*1 Declaratory Department suf- petition the Petition for Order were to first file a with the regarding declaratory the stat- under Code Annotated sec- for a order ficient Tennessee Thus, may 4-5-223, question. only ute in the Court not aid Petitioner tion it would declaratory judg- declaratory an action for attempt obtaining entertain a Davis’ peti- under section 4-5-224 either.- judgment complainant ment must because the agency petitioners Shelton and tion the order, chancery After court entered its attempt to file a Chadwick did not even a enti- copy Petitioners filed a document § declaratory 4- petition for order. See id. Declaratory Peti- tled “Petition for Order.” 224(b). Second, opinion is the of this it chancery court tioners contended that 5— petition not court that Petitioner Davis did judgment on this amend its based should requested a de- proper agency when he they complied had with because document Sundquist. claratory order from Governor 4-5-223.- Code Annotated section Tennessee Thereafter, Finally, give not the Governor Petitioners did motion. The court denied the sixty required days within which set timely appeal. a notice of Petitioners filed hearing. a case petition for contested affirm. We Declaratory Order is dated The Petition for Proce Administrative Uniform February Petitioners filed their provides jurisdictional prereq dures Act April chancery on 6 petition court agency’s seeking review of an uisites for Thus, agency has there is no which 1995. declaratory judgment pro through a actions declaratory as a order is refused issue declaratory judgment “A shall not ceeding. required by sec- Tennessee Code Annotated concerning validity appli or be rendered 4-5-224(b). tion statute, cability a rule or order unless complainant petitioned agency for a has Therefore, judgment of it results that the declaratory agency has affirmed, order and the refused chancery the cause declaratory Tenn. Code necessary pro- to issue a order.” for further is remanded 5—224(b)(1991). § proper agency Ann. ceedings. Costs on are taxed 4— declaratory petition Davis, which to file a for with David petitioners/appellants, Monroe primary jurisdic which has Tracey order is one Shelton Chadwick. rule, statute, at issue. tion over the order 4-5-223(a). addition, agency § id. KOCH, JJ., See concur. CANTRELL and to have refused to issue declara is deemed petition for a
tory if it fails to set the order sixty days of hearing within
contested case 4-5-223(c). §
receipt petition. Id. seeking judicial agency’s review of the
Before
action, petitioner attempt to resolve must through agency grievances proce
his or her declaratory pre judgment action is A
dures. directly proceeds petitioner if the mature Appellant, Leroy HARRIS, Edward seeking an adminis judicial without review trative determination. Tennessee, Appellee. STATE case, Petitioners did present In the prior to the dismissal that allege not Tennessee, Appeals of Court Criminal declaratory agency sought order from at Knoxville. jurisdiction over primary which exercised Feb. 40-20- Annotated section Tennessee Code addition, the “Petition for Declarato 112. In Appeal Denied Permission satisfy requirements ry Order” fails 3,1997. Supreme Court Feb. 4-5- Annotated section Code Tennessee 224(b) First, Mon following reasons. for the only complainant named is the
roe Davis Declaratory if Order. the Petition *5 Mehler, Nash- Brock
Paul J. Morrow ville, Appellant. for Burson, Attorney General Charles W. Chevalier, Assistant Reporter, S. Christian Division, General, Justice Attorney Criminal Schmutzer, Nashville, Jr., At- District Al C. (7) General, Vance, jury from torney prevented District Richard Asst. Whether General, Sevierville, by offenses Attorney Appellee. considering lesser included for instruction; sequential
the use of OPINION (8) penalty Tennessee’s death Whether HAYES, Judge. constitutional. statute is Harris, appellant, Leroy alias Edward record, reviewing the we affirm the After Eddie,” post-conviction relief “Tattoo seeks post-conviction court. judgment of the
from his convictions of one count of armed robbery premeditated counts of first two BACKGROUND FACTS murder, degree entered Court the Circuit Sep- appellant was of the convicted County May, and the con Sevier 13, 1986, employees murders of two tember imposition of life sequent of one sentence Gatlinburg. Rocky Top Village Inn imprisonment and two sentences of death Kimberly murders were charged Also electrocution. The convictions and sentences Joseph De- Pelley, appellant’s girlfriend; appeal by were affirmed on the Tennessee Modica, penitentiary acquain- Georgia state Harris, Supreme Court. State v. transvestite, Ru- appellant; and tance of the (Tenn.1992), Ashley At Doby, fus also known as Silvers. 1368,122 113 S.Ct. L.Ed.2d 746 key for the sources of evidence two 10, 1993, August On filed a co-defendant, testimony were the State petition relief. No- On DeModica, implicated which 29, 1993, post-conviction court vember murders, describing mur- and a letter hearing conducted a on the merits of the ders, near the phone recovered booth appellant’s petition. At the conclusion of the Valley, Maggie North Car- police station *6 post-conviction the court denied the olina. petition. judgment A written of dismissal that, trial, Joseph DeModica testified on At 6,1993. was filed on December murders, he, Doby, Pelley, day and the of the appellant following eight raises the Following Gatlinburg. appellant drove to the appeal: issues on Smoky Mountains Na- a visit to the Great (1) appellant Whether the received the ef- Park, Rocky group drove to the tional the at trial fective assistance of counsel the Village Inn. DeModica observed Top appeal; and on victims, Pelley, appellant, and one (2) post-conviction court Whether the Hill, the motel room which Melissa enter by denying appellant’s mo- erred the body subsequently discovered. Hill’s was parte hearing sup- and tion for an ex Pelley knife in her hand. DeModi- carried a services; port He heard parking the lot. ca remained in (3) the court Whether Troy security guard, A several screams. denying discretion in the abused its arrived, ap- Valentine, the but encountered recuse; appellant’s motion to out of the motel room. pellant, who had come began fight. appellant and the
