         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                                    October 5, 2004 Session

                      JON HALL v. STATE OF TENNESSEE

                  Direct Appeal from the Circuit Court for Madison County
                       No. C00-422              Roy B. Morgan, Judge



                    No. W2003-00669-CCA-R3-PD - Filed January 5, 2005


        The petitioner, Jon Hall, appeals as of right the judgment of the Madison County Circuit
Court denying his petition for post-conviction relief from his capital murder conviction. The
petitioner was convicted of the 1994 first degree murder of his estranged wife, Billie Jo Hall. At the
conclusion of the penalty phase of the trial, the jury found one aggravating circumstance that the
murder was especially heinous, atrocious and cruel in that it involved torture or serious physical
abuse beyond that necessary to produce death. See T.C.A. § 39-13-204(i)(5). The jury further
found that the aggravating circumstance outweighed the evidence of mitigating circumstances
beyond a reasonable doubt and sentenced the petitioner to death. The petitioner’s conviction and
sentence of death were affirmed on appeal. See State v. Hall, 8 S.W.3d 593 (Tenn. 1999), reh’g
denied, (Dec. 27, 1999), cert. denied, 531 U.S. 837 (2000). The petitioner filed a pro se petition for
post-conviction relief on December 7, 2000, which was followed by an amended petition on
November 1, 2001. On February 20, 2003, the trial court denied relief and dismissed the petition.
The petitioner appeals, claiming that: (1) counsel were ineffective at the guilt phase; (2) counsel were
ineffective at the penalty phase; (3) the heinous, atrocious or cruel aggravating circumstance is
unconstitutional as applied in this case; (4) the imposition of the death penalty is unreliable and
violates principles protected by both the United States and Tennessee Constitutions; and (5) the
death sentence is unconstitutional as it infringes upon the petitioner’s right to life and is not
necessary to promote any compelling state interest. We conclude that no error of law requires
reversal, and we affirm the trial court’s denial of post-conviction relief.

      Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

JOSEPH M. TIPTON , J., delivered the opinion of the court, in which DAVID G. HAYES and JAMES
CURWOOD WITT , JR., JJ., joined.

Paul N. Buchanan, Brentwood, Tennessee, and Danny R. Ellis, Jackson, Tennessee, for the appellant,
Jon Hall.
Paul G. Summers, Attorney General and Reporter; Mark A. Fulks, Assistant Attorney General;
James G. Woodall, District Attorney General; and Alfred Lynn Earls, Assistant District Attorney
General, for the appellee, State of Tennessee.


                                             OPINION

                                            Background

        The following facts were developed at the petitioner’s trial and noted by the supreme court
in the direct appeal. See Hall, 8 S.W.3d at 596-99. The petitioner and the victim were married, and
the victim had two daughters, Jennifer and Cynthia, from a previous relationship of the victim. The
couple had two more daughters, Stephanie and Jessica. The youngest, Jessica, suffered from cerebral
palsy. In 1994, the victim and the petitioner began having marital problems and were living
separately.

        On the night of July 29, 1994, the petitioner went to the victim’s house to discuss a
reconciliation. He brought a $25.00 money order made out to the victim as a payment toward child
support. Prior to entering the house, the petitioner disconnected the telephone line at the utility box
on the outside wall of the house. When the victim answered the door, the petitioner pushed his way
into the room where she and the children were watching television. The petitioner told the girls to
go to bed. When they did not immediately obey his order, the petitioner tipped over the chair in
which the victim was sitting. The petitioner and the victim went back into her bedroom. The
children, who had gone into their bedrooms, could hear “[t]hings slamming around” and their parents
yelling at each another. When the children tried to enter the room, they found the door blocked. The
three oldest children, Jennifer, Cynthia and Stephanie, persisted in their efforts to get into the room
and finally succeeded. They attempted to stop the petitioner from hurting their mother. Cynthia
jumped on the petitioner’s back and bit him. This did not stop the petitioner’s attack. When the
victim told the children to go to a neighbor’s house, the petitioner told them that if they went for
help, “he was going to kill Mama.” He also told the victim, a college student, that she would never
live to graduate. Cynthia and Stephanie tried to use the telephone to call for help, but they
discovered the telephones would not work. At that point, they went to a neighbor’s house where they
called 9-1-1. Jennifer, the oldest child, was the last to leave the house, carrying her sister Jessica.
Before she left, she saw her mother and the petitioner leave the bedroom and go outside. She
watched the petitioner drag her mother, “kicking and screaming,” to the small pool in the back yard.

        The first officer to arrive on the scene was Chief Jerry Bingham of the Henderson County
Sheriff’s Department. Upon his arrival, he found the victim’s body floating face down in the water.
He immediately called Emergency Medical Services and a Tennessee Bureau of Investigation (TBI)
investigator. TBI Agent Brian Byrd arrived on the scene shortly after midnight.

       Agent Byrd entered the house and found the master bedroom in disarray. Bloodstains marked
the bed, a counter top, and a wedding dress. The telephones inside the house were off their hooks.


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A $25.00 money order made out to the victim and dated the day of the murder was found inside the
house. No weapons were found. A trail of drag marks and bloodstains led from the master bedroom,
out the front door, over the driveway, past the sandbox, and down to the pool in the back yard. The
victim’s t-shirt was lying beside the pool. Clumps of grass ripped from the ground floated in the
blood-tinged water of the pool. Outside the front door of the house the telephone junction box was
opened, and the telephone line was disconnected. The grass and weeds near this box were matted
down.

        Dr. O’Brien Clay Smith, the forensic pathologist who performed the autopsy, testified that
the primary cause of death was asphyxia resulting from a combination of manual strangulation and
drowning. He could not say with certainty that either strangulation or drowning was the exclusive
cause of death. Evidence supporting strangling as a contributing cause of death included bruising
on the left and right sides of the victim’s neck, hemorrhaging in the neck muscles around the hyoid
bone in the neck, and bleeding in the thyroid gland, which indicated that extensive compression had
been applied to the neck. Evidence supporting drowning as a contributing cause of death was water
found in both the victim’s stomach and in her bloodstream.

        Before dying, the victim sustained at least eighty-three separate wounds, including several
blows to the head, a fractured nose, multiple lacerations, and bruises and abrasions to the chest,
abdomen, genitals, arms, legs and back. Abrasions on the victim’s back were consistent with having
been dragged across pavement. Dr. Smith described some of the injuries to the victim’s arms, legs
and hands as defensive wounds. He characterized the injuries to the neck, face and head as
intentional “target” wounds. Except for the physical trauma associated with the strangulation,
however, none of the injuries would have proven fatal.

       Chris Dutton, who was confined in a cell next to the petitioner, testified that while both men
were incarcerated, the petitioner confided in him about his wife’s murder. When describing what
happened on the night of the murder, the petitioner told Dutton that he had tried to talk with the
victim about reconciling but “[a]ll she was interested in was the money.” When she refused to
consider his plea for reconciliation and demanded that he leave, “his temper got the best of him and
he began to strike her.” According to Dutton, the petitioner had determined, even before he arrived
at his wife’s house, “to make her feel as he did. He wanted her to suffer as he did, feel the
helplessness that he was feeling because she took his world away from him.” The petitioner told
Dutton that he hit his wife in the head until he panicked, threw her in the swimming pool, then re-
entered the house, took the car keys, and drove away in the victim’s minivan.

       On cross-examination, Dutton admitted that the petitioner told him that he was depressed and
had been drinking since he telephoned his wife earlier that day. The petitioner also told Dutton that
he was very concerned about the welfare of his two daughters, especially Jessica. The petitioner
explained that he disconnected the telephone line because when he and his wife argued in the past,
she had called the police.




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        Two witnesses testified on the petitioner’s behalf during the guilt phase of trial. Dr. Lynn
Donna Zager, a clinical psychologist, interviewed the petitioner several times after his arrest. She
diagnosed him as depressed and suffering from alcohol dependence. In addition, she noted
personality characteristics of paranoia and dependency. In Dr. Zager’s opinion, at the time of the
killing, the petitioner suffered from depression and alcohol intoxication. These factors were
compounded by his personality characteristics and various psycho-social stressors, including a sick
child, loss of employment with the resulting financial problems, his impending divorce, and the
terminal illness of a brother. Dr. Zager testified that, in her opinion, the petitioner acted in an
impulsive manner in killing his wife, rather than pursuant to a preconceived plan.

        On cross-examination, Dr. Zager admitted that she based her opinion concerning the
petitioner’s intoxicated state on statements he made to her and statements of other witnesses who
saw him drinking on the day of the murder. She agreed that no one she interviewed remarked on
whether the petitioner exhibited any of the typical physical signs of intoxication, such as slurred
speech or lack of coordination.

       Randy Helms, the petitioner’s prior employer, also testified on behalf of the petitioner. Mr.
Helms said that before the killing, the petitioner had been severely depressed because of his family
problems.

         The petitioner attempted to call his sister, Sheryl Arbogast, to testify regarding his state of
mind at the time of the murder, but she had no first-hand knowledge of the petitioner’s state of mind
on the night of the murder. In fact, Ms. Arbogast admitted she had not spoken to the petitioner for
several months before the murder. Her testimony regarding the petitioner’s state of mind was based
on a conversation she had with her brother, Jeff Hall, since deceased, on the day of the murder. The
trial court would not permit this hearsay testimony to be admitted before the jury. At the conclusion
of the evidence, the jury found the petitioner guilty of first degree premeditated murder.

        During the sentencing phase the state recalled Dr. Smith to testify in more detail concerning
the extent of the victim’s injuries. The state introduced photographs of the injuries taken at the
autopsy to illustrate Dr. Smith’s testimony. These photographs depicted the numerous external
wounds the petitioner inflicted while struggling with the victim.

        The petitioner called Dr. Zager and Dr. Joe Mount, a psychological examiner who counseled
the petitioner at Riverbend Maximum Security Institution. Both described the petitioner as
depressed, remorseful, suicidal, and extremely concerned about his children. Dr. Mount testified that
the petitioner had been diagnosed as suffering from an adjustment disorder with mixed emotional
features (anxiety and depression) and “substance abuse of dependence by history.”

        Randy Helms also testified again. He described the petitioner as a good, dependable
employee and told how the petitioner had cared for his children when he brought them to work with
him. Helms stated that the petitioner loved his wife and children and had hoped to reconcile with
the victim.


                                                   4
        The petitioner also presented his three sisters and his mother to recount the history of the
petitioner and his family. The petitioner was the youngest of seven children. His father, an
alcoholic, physically and verbally abused his wife until he died from a heart attack in 1974 when the
petitioner was ten. The petitioner’s father denied that the petitioner was his son and snubbed the
petitioner. The witnesses’ descriptions of the fights between the petitioner’s parents eerily paralleled
the petitioner’s final confrontation with his own wife. All of the petitioner’s relatives described him
as a good father who loved his children.

                                      Post-Conviction Hearing

         At the post-conviction hearing, Debbie Davis, the petitioner’s sister, who also testified during
the penalty phase of the petitioner’s trial, testified that she was not contacted by her brother’s
attorneys until the night before she was to testify. Ms. Davis believed that she had information that
would have been useful during both the penalty and guilt phases of the trial. She said that the
petitioner was living at her home when he met the victim. Ms. Davis said she had the opportunity
to observe her brother and the victim on many occasions and stated that she often witnessed the
victim being abusive, both mentally and physically, to her brother. On one occasion, she saw the
victim kicking at the petitioner’s groin area. She described their relationship as “different” in that
“Billie was always in charge of everything. Billie was in charge of all the bills. Everything was
always in Billie’s name. Jon handed Billie his paycheck. She did everything.” She also stated that
the petitioner and the victim used illegal drugs. Ms. Davis said her brother had a habit of
disconnecting telephone lines of which she first became aware when they were living in Fayetteville,
North Carolina. She said the victim and the petitioner were having a party and neighbors threatened
to call the police. However, the petitioner disconnected their telephone to prevent them from calling
the police. Ms. Davis said that on a separate occasion, the petitioner disconnected his mother’s
telephone. Ms. Davis believed the petitioner disconnected telephone lines because, as the youngest
child, he was “vying for attention.” Regarding the victim, Ms. Davis stated that she often fabricated
stories about herself. Ms. Davis did not believe the petitioner killed the victim with premeditation.
She said he was hopelessly in love with the victim.

        Ms. Davis testified that she believed that the petitioner held more than “normal fears of
police officers.” Ms. Davis explained that she had owned a Golden Corral Family Steakhouse in
North Carolina and had encouraged police officers to eat there. However, if police officers were in
the restaurant, the petitioner would go to the back because he was “just totally terrified of police
officers.” Ms. Davis also noted the petitioner’s affection for his dog, Sampson.

        Regarding family background, Ms. Davis testified that her father would often come home
drunk. On these occasions, their mother and father would get into fights and their father would end
up beating their mother. Ms. Davis described their relationship as their mother “picking on” their
father until he “would . . . just lose it . . . .” She recalled one incident when the petitioner was two
or three years old. Their father had their mother pinned to the floor, banging her head on the floor.
Big clumps of their mother’s hair lay on the floor and “there was a lot of blood.” The petitioner got
a fly swatter and tried to make their father stop. The violence between his parents often involved


                                                   5
“gun play.” On one occasion, their mother held a gun on their father and gave him to the count of
ten “to get across the yard.” The gun was not loaded. Ms. Davis said that her parents went through
cycles where the violence would erupt and then “they’d be all lovey-dovey.” When Ms. Davis grew
older, she would take the younger children and leave. Ms. Davis stated that her paternal grandfather
exhibited the same traits as her father. Her grandfather, Chuck, was an alcoholic and beat his wife.
On one occasion, her grandfather had cut all of her grandmother’s clothing.

