         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                                  December 6, 2005 Session

                      DAVID KEEN v. STATE OF TENNESSEE

                  Direct Appeal from the Criminal Court for Shelby County
                             No. P-25157    Chris Craft, Judge



                      No. W2004-02159-CCA-R3-PD - Filed June 5, 2006


Capital Petitioner David Keen appeals as of right the judgment of the Shelby County Criminal Court
denying his petition for post-conviction relief. Petitioner Keen pled guilty to first degree felony
murder committed in the perpetration of the rape of eight-year-old Ashley Nicole (Nikki) Reed. See
State v. Keen, 31 S.W.3d 196 (Tenn. 2000); State v. Keen, 926 S.W.2d 727 (Tenn. 1996). He was
sentenced to death. On direct appeal, the petitioner’s conviction was affirmed, but the supreme court
reversed and remanded the sentence of death after finding reversible error due to erroneous jury
instructions. Keen, 926 S.W.2d at 736. On remand, the jury, again, imposed the penalty of death.
Keen, 31 S.W.3d at 202. Our supreme court affirmed the sentence of death on direct appeal. Id.
A pro se petition for post-conviction relief was filed on May 3, 2001, which was followed by the
appointment of counsel and an amended petition on November 16, 2001. An evidentiary hearing
was conducted and, on August 2, 2004, the post-conviction court denied relief and dismissed the
petition. On direct appeal to this Court, the petitioner presents for our review the following claims:
(1) whether the petitioner was denied a fair trial due to jury misconduct; (2) whether the petitioner
received constitutionally effective assistance of counsel at his sentencing hearing; (3) whether the
death sentence violates the holdings in Apprendi, Ring, or Jones; (4) whether the prosecutor’s
discretion in seeking the death penalty violates Bush v. Gore; (5) whether the imposition of the death
penalty is unconstitutional; and (6) whether imposition of the death penalty violates international
law. After a careful and laborious review of the record, this Court concludes that there is no error
requiring reversal. Accordingly, the judgment of the post-conviction court is affirmed.

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

THOMAS T. WOODALL, J., delivered the opinion of the court, in which ALAN E. GLENN and ROBERT
W. WEDEMEYER , JJ., joined.

Donald E. Dawson, Nashville, Tennessee; and Catherine Y. Brockenborough, Nashville, Tennessee,
for the appellant, David Keen.

Paul G. Summers, Attorney General and Reporter; Michelle Chapman McIntire, Assistant Attorney
General; and William L. Gibbons, District Attorney General, for the appellee, State of Tennessee.
                                             OPINION

                                            Background

       The proof as set forth in the supreme court’s decision opinion affirming the imposition of the
death penalty established the following:

               At the time of the tragic events giving rise to this case, the appellant was
       living with his then-fiancée, Deborah Wilson, in a three-bedroom mobile home in
       Millington, Tennessee. Also living with the appellant and his fiancée were Deborah’s
       four children, including Ashley Nicole, her mother, and her father. During the late
       afternoon of March 17, 1990, the appellant and Deborah met her mother and father
       at the VFW Club in West Memphis, Arkansas, to eat dinner and play bingo. All of
       Deborah’s children were spending the night with various friends. Shortly after the
       appellant and Deborah arrived at the VFW Club, Deborah’s father, Jessie Wilson,
       expressed some concern over Nikki’s arrangements to sleep over at a friend’s house.
       The appellant offered to go back to Millington to check on Nikki, and Mr. Wilson
       allowed the appellant to borrow his car to make the short trip.

               The appellant left the VFW Club at about 5:30, and he returned about two
       hours later. Upon returning, he told everyone that Nikki was spending the night with
       her friend, Shantell. The group stayed at the VFW Club until about 10:30 that
       evening, and on his way back home to Millington, Mr. Wilson noticed that the green
       blanket he usually kept in his car was missing. Mr. Wilson questioned the appellant
       about the blanket, but the appellant merely replied that he put the blanket in the back
       seat of the car because he did not want to sit on it.

               The next morning, Deborah and the appellant went shopping at the local Wal-
       Mart while Mrs. Wilson went to pick Nikki up for church. When Mrs. Wilson
       returned home, she told her husband that Nikki did not go to her friend’s house the
       previous evening, and the two of them searched around the mobile home park for
       Nikki. When Deborah and the appellant returned from shopping, they joined the
       search for Nikki. After searching all day and finding no trace of his granddaughter,
       Mr. Wilson told Deborah to report Nikki’s disappearance to the police. Deborah and
       the appellant then left on foot for the police station to file a missing persons report.
       In the meantime, Mr. Wilson and his wife again searched the trailer park, and after
       waiting some time for Deborah and the appellant to return from the police station,
       they decided to drive to the police station themselves. As soon as Mrs. Wilson
       opened the door to get into her car, she saw a pair of panties lying on the passenger-
       side floorboard. Mr. Wilson told his wife not to move the panties, and they drove to
       the police station where they notified an officer about their discovery. When Mr.
       Wilson later approached the appellant about the panties in the car, the appellant was
       evasive and would not answer his questions.


                                                 -2-
        The next day, a detective with the Millington Police Department asked the
appellant and Deborah to come to the police station for questioning. Although the
appellant initially denied any involvement in Nikki’s disappearance, he admitted after
further questioning by the police that he “threw her in the river.” The appellant then
took the detective and others officers to Memphis along the north end of Mud Island
in the Wolf River, where the police found Nikki’s naked body wrapped in a green
blanket. Although the police found a blue denim skirt and a pink shirt wrapped with
the body, the officers found no panties.

        The appellant was taken to the Memphis Police Department where he again
confessed to the murder of Nikki Reed. The appellant stated that when he found
Nikki, he intended to take her back with him to West Memphis because he was
unsure whether she could spend the night with her friend. In his initial statement to
the Millington police, the appellant stated that on the return trip to West Memphis,
he and Nikki argued about something concerning her seat belt. The appellant stated
that during this argument, he became very angry, grabbed Nikki’s throat, and covered
her mouth until she turned blue. Although he admitted to wrapping Nikki’s body in
the green blanket and throwing her into the river, he could not remember whether he
struck her, took her clothes off, or raped her.

       However, when questioned further in Memphis about the incident, the
appellant admitted to his actions in gruesome detail:

        I pulled off to the side of the road and undressed Ashley and undid
        my pants, and I held my hand over her throat and tried to penetrate
        [her]. I felt crap and I stopped, and Ashley had turned blue in the face.
        She wasn’t breathing. I tied a shoe lace around her neck and she still
        was not breathing. I untied the shoe lace, wrapped her up in a blanket,
        tied the blanket together and dumped her off into the river off of the
        old Auction Street boat Dock. Then I went back over to West
        Memphis and told Ashley’s mother that Ashley was spending the
        night at her friend, Shantell’s, house.

        The appellant also stated that Nikki struggled “for a little while,” although she
did not scream or holler, because he “was practically on top of her with [his] hand on
her throat.” Nikki was eight years old and weighed sixty-eight pounds.

        At the sentencing hearing, the State called Dr. Jerry Francisco, the Shelby
County Medical Examiner, to testify as to the results of the victim’s autopsy. Dr.
Francisco testified that Nikki suffered multiple scrapes and bruises to her face and
neck, and that she had a deep ligature mark around the front of her neck caused by
a tightly-pulled fabric cord, such as a shoelace. The medical examiner also found a
bruise and scrapes around her genital area and a tear on the posterior wall of the


                                          -3-
vagina. Sperm heads were also found inside the vagina. Dr. Francisco determined
that Nikki was alive while she was raped and suffered the various injuries, although
he could not say with certainty that she was conscious during the entire episode.

        In addition, the autopsy revealed that fluid was found in the lungs of the
victim. Although Dr. Francisco stated that fluid in the lungs can be associated with
either drowning or asphyxia, he testified that the left side of the heart was diluted,
which “is the type of change you see in a person who is alive and submerged.”
Although the medical examiner stated that the ligature strangulation was the actual
cause of death, he also stated that “[i]n my opinion, she was alive at the time she was
placed in the water.”

        In mitigation, the defense called the appellant’s adoptive parents, Robert and
Evelyn Brieschke, who adopted the appellant and his older brother when the
appellant was four years old. His adoptive parents testified that the appellant was
malnourished when he was first adopted, and that he was very nervous and upset, had
difficulty playing and interacting with others, and had difficulty sleeping. The
appellant was diagnosed with Attention Deficit Disorder in fourth grade, and he was
placed on Ritalin, which offered some improvement. The Brieschkes later learned
from a psychological report completed before the appellant’s adoption that the
appellant was in need of immediate help and counseling, although this information
was kept from them at the time of the adoption. In high school, the appellant skipped
classes, smoked marijuana, and drank alcohol. At one point, he was arrested for
breaking into an automobile agency and stealing a car. In his junior year, the
appellant dropped out of high school and joined the United States Navy.

        The appellant’s brother and two stepsisters testified that the appellant’s
natural father was physically and emotionally abusive. Because his father was wanted
for theft and child neglect, he constantly moved his family to evade arrest, and during
one two-year period, the family moved no less than twenty-six times. The children
were beaten on a daily basis, sometimes with electrical cords and pieces of lumber.
The father would also slaughter livestock in front of his children while threatening
to do the same to them if they misbehaved. One of the appellant’s sisters, who
admitted being the victim of sexual abuse, described their childhood as “an
environment of terror.” Even after the appellant was abandoned by his natural
parents, he was placed in an abusive foster home before being adopted by the
Brieschkes. The defense also called Dr. John Ciocca, a clinical psychologist, who
conducted a psychological evaluation of the appellant and testified as to the results.
Dr. Ciocca diagnosed the appellant as suffering from post-traumatic stress disorder,
serious depression, and attention deficit disorder. Dr. Ciocca stated that the appellant
also showed some signs of pedophilia, although he admitted that he found no
indications of persistent and constant sexual interest in children, which is necessary
for a proper diagnosis. One of the tests administered by Dr. Ciocca indicated that the


                                          -4-
       appellant suffered from occasions “where he is not in good contact with reality,” and
       that another test showed the “presence of psychotic-like symptoms.”

               Dr. Ciocca also interviewed the appellant and his family, and he reviewed
       numerous medical and psychological records, including an evaluation conducted at
       Winnebago State Hospital in Wisconsin. From an examination of these interviews
       and records, Dr. Ciocca testified that the appellant was “born into a family of crisis,”
       which “had fallen on hard times,” and in which “physical abuse and sexual abuse
       were rather rampant.” Although he was relocated to a foster home, the appellant
       remembered being abused and anally raped by his foster father. According to Dr.
       Ciocca, the absence of nurturing, along with the presence of general hostility or
       apathy toward the appellant significantly affected his normal childhood development.
       Dr. Ciocca also stated that the appellant was “extraordinarily distressed at what he’s
       done,” and that he “takes full responsibility for it.”

               The State argued to the jury that the facts supported the presence of two
       aggravating circumstances: (1) that the murder was committed against a person less
       that twelve years of age and the defendant was eighteen years of age or older, see
       [T.C.A.] § 39-13-204(i)(1); and (2) that the murder was especially heinous, atrocious,
       or cruel in that it involved torture or serious physical abuse beyond that necessary to
       produce death, see [T.C.A.] § 39-13-204(i)(5). The appellant, on the other hand,
       argued that fourteen statutory and non-statutory mitigating circumstances applied and
       should be considered. The jury found that the State proved both aggravating
       circumstances beyond a reasonable doubt, and after finding that these aggravating
       circumstances outweighed any mitigating circumstances beyond a reasonable doubt,
       the jury sentenced the appellant to death. The jury made no specific findings as to
       which, if any, mitigating circumstances were supported by the proof.

Keen, 31 S.W.3d at 202-205 (internal footnote omitted).

                                     Post-Conviction Hearing

       Post-conviction relief is only warranted when a petitioner establishes that his or her
conviction is void or voidable because of an abridgement of a constitutional right. T.C.A. § 40-30-
103. The petition challenging the petitioner’s conviction for first-degree murder is governed by the
1995 Post-Conviction Act, which requires that allegations be proven by clear and convincing
evidence. See T.C.A. § 40-30-110(f). Evidence is clear and convincing when there is no serious or
substantial doubt about the accuracy of the conclusions drawn from the evidence. Hicks v. State, 983
S.W.2d 240, 245 (Tenn. Crim. App. 1998).

      Once the post-conviction court has ruled upon a petition, its findings of fact are conclusive
on appeal unless the evidence in the record preponderates against them. Wallace v. State, 121
S.W.3d 652, 656 (Tenn. 2003); State v. Nichols, 90 S.W.3d 576, 586 (Tenn. 2002) (citing State v.


                                                 -5-
Burns, 6 S.W.3d 453, 461 (Tenn. 1999)). This Court may not reweigh or reevaluate the evidence
or substitute its inferences for those drawn by the post-conviction court. Nichols, 90 S.W.3d at 586.
Questions concerning the credibility of witnesses and the weight to be given their testimony are for
resolution by the post-conviction court. Nichols, 90 S.W.3d at 586 (citing Henley v. State, 960
S.W.2d 572, 579 (Tenn. 1997)). Notwithstanding, determinations of whether counsel provided a
defendant constitutionally deficient assistance present mixed questions of law and fact. Wallace, 121
S.W.3d at 656; Nichols, 90 S.W.3d at 586. As such, our review is de novo, and we accord the
conclusions reached below no presumption of correctness. Wallace, 121 S.W.3d at 656; Nichols,
90 S.W.3d at 586.

                         Evidence Presented at Post-Conviction Hearing

       Ernest Bowles, Sr. testified that he was member of the jury in the case of State v. David Keen.
Mr. Bowles related that the jury was sequestered for five days, during which Mr. Bowles was in
possession of his Bible. He stated that he brought his Bible into the courtroom and that he took the
Bible with him into the deliberation room. Mr. Bowles recalled that, during deliberations, he read
a passage from Romans 13, specifically:

       . . . [l]et every soul be subject unto the higher powers. For there is no power but of
       God; the powers that be are ordained of God. Whosoever therefore resisteth the
       power, resisteth the ordinance of God; and they that resist shall receive to themselves
       damnation. For rulers are not a terror to good works, but to the evil. Wilt thou then
       not be afraid of the power? Do that which is good, and thou shalt have praise of the
       same. For he is the minister of God to thee for good. But if thou do that which is
       evil, be afraid; for he beareth not the sword in vain; for he is the minister of God, a
       revenger to execute wrath upon him that doeth evil.

He stated that he read this verse at a point in deliberations when “we had one juror didn’t believe in
the death penalty. . . .” Mr. Bowles explained that he read the passage because it dealt with
punishment. He added that “[i]f you commit a crime you’re supposed to be punished.” Although
this was the only passage read aloud during deliberations, the jurors did pray together.

       On cross-examination, Mr. Bowles stated that the imposition of the death penalty was based
on the law and on the evidence. He asserted that he believed that the State “proved beyond a
reasonable doubt that the defendant should get the death penalty.”

        Nancy Hurlburt, another juror, recalled that, during jury deliberations, one juror “read from
the Bible and I asked if I could say a prayer.” Ms. Hurlburt could not recall the passage read from
the Bible. However, she did relate that the passage was read “when the Judge sent us back,
immediately when the Judge sent us back.” Ms. Hurlburt could not recall which occurred first, the
prayer or the reading of the passage. Regarding the prayer, Ms. Hurlburt stated that it was out loud,
but she could not recall anyone else participating. Ms. Hurlburt opined that neither the prayer nor
the reading of the passage were done with the intent to influence anyone’s decision; rather “these


                                                 -6-
things were done just to let us have the peace of mind that we were making the right decision.” She
further related that the decision to impose the death penalty was based on the law and evidence
presented and not on the Bible. Ms. Hurlburt denied any allegation that the reading of the Bible
passage was done to influence the jurors’ decision.

       A third juror, Fannie Goodman, recalled that, during deliberations:

       . . .[S]ome of us had Bibles, others were to themselves meditating, then one of the
       jurors read a verse and we all sat down to discuss our options or choices to make [a]
       decision.

              And after we went over the evidence and everything one of the jurors read
       from the Book of Romans, and we held hands and we prayed and we cast our votes.

Ms. Goodman stated that the first verse was from the Book of Corinthians. She explained that the
“prayer was mostly for our personal comfort.” She further stated that the verdict imposed was a
result of the law of the State of Tennessee and not due to reliance upon the Bible.

        Robert Jones, presently the Shelby County Public Defender, was the coordinator of the
Capital Defense Team for the Shelby County Public Defender’s Office in 1991. At the time of the
re-sentencing hearing in 1997, Mr. Jones held the position as Deputy Administrator with the Public
Defender’s Office in addition to remaining a member of the Capital Defense Team.

         On March 20, 1990, Mr. Jones was appointed to represent the petitioner. A conference with
the petitioner was held that same day. He explained the dynamics of the capital case team at that
time. At the time of appointment, one member would immediately go to the jail to talk with the
client. Once this attorney made an initial assessment and report to the team, the entire team
participated in an initial intake. The team consisted of two attorneys, an investigator, a factual
investigator and a mitigation specialist. An appellate attorney from the Office would also be
consulted from time to time. The defense team also had “law clerks and . . .we brought in
psychologists, whatever professionals that we needed and used them as part of the team.” After the
initial intake, the individual team members had “their tasks to do” and Mr. Jones would meet
periodically with them. Mr. Jones explained that “the purpose of getting the team together is to try
to convince the jury to give something other than the death penalty, and whatever it takes as far as
providing them with that information that’s what we do.”

        Mr. Jones related that the time spent preparing before the first trial and second trial varied.
The preparation for the first trial involved more investigation and more time spent reviewing witness
statements. For the second trial, “it was a lot of time spent reviewing trial transcripts and looking
over the mitigation from the previous trial and trying to make the determinations of any changes that
we should make. So it was entirely a different type of preparation then than before.”




                                                 -7-
        A psychologist was used by the defense team in both the 1991 trial and 1997 trial. Mr. Jones
stated that the psychologist was selected by the team on the basis of that expert being best suited for
the case. In selecting an expert, Mr. Jones related that one must consider the problem that needs to
be concentrated on; sometimes it is mental, sometimes it is background. Accordingly, sometimes
the defense team would need a psychologist and sometimes they would need a psychiatrist. With
regard to social history, Mr. Jones explained that, during the initial meeting, the defense team
procured numerous releases from the petitioner to enable them to obtain medical, school, and other
such records. Information gathered by the mitigation specialist would be shared with the
psychologist.

        Mr. Jones testified that, during both trials, the defense team employed various themes of an
abused child for mitigation purposes. This theme was based, in part, on various documents
reflecting the transient lifestyle of the petitioner’s family and their horrendous living conditions.
Intake information also reflected that the petitioner and his brother were placed in foster care.

        Mr. Jones related the procedure used in developing mitigation evidence. He stated that
extensive interviews with various persons were conducted, meetings were held, and doctors were
consulted. The attorneys on the team would make determinations regarding what types of experts
would be consulted. In the present case, the defense team determined that a psychologist was a
better choice than a psychiatrist as they had found that psychologists had, in their experience, done
a better job at looking at the background social information.

