        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                               September 27, 2011 Session

               FRED ALLEN OWENS v. STATE OF TENNESSEE

                   Appeal from the Criminal Court for Knox County
                   No. 81653    Jon Kerry Blackwood, Senior Judge


                 No. E2011-01190-CCA-R3-PC - Filed March 12, 2012


The Petitioner, Fred Allen Owens, appeals as of right from the Knox County Criminal
Court’s denial of his petition for post-conviction relief. The Petitioner contends that he
received ineffective assistance of trial counsel because counsel failed to investigate and
present a mental health defense. Following our review, we affirm the judgment of the post-
conviction court.

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

D. K ELLY T HOMAS, J R., J., delivered the opinion of the court, in which N ORMA M CG EE O GLE
and C AMILLE R. M CM ULLEN, JJ., joined.

Robert L. Vogel, Knoxville, Tennessee, for the appellant, Fred Allen Owens.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney
General; Randall Eugene Nichols, District Attorney General; Ta Kisha M. Fitzgerald,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                         OPINION

                               FACTUAL BACKGROUND

                                    I. Evidence at Trial

        On August 26, 2001, Melissa Bell discovered the body of Gene Fleenor on the floor
of his living room. State v. Fred Allen Owens, No. E2003-02003-CCA-R3-CD, 2004 WL
1159546, at *1 (Tenn. Crim. App. May 25, 2004), perm. app. denied, (Tenn. Nov. 8, 2004).
Ms. Bell went to the victim’s house after receiving a concerning phone call from her sister,
Melinda Reilly.1 During their conversation, Ms. Bell overheard the Petitioner tell Ms. Reilly
to “hang up the phone” because Ms. Bell was “going to call the police” and “turn them in.”
Id. Ms. Bell tried calling the victim’s house and got no answer. Ms. Bell called Ms. Reilly
back and informed her that she was going to the victim’s house. Ms. Reilly began crying and
begged Ms. Bell not to “go over there.” Ms. Bell again heard the Petitioner in the
background telling Ms. Reilly to hang up the phone because he feared that Ms. Bell would
turn them in to the police. Ms. Bell then went to the victim’s house where she discovered
his body and called 911.

       In the victim’s driveway, police discovered “a reddish stain” and markings “that were
consistent with someone who was bloody being drug.” Owens, 2004 WL 1159546, at *2.
Subsequent tests revealed that the stain was the victim’s blood. Id. at *3. There was no
blood found in the victim’s living room or any signs of a struggle. Id. at *2. The police also
believed that the victim had been dragged into the residence “because his shirt was pulled
up and his pants were down around his hips.” A search of the Petitioner’s home uncovered
the victim’s wallet and glasses, as well as a sheet, tissues, and a pair of jeans with the
victim’s blood on them. Id. at *2-3. There was also a telephone found in the living room
that had the victim’s blood on it. Id. at *2-3. Police also found a fingerprint belonging to
the victim on the telephone. Id. at *2.

        On August 27, 2001, Ms. Bell received another phone call from Ms. Reilly. Owens,
2004 WL 1159546, at *1. Ms. Bell heard the Petitioner in the background telling Ms. Reilly
to hang up the phone because it was “tapped.” Ms. Bell provided Detective Tom Cox with
the phone number Ms. Reilly had called her from, and Detective Cox was able to trace the
number to the Johnson City area. Id. at *2. Detective Cox traveled to Johnson City and was
able to apprehend the Petitioner and Ms. Reilly. The shoes both the Petitioner and Ms. Reilly
were wearing when they were arrested were found to have the victim’s blood on them. Id.
at *2-3. Detective Cox also seized the Petitioner’s car in Johnson City and drove it back to
Knoxville. Id. at *2. During the drive, Detective Cox’s “trousers got soaked with what
appeared to be blood mixed with a clear liquid.” Id. (quotation marks omitted). Police
subsequently found the victim’s blood on the driver’s seat, the passenger door, and the
passenger door handle of the Petitioner’s car. Id. at *3.

       The police videotaped their interview with the Petitioner, and the videotape was
played for the jury at trial. Owens, 2004 WL 1159546, at *3. The Petitioner told the police
that he had picked the victim up on the afternoon of Saturday, August 25, and that he had
taken the victim to the liquor store. After going to the liquor store, the Petitioner and the
victim returned to the Petitioner’s home where they proceeded to drink with Ms. Reilly.

