         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                                 September 24, 2002 Session

                 THOMAS J. MCKEE v. STATE OF TENNESSEE

                       Appeal from the Criminal Court for Knox County
                        No. 69610 Richard R. Baumgartner, Judge



                                  No. E2002-00071-CCA-R3-PC
                                         March 13, 2003

The petitioner, Thomas J. McKee, appeals the Knox County Criminal Court’s denial of his petition
for post-conviction relief from his conviction for first degree premeditated murder and resulting life
sentence. He contends that he received the ineffective assistance of counsel because his trial attorney
failed (1) to request a mental evaluation for him; (2) to make a contemporaneous objection to the
state’s improper closing argument; and (3) to object to the inclusion of the phrase “moral certainty”
in the jury’s instruction on reasonable doubt. We affirm the trial court’s denial of the petition.

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

JOSEPH M. TIPTON, J., delivered the opinion of the court, in which DAVID H. WELLES and ALAN E.
GLENN, JJ., joined.

Kelly S. Johnson, Knoxville, Tennessee, for the appellant, Thomas J. McKee.

Paul G. Summers, Attorney General and Reporter; Angele M. Gregory, Assistant Attorney General;
Randall E. Nichols, District Attorney General; and G. Scott Green, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                             OPINION

        This case relates to the petitioner’s killing his estranged wife in 1994. A jury convicted the
petitioner, and this court affirmed the conviction. See State v. Thomas J. McKee, No. 03C01-9603-
CR-00092, Knox County (Tenn. Crim. App. Apr. 28, 1998), app. denied (Tenn. Dec. 28, 1998). On
appeal, this court stated the following facts:

                       According to Donnie Arden, a family friend of the McKee’s,
               the defendant’s wife was playing a “mind game” with her husband,
               repeatedly calling and telling him that she loved him, then calling
               back and telling him that she hated him. Arden heard some of these
               messages on the defendant’s answering machine.
....

        At about l0:30 a.m. on September 21, 1994, the defendant was
at work when he received a message on his beeper. He left work and
went to the nearest phone, returning twenty to thirty minutes later.
He told co-workers that he had talked to his estranged wife on the
phone, that he was going to meet with her, and that there was a
chance they might reconcile. He picked up his carpenter’s tools, put
them in his car, and left work, saying that he would meet with her
even if it cost him his job.

       September 21st was the couple’s wedding anniversary. Motel
records revealed that on that day the defendant, accompanied by
another person, rented and occupied a room at the Clark Motel in
north Knoxville.

        At 2:12 p.m. that day, Knox County Sheriff’s deputies were
called to Brushy Valley Road, a country road next to a field bordered
by a barbed-wire fence, where the victim was found lying dead. She
had sustained multiple blows to her head and numerous scratches that
appeared to have been caused by the barbed wire.

        A witness had seen a red sporty car speeding away from the
area shortly before the body was found. There is no evidence that the
killing occurred in the car or in the motel.

         At 2:30 p.m. that afternoon, while investigators were still at
the crime scene, Arden saw and talked with the defendant at his
father’s home. The defendant, who had a beard, was shaving. The
defendant said “he had [f*****] up, [f*****] up big time.” When
Arden asked him to explain, the defendant said he had killed Marilyn.
When Arden asked if he was sure she was dead, the defendant said
“yes, she ought to be.” Arden testified that the defendant said his
wife had called him that morning and they had agreed to meet. The
defendant also said they had gone to a motel and made love. Later
that afternoon, the defendant had asked his wife to move back in with
him and she had refused. The defendant said she told him that she
was living with another man and “that’s when it [the killing]
happened.” Arden testified that the defendant said the victim had told
him she loved him as they drove to the motel.

        The defendant had asked Arden to take the license plate off
his red Camaro and hide the car, which Arden did. But when the


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                 defendant asked Arden to provide him with an alibi for the time of the
                 killing, Arden refused and told him to turn himself in. The defendant
                 answered that he needed to talk to a lawyer.

                        The defendant’s red Camaro was found where Arden had put
                 it. An unsigned anniversary card, which read “For My Wonderful
                 Wife . . .,”was found inside the car, and the defendant’s carpentry
                 tools were found in the back seat. . . .

Id., slip op. at 3.

