            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                              AT JACKSON
                        OCTOBER SESSION, 1998
                                                             FILED
                                                            December 28, 1998

SYLVESTER SMITH,            )                           Cecil Crowson, Jr.
                            )    No. 02C01-9801-CR-00018Appellate C ourt Clerk
      Appellant             )
                            )    SHELBY COUNTY
vs.                         )
                            )    Hon. Bernie Weinman, Judge
STATE OF TENNESSEE,         )
                            )    (POST-CONVICTION)
      Appellee              )



For the Appellant:               For the Appellee:

William P. Redick, Jr.           John Knox Walkup
P. O. Box 137                    Attorney General and Reporter
Whites Creek, TN 37189
                                 Amy L. Tarkington
Peter D. Heil                    Assistant Attorney General
P. O. Box 40651                  Criminal Justice Division
Nashville, TN 37204              425 Fifth Avenue North
                                 2d Floor, Cordell Hull Building
                                 Nashville, TN 37243-0493


                                 Thomas Hoover
                                 Asst. Attorney General
                                 Criminal Justice Complex
                                 Suite 301, 201 Poplar Street
                                 Memphis, TN 38103




OPINION FILED:

REVERSED; CONVICTION VACATED; REMANDED FOR NEW TRIAL



David G. Hayes
Judge
                                              OPINION



        In this capital case, the appellant, Sylvester Smith, appeals as of right the

judgment of the Criminal Court of Shelby County denying his petition for post-conviction

relief. In 1991, the appellant was convicted of felony murder, and, following a separate

sentencing hearing, was sentenced to death by electrocution.                         The appellant’s

conviction and sentence were affirmed on direct appeal by the Tennessee Supreme

Court. See State v. Smith, 893 S.W.2d 908 (Tenn. 1994), reh’g denied, (1995), cert.

denied, 516 U.S. 829, 116 S.Ct. 99 (1995).



        The appellant filed the instant petition for post-conviction relief on April 18, 1995.

An amended petition was filed on September 16, 1996. A hearing was held on

September 24-26, 1996. On May 19, 1997, the post-conviction court entered an order

denying the appellant post-conviction relief.



        On appeal, the appellant raises the following issues: 1

        I. Whether the appellant was denied his constitutional rights at sentencing
        when the trial court limited the testimony of his sole mitigation witness;

        II. Whether the appellant was denied his constitutional right to trial by an
        impartial jury;

        III. Whether constitutional errors not addressed by the post-conviction
        court entitle the appellant to relief;

        IV. Whether the appellant was denied his constitutional rights during the guilt
        and sentencing phases by the prosecution’s failure to provide the defense
        exculpatory and impeachment materials;

        V. Whether the appellant received the effective assistance of counsel at
        trial and on appeal;

        VI. Whether the cumulative effect of all errors violated the appellant’s
        constitutional rights.




        1
          Contained within the appellant’s six general issues are ninety-one plus allegations of
error set forth as sub-issues.

                                                 2
       In this appeal, the State concedes error at the sentencing phase of this capital

trial. We agree. Moreover, after careful review of the record, we also find error at the

guilt phase of the trial. Accordingly, the appellant’s conviction and sentence are

vacated. This cause is remanded for a new trial.




                                     Background



       The proof, as set forth in the supreme court’s decision, State v. Smith, 893

S.W.2d at 911-912, established that Mrs. Olive Brewer, an elderly widow, lived alone

in a house on Winchester Road in Memphis. On Sunday, July 2, 1989, Mrs. Brewer

attended church, ate lunch with a friend, and went to the grocery store before returning

home. Mrs. Brewer was wearing a diamond ring when she left the restaurant.



       Later that evening, Memphis Police Officer Steve Perry noticed a vehicle stuck

in the mud in the woods next to Mrs. Brewer’s house. The vehicle’s engine was still

warm and it appeared obvious that someone had been trying to get the car out of the

mud. Officer Perry also observed a stereo and television set on the ground beside the

vehicle and a television stand on the front seat of the car.



       Officer Perry discovered that the vehicle was registered to Mrs. Brewer who lived

next door and he and another officer decided to check Mrs. Brewer’s residence. The

two officers found the back door of Mrs. Brewer’s house ajar. A search of the house

led to the discovery of Mrs. Brewer’s body lying in one and one-half to two inches of

bloody water in the bathtub. A blue blanket was over her face and her dress was pulled

above her hips. Mrs. Brewer had been beaten over her entire body and her throat was

lacerated.




                                         3
       In the front bedroom, the officers discovered large bloodstains at the head and

foot of the bed. Strips of torn sheet and a rope were lying on the floor. One of the

strips was blood soaked. A used condom was found in the bedroom closet. In the

kitchen, the officers found evidence of blood on a knife, and, in the living room, they

discovered another knife in a chair.



       Fingerprints on the bathroom sink and on the front hood of the victim’s car

matched the appellant’s prints. The appellant’s sister identified the knife found in the

living room as resembling one of her own that had been missing. The appellant’s niece

testified that the appellant had told her that “he cut this lady’s throat and put her in a

bathtub full of water.”



       Shortly after the murder, the appellant offered to sell Willie Cox a lady’s diamond

ring and three necklaces. The appellant informed Cox that the jewelry had come “out

of the lady’s house on Winchester.” He continued to tell Cox that he had killed the

woman because “he don’t leave no witnesses.” He then described cutting her throat,

tying her hands, and putting her in the bathtub. He also stated that he had placed an

electrical appliance in the bathtub with her.



       When confronted about the murder, approximately one year later, the appellant

denied any knowledge of the murder, denied knowing the victim, and denied ever being

in her house. He also denied that the fingerprints were his. The Shelby County Public

Defender’s Office was appointed to represent the appellant.2



       During the guilt phase of his subsequent trial, the appellant elected not to testify

nor did he offer any evidence. Based on the evidence presented by the State, the jury

found the appellant guilty of felony murder committed during the course of a robbery.



       2
        The defense team consisted of Robert Jones (lead counsel), Carolyn Watkins (co-
counsel), and two staff investigators.

                                              4
        At the sentencing phase of the trial, the State introduced proof that the appellant

had previously been convicted of robbery with a deadly weapon, assault with intent to

commit first degree murder, and aggravated rape. Photographs were also introduced

depicting numerous bruises and the fatal wounds on the victim’s body. The pathologist

testified that the victim would have been alive at the time that the water entered her

lungs and that she could have lived hours after the lacerations to her throat were

inflicted.



        The defense introduced the testimony of Dr. Hutson, a clinical psychologist who

had administered the Stanford-Binet Intelligence test to the appellant.           The test

indicated that the appellant had an IQ of 54. School records showed that in the third

grade the appellant had an IQ of 72, and of 67 in the fifth grade. A parole evaluation

described the appellant as having mild to moderate impairment in intellectual function.

The psychologist testified that the appellant would be classified as mentally retarded,

that the appellant’s intellectual capacity was diminished, and that this impairment was

a mental defect.



        The jury found that the appellant had previously been convicted of a violent

felony, the murder was especially heinous, atrocious, or cruel in that it involved torture

or depravity of mind, and that the murder was committed in the commission of another

felony. Finding no mitigating factors sufficiently substantial to outweigh the statutory

aggravating circumstances, the jury sentenced the appellant to death by electrocution.



        On direct appeal to the Tennessee Supreme Court, the court, under its mandate

in State v. Middlebrooks, 840 S.W.2d 317 (Tenn. 1992), cert. denied, 510 U.S. 124,

114 S.Ct. 651 (1993), found that the jury’s consideration of Tenn. Code Ann. § 39-13-

204(i)(7) was improper. See Smith, 893 S.W.2d at 924-925. Nonetheless, the court

held that the error in applying this factor was harmless in light of the two remaining valid

aggravating circumstances. Id.


                                           5
                                    Post-Conviction Hearing



        In post-conviction proceedings, the appellant must prove the allegations

contained in his petition by a preponderance of the evidence.3 State v. Kerley, 820

S.W.2d 753, 755 (Tenn. Crim. App.), perm. to appeal denied, (Tenn. 1991); Oliphant

v. State, 806 S.W.2d 215, 218 (Tenn. Crim. App.), perm. to appeal denied, (Tenn.

1991). Findings of fact and conclusions of law made by the post-conviction court are

given the weight of a jury verdict, and, this court is bound by those findings unless the

evidence contained in the record preponderates otherwise. Butler v. State, 789 S.W.2d

898, 899 (Tenn. 1990); Teague v. State, 772 S.W.2d 932, 934 (Tenn. Crim. App.

1988), cert. denied, 493 U.S. 874, 110 S.Ct. 210 (1989). This court may not reweigh

or reevaluate the evidence or substitute its inferences for those drawn by the post-

conviction court. Questions concerning the credibility of witnesses and the weight and

value to be given their testimony are for resolution by the post-conviction court. Black

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



            I. Limitation of Mitigating Evidence during Sentencing Phase


        The appellant contends that the trial court committed error by limiting the

testimony of the clinical psychologist, Dr. Hutson, during the sentencing phase of the

trial with regard to mitigating evidence. The appellant concedes that this issue was

predetermined by the supreme court in Smith, 893 S.W.2d at 921-922. However, he

argues that, in light of subsequent decisions by the Tennessee Supreme Court in State

v. Odom, 928 S.W.2d 18 (Tenn. 1996) and this court in State v. Sledge, No. 02C01-

9405-CR-00089 (Tenn. Crim. App. at Jackson, Nov. 25, 1997), this issue should not

be treated as previously determined.




        3
        Again, the appellant’s petition for po st-conv iction relief wa s filed on A pril 18, 1995 .
Because it was filed prior to May 10, 1995, it is governed by Tenn. Code Ann. § 40-30-101 et seq.
(repealed 1995), rather than the revised Post-Conviction Procedure Act, Tenn. Code Ann. § 40-
30-210 et seq. (1997). Under the current statute, the standard is “clear and convincing evidence .”
Tenn. Code A nn. § 40-30-210(f).

                                                 6
        In Odom, 928 S.W.2d at 27-28, mitigation evidence was limited by the trial court

regarding the family background of the defendant as testified to by the clinical

psychologist because the trial court ruled the information was hearsay.4 The supreme

court under the provisions of Tenn. Code Ann. § 39-13-204(c) held that the hearsay

evidence was relevant and, therefore, admissible. As such, the error was not harmless.

Odom, 928 S.W.2d at 28.



        In Sledge, No. 02C01-9405-CR-00089, the trial court rejected the proffered

testimony of a Psychological Chaplain II, employed by the Department of Correction,

as an expert on the defendant’s remorsefulness based upon his self-developed testing

procedure. However, the court acknowledged his ability to testify to his personal

observations of the defendant as a pastoral counselor. Id. During a hearing out of the

jury’s presence, the witness related his knowledge of pertinent background information

of the defendant and his observations of the defendant in a prison environment. Id.

The trial court refused to allow the witness to testify further and dismissed him. Id. The

following day, the trial court recanted its ruling and decided to allow the witness to

testify regarding his personal observations arising out of his counseling and interviews

with the defendant; however, the witness could not be found. Id. This court, citing

Odom, held the refusal to allow the witness to testify constituted reversible error. Id.