(4) Valentine post-conviction court Whether room, took Pelley out of the motel also came denying abused its discretion him over flashlight, and struck guard’s continuance; appellant’s motion for a Pelley appellant and it. The the head with (5) at tri- presented the evidence Whether motel room. dragged into the then Valentine the ele- al was sufficient to establish gunshots. He testified two DeModica heard premeditation and delibera- ments of Pelley again that, appellant and when the instructions to tion and whether room, if they as looked came out of the motel delibera- jury premeditation on and paint. red sprayed them with someone had jury; tion misled the to corrobo- (6) presented evidence felony murder The State the use of the Whether testimo- aspects of DeModiea’s rate various circumstance violated the aggravating knife Middlebrooks; respect example, with ny. For holding in State However, hand, sufficiency of the reviewing the Pelley’s observed that DeModica appeal, supreme court car- evidence on direct appellant acquaintance testified overwhelming evidence hunting knife remarked that “the knife and a a lock-blade ried Har jury_” each victim edge. supported the verdict awith serrated ris, post- Similarly, deep neck wound from serrated S.W.2d at suffered observed, proof shot in the had also been “And knife. Each victim conviction proof of blood at the to come The massive amount in. The continued head. came injuries in, in- the number of crime scene and in.... This evidence as it rolled was with were consistent upon each victim overwhelming.” flicted appellant description of the DeModica’s penalty phase of the State At Finally, De- Pelley the murders. following appellant’s prior convictions introduced the been knew that had Modiea Valentine involving person and other- violence to flashlight. This information clubbed with his during proof introduced relied wise would to the media and was not released initially guilt phase.1 Defense counsel only the killers. have known been proof no dur- indicated that would offer letter, Valley Maggie which was found However, phase. following a ing penalty murders, days also contained three after chambers, judge the trial conference with only the killers would have information which appellant on his own behalf. testified ex- examiner known. The State’s document years old that he stated DeModica, Pelley, and as the Silvers cluded in- grew up North Carolina. He testimony fur- Expert writer of letter. completed only he formed the had strong indications that the ther established neither grade in school and could third girl- A former appellant wrote this letter. his admitted that diffi- nor write. He read Jones, Antonia identi- appellant, friend of the largely from lack culties in school stemmed handwriting Maggie Valley fied the further testi- of motivation. The being appellant. that of the letter as that, relationship during youth, his fied his troubled, that he parents with his arrest, made a Following age of 14. The left home at the to Tennessee Bureau of series of statements guilty pled he he admitted when was agents Georgia law en- Investigation spent Georgia and several offenses Initially, forcement officers. years Georgia penitentiary. While However, in the. Gatlinburg. going denied *7 in- appellant became penitentiary, compan- subsequently that he and his stated boxing program in the Golden Gloves volved Pigeon eaten in restaurant ions had appellant The tes- trophies. and won several that, Pelley Forge, were in and while he and by prior two children Silvers, that he has tified Gatlinburg with DeModica and marriage, he visited on occasion. whom purchased Pelley. had a chain for He denied conclusion, jury spare his he asked implied killings participating in the and life. DeModica and Silvers were murderers. death, punishment of guilt imposed The testify at the appellant did not circumstances, defense, finding aggravating three Essentially, his
phase of his trial. (7) 39-2-203(i)(2), (5), § and Ann. through appellant’s state- Tenn.Code as advanced arrest, (1982),2 any mitigating circum- outweigh police following ments was stances. any participation a denial of the crime. heinous, (5) especially atro- prior murder 1. The convictions were for offenses cious, torture or rape, aggravated robbery, aggravated it involved sod- or cruel in and mind; omy. depravity (7) the de- committed while The murder was 39-2-203(i)(2), (5), (7) § committing,
2. Tenn.Code Ann.
engaged
or was an
fendant
accomplice
provide
of,
as follows:
at-
or was
commission
commit,
fleeing after commit-
tempting
or was
(2)
convicted of
previously
The defendant was
commit,
degree
any
ting
murder, arson,
attempting
first
felonies,
present
other than the
one or more
larceny,
robbery, burglary,
rape,
charge,
use
of vio-
which involve the
or threat
person;
lence
challenged
INEFFECTIVE ASSISTANCE
counsel’s
conduct on the facts of
case,
OF
particular
COUNSEL
viewed as of the time of
Strickland,
counsel’s conduct.”
at
466 U.S.
a claim
When
of ineffective assis
689-690,
Finally,
at
S.Ct.
2065-2066.
we
raised,
tance of counsel is
the burden is
per
note that defendants are not entitled to
(1)
per
to show that counsel’s
representation, only constitutionally
fect
ade
(2)
formance was deficient and
that the defi
State,
quate representation. Harries v.
No.
performance prejudiced
cient
the defense.
833,
(Tenn.Crim.App.
at
WL
687,
Washington,
668,
Strickland v.
466 U.S.
Knoxville,
29, 1990),
August
perm,
appeal
(1984).
