial court denied the motion in part because of the time involved and the
hourly rate. The trial court did approve seventy-five hours for an investigator at a reduced
hourly rate. Trial counsel retained the services of Brewer Detective Service but did not
-29-
receive a final report until the conclusion of trial. During voir dire, trial counsel requested
the services of a psychologist to evaluate the Petitioner. Trial counsel intended for the
psychologist to evaluate the Petitioner for mitigation purposes but did not consider retaining
an expert for the guilt phase. The Petitioner complains that trial counsel’s requests for expert
services were made too late.
Claims of ineffective assistance of counsel can be based upon trial counsel’s failure
to engage the services of an expert witness. Cf., Nields v. Bradshaw, 482 F.3d 442, 456 (6th
Cir. 2007), cert denied, 552 U.S. 1118, 128 S. Ct. 919 (2008). To succeed on such a claim,
the petitioner must show that it is reasonably probable that the results of the proceedings
would have been different. Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. At the post-
conviction hearing, Mr. Ozment testified that the factual investigation of the case was
relatively uncomplicated. He stated that the factual investigation of the offense was largely
completed prior to their request for funding. Accordingly, their request for expert services
was primarily for the preparation of mitigation. Mr. Ozment testified that the defense team
requested the services of Dr. Ciocca to evaluate the Petitioner for possible mitigation
evidence. Dr. Ciocca testified that he never evaluated the Petitioner. Mr. Ozment stated that,
although he did not receive the final report from the Brewer Detective Agency until after
trial, he did state that the defense team was in constant contact with the Agency from the time
of their appointment. He stated that the majority of the information gathered by the Brewer
Detective Agency was received prior to trial. Additionally, Judge Lafferty testified at the
post-conviction hearing that the Petitioner was initially represented by the public defender.
The Shelby County Public Defender’s Office had its own investigator and social worker.
Judge Lafferty explained that for the first six months the Petitioner had the benefit of these
services. We cannot conclude that the Petitioner has established prejudice resulting from the
alleged untimeliness of counsel’s request for expert services. The Petitioner is not entitled
to relief on this ground.
3. Failure to effectively question and cross-examine witnesses to support
the theory of the defense.
The defense theory at trial was a combination of self-defense and the inability to form
intent due to intoxication. An important element in establishing this defense was to establish
how much the Petitioner drank on the day of the offense. The Petitioner contends that trial
counsel’s cross-examination of witnesses Lisse Wendt, Bobby Holley, and Mary Stokes
Kelly was deficient. Specifically, he alleges that each of these witnesses could have verified
the amount of alcohol consumed on the date of the offense. Counsel failed to elicit this
information from the witnesses. In support of his claim, the Petitioner asserts that, at trial,
the only evidence that the Petitioner was drinking on the day of the offenses came from
Kevin Berry, one of the victims and a witness for the State. Mr. Berry testified that he had
-30-
seen the Petitioner earlier in the day and said that the Petitioner had a drink in his hand. Mr.
Berry further related observing the Petitioner with a bottle of “Old Charter.” Mr. Berry
stated that if the Petitioner was not drunk at Irene’s, he was “well on his way” and described
the Petitioner as “pretty well lit” at the time of the offenses.
The Petitioner asserts that had trial counsel effectively questioned Bobby Holley,
Lisse Wendt, and Mary Stokes Kelly, he could have established that he was intoxicated on
the date of the offense. He maintains that Bobby Holley and Mary Stokes Kelly were aware
of the Petitioner’s drinking habits and could have verified that the Petitioner is the kind of
person who can drink but not appear drunk. Mary Stokes Kelly could have testified as to the
large quantity of alcohol ingested by the Petitioner on the date of the offense. Finally, he
asserts that while Lisse Wendt testified that Betty Keough shoved the Petitioner when they
were walking out of the bar, she was not questioned about seeing Betty Keough shoving the
Petitioner when they were asked to leave the bar nor was she asked regarding what she
overheard Betty Keough tell the Petitioner. The Petitioner asserts that had this information
been elicited the Petitioner’s theory of defense would have been supported, i.e., that due to
mental impairments aggravated by alcohol the Petitioner was unable to premeditate the
offenses.
At the post-conviction hearing, Mr. Ozment testified that Mr. Ball perceived Mary
Stokes Kelly as a hostile witness. Mary Stokes Kelly was the daughter of a woman with
whom the Petitioner had a long-standing romantic involvement. This relationship continued
even during periods when the Petitioner was married. Her testimony along with the
testimony of Bobby Holley was effectively that the Petitioner usually drank a lot and did not
exhibit outward signs of intoxication. It was within the realm of discretion of defense counsel
to ascertain whether such testimony would be consistent with their theory that the Petitioner
was so intoxicated as to be unable to form the requisite intent for premeditation. Regarding
the alleged deficiencies to the questioning of Lisse Wendt, we are uncertain as to the import
of the omissions in her testimony. The jury was already privy to information that the
marriage of the Petitioner and Betty Keough was a stormy one. The jury was already privy
to information that Betty Keough had shoved the Petitioner on the night of the incident. We
cannot conclude that the additional information of another shove would have compelled the
jury to return a verdict less than premeditated murder. It is not the Court’s function to
“‘second guess’ tactical and strategic choices pertaining to defense matters or to measure a
defense attorney’s representation by ‘20-20 hindsight.’” Henley, 960 S.W.2d at 579 (quoting
Hellard, 629 S.W.2d at 9). Counsel’s decisions for pressing examination of these witnesses
was a prudent tactic which cannot be attacked in this situation. The Petitioner has failed to
establish prejudice. He is not entitled to relief on these grounds.
-31-
4. Failure to properly select a jury.
The Petitioner contends that trial counsel’s performance failed to ensure that the
empaneled jury was unbiased and able to fully consider the case. Specifically, the Petitioner
alleges that trial counsel’s voir dire of the venire was deficient in that the questioning
prevented counsel from determining whether jurors could give meaningful consideration to
the mitigation evidence. The Petitioner contends that this deficiency resulted in permitting
two biased jurors to remain on the jury. Specifically, the Petitioner complains that counsel
only asked potential jurors about alcohol once. Moreover, trial counsel accepted a juror
whose cousin was killed by a drunk driver without asking any follow up questions. Trial
counsel accepted another juror who was the victim of domestic violence by her husband and
separated from her husband less than three years earlier. Petitioner further asserts that trial
counsel failed to employ all peremptory challenges and therefore lost the opportunity to
challenge the competence of jurors on appeal.
