Richard C. Taylor v. State ( 1999 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
OCTOBER 1998 SESSION
July 21, 1999
Cecil W. Crowson
RICHARD C. TAYLOR, ) Appellate Court Clerk
)
Appellee, ) No. 01C01-9709-CC-00384
)
) Williamson County
v. )
) Honorable William S. Russell, Special Judge
)
STATE OF TENNESSEE, ) (Post-Conviction)
)
Appellant. )
For the Appellant: For the Appellee:
John Knox Walkup Bradley A. MacLean
Attorney General of Tennessee SunTrust Center, Suite 1900
and Nashville, TN 37219
Glenn R. Pruden
Assistant Attorney General Sabin R. Thompson
of Tennessee 401 Church Street, Suite 2600
425 Fifth Avenue North Nashville, TN 37210
Nashville, TN 37243-0493
Joseph D. Baugh, Jr.
District Attorney General
Williamson County Courthouse
P.O. Box 937
Franklin, TN 37065-0937
OPINION FILED:____________________
AFFIRMED
Joseph M. Tipton
Judge
OPINION
The state of Tennessee appeals as of right from the Williamson County
Circuit Court’s grant of post-conviction relief to the petitioner and the setting aside of his
first degree murder conviction and death sentence due to the ineffective assistance of
counsel. The petitioner presents additional claims in support of post-conviction relief in
the event that this court reverses the trial court’s rulings.
The petitioner was convicted in 1984 for the first degree murder of
correctional officer Ronald Wayne Moore and received the death penalty. The
convictions and sentences were affirmed on direct appeal to the Tennessee Supreme
Court. State v. Taylor, 771 S.W.2d 387 (Tenn. 1989), cert. denied, 497 U.S. 1031,
1110 S. Ct. 3291 (1989). The petitioner filed his post-conviction petition, and the trial
court conducted several evidentiary hearings in 1994 and 1995. The trial court granted
the petitioner relief on February 27, 1997, concluding that counsel had been ineffective
at both the guilt and sentencing phases of the petitioner’s trial.
The state contends that the trial court erred in granting the petitioner full
relief, generally claiming as follows:
(1) the trial court applied the wrong legal standard for
determining the existence of prejudice when deciding the claim
of ineffective assistance of counsel, and
(2) the evidence adduced at the post-conviction hearing, when
considered with the evidence presented at trial, preponderates
against the trial court’s finding that trial counsel rendered
ineffective assistance at the guilt and sentencing phases of the
petitioner’s first degree murder trial.
The petitioner asserts the following additional grounds:
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(1) the petitioner was not competent to stand trial and the
original trial court never made a proper determination of the
petitioner’s competency;
(2) the state’s withdrawal of medication from the petitioner on
the eve of trial without any stated medical reason and without
notice to the defense or to the court violated the petitioner’s
constitutional rights;
(3) prison guards violated his constitutional rights by torturing
and abusing him before, during and after his trial; and
(4) the petitioner is entitled to post-conviction relief on the
bases of other claims, viewed separately and cumulatively,
which the petitioner asserted at different stages in this case.
First, we must deal with the petitioner’s request that the state’s appeal be dismissed
because of noncompliance with rules of appellate procedure and trial court orders
relative to the appeal. The petitioner’s claims include the state’s failure to serve him
with its notice of appeal, failure to file a complete transcript timely, filing of a notice of
filing when the transcript was not actually filed with the trial court clerk, and failure to
provide missing exhibits and to include them in the record on appeal. As the state
notes, the petitioner made most of these claims in previous motions to dismiss that
were denied by this court. It also asserts that most of the claims do not lead to
dismissal under the appellate rules. As for service of the notice of appeal, it states that
service was made upon the petitioner’s attorney, and it asserts that the petitioner has
shown no prejudice accruing from the claimed deficiencies. W e see nothing in this
case indicating any act or omission by the state that would warrant our dismissing the
appeal. We will proceed to the merits.
The supreme court’s direct appeal opinion provides the following synopsis
of the evidence presented at the petitioner’s trial:
Corrections Officer Moore was stabbed to death on the
night of August 28, 1981. It is undisputed that the killer was
the defendant, Richard C. Taylor. The issue raised in defense
of the murder charge was that defendant was insane at the
time of the homicide.
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The record shows that Mr. Taylor believed that he had
been treated unfairly by Officer Moore on several occasions.
Defendant blamed Moore for preventing defendant from
receiving a stereo and television set left to him by an inmate
who had been transferred from the Turney Center. On the day
of the killing, Moore reprimanded the defendant for failing to
properly clean the hall. The incident that "set off" the
defendant, however, occurred an hour or two before the killing
when Moore removed a towel that another inmate, Tony
Bedwell, had hung over the window in a cell door to dry and
pushed the towel under the door. When Bedwell asked Moore
what was going on, Moore explained the regulations against
covering the window in the cell door. To Bedwell, the incident
was "nothing big," but defendant, who had seen what
happened, advised Bedwell to "kick [Moore] up the side of his
head." Bedwell next saw the defendant when he and Wayne
Patterson came to Bedwell’s cell to ask if Bedwell had a knife.
Around 9:00-9:30 p.m., the defendant approached
Moore as he stood talking to some inmates, cursed and asked
Moore, "Now what are you going to do, S.O.B.?" Defendant
then grabbed Moore and began to stab him repeatedly with a
prison-made knife. Pleading with defendant to stop, Moore
retreated down the hall. Defendant continued to hold Moore
and continued to stab him. Other inmates protested and tried
to come to the aid of Moore, but were warned off by defendant
brandishing his knife.
After the stabbing, defendant returned to his cell block,
where he concealed the knife in a closet and changed his
clothing. Officer Moore died about forty minutes later in the
prison infirmary from internal bleeding caused by a wound that
had penetrated his inferior vena cava. He also had suffered
potentially fatal stab wounds to the pancreas and the spleen.
Several inmates described defendant’s appearance and
actions. According to inmate Patterson, the defendant was
"hyper" and nervous. After the killing the defendant walked
around the hallway "in shock," disoriented, bumping into
people and the wall. Patterson said defendant was shaking
and trembling, with an "expression on his face like a wild
horse." The officers who apprehended defendant after the
killing, however, while remarking that he was shaking and
stuttering and appeared nervous, said that defendant was not
confused, was responsive, coherent and understood their
questions. Defendant indicated he understood his rights and
signed a waiver but refused to sign a confession or allow his
confession to be written down.
Taylor, 771 S.W.2d at 389-90.
The jury found that the following aggravating circumstances warranted the
death penalty: (1) the defendant previously had been convicted of a felony that
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involved the use or threat of violence to a person; (2) the murder was especially
heinous, atrocious, or cruel in that it involved torture or depravity of mind; (3) the murder
was committed by the defendant while he was in lawful custody or in a place of lawful
confinement; and (4) the murder was committed against a corrections employee who
was engaged in the performance of his duties, and defendant knew that the victim was
a corrections employee who was engaged in the performance of his duties. Tenn.
Code Ann. § 39-2-203(i)(2),(5), (8) and (9) (1982). In reviewing the case, our supreme
court concluded that the evidence sustained the verdict and the sentence. 771 S.W.2d
at 389.
POST-CONVICTION EVIDENTIARY HEARING
Marlindo Bruno, a paralegal, testified that she had worked with the
petitioner’s post-conviction attorney on this case since 1990 or 1991 and that she was
responsible for the custody of the documents obtained by petitioner’s counsel. Through
her, petitioner’s counsel introduced as exhibits copies of the trial transcript; the jury
instructions requested and those read at trial; the defense’s Brady and Jencks requests
at trial; the petitioner’s medical records obtained in the previous trial from the district
attorney’s files and from the Department of Correction; a chart of the petitioner’s
institutional history; pleadings to unseal adoption records and the adoption records
themselves; court records of the petitioner’s father and grandfather; a report by Dr.