         Mr. Jones stated that the defense team had information regarding the drinking habits of the
petitioner’s birth parents. Mr. Jones opined that the physical and mental abuse of the petitioner
during his childhood were issues that a psychologist needed to review. Mr. Jones stated that no
additional mitigation themes were developed for the second penalty phase. He stated that a different
psychologist, Dr. Ciocca, was used at the second trial. Mr. Jones explained that the change from Dr.
Hutson to Dr. Ciocca was made because they “felt that we needed to do something different.” The
defense team was impressed by Dr. Ciocca’s presentation and felt that he would be a good choice
for getting the points across to the jury. The points that needed to be impressed upon the jury were
the horrific circumstances of the petitioner’s childhood and how that could have impacted him in his
later years. In preparing a mitigation defense, Mr. Jones agreed that one of the jobs of the defense
team was to tell the petitioner’s story in a way so as to humanize him to the jury panel. He explained
that trial counsel must start telling a defendant’s story to the jury as the proof is being developed,
including, in some but not all situations, in opening statements.

         Mr. Jones recalled that in the first penalty phase trial he presented the testimony of the
petitioner’s adoptive parents, Mr. and Mrs. Brieschke; the petitioner’s natural brother, Allen
Brieschke; his natural sister, Linda McAfee; Dr. Hutson, Deborah Denny, and Byron Ramondo
Catron. At the second penalty phase trial, another sister, Darlene, was added to the witness list. Mr.
Jones stated that, although the testimony would essentially be the same as that presented in the first
trial, the defense team had a new doctor and was attempting a different approach as far as the expert
testimony was concerned. In preparing the witnesses for the second trial, the defense team talked


                                                 -8-
to the witnesses via telephone, read their statements, and talked with them in person. Dr. Ciocca was
provided all information that was in possession of the defense team. Mr. Jones related that, since
the witnesses were going to paint the petitioner’s story through their testimony, it was the opinion
of the defense team that it was better not to offer more during opening statements.

        Mr. Jones agreed that the petitioner had a compelling case for mitigation. This was largely
in part due to the horrendous childhood experienced by the petitioner. The prosecution at both the
1991 and 1997 trials attempted to negate the impact of the petitioner’s childhood by stating the
defense was merely trying to use the “abuse excuse.” Mr. Jones stated that to combat this “[y]ou put
the information on and let the jury size it up.” He explained that it was very important for the
defense team to explain why the information presented in a capital sentencing hearing is mitigation.

        Recapping the mitigation evidence presented at the 1991 trial, Mr. Jones stated that testimony
was introduced showing that the petitioner was abandoned by his biological parents, he had problems
after he was adopted by the Brieschkes, his brother had serious problems after arriving at the
Brieschkes, the Brieschkes attempted counseling for the petitioner, the adoption agency failed to
disclose the petitioner’s past to his adoptive parents and the petitioner’s biological mother abused
alcohol. The defense team had information from police files indicating the type of life led by the
petitioner’s biological parents. Mr. Jones stated that his co-counsel did summarize the mitigation
evidence that was going to be presented, and it was a question as to “how much you want to go into”
during opening statements. Mr. Jones explained that there was the chance that “if you [went] over
your proof word for word” during opening statements then its impact would be lost when the
witnesses testified. Mr. Jones also explained that there was a rhythm to a trial and “if you drag[ged]
out opening statements you run the possibility of making the jury upset.”

        Mr. Jones admitted that there may have been information regarding the behavior of the
petitioner’s birth mother prior to the petitioner’s birth that was not brought out to the jury. He also
conceded that information that the petitioner’s biological father lost a job because he “slugged” his
employer was not introduced to the jury. Mr. Jones did state that he believed that information
regarding the drinking habits of the petitioner’s biological parents was important, specifically
information that his mother was drinking during her pregnancy. Mr. Jones related that alcohol use
during pregnancy could have impacted the fetus and that the effect of alcohol was very well known
in 1997. Mr. Jones could not explain why information regarding fetal alcohol issues was not
presented to the jury. Later, during cross-examination, Mr. Jones conceded that the information
contained in the intake report regarding the abusive drinking habits of the petitioner’s biological
parents occurred two years after he was born. Mr. Jones could not explain why Dr. Ciocca was not
asked to perform any cognitive testing on the petitioner. Mr. Jones recalled that, although he and
doctors at the University of Tennessee discussed the impact of malnutrition upon the brain, this
information was not relayed to the jury. Mr. Jones further conceded that no effort was made to
determine the existence of multi-generational mental illness other than the information contained in
the records in the defense team’s possession. There was some information that the petitioner’s
brother “had a sex crime or an accusation,” however the issue of multi-generational sexual deviant
behavior was not necessarily explored. He could not explain why more information was not


                                                 -9-
presented regarding the lack of maternal care provided to the petitioner. Specifically, he could not
explain why information was not introduced to show that the bonding with the petitioner’s care-
giver, his twelve-year-old sister, was not equivalent to the bonding between a mother and child.

         Mr. Jones explained that the petitioner’s records from Riverbend Maximum Security
Institution were provided to Dr. Cioccca, including information that the petitioner was on psychiatric
medication. He could not recall whether Dr. Ciocca testified regarding these records or not. Mr.
Jones, however, could not attest that information that the petitioner was being treated for depression
or anxiety while on death row was supportive of the defense strategy that the petitioner was
psychiatrically damaged, as it was not uncommon for persons in prison, especially those on death
row, to be suffering from depression. Regarding Dr. Ciocca’s failure to address any issues, Mr.
Jones explained that had the defense team felt Dr. Ciocca unqualified, they would have sought the
assistance of another medical expert. Mr. Jones explained that his practice was to defer to the
findings of the medical expert. In other words, he would not shop around for an expert that would
say what he wanted them to say.

         Regarding his own performance in representing the petitioner, Mr. Jones stated “I did what
I felt should have been done at the time, and I don’t see any problems at this time.” Mr. Jones stated
that, during his career, he actually tried approximately fifty to sixty cases in which the death notice
was filed. Of these cases, only seven resulted in the death verdict. Mr. Jones further explained that
the petitioner was involved in both the 1991 and 1997 preparations for his sentencing trials,
including the determination as to which witnesses should be called. The petitioner was pleasant to
work with, and the defense team shared a good working relationship with him.

        Judge Loyce Lambert Ryan represented the petitioner in 1991 and in 1997 in her former
capacity as an assistant public defender assigned to the capital defense unit. Judge Ryan testified that
she did not present any evidence regarding any kind of fetal alcohol neural developmental cognitive
disorder nor did she present any evidence of any neuropsychological deficits based upon MRI’s or
any other kind of neural testing. Judge Ryan did not put on any evidence about a family history
showing a genetic predisposition to mental illness. Judge Ryan did state that evidence was presented
as to the family history. She stated that no evidence was presented regarding any mental disease
detected while the petitioner was in Riverbend. She explained that the defense team was concerned
with the fact that the jury would know that he was being retried, and there was an opinion that any
mental disease or defect in the record did not rise to the level that would be beneficial. Particularly,
she stated that she recalled that there was never a specific diagnosis, although the petitioner was
being medicated. Judge Ryan also affirmed that they chose not to present any evidence regarding
the petitioner’s behavior in prison. She explained this type of testimony was presented at the first
sentencing hearing in 1991. However, the defense team elected not to present this evidence at the
resentencing in 1997 when considered against the impact of the factual allegations.

       Judge Ryan stated that the defense presented evidence of the pattern and history of sexual
abuse and neglect in the petitioner’s family. She opined that, due to the nature of the allegations
involving a child, the defense had to be careful in their presentation to the jury so as not to make the


                                                 -10-
jurors feel that the defense was minimizing the factual circumstances of the crime. In this regard,
the decision was made, as part of trial strategy, to provide some type of explanation as to why this
possibly could have occurred, but not being a justification of why it occurred.

        Judge Ryan stated that a problem the defense team encountered was the fact that because the
petitioner was removed from the abusive familiar environment at two and one-half years of age the
atrocities that he allegedly witnessed could not be substantiated by lay witnesses. While the pattern
of abuse was present in the older siblings, what actually was experienced by the petitioner was
difficult to say. Specifically, Judge Ryan recalled that the lay witnesses were reluctant to say that
he could remember certain incidents because he was a baby.

        Judge Ryan acknowledged that she was aware of issues involving fetal alcohol syndrome in
1997. She also acknowledged that there was evidence of heavy drinking by the petitioner’s
biological parents. She could not recall how much information could have been developed on that
issue. She stated that the petitioner’s sister, Linda, was not very cooperative, and, while his other
sister was cooperative, a clear picture of the amount of alcohol consumed could not be painted.
Judge Ryan further stated that “there were not any physical manifestations that I recall in evaluating
of Mr. Keen that would indicate fetal alcohol.” Judge Ryan could not recall any documentation
supporting the allegation that there was substantial alcohol abuse by the petitioner’s mother at the
time of gestation.

        Judge Ryan stated that the defense team presented a picture of the petitioner not only until
the time he was abandoned by his birth parents but until the day of the offense. This included
reporting of molestation by another male and of incidents of juvenile delinquency. She stated that,
because of the transient nature of Serge and Gwendolyn Tooman, the petitioner’s biological parents,
it appeared futile to send investigators to places where the petitioner had lived twenty years ago in
an attempt to locate extended family members. Regarding the petitioner’s siblings, Judge Ryan
remarked that “they didn’t want to be involved.” Both of the petitioner’s biological sisters were
“reluctant” to testify.” She continued that “[t]hey came because they felt . . . they should come to
support their brother. But they were concerned that any information that they would give in this trial
would tend to cause him to be released, and they did not want their brother released.” Both sisters
feared him being free in society as a molester.

        Judge Ryan stated that both sisters would have been interviewed prior to trial to know that
they had substantive information that would be of value at trial and what they possibly may say. In
fact, Judge Ryan stated that the mitigation specialist made numerous contact with both sisters in
1991. She also confirmed that both sisters had signed releases for information.

         Comparing the 1991 and 1997 hearings, Judge Ryan commented that “[t]he approach we took
in ‘91 was not one that I recall that we decided was an incorrect approach. We had hoped to provide
more family participation, get another relative in or find his brother or get his sister here in ‘97 . .
. to help bolster the proof that we were putting forth.” She testified that “the concept of the cycle of
abuse was a theme initially that we started out with in ‘91, and the effects of abuse as a child on the


                                                 -11-
man or on a person as an adult we felt like the history of the children, his siblings as far as . . .adults
and their relationships with their children and with others hopefully that would illustrate that this is
how David came to be the person he was and this is how he possibly could have gotten in this
situation that he’s in now based on that cycle of abuse.” Judge Ryan commented that “part of the
problem is a lot of the more serious allegations of abuse in [the Tooman family] were not that which
happened to David Keen. The more serious allegations of sexual abuse and physical abuse really
pertained to his siblings.” She added that “as far as the foster home environment there was some
allegations on David’s part about some abuse, but there were no physical manifestations or no
documentation of that abuse.” Judge Ryan agreed that it was important to show a connection
between the maltreatment that the petitioner received between birth and age four and the time of the
crime and that was what the defense attempted to do. She stated that she was non-committal in her
opening statements with regard to what the proof would demonstrate because she was uncertain as
to whether the siblings would be responsive on the stand as witnesses.

        Joyce King, a social investigator with the Shelby County Public Defender’s Office, testified
that she was assigned to the petitioner’s 1991 case, assuming the role from another investigator
whom had already completed the initial client interviews. Ms. King interviewed the petitioner, the
Brieschkes, the petitioner’ s biological siblings, Linda and Allen, and a character witness. These
witnesses were re-interviewed prior to the 1997 hearing along with another sister, Darlene. These
interviews occurred both in person and by telephone.

        Samuel Buzzard, a retired child welfare worker for the State of Illinois Department of
Children and Family Services, testified that he began his career with the Department of Children and
Family Services in 1961. In 1965, Mr. Buzzard came into contact with the Tooman family as part
of his employment and he completed an intake study on the family.

        In March 1965, law enforcement officers contacted the Department of Children and Family
Services regarding a family needing help in Litchfield. On two occasions, Mr. Buzzard visited the
alleged home of the family, an apartment above an auto parts store. Both of his visits were
uneventful with either no one being at the residence or no one answering the door. Mr. Buzzard
finally gained access to the apartment after county officials had picked up the children after a
minister was contacted by the oldest child.

        Mr. Buzzard recalled that the apartment was “pretty dingy and dark.” It was “pretty sparsely
furnished.” There was trash all over the floor and “it appeared to be pretty dirty.” Mr. Buzzard also
recalled that there was animal feces on the floor. The apartment also contained things that probably
did not belong to the family, “items of merchandise, boxes, packages.” The oldest child, Bill, had
indicated that these were items that had been taken. Bill informed Mr. Buzzard and a deputy sheriff
that he was involved in a forgery at the direction of his parents and that “he was scared to death” of
his parents. At the time of Mr. Buzzard’s involvement, Serge and Gwendolyn Tooman had been
gone for at least a week. The older Tooman children had been feeding their younger siblings by
picking up pop bottles and selling them to buy food. The two eldest siblings determined that their
parents were not going to come back so Bill went to a minister for help. Mr. Buzzard related that


                                                   -12-
Bill was about seventeen years old, Linda was between fourteen and fifteen years of age, Darlene
was about five years old, Allen was about four years old and the petitioner was about two and one-
half years of age. The children spent at least one night at the county jail until they could be placed
in other housing arrangements. The children were initially placed with the Klepper family, although
Bill refused to go, wanting to stay at the jail. A month later, the children were placed in other foster
homes. The two younger boys went to the Pyle home, the two girls went to the Harms home, and
Bill went to the Johnson home. Bill remained with the Johnson family until he enlisted in the
military.

        Mr. Buzzard’s involvement with the Tooman children was rather short-lived. He had contact
with Bill until he left the service of the agency, within months. The younger four children were
placed in an emergency home, then to a foster home where another worker was assigned. During
the period that he was involved with the younger Tooman children, Mr. Buzzard remembered that
the petitioner was a “cute little kid” and was an “active little boy.” Linda Tooman was quiet; she
“had a very dull ethic, she kind of walked stooped shouldered. . . .” Bill, the oldest child, was very
polite and cooperative and appeared to be an ideal teenager. However, it appeared that Bill could
not maintain this façade for long. Conflict developed between Bill and the foster home and he began
having problems at school. Because Bill was close to reaching his eighteenth birthday, his foster
parents chose to keep him in their home so he would not have to be replaced. However, this couple
chose never to be foster parents again. Mr. Buzzard also learned from the mayor of Dwight, Illinois,
that the Tooman parents were suspected of involvement in a recent crime wave in Dwight.

        Mr. Buzzard testified that his knowledge of the family’s past was learned mostly through his
conversations with Bill. Bill related that the family made numerous moves. The older children were
constantly changing schools and there was talk about keeping them out of school because the parents
were afraid that they would be able to trace the family through school records. Bill reported that this
stepfather spent a large amount of time drinking at taverns. Serge Tooman was the biological father
of the petitioner and Allen. Willis Tooman, Serge’s cousin, was the father of the older three
children. Bill’s account of the Tooman’s lifestyle was corroborated by Mr. Buzzard’s investigation
with other agencies. Mr. Buzzard testified that this case was the only incident in his career where
the parents had totally abandoned their children. Mr. Buzzard stated that had the defense team
contacted him in either 1991 or 1997, he would have talked with them.

        Susan Buzzard, Samuel Buzzard’s wife, was also a social worker for the State of Illinois
Department of Children and Family Services. Mrs. Buzzard also became involved with the Tooman
children. Mrs. Buzzard placed the children in permanent foster homes and supervised the placement
until the petitioner and Allen were adopted by the Brieschkes. She remained in contact with the
other Tooman children until she left the agency in 1968. During this time, Mrs. Buzzard maintained
records on each of the children. A record was kept as to each child relating the child’s personality,
health, and relationship to their natural family.

        Mrs. Buzzard recalled that, during the children’s placement at the Klepper home, the
petitioner was an attractive child and “very wiggly.” Mrs. Klepper reported that the children “ate


                                                 -13-
a lot.” Mrs. Buzzard accompanied the petitioner and his brother Allen to Chicago regarding their
placement with the Brieschkes. They traveled by train and, while Allen sat relatively quiet, the
petitioner was jumping and running up the aisles. Mrs. Buzzard explained to the petitioner and Allen
that the Brieschkes were adopting them and that Brieschke would be their new last name. Allen was
very unhappy with leaving his foster home; the petitioner did not have the same reaction. Once at
the Brieschke home, Allen attached to his new family; the petitioner did not. In September 1966,
the children were evaluated by Dr. Robert Alexander. Dr. Alexander’s evaluation indicated that the
petitioner was “hyperactive,” and that he should be given an electroencephalogram. This was done
and the results were entirely normal. Dr. Alexander also recommended that the petitioner be given
medication to slow him down. The Brieschkes declined the opportunity to put the petitioner on this
type of medication.

       Mrs. Buzzard stated that she was not contacted by any members of the defense team in either
1991 or 1997. She stated that had she been asked to testify that she would have.

        Chaplain Nolan Gnewuch, an ordained Lutheran minister, testified that he previously was
employed with the Lutheran Children’s Friend Society, primarily responsible for adoptive studies,
placement, supervision, marriage and family counseling and consulting churches. At some point
during the boys’ teenage years, Chaplain Gnewuch was contacted by the Brieschkes regarding their
adopted children, the petitioner and Allen. The Brieschkes indicated that the children were having
academic difficulties in school and were having difficulties in making any kind of emotional
attachments. Chaplain Gnewuch stated that the petitioner and Allen “looked like kids who had had
some really severe emotional damage of early on in life where they didn’t get basic kinds of needs
met, and as a result couldn’t attach with other people.” The children did not have friends at school
and did not bond with their adoptive parents. The Brieschkes’ biological children, on the other hand,
were well-adjusted and doing fine. The Brieschkes, from what was observed, were doing everything
they possibly could as parents; they set realistic limits, they were emotionally present for the
children, they were working with the school, and they had a good relationship with their church. The
Brieschkes, however, were frustrated with the fact that the boys were not reliable and could not be
trusted. Chaplain Gnewuch classified the boys as two of the most difficult cases that he has had to
deal with. He expressed his opinion that the damage could have resulted from the fact that the boys
did not receive consistent care giving, mothering, and fathering during their formative years between
one and five.

       Chaplain Gnewuch explained that his counseling of the boys lasted approximately one to two
years. He could not explain why the counseling stopped. He stated that he and Allen now lived in
the same community. He has observed that Allen’s inability to bond with others has not changed
over the years. He further stated that he was never contacted by any member of the petitioner’s
defense team in 1991 or 1997. He added that had he been contacted he would have testified for the
defense. On cross-examination, Chaplain Gnewuch stated that all of his records regarding the
counseling sessions were destroyed under the law of the State of Wisconsin.




