         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                                     May 7, 2002 Session

   ROBERT LEE GOSS and CARL W. HALE v. STATE OF TENNESSEE

                Direct Appeal from the Circuit Court for Lauderdale County
                           No. 6242    Joseph H. Walker, Judge



                   No. W2001-02504-CCA-R3-PC - Filed August 13, 2002


The Appellants, Robert Lee Goss and Carl W. Hale, were convicted by a Lauderdale County jury of
first-degree murder and aggravated assault. They appeal as of right the judgment of the Lauderdale
County Circuit Court denying their petitions for post-conviction relief. On appeal, the Appellants
argue that trial counsel were ineffective because they did not pursue a defense of insanity and/or
diminished capacity. After review of the record, we find that the Appellants received the effective
assistance of counsel. Accordingly, the judgment of the post-conviction court is affirmed.

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

DAVID G. HAYES, J., delivered the opinion of the court, in which JERRY L. SMITH and ALAN E.
GLENN, JJ., joined.

Michael W. Whitaker, Covington, Tennessee, for the Appellant, Robert W. Goss; William Dan
Douglas, Jr., Ripley, Tennessee, for the Appellant, Carl Hale.

Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; J. Ross Dyer,
Assistant Attorney General; Elizabeth T. Rice, District Attorney General; and Tracey Brewer,
Assistant District Attorney General, for the Appellee, State of Tennessee.


                                            OPINION

                                       Factual Background

        On May 21, 1996, the Appellants, while incarcerated in the Department of Correction, were
convicted of first-degree murder of another inmate, Willis McDonald, and of the aggravated assault
of a correctional officer. For background purposes, the following facts are recited from this court’s
decision affirming the Appellants’ convictions:
       In the light most favorable to the state, the evidence establishes that the defendants
       killed McDonald deliberately and with premeditation. The proof shows that on the
       day of the offenses, Hale told Goss that McDonald had made threats against him and
       Goss. When McDonald returned from the shower wearing only a towel, Hale shut
       McDonald’s cell door. Goss, who did not have permission to be in the pod, then ran
       up the stairs. Although McDonald was unarmed, the defendants stabbed him
       repeatedly as they struggled, and McDonald fell down the stairs. The defendants ran
       down the steps after McDonald, and Goss kneeled over McDonald and repeatedly
       stabbed him in the chest as he lay naked on the floor. As Goss was stabbing
       McDonald, Hale held a knife in his hand and told the officers to leave Goss alone
       while he was “taking care of business.” Afterwards, the defendants appeared calm.

State v. Goss, 995 S.W.2d 617, 625-26 (Tenn. Crim. App. 1998), perm. to appeal denied, (Tenn.
1999).

       In 1999, the Appellants filed petitions for post-conviction relief. An evidentiary hearing was
held on September 13, 2001. On September 14, 2001, the post-conviction court denied the
Appellants post-conviction relief, finding that the Appellants received the effective assistance of
counsel. This timely appeal followed.

                                            ANALYSIS

        The Appellants raise one issue for our review: whether trial counsel were ineffective because
of failure to pursue a defense of insanity and/or diminished capacity. To succeed in a challenge for
ineffective assistance of counsel, the Appellants must establish, under Strickland v. Washington, 466
U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984): (1) deficient representation, and (2) prejudice resulting
from the deficiency. Thus, the Appellants 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 Appellants must demonstrate that counsels’ errors “were so serious as to deprive the [Appellants]
of a fair trial, a trial whose result is reliable." Id. A reviewing court need not consider the two
prongs of Strickland in any particular order. Id. at 697. Moreover, if the Appellants fail to establish
one prong, a reviewing court need not consider the other. Id.

        With respect to deficient performance, the Appellants must demonstrate that counsels’
representation fell below the range of competence demanded of attorneys in criminal cases. Baxter
v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). This court "must indulge a strong presumption that
[counsels’] conduct falls within the wide range of reasonable professional assistance; that is, the
[Appellants] must overcome the presumption that, under the circumstances, the challenged action
'might be considered sound trial strategy.'" Strickland, 466 U.S. at 689. We should defer to trial
strategy or tactical choices if they are informed ones based upon adequate preparation. Charles
Walton Wright v. State, No. 01C01-9105-CR-00149 (Tenn. Crim. App. at Nashville, Apr. 7, 1994),
perm. to appeal denied, (Tenn. 1994), cert. denied, 513 U.S. 1163, 115 S. Ct. 1129 (1995) (citing
Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982)). Additionally, this court should avoid the "distorting


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effects of hindsight" and "judge the reasonableness of [counsels’] challenged conduct on the facts
of the particular case, viewed as of the time of [counsels’] conduct." Strickland, 466 U.S. at 689-90.
Moreover, we note that defendants are not entitled to perfect representation, only constitutionally
adequate representation.

        To establish the prejudice prong of Strickland, the Appellants must show that there is a
reasonable probability that, but for counsels’ deficient performance, the result of the proceeding
would have been different. Strickland, 466 U.S. at 694. 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. Brimmer v. State, 29 S.W.3d 497, 508 (Tenn.
Crim. App. 1998) (citing Nealy v. Cabana, 764 F.2d 1173, 1178-79 (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." Id. at 509 (citing
State v. Zimmerman, 823 S.W.2d 220, 225 (Tenn. Crim App. 1991)).

