         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                           AT JACKSON             FILED
                      FEBRUARY 1999 SESSION           April 1, 1999

                                                  Cecil Crowson, Jr.
                                                   Appellate C ourt Clerk
HECK VAN TRAN,                  )
                                )    NO. 02C01-9803-CR-00078
      Appellant,                )
                                )    SHELBY COUNTY
VS.                             )
                                )    HON. WILLIAM H. WILLIAMS,
STATE OF TENNESSEE,             )    JUDGE BY DESIGNATION
                                )
      Appellee.                 )    (Post-Conviction: Death Penalty)



FOR THE APPELLANT:                   FOR THE APPELLEE:

BROCK MEHLER                         JOHN KNOX WALKUP
751 Roycroft Place                   Attorney General and Reporter
Nashville, TN 37203
                                     MICHAEL E. MOORE
WILLIAM D. MASSEY                    Solicitor General
3074 East Street
Memphis, TN 38128                    JENNIFER L. SMITH (On Appeal)
                                     GLENN R. PRUDE (At Hearing)
                                     Assistant Attorneys General
                                     Cordell Hull Building, 2nd Floor
                                     425 Fifth Avenue North
                                     Nashville, TN 37243-0493

                                     WILLIAM L. GIBBONS
                                     District Attorney General

                                     JOHN W. CAMPBELL
                                     Assistant District Attorney General
                                     Criminal Justice Complex
                                     Suite 301
                                     201 Poplar Avenue
                                     Memphis, TN 38103-1947




OPINION FILED:



AFFIRMED



JOE G. RILEY,
JUDGE
                                    OPINION



       Petitioner, Heck Van Tran, appeals from the dismissal of his petition for post-

conviction relief by the Criminal Court of Shelby County. He was previously

convicted on three counts of felony murder and sentenced to death on each count.

Although all three convictions were affirmed on direct appeal, only one death

sentence was affirmed. Petitioner now contends the trial court erred in dismissing

his petition for post-conviction relief and presents the following issues for review:


       1.     whether the original trial court erred in failing to inquire
              into petitioner’s competency to stand trial;

       2.     whether the original trial court erred in defining
              “reasonable doubt” in jury instructions during both the
              guilt and sentencing phases of the trial;

       3.     whether petitioner’s death sentence is disproportionate
              punishment in light of his present mental condition;

       4.     whether the post-conviction court erred in refusing
              funding for expert services for an investigation of the
              jury’s composition;

       5.     whether the post-conviction court erred in denying
              petitioner’s request for inspection of the prosecution file
              to seek exculpatory evidence;

       6.     whether petitioner’s execution is prohibited because he
              is mentally retarded; and

       7.     whether petitioner was deprived of effective assistance
              of counsel at his original trial.


After a careful review of the record, we find no reversible error and AFFIRM the

judgment of the trial court.



                               PROCEDURAL HISTORY



       In June 1989, a Shelby County jury found petitioner guilty of three counts of

felony murder and sentenced him to death on all three counts.                The three

convictions were affirmed on appeal; however, only one death sentence was




                                           2
affirmed. State v. Van Tran, 864 S.W.2d 465 (Tenn. 1993). The other two death

sentences were set aside and remanded for resentencing. Id. at 490. The United

States Supreme Court denied the petition for writ of certiorari.             Van Tran v.

Tennessee, 511 U.S. 1046, 114 S.Ct. 1577, 128 L.Ed.2d 220 (1994). Upon remand

of the two successfully challenged sentences, petitioner received two concurrent life

sentences.

       Petitioner filed his petition for post-conviction relief on March 7, 1995. An

evidentiary hearing was conducted in October 1997. The petition was dismissed

by order entered February 13, 1998, and petitioner timely appealed to this Court.

Oral arguments were heard February 10, 1999.1



                                         FACTS



       We incorporate the following material facts as set forth by the Supreme Court

of Tennessee on direct appeal:

               On the afternoon of October 20, 1987, Arthur Lee, Amy Lee,
       and Kai Yin Chuey were found dead in the Jade East Restaurant in
       Memphis. The restaurant had not yet opened for business that day,
       and the victims had apparently been inside making preparations for
       the evening. Jewelry with a wholesale value of $25,000 had been
       taken from the restaurant. The State’s critical proof included: a
       statement taken from the Defendant in which he admitted his
       involvement in the crimes; Defendant’s fingerprint on one of the
       jewelry cases taken during the robbery; and the eyewitness
       identification of the Defendant by a survivor of the robbery.

       ...

              The Defendant, Heck Van Tran, was born on November 8,
       1966. His mother was Vietnamese; and his father, an American
       serviceman, died in Vietnam in 1968. The Defendant started school
       when he was six years old but stopped when Saigon fell. In 1983 a
       Catholic relief agency resettled the Defendant and his mother in
       Memphis. The Defendant briefly attended school before dropping out
       in 1984.