Mr. Ozment testified that Mr. Ball conducted voir dire. He related that Mr. Ball’s
decision whether to excuse a juror was based on the individual’s demeanor and tone together
with Mr. Ball’s subjective feeling of connection with the juror. The trial record reveals that
the State posed general questions to the jury regarding both the role of a man and the role of
a woman in a marriage and alcoholism and/or intoxication. Juror Brown responded that she
had been the victim of domestic violence. The prosecutor asked Juror Brown whether she
could put that out of her mind for this case. Juror Brown responded that she could “[b]ecause
all my anger is toward my husband.” Juror Brown continued to aver her position that,
regardless of her personal situation, if the State did not prove the Petitioner guilty beyond a
reasonable doubt, she could not find the Petitioner guilty. Juror Usoff testified that she had
a cousin killed by a drunk driver. When questioned by the prosecutor as to whether the fact
that her cousin was killed would influence her decision in this case, Juror Usoff responded
that “it’s something you don’t forget” and “[i]t’s in the back of your mind all the time.” Juror
Usoff further indicated that she grew up near Irene’s Bar.
The failure to make certain inquiries to determine how receptive the jury would be as
to specific mitigating circumstances during voir dire does not necessarily constitute
ineffective assistance of counsel. See generally State v. Goodwin, 703 N.E.2d 1251, 1257
(Ohio 1999). The scope of voir dire is a tactical decision. See Butler v. State, 789 S.W.2d
898, 901 (Tenn. 1990). It is not within the province of the court to second-guess strategic
and tactical choices made by trial counsel. Id. at 900. In the present case, both jurors were
questioned as to their ability to disregard their personal experiences and to follow the law.
The Petitioner has offered no evidence to establish that the jury ultimately empaneled was
biased or unfair. The Petitioner has failed to establish any prejudice by counsel’s failure to
-32-
more thoroughly question potential jurors. The Petitioner is not entitled to relief on this
claim.
5. Failure to correct implications of the State’s proof that Lieutenant
Nichols was alone at the time of the oral statement.
For judicial economy and brevity, the Petitioner’s claims regarding counsel’s
performance related to the admission of the Petitioner’s typewritten statement are discussed
contemporaneously with his other constitutional challenges to the statement’s omission at
trial, see infra, Section IV (B).
C. Penalty Phase Deficiencies
The Petitioner claims that trial counsel, James Ball and Joseph Ozment, failed to
function as effective counsel as guaranteed by both the Tennessee and United States
Constitutions. In this regard, Petitioner asserts that counsel denied him effective
representation by counsel by breaching acceptable standards for capital representation at the
penalty phase in that:
1. Trial counsel failed to present testimony of the Petitioner’s compelling life story.
2. Trial counsel failed to investigate the prior conviction used as an aggravating
circumstance.
1. Failure to Introduce Mitigating Evidence
During the penalty phase, the Petitioner presented the testimony of three witnesses:
Regina Holbach and Carolyn Darnell, the Petitioner’s sisters, and William Powers, a co-
worker. Ms. Holbach testified that the Petitioner was one of eight children in their family.
She stated that “[the Petitioner] is my brother, and I love him very much, and I would hope
that you would spare his life.” Carolyn Darnell testified that she was aware that the
Petitioner and Betty Keough had “a very stormy relationship from the beginning,” explaining
that they “[f]ussed” and “[f]ought.” She stated “I would just like to plead for leniency. . . .
He is my brother and I love him. And I think that he can overcome his situation and be
rehabilitated.” Ms. Darnell stated that she was aware that the Petitioner had some health
problems but was not aware whether they were serious. She knew that he had surgery to help
something that was wrong with his stomach. She also explained that he had a broken jaw
several years ago. William Powers testified that he worked with the Petitioner at a body
shop. He stated that the Petitioner was good at his job. He also had the opportunity to meet
Betty Keough. He recalled an incident that occurred “[a]bout a month maybe before
Christmas.” He related that Betty Keough had come to the body shop and was arguing with
-33-
the Petitioner. “[S]he pulled out and grabbed his air ratchet and rared [sic] back, and I went
to the office and had Miles come out and get it from her.” Mr. Powers explained that the
argument was over the car that the Petitioner had bought for Betty Keough.
The Petitioner submits that counsel was ineffective for failing to convey information
to the jury that (1) he grew up in poverty and was exposed to alcohol and violence, (2) the
Petitioner’s older brother was also a violent alcoholic, and (3) the Petitioner was a good auto
body man but alcoholism interfered with his work. The Petitioner asserts that had the jury
been privy to information of his background story combined with expert testimony as to the
Petitioner’s mental, physical, and psychological condition, there would be a reasonable
probability that the jury would have returned a sentence less than death.
In death penalty cases, the sentencer may not be precluded from considering any
aspect of a defendant’s character or record as a basis for a sentence less than death. Lockett
v. Ohio, 438 U.S. 586, 604-05, 98 S. Ct. 2954, 2964-65 (1978) (plurality opinion); see also
Johnson v. Texas, 509 U.S. 350, 361, 113 S. Ct. 2658, 2666 (1993). The United States
Supreme Court has held that mitigating evidence is relevant to sentencing hearings and
should be heard. See California v. Brown, 479 U.S. 538, 541, 107 S. Ct. 837, 839 (1987);
Eddings v. Oklahoma, 455 U.S. 104, 113-15, 102 S. Ct. 869, 876-77 (1982). “‘[E]vidence
about the defendant’s background and character is relevant because of the belief . . . that
defendants who commit criminal acts that are attributable to a disadvantaged background,
or to emotional and mental problems may be less culpable than defendants who have no such
excuse.’” Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996) (quoting Brown, 479 U.S. at
545, 107 S. Ct. at 841) (O’Connor, J., concurring)).
There is no legal requirement and no established practice that the accused must offer
evidence at the penalty phase of a capital trial. State v. Melson, 772 S.W.2d 417, 421 (Tenn.
1989). In fact, in many death penalty cases, counsel has properly decided not to offer any
evidence at the penalty phase. Id. at 421; see also State v. Zagorski, 701 S.W.2d 808 (Tenn.
1985). Although there is no absolute duty to investigate particular facts or a certain line of
defense, counsel does have a duty to make reasonable investigation or to make a reasonable
decision that makes particular investigation unnecessary. Strickland, 466 U.S. at 691, 104
S. Ct. at 2052. Counsel’s duty to investigate derives from counsel’s basic function which is
“to make the adversarial testing process work in the particular case.” Kimmelman, 477 U.S.
at 384, 106 S. Ct. at 2066. The adversarial testing process will not function properly unless
defense counsel has done some investigation into the prosecution’s case and into various
defense strategies. In this regard, counsel is under a duty to make reasonable investigation
or to make a reasonable decision that makes particular investigations unnecessary. Id. at 384,
106 S. Ct. at 2066.
-34-
In determining whether counsel breached this duty, counsel’s performance is reviewed
for reasonableness under prevailing professional norms, which includes a context-dependent
consideration of the challenged conduct as seen from counsel’s perspective at the time.