1
    Ms. Reilly was the Petitioner’s girlfriend at the time and his co-defendant in this case.

                                                        -2-
According to the Petitioner, the victim began arguing with Ms. Reilly and using “a nasty
mouth.” During the argument, the victim stated that he had previously “molested” Ms. Reilly
and called her a “bitch” and a “whore.” According to the Petitioner, Ms. Reilly “smacked”
the victim in the face. The Petitioner told the police that the victim then got up and tripped
over the coffee table. The Petitioner said that he told the victim to sleep in the floor and
leave Ms. Reilly alone, but the victim continued to harass her. According to the Petitioner,
“Ms. Reilly then picked up a skillet from a box and struck the victim in the back of the head
with it.” The Petitioner claimed that Ms. Reilly “then placed a pillow under the victim’s
head, to which the victim said, ‘thank you,’ and then began snoring.” The Petitioner stated
that Ms. Reilly “also struck the victim in the face with her fist.” The Petitioner admitted that
he “struck the victim in the back of the head twice with his open hand” because the victim
had insulted his mother. The Petitioner told the police that he and Ms. Reilly “took the
victim back to his home that evening and carried him in because he was drunk,” but the
Petitioner denied knowing that the victim was dead. The Petitioner claimed that he and Ms.
Reilly “went to Johnson City to visit someone in the hospital.”

        Ms. Bell described the victim as “a little-bitty tiny man” and testified that he “drank
a lot and was in poor health.” Owens, 2004 WL 1159546, at *1. The medical examiner, Dr.
Sandra Elkins, testified the victim was suffering from several medical conditions at the time
of his death, including “severe heart disease; emphysema; cirrhosis of the liver; chronic
pancreatitis; changes in the kidney suggestive of high blood pressure; an enlarged prostate;
and cerebral atrophy, or shrinkage of the brain.” Id. at *4. Dr. Elkins opined that several of
these conditions were “consistent with chronic alcohol abuse” and that the victim had a blood
alcohol level of .23 percent at the time of his death. Dr. Elkins testified that the victim
suffered multiple injuries to the left side of his head and neck and “exhibited external
markings of strangulation.” However, there were no injuries to the back of the victim’s head.
Dr. Elkins opined that the victim died from either strangulation, “a large subdural hematoma
caused by blunt force head injuries to the left side of the victim’s head,” or a combination of
the two causes. Dr. Elkins testified that the victim’s brain atrophy “made him more prone
to a subdural hematoma . . . from head trauma.” Dr. Elkins concluded that “[t]he front of the
victim’s face and the left side of his head were where the trauma was focused.” Dr. Elkins
opined that the victim suffered at least three blows to the head and that the trauma could have
been produced by kicking or stomping on the victim’s head. Dr. Elkins also testified that the
injuries to the victim’s neck were consistent with “manual strangulation involving a sustained
compressing force to both sides of the neck.” Id. (quotation marks omitted). Dr. Elkins
opined that the victim was already dead when he was placed in his living room. Dr. Elkins
testified that she did not think the victim had been struck by a heavy blunt object swung with
force because there was no evidence of skull fractures on the victim.




                                              -3-
        At trial, the Petitioner presented the deposition testimony of his 87-year-old aunt and
neighbor, Ola Rudder. Owens, 2004 WL 1159546, at *5. Ms. Rudder testified that the
Petitioner “drinks heavy” and “would fight” when he was drunk. Ms. Rudder also testified
that the victim and the Petitioner were “friends” and that she was unaware of any problems
between the two. On August 25, 2001, Ms. Rudder saw the victim and Ms. Reilly at the
Petitioner’s house. Ms. Rudder testified that all three were drinking and that the Petitioner
and Ms. Reilly were “pretty drunk.” At one point, Ms. Rudder overheard the Petitioner and
Ms. Reilly “arguing because Ms. Reilly had said that she wanted to have sex with the
victim.” Ms. Rudder also recalled “seeing skillets on a table” in the Petitioner’s living room.
Ms. Rudder testified that she returned home and went to bed around 7:30 p.m. that night and
“did not hear any fighting or anything coming from the [Petitioner’s] house that night.” Ms.
Rudder also testified that after the Petitioner’s arrest, he told her that the victim was alive
when they dropped him off and that he and Ms. Reilly did not kill the victim. Id. at *6. Ms.
Rudder further testified that she received a letter from Ms. Reilly which stated that she and
the Petitioner did not kill the victim.

