Kennath Henderson v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
November 2004 Session
KENNATH HENDERSON v. STATE OF TENNESSEE
Direct Appeal from the Circuit Court for Fayette County
No. 4465 Jon Kerry Blackwood, Judge
No. W2003-01545-CCA-R3-PD - Filed June 28, 2005
The petitioner, Kennath Henderson, appeals as of right from the May 21, 2003 judgment of
the Fayette County Circuit Court denying his petition for post-conviction relief. The petitioner
entered guilty pleas to first degree premeditated murder, two (2) counts of especially aggravated
kidnapping, aggravated robbery, attempted especially aggravated kidnapping, aggravated assault, and
felonious escape. The petitioner waived his right to jury sentencing. After a capital sentencing
hearing, the trial court imposed the death sentence for the murder count and an effective sentence
of twenty-three (23) years in prison for the noncapital offenses. The petitioner’s convictions and
sentences, including the sentence of death, were affirmed on direct appeal by the Tennessee Supreme
Court. See State v. Henderson, 24 S.W.3d 307 (Tenn. 2000), cert. denied, 531 U.S. 934 (2000).
A pro se petition for post-conviction relief was filed on February 12, 2001, which was followed by
an amended petition on November 30, 2001. An evidentiary hearing was held on April 28-29, 2003,
and, on May 21, 2003, the trial court denied relief and dismissed the petition. The petitioner appeals,
presenting for our review the following claims: (1) the trial judge erred in failing to recuse himself
at both the trial and the post-conviction hearings; (2) the post-conviction court’s findings were
clearly erroneous; (3) trial counsel was ineffective; (4) appellate counsel was ineffective; (5) the
post-conviction court erred in prohibiting a witness from testifying; and (6) the imposition of the
death penalty is unconstitutional. After a careful and laborious review of the record, this Court
concludes that there is no error requiring reversal. Accordingly, the order of the post-conviction
court denying post-conviction relief is affirmed.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
JERRY L. SMITH , J., delivered the opinion of the court, in which ROBERT W. WEDEMEYER , and, J.C.
MCLIN , JJ., joined.
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Donald E. Dawson, Nashville, Tennessee, and Catherine Y. Brockenborough, Nashville, Tennessee,
for the appellant, Kennath Henderson.
Paul G. Summers, Attorney General and Reporter; Alice B. Lustre, Assistant Attorney General;
Elizabeth T. Rice, District Attorney General and Walt Freeland, Assistant District Attorney General,
for the appellee, State of Tennessee.
OPINION
Background
The proof, as set forth in our supreme court’s decision, State v. Henderson, 24 S.W.3d at 210,
established the following:
At the time of the events giving rise to this case, the appellant, Kennath
Henderson, was incarcerated at the Fayette County Jail serving consecutive sentences
for felony escape and aggravated burglary. On April 26, 1997, as the appellant was
planning an escape from jail, he had a .380 semi-automatic pistol smuggled into the
jail through his girlfriend. A couple of days later, the appellant requested dental work
on a tooth that needed to be pulled, and an appointment was made for May 2 with Dr.
John Cima, a dentist practicing in Somerville. Dr. Cima had practiced dentistry in
Somerville for more than thirty years, and he had often seen inmate patients. In fact,
this was not the appellant’s first visit to see Dr. Cima.
On May 2, 1997, Deputy Tommy Bishop, who was serving in his official
capacity as a transport officer for the Fayette County Sheriff’s office, took the
appellant and another inmate, Ms. Deloice Guy, to Dr. Cima’s Office in a marked
police car. Upon their arrival at the dentist’s office, Dr. Cima placed the appellant
and Ms. Guy in separate treatment rooms, and each patient was numbed for tooth
extraction. Deputy Bishop remained in the reception area and talked with the
receptionist during this time.
When Dr. Cima and his assistant returned to the appellant’s treating room to
begin the tooth extraction, the appellant pulled out his .380 pistol. Dr. Cima
immediately reached for the pistol, and he and the appellant struggled over the
weapon. During this brief struggle, Dr. Cima called out for Deputy Bishop, and the
deputy hurried back to the treatment room. Just as the deputy arrived at the door, the
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appellant regained control of the pistol and fired a shot at Deputy Bishop, which
grazed him on the neck. Although not fatal, this shot caused the deputy to fall
backwards, hit his head against the doorframe or the wall, and then fall to the floor
face down, presumably unconscious.
The appellant then left the treating room and came back with the receptionist
in his custody. The appellant reached down and took Deputy Bishop’s pistol, and he
took money, credit cards, and truck keys from Dr. Cima. The appellant then ordered
Dr. Cima and the receptionist to accompany him out of the building, but just before
he turned to leave the building, the appellant went back to the treatment room, leaned
over Deputy Bishop, and shot him through the back of the head at point-blank range.
The deputy had not moved since first being shot in the neck moments earlier and was
still lying face-down on the floor by the door to the treatment room when the
appellant fatally shot him.
Once outside of the office, the appellant was startled by another patient, and
Dr. Cima and his receptionist were able to escape back into the office. Once inside,
Dr. Cima locked the door and called the police. The appellant, in the meantime, stole
Dr. Cima’s truck and drove away at a slow speed so as not to attract any attention to
himself. When police officers began to follow him, the appellant sped away, and
eventually drove off the road and into a ditch. The officers took the appellant into
custody, and upon searching the truck, they found the murder weapon, Deputy
Bishop’s gun, and personal items taken from Dr. Cima’s office.
On May 13, 1997, the appellant was indicted by a Fayette County Grand Jury
in a ten-count indictment, which alleged one count of premeditated murder, three
counts of felony murder, two counts of especially aggravated kidnaping, and one
count of attempted especially aggravated kidnaping, aggravated robbery, aggravated
assault, and felonious escape. After three continuances, the appellant pled guilty on
the day of trial to all of the charges except for the three counts of felony murder.
On July 13, 1998, the circuit court held the sentencing hearing, and the
appellant waived his right to have a jury empaneled for purposes of determining his
sentence. Several witnesses testified for the State at the sentencing hearing,
including Deloice Guy, the inmate taken with the appellant to the dentist by Deputy
Bishop; Dr. John Cima; Donna Feathers, Dr. Cima’s dental assistant; and Peggy
Riles, Dr. Cima’s receptionist. In addition, Dr. O.C. Smith, a forensic pathologist,
testified as to his investigation of the crime scene and of his autopsy of Deputy
Bishop. Dr. Smith stated that based on his examination of Deputy Bishop’s wounds,
along with witness testimony, it was likely that the first shot fired by the appellant hit
the deputy in the neck, and caused the deputy to hit his head against the doorframe
of the examination room. Dr. Smith opined that this blow to the deputy’s head could
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have rendered him unconscious. Moreover, Dr. Smith testified that the second shot
fired by the appellant entered at the back of the deputy’s head and exited near the left
eye. This second shot caused “significant and severe brain damage,” and the blood
from this wound seeped from the skull fractures into the deputy’s sinuses, and
ultimately, was breathed into his windpipe. Finally, Dr. Smith testified that the
bullets used by the appellant could have “easily” penetrated the thin walls of the
dentist’s office.
In mitigation, the appellant testified on his own behalf. According to his
testimony, he was 24 years old at the time of the offense. He was a high-school
graduate and has four younger brothers. While in elementary school, the appellant
received numerous academic awards and certificates, and he was heavily involved
in extracurricular activities and sports while in high school. Although the appellant
expressed sorrow and remorse over his actions, he admitted that “[t]here’s no reason”
for the murder of Tommy Bishop. While he acknowledged that he extensively
planned his escape from prison, including procuring the .380 pistol, his only excuse
for the shooting was that he “wasn’t thinking clearly that day.”
The appellant also testified that he had some “problems” in high school, and
although he was never cited to the juvenile court, he stated that he felt like his
problems were never addressed. He also testified that while in jail in 1996, he
requested counseling because he “felt like [he] needed help psychologically.” His
mother testified, however, that she did not believe that the appellant needed any help
or intervention of any kind during his high school years. In addition, the appellant’s
mother testified that though she remembered that the appellant requested help while
in jail in 1996, she never pursued the matter because he “seemed to be doing fine
when [she] talked to him.”
Finally, Dr. Lynne Zager, a forensic psychologist, testified as to her findings
and conclusions based on two interviews with the appellant, a personality test
administered to the appellant, and other information supplied by the defense. From
this pool of information, Dr. Zager concluded that the appellant was suffering from
dissociative disorder at the time of the murder, and that the appellant possessed an
unspecified personality disorder which exhibited some narcissistic and anti-social
traits. She also testified that based upon her testing, she believed that the appellant’s
dissociative state began after the first shot was fired and lasted at least 24 hours
following. While in this state, Dr. Zager stated that it was not uncommon for
individuals to feel as though they are in a dream-like state and are not “an integral
part of what the person is [really] doing.” Although she refused to give an opinion
as to whether the appellant was aware of his actions at the time of the murder, the
appellant, in her opinion, “was [acting] under duress, and that his judgment was not
adequate.” In addition, while Dr. Zager considered him to be “impaired at the time,”
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she testified that the appellant’s condition at the time of the murder would not
support a legal finding of insanity.
The State argued that four aggravating factors applied to warrant imposing the death
sentence: (1) that the defendant created a great risk of death to two or more persons
during the act of murder, Tenn. Code Ann. § 39-13-204(i)(3); (2) that the murder was
committed for the purpose of avoiding an arrest, Tenn. Code Ann. § 39-13-204(i)(6);
(3) that the murder was committed during the defendant’s escape from lawful
custody, Tenn. Code Ann. § 39-13- 204(i)(7); and (4) that the murder was committed
against a law enforcement officer, who was engaged in the performance of official
duties, Tenn. Code Ann. § 39-13-204(I)(9).
The appellant argued that four statutory mitigating factors should be
considered by the court: (1) the lack of significant criminal history by the defendant;
Tenn. Code Ann. § 39-13-204(j)(1); that the murder was committed while the
defendant was under the influence of extreme mental or emotional disturbance, Tenn.
Code Ann. § 39-13-204(j)(2); (3) that the defendant acted under extreme duress;
Tenn. Code Ann. § 39-13-204(j)(6); and (4) that the murder was committed while the
defendant’s mental capacity, while not deficient to the point of raising a defense, was
substantially impaired, Tenn. Code Ann. § 39-13-204(j)(8). In addition, the defense
argued for application of an additional non-statutory mitigating circumstance, i.e.,
that the failure to recognize and treat the mental health disorders of the defendant
allowed such to remain untreated by any form of intervention.
At the conclusion of the hearing, the circuit court found that all four of the
aggravating circumstances were proven beyond a reasonable doubt by the State.
Although the circuit court did not make a specific finding as to which mitigating
circumstances were supported by the evidence, the court found that the aggravating
circumstances had been proven beyond a reasonable doubt to “outweigh the
mitigating circumstances.” The circuit court then imposed the sentence of death for
the premeditated murder of Deputy Tommy Bishop.
All of the prison terms, except the term imposed for felonious escape, were
ordered to run concurrently with each other, but to run consecutively with the
sentences then being currently served by the appellant. The prison term for felonious
escape was ordered to run consecutively to all of the non-capital offenses.
Accordingly, the effective sentence ordered by the court in this case is death and a
prison term totaling 23 years, which is to run consecutively to the current prison
sentence.
Henderson, 24 S.W.3d at 310-12 (internal footnotes omitted).
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Evidence Presented at Post-Conviction Hearing
Michael Robbins was appointed by the trial court to represent Petitioner Henderson on direct
appeal. He stated that for the past twelve (12) or thirteen (13) years “forty percent or more” of his
practice has been state and federal appeals. He added that he annually attended the national habeas
seminar “put on” by the federal defenders.
Mr. Robbins testified that only one issue was raised on direct appeal, i.e., the proportionality
of the imposition of the death penalty in this case. The focus of his appellate argument relied upon
the premise that the death penalty was reserved for the “worst of the worst,” distinguishing the case
herein from other such cases. He added that he spoke to both Mr. Mosier and Mr. Johnston, the
petitioner’s trial counsel, during the early stages of the appeal. Regarding his failure to raise
appellate challenges to the denial of various pretrial motions, Mr. Robbins explained that “[t]here
was no significant motion practice in that sense. Most of the motions were generalized objections
to the death sentence or selection of the jury panel . . . and there was argument on the motion. . . .”
No error as to the rulings on these motions was argued on direct appeal because Mr. Robbins “did
not consider the motion[s] to be well grounded.” He explained that the law in Tennessee and in the
United States was well-settled as to these issues.
On cross-examination, Mr. Robbins stated that he only raised the proportionality issue on
direct appeal because “[i]t was [his] professional judgment that that was the only viable issue.” He
further acknowledged that he did “file a motion seeking a remand for the purpose of conducting an
evidentiary hearing in the Court of Criminal Appeals” based upon what he perceived to be a “motion
to withdraw [Henderson’s] plea of guilty.” Mr. Robbins asserted that his appellate experience was
“[v]irtually entirely criminal.” He testified that, during the course of his representation, he did
consult with David Keefe and Jefferson Dorsey, whom he believed to be associated with the
predecessor office to the Office of the Post-Conviction Defender. On re-direct, Mr. Robbins
admitted that these individuals recommended raising issues relating to the constitutionality of the
death penalty statutes. Mr. Robbins later opined that this case “was peculiar because never . . . [had
he] ever even heard of an attorney waiving a jury for sentencing in a capital case.” He added that
a decision to waive a jury and submit a capital sentencing case to a single person was “woefully
uninformed.”
Kathryn Pryce, an investigator and legal clerk with the Office of the Post-Conviction
Defender, was assigned to work on Petitioner Henderson’s case. Her duties as an investigator
include locating and requesting a client’s records. In the present case, Ms. Pryce requested the
Petitioner’s (1) institutional records, including school, medical, psychiatric, court records, attorneys’
files, prosecution files, and law enforcement files, (2) medical and psychiatric records of family
members, and (3) school records of family members. In this regard, Ms. Pryce acknowledged that
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she received records for Herbert Henderson, the petitioner’s uncle; Cora Lee Johnson, the
petitioner’s aunt; Glenn Johnson, the petitioner’s second cousin; and Veaster Hill, the petitioner’s
paternal grandmother. These records reference other family members that had been treated at
Western Mental Health Institute, J.B. Summers Counseling Center, and Methodist Hospital. Ms.
Pryce also possessed law enforcement records relating to Shelby County rapes involving the
petitioner and relating to prior offenses occurring in Fayette County, specifically contributing to the
delinquency of a minor. Ms. Pryce stated that she began collecting the various records in April 2001.
Andrew Johnston, second chair counsel at the petitioner’s trial, testified that he was
appointed to represent the petitioner in June 1997. Lead counsel, Michael Mosier, had already been
appointed at this time. Mr. Johnston stated that he was to serve as “local counsel.” In other words,
he was to file documents prepared by Mr. Mosier and he would meet with the petitioner’s family if
necessary. In this regard, Mr. Johnston testified that he met with the petitioner’s family about three
(3) or four (4) times. He added that he met with the petitioner on numerous occasions prior to trial.
At the time of his appointment, Mr. Johnston had been licensed as an attorney for two (2)
years and eight (8) months. Mr. Johnston stated that this was his first capital case. Prior to this
appointment, the most serious case handled by Mr. Johnston was either an aggravated robbery or
aggravated burglary. His practice was forty percent (40%) criminal, mostly handled in General
Sessions Court. Post-conviction counsel informed Mr. Johnston that the standards for capital
representation went into effect July 1, 1997, after Mr. Johnston’s appointment in this matter. These
standards express requirements for capital counsel in regards to the number of trials in which they
have to participate, among other things. Mr. Johnston conceded that, at the time of his appointment,
his experience did not satisfy the requirements of Tennessee Supreme Court Rule 13. Mr. Johnston
admitted that, prior to his appointment, he had never met Mr. Mosier.
Regarding his participation in the case, Mr. Johnston recalled being particularly involved in
the motion for change of venue. Mr. Johnston collected various newspaper articles and attempted
to procure affidavits from other attorneys verifying that it would be difficult to have a fair trial in
Fayette County. He stated that he also assisted in numerous ex parte motions at the beginning of the
representation in order to get a defense team together, i.e., investigator, clinical psychologist, and
jury/mitigation expert. He stated that he provided no input as to what experts would be sought.
Ultimately, the defense team consisted of Tammy Askew, the investigator; Dr. Lynn Zager, the
clinical psychologist; and Julie Fenyes, the mitigation/jury consultant.