        At the evidentiary hearing, the petitioner testified that at the time of his trial, he was twenty-
seven years old and had no experience with jury trials. He said that he trusted his attorney and that
they got along well. He said his attorney told him first degree murder required premeditation and
deliberation but did not explain the importance of his state of mind at the time of the killing. He said
that he and his attorney talked about getting a psychological evaluation for him but that his attorney
was afraid the state would use any damaging information revealed in the evaluation against him at
trial. He said that he thought his attorney knew best and that he left the decision about a
psychological evaluation to his attorney. He said that about a month before the evidentiary hearing,
he received a psychological evaluation from Dr. Peter Young.

        On cross-examination, the petitioner testified that before Dr. Young, he had never met with
a psychologist or a psychiatrist. He said that his attorney should have requested a psychological
evaluation for him in order to determine what his state of mind was at the time of the killing. He
said that he was not thinking when he killed his wife and that he “just snapped.” He said he was
scared when he talked to Donnie Arden after the killing because he knew he had made a mistake.
He acknowledged that his actions after he killed his wife showed that he was thinking and planning
after the crime. He acknowledged that he appears normal and that nothing would indicate to a
person that he needs a psychological evaluation. He also acknowledged that his attorney “put his
heart” into arguing the petitioner’s case and that the Public Defender sat at the defense table at trial
and assisted his attorney.

        Psychologist Peter Young testified that he met with the petitioner about one month before
the evidentiary hearing. He said that based on his interview with the petitioner, his review of the
petitioner’s trial transcript, and his review of the appellate decision filed by the Court of Criminal
Appeals, he completed a neuropsychological evaluation of the petitioner. He said the petitioner had
average intelligence but appeared to have some weaknesses in language and in apprehending social
cues. He said that the petitioner also appeared to have weaknesses in the right frontal hemisphere
of his brain and that such weaknesses could result in a person having problems regulating his or her
behavior. He said that in his report, he stated that the petitioner had a strong tendency to act
impulsively and had trouble planning ahead. He said that the petitioner had numerous emotional
difficulties and that he did not believe the petitioner premeditated killing the victim. He said that
although he met with the petitioner seven years after the petitioner’s trial, the results of his


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evaluation would have been similar to results from a 1995 evaluation because “who we are stays
relatively stable over time.”

         On cross-examination, Dr. Young testified that he had completed about two thousand
neuropsychological evaluations and that he spent about fifteen hours with the petitioner. He
acknowledged that the petitioner had no outward manifestations that would indicate the petitioner
had mental problems. He said that the petitioner was depressed, anxious, and may have a personality
disorder. He said that although the petitioner told the victim several months before the crime that
he was going to kill her, such statements were not indicative of the petitioner’s intent at the time of
the killing because the petitioner may have made the statements impulsively. He said the fact that
the petitioner went to a motel with the victim and had sex with her indicated that the petitioner had
not planned to kill the victim at that point. He acknowledged that the petitioner’s actions after the
killing showed that the petitioner was able to think and plan.

         Attorney Brandt Davis testified that he practiced criminal law in Knox County. He said he
had reviewed the motions filed in the petitioner’s case, the appellate record, the opinion filed by the
Court of Criminal Appeals, and Dr. Peter Young’s report. He said that in a first degree murder case,
he would consider an attorney’s failure to seek a psychological evaluation for a defendant to be
ineffective assistance of counsel. He said that since 1995, he had handled about thirteen first degree
murder cases and that he had always requested psychological evaluations for the defendants. He said
that if the sole issue in a case is the defendant’s state of mind at the time of the killing, then an
attorney should get a mental evaluation for the defendant. He said that in the petitioner’s case, he
would not have hesitated to ask the trial court for an evaluation because the facts did not indicate the
petitioner premeditated the killing. He said that the petitioner’s attorney could have filed a sealed,
ex parte motion requesting the evaluation. He said that if the psychological evaluation revealed
damaging information about the petitioner, then the defense did not have to use the evaluation at
trial.

        On cross-examination, Mr. Davis acknowledged that the petitioner’s attorney took steps to
ensure that the trial court properly instructed the jury that it could not consider the petitioner’s
actions after the crime as evidence of premeditation. He also acknowledged that he did not think the
prosecutor’s improper statements during closing argument affected the jury’s verdict. He said that
he would have sought a psychological evaluation for the petitioner because such an evaluation was
the only way to show that the petitioner did not premeditate or deliberate killing the victim. He
acknowledged that the petitioner’s attorney was a good lawyer.