Glenn Watson obtained from the district attorney’s files; a tape of the state’s interview
of Dr. John Filley, the psychiatrist who testified for the state at the original trial regarding
the petitioner’s competency and sanity; an enhanced tape of the Filley tape; a transcript
of the enhanced tape; copies of Dr. Filley’s notes; letters written by the petitioner shortly
after the murder; Officer Greenlee’s statement; an anonymous statement taken from
the district attorney’s files; a statement and tape recording of interviews with several
prison inmates and the petitioner; an enhanced tape of the interview tape; a
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transcription of the enhanced tape; the victim’s personnel records; and Tennessee
Department of Motor Vehicle records of the victim.
Eric G. Prestidge, a recording engineer, testified that he had enhanced
the tapes introduced at the hearing to make them more intelligible. He explained the
process of enhancement and stated that the two tapes were labeled the Filley tape and
the confession tape.
Dr. William H. Tragle, III, a psychiatrist employed part-time at the
Forensics Division of Middle Tennessee Mental Health Institute, testified that while
employed by the Dede Wallace Mental Health Center, he consulted with and treated
the petitioner from 1981 to 1985. He testified that he did not consult with any state or
defense experts before they testified at trial about the petitioner’s competence and
sanity. He also stated that petitioner’s counsel did not contact him.
After reviewing his notes from the treatment period, Dr. Tragle testified
that in November 1981, he had recommended that the petitioner be placed in DeBerry
Correctional Institute, a facility that housed prisoners in need of mental health
treatment. He stated that at that time, he did not think that an adequate evaluation
could be done at the prison and that he prescribed Haldol and Thorazine, two
psychotropic medications, for the petitioner. He stated that he prescribed the
medications because he believed that the petitioner suffered from an anti-social
personality disorder.
Dr. Tragle testified that in February 1982, he again visited the petitioner
and considered him to be suicidal. He said that he put him on a suicide watch, ordering
that he be observed every thirty minutes. He said in June 1983, he observed that the
petitioner appeared to be psychotic but that the symptoms abated when treatment
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began. He concluded that the petitioner had a propensity for assaultive behavior which
could be reduced with medication. He stated that in November 1984, he met with the
petitioner, and he noted that the petitioner appeared suspicious, telling him that he did
not want anyone to know what was on his mind. Dr. Tragle stated that he felt that the
diagnosis of an anti-social personality might not be correct and that the petitioner’s
illness might be more serious.
Dr. Tragle testified that on November 2, 1984, he discontinued
medications at the petitioner’s request. He said that on December 7, 1984, Haldol,
Thorazine, and Cogentin were again prescribed for the petitioner. He said that on
January 7, 1985, he examined the petitioner and concluded that he could not properly
assess the petitioner while he was housed at the Tennessee State Penitentiary and
could not specifically make a diagnosis. He stated that in his last memo to Warden
Dutton, he urgently recommended that the petitioner be transferred to DeBerry
Correctional Institute due to his psychotic behavior.
Dr. Tragle testified that he had reviewed two boxes of the petitioner’s
medical history. He testified that the petitioner had been abandoned by his parents and
placed in a foster home. He said the petitioner was subsequently adopted and his half-
sister was later adopted by the same family.
Dr. Tragle testified that these records revealed the petitioner’s use of
morphine, cocaine, phencyclidine, glue, marijuana, quaaludes, amphetamines and
alcohol at a very early age. He said the petitioner was placed in institutions around
Nashville and in Tullahoma, Tennessee. He said the documents showed that the
petitioner had numerous conflicts with his adoptive parents. He said that in one
interview, the petitioner admitted that he had committed one hundred and six illegal
acts, and in another interview, he admitted to one hundred and forty-six acts. Dr.
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Tragle stated that the history revealed that the petitioner exhibited mistrust, narcissism,
depression, grandiosity, photophobia, hallucinogenic occurrences, and a lack of
empathy. In summary, Dr. Tragle testified that throughout the petitioner’s medical
history, the petitioner exhibited symptoms of psychosis.
The trial court questioned Dr. Tragle concerning the testimony of Dr.
Filley, the psychiatrist who testified at the petitioner’s original trial. Dr. Tragle
responded that he did not understand why Dr. Filley had not seen the possibility of the
previously mentioned disorders. He said he felt that Dr. Filley should have considered
the petitioner’s consistent drug abuse and his early childhood experiences. He stated
that any examining psychiatrist should have considered a borderline personality
disorder, paranoia, hypermania, and depression. He testified that, in his opinion, the
two sessions Dr. Filley had with the petitioner, lasting a total of three hours, and the one
psychological written test administered to the petitioner did not constitute a proper
evaluation. He said he felt that Dr. Filley should have evaluated the petitioner on an
inpatient basis over time. He characterized the level of the petitioner’s disorders as
severe to extreme. He stated that the petitioner’s statement that he had killed the
victim because he thought the victim was his father was a plausible explanation. He
also stated that the letters the petitioner wrote shortly after the killing that were
introduced by the state at the original trial should have been used by defense counsel
to show clear indications of his severe mental condition.
On cross-examination, Dr. Tragle admitted that he had never seen the
petitioner in a delusional or hallucinogenic state and that the petitioner was psychotic in
an atypical way. He admitted that the letters the petitioner wrote shortly after the killing
indicated that the petitioner understood the charges against him, that he realized that
he could potentially face the death penalty, and that he exhibited the thought process
that he could put on a "crazy act." Dr. Tragle also stated that although he had not been
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contacted by defense counsel, Dr. Filley, or Dr. Ragheb, he had been in contact with
Dr. Chip Burson and Dr. Mitch Stein, who also testified at the petitioner’s original trial.
On redirect examination, Dr. Tragle reiterated that in his opinion, the
petitioner should have received an inpatient evaluation at DeBerry Correctional
Institute. He said the records revealed that the petitioner was sent to DeBerry but was
returned shortly thereafter without an in-patient review. He also refuted Dr. Filley’s
statement at the original trial that none of the statements in the petitioner’s prison
record which concluded that the petitioner was psychotic were made by a psychiatrist or
psychologist. Dr. Tragle then noted numerous indications in the petitioner’s prison
record that show certain professionals had, indeed, considered him psychotic. A tape
recording of a conversation with Dr. Filley and state counsel was then played for the
court. It was noted that the tape was never turned over to defense counsel at trial.
Gordon Bonnyman, Jr., an attorney with Legal Services of Middle
Tennessee, Inc., testified that he had been lead counsel in two cases related to
whether conditions in the Tennessee prison system violated the Eighth Amendment
and due process rights of inmates. He said that this litigation resulted in the court’s
determination that conditions on death row at the former Tennessee State Penitentiary
were unconstitutional. He testified that during the Grubbs litigation, information
concerning mental health services at the Tennessee State Penitentiary, particularly the
West-100, was provided to the court. See Grubbs v. Bradley, 552 F. Supp. 1053 (
M.D. Tenn. 1982). The West-100 was the first floor wing on the west side of the prison
hospital and housed a mixture of acutely disturbed psychiatric patients. The district
court’s findings of fact in Grubbs concerning the conditions of West-100 were entered
as an exhibit. Essentially, the district court concluded that "the little treatment that
patients caged in West-100 could formerly have hoped to obtain is no longer available."
552 F. Supp. at 1087. The court noted that the lead staff member had warned the
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warden that changes in the unit had rendered it "dangerous and unfit for housing
mentally disturbed inmates," and that the hospital administrator considered this unit to
be bordering on "inhumane." 552 F. Supp. at 1087.
Frank D. Atkinson, sheriff of Hickman County, testified that he
interviewed the petitioner on the night of the killing. He said that when a guard brought
the petitioner to him for interrogation, the guard told him that the petitioner was "subject
to go off at anytime." A tape recording of the interview was played for the court. Sheriff
Atkinson also said that the petitioner told him that at the time of the killing, the victim
had been "standing, talking, talking to him, and he was telling about the drugs out in his
truck." Sheriff Atkinson reviewed the victim’s employment records, and the records
revealed that the victim was on probation for insufficient performance and poor
attendance at the time of the killing.