        Ms. Davis testified that the petitioner’s father believed he was not the petitioner’s biological
father. Because of this, he favored his other son, Joel, treating Joel to piggyback rides and other
fatherly activities. When the petitioner asked for similar treatment, his father pushed him away. Ms.
Davis said that because of his father’s neglect of him, the petitioner’s mother overcompensated and
was very loving toward him.

        Ms. Davis testified that the petitioner’s father died in 1974 and that his mother remarried
shortly thereafter. She said that her stepfather was “awful” and that only the petitioner and two other
siblings lived in the household during this time. She said her stepfather also was abusive to their
mother.

        Ms. Davis testified that the petitioner’s brother, Jay, was diagnosed with “manic depressant”
after he tried to commit suicide. She said another brother, Jeff, died of AIDS in July 1995, noting
that the petitioner and Jeff were very close. Ms. Davis recalled Jeff having a “very calming effect.
He was a wonderful brother.” Jeff was married and had children but kept his disease secret from his
family. She said no attorney ever approached Jeff before his death to preserve his testimony. No
one interviewed him despite the fact that Jeff was the one who turned the petitioner in to the police
after the victim was killed. Ms. Davis stated, “We also know that when Jon went to Jeff’s house,
he didn’t realize he had killed her, and his frame of mind and what his demeanor — all that
information, Jeff had first-hand knowledge of, but we weren’t — no one could get that information
from Jeff . . . .”

         Ms. Davis testified that when the petitioner’s trial attorney talked with her the night before
her testimony, he instructed her as to what “not” to say during her testimony. She was asked “not
to say anything negative about the victim because . . . she was already a victim . . . .” Ms. Davis
testified that she could have provided trial counsel with photographs and videotape of the petitioner
being a loving father if they had asked. She added that trial counsel did not attempt to interview any
of the petitioner’s sisters. She did recall that Gloria Shettles, an investigator, contacted her sisters
about the petitioner’s mental condition but that no follow-up occurred. Shettles had provided the
family with the diagnosis “intermittent explosive disorder.” Ms. Davis concluded that this diagnosis
described the petitioner “to a T.”

        Ms. Davis also testified concerning an incident occurring during her brother’s trial. Ms.
Davis said that she observed people comforting and hugging members of the victim’s family in the
hallway of the courthouse and that she later realized one of these people was a juror. Ms. Davis
stated she brought this to the attention of trial counsel. She further testified that after the jury


                                                   6
returned the death sentence, trial counsel provided the family with a letter authored by the petitioner
relating the events of the night of the victim’s murder and made comments including, “Well, so you
don’t feel so bad,” and “So you can see that this was intentional.”

        On cross-examination, Ms. Davis conceded that most of the information regarding the
petitioner’s mother and father was provided to the jury during the penalty phase of the trial. She also
admitted that she, her sister Kathy, her sister Sheryl, and their mother testified during the penalty
phase. She further conceded that her brother had a history of angry outbursts and that he was “what
some people would call a hothead.”

         Sheryl Arbogast, another of the petitioner’s sisters, testified that she was the fifth of seven
children, with the petitioner being the youngest. She said that she was the sibling most involved in
her brother’s case. For example, she took notes from telephone calls, provided him with hearing
dates, and informed him of the attorneys who would be representing him. She stated that no one
came to see her about the petitioner’s case before the trial. Notwithstanding, she repeatedly tried to
talk to trial counsel. When she finally spoke with trial counsel, they told her that they were not able
to release any information to her without the petitioner’s permission.

       Ms. Arbogast testified that her testimony at the penalty phase of her brother’s trial was
limited to approximately twenty-five lines of the transcript, including only limited information
regarding their childhood and their parents tumultuous relationship. She added that preparation of
the witnesses did not occur until “the night before by telephone, and the actual face-to-face took
place 15 minutes prior to testifying.” Ms. Arbogast stated that she talked with Gloria Shettles, who
was to conduct a mitigation assessment, by telephone one or two times. She said they discussed
“intermittent explosive disease,” which both agreed was something that needed to be explored
regarding the petitioner’s behavior. Ms. Arbogast, however, had no knowledge as to whether a
psychiatrist was hired to evaluate the petitioner. Regarding her brother’s mental condition, Ms.
Arbogast observed

               [a] quick temper, depression, emotional lability [sic], crying, and not
               just crying but like hours at a time and not being able to stop crying,
               just loss of control over your emotions. He had not been able to hold
               a job because of that, and it was affecting everything in his life. He
               . . . had weapons pulled on him, and the situation was becoming more
               and more volatile. I was afraid for his life and for the situation that
               they were in, that it could only have a bad outcome. We wanted him
               to get out of the marriage and leave that situation. I wanted to
               hospitalize him.

       Ms. Arbogast related that the petitioner grew up in Ligonier, Pennsylvania. She said that she
began residing in the family home at eight years of age and remained there until she left for college.
Ms. Arbogast testified that her parents fought “all the time” and that her father “drank everyday.”
She believed that his drinking was the catalyst to the fighting. Their fighting “frequently led to


                                                   7
pushing and shoving, and on a number of occasions there were just horrible knock-down drag-out
fights where bones would be broken and blood would be flying and hair was being ripped out by the
roots . . . .” She said the children would attempt to break up the fight to protect their mother. She
added that if there was not a physical fight, her father would not speak to their mother, rather he
would “turn his back on her” and “put a pillow over his head.” Ms. Arbogast tried to get her mother
to leave their father but her efforts were unsuccessful.

        Ms. Arbogast corroborated her older sister’s testimony that the petitioner was closest to their
brother Jeff, who died of AIDS in 1995. Ms. Arbogast said that she informed trial counsel that Jeff
had AIDS and that they needed to interview him. Ms. Arbogast traveled to Texas and took her ailing
brother to have a statement notarized because no one had ever contacted Jeff for any information on
the petitioner’s behalf. Jeff’s statement was made three months before his death. Ms. Arbogast
stated that a fellow inmate of the petitioner had advised them to take the statement. Ms Arbogast
took it upon herself to take Jeff’s statement because she believed no one else could provide Jeff’s
side of the story. She stated that Jeff could have provided information as to instances when the
victim had pointed a gun at the petitioner and that the petitioner was planning to move to Texas to
be near Jeff and start over. She believed that only one side of the story was presented at her brother’s
trial.

        Ms. Arbogast testified that she observed the relationship between her brother and the victim.
She stated that the victim berated the petitioner constantly and said negative things about him. She
said that she and other family members had observed bite marks on the petitioner which were
inflicted by the victim and that she informed trial counsel of this. She did not believe that her
brother had, in a premeditated manner, killed the victim. She said trial counsel never inquired as to
the nature of the victim and the petitioner’s relationship. She corroborated the testimony of Ms.
Davis regarding the petitioner’s habit of disconnecting telephone lines in order to gain the full
attention of the person he was confronting. She stated that if trial counsel had asked, she would have
provided this information to him.

        As to the petitioner’s aptitude as a father, Ms. Arbogast described him as “extremely attentive
and loving” and “very well-versed in what their likes and dislikes were and how to feed and cook
for them.” She said the petitioner also impressed her with his ability to do therapy with his daughter
who had cerebral palsy. Ms. Arbogast said trial counsel never asked her any questions regarding the
petitioner’s abilities as a father during the penalty phase of the trial. She stated she attempted to
draw trial counsel’s attention to the positive attributes of her brother, but she felt they were not
interested in learning about the petitioner’s background.

        On cross-examination, Ms. Arbogast stated that from 1977 until 1994, she saw the petitioner
only about twice a year. She conceded that she provided Gloria Shettles with “all this family
history” during her telephone conversation with her. She admitted that the petitioner had been
interviewed and evaluated by Western Mental Health and had been determined competent to stand
trial. He had also been evaluated at Middle Tennessee Health Institute. She admitted that she was
aware the court had appointed a psychologist to evaluate her brother’s mental condition. Ms.


                                                   8
Arbogast also conceded that she never personally witnessed any bite marks on the petitioner; rather,
her mother had informed her of this fact. She stated that she was aware that the victim had an order
of protection against the petitioner. She said that she had no knowledge of any events occurring on
the night of the murder.

        Kathy Hugo, another sister of the petitioner, stated that she testified at the trial. She said
testimony consisting of about three and one-half pages of the transcript related to the domestic abuse
occurring during the petitioner’s childhood. She said that trial counsel had not contacted her until
11:00 p.m. the night before she was to testify. Counsel advised her that she was not to say anything
negative about the victim and to limit her testimony to what it was like growing up in their home.
Ms. Hugo said trial counsel asked her whether she thought the petitioner was a good father. She
stated that had she been asked by trial counsel, she could have put together photographs of the
petitioner when he was a child and photographs of the petitioner and the victim. She said that during
the three and one-half years this case was pending, trial counsel never contacted her.

         Clarence Stanfill, a friend of the petitioner, testified that the petitioner was an excellent
father. He said that the petitioner quit his job as a mechanic to stay at home and take care of the
child with cerebral palsy. Mr. Stanfill said that he was never contacted by trial counsel or law
enforcement officers regarding the murder. Joe Henry Stanfill, another friend of the petitioner, also
testified that the petitioner was a good father.

        Valene Foreman, a neighbor of the Halls, testified that on the night of the murder, the
petitioner came to her home and gave her twenty-five dollars to give to her father. He said he owed
her father money and he would give him the rest later. Ms. Foreman added that the petitioner was
the primary caretaker of the children. She said law enforcement officers never contacted her
regarding the victim’s murder. She recalled that “[t]wo ladies came up there on Sunday and asked
[her].” Paula Foreman, Valene’s sister, testified that she would babysit for the Halls “off and on.”
She stated that the petitioner was nice to her and that he was a good father. Pamela Foreman, a
resident at 480 Pleasant Hill Drive in Lexington, testified that the petitioner was her neighbor and
that she would often babysit for him and his wife. She stated that the petitioner would care for his
children. She said she was never questioned by law enforcement officials or trial counsel regarding
the night of the murder.

        Jackie Brittain testified that he met the petitioner through a business operated by his wife.
This acquaintance developed into a friendship, although he did not know the victim very well
because the Halls had begun having marital problems. He said the petitioner started staying with
him because the victim had asked him to leave and had an order of protection against him. He said
that despite the order of protection, the victim would come over to try to talk with the petitioner. Mr.
Brittain related that he had never seen the petitioner lose his temper. He said that two days before
the victim’s murder, a neighbor of Mr. Brittain was involved in an argument with his wife. The
petitioner stopped this man from hitting his wife, stating “You may have a license, but that don’t
give you the reason to beat her.” Mr. Brittain further testified that the petitioner was a good father.
The petitioner, being an auto mechanic, would fix Mr. Brittain’s car without compensation. Mr.


                                                   9
Brittain explained that the state had subpoenaed him to testify at the petitioner’s trial. Although he
responded to the subpoena, the state never called Mr. Brittain to testify. He said the petitioner’s trial
counsel spoke with him at the courthouse.

       On cross-examination, Mr. Brittain stated that he provided law enforcement officers with a
statement soon after the murder. He admitted that he told members of the TBI that the petitioner had
made threats to hurt the victim. On redirect examination, Mr. Brittain stated that the threats were
made while “joking around.”

        Darlene Brittain, Jackie Brittain’s wife, testified that she never saw the petitioner angry with
anybody. She said that the victim treated the petitioner “[l]ike shit. She said the victim was
extremely commanding, demanding and abusive to him.” Ms. Brittain saw the victim hit and kick
the petitioner. She said, “[The victim] was constantly bitching at him. . . . She would downgrade
him, like he wasn’t worth anything, that he couldn’t do anything right.” She said that the petitioner
would take it for a long time, sometimes getting mad and other times ignoring it. She corroborated
her husband’s testimony that the victim attempted to contact the petitioner while the order of
protection was in place. Ms. Brittain stated that trial counsel never asked her any questions
regarding the victim’s treatment of the petitioner and his reaction to it. She stated that the petitioner
was a good father.

        On cross-examination, Ms. Brittain was questioned regarding a statement she made to TBI
Agent Brian Byrd that “[the petitioner] was going to grind his wife up into hamburger meat.” Ms.
Brittain had no recollection of this statement. Ms. Brittain did recall that the petitioner’s trial
counsel informed her that they would not call her as a witness because of the “hamburger” statement.
She said that trial counsel would not consider the fact that she denied making this statement.

        Martin Eskew, the victim’s brother-in-law, testified that the petitioner was a “[s]poiled brat,
self-absorbed, only him.” Mr. Eskew said that the victim and the petitioner fought a lot. He added
that the petitioner drank a lot. He said that he was never contacted by trial counsel.

        Margie Diana Pearson testified that, on July 29, 1994, she was at a bar and that she barely
recalled drinking with the petitioner. She testified that she could not remember whether the
petitioner had commented about plans to kill his wife. Alice Jo Pearson testified that she barely
recognized the petitioner at trial, although she recalled being at a bar and having some drinks with
him. She did not recall him making statements that he intended to kill his wife.

        Clay Mayo, along with Jesse Ford, represented the petitioner at trial. Mr. Mayo was
appointed “second chair” counsel, and Mr. Ford was appointed lead counsel in late 1995 or early
1996. As part of preparation for the trial, Mr. Mayo and Mr. Ford had access to a court-appointed
investigator, a mitigation investigator, a fact investigator, and a jury consultant. Mr. Mayo testified
that if a witness needed to be interviewed, counsel would instruct an investigator to conduct the
interview.