        The petitioner’s trial attorney testified that at the time of the hearing, he had been an attorney
with the Public Defender’s Office for eleven years and had tried many criminal cases. He said that
he spent about fifteen hours with the petitioner before trial and that they talked about the petitioner’s
social history and the facts of the case. He said that the petitioner acknowledged killing the victim
and was remorseful. He said that he and the petitioner decided to mitigate the level of the offense
rather than avoid responsibility for the crime. He said that he and the petitioner talked about getting
a mental evaluation for the petitioner and that he told the petitioner the report could reveal damaging


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evidence for the defense. He said, though, that he knew he did not have to use the evaluation at trial.
He said that even if he had tried to get an evaluation for the petitioner, he would have had trouble
showing a particularized need for it because the petitioner never indicated he had a mental disease
or infirmity and because the petitioner appeared to have average intelligence. He said that the
petitioner had two prior convictions for assaulting the victim and that he was able to keep the jury
from hearing about those convictions.

        On cross-examination, the petitioner’s trial attorney acknowledged that he had no formal
training in psychiatry, and he said that he had never tried a first degree murder case before the
petitioner’s case. He acknowledged that the main issue at trial was the petitioner’s state of mind at
the time of the killing, and he said he believed that the petitioner was guilty only of second degree
murder. He said that he was afraid a psychological evaluation would reveal facts about the
petitioner’s prior acts of violence and verbal threats against the victim. He said that although the
petitioner did not receive a mental evaluation, the defense presented evidence about the petitioner’s
state of mind through Donnie Arden, who testified that the victim played mind games with the
petitioner and that the petitioner killed the victim when the victim told the petitioner she was living
with another man. He said that evidence about the petitioner signing his name and putting his
license tag on the hotel registry also showed that the petitioner did not plan to kill the victim. He
said that during closing arguments, the prosecutor told the jury that it could consider the petitioner’s
concealment of the crime as evidence that the petitioner premeditated and deliberated killing the
victim. He said that although he knew that was not the law in Tennessee, he did not make a
contemporaneous objection. He said, though, that he objected at the end of the state’s closing
argument and that the trial court later instructed the jury that it could not consider concealment of
evidence as proof of premeditation.

        The trial court denied the petition for post-conviction relief. The trial court stated that it did
not understand why the petitioner’s trial attorney did not request a mental evaluation for the
petitioner. However, it also stated that it was not convinced it would have granted such a request.
In addition, the trial court determined that Peter Young’s psychological evaluation was of “marginal
benefit” to the petitioner because Dr. Young’s “major diagnosis of Mr. McKee is that he suffers from
depression.” The trial court noted that while Dr. Young believed the petitioner had some mental
deficiencies, Dr. Young also believed that the deficiencies were not pronounced and that the
petitioner had average intelligence. Finally, the trial court determined that the defense would have
made a tactical decision not to use the evaluation at trial because the defense did not want to open
the door to the petitioner’s prior threats and violent acts against the victim. The trial court noted that
the defense presented evidence about the victim’s playing mind games with the petitioner and ruled
that the petitioner’s attorney was not ineffective for failing to request a mental evaluation. As to the
petitioner’s argument that his attorney was ineffective for failing to object to the prosecutor
improperly arguing during closing statements that evidence of the petitioner’s concealing the crime
showed premeditation, the trial court stated that it instructed the jury that evidence of concealment
proved nothing about the petitioner’s state of mind at the time of the killing. Therefore, it
determined that the petitioner could not demonstrate that he was prejudiced by his attorney’s failure
to make a contemporaneous objection. Finally, as to the petitioner’s claim that the trial court


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improperly instructed the jury on “moral certainty” in the reasonable doubt instruction, the trial court
held that its reasonable doubt instruction was proper.

        Under the Sixth Amendment, when a claim of ineffective assistance of counsel is made, the
burden is on the petitioner to show (1) that counsel’s performance was deficient and (2) that the
deficiency was prejudicial in terms of rendering a reasonable probability that the result of the trial
was unreliable or the proceedings fundamentally unfair. Strickland v. Washington, 466 U.S. 668,
687, 104 S. Ct. 2052, 2064 (1984); see Lockhart v. Fretwell, 506 U.S. 364, 368-72, 113 S. Ct. 838,
842-44 (1993). The Strickland standard has been applied to the right to counsel under article I,
section 9 of the Tennessee Constitution. State v. Melson, 772 S.W.2d 417, 419 n.2 (Tenn. 1989).