        In the matter before us, at the appellant’s trial, Dr. Hutson testified that he only

spoke with the appellant for a “few minutes” and administered the IQ test. Dr. Hutson

stated, “I really didn’t go into any background details or anything of that nature.”

Contrary to the appellant’s assertion that Odom and Sledge present a “change in the

law,” we conclude that this issue was previously determined by the supreme court on

direct appeal. See Smith, 893 S.W.2d at 921-922. Accordingly, because a new

constitutional right had not been created, this issue may not be relitigated within the



        4
          We note that both Odom and the instant case involve both the same trial judge and the
sam e clinical psyc hologist.

                                               7
post-conviction context. See Tenn. Code An. § 40-30-111,-112; Tenn. Code Ann. §

40-30-105.



                                 II. Superficial Jury Selection



        Next, the appellant contends that the trial court and defense counsel deprived

him of an impartial jury based upon volumes of research by Dr. Michael Blankenship

regarding jurors’ lack of comprehension of jury instructions. Moreover, he argues that

the trial court should have permitted individual voir dire because of the findings of Dr.

Blankenship’s studies. 5



        The State contends that any issues regarding jury selection were previously

determined by the supreme court, see Smith, 893 S.W.2d at 914-16, or have been

waived pursuant to Tenn. Code Ann. § 40-30-112(b)(1) and (2). We agree with the

State’s position on waiver. These issues could have been raised by the appellant on

direct appeal. Moreover, the appellant has failed to provide a basis for a rebuttable

presumption overcoming the waiver of these issues. Thus, they are inappropriate for

our determination of post-conviction relief. This issue is without merit.



        5
         He contends that either the prosecu tion, defense counsel, or the court should have
questioned the jurors regarding:
        (1) whether the jurors would be able to consider m itigating evidence and a life
        senten ce if they fou nd the de fendan t guilty of first-deg ree m urder;
        (2) whether the jurors would be able to consider m itigating evidence and a life
        sentence after first finding the defendant guilty of first degree murder and then
        finding beyond a reasonable doubt the existence o f one or more statutory
        aggravating circumstances;
        (3) whether the jurors were capable of understanding what mitigating
        circumstances mean;
        (4) whether the jurors were capable of understanding the different burdens of
        proof for the prosecution in the proof of aggravating circumstances versus that for
        the defense in the proof of the mitigating circumstances;
        (5) whether the jurors were capable of understanding their obligations concerning
        the difference between the unanimity requirement of the jury’s verdict in the
        determination of aggravating circumstances versus that in the determination of
        the mitigating circumstances;
        (6) whether the jurors were capable of the “weighing” of the aggravating and the
        mitigating circumstances, e.g., that it is a qualitative, not a quantitative analysis;
        and
        (7) whether the jurors were capable of und erstanding the instructions with regard
        to non-enumerated mitigating circumstances.




                                                 8
               III. Issues Not Addressed by the Post-Conviction Court6



        The appellant asks this court to review the following errors he alleges were

committed by both the trial court and the prosecution:

        By the trial court:

        1. The trial court erred by not sua sponte taking the precautions
        necessary to make a determination of the appellant’s competency to
        stand trial;
        2. The trial court erred by making repeated displays of hostility toward
        and bias against the defense;
        3. The trial court erred by limiting the testimony of the psychologist
        during the pretrial hearing on the issue of whether the appellant is
        mentally retarded;
        4. The appellant is not eligible to be sentenced to death because he is
        mentally retarded;
        5. The trial court erred by refusing to consider and rule on pretrial
        motions;
        6. The trial court erred in its charge to the jury;
        7. The trial court gave erroneous and misleading definitions of
        “reasonable doubt;”
        8. The trial court erred by overruling defense objections to the
        prosecution’s referring to the death penalty as a “necessary law” during
        the voir dire;
        9. The trial court erred by denying the defense an opportunity to make
        an offer of proof at the close of the “Batson hearing” during voir dire;
        10. The trial court erred by employing leading questions and excusing for
        cause prospective jurors who were opposed to the death penalty;
        11. The trial court erred by overruling the defense motion for continuance
        based on the need to investigate exculpatory evidence withheld by the
        prosecution until the first day of trial;
        12. The trial court erred by allowing the introduction of irrelevant,
        cumulative, and/or prejudicial evidence;
        13. The trial court erred by giving instructions that relieve the prosecution
        of its burden of proving all elements of the offense beyond a reasonable
        doubt;
        14. The trial court erred by overruling defense objection to prosecutional
        misrepresentation in its penalty phase closing argument.


        By the prosecution:

        1. The prosecution failed to disclose evidence to which the appellant was
        entitled before, during, and after the trial.
        2. The prosecution possessed information exculpatory to the defendant
        concerning Willie Lee Cox.
        3. The prosecution failed to turn over to the defense other evidence
        exculpatory to the defense;


        6
          Allegations of ineffective assistance of trial counsel raised under this heading are
add ress ed ge nera lly unde r the h ead ing of ineff ective ass istan ce of coun sel.

                                                  9
       4. The prosecution’s arguments and conduct misstated or caused
       misstatements of facts and law and misled the jury;
       5. The District Attorney’s Office for Shelby County has no formal policy,
       standards, or criteria for selecting defendants who will be subjected to
       capital prosecution.


       Additionally, the appellant makes eight general challenges regarding the

constitutionality of Tennessee’s death penalty statutes.



       The appellant’s allegations raised under these subsections must be considered

waived for failure to provide citation to the record, explanation, argument or citation to

any legal authority. Tenn. R. App. P. 27(a)(7); Tenn. Ct. Crim. App. R. 10(b). This

court will not speculate as to the argument supporting these allegations, nor will this

court delineate the issues for the appellant from an extensive record. Additionally,

issues specifically raising allegations of improper jury selection, jury instructions,

prosecutorial misconduct during closing argument, and our supreme court’s review of

Tennessee’s death penalty statutes have been addressed on direct appeal by our

supreme court. See Smith, 893 S.W.2d at 914-916, 920-921, 922-923, 924-927.

Issues that have been previously determined on direct appeal cannot support a petition

for post-conviction relief and are, therefore, excluded. See Tenn. Code Ann. §40-30-

111,-112 (a); State v. Denton, 938 S.W.2d 373, 377 (Tenn.1996); House v. State, 911

S.W.2d 705, 710 (Tenn. 1995), cert. denied, 517 U.S. 1193, 116 S.Ct. 1685 (1996).

Finally, we note that the majority of the appellant’s exhaustive list of allegations have

already been raised elsewhere in the petition and on appeal, e.g., alleged Brady

violations, competency, mental retardation.



       Accordingly, all unsupported allegations raised by the appellant are waived.




                        IV. Alleged Brady/Giglio Violations



                                         10
       The appellant alleges that the State withheld exculpatory evidence thereby

violating Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194 (1963). Specifically, the

appellant argues that (1) the State withheld the statement of Alice Cooper and (2) the

State failed to disclose an alleged deal with Willie Lee Cox in exchange for his

testimony.



       In Brady, 373 U.S. at 83, 83 S.Ct. at 1194, the Supreme Court held that the

prosecution has a duty to furnish the defendant with exculpatory evidence relating

either to the defendant’s guilt or innocence or to the potential punishment that may be

imposed. See also Bell v. State, No. 03C01-9210-CR-00364 (Tenn. Crim. App. at

Knoxville, Mar. 15,1995), perm. to appeal denied, (Tenn. Aug. 28, 1995). Exculpatory

evidence includes information or statements of witnesses which are favorable to the

defendant. See, e.g., McDowell v. Dixon, 858 F.2d 945 (4th Cir. 1988), cert. denied,

489 U.S. 1033, 109 S.Ct. 1172 (1989); State v. Goodman, 643 S.W.2d 375, 379-380

(Tenn. Crim. App. 1982). Additionally, under Giglio v. United States, 405 U.S. 150,

154-155, 92 S.Ct. 763, 766 (1972), exculpatory evidence includes information which

can be used for impeachment purposes only. See also Davis v. State, 823 S.W.2d

217, 218 (Tenn. Crim. App. 1991). Failure to reveal exculpatory evidence violates due

process where the evidence is material either to guilt or to punishment, irrespective of

the good faith or bad faith of the prosecution. Brady, 373 U.S. at 87, 83 S.Ct. at 1196-

1197. In order to determine the materiality of undisclosed information, the reviewing

court must ascertain whether “in [the] absence [of the information] [the defendant]

received a fair trial, understood as a trial resulting in a verdict worthy of confidence.”

Kyles v. Whitley, 514 U.S. 419, 434, 115 S.Ct. 1555, 1566 (1995). See also State v.

Edgin, 902 S.W.2d 387, 390 (Tenn.), as amended on reh’g, (1995). Thus, in order to

prove a Brady violation, a defendant must show the “the favorable evidence could

reasonably be taken to put the whole case in such a different light as to undermine

confidence in the verdict.” Id.




                                         11
       In order for this court to find a Brady violation, four requirements must be

satisfied:

       (1) The defendant must have requested the information (unless the
       evidence is obviously exculpatory, in which case the State is bound to
       release the information whether requested or not);
       (2) The State must have suppressed the information;
       (3) The information must have been favorable to the accused; and
       (4) The information must have been material.

Edgin, 902 S.W.2d at 390. The appellant bears the burden of demonstrating the

elements of this claim by a preponderance of the evidence. See Smith v. State, 757

S.W.2d 14, 19 (Tenn. Crim. App. 1988).



       At the post-conviction hearing, Carolyn Watkins, appellant’s defense counsel at

trial, testified that she oversaw the preparation of the pretrial motions, including a Brady

motion and a Giglio motion regarding discovery of exculpatory information. These

motions were not heard by the trial court because they were not set in advance of the

trial. But see , infra, Section V, Ineffective Assistance of Counsel. Both Watkins and

Assistant District Attorney General Harris, lead counsel for the State, testified that the

defense had “open file discovery” in which she took notes, looked through the file, and

copied several items. Watkins was satisfied that she had received everything in

discovery. Harris testified that nothing was taken from the file or hidden from Watkins.



                             A. Alice Cooper’s Statement

       In Ms. Cooper’s statement to the police contained within a supplemental offense

report, she advised that she had overheard four young men, between nineteen and

twenty-five years old, across the street from the victim’s home talking about killing “that

old bitch.” Two of the boys claimed they had killed her in the bed and placed her body

in the bathtub. Ultimately, the police identified one of the individuals. The prosecutor

provided the defense with a summary of this statement following jury selection but




                                          12
before any proof was presented.7 At the post-conviction hearing, Jones, defense

counsel, recalled receiving this information before the trial; and afterwards, he moved

for a continuance which the court denied.



             The State, citing United States v. Bencs, 28 F.3d 555 (6th Cir. 1994), argues

that this information does not fall within the parameters of Brady because the

information was disclosed, although delayed. We agree. Brady only applies to a

complete failure to disclose exculpatory information and normally does not apply to

delayed disclosure, only violating Brady if the delay itself causes prejudice. State v.