                                                   10
        Mr. Mayo testified that he was aware of the importance of developing a strong mitigation
defense during the penalty phase of a capital trial. In this regard, he said he spoke with a lot of the
petitioner’s family members on the telephone. He recalled that many of the petitioner’s family
members resided out of state and that some were interested in helping while others were a lot less
interested. Mr. Mayo said that not only did he talk with members of the petitioner’s family but that
Gloria Shettles, the mitigation expert, had interviewed family members. He recalled the death of Jeff
Hall and the problem with introducing his statement. He specifically recalled that the petitioner was
concerned about his brother’s statement and wanted it presented. Mr. Mayo could not recall any
theory or tactic discussed to introduce the statement, although he did recall discussing the issue with
Mr. Ford.

        Mr. Mayo testified that they had specific concerns over trial strategy. Voluntary intoxication
was seriously considered as a defense to nullify the intent on first degree murder. He said that the
petitioner wanted them to argue self-defense. Mr. Mayo said he believed that a theory of self-
defense would have alienated and inflamed the jury. The primary theory was that the murder was
a second degree murder. However, certain facts presented problems, including the cut telephone
wires, the multiple wounds, the lack of injury to the petitioner, and the evidence that he had dragged
the victim from the house to the swimming pool and drowned her.

        Mr. Mayo testified that the petitioner did not want an insanity plea. In any event, he spoke
with Dr. Lyn Zager, the court-appointed psychologist, who “made it very clear that . . . [an insanity
defense] was not supported . . . by her interviews with Mr. Hall.” Mr. Mayo stated that he would
have pursued an insanity defense if supported by the proof, regardless of the petitioner’s wishes, but
that no evidence existed to support such a defense. Mr. Mayo said he did not believe the petitioner
was insane.

         Although Mr. Mayo agreed that the act of disconnecting the telephone wires gave the
impression of preparation, he did not believe that this act alone established premeditation. He said
that although trial counsel was aware of the petitioner’s past behavior of disconnecting telephone
lines, they believed this behavior would not change things significantly. Mr. Mayo added that the
petitioner would have had to testify concerning his past behavior but that his “demeanor in the
courtroom was very bad, very scary, and having him on the stand, strategically, would have been
horrible.” He conceded, however, that post-conviction counsel may have been correct that the
evidence might have taken away the “sting” of the wires being disconnected. Mr. Mayo stated that
such information “would take some sting out if you could produce someone that said he’d done this
before to get the attention of the person that was, for example, inside the house.” However, he said
that such an act also painted a picture of someone who is on the edge. Mr. Mayo stated that he could
not conclude how this information would have been helpful. Although he agreed with post-
conviction counsel that the act of cutting the telephone wires looked sinister, he stated that it looked
sinister whether or not anyone was hurt.

        Similarly, Mr. Mayo was questioned why evidence of acts of violence by the victim toward
the petitioner was not introduced. He had trouble recalling the specific reasons, but he indicated that


                                                  11
he believed her actions were not severe enough to imply that the petitioner’s conduct was reasonable.
Mr. Mayo said he believed there was no chance of moving past second degree murder and getting
voluntary manslaughter. He noted that the petitioner would have been the only witness to establish
any element of provocation. Regarding the possibility of the petitioner testifying, Mr. Mayo said that
“it would have been a catastrophe . . . not just cross-examination but his demeanor, his attitude, his
lack of remorse.” Mr. Mayo conceded that information provided by Dr. Zager indicated remorse.
He also recalled that the petitioner maintained that he never intended to kill the victim. He said that
by the time the case got to trial, the petitioner “was on the verge of a violent outburst all the time,
and had a couple and was taken out of the courtroom in shackles, had guards posted behind us.” He
described the petitioner as “a five-year-old brat in an adult’s body that . . . wanted to run the show
from start to finish and . . . didn’t exhibit any real remorse.” Mr. Mayo added that the petitioner was
“narcissistic in the extreme.” He also said that although he found the petitioner unpleasant to work
with, his opinion did not affect the level of his representation.

        Mr. Mayo recalled Gloria Shettles mentioning Intermittent Explosive Disorder in a 1995
report. He could not recall, however, doing any additional research or reading regarding the disorder.
 He also could not recall whether trial counsel sought the services of a psychiatrist, but he added that
although a psychiatrist would prescribe medication, a psychologist would “deal with the real issues.”

         Regarding the petitioner’s good qualities as a father and person, Mr. Mayo testified that he
was sure that such evidence was presented. Mr. Mayo recalled that they did not introduce any
photographs of the petitioner, but he was unable to remember the rationale. He stated that although
family members could have testified that they knew of no reason to believe that the victim’s murder
was premeditated, there was concern about questioning by the prosecution on cross-examination.
Mr. Mayo stated that an offer of proof was made regarding Jeff Hall’s statements to Ms. Arbogast.
Mr. Hall died in July 1995, before Mr. Mayo was appointed. Mr. Mayo agreed that an attorney’s
failure to attempt to preserve the testimony of a dying witness would be, at least, close to negligence
if the testimony were favorable to his client. He qualified this statement, however, by stating that
preservation would not have been necessary if the favorable information were merely opinion.
Notwithstanding, Mr. Mayo stated that Mr. Hall should have been interviewed even without knowing
what the information he possessed.

        Mr. Mayo testified that there were many instances of violent behavior by the petitioner
toward the victim that the state did not use because it had a good case. He provided examples such
as the petitioner running his vehicle into the victim’s car while the children were inside of it. Mr.
Mayo stated that if trial counsel would have inquired as to the petitioner’s good traits, the
prosecution would have questioned the witnesses as to the bad acts of the petitioner. Mr. Mayo
could not recall why opening and closing arguments and the hearing on the motion for a change of
venue were not transcribed for purposes of creating an appellate record.

       On cross-examination, Mr. Mayo testified that during his preparation of the case, no evidence
of provocation was revealed. He stated that Larry Southard, Director of Forensic Services at Middle
Tennessee Mental Health Institute, evaluated the petitioner, found him to be competent, and


                                                  12
determined that an insanity defense could not be supported. Mr. Mayo stated that the fact that an
insanity defense could not be supported was discussed with the petitioner. Other defenses were
discussed with the petitioner, including intoxication and arguing for a lesser offense. Mr. Mayo
could not recall one witness who could have testified about “good things about [the petitioner]
without allowing the state to get into prior violent acts.” Additionally, the petitioner’s children
testified during the trial. As part of cross-examination, the children were asked about the petitioner’s
treatment of them. Mr. Mayo could not think of any motions they could have filed or any witness
they could have called that could have made a difference. He admitted that he had access to the
state’s file and that no surprises were introduced at trial. He said he was only surprised that the state
did not introduce more evidence, including statements made by the petitioner.

         Jesse Ford, lead counsel appointed to represent the petitioner, testified that this was his first
capital case. Mr. Ford said that he and Mr. Mayo agreed that he would handle the guilt phase and
Mr. Mayo would handle the mitigation work. Mr. Ford recalled speaking to one of the petitioner’s
sisters, Sheryl Arbogast, once or twice. He stated that Mr. Mayo talked to her a lot because that was
more of the mitigation part of the case. Mr. Ford could not recall speaking to other family members
in preparation of the case, although he stated that he “may have.”

        Mr. Ford testified that Jeff Hall was already deceased at the time of his appointment and that
his testimony had not been preserved in any “for sure” admissible form. Mr. Ford said that if a
witness had something useful, a deposition would have been warranted. He said that Mr. Hall’s
unavailability at trial was not predictable because one’s time of death is uncertain.

        Regarding the change of venue, Mr. Ford recalled reading newspaper articles and determining
that a change of venue was “absolutely necessary.” He said that this matter was discussed with the
petitioner at length and that a motion was filed with the petitioner’s permission. Mr. Ford stated that
Judge LaFon granted the change without a hearing. Mr. Ford only became aware of the petitioner’s
dissatisfaction with the change of venue after the fact.

        Mr. Ford testified that one of the defense theories before trial was voluntary intoxication.
The petitioner had consumed five or six beers before going to the victim’s residence. Mr. Ford
attempted to find witnesses who knew that the petitioner had a drinking problem. He said the
petitioner refused to testify. Based on these factors, he decided that the defense was unable to pursue
this avenue at trial. Mr. Ford said that, ultimately, the defense hoped that the “jury would show some
mercy.” He said the defense relied upon a theory that the petitioner was acting in an impulsive
manner.

        Mr. Ford testified that he believed the possibility of reducing the charge to manslaughter was
slim because the petitioner refused to testify. He stated that a jury wanted to hear from a defendant.
Mr. Ford discussed with the petitioner the need for him to testify, but the petitioner refused to take
the stand. Agreeing that proof of the victim’s acts of violence against the petitioner would have been
evidence of provocation, Mr. Ford explained that the only reliable source of this type of testimony
was from the petitioner.


                                                   13
         Mr. Ford testified that the petitioner provided counsel with a list of people he wanted found.
Mr. Ford said that they sought every available person but that he determined that the witnesses’
testimony would not be helpful. Mr. Ford stated that, for instance, the Brittains’ statements included
the petitioner’s threat that “he was going to grind [the victim] up as hamburger meat.” Mr. Ford
recalled that the petitioner made this statement to several different people, and he believed the
statement precluded any opportunity to call these people as witnesses. Mr. Ford admitted that he did
not talk with Kathy Hugo and Debbie Davis. He acknowledged that the petitioner’s sister, Sheryl
Arbogast, wanted to testify, but he said Ms. Arbogast had no contact with the petitioner for two years
before the murder. On cross-examination, Mr. Ford stated that “from what I understood, [the
petitioner’s sisters] didn’t have a very good relationship with Mr. Hall, that they weren’t really a part
of his life until after he did what he did, and then they became . . . more a part of his life . . . .”

         Evaluating the evidence establishing premeditation, Mr. Ford recalled that the petitioner had
cut the telephone line and that, at one point, one of the children was on his back telling him “Daddy,
please stop.” The petitioner had several opportunities to withdraw from what he was doing. Mr.
Ford disagreed with post-conviction counsel’s assertion that evidence of prior incidents of
disconnecting telephone lines without any harm being inflicted would have negated premeditation.
Mr. Ford stated that this evidence shows that the petitioner wants to control situations and plans to
do the same. He said police reports from Carroll County had established that the petitioner had
previously disconnected telephone lines.

        Mr. Ford testified that he was aware of the report from Gloria Shettles mentioning
Intermittent Explosive Disorder. He said that if any follow up was needed in this area, he was of the
opinion that Dr. Zager would have recommended further evaluation. He said that Dr. Zager had
access to all of defense counsel’s information but that Dr. Zager did not indicate any need to pursue
Intermittent Explosive Disorder. Mr. Ford noted that the petitioner was also evaluated by the state
psychiatrist. Mr. Ford acknowledged that he did nothing to convince the jury that the petitioner
suffered from Intermittent Explosive Disorder. He added, though, that they discussed the
information regarding the disorder with the petitioner who did not want to pursue that defense. Mr.
Ford said that the petitioner did not believe he did anything wrong by killing the victim.

        Mr. Ford testified that the petitioner’s children were cross-examined during the guilt phase
as to whether the petitioner was a good father and provider. Mr. Ford explained to the petitioner the
dangers involved in child testimony. He acknowledged that there were allegations that the petitioner
had abused the children. Mr. Ford chose to limit character witnesses to avoid opening any doors that
would permit questioning concerning the claimed abuse. He added that the petitioner’s former
employer, Randy Helms, was called to testify during the penalty phase in an attempt by defense
counsel to humanize the petitioner. He said that Mr. Helms was selected because he was the most
credible witness with an unimpeachable reputation.

       Mr. Ford testified that they knew the state’s proof and that no surprises arose at trial. He said
he explained all of the evidence to the petitioner before trial. He said that the victim’s family wanted



                                                   14
leniency and that the state offered life without parole. However, the petitioner insisted upon going
to trial.

         Dr. Pamela Auble, a clinical neuropsychologist, testified that she evaluated the petitioner at
the request of post-conviction counsel. The purpose of the evaluation was to determine whether any
deficits or problems in memory or thinking existed which might be due to brain injury and to
determine personality and emotional functioning. Dr. Auble stated that her evaluation process
consists of three areas: (1) interviews, (2) standardized testing, and (3) a review of relevant social,
legal, medical, psychological, and school records. She said that in gathering information about a
client, it would be necessary to interview all immediate family members and that the failure to do
so would result in an incomplete social history.

         Dr. Auble stated that she administered the following tests measuring mental ability to the
petitioner: the Wechsler Adult Intelligence Scale (an IQ test), the Wechsler Memory Scale (a test of
one’s ability to learn new information), the Test of Memory Malingering (a test to evaluate whether
one is putting forth adequate effort on the test procedure), the Halstead Reitan Battery (six tests
measuring mental flexibility, executive functioning or reasoning, attention, right hemisphere
functioning, concentration, language comprehension, fine motor speed, spatial reasoning and
memory), the Delis Kaplan Executive Functioning System (a test to determine the adequacy of a
person’s frontal lobe functioning, i.e., thinking, reasoning, and one’s ability to inhibit responses),
the Boston Naming Test (a test to determine language dysfunction) and the Grooved Pegboard Test
(a test to measure motor dexterity). She also administered three tests of personality and emotional
functioning, including the Rorschach (traditional inkblot test to test personality style and
functioning), the Minnesota Multiphasic Personality Inventory (a test to measure personality and
emotional functioning), and the Incomplete Sentences Blank (a structured interview of the client).
In exploring the petitioner’s background, Dr. Auble reviewed

               various interviews, both of [the petitioner] and his family, friends,
               people he associated with by April Higuera, by Tammy Askew, by
               Gloria Shettles. I reviewed a Mitigation Assessment done by Ann
               Charvat, a summary of the testimony of Lynn Zager and Joe Mount,
               records from Middle Tennessee Mental Health Center, records from
               the Newborn Intensive Care Discharge Summary, a summary of
               audiotapes of the trial, the Tennessee Department of Employment
               Security Appeal Decision, the Tennessee Department of Correction
               progress notes, the report of Dr. Caruso, Inmate Grievance Forms,
               material prepared by Mr. Hall regarding ineffective assistance of
               counsel and a genealogy chart.