              After his arrest by the Houston, Texas, police, Defendant gave
       a statement in which he acknowledged his role in the robbery and




       1
        Oral arguments were heard in Dyersburg, Tennessee. Students of the Lake County,
Dyer County and Dyersburg school systems attended at the invitation of this Court in an effort
to educate them about our judicial system.

                                             3
      murders. He stated that he had worked briefly at the Jade East
      Restaurant a month or two before the crimes and that Mr. Lee had
      fired him because “he didn’t like me” and “said I cooked too many egg
      rolls.” The Defendant implicated Hung Van Chung, Kong Chung
      Bounnam and Duc Phuoc Doan in the robbery. He stated that the
      four men entered the back door of the restaurant and he talked to
      Arthur Lee “for about ten minutes before there was any shooting.”
      The Defendant had a .22 revolver, Bounnam a .44, Chung a .22 and
      Doan a .25.

             The Defendant described what happened after the group
      pulled out their guns:

                    Mr. Lee grabbed Nam’s [Bounnam’s] hand with
             the gun and elbowed him in the chest. Nam fell back
             and hit the old lady. The old lady fell on me and when
             she hit me it caused the gun to go off. I don’t know
             what I hit that time. Mr. Lee then kicked Hung [Chung].
             I heard Hung Chung shoot one or two times and then
             Mr. Lee tried to grab the gun and Hung Chung shoot
             him. While Mr. Lee was trying to get Hung [Chung’s]
             gun, I told him not to or I would have to hurt him. He
             turned and tried to get my gun and I shot him. He fell
             and was moving around and I shot him in the face
             somewhere. Then I walked thr[ough] the door where
             they kept the money and gold. I looked up and saw the
             old lady roll over. I thought she had something in her
             hand. I shot her in the back of the head.

              While the Defendant was in the office collecting the jewelry, he
      heard more shots. He stated that he did not know “who was shooting
      or what” or who had shot “the young girl,” Amy Lee. Upon leaving the
      office, the Defendant saw Bounnam holding Ging Sam Lee. The
      Defendant told Bounnam not to hurt her. Bounnam hit Mrs. Lee on
      the back of the head, and all the assailants left.

            Outside the restaurant, the Defendant discovered that
      Bounnam had been shot in the left leg near the groin. Bounnam
      claimed the Defendant had shot him. The group fled in Bounnam’s
      Camaro to an acquaintance’s apartment. From there, the Defendant,
      Bounnam and Chung drove Chung’s car to Washington, D.C.
      Bounnam’s Camaro was left in Memphis. Doan remained in
      Tennessee.

             From Washington, the trio drove to Houston, Texas. Once in
      Houston, the Defendant went to the Saigon Pool Hall and talked with
      a Vietnamese man about selling some gold. The man took the gold
      and returned in about ten minutes with $4,000.00. The Defendant
      paid the man $200 and divided the rest three ways. Later, Bounnam
      flew to North Carolina and Chung went to Dallas with a friend.

            On April 28, 1988, almost six months after the robbery, the
      Defendant was arrested in Houston. . . .

State v. Van Tran, 864 S.W.2d at 468-69.




                                         4
                              STANDARD OF REVIEW



       The petition for post-conviction relief was filed on March 7, 1995; therefore,

the prior Post-Conviction Procedure Act, Tenn. Code Ann. § 40-30-101 et seq.,

applies and not the Post-Conviction Procedure Act of 1995, Tenn. Code Ann. §40-

30-201 et seq. The new Act only applies to petitions filed after May 10, 1995.

Tenn. Code Ann. § 40-30-201 Compiler’s Notes.

       Petitioner has the burden of proving his claims by a preponderance of the

evidence under the prior Act. Tidwell v. State, 922 S.W.2d 497, 500 (Tenn. 1996).

Findings of fact made by the trial court are conclusive on appeal unless the

evidence preponderates against the judgment. Cooper v. State, 849 S.W.2d 744,

746 (Tenn. 1993). Accordingly, we are bound to affirm the judgment unless the

evidence in the record preponderates against the findings of the trial court. Black

v. State, 794 S.W.2d 752, 755 (Tenn. Crim. App. 1990). The burden of establishing

that the evidence preponderates against the trial court’s findings is on the petitioner.

Henley v. State, 960 S.W.2d 572, 579 (Tenn. 1997).

       After the evidentiary hearing, Honorable William H. Williams entered a

comprehensive 30-page Memorandum of Findings of Fact and Conclusions of Law.

This excellent, extensive memorandum addressed each ground raised by petitioner

as required by Tenn. Code Ann. § 40-30-118(b).