Inman, No. 03C01-9201-CR-00020 (Tenn. Crim. App. at Knoxville, Nov. 23, 1993),

perm. to appeal denied, (Tenn., April 4, 1994) (citing United States v. Word, 806 F.2d

658, 665 (6th Cir. 1986), cert. denied, 480 U.S. 922, 107 S.Ct. 1383 (1987)); see also

State v. Ewing, No. 01C01-9612-CR-00531 (Tenn. Crim. App. at Nashville, June 19,

1998), vacated and reentered, (Tenn. Crim. App. at Nashville, Aug. 18, 1998).




         7
            JONES: Your Honor, this is definitely exculpatory information. We haven’t had an
opportunity to check out. We would ask the Court to allow us time to check this out before we go
forward.
           COURT: Mr. Jones, you’ve had since October the 19th, 1990, to have hearings on
motions, which you did not do. You’ve waived your rights to have a hearing on the motion. You
can have all the time you want, but we’re not going to delay the trial for your now investigating
som ething you s hould ha ve done in Octob er of 199 0.
           JONES: Your Honor, this information was not available to us.
           COURT: It was certainly available under the discovery procedures.
           JONES: Your Honor, it wasn’t turned over to us.
           COURT: If you didn’t make a motion to hear the motion on it, Mr. Jones.
           JON ES: T he dis cove ry only re quire s a re que st, an d it wa s filed in Oc tobe r. W e did
reques t it. We d idn’t get it. Also we have nu mer ous Je ncks Act statem ents or s upplem ents he re.
           COURT: You didn‘t ask for Jencks Act by way of a motion since October of 1990.
           JONES: Your Honor, the rules says [sic] that the Jencks Act is supposed to be turned
over to us after the witness testifies. Mr. Harris turned it over to us about an hour ago because
they were numerou s. I’m requesting additional time to review this because of the exculpatory
inform ation that I’ve fo und at this time, your Hono r. . . .
           HARRIS: First of all, the information that he’s referring to the supplements, is not
exculpatory. The people that are -- you named, the people that are -- you referred to are not
named. It’s hearsay. It’s one party saying one other party heard a third party say something, so
it’s at le ast th ird-h and hear say an d tha t -- an d it’s no t exc ulpat ory be cau se it’s not a dm issib le
evidence, number one. Number two, we gave the Jencks Act material to him on this one
particular w itness at ten o’clock th is mor ning for him to review s o we wo uld not de lay the trial. I
would suggest, your Honor, that he do exactly what Mr. Carter and I are going to have to do during
lunc h, tha t is, wo rk on the c ase . . . . I calle d him and g ot in to uch with h im a s so on as I cou ld this
mor ning and gave it to him , and he’s had it. W e gave it to h im. You r Hono r, he’s not e ntitled to
read it anyway until after the witnesses testify. We gave it to him to accommodate the Court and
jury so they w ouldn ’t have to sit h ere a nd so your H ono r wou ldn’t h ave to sit he re an d wa tch h im
read thirty or fo rty supplem ents. Th at’s why we did that, to fac ilitate the case .
           COURT: W e’ll go forward with the trial, Mr. Jones. You will have plenty of time if you want
to exerc ise your tim e judicious ly.

                                                       13
        In the case sub judice, only a delayed disclosure was involved before any proof

was presented.          Therefore, no Brady violation exists unless the appellant can

demonstrate prejudice. At the post-conviction hearing, no physical evidence was

presented connecting this identified declarant to the crime nor was Ms. Cooper called

to testify for the appellant. We will not speculate as to the veracity of this “overheard”

statement. Thus, we conclude no prejudice resulted undermining the confidence of the

trial from the State’s delayed disclosure of this statement. This issue is without merit.



                                    B. Deal with Willie Lee Cox

         At the post-conviction hearing, Officer Cook testified that Willie Lee Cox provided

him with the information regarding the perpetrator of the murder of Olive Brewer. In

return for this information, the officer testified, “[t]he only thing that I told Mr. Cox was

that if his information was good, then I would write a letter to the attorney general

advising the attorney general of the assistance that he had given us in the past.” From

the supplemental offense report dated July 24, 1990,

         Cox was wanting to wait for his attorney to show up because he was
         afraid he would not get credit for furnishing the information that might
         solve this homicide. However, we [officers] insured him [Cox] we would
         make sure he got credit for anything he was able to tell us that was the
         truth.

Officer Cook further stated to Cox, “I can’t make you any promises, I can’t make you

any deals.” Officer Cook, in fact, wrote that letter on July 30, 1990, to District Attorney

General Hugh Stanton.8 This letter referred to information provided by Cox in relation

to three other cases besides the information identifying the appellant in the murder of

Olive Brewer.




        8
         W hen this lette r was wr itten, the app ellant had n ot been in dicted for murd er. The letter
provides in pertinent p art:
        As you can see, Willie Cox has furnished valuable information on numerous
        occasions and has never, to my knowledge, asked for anything in return. He has
        developed into a good, reliable source of information, and I would appreciate any
        assistance in this case that you deem feasible. Willie Lee Cox, Jr., male black,
        date of birth 2-9-69, is presently incarcerated in the Shelby County jail for second
        degree murder, reckless driving, driving while license revoked/suspended under
        booking number 90091080. The second degree murder case is set in division 5
        for 8-14 of ‘90, and the other charges are set in division 3 for 9-4-90.



                                                   14
         During their ongoing investigation, the police had concluded that the perpetrator

was a lone black male. Captain Houston of the Memphis Police Department stated that

he was informed by Cox that the appellant had murdered Ms. Brewer. Thereafter, the

officers verified Cox’s statement through fingerprint examinations lifted from the

bathroom sink near the location of the victim’s body and from the victim’s vehicle. He

reiterated the fact that the officers promised to mention Cox’s cooperation to the

Attorney General’s Office, however, they did not promise any specific deal in exchange

for his testimony. Captain Houston further testified that no agreement existed as to

whether Cox would have to testify.



         Assistant District Attorney General Harris stated that he made no deal with Cox.

During the appellant’s trial, Harris asked Cox about his recent guilty plea to voluntary

manslaughter.9 Harris stated that he never talked to Cox until after the trial had begun

and Cox had been released on the voluntary manslaughter conviction. Harris testified

that he built the case on the testimony of the appellant’s niece who testified that the

appellant had admitted to killing the victim. Harris testified that he was not aware of the

letter written by Officer Cook until the day of the post-conviction hearing. If he had



known of the existence of the letter, Harris testified that he would have communicated

that to defense counsel.



         Assistant District Attorney General Peterson, the prosecutor in charge of the

Willie Lee Cox case, testified that he made an offer to Cox on July 25, 1990, for fifteen

years as a Range I standard offender for his second degree murder charge. The

         9
          HAR RIS : Now , just s o the jury will h ave th e con text o f your conv ersa tion, yo u we re in
trouble, weren’t you?
         COX: Yes , sir.
         HARRIS: In fact, you’ve been in trouble several times, haven’t you?
         COX: Yes , sir.
         HAR RIS: An d you’ve do ne time yourself for a hom icide, have you not?
         COX: Yes , sir.
         HARR IS: One you were guilty of?
         COX: Yes , sir.
         HAR RIS: All right. A nd it was vo luntary m anslaug hter; is that co rrect?
         COX: Yes , sir.

                                                      15
following memo, written by District Attorney General Pierotti on September 5, 1990,

contained within the Cox file, was introduced through the testimony of Peterson:

        At the request of T.E. Cook and Bobby Garner, and due to [sic] huge
        amount of information defendant has given us, recommend probation.
        Defendant is worth more to us on the street than in jail. Dismiss driving
        charges. Any questions, see me.


     Jones, defense counsel, did not recall receiving any specific information from the

District Attorney’s Office regarding a deal that was made with Cox. Watkins stated that

the public defender’s investigator, Mr. Carlisle, attempted to talk to Cox before the

appellant’s trial but to no avail. However, at trial, Watkins attempted to cross-examine

Cox regarding a deal.10




        On appeal, the State argues that there was no Brady violation for its failure to

disclose information of a deal because “there was no deal.” Contrary to this assertion,

the record of the post-conviction proceeding clearly demonstrates that there was a deal

for leniency with Cox. Although the supreme court on direct appeal was not privy to this

information regarding a deal, these facts11 cause this court considerable concern under

       10
        On cross-examination:
       WAT KINS: And you talked to the police because you yourself had gotten in trouble?
       COX: Yeah.
       WAT KINS: You were trying to make a deal?
       CO X: N o, it wa sn’t re ally a de al.
       W ATK INS : It was n’t rea lly a dea l, but yo u tho ugh t it mig ht be a dea l?
       COX: Yeah.
       ...
       W ATK INS: Vo luntary m anslaug hter; is that co rrect, Mr . Cox?
       COX : Yeah. Ye s, ma ’am.
       WAT KINS: How much jail time did you do?
       COX: Six months.
       HAR RIS: You r Hono r, I’m going to object a s being irre levant.
       COURT: Sustained.
       And, again on recross-examination:
       WAT KINS: At the time you made your statement, Mr. Cox, you were really charged with a
       murder in the second degree, weren’t you?
       HAR RIS: You r Hono r, I’m going to object to that.
       COURT: Sustained. The objection is sustained.
       COX : Yes.
       COU RT: T he obje ction is sus tained. Th e jury [sic] disre gard the answe r.

       11
          The evidence    produced at the post-conviction hearing established the following
chrono logy of even ts:
         07-03-89         The m urder of Olive Brewer.
         05-29-90         Cox indicted for second deg ree murder.
         07-25-90         General Peterson offered Cox fifteen years for second degree murder
                          which was rejected by Cox.

                                                 16
the requirements of Giglio.12 However, we are precluded from holding otherwise in this

matter because the Tennessee Supreme Court has previously held this harmless error.

See Smith, 893 S.W.2d at 923-924.

         [I]f the voluntary manslaughter conviction did grow out of the ‘trouble’ Cox
         was in when he contacted the authorities, and this is not entirely clear
         from the record, the trial court should have allowed inquiry into Cox’s
         treatment by the State on this conviction. Any error, however, is
         harmless beyond a reasonable doubt.(citations omitted). Cox’s testimony
         made it clear that it was only after he was “in trouble” that he came
         forward to tell the authorities about Defendant’s remarks. Although he
         denied any deal, he said that he had hoped there might have been one.
         The jury also heard he had served only six months on a guilty plea to
         voluntary manslaughter. The Defendant’s confession to his niece and the
         presence of his fingerprints in the bedroom corroborated Cox’s testimony.
         We find no reversible error.

 Smith, 893 S.W.2d at 923-924 (emphasis added).



         Issues that have been previously determined on direct appeal cannot support

a petition for post-conviction relief and are, therefore, excluded. See Tenn. Code Ann.



         07-30-90          Cox informs the Memphis Police Department that the appellant murdered
                           Ms. Brewer.
                           The appellant had not been charged.
                           Off icer C ook send s lette r to D istrict Attor ney S tanto n req ues ting le nienc y
                           for Cox.
         08-07-90          General Stanton offers three years.
         08-13-90          Cox pled guilty to three years for voluntary manslaughter.
         09-05-90          General Pierotti recomm ends suspend ed sentence and d ismissal of
                           driving charges for Cox.
         09-20-90          Cox’s three year sentence was suspended.
         03-07-91          Petition to revoke Cox’s probation for cocaine use was denied by the
                           court.
         09-24-91          The appellant’s trial at which Cox testified.
         10-14-91          Petitio n to re vok e Co x’s pr oba tion fo r thef t of pr ope rty was withd rawn by
                           the State.
         03-30-92          Petition to rev oke C ox’s pro bation wa s grante d.