2052, 2064,
104 S.Ct.
State denied, Crim.App.1983), perm. appeal to I. Phase Guilt (Tenn.1984). Moreover, findings of “[t]he by the trial fact and conclusions of law made Sexton testified at evidentiary hearing are afford that, court after an preparation guilt for the hearing verdict; this court weight of a scene, ed phase of the he visited the crime trial judgment will not aside the witnesses, set potential obtained interviewed and court unless the evidence contained concern- discovery information and reviewed findings.” against its preponderates record handwriting exemplars autopsy re- ing (Tenn. Dick, State v. proof Additionally, hearing es- ports. (Tenn. perm. appeal Crim.App.), pre- trial counsel conducted tablished Harries, 1993); appel see also No. 833. The all of the State’s materi- trial interviews with preponder lant contends that the evidence Final- on at least one occasion. al witnesses against judgment entered ates great ly, spent he deal Sexton testified that post-conviction court that the ease, on between Janu- of time afforded effective assistance counsel. very few ary May of “there were portion post-conviction hearing, appel- days that at least some At the went Sexton, dealing day spent of the some lant called Charles one wasn’t with of the attorneys. appointed Strand, Benjamin lant’s trial Sexton was God- issue on case.” immediately fol- represent partner, who assisted in former law dard’s lowing arraignment death, in Decem- testified after Goddard’s ber, prac- has licensed to 1987.3 Sexton been spent great of time also deal Goddard At law the time tice in this state since 1979. fact, and, in devoted appellant’s case on the serving he was as the appointment, of his exclusively prior to trial the two weeks pro- attorney indigent for a local defender preparation. trial gram by private act for Sevier Coun- created Nevertheless, argues that tri- ty. Additionally, active in remained Sexton guilt phase performance al counsel’s practice partner as in a private of law a range compe- the trial was not within He criminal local firm. had an extensive law Specifically, attorneys. tence demanded and, averaging practice, failed defense counsel he contends that twenty twenty-five felony each term cases authorship reasonably investigate the appointment to this of court. Before properly Valley note and failed Maggie case, represented ten or more Sexton had consequences of advise degree of charged with some defendants handwriting provide additional his refusal to homicide, including charged cap- several with asserts exemplars. Shortly degree after the ital first murder.4 investigate adequately that counsel failed represent ap- appointment of Sexton to background and DeModica’s the co-defendant its intention to pellant, the announced State Fi- autopsy crime scene evidence. trial court penalty, and the seek the death (cid:127) per- nally, counsel’s that defense contends as co-counsel. William Goddard appointed *9 counsel failed formance was deficient an that Goddard was record reflects testimony concerning Dr. object to Blake’s lawyer in both the civil and trial experienced 16, testify post-conviction at the did not December 5.Goddard arrested on 3. The was 1987, Atlanta, Georgia. acci- in an automobile as he was killed comple- eight days approximately after the dent the case before us is 4. indicates that The record appellant’s trial. tion capital ver- to culminate the first case during County this centu- death in Sevier dict of reasonably the victims’ opinions, wounds and failed to move to counsel could determine suppress statements to the possibility obtaining a favorable police.6 We conclude that the has expert opinion outweighed by the risk was carry proof, failed to his burden of and that merely provide that counsel would the State preponderates the evidence in the record expert opinion. an adverse See Dees v. Cas favor judgment. (8th court’s 452, Cir.), piri, 904 F.2d cert. de nied, 436, U.S. S.Ct. respect investiga With to counsel’s (1990). L.Ed.2d 419 letter, Maggie Valley initially tion of the we [Strategic thorough choices after in- made afforded, note that the at the vestigation of law and facts relevant level, trial opportunity to exonerate him plausible options virtually unchallenge- are letter, Maggie Valley self as the author of the able; strategic choices made after less Indeed, opportunity rejected. which he complete investigation than are reasonable Court, Supreme appeal, Tennessee on direct precisely pro- extent reasonable observed: judgments support fessional the limitations It is clear from the record that from at words, investigation. In on other counsel February least late three months duty investiga- has a to make reasonable trial, before the defendant knew that the tions or to make a reasonable decision that seeking handwriting samples State was investigations particular makes unneces- consulting expert. and was an The Defen- case, sary. any In partic- ineffectiveness significance dant ... was aware of investigate ular decision not to must be handwriting issue. When directly assessed for reasonableness all samples, ordered additional the Defendant circumstances, applying heavy measure comply. refused to judgments. of deference to counsel’s Harris, appel 67. 794, 107 Burger Kemp, lant perfor cannot now attribute to counsel’s (1987). 3114, 3126, 97 he, himself, L.Ed.2d Defense mance a situation which created. 36(a); strategic counsel made a decision Tenn.R.App.P. reasonable see also Waterhouse v. forgo investigation rely Perry, 195 further at trial Tenn. upon the cross-examination of the State’s expert witness. Moreover, the record reveals investigation Unfortunately, defense counsel’s counsel was in- was constitution ally case, only days adequate. prior Prior trial formed a few to trial of in this Jones, witness, defense another Antonia fa- handwriting counsel contacted a ex who was pert, Kelly, agent Georgia appellant’s handwriting. James an miliar with the with the When, Investigation, day Bureau of and filed a motion on the first defense coun- However, Kelly. for a certificate of need for sel learned that both Antonia Jones and Vas- testify, the information that requested obtained from Kel triek counsel an were ly ultimately opportunity independent expert no more conclusive than the to have opinion Valley expert, Maggie of the State’s Thomas examine the letter and the Vas triek, appellant’s handwriting. a document examiner with the United court de- request, holding request States Postal Service. The record reflects nied the event, that defense counsel reviewed re came too late. Vastriek’s defense ports, vigorously and that Goddard interviewed cross-examined Jones. Vastrick respect on at least one able to occasion. With counsel was locate interview mother, opinion, Mrs. tes- Vastrick’s Sexton testified that de Jones’ Julia Jones. Jones very attempt “felt defense in an to dis- fense counsel comfortable what tified for the position daughter’s testimony. That Based Mr. Vastriek’s was. credit her say foregoing, couldn’t that Mr. the author we cannot conclude that coun- Harris was performance of that note.” Faced with two inconclusive sel’s was deficient. fully alleges stages proceedings. these We ad- also counsel failed to late *10 adequately investigate penalty appellant’s in our of the mental dress this issue discussion guilt, penalty, phase. condition at the and direct counsel, prudent not address what is or appellant ‘[w]e