Mr. Johnston testified that he had few interactions with Ms. Askew. He did not provide her
with instructions as to what to do or who to interview. Mr. Johnston did not recall meeting Dr. Zager
“until the very end.” However, he did recall a time in July when he had to take an “MMPI test up
[to Tipton County], so I would have been working . . . with her at that time . . . .” Regarding Ms.
Fenyes, he testified that Ms. Fenyes prepared the juror questionnaire. Mr. Johnston could not recall
any conclusions regarding the jury based on Ms. Fenyes’ work. Mr. Johnston stated that he was not
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in a position where he was trying to provide the experts with direction. Rather, he was “trying to
do what I was asked to do by Mr. Mosier . . . .”
In May 1998, when a jury trial was still contemplated, Mr. Mosier asked Mr. Johnston
whether he would be willing to present the closing argument. Mr. Johnston, however, informed Mr.
Mosier that he would be more comfortable if Mr. Mosier presented closing argument. Mr. Johnston
stated that he was involved regarding the decision of whether to enter a plea and whether jury
sentencing should be waived.
Regarding the waiver of a jury trial and entrance of a guilty plea, Mr. Johnston stated that
they:
[W]ere in a position at the point where we were fairly certain as to in terms of the
probability that we’d be in a sentencing hearing, and I know that at that point we
wanted to have as much mitigation as we could. And entering a plea certainly would
have been a mitigating factor to be considered by the Court. So I think it dealt with
an analysis at that point of aggravating factors, mitigating factors, and the likelihood
that we would ultimately be in a sentencing hearing, given the proof that had been
developed at that point.
In terms of waiving a jury for sentencing, I think it was a situation where we
wanted . . . at least we thought it would be in Mr. Henderson’s best interest to have
the Court do the sentencing.
It was the opinion of the defense team that Judge Blackwood was personally opposed to the death
penalty and that was a point to consider regarding a plea. He added:
From what I recall, we met with [the petitioner] and we talked about where we were.
And it was decided that we would want the judge to do the sentencing in the event
we ended up in a sentencing hearing. And I think there would have been a
conversation at that point that we felt that the facts were not in our favor and that it
was going to be very difficult to avoid a sentencing hearing.
....
And there was a decision made at that point that if the State agreed to allow the Court
to do the sentencing, that that would be the way to proceed. And one thing led to
another thing, and we were in court that afternoon and we entered the plea.
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Mr. Johnston acknowledged the fact that they were no more prepared for sentencing at the
time the plea was entered than they were earlier that morning when they had asked for and received
a continuance from the court. The sentencing phase was scheduled for the following week. A
meeting was held in Jackson with the entire defense team. At the meeting, all members presented
the information they had gathered. The information was assimilated and organized in order to
present a defense.
With regard to the petitioner, Mr. Johnston recalled that, during their initial meeting, the
petitioner was “calm, . . . respectful, . . . pleasant . . . .” His opinion after this meeting was that the
petitioner was going to be pleasant to work with during the case. Mr. Johnston stated that he was
not satisfied with the results in this case. He expressed concern that the petitioner’s family was not
present at the time his plea was entered. In hindsight, he “wish[ed]” that a jury would have been
empaneled and that they would have fought the case on the merits.” Notwithstanding his belief, he
could not state what else could have been done by the defense team related to sentencing.
On cross-examination, Mr. Johnston stated that the petitioner’s mother never indicated that
the petitioner had any sort of mental health issues or was mentally deficient. Mr. Johnston, through
his interaction with the petitioner, was not able to discern any obvious indicators that the petitioner
was unable to assist in his representation or suffered from any mental illness. Any information
related to possible mental illnesses or deficiencies were solely limited to the opinions of Dr. Zager.
Mr. Johnston conceded that the evidence as to the petitioner’s guilt was overwhelming. He added
that the defense team presented all evidence that they considered to be of mitigation value at the
sentencing hearing.
On re-direct, Mr. Johnston stated that information that four (4) second cousins of the
petitioner had been diagnosed with mental illnesses would have been very relevant and this
information would have been passed to the clinical psychologist. He further conceded that
information that the mother of these four (4) second cousins had a mental illness would be not only
relevant to defense counsel but also to the court as well.
Mr. Johnston conceded that he had no prior knowledge or training as to what issues might
raise flags to lead counsel when reviewing information on a capital defendant. He admitted that the
fact that the petitioner stood accused of raping the mother of the woman he considered his girlfriend
would certainly “raise a flag.”
Lead counsel in this matter, Michael Mosier, testified that he had been a licensed attorney
for twenty-seven (27) years. He explained that he was contacted by Judge Blackwood regarding
appointment in this matter as there was no attorney in the district that could represent the petitioner
due to potential conflicts. Mr. Mosier testified that the defense of a capital case is a “pretty awesome
responsibility” and that he “considered Mr. Johnston’s role to be more than just local liason.” He
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stated that he relied upon Mr. Johnston for the initial information about the case. Mr. Johnston was
advised as to Mr. Mosier’s normal procedure in a capital case, motions that would be filed, and
expert assistance that would be sought. Mr. Mosier prepared all of the motions. Mr. Mosier selected
the experts and investigators. He stated that he believed that expert services were granted in August
1997. He stated that Ms. Askew’s function as the investigator was to make contact with persons
having factual knowledge of the offense and to contact members of the petitioner’s family. Ms.
Fenyes’ function as the jury/mitigation consultant was to conduct a social background investigation
of the petitioner in order to prepare a mitigation investigation for possible use at a sentencing
hearing. Ms. Fenyes also compiled jury questionnaires, reviewed the responses, and made
recommendations as to which prospective venire members would be good jurors. Mr. Mosier stated
that he visited the petitioner at Riverbend Maximum Security Institution approximately three (3) to
four (4) times. He added that he visited the petitioner prior to his transfer to Riverbend.
Mr. Mosier recalled the petitioner informing the trial court by letter, dated June 24, 1998, that
he was dissatisfied with Mr. Mosier’s and Mr. Johnston’s representation. Mr. Mosier visited the
petitioner at Riverbend on June 30, 1998, in part, to discuss this letter with the petitioner.
On July 6, 1998, Ms. Fenyes informed Mr. Mosier that the mitigation evidence that she had
gathered was not helpful and that she would need more time. Mr. Mosier “felt like that all that there
was left for him was to try to demonstrate to the judge his acceptance of responsibility, and by
putting him on the stand, let him show remorse for what he did.” This information formed part of
the basis for counsel’s motion for continuance submitted on July 6. After the continuance was
granted on July 6, Mr. Mosier, at the petitioner’s request, approached the prosecution in an attempt
to seek a life sentence in exchange for a guilty plea. Mr. Mosier stated, however, that the possibility
of entering a guilty plea was discussed in December 1997. Indeed, the petitioner wrote counsel a
letter asking about the benefits of entering a guilty plea. Specifically, he inquired as to whether his
showing of remorse would persuade the judge to spare him the death penalty and get him a life
sentence. Counsel received three (3) or four (4) letters of this nature. The first letter dated
December 21, 1997, made inquiry as to pleading guilty and hoping for mercy. The next letter dated
January 11, 1998, evidenced an apology to Deputy Bishop and his family, but noting that the death
penalty should not be imposed. On January 14, 1998, a third letter was written by the petitioner
asking what would happen to the other charges if he pled guilty to first degree murder. The
petitioner added that the victim’s family would be assured that he would never be eligible for parole.
The letter further asked that the trial be moved to another county at a later date from the scheduled
March 9, 1998, trial. The petitioner penned a fourth letter on January 23, 1998. In this letter, he
again indicated a desire for a change of venue and recusal of the trial judge. Mr. Mosier stated that
he discussed the trial judge’s recusal with the petitioner and provided the petitioner with his strong
recommendation that he not ask the trial judge to recuse himself. First, there was nothing in the
record to warrant the request. Second, Judge Blackwood had previously stated on the record that he
was morally and philosophically opposed to the death penalty. In other words, Mr. Mosier
concluded that if he were able to hand-select a judge in a death penalty case, he would have selected
Judge Blackwood. For these reasons, he did not seek recusal of Judge Blackwood. Mr. Mosier
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stated that he did seek a change of venue in this matter. He stated that contact was made with
Deputy Bishop’s family. Investigator Pugh and Sheriff Kelly wrote a letter recommending that the
death penalty not be imposed. The District Attorney’s Office was informed on numerous occasions
about the petitioner’s willingness to accept a life sentence. In other words, Mr. Mosier “acted on
what was valid, and what had no basis in law or fact, I took no action on.”
Mr. Mosier testified that Dr. Zager was provided with everything in Mr. Mosier’s file. Mr.
Mosier stated that there is some indication that as of July 6, 1998, Dr. Zager had not yet evaluated
the petitioner. Mr. Mosier stated, however, that at the time the plea was entered, he was mainly
concerned about the insanity issue. There was no indication at this time that insanity would be a
viable defense. The petitioner was not lacking in mental capacity, he was cooperative, well-
mannered, polite, and his attorney worked with him easily.
Mr. Mosier stated that it was the petitioner’s decision to waive a jury for sentencing. Mr.
Mosier merely advised the petitioner of the advantages and disadvantages of waiving a jury in a
capital sentencing trial. He stated that this case involved the “senseless killing of a law-enforcement
officer.” Mr. Mosier believed that the petitioner’s “chances before a jury in any county were [not]
good at all.” In his opinion allowing Judge Blackwood to impose the sentence was the best chance
that the petitioner had to avoid the death penalty.
Mr. Mosier stated that there were many difficulties with this case, primarily the status of the
victim as a law enforcement officer and communication with the petitioner’s family. The
petitioner’s mother, for example, refused to believe that her son could commit any criminal acts. Mr.
Mosier was not aware of the incident alleging that the petitioner had kidnapped and raped his
girlfriend’s mother. He further conceded that the mitigation report failed to indicate that one of the
petitioner’s victims in a prior incident was his art teacher and the mother of his friends.
Notwithstanding, Mr. Mosier could not say that knowledge of these factors would have been
indicators for the need of further psychological or psychiatric testing.
Dr. Frank Einstein, a self-employed sentencing consultant and mitigation specialist, stated
that there are two purposes of mitigation in capital cases. “One is to be able to present a picture of
the client as a full human being to the sentencer. The second related part is to – the purpose of
mitigation is to reduce the moral culpability of the defendant for the crime of murder for which he
or she has been found guilty.” In satisfying the second purpose, the person’s entire life must be
examined to determine whether there is anything biological, physiological or medical that may have
interfered with a rational, constructive decision-making process.
In completing a mitigation investigation, Dr. Einstein testified that he begins two ways. One
is to interview the client and the second involves reviewing life history records collected by the
attorney. Under either method, a chronological history of the defendant’s life is formulated. Any
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records from schools, medical facilities, etcetera, are then collected to support the chronology. A
picture of the family is then drawn. A list of names is created of people to interview. Where
immediate family members fail to cooperate, extended family members should be interviewed.
Moreover, records provide valuable information about the client. Finally, the investigator should
continue an attempt to establish a rapport with immediate family members. Records of family
members are also sought to establish certain familial patterns, for example of mental illness, abuse
or molestation.
Dr. Einstein testified that once this information is gathered the mitigation specialist pieces
the information into a chronological time line. The information is then synthesized to show patterns.
This presents the mitigation specialist with a likely theme in the case or in the client’s life. A social
history is then compiled of the collected data to show the sequential development of the client’s life.
Dr. Einstein distinguished between the social history compiled by a mitigation specialist and that
contained in medical records. He stated that social histories contained in medical records are based
upon information provided by the patient and one or two family members. This type of social history
is “totally uncorroborated.” Thus, reliance upon this type of social history alone leads to the high
possibility that one would miss serious clues that would trigger the need for further evaluation. Dr.
Einstein stated that the compilation of an accurate social history could be completed in as short a
time as one (1) year or could take as long as two (2) to three (3) years. It is highly unlikely that it
could be completed in less than one (1) year.
Post-conviction counsel asked Dr. Einstein to review the work completed at the trial level
in the petitioner’s case and the adequacy thereof and compare that work with the investigation
completed by the post-conviction team. In reviewing Ms. Fenyes’ work, Dr. Einstein found it
remarkable that almost all the work completed in her investigation was done two (2) weeks prior to
the entry of the guilty plea. Dr. Einstein concluded that there was no mitigation work completed
from June 1997 through December 1997. Ms. Fenyes only met with the petitioner four (4) times,
and never alone. This is important because the ability to gain sensitive information is hindered when
a third party is present. Ms. Fenyes did not meet with the petitioner until February 1998. There
is no indication of any further meetings until June 1998. The petitioner entered a guilty plea on July
6, 1998. It is Dr. Einstein’s opinion that the amount of time spent preparing a mitigation defense
“would definitely not [have] been enough time in this case.” Dr. Einstein acknowledged that Ms.
Fenyes was not authorized to begin work until September 1997. Dr. Einstein further faulted Ms.
Fenyes’s practice of interviewing persons by telephone rather than in person. Basically, all of the
mitigation work was completed in the week between entry of the plea and the sentencing hearing.
In comparing the mitigation investigation completed by the trial team and the mitigation
investigation completed by the post-conviction team, Dr. Einstein observed information not
discovered by the trial team that was available and useful in preparing a mitigation defense. Dr.
Einstein separated the “missing” information into two categories, (1) information about Petitioner
Henderson and (2) information about the petitioner’s extended family. Information regarding the
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petitioner consisted of the following: (1) changes in the petitioner’s behavior during high school
years; (2) radical changes in the petitioner’s behavior during the two (2) years preceding the murder
including but not limited to the alleged rape and kidnapping of his girlfriend’s mother; (3)
exhibitions of signs of depression and suicidal thoughts; and (4) indication of a strange sort of
religious ideation, consisting of spirits that affect his behavior. Information about the petitioner’s
extended family included: a significant history of mental illness and instability, where at least nine
(9) extended family members on both his maternal and paternal side suffered from mental illness.
His report indicated that the petitioner should have been examined by a psychiatrist.
On cross-examination, Dr. Einstein conceded that his fee in this case would amount to
$30,000 or $40,000. He stated that the fact that the petitioner has been diagnosed with a mental
illness and the fact that this information was omitted at the trial level was prejudicial to the
petitioner. He added that information regarding the family history of mental illness should have been
presented. Dr. Einstein explained that this case was difficult for two (2) reasons. First, the petitioner
was not honest regarding his family history, because he presented a picture of having a perfect
family. Second, his family was very guarded and closed to outsiders.
Dr. Einstein conceded that the petitioner did not have an abusive childhood. Although the
petitioner did have two (2) incidents of significant physical trauma, this information was procured
by the trial team. There is no indication of childhood malnutrition. He further conceded that, at the
time of trial, there was no mental health history of the petitioner and there was no evidence that he
was mentally retarded. There is no evidence of fetal alcohol syndrome or effects. There is no
evaluation completed by an addictionologist nor is there any indication that the petitioner had any
kind of addiction. He agreed that there is no indication as to whether the petitioner had been exposed
to lead, agricultural chemicals, or environmental toxins. Although these initial questions were
answered negatively, Dr. Einstein stated that mitigation investigation does not end. Dr. Einstein
conceded that, in any given case, there may exist several arguable issues that should be eliminated
for the purpose of focusing on one (1) or two (2) stronger issues.
The trial judge himself made inquiry as to Dr. Einstein’s qualifications. Dr. Einstein
affirmed under questioning by the trial judge that his Ph.D. was in English. He further stated that
he went from teaching English at Fisk University to being a specializing consultant and mitigation
specialist. The trial court further questioned Dr. Einstein as to the manner of action taken when after
interviewing four (4) or five (5) people there is nothing unusual discovered about the client. In
response to questioning by the trial court, Dr. Einstein stated that he would continue to work for free
in some cases, acknowledging that a court would refuse to grant more funds when there is no reason
to support further investigation. The trial court also inquired as to the financial reasons motivating
an investigator to continue seeking mitigation evidence if initial efforts prove unproductive.
David Louis Chearis testified that in late 1996 and early 1997 he was confined in the Fayette
County Jail. Mr. Chearis served six (6) months in the jail, leaving the jail about a month and a half
13
before the murder of Deputy Bishop. During his confinement, he had the opportunity to observe the
petitioner. Chearis knew the petitioner prior to incarceration, however, as the two men were
“supposed to be some kin” and, generally, from “being on the streets.” He also recalled publicity
the petitioner received from playing basketball in high school.