                                                -14-
         Dr. Tara Wass, an assistant professor of Early Childhood Development at the University of
Tennessee, was recognized as an expert by the court in developmental psychology and fetal alcohol
effects. Dr. Wass was contacted regarding the likelihood that fetal alcohol exposure may have been
an issue in the petitioner’s development. Based upon preliminary discussions about the petitioner’s
early family history, including reports of heavy frequent use of alcohol, Dr. Wass was of the opinion
that it was “quite possible that could be a factor here.” Dr. Wass then reviewed information and
records and conducted an evaluation of the petitioner. Included in the information reviewed were
Intake Summaries written at the time the petitioner was placed in foster care, academic records,
psychological testing reports, the Winnebago Health Institute report, and files maintained by the
petitioner’s sister. As a result of her evaluation, Dr. Wass concluded that there “is evidence that is
highly suggestive that there was chronic frequent use of – use and abuse of alcohol by [the
petitioner’s] mother, that he exhibited a wide range of problems during early childhood, pre-school
years, his academic years that would be consistent with a pattern of deficits that we observe in
children who are alcohol affected.”

        Dr. Wass explained that “fetal alcohol syndrome is a recognized . . . medical diagnosis. It’s
a condition . . . that’s diagnosed on the basis of that triad of feature. Fetal alcohol effects is actually
a term that emerged through . . . the research literature and some lay population literature that’s not
advocated for use by experts in the field.” In describing the wide spectrum of effects connected with
prenatal alcohol use, Dr. Wass differentiated several conditions:

        . . . Partial FAS is differentiated from FAS primarily in that the children are lacking
        one or more of those three criteria. It’s usually that some of the facial
        dysmorphology is there but not all of the facial dysmorphology, so we typically look
        at the eye region and the mouth region when you’re diagnosing an individual or
        looking at a diagnosis of fetal alcohol syndrome.

               Often in the case of a child . . . with partial alcohol syndrome, they have the
        dysmorphology in one area of their face but not in both . . . . And you may also be
        missing in the growth retardation.

                   Alcohol related birth defects are structural abnormalities that are associated
        with prenatal alcohol exposure, so that could be cardiac defects . . ., skeletal defects
        . . . . In that case you also have to document maternal alcohol exposure but you don’t
        have to have facial dysmorphology or growth retardation . . . .

                 Alcohol related neural developmental disorder, you also have to document a
        pattern of maternal alcohol exposure. You do not have to see growth retardation or
        the facial dymorphology, but what you want to see is either some evidence of central
        nervous system impairment and/or a complex pattern of neural behavior or cognitive
        deficit that can’t otherwise be explained.




                                                   -15-
        Dr. Wass testified that she does not hold a medical degree and that fetal alcohol syndrome
is a medical diagnosis. She stated that she is, therefore, not qualified to diagnose the disorder. Dr.
Wass maintained, however, that there are psychological manifestations in persons with fetal alcohol
related conditions, such as “a reduction in IQ,” “short term memory deficits,” “deficits in executive
functioning” (an umbrella term including skills such as working memory, response inhibition, and
impulsivity). She added that other common manifestations are “high rates of attention deficit
hyperactivity disorder, psychiatric illnesses, delinquency, academic failure and learning disabilities.”
Dr. Wass stated that, while it was impossible to undo the damage of in utero alcohol exposure, there
are protective factors that are associated with better outcomes. These protective factors include
structured environments. Such protective factors act as a shield for the alcohol affected individual
lessening the risk of secondary disabilities such as inappropriate sexual activity.

        Two categories of fetal alcohol syndrome are recognized, one with confirmed maternal
drinking and one without the confirmation of maternal drinking. Without a report of maternal
drinking, a diagnosis of fetal alcohol syndrome may be made if the full facial dysmorphology is
present. The facial dysmorphology is “small eye openings, “ that is the eyes of a person with fetal
alcohol syndrome appear wider apart although the effect is due to their eyes being smaller. Another
facial dysmorphology involves abnormalities of the philtrum, the area between the nose and the
upper lip. Typical abnormalities include a very thin upper lip and a smoothing of the bow in the lip.
Other physical abnormalities include “a weak chin,” “the presence of clown eyebrows,” and an
“excess presence of hair.” Dr. Wass stated that, because facial features change from the time of birth
until death, “the optimal time to diagnose the disorder is really from between the ages of about three
until just prior to puberty.”

        Regarding the petitioner, Dr. Wass again asserted that she was not qualified to diagnose the
petitioner. However, after reviewing the material provided, she did conclude that it was likely that
the petitioner was exposed to a pattern of frequent heavy alcohol exposure based in part upon the
social problems that his mother was experiencing. In this regard, Dr. Wass concluded that there is
evidence of a pattern of excessive and frequent alcohol intake. She added that “on the basis of the
maternal alcohol exposure and the fact that his developmental presentation is consistent with what
we see in individuals with heavy exposure to alcohol, that we would presume that those behaviors
are reflective of brain damage.” Dr. Wass later conceded that she had no definitive proof that the
petitioner’s mother was drinking while she was pregnant with the petitioner. While she testified that
the petitioner’s “developmental profile is very suggestive of organic brain damage,” she could not
conclusively determine that he did, in fact, have brain damage. She continued that

       . . . there was evidence of reductions in intellectual capacity. So, for example, in
       1972, . . . the school system referred him to see a psychologist who conducted an IQ
       Test . . . and estimated his IQ to be an 84.

       That was preceded by a wide range of . . . academic failure prior to that point, so I
       believe that was in the second grade. He was already failing by that point. . . .



                                                 -16-
       In addition to that we were seeing what the psychologists referred to as hyper kinesis
       or minimal brain damage which we would refer to now as ADHD, Attention Deficit
       Hyperactivity Disorder. . . .

       ...

       So intellectual and deficits in IQ or intelligence, academic failure, delays in certain
       developmental milestones. So, for example the reports . . . indicated that he was
       speaking at that time although it was somewhat indistinct and difficult to understand.
       ...
       ...
       His cognitive skills . . . were not very good early on. So he didn’t know how to color.
       . . he didn’t know his numbers. . . .

       And so there were these clear deficits in rather concrete basic cognitive skills that you
       were seeing. His play behavior was atypical in the sense that he had an inability to
       play with others, just didn’t understand the reciprocity that goes on in the play
       behavior. . . .
       ...

       We see the emergence of . . . delinquent behavior very on, very early stealing from
       peers. . . .
       ...

       Also the lying which is also very typical in this population. . . . the early onset of
       substance abuse. . . . We see an increased risk of substance abuse over and above
       what we just see in children of alcoholics when there’s parental exposure to alcohol.
       ...

       The reports that he was often used as a scapegoat and kind of conned by his . . .
       peers. . . .

       And so all of those behaviors are consistent with what we would expect to see in
       alcohol exposed individuals, as well as the over friendliness, not really having those
       boundaries between close individuals and strangers that we expect to be there, the
       over eagerness and need to be liked.


Dr. Wass added that the petitioner also displayed deficits in arithmetic, consistent with primary
disabilities observed following alcohol exposure. The petitioner also exhibited seven out of the eight


                                                 -17-
frequently exhibited identified secondary disabilities. Those seven factors are difficulty maintaining
consistent employment, inappropriate sexual behavior, a history of mental illness, confinement,
history of confinement in a mental institution or in prison, disrupted school experience, trouble with
the law and substance abuse. Regarding his life with his adoptive family, Dr. Wass commented that
this was not a nurturing home to the petitioner, not because the Brieschkes were not good parents,
but because the petitioner did not feel nurtured.

        Dr. Wass testified that evidence of fetal alcohol syndrome was recognized and identified in
this country in 1973. By 1989, Congress mandated warning labels on alcoholic beverages. She
stated that experts would have been available in both 1991 and 1997 to testify regarding fetal alcohol
syndrome. Dr. Wass related fetal alcohol syndrome and the circumstances of the murder in this case
by pointing to the fact that the person with fetal alcohol syndrome is unable to think through the
consequences of one’s actions, is unable to control one’s behavior and is prone to inappropriate
sexual behavior. Although Dr. Wass was not able to conclude that the petitioner suffers from fetal
alcohol syndrome, she did believe that his behavior, developmental history and the history of
maternal alcohol exposure is consistent with alcohol related neural developmental disorder.

        Edna Tooman is the sister of the petitioner’s father, Serge Tooman. The first time Edna
Tooman ever met her nephew was in March 1999. Ms. Tooman testified that her father was an
alcoholic. He was often drunk and the children were afraid of him. She related that her father was
physically abusive toward her brother, Serge, the petitioner’s father, and was sexually abusive toward
her sister, Maxine.

         Ms. Tooman testified that her paternal grandmother “had went insane . . . because they had
to call the Sheriff . . . to come and take her away.” She related that her grandmother was having
delusions: she thought that her son was crucified upside down on a cross and she was seeing people
in her backyard. Ms. Tooman’s grandmother remained in the state mental institution until her death.
Ms. Tooman testified that she had a son who was schizophrenic. She stated that she had eight
children. A son, Richard, and another, Terry, were diagnosed schizophrenic. Another son, Steve,
went to prison for “doing drugs.” A daughter, Kathy, is an alcoholic. A son, Paul, “drinks heavy
but he does well.” A daughter, Sarah, is “an emotional wreck,” suffering from extreme major
depression. Judy, another daughter, has anxiety. Ms. Tooman also adopted three of her
grandchildren. One grandson has a drug problem and the two girls suffer from depression. Ms.
Tooman further related that two of her uncles had alcohol problems and another cousin was
diagnosed with schizophrenia. Ms. Tooman opined that had her brother, Serge, been evaluated, he
would have probably been diagnosed with a mental illness as well. Ms. Tooman added that she,
herself, had been diagnosed with anxiety disorder.

        While Ms. Tooman and her brother, Serge, were very close, Ms. Tooman related that her
brother had a “mean streak.” For an example of his behavior, Ms. Tooman testified that Serge would
often wring the neck of the family’s goose just to torment the goose. She recalled that her brother
would laugh when he was wringing the goose’s neck. Serge dropped out of school in the fourth
grade at the age of fourteen and was not very smart. Serge enlisted in the army when he was


                                                -18-
eighteen and served overseas during the Korean War. When he returned from the war, Serge began
drinking “real heavy’ and would often “get out of control.”

       Edna Tooman stated that her uncle, Willis Tooman, married the petitioner’s mother
Gwendolyn. Ms. Tooman was living in California during the time when Gwendolyn married her
brother, Serge. Although not present, Ms. Tooman had heard through her mother that Gwendolyn
had Allen early. She also reported that her brother, Serge, attempted to sell a food voucher so he and
Gwendolyn could go drinking. Serge and Gwendolyn also left the children alone while they went
drinking and, on one occasion, Ms. Tooman’s mother discovered the baby, Allen, covered with a
blanket and blue.

        The petitioner’s sister, Linda Gehringer, testified at both the 1991 and 1997 trials. Ms.
Gehringer’s testimony covered the petitioner’s use of various names, that she lived with her brother
until he was three years old and that she and the petitioner had different fathers but both were
Toomans.

        Ms. Gehringer was born in 1950 in Findlay, Ohio. Her parents are Gwendolyn and Willis
Tooman. She has a brother, Bill, and a sister Darlene. A brother, Ray, died when he was three years
old, and another brother Billy, was put in a home for the mentally retarded. Billy was later adopted.
Ms. Gehringer recalled that her mother felt that Ray was “gifted” and felt it “very unfair that my
retarded brother . . . lived and that Ray had died.” Her father, Willis Tooman, was an over-the-road
truck driver and when he was not at home, her mother “went to bars a lot and didn’t come home a
lot.” During this period, the Tooman children were often taken to a children’s home after neighbors
would call the authorities.

        Although Gwendolyn Tooman was a registered nurse, she stopped working as a nurse after
Ray’s death. Gwendolyn then began waitressing in a bar. Ms. Gehringer described her mother as
very strict and not affectionate. She stated that, on one occasion, her mother had chased her through
the house with an ax because she thought she had lied about being scratched by a cat. She stated that
her mother had been drinking prior to this incident. Ms. Gehringer stated that she could not recall
a time when drinking was not a part of her mother’s every day life. Willis Tooman was also a heavy
drinker. Willis Tooman stopped living with the family when Ms. Gehringer was between seven and
nine years of age.

        Gwendolyn Tooman later married Serge Tooman, her first husband’s nephew. This marriage
led to a very abusive situation. Both Serge and Gwendolyn drank and they both physically abused
the children. Ms. Gehringer recalled that when Serge came home drunk he would beat the children
with whatever he could find: an electrical cord, a two-by-four, or he would just kick them in the
stomach.

        Ms. Gehringer testified that it was her job to take care of the three babies when her mother
and stepfather went to work. This used to be Bill’s responsibility, but when the six-month-old
petitioner was diagnosed with malnutrition, her parents blamed Bill for eating the food and placed


                                                -19-
the burden on the ten-year-old Gehringer. Although she was their caretaker and felt protective of
her younger siblings, Ms. Gehringer did not cuddle the babies or play with them. Ms. Gehringer
recalled an especially disturbing incident with her stepfather. She was supposed to keep a tea kettle
on the stove with water to keep moisture in the air. She fell asleep and the kettle boiled dry. When
Serge and her mother got home, Serge lined the children up and placed the tea kettle on Ms.
Gehringer’s hand. When she would not cry, he returned the kettle to the stove until it got red hot and
then placed it back on her hand until she cried. Her parents never sought medical attention for the
burns. Ms. Gehringer also described incidents where the children would go hide in the cornfields
to keep themselves safe from their drunken stepfather. On other occasions, Serge Tooman would
make his children watch him as he killed their pets. She stated that he would slit the throats of their
pet dogs. When her mother was in the hospital giving birth to the petitioner, Serge Tooman raped
her. This was reported to her mother but nothing ever became of the report. She stated that Serge’s
father also sexually abused her when she was ten years old. Gwendolyn Tooman told her daughter
that it was her fault and that she “had [to] wear long dresses to school.” Ms. Gehringer stated that
she hated Serge Tooman. Ms. Gehringer testified that the lack of food was always an issue in the
house. The older children took cabbage wedges to school for lunch and there were times when all
they had to eat were potatoes.

       After Allen was born, the family left Findlay, Ohio, and hitchhiked to Texas. They stayed
in Texarkana for about a year where the abusive lifestyle resumed. The family then went to Illinois.
She recalled that after her stepfather violated his probation, the family moved twenty-six times in
two years. During this period, the family kept changing their last name and, sometimes, they would
change their first names also.

        The last time Ms. Gehringer saw her stepfather and mother was when she was twelve years
old. Her parents left one morning for work and never came back. Before leaving, the Toomans had
instructed the children to “just watch out the window for them to come back and not to answer the
door for anyone else. So we waited there for ten days.” The petitioner was two years old at this
time. The oldest brother, Bill, collected soda bottles for money to buy dog bones for the children
to eat. Eventually, Bill sought assistance from the pastor at the church across the street. The
children were then taken to jail and stayed there for three days while waiting for Children Services
to find a place for them.

        The children were placed in a foster home. They stayed at this residence for three months.
The two girls were then placed in a foster home together, the two younger boys went to a family in
Mount Olive and Bill went to a foster home in Nakomis. Ms. Gehringer stated that both of her
younger brothers would cry when separated from their other siblings. Ms. Gehringer only saw her
two younger brothers three more times before they were adopted. Ms. Gehringer remained in the
foster program until she was eighteen years old at which time she entered the Miriama Girls Home
in Springfield, Illinois. Her younger sister, Darlene, was adopted by their foster parents.

       Ms. Gehringer related that she last saw her oldest brother, Bill, in 1990. Bill lived in the
same city as she did and she knew that he had married and has a daughter. Ms. Gehringer reported


                                                 -20-
that this relationship deteriorated as Bill had beat his wife and molested his young daughter. This
marriage ended in divorce. Bill later got involved with another woman. Ms. Gehringer learned from
this woman’s parents that Bill had “taken [her] out in the desert and beat her and literally pulled out
almost all of her hair and left her there.” She stated that Bill had been in prison and was involved
with drugs.

        Ms. Gehringer testified that she has been diagnosed with post-traumatic stress syndrome and
as a result experiences depression and anxiety. She is currently taking anti-depressants.

         When she reached adulthood, Ms. Gehringer contacted the Illinois Department of Children
and Family Services and the Hancock County Ohio Children’s Home to gather information about
her past. She provided all of this information to the petitioner’s defense counsel. Ms. Gehringer
testified that the first time that she was contacted by the petitioner’s defense team was a month
before his first sentencing hearing. She did provide the defense team with all of the documents that
she had. She only recalled one meeting with the defense team prior to the 1997 sentencing hearing.

        Darlene Krone, the petitioner’s half-sister, stated that she was not asked to testify at the 1991
hearing. The first time she was contacted was for the resentencing in 1997. She was asked about
her relationship with the petitioner, her age in comparison with his, “just some basic questions.” She
was not asked about their life in the Tooman family or about her life after her adoption. During a
meeting at the public defender’s office, Ms. Krone was asked for details about her life history. She
stated that she had difficulty opening up to these people because she did not know them.

        Ms. Krone testified that she was adopted by Stanley and Juanita Harms. She stated that,
although she loved her adoptive parents, their relationship was strained. She was never close and
did not have the ability to assure her adoptive mother that she loved her. After receiving counseling
as an adult, Ms. Krone was able to understand that the strain in the relationship was due to her
inability to bond.

        Ms. Krone testified that, when she was fifteen years old, she was raped by her twenty-seven-
year-old brother, Bill. She could not understand what was happening although she wanted a
relationship with her brother. Ms. Krone stated that she married when she was eighteen years old
and that she has been married to this same man for the past twenty-four years. Notwithstanding this
fact, Ms. Krone testified that she has not been able to develop a close relationship with her husband.
She stated that she has one son, Kyle. She felt that her parenting skills were lacking and that
something was not normal in that she did not feel for her child the way other parents felt for their
children. Ms. Krone stated that, since her son was six years old, he had suffered from attention
deficit with hyperactivity and he also deals with depression and obsessive compulsive disorder. He
was treated with medications for these conditions through his early teens. Ms. Krone stated that she
has been in counseling and has attempted suicide. She has been diagnosed with major depression
and is on medication.




                                                  -21-
        Regarding her life with the Toomans, Ms. Krone had little recollection of her mother, other
than rubbing the backs of her legs. As for Serge Tooman, Ms. Krone recalled the incident where he
placed the hot teapot on Linda’s hand, an incident where he made her pick out a pig, he killed it, and
made her eat the tail, and an incident where he made her eat a bar of soap.

       Allen Brieschke, the petitioner’s brother, testified at both the 1991 and 1997 sentencing
hearings. He stated that he was initially contacted a week before the first trial in 1991. Alan
Brieschke stated that he had brought certain documents with him, but that the defense team was
already in possession of these documents.

        Allen Brieschke testified that Serge Tooman would kill animals in front of them. He recalled
Serge Tooman killed two baby chicks and a pig. He also stated that Serge Tooman hit him on the
mouth repeatedly, causing severe dental damage later in life. He differentiated the spankings from
Serge with that of his adoptive father Robert Brieschke. The children never knew the reasons behind
Serge’s beatings, while his adoptive father would tell them why they were being punished. His
biological mother also hit him in the mouth and the hands. He could not recall ever receiving any
nurturing from his biological mother, rather, any nurturing came from his sister, Linda. Allen
Brieschke stated that the Pyles, the Tooman children’s foster family, also beat the children.

        Allen Brieschke is divorced. He has a fifteen-year-old daughter but she was adopted by his
ex-wife’s present husband. His daughter is presently in foster care as a result of an investigation of
child pornography. Allen Brieschke suffers from post-traumatic stress disorder. He is employed and
has an associates degree in security loss prevention.