         Zoe Ammons, another of the Petitioner’s neighbors, testified on the Petitioner’s behalf
at trial. Owens, 2004 WL 1159546, at *6. Ms. Ammons testified that on August 25, 2001,
she saw the victim and Ms. Reilly at the Petitioner’s house and that all three were “under the
influence of alcohol . . . quite a great bit.” Id. (ellipsis in original). Ms. Ammons also
recalled overhearing the Petitioner and Ms. Reilly arguing about the victim. Karen Carpenter
also testified on the Petitioner’s behalf. Ms. Carpenter testified that she cleaned the victim’s
home for him and that the victim “drank a lot, was very weak, and had fallen on occasion in
his home.” Ms. Carpenter also testified that on one occasion she saw the victim fall and hit
his head.

       The Petitioner was charged with premeditated first degree murder in the death of the
victim. Owens, 2004 WL 1159546, at *6. Based upon the foregoing evidence, the jury
convicted the Petitioner of the lesser-included offense of second degree murder. The trial
court sentenced the Petitioner as a Range II, multiple offender to a 35-year sentence. Id. at
*1. On appeal, this court affirmed the Petitioner’s conviction. Id. at *11.

                               II. Post-Conviction Proceedings

      On April 7, 2005, the Petitioner filed a timely pro se petition for post-conviction relief.
Counsel was appointed and an amended petition was filed on January 19, 2007. The post-
conviction court held a hearing in this matter on April 22, 2010 and August 18, 2010, with
Judge Richard R. Baumgartner presiding. On February 22, 2011, the post-conviction court




                                               -4-
entered an order denying post-conviction relief.2 The Petitioner filed a timely notice of
appeal on March 10, 2011.

       At the hearing, Dr. Peter Young, a psychologist practicing in Knox County, testified
and presented the post-conviction court with a letter detailing his findings. Based upon his
review of the Petitioner’s medical records from 1995 to 1998, Dr. Young opined that the
Petitioner suffered from substance abuse, major depression, and “considerable anxiety.” Dr.
Young testified that given the Petitioner’s chronic alcohol abuse, it was “plausible to imagine
that he may have [had] cognitive impairments” and “reasonable to suspect some type of
dementia.” However, Dr. Young testified that a neuropsychological evaluation needed to be
performed on the Petitioner in order to determine if he actually suffered from any cognitive
impairments. Dr. Young concluded that it “would seem pretty obvious” that the Petitioner
should have had a mental evaluation prior to trial given the Petitioner’s medical history. Dr.
Young testified that he had recently learned that the Petitioner received Social Security
benefits as a result of a mental illness and that “would have made it even more clear that
there [was] good reason that he should [have been] evaluated.”

        On cross-examination, Dr. Young admitted that he had never evaluated the Petitioner
and that he could not conclude that at the time of the offense the Petitioner suffered from a
mental disease or defect. Dr. Young also admitted that because he did not “have enough
information,” there was “no way for [him] to know” if, at the time of the offense, the
Petitioner “did not know right from wrong” or lacked the capacity to form intent. Dr. Young
testified that he was only offering an opinion “as to whether or not there was a reasonable
amount of information to suggest that an investigation, evaluation by a medical person was
warranted.”

        The Petitioner testified that he felt that trial counsel had been ineffective because of
“just a whole lot of things.” The Petitioner claimed that trial counsel met with him only five
times to discuss his case. The Petitioner complained that the meetings were “very short[]”
and testified that, “I have no proof saying this, but [trial counsel] is drinking each time he
come see me. I mean, I could tell it ‘cause I’m a drunkard.” The Petitioner believed trial
counsel was intoxicated because he would “come late at night” and because “[h]e call me on
the cell, and he’d--the way he’d repeat his self and slur and stuff.” However, the Petitioner
testified that he never detected the smell of alcohol on trial counsel’s breath. The Petitioner


2
 The matter was taken under advisement while the transcript of the proceedings was to be prepared with the
post-conviction court set to announce its judgment in February 2011. Prior to that date, Judge Baumgartner
took an indefinite medical leave and ultimately retired. Senior Judge Jon Kerry Blackwood, sitting by
designation, reviewed the record and transcript in this matter, as well as the record of the Petitioner’s original
trial, before entering his order denying post-conviction relief.