Wiggins, 539 U.S. at 523, 123 S. Ct. at 2527. Counsel is not required to investigate every
conceivable line of mitigating evidence no matter how unlikely the effort would be to assist
the defendant at sentencing. Id. at 533, 121 S. Ct. at 2381. Neither is counsel required to
interview every conceivable witness. Hendricks v. Calderon, 70 F.3d 1032, 1040 (9th Cir.
1995). In other words, counsel’s duty to investigate and prepare is not limitless. See
Washington v. Watkins, 655 F.2d 1346 (5th Cir. 1981). Counsel’s performance will not be
found deficient for failing to unveil all mitigation evidence, if, after a reasonable
investigation, nothing has put counsel on notice of the existence of that evidence. See
Babbit v. Calderon, 151 F.3d 1170, 1174 (9th Cir. 1998). A tactical decision not to pursue
one course or another should not be confused with the duty to investigate. In summary,
no particular set of detailed rules can satisfactorily take account of the variety
of circumstances faced by defense counsel. Rather, courts must judge the
reasonableness of counsel’s conduct on the facts of the particular case, viewed
as of the time of counsel’s conduct, and judicial scrutiny of counsel’s
performance must be highly deferential.
Roe v. Flores-Ortega, 528 U.S. 470, 477, 120 S. Ct. 1029, 1034-35 (2000) (internal citations
and quotations omitted).
In addressing attorney performance, courts must be mindful not “to ‘second guess’
tactical and strategic choices pertaining to defense matters or to measure a defense attorney’s
representation by ‘20-20 hindsight.’” Henley, 960 S.W.2d at 579. A court reviewing
counsel’s performance should “eliminate the distorting effects of hindsight ... [and] evaluate
the conduct from counsel’s perspective at the time.” Strickland, 466 U.S. at 689, 104 S. Ct.
at 2065. “The fact that a particular strategy or tactic failed or hurt the defense, does not,
standing alone, establish unreasonable representation.” Goad, 938 S.W.2d at 369. On the
other hand, “deference to matters of strategy and tactical choices applies only if the choices
are informed ones based upon adequate preparation.” Id.
In now familiar language, the Supreme Court in Strickland linked the deference
afforded counsel’s choices and decisions to the reasonableness of the investigation
supporting the choices and decisions, stating as follows:
[S]trategic choices made after thorough investigation of law and facts relevant
to plausible options are virtually unchallengeable; and strategic choices made
after less than complete investigation are reasonable precisely to the extent that
-35-
reasonable professional judgments support the limitations on investigation. In
other words, counsel has a duty to make reasonable investigations or to make
a reasonable decision that makes particular investigations unnecessary.
Cauthern v. State, 145 S.W.3d 571, 600-01 (Tenn. Crim. App. 2004) (citing Strickland, 466
U.S. at 690-91, 104 S. Ct. at 2066).
A reasonable investigation does not require that counsel leave no stone unturned. The
reviewing court must consider the limited time and resources of counsel. Reasonableness
should be guided by the circumstances of the case, including information provided by the
defendant, conversations with the defendant, and consideration of readily available resources.
Additionally,
the reasonableness of counsel’s actions may be determined or substantially
influenced by the defendant’s own statements or actions . . . . In short, inquiry
into counsel’s conversations with the defendant may be critical to a proper
assessment of counsel’s investigation decisions, just as it may be critical to a
proper assessment of counsel’s other litigation decisions.
Strickland, 466 U.S. at 691, 104 S. Ct. at 2066; see also Nichols, 90 S.W.3d at 587.
At the post-conviction hearing, the Petitioner presented the testimony of Joseph
Crenshaw, Bobby Holley, Tom Martin and Dallas Moore. The testimony of these witnesses
established that the Petitioner was a good auto body person. They also stated that the
Petitioner appeared to have an alcohol problem, stating that the Petitioner would often drink
during the lunch hour and would not want to work when he returned. Bobby Holley testified
that the Petitioner was the type of individual who never appeared drunk but who was always
drinking. Dallas Moore stated that the Petitioner’s drinking made him dangerous. Tom
Martin’s testimony that the Petitioner would become threatening and out-of-control
corroborated the testimony of Dallas Moore.
Several of the Petitioner’s siblings testified at the post-conviction hearing. His
siblings provided a brief description of their childhood. They stated that they were poor and
did not have running water or electricity. The Petitioner’s sister, Eleanor Raley, explained,
however, that everyone else was poor too and their family had love. The Petitioner’s siblings
further related that their father drank quite often and that he would become argumentative
when he drank. Their father was often violent towards their mother. They also related that
their father started giving the Petitioner mint gin when he was approximately five years of
age. They described their brother Charles as an alcoholic as well. They said Charles would
get mean and would want to fight. All three siblings who testified at the post-conviction
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hearing admitted that they were never in regular contact with the Petitioner during his adult
life.
The post-conviction court determined that the value of the proposed mitigating
evidence is far from overwhelming. The court recognized that, although the jury may have
heard information about the Petitioner’s alcoholism and depression, the jury could have also
been presented with evidence regarding the Petitioner’s previous violent altercations with his
first wife.
Even assuming arguendo that the mitigating evidence presented at the penalty phase
of his trial was extremely weak, based upon the testimony provided by the Petitioner’s family
members at the post-conviction hearing and the relative strength of the statutory aggravating
circumstance found by the jury, we are unable to conclude that the sentence would not have
been the same. Henley, 960 S.W.2d at 579-80. There is no reasonable expectation that the
ingestion of alcohol, no matter the amount and over what period of time, will be considered
as a mitigating factor rather than an aggravating circumstance. Indeed, there is just as much
likelihood that the jury would react negatively to the Petitioner’s knowing aggravated use of
alcohol over the years and his failed attempt at rehabilitation. An ineffective assistance claim
does not arise from the failure to present mitigation evidence where that evidence clearly
presents a double-edged nature. See, e.g., Kitchens v. Johnson, 190 F.3d 698, 702-03 (5th
Cir. 1999) (finding that counsel’s decision not to investigate mitigating evidence of child
abuse, alcoholism, and mental illness was sound trial strategy); Jones v. Page, 76 F.3d 831,
846 (7th Cir.) (noting that failure to introduce evidence of the defendant’s long history of
substance abuse “was a reasonable tactical choice because such evidence was a ‘double-
edged sword,’ that is, it could easily have been considered either aggravating or mitigating
evidence”), cert. denied, 519 U.S. 951, 117 S. Ct. 363(1996). While this Court does not
discount as irrelevant the economic, social, and in some ways moral poverty experienced by
the Petitioner during his lifetime, this Court is unpersuaded that any substantial portion of
society shares the belief that persons disadvantaged in the way the Petitioner describes results
in a reduced culpability for their actions.