        Dan Brieschke testified that the petitioner was his adopted brother. Dan Brieschke is five
years older than the petitioner. He was ten years old when his parents adopted the petitioner and
Allen. Dan Brieschke recalled that he and his sister were supportive and involved in the decision
to adopt another member of the family. Dan Brieschke stated that, although they were eager to
welcome their adoptive siblings into their home, the petitioner and Allen were not immediately
responsive. He explained that he and his sister would play together but Allen and the petitioner
chose to amuse themselves individually. He stated that the family was not rich but was not lacking
anything. Their father had a college degree and their mother stayed at home with them when they
were children. Both parents were very supportive of the children and played games with them.

       When the petitioner and Allen were added to the household, a new dynamic emerged in the
household. Their mother was frustrated that the petitioner and Allen would not listen. The petitioner
and Allen did not have any friends in the neighborhood, did not bring friends to the house and did
not have sleep overs. Dan Brieschke stated that his adopted brothers were less mature than other
children their age.

       Dan Brieschke recalled an incident where he unexpectedly walked into his brothers’ room,
and Allen informed him that the petitioner was encouraging the dog to “lick his private parts.” Dan
Brieschke stated that, although he loves his adopted brothers unconditionally, the relationship he had


                                                -22-
hoped for never materialized. He has not had contact with the petitioner for the past fifteen years.
He has limited contact with Allen.

        Cynthia Wachs, the petitioner’s sister through adoption, testified that she was twelve years
old when her parents adopted the petitioner and Allen Tooman. Ms. Wachs stated that, excluding
the present proceedings, she was never contacted regarding her brother’s case.

        Ms. Wachs testified that she was present during the first meeting between her adopted
brothers and her family. Her impressions from this meeting of her brothers were that they were cute
and “looked very lovable.” Later, when the boys were coming to live with them permanently, Ms.
Wachs recalled that she was very excited. However, she stated that the petitioner and Allen would
cry at night and sometimes they were awoken by nightmares. She stated that, during these rough
times, both of her parents comforted the boys and assured them that they would be there and love
them always.

        Ms. Wachs stated that the petitioner and Allen never assimilated into their family. She
noticed that their mother began raising her voice and becoming frustrated with the situation with the
boys. She explained that the petitioner and Allen never seemed to comprehend that “there was time
when no meant no, or yes meant yes.” Ms. Wachs also commented that her adopted brothers were
“immature for their ages,” “[t]hey didn’t seem to have the same sense of self. . . .” She described
the boys as “clumsy and awkward with certain things.” Ms. Wachs stated that the petitioner was
“able to interact” with kids his own age, but she could not remember that he “had close connections
with kids of his own age.” She testified that she loved her adopted brothers unconditionally,
however she felt that she never bonded with them. Although she has grown closer to Allen in their
adult years, she never had the opportunity to develop that sort of relationship with the petitioner
because he ran away from home when he was sixteen and she was living in another state.

        Evelyn Brieschke, the petitioner’s adoptive mother, testified that she and her husband
adopted the petitioner and his brother Allen in December 1967. The petitioner’s name was then
changed to Darrell Brieschke. Mrs. Brieschke stated that some time after the adoption was final, the
Brieschkes received information regarding their adopted sons’ situation prior to their placement in
foster care. To Mrs. Brieschke, this information offered some explanation as to the petitioner’s
behavior.

        Mrs. Brieschke testified that, at the time of his adoption, the petitioner appeared quite
younger than his actual age. She believed that the petitoiner’s appearance was due, in part, to being
malnourished. She stated that the petitioner did not know what a crayon was and did not know how
to color. Her adopted sons did not know how to share. Although the boys had friends, “some of the
friends were not ideal.” Neighbors told the Brieschkes that the petitioner and Allen did not appear
“normal.” Although they attempted to get close to the petitioner, Mrs. Brieschke felt that the
petitioner wanted to have friends that were trouble makers. She stated that the petitioner and Allen
had difficulty in following rules, including doing their homework. Regarding inappropriate



                                                -23-
behavior, Mrs. Brieschke related that the family had a pet Schnauzer. Mrs. Brieschke caught the
petitioner, when he was eleven years old, attempting to have sex with the dog.

        Regarding his education, Mrs. Brieschke recalled that, during part of his education he was
in an open concept classroom; this confused the petitioner. However, during one year where he was
in a self-contained classroom, “he did so well that year it was amazing.” She stated that the
petitioner never finished his education.

        Mrs. Brieschke testified at both the 1991 and 1997 sentencing hearings. She recalled her first
meeting with the petitioner’s defense counsel in 1988. She stated that they told her that the
petitioner did not have much of a chance. Her next meeting with defense counsel was the day
immediately before trial. She could not recall the defense team ever requesting any documents from
her.

          Robert Brieschke, the petitioner’s adoptive father, testified that, shortly after the petitioner
and Allen arrived in their household, he noticed that the boys were more “unsettled” than what they
had expected. He stated that the boys had “[d]ifficulty accepting simple requests to do things or to
stop doing things, hyperactive.” The boys “did not speak distinctly,” they did not play with others,
and they were limited in their attention span. Mr. Brieschke was amazed at how much the boys ate.
In fact, he described their early eating habits as “gorging” until they complained that they hurt. This
behavior lessened after a month or so. He stated that both the petitioner and Allen engaged in
activities that were solitary in nature.

        Mr. Brieschke related that the petitioner had some legal problems before he left their home.
While in middle school, the petitioner and a group of boys shoplifted from a local grocery store. He
was also involved in an auto theft. After this incident, the petitioner was sent to Winnebago Hospital
for evaluation. Also during this time period, the petitioner’s sister, Linda, reported that the petitioner
had molested one of her smaller children during a visit to her house.

        Kevin Whaley testified that he and the petitioner were employed by Earth Industrial Waste
Management in 1990. He recalled that the petitioner “seemed to work well with others. He wasn’t
really real social with other employees. . . .”

        Dr. Mark Douglas Cunningham, a clinical and forensic psychologist, was retained as an
expert to provide evaluation of mitigating psychological factors and testimony that could have been
provided at his 1997 sentencing hearing. In preparation for his evaluation, Dr. Cunningham
reviewed the transcript of the 1997 hearing in its entirety and reviewed a portion of the 1991 hearing.
He was also provided the petitioner’s Intake File from the time the State of Illinois assumed custody
of the petitioner until his adoption by the Brieschkes, the Winnebago Mental Health records, school
record, medical records from River Bend during the period of 1991 through 1997, Dr. Auble’s
preliminary report and various other documents. Dr. Cunningham interviewed the petitioner for
almost six hours on November 19, 2001. He also interviewed numerous persons who have had
associations and relationships with the petitioner.


                                                  -24-
         Dr. Cunningham opined that numerous areas of mitigation needed further investigation,
including the history of the petitioner’s extended family members. He related that the way a child
is treated in early childhood is fundamentally important as it lays the ground work for the rest of the
emotional and relationship structure and capability that this person will have. He stated that damage
at this stage is catastrophic. Dr. Cunningham testified “[t]he first four years of life are the most
important period of time in someone’s life for their emotional and psychological development and
their ultimate psychological health and whether they’re going to turn out to be a law abiding citizen
and to have functional relationships with other people.” This fact is true regardless of one’s memory
of these early years.

         Dr. Cunningham then discussed the importance of multi-generational family history in capital
sentencing evaluations. First, one may be genetically predisposed to many characteristics, such as
personality disorders, psychological disorders and substance abuse. By examining the history of a
client’s family members, one is able to obtain a glimpse of what the client is predisposed to. Second,
patterns of behavior within a family system are generationally transmitted and become ways in which
people organize their lives. Additionally, there is modeling of behavior. Next, there is sequential
damage. The petitioner was neglected and abused by his parents; his parents were neglected and
abused by their parents. Thus, in the context of a capital murder, one may say that the petitioner’s
behavior is at the end of a generational pyramid that involves genetic influences, involves family
scripts, and involves sequential damage from generation to generation.

       Discussing these factors with the petitioner’s case, Dr. Cunningham noted that “there is
generational sexual deviation and abuse directed toward children.” The family’s sexual dysfunction
transcends generations and impacts both genders. Regarding the petitioner’s siblings, Dr.
Cunningham noted the importance of their backgrounds. Specifically, the children share genetic
parenting or partial genetic parenting. The children shared the same climate of abuse and neglect.
He added that, to the extent that the State would argue that time diminishes the damage of this
background, the continuing damaging impact upon the siblings is relevant.

        Dr. Cunningham opined that, although the petitioner had a choice on whether or not to
commit the offense, he did not have the same choice as everyone else due to his background and
history. As a result of the emotional damage that had been done, the fetal alcohol exposure, the
neural cognitive effects, his own attention deficit disorder, the petitioner was unable to find stability
in any regular life situation. The risk factors present in the petitioner’s life each contributed to a
developmental and life trajectory that concluded tragically in this offense. Dr. Cunningham stated
that mental health knowledge was available in 1991 and in 1997 to reach these conclusions.

       Regarding previous psychologists, Drs. Hutson and Ciocca, Dr. Cunningham found that these
psychologists were provided insufficient tools by the defense team. Specifically, Dr. Cunningham
found deficiencies in the investigation and interviewing of family members, a fundamental part of
a psychological evaluation. Neither doctor met with any family member individually. Also, there
was a complete lack of any investigation into non-family members. Finally, absent from Dr. Hutson



                                                  -25-
and Dr. Ciocca’s consideration were any participation by other experts such as experts on fetal
alcohol exposure, a neuropsychologist, etc.

        Dr. Cunningham provided a detailed litany of the presence of psychological disorder in the
petitioner’s family system. He determined that “there is a significant genetic heritability or genetic
predisposition to mental illness.” Similarly, there is an increased incidence of persons who abandon
their children, of persons who sexually molest children, and persons who have significant alcohol
and drug histories present in the petitioner’s family.

        Dr. Cunningham provided a summary as to the petitioner. The petitioner’s problems began
in childhood. At the time he came into the custody of the Brieschkes, the petitioner was displaying
broad developmental delay. His speech was poor, he did not know how to engage in interactive play
but only in parallel play. His motor coordination was poor. His bladder control was a problem for
a number of years. There are neural cognitive symptoms in terms of being able to hold and complete
sequential instructions and being able to learn about boundaries and limits. The petitioner was
unable to establish a significant emotional bond. At age seventeen, the petitioner’s peer relationships
were described as being quite disturbed. There was also impulsivity. The petitioner was
overwhelmed by the lack of structure. The petitioner was ostracized and rejected by his peers. There
was a beginning of psychosis in the sense that the petitioner may have been misperceiving the world
around him. There was inappropriate sexual behavior. The petitioner showed a preoccupation or
interest in younger children. There was conduct disturbance during the petitioner’s adolescence.
There was also the beginning of alcohol and substance abuse. Since his arrival at Riverbend, the
petitioner suffers from recurrent nightmares, a depressed mood, sleep disturbance, appetite
disturbance, anxiety, suicidal ideation, low self-esteem, auditory hallucinations, racing thoughts, and
hypomanic episodes. Dr. Cunningham concluded that the petitioner’s psychological status has
historically and chronically been disturbed. The petitioner’s thinking and relationship pattern has
never been normal. He opined that the outcomes of that have been destructive in many ways,
including the way he bonds to other people, his ability to learn, his ability to regulate his behavior
and his sexual relationships.

        Dr. Cunningham discussed extensively the impact of the failure of the petitioner to receive
nurturing early in life. He stated that the nurturing is what turns a baby into a human being who
cares about other persons. He stated that the pervasive emotional starvation of a child’s need for
nurturance is catastrophic in its effects on later functioning.

        Regarding the evidence presented at the 1997 hearing, Dr. Cunningham stated that only a
partial picture of the petitioner was presented. Specifically, he stated that the defense failed to
present testimony of the catastrophic impact of the disrupted attachment, and that the damage is
present regardless of what the child can remember. He stated that, although the abuse was described
in detail, there was no nexus presented between the abuse and the present offense.

       Dr. Pamela Auble, a clinical neuropsychologist, was asked to evaluate the petitioner
regarding his level of functioning in terms of his mental abilities, his memory, his thinking and


                                                 -26-
whether there was evidence of brain injury. In this capacity, Dr. Auble met with the petitioner and
performed intellectual testing, testing of his memory, testing of his mental flexibility, a battery of
neuropsychological testing, language testing, testing of motor skills, testing of his ability to read and
write and conducted an interview of the petitioner. Dr. Auble testified that “[t]he general results of
the tests were that [the petitioner] had what I would consider abnormalities in his functioning in
several areas.” She explained that the petitioner had particular difficulty with time tests and with
tests which had him learn and remember information that he was told. Dr. Auble stated that she did
not feel that the petitioner was “faking problems.”

         Dr. Auble provided a summary of her testing results. The petitioner’s IQ was 73 with some
variability among the thirteen subtests. The petitioner’s delayed memory was significantly below
what would be expected. The petitioner had trouble with tests that required quick responding and
on tests that involved reasoning. The petitioner had trouble with vocabulary fluency. The petitioner
read at an eleven-year-old’s level, his written language is that of a ten-year-old, and his math skills
were those of a ten-year-old. Testing revealed deficits and impairments when he had to remember
information after a delay. Dr. Auble stated that the petitioner’s deficits were “patchy,” but appeared
to involve “a lot of timed tests.” He had trouble with quick responding and specific deficits in verbal
memory. She added that “there were indications that there was something wrong with him but it
wasn’t clear from the test data that there was a specific, one specific area of the brain, and it also did
not look like a diffuse damage in that other words some people just have a generalized lowering of
all their scores. He didn’t look like that. He was okay on some things and not so good on others.”


         As a result of her report, Dr. Auble recommended that the results of her testing, while not
clear by themselves, be further investigated in terms of fetal alcohol syndrome and in terms of
medical imaging. Dr. Auble stated that medical imaging was completed by Dr. Kessler and she was
privy to those results. Dr. Kessler’s findings show that “there are multiple small areas of damage
in the subcortical region of [the petitioner’s] brain that seem to be vascular in nature.” Dr. Auble
explained that these were linked to hypertension or migraines. Although this type of damage was
common in elderly persons, it is uncommon to see this type of damage in a person as young as the
petitioner. This damage results in deficits in concentration, attention and response stage. Decline
in intelligence and other abilities may be observed as well.

        Dr. Auble again affirmed that it was her opinion that the petitioner was not malingering. She
noted that the petitioner’s IQ testing had been variable over the years, 105 when he was four years
old, 92 when he was five years old, 84 in the third grade, 76 in the fifth grade, and 111 also in the
fifth grade. Dr. Auble agreed that toxic environmental exposure could be a contributing factor to
an offense such as the one in the present case.

    I. Denial of Due Process at Petitioner’s Trial: Extraneous Information before the Jury

        The petitioner contends that, due to the actions of the jury, he was denied a fair trial in
violation of rights secured by both the state and federal constitutions. The petitioner claims that the


                                                  -27-
jurors consulted extrajudicial materials during deliberations, i.e., the Bible. Petitioner asserts that
“[r]eading from the Bible during jury deliberations regarding sentencing in a capital case requires
reversal of the jury decision.” (citing State v. Harrington, 627 S.W.2d 345, 350 (Tenn. 1981)).

                                  A. Waiver of the Issue on Appeal

         In response to the petitioner’s argument, the State, in part, asserts that this issue is waived
as it was not presented on direct appeal. See T.C.A. § 40-30-206(g). The petitioner responds, in
part, that the State should not be permitted to argue waiver before this Court because the State failed
to assert waiver and proceeded to respond to the merits of the claim in the lower court.

        In Walsh v. State, our supreme court held that the State “waives” the waiver argument when
the State fails to raise the defense of waiver at the post-conviction hearing. 166 S.W.3d 641, 645
(Tenn. 2005). To permit waiver for the first time on appeal would deny the petitioner the
opportunity to rebut the presumption that the issue had indeed been waived. Id. (citing T.C.A. § 40-
30-110(f)(2003)). Accordingly, as the State failed to assert waiver in the lower court, we conclude
that the waiver argument fails on appeal. As this Court has rejected the waiver argument, it is
unnecessary to review the remaining arguments of the petitioner regarding the propriety of
addressing the merits of the claim on appeal, including but not limited to the argument that the State
may not be permitted to use incompatible legal theories between cases. We proceed to review the
issue on its merits.

                                    B. Alleged Juror Misconduct

          During the post-conviction hearing, jurors Ernest Bowles, Nancy Hurlburt, and Fannie
Goodman testified that, during jury deliberations, one juror, Mr. Bowles, read Bible passages aloud
and another juror recited a prayer. Juror Bowles testified that he had his Bible with him during the
trial proceedings and in the deliberation room. During deliberations, juror Bowles read a passage
from Romans 13, verses 1-4, King James Version. He also read the verses at the post-conviction
evidentiary hearing:

       . . . Let every soul be subject unto the higher powers. For there is no power but of
       God; the powers that be are ordained of God. Whosoever therefore resisteth the
       power, resisteth the ordinance of God; and they that resist shall receive to themselves
       damnation. For rulers are not a terror to good works, but to the evil. Will thou then
       not be afraid of the power? Do that which is good, and thou shall have praise of the
       same. For he is the minister of God to thee for good. But if thou do that which is
       evil, be afraid; for he beareth not the sword in vain; for he is the minister of God, a
       revenger to execute wrath upon him that doeth evil.

Juror Bowles stated that this was the only passage read aloud during deliberations and that these
verses were read during a point in deliberations when “one juror didn’t believe in the death penalty.”
Juror Bowles explained that he read these specific verses “[b]ecause it deals with punishment,” “[i]f


                                                 -28-
you commit a crime you’re supposed to be punished.” Juror Bowles testified that he is a Christian
and it was his practice to engage in daily reading of Scripture.

        Juror Hurlburt testified that she asked if she could say a prayer. She stated that her prayer
was out loud but she could not recall any one else participating. She added that the prayer was said
“immediately when the Judge sent us back.” Juror Hurlburt recalled a juror reading from the Bible,
but she stated that, in her opinion, the reading was not done to influence the way the jurors should
vote. She explained that the verse was read “just to let us have the peace of mind that we were
making the right decision . . . . [W]e wanted to be able to walk away knowing that we would not
have . . . made the wrong decision and have to live with it for the rest of our life.”

        Juror Goodman testified that, during deliberations, a verse from the Book of Corinthians and
verses from the Book of Romans were read. She could not recall what verse was read from
Corinthians, although she stated that “a verse from Romans 13" was read. She stated that the jurors
“held hands and we prayed and we cast our votes.” Juror Goodman added that “about three or four”
jurors had their Bibles in the deliberation room. Despite the variance between the testimony of
Jurors Bowles and Hurlburt with that of Juror Goodman, all three jurors maintained that the death
penalty was imposed based upon the law and the evidence and that neither the Bible passages nor
prayer influenced their decision.