The petitioner’s lead attorney at trial testified that he had been practicing
law for two years when he became involved in the petitioner’s case and that he had
worked on two capital cases prior to that time but not as lead counsel. He stated that
this case was his first criminal case as lead counsel, his first capital case as lead
counsel, and his first case in which the defense was the defendant’s mental state.
The attorney identified an exhibit which was an affidavit he had submitted
to appellate counsel in this case. In the affidavit, he stated that he had met with the
petitioner for the first time in November of 1981 at the DeBerry Correctional Institute
and that the petitioner had appeared very agitated and intense. The affidavit revealed
that the petitioner shook, displayed inappropriate behavior and made inappropriate
responses. The affidavit revealed that the petitioner mistakenly thought that co-counsel
had been the prosecutor in the case that initially brought the petitioner to prison. The
affidavit revealed that the petitioner’s speech pattern was rapid, halting and staccato,
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and that his facial mannerisms could be characterized as contortions. The affidavit
described his personal appearance as unkempt and disheveled.
In the affidavit, the attorney stated that he represented the petitioner from
1981 until late 1985 or early 1986 and that during this time, the petitioner’s behavior
had vacillated dramatically. His ability to communicate with counsel had deteriorated,
and it had become apparent that his condition was better or worse depending on
medication. As the trial date approached, the petitioner was unable to assist in the
preparation of his defense. He was uncooperative as to how he should dress and act
at trial. During the trial, he made faces and gestures toward jurors and witnesses. He
refused to remove his sunglasses. Other than personal interviews, counsel spoke with
the petitioner in excess of one hundred times on the telephone, but the calls were
consistently unproductive in that the content of the conversations had ranged from
being totally meaningless and absurd to idle chatter. The petitioner believed he was in
contact with a universal computer network that would allow him to perform any task he
wished. He also told counsel that he had bubonic plague. The petitioner made one
legitimate suicide attempt. After he was sentenced to death, he repeatedly attempted
to persuade counsel to assist him in suicide by smuggling weapons and poisons to him
so that he could take his own life.
The attorney testified that he had first met with the petitioner four months
after the killing and that as far as he knew, the petitioner had not seen anybody in that
period of time except for his custodians. He stated that the petitioner’s ability to
cooperate or assist in his defense was "very, very limited." He testified that he had
never represented a defendant who was as seriously mentally disturbed as the
petitioner. He reiterated much of what was stated in his affidavit and said that on the
first day of trial, the petitioner’s behavior was so bizarre that he requested that the
petitioner be kept out of the courtroom during jury selection. He said that the petitioner
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rejected this request and was brought into the courtroom. The attorney testified that at
that time, he stated on the record that he did not think the petitioner was competent to
stand trial. He said the trial court then made arrangements for Dr. Mitch Stein to
evaluate the petitioner’s competency, but the petitioner refused to talk to Dr. Stein. The
attorney testified that because the petitioner had been previously evaluated by the state
and declared competent, he felt that he could do nothing.
The attorney then identified a letter that he had written to Mrs. Melissa
Patey, administrator at the Middle Tennessee Health Center, who eventually signed a
letter to the trial court stating that the petitioner was competent and sane. He said the
letter was written in response to a request for information to be used in the petitioner’s
evaluation. He said the letter contained names and statements from ten people from
the State Department of Correction and the inmate population who had contact with the
petitioner since the killing. He said each of the ten related in some fashion that the
petitioner was not competent.
The attorney testified that he encouraged the Middle Tennessee Health
Center personnel to conduct an intense evaluation of the petitioner over a period of
time without medication. However, according to counsel, the petitioner was evaluated
for a period of only two hours in two visits. The attorney then admitted that he had not
demanded a competency hearing before trial because he was afraid that he would
reveal his trial cross-examination to the state. He admitted that it never occurred to him
to present lay testimony on the issue of competency. He then stated that it was his
opinion that his performance in this case failed to reach the level of assistance
demanded in Baxter v. Rose, although he said he did not consciously violate any
standard. He stated that he did not interview any of the people who had made
notations in the petitioner’s medical and institutional records from the Department of
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Correction concerning his psychotic mental state but that he had read the records and
had given them to Dr. Stein.
The attorney admitted that he did not contact Dr. Tragle. He admitted that
he did not try to get the adoption records of the petitioner although he felt the records
were extremely important. He stated that in attempting to portray the petitioner as a
human being rather than a monster, the records would have been invaluable because
his adoptive parents were totally alienated from him at the time of trial.
The attorney testified that although he had filed Brady and Jencks
motions, he had never received the tape of the state’s interview with Dr. Filley. He
stated that the tape was important because Dr. Filley indicated that an assessment
should have been made of the petitioner on and off medication and that the petitioner
exhibited a sign of psychosis when the petitioner stated that he thought the victim was
his father. The attorney stated that he had never been given copies of letters written by
inmates to the district attorney indicating that the petitioner had been set up to commit
the murder by other inmates. He admitted that he did not have the petitioner assessed
to determine whether the petitioner had organic brain problems.
The trial court then ordered that the petitioner be evaluated by a court-
appointed psychiatrist. The post-conviction hearing resumed on September 18, 1995,
at which time Nancy Van Sant Palmer, an attorney, testified that she began working on
this case in October of 1992. She stated that she spent more than two hundred hours
with the petitioner. She testified that the petitioner had lived in solitary confinement on
death row since 1981. The petitioner’s institutional and adoption records; affidavits
from biological relatives, adoptive relatives, employers, and a social worker; and the
petitioner’s childhood medical records and school records were introduced into
evidence. The petitioner’s older sister’s psychiatric records were introduced into
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evidence, revealing that the sister had a long mental health history, including a
diagnosis of schizophrenia. An interview with Troy Roscendo Collins, the half brother of
the petitioner, revealed that he had experienced a serious drug and alcohol problem. A
chart of the petitioner’s family tree showed significant drug and alcohol abuse problems
and psychiatric problems throughout the family.
Ms. Palmer testified that the childhood medical records of the petitioner
revealed that he had been taken to the doctor twenty-seven times before he was age
three. She stated that the records also showed that the petitioner was frequently
inaccurate in what he said about his life compared to what the records revealed. Notes
from Dr. Ragheb, an expert for the state who testified at the original trial, were
introduced into evidence, and Ms. Palmer testified that many of the notes were not
accurate. For instance, the notes indicated that the petitioner had a history of abusing
animals, but no evidence supported this determination. Ms Palmer testified that the
records explained the circumstances surrounding the events of the crimes for which the
petitioner was in prison at the time of the killing. Ms. Palmer introduced into evidence a
record on mitigation that could have been presented at the time of trial.
Ms. Palmer then testified as to what the petitioner had told her during the
two hundred hours she spent with him. She said the petitioner felt that she was not his
savior but that the trial court was and that the state was his family. She stated that it
took a long time to talk to the petitioner because his speech was incoherent. She
testified that the petitioner could not give a coherent explanation of events surrounding
the killing. She said that when questioned concerning his family, the closer the
question was to his emotional attachment to his family or his experiences with his
family, the less reliable and coherent the information was. It was Ms. Palmer’s opinion
that the petitioner could not consult with counsel and assist in preparing his defense
and that he was not competent to stand trial at the time of the post-conviction hearing.
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Dr. Pamela Mary Auble, a psychologist with a specialization in
neuropsychology, testified that she had been asked to assess the competency of the
petitioner and had reviewed many of the records pertaining to the petitioner’s history.
She described many of the tests that she had administered, and she introduced into
evidence the report she had submitted to the court. She said that in the report, she
concluded that the results evidenced extensive psychopathology. She stated that in
addition to antisocial traits, the petitioner exhibited evidence of paranoia and psychosis.
In reviewing previous test results of the petitioner, Dr. Auble stated that
these results were consistent with her findings. Although Dr. Auble testified that the
petitioner’s results on the Minnesota Multiphasic Personality Inventory (MMPI) she had
administered were not valid because he had over-endorsed pathology, she reviewed
the results from a previously administered MMPI and concluded that the results
indicated that the petitioner had significantly high scores on the schizophrenia scale and
the hypomania scale. Dr. Auble’s diagnosis was that the petitioner suffered from a
borderline personality disorder. She described the petitioner as immature, unable to
trust people, unable to relate to others, mentally rigid, and unable to adapt to new
situations. She stated that he reacts impulsively, especially when he is under stress.