         TRIAL COURT’S FAILURE TO INQUIRE INTO COMPETENCY



       Petitioner contends that the original trial court erred in failing to inquire into

his competency and trying him when he was not competent, thus violating his due

process rights. Petitioner failed to raise this issue on direct appeal; therefore, it is

“waived” and is not an appropriate ground for post-conviction relief. See Tenn.

Code Ann. § 40-30-112(b)(1); House v. State, 911 S.W.2d 705, 714 (Tenn. 1995).

Furthermore, for reasons hereinafter stated, petitioner has not made an appropriate




                                           5
showing that the trial court had any reasonable basis to order a mental evaluation

and/or declare petitioner incompetent sua sponte.2

       This issue is without merit.



                   REASONABLE DOUBT JURY INSTRUCTION



       Petitioner contends the trial court’s definition of “reasonable doubt” was

constitutionally deficient in requiring proof to a “moral certainty” and excluding

“possible doubt” from the definition. This issue is “waived” since it was not raised

on direct appeal. Tenn. Code Ann. § 40-30-112(b)(1). Furthermore, the trial court’s

“reasonable doubt” jury instruction has been held constitutional. See Carter v.

State, 958 S.W.2d 620, 626 (Tenn. 1997).

       This issue is without merit.



                         DISPROPORTIONATE SENTENCE



       Petitioner contends his death sentence is disproportionate and excessive

punishment in light of his present mental condition. Specifically, he contends he is

presently insane.

       The Supreme Court of Tennessee conducted a proportionality analysis in the

direct appeal and concluded that the death penalty was “neither excessive nor

disproportionate.” State v. Van Tran, 864 S.W.2d at 482. Therefore, the issue of

proportionality has been “previously determined” and is not a proper ground for

post-conviction relief. Tenn. Code Ann. § 40-30-112(a).

       The Eighth Amendment to the United States Constitution prohibits the state

from inflicting the death penalty upon a prisoner who is insane. Ford v. Wainwright,




       2
        The failure of trial counsel to raise the issue of petitioner’s competence is discussed
under petitioner’s ineffective assistance of counsel claim.

                                              6
477 U.S. 399, 410, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986); see also Jordan v.

State, 124 Tenn. 81, 87, 135 S.W. 327, 329 (1911)(discussing common law rule

that one cannot be tried, sentenced or punished while insane). However, this is not

a proportionality issue.

       In spite of the constitutional prohibition against the execution of an insane

person, Tennessee has no specific statutory procedure by which to address this

issue post-trial. Many states have statutes explicitly requiring the suspension of the

execution of a prisoner who meets the legal test for incompetence. See Ford v.

Wainwright, 477 U.S. at 408, n.2.         The Tennessee legislature should give

consideration to this issue.

       Post-conviction relief is a statutory creation. Tenn. Code Ann. § 40-30-101

et seq. (now § 40-30-201 et seq.). Neither these statutes nor any other statutes

make provisions to address such an issue. As an intermediate appellate court, we

are reluctant to create and vest jurisdiction in the trial court and establish a

procedural basis to address this issue.

       Petitioner is unquestionably entitled to be heard in some forum on this issue.

In the event he is not accorded a state hearing, he can certainly seek federal relief.

Ford v. Wainwright, 477 U.S. at 410.

       Accordingly, we leave this matter to the determination of the Tennessee

legislature and/or the Supreme Court of Tennessee.



                               EXPERT SERVICES



       Petitioner contends the post-conviction court erred in failing to fund his

request for expert services to investigate the jury composition at his original trial.

Specifically, he contends the jury selection procedures utilized in Shelby County

violated the “fair cross-section” requirement of the Sixth Amendment to the United

States Constitution. See Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d

579 (1979). He contends expert assistance would establish that college students




                                          7
and   certain    professionals   constituted    a   “distinctive   group”   and   were

unconstitutionally excluded by statutory exemptions.

       The post-conviction court correctly noted the Tennessee Supreme Court’s

conclusion on direct appeal that petitioner failed to establish a prima facie violation

based upon statutory exemptions for college students and certain professionals.

The post-conviction court concluded this was a question of law which did not require

statistical analysis.

       In order to receive state funding for expert services in a post-conviction

proceeding, a petitioner must demonstrate by specific factual proof that the services

of an expert are necessary, and the petitioner is unable to establish that ground for

post-conviction relief by other available evidence. Owens v. State, 908 S.W.2d 923,

928 (Tenn. 1995). The determination of the need for expert services is entrusted

to the sound discretion of the trial court. State v. Cazes, 875 S.W.2d 253, 261

(Tenn. 1994).

       The post-conviction court correctly concluded that this was an issue of law

decided in the direct appeal. Thus, expert services would not be of assistance to

the petitioner. The trial court did not abuse its discretion in refusing state funds for

such expert services.

       This issue is without merit.