                               C. Findings of Post-Conviction Court

       The post-conviction court made the following findings regarding the reading of the Bible
verse during deliberations:

       . . . In the instant case, this Court does not find that jurors reading their Bibles during
       the period they were sequestered would necessarily be an improper outside influence,
       as it would be difficult to deny jurors reading material of their choice during long
       sequestrations, and improper to deny them access to articles of their personal faith
       during this emotional and stressful time away from their families. The question in
       the petitioner’s case is whether the reading of the Bible verse out loud to the jury in
       the deliberation room in this case would be considered prejudicial or improper
       influence. Although petitioner has the burden of proving his allegations of
       ineffective assistance of counsel by clear and convincing evidence, if the attorneys
       had presented this information in a Motion for New Trial the burden would have
       been slightly different. On appeal, if it is shown that one or more jurors has been
       exposed to extraneous prejudicial information or improper influence, there arises a
       rebuttable presumption of prejudice, and the burden then shifts to the prosecution to
       explain the conduct or to demonstrate the harmlessness of it. State v. Parchman, 973
       S.W.2d 607, 612 (Tenn. Crim. App. 1997); State v. Young, 866 S.W.2d 194, 196
       (Tenn. Crim. App. 1992). In order to shift the burden to the prosecution to
       demonstrate the harmlessness of the communication with the jury, the threshold



                                                  -29-
       question would be whether the statement communicated to the jury was prejudicial
       to the appellant. Parchman, 973 S.W.2d at 612.

               This Court finds that petitioner has not shown that the reading of the Bible
       verse in this case was prejudicial to the petitioner. The Romans13 verses quoted . .
       .do not advocate the death penalty over a life sentence, but only affirm that God’s
       laws are not in conflict with the government’s right to punish offenders (“the powers
       that be are ordained of God”), and was apparently read in response to an unidentified
       juror who apparently stated the juror “didn’t believe in the death penalty,” despite a
       thorough voir dire of the entire jury venire concerning this issue. The verses in
       question merely recalled the jury to its duty to follow man’s law in the case, as it was
       an instrument of God. . . . this particular passage did not affect the verdict of the jury
       by suggesting that the death penalty would be the proper verdict. . . .
       ...
       No proof has been presented that the reading of the Bible verse put any undue
       pressure on any juror, or had any influence on the jury’s verdict. Therefore even if
       the reading of the verse could be considered an improper outside influence, no
       prejudice has been shown to petitioner.

                                             D. Analysis

         A criminal defendant has a right to an impartial jury. See Stockton v. Virginia, 852 F.2d 740,
744 (4th Cir.1986). Under Article I, section 6 of the Tennessee Constitution, the right of trial by jury
must be preserved inviolate. State v. Bobo, 814 S.W.2d 353, 356 (Tenn. 1991). It is of the utmost
importance to the administration of justice that the purity of the trial by jury should be preserved.
Hines v. State, 27 Tenn. 597, 8 Hum. 597 (1848). This means that it must be preserved as it existed
at common law at the time of formation of the Constitution. Id. (citations omitted). Any evidence
that does not come from the witness stand in a public courtroom where there is full judicial
protection of the defendant’s right to confrontation, of cross-examination, and of counsel is
presumptively prejudicial. See Turner v. Louisiana, 379 U.S. 466, 473, 85 S. Ct. 546, 550 (1965).
In this regard, “[c]ommunications whether to a single juror separated from his comrades, or to the
whole jury, are equally prohibited, and a presumption of prejudice arises when the mere fact of
communications is shown without explanation.” King v. State, 7 Pickle 617, 91 Tenn. 617, 20 S.W.
169, 172 (1892). The verdict of the jury must be found upon the evidence delivered to them in court
in the presence of the judge and of the parties. Sam v. State, 1 Swan 61, 31 Tenn. 61 (1851).
Moreover, while the “true rule in criminal cases” is that “[t]he jury are the judges of the law as it
applies to the facts” and “in making up their verdict they are to consider the law in connection with
the facts,” “the court is the proper source from which they are to get the law.” Henson v. State, 2
Cates 47, 110 Tenn. 47, 72 S.W. 960 (1903).

       It is well-established that extraneous information or influence brought before the jury
questions the validity of the jury’s verdict. Our supreme court held that “it is not upon the prisoner
to show affirmatively that he was prejudiced by the improper evidence received by the jury. It is


                                                 -30-
enough that he may have been prejudiced, and the law will so presume.” Ryan v. State, 97 Tenn.
206, 36 S.W. 930, 931 (1896) (citing Morton v. State, 1 Lea, 499; Whitmore v. Ball, 9 Lea, 35;
Donston v. State, 6 Humph. 275; Booby v. State, 4 Yerg. 111; Wade v. Ordway, 1 Baxt. 229; Nile
v. State, 11 Lea, 694; Crawford v. State, 2 Yerg. 60.). In other words, if the proof shows that an
improper communication was made, the law presumes that the verdict is tainted.

        The allegation of error in the present case is that a juror read verses from the Bible in
response to another juror’s statement regarding the inability to impose a sentence of death. Our
supreme court previously addressed the reading of Bible verses by one jury member to the jury in
State v. Harrington, 627 S.W.2d 345 (Tenn. 1981). In Harrington, the Tennessee Supreme Court
affirmed the defendant’s conviction for first degree murder, but reversed the sentence of death and
remanded the case for a new sentencing hearing based primarily upon the trial court’s error in
excluding potential jurors in violation of the standard set forth in Witherspoon v. Illinois, 391 U.S.
510, 88 S. Ct. 1770 (1968). Harrington, 627 S.W.2d at 350. Immediately after so ruling, the
opinion of our supreme court provides:

       Appellant also has called our attention to the fact that during deliberations in the
       sentencing phase of the trial, the jury foreman buttressed his argument for imposition
       of the death penalty by reading to the jury selected biblical [sic] passages. His action,
       of course, was error which would have required a new sentencing hearing, absent the
       error in excluding jurors for cause in violation of the Witherspoon standard.

Id. (emphasis added). The petitioner in the case sub judice relies upon this language from
Harrington in support of his argument that he is entitled to post-conviction relief. The quoted
language is the extent of all discussion on the issue of the reading of Biblical passages to a jury. The
precise passages read to the jury are not revealed and the opinion is absent citation to legal precedent
or authority. The only circumstance surrounding the reading revealed in the opinion is that the jury
foreman read the verses in order to “buttress[] his argument for imposition of the death penalty.”
Id. We conclude that this “circumstance” surrounding the jury foreman’s intent in reading the
Biblical passages is in fact evidence of “the effect of anything upon any juror’s mind or emotions
as influencing that juror to assent to or dissent from the verdict. . . .” Tenn. R. Evid. 606(b).
(Emphasis added). Therefore, such evidence would not be admissible under our supreme court’s
recent decision in Walsh v. State, 166 S.W.3d 641 (Tenn. 2005).

       In Walsh v. State, our supreme court held:

       Tennessee Rule of Evidence 606(b) permits juror testimony to establish the fact of
       extraneous information or improper influence on the juror; however, juror testimony
       concerning the effect of such information or influence on the juror’s deliberative
       processes is inadmissible.

Walsh, 166 S.W.3d at 649 (emphasis added). Logically, this must apply equally to the “effect of
such information” on all the jurors – to those who hear the information as well as to the one who


                                                 -31-
reads the information. “[A] juror is not permitted to testify about anything occurring during
deliberations, including the juror’s own internal thoughts, motivations or emotions.” Walsh, 166
S.W.3d at 647 (citing Tenn. R. Evid. 606(b); State v. Blackwell, 664 S.W.2d 686, 688 (Tenn. 1984))
(emphasis added).

        The ruling in Harrington must now be construed with the holding in Walsh. As noted in
Walsh, Tennessee adopted Federal Rule of Evidence 606(b) in State v. Blackwell, 664 S.W.2d at 686,
three years after the decision in Harrington. As pertinent to he case sub judice, Tennessee Rule of
Evident 606(b), effective January 1, 1990, is identical to Federal Rule of Evidence 606(b). See
generally Walsh, 166 S.W.3d at 646. In the case sub judice, applying the holding in Walsh, the only
admissible testimony of juror Bowles was his testimony that he read Romans 13:1-4 (King James
Version) aloud during deliberations, and the verbatim content of those Bible verses. Any effect of
these verses upon the minds or emotions of any of the jurors, including juror Bowles and/or the
unidentified juror who purportedly “didn’t believe in the death penalty” was inadmissible. Likewise,
any testimony that one or more jurors expressed disbelief in the death penalty was inadmissible.
Furthermore, all testimony by jurors Hurlburt and Goodman was inadmissible except for testimony
of what was read. In addition, juror Bowles’ testimony of his interpretation of the meaning of the
Bible verses was inadmissible. Therefore, the only evidence on this issue which can be considered
is the proof that juror Bowles read Romans 13:1-4 to the jury, the content of that Biblical passage,
and the testimony of jurors Hurlburt and Goodman that juror Hurlburt said a prayer out loud and that
these two jurors heard verses from Corinthians and Romans 13 being read.

        First, we address the specific proof regarding the reading of Romans 13:1-4 to the jury. We
can only consider the “four corners” of the purported extraneous information without any reference
to why it was read, or the interpretation, if any, placed on it by either the reader or any other of the
jurors. See Walsh, 166 S.W.3d at 649. Thus the extraneous information must be looked at
objectively rather than subjectively. A literal reading of the Bible passage shows that it does not
mention imposition of the penalty of death, or any other punishment related to murder, or any other
specific crimes. The essence of the Bible passage is that the power of government is subject to the
power of God, and if one does good deeds he or she will “have praise” and if one “does evil” he or
she will be punished. The theme is that one should follow the laws of the civil government who
rules. Contrary to the speculation by some advocacy groups, see Robert Parham, Please Stop Using
the Scriptures as Rationale for Capital Punishment, The Tennessean, Apr. 13, 2000; Larry Swindell,
Capital Idea: A Persuasive Examination-and Denunciation-on the Death Penalty, Fort Worth Star-
Telegram, Nov. 23, 1997; Robert Marquand, Death Penalty Issue Stirs Divergent Religious Views,
McVeigh Case Inspires Debate on Moral Aspects of Society’s Ultimate Sanction, Christian Science
Monitor, June 12, 1997, Romans 13: 1-4 does not encourage, command, or otherwise require
imposition of the death penalty.

        The law in Tennessee is that a jury shall impose the death penalty following a conviction for
first degree murder when the twelve members of the jury unanimously agree that the State has
proven beyond a reasonable doubt the existence of at least one statutory aggravating circumstance
and that the aggravating circumstance(s) has been proven by the State beyond a reasonable doubt to


                                                 -32-
outweigh any mitigating circumstances. T.C.A. § 39-13-204(g)(1)(A) & (B). In the case sub judice,
the trial court charged the jury, in part:

                It is your duty to determine within the limits prescribed by law the penalty
       which shall be imposed as punishment for this [offense]. Tennessee law applicable
       for this offen[s]e provides that a person convicted of murder in the first degree shall
       be punished by death or by imprisonment for life.

               The law makes it the duty of the Court to give in its charge to the jury the law
       relative to the hearing. It is the duty of the jury to carefully consider all the evidence
       delivered to them on the hearing and under the law given them by the Court render
       their verdict with absolute impartiality.
       ...

                The jury is the sole judge of the facts and of the law as it applies to the facts
       in this hearing. In arriving at your verdict, you are to consider the law in connection
       with the facts.

              But the Court is the proper source from which you are to get the law. In other
       words, you are the judges of the law as well as the facts under the direction of the
       Court.
       ...

              You are the exclusive judges of the facts in this hearing. Also you are the
       exclusive judges of the law under the direction of the Court.

               You should apply the law to facts in deciding the sentence.
       ...

               You should in no case allow mere sympathy or prejudice solely to influence
       your verdict but should look to the law and all the facts and circumstances proven in
       the evidence to determine your verdict.

The Biblical passage read, in essence, is a statement, the substance of which, is included in the trial
court’s charge to the jury. Before extraneous information given to a jury can mandate a new trial,
the extraneous information must be “prejudicial.” Tenn. R. Evid. 606(b). As Rule 606(b) prohibits
the reviewing court from considering the actual effects of any extraneous information on any juror,
Walsh, 166 S.W.3d at 649, the reviewing court may only determine prejudice from the content of
the information. We agree with the lower court that Romans 13:1-4 is not extraneous prejudicial
information. This information (the Biblical passages) does not pertain to the petitioner, the victim,
or to any facts of the case. Neither does the information pertain to the Rules of Procedure nor the
Rules of Evidence which apply to any criminal trial. Courts in other jurisdictions have reached

                                                 -33-
similar conclusions. See, e.g., Fields v. Brown, 431 F.3d 1186, 1209 (9th Cir. 2005) (some Bible
verses may be considered common knowledge, therefore not extrinsic evidence, even if error, no
prejudice, Bible verses not facts); Malicoat v. Mullin, 426 F.3d 1241 (10th Cir. 2005) (carving of “eye
for an eye” in courtroom found harmless error); Burch v. Corcoran, 273 F.3d 577 (2001) (juror read
from Bible and quoted from Bible from memory during deliberations; held not to be an improper
communication and, even if error, error was harmless); Lenz v. True, 370 F. Supp. 2d 446 (W.D. Va.
2005) (upheld state court finding that no evidence was presented that biblical passages read to jury
members were related to the sentencing decision; district court rejected reaching a conclusion that
anything read from the Bible during deliberations was sufficient to satisfy the test in Remmer v.
United States, 347 U.S. 227, 229, 74 S. Ct. 450, 451 (1954)); State v. Kleypas, 40 P.3d 139 (Kan.
2001) (quote from Bible made by one juror to another not reversible error); Young v. State, 12 P.3d
20 (Okla. Crim. App. 2000) (it is to be presumed that jurors would discuss biblical propriety of death
penalty; such discussion does not constitute extraneous information).

         The role of this Court is to determine whether the extraneous information influenced a
juror(s) to the petitioner’s detriment. We must review the alleged extraneous information under an
objective standard. Viewing the extraneous information objectively, we cannot conclude that the
Biblical verses read nor the prayer spoken outloud were inherently and substantially prejudicial. The
general testimony regarding the readings from Corinthians and Romans as well as testimony
evidencing a prayer fail to establish that any specific extraneous prejudicial information was given
to the jury. It is generally understood that jurors will inherently consider their own religious, moral
and philosophical beliefs during penalty phase deliberations. In this regard, no one, including the
courts of this state, can expect jurors to live in a vacuum, immune from any contact with extra-
judicial resources, including the Bible. Thus, we are unable to conclude that a jury’s exposure to a
Biblical passage during deliberations is per se prejudicial. Additionally, while the petitioner argues
that the passages read from Romans 13 are “pro-capital punishment,” this Court is reluctant to make
such an interpretation nor can this Court, under an objective standard, conclude that the jurors
understood the passage as God’s instruction to impose a sentence of death.

       A finding of reversible prejudicial error cannot be based on a mere possibility that a juror was
improperly influenced. The likelihood that the juror was influenced must be substantial. The jury
was instructed as to the applicable law. We presume the jury follows the law as provided by the
court. The facts of this horrific murder of this eight-year-old victim are heinous and include the
confession of the petitioner. Accordingly, we cannot conclude that the typical juror in this case
would have not imposed a sentence of death absent the reading of the Biblical passages and/or the
prayer. The petitioner is not entitled to relief on this issue.

                     II. Denial of Due Process at Post-Conviction Hearing

        The petitioner contends that he was denied a full and fair hearing on his petition for post-
conviction relief. Specifically, he asserts that statements made by the post-conviction court during
the post-conviction hearing and the rulings made by the court after the hearing demonstrate the post-



                                                 -34-
conviction court’s bias or lack of objectivity, or, in the alternative, that the court was unable to
consider mitigation evidence.


                                          A. Applicable Law

        A fair trial in a fair tribunal is a basic requirement of due process. The principles of
impartiality, disinterestedness and fairness are fundamental concepts in our jurisprudence. See State
v. Bondurant, 4 S.W.3d 662, 668 (Tenn. 1999) (quoting State v. Lynn, 924 S.W.2d 892, 898 (Tenn.
1996)). Article I, Section 17 of the Tennessee Constitution and the Fourteenth Amendment to the
United States Constitution guarantee all litigants a hearing before an impartial decision-maker. In
re Cameron, 126 Tenn. 614, 658, 151 S.W. 64, 76 (1912); see also Tumey v. Ohio, 273 U.S. 510,
532, 47 S. Ct. 437 (1927) (“every procedure which would offer a possible temptation to the average
man as a judge [to forget the burden of proof required to convict the defendant, or which might lead
him] not to hold the balance nice, clear and true between the State and the accused, denies the latter
due process of law”). Article VI, section II of the Tennessee Constitution states that judges cannot
participate in cases in which they might have even the slightest interest. Neely v. State, 63 Tenn.
174, 182 (1874). A similar restriction appears in section 17-2-101(1), Tennessee Code Annotated.
The purpose of these provisions is to guard against the prejudgment of a litigant’s rights and to avoid
situations in which the litigants might believe that the court reached a prejudiced conclusion because
of interest, partiality or favor. Chumbley v. Peoples Bank & Trust Co., 165 Tenn. 655, 659, 57
S.W.2d 787, 788 (1933). A trial before a biased or prejudiced judge is a denial of due process.
Wilson v. Wilson, 987 S.W.2d 555, 562 (Tenn. Ct. App. 1998).

        Judges must not only be impartial, but also appear impartial because judicial fairness is
violated when the appearance of fairness is ignored. See State ex rel. McFerran v. Justice Court of
Evangeline Starr, 202 P.2d 927 (Wash. 1949). This is not merely an idealistic sentiment. Deference
to the judgments and rulings of the courts depends upon public confidence in the integrity and
independence of the judges that make them. As our supreme court has acknowledged:

        It is of lasting importance that the body of the public should have confidence in the
        fairness and uprightness of the judges created to serve as dispensers of justice. The
        continuance of this belief, so long entertained by the people of this country, and so
        well warranted by the history of the judiciary as a body, is largely essential to the
        future existence of our institutions in their integrity.

In re Cameron, 126 Tenn. 614, 658-59, 151 S.W. 64, 76 (1912). As what the public perceives may
be substantially different from what actually exists, it is the appearance of impartiality that will often
undermine or resurrect society’s faith in the judicial system. See State v. Bondurant, 4 S.W.3d 662,
668 (Tenn. 1999) (quoting State v. Lynn, 924 S.W.2d 892, 898 (Tenn. 1993) (citing Offutt v. United
States, 348 U.S. 11, 14, 75 S. Ct. 11, 13 (1954))). Thus, “justice must satisfy the appearance of
justice.” Id.



                                                  -35-
        Canon 2A, Tennessee Supreme Court Rule 10, requires judges to conduct themselves “at all
times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.”
Similarly, Canon 3(E)(1), Tennessee Supreme Court Rule 10, requires judges to disqualify
themselves in cases where their “impartiality might reasonably be questioned.” The strict application
of Canon 3(E)(1) may result in the disqualification of a judge who has no actual bias and who
believes that he or she can try a case fairly. See In re Murchison, 349 U.S. 133, 136, 75 S. Ct. 623,
625 (1955). The test is not whether the judge believes he or she can be impartial but whether others
might reasonably question the judge’s impartiality. See generally Offutt v. United States, 348 U.S.
at 14, 75 S. Ct. at 13.