The Petitioner further asserts that the United States Supreme Court’s recent ruling in
Porter v. McCollum, 558 U.S. –, 130 S. Ct. 447 (2009), is dispositive as to whether counsel’s
failure to present certain mitigating evidence during the penalty phase was prejudicial. The
defendant George Porter, Jr., was convicted in 1987 of murdering his former girlfriend,
Evelyn Williams, and her boyfriend, Walter Burrows. Porter represented himself for part of
the trial. Near the completion of the State’s case-in-chief, Porter decided to plead guilty. He
also changed his mind about representing himself. The court appointed his standby counsel
as counsel for the penalty phase. Counsel had never represented a defendant in a capital
sentencing proceeding, did not interview any of Porter’s relatives and did not obtain any
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school, medical or military service records. The total of the mitigating evidence presented
by the defense consisted of inconsistent testimony about Porter’s behavior when intoxicated
and testimony that Porter had a good relationship with his son. Porter, 558 U.S. at –, 130 S.
Ct. at 449. Porter subsequently sought post-conviction relief. At the two day evidentiary
hearing, Porter presented evidence of (1) his abusive childhood, during which Porter was
often “his father’s favorite target,” (2) his heroic military service in “two of the most critical-
and horrific battles of the Korean War,” (3) Porter’s “struggles to regain normalcy upon his
return from war,” (4) his long-term substance abuse, and (5) his impaired mental health and
mental capacity. Id. at –, 130 S. Ct. at 449-454. The Court stressed the significance of
Porter’s military service, noting that “Our Nation has a long tradition of according leniency
to veterans in recognition of their service, especially for those who fought on the front lines
as Porter did.” Id. at – , 130 S. Ct. at 455. The Court continued, “the relevance of Porter’s
extensive combat experience is not only that he served honorably under extreme hardship and
gruesome conditions, but also that the jury might find mitigating the intense stress and mental
and emotional toll that combat took on Porter.” Id. The Court determined, as had previously
been noted by two dissenting Florida Supreme Court justices, “there exists too much
mitigating evidence that was not presented to now be ignored.” Id. (citing Porter v. State,
788 So. 2d 917, 937 (Fla. 2001)(Anstead, J., concurring in part and dissenting in part)).
While we do not disagree that there are similarities in the nature of the crimes for
which Porter and the Petitioner were convicted, we note that there are striking differences
in counsel’s performance and in the nature and amount of mitigating evidence not presented
at the penalty phase. There is no evidence that the Petitioner suffered from physical abuse
as a child. While the Petitioner maintains that his father’s act of providing the then five-year-
old Petitioner with “mint gin” was abuse, even if this action constituted “abuse,” we would
be constrained to conclude that this type of abuse had some prominent relationship to the
circumstances of the crime committed. More importantly, nothing in the record indicates that
the Petitioner ever served in the military, much less during combat, or would be entitled to
any leniency accruing from that service. Nothing in the record indicates that the Petitioner
suffers from any sort of post-traumatic stress disorder. The mitigating evidence unearthed
in Porter’s case is far more compelling than that presented at the Petitioner’s post-conviction
hearing. Accordingly, the Petitioner’s case is clearly distinguishable from Porter’s.
The Petitioner must make a showing of prejudice based upon the aggravating and
mitigating evidence. Considering the strength of the aggravating circumstance and the nature
and impact of the mitigating evidence, we cannot conclude that the mitigating circumstances
gathered and presented at the Petitioner’s post-conviction evidentiary hearing would have
altered the balance of aggravating and mitigating factors in this case and changed the
outcome of the sentencing proceeding.
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2. Failure to Investigate Circumstances of Prior Conviction Used as an
Aggravator
The Petitioner asserts that trial counsel were ineffective for failing to investigate the
circumstances of the prior conviction used as an aggravator. The Petitioner asserts that had
counsel explained the circumstances of this offense there is a reasonable probability that the
Petitioner would not have received a sentence of death. The Petitioner relies upon Rompilla
v. Beard, 545 U.S. 374, 393, 125 S. Ct. 2456, 2469 (2005), holding that trial counsel’s
failure to examine the defendant’s prior conviction file constituted deficient performance.
In Rompilla, the United States Supreme Court held that the failure of capital counsel, who
did not represent the defendant on his prior felony charges, to examine the public files
pertaining to the defendant’s prior felony convictions when the prosecutor made it known
that it intended to use that record at the capital sentencing hearing constituted ineffective
assistance of counsel. Rompilla, 545 U.S. at 393, 125 S. Ct. at 2469. The Supreme Court
determined that counsel’s failure to examine the “readily available file . . . seriously
compromis[ed] [the defendant’s] opportunity to respond to a case for aggravation.” Id. at
385, 125 S. Ct. at 2465.
At the penalty phase, the State presented evidence of two prior convictions. First, the
State presented the testimony of Marla Simmons, a deputy clerk in the Shelby County
Criminal Court. Ms. Simmons testified that, on March 13, 1974, the Petitioner was convicted
of assault to commit voluntary manslaughter. The State also presented the testimony of Lucy
Carpenter, the Circuit Court Clerk from Marshall County, Mississippi, who stated that the
Petitioner had entered a guilty plea to manslaughter in August 1989. On re-direct
examination, the State asked Ms. Carpenter whether she was familiar with some of the facts
of the case, specifically relating to the fact that the Petitioner was able to post bond. The
defense objected and the State withdrew the question. The State was then able to elicit from
Ms. Carpenter that the victim of the crime was the Petitioner’s brother-in-law.
