        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                         May 2012 Session

             JERRY RAY DAVIDSON v. STATE OF TENNESSEE

                          Circuit Court for Dickson County
                         No. CR-7386 Robert E. Burch, Judge


               No. M2010-02663-CCA-R3-PD - Filed February 7, 2013


The Dickson County Circuit Court denied the Petitioner, Jerry Ray Davidson, post-conviction
relief from his convictions of first degree premeditated murder and aggravated kidnapping
and his sentence of death. The Petitioner appeals. Having discerned no error, we affirm the
post conviction court’s denial of relief.

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

J OHN E VERETT W ILLIAMS, J., delivered the opinion of the court, in which J AMES C URWOOD
W ITT, J R. and JEFFREY S. B IVINS, JJ., joined.

Paul J. Morrow, Jr., and Kelly A. Gleason, Office of the Post-Conviction Defender,
Nashville, Tennessee, for the Petitioner, Jerry Ray Davidson

Robert E. Cooper, Jr., Attorney General and Reporter, William E. Young, Solicitor General,
and Scott C. Sutherland, Assistant Attorney General; Dan Alsobrooks, District Attorney
General and Robert S. Wilson, Assistant District Attorney General, for the Respondent, State
of Tennessee

                                         OPINION

                                        Background

        The Petitioner, who was fifty-two years old at the time of trial in 1997, was convicted
of first degree premeditated murder and aggravated kidnapping. The convictions relate to
the 1995 murder and kidnapping of Virginia Jackson in Dickson County. The Petitioner
received the death penalty for the murder conviction and a twenty-year sentence for the
kidnapping conviction. The jury sentenced the Petitioner to death based upon its finding of
the following three aggravating circumstances: (1) the Petitioner was previously convicted
of one or more felonies whose statutory elements involve the use of violence to the person;
(2) the murder was knowingly committed by the Petitioner during the commission of a
kidnapping; and (3) the Petitioner knowingly mutilated the body of the victim after death.
See Tenn. Code Ann. § 39–13–204(i)(2), (7) and (13) (Supp. 1995). The facts of this case
were summarized by our supreme court in its opinion on direct appeal:

                                        [Guilt Phase]

       Between 8 and 9 p.m. on September 26, 1995, the victim, Virginia Jackson,
       and her dog arrived in a taxi cab at Bronco's Bar in Dickson, Tennessee.
       Jackson was carrying a large purse and a white bed pillow and wearing
       multicolored hair clips. When Jackson arrived at Bronco's Bar, the defendant,
       Jerry Ray Davidson, was sitting quietly by himself drinking beer. Jackson
       spent the next several hours at the bar drinking two beers and talking with the
       bartender, Carol Owens, and other bar patrons. Although Jackson and
       Davidson sat next to one another at one point, the two did not converse, and
       the evidence does not suggest that they were acquainted. By closing time, only
       Jackson, Davidson, and Owens remained in the bar. Owens tried to call a cab
       for Jackson, but the cab company was closed for the night. Jackson accepted
       a ride home from Davidson and was last seen alive around 11:30 p.m., carrying
       her purse and pillow as she got into Davidson's red pickup truck with her dog.

       Members of Jackson's family became worried when they did not hear from her
       for several days. On October 1, 1995, her family filed a missing person report
       with law enforcement officials, who began an investigation of her
       disappearance. [FN: Jackson’s dog was found at her home.]

       On September 30, 1995, only a few days after Jackson was last seen, Jackson's
       brother-in-law observed a pile of clothing lying along a farm road leading to
       her house. At that time, he did not connect the clothing with her
       disappearance. On October 18, however, he reported the clothing to law
       enforcement authorities. On October 18 and 19, law enforcement officers
       found the following items belonging to Jackson along the farm road: hair
       clips, a cell phone, panties, a pillow, a sweatshirt, and a sock. On October 19,
       1995, two deer hunters found Jackson's decomposing, nude body. The body
       was partially buried in a shallow grave several miles from her house in a
       wooded area off an old logging road along the Houston/Dickson County line.

       At trial, the condition of Jackson's body was described by Dr. Murray Marks,
       the forensic anthropologist who disinterred the body, and by Dr. Charles

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Harlan, the forensic pathologist who performed the autopsy on the body. Dr.
Marks stated that the body was found lying chest down. The head was
missing, although it appeared that a space had originally been dug for it in the
grave. Part of the torso and left arm of the body were exposed, and the left
hand was missing. There was evidence that animals had gnawed on the left
arm, the neck, and the shoulder area. However, other trauma to the body was
inconsistent with animal activity. Dr. Harlan observed that the skin at the front
and back of the neck had been cut; the trachea exhibited a clean, sharp cut; the
hyoid bone, which is located in the upper throat, had also been cut; and there
was clear disarticulation of the cervical vertebral column. In addition, the
torso, including the breast bone, had been cleanly cut open with some type of
sharp instrument. This incision ran almost the entire length of the torso from
the sternum to the navel and exposed the internal organs. Several superficial
cuts had been made in the soft tissue next to the large incision. Dr. Harlan
opined that both the major incision and the lesser cuts were inflicted after
death. Toxicology tests revealed the presence of alcohol and Prozac in the
body, although the quantity of these substances was not determined.
According to Dr. Marks, it was possible that Jackson's neck had been cut and
her head removed after death by either animal or human activity. Dr. Harlan
opined that a human being, not an animal, had removed the head after death.
Relying on changes in the body's color and texture, Dr. Marks concluded that
Jackson had been dead for four to six weeks. Based on the degree of the
body's decomposition, Dr. Harlan testified that death had probably occurred
within twenty-four hours of Jackson's departure from Bronco's Bar on
September 26, 1995. A cause of death could not be determined from Jackson's
remains. Dr. Harlan, however, expressed his belief that her death was a result
of homicide and that she could have died from wounds to her neck or head.

All of the evidence regarding Davidson's role in the killing is circumstantial.
For example, Davidson was a janitor in a hospital department where surgical
instruments were cleaned. Although he had been a good and reliable
employee, he did not return to work as scheduled after September 26, 1995.
He did not contact anyone at work about his absence, and he was eventually
fired. In addition, he did not return to his residence at his mother's home for
almost three weeks after Jackson's disappearance. On October 2, 1995,
Davidson's mother informed the Dickson police that he was missing. Mrs.
Davidson withdrew the missing person report on October 8, 1995, after
Davidson telephoned her. Davidson later returned to his mother's house, once
spending the night, and a second time retrieving a camper top for his pickup
truck.

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There was also evidence that Davidson was in the area where the body was
found in the days following Jackson's disappearance. Between October 4 and
6, 1995, approximately a week after Jackson disappeared, Melinda Jones saw
Davidson driving a red truck very slowly down Old Yellow Creek Road in
Dickson County. Jones saw an object in the passenger seat that was tightly
wrapped in a white sheet and was about as high as Davidson's shoulder. As
the truck went by, Jones saw the white object fall over onto Davidson, who
pushed it away. Later that evening, Jones observed the same truck traveling
in the opposite direction at a high rate of speed. Jones also testified that she
remembered seeing the same truck go down the road a few days to a week
earlier, shortly after Jackson disappeared. At that time, the truck was going
very slowly, and Jones, who was able to see inside the vehicle as it passed,
noticed that “there was something that wasn't right about the passenger's seat.”
Jackson's body was discovered about one and a half miles from Jones's home.

Additionally, between October 2 and 6, 1995, around 8 to 9 a.m., Davidson
came into Kim's One Stop Market not far from Jones's home. He was wearing
work pants and was covered with dirt to his waist. According to one witness,
Davidson looked “like he'd been digging in like a garden or something.”
Davidson sat in the store drinking a cup of coffee for about an hour before
driving away in a red pickup truck with a camper top. A week later he
returned to the market to purchase a soft drink.

The State's proof also showed that on September 29 and 30, 1995, Davidson
made purchases at a grocery store and at a Wal–Mart in Waverly, Tennessee,
in the county just southwest of the area where Jackson's body was found. On
October 4, 1995, around the time Melinda Jones saw Davidson driving his
truck down Old Yellow Creek Road, Davidson also made a withdrawal from
an automatic teller at a bank in Erin, Tennessee, in Houston County. All of
these transactions place Davidson in the vicinity where Jackson's body was
found at a time shortly after her disappearance.

Other sightings of Davidson after Jackson's disappearance also connect him
with the killing. For example, on October 9, 1995, Davidson reappeared at
Bronco's Bar in Dickson. When Owens, the bartender, asked him where he
had taken Jackson on September 26, 1995, Davidson told her that he had
dropped Jackson off at a Kroger grocery store. Later that same day, when
Timothy Eads of the Dickson County Sheriff's Department went to Bronco's
Bar to speak with Owens, Davidson was still there. After Owens identified

                                       4
Davidson as the man who had taken Jackson home, Eads questioned Davidson
about Jackson for several minutes. Davidson informed Eads that he had left
Jackson at the Kroger parking lot around midnight. Davidson appeared
nervous and uncomfortable during his conversation with Eads and left the bar
soon after Eads. When Eads tried to contact Davidson again, Davidson could
not be located. On October 18, 1995, Eads executed a search warrant at
Davidson's residence. He seized an expended 20–gauge shotgun shell that was
later determined to have been fired from a shotgun found in Davidson's truck.

On October 12, 1995, Davidson came into the Lakeview Tavern in
Cumberland City and ordered a beer. The bartender, Darla Harvey, testified
that his pants and shoes were covered with dirt. For over an hour, Davidson
sat in the bar and stared at Harvey while sipping his beer. Disturbed by
Davidson's appearance and behavior, Harvey went outside and examined
Davidson's truck. At that time, the bed of the truck was covered with a camper
top that had been spray painted red everywhere but the back window. Harvey
looked inside the camper and saw a dirty sleeping bag, a dirty shovel, a chain,
and two Rubbermaid containers. According to Harvey, the truck was “very
messy,” as if Davidson had been living in it. Harvey informed some of the bar
patrons that she was afraid of Davidson, who then left the bar at the patrons'
request.

On October 19, 1995, Davidson was arrested at Robert's Creek Bar near Cuba
Landing in Humphreys County. At the time of the arrest, Investigator Ted
Tarpley spoke with Davidson. Davidson denied giving Jackson a ride on
September 26. After Officer Eads joined the interrogation, Davidson changed
his story and stated that he had left Jackson at the Kroger parking lot before
driving to Nashville. He claimed that he stayed in Nashville until 3 or 4 a.m.,
returned home, and then left the next morning for East Tennessee. Eads and
Tarpley did not inform Davidson that Jackson's body had been found. When
asked to hypothesize about what might have happened to Jackson, Davidson
responded, “Maybe somebody got her and chained her to a tree.” Davidson
also told Eads and Tarpley that they might find Jackson with her head and
hands missing to keep anyone from identifying the body. After Davidson was
informed that the body had been found, he was asked what he had done with
the head, and he replied, “I haven't told you that I killed her yet.” Davidson
later said that he might have something to say but could not say it yet. He also
told the officers that he had quit his job because “things were just getting
tense” and he decided to leave.



                                       5
Searches of Davidson, his truck, and the area where the body was discovered
yielded several items linking him to the killing. On his person, the arresting
officers found a .25 caliber automatic pistol, a chrome knuckle knife with the
blade open, a pair of handcuffs, a box of .25 caliber bullets, and a live
20–gauge shell. The pistol was loaded and ready to fire. At the time of his
arrest, Davidson's truck did not have a camper top on it. His truck appeared
to have been driven through mud and vegetation. Moreover, the truck
contained the following items: an Ozark Trails tent, two shotguns, a knife,
handcuff keys, clothing, flashlights, cans of red spray paint, and Marlboro
cigarettes. Officers also found numerous items at the campsite or grave site
that belonged to either the defendant or to Jackson. [FN: For purposes of
investigation, the general location where the body and other evidence was
found was broken down into two areas: the grave site area where the body was
actually found and the campsite area across the logging road from the grave.]
The items included a box for an Ozark Trails tent, shells that had been fired
from the shotgun found in Davidson's truck, a knife, handcuffs that matched
the keys discovered in the Davidson's truck, packages and fragments of
Marlboro cigarettes, a tool box resembling one previously seen on Davidson's
truck, cans of red spray paint, clothing and flashlights similar to those in
Davidson's truck, and two receipts reflecting a withdrawal from Davidson's
bank account on October 4, 1995, at an automatic teller in Erin, Tennessee.
Personal items belonging to Jackson, such as her sandals, billfold, a hair clip,
a brush, a prescription bottle, and cigarette case, were found at the campsite as
well.

In addition, the bottom of the passenger seat in Davidson's truck had been cut
out. A chain and padlock found around the passenger seat were arranged in
such a manner that they could be used to restrain a passenger. Blood on the
passenger seat and head rest tested positive for human blood. DNA testing
indicated that the blood samples from the truck did not match Davidson's
DNA. Instead, the samples were consistent with Jackson's DNA. According
to a report from LabCorp, Inc., only one in 265,000 people would be expected
to have DNA matching that of Jackson.

The defense presented evidence attempting to counter the prosecution's
circumstantial evidence. There was testimony that two tires on Jackson's truck
had been punctured by a knife about two days before she disappeared. In
addition, a forensic pathologist who testified for the defense criticized the
manner in which the State's forensic pathologist had performed the autopsy
and preserved the body. The defense pathologist also complained that the

                                       6
quantity of alcohol and Prozac in Jackson's body should have been determined.
The defense introduced Jackson's medical records reflecting her
hospitalizations between 1978 and 1995 for depression and drug and alcohol
abuse in an attempt to show that Jackson might have died from an overdose of
alcohol and/or Prozac. Her medical records include a report that she had once
overdosed on the drug Soma and had been pronounced dead. In addition, a
bottle labeled for a prescription for thirty pills of Prozac dispensed on
September 25, 1995, contained only five tablets when found at Jackson's home
after her disappearance. To counter the inference that Davidson could have
used a surgical instrument from his workplace to cut Jackson's body, the
defense presented testimony that no surgical instruments had been reported
missing from Davidson's place of employment. Finally, the defense presented
the testimony of a DNA expert who was unable to corroborate the findings of
the State's experts. The expert challenged the opinion that the DNA test ruled
out Davidson as the source of the blood found on the passenger seat of his
truck. The defense expert admitted, however, that she had made no
independent examination or analysis and was only reviewing LabCorp, Inc.'s
findings.

                               [Penalty Phase]

During the sentencing phase, the State presented proof that Davidson had been
convicted in 1971 for assault and battery with the intent to commit rape, in
1976 for assault and battery with the intent to ravish and to have unlawful
carnal knowledge of a female over 12 years of age, and in 1983 for felonious
crime against nature and for felonious sexual battery. A Tennessee Bureau of
Investigation agent testified that Jackson's body had been mutilated by cutting
the neck area and torso. Photographs showing the mutilation were re-introduced.

In mitigation, the defense presented the testimony of Davidson's mother,
several of his co-workers, and his minister. Davidson's mother related that, as
a child, he had lived with his grandparents and had not completed school
because he was always in trouble with the law. She described her son as a
quiet boy who had few friends. He had no contact with his father throughout
his life. At some indefinite time in the past, he had spent one to two years at
Central State Hospital for mental problems. Davidson's mother testified about
how badly Davidson had taken his younger brother's death in Vietnam and
how he had helped her at home. Next, several of Davidson's co-workers
testified that he was a good worker, a good friend, and a nice, considerate man
who would help anyone. They found Davidson's involvement in Jackson's

                                      7
       murder inconsistent with his behavior when he was around them. The last
       witness for the defense was Joe Ingle, a minister, who described Davidson as
       quiet and passive, with an interest in the Bible's prophetic books and an
       openness to learning new things. Ingle opined that Davidson would not be a
       threat in prison and would participate in work or educational programs.

State v. Davidson, 121 S.W.3d 600, 605-10 (Tenn. 2003). The supreme court affirmed the
Petitioner’s convictions and sentences in a three to two opinion. The two dissenting justices
opined that the evidence was insufficient to support a finding of premeditation and also that
the admission of the testimony of Darla Harvey was reversible error because it was
irrelevant, unfairly prejudicial, and improper lay opinion.

                                      Post-Conviction

        The Petitioner timely filed his petition for post-conviction relief in August 2004. The
trial court appointed the Office of the Post-Conviction Defender which filed an amended
petition in March 2005. The trial court conducted an evidentiary hearing over the course of
several days in May and November 2006, September 2008, and March 2009. On November
10, 2010, the trial court filed its written order denying post-conviction relief.