                        INSPECTION OF PROSECUTION FILE



       Petitioner contends the post-conviction court erred in refusing his request to

inspect the prosecution file under the Tennessee Public Records Act, Tenn. Code

Ann. § 10-7-503. The state contends Tenn. Code Ann. § 10-7-503 is inapplicable

since the state had a pending prosecution against one of petitioner’s co-defendants,

Kong Chung Bounnam.

       Records relevant to a pending criminal action need not be disclosed under

the Tennessee Public Records Act. Appman v. Worthington, 746 S.W.2d 165, 166




                                           8
(Tenn. 1987), Knoxville News-Sentinel v. Huskey, 982 S.W.2d 359, 361 (Tenn.

Crim. App. 1998). Since criminal action was pending against petitioner’s co-

defendant, petitioner was not entitled to the prosecution file under the Tennessee

Public Records Act.3

        Petitioner contends that since he has been unable to inspect the prosecution

file, his claim of the prosecution withholding exculpatory evidence should not be

categorically rejected. See Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10

L.Ed.2d 215 (1963). As the post-conviction court correctly noted, petitioner has

made no showing that exculpatory evidence has been withheld. A trial court does

not abuse its discretion in refusing to examine the state’s entire file to seek

exculpatory evidence, absent more specific information. State v. Caughron, 855

S.W.2d 526, 541 (Tenn. 1993). Furthermore, there was no request that any files

or documents be placed under seal for appellate review. Thus, we are precluded

from considering the issue. See State v. Gibson, 973 S.W.2d 231, 244 (Tenn.

Crim. App. 1997); State v. Roberts, 755 S.W.2d 833, 836 (Tenn. Crim. App. 1988).

        This issue is without merit.



                                MENTAL RETARDATION



        Petitioner contends that he is “mentally retarded,” such that his execution is

prohibited by Tenn. Code Ann. § 39-13-203. The state contends Tenn. Code Ann.

§ 39-13-203 is inapplicable since it was not in effect on the date of the homicide;

and that, in any event, petitioner has failed to establish mental retardation.

        Tenn. Code Ann. § 39-13-203(b) provides that “no defendant with mental

retardation at the time of committing first degree murder shall be sentenced to

death.” The statute also provides:




        3
          Although the case of co-defendant Bounnam was pending at the time of the post-
conviction hearing, petitioner alleges in his reply brief that the case has now concluded. Even
if true, this does not affect the correctness of the post-conviction court’s ruling. Petitioner is
not precluded from seeking future relief if it is appropriate under the statute.

                                               9
         (a) As used in this section, “mental retardation” means:

         (1) Significantly subaverage general intellectual functioning as
         evidenced by a functional intelligence quotient (I.Q.) of seventy (70)
         or below;

         (2) Deficits in adaptive behavior; and

         (3) The mental retardation must have been manifested during the
         developmental period, or by eighteen (18) years of age.

Tenn. Code Ann. § 39-13-203 (effective July 1, 1990). See 1990 Public Acts,

Chapter 1038, § 6. The homicide was committed in October 1987.

         At the post-conviction hearing, petitioner presented the testimony of Dr.

Andrew Adler, a psychologist who administered psychological tests to the petitioner.

Dr. Adler testified that petitioner’s I.Q. was 67. However, the post-conviction court

found Dr. Adler misread the manual relating to I.Q. calculation. Dr. Lynn Zager, a

psychologist who testified for the state, related that the proper calculation was 72,

not 67.

         As stated, the post-conviction court found Dr. Adler’s calculation of 67 to be

erroneous and Dr. Zager’s calculation of 72 to be correct. The evidence does not

preponderate against this finding.        The post-conviction court’s findings are

conclusive on appeal unless the evidence preponderates otherwise. Butler v. State,

789 S.W.2d 898, 899 (Tenn. 1990); Adkins v. State, 911 S.W.2d 334, 341 (Tenn.

Crim. App. 1995). Therefore, we need not reach the issue as to whether Tenn.

Code Ann. § 39-13-203 is applicable to those who commit first degree murder prior

to its effective date.

         This issue is without merit.



                    INEFFECTIVE ASSISTANCE OF COUNSEL



         Petitioner contends he was deprived of effective assistance of counsel at his

trial.   Specifically, he contends trial counsel were ineffective in the following

respects:




                                           10
             (1)    failing to raise the issue of petitioner’s
                    competence to stand trial;

             (2)    failing to seek suppression of petitioner’s
                    confession based upon the denial of right
                    to counsel and petitioner’s inadequate
                    language comprehension;

             (3)    failing to request support services;

             (4)    failing to adequately voir dire the jury;

             (5)    failing to investigate       and    present
                    mitigating evidence;

             (6)    failing to properly address the issue of
                    disproportionality of petitioner’s death
                    penalty on appeal;

             (7)     failing to object to various errors in the
                     trial court; and

              (8)    failing to raise numerous other issues on
                     appeal.