When questioned concerning the petitioner’s malingering, Dr. Auble stated that it was
her opinion that he engages in the type of malingering associated with a borderline
personality disorder.
Referring to a report submitted by the court-appointed psychiatrist, Dr.
Rappeport, Dr. Auble stated that Dr. Rappeport had not examined important factors
concerning the circumstances surrounding the killing. She said that instead, he had
questioned the petitioner about what his perceptions were at the time of the killing. Dr.
Auble testified that upon reviewing other inmates’ statements, it appeared the petitioner
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was in a state of shock after the killing and was not malingering when he told officers
that he thought the victim was his father. She also stated that the letters the petitioner
wrote following the killing were not reliable because the petitioner had not been reliable
concerning any other part of his history. On cross-examination, Dr. Auble testified that
she agreed with Dr. Rappeport’s report in part but disagreed that at the time of the
killing, the petitioner had exhibited no sign of psychosis.
Dr. John Kirby Pate, a psychiatrist, testified that he had reviewed all
relevant medical and prison records of the petitioner, the social history developed
during the case, Dr. Auble’s report, and Dr. Rappeport’s report. He testified that he
agreed with Dr. Rappeport’s diagnosis that the petitioner suffered from an antisocial
personality disorder and borderline personality disorder but that he disagreed that the
petitioner was not psychotic and was competent. According to Dr. Pate, persons
suffering from a borderline personality disorder cannot cope with stress and often
become psychotic. He said they become confused, irrational, and impulsive. He stated
that when such a person experiences a psychotic episode, the person becomes unable
to conform his conduct to the requirements of the law.
Dr. Pate testified that he had interviewed the petitioner on three occasions
over a total of six hours and had diagnosed the petitioner as suffering from a borderline
personality disorder. He disagreed with Dr. Rappeport that the petitioner was
malingering after the killing. After reading the statements of other inmates who had
witnessed the killing, Dr. Pate testified that the petitioner was suffering from a psychotic
episode at the time of the killing and that it was entirely possible that the petitioner
thought the victim was his father. Dr. Pate also stated that the fact that the petitioner
had been placed on psychotic medication before trial but at the time of trial was taken
off the medication would have caused him to be more anxious, impulsive, and
cognitively disorganized at the time of trial. Dr. Pate also believed that at the time of the
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hearing, the petitioner was not competent to stand trial. On cross-examination, Dr. Pate
admitted that he was opposed to the death penalty.
The petitioner’s attorney on direct appeal testified that on his first meeting
with the petitioner, the petitioner struck him as being "one of the most out of touch
people [he had] ever been around." He testified that the petitioner had not been able to
focus on anything having to do with his case. He described incidents during his
representation when the petitioner referred to himself as Carlos, a Central American
terrorist, and often used a South American accent when being interviewed. He testified
that at no time during his representation of the petitioner did the petitioner assist him in
his defense. He stated that the petitioner, however, always took the position that he
was competent and filed motions with such titles as "Best of Ability Motion." When
questioned concerning whether the petitioner had exhibited signs of malingering,
counsel testified that he never perceived that the petitioner was trying consciously to
mislead anyone concerning his mental condition.
Appellate counsel testified that he had filed a post-conviction relief petition
challenging prior convictions on behalf of the petitioner but that when he had attempted
to discuss the petition with the petitioner, the petitioner became agitated and would not
cooperate. On cross-examination, counsel admitted that he was personally opposed to
the death penalty. On redirect, counsel acknowledged that the petitioner’s prior offense
of robbery involved stealing a pack of cigarettes.
Lead trial counsel for the petitioner was recalled to testify. He recalled
that on the first day of jury selection at the petitioner’s original trial, the petitioner was so
agitated that counsel attempted to talk him into waiving his presence in the courtroom,
and when the petitioner would not waive the right, counsel participated in an in-
chambers conference with the judge concerning his competency. He said that Dr. Stein
17
was called to conduct a competency hearing on the spot, but the petitioner refused to
cooperate with him. Counsel admitted that he had not recalled Dr. Stein to attempt
another evaluation. The original trial court had then ruled that the petitioner was
competent to stand trial. Counsel testified that although he was convinced that the
petitioner was not in any shape to go to trial, the defense had no way to show that the
petitioner was not competent because the state’s expert had found him competent, and
the petitioner would not respond to defense experts.
Counsel admitted that he did not present any evidence regarding the
petitioner’s prior convictions for robbery and joyriding at the sentencing hearing. He
stated that if he had known that the petitioner had been taken off his medicine shortly
before trial, he would have brought that to the attention of the court. He also stated that
because he had been denied funds for a defense expert until eleven or twelve days
before trial, he had not been ready for trial at the time it commenced but had not
requested a continuance.
Co-counsel for the petitioner at the original trial testified that he had been
appointed to the case approximately two months before the trial. He stated that he
could not recall conducting any field investigation in the case. Co-counsel corroborated
lead counsel’s testimony concerning their concern about the petitioner’s competency on
the first day of trial. He recalled that funds for expert services had been denied by the
trial court until shortly before trial and that at that time, the defense was committed to
witnesses that had already volunteered their services. He confirmed lead counsel’s
testimony that any conversations between counsel and the petitioner at trial had been
meaningless. He testified that the petitioner had misbehaved during the trial
repeatedly, especially with regard to his appearance. He stated that upon reflection of
the petitioner’s behavior throughout co-counsel’s representation, it was his opinion that
the petitioner never fully appreciated what was happening to him in the legal system
18
and that he fought counsel throughout the trial. He testified that he never thought the
petitioner was faking his symptoms.
The petitioner testified that the victim had not been stabbed in the back,
that he had not said that he hoped "the son of a b----" died, that other prisoners had
hidden the knife, that prisoner Patterson had control of the knife that killed the victim,
that he had been offered five hundred dollars to kill the victim but that he had initially
refused because he was an orphan of the state and it was his duty to protect an agent
of the institution, and that he had not intended to kill the victim but that the victim had
made another inmate think the petitioner had called him "nigger" when it was actually
the victim who called the inmate "nigger." He also stated that he had tried to leave
before stabbing the victim, but a force had prevented him from leaving.
Appellate co-counsel for the petitioner testified that in his first meeting with
the petitioner, the petitioner would not talk with him and staged a "one-man play in
which he reached under a chair and said, ‘what if I had hidden a gun here and then
proceeded to go through a prison escape. . . .’" Counsel stated that at no time during
his representation of the petitioner did the petitioner appear to be interested in his case.
He said the petitioner would assume foreign identities and talk nonsense. He said he
believed that the petitioner was interested in dying. He recalled the petitioner becoming
fixated on lead counsel’s fiancee at a hearing and telling the trial court that she was a
Contra. On cross-examination, counsel stated that it was his opinion that the petitioner
was not responsible for his actions and that the petitioner was not malingering, either at
the original trial or at the post-conviction evidentiary hearing.
David Raybin, a practicing attorney, testified as an expert for the defense
that he had worked for the Attorney General when Tennessee’s death penalty statute
had been declared unconstitutional and that he had drafted the current death penalty
19
statute. He stated that he had reviewed materials in this case but had never spoken
with the petitioner or with any of the attorneys associated with the original trial. He
testified that in the present case, there was no Sixth Amendment violation regarding
premeditation or deliberation or the guilt or innocence phase involving insanity, but
there was a Sixth Amendment violation in regard to mitigation during the sentencing
phase and to the issue of competency. In concluding that counsel was ineffective with
regard to mitigation, he noted that lead counsel had not interviewed Dr. Tragle and had
not obtained adoption records. He also noted that the Filley tape would have been
important to the defense. He concluded that because the jury had not been adequately
informed, a reasonable probability existed that it would have reached a different result if
the information had been provided.