                                   Evidentiary Hearing

        Tina Smith, an employee at the hotel where the jurors were sequestered during trial,
testified on behalf of the Petitioner. Ms. Smith witnessed a red car with a driver and a
passenger circle the hotel while the jurors were having dinner in the hotel restaurant. She
witnessed the passenger exit the car, walk down the corridor where the juror rooms were
located, then return to the car, at which time the two individuals drove away. Ms. Smith
stated that the passenger did not encounter anyone during his walk. Ms. Smith reported the
incident, which she described as unusual, to one of the officers accompanying the jurors. Ms.
Smith did not recognize either the driver or passenger, and according to her testimony, the
jurors would not have been able to see the passenger exit the car and walk down the corridor
from their vantage point in the restaurant. Ms. Smith testified that she did not witness any
juror come into contact with the individual from the vehicle.

        Rosemary Jackson served on the jury in this case. Although Ms. Jackson did not see
trial counsel visit the hotel, she testified that “everybody was talking about it.” Ms. Jackson
also testified that after the jury was empaneled she heard one of the bailiffs tell some of the
jurors that the Petitioner had beheaded the victim and “had done really bad things to other
people.” In addition, Ms. Jackson testified that her husband worked at the jail where the
Petitioner was housed during trial. Her husband told her he thought the Petitioner was guilty

                                              8
and also told her that the Petitioner mentioned that if he was found guilty he would kill
anyone in order to escape. During cross-examination, Ms. Jackson confirmed that she
maintained no predisposition about the Petitioner’s guilt or innocence.

        In addition, one of the police officers called to investigate the incident at the hotel
testified about the report he prepared. Dan Alsobrooks, the District Attorney General
involved in the prosecution of this case, testified that he was aware the trial judge issued an
order prohibiting such conduct in the future but did not know of any specific crime
committed by trial counsel which would have required an independent investigation by his
office.

       Ralph Easley taught the Petitioner in 1966 at the State Area Vocational Technical
School in Dickson. Mr. Easley taught electronics and remembered the Petitioner as having
been an average student. According to Mr. Easley, the Petitioner was a fairly normal
individual and never caused any trouble. During cross-examination, though, Mr. Easley
could not confirm that the Petitioner was the same Jerry Davidson he taught in 1966.

       Sheila Renee Elsea testified that the Petitioner was a regular customer at a restaurant
where she worked. Ms. Elsea also stated that the Petitioner was a friend of her ex-husband’s
grandmother. According to Ms. Elsea, the Petitioner frequented her ex-husband’s family
Sunday dinner between the mid 1980's into the early 1990's. Ms. Elsea recalled that the
Petitioner acted normal at the restaurant and during the Sunday dinner visits. Though she did
not remember the Petitioner’s being a talkative person, Ms. Elsea testified that the Petitioner
was polite and never caused any trouble. Ms. Elsea also knew the victim in this case.

        Bill Sensing was a childhood friend of the Petitioner’s younger brother, who later died
in the Vietnam War. Mr. Sensing testified that he spent little time around the Petitioner but
he did not remember the Petitioner’s having many friends. Mr. Sensing described the
Petitioner as “an odd person,” the same description he gave the Petitioner’s mother who Mr.
Sensing said would allow her children to come and go as they pleased. Mr. Sensing did not
recall the Petitioner’s mother ever showing any affection toward the Petitioner. Mr. Sensing
admitted during cross-examination though that he never visited the Petitioner’s house. Mr.
Sensing testified that he never witnessed the Petitioner act violently as a child. Mr. Sensing
stated that, prior to the evidentiary hearing, he had not seen the Petitioner since the Petitioner
was eight or nine years old.

       Collier Goodlett, Assistant Public Defender, and Attorney Michael Love represented
the Petitioner at trial. Counsel were appointed on June 5, 1996, and the trial commenced on
August 4, 1997. Mr. Goodlett had handled two prior death penalty cases and served as lead
counsel in this case. During the time he represented the Petitioner in this case, Mr. Goodlett

                                                9
testified that he maintained an extremely heavy caseload, which included representing
another defendant facing the death penalty. Mr. Goodlett also testified that he had no
secretarial help and thus was alone responsible for preparing and filing all pleadings.

        According to Mr. Goodlett, the defense theory at trial was to challenge the sufficiency
of the State’s evidence. Mr. Goodlett did not believe the State would be able to prove its
case for first degree murder beyond a reasonable doubt. As for sentencing, Mr. Goodlett
testified that the defense focused on a theory of residual doubt and called several witnesses
in an attempt to show that the Petitioner did not deserve to die. Mr. Goodlett spoke with the
Petitioner’s mother occasionally prior to trial but did not interview any other family
members. Mr. Goodlett knew the Petitioner only completed the 9th grade in school, and he
was aware of his criminal record. Mr. Goodlett was also aware of the Petitioner’s extensive
mental health history and acknowledged that he agreed that the Petitioner should be
evaluated at Middle Tennessee Middle Health Institute (MTMHI) before trial.

       Mr. Goodlett retained the services of Dr. Pamela Auble, a neuropsychologist, to
evaluate the Petitioner prior to trial. Mr. Goodlett wanted to know whether counsel would
be able to challenge the Petitioner’s ability to form the requisite mental state for the crimes
charged. Mr. Goodlett also hoped Dr. Auble’s evaluation would reveal helpful mitigating
evidence. Mr. Goodlett acknowledged, though, that he did not file a motion for funding for
Dr. Auble until July 10, 1997, and that the trial court did not approve funding until July 14,
1997. Mr. Goodlett was asked to review Dr. Auble’s report and confirmed that it discussed
the Petitioner’s poor upbringing, his father, who was an alcoholic and abusive, his mother,
who was hostile toward men and thought sex was evil, that the Petitioner lived with his
grandparents until age six, that he dropped out of school in the tenth grade, the Petitioner’s
long history of mental health problems for which he received treatment and medication, his
alcohol and drug usage, his criminal record, and his issues with women. Dr. Auble
concluded that the Petitioner suffered from an adjustment disorder with anxiety and a
schizotypal personality disorder. Mr. Goodlett testified, however, that defense counsel
decided not to call Dr. Auble as a witness during either phase of the trial.

        Mr. Goodlett acknowledged that he had reviewed the Petitioner’s records from
MTMHI. The discharge summary from MTMHI reported that the Petitioner was diagnosed
with alcohol dependancy and personality disorder not otherwise specified, including schizoid,
antisocial and avoidant traits. The report also summarized the Petitioner’s past psychiatric
history: he was hospitalized at Central State (now MTMHI) when he was seventeen years
old; had been prescribed psychotropic drugs in the mid 1960's; and had been in and out of
jail most of his life. In addition, the Petitioner’s intelligence was deemed to have been
slightly below average and his insight and judgment were considered poor. A CT head scan
of the Petitioner performed at MTMHI revealed mild atrophy, and an EEG test revealed some

                                              10
abnormality “because of a slight excess of asynchronous slowing in all quadrants, which is
a non-specific finding.” Mr. Goodlett could not remember though whether Dr. Auble was
provided with the Petitioner’s MTMHI records. And although Mr. Goodlett knew the
Petitioner had been incarcerated at the DeBerry Special Needs Facility, he did not recall
obtaining those records or providing them to Dr. Auble.

       Mr. Goodlett filed numerous pretrial motions related to the jury selection, aggravating
circumstances, prosecutorial conduct, and suppression of the Petitioner’s statements to the
police. Mr. Goodlett acknowledged that he did not file a motion to strike the aggravating
circumstance regarding the mutilation of the body but stated he probably should have. Mr.
Goodlett agreed that counsel should have investigated more thoroughly the schizophrenic
diagnosis the Petitioner originally received in the 1960's. Mr. Goodlett also agreed that they
should have introduced more evidence during the hearing on the motion for change of venue
in order to emphasize their position that the media coverage was extensive and that the
victim’s family was well-known by almost everyone in the community. Mr. Goodlett,
however, did not remember why they waited until after the hearing on the motion for change
of venue to request funding for a jury consultant.

       Mr. Goodlett requested the services of Glori Shettles to assist counsel with the
investigation and presentation of mitigating evidence for the penalty phase. Counsel filed
the motion for funding on or about April 2, 1997, but the trial court did not sign the order
authorizing those funds until June 2, 1997. Mr. Goodlett testified that Ms. Shettles expressed
concern to defense counsel about her ability to conduct a thorough investigation into the
Petitioner’s background before the start of trial in August 1997. Mr. Goodlett stated that he
did not file a motion for a continuance based solely upon Ms. Shettles’ concerns. Although,
on June 13, 1997, Mr. Goodlett did file a motion to continue the trial, which at that time was
schedule to begin July 7, 1997.

       Mr. Goodlett testified that prior to trial he intended to cross-examine Dr. Charles
Harlan, the medical examiner who performed the autopsy in this case, regarding allegations
that he had mishandled autopsies in other cases. Mr. Goodlett was aware that Dr. Harlan
apparently lost or destroyed certain body parts of the victim in this case. Mr. Goodlett thus
admitted that he should have filed a motion to dismiss, or at least requested a missing
evidence instruction, because of Dr. Harlan’s alleged conduct with respect to the handling
of some of the evidence in this case.

       Mr. Goodlett was questioned about numerous statements the prosecutor made during
opening and closing arguments which he agreed were supposedly objectionable, but he could
not explain why defense counsel did not object. Mr. Goodlett was also questioned about his
conduct during voir dire and whether he should have objected to or otherwise requested

                                             11
certain jury instructions. As to each instance, Mr. Goodlett did not have a reason for his
actions or inactions related thereto.

       Mr. Goodlett admitted that he and Mr. Love visited the hotel where the jury was
sequestered to see if the newspaper boxes were located in an area accessible by any of the
jurors. Mr. Goodlett testified that neither he nor Mr. Love exited the vehicle. Furthermore,
Mr. Goodlett did not believe they were seen by any of the jurors. Mr. Goodlett did recall,
though, that the trial judge later admonished them for going to the hotel.

        During cross-examination, Mr. Goodlett estimated that he filed sixty or seventy
pretrial motions in this case. In addition to the standard motions he filed in most cases, Mr.
Goodlett testified that he filed other motions relating to “everything that [he] could think of.”
For example, Mr. Goodlett filed a request for permission to view the notes the trial judge
took during voir dire because he thought they might have revealed names of jurors who were
too eager to sit on this case. Similarly, Mr. Goodlett testified that he believed counsel took
every appropriate step to get the trial moved to another county.

       Mr. Goodlett acknowledged that counsel employed the services of several independent
experts to assist the defense. Mr. Goodlett recalled that the defense presented expert
testimony to challenge the State’s DNA evidence. Mr. Goodlett also testified that he met
with Dr. Harlan prior to trial to discuss his autopsy and thereafter obtained the services of an
independent expert to challenge Dr. Harlan’s conclusions. Mr. Goodlett stated that they
voiced an objection because Dr. Harlan allegedly did not preserve all of the evidence
following his autopsy thereby preventing their expert from examining all of the bones that
Dr. Harlan examined. Mr. Goodlett retained the services of Dr. Auble to evaluate the
Petitioner’s mental health. Mr. Goodlett decided not to call Dr. Auble as a witness after she
related her findings to him, however. According to Mr. Goodlett, Dr. Auble told him that
the only contribution she could have made in defense was to testify that the Petitioner would
be a good candidate for life in prison.

        Mr. Goodlett agreed that the Petitioner had never been declared incompetent to stand
trial or otherwise insane. Although Mr. Goodlett testified that he since believed counsel
should have introduced evidence about the Petitioner’s mental health during sentencing, he
agreed that statements the Petitioner made, which are contained in his records, that he liked
to rape women and that he wanted to chain a woman in his vehicle, would have been hurtful
to the defense had the State been able to introduce them in rebuttal. When questioned further
during cross-examination, Mr. Goodlett testified that he was concerned about the State’s
ability to rebut any psychological evidence with the negative information contained in the
Petitioner’s records. As such, Mr. Goodlett agreed the fact that the Petitioner was described
in his records as manipulative and prone to lying had some bearing on his decision not to call

                                               12
mental health experts during sentencing. The Petitioner’s records also contained an expert
opinion that the Petitioner would be inclined to commit rape and murder in the future, which
Mr. Goodlett agreed would have been detrimental if introduced by the State in rebuttal. Also
detrimemtal, Mr. Goodlett testified, were reports attributed to the Petitioner saying that one
of his favorite activities was to rape women, that he had raped over one hundred women, and
that he believed the only difference between making love and rape was whether or not the
woman liked it.

        Mr. Goodlett testified that counsel thoroughly investigated the facts of this case and
discussed trial strategy with the Petitioner. According to Mr. Goodlett, their in-house
investigator interviewed the State’s witnesses and visited the crime scene. Mr. Goodlett
testified that they introduced evidence relating to the victim’s history of mental health
treatments and substance abuse in an attempt to suggest she was somewhat irresponsible and
could possibly have met someone else after she left the bar with the Petitioner. Mr. Goodlett
testified that the Petitioner was aware of all the negative information contained in his records.
Although counsel discussed with the Petitioner the possibility of testifying in his own defense
at both stages of the trial, Mr. Goodlett did not believe the Petitioner would have made a
good witness.

       Glori Shettles, an employee of Inquisitor, Inc., was retained by trial counsel to
investigate potential mitigating evidence in this case. Ms. Shettles stated she was initially
contacted by counsel in November 1996. Ms. Shettles did not know, though, why counsel
did not file a motion for her services until April 2, 1997. Nor did she know why the trial
court’s order authorizing her funding was not filed until June 2, 1997, or why counsel did not
notify her until June 19, 1997. Ms. Shettles did not begin working on this case until funding
was authorized, and she stated that she did not have any contact with counsel between April
and June 1997.

        According to Ms. Shettles, approximately nine months are required to adequately
investigate and assess mitigating evidence in a capital case. Ms. Shettles testified, though,
that she performed “very, very little” investigative work in this case. Ms. Shettles recounted
telling counsel that she was concerned about the lack of time available between the funding
authorization and trial date for her to conduct an adequate investigation. Ms. Shettles said
she was asked to review the records counsel had already obtained and to interview the
Petitioner, his mother ,and “a couple of collateral people.” Ms. Shettles testified, though, that
she received no further direction from counsel regarding the theory they intended to pursue
at sentencing. Although she stated that she had available resources to perform a standard
capital case mitigation investigation, Ms. Shettles stated she did not have the time to do so
in this case. Ms. Shettles billed approximately forty hours of investigative work in this case.



                                               13
       During cross-examination, Ms. Shettles acknowledged that she reviewed records
obtained by the Public Defender’s in-house investigator. She further acknowledged that she
highlighted the content of the records for counsel, including the unfavorable content counsel
would likely have steered clear of during trial. Ms. Shettles testified that she had not been
involved in many other cases where the records of the defendant were as unfavorable for
defense counsel as in this case.

        Rockelle (Daniels) Coffey was a criminal investigator for the Public Defender’s
Office during the trial of this case. Ms. Coffey identified a memo, dated June 25, 1997,
which she wrote to Ms. Shettles, the mitigation specialist hired by defense counsel. Attached
to that memo were all of the Petitioner’s records Ms. Coffey had collected to date, including
a copy of the records from the Petitioner’s mental health evaluation at MTMHI in March
1997. Ms. Coffey did not interview any witnesses other than the Petitioner during her
investigation into this case, but she acknowledged during cross-examination that her primary
job was to identify and locate relevant records related to the Petitioner’s history. Ms. Coffey
testified that her involvement in this case ended once Ms. Shettles began her investigation.

       Dr. Daniel Malcolm Spica, a neuropsychologist, evaluated the Petitioner prior to the
evidentiary hearing in order to assess the Petitioner’s neurobehavioral status. Dr. Spica
interviewed the Petitioner in prison on two separate dates for a total of twelve hours. As part
of his evaluation, Dr. Spica administered approximately twenty tests which measured the
Petitioner’s mood, his ability to receive and process information, and his academic
performance, in addition to ascertaining whether the Petitioner was malingering. According
to Dr. Spica, the Petitioner did not malinger during the interviews. Dr. Spica testified that
the Petitioner seemed to function well during normal interaction and that he possessed a good
vocabulary and was reasonably articulate. Dr. Spica determined that the Petitioner’s full I.Q.
was 89, which is between average and below-average. According to Dr. Spica, the
Petitioner’s verbal I.Q. score was 97, and his performance I.Q. score was 79. Although Dr.
Spica stated that the verbal score reflected the Petitioner’s good vocabulary and general
accumulated knowledge, the eighteen point difference between the two individual I.Q. scores
suggested probable brain dysfunction. Dr. Spica testified that the Petitioner had difficulty
mentally organizing and comprehending information in uncertain or unfamiliar situations.
Accordingly, Dr. Spica opined that the Petitioner would perform well in a structured
environment such as prison.