Mr. Chearis noted that the petitioner was “like laid back and didn’t really associate . . . with
other inmates . . .and mostly stayed to himself, drawing . . . listening to his music. . . .” He observed
that the petitioner slept most of the time, not rising until time to “get his 12 o’clock sandwich.” This
behavior of staying to himself persisted for about five-and-one-half (5 ½) months. He then changed.
The petitioner started playing games, card games, arm wrestling, and other things. He starting
getting out of bed earlier. He began associating with the other inmates. Mr. Chearis described the
petitioner’s changed behavior as “risky,” explaining that when you started playing games you ran
the risk of being in a fight. He further observed that the petitioner stopped “draw[ing] as much.”
Previously, he would draw pictures of his girlfriend, his mother and Michael Jordan, all people that
he liked. After his behavioral change, he “got into a lot of tattoos.”
On cross-examination, Mr. Chearis conceded that it was possible that the fact that the the
petitioner was in possession of a handgun and was planning a murder was the reason behind his
change in behavior.
Barbara Weddle, a retired school teacher, testified that she first encountered the petitioner
in elementary school. Ms. Weddle was the fourth and fifth grade teacher at Central Elementary.
Although the petitioner was not a student of hers, she knew of him because he “had a real good
personality.” In 1981, Ms. Weddle transferred to Fayette-Ware High School. At the high school, the
petitioner was in Ms. Weddle’s art class. Ms. Weddle recognized the petitioner’s talent for drawing.
She encouraged him to enter a contest about drawing the courthouse. The petitioner won the contest
and won a dinner at a restaurant. Ms. Weddle always thought of the petitioner as “another Eddie
Murphy. . . . He just liked to say funny things and make the kids laugh.” She described him as
playful, not disruptive. Ms. Weddle could not recall the petitioner’s character other than that
displayed in her classroom. Ms. Weddle could not recall being contacted by any person on the
petitioner’s trial team.
Larry Ransom, a teacher and the basketball coach at Fayette-Ware High School, testified that
the petitioner played basketball under him at the high school. At the time, Coach Ransom was the
assistant coach. He related that the petitioner was a very talented athlete and played hard. The
petitioner was present at all practices and got along well with the other players. Coach Ransom
could not recall any complaints about the petitioner from any of the teachers. He did state that,
during his senior year, the petitioner concentrated more on his art work than on basketball. Despite
the petitioner’s passion for artwork, Coach Ransom was of the opinion that the petitioner could
succeed at basketball at the college level.
14
On cross-examination, Coach Ransom recalled an incident where the petitioner placed
something on the driveway of the school secretary. He also recalled an incident where the petitioner
was involved in a fight on a school bus.
Although Tonya Whitmore went to high school with the petitioner, she did not actually meet
him until after graduation when he was working at Sonic. Ms. Whitmore began dating the petitioner
in 1993. She stated that, during the time they dated, she spent time with the petitioner and his
family. She described the family as “pretty close,” “pretty normal,” and “[n]othing seemed out of
the ordinary . . . .” During the first few months of their relationship, the couple would go places,
have fun together, and the petitioner would paint pictures of Ms. Whitmore. At some point, the
petitioner changed. He became very violent with her. Ms. Whitmore described one incident in
January 1995 where the petitioner had come to her place of employment, broken into her vehicle,
and waited for her. When Ms. Whitmore got into her car, [h]e drove around beating [her].” Ms.
Whitmore ended up in the emergency room as a result of this incident. Ms. Whitmore initially did
not tell anyone that the petitioner was the person that had inflicted the injuries upon her. Later that
evening, Ms. Whitmore returned to the hospital and informed them that the petitioner beat her up
and that he would kill her. Ms. Whitmore was placed in a room at the hospital until law enforcement
officers arrived and made the petitioner leave. Ms. Whitmore later sought a protection order against
the petitioner. Ms. Whitmore did have contact with the petitioner via telephone calls. She described
these conversations as “[t]wisted, very twisted.” She described the petitioner as being like two (2)
different people. A few weeks later, the petitioner kidnapped Ms. Whitmore’s younger sister, Tina.
Ms. Whitmore testified that she broke up with the petitioner after the January 1995 beating, but later
reconciled with the petitioner. She stated that she stayed with the petitioner after he started abusing
her because he was a “good manipulator and a good conner . . . .”
Tempie Whitmore, Tina and Tonya Whitmore’s mother, testified that her initial impression
of the petitioner was that he was “odd, strange.” She explained, “he just would stare at you and look
at you right hard. . . . Looked like he was a little bit withdrawn . . . .” After the incident where
Tonya was taken to the hospital, the petitioner telephoned Mrs. Whitmore at her place of
employment, stating that he was sorry that he “beat Tonya up like that.”
Willie Mae Henderson Armour, the petitioner’s “great auntie,” testified that her daughter,
Cora Johnson, and two (2) of Cora’s sons lived with her. Mrs. Armour stated that Cora was at
Western State due to a nervous breakdown at the time of the birth of her twins, Penn and Glenn.
Glenn Johnson, one of Cora’s sons, was currently confined in the Somerville jail. Glenn had
previously been hospitalized for mental problems. Mrs. Armour explained that Glenn had “been in
and out of different places, and he got hurt in Cookeville, Tennessee, and that could be some of his
problem.” She stated that Glenn had been raped and it did something to his spine. Mrs. Armour
was in the process of trying to get Glenn back into a mental hospital. She described particular
incidents of Glenn’s behavior, including an incident where he tore her front door off and stabbed his
sister in the head.
15
In addition to Cora and her children’s known mental illnesses, Mrs. Armour stated that
another aunt, Amelia Winfrey, had “nerve – mental trouble,” and her son, Arthur Peter Winfrey
“died in Western State Hospital from mental illness.” She added that her “great great auntie, Aunt
Liza Winfrey, “lost her mind.” Aunt Liza’s son, Albert Springfield also “lost his mind, and he died
in New York.” She explained that “they’d just go wild.” The mental illness apparently ran on both
the maternal and paternal sides of the family.
Margaret Simmons is the sister of Elton Henderson. Ms. Simmons has never met the
petitioner and only knows of him through articles relating the murder of Deputy Bishop.
Shirley Shelby testified that she had known the petitioner since he was eight or ten years old.
The petitioner was friends with Ms. Shelby’s sons. Ms. Shelby was also the petitioner’s art teacher.
She described him as an “exceptionally talented student.” She added that he was also a talented
athlete, specifically basketball.
Ms. Shelby related an incident where someone broke into her home and held a towel over
her face. The person was wearing a ski mask and the house was dark as it was two o’clock in the
morning. After chasing the intruder out of the house, Ms. Shelby and her daughters realized that
their telephone lines had been cut. They decided to leave in her vehicle. The intruder chased the
family away. The intruder then returned to Ms. Shelby’s home and took “whatever purse he could
find.” Ms. Shelby then learned of checks having been written on her account. At some point,
someone was able to identify the person who was writing the checks on Ms. Shelby’s bank account.
The person was identified as the petitioner. Ms. Shelby confirmed that in her recommendations for
sentencing of the petitioner in this crime against her she recommended that he be provided
psychological counseling.
Tammy Askew was retained as the investigator by the trial team in this case. She
specifically recalled being contacted by Mr. Mosier prior to August 1997. She was instructed by
both Mr. Mosier and Mr. Johnston to interview witnesses. Her understanding was that her
investigation was limited to solely the guilt phase of the trial. Ms. Askew’s records of her
investigation reveal that on August 27, 1997, she interviewed Ms. Guy, Mr. Holmes, and Sally and
TL Johnson. Her records also reveal that she attempted to interview Dr. Cima, Peggy Wilde and
Donna Feathers; these witnesses refused to be interviewed. As advised by Mr. Mosier, Ms. Askew
again attempted to interview these witnesses; they again declined.
Ms. Askew testified that she interviewed the petitioner’s parents Sally and TL Johnson at
their home. The couple were interviewed separately. An interview of the petitioner was then
conducted. This was Ms. Askew’s only interview with the petitioner. Ms. Askew conducted no
additional investigative activities in this matter until June 1998. She explained that she had
interviewed all of the persons that defense counsel had asked her to interview, with the exception
16
of those individuals that declined. She stated that defense counsel never asked her to interview
anyone from the Sheriff’s Department. Ms. Askew explained that after a defense team meeting on
July 8, 1998, she researched criminal records of the petitioner and picked up some medical records
on the petitioner.
Judge Blackwood was then called as a witness by post-conviction counsel. Judge Blackwood
testified that from 1974 to 1976 he was in private practice in Fayette County. In 1975, he became
a part-time assistant district attorney, going full-time in 1976. Judge Blackwood remained in this
position until November 1985 at which time he was appointed to the bench. Judge Blackwood
acknowledged that he had applied for the position of District Attorney General while employed with
the District Attorney’s Office.
Regarding an in camera conference between Judge Blackwood and Ms. Fenyes during the
July 6, 1998, motion for continuance, Judge Blackwood stated that he questioned Ms. Fenyes as to
how much more time she needed with regard to preparation of a mitigation defense. Trial counsel
did not object to the conference.
Dr. Lynn Zager, a clinical psychologist, was retained by trial counsel to evaluate the
petitioner. Dr. Zager testified that her evaluation of the petitioner began on November 4, 1997.
Actually, Dr. Zager had previously traveled to Mark Luttrell in Shelby County to interview the
petitioner, but he had already been transferred to another institution. On November 4, Dr. Zager
spent three (3) hours at Riverbend completing a forensic evaluation of the petitioner. The purpose
of this evaluation involved informing the petitioner of the purpose of the evaluation and the limits
of confidentiality. She explained that her evaluation consisted of a social history, a competency
assessment, and a “mental condition at the time the offense is said to have happened” assessment.
Throughout this process, Dr. Zager is looking for signs and symptoms of a mental illness, personality
disorder or other mental issues. Dr. Zager testified that, on this date, she did not complete any social
history information.
On January 7, 1998, Dr. Zager reviewed the petitioner’s medical records from LeBonheur
Children’s Hospital. Dr. Zager recalled the petitioner being involved in a bicycle accident when he
was twelve (12) years old. The Petitioner had been hit by a car and was rendered unconscious. At
this point, Dr. Zager provided her opinion to defense counsel that the petitioner was competent to
stand trial and there was insufficient evidence to support a defense of insanity. She added that she
did not have information to diagnose a major mental illness.
Dr. Zager testified that after the entry of the petitioner’s guilty plea, the defense held a team
meeting. During this meeting, there was discussion about the possibility of a personality disorder
existing, specifically with narcissistic and antisocial traits. Dr. Zager decided to further pursue these
disorders. Prior to July 8, 1997, Dr. Zager did not conduct any formal psychological testing. After
17
this meeting, Dr. Zager administered the MMPI to the Petitioner and evaluated the results. Between
the team meeting and the administration of the MMPI, Dr. Zager had not been provided any more
social history information on the petitioner. Dr. Zager had not been provided letters written to trial
counsel by the petitioner. Notwithstanding, Dr. Zager testified that she felt comfortable with the
amount of social history she had been provided. She did concede, however, that in other cases, the
mitigation specialist had provided her with information as to the client’s social history. Dr. Zager
stated that information as to extended family histories involving alcoholism, mental health, and other
issues are helpful and valuable tools. She added that, depending on the case, information gained
from interviews with extended family members and people in the client’s community could be
significant in looking at a person’s mental health.
A team meeting held on July 10 consisted of Dr. Zager, Mr. Mosier, Mr. Johnston, and Ms.
Fenyes. The petitioner’s mother attended this meeting and brought with her a box of things thought
to be helpful or valuable in terms of preparing for the sentencing hearing. Dr. Zager could recall
items of artwork most vividly. She recalled that a plan was formulated as to what would be
presented at the hearing. Dr. Zager had determined that the petitioner suffered from a personality
disorder with narcissistic and antisocial traits. This information was discussed at the meeting. Her
evaluations, however, did not meet the specific diagnosis for these disorders. Dr. Zager testified
that she was surprised that she was asked to testify at the sentencing hearing because her diagnosis
of the petitioner did not constitute a major mental illness, in other words, her diagnosis was not very
valuable in asserting a defense.
Since the initiation of post-conviction proceedings, Dr. Zager had been advised of additional
information regarding the petitioner that she was not aware of at the time of her diagnosis. She
stated that she learned “a whole lot of additional background information,” including details of the
different crimes for which the petitioner had been charged and convicted. Specifically, she was
provided the victim’s point of view of the incidents. Dr. Zager noted that the petitioner’s art teacher
was the victim of one of his prior crimes. She stated that any additional information would have
been used in evaluating or refining her diagnosis
Dr. Zager testified that she was aware that the petitioner had been diagnosed with a Bipolar
2 disorder. She stated that this diagnosis was not inconsistent with the MMPI previously
administered to the petitioner. On cross-examination, Dr. Zager explained that Bipolar 2 is a mood
disorder and is not a psychosis. She added that a person can be diagnosed as Bipolar 2 and be a
functioning member of society without antisocial or criminal traits.
Although Dr. Zager stated that she had not made a new diagnosis in this case based on new
information, she agreed that it would be prudent to continue to look and see if there was a reason to
change her prior diagnosis.
18
Dr. Pamela Auble, a clinical psychologist, explained that the role of an expert is to evaluate
the client, sometimes recommending further experts. A major part of the function is to consult with
the attorneys and the mitigation specialist. She described the role as an “ongoing process,” because
the evaluation may lead to new questions, additional records, additional consultations with the team,
new information, and so on.
Dr. Auble stated that the MMPI is a personality test consisting of 567 true or false questions.
Mainly, the questions are about various aspects of human experience. The test has some mental
ability limitations, that is, you have to be able to read and understand the questions. Additionally,
the test is only a “snapshot” of how the person taking the test is at that moment. She stated that the
MMPI, on its own, is not a sufficient tool for providing a full picture of a person’s psychology
because; (1) it does not measure a person’s abilities, thinking, reasoning or memory; (2) it is
dependent upon the person’s ability to describe themselves; and (3) no single test is the answer for
everything. Dr. Auble confirmed the importance of the evaluator personally interviewing the client.
Dr. Auble testified that she was involved in the petitioner’s case. She interviewed the
petitioner, performed a battery of tests, and reviewed some records about his history. She further
attested that she had consulted with post-conviction counsel and talked with various persons about
the case, their findings, and other aspects of the petitioner’s history. Specifically, Dr. Auble
administered the Wechsler Memory Scale Third Edition, the Weschler Adult Intelligence Scale Third
Edition, the Test of Memory Malingering, the Wisconsin Card Sort, Trailmaking, the Speech
Perception Test, the Seashore Rhythm Test, the Tactual Performance Test, the California Verbal
Learning Test, the Rey-Osterrieth Complex Figure, the Delis-Kaplan Executive Functioning System,
the Finger Oscillation Test, the Grooved Pegboard Test, the Rorschach, the Personality Assessment
Inventory, and the Incomplete Sentences Blank. Dr. Auble further reviewed the testimony and notes
of Dr. Zager, the records from LeBonheur Children’s Medical Center, the report of Dr. Einstein, and
a transcript of the sentencing hearing. The review of these materials was completed after Dr.
Auble’s report was prepared but had no affect on her conclusions. Dr. Auble provided the following
test results:
The testing of the mental abilities told me that [the petitioner] does not have
what I would call global or general deficits, but does have some specific problems
in his mental abilities.
To be exact, he has some difficulties learning information that he’s told.
That’s a problem for him. He also had some problem in a test of manual dexterity,
and he had some variable problems on tests which measure his ability to go back and
forth between different ideas, to form hypotheses and test them, and to abstract
reasoning.
19
From the personality testing, [the petitioner] has a desire to present himself
as a very normal, even maybe supernormal individual. He is likely to minimize or
even be unaware of his own problems. He likes people and wants interaction with
people. He – in my testing he was less distressed than he was when Dr. Zager saw
him. I guess that’s sort of a quick summary.
Dr. Auble explained that her findings of neuropsychological deficits was significant because they
affect his functioning. She stated that:
[F]rom the personality testing it was hard for me to draw a lot of conclusions because
of his tendency to shut down and to minimize problems, to . . . I don’t know that he
really has much insight into what his real problems are. So from the personality
testing I’m not sure I got underneath, underneath his sort of mask of normalcy that
he wants to portray to everyone. . . . I don’t think he was as depressed at the time I
saw him [as he was when Dr. Zager saw him].