Dr. Auble testified that she spent approximately nine hours interviewing and administering tests to
the petitioner.




                                                  15
       Dr. Auble summarized her findings relative to the petitioner as follows:

               The results of the neuropsychological testing were essentially normal
               in most areas. There was no evidence of malingering or faking. The
               neuoropsychological testing did indicate some difficulties with
               attention and response speed, something that I – in my opinion was
               consistent with attention deficit disorder, most likely. The personality
               testing revealed a person who does have difficulty controlling his
               emotions in emotional situations. His responses are likely to be
               unmodulated. [The petitioner] has a low self-esteem. There was
               evidence of internal anger. He may have trouble understanding
               people and perceiving them in accurate ways. At the time I saw him
               he did not appear clinically depressed, though there was evidence of
               some tension from his current situation.

Dr. Auble further stated that a low serotonin level would be consistent with Intermittent Explosive
Disorder.

        On cross-examination, Dr. Auble was directed to a statement in The Diagnostic and
Statistical Manual, Volume 4 (DSM4),1 providing that “the diagnosis of Intermittent Explosive
Disorder is made only after other mental disorders that might account for episodes of aggressive
behavior have been ruled out and it includes attention deficit disorder in there.” She then qualified
her prior testimony, stating that her testing was not definitive as to whether the petitioner did or did
not have attention deficit disorder. She added that her opinion was not that attention deficit disorder
was accounting for the petitioner’s episodes of aggressive behavior if he did have attention deficit
disorder.

        Dr. Auble conceded that her conclusions about the petitioner included that “at the time of the
crime there was evidence of Intermittent Explosive Disorder, adjustment disorder, major depression,
alcohol dependence, and cannabis abuse.” She admitted that the DSM4 required that alcohol or drug
abuse be ruled out as possible causes of anger before diagnosing Intermittent Explosive Disorder.
She acknowledged that on the date of the murder, the petitioner was both intoxicated and under the
influence of marijuana. She conceded that the petitioner had visited several bars on the night of the
victim’s murder and that he was angry when he left the bars. In Dr. Auble’s opinion, however, the
use of alcohol and drugs merely exacerbated the Intermittent Explosive Disorder. Dr. Auble
admitted, though, that her evaluation did not eliminate the fact that the petitioner’s aggressive
episodes were caused from his adjustment disorder.




       1
      AMERICAN PSYCHIATRIC ASS’N, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL
DISORDERS (4th ed. text rev. 2000).

                                                  16
       At the petitioner’s trial, Dr. Zager testified that the petitioner was acting as a result of an
impulse brought on by his anger. Dr. Auble agreed with the prosecution’s summation of Dr. Zager’s
conclusion as

               his mental disease of Intermittent Explosive Disorder and adjustment
               disorder resulted in a rage reaction in which [the petitioner] was
               unable to premeditate this crime and in which his actions were not
               knowing in that he was unaware that his conduct was reasonably
               certain to cause his wife’s death.

Dr. Auble conceded that her conclusion is basically the same conclusion reached by Dr. Zager. She
further conceded that the diagnosis of Intermittent Explosive Disorder is not appropriate when the
person is acting in a purposeful manner. She stated that the petitioner’s purpose of going to the
victim’s home the night of the murder was to reconcile with his wife. She maintained, however, that
this purpose is not that envisioned by the DSM4.

       Dr. Keith Caruso, a forensic and general psychiatrist, testified regarding the correlation
between low levels of serotonin in the brain and violent acts. He stated that recent research
completed by Dr. Emil Coccaro in 2001 revealed that a biological marker for Intermittent Explosive
Disorder is low levels of serotonin. This information is not contained in the DSM4, because the
DSM4 was written in 1994, before this research was completed. Dr. Caruso said that a report from
Dr. Ronald Salomon at Vanderbilt indicated that the petitioner’s level of the major metabolite in
serotonin, CSF 5-HIAA, was 70, a level in the bottom five percent. He said the normal level of
serotonin is 139.1 and that the petitioner’s level of serotonin is consistent with a person having
Intermittent Explosive Disorder.

       Dr. Caruso confirmed Dr. Auble’s statement that a social history of a client would necessarily
be comprised of more than talking with that client. He stated that interviewing family, friends, and
past employers was very important. In evaluating the petitioner, Dr. Caruso testified that he was
provided:

               a video. Also, I had a transcript of State versus Jon Hall from 1997.
               The excerpts that I’ve read included motions, testimony from Jerry
               Bingham, testimony from Brian Byrd, testimony from Chris Dutton,
               Stephanie Lambert, Cynthia Lambert, Jennifer Lambert, the medical
               examiner, Dr. O. C. Smith, Dr. Zager. Let’s see, psychologist Joe
               Mount, Randy Helms, Debbie Davis, Kathy Hugo, Cheryl Arbogast,
               Carol Alexander. There was also mitigation information from Ann
               Charvat, correspondence with another attorney, Edward Martindale,
               regarding a civil suit. There was some media clippings. There was
               Jessica Hall’s medical records. There were TDOC mental health
               records for the defendant. There were records from Middle
               Tennessee Mental Health from, I believe, a competency and sanity


                                                 17
               evaluation that were done in ‘95, disciplinary records from TDOC.
               There were memos from Glori[a] Shettles who had been a mitigation
               specialist previously in this case and interviews that she had done
               with various family members. A time line done by Danese Banks.
               Numerous interviews by Ms. April Higuera with the defendant over
               a span of . . . two years. Interviews by Ms. Higuera of family and
               friends. A genealogy memo that Ms. Higuera had provided. Written
               materials that Ms. Arbogast had provided. More mitigation timelines.
               Memos about the trial audiotapes. Interview of Judge Whit LaFon by
               Ms. Higuera and other witnesses. Dr. Auble’s neuropsych eval and
               Dr. Saloman’s report.

Dr. Caruso also interviewed the petitioner on January 28, 2002, for three and one-half hours and on
March 19, 2002, for four hours.

       After reviewing the information and interviewing the petitioner, Dr. Caruso formulated the
following impressions:

               I think there was a lot of evidence of character pathology which one
               would expect in light of the dysfunctional home that he grew up in,
               but on top of that there are also – and there also seemed to be a great
               degree of substance abuse, both in [the petitioner] and also in family
               members. There was a lot of major depression in family members.
               [The petitioner] had a history of depression. . . . I felt that it wasn’t
               just an adjustment disorder in that he seemed to respond to some anti-
               depressant medication that he’d received. I believe back in 1995 he
               was on Imipramine and, although he couldn’t tolerate the side affects,
               had done somewhat better and reported feeling better on the
               medication. In addition, there was a history of numerous episodes of
               [the petitioner] exploding into violence either where he assaulted
               people or where he destroyed property, and I became suspicious on
               that basis of Intermittent Explosive Disorder as it seemed that there
               were times that that could not be accounted for by intoxication alone,
               and essentially – also I have spoken to you about some . . . of his
               outbursts in court, I believe, in a prior trial. And, again, there really
               seemed to be a lot of difficulty controlling his, you know, his
               behavior – controlling his emotions. And, also, consistent with that,
               that the only thing that seemed to have changed between those
               explosions and then being more conciliatory in terms of speaking
               with you that he . . . only time had elapsed.




                                                  18
Dr. Caruso added that there was a “very high co-occurrence” of “being an alcoholic and having
Intermittent Explosive Disorder,” in that alcohol reduces impulse control and that persons with
Intermittent Explosive Disorder have poor impulse control.

        Dr. Caruso testified that a person with Intermittent Explosive Disorder realizes that his act
of violence is “not a good thing to do” but is without the capacity to stop himself. He stated that
with regard to premeditation, a person with Intermittent Explosive Disorder is unable to achieve the
mental state required for premeditation regarding the absence of passion or excitement. Dr. Caruso
concluded that “because of Intermittent Explosive Disorder, major depression, and intoxication, but
. . . mostly Intermittent Explosive Disorder . . . that [the petitioner] was unable . . . to achieve the
mental state of the absence of passion and excitement.”

       Dr. Caruso testified that the petitioner met the criteria for a number of diagnoses, stating

               I felt that at the time of the offense he had Major Depression,
               Intermittent Explosive Disorder. I get that he was dependant on
               alcohol, so he had alcohol dependence. He had a dependence on
               marijuana. Cannabis dependence. I felt that he also had a history of
               polysubstance abuse where he abused a lot of other substances, such
               as LSD and Valium and other drugs, and I also felt that at the time of
               the offense there was evidence to indicate that he was suffering from
               alcohol intoxication as well. I felt also that he had met criteria for
               several personality disorders, including Narcissistic Personality
               Disorder, Borderline Personality Disorder and Antisocial Personality
               Disorder. I didn’t feel that there was a medical condition impacting
               upon his mental state other than the ones I’ve specified here in terms
               of the depression and the Intermittent Explosive Disorder, et cetera.
               I also felt that there were a number of stressors at the time of the
               offense or that we list on Axis IV, including his fears of abandonment
               by his wife at the time of the offense, his daughter’s disability and her
               special medical needs, the financial stressors related to his earlier
               unemployment. In addition, his brother’s dying of AIDS at that time
               also were stressors operative at the time and, I think, at this time and
               not at that time we had the stressors related to legal charges. I felt
               that at the time of the offense he had a global assessment of
               functioning score of about 40. More recently it’s about 55, and that’s
               on a scale of 100 where someone with a scale of 31 . . . to 40 would
               be seriously impaired.

Dr. Caruso concluded that the technology and tests used in evaluating the petitioner were available
in 1995, 1996, and 1997.




                                                  19
        On cross-examination, Dr. Caruso agreed that the research results linking low serotonin
levels and Intermittent Explosive Disorder was not available in 1995. He acknowledged that the
results were presented first at the American Psychiatric Association Convention in 2001. He also
agreed that this information is not contained in the current DSM4. Dr. Caruso further conceded that
the petitioner’s act of disconnecting the telephone lines for whatever purpose established that he was
capable of “some degree of preplanning.”

         The petitioner testified regarding the attorneys that had been appointed to represent him at
trial:

                Jack Hinson and Frank Stanfill were appointed. I heard that Frank
                Stanfill never had any in court experience at the time, and that Jack
                Hinson was the Public Defender at the time, but he was going into
                private practice and Frank Stanfill was just taking over that position.

                ....

                Well, the next time I went into court I went in for my Grand Jury
                appearance and they asked me did I have an attorney and I had not
                spoken to my attorney and the people at the courthouse told me that
                Jack Hinson was no longer with the Public Defender’s Office. So the
                Judge asked me, you know, “Do you plead guilty or not guilty,” and

                ....

                [a]fter Frank Stanfill and Jack Hinson I went through George Googe
                and Stephen Spracher.

                ....

                And after that I had Carthel Smith and Mike Mosier.

                ....

                And then I went through my trial attorneys, Jesse Ford and Clayton
                Mayo.

                ....

                And then I had on direct appeal . . . Mark Donahoe and Scott
                Petrowski.




                                                  20
       The petitioner testified that his brother, Jeff Hall, had resided in Bell County, Texas, and had
been suffering from AIDS since the early 1990’s. He said he knew in August 1994 that his brother
was sick. He said he informed his attorneys that they needed to interview Jeff because of the danger
of him dying before trial. He could not recall, however, whether he told them that Jeff was dying
of AIDS. The petitioner did assert that he was absolutely sure that he made George Googe and
Steven Spracher aware of it before his brother died and “pretty sure” that he made Frank Stanfill
aware of it. He said he had to go to trial without the benefit of a statement by Jeff.

         The petitioner testified that he neither waived his right to a preliminary hearing nor asserted
that he wanted to change venue to Madison County. When questioned as to the possibility of
testifying, he said his attorneys conducted a mock examination of him and told him they did not
believe he should testify. The petitioner asserted that he wanted to testify before a Henderson
County jury. He added, however, that he also “argu[ed] an issue about the fact that the flag had a
gold fringe and an eagle on it, and I told ‘em that I felt that it was a . . . representative of a war court
. . . .”

         The petitioner testified that attorneys Ford and Mayo were appointed on February 9, 1996,
and that the trial began on February 3, 1997. He complained that counsel visited him on only two
occasions while he was in Nashville. He said he was transferred to Madison County in December
1996. While confined in Madison County, the petitioner was visited separately by counsel
approximately five times. He complained that his attorneys never explained to him their defense
theory. He stated that, if they had asked, he could have provided them with prior acts of violence
perpetrated by the victim against him. He explained, however, that his attorneys did not want
anything negative said about the victim during the trial. The petitioner added that his attorneys failed
to present the Pearson sisters as witnesses even though they had been subpoenaed. He also said that
he had objected to his attorneys resting the case because he thought there were more witnesses to
present. The petitioner denied rejecting “any mental defect mitigation strategy.” He said, “I always
felt that I went insane because of what happened. That’s the only thing that explains what happened
to my wife.” He claimed that “Mr. Ford told me that I needed to leave the psychs alone. They
couldn’t help me.” The petitioner stated that his attorneys disregarded anything that he said and that
he believed they felt animosity toward him. He concluded that he believed the biggest failure of his
trial attorneys was not keeping him informed.