Dr. Jonas R. Rappeport, a psychiatrist, testified that the post-conviction
court asked him to evaluate the petitioner and to render an opinion as to the petitioner’s
sanity at the time of the offense, a diagnosis of his mental illness at the time of the
offense, and a determination of his competence at the time of the post-conviction
hearing. Dr. Rappeport stated that he reviewed all materials sent to him and that he
secured the services of Dr. Diana McCoy to conduct a social background investigation
of the petitioner. Dr. Rappeport testified that he also consulted with others who had
reviewed the petitioner’s records, with a psychiatrist who specialized in genetics, with a
neurologist concerning the petitioner’s tremors, with Dr. Auble, and with Dr. Pate. He
then opined that the petitioner suffered from an antisocial personality disorder and a
borderline personality disorder. He testified, however, that he had not seen evidence of
psychosis in the petitioner. He concluded that the petitioner’s belief that he was an
orphan of the state did not qualify as a delusion. He stated that he found evidence of
malingering by the petitioner when he told officers that he thought the victim was his
father and that a special force had caused him to commit the offense. He also stated
that it was his opinion that the petitioner was competent in 1984 to stand trial.
20
On cross-examination, Dr. Rappeport admitted that the bill for his services
was over twenty thousand dollars, that Dr. McCoy billed over twenty-six thousand
dollars and that Dr. Shapiro billed six hundred dollars. Dr. Rappeport stated that he
had met with the petitioner for approximately five hours and then with Ms. Palmer and
post-conviction counsel. He said he told post-conviction counsel that this was a difficult
case. He said he then met with Dr. Auble and then with the petitioner again for
approximately three and one-half hours. He said he told post-conviction counsel that
he needed a social history of the petitioner and an examination by a neurologist. He
said that when he returned to Baltimore, he wrote to Dr. McCoy and informed her that
he had major concerns about the petitioner’s prenatal care and early childhood. He
said he then wrote the trial court and requested permission for the services of Dr.
McCoy and Dr. Shapiro.
Dr. Rappeport admitted that persons suffering from a borderline
personality disorder may experience transient psychotic episodes and can lose control
of their anger and rage. He also admitted that he had written Dr. McCoy to inform her
that he did not want her to look into the conditions of the prison at the time of the killing
or at the time of trial or to interview anyone who had examined the petitioner. Dr.
Rappeport admitted that although he had informed Dr. McCoy that he had spoken with
all of the individuals who evaluated the petitioner at the time of the original trial or
immediately after the murder, he had not actually interviewed anyone. He further
admitted that no person had evaluated the petitioner immediately after the murder. Dr.
Rappeport admitted that his report did not mention any witness’s observations of the
petitioner around the time of the killing or any of the stresses that might have existed in
the petitioner’s life at this time. He said his report did not mention that the petitioner
had been taken off his medication prior to the killing or that the prison to which the
petitioner had been transferred was considered a "death trap" by a prison expert who
had visited it within three weeks of the killing.
21
Dr. Rappeport acknowledged that in 1980, the petitioner was twice
diagnosed with paranoid schizophrenia at Multi-County Comprehensive Mental Health
Center and that Dr. Tragle, in 1984, had diagnosed the petitioner as having an
explosive personality disorder. He admitted that in his report he had not included the
fact that the petitioner had been taken off his medication shortly before his trial. He
admitted that he had not reviewed all the materials that were sent to him but stated that
his associates had reviewed them and that he had reviewed their notes. He admitted
that he had not contacted co-counsel in the original trial even though post-conviction
counsel had encouraged him to do so. He admitted that there had been several
instances in the petitioner’s background in which psychiatrists and psychologists
noticed psychotic symptoms and did not suspect malingering. Post-conviction counsel
then referred to numerous errors or misstatements in Dr. Rappeport’s report concerning
the petitioner’s family history of mental illness, the statement that the petitioner had
been transferred from Turney Center to DeBerry Correctional Institute for drug
treatment in 1981 when he had actually been transferred for psychiatric treatment, and
inaccuracies concerning names, dates, and the like.
Dr. Patricia Corey, a psychiatrist at Middle Tennessee Mental Health
Institute (MTMHI) testified as a rebuttal witness. She said that she had been the
admitting doctor for the petitioner in 1979 and had diagnosed him as suffering from
psychosis associated with drug intoxication. She stated that she had seen no signs of
malingering at that time. She said that after the petitioner was admitted to MTMHI, Dr.
Ragheb had treated him, and his diagnosis had been an antisocial personality disorder
with drug abuse and drug-induced psychosis. Dr. Corey stated that she testified at the
petitioner’s original trial and that she witnessed the petitioner acting in a very bizarre
manner at the trial. She stated that based upon her observation of the petitioner, as
well as her communications with counsel at the original trial, it was her opinion that at
the time of trial, the petitioner was not capable of assisting counsel in his defense.
22
In its "Findings of Fact and Conclusions of Law," the trial court concluded
that although numerous issues had been previously determined or waived, the
petitioner’s trial counsels’ performance was not within the range of competence
demanded of attorneys in criminal cases and that counsel had not adequately prepared
the case for trial at both the guilt phase and the sentencing phase. The court further
found that the petitioner was prejudiced by the inadequacy of trial counsels’
performance. The trial court set aside both the conviction and sentence of death and
remanded the case for a new trial. However, the court also found that the petitioner
was not competent to stand trial and ordered that he be held without bond pending
mental competence to stand trial.
In reviewing the trial court’s determinations, we are guided by certain well-
established principles. The burden was on the petitioner at the hearing to prove his
case by a preponderance of the evidence. On appeal, the trial court’s findings are
conclusive unless the record preponderates against its determinations. Turner v. State,
698 S.W.2d 90, 91 (Tenn. Crim. App. 1985). Further, the burden now rests on the
appealing party to illustrate why the record preponderates against the judgment. Black
v. State, 794 S.W.2d 752, 755 (Tenn. Crim. App. 1990).
Initially, we are confronted with the state’s contention that our review is de
novo relative to the ineffective assistance of counsel because resolution of the issue
involves a mixed question of law and fact. The state argues that mixed questions do
not limit a reviewing court in making its own conclusions from the evidence of record.
We acknowledge that Tennessee courts have previously noted that in
certain circumstances, a trial court’s findings are not binding on appeal when a mixed
question of fact and law is involved. See, e.g., Sullivan v. Green, 206 Tenn. 421, 457,
23
331 S.W.2d 686, 692-93 (1959) (holding that the material evidence rule in workmen’s
compensation cases does not apply to a mixed question of fact and law); Harries v.
State, 958 S.W.2d 799, 802 (Tenn. Crim. App. 1997) (relying upon federal cases to
conclude that the question of harmlessness of a constitutional error is reviewed de novo
as a mixed question); Coates v. Thompson, 713 S.W.2d 83, 84 (Tenn. Court App.
1986) (stating that a chancellor’s findings on mixed questions are not entitled to a
presumption of correctness). However, the trial court’s determinations in a post-
conviction case have not been similarly reviewed relative to the question of the
ineffective assistance of counsel.
In Henley v. State, 960 S.W.2d 572, 578-79 (Tenn. 1997), our supreme
court stated the following relative to review of a trial court’s post-conviction
determinations based upon an evidentiary hearing:
The findings of fact of the trial judge on a petition for post-
conviction relief are afforded the weight of a jury verdict and
are conclusive on appeal unless the evidence in the record
preponderates against those findings. [Tidwell v. State, 922
S.W.2d 497, 500 (Tenn. 1996)]; Cooper v. State, 849 S.W.2d
744, 746 (Tenn. 1993); Butler v. State, 789 S.W.2d 898, 899
(Tenn. 1990). In evaluating whether the evidence
preponderates against the trial court’s findings, we are guided
by longstanding rules of appellate procedure. Appellate courts
in this State do not reweigh or reevaluate the evidence. We
can not substitute our inferences for those drawn by the trial
judge. Moreover, questions concerning the credibility of the
witnesses, the weight and value to be given their testimony,
and the factual issues raised by the evidence are to be
resolved by the trial judge. Finally, the party seeking to
overturn the findings of the trial judge bears the burden on
appeal of demonstrating why the evidence contained in the
record preponderates against the findings of the trial judge.