There were indications however that his functioning was not right and his portrayal of himself and
his family is inconsistent with reality. Dr. Auble believes that the petitioner is not “aware of his own
emotional dynamics.”
In comparing her results with those reached by Dr. Zager, Dr. Auble noted that Dr. Zager did
not perform some of the testing of mental ability and, therefore, she did not talk about the problems
with the petitioner’s memory and his rigidity. She did concede that the personality style identified
by Dr. Zager was similar to the personality style observed in her evaluation. Dr. Auble further
agreed with Dr. Zager’s diagnosis as to the petitioner’s narcissistic traits and antisocial personality.
She conceded that she was unable to diagnosis the petitioner with an Axis I diagnosis of a major
mental disorder.
Dr. William Kenner, a psychiatrist engaged by post-conviction counsel in this case, testified
that in formulating his opinion he reviewed:
[Q]uite a stack of material . . . which involved the interviews that had been done with
his family members. I also – and other individuals who had known him over the
years. I also had a chance to talk with Shirley Cobb and Tina Whitmore and Tina’s
mother, Tempie Whitmore, to get their views and experiences with [the petitioner].
In Dr. Kenner’s opinion, the petitioner suffered from a bipolar type 2 disorder at the time of Deputy
Bishop’s murder. He continued to describe bipolar disorder:
20
One way to think about bipolar disorder is in terms of the cruise control on
a car. The human brain has its own cruise control that sets the pace of our lives, the
pace at which we think, act, and so forth. And, you know, some of us have cruise
controls that are set quite differently. Some people are slow talking, and others talk
very quickly and move on to things and so forth.
But when that cruise control becomes defective, some interesting changes
take place in an individual. They begin to feel too good. Their thinking can race
ahead, oblivious to any warning signs that they would otherwise have heeded when
they were in their normal state. They don’t need as much sleep as others. And the
more manic they get, the less sleep they will need. What often goes with the fast
thinking is extremes in the manic’s opinion of himself, that it will become grandiose,
his thinking will become expansive, and he will feel wonderful in circumstances that
most folks would feel pretty just the opposite.
The manic patients have the normal human appetites, but they go overboard
in terms of pleasure seeking, in terms of having a good time, and they will do this
heedless of any consequences. . . . The manic will be unable to use good judgment
to slow down and reflect on a particular course of action. . . . He may break the law
in ways that he would not have done when he was on a more even keel.
Dr. Kenner related the traits of a manic to those of one with a narcissistic personality disorder,
stating that a “manic is like a narcissist on methamphetamines.” He stated, however, that a narcissist
is one who puts himself out as being a rather special person, while a manic, when the mania is over,
will resume their normal personality. Regarding the diagnosis of antisocial personality disorder, Dr.
Kenner stated that symptoms of this trait begin at age fifteen (15). These traits were not evident in
the petitioner. The petitioner was very conscientious and hard working in school.
Dr. Kenner stated that the marked change in the petitioner’s personality in early adulthood
suggests several things including the use of drugs or the start of a mental illness. There was no
indication that the petitioner abused drugs. Dr. Kenner based his diagnosis primarily upon the
petitioner’s behavior during childhood and high school compared to his behavior in his early
adulthood years. Dr. Kenner considered the petitioner’s extracurricular activities, noting that he
played basketball all four (4) years, he ran track, he was president of the 4-H and the student body
at high school, he participated in the art club, he coached and played in the Fayette County Athletic
League. Based upon his performance to this point, the petitioner showed great promise, that is,
before his bipolar symptoms came into play. There were some signs in high school, specifically
sleep disorder systems. His criminal career began with the forging of a Tennessee Department of
Employment Security check. The check was made for $104, and the petitioner added a five (5) in
front of the amount, making it $5,104. In February 1995, he raped Shirley Cobb, the mother of his
girlfriend. The petitioner described his girlfriend Natonya as his wife. In March 1995, he broke into
21
Shirley Shelby’s home and stole some purses. In May 1995, he abducted the younger sister of a
former girlfriend.
Other events proved insightful in making a diagnosis. In October 1995, the petitioner placed
a wedding announcement in the local paper stating he and Natonya were to be married and giving
her last name as Boyland. The announcement further provided that the wedding was to take place
on October 14, 1995, at the Adams Mark Hotel with an elegant reception afterwards. Information
in the announcement also indicated that the couple were soon to be parents of a baby boy, that
Natonya was going to sign a contract with a modeling agency, and that the petitioner was pursuing
his art career at the Naegele Outdoor Advertising Company. There was absolutely no truth in the
announcement. They were not getting married; she was not pregnant; he was working at Target;
he was not pursuing an art career; and Natonya was not signing a modeling contract.
On December 27, 1995, the petitioner was released from jail at 1:17 p.m. By 4:00 pm, he
had again abducted Shirley Cobb and raped her. The abduction was in daylight in front of
somebody’s house. The petitioner began to serve a sentence for aggravated burglary in January
1996. He was on work release in February 7, 1996, when he again abducted Shirley Cobb. On
February 9, he released her. Two (2) months later, the petitioner was arrested in Conway, Arkansas,
with Natonya Cobb.
Dr. Kenner opined that these events are significantly different from behavior earlier in his
life. His family history is heavily loaded for bipolar disorder. The murder of Deputy Bishop
occurred during a period of difficulty in sleeping. Moreover, like the other crimes committed by
the petitioner, this offense did not make any sense, shooting a deputy and escaping through the
middle of town. He stated that Mr. Chearis’ description of the petitioner’s behavior while at the
Fayette County Jail was consistent with a diagnosis of bipolar disorder 2.
Dr. Kenner concluded that, in his opinion, the petitioner was suffering from a major medical
illness that affected his abilities to control his behavior in this case. He added that someone suffering
from a bipolar disorder would have more difficulty in avoiding this type of criminal behavior than
a person without a mental illness. Dr. Kenner stated that the most convincing evidence as to the
diagnosis that the petitioner was suffering from bipolar disorder at the time of the murder is the
presence of the sleep disorder. However, he placed equal importance on the family history of mental
illness and the petitioner’s presentation that he had a perfect family. He stated that the illness could
be supported without the two (2) year history of criminal behavior, but it is much more convincing
with the history.
On cross-examination, Dr. Kenner conceded that his information of the petitioner’s sleep
history was based on the self-report of the petitioner. He related, however, that bipolar disorder was
not a mental illness easily or readily “faked” by persons. Dr. Kenner further admitted that none of
22
the petitioner’s first-degree biological relatives had bipolar disorder. He stated, however, that there
is relevance of a second cousin suffering from a mental illness, but he conceded, this relevance is
not recognized in the DSM4.
Findings of the Post-Conviction Court
In its order denying post-conviction relief, the post-conviction court summarized the facts
supporting the petitioner’s conviction for the first degree murder of Deputy Bishop. The post-
conviction court noted that numerous pre-trial motions were filed by defense counsel, including
motions for ex parte services. These motions were granted by the trial court. The post-conviction
court further acknowledged that the trial was originally scheduled for July 6, 1998, but, immediately
prior to the commencement of the trial, defense counsel sought and was granted a continuance. Later
that day, after an extensive hearing, the petitioner entered a plea of guilty to first degree murder.
After further questioning, the petitioner waived his right to have a jury impose punishment. A
capital sentencing hearing was conducted one (1) week later. At the conclusion of which, the trial
court imposed a sentence of death.
The post-conviction court acknowledged the petitioner’s claims regarding the ineffective
assistance of trial and appellate counsel. In this regard, the post-conviction court made the following
findings of fact and conclusions of law:
First, this case occurred before Rule 13 of the Supreme Court became applicable.
Nevertheless, Mr. Mosier had experience in capital cases, and Mr. Johnston had
impressed the Court with his legal acumen, despite his lack of experience. Secondly,
there is nothing in the record to suggest that the Petitioner did not voluntarily,
knowingly, and intelligently waive his right to a jury trial on the issue of punishment.
The record indicates that he initially suggested to trial counsel that he plead guilty.
Thirdly, there are very few factual issues of importance that are disputed. Lastly, the
Court, having been the trier of fact during the punishment phase, is in a unique
position to be able to hear any additional mitigating evidence and weight [sic] it
against the evidence at trial. This is important in determining whether any additional
mitigating evidence would have changed the Court’s sentence.
[T]he Court finds that Petitioner was not denied effective assistance of
counsel. Counsel filed all the appropriate motions. Counsel was provided with
expert services. Counsel allowed the investigative and mitigation expert to conduct
their investigation and report to counsel their findings. It is true that trial counsel was
not aware of all the history of mental illness in the Petitioner’s family. Also true was
that counsel was not completely aware of some of the violent events that the
Petitioner engaged in shortly before this incident. It is true that counsel was aware
23
from the expert clinical psychologist that Petitioner was diagnosed with a personality
disorder, not otherwise specified, with narcissistic traits. However, their expert did
not see any bipolar tendency, and counsel, under the circumstances, acted in a
competent manner in presenting this psychological proof to the Court. It is true that
counsel’s mitigation expert did not make as an extensive mitigation investigation as
Post-conviction mitigation expert opined was necessary. However, two points need
to be addressed. One, there was a mitigation investigation and a review of the trial
transcript revealed that various witnesses testified on Petitioner’s behalf in an effort
to produce mitigation. Secondly, the Court places little weight on the testimony of
Petitioner’s mitigation expert, especially when he opined that it would take two to
three years to do a proper mitigation investigation. Lastly, as trial counsel stated, this
was a case where finding mitigation was difficult, and as explained hereinafter, also
a double-edged sword. Therefore, the Court concludes that counsel was not
ineffective.
....
The Court can now look to the additional mitigation proof offered at this hearing in
assessing whether the result would have been different. . . . The Petitioner was a
normal student in grammar and high school. He was a talented basketball player and
had a talent for art. About two years prior to this event, his behavior changed. He
became violent. He viciously assaulted one girlfriend. He was convicted of some
lesser felonies. Thereafter, he abducted the mother of his girlfriend on several
occasions while masked. He also raped the mother. Petitioner’s clinical psychologist
opined that he had a personality disorder, but did not . . . disagree with trial counsel’s
clinical psychologist, other than she administered more tests. Finally, Dr. Kenner
diagnosed the Petitioner as bipolar. . . . Dr. Kenner opined that in order to fully
explain the nature of Petitioner’s bipolar diagnosis, the trier of fact would have to
hear all the details of Petitioner’s various assaults, abductions and rapes.
....
[T]he statutory aggravating circumstances . . . by the State were simply
overwhelming. The Court considered the mitigating testimony, especially the
testimony regarding this personality disorder. This proffered new mitigating
testimony regarding Dr. Kenner’s bipolar diagnosis, only reinforces the Court’s
opinion that the aggravating circumstances outweighed, in fact overwhelmed, any
mitigating evidence. . . . The Court is assuming . . . that Dr. Kenner’s diagnosis is
correct. Had this testimony been offered at the trial, the State, of course, would have
had the opportunity to rebut same. . . . Secondly, the evidence presented regarding the
defendant’s abduction of his girlfriend’s mother, the rapes, the assaults, lead the
Court to the conclusion that the Petitioner’s acts were calculated, cold and deliberate.
These are the same calculated and deliberate actions that led to the death of Tommy
Bishop. Whether or not they were the result of a bipolar condition would not have
changed the Court’s decision to impose a sentence of death.
24
Lastly, Appellate counsel was not ineffective given the history of the case.
The only viable issue to appeal was pre [sic] portionality.
Post-Conviction 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. Tenn. Code Ann.
§ 40-30-103. The petition challenging the conviction for first-degree murder herein is governed by
the 1995 Post-Conviction Act, which requires that allegations be proven by clear and convincing
evidence. See Tenn. Code Ann. § 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); State v. Nichols, 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)). 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, our review is de novo, and we accord the conclusions reached below
no presumption of correctness. Wallace, 121 S.W.3d at 656, Nichols, 90 S.W.3d at 586.
I. Issues Waived by Guilty Plea and/or Failure to Raise Them on Direct Appeal
In this appeal, the petitioner raises a number of issues centering around both the trial court’s
refusal to recuse itself during both the guilt and the sentencing phase as well as constitutional error
with the imposition of the death penalty. Specifically, with regard to the death penalty, the petitioner
argues that: (1) his sentence of death violates international law; (2) his sentence of death violates due
process; (3) his waiver of jury sentencing was invalid; (4) the death penalty itself is unconstitutional;
and (5) the system of appointing capital defense counsel is unconstitutional. A ground for relief is
waived if the petitioner personally or through an attorney failed to present it for determination in any
proceeding before a court of competent jurisdiction in which the ground could have been presented
unless it is based upon “a constitutional right not recognized as existing at the time of trial if either
the federal or state constitution requires retroactive application of that right” or the failure to present
the ground “was the result of state action in violation of the federal or state constitution.” Tenn.
Code Ann. § 40-36-106(g). Neither of the exceptions is present herein. Further, the petitioner pled
guilty. A guilty plea waives all non-jurisdictional constitutional inequalities. See State v.
25
McKinney, 74 S.W.3d 291 (Tenn. 2002). Thus, these issues are waived. Accordingly, the only
remaining issues properly before this Court involve the trial court’s failure to recuse itself at the post-
conviction proceeding, the effectiveness of trial and appellate counsel, and the post-conviction
court’s decision to exclude the testimony of Kelly Gleason.
II. Recusal of the Court at the Post-conviction Level
The petitioner complains that the post-conviction judge erred in failing to recuse
himself from the post-conviction proceedings. As basis for recusal, the petitioner asserts that: (1)
the judge predetermined post-conviction issues at the petitioner’s original trial; (2) the post-
conviction judge demonstrated bias by its attitude and behavior regarding defense witness Dr.
Einstein; (3) the post-conviction judge refused to permit the defense to call his secretary as a witness
so as to not disrupt its office, although defense counsel had properly subpoenaed her; and (4) the
judge’s disparate treatment of witnesses.
In support of these claims, the petitioner offers the following. The petitioner alleges that the
judge began predetermining post-conviction issues during the original trial of this matter.
Specifically, the petitioner cites to the trial judge’s questioning of Ms. Fenyes with hypothetical
questions regarding whether there was sufficient mitigation investigation to support a finding that
trial counsel was effective. The petitioner further asserts that the judge’s predetermination of
counsel’s effectiveness is evidenced by the post-conviction judge’s conduct during the testimony of
Dr. Frank Einstein, the post-conviction defense mitigation specialist. The petitioner claims that the
trial judge took notes during Dr. Einstein’s testimony and contemporaneously “smiled” at the
prosecutors. The petitioner also cites to the post-conviction judge’s questioning of Dr. Einstein
concerning his change of careers from a teacher to the more lucrative career of a sentencing
mitigation specialist. The following is an excerpt from the post-conviction judge’s questioning of
Dr. Einstein:
THE COURT: I wonder why you left the position [teaching] at Fisk to go into the
criminal justice system.
DR. EINSTEIN: Well, there were very many reasons. I made a career change at that
time. To continue teaching, I would have had to have moved around, you know, out
of Nashville. And by that time my wife and I had two small children. And this, an
opportunity came up which I decided to take advantage of.
THE COURT: Would it also be fair to say that about that time that the criminal
justice system’s compensation became more lucrative?
DR. EINSTEIN: I don’t know about that.
THE COURT: Would it be fair to say that since 1997, when Tennessee has adopted
the federal rules which have all these funds for mitigation experts and so forth, that
26
your income has greatly increased since 1997?
DR. EINSTEIN: I don’t think it has greatly increased.
THE COURT: If you go and you interview four or five witnesses and you find no
mitigation or nothing to help you, one of the reasons that you would continue to try
to find mitigation experts is if you’re being paid, the cash register will continue to
run, won’t it?
DR. EINSTEIN: That wouldn’t be the reason. The reason would be that I would
have taken on the commitment to do a task and there being four or five people in that
task.
The petitioner also challenges the post-conviction judge’s refusal to allow post-conviction
counsel to call Becky Pitts, the judge’s secretary, as a witness. Ms. Pitts had been properly
subpoenaed by post-conviction counsel. Ms. Pitts’ testimony was allegedly necessary in regards to
a letter sent by the petitioner to the trial judge requesting new attorneys. Despite the petitioner’s
protest to the contrary, the post-conviction judge stated that anything relating to the petitioner’s letter
was already contained in the record and there was no need for more evidence about that issue. The
post-conviction judge further stated that “it is disrupting my office for her to be over here.” When
post-conviction counsel argued that the petitioner had a right to confront and to present testimony
in his behalf, the post-conviction judge responded that “I rule that Ms. Pitts’ testimony is not
relevant.”