Further, petitioner argues the cumulative effect of these various deficiencies

rendered his trial fundamentally unfair.



              A. Appropriate Standards for Effective Assistance

      This Court reviews a claim of ineffective assistance of counsel under the

standards of Baxter v. Rose, 523 S.W.2d 930 (Tenn. 1975), and Strickland v.

Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The petitioner

has the burden to prove that the attorney’s performance was deficient, and the

deficient performance resulted in prejudice to the defendant so as to deprive him

of a fair trial. Strickland v. Washington, 466 U.S. at 687, 104 S.Ct. at 2064; Goad

v. State, 938 S.W.2d 363, 369 (Tenn. 1996); Overton v. State, 874 S.W.2d 6, 11

(Tenn. 1994); Butler v. State, 789 S.W.2d at 899.

      The test in Tennessee to determine whether counsel provided effective

assistance is whether his performance was within the range of competence

demanded of attorneys in criminal cases. Baxter v. Rose, 523 S.W.2d at 936. The

petitioner must overcome the presumption that counsel’s conduct falls within the

wide range of acceptable professional assistance. Strickland v. Washington, 466

U.S. at 689, 104 S.Ct. at 2065; Alley v. State, 958 S.W.2d 138, 149 (Tenn. Crim.

                                           11
App. 1997); State v. Williams, 929 S.W.2d 385, 389 (Tenn. Crim. App. 1996).

Thus, in order to prove a deficiency, a petitioner must show that counsel’s acts or

omissions were so serious as to fall below an objective standard of reasonableness

based upon prevailing professional norms. Strickland v. Washington, 466 U.S. at

688, 104 S.Ct. at 2065; Henley v. State, 960 S.W.2d at 579; Goad v. State, 938

S.W.2d at 369.

       In reviewing counsel's conduct, a "fair assessment . . . requires that every

effort be made to eliminate the distorting effects of hindsight, to reconstruct the

circumstances of counsel's challenged conduct, and to evaluate the conduct from

counsel's perspective at the time." Strickland v. Washington, 466 U.S. at 689, 104

S.Ct. at 2065. The fact that a particular strategy or tactic failed or hurt the defense,

does not, standing alone, establish unreasonable representation. However,

deference to matters of strategy and tactical choices applies only if those choices

are informed ones and based upon adequate preparation. Goad v. State, 938

S.W.2d at 369; Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982); Alley v. State, 958

S.W.2d at 149; Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992).



                   B. Testimony at Post-Conviction Hearing

       The following testimony was elicited at the post-conviction hearing. Arthur

Quinn and Manuel Scarmoutsos were appointed by the trial court to represent

petitioner. Both were experienced criminal defense attorneys. Quinn had prior trial

experience in a case where the state sought the death penalty, the defendant

received a life sentence, and the Supreme Court of Tennessee reversed and found

defendant not guilty by reason of insanity. See State v. Clayton, 656 S.W.2d 344

(Tenn. 1983). Scarmoutsos also had capital case experience under a previous

death penalty statute.

       Scarmoutsos filed a motion to suppress petitioner’s confession. He did

extensive investigation in Texas where the confession was given, and argued



                                          12
petitioner did not intelligently waive his Miranda rights due to his limited



comprehension of the English language. This argument was rejected at trial and

on appeal. See State v. Van Tran, 864 S.W.2d at 471-73.

       Because of the devastating proof against petitioner, including fingerprint

evidence, eyewitness testimony and the confession, defense counsel endeavored

to negotiate a guilty plea. Although petitioner initially agreed to testify for the state

during the trial of a co-defendant, petitioner changed his mind on the day of trial.

Thereafter, petitioner rejected an offer of three consecutive life sentences.

       Early in the attorney-client relationship, counsel had difficulty communicating

with petitioner due to the language barrier. However, once an interpreter was

secured, petitioner was able to understand. Based on their extensive dealings with

petitioner, neither counsel felt competency was an issue.

       Prior to trial, counsel retained the services of Dr. J. L. Khanna, a clinical

psychologist. Based upon an examination, Dr. Khanna found petitioner to be below

the average intelligence level, depressed with suicidal ideations, and under a great

deal of stress. Counsel did not believe the findings of depression and stress to be

unusual, especially for a person facing a capital murder trial. There was no

indication from Dr. Khanna that petitioner was incompetent.

       Dr. William D. Kenner, a forensic psychiatrist, testified on behalf of the

petitioner at the post-conviction hearing. Dr. Kenner was appointed by the Probate

Court in Davidson County in 1992 to determine whether the petitioner was

competent to make decisions about his medical care. He determined that petitioner

was not. Dr. Kenner was also retained by counsel in this post-conviction case and

performed an evaluation in April 1997. At the time of the post-conviction hearing,

Dr. Kenner believed the petitioner was suffering from chronic, severe paranoid

schizophrenia.