                                  B. Bias of Post-Conviction Court

                    1. Court’s Classification of Representation as “Excellent”

        The petitioner first asserts that the lack of objectivity and bias of the lower court is
exemplified by the “hyperbole,” i.e., “excellent representation by the Shelby County Public
Defender,” that the court uses throughout its findings of fact and conclusions of law “to praise the
work of trial counsel and to disparage the evidence presented in post-conviction.” Petitioner then
argues that the quality of representation received by the petitioner is “excellent,” only if “excellent
representation includes” a listing of alleged errors committed by counsel, including arguing that a
repealed statute is unconstitutional, failing to reflect upon the case and determine what could have
been done differently and placing state and county budget concerns above the petitioner’s interests.

         Inasmuch as any claim can be construed as alleged grounds of ineffective assistance of trial
counsel, those claims will be addressed as such, i.e., petitioner’s allegations regarding an ineffective
opening argument and the ineffective preparation of defense witnesses. However, claims that were
not raised in the post-conviction petition and not presented to the trial court will not be considered
in the context of claims of ineffective assistance of counsel. State v. Alvarado, 961 S.W.2d 136, 153
(Tenn. Crim. App. 1996). Specifically, petitioner’s claims that trial counsel argued that a repealed
statute was unconstitutional, trial counsel failed to reflect upon the case and determine what could
have been done differently and that trial counsel placed state and county budget concerns above the
petitioner’s interests were not raised in the petition or at the post-conviction proceeding. Finally, we
reject the petitioner’s allegation that any and all of these claims contradict the post-conviction court’s
characterization of counsel’s representation of the petitioner as “excellent” and demonstrate the post-
conviction court’s bias. Bias of a trial court is not shown simply by a litigant’s displeasure with the
outcome of a hearing. The petitioner is not entitled to relief as to this claim.

                        2. Court’s Inability to Consider Mitigation Evidence

       The petitioner next contends that the post-conviction court possesses a hostility to mitigation
and/or is unable to consider mitigation evidence. The petitioner makes several allegations in an
attempt to discredit the post-conviction court. These allegations include (1) the post-conviction court
was “entirely dismissive of the testimony of Dr. Wass,” an expert in the effects of alcohol on a


                                                  -36-
developing fetus, (2) the post-conviction court’s remark that trial counsel had no obligation to assist
the petitioner in the post-conviction proceeding, and (3) the post-conviction court’s remarks that the
concept of multi-generational sequential damage is “absurd” and “ridiculous.”

         The record before this Court reveals that the post-conviction court considered all of the
testimony presented, including that of lay witnesses and all expert witnesses, including Dr. Wass.
The fact that the post-conviction court did not agree with all of the testimony presented does not
result in the per se denial of a fair hearing. Neither does the fact that the post-conviction court did
not reach the results preferred by the petitioner mandate the conclusion that the post-conviction court
was unable to consider mitigation evidence. Nothing in the record before this court supports a
conclusion that the petitioner was denied a full and fair hearing before a fair tribunal. He is not
entitled to a new post-conviction hearing on this ground.

                           III. Ineffective Assistance of Trial Counsel

       The Sixth Amendment provides, in pertinent part, that, “[i]n all criminal prosecutions, the
accused shall enjoy the right . . . to have the Assistance of Counsel for his defense.” U.S. Const.
amend. VI. This right to counsel is “so fundamental and essential to a fair trial, and so, to due
process of law, that it is made obligatory upon the States by the Fourteenth Amendment.” Gideon
v. Wainwright, 372 U.S. 335, 350, 83 S. Ct. 792 (1963) (quoting Betts v. Brady, 316 U.S. 455, 465,
62 S. Ct. 1252 (1942)). Inherent in the right to counsel is the right to effective assistance of counsel.
Cuyler v. Sullivan, 446 U.S. 335, 344, 100 S. Ct. 1708 (1980); McMann v. Richardson, 397 U.S.
759, 771 n. 14, 90 S. Ct. 1441 (1970); see also Strickland v. Washington, 466 U.S. 668, 686, 104 S.
Ct.2052 (1984).

        “The benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct
so undermined the proper functioning of the adversarial process that the trial cannot be relied on as
having produced a just result.” Strickland, 466 U.S. at 686, 104 S. Ct. at 2064; Combs v. Coyle, 205
F.3d 269, 277 (6th Cir. 2000). A two-prong test directs a court’s evaluation of a claim of
ineffectiveness:

        First, the defendant must show that counsel’s performance was deficient. This
        requires showing that counsel made errors so serious that counsel was not
        functioning as the “counsel” guaranteed the defendant by the Sixth Amendment.
        Second, the defendant must show that the deficient performance prejudiced the
        defense. This requires showing that counsel’s errors were so serious as to deprive the
        defendant of a fair trial, a trial whose result is reliable.

Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; see also Combs, 205 F.3d at 277.

        The performance prong of the Strickland test requires a petitioner raising a claim of
ineffectiveness to show that the counsel’s representation fell below an objective standard of
reasonableness, or “outside the range of professionally competent assistance.” Strickland, 466 U.S.


                                                  -37-
at 690, 104 S. Ct. at 2066; see also Kimmelman v. Morrison, 477 U.S. 365, 386, 106 S. Ct. 2574
(1986). “Judicial scrutiny of performance is highly deferential, and ‘[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.’” Combs, 205 F.3d at 278. Upon reviewing claims of ineffective
assistance of counsel, the 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, 466 U.S. at 689, 104 S. Ct. at 2065. Additionally, courts should defer to trial
strategy or tactical choices if they are informed ones based upon adequate preparation. Hellard v.
State, 629 S.W.2d 4, 9 (Tenn. 1982). Finally, we note that criminal defendants are not entitled to
perfect representation, only constitutionally adequate representation. Denton v. State, 945 S.W.2d
793, 796 (Tenn. Crim. App. 1996). In other words, “in considering claims of ineffective assistance
of counsel, ‘we address not what is prudent or appropriate, but only what is constitutionally
compelled.’ “ Burger v. Kemp, 483 U.S. 776, 794, 107 S. Ct. 3114, 3126 (1987). Notwithstanding,
we recognize that “our duty to search for constitutional [deficiencies] with painstaking care is never
more exacting than it is in a capital case.” Id. at 785, 107 S. Ct. at 3121.

        If the petitioner shows that counsel’s representation fell below a reasonable standard, then
the petitioner must satisfy the prejudice prong of the Strickland test by demonstrating “there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. “A reasonable
probability is a probability sufficient to undermine confidence in the outcome.” Id. In evaluating
whether a petitioner satisfies the prejudice prong, a court must ask “whether counsel’s deficient
performance renders the result of the trial unreliable or the proceeding fundamentally unfair.”
Lockhart v. Fretwell, 506 U.S. 364, 372, 113 S. Ct. 838 (1993) (citing Strickland, 466 U.S. at 687,
104 S. Ct. at 2064). In other words, a petitioner must establish that the deficiency of counsel was
of such a degree that it deprived the defendant of a fair trial and called into question the reliability
of the outcome. Nichols, 90 S.W.3d at 587. That is, the evidence stemming from the failure to
prepare a sound defense or to present witnesses must be significant, but it does not necessarily follow
that the trial would have otherwise resulted in an acquittal. Nealy 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.” State v. Zimmerman, 823 S.W.2d 220, 225 (Tenn. Crim. App. 1991); see also
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 petitioner 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).

                                    A. Claims Before this Court



                                                 -38-
         On appeal, the petitioner claims that appointed counsel failed to function as effective counsel
as guaranteed by both the Tennessee and United States Constitutions. In this regard, petitioner
asserts that his appointed counsel denied him effective assistance of counsel by breaching acceptable
standards for capital representation in that:

        1. Counsel failed to competently select a jury;

        2. Counsel failed to present effective opening and closing arguments;

        3. Counsel failed to investigate and present significant mitigation evidence;

        4. Counsel failed to properly prepare defense witnesses to testify; and

        5. Counsel failed to effectively use expert services.

We proceed to review each of the petitioner’s arguments and analyze them in light of trial counsel’s
conduct and performance.

                                1. Failure to Competently Select Jury

         The petitioner complains that trial counsel did not adequately voir dire prospective jurors
when they failed to ask questions necessary to determine personal biases. Petitioner alleges that trial
counsel was completely inadequate with regard to their understanding and execution of the jury
selection process in a capital case. In support of this allegation, he faults trial counsel for failing to
zealously pursue the motion for individual voir dire. Additionally, he asserts that neither party,
particularly the defense, asked any questions that were designed to seek answers from the potential
jurors that would give insight as to whether they would be able to consider and give effect to
mitigation proof. Nor were questions posed of the potential jurors to provide insight as to whether
they would consider a life sentence or whether they were automatic death jurors. Petitioner states
trial “[c]ounsel’s voir dire failed to identify jurors who could not consider, and give effect to
mitigation, and failed to identify potential automatic death penalty jurors.”

        The petitioner raises these claims of ineffectiveness of counsel for the first time in this
appeal. The claims related to voir dire were not raised in his petition for post-conviction relief nor
were these issues argued before the post-conviction court. This Court will not address claims raised
for the first time on appeal. See State v. Alvarado, 961 S.W.2d 136, 153 (Tenn. Crim. App. 1996).
Moreover, on direct appeal, the petitioner raised the issue of whether the trial court erred by denying
individual voir dire. See Keen, 31 S.W.3d at 229 (Appendix). Our supreme court adopted the
holding of this Court finding that the lower court did not abuse its discretion in denying individual
voir dire. Id. Accordingly, even if properly raised in the petition for post-conviction relief, we
cannot conclude that the petitioner would be entitled to relief. Accordingly, he is not entitled to
relief on this issue.



                                                  -39-
                 2. Failure to Effectively Present Opening and Closing Arguments

         The petitioner next contends that trial counsel failed to effectively utilize opening and closing
arguments. He asserts that basically the same opening and closing arguments were provided at both
the 1991 and 1997 sentencing trials. He contends that “[u]sing the opening argument to present the
story of the case is basic to defense advocacy.” Petitioner asserts that trial counsel failed to “tell the
tragic story of how he was damaged, starting before birth, by events beyond his control.” Petitioner
further poses the question as to counsel’s performance, “[i]f what you did in the first trial resulted
in an unwanted outcome, why did you do the same things the second time around?”

        First, the petitioner’s complaints regarding closing arguments were not raised in the petition
for post-conviction nor were they presented to the post-conviction court. Accordingly, this claim
cannot be argued for the first time on appeal to this Court. Alvarado, 961 S.W.2d at 153. Thus, our
review is limited to the opening statement of Judge Ryan.

        In its findings of facts and conclusions of law, the post-conviction court found:

        . . . Judge Ryan did not spell out all of the tragic tale of the petitioner’s abusive
        childhood in her opening statement, despite the Primacy and Recency theory
        advanced by attorney Bill Massey. . . (that the jury remembers best what they hear
        first and last, so that the attorney should make full use of the opening statement).
        Robert Jones testified that they felt it would be best for the jury to hear the story told
        by the witnesses, and as they had made changes for the second trial (no jailer, no
        defendant, and added Darlene Krone and Dr. Ciocca) they didn’t want to tip off the
        State ahead of time. . . . He later tetsified that the opening statement Judge Ryan
        gave “did give some of the information, and it’s a question of how much you want
        to present, and it’s a question of whether you want to try to go over it word for word
        and then lose the impact when the witnesses testify. . . .

               Judge Ryan also stated she was “non-committal” in opening statement
        because she was unsure whether or not petitioner’s siblings would be responsive on
        the witness stand.
        ...

        She also worried that Linda might not testify to the same things because Darlene was
        present . . . and they might both be reluctant. . . . This Court finds that not laying out
        a detailed account of the petitioner’s mitigation on opening statement to keep from
        lessening the impact on the jury and not promise something to the jury that might not
        be delivered was based on sound reasoning and judgment, and should not be second
        guessed.

       Opening statements are not evidence, and there is no reason to conclude that a different
presentation by counsel would have altered the jury’s verdict and sentence. See Griffin v. Delo, 33

                                                  -40-
F.3d 895, 903 (8th Cir. 1994). The record supports the conclusion that it was a strategic decision
regarding the information presented in opening statement, that the limitation on the information
revealed during opening statement was reasonable under the circumstances, and that trial counsel
considered and rejected reasonable alternative courses of action. Judgmental and tactical errors do
not always equate to ineffective assistance of counsel. Although another attorney may have followed
a different strategy, this does not mean that trial counsel’s strategy in this case constituted the denial
of effective assistance of counsel. An attorney will not be found deficient merely on the basis that
another attorney would have tried the case differently. Accordingly, trial counsel’s strategic action
fails to amount to deficient performance. The petitioner is not entitled to relief on this issue.

                       3. Failure to Investigate and Present Mitigation Proof

        The petitioner asserts that trial counsel’s inadequate preparation produced deficient
performance. In support of this claim, the petitioner asserts that counsel was ineffective for failing
to present evidence relating to the petitioner’s adjustment to prison life in the 1997 retrial despite the
fact that this type of evidence was presented in 1991. See Skipper v. South Carolina, 476 U.S. 1, 106
S. Ct. 1669 (1986). Next, petitioner complains that the jury was prevented from considering
sufficient mitigation evidence by trial counsel’s failure to introduce the Intake Study prepared by
Sam Buzzard and Susan Buzzard. Third, petitioner contends that trial counsel failed to connect the
homicide to the damage inflicted upon the young petitioner, despite the fact that this was a crucial
factor in the mitigation defense. Additionally, petitioner contends that trial counsel failed to present
evidence concerning the relationship between nutrition/malnutrition and the developing brain.
Finally, he alleges that, although trial counsel acknowledged that fetal alcohol exposure was an issue
to be explored in preparing a mitigation case, trial counsel failed to present such evidence to the jury.

        In the context of capital cases, a defendant’s background, character, and mental condition are
unquestionably significant. “[E]vidence about the defendant’s background and character is relevant
because of the belief ... that defendants who commit criminal acts that are attributable to a
disadvantaged background, or to emotional and mental problems, may be less culpable than
defendants who have no such excuse.” California v. Brown, 479 U.S. 538, 545, 107 S. Ct. 837, 841
(1987); see Eddings v. Oklahoma, 455 U.S. 104, 113-15, 102 S. Ct. 869, 876 (1982); Lockett v.
Ohio, 438 U.S. 586, 604-05, 98 S. Ct. 2954, 2964-2965 (1978) (plurality opinion); Zagorski v. State,
983 S.W.2d 654, 657-58 (Tenn. 1998); Goad, 938 S.W.2d at 369. The right that capital defendants
have to present a vast array of personal information in mitigation at the sentencing phase, however,
is constitutionally distinct from the question whether counsel’s choice of what information to present
to the jury was professionally reasonable.

        There is no constitutional imperative that counsel must offer mitigation evidence at the
penalty phase of a capital trial. Nonetheless, 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. Although there is no requirement to present
mitigating evidence, counsel does have the duty to investigate and prepare for both the guilt and the
penalty phase. See Goad, 938 S.W.2d at 369-70.


                                                  -41-
        To determine whether or not trial counsel was ineffective for failing to present mitigating
evidence, the reviewing court must consider several factors. 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); State v. Adkins, 911 S.W.2d 334 (Tenn. Crim. App. 1994); Cooper v.
State, 847 S.W.2d 521, 532 (Tenn. Crim. App. 1992)). 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 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)).

        Although there is no absolute duty to investigate particular facts or a certain line of defense,
counsel does have a duty to make reasonable investigation or to make a reasonable decision that
makes particular investigation unnecessary. Strickland, 466 U.S. at 691, 104 S. Ct. at 2052. In
determining whether counsel breached this duty, counsel’s performance is reviewed for
reasonableness under prevailing professional norms, which includes a context-dependent
consideration of the challenged conduct as seen from counsel’s prospective at the time. Wiggins,
539 U.S. 523, 123 S. Ct. at 2527 (citations omitted). Counsel is not required to investigate every
conceivable line of mitigating evidence no matter how unlikely the effort would be to assist the
defendant at sentencing. Id. at 533, 121 S. Ct. at 2381. Neither is counsel required to interview
every conceivable witness. Hendricks v. Calderon, 70 F.3d 1032, 1040 (9th Cir. 1995). In other
words, counsel’s duty to investigate and prepare is not limitless. See Washington v. Watkins, 655
F.2d 1346 (5th Cir. 1981). Counsel’s performance will not be found deficient for failing to unveil
all mitigation evidence, if, after a reasonable investigation, nothing has put counsel on notice of the
existence of that evidence. See Babbit v. Calderson, 151 F.3d 1170, 1174 (9th Cir. 1998) (citation
omitted). In summary, “no particular set of detailed rules can satisfactorily take account of the
variety of circumstances faced by defense counsel. Rather, courts must judge the reasonableness of
counsel’s conduct on the facts of the particular case, viewed as of the time of counsel’s conduct, and
judicial scrutiny of counsel’s performance must be highly deferential.” Roe v. Flores-Ortega, 528
U.S. 470, 120 S. Ct . 1029 (2000) (internal citations and quotations omitted).

                            Summary of Mitigation Evidence Presented

                                              1991 Trial

        During the 1991 penalty phase trial, the petitioner testified on his own behalf. Keen, 926
S.W.2d at 730. He also offered the testimony of his sister, brother, his adoptive parents and Dr.
Hutson, a clinical psychologist. Id. “The substance of their testimony was to relate the conduct of
the [petitioner] in the rape and homicide of the victim to be the result of his childhood abuse.” Id.


                                                 -42-
The petitioner’s siblings testified that their father was physically and emotionally abusive of his
children and sexually molested at least one of his daughters. Id. The petitioner’s father was a parole
violator and kept the family constantly on the move to evade the law. Id. The testimony presented
revealed that the children were malnourished, neglected and ultimately abandoned by their parents
when the petitioner was between two and three years old. Id. The petitioner then was placed in
foster homes where there was indication that the petitioner was physically and sexually abused. Id.
at 730-731. The petitioner and one brother, Allen, were adopted by a couple when the petitioner was
four and one-half years old. Id. The petitioner’s adoptive parents testified that the petitioner was
a poor student and, as an adolescent, drank, smoked marijuana, stole, and ran away from home. Id.
Dr. Hutson, the clinical psychologist, testified that the petitioner had failed to bond with his adoptive
parents and had developed a “shell” around himself. Id. Dr. Hutson “diagnosed the [petitioner] as
suffering from post-traumatic stress disorder, pedophilia, dependent personality disorder, and
attention deficit hyperactivity disorder in childhood. Id. Dr. Hutson further testified that, at the time
of the offense, the petitioner was under the influence of mental and emotional problems substantially
affecting his judgment. Id. Additionally, there was mitigating testimony from county jail personnel
that the defendant had been a good prisoner and had caused no problems during his incarceration.
Id.

                                            1997 Re-Trial

        During the 1997 re-trial, essentially the same mitigation evidence was offered. The
petitioner’s adoptive parents testified that the petitioner and his brother, Allen, were malnourished
during early childhood, often nervous, unable to play or interact socially with others, had difficulty
sleeping, ran fevers, and constantly urinated while asleep. State v. David Keen, No. 02C01-9709-
CR-00365, 1999 WL 61058, at *3 (Tenn. Crim. App., at Jackson, Feb. 10, 1999), aff’d by, 31
S.W.3d 196 (Tenn. 2000). The petitioner was prescribed Ritalin when he started school. Id. At
some point, the petitioner was diagnosed with minimal brain dysfunction. Id. During the
petitioner’s teenage years, the petitioner skipped school and stole a vehicle. Id. The petitioner’s
adoptive parents acknowledged receipt of a letter written by a psychiatrist prior to their adoption of
the petitioner noting that the petitioner needed help; the Brieschkes did not receive this letter until
the petitioner was sixteen years old. Id.