At the post-conviction hearing, testimony was elicited establishing the circumstances
surrounding the Petitioner’s Mississippi conviction for manslaughter. Chief Looney testified
that the scene of the offense was a mobile home with no electricity. The victim, the
Petitioner’s brother-in-law, was alive at the time of Chief Looney’s arrival on the scene. The
Petitioner and two other adults were present and clearly inebriated. The kitchen table was
littered with beer cans. In fact, one of the women sitting at the table was still drinking upon
the arrival of the police. The Petitioner asserts that these circumstances should have been
offered to lessen the weight of the prior conviction. (Appellant’s brief at 56 citing American
Bar Association, American Bar Association Guidelines for the Appointment and
Performance of Defense Counsel in Death Penalty Cases, 31 Hofstra L. Rev. 913, 1027
(2003) (Guideline 10.7, commentary)).
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The present case is easily distinguishable from Rompilla. In Rompilla, the file of the
underlying conviction contained information regarding the defendant’s troubled upbringing
and mental illness about which defense counsel was previously unaware. Rompilla, 545 U.S.
at 389, 125 S. Ct. at 2456. The only evidence presented at the post-conviction hearing as to
what information the file in the Petitioner’s Mississippi case would have disclosed is
evidence that the Petitioner, along with everyone else present at the mobile home, was
inebriated at the time of the shooting. It remains total speculation and conjecture as to
whether introducing these facts to the jury would have lessened the impact of the Petitioner’s
conviction for manslaughter. Moreover, the Petitioner cannot show prejudice. As to each
of his prior convictions, the jury was informed that the Petitioner was convicted of a lesser
offense than originally charged. In the Shelby County case, the Petitioner was originally
indicted on a charge of assault with intent to commit first degree murder. His conviction
reflects a charge of assault to commit voluntary manslaughter. In the Mississippi case, the
Petitioner was indicted on a charge of murder. The Petitioner entered a plea to manslaughter.
The nature of the conviction reflects some of the mitigating circumstances of the offense.
Moreover, the Petitioner apparently disregards established precedent that the prior violent
felony aggravator is “more qualitatively persuasive and objectively reliable” than the other
circumstances provided for in the capital sentencing statute. See State v. Howell, 868
S.W.2d 238, 261 (Tenn. 1993). There is no reasonable probability that had the jury heard the
circumstances of the Petitioner’s Mississippi conviction that the jury would have imposed
any sentence other than death. The Petitioner is not entitled to relief on this claim.
D. Appellate Deficiencies
The Petitioner asserts that counsel were ineffective on appeal. The Petitioner begins
by conceding that “counsel is not required to argue every issue on appeal.” Cooper v. State,
849 S.W.2d 744, 746-47 (Tenn. 1993). He argues, however, that this general principal
should not be so narrowly construed to preclude relief especially when the sentence imposed
is so severe. The Petitioner continues to cite as error the following omissions of appellate
counsel: (1) counsel was ineffective for failing to adequately argue issues concerning the
admissibility of Roy Keough’s typewritten statement, (2) counsel was ineffective for failing
to argue that the death penalty is unconstitutional and (3) counsel was ineffective for failing
to raise various issues challenging the constitutionality of the death penalty.
The same principles apply in determining the effectiveness of both trial and appellate
counsel. Campbell v. State, 904 S.W.2d 594, 596 (Tenn. 1995). A petitioner alleging
ineffective assistance of appellate counsel must prove that (1) appellate counsel acted
objectively unreasonably in failing to raise a particular issue on appeal and (2) absent
counsel’s deficient performance, there was a reasonable probability that defendant’s appeal
would have been successful before the state’s highest court. E.g., Smith v. Robbins, 528
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U.S. 259, 285, 120 S. Ct. 746, 764 (2000); Aparicio v. Artuz, 269 F.3d 78, 95 (2d Cir. 2001);
Mayo v. Henderson, 13 F.3d 528, 533-34 (2d Cir. 1994). To show that counsel was deficient
for failing to raise an issue on direct appeal, the reviewing court must determine the merits
of the issue. Carpenter v. State, 126 S.W.3d 879, 887 (Tenn. 2004) (citing Kimmelman, 477
U.S. at 375, 106 S. Ct. at 2574). Obviously, if an issue has no merit or is weak, then appellate
counsel’s performance will not be deficient if counsel fails to raise it. Id. Likewise, unless
the omitted issue has some merit, the petitioner suffers no prejudice from appellate counsel’s
failure to raise the issue on appeal. Id. When an omitted issue is without merit, the petitioner
cannot prevail on an ineffective assistance of counsel claim. Carpenter, 126 S.W.3d at 888
(citation omitted). Additionally, ineffectiveness is very rarely found in cases where a
defendant asserts that appellate counsel failed to raise an issue on direct appeal. One reason
for this is that the decision of what issues to raise is one of the most important strategic
decisions to be made by appellate counsel.
1. Failure to Raise Issues on Appeal
Gray v. Greer, 800 F.2d 644, 646 (7th Cir. 1986), established a test for determining
whether counsel was deficient in Strickland terms for failing to raise particular claims on
direct appeal, i.e,
[s]ignificant issues which could have been raised should then be compared to
those which were raised. Generally, only when ignored issues are clearly
stronger than those presented, will the presumption of effective counsel be
overcome.
In Carpenter v. State, our supreme court refused to hold that the Gray v. Greer standard was
the conclusive test of finding deficient performance. Carpenter, 126 S.W.3d at 888. Our
supreme court noted that the relative strength of the omitted issue is only one among many
factors to be considered. Indeed, the court noted the numerous factors relied upon by the
Sixth Circuit Court of Appeals in evaluating appellate counsel’s failure to raise issues. Id.
The non-exhaustive list includes:
1) Were the omitted issues “significant and obvious”?
2) Was there arguably contrary authority on the omitted issues?
3) Were the omitted issues clearly stronger than those presented?
4) Were the omitted issues objected to at trial?
5) Were the trial court’s rulings subject to deference on appeal?
6) Did appellate counsel testify in a collateral proceeding as to his appeal
strategy and, if so, were the justifications reasonable?
7) What was appellate counsel’s level of experience and expertise?
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8) Did the petitioner and appellate counsel meet and go over possible issues?
9) Is there evidence that counsel reviewed all the facts?
10) Were the omitted issues dealt with in other assignments of error?
11) Was the decision to omit an issue an unreasonable one which only an
incompetent attorney would adopt?
Carpenter, 126 S.W.3d at 888 (citing Mapes v. Coyle, 171 F.3d 408, 427-28 (6th Cir. 1999)).
Our supreme court acknowledged that the Sixth Circuit’s final factor reaches the ultimate
issue under the first prong of Strickland and is, therefore, not helpful in deciding whether
appellate counsel’s performance was deficient.