                                                       -5-
also complained that trial counsel did not inform him “that if I went to trial and found [was]
guilty, that they would enhance my time and give me a whole lot of time.” The Petitioner
asserted that he would have accepted the State’s offer of a 15-year sentence had he known
about the sentencing enhancement. The Petitioner also complained about several evidentiary
issues that he claimed trial counsel failed to properly object to.

        The Petitioner testified that he informed trial counsel that he had previously been
treated at Peninsula Hospital, Overlook Mental Health Center, and Blount Memorial Hospital
and “was under in treatment and out.” The Petitioner complained that he told trial counsel
that “he needed to talk to them people and try to get me evaluated or something.” The
Petitioner also testified that trial counsel was aware that he “had been drawing mental
disability for about [8] years” and that he “made [trial counsel] power of attorney so he could
cash” the Social Security checks while the Petitioner was in jail. The Petitioner testified that
a “state psychiatrist” found him to be disabled due to his mental condition. The Petitioner
testified that trial counsel never attempted to obtain his medical records, show that he was
not competent to stand trial, or prove that he had a mental defect. When he asked trial
counsel about his medical records, the Petitioner alleged that trial counsel told him “it won’t
help you” and said that “he wasn’t worried about that.” On cross-examination, the Petitioner
testified that he had been committed to the psychiatric ward at Peninsula Hospital “on several
occasions in . . . the [‘90s].”

        On cross-examination, the Petitioner recounted what he told the police. The Petitioner
testified that the victim “started calling [the Petitioner’s mother] bad names and it made me
mad and I told [the] detective I smacked him two times on the side of the head.” The
Petitioner further explained that he “just blew up and walked over there and smacked . . . him
in the side of the head a couple of times.” When asked if he knew what he was doing when
he smacked the victim in the head, the Petitioner responded “Yes, I wanted him to shut up
and quit talking about my mother.” The Petitioner testified that he did not intend to hurt or
kill the victim. However, the Petitioner admitted that, at the time, he knew he “wasn’t
supposed to be hitting people” and that “hitting people” was a crime called assault.

        Trial counsel testified that he originally began practicing law in Florida in 1960 and
that he had been licensed in Tennessee since 1985. Trial counsel testified that at the time of
the Petitioner’s trial, he was an experienced trial attorney and had tried several murder and
capital cases. According to trial counsel’s records, he met with the Petitioner at least 35
times prior to trial. Trial counsel estimated that he met with the Petitioner “in excess of 40
hours prior to trial.” Trial counsel explained that his “overall” trial strategy “was to minimize
[the Petitioner’s] participation in what happened.” Trial counsel testified that he felt the best
way to do this was to allow the Petitioner’s statement to be admitted so the Petitioner could
give his version of events without having to testify. Trial counsel believed that the Petitioner

                                               -6-
“would not have been a very good witness” and was afraid that the Petitioner’s prior
convictions for armed robbery, assault and battery, and vehicular homicide would be
admissible on cross-examination if the Petitioner testified. Trial counsel testified that he
believed he provided the Petitioner with effective assistance of counsel because the Petitioner
was convicted of the lesser-included offense of second degree murder and received a lesser
sentence than he would have had he been convicted of premeditated first degree murder.

       Trial counsel stated that the Petitioner told him that he “had problems with
depression.” Trial counsel also admitted that he deposited the Petitioner’s Social Security
checks for him and that the Petitioner had told him that he received the benefits because he
had “a diagnosis and a disability due to depression.” Trial counsel was also aware that the
Petitioner “had a chronic alcohol condition” and a substance abuse problem. However, trial
counsel did not seek to obtain the Petitioner’s Social Security records or any of his medical
records. Trial counsel also did not seek to have the Petitioner examined by a mental health
expert. Trial counsel testified that he did not recall if the Petitioner told him that in 1998 the
Petitioner had been committed to Peninsula Hospital “for depressed mood and suicidal
ideation.” Trial counsel also admitted that he was unaware that in January 2001, Dr. James
Radford had diagnosed the Petitioner as suffering from “major depression with psychotic
features.”