       Dr. Spica diagnosed the Petitioner with a cognitive disorder, not otherwise specified,
due to impaired judgment and reasoning skills, impaired visual and analytical processing,
impaired reading speed, dysfunction of executive controls, and impaired ability to
discriminate information. Dr. Spica also diagnosed the Petitioner with depressive and
anxiety disorders, not otherwise specified. According to Dr. Spica, the testing results

                                              14
suggested that the Petitioner had frontal and right hemisphere cerebral dysfunction. Dr.
Spica concluded that the Petitioner possessed “instability of reasoning (disordered thinking
when under pressure)” and “deficits in discriminating between actual information and
distorted approximations.” Dr. Spica further concluded:

       [The Petitioner appeared] to be a man of only modest internal/intellectual
       resources, with unreliable judgment skills, and an inability to sort through
       information provided to him. His objective test scores revealed that his
       reasoning ability under calm, controlled conditions ranks at the level of a 9- or
       10-year-old; when under pressure he performed much lower (severely impaired
       range). In addition, his apparent right hemisphere processing inefficiency
       likely leads him to misinterpret the array of subtle cues provided in social
       contexts that bring meaning to interpersonal interactions. The [Petitioner] is
       likely easily overwhelmed by multiple sources of information, ambiguous
       signals, and any perceived pressure/threat.

Dr. Spica testified that the consumption of alcohol would exaggerate the Petitioner’s
impairments.

       Dr. Peter Irvin Brown, a psychiatrist, performed a forensic psychiatric evaluation of
the Petitioner prior to the evidentiary hearing. Dr. Brown interviewed the Petitioner in prison
on two separate dates for a total of approximately five hours. Dr. Brown relied upon Dr.
Spica’s report and also reviewed the report from Dr. Auble’s evaluation of the Petitioner
conducted prior to trial, as well as the MTMHI pretrial report and various other of the
Petitioner’s medical, mental health and prison records and social history.

       According to Dr. Brown, one mental health report when the Petitioner was about
seventeen years old suggested that he may have suffered from a pre-schizophrenic panic.
Another psychiatric evaluation of the Petitioner when he was about twenty-seven years old
concluded with a diagnosis of undifferentiated schizophrenia and revealed marked sexual
maladjustment. Dr. Brown also noted a report when the Petitioner was thirty-five years of
age describing the Petitioner as having an inadequate personality, lacking social skills, and
being highly anxious, impulsive and suggestible. A report from the sexual offender program
when the Petitioner was about thirty-eight years old concluded that he did not appear to have
the psychological resources to effectively deal with an unsupervised placement in the
community. Dr. Brown also referred to a report when the Petitioner was about forty-one
years old which noted that, despite the Petitioner’s extensive record, his problems with
impulsiveness and evidence of antisocial tendencies were only moderate. Another report
from a year later, when the Petitioner was about forty-two years old, described the
Petitioner’s unconventional thinking patterns and other schizoid features. Dr. Brown

                                              15
testified that two later reports diagnosed the Petitioner with antisocial personality disorder.
Having reviewed these records, Dr. Brown testified that “the heavy weight of the clinical
evidence strongly supported the original concerns that [the Petitioner] is an individual who
has a schizotypal personality” with “a chronic, probably life long condition that involves
massive deficits in being able to communicate[,] to think and plan carefully and to control
emotion and behavior.” According to Dr. Brown, the Petitioner poses no risk as long as he
remains in a structured environment like prison.

       According to Dr. Brown, Dr. Spica’s report revealed that the Petitioner’s capacity to
intake and process information is significantly impaired. Dr. Brown noted that the CT scan
contained in the MTMHI report from 1997 revealed cerebral atrophy. Dr. Brown testified
that people who suffer from schizophrenia are prone to shrinking of the brain tissue. In
addition, an EEG from that same report showed further abnormality in the electrical activity
in the Petitioner’s brain which, according to Dr. Brown, is also common among
schizophrenics. Dr. Brown agreed with Dr. Spica’s assessment that the Petitioner’s social
and emotional capacities corresponds with that of a ten-year-old.

       Dr. Brown diagnosed the Petitioner with cognitive disorder, not otherwise specified,
and schizotypal personality disorder. Dr. Brown testified that the Petitioner exhibits signs
of severe disordered thinking, difficulty regulating emotions, high anxiety and trouble with
social communication. Dr. Brown noted a history of alcohol abuse but did not find any
evidence of mental retardation. According to Dr. Brown, because of his impairments, the
Petitioner cannot differentiate between what he imagines happening and what actually
happens. Dr. Brown opined that the Petitioner could not have acted deliberately or with
premeditation at the time of the crime because he would have been too impaired to consider
alternative actions or appreciate the consequences of his conduct. According to Dr. Brown,
the Petitioner’s actions after the murder suggest that he was reacting to the situation rather
than planning.

        Dr. Brown admitted during cross-examination that he did not read the trial transcript.
Although he did say that he read the supreme court’s opinion which summarized the
evidence. Dr. Brown attributed the Petitioner’s statements, that he liked to rape women, to
fantasy and part of his thought process disorder. However, Dr. Brown acknowledged that
the Petitioner had actually attempted rape in the past. Regarding the opinion by a previous
mental health expert in 1982 that the Petitioner would be inclined to commit rape and murder
in the future, Dr. Brown stated that his view of that opinion was that the expert agreed the
Petitioner could not function in the real world unless he was immersed in a structured
environment. Dr. Brown believed that the Petitioner’s employment at Saint Thomas Hospital
prior to his convictions in this case provided the Petitioner with a structured environment.



                                              16
       Dr. Brown acknowledged during cross-examination that the Petitioner’s conduct after
the crimes reflected attempts to evade detection and conceal his involvement. When asked
about the Petitioner’s thought process after the crimes, Dr. Brown stated that the Petitioner
was attempting to solve a problem. According to Dr. Brown, though, the Petitioner did not
do a good job of evading detection or concealing his involvement: “It was extremely
disorganized behavior and it didn’t have any of the evidence that we would anticipate for
somebody who had planned and carried out an efficient plan.” Dr. Brown’s opinion that the
Petitioner did not premeditate the murder was based upon his review of the Petitioner’s
mental health records and “clinical information.” Again, Dr. Brown testified that he did not
read the transcript of the trial and thus acknowledged that he did not know all of the evidence
of the case.

       Following examination by counsel, the trial court questioned Dr. Brown about
whether the Petitioner was incapable of premeditation. Dr. Brown answered in the negative,
but he did not believe there was evidence of premeditation in this particular case based, in
part, upon the spontaneous nature of the events and the Petitioner’s lack of a relationship
with the victim.

        Dr. Pamela Auble, a neuropsychologist, was retained by counsel to evaluate the
Petitioner before trial. Dr. Auble testified at the evidentiary hearing that the field of
neurospychology encompasses the evaluation of people with brain injury to assess their
functioning, intelligence, memory, flexibility, motor skills and personality. She was first
contacted by counsel on July 9, 1997. Dr. Auble testified that she did not have much time
to evaluate the Petitioner but was asked to focus on the Petitioner’s emotional functioning
and any possible psychosis or disturbance of reality. Dr. Auble testified that counsel
provided her with some of the Petitioner’s prison records, but she did not receive a copy of
the March 1997 MTMHI report. Dr. Auble spent approximately three hours evaluating the
Petitioner. Dr. Auble interviewed the Petitioner and administered psychological tests, but
she stated that she did not have sufficient time to perform any neuropsychological testing.
According to Dr. Auble, psychological tests assess an individual’s personality and emotional
state while neuropsychological tests measure a person’s I.Q., memory, attention and mental
flexibility. Dr. Auble testified that, of the fifty people she had evaluated who were on death
row in Tennessee, the Petitioner was the only one who did not receive neuropsychological
testing.

       Dr. Auble concluded that the Petitioner was competent to stand trial and that he was
not “floridly psychotic” at the time she interviewed him. Dr. Auble diagnosed the Petitioner
with a schizotypal personality disorder. According to Dr. Auble, schizotypal personality
disorder is not as severe as schizophrenia. Dr. Auble described someone suffering from the
disorder: “They’re not overtly psychotic most of the time. They’re strange individuals, often

                                              17
paranoid. They have magical thinking. They don’t see the world the way other people see
it. They can have psychotic episodes but they’re usually relatively brief under stress.” Dr.
Auble believed that the Petitioner did not always accurately perceive situations and that he
had trouble relating to other people, especially women.

      Dr. Auble did not learn that she would not be called as a witness until after the trial
ended. Dr. Auble never met with trial counsel in person. Dr. Auble testified that the
information contained in the MTMHI report would have suggested that further
neuropsychological testing should have been performed on the Petitioner.

        During cross-examination, Dr. Auble acknowledged that Ms. Shettles informed her
she was going to forward additional records to her, including the MTMHI report, but Dr.
Auble told Ms. Shettles that she was not sure she would be testifying and thus did not know
if she needed to actually review those records. Dr. Auble suggested that Ms. Shettles inquire
with counsel before forwarding the additional records. Dr. Auble, however, never did
receive them. Dr. Auble testified that the Petitioner provided her with his own social history
during their meeting, including informing her of his long history of mental health
evaluations. Although Dr. Auble was concerned about the Petitioner’s history of treatment,
she stated that she did not personally request any additional information about the Petitioner.
Dr. Auble informed trial counsel that, based upon her evaluation of the Petitioner, the most
beneficial testimony she would have been able to contribute was her opinion that the
Petitioner would be able to adjust well in prison.

        Michael Bredlove was an agent with the Tennessee Bureau of Investigation (TBI) who
assisted in the criminal investigation of this case. Although Agent Bredlove stated that he
routinely attended the autopsies in cases he worked, he was not present when Dr. Harlan
performed the autopsy in this case. Agent Bredlove testified that prior to September 1997
he never had concerns about Dr. Harlan’s ability to maintain evidence. Agent Bredlove
testified, though, that he disagreed with Dr. Harlan’s conclusion about the cause of death in
one unrelated case prior to 1997 which ultimately resulted in a murder conviction. Agent
Bredlove further testified that he had no other concerns thereafter about Dr. Harlan’s ability
to accurately identify cause of death or maintain evidence. According to Agent Bredlove,
Dr. Harlan disliked the director of the TBI and thus felt that he was treated unfairly at times.

       Russ Winkler began working for the TBI in 1998. Prior to that he was an officer with
the Clarksville Police Department. In 1995, Agent Winkler investigated the death of a
twenty-five-day-old child. According to Agent Winkler, Dr. Harlan performed the initial
autopsy on the victim and concluded that the cause of death was accidental. Dr. Harlan’s
conclusion was that the trauma to the victim’s head was not inconsistent with the victim’s
falling and hitting a coffee table. Agent Winkler testified that another medical examiner

                                              18
performed a second autopsy and offered a different conclusion about the cause of death. The
second medical examiner noticed fractures and bruises apparently overlooked by Dr. Harlan.
Agent Winkler testified that the suspect in that case thereafter was prosecuted for causing
multiple skull fractures to the victim’s head and was eventually convicted of murdering the
child.

        Joseph Craig joined the TBI as an agent in 1998. He testified that he was involved
in the criminal investigation in an unrelated case in 1999 wherein Dr. Harlan misidentified
the victim in a burning death. Agent Craig also testified that he worked for the Dickson
County Sheriff’s Office Drug Task Force at the time the victim in this case disappeared.
Agent Craig testified that the victim contacted him a couple of times offering information
about drug activity in Dickson, the last time about a week before she disappeared. Agent
Craig stated, though, that the victim seemed intoxicated both times she called.

       Rhonda Felts served as a bailiff in this case. Ms. Felts testified that she was instructed
by the court never to discuss anything about the case with the jury. Although she knew
Rosemary Jackson, Ms. Felts testified that she never discussed anything about the case with
her during trial.

                  Burden of Proof and Standard of Review on Appeal

       The Petitioner's post-conviction petition is governed by the Post-Conviction Procedure
Act. Tenn. Code Ann. §§ 40-30-101 to -122. In order to obtain post-conviction relief, the
Petitioner must show that his convictions and sentences are void or voidable because of the
abridgment of a constitutional right. Tenn. Code Ann. § 40-30-103. The Petitioner must
establish the factual allegations contained in his petition by clear and convincing evidence.
Tenn. Code Ann. § 40-30-110(2)(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 rules on the petition, its findings of fact are conclusive
on appeal unless the evidence preponderates against them. State v. Nichols, 90 S.W.3d 576,
586 (Tenn. 2002) (citing State v. Burns, 6 S.W.3d 453, 461 (Tenn.1999)); Cooper v. State,
849 S.W.2d 744, 746 (Tenn. 1993)). The Petitioner has the burden of establishing that the
evidence preponderates against the post-conviction court's findings. Henley v. State, 960
S.W.2d 572, 579 (Tenn. 1997). This Court may not re-weigh or reevaluate the evidence or
substitute its inferences for those drawn by the post-conviction court. Nichols, 90 S.W.3d
at 586. Furthermore, the credibility of the witnesses and the weight and value to be afforded
their testimony are questions to be resolved by the post-conviction court. Bates v. State, 973
S.W.2d 615, 631 (Tenn. Crim. App. 1997). By contrast, the trial court’s application of law

                                               19
to its factual findings is reviewed de novo by this Court with no presumption of correctness.
Fields v. State, 40 S.W.3d 450, 453 (Tenn. 2001).

       Claims of ineffective assistance of counsel are regarded as mixed questions of law and
fact. State v. Honeycutt, 54 S.W.3d 762, 766-67 (Tenn. 2001); Burns, 6 S.W.3d at 461. As
such, the trial court’s findings of fact underlying a claim of ineffective assistance of counsel
are reviewed under a de novo standard, accompanied by a presumption that the findings are
correct unless the preponderance of the evidence is otherwise. Fields, 40 S.W.3d at 458
(Tenn. 2001) (citing Tenn. R. App. P. 13(d)). However, a trial court’s conclusions of law are
reviewed under a purely de novo standard, with no presumption of correctness. Id.

                                              Issues

I.     Ineffective Assistance of Counsel

        The Petitioner claims he received the ineffective assistance of counsel at trial and on
appeal. This Court will review in order each instance of misconduct alleged by the Petitioner
in his brief on appeal.

       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, 340 (1963) (quoting Betts v. Brady,
316 U.S. 455, 465 (1942)). Inherent in the right to counsel is the right to the effective
assistance of counsel. Cuyler v. Sullivan, 446 U.S. 335, 344 (1980). “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 v. Washington, 466 U.S. 668, 686 (1984); see Combs v.
Coyle, 205 F.3d 269, 277 (6th Cir. 2000).

       The United States Supreme Court has adopted a two-prong test to evaluate 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.

                                                20
Strickland, 466 U.S. at 687. The performance prong of the Strickland test requires a showing
that counsel's representation fell below an objective standard of reasonableness, or “outside
the wide range of professionally competent assistance.” Id. at 690. “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 (quoting Strickland, 466 U.S. at 689).

        Upon reviewing claims of ineffective assistance of counsel, courts “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. Additionally, the courts will 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 (1987) (quoting United
States v. Cronic, 466 U.S. 648, 655 n. 38 (1984)). Notwithstanding, we recognize that “[o]ur
duty to search for constitutional error with painstaking care is never more exacting than it is
in a capital case.” Id. at 785.

        If a petitioner shows that counsel's performance fell below a reasonable standard, then
he 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.” 466 U.S. at 694. “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 (1993) (citing Strickland, 466 U.S. at 687). 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. State v. Zimmerman, 823 S.W.2d
220, 225 (Tenn. Crim. App. 1991). “A reasonable probability of being found guilty of a
lesser charge, or a shorter sentence, satisfies the second prong in Strickland.” Id. Moreover,
when challenging a death sentence, a petitioner must show that “‘there is a reasonable
probability that, absent the errors, the sentencer . . . would have concluded that the balance

                                                21
of the aggravating and mitigating circumstances did not warrant death.’” Henley, 960
S.W.2d at 579-80 (quoting Strickland, 466 U.S. at 695).

       A. Investigation

              1. Guilt Phase

         The Petitioner argues that trial counsel should have presented evidence demonstrating
that he was incapable of forming the requisite culpable mental state required for a finding of
first degree premeditated murder instead of challenging the sufficiency of the State’s
evidence. According to the Petitioner’s argument, counsel did not invest enough time into
investigating his mental health, and thus they were unable to make an informed decision to
forego a diminished capacity type of defense in favor of the theory they ultimately pursued
at trial.

       The Petitioner is challenging trial counsel’s strategy. Mr. Goodlett did not believe the
State would be able to prove that the Petitioner committed first degree premeditated murder.
The record does not dispute Mr. Goodlett’s testimony that defense counsel thoroughly
investigated the facts of the crime. In addition, counsel obtained the services of independent
experts to challenge those of the State regarding the autopsy findings and the DNA analysis
of blood found in the Petitioner’s vehicle. The State’s proof in this case was entirely
circumstantial. On direct appeal, although the majority of the supreme court concluded that
the convicting evidence was sufficient, they acknowledged that “the question is close in this
case.” 121 S.W.3d at 615. Contrary to the Petitioner’s suggestion, though, the fact that his
convictions were affirmed by a three to two vote does not equate with a presumption that trial
counsel should have chosen a different defense strategy. The Petitioner is still required to
demonstrate that counsel’s performance was deficient and that prejudice resulted.