         The petitioner’s brother, Allen, and sisters, Linda Gehringer and Darlene Krone, also
testified. The petitioner’s siblings presented testimony offering insight into the early family life of
the petitioner’s family. The children suffered under a physically abusive, alcoholic father. Id.
Specific instances of their father’s cruelty were related, specifically incidents involving a hot tea pot
placed on Linda’s hand and beatings with two-by-four boards and electrical cords. Id. at *4. The
family frequently relocated due to failure to pay bills and conflicts with local authorities, moving
twenty-six times in a two year period. Id. at *3, 4. It was not uncommon for their father to kill
animals in front of the children threatening to do the same to them if they misbehaved. Id. When
the petitioner was between two and three years old, their parents abandoned them and the children
were placed in foster care. Id. While in foster care, the petitioner and Allen were subjected to
corporal punishment and physical abuse. Id. Darlene Krone was sexually abused by an older


                                                  -43-
brother. Id. at *4. This abuse occurred after she had been separated from the petitioner and Allen.
Id. Darlene Krone testified that she had been receiving counseling for her childhood experiences.
Id. She stated that she has had minimal contact with the petitioner since he was two years old and
that the petitioner was not around for most of the abuse levied by their father. Id. She testified that
she never saw her father strike the petitioner. Id. Linda Gehringer testified that she was sexually
abused by the petitioner’s grandfather when she was nine years old and that she was sexually abused
by her stepfather when she was eleven. Id. She described their childhood as “an environment of
terror.” Id. Linda Gehringer stated that she has been in counseling for the majority of her life. Id.

        Finally, the defense presented the testimony of Dr. John Ciocca, a clinical psychologist. Id.
Dr. Ciocca testified that the petitioner’s IQ ranged between 104 and 110. Id. Dr. Ciocca opined that
the petitioner suffered from intense depression, disorientation from reality, personality problems,
post-traumatic stress disorder, suicidal tendencies, pedophilia, and attention-deficit disorder. Id.
Although one test demonstrated the presence of psychotic-like symptoms, Dr. Ciocca testified that
the petitioner was competent to stand trial. Id. Dr. Ciocca further related that the petitioner had
memories of being anally raped by his first foster father. Id. He also testified that, as a child, the
petitioner was diagnosed with attention deficit hyperactivity disorder and prescribed Ritalin. Id. Dr.
Ciocca concluded that the petitioner’s bed-wetting, eating behavior, and hiding from visitors carried
over into his home environment with the Brieschkes. Id. The petitioner was placed in a facility for
treating teenagers with psychological problems when he was seventeen years old. Id.

                              a. Failure to Present Skipper Evidence

         During the petitioner’s 1991 trial, counsel presented Skipper evidence, that is, evidence
illustrating the petitioner’s adjustment to prison life. See Skipper v. South Carolina, 476 U.S. 1, 106
S. Ct. 1669 (1986). However, trial counsel elected not to present such evidence at the re-trial in
1997. The petitioner contends that trial counsel wrongfully denied the jury the opportunity to
consider an entire area of mitigation evidence, i.e., the petitioner’s positive record of incarceration.

         The post-conviction court entered the following findings of fact and conclusions of law as
to this issue:

       . . . Judge Ryan testified that they did put on a deputy jailer with “Skipper” evidence
       at the first trial, but chose not to do that during the second trial. She testified it was
       “somewhat of a double-edged sword,” in that you don’t want to open up the door to
       why he was incarcerated. There was already proof presented of his depression in the
       record and Dr. Ciocca had already testified that petitioner had post-traumatic stress
       disorder and depression relating back to his childhood abuse. Although Judge Colton
       had not allowed the State to let the jury know that petitioner was on death row, any
       additional proof of depression might open that door to cross-examine along this line,
       as petitioner might very well be depressed and stressed from being at Riverbend
       under penalty of death during this time, before his death sentence was reversed. She
       stated that the team “did not have any proof at the time of the offense or prior to his


                                                 -44-
        incarceration that he was suffering from any type of psychotic or neurotic type of
        impairments or diseases. So, therefore, the inference would be that once he’s been
        incarcerated he’s now suffering from those. . . .” . . . She also stated that as he got
        married while on death row, and “was able to have what could be considered a
        normal relationship with someone,” this might hurt the defense theory that he could
        not bond well. The jury was not told that the defendant was incarcerated, and as he
        was dressed in civilian clothes they would not have known unless this proof came in.
        Judge Ryan gave extensive testimony about the thought processes of this decision in
        detail . . . . He was on death row for raping and murdering a child, and his anxiety
        and depression medications would seem reasonable to a jury under those
        circumstances. . . . As to other “Skipper” evidence, although there was proof that he
        was compliant, no writeups, appropriate socialization with other inmates, and got
        married while at Riverbend, these would tend to rebut proof that he was disturbed.
        ...

        Petitioner essentially asserts that his ability to adjust to prison life demonstrated that he was
amenable to rehabilitation and that this positive adjustment to prison life was relevant mitigation
evidence that his counsel was constitutionally obligated to produce under Skipper v. South Carolina.
The issue in Skipper, however, was not whether counsel could be deemed ineffective for failing to
introduce this sort of evidence, but rather, whether the trial court erred in excluding proffered
evidence that the defendant’s behavior in prison had been good. The Court held that the proffered
prison record evidence was relevant in mitigation of punishment. In the present case, the issue is not
whether proper evidence was excluded, but rather, whether trial counsel was ineffective for failing
to introduce evidence of that adjustment as mitigation evidence to convince the jury that the
petitioner had made a positive adjustment to prison life.

        The petitioner’s claim fails. The petitioner has failed to demonstrate the trial counsel lacked
an objectively reasonable basis for electing not to produce this evidence. In Bacon v. Lee, 225 F.3d
470 (4th Cir. 2000), Bacon similarly complained that trial counsel was ineffective for failing to
produce evidence of Bacon’s amenability to prison life. In that case, as in the present case, the
original sentence of death was vacated and the case was remanded for resentencing. Id. at 480. Trial
counsel did not conduct an additional investigation into Bacon’s background or into his prison
record. Id. At the first sentencing, the jury considered evidence of Bacon’s adaptability to prison
life. Counsel elected not to present such evidence at the re-trial. The Fourth Circuit Court of
Appeals held that, in this regard, “[c]ounsel should not be second-guessed for deciding not to raise
this subject before the resentencing jury.” Id. at 480, n. 3. We agree. Trial counsel provided the
basis for their determination of not introducing Skipper evidence at the second trial. The record
supports the conclusion that the decision was made after reasonable investigation and was the result
of a reasoned decision. We cannot conclude that trial counsel was deficient in this area.

            b. Failure to Introduce Intake Study Prepared by Sam and Susan Buzzard




                                                  -45-
         The petitioner complains that information contained in the Intake Study was never presented
to the jury in 1997. The petitioner contends that the information contained in this report was crucial
in establishing a nexus between the homicide committed by the petitioner and the damage inflicted
upon the petitioner as a child. Specifically, petitioner complains that had the Intake Study been
introduced as evidence, the jury would have documentary proof that the abuse actually occurred in
addition to the testimony of Dr. Ciocca.

         At the post-conviction hearing, trial counsel testified that, in his opinion, eyewitnesses of the
abuse were better proof than cold documents. For this reason, defense counsel chose to have the
siblings testify as to the abuse. William Massey, the petitioner’s expert witness on capital case
preparation, testified that “if I read [the Intake Study] and did not find any information in it that I
thought outweighed the positive benefits then I certainly would want to put it in.” The post-
conviction court found that defense counsel “elected not to put the Intake Study in for this very
reason.” The post-conviction court related that defense counsel reasonably believed that the
document would emphasize the extreme youth of the witnesses at the time and would emphasize the
age of the petitioner when the abuse stopped. Judge Ryan further cautioned that, “as a lawyer, . . .
it is quite dangerous to blankly submit to a jury large documents that contain a variety of statements
and opinions of others. Strategically it is my opinion that it is better to use your witness to get that
information in, to bring out the information you want the jury to hear.” Judge Ryan added that there
were certain things in the documents that were favorable to the State, which had the defense
introduced the Intake Study, they would have effectively provided to the State’s case.

        The post-conviction court found that “not making these documents exhibits in the retrial was
a well-thought out strategy on the part of petitioner’s trial attorneys, and should not be second
guessed. Their entire case was based on abuse, and despite Dr. Ciocca’s testimony during the trial
that abuse at an early age would be long-lasting, a jury very well might discount the abuse and its
effects due to petitioner’s young age at the time and the youth of the eye-witnesses to it. The
relevant evidence in the reports came in through Dr. Ciocca, whose testimony was fairly thorough,
in this Court’s opinion. This Court received literally hundreds of pages of records and documents
as exhibits during the hearing on this petition . . . [t]his type of evidence . . . would not be very
effective in a jury trial, with each juror’s different individual levels of reading and tolerance for
patience.”

        Evidence of the petitioner’s abusive childhood was introduced at the 1997 retrial. Dr. Ciocca
related that the impact of the early childhood abuse was not diminished by his placement with the
Brieschkes. The evidence contained in the Intake Study was cumulative of this testimony. We
cannot conclude that the decision to rely on eyewitness testimony rather than on a cold record was
not sound trial strategy.

                 c. Failure to Present Evidence of the Effects of Alcohol In Utero

        Throughout the post-conviction proceedings and interwoven throughout this appeal is
petitioner’s complaint that trial counsel failed to investigate and offer evidence regarding his


                                                  -46-
mother’s alcohol use while she was pregnant with the petitioner. The petitioner contends that
evidence as to the petitioner’s biological mother’s alcohol abuse was contained in the Intake Study.
Additionally, petitioner contends that trial counsel were aware that fetal alcohol exposure was an
issue to be explored in preparing mitigation in a capital case.

        Dr. Ciocca never testified regarding fetal alcohol exposure. Trial counsel could not recall
what testimony was presented at trial, however, he acknowledged that if information existed that his
mother was drinking heavily during pregnancy it would be very important. The Intake Study
reflected that the petitioner’s birth parents lost their business because they stayed out at night
drinking in bars. The Intake Study further indicated that the petitioner was two years old when his
parents started the business. Despite the contradiction in this evidence with the assertion that there
was proof that the petitioner’s mother drank heavily while pregnant with the petitioner, the
petitioner’s expert, Dr. Wass, maintained that there “ is evidence that is highly suggestive that there
was chronic frequent . . . use and abuse of alcohol by David’s mother.” Dr. Wass also testified that
the petitioner exhibited a wide range of problems consistent with a pattern of deficits observed in
children who are alcohol affected. Additionally, because Dr. Wass did not have a medical degree,
she was not qualified to diagnose the petitioner with the disorder. Dr. Wass acknowledged that the
petitioner had never been diagnosed with fetal alcohol syndrome. Dr. Wass’s assumption that the
petitioner’s mother was drinking while pregnant with the petitioner was based largely on reports of
subsequent alcohol use after pregnancy and run-ins with the law. Dr. Wass admitted that she could
not say that the mother did in fact drink while pregnant with the petitioner.

        The post-conviction court found that the testimony of Dr. Wass was based upon pure
speculation with no documentation or medical findings to support it. There was absolutely no
evidence that the petitioner’s mother was drinking during the time of her pregnancy nor is there any
indication that trial counsel knew or had reason to believe that the petitioner’s mother was drinking
while pregnant with the petitioner.

        In reviewing claims of ineffective assistance of counsel, “[w]e address not what is prudent
or appropriate, but what is constitutionally compelled.” Burger v. Kemp, 483 U.S. 776, 794, 107 S.
Ct. 3114, 3126 (1987). The record is silent as to whether the petitioner’s mother consumed alcohol
during pregnancy. Since there is no evidence that counsel had reason to believe that the petitioner’s
mother drank while she was pregnant with the petitioner, counsel’s failure to tie the petitioner’s
psychological problems to fetal alcohol syndrome would not be considered unreasonable or
ineffective. Accordingly, we cannot conclude that a sufficient threshold of facts were present to
require further investigation.

        Additionally, fetal alcohol syndrome due to a mother’s consumption of alcohol during
pregnancy is recognized as a cause of mental retardation, physical malformations, poor academic
performance and maladaptive behaviors such as poor judgment, distractibility and difficulty
perceiving social cues. Trial counsel did cause mental examinations to be done and presented the
mitigating circumstances found to the jury. Dr. Ciocca testified that the petitioner suffered from
intense depression, disorientation from reality, personality problems, post-traumatic stress disorder,


                                                 -47-
suicidal tendencies, pedophilia, and attention-deficit disorder. He also testified that, as a child, the
petitioner was diagnosed with attention deficit hyperactivity disorder and prescribed Ritalin. He
added that the petitioner was placed in a facility for treating teenagers with psychological problems
when he was seventeen years old. Dr. Ciocca concluded that the petitioner’s bed-wetting, eating
behavior, and hiding from visitors carried over into his home environment with the Brieschkes.
Even had there been a substantiated finding of fetal alcohol effect at the post-conviction level,
prejudice would still be absent in that the effects of fetal alcohol syndrome/fetal alcohol effect would
not be inconsistent with the proof presented to the jury through Dr. Ciocca’s testimony.

       d. Failure to Present Evidence Connecting Malnutrition and its Effect on the Brain

       Petitioner alleges that trial counsel was ineffective for failing to present evidence of the
connection between the petitioner’s malnutrition and its effect on his developing brain. This issue
was not raised in the court below and cannot be raised for the first time on appeal. Alvarado, 961
S.W.2d at 153.

                         e. Overall Failure to Present Mitigation Evidence

        The petitioner compares this case to the failings of counsel in State v. Chew, 844 A.2d 487
(N.J. 2004). The Chew court found counsel ineffective for failing to adequately prepare and present
mitigation evidence. Specifically, the court found that trial counsel’s decision not to call an expert
was based on inadequate investigation, that trial counsel had failed to provide the expert with
sufficient information, and that trial counsel failed to investigate and determine whether the
examiner was aware of the defendant’s incestuous relationship. We fail to find the same parallels.

        We do draw a parallel, however, between the case sub judice and counsel’s performance in
Tucker v. Ozmint, 350 F.3d 433 (4th Cir. 2003). Tucker was sentenced to death, but the South
Carolina Supreme Court reversed the sentence. State v. Tucker, 464 S.E.2d 105 (S.C. 1995). Upon
re-sentencing, Tucker again received the death penalty. State v. Tucker, 512 S.E.2d 99 (S.C. 1999).
This time the death sentence was affirmed.

        On collateral review, Tucker claimed that trial counsel was ineffective for failing to provide
reports of childhood sexual abuse to an expert witness. The Fourth Circuit noted that trial counsel
“presented a substantial mitigation case at sentencing.” Tucker, 350 F.3d at 441. Trial counsel
presented five witnesses, including Tucker’s wife, two vocational rehabilitation workers, a widow
whose husband had been befriended by Tucker, and a clinical psychologist. Id. The expert witness
described at length Tucker’s history of abuse as a child and its connection to Tucker’s antisocial
personality. Id. Tucker was diagnosed with a conduct disorder as a juvenile and more recently was
diagnosed with antisocial personality disorder. Id. The expert concluded that the personality
disorder was most likely the result of “early sexual and/or physical abuse, early and sustained
parental indifference and/or the lack of concern or care, the lack of a solid role model as a parent.”
Id. Tucker was found abandoned in a locked car when he was only eighteen months old. Id. His
parents had fled in order to avoid prosecution probably arising from Tucker’s broken leg. Id. Tucker


                                                 -48-
then became the target of sexual and physical abuse from family members until he was about eleven
years old. Id. The expert testified that, as a result of this abuse, Tucker was unable to conform his
behavior to common standards. Id.

        The Tucker court found that the jury was offered a clear, coherent mitigation case that
focused on Tucker’s history of abuse. Counsel had attended the first sentencing hearing. The court
found that counsel had made “reasoned judgments about which witnesses to call, and presented an
expert psychologist who gave the jury a full picture of Tucker’s disturbing social history.” Id. at
441-442. The Fourth Circuit held that the Strickland does not impose a constitutional requirement
that counsel uncover every scrap of evidence that could conceivably help their client. Id. at 442
(citations omitted). The court held that counsel reasonably investigated Tucker’s history of abuse
and presented a thorough mitigation case at sentencing.

        The rationale of the Tucker court is appropriately applied to counsel’s performance in the
case sub judice. The mitigation evidence presented at the 1997 hearing was extensive, thorough, and
aptly conveyed the mitigation theme relating to long-term implications of the childhood abuse.
Petitioner has failed to establish substantially different “new” mitigation evidence. We cannot
conclude that trial counsel’s performance in this case was deficient.

        Moreover, even if counsel’s performance was unreasonable, any deficient performance did
not result in prejudice. In determining whether counsel’s performance resulted in prejudice, this
court “reweighs the evidence in aggravation against the totality of available mitigation evidence.”
Wiggins v. Smith, 539 U.S. 510, 534, 123 S. Ct. 2527, 2542 (2003). A finding of prejudice is
appropriate only if the facts “undermine confidence in the outcome” of the proceeding, in this case
a death sentence. Strickland, 466 U.S. at 694, 104 S. Ct. at 2052.

         The State offered extremely powerful evidence of aggravating factors. Trial counsel
sufficiently interviewed and prepared their witnesses, they adequately investigated petitioner’s
psychiatric condition, they presented compelling evidence of childhood abuse, and they presented
evidence of the impact of this abuse upon the adult petitioner. While the mitigation proof is very
compelling, particularly tales of the abuse, it pales in comparison to the vision of the eight-year-old
victim wrapped in a wet blanket, having been raped until “I felt crap and I stopped,” and then being
strangled and thrown into a river still alive. There is no reason to lack confidence as to the outcome
in this case because the aggravating circumstances submitted to the jury outweighed the mitigating
circumstances. The petitioner has failed to establish how any additional proof would have bolstered
his mitigation case in any significant sense. Considering the overwhelming aggravating
circumstances, there is no reasonable probability that the omitted evidence would have changed the
conclusion that the aggravating circumstances outweighed the mitigating circumstances and, hence,
the sentence imposed. Strickland, 466 U.S. at 700, 104 S. Ct. at 2071. Accordingly, the petitioner
has made no showing that the justice of his sentence was rendered unreliable by a breakdown in the
adversary process caused by deficiencies in counsel’s assistance. Id. He is not entitled to relief as
to these claims.



                                                 -49-
                              4. Failure to Prepare Defense Witnesses

         The petitioner next complains that trial counsel was ineffective for failing to properly prepare
defense witnesses to testify. The basis of this claim rests upon allegations of defense witnesses that
the first meetings with defense counsel were held the night before the first hearing or the day of the
hearing. Additionally, petitioner claims that the manner in which trial counsel collectively
interviewed the witnesses, rather than talking with them individually, prohibited the witnesses,
specifically the petitioner’s siblings Linda Gehringer, Darlene and Allen Brieschke, from revealing
more personal information. Petitioner asserts that “[h]ad the trial attorneys worked with the
witnesses in preparing them to testify they would have been able to conduct a far more reaching
examination and delve deeply into areas they barely touched upon in the sentencing hearing.”
Petitioner continues that “[h]ad they done so, they would have provided the 1997 jury with the
information they needed to make an informed sentencing determination and they would have
overcome the State’s specious “abuse excuse” argument.”