The also claims coun only constitutionally properly appropriate, sel failed him the conse but what is to advise of quences comply Burger, his to with compelled.’” of refusal U.S. at omitted). (citation to hand provide trial court’s order additional at 3126 issue, writing exemplars. appellant This nothing is in the record that would there contends, trial significant is view of the investigation by triggered further de- have ruling court’s that his refusal could be con background.7 of fense counsel DeModica’s guilt. an of sidered as inference Thus, we cannot conclude that further inves- However, post-conviction court found constitutionally tigation compelled. was of the appellant was advised conse appellant in The contends that counsel quences “repeatedly, his refusal of supports finding request to tently.” failing The record ineffective for funds was post-con-' findings At post-conviction expert court. of Dr. for an to review the Blake, patholo vietion was asked whether he expert Sexton in forensic the State’s informing appellant the infer However, recalled gy. appellant does not state from ences that could be drawn the what, anything, report if in Dr. Blake’s to additional sam failure submit findings explain why his are erroneous ples. responded, Trial counsel “I believe we that, prior The reflects suspect. record I talked about it at the bench on the 11th. trial, examined Dr. Blake’s defense counsel probably that it talked about at believe was Again, Dr. Blake. reports and interviewed hearing Dandridge.... We talked perfor that counsel’s we cannot conclude I it. And know it was with Mi’.Harris about deficient. mance was I brought up on And believe this occasion. probably one or two other occasions appellant also claims that coun proceedings.” This contention is without object Dr. erroneously failed to Blake's sel merit. of the testimony at trial that two victims’ margins.” The record wounds had “serrated complains next fact, did, in counsel ob reveals that defense in reasonably failed to that defense counsel testi ject to of Dr. Blake’s the introduction co-defendant, background of vestigate the comply mony, citing State’s failure post- testified at the Joe DeModica. Counsel trial, discovery defense rules. Prior with hearing that he examined DeModi conviction requested addi repeatedly counsel had appellant contends ca’s record. The criminal Blake, yet by Dr. no additional reports tional in have further that defense counsel should trial, At until trial. reports furnished were vestigated past in order deter DeModica’s counsel for the delivered to defense the State propensity whether DeModica has mine Blake, describing report Dr. first time argues that such violence. crime scene. Dr. Blake’s observations DeModica’s would have rebutted information counsel’s defense judge The trial overruled he afraid of the claim that testimony, conclud objection to Dr. Blake’s remain with the was “forced” to ordinary witness Dr. Blake ing that episode. Sexton throughout this criminal matters contained respect with hearing that testified at the However, judge the de invited report. investigate back not DeModica’s did objection Dr. Blake’s if to renew their fense thoroughly Mr. Demo ground “because more expertise testimony on an area touched many parts of the had been around dica received notice. defense had not areas, which the many country, lived and had did, trial, fact, testify con Dr. Blake At many this coun from areas of had a record analysis, only a few cerning conducted Nevertheless, wound appellant asserts try.” “sharp, saw- prior and the days requested have counsel should that defense markings” surrounding two Initially, “in con toothed investigator. for an funds a con- failed make The defense wounds. sidering of ineffective assistance claims in fact incident reveal whether this does not in his brief DeMo- mentions 7. The occurred, were during or whether defense exploded at his counsel and struck dica incident, assuming that it occurred. sentencing hearing. before us aware The record *11 167 temporaneous objection. However, adequately investigate counsel that counsel failed to vigorously Blake, cross-examined Dr. regarding who and obtain available evidence n compared conceded that he had not the vic- appellant’s background and mental condi- tim’s wounds to knife involved in the tion.8 investigation. even if defense coun- penalty phase, At defense sel’s failure to contemporaneously object con- proof, ap than the counsel offered no other performance, stituted deficient we conclude pellant’s testimony, support mitigation. unduly that such error prejudice did not supreme Our court has that there is observed defense. legal requirement no and no established Finally, appellant complains practice that the accused must offer evidence attempt counsel did not suppress state penalty capital phase at the of a trial. State appellant ments made to law enforce Melson, 417, (Tenn.), v. 772 421 cert. However, ment officers. the record reveals denied, 874, 211, 493 U.S. 110 S.Ct. inculpatory, the statements were not but (1989). However, strategy L.Ed.2d 164 “[a] exculpatory. rather The statements were may adopted only silence be after a rea general participation killings denials of investigation mitigating sonable evidence conformity and were in with the investigation or a reasonable decision that an position present at trial that he was not Wainwright, would be fruitless.” v. Tafero during episode. the criminal Counsel testi (11th 1314, Cir.1986), 796 F.2d cert. fied at the hearing at 3277, 483 U.S. 107 S.Ct. the time of he “didn’t [that feel (1987). L.Ed.2d 782 Courts have held coun would become ... if statements] relevant but representation professionally sel’s beneath did, [h]e didn’t mind ... the excul competent sentencing standards when coun patory] part getting appellant in.” The has enough investigation sel did not conduct not strategic demonstrated that this decision profile” formulate an “accurate life of a de performance. counsel was deficient Herring, fendant. Jackson v. 42 F.3d We conclude that appellant has failed - (11th Cir.), dismissed, U.S. allegations
to establish his
of ineffective as-
(1995).
-,
Steele states his affidavit that the father, Harris, penalty phase lant’s Artie been introduced died in an automo- appellant’s Finally, contrary trial. appellant bile accident when the was four assertion, years death, appellant’s Following old. the record before us his father’s mother, appellant’s Harris, investigation by that further establishes Merlene lived man, Turner, appellant’s with a counsel of the mental condition Bob physically who changed jury’s sentencing appellant abused would not have both the and his mother. words, in- appellant and determination. other further his brother were then placed homes, vestigation produced not have facts in foster would where remained tip until sufficient to the scales in favor of a sen- Mrs. Hands a man married named Mel- family vin tence other than death. Nelms. The moved to North Car- time, appellant began olina. At this run- The information contained the Western home, ning away placed from was progress Carolina Center admission and institutions, various foster homes and includ- ambiguous.11 initial admission notes is ing the Western Carolina Center.10 Center, interview the Western Carolina with health, 17, 1969, Concerning appellant’s mental dated March consisted of an inter- mother, appellant’s the affidavit reflects that was his mother was view with the who hospitalized pneumonia place attempting measles and while her son the Center. Furthermore, interview, pregnant appellant. appellant with the At the time of the two, age completed one-year at the was struck had two commitments injury. a car and and was suffered severe head with the Juvenile Center Evaluation school, attending iden- eligible While for release. The records do not placed special agency which tify particular education classes. As an state under health, adult, drugs. operated used incar- either center is i.e. mental While services, education, Georgia ap- correction. The penitentiary, cerated