         12
          In Giglio , 405 U.S. at 152, 92 S.Ct. at 765, an Asst. U.S. Attorney promised a witness
that he would not be prosecuted, while the subsequent attorney in charge of the case was not
aware that a deal had been made by the former assistant. The Supreme Court held:
        [N]e ither D iPao la’s [A sst. U .S. At torne y] auth ority no r his fa ilure to inform his
        superiors or his associates is controlling. Moreover, whether the nondisclosure
        was a result of negligence or design, it is the responsibility of the prosecutor. The
        prosecutor’s office is an entity and as such it is the spokesman for the
        Government. A promise made by one attorney must be attributed, for these
        purpos es, to the G overnm ent. (Citation s om itted). Id., 405 U.S . at 154, 92 S.Ct.
        at 766.

          W e not e tha t the U nited State s Su prem e Co urt re cog nized that w ithou t this w itnes s’s
testimony there would have been no indictment or enough evidence to present the case to the
jury. Id., 405 U.S . at 154-15 5, 92 S.C t. at 766. Th erefore , that witness ’s credibility was c ritical to
this c ase and a ny agr eem ent fo r lenie ncy fr om the p rose cutio n wo uld ha ve be en pe rtinen t in
deciding his credib ility. Id. However, in the case before us, the Tennessee Supreme Court noted
that, “[t]he Defendant’s confession to his niece and the presence of his fingerprints in the bedroom
corroborated Cox’s testimo ny.” Sm ith, 893 S.W .2d at 924 .

                                                      17
§ 40-30-111, -112(a); Denton, 938 S.W.2d at 377.                           Thus, in accordance with our

supreme court’s previous ruling, this issue is without merit.




                             V. Ineffective Assistance of Counsel



       The appellant contends that he was denied effective assistance of counsel both

at trial and on appeal due to counsel’s (1) failure to object to the introduction of

evidence and testimony of a used condom found at the crime scene; (2) failure to

pursue hearings on pre-trial motions; (3) failure to properly investigate the possibility of

other perpetrators; (4) failure to request money for expert services; (5) failure to

investigate, litigate, or present proof regarding the appellant’s competency to stand trial;

(6) failure to investigate, litigate, or present proof regarding the appellant’s sanity; (7)

failure to investigate, litigate, or present proof regarding the appellant’s mental

retardation; (8) failure to investigate or present proof concerning mitigating evidence at

sentencing; (9) failure to present facts on appeal to demonstrate that the Middlebrooks

error was not harmless; and (10) failure to show that the appellant’s death sentence is

comparatively disproportionate.




       Additionally, without citation to the record, explanation, or citation to any legal

authority, the appellant lists twenty-four supplementary claims of ineffective assistance

of counsel.13 Also, the appellant contends (1) that appellate counsel was ineffective for


       13
         Specifically, these claims include:
       (1) C oun sel fa iled to challe nge Cou nt On e in the Indic tme nt . . . be cau se it
       omitted an eleme nt of the offense of felony murder;
       (2) Counsel failed to make reasonable efforts to negotiate a settlement of the
       case;
       (3) Counsel failed to challenge the prosecution’s forum shopping;
       (4) Counsel failed to investigate to determine whether the appellant had been
       denied his right to a jury pool representative of a fair cross-section of the
       com mu nity;
       (5) Counsel failed to consult with the appellant at crucial stages of the
       procee dings;
       (6) C oun sel fa iled to adeq uate ly advis e the appe llant a s to h is righ t to tes tify;
       (7) Counsel failed to develop a reasonable trial strategy or defense’

                                                     18
“not presenting sufficient facts to demonstrate that [the] Middlebrooks error” was not

harmless error under State v. Howell, 868 S.W.2d 238 (Tenn. 1993); and (2) that

appellate counsel was ineffective for its failure to demonstrate that his death sentence

was comparatively disproportionate based upon “new facts” unavailable to the supreme

court regarding his mental condition; unavailable exculpatory evidence; and the age,

race, gender of the appellant.



         The State submits that these additional allegations have been previously

determined and/or waived. We agree. Initially, we note that the post-conviction court

did find that the appellant had received effective assistance of counsel. As an

ineffective counsel claim is but a single allegation, the court did rule on these issues,

contrary to the appellant’s assertion. See Cone v. State, 927 S.W.2d 579, 581-582

(Tenn. Crim. App. 1995), perm. to appeal denied, (Tenn. 1996), cert. denied, -- U.S. --,

117 S.Ct. 309 (1996).             Moreover, the appellant’s cursory enumeration of each

allegation amounts to waiver, because these issues are not supported by argument nor



       (8) Counsel failed to make a motion to recuse the trial judge;
       (9) Counsel failed to adequately question prospective jurors regarding the
       sen tenc ing ph ase of the trial;
       (10) Cou nse l failed to de velop an ad equ ate re cord rega rding the p rose cuto r’s
       disc rim inato ry use of pe rem ptory c hallen ges to rem ove A frica n-Am erica n juro rs in
       violation of Batson v. Kentucky;
       (11) Cou nse l failed to ad equ ately q ues tion p rosp ective juror s reg ardin g the ir
       possible misperceptions concerning parole eligibility and racial and other biases;
       (12) Counsel failed to object to the exclusion of jurors based on religious
       objections;
       (13) Counsel failed to file motions and or obtain rulings in advance of trial on
       pretrial motions;
       (14) Counsel failed to adequately cross-examine witnesses;
       (15) Counsel failed to object to the prosecutor’s improper, misleading, and
       prejudic ial statem ents co ncernin g the law, the evidenc e and the appellant;
       (16) Counsel failed to object to the prosecution’s repeated use of leading
       questions during direct examination of prosecution witnesses;
       (17) Counsel failed to object to certain jury instructions;
       (18) Co unsel fa iled to objec t to instruction that relieved the pros ecution o f its
       burden of proving all eleme nts of the offens e beyond a reaso nable do ubt;
       (19) Counsel failed to object to erroneous and misleading reasonable doubt
       instructions;
       (20) Counsel failed to investigate or present evidence in support of the issues
       raise d in the ir mo tion fo r new trial;
       (21) Counsel failed to discuss with the appellant the legal claims that could be
       raise d pre trial, in th e m otion for ne w trial, a nd/o r on a ppe al;
       (22) Cou nse l failed to ob ject to the s uffic ienc y of the evide nce pres ente d in
       support of the aggravating circumstances;
       (23) Counsel failed to object to the constitutionally of the aggravating
       circumstances;
       (24) Counsel failed to object to the qualifiers “extreme” and “substantially” in the
       statu tory m itigatin g circ um stan ces instru cted to the jury.

                                                    19
are there appropriate references to the record. See Tenn. R. App. P. 27(a)(7), -(g);

Tenn. Ct. Crim. App. R. 10(b). Many of these claims were not argued at the post-

conviction hearing nor was any proof related to these issues presented. When an

appellant fails to articulate reasons to support a conclusory statement, the issue may

be deemed waived. Tenn. R. App. P. 27(a)(7); State v. McKay, 680 S.W.2d 447, 454

(Tenn. 1984), cert. denied, 470 U.S. 1034, 105 S.Ct. 1412 (1985). See also Tenn. Ct.

Crim. App. R. 10(b). Finally, several of the issues were raised and determined on direct

appeal. The fact that these issues are now couched in terms of ineffective assistance

of counsel is of no consequence. See Overton v. State, 874 S.W.2d 6, 12 (Tenn.

1994).     Thus, our review of the appellant’s Sixth Amendment claim does not

encompass these numerous and often duplicitous allegations.



          A. Standard for Determining Ineffective Assistance of Counsel

         When a claim of ineffective assistance of counsel is raised, the burden is upon

the appellant to show (1) that counsel's performance was deficient and (2) that the

deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668,

687, 104 S.Ct. 2052, 2064 (1984). Thus, the appellant must prove that counsel "made

errors so serious that counsel was not functioning as the 'counsel' guaranteed the

defendant by the Sixth Amendment," and the appellant must demonstrate that

counsel's errors "were so serious as to deprive the defendant of a fair trial, a trial whose

result is reliable." Id. The appellant must establish both deficient performance and

prejudice in order to prevail. Id. A reviewing court need not consider the two prongs

of Strickland in any particular order. Strickland v. Washington, 466 U.S. at 697, 104

S.Ct. at 2069. Moreover, if the appellant fails to establish one prong, a reviewing court

need not consider the other. Id.



         With respect to deficient performance, the proper measure of attorney

performance is reasonableness under prevailing professional norms. Strickland v.

Washington, 466 U.S. at 688, 104 S.Ct. at 2065. In other words, the attorney's


                                          20
performance must be within the range of competence demanded of attorneys in

criminal cases. Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn.1975); Wright v. State,

No. 01C01-9105-CR-00149 (Tenn. Crim. App. at Nashville), perm. to appeal denied,

(Tenn.1994), cert. denied, 513 U.S. 1163, 115 S.Ct. 1129 (1995). This 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 v. Washington, 466 U.S. at 689, 104 S.Ct. at 2065.

We should defer to trial strategy or tactical choices if they are informed ones based

upon adequate preparation. Wright, No. 01C01-9105-CR-00149 (citing Hellard v.

State, 629 S.W.2d 4, 9 (Tenn.1982)).           Additionally, this court should avoid the

"distorting effects of hindsight" and "judge the reasonableness of counsel's challenged

conduct on the facts of the particular case, viewed as of the time of counsel's conduct."

Strickland v. Washington, 466 U.S. at 689-690, 104 S.Ct. at 2065-2066. Moreover, we

note that defendants are not entitled to perfect representation, only constitutionally

adequate representation. Harries v. State, No. 833 (Tenn. Crim. App. at Knoxville,

August 29, 1990), perm. to appeal denied, (Tenn.1991). However, we recognize that

“our duty to search for constitutional [deficiencies] with painstaking care is never more

exacting than it is in a capital case.” Burger v. Kemp, 483 U.S. 776, 785, 107 S.Ct.

3114, 3121 (1987).



       To establish the prejudice prong of Strickland, the appellant must show that

there is a reasonable probability that, but for counsel's deficient performance, the result

of the proceeding would have been different. Strickland v. Washington, 466 U.S. at

694, 104 S.Ct. at 2068.      A reasonable probability is one sufficient to undermine

confidence in the outcome. Id. That is, the evidence stemming from failing to prepare

a sound defense or present witnesses must be significant, but it does not necessarily

follow that the trial would have otherwise resulted in an acquittal. State v. Brimmer, No.

03C01-9703-CC-00083 (Tenn. Crim. App. at Knoxville, Sept. 15, 1998) (citing Nealy


                                          21
v. Cabana, 764 F.2d 1173, 1178-1179 (5th Cir. 1985); Code v. Montgomery, 799 F.2d

1481, 1483 (11th Cir. 1986)). “A reasonable probability of being found guilty of a lesser

charge, or a shorter sentence, satisfies the second prong in Strickland.” Brimmer, No.

