                                                                                          04/30/2019
           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                                  June 5, 2018 Session

               GEORGE FRANKLIN v. STATE OF TENNESSEE
                    Appeal from the Criminal Court for Shelby County
                         No. 02-08108-09     Chris Craft, Judge



                              No. W2017-01174-CCA-R3-PC
                        _____________________________

ROBERT W. WEDEMEYER, J., concurring in part and dissenting in part.

        I respectfully disagree with the conclusion by the majority that the Petitioner’s
trial counsel was effective during the sentencing portion of his representation of the
Petitioner, and I would remand the case for resentencing. I concur with the majority
opinion pertaining to the alleged Brady violation.

        Counsel had access to and chose not to present evidence regarding multiple
mitigating factors that applied to the Petitioner’s case. Ms. Shettles, the mitigation
expert, testified at the post-conviction hearing that her investigation, which resulted in a
600 page file, offered evidence to support mitigating factors in non-capital cases. She
noted that it showed: the Petitioner had no significant criminal history (especially
considering the environment in which he was raised); the crimes were committed while
the Petitioner was under the influence of a self-defense or duress type of mental
disturbance; the victim participated in the Petitioner’s conduct (this being a shoot-out
situation); the crimes were committed under circumstances where the Petitioner
reasonably believed there was a moral justification; the Petitioner was an accomplice (he
was not the shooter); the Petitioner cooperated with authorities and showed remorse; the
Petitioner’s conduct in jail was exemplary; and the Petitioner had a solid work history.

       During the sentencing hearing the trial court stated:

              [The Petitioner] had no steady work history, and was in fact a drug
       dealer, whose last drug deal had caused the shooting death of a three-year-
       old girl and the shooting of several other people. He had never held a job
       for more than a few months. His mother testified under cross-examination
       that she could not recall his ever working except for a couple of months
       while in Virginia Beach.
       The mitigation expert testimony at the post-conviction hearing, which was never
presented at sentencing, directly contravenes the trial court’s findings at the sentencing
hearing regarding the Petitioner’s work history.

        The post-conviction court, in its order denying the Petitioner relief, referred to
“[m]uch of the mitigation prepared for use at the trial in the sentencing phase” as
“inadmissible . . . hearsay in the noncapital sentencing hearing.” I disagree. Under
Tennessee law, while the Tennessee Rules of Evidence apply to sentencing hearing, a
trial court shall afford the parties at a sentencing hearing the opportunity to be heard and
to present evidence relevant to the sentencing. T.C.A. § 40-35-209(b) (2014) (emphasis
added); See also State v. Mounger, 7 S.W.3d 70, 74 (Tenn. Crim. App. 1999). That
statute reads:

              At the sentencing hearing, the court shall afford the parties the
       opportunity to be heard and present evidence relevant to the sentencing of
       the defendant and may afford the victim of the offense or the family of the
       victim the opportunity to testify relevant to the sentencing of the defendant.
       The court may allow the parties to subpoena witnesses and call or cross-
       examine witnesses, including, but not limited to, the person who prepared
       the presentence report and any person whose information contained in the
       presentence report is relevant to the sentencing decision. . . . Both parties
       may be allowed to call witnesses in rebuttal. The rules of evidence shall
       apply, except that reliable hearsay, including, but not limited to, certified
       copies of convictions or documents, may be admitted if the opposing party
       is accorded a fair opportunity to rebut any hearsay evidence so admitted;
       provided, that this subsection (b) shall not be construed to authorize the
       introduction of any evidence secured in violation of the United States or
       Tennessee constitutions.

T.C.A. § 40-35-209 (emphasis added)

       As stated, reliable hearsay may be admitted if the opposing party is given the fair
opportunity to rebut it. Id. The opportunity to rebut hearsay evidence lessens the
potential for unreliability. See e.g., State v. Bud Cash, Jr., No. 286, 1992 WL 13905, at
*12 (Tenn. Crim. App., Knoxville, Jan. 30, 1992) (stating “Ordinarily, character letters
written on behalf of the defendant should be given due consideration similar to that of
other hearsay information submitted through a presentence report.), perm. app. denied
(Tenn. May 4, 1992).