       The Petitioner was evaluated for almost a month at MTMHI prior to trial. Mr.
Goodlett testified that he reviewed the MTMHI report. According to that report, the
Petitioner was deemed competent to stand trial and there was no support for an insanity
defense. The report acknowledged the Petitioner’s lengthy criminal record and history of
mental health treatment. The report commented on the Petitioner’s tendency to exaggerate
and his ability prior to his arrest to maintain successful employment. It also noted that the
Petitioner declined to answer certain questions about his whereabouts or functioning during
the time of the crimes because he was concerned about his legal situation. The Petitioner was
determined to have a low-average to average I.Q. MTMHI diagnosed the Petitioner with a
personality disorder, not otherwise specified, with schizoid, antisocial and avoidant traits.




                                              22
        Mr. Goodlett testified that he was aware of the Petitioner’s criminal background and
long history of mental health treatments. Mr. Goodlett acknowledged, though, that the
Petitioner had never been declared incompetent to stand trial or otherwise insane. During
the evidentiary hearing, Mr. Goodlett acknowledged that information contained in many of
the reports from the Petitioner’s past evaluations would have been extremely damaging to
the defense and that he weighed the probability of that information being exposed to the jury
during cross-examination by the State when evaluating his trial strategy. Although the
Petitioner faults trial counsel’s limited investigation into his mental health, even only a
cursory review of the Petitioner’s records would have caused any reasonable attorney to
strongly consider an alternative approach to the defense. Included in those reports is the
following information, including statements attributable to the Petitioner, which Mr. Goodlett
testified were included in his case files: the Petitioner was viewed as being manipulative,
uncooperative and prone towards lying; the Petitioner was considered a dangerous parolee
and would be inclined to commit rape and murder in the future; the Petitioner stated that his
problem was that he liked to rape women; the Petitioner stated that he raped over 100 women
between 150 and 200 times; the Petitioner stated there are two types of relationships with
women, courtship and rape, and that he was no good at courtship; the Petitioner stated that
it was difficult to rape because there were a lot of things going on in his mind at the time; the
Petitioner said he would continue to assault women after his release from custody; the
Petitioner remarked that one of his favorite activities when he was younger was raping girls,
that he raped over 100 women, “if you use the legal definition,” and that the only difference
between making love and committing rape was whether or not the woman enjoyed it; the
Petitioner accepted a significant number of rape myths and he saw violence as a way of
controlling women; and the Petitioner said he would risk incarceration to spend time alone
with a particular woman and said that she would let him lock a chain around her and drive
her to East Tennessee. Even trial counsel’s mitigation specialist admitted that the
Petitioner’s records were some of the most unfavorable she had ever encountered.

        In support of his argument, the Petitioner relies upon Dr. Brown’s opinion that the
Petitioner could not have formed the requisite premeditation given the facts of this case. Dr.
Brown testified that he read the supreme court’s opinion, but he admitted that he did not read
the trial transcript. Dr. Brown testified that he based his opinion upon his review of the
Petitioner’s personal records and other “clinical information.” Dr. Brown believed it was
more likely that the Petitioner reacted to the situation rather than having planned the crimes
in advance. And although he stated that the Petitioner did not do a good job concealing his
involvement, Dr. Brown agreed that the Petitioner’s actions after the murder did represent
attempts to conceal his involvement and avoid detection. Moreover, Dr. Brown
acknowledged that the Petitioner was not incapable of ever forming the culpable mental state
for first degree murder.



                                               23
        The Petitioner insists that trial counsel did not conduct a thorough enough
investigation into his mental health. However, counsel did thoroughly investigate the facts
of the crime. This is not a case where trial counsel did not engage in any trial preparation.
Instead, the Petitioner simply disagrees with counsel’s chosen strategy. Mr. Goodlett
testified that counsel discussed trial strategy with the Petitioner and that the Petitioner was
aware of the negative information contained in his records. Mr. Goodlett was also aware of
the Petitioner’s lengthy mental health history but, given the negative information contained
in many of the reports, decided that the best defense was to challenge the State’s
circumstantial evidence.

       Reviewing courts must indulge a strong presumption that the conduct of trial counsel
falls within the wide range of reasonable professional assistance. Strickland, 466 U.S. at
689. Our supreme court has stated:

       “Hindsight can always be utilized by those not in the fray so as to cast doubt
       on trial tactics a lawyer has used. Trial counsel’s strategy will vary even
       among the most skilled lawyers. When that judgment exercised turns out to
       be wrong or even poorly advised, this fact alone cannot support a belated claim
       of ineffective counsel.”

Hellard, 629 S.W.2d at 9 (quoting Robinson v. United States, 448 F.2d 1255, 1256 (8 th Cir.
1971)). “It cannot be said that incompetent representation has occurred merely because other
lawyers, judging from hindsight, could have made a better choice of tactics.” Id. This Court
must defer to counsel’s trial strategy and tactical choices when they are informed ones based
upon adequate preparation. Id.

        As noted earlier, criminal defendants are not entitled to perfect representation, only
constitutionally adequate representation. Denton, 945 S.W.2d at 796. “Thus, the fact that
a particular strategy or tactic failed or even hurt the defense does not, alone, support a claim
of ineffective assistance.” Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992).
Moreover, “an accused is not deprived of the effective assistance of counsel because a
different procedure or strategy might have produced a different result.” Vermilye v. State,
754 S.W.2d 82, 85 (Tenn. Crim. App. 1987).

       The Court has reviewed the lengthy trial record in light of the Petitioner’s post-
conviction claim and the evidence presented at the evidentiary hearing. The Court cannot
conclude, however, that the decision to challenge the strength of the State’s evidence was
objectively unreasonable. The Petitioner does not explain how counsel’s chosen strategy was
erroneous in and of itself. Instead, he argues that trial counsel should have chosen a different
strategy altogether. The evidence in this case was entirely circumstantial. The supreme court

                                              24
acknowledged this was a close case. However, just because the jury concluded that the State
proved its case beyond a reasonable doubt does not mean that counsel’s performance was
deficient. Contrary to the Petitioner’s argument, trial counsel’s decision was an informed
one, and one to which deference will be given.

              2. Penalty Phase

        The Petitioner advances a similar argument about trial counsel’s decision regarding
the presentation of mitigating evidence. As noted above, Mr. Goodlett testified that the
theory of mitigation focused on residual doubt and an attempt to demonstrate that the
Petitioner did not deserve to die. During sentencing, trial counsel called the Petitioner’s
mother, six of his former co-workers, and the prison chaplain to testify about his background
and general good nature. The Petitioner argues in the post-conviction context, however, that
trial counsel should have presented evidence about his mental health problems instead. The
evidence the Petitioner now contends should have been introduced to the jury has been
summarized above.

        The post-conviction court concluded that counsel were not deficient in their
investigation and presentation of the mitigating evidence. The court further concluded that
the alternative mitigating evidence introduced during the evidentiary hearing would not have
changed the outcome of the jury’s verdict at sentencing. The trial court properly analyzed
this issue under the standard established by our supreme court in Goad v. State, 938 S.W.2d
363 (Tenn. 1996). When considering a claim that trial counsel failed to present sufficient
mitigating evidence, our supreme court has directed the reviewing courts to consider the
following: (1) the nature and extent of the mitigating evidence that was available but not
presented; (2) whether substantially similar mitigating evidence was presented to the jury in
either the guilt or penalty phase of the proceedings; and (3) whether there was such strong
evidence of aggravating factors that the mitigating evidence would not have affected the
jury's determination. Id. at 371.

        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, long held by this society, 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 (1987) (O’Connor, J., concurring). The right that
capital defendants have to present a vast array of personal information in mitigation during
the sentencing phase, however, is constitutionally distinct from the question of whether
counsel's choice about what information to present to the jury was professionally reasonable.
The basic concerns of counsel during a capital sentencing proceeding are to neutralize the

                                             25
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; Zagorski v. State, 983 S.W.2d 654, 657 (Tenn. 1998).

        Deference must be given to an informed trial strategy. Hellard, 629 S.W.2d at 9.
Trial counsel’s conduct should not be measured in hindsight but, instead, should be assessed
from counsel’s perspective at the time. Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim.
App. 1992). Furthermore, the fact that a particular strategy failed or even hurt the defense
does not, alone, support a claim of ineffective assistance of counsel. Id. Although there is
no absolute duty to investigate particular facts or a certain line of defense, “counsel has a
duty to make reasonable investigations or to make a reasonable decision that makes particular
investigations unnecessary.” Strickland, 466 U.S. at 691. 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 perspective at the time.’” Wiggins v. Smith, 539 U.S. 510,
523 (2003) (quoting Strickland, 466 U.S. at 688-89)). 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. Nor is counsel required to interview every
conceivable witness. See Hendricks v. Calderon, 70 F.3d 1032, 1040 (9th Cir. 1995). In
other words, counsel's duty to investigate and prepare is not limitless. Id.

        Again, this is not a case in which counsel failed to conduct any investigation or
present any mitigating evidence. The Petitioner is challenging trial counsel’s decision to
forego the presentation of one type of mitigation theme in favor of another. Mr. Goodlett
testified that he was aware of the Petitioner’s mental health background and, even after only
an allegedly cursory review, knew the information contained in many of the reports would
have been extremely damaging to the Petitioner’s case during sentencing. Accordingly, Mr.
Goodlett decided instead to call lay witnesses who would support the Petitioner’s claim that
his life should be spared.

      In denying relief on this ground, the post-conviction court made the following
statements:

       [T]rial counsel were faced with a dilemma. They sought mitigation proof
       based upon Petitioner’s mental health difficulties, but the evidence available
       at trial would have also opened the door to the introduction of damaging
       evidence which would have severely undermined the effectiveness of the
       mental health evidence. In his post-hearing brief, Petitioner insists that the
       evidence of [his] mental health difficulties would have outweighed any

                                              26
       prejudicial effect that the evidence of [his] state of mind with respect to
       women would have had. This Court disagrees. This evidence would have
       been potentially devastating. Thus, trial counsel made the difficult decision
       not to present the mental health evidence.

                                             ...

       Suffice it to say that trial counsel was aware of Petitioner’s mental health
       difficulties although certainly not to the extent that they were presented at the
       hearing on the Post-Conviction Petition. Trial counsel knew enough to know
       that the presentation of a mental health defense in the penalty phase would
       [have been] a “two-edged sword.” The theory of defense was that the State
       had not proven the guilt of Petitioner beyond a reasonable doubt and, in the
       penalty phase, that there was sufficient doubt of Petitioner’s guilt that the
       death penalty should not be imposed. This is a valid defense theory. . . . This
       Court finds trial counsels’ preparation in this area to have been adequate to
       determine the relative merits of a mental health defense. Obviously, trial
       counsel did not make [as] exhaustive an investigation into Petitioner’s mental
       health as did post-conviction counsel but, having decided that the
       disadvantages of such a defense outweighed the possible advantages, such a
       [thorough] investigation was unnecessary. Trial counsel had determined that
       another defense theory had a greater chance of success. This being the case,
       trial counsel cannot be found to have been ineffective.

         This Court agrees. As the trial court observed, post-conviction counsel engaged in
a more in-depth presentation of evidence into the Petitioner’s mental health. However, even
though trial counsel may have only briefly reviewed some of the Petitioner’s records, that
was sufficient to allow counsel to make an objectively reasonable decision which this Court
will not now second-guess. This Court must indulge a strong presumption that the conduct
of trial counsel falls within the wide range of reasonable professional assistance. Strickland,
466 U.S. at 689. We must also defer to counsel’s strategic choices in the presentation of their
defense. Hellard, 629 S.W.2d at 9. Our review of the record in this case leads us to
conclude that trial counsel reasonably decided to avoid allowing the jury to hear the negative
information summarized above. Indeed, that information could not have been well-received
by the jury, especially when it already knew the Petitioner had previous convictions for
assault and battery with intent to commit rape and felonious sexual battery, among others.
This Court concludes that trial counsels’ presentation of their case at sentencing was not
deficient or otherwise unreasonable.

       B. Dr. Harlan’s Testimony

                                              27
       The Petitioner contends trial counsel failed to object to Dr. Harlan’s testimony that
the victim’s death probably occurred within twenty-four hours of when she was last seen
alive or that her death was the result of homicide. In addition, the Petitioner argues that trial
counsel should have challenged Dr. Harlan’s alleged failure to preserve parts of the victim’s
body.

        The Petitioner is unable to demonstrate how counsel’s performance was deficient with
respect to the first two contentions. As both the trial court and State observe, experts in the
field of forensic pathology are routinely permitted to opine about both the time and manner
of death. See, e.g., Dellinger v. State, 279 S.W.3d 282 (Tenn. 2009) (case involving “battle
of experts” regarding victim’s time of death) and State v. Bragan, 920 S.W.2d 227 (Tenn.
Crim. App. 1995) (acknowledging that expert may opine that death was result of homicide).
Moreover, trial counsel did, in fact, call their own expert witness who disputed Dr. Harlan’s
opinions in both respects. Counsel did not simply acquiesce to the State’s evidence but
instead, and in line with their chosen theory of defense, actively challenged Dr. Harlan’s
testimony. Counsels’ performance thus cannot be considered objectively unreasonable.

       Nevertheless, the Petitioner is unable to show prejudice. As the trial court concluded,
“[t]he exact timing of the death of the deceased is simply not critical.” The testimony of all
three experts who testified about the time of death necessitated that it occurred within a few
days of when she was last seen alive, and other evidence placed the Petitioner in the woods
where the victim was discovered approximately one week after the victim was last seen alive.
Furthermore, the supreme court concluded that, although the evidence did not reveal the
precise cause of death, the jury’s verdict that the act was premeditated was otherwise
supported by the totality of the evidence. The sufficiency of the convicting evidence has
already been challenged.

       The Petitioner also contends that trial counsel were ineffective because they failed to
adequately challenge Dr. Harlan’s failure to preserve parts of the victim’s body during the
autopsy. Specifically, the Petitioner argues that counsel should have moved for a dismissal
of the indictment or the option of the death penalty as a sentence, or should have at least
requested a limiting instruction because Dr. Harlan did not preserve the cervical vertebrae,
the scapula or the radius and ulna off the left arm following the autopsy.

       As both the State and the trial court recognize, Tennessee’s leading case addressing
the State’s failure to preserve evidence was issued after the trial in this case. In State v.
Ferguson, our supreme court held that if the proof demonstrates the State had a duty to
preserve the evidence at issue, but failed to do so, then the analysis of the issue focuses on
several factors for an appropriate remedy, which may entail dismissal of the charges or a
limiting jury instruction. 2 S.W.3d 912, 917 (Tenn. 1999). Those factors include the degree

                                               28
of negligence involved, the significance of the destroyed evidence considered in light of the
probative value and reliability of any remaining secondary or substitute evidence, and the
sufficiency of the other convicting evidence. Id.

       Because Ferguson was not decided until after the Petitioner’s trial, counsel’s failure
to move for a dismissal of the charges or request an instruction about Dr. Harlan’s handling
of the evidence at issue cannot be considered objectively unreasonable. Nevertheless, the
Petitioner is otherwise unable to demonstrate any resulting prejudice. The sufficiency of the
convicting evidence has previously been upheld and, in its analysis of whether the murder
was premeditated, the supreme court did not reference any of the expert testimony
concerning the removal of the victim’s head or arm. 121 S.W.3d at 614-16. Moreover, the
supreme court recognized that the precise cause of the victim’s death was undetermined and
that there was no dispute that areas of the victim’s body, including the neck and arm,
exhibited signs of trauma inflicted by both human and animal activity.

        The Petitioner also argues that trial counsel should have attempted to impeach Dr.
Harlan’s reputation. Though counsel did not question Dr. Harlan about allegations
surrounding his practice in general, of which Mr. Goodlett was aware, trial counsel did call
their own expert witness to dispute Dr. Harlan’s findings. Accordingly, trial counsel did, in
fact, otherwise attempt to impeach Dr. Harlan. As the supreme court acknowledged, the
precise cause of death was undetermined. Nevertheless, during its review of the sufficiency
of the evidence, the supreme court concluded that “no single piece of evidence was sufficient
in and of itself to establish premeditation” but that, instead, “the facts and circumstances as
a whole were sufficient.” 121 S.W.3d at 616. Given our review of the record, we cannot
conclude that counsel’s failure to further impeach Dr. Harlan deprived the Petitioner of a fair
trial or called into question the reliability of the outcome. Nichols, 90 S.W.3d at 587. We
discuss in greater detail below the Petitioner’s Brady claim regarding information about Dr.
Harlan.