       The petitioner testified that he and Chris Dutton were not cellmates, although they were on
the same pod. He said that if he had been permitted to testify at his trial, he could have impeached
Dutton’s testimony. He also stated that he was not aware that the victim had died until he arrived
in Texas.

       Regarding the night of the murder, the petitioner testified that he had picked up a six pack
of Busch “ponies.” He then purchased a money order to pay the victim some child support. He said
he drank the six-pack of beer and then drove to the victim’s home. He said that the victim was not
home when he arrived and that he drove back to “Jackie and Darlene’s” where he consumed some



                                                    21
more beers. He said he then visited some bars where he consumed approximately nine to twelve
more beers.

         On cross-examination, the petitioner stated that he was not afforded a preliminary hearing
on the kidnapping charge but conceded that he was not convicted of kidnapping. He admitted that
he was provided a preliminary hearing on the murder charge. The petitioner failed to respond to the
prosecution’s statements that he had requested the change of venue. The petitioner also admitted
that the trial court questioned him regarding his decision not to testify and that he had informed the
court that he would testify if the “war flag” were removed. He explained, “There’s nothing in the
statute that says that there’s suppose to be a gold braid on [the flag] for the jurisdiction of the court.
That’s why I – I’d say it’s a badge of fraud.”

        The petitioner stated that “they ruined the intoxication defense whenever Judge LaFon
instructed the jury that it was irrelevant for the culpable mental state . . . .” He admitted that he knew
his defense was intoxication in order to receive a lesser-included offense. In response to questioning
as to whether the victim physically provoked him, the petitioner said he never told anybody that she
did. He explained that she did not physically provoke him, but she verbally provoked him. He
stated that he did not make the mess in the bedroom and that someone had tampered with the
videotape. He added that he went to the victim’s house that evening to attempt a reconciliation.

        The state called Dr. Kimberly Stalford, a psychiatrist, who conducted an evaluation of the
petitioner. In completing her evaluation, Dr. Stalford (1) reviewed the trial transcript, (2)
interviewed the petitioner for three and one-half hours, (3) reviewed the psychiatric evaluation by
Dr. Caruso and the forensic neurological evaluation of Dr. Auble, and (4) read the indictment,
multiple interviews by the TBI, a report of the petitioner’s criminal history and disciplinary action,
and various letters written by the petitioner. She also relied upon (1) two orders of protection filled
out by the victim, (2) a civil summons for divorce, (3) a bill from Baptist Memorial Hospital, (4) a
police report of domestic disturbance dated May 31, 1991, (5) a document captioned “Specific
Instances of Acts or Omissions of Counsel,” (6) a procedural history of State of Tennessee v. Jon
Hall, and (7) medical records from Middle Tennessee Mental Health Institute. Dr. Stalford also had
access to the petitioner’s social history. She received “a biographical description on where a
person’s born, their childhood, their educational experience, their work history, their interpersonal
relationships throughout their life, drug and alcohol use, issues such as that.”

        Dr. Stalford defined Intermittent Explosive Disorder as

                a psychiatric disorder that falls under the impulse control disorders
                like cleptomania, and it is classified by impulsive outbursts which
                usually inflict harm on objects or people. The diagnosis is –
                describes – The second criteria includes the outbursts in excess of
                what one would expect, and the third aspect of that diagnosis is that
                it can’t be better explained by another psychiatric illness.



                                                   22
As a result of her evaluation, Dr. Stalford could not conclude that the petitioner had Intermittent
Explosive Disorder because his behaviors were better described by other psychiatric illnesses. She
stated:

                        I believe that he has what we would describe as a personality
                disorder, and very much as Middle Tennessee described it, where he
                has some passive/aggressive traits, dependant traits, but I think the
                most notable traits are what we call anti-social traits or sociopathy,
                and within that diagnosis, there is a reckless disregard of other people
                and agitated and potentially violent acts, and I think his behavior is
                better explained under that diagnosis than intermittent explosive
                disorder.

She also diagnosed the petitioner with alcohol dependence.

        Dr. Stalford explained that:

                        Serotonin is a chemical in our brains. It is the way that nerves
                connect. When you have a nerve and the nerve stops, you need that
                nerve to talk to the next nerve, and the way it does it is the nerve
                releases a chemical that causes what we call the synapse to the next
                nerve, and that’s how the nerves talk. And one of the chemicals in
                the brain that does that is serotonin. . . . [S]erotonin is what we call
                a neurotransmitter which basically is the way that nerves talk to each
                other.

She testified that because there are “so many medical neurological and psychiatric conditions that
have been linked to altered serotoninergic levels that it’s really not a terribly useful diagnostic test,
which is why the forensic unit at Middle Tennessee doesn’t even do it.” She said that low serotonin
levels have been identified in patients suffering from depression, schizophrenia, bipolar disorder,
impulsive acts of violence, mood disorders, anti-social personality disorders, borderline personality
disorders, myoclonus, dementia, sleep disorders, and even malnutrition. Dr. Stalford further
discounted the usefulness of serotonin levels as a diagnostic tool by stating that (1) serotonin levels
measured in the spinal fluid are not an accurate indication of the serotonin activity in the synapses
where it works and (2) there is much question as to what are “normal” levels of serotonin. She stated
that she reviewed the serotonin test results contained in Dr. Caruso’s report.

       Dr. Stalford concluded that, based on the events on the night of the murder, that the petitioner
was able to think clearly and plan certain aspects of that night. She stated that neither drugs, alcohol,
nor any psychiatric condition could explain the petitioner’s loss of control.




                                                   23
             Summary of Trial Court’s Findings of Fact and Conclusions of Law

        The trial court rendered a comprehensive and extensive order reviewing the evidence
presented and rendering legal conclusions as to the petitioner’s allegations of constitutional error.
After evaluating the evidence presented at the post-conviction hearing and the trial, the trial court
made numerous findings of fact. The trial court found that the defense strategy at trial was that the
petitioner did not plan to kill the victim but was merely attempting to pay child support and reconcile
with the victim. The incident was characterized as an emotional domestic situation that merely
escalated and got out of control. Defense counsel’s questioning of witnesses was consistent with this
theory throughout the trial. The trial court noted trial counsel’s skillful cross-examination of state
witnesses, including introducing proof supporting their theory that the petitioner was intoxicated at
the time of the murder. Defense counsel presented evidence regarding the petitioner’s mental
condition.

         In addressing the petitioner’s post-conviction claims, the trial court made the following
findings: The petitioner argued that trial counsel were ineffective for failing to inform the jury that
the petitioner had a habit of disconnecting telephone lines to guarantee the undivided attention of
the person he was confronting. The fact that the petitioner disconnected the victim’s telephone line
was relevant to the issue of premeditation. Trial counsel did elicit information that the petitioner had
disconnected the victim’s telephone lines during some of their previous arguments and convey this
information to the jury. The trial court determined that “it would not have been in [the] petitioner’s
best interest to cite multiple incidents during which he felt it was necessary to disable someone’s
phone to keep their attention and/or prevent them from calling the police.” The trial court concluded
that trial counsel were aware of these prior incidents and reasonably elected not to present them.

        The petitioner asserted that trial counsel had no real defense theory. The trial court rejected
this claim. The trial court found that trial counsel made a valiant attempt to convince the jury that
the petitioner was distraught, depressed, and intoxicated; that his behavior reflected an impulsive act
as opposed to a planned act; that the state failed to meet its burden of proving premeditation beyond
a reasonable doubt; and that the petitioner lacked the requisite mental state for first degree murder.

         The petitioner claimed that trial counsel failed to present evidence of intoxication. The trial
court found that trial counsel presented evidence that the petitioner was carrying beer when he
arrived at the victim’s home. The trial court also found that Dr. Zager testified that the petitioner
had been drinking beer before arriving at the victim’s home. Additionally, trial counsel was able to
elicit through cross-examination of Chris Dutton that the petitioner was drunk when he had
telephoned the victim earlier that day. The trial court concluded that the petitioner could not
demonstrate that he suffered any prejudice from trial counsel’s failure to present the testimony of
either Diana Pearson or Alice Pearson as neither witness could testify regarding the amount of
alcohol consumed by the petitioner, how quickly he consumed the alcohol, or how the alcohol
affected the petitioner’s behavior. The trial court determined that their testimony was irrelevant to
the petitioner’s theory of intoxication. Additionally, the trial court attached no probative value to
the fact that the petitioner did not convey to the Pearsons his intentions of killing the victim.


                                                  24
         The petitioner asserted that trial counsel failed to hire a psychiatrist to pursue the theory that
he suffered from Intermittent Explosive Disorder and that he failed to compile an adequate social
history. The trial court rejected these claims. The trial court noted that the petitioner failed to
present the testimony of his pretrial attorneys, the investigators, or Dr. Zager. The trial court noted
that Gloria Shettles did more investigation than the initial report included in the post-conviction
record. Additionally, the trial court found that multiple orders granted funds for a private
investigator. The trial court concluded that the court “would not have continued to grant additional
funds unless trial counsel established that Askew was in fact conducting the investigation for which
she was hired.” The trial court further determined that Dr. Zager was an experienced defense witness
in capital murder cases and “understood the importance of having access to all relevant information
and would not have expressed her expert opinion in the absence of such information.” Based on
these factors, the trial court concluded that the petitioner failed to prove that trial counsel’s
investigation was inadequate. The trial court additionally concluded that Dr. Zager was not bound
by the opinion of either an investigator or the petitioner’s sister. The petitioner failed to establish
that Dr. Zager was lacking in either experience or education. The trial court acknowledged that had
Dr. Zager believed that the petitioner had Intermittent Explosive Disorder, Dr. Zager could have
conveyed this to trial counsel and recommended further evaluation of the petitioner. It stated that
Dr. Zager did not so recommend and that the petitioner had not established that Dr. Zager would
have done so if provided with additional information. The trial court also stated that the petitioner
was evaluated by the MTMHI forensic team, which included a psychiatrist, and noted that this team
also failed to diagnose the petitioner with Intermittent Explosive Disorder. The petitioner could not
establish the need for a second psychiatrist. Although the trial court acknowledged that the petitioner
had presented the testimony of Dr. Caruso to support his theory that he suffered from Intermittent
Explosive Disorder, the trial court did not place much weight on his testimony. It found that Dr.
Caruso relied upon studies that did not exist at the time of the petitioner’s trial. Moreover, the trial
court found that the state’s expert effectively impeached the post-conviction testimony of the
petitioner’s experts. The trial court concluded that the petitioner was not entitled to “shop” for an
expert to provide a particular opinion. Finally, the trial court determined that because the state’s
post-conviction psychiatrist rejected the Intermittent Explosive Disorder diagnosis, the petitioner had
not demonstrated that it was Dr. Zager’s status as a psychologist which caused her to reject the
theory.

         The petitioner contended that trial counsel should have presented evidence that the victim
was the aggressor in their relationship. The trial court acknowledged the facts as presented at trial,
including that the petitioner forced his way into the victim’s home, attacked her as her children
watched in horror, informed the children that he would kill their mother if they called for help,
chased the victim after she escaped, dragged her down the walkway, and held her under the water
in the children’s swimming pool. The trial court concluded that trial counsel were aware of the
relevant facts and that they made a tactical decision not to attack the victim at trial. It also concluded
that introduction of any evidence as to the victim’s role as first aggressor would have had little to
no legal significance as there was no proof that the victim provoked the petitioner at the time of her
murder and that any attempt to argue to the contrary would have resulted in the immediate and
irrevocable alienation of the jury. In a related issue, the trial court noted that the state possessed a


                                                    25
great deal of negative information about the petitioner that was not introduced at the trial. The trial
court concluded that had trial counsel pursued an attack of the victim’s character, the state would
have taken the opportunity to reveal many facts which would have harmed the petitioner much more
than presenting evidence concerning the victim’s past behavior would have benefitted him.

        The petitioner argued that trial counsel were ineffective for failing to interview his brother,
Jeff Hall, and preserve his testimony for trial. The trial court faulted the petitioner for failing to
present the testimony of his pretrial attorneys and determined that the petitioner failed to satisfy his
burden of proving this claim. Notwithstanding, the trial court found that the petitioner’s pretrial
attorneys were aware of Jeff Hall’s existence, including the fact that he was dying from AIDS.
While the trial court agreed with the petitioner that his pretrial attorneys should have preserved Jeff
Hall’s testimony out of caution, the trial court found that the petitioner had failed to demonstrate any
prejudice. The trial court additionally found that trial counsel did attempt to introduce the statement
during the trial but that it was ruled inadmissible.

        The petitioner claimed that trial counsel failed to present a sufficient mitigation defense
during the penalty phase of the trial. The trial court reviewed the evidence presented during the
penalty phase, recounting the testimony of the seven witnesses called by trial counsel, and rejected
the petitioner’s claim, finding that trial counsel portrayed the petitioner in the most positive light
possible under the circumstances. The trial court determined that the post-conviction testimony was
essentially the same as the testimony introduced at the trial. While acknowledging that the
petitioner’s sisters testified more during the post-conviction hearing, the trial court determined that
it had no bearing on the merits of his ineffective counsel claim, noting that “more is not always
better.” The trial court determined that nothing in the testimony of Martin Eskew would have
benefitted the petitioner. The trial court concluded that it was a reasonable strategic decision not to
present the testimony of either Jackie or Darlene Brittain, as any benefit of their testimony would
have been outweighed by the state’s cross-examination of either of these witnesses regarding their
statements to the TBI. Regarding the testimony of the Foremans and the Stanfills, the trial court
determined that it would have added little to the testimony already presented during the penalty
phase. Finally, the trial court indicated that the petitioner did not establish that trial counsel was
deficient for failing to interview witnesses personally.