Again, Petitioner complains that appellate counsel failed to raise issues concerning
the constitutionality of the death penalty, i.e. (1) the death penalty is arbitrarily imposed, (2)
the death sentence is invalid because the aggravating factor was not included in the
indictment, (3) the sentence of death infringes upon the Petitioner’s fundamental right to life,
and (4) the sentence of death violates international law and the Supremacy Clause of Article
VI of the United States Constitution. These issues have been rejected by the appellate courts
of this state on numerous occasions and are discussed in Section V of this opinion. Petitioner
cites no new authority requiring reversal of this precedent.
An appellate attorney is neither duty bound nor required to raise every possible issue
on appeal. Carpenter, 126 S.W.3d at 887 (citing King v. State, 989 S.W.2d 319, 334 (Tenn.
1999)); Campbell, 904 S.W.2d at 596-97. Counsel elected not to raise issues which were
well-settled in the law at the time. See generally Cooper, 849 S.W.2d at 757 (standard
practice for advocates to weed out weak arguments to focus on one central issue). An
attorney’s determination as to the viability of the issues should be given considerable
deference. Carpenter, 126 S.W.3d at 887; Campbell, 904 S.W.3d at 597. Application of the
Mapes’ factors indicates that counsel’s decision was not deficient. Accordingly, no prejudice
resulted. Petitioner is not entitled to relief as to his claim that appellate counsel was
ineffective for failing to raise these constitutional issues.
2. Failure to Properly Argue Issues
The Petitioner argues that counsel failed to adequately argue issues concerning the
admission of the Petitioner’s typewritten statement and that the death penalty is
unconstitutional. At the Petitioner’s trial, the State did not introduce the Petitioner’s
typewritten statement. Rather, the State relied upon Detective Nichols’ recitation of what
occurred during the initial interview with the Petitioner. On direct appeal, defense counsel
argued that the trial court erred by refusing to permit defense counsel to cross-examine
Detective Nichols about the typewritten statement taken by Sergeants Sullivan and Stewart.
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At trial, Detective Nichols testified as to the Petitioner’s oral statement. The defense sought
to cross-examine Detective Nichols by introducing the typewritten statement. The defense
theory on appeal was that the typewritten statement was merely a continuation or reduction
to writing of the oral interview conducted by Detective Nichols. See State v. Roy E. Keough,
No. 02C01-9708-CR-00317 (Tenn. Crim. App., at Jackson, Jan. 13, 1999), aff’d by, 18
S.W.3d at 175. The supreme court determined that the trial court did not err in finding that
the defendant, in essence, gave two statements. Keough, 18 S.W.3d at 183. In so
concluding, the court noted that the statements were given to different officers and the
Petitioner was read his Miranda rights before each statement. Id. Furthermore, the court
concluded that Detective Nichols did not have personal knowledge of what the Petitioner told
Sergeants Sullivan and Stewart. The court further noted that “the defendant is not entitled
to relief on this issue because there was other evidence in the record that the victim had
threatened to kill the defendant on the day in question.” Id. The Petitioner now asserts that
counsel’s failure to inform the appellate courts that Sergeant Sullivan was present for both
the oral and written portions of the statement deprived him of his right to the effective
assistance of counsel on appeal.
An appellate court is not a fact-finding court. In other words, an appellate court is
limited to review only those facts contained in the record. See Tenn. R. App. P. 13(c). The
trial transcript is absent any reference to the fact that Sergeant Sullivan was present during
the initial oral statement given by the Petitioner. Indeed, during the discussion at trial over
the admission of the typewritten statement, counsel stated, “This gentleman here [Nichols]
started an oral confession. He got a call, and he handed it over to the other two officers
there.” Regarding the statement, the trial court determined that “you can get [the typewritten
statement] in . . .[b]ut you are not going to do it through this officer in front of this jury.”
Nothing in the transcript of the testimony of the trial indicates that Sergeant Sullivan was
present during both the oral statement and the typewritten statement. Indeed, at the post-
conviction hearing, Sergeant Sullivan testified that he was not certain whether he was present
for the oral statement given by the Petitioner on December 25, 1995. Notwithstanding, the
typewritten report introduced for identification purposes only did indicate that “Mr. Keou[g]h
agreed to give a typewritten statement regarding what he had told Sgts Nichols and Sullivan.”
The typewritten report suggested that both Detective Nichols and Sergeant Sullivan were
present at the time of the first statement. As the Petitioner raises this same issue in additional
contexts, we elect to address the claims regarding the admissibility of the Petitioner’s
statement collectively in section IV of this opinion, infra.
The Petitioner also complains that defense counsel failed to properly assert on appeal
argument supporting the pre-trial motions seeking to declare the death penalty
unconstitutional. Defense counsel’s argument, in the appellate brief, is as follows:
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As the Court has previously addressed the issues raised in the pretrial motions,
the Defendant relies on and adopts the authorities cited and arguments made
in his pre-trial motions, specifically but not limited to the following:
(1) Motion to Dismiss the Indictment Due to the Illegality and
Unconstitutionality of TCA 39-13-203 and 39-13-203 and 39-13-205 and the
Imposition of the Death Sentence
(2) Motion to Dismiss on the Grounds that Electrocution constitutes Cruel and
Unusual Punishment
(3) Motion to Dismiss.
In three separate pre-trial motions, defense counsel made eighteen challenges to the
constitutionality of the death penalty, including but not limited to arguments that (1) the death
penalty violates double jeopardy, (2) the introduction of hearsay evidence during the penalty
phase is unconstitutional, (3) the death penalty statutes are vague and overbroad, (4)
electrocution constitutes cruel and unusual punishment, and (5) that proportionality review
is inadequate. The individual arguments are supported by over forty pages of legal argument.
On direct appeal, a panel of this Court determined that the issues raised had previously been
determined adversely to the Petitioner. See State v. Roy E. Keough, No. 02C01-9708-CR-
00317. It is not uncommon for counsel in death penalty litigation to raise constitutional
challenges to the death penalty that have been previously determined adversely to their
position. It is common practice to raise the issues to preserve them for future review. The
grounds relied upon by defense counsel in the present case were thoroughly presented in the
pre-trial motions. Moreover, it is understood that these issues were raised merely to preserve
them for future review. The Petitioner is not entitled to relief on this issue.