       C. Hotel Visit

       The Petitioner contends trial counsel created an actual conflict of interest which
mandated their withdrawal from the case after they visited the hotel where the jurors were
sequestered during trial. Similarly, the Petitioner argues that, based solely on counsel’s visit,
the jury was unfairly tainted with extraneous information.

        Mr. Goodlett admitted during the evidentiary hearing that he and his co-counsel
visited the hotel while the jury was onsite in order to make sure the jurors did not have access
to any newspaper boxes. The trial judge was made aware of the incident soon after it



                                               29
happened and admonished counsel, outside the presence of the jury, against any future visits
to the hotel.

       In denying relief on this ground for post-conviction relief, the trial court stated:

       Although trial counsels’ actions in visiting the jury’s motel were certainly
       unwise, their actions do not appear to have prejudiced Petitioner. No questions
       were asked of the juror who testified at the evidentiary hearing about her
       reaction to the incident. There is no proof that the jurors received any outside
       information [or] influences. As such, there was no need for the remedies
       suggested by Petitioner. Although trial counsels’ inappropriate actions may
       have cause[d] some excitement among some jurors, there is no indication that
       these actions affected the verdict of the jury. This Court cannot imagine that
       these actions by trial counsel could have caused any juror to return a verdict
       different than that which was returned in this case.

This Court agrees. As both parties recognize, “when it has been shown that a juror was
exposed to extraneous prejudicial information or subjected to improper influence, a
rebuttable presumption of prejudice arises, and the burden shifts to the State to explain the
conduct or demonstrate that it was harmless.” Walsh v. State, 166 S.W.3d 641, 647 (Tenn.
2005). The Petitioner, however, did not present clear and convincing proof that any of the
jurors were actually exposed to any extraneous prejudicial information or improper influence
by counsel. Despite the Petitioner’s argument to the contrary, trial counsels’ actions, while
ill-advised, did not create an actual conflict of interest resulting in a presumption of prejudice
under the Strickland analysis. Although counsel may have been seen by one or more jurors,
their mere presence at the hotel, without direct proof of any contact or communication with
any juror, does not equate to exposure to extraneous prejudicial information or improper
influence. Accordingly, counsel’s actions cannot be said to have prejudiced the Petitioner’s
right to a fair and impartial trial.

       D. Change of Venue

        The Petitioner challenged on direct appeal the trial court’s denial of his motion for a
change of venue. The supreme court denied relief on the issue. 121 S.W.3d at 613. The
court noted that trial counsel supported their pretrial motion with numerous newspaper
articles as well as a videotape of a newscast, and the court recounted counsels’ argument
during the hearing on the motion in which they emphasized that the various news reports
detailed the facts of the case, including the Petitioner’s criminal record, and that the victim
was the member of a prominent local family. Id. at 610. The supreme court further noted



                                               30
that the trial court conducted a full evidentiary hearing on the motion and issued a written
order detailing its analysis. Id.

        During its analysis, the supreme court recognized that trial venue may be changed “‘if
it appears to the court that, due to undue excitement against a defendant in the county where
the offense was committed or any other cause, a fair trial probably could not be had.’ Tenn.
R. Crim. P. 21(a); see also State v. Dellinger, 79 S.W.3d 458, 481 (Tenn. 2002) (appendix).”
Id. at 611. As the court observed, the trial court has the discretion to determine whether to
grant a motion for change of venue and that determination will not be reversed absent a clear
abuse of discretion. Id. at 611-12. The court cited the well-settled rule that “before a
conviction will be reversed for the trial court’s failure to grant a change of venue, an accused
must establish ‘that the jurors who actually sat were biased and/or prejudiced.’” Id. at 612
(quoting Dellinger, 79 S.W.3d at 481). The supreme court concluded:

       Accordingly, the record shows that the trial court held an extensive evidentiary
       hearing and considered numerous relevant factors in determining whether to
       grant a change of venue. The trial court also conducted a lengthy and detailed
       voir dire process that was devoted to determining the nature and extent of
       exposure to media coverage of the defendant and victim as well as its potential
       effect on the views of the potential jurors. There is no evidence that any juror
       was actually biased or prejudiced against [the Petitioner]. We therefore
       conclude that the trial court did not abuse its discretion in denying [the
       Petitioner’s] motion for a change of venue.

Id. at 613.

        The Petitioner now contends that trial counsel did not effectively present their motion
for change of venue. The Petitioner suggests that counsel should have retained the services
of a jury consultant and should have “vetted” the venire in order to present more evidence
at the hearing in support of their request. The trial court denied this ground for post-
conviction relief:

       Although Mr. Goodlett acknowledged that the trial court denied the change of
       venue motion because defense counsel failed to present adequate proof
       supporting the motion, Petitioner did not present any proof at the evidentiary
       hearing regarding the extent to which the seated jurors were exposed to
       publicity regarding the case before or during trial. While there was evidence
       of pre-trial publicity, the fact is that a jury was seated and these jurors were not
       shown to have been influenced by this publicity. Thus, the Court finds that



                                               31
       Petitioner has not established that trial counsels’ actions in presenting the
       change of venue motion prejudiced Petitioner.

        This Court agrees. Although the Petitioner argues that “further inquiry into what the
jurors’ thought is now blocked,” the Petitioner had the post-conviction burden of proving the
factual allegations supporting his grounds for relief by clear and convincing evidence. The
Petitioner has failed to do so in this instance. Trial counsel filed a motion for change of
venue and raised the issue on direct appeal. The Petitioner’s argument in post-conviction that
the presentation of additional or different evidence at the hearing on the motion for change
of venue might have affected the trial judge’s decision is not enough to establish that
counsel’s conduct was deficient or that prejudice resulted. The Petitioner’s challenges to
counsels’ conduct during voir dire are addressed below.

       E. Jury Selection

              1. Aggravating Circumstances

        The Petitioner contends that trial counsel were ineffective for failing to object when
the trial court read all of the statutory aggravating circumstances to the jurors during voir
dire. As the trial court noted in post-conviction, instructing the jury on inapplicable
aggravating circumstances is error which may otherwise be deemed harmless. See State v.
Blanton, 975 S.W.2d 269, 281 (Tenn. 1998). However, the trial court’s recitation of all of
the statutory aggravating circumstances during voir dire while explaining to potential jurors
the capital sentencing process was not error. See State v. Robinson, 146 S.W.3d 469, 525
(Tenn. 2004). The jury selected in this case was only instructed on those aggravating
circumstances sought by the State. See id. Thus, counsel cannot be deemed ineffective for
failing to object in this instance.

              2. Mitigating Evidence

       The Petitioner contends that trial counsel should have objected when the trial court
allegedly informed two jurors they were not required to give weight to mitigating evidence.
In denying relief on this ground, the trial court stated:

       The law is, of course, that jurors must be able to consider and give effect to
       mitigating evidence. The trial judge simply stated that the jurors were free to
       give no weight to mitigating circumstances. In other words, after evaluating
       the mitigating evidence, the jurors were free to reject it if they so chose. The
       statement of the trial court was correct and counsel cannot be ineffective for
       failure to object when the court is not in error.

                                             32
       We agree. In the two instances cited by the Petitioner, the trial court properly
informed the jurors that they alone were responsible for deciding how much weight to assign
the mitigating evidence. Trial counsel cannot be deemed ineffective for objecting to those
statements.

              3. Pretrial Publicity

        The Petitioner advances a blanket statement that “trial counsel failed to adequately
investigate whether members of the jury pool had been tainted by the prejudicial pre-trial
publicity.” The Petitioner offers no argument in support thereof. This ground for relief must,
therefore, be considered waived. See Tenn. Ct. Crim. App. R. 10(b) (“Issues which are not
supported by argument, citation to authorities, or appropriate references to the record will be
treated as waived in this court.”). Nevertheless, the supreme court observed on direct appeal
that the record “demonstrates that the trial court conducted a meticulous and detailed jury
selection process from August 4 to August 19, 1997” that “involved over two hundred
potential jurors” and “was devoted to determining the nature and extent of exposure to media
coverage of the defendant and victim as well as its potential effect on the views of the
potential jurors.” 121 S.W.3d at 612, 613. The Petitioner is not entitled to relief on this
ground.

              4. Individual Jurors

      The Petitioner contends trial counsel were ineffective for failing to peremptorily strike
or move to excuse certain jurors for cause.

              i. Juror Joy Anderson

        The Petitioner argued on direct appeal that Juror Anderson was prejudiced against him
because her younger brother was a friend of the victim’s son. 121 S.W.3d at 612. The
supreme court rejected that argument concluding that its review of the voir dire demonstrated
that Juror Anderson was not prejudiced against the Petitioner or biased in favor of the victim.
Id. at 613. The court observed that Juror Anderson stated “she would not ‘lean one way or
the other’ if selected to serve as a juror and that her son’s [sic] relationship with [the
victim’s] family would not influence her in any way.” Id. at 612. The supreme court noted,
though, that Juror Anderson was not challenged for cause. Id. at 613.

        In post-conviction, the Petitioner now contends that counsel were ineffective for
failing to challenge Juror Anderson for cause. The trial court, however, concluded that even
if counsel had challenged Juror Anderson for cause, the challenge would have been denied.
The record does not discredit that conclusion. The Petitioner has failed to demonstrate how

                                              33
Juror Anderson was actually prejudiced against him. Accordingly, counsel cannot be deemed
ineffective for moving to excuse her for cause or using a peremptory challenge against her.

              ii. Juror Joyce Baldwin

       The Petitioner claims counsel should have moved to excuse Juror Baldwin for cause
or used a peremptory challenge against her because, when asked how she would react to
graphic evidence, she answered that it would have an impact on her ability to hear mitigating
evidence. The trial court denied relief stating:

       This answer strikes the Court as reasonable. Facing the realities of a gruesome
       murder would certainly impact even the thought processes of any reasonable,
       feeling person. The question, however, [is] not whether the gruesome
       evidence would “have an impact” upon a juror’s ability to hear mitigation
       evidence but whether it would affect it. Fair-minded, reasonable people are
       able to recognize potential[] emotions and not allow them to interfere with
       their deliberative process. If the juror could follow the instructions of the trial
       court and apply the law to the facts without sympathy, prejudice or passion
       (and there is no indication in the record that she could not), the juror is
       competent. Experienced trial lawyers know that some jurors, recognizing their
       potential prejudice, will overcompensate for it, resulting in being more
       favorable to the side presenting the difficulty than they otherwise would have
       been. Whether trial counsel determined that this may have been the case with
       Juror Baldwin, we do not know because Mr. Goodlett was not asked about it
       at the post-conviction hearing.

       There certainly was no basis for a challenge for cause. The entire questioning
       of Juror Baldwin established that she would be able to reach a just verdict by
       applying the law to the facts in spite of any emotional reaction to graphic
       evidence.

       The record fully supports the trial court’s finding that Juror Baldwin could follow the
law and base her verdict on the evidence presented at trial. The Petitioner has simply failed
to demonstrate how counsel was ineffective for moving to excuse Juror Baldwin from the
panel.

              iii. Juror Rosemary Jackson

       The Petitioner contends that trial counsel should have moved to excuse Juror Jackson
for cause or used a peremptory challenge against her because her husband worked for the

                                               34
Dickson County Sheriff and because of responses she gave to questions about this case in
particular and the death penalty in general. In denying the Petitioner relief with respect to
this contention, the trial court stated the following:

       When questioned . . . concerning whether Juror Jackson’s husband had talked
       about his work, the juror responded, “No, not that much. He’s a quiet person.
       We usually gripe about co-employees and bosses.” This is hardly evidence of
       favoritism toward the Dickson County Sheriff’s Office and, if it indicates
       anything, it would tend to show that the juror would have a negative attitude
       in that respect.

       . . . Juror Jackson was asked by the trial court, “Is there any possibility that
       what you’ve heard here in the case could interfere with your judgment in this
       case?” The juror answered, “Yes, sir.” In this Court’s opinion, every juror
       who was asked this question (“...is there any possibility...”) would have
       answered the question in the affirmative. There is always some possibility. It
       should be noted that when the juror was asked by the State . . . “Would you let
       anything enter into your verdict other than the law and the evidence?”, she
       responded, “Hopefully not. I would try my best not to.” This impresses this
       Court as a thoughtful and truthful answer. The juror was specifically asked
       . . . “For purposes of approaching this case, it would probably be better that
       you didn’t assume that whatever you heard was accurate, just totally set it aside
       and assume it wasn’t true and never let it enter into your verdict. Could you
       do that?” The juror replied, “Yes, sir.” The answers of the juror, when taken
       as a whole, indicate that she would be able to render a verdict based solely
       upon the law and evidence in this case.

       Petitioner has alleged that the juror was in favor of the death penalty as a cost-
       saving measure. What she actually said was, “Mostly the expense of housing
       criminals. I think it depends on the crime. I just felt like some people deserve
       the death penalty. They were just such terrible people that they deserved it.
       I don’t know. I don’t honestly know. I just started thinking about it and
       decided that in some circumstances some people do deserve it.” This answer
       impresses this Court as a thoughtful and correct answer indicating an open
       mind as to whether or not the death penalty should be imposed. The defense
       asked the juror . . . “The Court instructed you that the death penalty is reserved
       for the most heinous and serious crimes, what would you do if you did not feel
       the government has shown you this is one of the most heinous crimes?” The
       juror answered, “Then I wouldn’t vote for the death penalty.” The answers of



                                              35
       this juror can hardly be characterized as being in favor of the death penalty as
       a cost-saving measure.

       The answers of Juror Jackson during voir dire do not indicate anything but an
       open mind toward a fair consideration of the case. There was no basis for a
       challenge for cause and no indication that trial counsel should have excused
       the juror peremptorily. Trial counsel have not been shown to have been
       ineffective in failing to challenge this juror.

       After our review of the entire questioning of Juror Jackson, this Court agrees with the
post-conviction court’s conclusion that there was no basis for a challenge for cause. Juror
Jackson stated that her husband was not involved in this case in any way and he did not
discuss anything about the Petitioner with her. When asked whether she could set aside
anything she had heard or read about the case, Juror Jackson unequivocally replied in the
affirmative. Moreover, Juror Jackson clearly indicated that she could follow the law as
instructed in this bifurcated death penalty trial. Juror Jackson stated that defendants
convicted of first degree murder should not always be sentenced to death but that, instead,
the penalty should depend on the evidence presented. Accordingly, Juror Jackson stated that
she would not vote for the death penalty if she did not believe the State proved its case.
When asked by trial counsel, “Do you currently have any expectations the defendant should
show something to you during the course of the trial?”, Juror Jackson replied, “No, because
he doesn’t have to prove he’s innocent, his guilt or innocence.”