at the social 10. We note pre- testimony, progress were other than Steele's 11. The admission and notes They frequently pared by fail to social workers. proof there is no in this record that the Western cite the source of information included Carolina Center is a state institution for the men (cid:127) provide no documentation to establish notes tally retarded. accuracy information. Prolixin appellant was] on appellant’s place- one time [the records do reflect Center, pur- eyes rolling ment the Juvenile Evaluation with his back reaction to this had order, juvenile to a resulted from However, suant contrary to getting stiff.” frequent attempts appellant’s to run affidavit, nothing the Cen- there is Steele’s away from home. ter’s to indicate records Thorazine, much less ever administered report *14 general. diagnosis quite healthy in His been ... I feel that the unstable home situation damage by was brain Dr. Nale Cullowhee role in played very large a Eddie’s be- has 2)6 They similarly years ago.” contradict the damage’ havior. ... ‘Brain is the alibi she comment, following included in an additional inadequa- her prefers up to use to cover own added). admission report of the Carolina (Emphasis a Western cies as mother.” report psychological from interview: “The report following, “Dr. The same recites indicated that the Juvenile Evaluation Center at the Evaluation Center Western Nale defective, ‘mentally is mild with behav- Eddie University, has told Mr. and Mrs. Carolina I.Q. of 65.” ior He achieved an disorder.’ appellant’s parents] that Eddie’s [the Nelms ” average.’ In the I.Q. ‘approximately report from the Western Carolina The last appel- only documented examination of the Center, by appellant’s social prepared by physician a physician, lant concluded 3,1971, May following: on reveals the worker suffered mental “[m]ild on a basis.” [s]ocio-cultural retardation campus. He Presently, is not on Eddie added). (Emphasis his mother on a recently went home with visit, contrary day staffs trial Only psychological report one is contained This after recommendations. occurred psycholo- A records. school Center’s episode.... July most recent AWOL gist dated, Eddie’s prepared report, this Center, a he psychologist personal conducted 1970. The Eddie’s admission Since Additionally, appellant. many with presented problems. interview He refuses has psychologist.administered a number of routine and fre- to follow scheduled psychological tests determine pleases. doing about as quently wanders psychologist functioning. of lant’s level from taking orders and problem He has a concluded: authority. Running people in relating to style aggression, has a Eddie assumed great prob- away to be a proved has also retaliation, patience lack with others family very is [T]he lem with Eddie.... himself, little which would indicate get- prognosis for Eddie’s and the unstable for structure and formal school toleration day trial ting along on this 30 well at home Rules and other formal environment. very poor. prog- I little is have seen visit regulations good behavior frustrate family my and feel work .with this ress him.... I or reasons to have no facts here, im- too, prognosis for much mentally His suspect that he is retarded. family’s rela- pattern provement this it immature that social behavior so functioning in tionships and the mother’s adjust- functioning poorly as he is seems poor. as wife and mother is her role old_ shows indica- year six He also ed good deal of grasp tions he can accuracy Finally, again assuming once academically on a concrete related material in Steele’s affidavit contained of information develop that he could learn level and aggravating circum considering the skills. moderate academic case, conclude that we stances of added). (Emphasis under to meet his burden has failed 687, 104 Strickland, at 2064. 466 U.S. Summary” the West- from The “Admission cruelty of the gainsaid “It cannot be “[a]t reflect that ern Center does Carolina [murders] made it more difficult petitioner by [the for “a must demonstrate appellant] alter by specific the final proof sentence ad- factual an services of ducing mitigating Elledge expert investigator necessary circumstances.” or an are (11th Cir.1987). Dugger, relief, 823 F.2d ground post-conviction establish a for This issue is without merit. petitioner and that the is unable to establish ground post-conviction relief oth-
MOTION FOR EX PARTE HEARING available evidence.” Id. “[t]he er AND SUPPORT SERVICES grant court should if ... motion petitioner investigative demonstrates that post-con- contends that the expert necessary services are viction court to ensure the denying erred his motion for protection petitioner’s parte constitutional hearing support ex and for services. added). rights.” (emphasis Id. In other basis of the motion is that his words, context, “claim within the of ineffective assistance of counsel in- support sought implicate services must a con- volves number of areas where the service right. stitutional expert of an single is ‘the means of establish- ing prejudice.’” Specifically, us, In the case before seeks appointment contends that the of a document support protection services to ensure the *15 examiner, a pathologist, forensic a criminal right his Sixth Amendment to the effective investigator, psychologist and a are neces- However, assistance of counsel. -based sary protect to his Sixth right Amendment to us, the already record before we have deter- the effective assistance of counsel. mined that the claim of ineffec- post-conviction
The
appel
agree
the
tiveness is without merit.
denied
We
with the
Relying upon
post-conviction
lant’s motion.
judgment
this
court’s
court’s deci
the rec-
State,
Teague
915,
in
adequate
sion
v.
ord
772
is
to the task. This
S.W.2d
issue is
(Tenn.Crim.App.1988), perm.
without merit.
appeal
de
nied, (Tenn.),
874,
210,
(1989),
post-
trial counsel did or failed to do is of record.”
(3)
post-conviction proceeding,'
impartiality
judge might
of the trial
reason-
Payne,
Owens and
908 S.W.2d
ably
questioned.
be
928,
Supreme
Tennessee
Court held
40-14-207(b) (1995
First,
§
Tenn.Code Ann.
10,
Tenn.Sup.Ct.Rule
Cannon
Supp.) applies
post-conviction
capital
7(A)(3), pertinent part, requires
judge
in
a
cases.13 The court further
resign
held
in order
his office “when he becomes a candi-
parte
to obtain an
post-convic
ex
a
party primary
in
general
date
a
or in a
petitioner
comply
tion
must
proce
non-judicial
with the
election for a
office.” The
guidelines
dural
Tenn.Sup.Ct.
set forth in
correctly argues
lant
inap-
that it would be
13(2)(B)(10).
Moreover,
Rule
Id.
propriate
seeking
for one
national office to
post-conviction
12.
ruling preceded
capital
court's
[I]n
cases where the defendant has
Supreme
indigent by
the Tennessee
been found to
Court's
be
the court of
decision
case,
having jurisdiction
State,
record
such
Payne
consolidated cases of Owens and
v.
parte hearing may
923,
(Tenn.
court in an ex
in
1995),
its discre-
908 S.W.2d
which ex-
investigative
expert
tion determine that
or
ser-
pressly
Teague.
overruled the dicta of
necessary
vices or other similar services are
rights
ensure that the constitutional
the de-
40-14-207(b)
§
provides
Tenn.Code Ann.
in
properly protected
are
...
fendant
pertinent part:
added).
(Emphasis
preside
highly publicized
penal-
over a
questioning
judge’s
death
reasonable basis for
State,
ty post-conviction
However,
proceeding.
impartiality.” Alley
810,
ab-
v.
882 S.W.2d
allegation by
sent
appellant,
(Tenn.Crim.App.1994).
the bald
The standard of
nothing
suggests
post-
the record
review on
is
whether
trial court
its
judge
pri-
denying
conviction
was a
abused
discretion
candidate
motion.
(Tenn.
Cash,
741,
mary
general
State v.
position
or
election for the
Crim.App.1993).