III. Prosecutorial Misconduct
The Petitioner complains that the State denied him his fundamental right to a fair trial
by charging him with first degree murder and seeking the death penalty. The Petitioner
asserts that, by charging him with first degree murder and subsequently seeking the death
penalty, the State engaged in overcharging which was an effective arbitrary use of the death
penalty. In support of his argument, the Petitioner asserts the following four fundamental
premises: (1) the procedures utilized in seeking the death penalty cannot permit arbitrary and
unreliable results, (2) the death penalty must be reserved for only the most serious offenses
and the worst of the worst murderers, (3) neither the Petitioner nor the offenses in this case
fall within the category of the most serious crimes or the worst of the worst offenders and (4)
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overcharging combined with ineffective representation permitted “what is arguably a
manslaughter to become capital murder.”
First, we note that any error attributed to trial counsel’s representation will be
discussed within the confines of the Petitioner’s claim of ineffective assistance of counsel.
The focus of the Petitioner’s claim within this allegation lies with a claim of overcharging
by the prosecution. In this regard, the nexus of his claim is that the Petitioner is not the
“worst of the worst offenders” and that the circumstances of this murder are not within the
purview of the most serious of all homicides committed within the state. He cites to
comments made by law enforcement officers at the time of the Petitioner’s arrest stating that
they would recommend a charge of second degree murder. He also cites to the prosecutor’s
statements that this was not a case that could not have been settled for a plea to second
degree murder. Notwithstanding, the Petitioner concedes that the law is settled that the
prosecutor has broad discretion in the charging of offenses.
While we appreciate the novel posture in which he advances his argument, it appears
upon inspection of his argument that the Petitioner’s complaints are nothing more than
challenges to the sufficiency of the evidence to support his conviction for first degree murder
and the proportionality of the death penalty imposed in this case. On direct appeal, the
Tennessee Supreme Court determined that the evidence was legally sufficient to support “a
finding that the defendant acted with premeditation.” Keough, 18 S.W.3d at 181. Our
supreme court further determined that the imposition of the death penalty in this case was not
imposed arbitrarily and was not disproportionate. Specifically, the court held that “the
similarity of the circumstances to cases in which the death penalty has been upheld, and, in
particular, the strength of the aggravating circumstance- the defendant’s two prior
convictions for violent felonies - reveals that the penalty is not arbitrary or disproportionate
as applied in this case.” Keough, 18 S.W.3d at 184. It is well-established that post-
conviction proceedings may not be employed to raise and re-litigate issues previously
determined on direct appeal. See, e .g., Miller v. State, 54 S.W.3d 743, 747-48 (Tenn. 2001).
Accordingly, we conclude that the Petitioner is not entitled to relief on these grounds.
IV. Denial of Right to Fair Trial
The Petitioner asserts that the trial court’s failure to permit the jury to hear the
contents of the Petitioner’s typewritten statement denied him the right to a fair trial and the
right to present a defense. In a corollary issue, the Petitioner asserts that the State wrongfully
and knowingly manipulated the testimony of Detective Nichols resulting in a Napue
violation. See Napue v. Illinois, 360 U.S. 264, 79 S. Ct. 1173 (1959). In Napue, the United
States Supreme Court held that “a conviction obtained through the use of false evidence,
known to be such by representatives of the State” deprives a defendant of due process.
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Napue v. Illinois, 360 U.S. at 269, 79 S. Ct. at 1177; see also Giglio v. United States, 405
U.S. 150, 153, 92 S. Ct. 763, 766 (1972); State v. Spurlock, 874 S.W.2d 602, 617 (Tenn.
Crim. App. 1993). “The same result obtains when the State, although not soliciting false
evidence, allows it to go uncorrected when it appears.” Napue, 360 U.S. at 269, 79 S.Ct. at
1177.
The proof at trial revealed the following circumstances surrounding the Petitioner’s
statements to law enforcement:
Detective James Nichols encountered the Petitioner in the interview room at the
homicide office. The Petitioner advised Detective Nichols that he wanted to speak with his
attorney, Leslie Ballin. Detective Nichols contacted Leslie Ballin and did not speak with the
Petitioner until Leslie Ballin arrived. Mr. Ballin conferred with the Petitioner and informed
Detective Nichols that the Petitioner wished to make a statement. Detective Nichols
informed the Petitioner of his Miranda rights and began an interview with the Petitioner. The
Petitioner told Detective Nichols that he had found his wife in a bar with another man. He
and his wife started arguing and they were asked to leave. Once outside, the argument
escalated and he stabbed his wife with a “rifle knife.” The Petitioner also admitted to
stabbing Berry when Berry intervened. The Petitioner stated that he could not recall how
many times he stabbed the victims because “he was angry or something to the effect that his
emotions were so high.”
The Petitioner then agreed to give a formal typewritten statement. Detective Nichols
had to respond to another matter and, therefore, asked two other officers, Sergeants Sullivan
and Stewart, to take the statement. This statement was similar to the statement given to
Detective Nichols but contained the Petitioner’s assertion that Betty Keough carried a gun
and had shot at him on an earlier occasion. In this typewritten statement, the Petitioner
asserted that both Kevin Berry and Betty Keough had pushed him in the parking lot. The
Petitioner also acknowledged a history of domestic violence “both ways” in their marriage.
The typewritten statement was introduced for identification purposes only. A typewritten
report attached to the exhibit indicated that Detective Nichols and Sergeant Sullivan were
present during the oral statement. At trial, the lower court refused to permit the cross-
examination of Detective Nichols to venture into the contents of the typewritten statement
on the basis that Nichols did not have personal knowledge of what the Petitioner may have
told the other officers.
In reviewing this matter on direct appeal, our supreme court determined that the lower
court did not abuse its discretion in finding that the defendant, in essence, gave two
statements: an oral statement to Detective Nichols followed by a written statement to
Detectives Sullivan and Stewart. The court determined “[t]he statements were given to
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different officers, and the defendant was read his Miranda rights before giving each
statement.” Keough, 18 S.W.3d at 183. The court acknowledged that Detective Nichols did
not have personal knowledge of what the Petitioner told Sergeants Sullivan and Stewart
during the typewritten statement. The court further noted that the State did not call Sullivan
or Stewart as witnesses and did not try, otherwise, to introduce the typewritten statement.
The court noted that the Petitioner also did not call Sullivan or Stewart as witnesses.
A. Napue Violation
The Petitioner asserts that the prosecutor’s questioning of Detective Nichols during
the trial was done in a manner that Sergeant Sullivan’s presence during the Petitioner’s oral
statement was never made known to the trial court. In support of his claim, the Petitioner
relies upon the supplemental report which was introduced for identification purposes only
during the Petitioner’s trial. He contends that this manipulation of the proof amounts to a
violation of Napue v. Illinois, 360 U.S. at 264, 79 S. Ct. at 1173.