03C01-9703-CC-00083 (citing State v. Zimmerman, 823 S.W.2d 220, 225 (Tenn. Crim

App. 1991); 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 appellant 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,

579-580 (Tenn. 1997), reh’g denied, (1998), cert. denied, No. 97-8880 (U.S. Tenn. Oct.

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



  1. Counsel’s failure to object to the admission of testimony regarding the
used condom.

       At the appellant’s trial, the State introduced a used condom found in a bedroom

closet at the crime scene. No objection was made to the introduction of this evidence.

The appellant contends that his attorneys were ineffective for failing to object to the

introduction of testimony regarding the condom. Specifically, he argues that the

condom was irrelevant because the appellant was not charged with rape or any sexual

offense and, given its prejudicial effect, should not have been admitted. He further

asserts that no evidence of sexual activity existed other than the condom and that a

condom alone is not evidence of rape.



       In its findings of fact and conclusions of law, the post-conviction court

determined:

       The petitioner alleges that the trial counsel’s representation was
       ineffective because they did not object to irrelevant evidence that was
       presented during the trial. The evidence complained about was a used
       condom found at the scene of the crime. The petitioner maintains that
       the condom was not identified through physical or scientific proof to the
       defendant. This Court is of the opinion that the evidence complained of
       was clearly relevant considering the entire record of the case. The
       condition and position of the victim’s clothing, the victim first being tied up
       and placed on the bed and her subsequent removal to the tub were

                                           22
       certainly indications separate and apart from the condom that would
       indicate the victim had been raped prior to her death. Defense counsel
       cannot be held to be ineffective for not objecting to evidence that is
       properly admissible. The Court finds this allegation to be without merit.



       The appellant contends that the post-conviction court’s finding fails to address

the question of why evidence of an uncharged rape is relevant in a prosecution for

felony murder where the underlying crime is robbery. Generally, “[e]vidence of other

crimes, wrongs, or acts is not admissible to prove the character of a person in order to

show action in conformity with the character trait.” Tenn. R. Evid. 404(b). However,

such evidence may be admissible for other purposes. For example, proof of bad acts

occurring before and after the offense at issue are admissible to provide the trier of fact

with “the full story.” See State v. Hoyt, 928 S.W.2d 935, 943 (Tenn. Crim. App. 1995)

(citing N. Cohen, Tennessee Law of Evidence, § 404.11 (2d ed. 1990). E.g., State v.

Payne, 791 S.W.2d 10, 16 (Tenn. 1990), aff’d by, Payne v. United States, 501 U.S.

808, 111 S.Ct. 2597 (1991)); see also State v. McCary, 922 S.W.2d 511, 514 (Tenn.

1996). Moreover, considering that the jury learned of the State’s failure to test the

contents of the condom and, therefore, could only infer that the appellant perpetrated

a rape against the victim, we conclude that the probative value of such evidence

outweighed the danger of unfair prejudice, as the condom was not specifically identified

as belonging to the appellant. See Tenn. R. Evid. 401, 402, 403. Counsel cannot be

found ineffective for failure to object to evidence which is obviously admissible. See

Hellard, 629 S.W.2d at 11. This issue is without merit.




       2. Counsel’s failure to pursue hearings on pretrial motions.


       The appellant contends that his attorneys “utterly failed to adequately prepare

this death penalty case for trial.” As evidence of counsel’s total inadequacy, the

appellant asserts that counsel “did not even docket for hearing a number of non-case-

specific, generic motions that had been previously filed.” Thus, the appellant argues


                                          23
that he was deprived of the opportunity to obtain complete discovery, expand the scope

of voir dire for the defense, narrow the State’s proof, expand the defense proof, identify

the evidence to be presented at trial, and to generally develop his case and explore

settlement possibilities.



        Approximately thirty “boilerplate” pre-trial motions, relative to all capital cases,

were filed in this case. The trial court refused to entertain these motions because they

had not been set for hearing prior to trial.14 At the post-conviction hearing, Isaiah Gant,

an attorney who testified as an expert in the defense of capital cases, explained that

pretrial motion practice is crucial in death penalty cases in that such practice defines

the parameters of both the prosecution and defense cases. As such, Gant concluded

that trial counsel’s failure to have these motions heard affected the entire case. Robert

Jones, lead trial counsel for the appellant, explained that the motions were not

docketed for trial because “we felt that the death penalty would not apply in this case.”

Additionally, Assistant District Attorney Harris, who prosecuted the appellant’s case,

recalled that there were no issues requiring a pre-trial hearing and that the motions filed

“go to the constitutionality of the death penalty” and “are filed in every death penalty

case.” He added that these motions are normally filed in order for “the defense [to]

preserve the record. They are usually submitted without argument.”


        The post-conviction court found that it was proper to file these “general motions

to protect the record.” However, the fact that the motions were filed is not the basis of

the claim of ineffectiveness. At trial, lead counsel could offer no explanation to the trial

court as to why these motions had not been set for argument. This, in and of itself,



        14
           Regarding trial counsel’s failure to have pre-trial motions set for hearing, the following
colloq uy occ urre d at th e trial le vel:
         COURT: W hy in the world haven’t you asked for a hearing on these motions?
         JONES: Your Honor, we probably should have.
         COURT: You didn’t answer my question. Why haven’t you?
         JONES: I don’t have a reason.
         COURT: That’s the question.
         JONES : I don’t have a reason, your Honor.
         COURT: I think you’ve waived your motions. I think you’ve waived your motions
         waiting to the day of trial. I’m n ot going to h ear m otions on the day of trial, pe riod.
         I rule that you have waived them.

                                                  24
amounts to deficient performance. However, as the appellant has failed to show how

any of these motions would have impacted his trial and that he was prejudiced thereby,

we conclude that he has not met his burden              of establishing his claims by a

preponderance of the evidence.



       3. Counsel’s failure to properly investigate other possible perpetrators.


       The appellant contends that his trial counsel was ineffective for failure (1) to

investigate two additional suspects, Anthony Lewis Ross and Taurus Dwayne Gardner;

and (2) to investigate and question the officers regarding the statement of Alice Cooper.

Appellant’s post-conviction counsel failed to present any supporting evidence of these

contentions; and we will not speculate as to the alleged suspect’s involvement nor to

the testimony of Ms. Cooper, as previously stated. Because the appellant has failed

to demonstrate any prejudice, this issue is without merit.



       4. Counsel’s failure to request funds for expert services.


       The appellant contends that his trial counsel was ineffective for failing to secure

the funds necessary to provide an effective defense.          Specifically, he points to

counsel’s failure to request funds to conduct a mental status evaluation, to retain a

serologist or DNA expert to test the used condom found at the crime scene, to retain

a forensic expert to determine whether the hair combings from the victim included or

excluded the appellant, and to retain a fingerprint expert to conduct an independent

evaluation of the incriminating fingerprint evidence.



       There is no dispute that, despite the appellant’s continued assertions of

innocence, trial counsel failed to request any funds for any of the above enumerated

expert services.



   a. Failure to request DNA/Serologist expert to examine condom and hair


                                         25
samples.

       At the post-conviction hearing, Robert Jones testified that the decision not to

have the hair combings from the victim’s body and the contents of the condom tested

were tactical decisions, as the defense team believed that there “was a good chance

that it would have been our client. We felt that we would be in a much better position

to show that the State had not fully investigated the case, rather than taking a chance

on proving it was Mr. Smith.” In effect, the State’s failure to submit these same items

for forensic analysis permitted the appellant to argue that the State had failed to

establish his connection to this evidence. We cannot now say in hindsight that this was

an unsound strategical decision. Hellard, 629 S.W.2d at 9.



       Moreover, before he may succeed on such a claim of ineffectiveness, the

appellant must show that, but for, counsel’s failure to request an expert, the jury would

have had a reasonable doubt concerning his guilt. The appellant has not met this

burden. In order to obtain expert services, a defendant must show a particularized

need for such services. See State v. Shepherd, 902 S.W.2d 895, 904 (Tenn. 1995).

 “The defendant must show that a substantial need exists requiring the assistance of

state paid supporting services and that his defense cannot be fully developed without

such professional assistance.” State v. Evans, 838 S.W.2d 185, 192 (Tenn. 1992),

cert. denied, 510 U.S. 1064, 114 S.Ct. 740 (1994). He has not identified an expert

witness available to testify on his behalf or the type of testimony such a witness would

have provided beyond that elicited at trial. See Black, 794 S.W.2d at 757. This issue

is without merit.




         b. Failure to request funds for expert mental health evaluation.

           As explanation for the absence of a request for funds for a mental health

expert, Jones testified that there were adequate resources from the Public Defender’s

Office to cover the fees of the mental retardation examination, thus, there was no need


                                         26
to request additional funds from the court. Although Jones’ explanation that adequate

funds were available from the Shelby County Public Defender’s Office suffices to

negate the need to request such funding from the court, as this issue affects

subsequent allegations of ineffectiveness regarding investigation and presentation of

the case, we refrain, at this juncture, from determining whether the omission of such

a request prejudiced the appellant’s defense.



              c. Failure to request expert services for fingerprint analysis.

         No testimony was presented to explain the failure to request a fingerprint expert.

There is no doubt that the fingerprint evidence was a crucial piece in the State’s case,

establishing the identity of the appellant.15 Thus, absent any explanation in the record,

we presume a threshold finding of deficient performance.                             Notwithstanding, the

appellant has not demonstrated how he was harmed by counsel’s failure to request the

services of independent experts. See Black, 794 S.W.2d at 757. The qualifications

of the State’s experts were not challenged and there is no allegation of bias.

Additionally, at trial, counsel cross-examined the expert who examined the fingerprints.

The appellant has not identified an expert witness available to testify on his behalf nor

has he shown what additional tests his experts would perform or what new testimony

they would present. See Black, 794 S.W.2d at 757. The appellant has failed to show

how such expert testimony would have altered the outcome of his trial. Moreover, the

mere fact that the State relies upon expert evidence does not mean that an indigent

accused is entitled to an expert absent a showing that the failure to provide expert

services amounts to a denial of due process. See State v. Phillips, 728 S.W.2d 24, 25

(Tenn. Crim. App. 1986). Accordingly, the appellant has failed to meet his burden of



         15
           In addition, the appellant contends that defense counsel failed to investigate the report
from the fingerp rint exam iner. The report of O fficer Sim s indicated that prints of two sep arate
adult individua ls were fo und on the sce ne as w ell as one p rint of a juve nile. One o f the adu lt prints
cam e fro m in side the vic tim’s hom e and that p rint be longe d to th e app ellant . The othe r adu lt
prints were located on the victim’s vehicle, one belonging to the appellant and the other to a police
officer wh o had w orked the crim e scen e. The ju venile han d print rem ained un identified.
Coun sel’s failure to investigate the unide ntified finger print is enc omp assed within his failure to
reques t a fingerpr int expert.



                                                    27
establishing that counsel’s failure to request a fingerprint expert prejudiced the outcome

of his trial.



      5. Counsel’s failure to investigate, litigate, and present proof on the
appellant’s sanity, his competency to stand trial, and his mental retardation and
counsel’s failure to present mitigating evidence during the sentencing phase.