        Trial counsel explained that he did not investigate the Petitioner’s mental condition
because he “never . . . considered [the Petitioner] anything but lucid and able to
communicate, and [he] never saw anything in [the Petitioner’s] demeanor or in interacting
with him that indicated to [trial counsel] [that the Petitioner] had any psychological problems
of any significance.” Trial counsel also believed that he “checked it out enough to know that
all [the Petitioner] had was depression” and that he “didn’t think that that was of any
mitigating benefit whatsoever based on this charge and his conviction.” Trial counsel
testified that because his trial strategy was to argue that Ms. Reilly killed the victim, he did
not feel that addressing the Petitioner’s mental state “would have helped [his] case at all.”
Trial counsel also testified that “there was no telling what would” be exposed in addressing
the Petitioner’s mental condition and worried that it would expose the Petitioner’s criminal
history to the jury.

       In its order denying relief, the post-conviction court concluded that the Petitioner’s
claim that trial counsel was ineffective for failing to investigate his mental condition was
without merit. The post-conviction court accredited the testimony of trial counsel that the
Petitioner “did not display any behavior to indicate any defense based upon a mental
condition or lack of capacity.” The post-conviction court also stated that Dr. Young’s
testimony did “not even support his assertion” and that Dr. Young “merely suggested that an
evaluation might be helpful in determining [the] Petitioner’s capacity.” The post-conviction

                                               -7-
court concluded that Dr. Young’s testimony was “purely speculative.” The post-conviction
court also accredited trial counsel’s testimony that evidence of the Petitioner’s mental
condition would not have assisted or would have hindered the Petitioner’s trial strategy of
minimalizing his role in the crime. The post-conviction court denied the Petitioner relief on
this issue and all other issues raised in his pro se and amended petitions.

                                         ANALYSIS

      I. Trial Counsel’s Failure to Investigate and Present a Mental Health Defense

        The Petitioner contends that the post-conviction court erred in denying his petition for
post-conviction relief. Specifically, the Petitioner contends that he established that trial
counsel was ineffective for failing to investigate or present a mental health defense. The
Petitioner argues that trial counsel was aware that he “had been diagnosed and found disabled
because of his psychological illness.” The Petitioner argues that this should have put trial
counsel on notice to investigate further. The Petitioner also argues that trial counsel “had in
his hand significant evidence that could have mitigated [the Petitioner’s] actions” and that
trial counsel “had psychological evidence that [the Petitioner] had hallucinations, was
depressed with psychotic features, and was at the ‘low-average’ range of intellectual
functioning.” The State responds that the Petitioner failed to present any evidence at the
post-conviction hearing that he suffered from a mental illness at the time of the offense. The
State points out that Dr. Young was unable to form an opinion as to the Petitioner’s mental
condition at the time of the offense and that trial counsel testified that the Petitioner seemed
lucid and competent at all of their meetings. The State further responds that the Petitioner
has failed to establish that evidence of his mental health would have been admissible at trial.
The State concludes that the Petitioner has failed to show that trial counsel was ineffective
regarding this issue.

       The burden in a post-conviction proceeding is on the petitioner to prove his
allegations of fact supporting his grounds for relief by clear and convincing evidence. Tenn.
Code Ann. § 40-30-110(f); see Dellinger v. State, 279 S.W.3d 282, 293-94 (Tenn. 2009).
On appeal, we are bound by the post-conviction 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 post-conviction 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.

       Under the Sixth Amendment to the United States Constitution, when a claim of
ineffective assistance of counsel is made, the burden is on the petitioner to show (1) that

                                              -8-
counsel’s performance was deficient and (2) that the deficiency was prejudicial. Strickland
v. Washington, 466 U.S. 668, 687 (1984); see Lockhart v. Fretwell, 506 U.S. 364, 368-72
(1993). In other words, a showing that counsel’s performance falls below a reasonable
standard is not enough; rather, the petitioner must also show that but for the substandard
performance, “the result of the proceeding would have been different.” Strickland, 466 U.S.
at 694. 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).