United States Senator
the time of his
designation
special
Rather,
judge.
as a
10,
Tenn.Sup.Ct.Rule
Cannon
following
record contains the
facts relevant
3(C) provides,
judge
disqualify
“A
should
31, 1993,
judge
August
to this issue: On
in a
proceeding
impar
himself
which his
resigned
Judge
his office as Circuit
for the
tiality might reasonably
questioned, in
be
Fourth Judicial District
in an-
of Tennessee
cluding but not limited to
where:
instances
ticipation
candidacy
for
United
personal
prejudice
He
bias or
has
concern
However,
judge
States Senate.
subse-
ing
knowledge
disput
party,
personal
quently
position
reconsidered his
and chose
evidentiary
concerning
proceed
ed
facts
Therefore,
not
seek
on
elective office.
However,
ing.”
prior knowledge of facts
September
Supreme
when the
about the case is not sufficient in and of
spe-
designated
Court of Tennessee
him as a
require disqualification. Alley, 882
itself to
judge
preside
cial
over the
S.W.2d at 822.
we note
case,
proceeding
judge
not
way
merely
judge
disqualified
be
no
running
the United States Senate. This
legal pro
participated
cause he has
other
contention is
merit.
without
King
ceedings against
person.
same
State,
alleges
216 Tenn.
appellant also
Demodica,
No.
personal
also State v.
judge
knowledge
disputed
had
See
*16
(Tenn.Crim.App. at Knox
post-
ment in order to over the On November filed a proceedings.14 suggested by post-conviction viction As the motion to continue the evi- State, motion, require dentiary hearing. support recusal whenever a trial of his judge post-conviction proceeding appellant alleged that he had not com- has pleted knowledge disputed investigation of his claims. On facts would wreak 23, 1993, justice post-conviction system. havoc the criminal November denied the motion. It is true judge that a trial cannot 29, 1993, evidentiary On November at the preside both at a proceeding hearing, renewed his motion for proceeding. serve as a witness in that proof a continuance and made offer of 605; Cohen, Paine, See Tenn.R.Evid. testimony. the form of Robert Steele’s Sheppeard, Tennessee Law Evidence investigator litigation spe- Steele is an (1990) 605.1, However, § pp. 247-248. hav Capital cialist with the Case Resource Cen- ing post-convic reviewed the record of the earlier, ter. As mentioned Steele testified proceedings, tion we judge conclude that the coordinating penalty that he had been significant
was not
source of information at
phase investigation
August,
of this case since
hearing,
judge’s
nor was the
decision and that he had contacted 140 individuals in
ultimately
influenced
information.
relating
collect
order to
records
Vaughn,
appears upon
representation,
a continuance of six to
the face of the record
ous
judge
preju
presented is
trial
abused his discretion and
nine
the facts
not
months under
Moreover,
dice enured to the accused as direct result
warranted.
the reasons al-
Dykes,
judge’s ruling.”
discussed,
v.
ready
State
court’s
250,
(Tenn.Crim.App.1990).
803 S.W.2d
257
appellant’s
motions does not
denial of
post-convic
Additionally,
trigger
in order to
process
implicate
rights.
his due
This issue
relief,
tion
a motion for continu
denial of
is
merit.
without
right.
implicate
ance must
a constitutional
petitioner
the habeas
“must demon
AND
PREMEDITATION
strate, first,
...
its
court abused
DELIBERATION
and, second,
discretion
that its action ren
that,
light
next contends
fundamentally
[proceeding]
un
dered the
Supreme
v.
Court’s decision
State
Bowen,
279,
842
fair.” Conner v.
F.2d
Brown,
530,
(Tenn.1992),
(11th
840,
Cir.),
U.S.
at trial was insufficient
evidence introduced
107,
82,
S.Ct.
L.Ed.2d
and cert. denied
premeditation
support
and deliberation.
864,
164,
for at least five months
See,
Lofton,
e.g.,
post-conviction context.
*18
hearing, including three months
conviction
Peters,
249-250;
03C01-
at
No.
petition.
following
filing
of
the
the
Slate,
9409-CR-00331;
03C01-
State v.
No.
Moreover,,
appellant
the
has failed
iden-
(Tenn.
9201-CR-00014,
228751
1994 WL
affecting
prejudice
his conviction or
tify any
Knoxville,
23,1994).
May
at
Crim.App.
continu-
undisputed
It
that a
sentence.
is
purpose of
may
granted for the
ance
be
Slate,
in
court
No. 03C01-9201-
This
of identifiable wit-
securing
presence
the
CR-00014,
sufficiency of the evi
held that
testimony material
if the witnesses’
nesses
dence,
may
pro
implicate
due
generally,
the
case,
However, in
the
admissible'1.
appellant
rights of
and is therefore
cess
the
in order to
sought
continuance
appellant
post-conviction proceed
in
cognizable claim
which,
the time of the
gather information
at
§Ann.
pursuant
40-30-
ings
to Tenn.Code
entirely
motion,
largely unknown
of
(1990). However,
that have been
issues
speculative value.
appeal
direct
can
determined on
previously
post-conviction re
Thus,
support
petition
do not wish to douse
not
we
while
40-30-111, -112
§
Ann.
lief. Tenn.Code
post-conviction counsel’s zeal-
flames of
the
(1990).
State,
Harvey
See also
premeditated
degree
v.
749 S.W.2d murder and
first
mur-
der,
479 (Tenn.Crim.App.1987);
v.
Gribble
as to each victim.16 Prior to the sen-
State,
02C01-9303-CC-00039,
trial,
No.
tencing
1995 WL
phase of the
the trial court
Jackson),
(Tenn.Crim.App.
perm.
“merged”
felony
premeditat-
the
murder and
denied,
(Tenn.1995);
appeal
Randolph
verdicts,
dismissing
ed murder
effect
the
State,
03C01-9309-CR-00309,
No.
felony
WL
murder verdicts.17
Knoxville),
(Tenn.Crim.App.
perm.
Middlebrooks,
In
Supreme
the Tennessee
denied, (Tenn.1994),
appeal
precluded
Court held that the state is
from
514 U.S.
115 S.Ct.
365,
ap
WL 568433
(Tenn.Crim.App.), perm.
375-376
1994
denied,
Jackson,
(Tenn.1994);
19,
peal
(Tenn.Crim.App.
State v. Ruther
October
(Tenn.1995).
118,
(Tenn.Crim.