                               Post-Conviction Standard of Review

        Post-conviction relief is only warranted when a petitioner establishes that his or her
conviction is void or voidable because of an abridgement of a constitutional right. T.C.A. § 40-30-
103. The petitioner’s challenge to his conviction and sentence for first degree murder is governed
by the 1995 Post-Conviction Act, which requires that allegations be proven by clear and convincing
evidence. See T.C.A. § 40-30-110(f). Evidence is clear and convincing when there is no serious or
substantial doubt about the accuracy of the conclusions drawn from the evidence. Hicks v. State,
983 S.W.2d 240, 245 (Tenn. Crim. App. 1998).




                                                  26
        Once the trial court has ruled upon a petition, its findings of fact are conclusive on appeal
unless the evidence in the record preponderates against them. Wallace v. State, 121 S.W.3d 652, 656
(Tenn. 2003); State v. Nichols, 90 S.W.3d 576, 586 (Tenn. 2002) (citing State v. Burns, 6 S.W.3d
453, 461 (Tenn. 1999)). This court may not reweigh or reevaluate the evidence or substitute its
inferences for those drawn by the post-conviction court. Nichols, 90 S.W.3d at 586. Questions
concerning the credibility of witnesses and the weight to be given their testimony are for resolution
by the post-conviction court. Id. (citing Henley v. State, 960 S.W.2d 572, 579 (Tenn. 1997)).
Notwithstanding, determinations of whether counsel provided a defendant constitutionally effective
assistance present mixed questions of law and fact. Wallace, 121 S.W.3d at 656; Nichols, 90 S.W.3d
at 586. As such, our review is de novo, and we accord the conclusions reached below no
presumption of correctness. Wallace, 121 S.W.3d at 656, Nichols, 90 S.W.3d at 586.

                       I. INEFFECTIVE ASSISTANCE OF COUNSEL

       The Sixth Amendment provides, in pertinent part, that, “[i]n all criminal prosecutions, the
accused shall enjoy the right . . . to have the Assistance of Counsel for his defence.” U.S. Const.
amend. VI. This right to counsel is “so fundamental and essential to a fair trial, and so, to due
process of law, that it is made obligatory upon the States by the Fourteenth Amendment.” Gideon
v. Wainwright, 372 U.S. 335, 340, 83 S. Ct. 792 (1963) (quoting Betts v. Brady, 316 U.S. 455, 465,
62 S. Ct. 1252 (1942)). Inherent in the right to counsel is the right to effective assistance of counsel.
Cuyler v. Sullivan, 446 U.S. 335, 344, 100 S. Ct. 1708 (1980); McMann v. Richardson, 397 U.S.
759, 771 n.14, 90 S. Ct. 1441 (1970); see also Strickland v. Washington, 466 U.S. 668, 686, 104 S.
Ct. 2052 (1984).

        “The benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct
so undermined the proper functioning of the adversarial process that the trial cannot be relied on as
having produced a just result.” Strickland, 466 U.S. at 686, 104 S. Ct. at 2064; Combs v. Coyle, 205
F.3d 269, 277 (6th Cir. 2000). A two-prong test directs a court’s evaluation of a claim of
ineffectiveness:

                First, the defendant must show that counsel’s performance was
                deficient. This requires showing that counsel made errors so serious
                that counsel was not functioning as the “counsel” guaranteed the
                defendant by the Sixth Amendment. Second, the defendant must
                show that the deficient performance prejudiced the defense. This
                requires showing that counsel’s errors were so serious as to deprive
                the defendant of a fair trial, a trial whose result is reliable.

Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. The Strickland standard applies, as well, to the right
to counsel under article I, section 9 of the Tennessee Constitution. See State v. Melson, 772 S.W.2d
417, 419 n.2 (Tenn. 1989).




                                                   27
        The performance prong of the Strickland test requires a petitioner raising a claim of
ineffectiveness to show that the counsel’s representation fell below an objective standard of
reasonableness, or “outside the wide range of professionally competent assistance.” Strickland, 466
U.S. at 690, 104 S. Ct. at 2066; see also Kimmelman v. Morrison, 477 U.S. 365, 386, 106 S. Ct.
2574 (1986). “Judicial scrutiny of performance is highly deferential, and ‘[a] fair assessment of
attorney performance requires that every effort be made to eliminate the distorting effects of
hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the
conduct from counsel’s perspective at the time.’” Combs, 205 F.3d at 278. Upon reviewing claims
of ineffective assistance of counsel, the court “must indulge a strong presumption that counsel’s
conduct falls within the wide range of reasonable professional assistance; that is, the defendant must
overcome the presumption that, under the circumstances, the challenged action ‘might be considered
sound trial strategy.’” Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. Additionally, courts should
defer to trial strategy or tactical choices if they are informed ones based upon adequate preparation.
Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982). Finally, we note that criminal defendants are not
entitled to perfect representation, only constitutionally adequate representation. Denton v. State, 945
S.W.2d 793, 796 (Tenn. Crim. App. 1996). In other words, “in considering claims of ineffective
assistance of counsel, ‘we address not what is prudent or appropriate, but only what is
constitutionally compelled.’” Burger v. Kemp, 483 U.S. 776, 794, 107 S. Ct. 3114, 3126 (1987).
Notwithstanding, we recognize that “[o]ur duty to search for constitutional [deficiencies] with
painstaking care is never more exacting than it is in a capital case.” Id. at 785, 107 S. Ct. at 3121.

        If the petitioner shows that counsel’s representation fell below a reasonable standard, then
the petitioner must satisfy the prejudice prong of the Strickland test by demonstrating “there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. “A reasonable
probability is a probability sufficient to undermine confidence in the outcome.” Id. In evaluating
whether a petitioner satisfies the prejudice prong, a court must ask “whether counsel’s deficient
performance renders the result of the trial unreliable or the proceeding fundamentally unfair.”
Lockhart v. Fretwell, 506 U.S. 364, 372, 113 S. Ct. 838 (1993) (citing Strickland, 466 U.S. at 687,
104 S. Ct. at 2064). In other words, a petitioner must establish that the deficiency of counsel was
of such a degree that it deprived the defendant of a fair trial and called into question the reliability
of the outcome. Nichols v. State, 90 S.W.3d 576, 587 (Tenn. 2002). That is, the evidence stemming
from the failure to prepare a sound defense or to present witnesses must be significant, but it does
not necessarily follow that the trial would have otherwise resulted in an acquittal. Code v.
Montgomery, 799 F.2d 1481, 1483 (11th Cir. 1986); Nealy v. Cabana, 764 F.2d 1173, 1178-79 (5th
Cir. 1985). “A reasonable probability of being found guilty of a lesser charge, or a shorter sentence,
satisfies the second prong in Strickland.” State v. Zimmerman, 823 S.W.2d 220, 225 (Tenn. Crim.
App. 1991); see also Chambers v. Armontrout, 907 F.2d 825, 832 (8th Cir. 1990), cert. denied, 498
U.S. 950, 111 S. Ct. 369 (1990). Moreover, when challenging a death sentence, the petitioner must
show that “there is a reasonable probability that, absent the errors, the sentencer . . . would have
concluded that the balance of the aggravating and mitigating circumstances did not warrant death.”
Henley v. State, 960 S.W.2d 572, 579-80 (Tenn. 1997), reh’g denied, (1998), cert. denied, No. 97-



                                                  28
8880 (U.S. Tenn. Oct. 5, 1998) (citing Strickland v. Washington, 466 U.S. at 695, 104 S. Ct. at
2069).

                              II. CLAIMS BEFORE THIS COURT

         On appeal, the petitioner claims that his trial counsel failed to function as effective counsel
as guaranteed by both the Tennessee and United States Constitutions. In this regard, he asserts that
they denied him the effective assistance of counsel at both the guilt and penalty phase of his trial by
failing to meet these standards for capital representation:

       (1) trial counsel failed to present an intoxication defense properly;
       (2) trial counsel failed to establish the victim as the aggressor;
       (3) trial counsel failed to preserve the testimony of Jeff Hall;
       (4) trial counsel failed to present evidence of the petitioner’s habit of disconnecting
       telephone lines;
       (5) trial counsel failed to present the mental health issue properly;
       (6) trial counsel failed to present evidence that the petitioner was a good father and
       evidence of other good acts of the petitioner;
       (7) trial counsel failed to develop a defense strategy; and
       (8) trial counsel failed to interview all potential witnesses.

We proceed to review each of the petitioner’s arguments and analyze them in light of trial counsel’s
conduct and performance. We note that the petitioner has failed to assign counsel’s alleged
deficiencies to either the guilt or the penalty phase. As did the trial court, we will review the errors
in appropriate context at either the guilt phase, penalty phase, or both.

                   A. Counsel failed to present an intoxication defense properly

        The petitioner contends that trial counsel failed to present evidence of intoxication properly
to negate his ability to form the requisite intent to establish premeditation. He complains that trial
counsel “failed to produce one shred of evidence regarding intoxication.” In this regard, the
petitioner contends that trial counsel was ineffective for failing to locate and present the testimony
of Diana Pearson and Alice Pearson. At the post-conviction hearing, the petitioner presented their
testimony. Both said that they were at a bar on July 29, 1994, and that they could barely recall
having drinks with the petitioner.

        Mr. Ford testified that intoxication, while not a defense to murder, was a part of their defense
theory. He said that he was unsuccessful in his attempt to locate witnesses who knew of the
petitioner’s alcohol problem. Moreover, the petitioner refused to testify. Mr. Ford stated that the
defense was unable to pursue this avenue at trial based on these factors.

       The trial transcript reveals that evidence of intoxication was presented through the testimony
of several witnesses:


                                                  29
       1. On cross-examination, Chris Dutton acknowledged telling the authorities that the
       petitioner had stated that he had started drinking after he spoke with the victim on the
       telephone on the day of the murder and that he was drunk at the time of the incident.

       2. On cross-examination, one of the petitioner’s daughters, Cynthia Lambert,
       admitted that he had brought beer with him to the victim’s home and that he started
       drinking one of the beers in her presence.

       3. Dr. Lynn Zager, a defense witness, testified to the petitioner’s alcohol dependence
       problem and that, at the time of the incident, he was intoxicated on alcohol. On
       cross-examination, Dr. Zager stated that her information as to the petitioner’s
       intoxication at the time of the offense was not based solely upon the petitioner’s self-
       report, but also on interviews of persons with the petitioner “shortly before the
       incident” that were conducted by Mike Mosier, previous counsel for the petitioner.

 Additionally, Dr. Zager relied upon information provided by the petitioner’s family regarding his
alcohol problem.

        We conclude, as did the trial court, that the trial transcript directly refutes the petitioner’s
claim that trial counsel failed to present any evidence of intoxication. Moreover, we cannot conclude
that counsel was deficient for failing to present the testimony of either Alice or Diana Pearson.
Neither witness could testify regarding the amount of alcohol consumed by the petitioner. Neither
witness could testify as to whether the petitioner appeared intoxicated. Indeed, both witnesses could
barely remember sharing drinks with him at all. The petitioner has failed to establish how the
testimony of these witnesses was relevant to a theory of intoxication, and he has failed to establish
either deficient performance or resulting prejudice.

         Additionally, while the petitioner could have testified as to the level of his intoxication
before the murder, the petitioner decided not to testify. Counsel cannot be found ineffective for the
petitioner’s decision not to testify. The petitioner is not entitled to relief on this claim.

                     B. Counsel failed to establish the victim as the aggressor

        The petitioner asserts that the post-conviction testimony of his siblings “and the Brittains
clearly establish that the victim was capable of goading the petitioner.” He contends that this
evidence established provocation and was essential to establish the circumstances for voluntary
manslaughter. Trial counsel testified that they made a strategic decision not to attack the character
of the victim because it ran the risk of alienating the jury. Mr. Mayo also said that as best as he
could recall, the victim’s acts against the petitioner were not severe enough to imply that his conduct
was reasonable. Both Mr. Mayo and Mr. Ford stated that the petitioner was the only reliable source
to establish the victim’s acts of violence but that he refused to testify.




                                                  30
         Briefly summarized, the facts established that the petitioner disconnected the telephone lines,
forced his way into the victim’s home, and violently attacked her as the children jumped on his back,
bit him, and pleaded for him to stop hurting their mother. The fight continued outside, where the
petitioner dragged the victim across the driveway and to the back of the house. There, he held her
under the water in the children’s swimming pool. No evidence showed that the victim provoked the
petitioner immediately before his actions that resulted in her death. The trial court concluded that
in light of these facts, evidence of the victim’s prior acts of aggression upon the petitioner would not
have assisted counsel in establishing that the victim was the first aggressor on this occasion.
Additionally, the trial court found that the testimony of Dr. Zager and Randy Helms communicated
to the jury that the petitioner was emotionally distraught and acting in an impulsive manner.

        During the petitioner’s trial, counsel attempted to negate the element of premeditation by
presenting evidence of mental health issues and intoxication rather than attempt to establish the
provocation necessary to support a voluntary manslaughter verdict. The state possessed a sufficient
amount of information reflecting prior acts of violence by the petitioner against the victim, but did
not seek introduction of this evidence at trial. However, had the defense attempted to establish the
victim as the first aggressor, the state could have presented such information to discredit any
indication that the victim provoked the petitioner. The defense strategy not to portray the victim as
the aggressor was reasonable, given the risk of the backlash from attacking the deceased victim’s
character. See, e.g., Heiman v. State, 923 S.W.2d 622, 627 (Tex. Crim. App. 1995) (stating it was
sound trial strategy to refrain from attacking the victim’s character as it was conceivable that the jury
would have found this strategy repugnant). Accordingly, the petitioner has failed to establish that
counsel was deficient by failing to pursue this theory of defense. He is not entitled to relief as to this
claim.