       Dr. Kenner testified that the onset of this illness is preceded by a prodromal

phase that slowly develops over a number of months, sometimes years. Dr.

Kenner, having read Dr. Khanna’s report of April 1989, stated there was evidence



                                           13
of this prodromal phase in the petitioner during his trial in June 1989. Dr. Kenner



also testified that the petitioner showed more progressive signs of this prodromal

phase during his initial processing by the Department of Correction in September

1989.

        When asked whether he believed the petitioner was competent to stand trial,

Dr. Kenner testified:

               I think there are some indicators that would raise that question.
        And the indicators are that the way he handled himself is suicidal
        ideation, that he is having periods of confusion that he attributes to a
        headache. . . . So that those I think raise significant questions.

               The other issue that I think makes it very difficult in this case
        is that of language and culture. That it -- these issues are much
        easier to pick up, to understand, in someone from the same culture
        who is trained to examine someone and look at it. It becomes much
        more difficult when you’re looking at someone from a different culture
        with a different mother [tongue].


Dr. Kenner further testified that in his mind these indicators would have raised a

need for further inquiry into the petitioner’s mental state.

        Dr. Murray Smith, a specialist in addictive medicine, evaluated the petitioner

for purposes of the post-conviction hearing. Dr. Smith determined that at the time

of the offense the petitioner was chemically dependent on drugs and alcohol dating

back to when he was eleven or twelve years old. Dr. Smith also concluded that the

petitioner had a sleep disorder and reactive hyperthyroidism and was in a

“hypervigilant, hyperactive state” at the time of the offense.

        Dr. Andrew Adler, a counseling psychologist, was qualified as an expert in

measuring language intelligence and comprehension, and mental retardation.

Based upon his psychological evaluation of the petitioner in February 1997, Dr.

Adler concluded that the petitioner suffered from paranoid schizophrenia, post-

traumatic stress disorder, and mild mental retardation. He calculated petitioner’s

I.Q. at 67 but was cross-examined as to the accuracy of this calculation.

        According to Dr. Adler, the petitioner’s vocabulary and language skills at the

time of the evaluation were comparable to a first or second grader’s. Dr. Adler

further testified that he did not think the petitioner could have understood sufficiently


                                           14
to knowingly and voluntarily waive his Miranda rights. According to Dr. Adler,



people from Southeast Asia stereotypically answer in the affirmative because they

are taught to respect authority and not to offend others.

       The state’s witness, Dr. Lynn Zager, Clinical Director of Midtown Mental

Health Center in Memphis, testified as an expert in psychology. Given the number

scores Dr. Adler obtained from the petitioner’s I.Q. test, Dr. Zager testified that the

petitioner’s I.Q. was 72, not 67. It appears from Dr. Zager’s testimony that Dr. Adler

simply miscalculated the result based upon petitioner’s number scores.



                                  C. Competency

       Petitioner contends trial counsel were ineffective in failing to raise the issue

of petitioner’s competence to stand trial.      The state contends petitioner was

competent and there was no reason for trial counsel to raise this issue.

       A summary of pertinent findings and conclusions by the post-conviction judge

as set forth in his memorandum is as follows:

        (1)   petitioner had experienced trial counsel familiar with the
              issue of incompetency;

        (2)   petitioner was able to confer with his counsel in a
              “reasonably intelligent manner;”

        (3)   Dr. Khanna, an experienced clinical psychologist who
              evaluated petitioner prior to trial, did not indicate that
              petitioner was incompetent;

        (4)   neither petitioner’s mother, his sponsor from Catholic
              Charities, his friends nor any other person raised any
              questions concerning the petitioner’s mental status at
              the time of trial;

        (5)   trial counsel “had no reasonable basis to inquire into the
              mental capacity of the Petitioner at that time to stand
              trial;”

        (6)   Dr. Kenner’s testimony indicates petitioner would have
              been in the prodromal stages of schizophrenia at the
              time of trial;

        (7)   Dr. Kenner testified only that there were “possible
              indicators” raising the issue of competency;

        (8)   no expert testimony indicates that petitioner was
              incompetent at the time of trial;

                                          15
        (9)   “[t]he record does not show a scintilla of substantive
              proof that Petitioner was incompetent to stand trial;”

       (10)   petitioner was competent to stand trial;


       (11)   petitioner was not insane at the time of the commission
              of the murders; and

       (12)   petitioner’s I.Q. is 72, not 67.

       Based upon these findings, the post-conviction court concluded that neither

prong of Strickland had been met. Specifically, the court found that trial counsel’s

performance was not deficient. Furthermore, the post-conviction court found

petitioner was not prejudiced by trial counsel’s performance since petitioner was,

in fact, competent to stand trial.

       After a careful review of the record, we conclude the evidence does not

preponderate against these findings by the post-conviction court. Petitioner has,

therefore, failed to establish that trial counsel’s performance was in any way

deficient, or that he was prejudiced by their performance. See Strickland v.