        In Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975), our supreme court decided that
attorneys should be held to the general standard of whether the services rendered were within the
range of competence demanded of attorneys in criminal cases. Further, the court stated that the range
of competence was to be measured by the duties and criteria set forth in Beasley v. United States,
491 F.2d 687, 696 (6th Cir. 1974), and United States v. DeCoster, 487 F.2d 1197, 1202-04 (D.C. Cir.
1973). Also, in reviewing counsel’s conduct, a “fair assessment of attorney performance requires
that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the
circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s
perspective at the time.” Strickland, 466 U.S. at 689, 104 S. Ct. at 2065; see Hellard v. State, 629
S.W.2d 4, 9 (Tenn. 1982). Thus, the fact that a particular strategy or tactic failed or even hurt the
defense does not, alone, support a claim of ineffective assistance. Deference is made to trial strategy
or tactical choices if they are informed ones based upon adequate preparation. See Hellard, 629
S.W.2d at 9; DeCoster, 487 F.2d at 1201.

         In a post-conviction case, the burden is on the petitioner to prove by clear and convincing
evidence his grounds for relief. Tenn. Code Ann. § 40-30-210(f). On appeal, we are bound by the
trial court’s findings of fact unless we conclude that the evidence in the record preponderates against
those findings. Fields v. State, 40 S.W.3d 450, 456 (Tenn. 2001). Because they relate to mixed
questions of law and fact, we review the trial court’s conclusions as to whether counsel’s
performance was deficient and whether that deficiency was prejudicial under a de novo standard with
no presumption of correctness. Id. at 457.

                                   I. MENTAL EVALUATION

         The petitioner claims that he received the ineffective assistance of counsel because his trial
attorney failed to request a mental evaluation for him. He argues that an evaluation was necessary
in this case because the main issue at trial was his state of mind at the time of the killing. He
contends that his attorney should have recognized the need for an evaluation when he admitted
killing the victim. In addition, he contends that his attorney’s fear that the evaluation would reveal
damaging information for the defense was no excuse for failing to request an evaluation because the
defense was not obligated to use the evaluation at trial. The state claims that the attorney’s failure
to request a mental evaluation was a well-considered tactical decision that should not be second


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guessed by this court. Moreover, the state claims that the attorney was not deficient for failing to
request an evaluation because the petitioner did not indicate that he had any mental illness or
deficiency. We conclude that the petitioner is not entitled to relief.

        Initially, we note that we are not in a position to say that an attorney should request a mental
evaluation for a defendant in every first degree murder case. That said, we cannot conclude that the
petitioner’s attorney rendered deficient performance by failing to request an evaluation. The
petitioner’s attorney testified that he spent about fifteen hours with the petitioner and that he saw no
indications the petitioner had a mental disease or infirmity. He also said that the petitioner had
average intelligence and that he thought he would have trouble showing a particularized need for a
mental evaluation. In denying post-conviction relief, the trial court stated that even if the attorney
had requested an evaluation, it was unconvinced that it would have granted the request. Therefore,
given the facts and circumstances of this case, the petitioner has failed to demonstrate that his
attorney rendered deficient performance.

       We also believe that the petitioner has failed to demonstrate that he was prejudiced by his
attorney’s failing to request an evaluation. In State v. Hall, 958 S.W.2d 679 (Tenn. 1997), our
supreme court held that an expert’s testimony regarding a defendant’s psychological condition may
be admissible if it tends to prove or disprove that the defendant did not have the capacity to form the
required mental state. However, in order to be admissible, “the psychiatric testimony must
demonstrate that the defendant’s inability to form the requisite culpable mental state was the product
of a mental disease or defect, not just a particular emotional state or mental condition.” Id. at 690.

         Dr. Young never testified or stated in his report that the petitioner had a mental disease or
defect that made him unable to premeditate or deliberate killing the victim. Instead, he testified that
the petitioner suffers from depression, tends to act impulsively, has emotional difficulties, and may
have a personality disorder. Moreover, in his report, Dr. Young stated that the petitioner’s
“difficulties in regulating his emotions, in anticipating future events, and, in general, in coping with
the complexities of life are much more consistent with his acting impulsively in and around the
murder than with he having planned and then carried out the murder of his wife.” As explained by
the supreme court, “[Expert] opinion testimony about the typical reactions of certain personality
types is not relevant to the capacity of the particular defendant on trial.” Id. at 691. Therefore, in
light of Hall, even if the petitioner’s trial attorney had requested an evaluation and the trial court had
granted the request, we cannot conclude that the results of the evaluation would have been
admissible. The petitioner has failed to show that he received the ineffective assistance of counsel.