Additionally, although not specifically challenged by the petitioner, the record indicates that
the post-conviction judge was a witness in this case. Post-conviction counsel announced their intent
to call the post-conviction judge as a witness. The following colloquy occurred:
MR. DAWSON: Your Honor, we do have some questions that we intended to
ask the Court . . . that we indicated that we needed the Court
as a witness. We do have questions for the Court, if the Court
would allow that.
THE COURT: It’s never happened before, I suppose. All right, sir.
Swear me, Mr. German.
GENERAL FREELAND: Your Honor, I think I’m going to object unless there’s
some waiver on the part of the petitioner that this will
not be in itself a basis for recusal of Your Honor. It
seems to me that this is all part of the process that’s
been renewed today from yesterday to have Your
Honor recuse himself. And if you’re called by him as
27
a witness and he says —
THE COURT: I think I have to recuse myself.
GENERAL FREELAND: Yes, sir. Your Honor, I understand his basis, . . . for
Your Honor to recuse yourself, in which Your Honor
has already ruled. But if a further basis is going to be
that Your Honor is a witness, I’m going to object to
his calling you as a witness.
THE COURT: All right, sir.
MR. DAWSON: Your Honor, that was, of course, what we had indicated
prehearing or at the beginning of the hearing, is that we would
need to call the Court as a witness, and that was, of course,
one of the grounds that we gave for recusal. The Court
denied that motion, and we still need the Court as a witness.
GENERAL FREELAND: I take that as a waiver, Your Honor.
MR. DAWSON: Your Honor, I don’t think that’s a waiver. We made the
motion. We had indicated the Court needed to recuse itself
for that reason. The Court refused to. I think [the petitioner]
still needs the Court as a witness, and if that means the Court
cannot then do the opinion in this case, then that’s where we
are in this matter.
GENERAL FREELAND: Yes, sir. And, Your Honor, rather than this just
be[ing] a fishing expedition, since this is
unprecedented as far as I know, I’d like to have some
sort of offer of proof as to what Mr. Dawson is going
to ask.
THE COURT: Yes, sir.
The judge was sworn and testified regarding his legal career and political aspirations. Post-
conviction counsel questioned the judge regarding the in-chambers conference with Ms. Fenyes.
28
In this regard, the judge responded that there had been no objection to this procedure by trial counsel.
He related that the in-chambers conference was limited to a discussion regarding how much more
time Ms. Fenyes would need to procure mitigation evidence. At the conclusion of this testimony,
post-conviction counsel unsuccessfully renewed the motion for the court’s recusal.
A fair trial in a fair tribunal is a basic requirement of due process. The principles of
impartiality, disinterestedness and fairness are fundamental concepts in our jurisprudence. See State
v. Bondurant, 4 S.W.3d 662, 668 (Tenn. 1999) (quoting State v. Lynn, 924 S.W.2d 892, 898 (Tenn.
1996)). Article I, Section 17 of the Tennessee Constitution and the Fourteenth Amendment to the
United States Constitution guarantee all litigants a hearing before an impartial decision-maker. In
re Cameron, 151 S.W. 64, 76 (1912); see also Tumey v. Ohio, 273 U.S. 510, 532 (1927) (stating that
“every procedure which would offer a possible temptation to the average man as a judge [to forget
the burden of proof required to convict the defendant, or which might lead him] not to hold the
balance nice, clear and true between the State and the accused, denies the latter due process of law”).
Article VI, Section 11 of the Tennessee Constitution states that judges cannot participate in cases
in which they might have even the slightest interest. Neely v. State, 63 Tenn. 174, 182 (1874). A
similar restriction appears in Tennessee Code Annotated section 17-2-101(1). The purpose of these
provisions is to guard against the prejudgement of a litigant’s rights and to avoid situations in which
the litigants might believe that the court reached a prejudiced conclusion because of interest,
partiality or favor. Chumbley v. Peoples Bank & Trust Co., 57 S.W.2d 787, 788 (Tenn. 1933). A
trial before a biased or prejudiced judge is a denial of due process. Wilson v. Wilson, 987 S.W.2d
555, 562 (Tenn. Ct. App. 1998).
Judges must not only be impartial, but also appear impartial because judicial fairness is
violated when the appearance of fairness is ignored. See State ex rel. McFerran v. Justice Court of
Evangeline Starr, 202 P.2d 927 (Wash. 1949). This is not merely an idealistic sentiment. Deference
to the judgments and rulings of the courts depends upon public confidence in the integrity and
independence of the judges that make them. As our supreme court has acknowledged:
It is of lasting importance that the body of the public should have confidence in the
fairness and uprightness of the judges created to serve as dispensers of justice. The
continuance of this belief, so long entertained by the people of this country, and so
well warranted by the history of the judiciary as a body, is largely essential to the
future existence of our institutions in their integrity.
In re Cameron, 151 S.W. at 76. Since what the public perceives may be substantially different from
what actually exists, it is the appearance of impartiality that will often undermine or resurrect
society’s faith in the judicial system. See Bondurant, 4 S.W.3d at 668 (quoting State v. Lynn, 924
S.W.2d 892, 898 (Tenn. 1993) (citing Offutt v. United States, 348 U.S. 11, 14 (1954))). Thus,
“justice must satisfy the appearance of justice.” Id.
29
Canon 2A, Tennessee Supreme Court Rule 10, requires judges to conduct themselves “at all
times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.”
Similarly, Canon 3(E)(1), Tennessee Supreme Court Rule 10, requires judges to disqualify
themselves in cases where their “impartiality might reasonably be questioned.” The strict application
of Canon 3(E)(1) may result in the disqualification of a judge who has no actual bias and who
believes that he or she can try a case fairly. See In re Murchison, 349 U.S. 133, 136 (1955). The test
is not whether the judge believes he or she can be impartial but rather whether others might
reasonably question the judge’s impartiality. Lackey v. State, 578 S.W.2d 101, 104 (Tenn. Crim.
App. 1978). Thus, even where a just result is achieved, the appearance of justice is lost when the
judge appears biased or partial to one party. See generally Offutt, 348 U.S. at 14 (stating that “justice
must satisfy the appearance of justice”).
A trial judge should recuse himself or herself whenever the judge has any doubt as to his or
her ability to preside impartially or whenever his or her impartiality can reasonably be questioned.
Pannell v. State, 71 S.W.3d 720, 725 (Tenn. Crim. App. 2001). This is an objective standard. Alley
v. State, 882 S.W.2d 810, 820 (Tenn. Crim. App. 1994). The appearance of impropriety is
conceptually distinct from the subjective approach of a judge facing a possible disqualification
challenge and does not depend on the judge’s belief that he or she is acting properly. See Liteky v.
United States, 510 U.S. 540, 553, n.2 (1994) (determining that “[t]he judge does not have to be
subjectively biased or prejudiced, so long as he appears to be so”). “Thus, while a trial judge should
grant a recusal whenever the judge has any doubts about his or her ability to preside impartially,
recusal is also warranted when a person of ordinary prudence in the judge’s position, knowing all
of the facts known to the judge, would find a reasonable basis for questioning the judge’s
impartiality.” Alley, 882 S.W.2d at 820. The trial judge retains discretion over his or her recusal.
State v. Smith, 906 S.W.2d 6, 11 (Tenn. Crim. App. 1995). Unless the evidence in the record
indicates that the failure to recuse was an abuse of discretion, this Court will not interfere with that
decision. State v. Hines, 919 S.W.2d 573, 578 (Tenn. 1995).
It is difficult, if not impossible, for an appellate court to conduct a meaningful review of a
trial court’s discretionary decision without knowing the basis for the trial court’s action. In no
circumstance is this more true than when the impartiality of a judge is in question. In these cases,
it is simply not sufficient for an appellate court to presume that there exists adequate support for the
trial court’s decision. The integrity of our judicial system demands actual reviewability in these
matters. Thus, an appellate court must view the facts and circumstances through the eyes of the
average man on the street.
The issue of a post-conviction judge’s partiality or the appearance of it when the judge
himself testifies was addressed previously by this Court in Harris v. State, 947 S.W.2d 156 (Tenn.
Crim. App. 1996). In Harris, the petitioner sought the recusal of the post-conviction judge because:
(1) the judge was seeking the office of the United States Senator; (2) the judge was a material
witness with respect to the issues raised in the post-conviction proceeding; and (3) the impartiality
30
of the judge could reasonably be questioned. Harris, 947 S.W.2d at 171. Specifically, the petitioner
argued that the post-conviction judge had personal knowledge of disputed facts because he served
as the trial judge. Id. Although not contained in this Court’s opinion, it appears that the post-
conviction judge made comments during the post-conviction proceedings that led the petitioner to
believe that he was biased in favor of the State. While acknowledging that a trial judge cannot both
preside at a post-conviction proceeding and serve as a witness in that proceeding, this Court
concluded that “the judge was not a significant source of information at the hearing, nor was the
judge’s decision ultimately influenced by that information.” Id. at 173. This Court also noted that
adverse rulings are usually an insufficient basis upon which to find bias. Id. While not condoning
the judge’s actions and remarks at the post-conviction hearing, this Court concluded that the judge’s
conduct did not “diminish the overall fairness of the proceeding, even applying the heightened
standards of due process applicable in a capital case.” Id. (internal citations and footnote omitted).
In the present case, the petitioner asserts that the post-conviction court advocated the State’s
interests by openly attacking the credibility of Dr. Einstein and by refusing to permit the petitioner
to call the judge’s secretary as a witness. He contends that these actions are exacerbated by the trial
court’s apparent predetermination of post-conviction issues during the trial proceedings and the post-
conviction judge’s disparate treatment of witnesses.
At the conclusion of Dr. Einstein’s testimony, the post-conviction judge questioned Dr.
Einstein about his motives for changing careers from teaching at a university to becoming a
mitigation specialist and sentencing consultant. The petitioner argues that, by questioning the
witness at length, taking notes during his testimony and “smiling” at the prosecutor during the
testimony, the post-conviction judge created the appearance that he was taking sides.
A trial judge ordinarily has a duty to question a witness to clarify any issues for the jury. See
State ex rel. Com’r Dept. of Trans. v. Williams, 828 S.W.2d 397, 403 (Tenn. Ct. App. 1991). In the
case herein, however, there was no jury. In Bowling v. Commonwealth, 80 S.W.3d 405 (Ky. 2002),
the Kentucky Supreme Court upheld the trial court’s refusal to recuse itself after the trial court
questioned certain witnesses at length. The defendant in Bowling posited an argument similar to the
petitioner herein, that, by questioning the witnesses, the trial court became a material witness at the
hearing and should have recused itself. Id. at 420. The supreme court of Kentucky disagreed with
the argument, determining that in most cases, the judge’s actions could have had a negative impact
on a jury, but that, in the absence of a jury, there were no jury impact concerns. Id. Further, the
court determined that the trial court did not “exceed its authorization to interrogate witnesses.” Id.
We agree. The trial judge presided over the post-conviction hearing, without a jury, and even though
he questioned the witness at length without a jury there can be no argument that the trial judge’s
actions prejudiced the petitioner. Unquestionably trial judges as human beings may often find
themselves forming opinions as to the credibility of witnesses. While expressing those sentiments
before a jury may give rise to concern that the trial judge’s statements or actions have prejudiced the
31
finder of fact, this concern is not present where the trial judge is the trier of fact. We conclude that
it was not error for the post-conviction judge to fail to recuse himself for questioning Dr. Einstein.
The petitioner also argues that the post-conviction judge at trial predetermined post-
conviction issues concerning the effectiveness of counsel, specifically by sending a letter to defense
counsel to acknowledge his participation in such a “thankless task” and by noting on the form for
first degree murder cases required to be completed by the trial court pursuant to Tennessee Supreme
Court Rule 12, that trial counsel’s representation had been “[v]ery capable.” While the statements
about trial counsel were clearly complimentary, the statements were made well before any claim of
ineffective assistance of counsel had been presented. This Court will not infer from those comments
alone that the trial court could not be impartial in a subsequent post-conviction claim. See Thomas
E. Montooth v. State, No. 01C01-9604-CC-00126, 1997 WL 381907, at *2 (Tenn. Crim. App., at
Nashville, Jul. 11, 1997), perm. app. denied (Tenn. 1998) (determining that trial judge who had been
complimentary of trial counsel’s performance did not abuse its discretion in failing to recuse himself
from a post-conviction claim alleging ineffective assistance of counsel).
On the whole, we find the facts before this Court similar to those presented in Harris. While
we do not sanction the conduct of the post-conviction judge, specifically his participation as a
witness, we conclude that the judge’s conduct did not diminish the overall fairness of the proceeding.
Nevertheless, while not requiring a reversal in this case, a judge’s continued role as presiding over
a proceeding in which he or she is or is likely to become a witness is a course fraught with peril and
should be avoided whenever possible. See Tenn. R. Evid. 605 (providing that a judge may not
testify in a trial over which the judge is presiding).
III. Challenges to the Post-Conviction Court’s Findings
A. Standard of Review
The petitioner contends that a contradiction exists in the current status of the law governing
review of ineffective assistance of counsel claims. In State v. Burns, 16 S.W.3d 453 (Tenn. 1999),
our supreme court held that a claim of ineffective assistance of counsel is a mixed question of law
and fact. See Burns, 6 S.W.3d at 461. In Fields v. State, 40 S.W.3d 450 (Tenn. 2001), our supreme
court explained the standard of review in cases of ineffective assistance of counsel:
[A post-conviction] court’s findings of fact underlying a claim of ineffective
assistance of counsel are reviewed on appeal under a de novo standard, accompanied
with a presumption that those findings are correct unless the preponderance of the
evidence is otherwise. However, a [post-conviction] court’s conclusions of law--
such as whether counsel’s performance was deficient or whether that deficiency was
prejudicial--are reviewed under a purely de novo standard, with no presumption of
32
correctness given to the [post-conviction] court’s conclusions.
Id. at 458 (citations omitted).
In clarifying the standard, our supreme court noted that the standard for reviewing the factual
findings of a trial court has always been in accordance with the requirements of the Rules of
Appellate Procedure. See Id. at 456.
Petitioner asserts that the standard utilized in Henley v. State, 960 S.W.2d 572, 578 (Tenn.
1997), which states the post-conviction court’s findings are given the “weight of a jury verdict,”
cannot be reconciled with the Rule 13(d) standard “de novo upon the record of the trial court,
accompanied by a presumption of correctness.” The petitioner then contends that this Court must
apply the more relaxed de novo standard of review espoused in Fields. First, we note that the Henley
standard invoked the Rules of Appellate Procedure regarding standards to be applied upon review.
Henley, 960 S.W.2d at 578-79. Additionally, both the Henley and the Fields standards of review
presume the trial court’s findings are correct unless the evidence preponderates otherwise. See
Fields, 40 S.W.3d at 458; Henley, 960 S.W.2d at 578. Finally, this Court is perplexed by the
petitioner’s complaint because the standard he seeks imposed is the standard employed by the
appellate courts of this state.
B. Findings of Post-Conviction Court Not Supported by a Preponderance of the Evidence
The petitioner next asserts that the post-conviction court’s findings are not entitled to the
presumption of correctness because its findings are not supported by a preponderance of the
evidence. In support of his argument, the petitioner relies upon several statements in the trial court’s
order to support his allegation:
(1) Post-conviction court’s recitation of the underlying facts of the murder,
specifically the court’s characterization of the actions of Dr. Cima as “quick
thinking.” Petitioner asserts that this characterization demonstrates the fact that the
court’s concern was on the death of Deputy Bishop and not on the claims for relief
from an unconstitutional conviction and sentence;
(2) Post-conviction court’s description of the sentencing hearing as “long.”
Petitioner asserts that the sentencing hearing was conducted in one day and consists
of 214 pages of trial transcript.
(3) Post-conviction court summarily concluded that the post-conviction petition
revolves around trial counsel’s deficiencies in the mitigation stages of the
proceeding. Petitioner asserts that the court ignored other issues raised. Petitioner
further asserts that the post-conviction court applied an erroneous standard and
33
incorrectly stated that Petitioner’s argument was that bipolar disorder would have
been a mitigating factor.
(4) Post-conviction court erroneously concluded that Petitioner voluntarily waived
his right to a jury trial on the issue of punishment.