        The overall tenor of Juror Jackson’s responses to questions asked during voir dire
clearly indicated she would be able to follow the court’s instructions and decide the case on
the facts presented at trial. The Petitioner has simply failed to demonstrate how counsel was
ineffective for moving to excuse Juror Jackson from the panel or how he was otherwise
prejudiced by counsel’s failure to use a peremptory challenge on her. Although Juror
Jackson’s testimony during the evidentiary hearing, that her husband expressed to her his
feeling about the Petitioner’s guilt, contradicted what she informed the trial court and counsel
during voir dire, she reaffirmed that she maintained no predisposition about the Petitioner’s
guilt or innocence. The record of the jury selection reveals that trial counsel had no
reasonable basis at that time to doubt Juror Jackson’s answers. Moreover, nothing about
Juror Jackson’s post-conviction testimony demonstrates that the Petitioner was actually
prejudiced by trial counsel’s failure to strike her peremptorily. The Petitioner is not entitled
to relief on this ground.

              iv. Juror Jerry Greer




                                              36
        The Petitioner contends trial counsel were ineffective by asking Juror Greer if he
could consider childhood abuse as a mitigating circumstance when no such evidence was
actually presented at trial. Other than this one sentence complaint, the Petitioner offers no
other argument in support thereof. This ground for relief, therefore, must be considered
waived. See Tenn. Ct. Crim. App. R. 10(b) (“Issues which are not supported by argument,
citation to authorities, or appropriate references to the record will be treated as waived in this
court.”). Nevertheless, the trial court concluded that there was no evidence in the record that
Juror Greer was negatively affected by trial counsel’s conduct. The Petitioner has simply
failed to demonstrate how trial counsel were deficient in their questioning of this juror during
voir dire. As the trial court commented, trial counsel’s questions simply appeared to gauge
how Juror Greer would be able to consider mitigating evidence in general. Moreover,
Attorney Love conducted the questioning of Juror Greer, and he was not called as a witness
during the evidentiary hearing to explain his actions. The Petitioner is not entitled to relief
on this ground.

               v. Juror David Higgins

        The Petitioner contends trial counsel should have used a peremptory challenge to
strike Juror Higgins because he stated that he did not believe a sentence of life without the
possibility parole served any deterrent function. Again though, other than this one sentence
complaint, the Petitioner offers no other argument in support thereof. This ground for relief
must, therefore, be considered waived. See Tenn. Ct. Crim. App. R. 10(b) (“Issues which
are not supported by argument, citation to authorities, or appropriate references to the record
will be treated as waived in this court.”). Nevertheless, the Petitioner has not shown how
trial counsel’s performance was deficient in this instance. The trial court observed that,
“[w]hen taken as a whole, the answers of Juror Higgins do not indicate a predisposition to
vote for the death penalty. His answers indicated that he would fairly apply the law to the
best of his ability.” Indeed, our review of the voir dire of Juror Higgins reveals that he
confirmed he would be able to follow the court’s instructions, including the instructions
regarding the weighing of aggravating and mitigating factors, and would consider only that
evidence which that was presented at trial. Moreover, Juror Higgins agreed with the way our
capital sentencing procedure worked and stated that it seemed fair. The Petitioner is not
entitled to relief on this ground.

               vi. Juror William Duke

       The Petitioner contends trial counsel should have used a peremptory challenge or
moved to strike Juror Duke for cause because he stated that he did not “think” he would be
able to consider as a mitigating circumstance the fact that the Petitioner had a poor
upbringing. The Petitioner offers no argument in support of the one sentence he included in

                                               37
his brief. This ground for relief must, therefore, be considered waived. See Tenn. Ct. Crim.
App. R. 10(b) (“Issues which are not supported by argument, citation to authorities, or
appropriate references to the record will be treated as waived in this court.”). Again though,
despite waiver, the Petitioner has not demonstrated how counsel’s performance was deficient
in this respect. According to the transcript, Juror Duke believed that a sentence of life
without the possibility of parole was an equal deterrent as the death penalty. Indeed, Juror
Duke stated that the gruesome facts in this case alone would not cause him to reject a
sentence of life without parole in favor of death. Moreover, he stated that he understood how
the weighing process operated in the capital sentencing scheme, and he affirmed that he
would be able to follow the court’s instructions. The trial court concluded that Juror Duke’s
responses, when viewed in their entirety, “could have indicated to trial counsel an openness
to a sentence short of death that would have outweighed the juror’s views on the effect of an
impoverished upbringing.” The record fully supports the trial court’s conclusion.

              5. Victim’s Daughter

        The Petitioner contends trial counsel should have objected to Jennifer Koch, the
victim’s daughter, sitting at the table with the prosecutor during jury selection. The trial
court noted that the appellate courts of this state “have long rejected assertions that the
presence of a victim’s family member at or near the prosecution’s table at trial or during voir
dire would somehow unfairly prejudice a defendant.” See, e.g., State v. Henry Eugene
Hodges, No. 01C01-9212-CR-00382, 1995 WL 301443 at *17-20 (Tenn. Crim. App., May
18, 1995), aff’d, State v. Hodges, 944 S.W.2d 346 (Tenn. 1997). Accordingly, the Petitioner
has not demonstrated how counsel’s failure to object to the mere presence of the victim’s
daughter was deficient. As this Court recognized in Hodges, “there is a common law rule
which permits the prosecutor or an interested witness to sit at counsel table with the assistant
district attorney general prosecuting the accused. This has been the practice for many years.”
Id. at 19. Nevertheless, the trial court properly instructed the jury on the law in this case and
the Petitioner has failed to highlight any apparent problems in the record which could be
attributed to the victim’s daughter sitting at the table. See id. at 20. The Petitioner has thus
failed to show any resulting prejudice.

       The Petitioner also contends trial counsel should have objected when the prosecutor
referred to Ms. Koch as the victim’s daughter. The trial court concluded that the “term
‘victim’ did not represent an improper opinion on Petitioner’s guilt.” Furthermore, as the
State observes, the prosecutor initially referred to Ms. Koch as the daughter of the “alleged”
victim, but when the prosecutor subsequently omitted the term “alleged” during another
reference, trial counsel did not voice an objection which the trial court, in essence, sustained.
The Petitioner, however, has not referred the Court to any part of the record wherein he
believes counsel should have objected to the prosecutor’s comments. See Tenn. Ct. Crim.

                                               38
App. R. 10(b) (“Issues which are not supported by argument, citation to authorities, or
appropriate references to the record will be treated as waived in this court.”). Moreover, to
the extent the Petitioner is otherwise raising a general claim regarding his right to a fair trial
or impartial jury because of Ms. Koch’s presence at the prosecutor’s table, the issue is
waived because he did not raise it earlier. See Tenn. Code Ann. § 40-30-106(g).

       F. Prosecutorial Misconduct

       The Petitioner alleges several instances where trial counsel were ineffective for failing
to object to alleged prosecutorial misconduct.

       Our supreme court has long recognized that closing argument is a valuable
       privilege for both the State and the defense and have allowed wide latitude to
       counsel in arguing their cases to the jury. State v. Cauthern, 967 S.W.2d 726,
       737 (Tenn. 1994) . . . Notwithstanding such, arguments must be temperate,
       based upon the evidence introduced at trial, relevant to the issues being tried,
       and not otherwise improper under the facts or law. Coker v. State, 911 S.W.2d
       357, 368 (Tenn. Crim. App. 1995). We are mindful of the oft quoted principle
       that a prosecutor must be free to present his arguments with logical force and
       vigor, “[b]ut, while he may strike hard blows, he is not at liberty to strike foul
       ones.” Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed.
       1314 (1935).

       When argument is found to be improper, the established test for determining
       whether there is reversible error is whether the conduct was so improper or the
       argument so inflammatory that it affected the verdict to the Appellant's
       detriment. Harrington v. State, 215 Tenn. 338, 385 S.W.2d 758, 759 (1965).
       In measuring the prejudicial impact of any misconduct, this court should
       consider: (1) the facts and circumstances of the case; (2) any curative measures
       undertaken by the court and the prosecutor; (3) the intent of the prosecution;
       (4) the cumulative effect of the improper conduct and any other errors in the
       record; and (5) the relative strength or weakness of the case. Judge v. State,
       539 S.W.2d 340, 344 (Tenn. Crim. App.1976); see also State v. Buck, 670
       S.W.2d 600, 609 (Tenn. 1984).

State v. Goltz, 111 S.W.3d 1, 5-6 (Tenn. Crim. App. 2003). This Court recognized that,
within the context of closing argument, there are five general areas of prosecutorial
misconduct:

       1. It is unprofessional conduct for the prosecutor intentionally to misstate the

                                               39
       evidence or mislead the jury as to the inferences it may draw.

       2. It is unprofessional conduct for the prosecutor to express his or her personal
       belief or opinion as to the truth or falsity of any testimony or evidence or the
       guilt of the defendant.

       3. The prosecutor should not use arguments calculated to inflame the passions
       or prejudices of the jury.

       4. The prosecutor should refrain from argument which would divert the jury
       from its duty to decide the case on the evidence, by injecting issues broader
       than the guilt or innocence of the accused under the controlling law, or by
       making predictions of the consequences of the jury's verdict.

       5. It is unprofessional conduct for a prosecutor to intentionally refer to or
       argue facts outside the record unless the facts are matters of common public
       knowledge.

Id. at 6. To the extent the Petitioner advances a separate claim of prosecutorial misconduct
with respect to each alleged instance discussed below, however, the same must be considered
waived because he failed to raise it on direct appeal. See Tenn. Code Ann. § 40-30-106(g).

              1. Cross-Examination of Dr. Peretti

       The Petitioner contends trial counsel failed to request an appropriate remedy when the
prosecutor asked defense expert Dr. Frank Peretti whether he “learned that criminal
defendants sometimes cut peoples’ heads off and take them away as trophies.” Immediately
following this question, though, trial counsel voiced an objection which was sustained. The
Petitioner does not argue what else counsel should have done. Accordingly, given that
counsel did, in fact, object, we cannot deem their performance to be deficient in this respect.

       The Petitioner also contends that the prosecutor erroneously referred to Dr. Peretti as
an employee of defense counsel. The record reveals that Dr. Peretti acknowledged he had
been retained by defense counsel to review the evidence and testify on the Petitioner’s behalf.
The Petitioner, however, does not explain how trial counsel were ineffective with respect to
these questions. As the State notes, asking Dr. Peretti if he was retained by the defense was
proper, see Tennessee Rule of Evidence 616, thus counsel cannot be deemed to have been
ineffective in failing to object.

              2. Opening Argument at Guilt Phase

                                              40
        The Petitioner next asserts trial counsel should have objected to the prosecutor’s
statement during opening argument at the guilt phase of the trial that “we will also never,
never know what pain and suffering this lady went through before she was killed.”
According to the Petitioner’s argument, the statement was improper because the State
abandoned its reliance on the heinous, atrocious or cruel aggravating circumstance. The trial
court concluded that Mr. Goodlett offered sound strategy for not highlighting the statement
to the jury. We agree. Having reviewed this single remark in light of the prosecutor’s entire
opening statement, we cannot conclude that trial counsel were ineffective for failing to
object.

              3. Closing Argument at Guilt Phase

         The Petitioner cites to numerous statements made by the prosecutor during closing
argument at the guilt phase of the trial to which he argues trial counsel should have objected.
Although the Petitioner mentions that these occurred during closing argument at sentencing,
it is clear from this Court’s review of the record that the statements were actually made by
the prosecutor during closing arguments at the guilt phase. The Petitioner appears to have
made the same mistake when examining Mr. Goodlett during the evidentiary hearing. Mr.
Goodlett was asked why he did not object to certain statements the prosecutor made “in
opening at sentencing speculating about what happened that night, such things as: did he
have a gun that night; did he force her to get out of her clothes; did he use handcuffs, a knife,
a sawed-off shotgun; did he grab her and chase her down, things like that.” (Emphasis
added). The trial court recognized the Petitioner’s apparent confusion about when the
alleged improper statements were made because it concluded that Mr. Goodlett was not
asked about his failure to object to the State’s alleged speculation of events made during
closing at the guilt phase.

        On appeal, the Petitioner highlights similar statements from the prosecutor’s argument
which he claims contain improper speculation about the evidence. The Petitioner, however,
offers no argument in support of how he believes counsel rendered ineffective assistance
with respect to any of these statements. Nevertheless, this Court has read the transcript of
the closing arguments of the parties and concludes that the trial court did not err in denying
relief on this ground. The trial court concluded that “even if trial counsel had objected, the
object[ion] was sustained and a curative instruction issued, there is no reasonable possibility
that even one juror would have decided the case differently.” Moreover, as the trial court
noted, the jury was instructed that arguments of counsel were not evidence, that it was to
disregard any statements of counsel not supported by the evidence, and that its verdict was
to be based solely upon the proof at trial. The jury is presumed to have followed the trial
court’s instructions on the law. The Petitioner thus has failed to demonstrate how there was
any resulting prejudice from counsel’s failure to object. See, e.g., State v. Jordan, 325

                                               41
S.W.3d 1, 60-61 (Tenn. 2010) (finding harmless error in alleged improper remarks by
prosecutor because any misstatements sufficiently corrected by trial court’s instructions on
law which jury is presumed to follow).

              4. Opening Argument at Sentencing Phase

        The Petitioner argues counsel were ineffective for failing to object to the prosecutor’s
statements made during opening arguments at the sentencing phase which “repeatedly and
relentlessly engaged in speculation about the circumstances of the crime, what the decedent
might have felt, and what the defendant might have done.” The Petitioner contends these
“arguments were inflammatory, not based in [sic] evidence appearing in the record, and
designed to inflame the passion of the jury.” Although the Petitioner cites to relevant case
law affirming that prosecutors must generally confine their arguments to the evidence, see,
e.g., Judge v. State, 539 S.W.2d 340 (Tenn. Crim. App. 1976), the Petitioner neglects to
specifically pinpoint in the record those statements made by the prosecutor about which he
now complains. Accordingly, the Court considers this post-conviction ground for relief to
be waived on appeal. See Tenn. Ct. Crim. App. R. 10(b) (“Issues which are not supported
by argument, citation to authorities, or appropriate references to the record will be treated as
waived in this court.”).

              5. Petitioner’s Statement to Police

       The Petitioner contends that trial counsel should have objected to the following
comments made by the prosecutor during closing argument at the guilt phase when she was
discussing the Petitioner’s statement to the police prior to his arrest: “He was sitting there
talking to them about all this stuff. Did you ever hear them say that he said, boys, you all are
crazy. Why are you all talking to me about this? What do you mean where her head is? I
don’t know where her head is.” According to the Petitioner, the comment improperly
suggested that he had a duty to deny the charges against him. The trial court concluded that
counsel were not ineffective for failing to object to this comment. The court noted that Mr.
Goodlett was not questioned about this comment during the evidentiary hearing. The court
also noted that the jury was instructed that the Petitioner was presumed innocent and that the
arguments of counsel were not to be considered evidence upon which they could base their
verdict.

        This Court agrees with the trial court’s conclusion. “The decisions of a trial attorney
as to whether to object to opposing counsel's arguments are often primarily tactical
decisions.” Derek T. Payne v. State, No. W2008–02784–CCA–R3–PC, 2010 WL 161493,
at *15 (Tenn. Crim. App., Jan. 15, 2010), perm. to app. denied (Tenn., May 11, 2010). Trial
counsel could decide not to object for several valid reasons, including not wanting to

                                              42
emphasize unfavorable evidence. Id. (quoting Gregory Paul Lance v. State, No.
M2005–01675–CCA–R3–PC, 2006 WL 2380619, at *6 (Tenn. Crim. App., Aug. 16, 2006),
perm. appeal denied (Dec. 18, 2006)). Accordingly, trial counsel must be given the
opportunity to explain why they did not object to the allegedly prejudicial remarks. “Without
testimony from trial counsel or some evidence indicating that his decision was not a tactical
one, we cannot determine that trial counsel provided anything other than effective assistance
of counsel.” State v. Leroy Sexton, No. M2004–03076–CCA–R3–CD, 2007 WL 92352, at
*5 (Tenn. Crim. App., Jan. 12, 2007). The Petitioner has not demonstrated how trial
counsels failure to object to the remarks of the prosecutor was anything other than a tactical
decision. Indeed, Mr. Goodlett was not asked why he did not object to these particular
comments. Moreover, the jury was properly instructed on its duty under the law.
Accordingly, this Court concludes that trial counsel were not ineffective in this regard.

              6. Comments on Investigation

        The Petitioner next argues counsel were ineffective when they failed to object to the
State’s comments during closing argument at sentencing which he alleges “improperly
vouched for its own investigation.” The Petitioner cites two instances. The first was a
comment regarding a scrub shirt containing blood stains the victim’s daughter found in the
victim’s basement: “Weeks later, the daughter finds a shirt in the basement she thinks is
important to bring forward as a family – as has been stated, a family of medical people and
it happened to be a scrub shirt. It may have been a year old, it might have been ten years old,
but she brought it forward and I’m glad she did and we checked into it. It didn’t mean
anything.” During the evidentiary hearing, Mr. Goodlett was asked why he did not object
to this comment. He responded: “The proof was that Ms. Jackson, as I recall, had been
employed at that point by the hospital or a clinic and I just think it was sort of [de minimis]
at that point.” The Petitioner does not argue how Mr. Goodlett’s decision was objectively
unreasonable, especially in light of the fact that the Petitioner has not shown how that piece
of evidence was relevant one way or the other. Accordingly, trial counsel cannot be deemed
ineffective in that regard.

        As to the second instance of alleged improper vouching, the Petitioner refers to the
prosecutor’s comments about the performance of law enforcement officers in this case:
“These people worked hard. Tim Eads worked hard and Mike Bredlove worked hard. Your
sheriff, Tom Wall worked hard to search for the truth.” The Petitioner suggests that “[t]he
unspoken message is that the prosecutor knows what the truth is and is assuring its revelation
through witnesses for whom he vouches.” In denying relief on this ground, the trial court
stated:




                                              43
       [This] statement could hardly be construed as vouching for the work of law
       enforcement. At best, the statement was irrelevant to the issues to be tried and
       a possible appeal to emotion. The statement, made in passing, was innocuous
       and did not affect the decision of the jury.

       The prohibition against vouching for elements of the case is generally limited
       to vouching for the credibility of a witness. See State v. Henley, 774 S.W.2d
       908, 911 (Tenn. 1989). The work of law enforcement, i.e., the facts
       discovered by investigation, is a comment on the strength of the evidence.