                                    II. CLOSING ARGUMENT

       Next, the petitioner claims that he received the ineffective assistance of counsel because his
attorney failed to make a contemporaneous objection when the prosecutor argued during closing
statements that the jury could consider the petitioner’s concealing the crime as evidence of
premeditation. In support of his claim, he cites the opinion in his direct appeal in which this court
determined that although the prosecutor’s argument was improper, the attorney’s failure to make a


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contemporaneous objection waived the issue. The state concedes that the prosecutor’s statements
were improper. However, it contends that the petitioner cannot demonstrate prejudice because the
trial court properly instructed the jury not to consider the petitioner’s actions after the killing as proof
of his state of mind at the time of the crime. We agree with the state.

         We observe that the petitioner has not made the trial transcript containing the parties’ closing
arguments or the jury instructions part of the post-conviction record. However, we may take judicial
notice of the record in the appeal of the petitioner’s conviction. See State ex rel. Wilkerson v.
Bomar, 213 Tenn. 499, 505, 376 S.W.2d 451, 453 (1964). The record reveals that during the state’s
closing argument, the prosecutor told the jury that the petitioner’s fleeing the scene of the crime,
disposing of the murder weapon, shaving his beard, and asking Donnie Arden to provide him with
an alibi were proof of premeditation. After the state finished its closing argument, the defense asked
the trial court to instruct the jury that it could not consider the petitioner’s actions after the crime as
proof of premeditation. During the jury instructions, the trial court stated the following:

                       The concealment of evidence may itself be evidence of guilt.
                The concealment of evidence, however, may be associated with the
                commission of the crime and the accompanying fear of punishment.
                One who kills another in a passionate rage may dispose of the weapon
                when reason returns just as readily as the cool dispassionate killer.
                The fact that evidence is subsequently hidden from the police reveals
                nothing about a criminal’s state of mind before the crime.

         We question whether the attorney’s failure to make a contemporaneous objection resulted
in his rendering deficient performance. In any event, we agree with the trial court that the petitioner
has failed to demonstrate prejudice. The trial court instructed the jury that it could not consider the
petitioner’s post-crime actions as evidence of premeditation. Moreover, in the petitioner’s direct
appeal, this court stated that “the failure of the defendant to enter a contemporaneous objection to
the argument and the instruction of the trial court on the law . . . diffused any taint created by such
argument.” Thomas J. McKee, slip op. at 6.

                          III. REASONABLE DOUBT INSTRUCTION

         Finally, the petitioner claims that he received the ineffective assistance of counsel because
his trial attorney failed to object when the trial court gave the following instruction to the jury:

                         Reasonable doubt is that doubt engendered by an investigation
                of all the proof in the case and an inability, after such investigation,
                to let the mind rest easily as to the certainty of guilt. Reasonable
                doubt does not mean a captious, possible or imaginary doubt.
                Absolute certainty of guilt is not demanded by the law to convict of
                any criminal charge, but moral certainty is required, and this certainty



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               is required as to every proposition of proof requisite to constitute the
               offense.

He contends that his attorney should have objected to the use of the term “moral certainty” because
it allowed the jury to convict him based on a lower standard of proof than is constitutionally
required. However, the courts of this state have repeatedly upheld the use of the phrase “moral
certainty” in the context of the reasonable doubt jury instruction given at the petitioner’s trial. See
Nichols v. State, 877 S.W.2d 722, 734 (Tenn. 1994); State v. Sexton, 917 S.W.2d 263, 266 (Tenn.
Crim. App. 1995); Pettyjohn v. State, 885 S.W.2d 364, 366 (Tenn. Crim. App. 1994); see also
Austin v. Bell, 126 F.3d 843, 846-47 (6th Cir. 1997). Thus, the petitioner’s attorney was not
deficient for failing to object to the instruction, and the petitioner is not entitled to relief.

        Based on the foregoing and the record as a whole, we affirm the trial court’s denial of the
petition for post-conviction relief.



                                                       ___________________________________
                                                       JOSEPH M. TIPTON, JUDGE




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