1994),
ford,
granted,
perm.
appeal
876 S.W.2d
119-120
(Tenn.
denied,
Smith,
561,
App.1993), perm.
generally
v.
868
See
State
S.W.2d
1994);
Beckham,
(Tenn.1993),
denied,
960,
v.
No.
State
02C01-9406-
513
cert.
U.S.
CR-00107,
(Tenn.Crim.App.
(1994);
(3)
penalty
the death
statute is unconsti-
argues
The
also
that electrocu-
tutional because it limits the consideration
tion
punishment,
is a cruel and unusual
mitigating
by requiring
evidence
thereby violating
constitution-
jury
unanimously
agree on a life sen-
rights.
argument
al
specifically
This
tence,
18;
Id. at
Black,
and
rejected in
the evidence
set
a
enough
positive
are
for
iden-
but there
not
decisions,
prior
and overlooks
conflict with
report
Kelly suggested in his
tification.”
Tenn.
propositions
material facts
of law.
and
Maggie Valley
original copy of the
that the
39(a)(1), (2),
Having thor-
R.App.P.
submitted, along with additional
letter be
record,
we conclude
oughly re-examined
samples
Doby.
from
writing
assistance of
the issue of ineffective
Ac-
adequately
clarification,
considered.
counsel has been
of
we
purpose
For
will
concerning
appellant’s
Petition to Rehear
coun-
cordingly,
events
defense
outline the
Nevertheless,
Valley
recognizing
investigation
Maggie
of
let-
is denied.
sel’s
ter,
scrutiny
in the record. Defense
heightened
applicable
standard of
reflected
as
Valley
copy
Maggie
a
and to
received a
the review of
sentence of death
counsel
2,
They
February
received
sufficiently
1988.
our conclusions are
letter on
insure that
handwriting
record,
samples
appellant’s
on
on the
we elect to address
reflected
26,
February
On or about
February
appellant in his
points
certain
raised
29, 1988,
Sexton
defense counsel Charles
§
Ann.
39-13-
Petition.
See Tenn.Code
Kelly. Kelly apparently
(c)(1)(C)(1994
206(c)(1)(B),
communicated with
Supp.).
had eliminated co-
informed Sexton that he
First,
contests
as
Doby, Pelley,
DeModica
defendants
v. Caspiri,
Dees
904 F.2d
court’s citation to
Valley
Maggie
letter. De-
the author of the
(8th
denied,
452,
Cir.),
970,
498
U.S.
cert.
Kelly’s report
ap-
on
fense counsel received
(1990),
436,
112 L.Ed.2d
S.Ct.
11,
the same
proximately March
1988. On
support
proposition that trial counsel’s
reports
day,
received
defense counsel also
investigate
authorship
failure to further
examiner,
completed by the State’s document
a
Maggie Valley
letter was
reasonable
Vastrick,
that nei-
Thomas
which indicated
acknowledge,
cor
strategic
as
decision. We
DeModica,
Pelley,
Doby had
ther
nor
written
rectly
un
pointed
appellant,
out
reports
Maggie Valley
letter. Vastriek’s
trial
not
der Tennessee law
counsel would
possibility that the
also reflected a
required
have been
to disclose
the State
letter,
required
had written the
but Vastriek
expert
opinion by an
whom
unfavorable
handwriting samples. Notes re-
additional
call
he did not intend to
or whose
file of
counsel Wil-
covered from the
defense
report he did not intend to introduce
trial.
Goddard,
15, 1988, indicat-
liam
dated March
16(b)(1)(B)
(b)(2).
See
Tenn.R.Crim.P.
contemplated
ed that Sexton
Goddard
Nichols,
722, 729-
v.
877 S.W.2d
also State
handwriting expert,
consulting
Bust-
another
(Tenn.1994),
1114,
er
At the
Brown.
(1995);
L.Ed.2d 791
State
spoke
testified that defense
Sexton
(Tenn.
Vilvarajah,
v.
735 S.W.2d
request
analy-
an
did
with Mr. Brown but
not
Bell,
Crim.App.1987); State
submitted
April
sis.
the State
On
(Tenn.Crim.App.), perm.
samples
motion for
additional
denied, (Tenn.1985). However,
submit-
handwriting.
Counsel
lant's
Defense
our
of trial
incorrectly infers that
evaluation
a certificate of need
requesting
ted motion
Valley
investigation
Maggie
counsel’s
subpoena
the appellant
which
allow
would
Dees,
179
Kelly
Doby,
appellant,
respect
investigation
that
rather than
at
With
to counsel’s
penalty phase
They
was the author of
of the
we acknowl
the letter.
indicated
State,
edge
Cooper
court in
that this
v.
847
original
would like to
send
(Tenn.Crim.App.1992),
S.W.2d
529
indi
Maggie Valley
samples
letter and additional
greater
placed
a
cated that there is
burden
Doby’s
handwriting Kelly.
April
of
to
On
investigate possible
on
defense counsel
1988, the court
provide
ordered the State to
mitigating
penalty phase
at the
of a
evidence
counsel,
requested
materials to defense
However,
capital
Cooper,
trial.
exception
original Maggie
with the
525-526,
S.W.2d at
the defendant’s sister told
Valley
However,
letter.
the court indicated
counsel about “the defendant’s de
defense
that,
original
prove
should
letter
indis-
suicide,
pression, attempted
seeing [a
and his
pensable,
the State and defense counsel
days
psychologist] ninety
clinical
before
own,
might,
arrange
on their
to send the
killing....
attorney
about the
she told
Kelly,
letter to
or defense counsel could sub-
involuntary commitment order which she had
mit additional motions to the court. Sexton
day
defendant]
obtained for
on the
of
[the
testified
hearing
at the
killing.”
This court
that the attor
found
specifically
hap-
he could not recall
what
ney’s
investigate
failure to further
the defen
pened
hearing
after
respect
this
with
to Mr.
psychological background
dant’s
and condi
However,
state,
Kelly.
he did
“I believe at
tion was ineffective assistance of counsel.
time,
point,
some
additional information
State,
Similarly, in
v.
Adkins
S.W.2d
obtained,
I
[was]
do
believe that
(Tenn.Crim.App.1994), perm.
appeal
proceedings
course of the
those were eventu-
dismissed,
(Tenn.1995), defense
counsel
ally provided
Kelly.”
to Mr.
