           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                    AT JACKSON                    FILED
                             OCTOBER 1998 SESSION                December 28, 1998

                                                                 Cecil Crowson, Jr.
                                                                  Appellate C ourt Clerk
SYLVESTER SMITH,                           )
                                           )      NO. 02C01-9801-CR-00018
       Appellant,                          )
                                           )      SHELBY COUNTY
VS.                                        )
                                           )      HON. BERNIE WEINMAN,
STATE OF TENNESSEE,                        )      JUDGE
                                           )
       Appellee.                           )      (Post-Conviction)


            OPINION CONCURRING IN PART; DISSENTING IN PART


       I agree in most respects with the well-written majority opinion by Judge David

G. Hayes. I agree, as the state concedes, that petitioner was deprived of effective

assistance of counsel at the sentencing phase due to counsel’s failure to recognize

the necessity for and present appropriate proof of “mental retardation” which would

disqualify petitioner from the death penalty. See Tenn. Code Ann. § 39-13-203. Both

deficient performance and prejudice were established in this regard, and petitioner

is clearly entitled to a new sentencing hearing. However, I do not agree that

petitioner is entitled to a new trial on the basis of ineffective assistance of counsel.



           STANDARDS - INEFFECTIVE ASSISTANCE OF COUNSEL



       The majority opinion correctly notes that, in order to establish ineffective

assistance of counsel,     a petitioner bears the burden of proving not only that

counsel’s performance was deficient, but also that the deficient performance

prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct.

2052, 2064, 80 L.Ed. 2d 674 (1984). To establish the prejudice prong, the burden

is on the petitioner to “show that there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been

different.” Id. at 694, 104 S.Ct. at 2068. A reasonable probability is one sufficient to

undermine confidence in the outcome of the proceeding. Id.
       The majority opinion finds deficient performance and prejudice with regard to

competency to stand trial and a possible insanity defense; therefore, the majority

opinion sets aside the conviction and remands for a new trial. In light of petitioner’s

prior history, I agree that counsel was deficient in failing to secure a full mental

evaluation in this capital case. However, I do not believe that petitioner met his

burden of establishing that, but for this deficiency, the result of the proceeding would

have been different.



                                   COMPETENCY



       As to competency to stand trial, the sole testimony which could arguably

establish incompetence to stand trial was that of Dr. Bernet, who stated, “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.” However, I would note that trial counsel

testified they had no problems communicating with the petitioner before or during

trial. Dr. Hutson personally interviewed the petitioner before trial, and although he

did not perform a competency evaluation, interestingly, he apparently did not notice

anything about the petitioner’s alleged incompetence.

       The trial court made the following pertinent findings:


                The record reveals that counsel was able to discuss the case
       with the defendant and his position was that he did not commit the
       offense and was not present at the home of the victim and knew
       nothing about the crime. A negotiated plea was discussed with the
       defendant which he turned down and he maintained his innocence. .
       . . Dr. Bernet opined that the defendant was not competent at the time
       of trial. But as previously stated there is nothing in the record from the
       people that were dealing with the defendant at or near the time of trial
       that would indicate that Mr. Smith was not competent.


       Petitioner has failed to establish a reasonable probability that he, in fact, was

incompetent at the time of trial. The evidence does not preponderate against the

findings of the trial court.




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                                       INSANITY



         As to the insanity defense, petitioner’s proof is even weaker. Again, the

majority opinion appears to rely upon the testimony of Dr. Bernet. Dr. Bernet’s

testimony was speculative at best. Dr. Bernet opined that the psychotic and retarded

condition of the defendant “may have prevented him from understanding the

wrongfulness of his actions or conforming his actions to the requirements of the law.”

(emphasis added). However, Dr. Bernet conceded petitioner’s mental condition

fluctuated and his inability to understand the wrongfulness of his actions or to

conform his conduct to the requirements of the law would occur when “he’s having

a bad day.” He further conceded that one could be psychotic and not meet the

requirements of the insanity defense. The petitioner has not shown a reasonable

probability that on the date of the homicide he was “having a bad day” so as to qualify

for the insanity defense.

         The trial court noted:

                The doctor further indicated that the defendant may have
                been insane when the crime was committed. The
                evidence taken in the best light of the petitioner would
                indicate that at times the defendant was psychotic and at
                other times he was in remission. “When the accused’s
                mental illness is subject to remission, the evidence must
                establish that the accused’s illness was not in remission
                when he committed the offense in question.” Forbes v.
                State, 559 S.W.2d 318, 325 (Tenn. 1977). (emphasis
                added)

         Again, petitioner has failed to meet his burden of establishing a reasonable

probability that the insanity defense would have been successful had it been pursued

by trial counsel. The evidence does not preponderate against the findings of the trial

court.



                        FAILURE TO ESTABLISH PREJUDICE



         The majority opinion states that it is “impossible to fathom that the appellant

was not prejudiced by trial counsel’s failure to explore the appellant’s mental history.”

The opinion then states that “[t]he psychiatric evidence, if properly investigated and

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presented, could have totally changed the evidentiary picture in the present case.”

(emphasis added).      The opinion also states that “absent the deficiencies, the

outcome of the trial might well have been different.” (emphasis added). “Could have”

or “might well have” is not the test under Strickland. Strickland requires the petitioner

to show a reasonable probability that the result of the proceeding “would have been

different.” Strickland v. Washington, 466 U.S. at 694, 104 S.Ct. at 2068 (emphasis

added). I would emphasize that Strickland was also a capital case.

       The majority opinion further states that “[w]hen 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. United States v. Cronic, 466 U.S. 648, 659, 104 S.Ct.

2039, 2045, 80 L.Ed. 2d 657 (1984). I fail to see the basis for application of this

principle under the facts and circumstances of this case.

       In summary, I would remand for a new sentencing hearing; however, I would

not remand for a new trial and would affirm the conviction.



                                                  ____________________________
                                                  JOE G. RILEY, JUDGE




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