       With regard to the State vouching for its own investigation, the Tennessee
       Supreme Court has stated, “Expressions of personal opinion by the prosecutor
       are a form of unsworn, unchecked testimony and tend to exploit the influence
       of the prosecutor’s office and undermine the objective detachment that should
       separate a lawyer from the cause being argued.” [Id.] (citing Lackey v. State,
       578 S.W.2d 101, 107 (Tenn. Crim. App. 1978)). Accordingly, comments by
       prosecutors vouching for the credibility of witnesses or, as in this case, the
       reliability of a police investigation[,] are improper. However, when taken in
       the context of the State’s entire closing argument, this comment cannot be said
       to have prejudiced Petitioner.

The post-conviction court noted, however, that Mr. Goodlett was not questioned about his
decision not to object, and further noted that the jury was properly instructed on the law
regarding the arguments of counsel. The Petitioner has failed to demonstrate how the trial
court’s conclusion is erroneous. Given our review of the record, we cannot conclude that
counsel were ineffective for failing to object to these comments.

              7. Victim Impact Evidence

       The Petitioner contends that the prosecutor solicited improper victim impact evidence
from the victim’s daughter during the guilt phase of the trial to which defense counsel should
have objected. The trial testimony in question relates to the victim’s appearance at a family
wedding, the type of clothing and shoes the victim enjoyed wearing, and the victim’s affinity
for featherbeds. As to each challenged area of the victim’s daughter’s testimony, the trial
court concluded that the testimony did not cause undue sympathy for the victim or prejudice
the Petitioner. More importantly, though, the trial court noted that counsel was not asked
during the evidentiary hearing why he did not object to that line of questioning. As noted
above, decisions about whether to voice objections are left to the discretion of trial counsel
and absent a showing the decision was made for a valid tactical reason, such as avoiding
drawing undue attention to certain evidence, trial counsel’s decision will not be questioned.

                                             44
See, e.g., Sexton, 2007 WL 92352, at *5. Accordingly, the trial court did not err in denying
relief on this ground.

        Similarly, the Petitioner argues trial counsel should have objected to alleged improper
comments about victim impact evidence made by the prosecutor during the closing argument
at the guilt phase of the trial. The Petitioner contends the comments, which reference the
victim’s missed opportunities, the victim’s daughter’s description of the victim, and the
simple nature of the victim’s lifestyle, impermissibly encouraged the jury to convict based
on passion instead of deliberation. Recognizing that victim impact evidence is irrelevant to
the issue of guilt or innocence and thus should not be presented during the guilt phase of a
capital trial, the trial court in this case concluded that the prosecutor’s reference to such
matters did not prejudice the Petitioner. We agree. The trial court noted the jury was
properly instructed that it could not consider sympathy or prejudice during deliberation and
that it was required to base its verdict solely on the evidence presented at trial. Our review
of the record reveals that the comments about which the Petitioner now complains were not
of such a degree, given the convicting evidence introduced at trial, that they deprived him of
a fair trial or called into question the reliability of the outcome. The jury was clearly
instructed that the State maintained the burden of proving each element of the offenses
beyond a reasonable doubt. The jury was further instructed that the statements of counsel
during argument were not to be considered evidence. The Petitioner is not entitled to relief
on this ground.

              8. Credibility of Defense Witness

       Next, the Petitioner asserts that trial counsel should have objected to alleged improper
comments the prosecutor made about Dr. Lisa Forman, the defense’s DNA expert. During
closing argument at the guilt phase, the prosecutor argued:

       Use your common sense. Do you all know of any reason why somebody
       would cut the seat of their truck? What is that consistent with? Does that take
       a Rhodes scholar to figure that out? Why of course not. You know, I don’t
       know about Dr. Forman. I got the impression that she thought she was smarter
       than the sum total of everybody in the courtroom, the jury, the judge and me
       included. That’s my impression of her. Somebody that would volunteer to get
       involved in the O.J. Simpson case, I’ve got to have a little bit of question about
       them. And I don’t know what you all think about the O.J. Simpson case, but
       whoever’s involved in that I don’t have much to do with them. And she
       volunteered to jump in that one.




                                              45
       That tells you a little bit it [sic] and frankly, she thinks most of our family trees
       don’t fork around here. That’s my impression, she kind of – you know, she
       kind of [thinks] that we’re an inbred bunch and that, you know, we’re not
       normal around here. I don’t know, but assume that she’s telling us, you know,
       just like it is, there’s still human blood in the seat of this truck and it’s cut out.

At trial, Dr. Forman disputed the State’s expert’s opinion that DNA testing ruled out the
Petitioner as the source of the blood found on the passenger seat of his truck. Dr. Forman
admitted, though, that she did not conduct an independent analysis but was only reviewing
the findings of the State’s expert.

        The trial court found that some of the remarks quoted above were “over the top.” The
court otherwise concluded, however, that they were not so inflammatory as to have affected
the verdict to the prejudice of the Petitioner. We agree. The Petitioner neglects to argue how
counsel’s failure to object to these statements resulted in any prejudice. As the trial court
held, these few comments were not enough to cause the jury to become so prejudiced toward
the Petitioner that they were more likely than not going to convict him regardless of the
evidence introduced at trial. Moreover, the jury was properly instructed on its duty under the
law, that is, arguments of counsel are not evidence and their verdict must be based solely on
the evidence introduced at trial. The Petitioner is not entitled to relief on this ground.

              9. Comments about Petitioner

       During closing argument at the guilt phase, the prosecutor argued that “[This
defendant did everything he could to get rid of the blood, but, you know, thank goodness,
he’s a sloppy, sloppy predator because he left a little bit [at] the scene and Shelley Betts
found it just like she found that stripe on the top of the headrest.” This statement
immediately followed the prosecutor’s comments about Dr. Forman and the blood stains
found in the Petitioner’s vehicle. The Petitioner argues that defense counsel should have
objected to the prosecutor’s characterization of him as a “sloppy, sloppy predator.” The trial
court denied relief on this claim of ineffective assistance of counsel:

       The fact that Petitioner’s acts were referred to as “sloppy” is a fair comment
       upon the evidence in this case. While the fact that Petitioner’s methods were
       ineffective may not have been totally relevant, the comment is not prejudicial.

       The reference to Petitioner as a “predator” is another matter. “It is improper
       for the prosecutor to use epithets to characterize a defendant.” State v.
       Thomas, 158 S.W.3d 361, 414 (Tenn. 2005) (repeated references to defendants
       as “greed and evil”); see also State v. Cauthern, 967 S.W.2d 726, 737 (Tenn.

                                                46
       1998) (“evil one”); State v. Bates, 803 S.W.2d 881 (Tenn. 1991) (“rabid dog”);
       State v. Gann, 251 S.W.3d 446, 461-62 (Tenn. Crim. App. 2007) (likening
       defendant to a member of the Manson Family and calling defendant a
       “maniac” and a “raging homicidal killer”); State v. Goltz, 111 S.W.3d 1, 8
       (Tenn. Crim. App. 2003) (“criminal” and “underhanded thief”). Although the
       State’s comment was improper, the record reflects that the comment was an
       isolated one and, in light of the facts and circumstances of the case, more
       likely than not did not affect the outcome of the case, thus there is no prejudice
       to the Petitioner. Because any error the State may have committed in making
       the comment was harmless, trial counsel cannot be found to have been
       ineffective for not objecting to the comment.

         This Court agrees. Even if the prosecutor’s comment was improper, any deficiency
by counsel’s failure to object to that one isolated remark did not deprive the defendant of a
fair trial or call into question the reliability of the outcome. See Nichols, 90 S.W.3d at 587.
Accordingly, counsel was not constitutionally ineffective in this respect.

              10. Aggravating Circumstances

        During its opening argument at the sentencing phase, the prosecutor displayed for the
jury, via the use of an overhead projector, the entire list of all of the statutory aggravating
circumstances. Simultaneously, the prosecutor reminded the jury that the State was required
to give notice on which of those aggravators it was relying, and he then proceeded to read
to the jury the language of those three upon which the State was relying. The Petitioner
argues that trial counsel should have objected to the display of the non-charged aggravating
circumstances. Citing State v. Blanton, the trial court found any error by the prosecutor in
this respect to have been harmless. As noted above, instructing the jury on inapplicable
aggravating circumstances is error which may otherwise be deemed harmless. See Blanton,
975 S.W.2d at 281. Despite these actions by the prosecutor during the opening statements
at sentencing, the jury was only instructed on those three aggravating circumstances relied
upon by the State. The jury is presumed to have followed the court’s instructions. The
Petitioner has thus failed to demonstrate any resulting prejudice from counsel’s failure to
object to the prosecutor’s conduct in this respect.

              11. Consideration of Sympathy

       Next, the Petitioner argues that counsel should have objected to the prosecutor’s
comments during closing at sentencing that sympathy and prejudice have no role in a
criminal trial. The trial court concluded that counsel were not ineffective for failing to object
to these comments because the “no sympathy” jury instruction has repeatedly been upheld

                                               47
by our supreme court. See, e.g., State v. Bigbee, 885 S.W.2d 797, 814 (Tenn. 1994),
superceded by statute on unrelated grounds, as recognized in State v. Odom, 137 S.W.3d
572, 580-81 (Tenn. 2004). The Petitioner has failed to show how this conclusion is
erroneous. Accordingly, he is entitled to no relief on this claim.

       G. Jury Instructions

      The Petitioner cites to numerous jury instructions given during both phases of the trial
and now claims trial counsel were ineffective by failing to object to them.

              1. Guilt Phase

              i. Instruction on First Degree Murder

        The Petitioner contends counsel should have objected to the trial court’s definition of
the term “intentionally” when it instructed the jury on the elements of first degree murder.
Specifically, the Petitioner argues that murder is an offense which requires that the culpable
mental state accompany the result of the conduct rather than the nature of the conduct and
thus an instruction which defined “intentionally” as related to the nature of the conduct as
well as the result of the conduct was erroneous. The supreme court has concluded that the
alleged error with respect to the instruction at issue is not constitutional in nature. See State
v. Faulkner, 154 S.W.3d 48, 60 (Tenn. 2005) (“The entire charge on first degree
premeditated murder eliminated any risk of the jury applying the wrong definition.”).
Accordingly, as the post-conviction court concluded, counsel cannot be deemed ineffective
for failing to object to the charge.

              ii. Instructions on Especially Aggravated and Aggravated Kidnapping

        Similarly, the Petitioner contends counsel should have objected to the trial court’s
definition of “intentionally” with respect to its instructions on especially aggravated
kidnapping and aggravated kidnapping. Because the Petitioner was not convicted of
especially aggravated kidnapping, his contention with respect to the instruction on that
offense is moot. With respect to the inclusion of both the nature of conduct and result of
conduct language in the definition of “intentionally” in relation to the instruction on
aggravated kidnapping, the trial court, citing the reasoning of the supreme court in Faulkner,
concluded that any error in the instruction was harmless. We agree. See State v. Mark Alton
Mayfield, No. E2007-01453-CCA-R3-CD, 2008 WL 4876568 at *5 (Tenn. Crim. App., Nov.
12, 2008), perm. to app. denied, (Tenn., Apr. 27, 2009). Thus, counsel cannot be deemed
ineffective for failing to object.



                                               48
              iii. Sequential Jury Instructions

        The Petitioner contends counsel should have objected to the trial court’s sequential
jury instructions because they “unfairly skewed” the jury’s deliberative process. As the trial
court noted, our supreme court has held that sequential jury instructions do not deprive a
defendant of his constitutional right to a jury trial. See State v. Davis, 266 S.W.3d 896, 905
(Tenn. 2008). Accordingly, counsel cannot be deemed ineffective for failing to challenge
the jury charge in this respect.

              iv. Instruction on Flight

        The Petitioner contends that trial counsel should have objected to the instruction on
flight because the proof did not warrant such an instruction. In denying relief on this issue,
the trial court cited the relevant law on the propriety of the instruction and offered the
following statements about whether trial counsel were ineffective:

       “In order for a trial court to charge the jury on flight as an inference of guilt,
       there must be sufficient evidence to support such instruction.” State v. Berry,
       141 S.W.3d 549, 588 (Tenn. 2004). Sufficient evidence to support such an
       instruction requires “both a leaving the scene of the difficulty and a subsequent
       hiding out, evasion or concealment within the community.” State v, Burns,
       979 S.W.2d 276, 289-90 (Tenn. 1998) (quoting State v. Payton, 782 S.W.2d
       490, 498 (Tenn. Crim. App. 1989)). “A flight instruction is not prohibited
       when there are multiple motives for flight. . . . A defendant’s specific intent for
       fleeing a scene is a jury question.” State v. Berry, 141 S.W.3d 549, 589 (Tenn.
       2004) (appendix).

       In this case, the record reflects that Petitioner’s mother, with whom Petitioner
       lived, did not see or hear from Petitioner between September 25 and October
       8, 1995. When Petitioner telephoned his mother on October 8, he told her that
       he was in Knoxville, where he would be “laying low for a while” because
       some “creditors” were looking for him. About a week later, Petitioner
       returned to his mother’s house. Although Petitioner returned to, and was
       ultimately arrested in, the area near where the victim was last seen alive, the
       appellate courts have upheld a flight instruction in situations in which a
       defendant fled the scene of the offense before returning to it. See State v.
       Nesbit, 978 S.W.2d 872, 900 (Tenn. 1998) (appendix). The flight instruction
       was appropriate given the facts of this case and, given that Mr. Goodlett was
       not asked about the flight instruction during the evidentiary hearing, this Court
       can only speculate as to why counsel did not object to the instruction being

                                               49
       given. This being the case, trial counsel were not shown to have been
       ineffective for not objecting to the instruction.

       We agree with the trial court. Given our review of the evidence presented at trial, we
conclude that counsel were not objectively unreasonable in failing to object to the flight
instruction given to the jury.

              2. Penalty Phase

              i. Unanimous Verdict Instruction

        The Petitioner contends counsel should have objected to the trial court’s instruction
that a unanimous verdict was necessary in order for the jury to have imposed a life or life
without the possibility of parole sentence. As the trial court noted, the pattern jury
instruction given in this case has been approved by the supreme court. See State v. Ivy, 188
S.W.3d 132, 163 (Tenn. 2006). Accordingly, counsel cannot be deemed ineffective for
failing to object.

              ii. Reasonable Doubt Instruction Regarding Aggravating Circumstances

       Next, the Petitioner contends counsel should have objected to that portion of the
instruction that “[i]t is not necessary that the aggravating circumstance or circumstances be
proved beyond all possible doubt, as absolute certainty is not demanded by the law.” Again,
however, because language similar to that of the instruction used in this case has been
approved by our supreme court, see State v. Bush, 942 S.W.2d 489, 521 (Tenn. 1997), trial
counsel’s failure to object to the instruction cannot be considered objectively unreasonable.

        In addition to failing to object to certain instructions, the Petitioner also claims
counsel should have requested other jury instructions during sentencing and argues that their
failure to do so resulted in ineffective assistance.

              iii. Instruction on Consequence of Failure to Agree on Sentence

         The Petitioner contends counsel should have requested an instruction explaining to
the jury the consequence of their failure to agree on a penalty. The trial court correctly stated
that a judge is not permitted to inform the jury about the effect of its failure to agree upon a
sentence. See Tenn. Code Ann. § 39-13-204(h). Because this was the law at the time of the
trial in this case, trial counsel’s failure to request such an instruction was not deficient. For
the same reason, the Petitioner’s argument that counsel should have requested the trial court



                                               50
to instruct the jury that their guilty verdict for first degree murder would not be affected if
they could not agree upon a sentence must fail.

              iv. Instruction on Sympathy

        The Petitioner also contends counsel should have requested an instruction stating that
the jury could base its decision during sentencing on mercy, sympathy and compassion. Our
supreme court, however, has consistently held that a defendant is not entitled to such an
instruction. See State v. Keen, 926 S.W.2d 727, 739 (Tenn. 1994). Trial counsel thus were
not ineffective for failing to request the instruction.

              v. Instruction on Victim Impact Evidence

        Next, the Petitioner argues counsel should have requested the trial court to instruct the
jury about how it should treat victim impact evidence. As the trial court recognized, the now-
familiar jury instruction regarding victim evidence was not adopted by our supreme court
until after the trial in this case. See State v. Nesbit, 978 S.W.2d 872, 892 (Tenn. 1998).
Indeed, the supreme court in Nesbit stated that the approved “instruction should be used in
substance in all future capital murder trials where victim impact evidence has been
introduced and is effective from the date this decision is released.” Id. Although the
Petitioner relies upon Nesbit in support of his argument, we conclude that trial counsel were
not objectively unreasonable in failing to request such an instruction in this case.
Nevertheless, we agree with the trial court that the Petitioner was not prejudiced by counsel’s
failure to request such an instruction. The State did not introduce any victim impact evidence
during sentencing. Moreover, the jury was specifically instructed that statements and
arguments of counsel were not to be considered evidence and that it could not take into
account any facts or circumstances other than those supporting the aggravating circumstances
when deciding upon a sentence.

              vi. Instruction on Mutilation Aggravator

        The Petitioner contends trial counsel were ineffective for failing to request an
instruction clarifying to the jury what is meant by the phrase: “The defendant knowingly
mutilated the body of the victim after death.” Tenn. Code Ann. § 39-13-204(i)(13). The
Petitioner argues that the instruction “fails to clarify agency.” According to the Petitioner’s
argument, because there was evidence that animals gnawed on the corpse, “it was imperative
for the jury to be instructed as to whether actions of scavengers could, or could not, be
attributed to the defendant.” The post-conviction court rejected this argument. According
to the trial court:



                                               51
       The plain language of T.C.A. § 39-13-204(i)(13) required the perpetrator to
       have actively performed the act, not set in motion a series of circumstances
       which allowed the mutilation to occur. “Knowingly mutilated” requires the
       action to have been accomplished by the perpetrator. If the General Assembly
       had intended [to] include situations in which the actions of the perpetrator
       allowed mutilation to occur, the language of the statute would have included
       “. . . or allowed to be mutilated” or the like. The language is straightforward
       and clear and the jury would have [had] no difficulty in applying it as intended.