        The appellant argues that his mental condition was critical at both the guilt and

the sentencing phases of his trial and defense counsel’s failure to explore, investigate,

litigate, and present available proof of his mental condition constituted ineffective

assistance of counsel.



        At the post-conviction hearing, Robert Jones testified that, upon assignment to

the appellant’s case, the entire defense team, which included two attorneys and two

investigators, met with the appellant.     Jones stated that the appellant gave them

names of his family members and some general information. During this interview, the

appellant denied any involvement in the crime. He explained to his attorneys that he

may have been at work at the time of the crime, but counsel was unable to verify this

alleged alibi or develop a plausible alibi defense. Again, the appellant presented no

proof at the guilt phase of his trial.



        Jones related that he ordered investigations into the facts of the case and the

appellant’s background. The defense team interviewed at least thirteen witnesses prior

to trial, including members of the appellant’s family, however, none provided any helpful

information regarding the appellant or the case. Jones also testified that he had

requested competency and sanity evaluations of the appellant. Despite his assertions,

he was unable to provide any record of this request, nor any record that the appellant

was ever evaluated to determine whether the defense of insanity could be supported

or whether the appellant was competent to stand trial. Jones stated that Dr. Hutson

was requested to administer an IQ test and the appellant achieved an IQ test result of

54. The results of this test and the appellant’s school records were the basis of a

                                         28
motion to determine whether the appellant was mentally retarded and, thus, statutorily

ineligible to receive the death penalty.16 This motion was filed on the first scheduled

day of trial and was denied by the trial court because the appellant failed to prove

“deficits in his adaptive behavior,” notwithstanding the fact that this proof was readily

obtained and established at the post-conviction hearing. 17                             Jones stated that at the

motion hearing, the defense team only had possession of the appellant’s school

records; they had nothing of substance from any of the previous correctional institutions

or related parole reports.18 He admitted that he could not recall what proof was

introduced at this hearing. 19



         Jones stated that he had sent a release to the Department of Correction for the

appellant’s records and received eleven pages regarding the appellant’s incarceration

at Fort Pillow. His files revealed a note that the defense team had received records

from Taft Youth Center, although the actual record was not in the file. He stated that

he had no records from Dismas House or the Board of Paroles. He did not have any

records from the Shelby County Juvenile Court or the Covington Mental Health Center.

His files contained no psychological evaluation other than information regarding the IQ

test performed by Dr. Hutson. Jones testified that he was unaware of prior mental

evaluations conducted during the appellant’s prior periods of incarceration by at least



         16
          The d eath pen alty may no t be imp osed w here the defend ant is m entally retarde d. See
Tenn. Code Ann. § 39-13-203(b). To prove that he is ineligible for a death sentence, a defendant
has the burden of show ing, by a prep ondera nce of th e eviden ce, that (1) he has a function al I.Q.
of seventy (70) or below; (2) he exhibits deficits in adaptive behavior; and (3) that the mental
retardation man ifested du ring the de fendan t’s develop men tal period, or b y age eighte en (18).
See Tenn . Code A nn. § 39- 13-203 (a).

         On dire ct appe al, our sup rem e court d eterm ined that the appellant fa iled to prove “deficits
in his adaptive behavior.” Sm ith, 893 S.W .2d at 918 .

         17
          Inde ed, th e sup rem e cou rt note d in its o pinion , “[i]t is re grett able t hat D r. Hu tson . . . did
not discuss the adaptive deficit prong. . . . The record is inadequate to support a finding that the
defendant suffers from deficits in his adaptive behavior.” Sm ith, 893 S.W.2d at 918.

         18
           The records from the Department of Correction in the possession of defense counsel
transcribed an evaluation of the appellant when he was s eventeen years old finding: “We be lieve
subjec t to have be low avera ge intelligenc e. Progn osis for p rison and civil adjustm ent guar ded.”

         19
           The S tate conc edes th at defen se cou nsel was ineffective for failing to pre sent ad equate
proof at the hearing held to determine whether, as a matter of law, the appellant could receive a
sentence of death.

                                                         29
eight separate psychologists. Jones testified that the only witness presented during the

sentencing phase by the defense was Dr. Hutson. Jones stated that they chose not to

introduce friends or family members because they were afraid these witnesses would

relate that the appellant was more competent than they believed he was, because the

appellant’s family members were hostile toward the appellant due to his rape of his

sister’s child, and because they were afraid of the State’s cross-examination regarding

violent episodes in the appellant’s life.



       Carolyn Watkins, second chair counsel to Robert Jones, testified that this was

her first capital case. She stated that Dr. John Hutson was retained by their office

because the defense team “felt that the defendant had some type of psychological or

mental problem.” She explained that Dr. Hutson was instructed to interview the

appellant, assess the appellant as to the nature of any problem, and “let us know what

he thinks,” because after their initial interview the defense team thought the appellant

was slow. Despite her assertions that the defense team had requested that Dr. Hutson

perform a competency evaluation, her records could not verify such a request.



        Dr. John Hutson, the psychologist retained by the Public Defender’s Office,

testified that he was only instructed to administer a Stanford-Binet I.Q. test to the

appellant. He testified that the Stanford-Binet test usually scored lower than the more

widely used Wechsler test. He stated that based upon the Stanford-Binet test, the

appellant achieved an IQ of 54, which probably meant that the appellant functioned in

the low to mid 60's. He opined that he believed the appellant to be mentally retarded

as defined by statute.     He also testified that the appellant’s mental retardation

manifested itself during the appellant’s developmental period before age eighteen. He

further stated that the defense team did not ask him to perform a competency

evaluation nor was he asked to explore a possible insanity defense. In fact, Dr. Hutson

testified that he never reviewed any records regarding the appellant until the day of the

post-conviction hearing.


                                            30
       Isaiah Gant, testifying on behalf of the appellant, stated that, after reviewing

counsel’s files and the record in this case, in his opinion, the appellant had a mental

state defense at the guilt phase of the trial, although his counsel did not pursue this.

Additionally, he opined that, based upon the reports he reviewed, that the proof offered

in support of the mental retardation issue was inadequate.



       Gloria Shettles, a private investigator with Inquisitor Inc., was hired by post-

conviction counsel to inquire into the appellant’s background. Her inquiry revealed that

the appellant’s father died from an alcohol related illness when the appellant was

sixteen years old. His mother worked two full-time jobs to support the appellant and his

four siblings and, apparently, drank heavily when she was at home. The appellant

often missed school and had to repeat the second, third, and seventh grades. The

appellant never completed the seventh grade.        Although he had studied and taken

preparatory courses while in prison, the appellant was never able to pass a GED

examination.



       Shettles also interviewed the appellant on several occasions, at times when he

was taking anti-psychotic medication and other times when he was not taking the

medication at all. When he had not been taking his medication, he suffered from

headaches and appeared agitated.         After the appellant had resumed taking his

medication for a period of two to three days, Shettles observed a noticeable difference

in his demeanor, i.e., the appellant was much more relaxed and less irritated. She

stated that the parole board would have had access to all of the appellant’s records

while reviewing parole considerations.        She added that, although many of the

appellant’s relevant parole field records had now been destroyed, these records would

have been available at the time of his trial. Shettles concluded that the appellant’s life

had been one constant sequence of violent acts until he began receiving medication.



       Mattie Halley was the appellant’s seventh grade teacher at Porter Junior High


                                         31
School. She explained that the appellant was in a federally funded program designed

to help students who had an IQ less than 80 and who performed three to four grade

levels below the norm. She recalled

       having worked with [the appellant] and witnessed quite a bit of frustration
       on his part. Especially when I gave him a simple task to perform. He
       would attempt to do whatever I put before him to do, but he just couldn’t
       do it.

 Because of his problems, Halley stated that she took a particular interest in the

appellant and gave him individualized attention. She verified, through school records,

that the appellant had an IQ of 72 in 1957, and an IQ of 67 in 1960. She also testified

that the highest grade reading equivalency the appellant ever reached was a reading

level of fourth grade, four months.



       Mary McGlothin testified that she met the appellant, soon after his release from

incarceration in 1987, while they were both employed at S & S Cafeteria. Through this

employment, the two became friends and the appellant lived in her home for about four

months. She explained that, at work, the appellant worked very efficiently but that he

had problems taking orders. He would become frustrated, ill- tempered, and hostile.

After being employed for about six months, the appellant was asked to leave because

he was caught stealing a battery at a nearby K-Mart store. Ms. McGlothin testified that,

personally, the appellant desired a boyfriend-girlfriend relationship with her, which she

rejected. She observed that “he did have mental problems.” On several occasions, the

appellant claimed to hear voices from God telling him to kill people. While he resided

with her and her children, “[i]t was like having another child. He demanded a lot of

attention and was desperate for somebody to care about him.” He was very dominating

and was jealous of Ms. McGlothin’s other friends. She further testified that the

appellant was unable to successfully travel by bus, thus, he resorted to walking or riding

his bicycle wherever he went. She also stated that he was very moody. On one

occasion, the appellant came in with a sawed-off shotgun, to which Ms. McGlothin

objected. The incident resulted in Ms. McGlothin calling “911" and the police having

to restrain the appellant. As a result of this incident, the appellant spent four months

                                         32
in the Shelby County Jail.



       Dr. William Bernet, Medical Director of the Psychiatric Hospital at Vanderbilt,

testified that he was retained by post-conviction counsel to interview and evaluate the

appellant. He stated that he interviewed the appellant for two hours and reviewed the

medical, legal, administrative, and educational records of the appellant. As a result of

his evaluation, Dr. Bernet concluded that the appellant “has multiple bio-psycho-social

handicaps, . . .[encompassing] a number of different areas; including his intelligence.”

Dr. Bernet opined that the appellant has a below normal intelligence and that the

appellant has a serious psychiatric illness, specifically an illness that is psychotic. He

stated that the appellant “may have some brain damage. And that [the appellant] has

been in institutions so long, I think he has been affected by that.”



       Dr. Bernet further explained that the appellant’s low intelligence is manifested

by his school performance, his poor academic performance, his inability to pass a GED

examination, and his inability to maintain a job.       He opined that the appellant’s

psychiatric condition fits most closely to paranoid schizophrenia, manifested by many

incidents of hallucinations, auditory hallucinations, paranoia, and irritability in dealing

with other people. Additionally, Dr. Bernet observed that the appellant had previously

been treated, while in prison, for schizophrenia with antipsychotic medication. When

asked whether the appellant was competent at the time of his trial in October 1991, Dr.

Bernet responded that “the fact that he wasn’t on medication at the time, that when he’s

not on medication . . . he is hallucinating and psychotic and disorganized . . . it’s more

likely than not that he was not competent at the time of the trial.” (Emphasis added).

He continued to state that “if you are both psychotic and . . . retarded then it’s even

more of a handicap than having either one of them alone.” He opined that it is

       very probable that [the appellant] has had this condition for a long time
       and that he had these conditions at the time of the alleged offense. And
       that these conditions may have prevented him from understanding the
       wrongfulness of his actions or conforming his actions to the requirements
       of the law.


                                          33
(Emphasis added). In conclusion, Dr. Bernet stated that the appellant’s

      serious mental disorder would have prevented him from forming an intent
      to commit a particular act. If you combine a man who has a psychotic
      illness, who has low intelligence, who could well have been intoxicated
      at the time, I think all these things could have prevented him from forming
      an intent.