(5) Post-conviction court erroneously concluded that “[c]ounsel filed all appropriate
motions;” “[c]ounsel allowed the investigative and mitigation expert to conduct their
investigation and report to counsel their findings;” counsel “acted in a competent
manner in presenting the psychological proof to the Court.”
(6) Post-conviction court disregarded testimony of Dr. Frank Einstein, the
Petitioner’s expert as to mitigation investigation.
(7) Post-conviction court mischaracterized Dr. Auble’s testimony.
(8) Post-conviction court’s treatment of Dr. Kenner’s diagnosis and testimony is
“frankly astonishing.”
The statements relied upon by the petitioner to support his assertion that the evidence
preponderates against the post-conviction court’s findings do not constitute viable challenges to the
veracity of the lower court’s findings of fact. Specifically, Petitioner’s first three (3) claims are
attacks against the court’s choice of words. The terminology employed by the lower court does not
affect the accuracy of the court’s factual findings. In this regard, this challenge to the presumption
of the lower court’s findings fails. Similarly, the petitioner’s allegations that the post-conviction
judge improperly characterized all ineffective claims as claims attacking counsel’s failure to prepare
for mitigation, that the court mischaracterized Dr. Auble’s testimony, and that the court discredited
Dr. Kenner’s testimony fail to impact the propriety of the court’s factual findings. The petitioner has
merely challenged the trial court’s characterization of the evidence; he has failed to assert that the
actual evidence preponderates against the factual findings. Finally, we conclude that the remainder
of the petitioner’s challenges to the “presumption of correctness” are actually challenges to the post-
conviction court’s “conclusions of law” concerning trial counsel’s effectiveness and/or the
voluntariness of the petitioner’s plea and the submission of the punishment issue to the trial court.
This Court reviews these issues de novo with no presumption of correctness and will do so as such
issues are raised infra.
IV. Ineffective Assistance of Counsel
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 (1963) (quoting Betts v. Brady, 316 U.S. 455, 465 (1942)).
Inherent in the right to counsel is the right to effective assistance of counsel. Cuyler v. Sullivan, 446
U.S. 335, 344 (1980); McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970); see also Strickland
34
v. Washington, 466 U.S. 668, 686 (1984).
When a petitioner seeks post-conviction relief on the basis of ineffective assistance of
counsel, the petitioner bears the burden of showing that (a) the services rendered by trial counsel
were deficient and (b) that the deficient performance was prejudicial. See Powers v. State, 942
S.W.2d 551,558 (Tenn. Crim. App. 1996). In order to demonstrate deficient performance, the
petitioner must show that the services rendered or the advice given was below “the range of
competence demanded of attorneys in criminal cases.” Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn.
1975). In order to demonstrate prejudice, the petitioner must show that there is a reasonable
probability that, but for counsel’s deficient performance, the result of the proceeding would have
been different. See Strickland, 466 U.S. at 694. “Because a petitioner must establish both prongs
of the test to prevail on a claim of ineffective assistance of counsel, failure to prove either deficient
performance or resulting prejudice provides a sufficient basis to deny relief on the claim.” Henley,
960 S.W.2d at 580.
As noted above, this Court will afford the post-conviction court’s factual findings a
presumption of correctness, rendering them conclusive on appeal unless the record preponderates
against the court’s findings. See id. at 578. However, as stated above, our supreme court has
“determined that issues of deficient performance by counsel and possible prejudice to the defense
are mixed questions of law and fact . . . ; thus, [appellate] review of [these issues] is de novo” with
no presumption of correctness. Burns, 6 S.W.3d at 461.
Furthermore, on claims of ineffective assistance of counsel, the petitioner is not entitled to
the benefit of hindsight. See Adkins v. State, 911 S.W.2d 334, 347 (Tenn. 1994). This Court may
not second-guess a reasonably-based trial strategy, and we cannot grant relief based on a sound, but
unsuccessful, tactical decision made during the course of the proceedings. See id. However, such
deference to the tactical decisions of counsel applies only if counsel makes those decisions after
adequate preparation for the case. See Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992).
Once a guilty plea has been entered, effectiveness of counsel is relevant only to the extent
that it affects the voluntariness of the plea. In this respect, such claims of ineffective assistance
necessarily implicate the principle that guilty pleas be voluntarily and intelligently made. See Hill
v. Lockhart, 474 U.S. 52, 56 (1985) (citing North Carolina v. Alford, 400 U.S. 25, 31 (1970)). As
stated above, in order to successfully challenge the effectiveness of counsel, the petitioner must
demonstrate that counsel’s representation fell below the range of competence demanded of attorneys
in criminal cases. See Baxter, 523 S.W.2d at 936. Under Strickland, 466 U.S. at 687, the petitioner
must establish deficient representation and prejudice resulting from the deficiency. However, in the
context of a guilty plea, to satisfy the second prong of Strickland, the petitioner must show that
“there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and
would have insisted on going to trial.” Hill, 474 U.S. at 59; see also Walton v. State, 966 S.W.2d
54, 55 (Tenn. Crim. App. 1997). Moreover, when challenging a death sentence, the petitioner must
35
show that “there is a reasonable probability that, absent the errors, the sentencer . . . would have
concluded that the balance of the aggravating and mitigating circumstances did not warrant death.”
Henley, 960 S.W.2d at 579-80 (Tenn. 1997) (citing Strickland, 466 U.S. at 695).
A. Claims Before this Court
On appeal, the petitioner claims that trial counsel, Michael Mosier and Andrew Johnston,
failed to function as effective counsel as guaranteed by both the Tennessee and United States
Constitutions. In this regard, the petitioner asserts that Mr. Mosier and Mr. Johnston denied him
effective assistance of counsel by breaching acceptable standards for capital representation in that:
(1) Mr. Johnston was not qualified to represent Petitioner in a capital proceeding;
(2) Trial counsel failed to provide timely and sufficient funding for a mitigation
specialist and failed to monitor and direct the mitigation investigation;
(3) Trial counsel failed to develop a relationship with the Petitioner, failed to consult
with the Petitioner and failed to involve Petitioner in the preparation of the defense;
(4) Trial counsel was ineffective in permitting Petitioner to enter a guilty plea and
waive jury sentencing;
(5) Trial counsel failed to pursue a change of venue;
(6) Trial counsel failed to inform themselves of developments in capital litigation;
and
(7) Trial counsel failed to develop and make use of mitigation evidence. Trial
counsel failed to present evidence that Petitioner was a good father and for failing to
present other good acts of the Petitioner.
We proceed to review each of the petitioner’s arguments and analyze them in light of trial counsel’s
conduct and performance.
1. Mr. Johnston was not qualified to represent the petitioner in a capital proceeding.
The petitioner asserts that Andrew Johnston, second chair counsel, was not qualified to
represent him in a capital proceeding. While the petitioner acknowledges that appointment in this
case was made prior to the effective date of the standards for appointment of counsel contained in
the current version of Rule 13, Rules of the Tennessee Supreme Court, he asserts that the necessary
qualifications of counsel in capital cases was standard. See ABA Guidelines for the Appointment
and Performance of Counsel in Death Penalty Cases (February 1989). The petitioner asserts that Mr.
Johnston “did not come close to meeting these standards.” In support of this position, the petitioner
36
relies upon a letter from the trial court to lead counsel dated June 3, 1997, in which the court states,
“I’m going to attempt to appoint a local lawyer this week, who can do most of your housekeeping,
babysitting, and logistical work.” The petitioner interprets this statement as inferring that the trial
court was more interested in appointing someone to file documents and keep up with the docket,
rather than appointing an attorney capable of assisting in the difficult and complex representation
of an individual facing the death penalty.
The petitioner recognizes that the core question is whether Mr. Johnston’s performance was
deficient to the prejudice of the petitioner. He responds that the fact that he was only provided one
qualified attorney to his capital defense amounted to per se deficient performance.
“[T]he Sixth Amendment does not grant a defendant, who does have the absolute and
unqualified right to appointed counsel, the additional right to counsel of his own choosing.”
However, since Gregg v. Georgia, 428 U.S. 153 (1976), it has become apparent that special skills
are necessary to assure adequate representation of defendants in death penalty cases. See ABA,
Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases at 5.1.
However, there is no presumption that counsel is ineffective because of lack of experience in trying
a particular kind of case. See Russell v. State, 849 So. 2d 85, 122 (Miss. 2003).
At the time of appointment in the present case, there was no specific criteria required of an
attorney prior to receiving appointment in a capital case. Indeed, prior to July 1, 1997, the rule
merely provided, “[i]n a capital case two attorneys may be appointed for one defendant.” Tenn. Sup.
Ct. R. 13, § 1 (prior to amendment in 1997) (emphasis added); see also Brimmer v. State, 29 S.W.3d
497, 503 (Tenn. Crim. App. 1998). Thus, under the applicable rule, the petitioner was not entitled
to second chair counsel as of right. Moreover, no qualifying criteria was specified as to lead counsel.
While we recognize that ABA standards as to capital representation were in place at the time of the
appointment and while it must be conceded that Mr. Johnston failed to satisfy all of the suggested
criteria established by the ABA, these guidelines are not binding upon the trial courts of this state.
The trial court appointed Mr. Johnston as second-chair counsel, noting that the court had been
impressed with Mr. Johnston’s “legal acumen.” Accordingly, the petitioner’s argument that Mr.
Johnston’s lack of experience results in per se deficient performance is not supported in law.
In addition to Mr. Johnston’s failure to satisfy any criteria relating to the appointment of
capital counsel, the petitioner cites to numerous other factors indicating that his lack of experience
constituted deficient performance, for example: (1) counsel did not have any experience in working
with experts; (2) counsel failed to timely secure sufficient funds for the mitigation specialist; and (3)
lead counsel was not qualified to handle a capital case under Rule 13, Rules of the Tennessee
Supreme Court. Again, we refuse to conclude that these allegations automatically result in a finding
of deficient performance. A successful claim of ineffectiveness requires more than just a showing
that trial counsel was inexperienced. Rather, the petitioner must demonstrate with specificity that
“counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the
37
defendant by the Sixth Amendment.” Strickland, 466 U.S. at 687. Even if a defendant meets this
threshold, he or she must also prove that such error prejudiced the defense. Id. Furthermore, in the
context of a guilty plea, the petitioner must show that there is a reasonable probability he would have
not pleaded guilty if not for trial counsel’s error. Hill, 474 U. S. at 59. We proceed therefore to
examine the petitioner’s specific allegations of deficient performance.
2. Counsel’s performance as it related to obtaining funding for and monitoring the
mitigation investigation.
Trial counsel’s motions for court-appointed expert assistance were granted. The petitioner
complains, however, that “[a]sking for services does not absolve defense counsel of the duty to
properly utilize those services.” The petitioner asserts that trial counsel failed to adequately and
timely move for additional funds for the mitigation specialist. Specifically, he refers to the motion
for continuance conducted on July 6, 1998, the day trial was scheduled to begin.
At the motion for continuance, Ms. Fenyes testified that she had only spent forty (40) hours
working on the case, noting specifically that she had only been granted funds to complete twenty (20)
hours of work. She stated that it was not her policy to continue to work absent funding. As of July
6, 1998, Ms. Fenyes estimated that she needed to complete an additional thirty (30) to forty (40)
hours of work to adequately prepare for this case. She added that funding for these services had not
been approved until the week prior to the July 6 trial date.
Mr. Johnston informed the trial court that trial counsel “made application for additional funds
on May, the 7th, in this case and Your Honor immediately signed those orders . . . .” He explained
that the request for funds was then forwarded to the Administrative Office of the Courts (“AOC”)
for the signature of the Chief Justice. Mr. Johnston later contacted the AOC to determine the status
of the fund request, at which time, he was informed that the request had yet to be signed by the Chief
Justice. From this point, Mr. Johnston spent the next “three weeks to four weeks . . . calling up to
the Chief Justice’s office to determine where the orders were.” He explained that his contact at the
AOC was on vacation and that she was the only one that could assist him with funding requests. Mr.
Johnston’s office continued to make contact with the AOC regarding the status of the fund request.
The Monday prior to July 6, the AOC contacted Ms. Fenyes, informing her that the requests “are
going to be signed; go ahead; get it done.”
The trial record does nothing to bolster the petitioner’s assertion that counsel failed to timely
file motions requesting funds and failed to file motions requesting sufficient funds. Counsel cannot
be found deficient for actions beyond their control. The request was made two (2) months prior to
the scheduled commencement of the trial. It was unforeseeable that the request would not be granted
until two (2) months after its submission. The petitioner is not entitled to relief as to this claim. We
also find without merit petitioner’s two-sentence argument that “[h]ad defense counsel understood
the development of mitigation and directed their experts they would have been able to supply
information critical to reaching a reliable diagnosis of a serious bi-polar illness.” The substance of
this argument, regarding the lack of mitigation evidence, will be addressed infra.
38
3. Counsel failed to develop a relationship with the petitioner, failed to consult with the
petitioner and failed to involve the petitioner in the preparation of a defense.
The petitioner contends that trial counsel failed to consult and involve the petitioner in the
defense of his own life. He states that the limited visits between himself and his counsel prohibited
either attorney from developing any type of relationship with the petitioner. Thus, the petitioner
argues that he was precluded from developing a trusting relationship with the very people entrusted
with his life. He adds that counsels’ failure to consult with the petitioner prohibited them from
monitoring the petitioner’s mental health and prohibited the petitioner from being involved in his
defense. This lack of contact with the petitioner also impacted counsels’ relationship with the
petitioner’s mother, Sally Johnson. The fact that counsel failed to develop a relationship with Mrs.
Johnson denied counsel critical information regarding the family dynamics and the existence of the
petitioner’s mental illness.
The United States Supreme Court has stated that the right to counsel as guaranteed by the
Sixth Amendment to the United States Constitution does not include “the right to a meaningful
attorney-client relationship.” See Morris v. Slappy, 461 U.S. 1, 13 (1983). Indeed, the Court stated
that “no court could possibly guarantee that a defendant will develop this kind of rapport with his
attorney.” Id.
According to the petitioner, Mr. Mosier met with him on at least six (6) occasions and Mr.
Johnston met with the petitioner on at least four (4) occasions. The record reveals a large amount
of correspondence between the petitioner and counsel. A large portion of this correspondence
involved the petitioner’s questions regarding the possibility of entering a guilty plea and the
consequences of having the jury impose the sentence compared to having the judge impose the
sentence. Mr. Mosier acknowledged that, on one occasion, it was brought to his attention that the
petitioner was dissatisfied with their representation. Within several days of receiving this
information, Mr. Mosier visited the petitioner at Riverbend. The petitioner expressed no further
dissatisfaction with counsel until after a sentence of death was imposed by the trial court. Trial
counsel cited no other occasions where they had difficulty with the petitioner. Rather, both trial
counsel found the petitioner respectful and pleasant. At his guilty plea proceeding, the petitioner
informed the trial court that Mr. Mosier and Mr. Johnston had met with him and that he was satisfied
with their representation. Finally, the petitioner failed to testify at the post-conviction evidentiary
hearing. The petitioner has failed to demonstrate what he could have communicated to his attorney
that would have aided in his defense had counsel established a greater level of communication. See
Lloyd v. State, 669 N.E.2d 980 (Ind. 1996); cf. State v. Creech, 966 P.2d 1, 19-20 (Idaho 1998), cert.
denied, 526 U.S. 1147 (1999) (determining that it was not ineffective assistance of counsel where
counsel did not spend a lot of time with a client who was unwilling to listen to counsel’s advice).
Moreover, there is nothing demonstrating that the petitioner was prohibited from effective
communication with trial counsel. See Washington v. Meachum, 680 A.2d 262, 282 (Conn. 1996)
39
(holding that the right to assistance of counsel includes the right to communicate effectively with
counsel in preparation of one’s defense). Accordingly, he has failed to satisfy his burden of
establishing that he did not have a working relationship with counsel. Further, the petitioner has not
shown that he was prejudiced by his relationship with counsel or that had counsel spent more time
with him, he would not have pled guilty and insisted on going to trial.
The petitioner also faults counsel for failing to develop a relationship with the petitioner’s
mother. The record indicates, as does the trial transcript, that the petitioner’s mother was
interviewed by the defense team. Her testimony, as well as that of other witnesses, indicates that
Sally Johnson was defensive regarding claims against the petitioner and maintained his innocence,
faulting others for mistakes that he had made. Additionally, the petitioner has failed to assert that
his mother would have been more forthcoming had counsel “actively wooed” her. The petitioner’s
own post-conviction expert, Dr. Frank Einstein, described Mrs. Johnson as “very, very guarded.”