         The post-conviction court entered the following findings of fact and conclusions of law as
to this claim:

                 During the hearing, petitioner alleged that the capital defense team failed to
        interview witnesses properly in that they were interviewed as a group instead of
        individually. They also suggested that members of the team should have traveled
        out-of-state several times to see these mitigation witnesses prior to trial, and even
        lived with them for several days in order to win their trust, to get them to open up.
        This Court finds it absurd to expect this standard of preparation from any appointed
        defense team, even in a capital case, unless there is some particularized need shown
        to expend this amount of time, personal involvement and financial resources.
        Petitioner recalled to testify at the hearing all of the mitigation witnesses who
        testified in the retrial, to offer additional testimony from them to show how these
        witnesses were under-utilized in the trial, suggesting that after they were interviewed
        and prepared properly by the Post-conviction Defender, more mitigation was
        developed. The problem with this strategy was that this Court found that very little,
        if any, extra information gleaned through this arduous, expensive and time-
        consuming witness preparation process added anything to that already presented at
        the trial, and most of the additional testimony was also either redundant, not
        mitigating or tended to raise other issues detrimental to petitioner’s mitigation. The
        decision to interview witnesses as a group or individually was made on a case by case
        basis, the process of that decision being described by social (mitigation) investigator
        Joyce King in her testimony at the hearing . . . . Prior to petitioner’s retrial, each
        witness in petitioner’s case was interviewed over the phone several times by
        attorneys or investigators, met the team in Memphis and actually testified at the first
        trial in 1991 (except for Darlene Krone, one of petitioner’s half-sisters, who could
        not be located until the second []trial). They then were re-interviewed for the second
        []trial, with the added advantage of hindsight, transcripts of prior testimony and


                                                  -50-
cross-examination, and an opportunity for adjustments to be made for their retrial
testimony. As to Darlene Krone, the additional sibling called as a witness in 1997
who could not be located for the first trial, Joyce King testified [that Darlene Krone
was living in Illinois during the time Ms. King was preparing for the sentencing. Ms.
King did not travel to Illinois to interview the witnesses nor did any one on the
defense team. The in-person interviews took place in Memphis. The in-person
interview of Darlene Krone took place as part of a team/family meeting a few days
prior to the 1997 retrial. The in-person interview followed several telephone
interviews discussing the Tooman children’s upbringing, at what point the children
were separated, whether the children remained in contact with one another, Ms.
Krone’s educational background and occupation, and “things of that nature.”].

. . . Other members of the team interviewed [Ms. Krone] over the phone as well prior
to her arrival in Memphis, and then there was a group meeting with the entire team
for several hours to coordinate the testimony of all the family members . . ., with Dr.
Ciocca, the team’s psychological abused child specialist, present asking them
questions as well about the family’s life history together (after having first reviewed
all the records and making three visits with the petitioner). Darlene and her sister
then had a private meeting with Judge Ryan after the group meeting to address their
concerns that their brother not ever be released from jail, as they felt he was a
dangerous sex abuser. This Court finds that there was nothing improper about the
way the witnesses were interviewed and prepared, and although the team did not fully
develop the petitioner’s suggested theory of “multi-generational sequential damage,”
as the petitioner in hindsight now suggests they should, they put on an extremely
compelling story of mitigation, and the jury was presented an accurate picture of
petitioner’s malnourished, abusive, unloving, nomadic childhood, an “environment
of terror,” according to his sister at trial. Our Tennessee Supreme Court and state
legislature have become rightfully concerned about the burgeoning increase in costs
associated with the investigation and presentation of these cases, and this Court
rejects the theory of the defense in this case that all out of state witnesses must be
personally visited, and actually lived with for 3 or 4 days just in case they might feel
more likely to “open up” to the investigators. Judge Ryan testified to these expensive
out-of-state trips . . . [noting that her investigators were very competent and had quite
a bit of experience. They would have ascertained the necessary information either
via mail or by telephone. Judge Ryan commented that, at the time, there was a big
issue with the indigent defense fund and that, in her opinion, in-person interviews
would not have garnered any additional information other than that already
ascertained by telephone.]

This Court agrees with the testimony of Judge Ryan, and finds that after a re-
interview of the witnesses called at petitioner’s trial by his post-conviction team, and
recalling them for this hearing, no other testimony of significance is presented by
these witnesses that was missed by the trial attorneys and not presented at trial (other


                                          -51-
       than evidence of their own problems after being separated from petitioner, to support
       petitioner’s suggested theory of “multi generational sequential damage,” . . . .)

        With regard to each of the defense witnesses, the post-conviction court found that Darlene
Krone revealed no new facts that were mitigating to the petitioner. Rather, Ms. Krone’s testimony
delved further into her own personal problems, including that she never felt close to her adoptive
parents or husband, that she was raped by her older brother, and that she attempted suicide at age
nineteen. The post-conviction court further found that the information not provided at the sentencing
hearing related only to Ms. Krone after her separation from the petitioner and, as such, would only
be marginally relevant to the petitioner’s mitigation, if at all. The post-conviction court noted that
Linda Gehringer’s testimony at both the 1991 and 1997 trials were essentially the same. Additional
information elicited at the post-conviction hearing from Ms. Gehringer related to Ms. Gehringer after
her separation from the petitioner. Again, the post-conviction court found that this information was
only marginally relevant to the petitioner’s mitigation, if at all. Although this information from Ms.
Krone and Ms. Gehringer was permitted for the purpose of creating a record, the post-conviction
court determined that “this type of evidence would have been excluded (as the trial judge in
petitioner’s retrial in fact ruled) as not a ‘matter that the court deems relevant to the punishment’
. . .” The post-conviction court surmised that the best method of utilizing this information was
through the testimony of an expert witness.

Regarding Allen Brieschke, the post-conviction court observed that Allen Brieschke testified at both
the 1991 and 1997 trials. Mr. Brieschke’s testimony at the post-conviction hearing was essentially
the same as that in the two prior trials. He added that he was divorced, had a daughter that was
adopted by his ex-wife’s husband, that he has been diagnosed with post-traumatic stress disorder,
takes Xanax to sleep, and frequently changes jobs. The post-conviction noted that the professional
appearance of Mr. Brieschke and his sisters and the fact that “these siblings have stayed out of
trouble . . . lessens the impact of this mitigation somewhat.”

         Upon review of the record, we conclude that the petitioner has failed to establish that trial
counsel was deficient in the preparation of the mitigation witnesses. Reviewing the record before
us, we conclude that counsel’s conduct was not objectively unreasonable. Counsel had adequate
contact with the family members prior to and throughout the trial. See generally Taylor v. Mitchell,
296 F. Supp. 2d 784, 807 (N.D. Ohio 2003). The record supports the post-conviction court’s
conclusions the “new” information elicited from the petitioner’s siblings was only marginally
relevant to the petitioner’s mitigation in that the information related specifically to the individual
siblings well after their separation from the petitioner. While we are sympathetic to the life
experiences of the petitioner’s siblings, any abuse, suffering, or mental illness attributed to the
petitioner’s siblings has little to no relevance to the mitigation of the petitioner’s crime. See, e.g.,
State v. Simpson, 462 S.E.2d 191, 211 (N.C. 1995) (mother’s abuse of defendant’s brother irrelevant
mitigation to defendant’s crime). The petitioner has failed to establish that this testimony would
have negated the State’s “abuse excuse” argument. He has failed to establish that the additional
testimony from these witnesses would have affected the jury’s determination that a sentence of death



                                                 -52-
was warranted. Accordingly, the petitioner does not allege a sustainable claim of ineffective
assistance of counsel.


                            5. Failure to Effectively Use Expert Services

         In his final claim of deficient performance by counsel, the petitioner claims that trial counsel
committed numerous errors regarding the use of Dr. Ciocca in the second trial. He contends that (1)
trial counsel failed to obtain the services of Dr. Ciocca in a timely fashion, (2) trial counsel
improperly proceeded upon the premise that Dr. Ciocca should determine what materials should
come in and what should not, and (3) trial counsel failed to provide Dr. Ciocca with information
needed to conduct a thorough and accurate evaluation. Petitioner asserts that the failure of trial
counsel to provide Dr. Ciocca with necessary information was disastrous in that (1) Dr. Ciocca
testified that the Rorschach test, the test he administered, was not very reliable, (2) an argument
ensued between Dr. Ciocca and the prosecutor regarding the petitioner’s classification as a
pedophile, (3) Dr. Ciocca was unable to inform the jury as to brain damage resulting from in utero
alcohol exposure, and (4) Dr. Ciocca was unable to trace the continuing repercussion of early trauma
that persisted throughout the petitioner’s life.

         The post-conviction court noted that Dr. Ciocca was not called as a witness at the post-
conviction hearing. Nonetheless, the post-conviction court determined, from Dr. Ciocca’s testimony
at the retrial and from the reasoning and approach to presenting mitigation by which he was selected
by the defense team, that Dr. Ciocca was interviewed and prepared adequately for his testimony
during the retrial. The defense team provided Dr. Ciocca with all of the petitioner’s medical records,
including the Intake Study prepared by the Buzzards, the testimony of the other witnesses, the
Winnebago Mental Health Institution Study, and all the school and other records they had collected
plus all of Dr. Hutson’s record from the first evaluation and trial. Dr. Ciocca also met with the
petitioner on three occasions and met with the family members as a group and asked them questions.
Dr. Ciocca was an expert in child abuse and this matched the defense’s major theory of mitigation.

        Additionally, the post-conviction court found that “[t]he trial attorneys . . . did retry the case
with an expert in early child abuse, there was no credible evidence at the time of petitioner’s trial that
petitioner’s mother was constantly drinking while pregnant with petitioner (and none was produced
at the hearing), petitioner has never been diagnosed with fetal alcohol syndrome, and a CAT scan,
an EEG and an MRI were done of petitioner with no damage found.” (emphasis in original). The
record supports the factual findings made by the post-conviction court. The petitioner has failed to
establish how Dr. Ciocca’s trial testimony would have differed had he been prepared to petitioner’s
satisfaction.

        At the 1997 retrial, Dr. Ciocca diagnosed the petitioner as suffering from post-traumatic
stress disorder, serious depression, and attention deficit disorder. Keen, 31 S.W.3d at 204.
Coincidentally, this diagnosis is consistent with the diagnoses of the petitioner’s siblings. Dr. Ciocca
also determined that the petitioner exhibited signs of pedophilia, despite no indication of persistent


                                                  -53-
and constant sexual interest in children. Id. He further related that the petitioner “suffered from
occasions ‘where he is not in good contact with reality,’ and that another test showed the ‘presence
of psychotic-like symptoms.’” Id. Regarding the petitioner’s familial history, Dr. Ciocca related that
the petitioner was “born into a family of crisis,” which “had fallen on hard times,” and in which
“physical abuse and sexual abuse were rather rampant.” Id. at 204-205. He added that the petitioner
remembered being abused and anally raped by his foster father. Id. Dr. Ciocca further stated that
“the absence of nurturing, along with the presence of general hostility or apathy toward the
[petitioner] significantly affected his normal childhood development.” Id. He stated that it was
“unrealistic to think that just because the Breischke’s were a fine upstanding family that their
presence in their lives could overcome completely the problems of damaged attachment and
damaged trust that took place when [the petitioner and Allen] were young.” Dr. Ciocca’s testimony
was well-informed, thorough and persuasive. We are perplexed at petitioner’s complaint that Dr.
Ciocca was unable to inform the jury about the severe abuse suffered by the petitioner as a child and
how this damage impacted the petitioner. The record of Dr. Ciocca’s testimony belies this
allegation. Moreover, as determined by the post-conviction court, there is no credible evidence that
the petitioner’s mother consumed alcohol was she was pregnant with the petitioner. The petitioner
was unable to produce a diagnosis that he suffers from fetal alcohol syndrome. Accordingly, trial
counsel cannot be deemed ineffective for failing to inform Dr. Ciocca about the alleged damage the
petitioner suffered from in utero alcohol exposure. This claim is without merit.

             IV. Constitutional Errors with the Imposition of the Death Penalty

        The petitioner raises numerous challenges to the constitutionality of the imposition of the
death penalty. These claims should have been raised in prior proceedings. Accordingly, these claims
are waived. See T.C.A. § 40-30-206(g). Notwithstanding, we proceed to address each claim on its
merits.

            A. Death Sentence Impinges upon Petitioner’s Fundamental Right to Life

        The petitioner asserts that the death sentence is unconstitutional in that it impinges upon the
petitioner’s fundamental right to life and that the punishment of death is not necessary to promote
any compelling state interest. The petitioner’s complaint that his death sentence must be reversed
because it violates his “fundamental right to life” is contrary to settled precedent as reflected in
Cauthern v. State, 145 S.W.3d 571, 629 (Tenn. Crim. App. 2004) (citing Nichols, 90 S.W.3d at 604;
State v. Mann, 959 S.W.2d 503, 536 (Tenn. 1997) (Appendix); State v. Bush, 942 S.W.2d 489, 523
(Tenn. 1997)).

     B. Failure to Charge Aggravating Circumstances in Indictment Violates Due Process

        Petitioner next asserts that he was sentenced to death in violation of the Due Process Clause,
Article I, § 8 of the Tennessee Constitution and the Fourteenth Amendment to the United States
Constitution. Specifically, relying upon Apprendi v. New Jersey, he argues that the aggravating



                                                 -54-
circumstances which made him eligible for the death penalty were not submitted to the grand jury
nor returned in the indictment.

        The petitioner’s argument is based upon the premise that first-degree murder is not a capital
offense unless accompanied by aggravating factors. Thus, he alleges that to satisfy the requirements
of Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000), the indictment must include
language of the statutory aggravating circumstances to elevate the offense to capital murder. This
argument has been rejected by our supreme court in State v. Holton, 126 S.W.3d 845 (Tenn. 2004);
see also State v. Berry, 141 S.W.3d 549, 558-562 (Tenn. 2004)(concluding that the Supreme Court’s
decision in Blakely v. Washington does not alter the court’s analysis on whether statutory aggravating
circumstances must be pled in the indictment). The petitioner is not entitled to relief on this issue.

                   C. Tennessee’s Death Penalty Statutes Violate Bush v. Gore

        The petitioner contends that the imposition of the death penalty violates both the state and
federal constitutions because absolute discretion is conferred to each individual district attorney
general to indiscriminately seek the death penalty. The petitioner concedes that this issue was raised
and rejected on direct appeal as part of a general challenge to the Tennessee death penalty statute.
See State v. Keen, 31 S.W.3d 196, 233 (Tenn. 2000) (Appendix). Our supreme court has not altered
its opinion and has continued to reject this claim since the petitioner’s direct appeal. See, e.g., State
v. Thomas, 158 S.W.3d 361, 407 (Tenn. 2005). Notwithstanding, the petitioner asserts that the issue
should be reconsidered in light of the principles set forth in Bush v. Gore, 531 U.S. 98, 121 S. Ct.
525 (2000). He contends that the prosecutorial function is analogous to that of a state court’s
issuance of a remedy and implies a duty to ensure that prosecution of crimes is implemented fairly.

        The petitioner’s claim fails for numerous reasons. In Bush v. Gore, the United States
Supreme Court held that when a state court orders a remedy, such as a recount of votes, there must
be some assurance the implementation of the remedy will comport with “the rudimentary
requirements of equal treatment and fundamental fairness. . . .” Id. The potential sweep of the
Supreme Court ‘s holding is limited by the Court itself: “[o]ur consideration is limited to the present
circumstances. . . .” Id. Thus, we decline any invitation to conclude that Bush v. Gore established
a new rule of constitutional criminal procedure. Bush v. Gore, a voting rights case, does not apply
to this criminal prosecution. See generally Black v. Bell, 181 F. Supp.2d 832, 879 (M.D. Tenn.
2001). Moreover, the petitioner’s claim on its merits has been rejected on numerous occasions. The
United States Supreme Court has refused to strike down various death penalty statutes on the ground
that those statutes grant prosecutors discretion in determining whether to seek the death penalty.
Gregg v. Georgia, 428 U.S. 153, 96 S. Ct. 2909, 2937 (1976) (petitioner’s argument “that the state
prosecutor has unfettered authority to select those persons whom he wishes to prosecute for a capital
offense” does not indicate that system is unconstitutional); Proffitt v. Florida, 428 U.S. 242, 96 S.
Ct. 2960, 2967 (1976) (same). Applying the United States Supreme Court decision in Gregg v.
Georgia, 428 U.S. at 198-99, 96 S. Ct. at 2909, the Tennessee Supreme Court has held that:




                                                  -55-
        Opportunities for discretionary action occurring during the processing of a murder
        case, including the authority of the state prosecutor to select those persons for whom
        he wishes to seek capital punishment do not render the death penalty unconstitutional
        on the theory that the opportunities for discretionary action render imposition of the
        death penalty arbitrary or freakish.

State v. Cazes, 875 S.W.2d 253, 268 (Tenn. 1994); see also State v. Brimmer, 876 S.W.2d 75, 86
(Tenn. 1994); State v. Hall, 958 S.W.2d 679, 716 (Tenn. 1997). Moreover, our supreme court
expressly rejected the assertion that prosecutorial discretion to seek the death penalty violated the
separation of powers doctrine. Hall, 958 S.W.2d at 716-17. Accordingly, we conclude that the
decision in Bush v. Gore, a case involving the method of counting ballots for a presidential election,
does not invalidate the discretion of the prosecutor in determining whether to seek the death penalty.
Accordingly, the petitioner is not entitled to relief on this issue.

                D. Execution by Lethal Injection is Cruel and Unusual Punishment

        The petitioner submits that the process of lethal injection violates his state and federal
constitutional rights against cruel and unusual punishment. Our supreme court has held that death
by lethal injection is not constitutionally prohibited. See State v. Robinson, 146 S.W.3d 469 (Tenn.
2004).

                          E. Sentence of Death Violates International Law

         The petitioner complains that Tennessee’s imposition of the death penalty violates United
States treaties and hence the federal constitution’s supremacy clause. It appears from the argument
presented that petitioner contends that the supremacy clause is violated when his rights under treaties
and customary international law to which the United States is bound were disregarded. Arguments
that the death penalty is unconstitutional under international laws and treaties have systematically
been rejected by the courts. See State v. Odom, 137 S.W.3d 572, 600 (Tenn. 2004); State v. Robert
Faulkner, No. W2001-02614-CCA-R3-DD, 2003 WL 22220341, at *31 (Tenn. Crim. App., at
Jackson, Sept. 26, 2003), aff’d by, 154 S.W.3d 48 (Tenn. 2005). We see no viable reason to resolve
this issue in a different manner in the present case. Petitioner is not entitled to relief on this issue.

                                           CONCLUSION

        After a thorough review of the record and the law applicable to the issues raised, we conclude
that the petitioner has failed to prove the allegations contained in his post-conviction petition. The
judgment of the trial court is affirmed.


                                                         ___________________________________
                                                         THOMAS T. WOODALL, JUDGE



                                                  -56-