In the Napue case, Hamer, the principal witness for the State, had testified in response
to a question by the Assistant State’s Attorney that he had received no promise or
consideration in return for his testimony. The Assistant State’s Attorney had in fact, as he
later admitted, promised Hamer that if he would testify against Napue he would recommend
a reduction of Hamer’s sentence. Hamer’s testimony that he had received no promise or
consideration was false and was known by the Assistant State’s Attorney to be so. The
Assistant State’s Attorney did nothing to correct it or to inform the jury of its falsity. The
lower court rejected Napue’s post-conviction petition, and the Supreme Court of Illinois
affirmed, holding that Napue was not entitled to relief because the jury had already been
apprised that someone, whom Hamer had tentatively identified as being a public defender,
‘was going to do what he could’ for him. On appeal to the Supreme Court of the United
States the question presented was “whether on these facts the failure of the prosecutor to
correct the testimony of the witness which he knew to be false denied petitioner due process
of law in violation of the Fourteenth Amendment.” Following Mooney v. Holohan, 294 U.S.
103, 55 S. Ct. 340(1935), and White v. Ragen, 324 U.S. 760, 65 S. Ct. 978 (1945), the
Supreme Court held that the conviction, obtained through use of false evidence known to be
such by the prosecuting attorney, violated Napue’s right to due process. The Court further
declared that the constitutional infirmity was not removed by the fact that Hamer had testified
that an unidentified lawyer from the public defender’s office had offered to help him.
In order to prevail on a claim that the prosecution knowingly used false or perjured
evidence in violation of the Due Process Clause of the Fourteenth Amendment to the United
States Constitution and Article I, sections 8 and 9 of the Tennessee Constitution, a defendant
must show by a preponderance of the evidence (a) that false or perjured testimony was
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admitted at trial, (b) that the state either knowingly used such testimony or knowingly
allowed it to go uncorrected, and (c) that the testimony was material and deprived him of a
fair trial. See Roger Morris Bell v. State, No. 03C01-9210-CR-00364, 1995 WL 113420, *8
(Tenn. Crim. App., at Knoxville, Mar. 15, 1995), perm. to appeal denied, (Tenn. Aug. 28,
1995). Applying this test to the present case, we conclude that nothing in the present case
evidences that Nichols’ testimony at trial was false or that the prosecutor believed or knew
that Nichols had perjured himself. There is no evidence that the prosecution attempted to
hide any information from the court or the jury. The Petitioner has failed to meet his burden
of establishing any knowing misconduct on behalf of the prosecution in this case.
Accordingly, the Petitioner has failed to establish that he is entitled to relief under Napue.
B. Trial Court Erred in Failing to Admit Typewritten Statement
The Petitioner’s argument rests primarily upon his allegation that the trial court and
the appellate courts did not consider the fact that Sergeant Sullivan was present at both the
oral statement and the typewritten statement. The Petitioner contemporaneously faults trial
counsel with failing to establish that Sergeant Sullivan was present at both the oral statement
and the typewritten statement, to subpoena Sergeants Sullivan and Stewart, and to couch their
argument in terms of the compulsory process clause of the Sixth Amendment.
The most material difference between the Petitioner’s oral statement and his
typewritten statement is the statement in the latter that Betty Keough carried a gun and
previously shot at the Petitioner. The Petitioner sought to introduce this statement to support
his theory of self-defense. On appeal, neither this Court nor the Tennessee Supreme Court
found that the second statement was a continuation of the oral statement. This Court
determined that the typewritten statement was a separate statement for the purposes of
admissibility and determined that the trial court did not err in precluding cross-examination
of Nichols on the subsequent statement. Moreover, this Court specifically determined that
even if the exclusion of the subsequent statement were error, no prejudice enured to the
Petitioner because the Petitioner was able to introduce through the testimony of another
witness that the victim had claimed to have been carrying a gun and had threatened to kill the
Petitioner. Roy E. Keough, No. 020C1-9708-CR-00317. The Tennessee Supreme Court
further determined that the oral and typewritten statement were not one continuous statement
because the Petitioner was given Miranda warnings before each statement. Keough, 18
S.W.3d at 182. The supreme court also determined that “the defendant is not entitled to relief
on this issue because there was other evidence in the record that the victim had threatened
to kill the defendant on the day in question.” Keough, 18 S.W.3d at 183.
Regardless of the admissibility of the typewritten statement and alleged errors
contributing to its exclusion attributed to counsel, we cannot conclude that the Petitioner
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suffered prejudice as a result thereof. As noted by our supreme court, there was other
evidence in the record that Betty Keough had threatened to kill the Petitioner and that she had
a weapon. There is not a reasonable probability that had the jury been privy to the
Petitioner’s account of Betty Keough’s aggressiveness in their relationship that the jury
would have altered its conclusion that the Petitioner did not act in self-defense or in the heat
of passion. The Petitioner is not entitled to relief on this issue.
V. Constitutionality of Death Penalty
Petitioner Keough raises numerous challenges to the constitutionality of the death
penalty. He concedes that his arguments “are raised for the purpose of federal review.”
(Emphasis added). The grounds raised are as follows: Tennessee’s death penalty scheme is
unconstitutional in that unfettered discretion is vested with each individual district attorney
general, the indictment in his case violated his constitutional rights in that the aggravating
circumstance was not pled in the indictment; the death penalty infringes upon his
fundamental right to life; and the death penalty violates his rights under international law and
the Supremacy Clause.
The Petitioner’s challenges have previously been rejected by courts of competent
jurisdiction. As noted by the Petitioner, his arguments are raised for the purpose of federal,
and not state, court review. We decline to repeat yet again the analysis and citations which
have continuously rejected these arguments. However, we do take the opportunity to point
out a rather obvious point in support of the assertion that capital punishment does not violate
the Constitutions of the United States and the State of Tennessee. Each document references
capital punishment in a manner approving the use of the death penalty. See U.S. Const.
amend. V (“[n]o person shall be held to answer for a capital . . . crime unless on a
presentment or indictment . . . nor be deprived of life . . . without due process of law. . . .”);
Tenn. Const. art I, § 15 (“That all prisoners shall be bailable by sufficient sureties, unless for
capital offences, when the proof is evident, or the presumption great.”). The Petitioner is
not entitled to relief on this ground.
CONCLUSION
After a thorough review of the record and the law applicable to the issues raised
herein, we conclude that the Petitioner has failed to prove allegations contained in his post-
conviction petition by clear and convincing evidence. The post-conviction court properly
denied the Petitioner relief. Accordingly, the judgment of the post-conviction court is
affirmed.
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THOMAS T. WOODALL, JUDGE
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