      The mitigation expert’s testimony was compelling, her research thorough, and
some of her report contained reliable hearsay. Her report contradicted some of the key
                                             2
findings made by the trial court during sentencing to support the imposition of an
effective sentence of 133 years, which was later modified by this court to 102 years.

        Similarly, the evidence presented at the post-conviction hearing calls into question
the trial court’s finding that the Petitioner was a “dangerous offender.” When the trial
court originally sentenced the Petitioner he found:

              “Anyone [sic] who would get two armed men with automatic rifles
       and descend upon a person’s house, after having already left, and then
       come back, [with] fully loaded weapons . . . has no regard for human life
       and no hesitation about committing a crime in which the risk to human life
       is high.”

       The court then found that extended confinement was necessary to protect the
public from the Petitioner’s “unwillingness to lead a productive life and his resort to
criminal activity in furtherance of an anti-social lifestyle.”

        At the post-conviction hearing, the Petitioner presented multiple witnesses who
said that they would have testified at sentencing had they been called by Counsel. One of
these witnesses was the Petitioner’s co-defendant, Mr. Leslie Franklin. Some of these
witnesses testified that the Petitioner had been employed and had a good work ethic;
others testified that the Petitioner was a peace maker and had never been known to be
violent. Still other witnesses testified that the Petitioner was a good person, very helpful,
and kind. The Petitioner’s co-defendant, Mr. Franklin, testified that a third party called
Mr. Franklin and asked if he could arrange for the Petitioner and Mr. Taylor to meet. The
Petitioner never asked Mr. Franklin for help that day. Mr. Franklin brought the
Petitioner, who was unarmed, to the location to peacefully defuse the situation. Mr.
Taylor shot at them upon their arrival, and Mr. Franklin, who had a gun, shot back. The
Petitioner never possessed or fired a weapon. This evidence directly contradicts the trial
court’s findings, and I can only conclude that Counsel was ineffective for failing to give
the trial court the benefit of this evidence at sentencing.

       I believe that the evidence from these witnesses and the mitigation expert is
compelling enough that Counsel’s failure to present this evidence at sentencing
constitutes ineffective representation that prejudiced the Petitioner. I respectfully
disagree with the majority’s reliance on the post-conviction court’s conclusion that it
simply would not have mattered had the additional sentencing evidence been presented
because the trial court would not have changed its sentencing decision. This
retrospective analysis places the post-conviction court in the unenviable position of being
forced to determine whether its decision would have been different had all the evidence
been presented at the proper time.
                                             3
       In my view, whether a petitioner is prejudiced by a counsel’s failure should
instead be assessed based upon whether there is a reasonable probability that a sentencer,
viewing the evidence in its entirety at the time of sentencing, would have been influenced
by the mitigation evidence. Factors of significance in this determination should be, inter
alia: (1) the nature and extent of the mitigating evidence that was available but not
presented; (2) whether substantially similar mitigating evidence was presented during the
guilt phase of the proceedings. See and compare Nichols v. State, 90 S.W.3d 576, 598
(Tenn. 2002) (discussing a petitioner’s challenge to a sentence of death based upon
counsel’s failure to present mitigating evidence at trial). Any other standard is unfair.
Using the aforementioned factors, I believe that the Petitioner was prejudiced by
Counsel’s failure to present the readily available mitigating evidence and there was no
similar evidence presented during the guilt phase of the proceedings.

        While I have the utmost respect for the trial judge involved herein as a fair and
impartial trier of fact, I believe that this case should be reversed and remanded for a new
sentencing hearing by a different trial judge, who would hear the sentencing evidence in
its entirety and sentence the Petitioner accordingly.


                                                 _________________________________
                                                 ROBERT W. WEDEMEYER, JUDGE




                                            4