                    C. Trial counsel failed to preserve the testimony of Jeff Hall

        The petitioner’s brother, Jeff Hall, died from complications of AIDS on July 4, 1995. The
petitioner claims that trial counsel were ineffective for failing to preserve his testimony. It is
undisputed that Mr. Ford and Mr. Mayo were not counsel of record at the time of Jeff Hall’s death.
The record reflects that during the guilt phase of the trial, counsel attempted to introduce the affidavit
through the testimony of Sheryl Arbogast. See Hall, 8 S.W.3d at 603. The trial court excluded the
testimony because Ms. Arbogast had no personal knowledge of the facts regarding her brother’s
mental state. The issue was raised on direct appeal. Both this court and the Tennessee Supreme
Court affirmed the trial court’s exclusion of this statement. In affirming the trial court’s exclusion
of the statement, our supreme court reasoned:

                Rule 804 provides for certain exceptions to the hearsay exclusionary
                rule when a witness is “unavailable.” “Unavailability” is defined at
                subsection (a)(4) as including situations in which the declarant “[i]s
                unable to be present or to testify at the hearing because of the
                declarant’s death or then existing physical or mental illness or
                infirmity.” However, under subsection (b) of Rule 804, the hearsay


                                                   31
               exception for unavailable witnesses applies only to (1) former
               testimony, (2) statements under belief of impending death, (3)
               statements against interest, and (4) statements of personal and family
               history. See Tenn. R. Evid. 804(b). Jeff Hall’s descriptions to
               Arbogast of the defendant’s mental state do not fall within any of
               these exceptions.

Id. Mr. Ford and Mr. Mayo were not deficient in failing to secure introduction of Jeff Hall’s
testimony.

        Notwithstanding, the issue arises as to whether pretrial counsel were ineffective for failing
to interview or preserve the testimony of Jeff Hall. Before his death, Sheryl Abrogast traveled to
Texas and obtained an affidavit from him. In the affidavit, he said that the petitioner had visited him
in June 1994. During this visit, he observed that the petitioner was “very depressed/suicidal over
family and money problems.” The affidavit reflects Mr. Hall’s belief that the petitioner loved his
wife and children. He also believed that if his brother was guilty of murder, the murder was “invoked
and induced by someone.” He said that “Jon acted under strong provocation, stress, pressure, and
seemed to be dysfunctional during his visit with me . . . .” Mr. Hall closed by stating that his
brother’s attorneys had never contacted him about testifying as a character witness.

        The petitioner failed to call his former attorneys as witnesses during the post-conviction
evidentiary hearing. As such, he has failed to satisfy his burden of proving his allegation by clear
and convincing evidence. Neither the trial court nor this court have any way of knowing the
circumstances relevant to the issue and former counsel or whether a tactical reason existed to
withhold this information from the jury absent testimony from pretrial counsel. The petitioner is not
entitled to relief on this claim.

D. Trial counsel failed to present evidence of the petitioner’s habit of disconnecting telephone wires

        At the post-conviction hearing, the petitioner maintained that the act of disconnecting
telephone lines, by itself, appeared sinister. He presented testimony that it was common for him to
disconnect telephone lines in order to obtain the undivided attention of the person he was
confronting. The petitioner maintained that none of the prior incidents where he disconnected
telephone lines resulted in him inflicting harm. His position at the post-conviction hearing was that
introduction of these prior incidents would have taken away the “sting” of the wires being
disconnected and would have negated premeditation. He maintains that trial counsel were
ineffective for failing to introduce evidence establishing that it was the petitioner’s habit to
disconnect telephone lines.

        At the post-conviction hearing, trial counsel disagreed with the petitioner’s theory on his
habit of disconnecting telephone lines. Mr. Mayo testified that the act of disconnecting telephone
lines to a house, no matter for what purpose, “paints a picture of someone who is on the edge.”
While he agreed that the act of disconnecting the wires appeared sinister, he believed that it looked


                                                  32
sinister whether or not someone was harmed. He said that he could not conclude that this
information would have been helpful to the petitioner. Mr. Ford testified that counsel was aware of
the petitioner’s practice of disconnecting telephone lines because it was contained in Carroll County
police reports. Mr. Ford testified that evidence of a habit of disconnecting telephone lines
established that the petitioner wanted to control situations and planned to do the same again. He
disagreed with the position that this evidence would have negated premeditation.

         The trial transcript reflects that during cross-examination of Chris Dutton, trial counsel
elicited the fact that the petitioner had explained that he had disconnected the telephone line on
previous occasions to prevent the victim from calling the police. See Hall, 8 S.W.3d at 598. Thus,
information was conveyed to the jury that the petitioner had previously disconnected telephone lines
with no harm resulting to the person he was confronting. We conclude, as did the trial court, that
trial counsel was not deficient for failing to introduce multiple instances showing the petitioner’s
habit of disconnecting telephone lines. See Hellard, 629 S.W.2d at 9. The petitioner is not entitled
to relief on this claim.

                E. Trial counsel failed to present the mental health issue properly

                              1. Factual background underlying claim

        During the guilt phase of the petitioner’s trial, trial counsel presented the testimony of Dr.
Lynn Zager, a clinical psychologist. See Hall, 8 S.W.3d at 598. Dr. Zager diagnosed the petitioner
as depressed and suffering from alcohol dependence. She further observed “personality
characteristics of paranoia and dependency.” In her professional opinion, she believed that the
petitioner suffered from depression and alcohol intoxication at the time of the killing. She found
these factors were compounded by his personality characteristics and various psycho-social stressors,
including a sick child, loss of employment with the resulting financial problems, his impending
divorce, and the terminal illness of a brother. She concluded that the petitioner acted in an impulsive
manner in killing his wife, rather than pursuant to a preconceived plan.

        Dr. Zager testified again during the penalty phase along with Dr. Joe Mount, a psychological
examiner who counseled the petitioner at Riverbend Maximum Security Institution. Hall, 8 S.W.3d
at 598. Both doctors described him as “depressed, remorseful, suicidal and extremely concerned
about his children.” Dr. Mount testified that the petitioner had been diagnosed as suffering from an
adjustment disorder with mixed emotional features and “substance abuse of dependence by history.”
Id. at 599.

       At the post-conviction evidentiary hearing, the petitioner presented the testimony of Dr.
Pamela Auble and Dr. Keith Caruso, who examined the petitioner at the request of post-conviction
counsel. Both doctors testified that a complete social history, including interviews with more than
one family member, was necessary in order to competently evaluate a client.




                                                  33
        Dr. Auble’s evaluation of the petitioner resulted in several conclusions: (1) certain results
were consistent with attention deficit disorder, (2) results indicated the petitioner has difficulty
controlling emotions in emotional situations, (3) the petitioner exhibited low self-esteem, (4)
evidence of internal anger existed, (5) the petitioner may have had trouble understanding people and
perceiving them in accurate ways, and (6) evidence existed of tension from his current situation. Dr.
Auble stated that a low serotonin level would be consistent with Intermittent Explosive Disorder.
 On cross-examination, Dr. Auble conceded that a diagnosis of Intermittent Explosive Disorder is
made only after other mental disorders and alcohol or drug abuse are excluded. Alcohol abuse, drug
abuse, and other mental disorders could not be excluded as the cause of the petitioner’s aggressive
behavior. She conceded that her conclusions were basically the same as those reached by Dr. Zager.

        Dr. Caruso concluded that because of Intermittent Explosive Disorder, major depression, and
intoxication, but mostly Intermittent Explosive Disorder the petitioner was unable to achieve a
mental state absent of passion and excitement. He said that recent research by Dr. Emil Coccaro
revealed a correlation between low levels of serotonin in the brain and violent acts. He stated that
the petitioner’s serotonin level is in the bottom five percent and is, therefore, consistent with
someone having Intermittent Explosive Disorder. On cross-examination, Dr. Caruso conceded that
Dr. Coccaro’s findings relative to serotonin level and Intermittent Explosive Disorder were neither
available in 1995 nor at the time of the trial because Dr. Coccaro’s theory was not presented until
2001. He further conceded that this information is not contained in the current DSM4. Dr. Caruso
agreed that the petitioner’s act of disconnecting the telephone line established that he was capable
of some degree of planning.

        The state presented the testimony of Dr. Kimberly Stalford to rebut the conclusions of Dr.
Auble and Dr. Caruso. Dr. Stalford defined Intermittent Explosive Disorder and stated that she did
not diagnose the petitioner as having the disorder. She concluded that the petitioner’s behavior was
better explained with a diagnosis of passive/aggressive traits, dependant traits, and anti-social traits,
including a reckless disregard for other people and agitated and potentially violent acts. She also
diagnosed the petitioner with alcohol dependence.

        Dr. Stalford discounted the correlation between low serotonin levels and Intermittent
Explosive Disorder. Specifically, she said that a low serotonin level is not a useful diagnostic tool
for three reasons: (1) many medical, neurological, and psychiatric conditions have been linked to
altered serotoninergic levels so as to rebut the assertion that a low level of serotonin is undoubtedly
linked only to Intermittent Explosive Disorder; (2) serotonin levels measured in the spinal fluid are
not an accurate indication of the serotonin activity in the synapses which is where it works; and (3)
much question exists as to what are “normal” levels of serotonin.

        The petitioner contends that trial counsel was ineffective for failing to provide Dr. Zager with
a complete mitigation history of the petitioner, which prohibited a complete evaluation of the
petitioner’s mental condition. Additionally, he asserts that counsel was ineffective for relying upon
the evaluation of Dr. Zager, a psychologist, rather than obtaining the services of a psychiatrist.



                                                   34
                          2. Failure to provide complete mitigation history

        In his brief, the petitioner makes several statements regarding counsel’s “duty to investigate
thoroughly a complete mitigation history of the client.” However, he fails to allege which portions
of his social history were not provided to Dr. Zager. At the post-conviction hearing, three of the
petitioner’s sisters and several of his friends testified that trial counsel failed to interview them until
the evening before their testimony. It was established, however, that the petitioner had been
appointed investigators by the court. The petitioner did not present the testimony of these
investigators or his pretrial attorneys at the post-conviction hearing.

        The mitigation assessments and reports provided by Dr. Ann Charvat and Gloria Shettles
were introduced as part of the post-conviction record. Dr. Charvat’s assessment contained
summaries of her interviews with Sheryl Arbogast and the petitioner’s mother. Dr. Charvat
compiled a lengthy family history and her report also contained a list of potential witnesses and
detailed guidance for the manner in which defense counsel should prepare for a capital murder trial.
Additionally, the post-conviction record contains one memorandum completed by Gloria Shettles,
the mitigation specialist, showing that both the petitioner and Sheryl Arbogast had reviewed and
made corrections to Dr. Charvat’s initial assessment. The memorandum also indicates that
correspondence had been forwarded to the petitioner’s family for the purpose of separate interviews
and additional background information. The memorandum reflects Gloria Shettles’ conclusion that
the petitioner may have suffered from Intermittent Explosive Disorder. The petitioner failed to
present the testimony of Ms. Shettles and failed to provide the court with additional reports. The
petitioner has not established that Ms. Shettles did not interview potential witnesses. Finally, there
is evidence that defense counsel was granted funds for a private investigator, Tammy Askew. There
is no evidence before the court that Ms. Askew did or did not conduct any investigation.

         Trial counsel testified that Dr. Zager was provided all of the relevant information that they
possessed. The record does contain a letter written on November 19, 1995, by Dr. Zager to one of
the petitioner’s pretrial attorneys, which stated her need for more information before she would be
able to deliver a definitive assessment of the petitioner. Specifically, she inquired as to interviews
with Randy Helms, Jackie and Darlene Brittain, the petitioner’s mother, Debbie Davis, Sheryl
Arbogast, and Jeff Hall. The letter closed by stating, “I will provide a complete report once the
above information is received and reviewed in light of the evaluation.” The petitioner failed to call
Dr. Zager as a witness at the post-conviction hearing. We can presume from the fact that she
testified as to the petitioner’s mental condition at trial that she was provided sufficient information
for a complete report. The petitioner has failed to establish that Dr. Zager was not provided all
relevant information. Counsel cannot be found deficient when they complete an adequate
investigation.

                            3. Failure to obtain services of a psychiatrist

        The petitioner complains that trial counsel were ineffective for failing to seek the services
of a psychiatrist. The petitioner was provided the services of Dr. Zager, a clinical psychologist. The


                                                    35
evidence does not indicate whether Dr. Zager had Gloria Shettles’ report mentioning Intermittent
Explosive Disorder available to her. Evidence at the post-conviction hearing reflected that Ms.
Shettles discussed the possibility of the petitioner’s suffering from Intermittent Explosive Disorder
with Sheryl Arbogast. Ms. Arbogast apparently agreed with Ms. Shettles’ assessment. However,
neither Ms. Shettles nor Ms. Arbogast were qualified to provide a diagnosis as to the petitioner’s
mental condition, and Dr. Zager was not bound to adopt their opinions. Dr. Zager’s qualifications
as a clinical psychologist are not disputed, and there is noting indicating that Dr. Zager’s diagnosis
would have changed had she been provided additional information. Accordingly, we believe that the
only complaint concerning Dr. Zager’s diagnosis is that it is not the diagnosis now desired by the
petitioner. In effect, the petitioner is contending that trial counsel were deficient for failing to
present evidence of Intermittent Explosive Disorder.