The petitioner has also failed to produce any family member, extended or otherwise, who provided
insight into his alleged mental illness. Accordingly, we conclude there is no evidence that counsel
would have gained insight into the petitioner’s alleged mental illness if they had more actively
pursued a relationship with the petitioner’s mother. Petitioner is not entitled to relief as to this claim.
4. Trial counsel’s advice to the petitioner to enter guilty plea and waive jury sentencing.
The petitioner’s trial was scheduled to commence on July 6, 1998. That morning, trial
counsel moved for and was granted a continuance until August 17, 1998. Later that afternoon, the
petitioner entered a guilty plea to first degree murder and waived jury sentencing in this matter. On
appeal, the petitioner asserts that this action was permitted absent “serious evaluation by his counsel,
thus, violating counsel’s duty to investigate the case and intelligently advise [his] client.” In support
of his claim, the petitioner makes several assertions, including: (1) the petitioner received “absolutely
nothing” in return for his pleading guilty; (2) trial counsel was misinformed in his belief that Judge
Blackwood was “philosophically opposed to the death penalty;” (3) trial counsel acquiesced to the
trial court’s in camera proceeding with its mitigation expert, during which Ms. Fenyes informed the
trial court that there was no significant mitigation evidence; and (4) trial counsel failed to attempt
to obtain a change of venue.
As noted supra, under Strickland, 466 U.S. at 687, the petitioner must establish deficient
representation and prejudice resulting from the deficiency. However, in the context of a guilty plea,
to satisfy the second prong of Strickland, the petitioner must show that “there is a reasonable
probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted
on going to trial.” Hill, 474 U.S. at 59; see also Walton, 966 S.W.2d at 55. Under the first prong
of the Strickland test, a defendant must show that his attorney “made errors so serious that counsel
was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Strickland,
466 U.S. at 687. Moreover, in evaluating an ineffectiveness claim, this Court must presume that the
“challenged action ‘might be considered sound trial strategy.’” Id. at 689 (quoting Michel, 350 U.S.
at 101). The petitioner bears the burden of overcoming this presumption. Id.
40
An attorney’s advice to his client to waive the client’s right to a trial by jury is a classic
example of a strategic trial judgment, “the type of act for which Strickland requires that judicial
scrutiny be highly deferential.” Hatch v. Oklahoma, 58 F.3d 1447, 1459 (10th Cir. 1995) (quoting
Green v. Lynaugh, 868 F.2d 176, 178 (5th Cir.), cert. denied, 493 U.S. 831 (1989) (per curiam). It
constitutes a conscious, tactical choice between two viable alternatives. Hatch, 58 F.3d at 1459
(citing Carter v. Holt, 817 F.2d 699, 701 (11th Cir. 1987)); United States v. Ortiz Oliveras, 717 F.2d
1, 3 (1st Cir. 1983) (holding that tactical decisions, whether wise or unwise, successful or
unsuccessful, cannot ordinarily form the basis of a claim of ineffective assistance of counsel). Thus,
for counsel’s advice to rise to the level of constitutional ineffectiveness, the decision to waive a jury
must have been “completely unreasonable, not merely wrong, so that it bears no relationship to a
possible defense strategy.” Hatch, 58 F.3d at 1459.
Regarding the decision to enter the guilty plea, it is beyond question that the evidence
establishing the petitioner’s guilt was overwhelming. Thus, Mr. Johnston recalled that they believed
that the petitioner’s guilty plea would be considered as a mitigating factor by the trial court. In
relation to waiving jury sentencing, Mr. Johnston testified that “we thought it would be in Mr.
Henderson’s best interest to have the court do the sentencing.” The opinion of the defense team was
that Judge Blackwood was personally opposed to the death penalty, and this opinion was influential
in guiding their advice to the petitioner. In hindsight, Mr. Johnston conceded that he “wish[ed] that
a jury would have been empaneled and that they would have fought the case on the merits.”
Mr. Mosier testified that the petitioner made inquiry as to the possibility of entering a guilty
plea in December 1997. The petitioner penned at least three (3) or four (4) more letters discussing
the advantages of entering a guilty plea. Mr. Mosier verified Mr. Johnston’s opinion that Judge
Blackwood was opposed to the death penalty. However, he testified that the decision of whether to
waive a jury trial was left entirely to the petitioner. Trial counsel advised him of the advantages and
disadvantages of waiving a jury in a capital sentencing trial. These factors included weighing the
circumstances of this particular case, which included the senseless killing of a law enforcement
officer. Mr. Mosier stated that the decision to waive jury sentencing and permit Judge Blackwood
to impose the sentence was the best chance that the petitioner had to avoid the death penalty. Again
is should be noted that the petitioner did not testify at the post-conviction evidentiary hearing, so
there is no direct evidence in this record that but for counsel’s alleged deficiencies he would not have
pled guilty or submitted his case to the trial judge for sentencing.
Prior to entry of the plea, the trial court extensively questioned the petitioner regarding his
decision to enter a guilty plea and to waive jury sentencing. This colloquy, which covers nearly
twenty (20) full pages of transcript, reveals that the trial court made every attempt to discern that:
(1) the petitioner was fully aware of and understood the nature of the charges and potential sentences
against him; (2) the petitioner understood that he had the right to plead not guilty as to all of the
charges and have a jury determine his guilt or innocence, explaining that a jury could find the
petitioner guilty of some, all, or none of the charges; (3) the petitioner understood that he could be
convicted of a lesser-included offense of the charged offense; (4) the petitioner understood that he
had the right to have a jury determine his sentence if he was convicted of first degree murder; (5) the
41
petitioner understood the nature and dynamics of a capital sentencing hearing; (6) the petitioner
understood the impact of waiving his right to have a jury impose sentence in his first degree murder
conviction; (7) the petitioner understood that, as part of the plea, the State would dismiss three
counts of the indictment charging the petitioner with felony murder; (8) the petitioner had discussed
the decision to enter a guilty plea and waive jury sentencing with his attorneys, (9) the petitioner was
satisfied with the representation provided him by appointed counsel and by the appointed experts;
and (10) the petitioner was not suffering from any mental illness or disorder. On at least five (5)
separate occasions, the trial court asked the petitioner whether his decision to waive his right to a
jury trial as to guilt and to waive his right to a jury trial as to capital sentencing were entered freely
and voluntarily. The record preponderates against any conclusion that the petitioner had no
knowledge as to the impact of his decision to enter guilty pleas and waive jury sentencing.
A defendant asserting that his counsel was ineffective must show more than that counsel’s
advice was merely wrong. He must also show that it was completely unreasonable so that it bears
no relationship to a possible defense strategy. See Hatch, 58 F.3d at 1459. Further, the petitioner
must show that but for trial counsel’s advice, he would not have pled guilty and would have insisted
on going to trial. There is no dispute that the evidence establishing the petitioner’s guilt as to the
first degree murder of Deputy Bishop was overwhelming. Also, the petitioner has failed to establish
that trial counsel’s advice regarding entry of a guilty plea was unreasonable.
We are left to address counsel’s advice regarding the decision to waive jury sentencing as to
the punishment of first degree murder. In People v. Montgomery, 736 N.E.2d 1025 (Ill. 2000), the
Illinois Supreme Court addressed whether counsel’s advice to a capital defendant to waive jury
sentencing was deficient performance. In Montgomery, defense counsel advised the defendant to
enter a guilty plea and waive jury sentencing in light of alleged assurances from the trial court that
a sentence of death would not be imposed. Montgomery, 736 N.E.2d at 1033-34. The defendant
entered guilty pleas to two (2) murders and, following a bench trial for sentencing, the trial court
imposed a death sentence. Id. at 1035. At the post-conviction evidentiary hearing, the trial judge
and his court reporter denied making any assurances that a sentence less than death would be
imposed upon defendant’s entry of guilty pleas. Id. at 1035-36. The post-conviction court rejected
counsel’s allegations that the trial judge had made ex parte assurances regarding a sentence less than
death. Id. at 1036. Regardless, the defendant stated that trial counsel had only informed him that
this particular judge had never before sentenced a defendant to death in a bench proceeding, and that
counsel therefore encouraged him to waive a jury for the sentencing hearing. Id. at 1037. This
assertion by trial counsel was later proven untrue. Id. at 1039. Notwithstanding the mistaken beliefs
and assertions of trial counsel, the Illinois supreme court found that trial counsel were not deficient
in their advice to the defendant. Id.; see also People v. Maxwell, 670 N.E.2d 679 (Ill. 1996)
(determining that trial counsel’s advice to waive jury for capital sentencing was not deficient). The
Illinois Supreme Court acknowledged that counsel’s belief that a judge was less likely than a jury
to impose the death penalty is a legitimate ground on which to base jury waiver in a capital
sentencing trial. Montgomery, 736 N.E.2d at 1038.
42
Similarly, in Fields v. Gibson, 277 F.3d 1203 (10th Cir. 2002), the Tenth Circuit addressed
whether counsel’s advice to waive jury sentencing constituted deficient performance. Trial counsel
believed that if the defendant accepted a blind plea that he would be sentenced to less than death.
Fields, 277 F.3d at 1209. Her belief was based upon several conversations with the trial judge. Id.
at 1209-10. Notwithstanding, there was no guarantee that the trial court would not impose a
sentence of death. Id. at 1210. Counsel then persuaded defendant, with the assistance of several of
his family members, to enter a guilty plea. Id. The trial court accepted the plea and after a bench
sentencing hearing imposed a sentence of death. Id. Defendant later attempted to withdraw his plea,
but his attempt was rejected by the trial court and the court’s decision was upheld on appeal. Id. at
1211. The Tenth Circuit determined that the defendant’s plea was voluntarily entered and that trial
counsel’s advice regarding the decision to waive jury sentencing did not constitute deficient
performance. Id. at 1214-15. In finding counsel’s advice not deficient, the court acknowledged that
“[t]he fact that the desired result was not reached in this case does not render defense counsel
ineffective.” Id. at 1216 (citing Fields v. State, 923 P.2d 624, 635 (Okla. Crim. App. 1996)).
Lawyers are supposed to draw conclusions from all the evidence in a case and recommend
what they think is in their clients’ best interest. Fields, 277 F.3d at 1216. “The Supreme Court has
recognized that because representation is an art and not a science, even the best criminal defense
attorneys would not defend a particular client in the same way.” Id. (quoting Waters v. Thomas, 46
F.3d 1506, 1522 (11th Cir. 1995) (en banc)). The record indicates that trial counsel made no
guarantee to the petitioner that the trial court would not impose a death sentence. The evidence
against the petitioner was overwhelming, as was the evidence of the statutory aggravating factors.
Moreover, it is clear from the colloquy at the guilty plea hearing that the petitioner was informed that
the trial court could impose a sentence of life, life without parole, or death. Thus, the petitioner
made a conscious decision between two (2) viable options. Without more, the petitioner has failed
to prove that counsel’s advice was completely unreasonable. He is not entitled to relief on this issue.
5. Trial counsel failed to adequately pursue a motion for change of venue.
Prior to trial, trial counsel filed a motion requesting a change of venue. At argument on the
motion, trial counsel argued that:
[D]ue to the extensive pretrial publicity; due to the nature of the case; the very fact
that it’s a death penalty case; due to the nature of Deputy Bishop . . . being well-liked
by everybody in this community. . . . We’ve attached copies of some newspaper
articles in the Fayette County paper. . . . But the one headline that I think compels
this Court to move this case from Fayette County is one attached, which is from the
Wednesday, May 7, 1997 Edition, front page of the Fayette County Review, and the
headlines show the photograph of Deputy Bishop. It shows a picture of a multitude
of law enforcement vehicles, going . . . to the funeral home. . . . And the headline
says this: “County Mourns Loss of Deputy Bishop.” . . . I just don’t feel like that Mr.
43
Henderson can get a fair trial in Fayette County.
Mr. Mosier further related other media reports detailing the petitioner’s history of escape attempts.
The trial court denied the motion, reserving final ruling on the matter until the conclusion of the voir
dire process. The trial court noted that, if at the conclusion of voir dire of the venire that it appeared
that it would be difficult to get a jury in this case, the trial court would then move the case.
Again, counsel sought a change of venue and the trial court reserved final determination until
it was shown that it would be impossible to impanel an impartial jury. The petitioner entered an
informed and counseled guilty plea prior to the trial court’s ruling on the motion to change venue.
The petitioner has waived any claim regarding change of venue by virtue of his voluntary guilty plea.
See State v. McKinney, 74 S.W.3d 291, 306 (Tenn. 2002); State v. House, 44 S.W.3d 508, 513
(Tenn. 2001); See also Recor v. State, 489 S.W.2d 64, 69 (Tenn. Crim. App. 1972) (holding valid
please of guilty waives issue of change of venue). The petitioner has failed to show that further
efforts by counsel in seeking a change of venue would have created a situation where he would not
have entered a guilty plea. Accordingly, the petitioner has failed to meet the standard for ineffective
assistance of counsel in the guilty plea setting. Therefore, he is not entitled to relief as to this claim.
6. Trial counsel failed to inform themselves of developments in capital litigation.
The petitioner next asserts that trial counsel were deficient by their failure to stay abreast of
developments in capital representation. The petitioner argues that trial counsel’s failures impaired
their ability to work with experts properly and ensure that the experts were performing the necessary
tasks. In support of his position, the petitioner asserts that both Mr. Mosier and Mr. Johnston
admitted their deficiency regarding working with experts. The petitioner asserts that this deficiency
resulted in the loss of vital mitigation evidence. As stated earlier, issues addressing the failure to
present mitigation evidence will be addressed as such. Our review as to this claim is merely as to
whether Mr. Mosier’s and Mr. Johnston’s failure to inform themselves of developments in capital
litigation constituted deficient performance.
The record reflects that Mr. Mosier had previous experience in capital litigation.
Additionally, his testimony established that he was familiar with the use of experts and that the
experts in this matter were hand-selected by him. The petitioner has failed to make specific
allegations referencing the developments in the area of capital litigation of which trial counsel was
unaware. Rather, the petitioner relies upon alleged deficiencies in the area of mitigation proof. We
refuse to adopt a per se finding of deficiency based upon an allegation of counsel’s lack of
knowledge regarding recent developments in the law, especially in light of the absence of any
reference by the petitioner of what legal developments counsel was allegedly unaware. The
petitioner is not entitled to relief as to this claim.
44
7. Trial counsel failed to develop and introduce mitigation evidence.
The petitioner asserts that trial counsel failed to adequately utilize the services of a mitigation
specialist to prepare a social history and timeline relating to the petitioner’s life. In support of his
allegations, the petitioner relies upon the testimony of his expert, Dr. Frank Einstein, who testified
that Ms. Fenyes, the mitigation specialist, spent less than 38.5 hours working on mitigation from the
time of her appointment until June 30, 1998. Dr. Einstein calculated that Ms. Fenyes spent an
additional 28.9 hours on the case from June 30, 1998, until July 6, 1998, the date of the petitioner’s
guilty plea. Dr. Einstein testified that Ms. Fenyes worked an additional 43.5 hours between the date
of the guilty plea on July 6 and the sentencing hearing held on July 13.
The petitioner contends that he has established his assertion through the testimony of lay
witnesses and the introduction of medical records. He argues that evidence existed that would have
raised serious issues about the existence of a mental disease or defect and would have provided
significant mitigation. Specifically, the petitioner asserts that the need for further psychiatric
evaluation would have been triggered had the defense team secured information relating to the
history of mental illness in his extended family members and the petitioner’s behavior during the two
(2) years prior to the murder of Deputy Bishop. In this regard, the petitioner relies upon the
diagnosis of Dr. Kenner that the petitioner suffers from bipolar disorder 2.
At the sentencing hearing, the defense team presented the testimony of four (4) witnesses.
The petitioner testified that he was a twenty-four-year-old high school graduate and that he was the
eldest of five (5) sons. Trial counsel introduced evidence of the petitioner’s achievements in both
elementary and high school, including fourteen (14) achievement awards from Central Elementary
School during the period between 1985 and 1988 and two (2) awards related to the petitioner’s
45
participation in the Fayette County Athletic League.1 The petitioner also testified to being very
involved in extracurricular activities during high school, including the following: basketball team,
4-H Club president, student body president, track and baseball. Miles Wilson, the principal of
Fayette-Ware High School, further testified that the petitioner was an officer in the library club and
a member of the Esquire club. He participated both as an athlete and a coach in the Fayette County
Athletic League. The petitioner’s talent as an artist was also explored, emphasizing that he had won
a contest naming Sonic Restaurant’s newspaper and drawing the cover for the paper and winning
first place in an art contest with his drawing of the Fayette County Courthouse. The petitioner also
testified that he drew the logo and designed the window for Somerville Electronics.