He also testified
family
learned from
members and friends
engage
that defense counsel did
in further
that the defendant’s father was an alcoholic
However,
Kelly.
communication with
he
appellant.
who had abused the
This court
could not recall the outcome of those commu-
forgo
found that defense counsel’s decision to
nications. Sexton also stated that defense
investigation mitigating
further
evidence
spoke
counsel
with Vastrick and determined
present mitigating
and his failure to
evidence
testify
that Vastrick was unable to
that the
In
were ineffective assistance of counsel.
Maggie Valley
wrote the
letter.
State,
03C01-9210-CR-00364,
Bell v.
No.
(Tenn.Crim.App.
1995 WL
at Knox
the record does not reveal whether
ville),
denied, (Tenn.1995),
perm,
appeal
Kelly
provided
or not
was ever
with the
investigation
this court found that counsel’s
original
Valley letter,
Maggie
additional sam
preparation
penalty phase
for
ples Doby’s handwriting,
samples
trial, including
request
counsel’s failure to
appellant’s handwriting. As to
“elev
defendant,
psychological examination of the
request
expert
enth-hour
for an
on the
eve
constituted ineffective assistance of counsel.
trial,”
request
necessarily
was not
a re
case,
As in the instant
counsel failed to ob
“haphazard” investigation,
flection of
but
juvenile
arguably
tain
revealed
records
pro
rather a reaction to the “eleventh-hour”
However,
Bell,
I.Q.
the defendant’s low
duction
the State of an additional witness
03C01-9210-CR-00364,
person
counsel
No.
prepared
testify
handwriting
that the
ally believed that the defendant was suffer
Maggie Valley
letter was that of the
ing
psychological difficulties.
appellant. The burden is on the
post-conviction hearing,
counsel conceded
post-conviction proceeding
prove
the al
preparation
penal
that less
was done for
legations
petition
preponderance
in his
ty
guilt/inno-
phase of the trial than for the
State,
of the evidence. McBee v.
phase.
eenee
Counsel described the investi
(Tenn.Crim.App.1983).
also
See
gative
overwhelming.”
effort as “not
(Tenn.
Buford,
State
case,
Crim.App.1983), perm.
the record does not
the instant
(Tenn.1984).
admittedly
support
While
issue
assertion
defense
only began
prepare
ineffective assistance of counsel
this ease
sen-
counsel
one,
trial.
tencing phase
the weekend before
is a close
we conclude
Rather,
post-convic-
at the
simply
proof.
meet
burden of
Sexton testified
did not
ran
childhood,
weekend,
the fact
that, prior to that
hearing
tion
remaining
early age,
away
at an
from home
on that-”
worked
“had looked
appellant’s role
concerning the
doubt
opinion, defense
in our
stated
As
two
murders,
appellant has
the fact that
many
on
occasions.
interviewed
*23
during the
children,
testimony adduced
interview,
used an
early
counsel
During an
concerning various
the trial
guilt phase of
gather background
page form to
eight to ten
“help[ people.”
]
by
appellant to
attempts
the
appellant. Defense
the
from
information
appellant asked
the
counsel and
Defense
on
appellant’s mother
contacted the
counsel
mercy.
jury exercise
the
attempted
They
to
also
several occasions.
by
appel
named
individuals
presence
contact other
suggests the
appellant
also
lant,
ob
largely without success. Sexton
and Fourteenth
Eighth Amendment
somebody
find
was hard to
al-
stemming
that “it
served
from
claims
Amendment
in this man....”
an interest
would take
This
leged
of his trial counsel.
errors
not
could
recall
testified that he
has
Supreme
Sexton also
Court
acknowledges that
family
Eighth
either an abusive
being informed of
it
a
held that
is
violation
state,
mental difficul
psychological
a
stat-
situation or
Amendments
Fourteenth
jury
in the record
ute,
preclude
There
no evidence
from
judge
ties.
to
or a
any psychologi
capital
aware of
in a
considering mitigating
counsel was
evidence
defense
Indeed,
See,
Dugger,
Sexton
481
difficulties.
v.
e.g.,
cal or mental
Hitchcock
case.
1821, 1822,
appear
393, 394,
to
95
not
that the
did
107 S.Ct.
testified
U.S.
ap
(1987);
Skipper v. South Car
suffer
“mental deficiencies.”1
L.Ed.2d 347
1669,
olina,
1,
sentencing
4,
pellant
phase that
1670-
at the
476
106 S.Ct.
testified
U.S.
1671,
(1986); Eddings v.
resulted from
1
Okla
poor performance
school
90 L.Ed.2d
his
869,
homa,
104, 111-114,
motivation,
lack of
102 S.Ct.
rather than a
455 U.S.
lack of
875-876,
(1982);
v.
1
Lockett
intelligence.
respect to medication ad
71 L.Ed.2d
With
Ohio,
604,
2954,
586,
2964-
98 S.Ct.
to
while he was
438 U.S.
ministered
(1978). However,
2965,
jail awaiting
simply note that
factors reflected in the record. concerning mitigating
our ev- observation arguably
idence available only intended describe evidence conclusion,
reflected record.2 we
agree right that it is neither court’s nor
prerogative impose any on limitation miti-
gating may evidence that be considered Hitchcock, capital in a case. 1822; Skipper, at
U.S. S.Ct. 1670-1671; Eddings,
U.S. *24 111-114, 875-876; U.S. 102 S.Ct.
Lockett, 438 U.S. at at 2964-
2965. above, appel-
For the reasons stated
lant’s Petition to Rehear is denied. Tennessee, Appellee,
STATE
Timothy HALL, Sr., Appellant. Wade Tennessee, Appeals
Court Criminal
at Jackson.
Jan. Appeal Applied
No Permission to Supreme
for to the Court. mitigating argued possible pursu- factors defense prejudice and other 2. Our consideration of encompassed ant to Strickland has during penalty phase. difficulties, background, possible lant’s mental An initial notes verbal, 11-year boy the entire time.” ambulatory, fully “an old “medicated with thorazine problem.” with a serious The social behavior fol- conclusions contradict the The above observed, “Mrs. services worker further lowing observation undocumented told me that [the Nelms mother] clinical record: “Eddie has Western Carolina damage’ has ‘brain and is ‘disturbed.’ Eddie