(Emphasis added).



       Dr. Geraldine Bishop, a clinical psychologist also retained by post-conviction

counsel, assessed the adaptive behavior of the appellant. She administered the test

twice, once based upon the appellant’s condition while in a structured environment on

death row and another while in the community without receiving any medication

immediately before the time of the murder. Using an adaptive behavior scale published

for the American Association of Mental Retardation and by interviewing the appellant,

his prison case manager, and Mary McGlothin, Dr. Bishop was able to obtain a

continuum of behavior that allowed her to project what the appellant’s adaptive

behavior was like during his developmental period. She opined that the appellant had

current, as well as a history of, retarded adaptive behavior, meaning that the appellant

was unable to adapt to the surrounding circumstances. She also concluded that this

retarded adaptive behavior developed well before he was eighteen years old.



       Gail Barbee, with the Tennessee Board of Parole, introduced several

documents.    These documents included “notices of board action” regarding the

appellant’s eligibility for parole.   Specifically, on June 4, 1986, parole was

recommended conditioned upon the appellant being sent to Dismas House. This report

also noted that the appellant “has lost contact with the outside world and will need

support on the outside.” Subsequent notices on September 12, 1986; May 15, 1987;

and June 25, 1987, stated that parole would have to be conditioned on release to

Dismas House.



       At the post-conviction hearing, the State called no witnesses to contradict the

                                        34
expert opinions of Drs. Hutson, Bernet, and Bishop.




                                      c. Analysis



       As the issues involving the defendant’s mental condition are so intertwined that

they cannot be neatly divided into separate areas, we begin our review by consolidating

the appellant’s allegations involving competency, sanity, and mental retardation. See,

e.g., Starr v. Lockhart, 23 F.3d 1280, 1290 n.7 (8th Cir. 1994), reh’g denied, (1994),

cert. denied, 513 U.S. 995, 115 S.Ct. 499 (1994). Next, mindful that counsel’s duty to

investigate all reasonable lines of defense is most strictly observed in capital cases, we

must determine whether trial counsel knew or, through reasonable investigation, should

have known of the appellant’s pre-existing mental history. See Coleman v. Brown, 802

F.2d 1227, 1233-1234 (10th Cir. 1986), cert. denied, 482 U.S. 909, 107 S.Ct. 2491

(1987).    For counsel to be ineffective in failing to investigate an alleged mental

condition, the appellant must show facts indicating a possible mental condition.

Sometimes it will be evident from the evidence concerning the circumstances of the

crime, from conversation with the defendant, or from other sources of information not

requiring fresh investigation, that the defendant has some mental or other condition that

will require further investigation, and then the failure to investigate will be ineffective

assistance. See     Antwine v. Delo, 54 F.3d 1357, 1365-1368 (8th Cir. 1995), cert.

denied, 516 U.S. 1067, 116 S.Ct. 753 (1996); Brewer v. Aiken, 935 F.2d 850, 857-858

(7th Cir. 1991).



       The evidence presented at the post-conviction hearing revealed that defense

counsel possessed evidence regarding the appellant’s mental status which they

essentially ignored. This is not a situation where trial counsel was completely unaware

of their client’s mental problems prior to trial. Indeed, defense counsel’s file included,

in addition to the results of Dr. Hutson’s IQ test results establishing an IQ of 54, (1)


                                          35
notations that defense counsel knew or had reason to know that the appellant had been

prescribed antipsychotic medication and had been mentally evaluated while in prison,

(2) notes indicating that the appellant “may need examination Review,” and (3) a memo

from Parole Supervisor Bernard Bennett which reflects “can order mental evaluation.”



          Despite this information, defense counsel failed to pursue an investigation into

the appellant’s mental history. If they had conducted any type of reasonable effort to

seek out such information, they would have discovered that the appellant has spent

most of his life institutionalized.20 In addition to his behavioral records, his Department




of Correction record documents a continuous history of mental evaluations, counseling,

and concerns.21

          20
            Spe cifica lly, the fo llowin g tim e line e xem plifies the s ever ity of the appe llant’s
institutionalization:
          1964-1965                    State Voc ation al Tr aining Sch ool fo r Colo red B oys

          1966-1968                   Tennessee Department of Correction

          1970-1987                   Tennessee Department of Correction

                                      1976: administered antipsychotic medication
                                      1979: referred to Covington Mental Health Center for
                                      evaluation : suffered men tal confus ion, imp aired m emo ry,
                                      parano id ideation, au ditory hallucina tions, dep ressive s ymptom s,
                                      obsessive compulsive behavior. Treated with antipsychotic and
                                      antidepressant medication. Parole Board advised that upon
                                      release, appellant should continue medication.
                                      1980: psychiatric evaluation completed, results
                                      concluded that appellant is completely institutionalized and
                                      dep end ent u pon cont rolled envir onm ent fo r sur vival.

                                       1987: Defendant paroled and does not continue
                                       medication.

          1988                         Shelby C ounty Jail. No men tal treatm ent, defe ndant
                                       experiences auditory hallucinations.

          1990                         Shelby County Jail. No medication.
          21

Date               Age       Repo rt
5-19-82            34        Recommendation of psychiatric interviews through TCMHC.

10-13-81           33        “On 10-2-81 subject was deferred clemency consideration
                             until 6-83. Sta tes he is s till receiving psyc hiatric cou nseling.”

                                                        36
          The information revealed at the post-conviction hearing raises doubt as to the

appellant’s competency to stand trial, his sanity at the time of the commission of the

offense, and his level of mental retardation. We cannot arrive at any conclusion other

than finding that trial counsel’s abandonment of furthering its investigation into the

appellant’s mental condition, after only a cursory investigation regarding the appellant’s


3-31-81         33     “Subjec t is currently rec eiving [psych ological] interv iews and /
                       or me dication. . . “

10-23-80        32     “This m an brings to the interview a long an d varied h istory of cha rges,
                       problem behavio r while in priso n, and a c ontinuing n eed for m ental hea lth
                       intervention s. He is pr esently on m aintenan ce psych otropic m edication ,
                       although he has received none since returning to the Main Prison and
                       reports no ill effects. Earlier testing indicates an intellectual ability below
                       average but within the normal range. . . .While there is no reason to
                       suspect at this time the presence of any primary mood or thinking
                       disorder, he does appear to be a man completely institutionalized and
                       depen dant on a controlled and su pervised environm ent for su rvival.” Dr.
                       Morga n’s Rep ort.

10-2-80         32     “Psycho logical interview s at discre tion of inst. co unselor .” “Menta l Health
                       for Medication” “This man was 17 years old when he was sentenced in
                       1966 fo r Burg[lary]. . . . . His life ha s been a nightm are sinc e then. It
                       would take pages to get a full picture of the past. . . . In December 1979
                       [Philip Rhoads] began to notice general mental confusion. . . . In late
                       Janua ry plans we re ma de to hav e him s een by C ovington Menta l Health.
                       Finally he wa s perm itted to go Ap ril 1980 to se e Dr. Es ther Ro berts. W ith
                       her help later he was given a neurological evaluation by Dr. Georgia
                       Montouris . . . . Her report said he had no brain damage. Another referral
                       was made to Dr. Roberts at Covington Mental Health in July 1980 and
                       was plac ed on m edication . He con tinues to im prove a t this time.”

9-30-80         32     Recomm endation of psychological interviews.

7-16-80         32     “Appears m ore in control today but stating that he still is in need of
                       assistance for control of his impulsive desire to hurt himself or others
                       especially if they appear ignorant in behavior. Obsessive compulsive
                       thinking evidence as effort to reduce anxiety to more manageable
                       encounters. There still seems to be evidence of organicity and failure to
                       comprehend various facets.” Dr. Roberts, Covington Mental Health.

4-9-80          32     “He appeared through the interview session as being quite preoccupied
                       in thought and manner and frequently exhibiting a smiling inappropriate
                       affe ctive r esp ons e to q ues tions . Dep ress ive fe ature s we re ve ry
                       noticeable with psycho-motor retardation and conscious focused attention
                       on suicid al ideation tha t centere d on the d eaths o f his pare nts. . . . .
                       Description of prodromal symptoms accom panying the onset of one
                       sided headaches bright halo type lights creating effects and
                       overwhelming needs to isolate himself from others in his surrounding
                       because of irritability. Also exhibits paranoid ideation that other inmates
                       are setting him up to get him in trouble. Circumstantial and loose
                       ideation also present. He furthermore rationalizes his paranoid thinking
                       as justification for possible homicidal intents against guards and fellow
                       prisoners. . . . The overall impressions of Mr. Smith is that he requires
                       further ne uropsyc hologica l evaluation fo r evidenc e of orga nic imp airme nt.
                       . . . This injury is probably accentuating a personality defect or
                       pathological psychosis manifested by poor impulse and judgment and
                       paranoid thinking.” Dr. Roberts.

7-25-79         31     Reco mm endation of psych iatric treatm ent.

12-2-68         20     “This subject shows a willingness to work but just can’t seem
                       to get a gra sp on thin gs.”

                                                 37
IQ, was not reasonable under the circumstances. Counsel’s duty to investigate derives

from counsel’s basic function which is “to make the adversarial testing process work in

the particular case.” Kimmelman v. Morrison, 477 U.S. 365, 384, 106 S.Ct. 2574, 2066

(1986). Because that testing process generally will not function properly unless

defense counsel has done some investigation into the prosecution’s case and into

various defense strategies, counsel has a duty to make reasonable investigations or

to make a reasonable decision that makes particular investigations unnecessary.

Kimmelman v. Morrison, 477 U.S. at 384, 106 S.Ct. at 2066.



       A tactical choice not to pursue one course or another should not be confused

with the duty to investigate; trial counsel’s decision not to further investigate into the

appellant’s mental health status and background was not strategic. Although trial

counsel is afforded tremendous deference over matters of trial strategy, the decision

to select a trial strategy must be reasonably supported and within the wide range of

professionally competent assistance. Strickland v. Washington, 466 U.S. at 690, 104

S.Ct. at 2066. Viewing the performance of counsel solely from the perspective of

strategic competence, the reviewing court must find that defense counsel made a

significant effort, based on reasonable investigation and logical argument, to ably

present the defendant’s case to the jury. An attorney is not ineffective merely because

he fails to follow every evidentiary lead.      However, a strategic decision is not

reasonable when the attorney has failed to investigate his options and make a

reasonable choice between them.




       In the present case, the State’s evidence consisted of fingerprint evidence taken

at the crime scene and the appellant’s confessions to his niece and Willie Cox. Suffice

it to say, the case against the appellant was strong. Faced with these facts, trial

counsel failed to take advantage of information relative to the appellant’s mental

condition; hence, failing to consider or pursue a defense of insanity or the issue of


                                         38
whether the appellant was even competent to stand trial. Rather, defense counsel

proceeded to trial apparently hoping to cast, through cross-examination, reasonable

doubt upon the State’s proof; in essence, they presented “no defense.” The question

is not whether an alternative defense would have been successful, but, rather, whether

counsel ignored the only viable trial strategy under the facts. The evidence available

to the defense team not only triggered a duty to investigate further but also a duty to

seek a competency hearing to determine whether the appellant was mentally able to

consult with the defense team and aid in his defense with a reasonable degree of

rational understanding. Additionally, if defense counsel had presented such evidence

relating to the appellant’s mental condition, the burden of proving insanity by a

preponderance of the evidence would have shifted to the State to prove his sanity at

the time of the offense beyond a reasonable doubt. Counsel’s failures in this regard

constitute deficient performance. See Antwine v. Delo, 54 F.3d at 1367-68 (holding

counsel ineffective in failing to investigate fully before rejecting strategies based on

client’s mental condition); Kenley v. Armontrout, 937 F.2d 1298, 1304-1308 (8th Cir).