        We begin by noting that the reasonableness of counsel’s actions must be assessed on
the facts of the particular case, viewed as of the time of counsel’s conduct. Strickland, 466
U.S. at 689. This court will not allow hindsight to color its analysis nor will we second-guess
reasonable professional judgments made by counsel. The Petitioner asserts that trial counsel
“had psychological evidence that [the Petitioner] had hallucinations, was depressed with
psychotic features, and was at the ‘low-average’ range of intellectual functioning” and that
trial counsel “had in his hand significant evidence that could have mitigated [the Petitioner’s]
actions.” Trial counsel testified that he knew at the time of trial that the Petitioner had a
history of chronic alcohol and substance abuse, that the Petitioner received Social Security
benefits for a mental disability caused by depression, and that the Petitioner was lucid and
able to communicate with trial counsel.

        To the extent that Petitioner complains that trial counsel failed to seek a competency
hearing, we note that evidence of a petitioner’s “past psychiatric problems does not
necessarily require counsel to ask for a competency hearing if the petitioner’s behavior does
not reflect incompetence at the time of trial or while his attorney is preparing for trial.”
Wilcoxson v. State, 22 S.W.3d 289, 310 (Tenn. Crim. App. 1999). Trial counsel testified
that the Petitioner was lucid and able to communicate with him. Trial counsel further
testified that the Petitioner’s behavior did not suggest that he “had any psychological
problems of any significance.” Accordingly, trial counsel was not ineffective for failing to
seek a competency hearing for the Petitioner.

       In the context of an ineffective assistance claim based upon counsel’s failure to
investigate, this court must determine whether counsel exercised a “reasonable professional
judgment.” Wiggins v. Smith, 539 U.S. 510, 522-23 (2003). Therefore, we must determine
“whether [a] reasonable professional judgment supported counsel’s decision to forego further
investigation of a mental state defense, including requesting a psychological or psychiatric
examination of the petitioner.” Wilcoxson, 22 S.W.3d at 316 (citing Strickland, 466 U.S. at
691). This court has previously held that:




                                              -9-
       Where counsel (1) makes some exploration of the mental history of the
       [petitioner] 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.

Id. at 315 (quoting Sylvester Smith v. State, No. 02C01-9801-CR-00018, 1998 WL 899362,
at *22 (Tenn. Crim. App. Dec. 28, 1998)).

       The post-conviction court accredited trial counsel’s testimony that the Petitioner “did
not display any behavior to indicate any defense based upon a mental condition or lack of
capacity.” The post-conviction court also accredited trial counsel’s testimony that he did not
investigate the Petitioner’s mental history because he felt a mental health defense would
conflict with his trial strategy. Trial counsel also worried that if a mental health defense was
pursued at trial the jury would be exposed to the Petitioner’s lengthy criminal record, which
included convictions for armed robbery, assault and battery, and vehicular homicide. This
was the same reason why trial counsel allowed the Petitioner’s videotaped interview to be
played to the jury instead of having the Petitioner testify. Accordingly, we agree with the
post-conviction court’s determination that trial counsel’s testimony at the hearing established
that he had “reasonable tactical reasons for not pursuing further investigation.”

        In addition to having “reasonable tactical reasons for not pursuing further
investigation” of a mental health defense, trial counsel was also able to raise another
plausible defense. Trial counsel testified that his defense strategy was to establish that Ms.
Reilly killed the victim and to minimize the Petitioner’s involvement in the crime. To that
end, trial counsel focused his defense upon the Petitioner’s statement that Ms. Reilly struck
the victim in the head with a skillet. Trial counsel’s defense was not only plausible but
somewhat successful because the Petitioner was convicted of the lesser-included offense of
second degree murder rather than the charged offense of premeditated first degree murder.
Therefore, we conclude that trial counsel’s decision to forego further investigation of a
possible mental health defense was supported by a reasonable professional judgment.