        Nothing in the record indicates that Dr. Zager did not consider the possibility that the
petitioner suffered from Intermittent Explosive Disorder. Additionally, had Dr. Zager believed that
a serotonin test was necessary, she could have informed trial counsel that she did not have the
authority to order such a test and that a psychiatrist should be contacted to conduct further
evaluations. Dr. Zager did not make any such indication to trial counsel. Additionally, the petitioner
has failed to present any evidence establishing that trial counsel should not have relied upon Dr.
Zager’s professional opinion.

        Dr. Zager did not diagnose the petitioner with Intermittent Explosive Disorder. The Middle
Tennessee Mental Health Institute team, which included a psychiatrist, did not diagnose the
petitioner with Intermittent Explosive Disorder. Finally, the state’s post-conviction psychiatrist did
not diagnose the petitioner with the disorder. Thus, the petitioner’s claim, at best, amounts to an
assertion that counsel should have obtained an expert who would have diagnosed the petitioner with
Intermittent Explosive Disorder. The Constitution does not require attorneys to “shop around” for
more favorable expert testimony. See Poyner v. Murray, 964 F.2d 1404, 1419 (4th Cir. 1992).

        Although the petitioner has now presented the testimony of two experts to support his theory
of Intermittent Explosive Disorder, he still has not established that counsel was deficient for failing
to present such testimony at trial. Dr. Caruso conceded that research relative to the correlation of
low serotonin levels and Intermittent Explosive Disorder was unavailable at the time of the
petitioner’s trial. Additionally, the trial court determined that the testimony of both Dr. Auble and
Dr. Caruso was effectively impeached through cross-examination of these witnesses and by the
testimony of Dr. Stalford. The petitioner has failed to establish that trial counsel should have
presented evidence of Intermittent Explosive Disorder. He is not entitled to relief on this claim.

       F. Trial counsel failed to present evidence that the petitioner was a good father and
                           evidence of other good acts of the petitioner

        The petitioner asserts that he has presented “massive amounts of ‘good guy’ and ‘good
father’ evidence” during the post-conviction evidentiary hearing. The record reflects that he
presented the testimony of (1) Sheryl Arbogast and Kathy Hugo, the petitioner’s sisters, who could


                                                  36
have testified to his aptitude as a father, (2) Clarence Stanfill, Joe Henry Stanfill, Valene Foreman,
Paula Foreman, and Pamela Foreman who could have testified to the petitioner’s ability to care for
his children, and (3) Jackie and Darlene Brittain who could have testified to good acts performed by
the petitioner. He contends that trial counsel were deficient for failing to investigate and interview
favorable witnesses and for failing to introduce their testimony at trial.

       In the context of capital cases, a defendant’s background, character, and mental condition are
unquestionably significant. “[E]vidence about the defendant’s background and character is relevant
because of the belief . . . that defendants who commit criminal acts that are attributable to a
disadvantaged background, or to emotional and mental problems, may be less culpable than
defendants who have no such excuse.” California v. Brown, 479 U.S. 538, 545, 107 S. Ct. 837, 841
(1987); see Eddings v. Oklahoma, 455 U.S. 104, 113-15, 102 S. Ct. 869, 876-77 (1982); Lockett v.
Ohio, 438 U.S. 586, 604-05, 98 S. Ct. 2954 (1978) (plurality opinion); Zagorski v. State, 983 S.W.2d
654, 657-58 (Tenn. 1998); Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996). The right that capital
defendants have to present a vast array of personal information in mitigation at the sentencing phase,
however, is constitutionally distinct from the question whether counsel’s choice of information to
present to the jury was professionally reasonable.

        There is no constitutional imperative that counsel must offer mitigation evidence at the
penalty phase of a capital trial. Nonetheless, the basic concerns of counsel during a capital
sentencing proceeding are to neutralize the aggravating circumstances advanced by the state and to
present mitigating evidence on behalf of the defendant. Although there is no requirement to present
mitigating evidence, counsel does have the duty to investigate and prepare for both the guilt and the
penalty phase. See Goad, 938 S.W.2d at 369-370.

         To determine whether trial counsel was ineffective for failing to present mitigating evidence,
the reviewing court must consider several factors. First, the reviewing court must analyze the nature
and extent of the mitigating evidence that was available but not presented. Goad, 938 S.W.2d at 371
(citing Deutscher v. Whitley, 946 F.2d 1443 (9th Cir. 1991); Stephens v. Kemp, 846 F.2d 642 (11th
Cir. 1988); State v. Adkins, 911 S.W.2d 334 (Tenn. Crim. App. 1994); Cooper v. State, 847 S.W.2d
521, 532 (Tenn. Crim. App. 1992)). Second, the court must determine whether substantially similar
mitigating evidence was presented to the jury in either the guilt or penalty phase of the proceedings.
Id. (citing Atkins v. Singletary, 965 F.2d 952 (11th Cir. 1992), cert. denied, 515 U.S. 1165, 115 S.
Ct. 2624 (1995); Clozza v. Murray, 913 F.2d 1092 (4th Cir. 1990), cert. denied, 499 U.S. 913, 111
S. Ct. 1123 (1991); Melson, 722 S.W.2d at 421)). Third, the court must consider whether there was
such strong evidence of applicable aggravating factors that the mitigating evidence would not have
affected the jury’s determination. Id. (citing Fitzgerald v. Thompson, 943 F.2d 463, 470 (4th Cir.
1991), cert. denied, 502 U.S. 1112, 112 S. Ct. 1219 (1992); Elledge v. Dugger, 823 F.2d 1439 (11th
Cir. 1987), cert. denied, 485 U.S. 1014, 108 S. Ct. 1487 (1988)).

       Trial counsel developed a mitigation theory that was supported by both expert and lay
witnesses. During the penalty phase of the petitioner’s trial, Dr. Zager testified that the petitioner’s
children “meant everything” to the petitioner. She stated that he was the children’s primary caretaker


                                                  37
and that he was very protective of them. Dr. Zager recognized the relationship the petitioner shared
with his daughter who suffered from cerebral palsy. Dr. Joe Mount testified that the petitioner was
extremely concerned about his children. He expressed his opinion that the petitioner cared a great
deal for his children. Dr. Mount also acknowledged the petitioner’s concerns about his daughter who
suffered from cerebral palsy. Randy Helms, the petitioner’s former employer, described the
petitioner as a good, dependable employee and conveyed how he had cared for his children. He
affirmed the petitioner’s love for his wife and children. The petitioner’s sister, Debbie Davis,
described him as “a wonderful person at home, very helpful. He would help anybody do anything.”
Ms. Davis testified that the petitioner “just adored the children,” noting that “[h]e was a wonderful
daddy. He was just absolutely wonderful.” She stated, “He played with all of them. . . . He loved
them equally. He loved them all.” Finally, the petitioner’s mother stated that he took care of his
children and loved them all. She also related how the petitioner took special care of his daughter
with cerebral palsy.

       In addition to this testimony, defense counsel elicited favorable character information during
cross-examination of several of the state’s witnesses. Chris Dutton testified that the petitioner was
concerned about his children, especially his daughter with cerebral palsy. During the examination
of TBI Agent Byrd, defense counsel elicited testimony that the petitioner expressed remorse over
causing his wife’s death.

        The petitioner presented seven witnesses during the penalty phase of the trial. Contrary to
the petitioner’s assertions, trial counsel did introduce evidence to rebut the state’s portrayal of him
as a “monster.” At the post-conviction hearing, the petitioner maintained that trial counsel did not
adequately explore potential mitigation witnesses and he presented numerous witnesses to
demonstrate the type of mitigating evidence which he believed should have been presented during
the penalty phase. These witnesses testified regarding their perceptions of the petitioner as a father
and a person. These witnesses were cumulative and expounded upon testimony presented by the
seven witnesses presented at the penalty phase. In this regard, we conclude that trial counsel
identified and presented testimony supporting the relevant mitigating themes. The only question is
whether trial counsel should have introduced more mitigating evidence. We cannot conclude that
a reasonable probability exists that more testimony of this nature would have led the jury to conclude
that the “balance of aggravating and mitigating circumstances did not warrant death.” Nichols, 90
S.W.3d at 602.

        Additionally, we conclude that trial counsel strategically elected not to present the testimony
of several witnesses. With regard to the testimony of Jackie and Darlene Brittain, we agree with trial
counsel’s assessment that any valuable testimony that they could have provided for the petitioner was
outweighed by the danger of the state cross-examining these witnesses as to prior threats made by
the petitioner against the victim, including that he “was going to grind his wife up into hamburger
meat.” We also question the importance of several witnesses, i.e., Valene Foreman, Pamela
Foreman, and Paula Foreman, who indicated from their testimony that they did not know the
petitioner very well. Additionally, some of their testimony contradicted the petitioner’s claim that



                                                  38
he always cared for the children when the victim was at work or at school. Again, the petitioner has
failed to establish that counsel’s performance was deficient.

        Finally, with regard to the claims of post-conviction witnesses that trial counsel failed to
contact them regarding their potential testimony, we again refer to the fact that the defense team
consisted of three investigators. None of these investigators were called to testify at the post-
conviction hearing. There is evidence that defense counsel was aware of these potential witnesses.
For instance, Darlene Brittain testified that trial counsel informed her that they would not call her
as a witness because of the petitioner’s “hamburger” statement; Jackie Brittain stated that the state
had subpoenaed him as a witness as he had provided information that the petitioner had made threats
against the victim. He conceded that trial counsel had talked with him at the courthouse. The
petitioner has failed to establish that he is entitled to relief on this claim.

                       G. Trial counsel failed to present a theory of defense

        The petitioner asserts that trial counsel failed to develop and present a theory of defense.
Specifically, he complains that trial counsel failed to present evidence of intoxication, evidence that
the murder was the result of a continuing domestic dispute, or any other evidence favorable to the
petitioner. The petitioner’s allegation is not supported by either the record of the post-conviction
hearing or the record of the petitioner’s trial. Mr. Ford testified that the defense relied upon a theory
that the petitioner was acting in an impulsive manner. Trial counsel attempted to convince the jury
that the petitioner was distraught, depressed, and intoxicated. Trial counsel argued that the
petitioner’s behavior reflected an impulsive act as opposed to a planned act. Counsel asserted that
the state had failed to meet its burden of proving premeditation and deliberation beyond a reasonable
doubt. During opening argument, trial counsel focused on the petitioner’s domestic problems with
the victim, suggested that the petitioner went to the victim’s residence hoping for a reconciliation,
and emphasized the fact that the petitioner did not take a weapon with him. Counsel supported this
position throughout their examination of the witnesses. These theories continued throughout the
penalty phase. The petitioner’s claims are clearly not supported by the record. The petitioner has
not presented any other evidence that the defense was not adequate. Therefore, the petitioner has not
met the requirements to be granted post-conviction relief on this claim.

                  III. WAIVED OR PREVIOUSLY DETERMINED ISSUES

        The petitioner challenges the constitutionality of Tennessee’s death penalty statutes,
contending that (1) the heinous, atrocious, or cruel aggravating factor is unconstitutionally vague and
overbroad; (2) the sentence of death cannot be fairly imposed and administered; and (3) the sentence
of death unconstitutionally infringes upon the petitioner’s right to life. The trial court rejected these
claims, finding them previously determined, waived, or not supported with evidence. The trial court
also determined that the claims raised by the petitioner have been rejected by Tennessee’s appellate
courts on numerous occasions. We agree on all points.




                                                   39
        Waiver of a claim occurs when “the petitioner personally or through an attorney fail[s] to
present [the claim] for determination in any proceeding before a court of competent jurisdiction in
which the ground could have been presented.” T.C.A. § 40-30-106(g). A ground for relief is
“previously determined” if a court of competent jurisdiction has ruled on the merits after a full and
fair hearing.” T.C.A. § 40-30-106(h).

       On direct appeal, the petitioner challenged the constitutionality of the heinous, atrocious, or
cruel aggravating circumstance. See State v. Jon Douglas Hall, No. 02C01-9703-CC-00095,
Madison County (Tenn. Crim. App. Apr. 29, 1998), aff’d by, 8 S.W.3d 593. Accordingly, this claim
has been previously determined.

         Waiver is determined by an objective standard under which a petitioner is bound by the
action or inaction of his attorney. House v. State, 911 S.W.2d 705, 714 (Tenn. 1995).
Notwithstanding, the presumption that a ground not raised is waived is rebuttable. T.C.A. § 40-30-
106(g). To rebut the presumption, the petition must contain “allegations of fact supporting each
claim for relief set forth in the petition and allegations of fact explaining why each ground for relief
was not previously presented in any earlier proceeding.” T.C.A. § 40-30-104(e). In his amended
petition for post-conviction relief, the petitioner alleged that appellate counsel was ineffective for
failing to challenge the constitutionality of Tennessee’s death penalty scheme on direct appeal. No
evidence was presented at the post-conviction hearing regarding this claim. Thus, the trial court was
precluded from finding anything other than waiver of these claims. Similarly, in his brief to this
court, petitioner does not couch his challenges to the constitutionality of the death penalty scheme
in terms of appellate counsel’s failure to raise the issue on appeal. Again, we are precluded from
reaching any result other than that finding that the petitioner has waived these issues by failing to
present these claims in his prior proceeding before a court of competent jurisdiction. For these
reasons, the petitioner is not entitled to relief on these claims.

                                          CONCLUSION

        After a thorough review of the record and the law applicable to the issues raised, we conclude
that the evidence does not preponderate against the trial court’s factual findings and that the
petitioner has not shown that he received the ineffective assistance of counsel or an unconstitutional
sentence. In consideration of the foregoing and the record as a whole, the judgment of the trial court
is affirmed.




                                                       JOSEPH M. TIPTON, JUDGE




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