Washington, 466 U.S. at 687, 104 S.Ct. at 2064; Goad v. State, 938 S.W.2d at 369.

       This issue is without merit.



                         D. Suppression of Confession

       Petitioner contends trial counsel were deficient in their handling of the motion

to suppress his confession. Specifically, he contends they were deficient in failing

to offer expert proof concerning his lack of language comprehension and in failing

to challenge the confession based upon the Sixth Amendment right to counsel.

       The post-conviction court found no deficiencies by trial counsel.

Furthermore, the court found no prejudice since a Sixth Amendment argument

would have been unsuccessful.

       Counsel pursued a motion to suppress the confession at the trial level and

on appeal. On appeal, the Tennessee Supreme Court specifically noted petitioner’s

language difficulties, yet found the petitioner to have voluntarily, knowingly and

intelligently waived his Miranda rights. State v. Van Tran, 864 S.W.2d at 471-73.

Petitioner has not shown that failing to retain the services of a language

                                          16
comprehension expert was below the range of competence demanded of attorneys

practicing criminal law. Furthermore, he has not shown a reasonable probability



that the utilization of such an expert would have led to suppression of the

confession. See Strickland v. Washington, 466 U.S. at 687, 104 S.Ct. at 2064;

Baxter v. Rose, 523 S.W.2d at 936.

       Additionally, petitioner has failed to establish prejudice due to the failure of

trial counsel to argue a Sixth Amendment right to counsel violation. The Tennessee

Supreme Court concluded the petitioner properly waived his Miranda rights. State

v. Van Tran, 864 S.W.2d at 473. Petitioner has made no showing that the result

would have been any different had counsel added a Sixth Amendment argument

and/or Article I, § 9 Tennessee Constitution argument.

       This issue is without merit.



                                E. Support Services

       Petitioner contends trial counsel were ineffective in failing to seek necessary

expert services to challenge the composition of the jury pool. Specifically, petitioner

contends the statutory exemptions for college students and certain professionals

deprived him of a fair cross-section of the community. This issue is discussed

previously under the section EXPERT SERVICES. A statistical analysis would not

have benefited petitioner. For the same reasons that the post-conviction court did

not err in refusing such expert services, trial counsel were not deficient in failing to

request such services.

       This issue is without merit.



                                      F. Voir Dire

       Petitioner contends trial counsel were ineffective in the voir dire of the jury.

Specifically, he contends trial counsel were ineffective in failing to: (1) sufficiently

inquire into the content of publicity to which prospective jurors had been exposed;




                                          17
(2) sufficiently question if jurors would automatically impose the death penalty upon

a first degree murder conviction; (3) sufficiently question if jurors could consider




mitigating evidence; and (4) challenge certain prospective jurors for cause. The

post-conviction court found no deficiency on the part of trial counsel.

       Like the post-conviction court, we are unable to conclude that trial counsels’

performance in this regard was below the range of competence demanded of

attorneys in criminal cases. See Baxter v. Rose, 523 S.W.2d at 936. Furthermore,

petitioner has not shown that there is a reasonable probability that the result of the

proceeding would have been different had counsel conducted voir dire differently.

See Strickland v. Washington, 466 U.S. at 694, 104 S.Ct. at 2068; Henley v. State,

960 S.W.2d at 579.

       This issue is without merit.



                   G. Failure to Present Mitigation Evidence

       Petitioner contends trial counsel were deficient in failing to investigate and

present additional mitigating evidence. Specifically, petitioner contends trial counsel

should have presented additional evidence relating to his: (1) Amerasian status; (2)

dysfunctional relationship with his mother; (3) being fatherless in a patriarchal

society; (4) status as a refugee in Vietnam; and (5) medical condition in explanation

of his commission of the crimes.

       The post-conviction court found that trial counsel conducted a proper

investigation and were not deficient in presenting mitigating evidence at the penalty

phase of trial. Trial counsel were aware of petitioner’s cultural background and

social history as a result of their investigation. They presented proof from several

witnesses in the penalty phase, including an FBI agent who testified to petitioner’s

cooperation in locating the co-defendants; two employers who testified that

petitioner was a good employee; petitioner’s Catholic Charities sponsor with whom




                                          18
petitioner had lived; Dr. Khanna who testified about petitioner’s life in Vietnam and

remorse for the crimes; and petitioner’s mother.

       Furthermore, in conducting its proportionality review, the Tennessee

Supreme Court specifically noted petitioner’s cooperation with the FBI, good

employment history, lack of prior criminal involvement, remorse for the homicides,

personal history as a child of a Vietnamese mother and an American father, difficult

childhood and educational problems. State v. Van Tran, 864 S.W.2d at 482.

Despite these findings, the court found the death penalty was not disproportionate.