(same), cert. denied, 502 U.S. 964, 112 S.Ct. 431 (1991).



        Reasonable performance of counsel includes an adequate investigation of facts,

consideration of viable theories, and development of evidence to support those

theories. See Hill v. Lockhart, 28 F.3d 832 (8th Cir. 1994), reh’g denied, (1995), cert.

denied, 513 U.S. 1102, 115 S.Ct. 778 (1995). Clearly, counsel’s performance in the

present case was not reasonable and fell below the range of sound professional

assistance. To do little or no investigation at all on an issue that not only implicates the

accused’s only viable defense, but also his present competency, is not a tactical




decision.22 It is only in very rare circumstances where a decision not to investigate a

        22
           See, e.g., Seid el v. M erkle , 146 F.3d 750, 755 (9th Cir. 1998) (ineffective performance
when trial counsel failed to conduct any investigation at all into his client’s psychiatric history and
therefor e neglec ted to purs ue a pote ntially succes sful defe nse), petition for cert. filed, No. 98-433
(U.S. Se pt. 10, 199 8); Deutscher v. Whitley,884 F.2 d 1152 , 1159-1 160 (9th Cir. 1989 ), vacated on

                                                   39
client’s mental condition would be reasonable after counsel has notice of the client’s

history of mental problems. Where counsel (1) makes some exploration of the mental

history of the appellant but fails to take an obvious and easily available step which

would have made such a defense viable, (2) does not produce reasonable tactical

reasons for not pursuing further investigation, and (3) raises no other plausible defense,

courts may find ineffective assistance of counsel. See Walker v. Mitchell, 587 F. Supp.

1432 (E.D. Va. 1984) (emphasis added); see also Loe v. United States, 545 F. Supp.

662 (E.D. Va. 1982), aff’d mem., 701 F.2d 149 (4th Cir. 1983).



        Given the severity of the charges and potential penalty facing the appellant, we

believe that it was the duty of the appellant’s attorneys to collect as much information

as possible about the appellant’s mental history. The failure to obtain the records

verifying the appellant’s treatment with antipsychotic medication was not a tactical

decision but, rather, the result of counsel’s inadequate preparation resulting in their

failure to discover the evidence. See Laws v. Armontrout, 863 F.2d 1377, 1385 (8th

Cir. 1988) (en banc), cert. denied, 490 U.S. 1040, 109 S.Ct. 1944 (1989). We further

find it impossible to fathom that the appellant was not prejudiced by trial counsel’s

failure to explore the appellant’s mental history for possible defenses, proof, and

mitigating evidence. The psychiatric evidence, if properly investigated and presented

could have totally changed the evidentiary picture in the present case. “When defense

counsel ‘entirely fails to subject the prosecution’s case to meaningful adversarial

testing, there has been a denial of Sixth Amendment rights that makes the adversary

process itself presumptively unreliable.’” Brimmer, No. 03C01-9703-CC-00083 (citing

United States v. Cronic, 466 U.S. 648, 659, 104 S.Ct. 2039, 2045 (1984)). Thus, we

find counsel’s failure to investigate the appellant’s mental condition both deficient and



other grounds, 500 U.S . 901, 111 S.Ct. 167 8 (1991 ) (Coun sel ma de no tac tical decision not to
investigate the defe ndant’s p ossible m ental im pairm ent. He s imply failed to do so.); Evans v.
Lew is, 855 F.2d 631, 637 (9th Cir. 1988) (counsel’s failure to pursue the possibility of establishing
the defe ndant’s m ental instab ility constituted de ficient perfo rma nce); see also Bloom v. Calderon,
132 F.3 d 1267 , 1277 (9 th Cir. 199 7), cert. denied, -- U.S. --, 11 8 S.Ct. 18 56 (199 8); Hendricks v.
Calderon, 70 F.3d 1032-1 044 (9th Cir. 1995 ), cert. denied, 517 U.S. 1111, 116 S.Ct. 1335 (199 6);
Maddox v. Lord , 818 F.2d 1058, 1061-106 2 (2d Cir. 1987).

                                                  40
prejudicial requiring a new trial.



                   b. Mitigating Evidence at Sentencing Hearing

       Although our supreme court has observed that there is no legal requirement and

no established practice that the accused must offer evidence at the penalty phase of

a capital trial, State v. Melson, 772 S.W.2d 417, 421 (Tenn. Crim. App. 1989), cert.

denied, 493 U.S. 874, 110 S.Ct. 211 (1989), we remain cognizant of the fact that 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. Thus, although there is no requirement that defense

counsel present mitigating evidence in the sentencing phase of a capital trial, counsel’s

duty to investigate and prepare for a capital trial encompasses both the guilt and the

sentencing phases, Goad v. State, 938 S.W.2d 363, 369-370 (Tenn. 1996) (citations

omitted), and, before selecting a strategy at sentencing, counsel must conduct a

reasonable investigation into the appellant’s background for mitigation evidence to use

at sentencing. See Baxter v. Thomas, 45 F.3d 1501, 1513 (11th Cir. 1995), reh’g

denied, (1995) (en banc), cert. denied, 516 U.S. 946, 116 S.Ct. 385 (1995).



       In determining whether or not trial counsel was ineffective for failing to present

mitigating evidence, our supreme court has outlined several factors to consider in

making such an evaluation. 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); Cooper v. State, 847 S.W.2d 521, 532 (Tenn.

Crim. App. 1992); State v. Adkins, 911 S.W.2d 334 (Tenn. Crim. App. 1994)). 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


                                         41
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 factor(s)

that the mitigating evidence would not have affected the jury’s determination. Id. (citing

Fitzgerald v. Thompson, 943 F.2d 463, 470 (4th Cir. 1991), cert. denied, 502 U.S.

1112, 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)).



       By failing to investigate the appellant’s mental history, defense counsel

effectively precluded the jury from considering the combination of his troubled and

dysfunctional home life, evidence of his mental retardation, evidence of deficits in his

adaptive behavior, evidence of his history of “mental confusion, impaired memory,

paranoid ideation, [and] auditory hallucinations,”           his prolonged period of

institutionalization, and his current and prior treatment with antipsychotic and

antidepressant medication. Even if the jury had rejected the defense of insanity,

evidence of the appellant’s failure to take antipsychotic medication would have been

critical in attempting to show mitigating circumstances. The evidence with respect to

the appellant’s history of successful treatment with anti-psychotic drugs and of his

regression when he discontinued those drugs indicated a likelihood that he was

suffering from long-standing and extensive mental problems. Yet, the jury had no

opportunity to consider that evidence.



       Given the significant evidence of the appellant’s history of mental conditions and

disorders, we can hardly imagine that the appellant was not prejudiced by his lawyers

default. See generally Stephens v. Kemp, 846 F.2d at 653 (“prejudice is clear” where

attorneys failed to investigate adequately client’s mental health and present evidence

of client’s mental problems in sentencing phase); Zant v. Pitts, 436 S.E.2d 4 (Ga.

1993), overruled on other grounds by, Turpin v. Hill, 498 S.E.2d 52 (Ga. 1998) (trial

counsel ineffective for failing to present defense of mental retardation where mental

examinations showed that defendant mildly mentally retarded). We conclude that a


                                         42
reasonable probability does exist that the jury would not have found that the statutory

aggravating factors outweighed mitigating factors beyond a reasonable doubt.



        In short, we find that because the appellant’s attorneys failed to investigate and

present evidence with respect to his mental condition, both the guilt and the sentencing

phases of the appellant’s trial were rendered fundamentally unfair. The appellant has

met both prongs of the Strickland test.23




                             VI. Cumulative Error & Conclusion



        Lastly, the appellant complains that the cumulative effect of errors committed by

his attorneys, the trial court, and the prosecution throughout the investigation,

preparation, trial, and appeal of his case violated his rights under the Sixth, Eighth and

Fourteenth Amendments, and Article I, Sections 6, 7, 8 ,9, 10, 16, 17, 19, and 20 of the

Tennessee Constitution. When an attorney has made a series of errors that prevents

the proper presentation of a defense, it is appropriate to consider the cumulative impact

of the errors in assessing prejudice. See Harris by and through Ramseyer v. Wood, 64

F.3d 1432, 1438 (9th Cir. 1995), cert. denied, 490 U.S. 1075, 109 S.Ct. 2088 (1989)

(citing Crisp v. Duckworth, 743 F.2d 580, 583 (7th Cir. 1984), cert. denied, 469 U.S.

1226, 105 S.Ct. 1221 (1985); Cooper v. Fitzharris, 586 F.2d 1325, 1333 (9th Cir. 1978)

(en banc), cert. denied, 440 U.S. 974, 99 S.Ct. 1542 (1979); United States v. Merrit,

528 F.2d 650, 651 (7th Cir. 1976) (per curium)). Counsel’s failure to conduct adequate

pretrial preparation and investigation suffices for a showing of prejudice. Counsel’s

constitutionally deficient actions, numerous throughout their representation of the

appellant, collectively establish a prejudice of such magnitude that we can reach no


        23
          As we find that the trial counsel’s failure to conduct a reasonable investigation into the
appellant’s mental condition and history denied the appellant to effectively participate in the
adversarial process, we need not individually address the issues of competency, sanity, and
mental retardation. W e again note, however, that the State concedes that counsel was ineffective
regarding the presentation of proof at the mental retardation hearing.

                                                 43
conclusion other than the errors cumulatively prejudiced the appellant’s right to a fair

proceeding. There is no hesitation in reaching our conclusion that there is a reasonable

probability that, absent the deficiencies, the outcome of the trial might well have been

different. Indeed, the plethora and gravity of counsel’s deficiencies rendered the entire

proceeding fundamentally unfair.



        Upon review of the entire record, we conclude that the evidence preponderates

against the findings of the post-conviction court. Butler, 789 S.W.2d at 899. In

consideration of the prejudice caused the appellant by trial counsel’s failure to

adequately investigate his mental condition and the prejudice resulting from the

cumulative effect of counsel’s numerous constitutional deficiencies in both the

preparation and trial of this case, the judgment of the trial court denying post-conviction

relief for the offense of first degree murder is reversed.24 A new trial is granted due to

the glaring nature of counsel’s ineffectiveness throughout all phases of this trial.




                                         __________________________________________
                                         DAVID G. HAYES, Judge


CONCUR:



________________________________
JOHN H. PEAY, Judge


________________________________
JOE G. RILEY, Judge




        24
          Indeed, as observed by Justice Reid in his separate concurring/dissenting opinion in the
direct appeal, “this [was a] poorly tried case.” Sm ith, 893 S.W.2d at 928

                                               44