When testifying, the petitioner expressed his remorse and apologies to Deputy Bishop’s
family and to the Fayette County Sheriff’s Department. He stated that, while incarcerated in
Arkansas, he asked his mother to inquire as to obtaining him psychological help because “things that
I was going through mentally wasn’t normal.” He stated that his mother contacted the sheriff but
that nothing was done.
The petitioner’s high school principal, Miles Wilson, stated that the petitioner was respectful
to faculty members and that he had positive interaction with the other students, with the exception
of two incidents. Mr. Wilson stated that the petitioner’s mother was in denial that the petitioner
could do anything wrong.
The petitioner’s mother, Sally Johnson, testified that she was fifteen (15) years old when the
petitioner was born. She did not marry the petitioner’s father. She did not recall the petitioner
having any problem with other students during high school, although she remembered one incident
when the petitioner left the campus with his girlfriend. She also vaguely recalled the petitioner
1
These awards include the following:
May 1988 Outstanding Speaker
May 1988 Honorable Mention Math
May 1988 High Achievement Reading and Spelling
February 1988 Fayette County Spelling Bee
May 1987 Honor Roll History
May 1987 Academic Achievement
May 1987 Honorable Mention Math
May 1987 Highest Academic Average
May 1987 Outstanding Performance in Basketball
May 1986 Honor Roll
May 1986 Highest Academic Average in Spelling
May 1986 Highest Academic Average
May 1986 Honorable Mention Math
June 1985 Great Helper
June 1985 Honor
August 1990 First Place Coach
August 1991 Fayette County Athletic League Award
46
requesting psychological treatment. She could not recall what happened. Mrs. Johnson blamed the
petitioner’s girlfriend, Natonya Cobb, for his behavior.
Dr. Lynn Zager, a clinical psychologist, testified regarding her meetings and evaluations of
the petitioner. She diagnosed the petitioner with a dissociative state, narcissitic traits and antisocial
traits.
Trial counsel testified at the post-conviction hearing that they presented all of the mitigating
evidence that they had collected. The petitioner now alleges that trial counsel was ineffective for
failing to present a complete mitigation profile. His complaints include counsel’s: (1) failure to
interview extended family members to reveal a family history of mental illness; (2) failure to seek
additional psychological evaluation to reveal a diagnosis of bipolar disorder; and (3) failure to
complete investigation to sufficiently indicate marked change in behavior, including (a) a change in
sleep patterns, (b) the fact that his victims were people that he knew, (c) exhibitions of depression,
and (d) indication of religious ideation.
In the context of capital cases, a defendant’s background, character, and mental condition are
unquestionably significant. “[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.” California v. Brown, 479 U.S. 538, 545 (1987); see Eddings
v. Oklahoma, 455 U.S. 104, 113-15 (1982); Lockett v. Ohio, 438 U.S. 586, 604-05 (1978) (plurality
opinion); Zagorski v. State, 983 S.W.2d 654, 657-58 (Tenn. 1998); Goad, 938 S.W.2d at 369. The
right that capital defendants have to present a vast array of personal information in mitigation at the
sentencing phase, however, is constitutionally distinct from the question whether counsel’s choice
of what information to present to the jury was professionally reasonable.
There is no constitutional imperative that counsel must offer mitigation evidence at the
penalty phase of a capital trial. Nonetheless, the basic concerns of counsel during a capital
sentencing proceeding are to neutralize the aggravating circumstances advanced by the State and to
present mitigating evidence on behalf of the defendant. Although there is no requirement to present
mitigating evidence, counsel does have the duty to investigate and prepare for both the guilt and the
penalty phase. See Goad, 938 S.W.2d at 369-70.
To determine whether or not trial counsel was ineffective for failing to present mitigating
evidence, the reviewing court must consider several factors. First, the reviewing court must analyze
the nature and extent of the mitigating evidence that was available but not presented. Goad, 938
S.W.2d at 371 (citing Deutscher v. Whitley, 946 F.2d 1443 (9th Cir. 1991); Stephens v. Kemp, 846
F.2d 642 (11th Cir. 1988); State v. Adkins, 911 S.W.2d 334 (Tenn. Crim. App. 1994); Cooper v.
State, 847 S.W.2d 521, 532 (Tenn. Crim. App. 1992)). Second, the court must determine whether
47
substantially similar mitigating evidence was presented to the jury in either the guilt or penalty phase
of the proceedings. Id. (citing Atkins v. Singletary, 965 F.2d 952 (11th Cir. 1992), cert. denied, 515
U.S. 1165 (1995); Clozza v. Murray, 913 F.2d 1092 (4th Cir. 1990), cert. denied, 499 U.S.
913(1991); Melson, 722 S.W.2d at 421). Third, the court must consider whether there was such
strong evidence of applicable aggravating factor(s) that the mitigating evidence would not have
affected the jury’s determination. Id. (citing Fitzgerald v. Thompson, 943 F.2d 463, 470 (4th Cir.
1991), cert. denied, 502 U.S. 1112 (1992)); Elledge v. Dugger, 823 F.2d 1439 (11th Cir. 1987), cert.
denied, 485 U.S. 1014 (1988)).
It appears that the crux of the petitioner’s complaint is the failure to introduce evidence
regarding the alleged existence of a bipolar type 2 mental illness. The existence of such a mental
illness would have been apparent, suggests the petitioner, had trial counsel discovered a family
history of mental illness and evidence of the petitioner’s erratic criminal behavior. Dr. Zager failed
to diagnosis the petitioner with anything more severe than a personality disorder. The petitioner
blames this diagnosis on trial counsel’s failure to gather sufficient information. The petitioner
ignores the fact that Dr. Zager’s diagnosis remained the same even after reviewing the additional
information. Moreover, the petitioner’s own post-conviction witness, Dr. Auble, arrived at
essentially the same diagnosis as Dr. Zager. While Dr. Kenner eventually diagnosed the petitioner
as Bipolar Type 2, his diagnosis would have necessitated the introduction of evidence regarding the
petitioner’s escalating history of violent crime, which is a tactic with considerable risk. The
petitioner’s claim, at best, amounts to an assertion that counsel should have obtained an expert who
would have diagnosed the petitioner as Bipolar Type 2. The Constitution does not require attorneys
to “shop around” for more favorable expert testimony. Poyner v. Murray, 964 F.2d 1404, 1419 (4th
Cir. 1992). Additionally, the necessary introduction of the petitioner’s violent criminal behavior
could have undermined this mitigating factor and outweighed any beneficial mitigating impact of
the mental illness evidence. This “undiscovered” mitigation evidence raised by the petitioner was
correctly characterized by the post-conviction court as being a “double-edged sword.”
Given the strength of the proof of the aggravating circumstances relied upon by the State, the
mitigation evidence that was presented at sentencing and the possible negative impact of the
“undiscovered” mitigation evidence, we conclude that had this information been presented to the
court there is little reason to believe the trial judge would impose a sentence other than death. The
petitioner is not entitled to relief on this basis. Indeed, in this case, unlike the situation where a jury
imposes a death sentence, we are not left to speculate to some degree as to the effect this evidence
might have had on the sentencer. The sentencer in this case, the trial judge himself, found this
evidence would not have altered the result of the sentencing hearing.
V. Appellate Counsel was Ineffective
Michael Robbins was appointed to represent the petitioner on direct appeal of his sentence.
The petitioner implies that Mr. Robbins was not qualified to pursue a direct appeal because this was
48
Mr. Robbins’s first capital appeal. In support of his allegation, the petitioner refers to Mr. Robbins’s
failure to raise any issue other than proportionality. He states that Mr. Robbins failed to raise issues
raised in pre-trial motions, specifically those challenging the constitutionality of the death penalty.
He asserts that Mr. Robbins should have made the following challenges on direct appeal: (1) the
indictment should be dismissed due to illegality and unconstitutionality of Tennessee Code
Annotated sections 39-13-205 and 39-13-206; (2) the death penalty violates article I, section 19 of
the Tennessee Constitution; (3) the State failed to declare publicly the standards which it applies in
determining whether to seek the death penalty of any individual defendant; (4) the trial court erred
in denying his motion for discovery of dispositions of all first degree murder prosecutions in the
State of Tennessee; (5) the death penalty statute violates the Eighth and Fourteenth amendments of
the United States Constitution; (6) the Tennessee death penalty statute impinges upon the petitioner’s
right to life; and (7) Tennessee’s death penalty statute is unconstitutional in that it involves torture.
The petitioner also complains that Mr. Robbins failed to competently argue the only issue raised on
appeal, proportionality. Finally, the petitioner asserts that Mr. Robbins failed to follow through with
“the business of the letter,” relating to several attempts made by the petitioner to withdraw his guilty
plea.
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). Criminal appellate work constitutes
approximately forty percent (40%) of Mr. Robbins’ legal practice. He attended national habeas
seminars focusing on capital cases. At the post-conviction hearing, Mr. Robbins asserted that he
considered the proportionality issue the only viable issue for appellate purposes.
A petitioner alleging ineffective assistance of appellate counsel must prove both 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. See e.g., Smith v. Robbins, 528
U.S. 259, 285 (2000); Aparicio v. Artuz, 269 F.3d 78, 95 (2nd 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 v. Morrison, 477 U.S. 365, 375 (1986)).
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 (citing United States v. Dixon, 1 F.3d 1080, 1083
(10th Cir.1993)). Additionally, ineffectiveness is very rarely found in cases where a defendant
asserts that appellate counsel failed to raise an issue on direct appeal, primarily because the decision
of what issues to raise is one of the most important strategic decisions to be made by appellate
counsel.
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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,
“significant 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.” Id.
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 the Sixth Circuit Court of
Appeals in evaluating appellate counsel’s failure to raise issues.2 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?
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)).
Again, the petitioner complains that appellate counsel failed to raise issues concerning the
constitutionality of the death penalty, for example: (1) the death penalty is arbitrarily imposed; (2)
the sentencer does not have unlimited discretion not to impose death; (3) the death penalty is not
imposed fairly; (4) the death penalty statute impinges upon the petitioner’s fundamental right to life;
and (5) the death penalty statute is unconstitutional because it imposes torture. These are essentially
the same arguments that we have already determined that the petitioner waived for failure to assert
them on direct appeal. These issues have been repeatedly rejected by the appellate courts of this state
on numerous occasions. See e.g., State v. Odom, 137 S.W.3d 572, 600 (Tenn. 2004) (determining
2
Our supreme court did acknowledge, however, that the Sixth Circuit’s final factor addresses the ultimate
issue under the first prong of Strickland and is therefore not helpful in deciding whether appellate counsel’s
performance was deficient. Id. at 888-89.
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that the death penalty is not unconstitutional under international law); State v. Holton, 126 S.W.3d
845 (Tenn. 2004) (holding that a sentence of death does not violate due process where the indictment
fails to include language of the statutory aggravating circumstances that elevate the offense to capital
murder); State v. Hines, 919 S.W.2d 573, 582 (Tenn. 1995), cert. denied, 519 U.S. 847 (1996)
(concluding that unlimited discretion is vested in the prosecutor and that the death penalty was not
imposed in a discriminatory manner). Further, the petitioner asserts no argument and cites no new
authority requiring reversal of this precedent and does not show how he was prejudiced by counsel’s
failure to raise these issues. Mr. Robbins testified that he did not raise these issues on appeal
because the law as to the claims was well-settled. Mr. Robbins was experienced in appellate matters
and his decision to omit these issues and focus upon what he considered the single meritorious issue
was reasonable.
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 v. State, 903 S.W.2d 594, 596-97 (Tenn. 1995). Mr. Robbins, an experienced appellate
advocate, focused on the only issue he felt had merit. See generally Cooper, 849 S.W.2d at 757
(determining that it is standard practice for advocates to weed out weak arguments in order 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, 903 S.W.3d at 597. Application
of the Carpenter factors indicate that counsel’s decision was not deficient. Accordingly, no prejudice
resulted. The petitioner is not entitled to relief as to his claim that appellate counsel was ineffective.
We proceed to address the petitioner’s claim that appellate counsel was deficient for failing
to “follow through with the business of the letter.” In this allegation, the petitioner asserts that he
filed various letters and pleadings with the trial court after the notice of appeal was filed. Appellate
counsel, Mr. Robbins, believed that these pleadings amounted to an attempt to withdraw his guilty
plea. Mr. Robbins filed a motion in this Court seeking remand to the trial court. This Court denied
the motion and no review by the Tennessee Supreme Court was sought. Mr. Robbins stated that,
upon further review, “the decision of the Court of Criminal Appeals was imminently sustainable
because of the peculiar posture the record was in. And that is why I did not file a Rule 11.”
No evidence regarding these subsequent pleadings was introduced at the post-conviction
evidentiary hearing other than Mr. Robbins’s testimony. This Court, however, is able to take judicial
notice of its own records. Looking at this Court’s records, it appears that the petitioner filed a pro
se motion for remand on October 14, 1998. The substance of this motion reiterated the petitioner’s
dissatisfaction with counsel’s advice and service. This motion was denied by this Court on
November 3, 1998. On December 28, 1998, Mr. Robbins filed a motion to remand to the trial court
for the purpose of developing a record regarding pleadings by the petitioner indicating that he wished
to withdraw his guilty pleas. This Court denied the motion by order entered January 27, 1999.
Given the procedural posture of the case at this point, we, as Mr. Robbins, conclude that further
review would have been futile. Accordingly, we conclude that Mr. Robbins’s decision not to seek
further review of this Court’s decision was reasonable. The petitioner is not entitled to relief as to
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this claim.
VI. Post-Conviction Court Erred by Excluding Testimony of Kelly Gleason
Kelly Gleason was called by post-conviction counsel as a witness. Ms. Gleason a former
employee of the Capital Division of the Tennessee District Public Defender’s Conference, was to
testify as to the standards of practice expected of defense attorneys in capital cases. The post-
conviction court refused to permit Ms. Gleason to testify. However, the court did grant the
petitioner’s request to submit a proffer of Ms. Gleason’s testimony. That proffer was submitted in
writing on May 7, 2003, in the form of a five-page memorandum of law regarding the need for the
evidence, a thirty-three (33) page affidavit of Ms. Gleason, and one hundred-twenty-nine pages of
attachments. By order of June 19, 2003, the trial court found that the proffer of evidence from Ms.
Gleason would be of assistance and admitted it into evidence in the post-conviction proceedings.
We acknowledge that both parties have cited to cases from our sister jurisdictions, both
federal and state, supporting their respective positions regarding the admissibility of a legal expert
on capital case representation. Interestingly, both parties apparently overlook the legal standard for
reviewing the admissibility of an expert’s testimony.
“The admissibility of expert testimony, the qualification of expert witnesses, and the
relevancy and competency of expert testimony are matters which rest within the sound discretion of
the trial court.” State v. Harris, 839 S.W.2d 54, 69 (Tenn. 1992). A witness who is qualified in a
particular field may testify in the form of an opinion if the specialized knowledge of the witness will
substantially assist the trier of fact in understanding evidence or determining a fact at issue. Tenn.
R. Evid. 702. A trial court’s ruling will not be overturned on appeal absent a clear abuse of
discretion in admitting or excluding the expert testimony. State v. Stevens, 78 S.W.3d 817, 832
(Tenn. 2002). In the present case, the post-conviction judge stated that he had considerable
experience in the area of capital cases and excluded the testimony of Ms. Gleason. The court,
however, permitted a proffer by the petitioner. Subsequently, the post-conviction court entered an
order, specifically finding that the proffer would be of assistance in the court’s determination of the
post-conviction claims. There is no indication that the post-conviction court was not qualified as
a legal expert to render findings and conclusions of law without Ms. Gleason’s testimony.
Moreover, it appears that the post-conviction judge did consider the petitioner’s comprehensive
proffer regarding Ms. Gleason’s proposed testimony. We conclude that the post-conviction court
did not abuse its discretion in prohibiting Ms. Gleason’s testimony. The petitioner is not entitled to
relief as to this issue.
Conclusion
52
After a thorough review of the record and the law applicable to the issues raised herein, we
find that the petitioner has failed to prove the allegations contained in his post-conviction petition.
The judgment of the trial court is affirmed.
___________________________________
JERRY L. SMITH, JUDGE
53