Bolin v. State, 219 Tenn. 4, 11, 405 S.W.2d 768, 771 (1966);
Cooper, 847 S.W.2d at 527; Black v. State, 794 S.W.2d 752,
755 (Tenn. Crim. App. 1990). It is with these principles in mind
that we evaluate the findings of the trial court and the Court of
Criminal Appeal with respect to the petitioner’s claim of
ineffective assistance of counsel at sentencing.
The court stated that the issue before it was “whether the evidence in the record
preponderates against the trial court’s finding that the petitioner failed to establish that
he was denied his constitutional right to effective assistance of counsel.” 960 S.W.2d
24at 580. As the court indicates, giving the trial court’s decision the weight of a jury
verdict in a post-conviction case is not novel. See Clenny v. State, 576 S.W.2d 12, 14
(Tenn. Crim. App. 1978); Bratten v. State, 477 S.W.2d 754, 756 (Tenn. Crim. App.
1971). In fact, a jury verdict is inherently the jury’s answer to a mixed question of fact
and law.
The trial court’s decision also necessarily involves inferences reasonably
drawn from the facts and law, if correctly instructed, that are binding upon us even if we
see other inferences that could reasonably be drawn. See Bolin, 219 Tenn. at 11, 405
S.W.2d at 771. In any event, Henley controls. We conclude that our standard of
review in this case is whether the evidence contained in the record preponderates
against the findings of the trial court, giving due deference to those findings under the
well-settled rules noted in Henley.
I. STANDARD FOR DETERMINING PREJUDICE REGARDING THE INEFFECTIVE
ASSISTANCE OF COUNSEL
The state contends that the trial court applied the wrong standard in
concluding that the petitioner’s trial counsels’ deficiencies were prejudicial so as to
render their representation constitutionally ineffective. Under the Sixth Amendment to
the United States Constitution, when a claim of ineffective assistance of counsel is
made, the burden is upon the petitioner to show (1) that counsel’s performance was
deficient and (2) that the deficiency was prejudicial in terms of rendering a reasonable
probability that the result of the trial was unreliable or the proceedings fundamentally
unfair. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984);
Lockhart v. Fretwell, 506 U.S. 364, 369-72, 113 S. Ct. 838, 842-44 (1993). That is,
there must be “a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would be different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694, 104 S.
Ct. at 2068. The Strickland standard has been applied, as well, to the right to counsel
25
under Article I, Section 9 of the Tennessee Constitution. State v. Melson, 772 S.W.2d
417, 419 n. 2 (Tenn.), cert. denied, 493 U.S. 874 (1989).
The state notes that the trial court, in its written findings, stated that but for
counsels’ deficiencies, “the fact finder could have made a contrary finding.” (emphasis
added). It asserts that this is a different and lower standard than required under
Strickland. The petitioner responds that the trial court’s findings are not encapsulated
in the part upon which the state relies. He notes that the trial judge was a respected
jurist who had been called upon many times to apply the Strickland standard to claims
of ineffective assistance of counsel, and he asserts that we should recognize that the
standard was applied in this case.
The relevant portion of the trial court’s Findings of Fact and Conclusions
of Law is as follows:
In determining whether counsel provided effective
assistance at trial, the court must decide whether counsel’s
performance was within the range of competence demanded
of attorneys in criminal cases. Baxter v. Rose, 523 S.W.2d
930, 936 (Tenn. 1975). To succeed on a claim that his
counsel was ineffective at trial, a petitioner bears the burden
of showing that his counsel made errors so serious that he was
not functioning as counsel as guaranteed under the Sixth
Amendment and that the deficient representation prejudiced
the petitioner resulting in a failure to produce a reliable result.
Strickland v. Washington, 466 U.S. 668, 687, reh’g denied,
467 U.S. 1267 (1984); Cooper v. State, 849 S.W.2d 744, 747
(Tenn. 1993); Butler v. State, 789 S.W.2d 898, 899 (Tenn.
1990). To satisfy the second prong, the petitioner must show
a reasonable probability that, but for counsel’s unreasonable
error, the fact finder would have had reasonable doubt
regarding petitioner’s guilt. Strickland, 466 U.S. at 695. This
reasonable probability must be “sufficient to undermine
confidence in the outcome.” Harris v. State, 875 S.W.2d 662,
665 (Tenn. 1994).
The court finds that trial counselors’ performance was not
within the range of competence demanded of attorneys in
criminal cases. Based on the factual evidence adduced during
the post-conviction hearing and other submitted information,
the court finds that counsel failed to adequately prepare
Taylor’s case for trial at both the guilt phase [and sentencing].
Counselors did not fully seek exploration of the mental
26
competency at trial despite the evidence which showed a
background replete with mental problems. Counselors failed
to explore this issue for mitigation or to put forth evidence
concerning his background, medications, and social history.
The attorneys admit that they failed to put forth evidence, to
call witnesses and to fully flesh out the competence issue. In
fact the record has been filled with evidence that was left out
of the trial, and especially the sentencing hearing regarding
petitioner’s mental illnesses.
“It is well established that the issue of mental condition
takes on an especially significant role for the penalty phase of
capital cases, and there is a heightened need in such cases for
trial counsel to investigate and to present evidence of the
defendant’s mental health and history, particularly in the form
of expert testimony, even if that evidence does not render the
defendant insane or incompetent to stand trial.” See e.g.,
Cooper v. State, 847 S.W.2d 521, 529-32 (Tenn. Crim. App.
1992).
The court further finds trial counselors did not comport
with the requirements of Baxter and that as a result, petitioner
was prejudiced by the inadequacy of performance.
Furthermore, that but for these errors, the fact-finder could
have made a contrary finding.
These determinations came after detailed factual findings relating to the petitioner’s
mental history that was neither sought nor discovered by trial counsel, the seriousness
of the petitioner’s mental condition, and the failure of trial counsel to present
appropriate evidence of the petitioner’s mental condition at appropriate times in the trial.
We believe that the record reflects that the trial court scrutinized the
evidence and carefully contemplated its ultimate decisions. We are well aware of the
trial judge’s long and respected career as a trial and appellate judge with much
experience in post-conviction cases that were analyzed and decided under the
appropriate standard for the ineffective assistance of counsel. Given the record before
us and the full statement of the analysis in the “Findings of Fact and Conclusions of
Law,” we seriously doubt that the extent of the trial court’s findings and conclusions
regarding prejudice is confined only to the one sentence questioned by the state. In
any event, the trial court made findings from which one can only conclude that the
evidence regarding the petitioner’s severe mental health problems that was neither
27
sought, found, nor presented by his trial counsel would probably have altered the
convicting court’s determination that the petitioner was competent to stand trial, the
jury’s conclusion that he was guilty of first degree murder beyond reasonable doubt,
and the jury’s conclusion that the death penalty was appropriate. Thus, we view the
standard of prejudice to be met by the trial court’s findings and conclusions.
ll. INEFFECTIVE ASSISTANCE OF COUNSEL
The state contends that the petitioner received constitutionally adequate
counsel at his trial. It states that counsel did raise and present evidence on the issues
of the petitioner’s competency and mental condition at the trial. It questions the
credibility of the petitioner’s trial attorneys and touts the strength of its expert witnesses’
testimony regarding the petitioner’s mental condition. It also asserts that the evidence
presented at the convicting trial was such that the evidence developed at the post-
conviction hearing would not have made any difference relative to the competency
determination, guilt finding, and sentencing that occurred in the convicting trial.
First, we believe that the state’s position regarding the trial attorneys’
testimony and the expert testimony would have us reassess witness credibility and
reweigh the evidence. As we previously noted, our supreme court has stated that we
may neither reassess witness credibility nor reweigh their testimony or the evidence
generally. Henley, 960 S.W.2d at 578-89. Moreover, we cannot substitute our
inferences for those drawn by the trial court. Id. at 79. The trial court’s findings
implicitly accredit the attorneys’ testimony and doubt the validity of the state’s expert
testimony.