       This court has previously held that the “mere possibility of success based on a defense
for which there existed little or no evidentiary support is not enough to establish
constitutionally inadequate counsel.” Wilcoxson, 22 S.W.3d at 317 (quoting Long v. Krenke,
138 F.3d 1160, 1162 (7th Cir. 1998)). In order for a defendant to establish a viable mental
defect defense theory, the defendant must present “psychiatric evidence that [he] lacks the
capacity, because of mental disease or defect, to form the requisite culpable mental state to
commit the offense charged.” State v. Hall, 958 S.W.2d 679, 689 (Tenn. 1997). To that end,
this court has previously held that to successfully bring a claim for ineffective assistance of

                                              -10-
counsel due to a failure to present mental health defense, a petitioner must establish that he
suffered from a mental disease or defect at the time of the commission of the underlying
offense. See Scott M. Craig v. State, No. E2005-02359-CCA-R3-PC, 2006 WL 2161806,
at *6 (Tenn. Crim. App. Aug. 2, 2006), perm. app. denied, (Tenn. Nov. 13, 2006);
Christopher Duwan Robertson v. State, No. M2004-00556-CCA-R3-PC, 2005 WL 901132,
at *4 (Tenn. Crim. App. Apr. 19, 2005), perm. app. denied, (Tenn. Oct. 17, 2005).

        In the present matter, the Petitioner has offered no evidence that he lacked the capacity
to form the mens rea for second degree murder at the time of the offense. Dr. Young testified
that he had never examined the Petitioner and that he could not determine if the Petitioner
suffered from a mental disease or defect at the time of the murder.3 Dr. Young specifically
testified that he could not determine the Petitioner’s mental state based upon the medical
records he had reviewed. We agree with the post-conviction court’s conclusion that Dr.
Young’s testimony was “purely speculative” and did “not even support his assertion.” While
there was a diagnosis by Dr. Radford that the Petitioner suffered from “major depression with
psychotic features,” that diagnosis was made eight months prior to the murder. The majority
of the Petitioner’s medical records were dated several years prior to the murder.
Furthermore, the Petitioner himself testified at the post-conviction hearing that he knew what
he was doing when he struck the victim and that he knew what he did was wrong and a
crime. Because the Petitioner failed to establish that he was suffering from a mental disease
or defect at the time of the offense, we conclude that trial counsel was not ineffective for
failing to further investigate the Petitioner’s mental condition.

                                II. Other Issues Raised in the Petition

        The Petitioner raised several other issues in his pro se and amended petitions for post-
conviction relief. The Petitioner’s amended petition claimed that essentially every aspect of
trial counsel’s representation amounted to ineffective assistance of counsel. “Review
generally will extend only to those issues presented for review.” Tenn. R. App. P. 13(b). We
conclude that all issues not raised in the Petitioner’s brief have been waived. See Tenn. R.
App. P. 13(b), Advisory Comm’n Cmts. (providing that “review will typically extend only
to the issues set forth in the briefs” and that this court’s discretion to review issues not raised
in the briefs is to “be sparingly exercised”).



3
 The Petitioner argues that he should not be faulted for failing to present a “more extensive medical review”
because there is no funding provided for an indigent petitioner to secure a mental health expert for post-
conviction proceedings. However, after “careful consideration of the cases and constitutional provisions”
our supreme court has held that “the state is not required to provide expert assistance to indigent non-capital
post-conviction petitioners.” Davis v. State, 912 S.W.2d 689, 696-97 (Tenn. 1995).

                                                     -11-
        In addition to the mental health issue, the Petitioner raised three other issues in his
brief: (1) that trial counsel was ineffective for failing “to consult with a pathologist”
regarding the victim’s cause of death; (2) that trial counsel was ineffective for failing “to
properly preserve an objection to the exclusion of material testimony that was beneficial to
the [Petitioner’s] case”; and (3) that trial counsel was ineffective for failing “to make a
contemporaneous objection to hearsay testimony that implicated [the Petitioner].” However,
the Petitioner does not cite to any legal authorities regarding these issues and makes no
argument beyond a conclusory one-paragraph statement that trial counsel was ineffective
regarding these matters. “Issues which are not supported by argument, citation to authorities,
or appropriate references to the record will be treated as waived in this court.” Tenn. Ct.
Crim. App. R. 10(b); see also State v. Sanders, 842 S.W.2d 257, 260-61 (Tenn. Crim. App.
1992). Accordingly, we conclude that the Petitioner has waived appellate review of these
issues.

                                       CONCLUSION

       Upon consideration of the foregoing and the record as a whole, the judgment of the
post-conviction court is affirmed.




                                                    ________________________________
                                                    D. KELLY THOMAS, JR., JUDGE




                                             -12-