       First, we conclude the evidence does not preponderate against the post-

conviction court’s finding that trial counsel’s performance was not deficient.

Second, we conclude petitioner has failed to establish prejudice. In reaching the

latter determination we must: (1) analyze the nature and extent of the mitigating

evidence not presented; (2) consider whether substantially similar mitigating

evidence was presented; and (3) consider whether there was such strong evidence

of aggravating factors that the mitigating evidence would not have affected the jury’s

determination. Goad v. State, 938 S.W.2d at 371.

       The suggested mitigating evidence related to petitioner’s cultural and social

background and his medical condition. Much of this evidence is similar to that

which was presented to the jury.        Furthermore, considering the nature and

circumstances of the offense, and the applicability of the two aggravating

circumstances of mass murder and depravity of mind, we conclude petitioner has

not established a reasonable probability that the jury’s determination would have

been different had this evidence been presented.

       This issue is without merit.



                     H. Proportionality of Death Sentence

       Petitioner contends trial counsel were deficient in failing to properly present

the issue of proportionality on direct appeal. The post-conviction court found

counsel were not deficient in their appellate representation.

       We conclude petitioner has failed to establish prejudice with regard to this



                                         19
issue. The Tennessee Supreme Court addressed the issue of proportionality and

found the death penalty to be neither excessive nor disproportionate. State v. Van

Tran, 864 S.W.2d at 482. Petitioner has not shown a reasonable probability that

the result would have been different had other matters been argued on appeal.

       This issue is without merit.



                                I. Failure to Object

       Petitioner contends counsel were ineffective in failing to object to various

errors in the trial court and failing to raise those issues on appeal. Specifically, he

complains of counsels’ failure: (1) to insure an accurate record of voir dire; (2) to

object to the lack of jury admonitions given by the trial court under Tenn. R. Crim.

P. 24(f); (3) to object to the prosecutor’s sympathy argument; (4) to object to the

prosecutor’s argument minimizing the jury’s sentencing responsibilities; (5) to object

to the prosecutor’s arguing outside the record; and (6) to object to the prosecutor’s

characterization of defendant’s mitigating evidence as “excuses.”

       The post-conviction court found that counsels’ appellate performance did not

fall below the range of competency of attorneys who practice criminal law.

       We conclude that petitioner has not established a reasonable probability that

the result would have been different if trial counsel had preserved and argued these

issues. Petitioner’s failure to establish the prejudice prong alleviates the necessity

of addressing the deficiency prong. See Strickland v. Washington, 466 U.S. at 697,

104 S.Ct. at 2069; Goad v. State, 938 S.W.2d at 370.

       This issue is without merit.



                  J. Unconstitutionality of the Death Penalty

       Petitioner contends trial counsel were ineffective in failing to preserve and

appeal various issues relating to the unconstitutionality of the death penalty.

Specifically, petitioner cites thirteen constitutional deficiencies in the statutes and

procedures relating to the death penalty. He contends counsel were ineffective in

failing to preserve and appeal these issues. He acknowledges that prior decisions


                                          20
in this state have considered and rejected most of the grounds but raises them to

preserve them for federal review.

       On direct appeal the Tennessee Supreme Court found two aggravating

circumstances were properly applied. State v. Van Tran, 864 S.W.2d at 478-80.

The court further performed a proportionality review and found the death sentence

to be appropriate. Id. at 482. The court also considered the constitutionality of the

death penalty and death penalty statute and found no constitutional infirmity. Id. at

481-82. Furthermore, the constitutionality of the death penalty and death penalty

statutes has consistently been upheld. See State v. Hines, 919 S.W.2d 573, 581-

82 (Tenn. 1995); State v. Brimmer, 876 S.W.2d 75, 83-88 (Tenn. 1994); State v.

Cazes, 875 S.W.2d at 268-70.

       Petitioner has failed to establish that counsel were deficient, or that petitioner

was prejudiced in any manner by the failure to raise these constitutional issues.

       This issue is without merit.



                               K. Cumulative Errors

       Finally, petitioner argues that the cumulative effect of counsels’ deficiencies

rendered his trial fundamentally unfair. We have reviewed each allegation of

ineffective assistance of counsel and found each to be without merit. We further

conclude petitioner’s trial was not fundamentally unfair due to counsels’

performance.

       This issue is without merit.



                                   CONCLUSION



       After a careful examination of the record, we conclude that there is no

reversible error; therefore, the judgment of the trial court is affirmed.

       The sentence of death shall be carried out as provided by law on August 2,

1999, unless otherwise ordered by an appropriate court.




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                                       _____________________________
                                       JOE G. RILEY, JUDGE



CONCUR:




____________________________________
JOHN H. PEAY, JUDGE




____________________________________
JAMES C. BEASLEY, SR., SPECIAL JUDGE




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