The state notes that the petitioner’s trial counsel raised the issue of his
competency before trial and on the day that the trial began and that they presented
considerable lay and expert evidence regarding the petitioner’s history of mental
28
problems. It asserts that both were done adequately for purposes of the constitutional
right to counsel. The state refers us to the supreme court’s opinion in the direct appeal
relative to both assertions.
On the issue of competency, the supreme court’s opinion provides:
Defendant first requested a mental evaluation hearing
in March 1982; and on April 12, 1982, the trial court ordered
his transfer to Middle Tennessee Mental Health Institute
(MTMHI). Because the indictment against the defendant was
dismissed, the defendant’s evaluation was suspended
apparently pursuant to regulations that charges must be
pending for such evaluations. See T.C.A. § 33-7-301.
Finally, in November 1983, after defendant had been
reindicted, the trial court again ordered defendant’s transfer to
MTMHI for a mental competency evaluation. Dr. Filley
interviewed defendant at MTMHI on December 7, 1983, and
again on January 25, 1984, for approximately an hour and a
half each time. He investigated defendant’s responses “about
his present circumstances, about the time of his charges in the
present case,” and observed the mental status of defendant
whom he found to be nervous but capable of responding
coherently and rationally. Dr. Filley discussed “trial
circumstances” with the defendant but left the investigation
regarding competence primarily up to Dr. Glen Watson, a
clinical psychologist, who conducted one test with the
defendant before the defendant refused to allow any further
tests. Dr. Filley reviewed Dr. Watson’s conclusion that the
defendant was competent to stand trial and talked with the
defendant “about his understanding of his situation at some
length.” He concluded that the defendant’s need for
immediate gratification might cause some difficulty in his
conferring with his attorneys, but gave an unqualified opinion
in his report to the court that defendant was competent to
stand trial, that he understood the charges against him and
their consequences and that he was able to advise his counsel
and participate in his defense.
At a hearing on February 22, 1984, the defendant
challenged the adequacy of the evaluation and requested
additional evaluation as to sanity at the time of the offense.
Counsel, however, did not specifically argue that defendant
was not competent, his major concern at that time being the
appointment of a psychiatric expert to assist in the defense.
The competency issue was raised again on the first day
of the trial. Counsel for defendant stated that he had serious
doubts about defendant’s competency based on his “total
experience with [defendant] and what’s happened the last
couple of days and what’s going on this morning.” Counsel
never gave any specific reason for his doubts but the problem
29
appears to be defendant’s general uncooperativeness and his
disagreement with counsel “about pretty much everything.”
The trial court gave Dr. Stein, defendant’s psychologist, time
to examine the defendant. When the court inquired about the
progress of the evaluation, counsel stated that defendant
refused to talk with Dr. Stein and offered nothing further. The
judge then addressed the defendant who asserted that he was
mentally sound, but refused to answer when asked if he
understood the charge against him. The defendant, however,
was able to discuss his wearing shackles and wanting to dress
in “civilian” clothes. Based on his observations of defendant
and the previous evaluation of defendant’s competency, the
trial court did not order a reevaluation of competency, but
permitted the trial to continue.
771 S.W.2d at 395-96.
Relative to the petitioner’s mental condition, the supreme court’s opinion
provides:
Taylor, who was twenty-one, had a history of juvenile
problems and mental and emotional difficulties that had led to
several mental evaluations before the killing of Officer Moore.
He had been in the drug and alcohol abuse program at the
DeBerry Correctional Institute, a state facility for prisoners with
psychiatric problems, before coming to the Turney Center. As
a result of his having swallowed broken glass, defendant was
incarcerated in West-100, the section of the main penitentiary
in Nashville for prisoners with mental problems, from late May
1981, until July 2, 1981, when he was returned to the Turney
Center. Defendant had been on several anti-psychotic drugs
over this period but there was no record of his receiving any
medication on the date of the killing.
Defendant’s fellow inmates described him as a loner,
moody, and strange. He was characterized as “hyper all the
time.” One inmate stated, “Richard is a nice guy when he’s .
. . got his medicine. When he ain’t got his medicine, you don’t
want to mess with him.” He had been involved in several
incidents of violence toward fellow inmates and the prison
staff.
Two attorneys described the defendant’s excited and
disoriented manner when they had met him three or more
months after the killing. He told them a “breathing voice” (he
described as his father’s) had told him to stab Moore. He
claimed to have a difficult time remembering what occurred on
August 19. Chip Burson, coordinator of psychological services
at the maximum security ward at the main prison while
defendant was there in June 1981, testified that defendant had
been reclusive, agitated, disoriented, and shaky. He was seen
talking to himself in his cell, and Burson had felt he should
have been transferred to DeBerry.
30
After reviewing the defendant’s history and institutional
record, defense expert Dr. Michael Stein, a psychologist who
had conducted a six-hour clinical interview of and administered
two tests to the defendant on March 30, 1984, diagnosed
defendant as suffering from borderline personality disorder,
paranoid personality disorder and brief reactive psychosis. He
opined that at the time of the killing defendant was suffering
from a psychotic episode as the result of a mental disease or
defect and could not therefore appreciate the wrongfulness of
his acts or conform his conduct to legal norms. Dr. Stein
explained that the letters were the defendant’s attempt to
establish an identity as a “macho convict criminal type” to
compensate for the weak sense of identity common to
borderline personalities. On cross examination, however, Dr.
Stein admitted that defendant also met most of the diagnostic
criteria for an anti-social personality.
A second defense expert, Jonathan Lipman, a doctor of
pharmacology with a specialty in neuropharmacology (the
study of the effect of drugs on the brain), testified about the
effect of anti-psychotic or neuroleptic drugs like those taken by
the defendant on the brain and about these drugs’ side effects,
such as shaking and grimacing, indicative of tardive
dyskinesia. Dr. Lipman also testified about supersensitivity
psychosis, a psychosis caused by the withdrawal of anti-
psychotic drugs from someone who had been taking them for
some time, and noted that defendant’s history indicated he
could have been suffering from such a psychosis at the time of
the killing.
The state presented the testimony of two experts, Dr.
John Filley, a psychiatrist at the Middle Tennessee Mental
Health Institute, [MTMHI] who had examined defendant on two
occasions, and Dr. Mohammad Rahib, a psychiatrist who had
examined defendant in late 1979 and early 1980. Both men
diagnosed defendant as having an antisocial personality
disorder, and Dr. Rahib stated there was little substantiation for
the theory of supersensitivity psychosis. Neither believed the
defendant was suffering from a mental disease or defect that
met the standards of Graham v. State, 547 S.W.2d 531 (Tenn.
1977).
In surrebuttal, defendant presented Dr. Jan Mayer, a
psychiatrist, who testified that the concept of supersensitivity
psychosis was accepted by some members of the medical-
scientific community and not by others. Dr. Patricia Corey, a
psychiatrist who had examined defendant at MTMHI in late
1979, recounted defendant’s bizarre behavior at that time and
her initial diagnosis of psychosis associated with drug
(amphetamines) intoxication.
....
The state presented no further proof at the sentencing
hearing. The defendant presented three witnesses--Dorothy
Greer, Assistant Commissioner for Adult Services in the
31
Department of Corrections, who was questioned about her
remark at a legislative hearing that in the defendant’s case “I
think we did fail;” Jeff Blum, a staff member of the Southern
Prison Ministry, who testified about the circumstances of
confinement that put the defendant under pressure on August
29, 1981; and Josie Pruett, the defendant’s aunt, who testified
about the defendant’s childhood. From Mrs. Pruett’s
testimony, the jury was informed that the defendant was an
adopted child, who had shown signs of hyperactivity from
infancy. His parents had been inconsistent in disciplining him
and had not supported him when he became involved in more
and more difficulties as he grew up. Defendant had no contact
with his parents after he went to prison.
711 S.W.2d at 390-92.
In assessing the actions of the petitioner’s trial attorneys regarding
competency, the state asserts that it was the attorneys’ duty to raise the issue but that it
was the trial court’s obligation to determine whether the petitioner was competent, the
implication being that the attorneys were not responsible for the competency determination.