        The issues of deficient performance by counsel and possible prejudice to the defense are
mixed questions of law and fact. State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). “A trial court’s
findings of fact underlying a claim of ineffective assistance of counsel are reviewed on appeal under
a de novo standard, accompanied with a presumption that those findings are correct unless the
preponderance of the evidence is otherwise.” Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001)
(citing Tenn. R. App. P. 13(d)); see Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997). However,
conclusions of law are reviewed under a purely de novo standard, with no presumption of
correctness. Fields, 40 S.W.3d at 458.

        Both Appellants contend that their respective trial counsel were ineffective for not
investigating or pursuing a defense of insanity and/or diminished capacity based upon information
that was available and apparent to them. The Appellant Goss argues that his trial counsel with
minimal investigation could have discovered from his medical records documentation of a “mental
defect or frontal lobe injury which could have supported introduction of evidence on diminished
capacity.” Moreover, he contends that medical records from 1983 revealed that “a documented
history of Neuropsychological testing showed considerable frontal lobe pathology, possibly related
to his auto accident, possibly related to glue sniffing.” The Appellant Hale argues that “[c]ounsel
was aware that from the very beginning of her representation that the [Appellant], had very little, if
any, education and could not read or write.” Finally, both Appellants argue that their prior history
of committing crimes of violence should have alerted trial counsel to pursue mental evaluations,
which could have supported a defense of insanity and/or diminished capacity. 1


         1
          The reco rd sugge sts that the Appellant Go ss “acc identally shot his m other to death w ith a 12 gauge doub le
barrel shotgun at age 13" and that he has “been kept in maximum security for seventeen years” for various crimes. The
Appellant Hale has b een in priso n since 1978 as a resu lt of convictions fo r murder and arm ed ro bbe ry. Since his
incarceration, he has been co nvicted of man slaughter, second degree m urder, first degree m urder, and assault with intent
to comm it murder.

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        While a criminal defendant's diminished capacity does not constitute a defense capable of
excusing or defeating a criminal charge, evidence of the diminished capacity is relevant to
determining the defendant's mens rea. State v. Grose, 982 S.W.2d 349, 353 (Tenn. Crim. App.
1997) (citing State v. Phipps, 883 S.W.2d 138,148 (Tenn. Crim. App. 1994)). Under the diminished
capacity rule of evidence, a defendant is required to introduce evidence, typically expert medical
testimony, to establish that the defendant at the time of the crime was incapable of forming the
requisite intent of the crime charged. At the post-conviction hearing, the Appellant Hale introduced
no medical proof supporting his claims while the Appellant Goss introduced a medical discharge
summary dating back to 1983 when he was seventeen years old.2

       With regard to the defense of insanity, a defendant is required to prove, by clear and
convincing evidence, that:

         (a) [A]s a result of a severe mental disease or defect, [the defendant] was unable to
         appreciate the nature or wrongfulness of such defendant’s acts. Mental disease or
         defect does not otherwise constitute a defense.

         (b) As used in this section, “mental disease or defect” does not include any
         abnormality manifested only by repeated criminal or otherwise antisocial conduct.

Tenn. Code Ann. § 39-11-501(a)(b) (1997).3 Accordingly, in order for the defense of insanity to be
viable, it would have been incumbent upon each Appellant to establish (1) that he had a severe
mental disease or defect at the time that the acts constituting the crime were committed, and (2) that
as a result of this severe mental disease or defect, he was unable to understand what he was doing
or that what he was doing was wrong. 4 As observed by the language of Tennessee Code Annotated
§ 39-11-501(b) (1997), the Appellants' prior histories of repeated criminal conduct and antisocial
behavior will not support a defense of insanity.

       If an ineffective assistance of counsel claim is based upon failure to properly investigate,
evidence or witnesses must be produced so that the post-conviction court can properly evaluate the
claim. Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990). Proof of deficient
representation by failure to act requires more than a speculative showing of lost potential benefits.
The proof presented by the Appellants fails to establish that another course of conduct by their trial


         2
         The 198 3 discharg e sum ma ry ind icated the Appellan t was having “problem s with behavior disco ntrol. . . .
On men tal status exa min ation the patient was an alert, friendly, cooperative, Caucasian, male. . . . There was no
evidence of thoug ht derailm ent, hallucin ations nor delusions. Cog nitive func tions w ere intact . . . .”

         3
         The crimes for which the Ap pellants were con victed w ere com mitted o n Au gust 25, 1995. Effective July 1,
1995, Tenn essee Code Annotated § 39-11-501(a) was amended by placing the burden of proving insanity upon the
defendant by clear and convincing evidence.

         4
             T.P.I. -- Crim. 40.16(b).

                                                          -4-
counsel had a reasonable probability of producing a different result. Accordingly, the Appellants
have not demonstrated prejudice.

                                          CONCLUSION

       Based upon the foregoing, we find that the post-conviction court did not err in ruling that the
Appellants received the effective assistance of counsel. Accordingly, the judgment of the Circuit
Court of Lauderdale County is affirmed.




                                                       ___________________________________
                                                       DAVID G. HAYES, JUDGE




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