We view the attorneys’ obligations to encompass more than merely raising the issue of
competency before the trial court. Counsel is “required to exert every reasonable effort on
behalf of a client both in the investigation and the trial of a case.” State v. Melson, 772
S.W.2d at 421.
In this respect, the matters of concern which were addressed in the post-
conviction hearing dealt with the fact that there was an abundance of evidence available
to the petitioner’s attorney, but not discovered or used. As we have previously quoted, the
trial court determined the following:
Based on the factual evidence adduced at the post-conviction
hearing and other submitted information, the court finds that
counsel failed to adequately prepare Taylor’s case for trial at
both the guilt phase [and sentencing]. Counselors did not fully
seek exploration of the mental competency at trial despite the
evidence which showed a background replete with mental
problems. Counselors failed to explore this issue for mitigation
or to put forth evidence concerning his background,
medications, and social history. The attorneys admit that they
failed to put forth evidence, to call witnesses and to fully flesh
out the competence issue. In fact the record has been filled
32
with evidence that was left out of the trial, and especially the
sentencing hearing regarding petitioner’s mental illnesses.
The record supports these determinations.
For example, the pretrial evaluations performed by Doctors Filley and
Watson were shown to consist of only one psychological test and two interview
sessions totaling only two hours, substantially less involvement than standard
procedures required at Middle Tennessee Mental Health Institute. Also, the fact that
the petitioner was on antipsychotic medication at the times of the evaluations justified
an extended evaluation that was never undertaken. These circumstances would greatly
reduce the validity of the institute’s “opinion” that the petitioner was competent to stand
trial and was sane.
Also, prison records reflected that Dr. William Tragle, a psychiatrist under
contract with the state, saw and treated the petitioner from September 1981 through
January 1985. He was never interviewed by the petitioner’s attorneys although he had
been prescribing antipsychotic medication to the petitioner, had recommended that the
petitioner receive an extensive mental evaluation, and had taken notes about his
observations. Dr. Tragle testified at the post-conviction hearing that Dr. Filley’s
evaluation was inadequate and that at least a thirty-day inpatient evaluation was
required. He said that the petitioner’s record, along with his observations, indicated that
the petitioner suffered from multiple “severe to extreme” personality disorders that could
lead to psychosis, delusional thinking, and loss of control.
Dr. Tragle was in a position to verify that the petitioner’s behavior while on
medication was substantially different than when he was not on medication. This is
significant in the context of both the petitioner’s competency at the time of trial and his
defense theory. The defense contended that the killing occurred when the petitioner
was delusional following the withdrawal of his medication weeks before. Relative to
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competence, the petitioner’s medication had been withdrawn shortly before the trial.
Considering the fact that the petitioner’s competency in a nonmedicated state was
never evaluated, Dr. Tragle’s involvement by the defense probably would have led to a
different result regarding the issue of the petitioner’s competency.
However, it could only have made a difference if the petitioner’s attorneys
had requested a competency hearing, presented the expert evidence, and placed on
the record the details of their continued difficulty in talking with the petitioner and getting
his assistance for the trial. This the attorneys failed to do. In sum, if the attorneys had
taken the opportunity to interview Dr. Tragle, the only psychiatrist who was regularly
observing and treating the petitioner between the time of the offense and the time of the
trial, a substantially different picture of the petitioner’s competence would have been
available to present to the judge at the trial. However, the attorneys utterly failed to
present anything that would aid the judge in obtaining a true picture of the petitioner’s
competence. Contrary to the state’s assertion, the fact that the petitioner’s competence
was considered by the convicting court at his attorneys’ request means nothing if the
attorneys did not ensure that the available evidence bearing on the issue was
presented. In this respect, substantial evidence exists in the record before us that
would support a conclusion that the petitioner was incompetent at the time of his trial.
The same is true regarding the issue of the petitioner’s guilt and his
sentencing. In addition to the evidence not used relative to the issue of competency,
the record reflects that the petitioner’s attorneys failed to investigate adequately the
petitioner’s background and medical history, which reflected a family history of mental
problems, a difficult upbringing, and a long history of diagnosed mental problems.
Along with what was ultimately developed and presented at the post-conviction hearing,
evidence that could have been available at the trial, a substantially different mental
defense would have been available. Also, a complete picture of the petitioner’s family
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history, background, and mental history, which was neither discovered nor presented by
the attorneys, would have lent personal substance to mitigating the punishment to be
imposed. We conclude that the evidence of record does not preponderate against the
trial court’s findings and determinations and that the record supports the conclusion that
the petitioner received the ineffective assistance of counsel.
III. PETITIONER’S ISSUES
The petitioner raises issues he desires resolved if we reverse the trial
court. Although we affirm the trial court, we have reviewed his claims to avoid pending,
unresolved issues.
A. Relative to the petitioner’s claim that his conviction and sentence
should be set aside because he was not competent to stand trial, we agree with the
state that this issue was addressed on the direct appeal of the petitioner’s conviction.
Thus, as an independent ground of relief, the petitioner’s claim has been previously
determined and cannot constitute a cognizable ground for post-conviction relief. See
Tenn. Code Ann. § 40-30-111, -112(a)(1990 repealed).
B. As for the claim that the state’s withdrawal of his medication before
and during his trial constituted a violation of the petitioner’s due process rights, we
question whether the petitioner properly raised the issue in the trial court as an
additional, independent ground for relief. As the state contends, the petitioner did not
present this claim in his petition nor did he seek to amend his petition to include it. As
an “issue,” the petitioner first raised it in his post-trial brief. However, the trial court’s
findings and conclusions do not address the claim.
The record reflects that the significance of and the circumstances
surrounding the withdrawal of the medication were primarily considered in the context of
35
evidence relevant to the issue of the ineffective assistance of counsel. As a general
rule, post-conviction relief is not available for grounds not raised in the petition. See
State v. Miller, 508 S.W.2d 804, 806 (Tenn. Crim. App. 1973); Long v. State, 510
S.W.2d 83, 85 (Tenn. Crim. App. 1974). Although we do not necessarily believe that a
new ground for relief must be ignored on appeal when it has been fully litigated at the
evidentiary hearing and treated by the parties and the trial court as an issue for
determination, such is not the present case. Under the existing circumstances, we do
not believe that the petitioner is entitled to assert this ground for relief as an appealable
issue.
C. Relative to the claim that the petitioner’s conviction and sentence
must be set aside because the petitioner suffered torture and abuse inflicted by prison
guards, we are unable to consider this ground on the record before us. The petitioner
did not raise this claim until well after his petition was heard. Although he sought to
reopen the proof, the trial court pretermitted the issue. Under these circumstances, we
have nothing before us upon which we could base a decision on the merits. Although
the trial court should have determined whether the petitioner’s claim merited reopening
the proof and, if so, then determined the merits of the issue, the present appeal
presents nothing for our review.
D. Finally, as to the petitioner’s contention that he is entitled to relief
“on the basis of other claims, viewed separately and cumulatively” which he has
asserted “at the different stages in this case,” we conclude that no such ground of relief
has actually been preserved for appellate review in this case. Petitioner presents no
authority and makes no reference to the record, only referring the court to a list of
seventy-four claims the petitioner presents in Appendix A to his brief. Failure to make
appropriate references to the record in the argument portion of the brief and to cite
relevant authority as required by Rule 27(g) and (h), T.R.A.P., will constitute waiver.
36
State v. Schaller, 975 S.W.2d 313, 318 (Tenn. Crim. App. 1997). It is not our function
to search the entire record for support, or lack thereof, for the petitioner’s myriad bare
claims. Therefore, we conclude that none of the claims to which the petitioner refers
are preserved for appellate review in this appeal.
In consideration of the foregoing and the record as a whole, we conclude
that the evidence does not preponderate against the trial court’s determinations.
Accordingly, the judgment of the trial court is affirmed.
______________________________
Joseph M. Tipton, Judge
CONCUR:
(not participating)
Paul G. Summers, Judge
Joe G. Riley, Judge
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