We agree. Based upon the plain language of this aggravating circumstance, trial counsel
were not objectively unreasonable for failing to request an instruction such as that now
suggested by the Petitioner. The Petitioner is not entitled to post-conviction relief in this
instance.

              vii. Instructions on Mitigating Evidence

        The Petitioner complains that counsel “successfully requested instructions on
mitigation that were contradictory, confusing, inapplicable to the instant case, and were
unsupported by the proof, and which opened the door to otherwise inadmissable evidence.”
As the Petitioner acknowledges, though, some of the requested instructions to which he
refers in his brief were not actually given by the trial court. As to the others, he contends
they were not supported by the proof. Examples cited by the Petitioner include instructions
commenting on his history of addiction, his troubled upbringing, and his psychological and
emotional health. Having reviewed the record, we cannot conclude that trial counsel’s
actions in requesting these instructions were deficient. See State v. Cazes, 875 S.W.2d 253,
267-68 (Tenn. 1997) (observing that overcharging on mitigating evidence generally benefits
defendant). Nevertheless, the Petitioner has otherwise failed to demonstrate any resulting
prejudice.

       H.     Appeal

       Lastly, the Petitioner argues that counsel rendered ineffective assistance on direct
appeal for failing to include the following three issues in their appellate brief: 1) the
aggravating circumstance, that the defendant knowingly mutilated the body of the victim
after death, was unconstitutional on its face and as applied in this case; 2) Dr. Harlan’s
testimony concerning the time and circumstances of death was inherently unreliable; and 3)
Dr. Harlan failed to preserve evidence to the Petitioner’s prejudice. As the record reflects,
counsel raised a total of nine issues on appeal to this Court challenging both his convictions
and death sentence.



                                              52
        The same principles apply when reviewing courts evaluate the effectiveness of either
trial or appellate counsel. Campbell v. State, 904 S.W.2d 594, 596 (Tenn. 1995). An
appellate attorney, however, is neither duty bound nor required to raise every possible issue
on appeal. Carpenter v. State, 126 S.W.3d 879, 887 (Tenn. 2004) (citing King v. State, 989
S.W.2d 319, 334 (Tenn. 1999); Campbell, 904 S.W.2d at 596–97)). The “failure to preserve
and/or assert all arguable issues on appeal is not per se ineffective assistance of counsel,
since the failure to do so may be a part of the counsel's strategy of defense.” State v.
Swanson, 680 S.W.2d 487, 491 (Tenn. Crim. App. 1984). Moreover, “[t]he determination
of which issues to present on appeal is a matter of counsel's discretion.” Id.

       To show that counsel was deficient for failing to raise an issue on direct appeal, the
reviewing courts will analyze the merits of the contested issue. Carpenter, 126 S.W.3d at
887 (citing Kimmelman v. Morrison, 477 U.S. 365, 375 (1986)).

       Obviously, if an issue has no merit or is weak, then appellate counsel's
       performance will not be deficient if counsel fails to raise it. Likewise, unless
       the omitted issue has some merit, the petitioner suffers no prejudice from
       appellate counsel's failure to raise the issue on appeal. When an omitted issue
       is without merit, the petitioner cannot prevail on an ineffective assistance of
       counsel claim.

Id. at 887-88. In fact, “[i]neffectiveness is very rarely found in cases where a defendant
asserts that appellate counsel failed to raise an issue on direct appeal, primarily because the
decision of what issues to raise is one of the most important strategic decisions to be made
by appellate counsel.” Kennath Henderson v. State, No. W2003-01545-CCA-R3-PD, 2005
WL 1541855 at *44 (Tenn. Crim. App., June 28, 2005), perm. to app. denied (Tenn., Dec.
5, 2005).

       As to the first issue, the Petitioner’s argument on appeal consists solely of the
following sentence:
              Appellate counsel rendered ineffective assistance of counsel by failing
       to challenge the aggravating circumstance that the defendant knowingly
       mutilated the body of the victim after death as unconstitutional on its face and
       as applied in this case, especially given the failure to limit application of the
       aggravating circumstance to mutilation caused by human action and to
       specifically exclude consideration of mutilation caused by the activity of
       scavengers or the decomposition process.
 The Petitioner does not offer any argument in support of this issue he claims counsel should
have raised on appeal, and he does not cite to any legal authority in support thereof.
Accordingly, the Court considers this post-conviction ground for relief to be waived on

                                              53
appeal. See Tenn. Ct. Crim. App. R. 10(b) (“Issues which are not supported by argument,
citation to authorities, or appropriate references to the record will be treated as waived in this
court.”). Nevertheless, we agree with the trial court’s conclusion that counsel were not
ineffective for failing to raise the issue on direct appeal. The language of the aggravating
circumstance at issue provides: “The defendant knowingly mutilated the body of the victim
after death.” Tenn. Code Ann. § 39-13-204(i)(13). In denying post-conviction relief, the
trial court held:

       In the case sub judice, this Court believes that the term “mutilation” is a term
       which most reasonable people could understand without further instruction.
       As to Petitioner’s assertion that the statute, as written, [would] be inapplicable
       in this case, this Court finds that reasonable jurors would interpret “knowingly
       mutilated” as requiring an affirmative act on part of the defendant rather than
       merely setting in motion a chain of events leading to the victim’s mutilation.
       In other words, reasonable jurors would have understood that had they found
       that Petitioner left the deceased in such a state which allowed [her] body to be
       torn apart by wild animals after her death, such actions would not constitute
       “knowing mutilation” for purposes of the statute.

        The Petitioner does not explain how this reasoning is flawed. Nor does he explain
how this aggravating circumstance is unconstitutional other than by simply suggesting that
it is. That mere suggestion, however, does not demonstrate how counsel’s failure to raise the
issue on appeal was objectively unreasonable. Regardless, given the sufficient evidence
supporting the other two aggravating circumstances, the Petitioner cannot show prejudice.

       As to the other two issues he claims counsel should have raised on appeal, this Court
has already determined that counsel were not ineffective in their conduct during trial with
respect thereto. Thus, counsel cannot be deemed ineffective for failing to raise those issues
on appeal. The Petitioner has simply failed to demonstrate how he received the ineffective
assistance of counsel during direct appeal.

II.    Jury Selection

       In addition to those claims regarding trial counsels’ representation during jury
selection which are addressed above, the Petitioner contends that the trial court also
committed numerous errors during voir dire. The trial court concluded that each alleged
instance of error is either waived or previously determined. This Court agrees. See Tenn.
Code Ann. § 40-30-106(g) and (h).




                                               54
        Because the Petitioner did not raise as issues on direct appeal any of the instances in
which he now alleges the trial court erred, they must be considered waived. Neither of the
two statutory exceptions with respect to waiver are applicable. See id. With respect to his
contention that the trial court erred in denying additional peremptory challenges, the
Petitioner acknowledges that the issue has been previously determined. See 121 S.W.3d 613,
n.6. The Petitioner states that he only raises it now to preserve the issue for potential federal
court review. Accordingly, for these reasons the Petitioner is not entitled to post-conviction
relief on his claims regarding the trial court’s conduct of jury selection.

III.   Counsels’ Hotel Visit

        As discussed above, Mr. Goodlett admitted during the evidentiary hearing that he and
Mr. Love visited the hotel while the jury was onsite in order to make sure the jurors did not
have access to any newspaper boxes. The visit occurred Saturday evening, August 30, 1997,
following the conclusion of the proof at the guilt phase. The trial judge was made aware of
the incident soon after it happened, and on Monday, September 1, 1997, immediately
following the return of the jury verdict, the judge admonished counsel, outside the presence
of the jury, against any future visits to the hotel. The judge stated as follows:

       All right. Gentlemen, I’ve noticed this jury is a very conscientious jury and a
       very intelligent jury. I’ve given them an abundance of instructions on how to
       conduct themselves, them and the alternates, I see no reason to do it anymore.

       It has come to the Court’s attention that there may be some investigation,
       somebody thought it might have been necessary [to go] around the hotel out
       there. Saturday night I put down an order and I’m telling you what the order
       is now. Anyone involved in this case that’s anywhere around the motel,
       anywhere in the vicinity, and the vicinity could be from 20 feet to two miles,
       there is a standing order that you will be immediately arrested, placed in
       custody until I get to you. And I’m going to be dove hunting the rest of the
       day and it’s going to be hard to find me. That’s the judgment of this Court.

       The Petitioner argues in post-conviction that the trial judge should have informed
counsel they were seen at the hotel and that a police report was filed as a result of the
incident. He also argues that the trial judge should have questioned the jury about the
incident. The post-conviction court concluded, however, that although counsel’s visit was
unwise, the Petitioner was not ultimately prejudiced by the actions of counsel. We agree.
As quoted above, the trial court properly admonished the jury throughout the trial process,
and immediately before it retired that Saturday to begin deliberations, the court instructed the
jury that it was to base its verdict solely on the proof introduced at trial. We have already

                                               55
concluded that the Petitioner has failed to demonstrate that the jury was actually exposed to
any extraneous prejudicial information or improper influence by counsel during their visit.
Although counsel may have been seen by one or more jurors, their mere presence at the hotel,
without direct proof of any contact or communication with any juror, did not render the
Petitioner’s trial fundamentally unfair or result in any due process violation. The trial court
acted appropriately upon learning of the incident. This ground for relief is without merit.

IV.    Brady

       The Petitioner contends the State withheld impeachment evidence concerning the TBI
investigation of Dr. Harlan. According to the Petitioner, by the time Dr. Harlan performed
the autopsy in this case, “the State had already dismissed [him] as state medical examiner,
barred him from the TBI laboratory, and begun an investigation of Dr. Harlan which would
ultimately result in the permanent revocation of his medical license” and thus “the State was
aware of Dr. Harlan’s incredibility as a medical professional, lack of integrity, and propensity
to destroy and/or desecrate evidence.” The Petitioner specifically refers to information
related to three other autopsies Dr. Harlan performed in 1995 and 1997, one in which he
misdiagnosed the cause of death and another in which he misidentified the victim.

       The trial court allowed the Petitioner, without any objection from the State, to present
evidence in support of this particular ground for post-conviction relief which came to light
following the filing of the original and amended petitions. The trial court, however, did not
specifically address the merits of the issue in its written order denying relief. Although the
State now argues waiver on appeal, it is clear from the record that the trial court intended to
allow the Petitioner to pursue this claim. Accordingly, despite the trial court’s failure to
address the matter, we are nevertheless required to conduct a purely de novo review to
determine whether this evidence was material to the defense as the Petitioner argues it is.
See Cauthern v. State, 145 S.W.3d 571, 599 (Tenn. Crim. App. 2004).

       In Brady v. Maryland, the United States Supreme Court held that “suppression by the
prosecution of evidence favorable to an accused upon request violates due process where the
evidence is material either to guilt or to punishment, irrespective of the good faith or bad
faith of the prosecution.” 373 U.S. 83, 87 (1963). “Favorable” evidence is that which is
deemed to be exculpatory in nature or that which could be used to impeach the State’s
witnesses. Johnson v. State, 38 S.W.3d 52, 55-56 (Tenn. 2001). The State’s duty to disclose
extends to all favorable information irrespective of whether the evidence is admissible at
trial. Id. This duty, however, does not extend to information the defendant already
possesses, or is able to obtain, or to information not in the possession of the prosecution or
another governmental agency. State v. Marshall, 845 S.W.2d 228, 233 (Tenn. Crim. App.
1992).

                                              56
       In order to sustain a Brady claim, a defendant must establish the following:

       1. The defendant must have requested the information (unless the evidence is
       obviously exculpatory, in which case the State is bound to release the
       information, whether requested or not);

       2. The State must have suppressed the information;

       3. The information must have been favorable to the accused; and

       4. The information must have been material.

State v. Edgin, 902 S.W.2d 387, 389 (Tenn. 1995). Evidence is deemed material if “there
is a reasonable probability that, had the evidence been disclosed to the defense, the result of
the proceeding would have been different.” United States v. Bagley, 473 U.S. 667, 682
(1985).

       [The] touchstone of materiality is a “reasonable probability” of a different
       result, and the adjective is important. The question is not whether the
       defendant would more likely than not have received a different verdict with the
       evidence, but whether in its absence he received a fair trial, understood as a
       trial resulting in a verdict worthy of confidence. A “reasonable probability” of
       a different result is accordingly shown when the government's evidentiary
       suppression “undermines confidence in the outcome of the trial.”

Kyles v. Whitley, 514 U.S. 419, 434 (1995) (quoting Bagley, 473 U.S. at 678). Materiality
requires a “showing that the favorable evidence could reasonably be taken to put the whole
case in such a different light as to undermine confidence in the verdict.” Id. at 435. In
deciding whether the evidence is material, the suppressed evidence must be “considered
collectively, not item by item.” Id. at 436.

       The information at issue relates exclusively to the impeachment of Dr. Harlan’s
credibility. At the time of his trial testimony in this case, Dr. Harlan served as Assistant
County Medical Examiner for Dickson County and Consulting Forensic Pathologist for
Dickson County. In addition, he testified that he served as Assistant County Medical
Examiner in 45 other counties and Consulting Forensic Pathologist in 63 other counties.
Though he may no longer have been employed as the “state medical examiner,” he still
possessed his medical license at the time of trial and testified in the capacity of Assistant
County Medical Examiner for Dickson County and Consulting Forensic Pathologist for
Dickson County. Dr. Harlan’s medical license was not revoked until 2005.

                                              57
        Mr. Goodlett apparently already knew something at the time of the trial about
allegations concerning the competency of Dr. Harlan. He testified that he knew Dr. Harlan’s
“stock [was] at a low point” and that he, therefore, solicited information from other Public
Defenders statewide about Dr. Harlan’s “credentials.” The Petitioner, however, neglected
to ascertain the extent of Mr. Goodlett’s knowledge. As noted above, the State is not
required to disclose information the defendant already possesses or is able to obtain.
Marshall, 845 S.W.2d at 233. The Court also has some reservations about the Petitioner’s
claim that the prosecution knew about or withheld information relating to the TBI
investigation. Although General Alsobrooks testified at the evidentiary hearing, the
Petitioner did not question him about his knowledge of the investigation into Dr. Harlan’s
practice. The Petitioner simply cites to a newspaper article which criticized Dr. Harlan’s
work in an unrelated case to suggest that the prosecutor was actually aware of any
investigation at that time. Furthermore, although Agent Bredlove testified that he disagreed
with Dr. Harlan’s conclusion in a prior unrelated case, he did not testify that he was aware
of any TBI investigation prior to the trial of this case. Neither of the other two TBI agents
who testified at the evidentiary hearing were employed by the TBI at the time of the trial in
this case, nor were they otherwise involved in the investigation in this case.

        Nevertheless, the Court does not believe the information concerning the TBI
investigation of Dr. Harlan “could reasonably be taken to put the whole case in such a
different light as to undermine confidence in the verdict.” Id. at 435. There is no doubt that
Dr. Harlan’s competency was eventually questioned and that his license to practice medicine
was ultimately revoked. The issue at hand, however, is whether any additional impeachment
evidence would have affected the outcome of the trial. As already discussed, defense counsel
did, in fact, solicit expert testimony at trial to otherwise impeach Dr. Harlan’s findings.

       As recognized, this was a close case. The sufficiency of the convicting evidence,
however, has been confirmed. Again, the supreme court acknowledged that the cause of the
victim’s death was undetermined. Nevertheless, the court held that the jury could have
reasonably inferred premeditation from the totality of the evidence. The Petitioner does not
contest the testimony of the other two medical experts who agreed that the victim’s body
exhibited signs of knife wounds. Nor does the Petitioner take issue with Dr. Marks’
testimony which suggested that the victim’s head could have been removed by a person after
her death. In its analysis on the sufficiency of the evidence, the supreme court did not focus
at all on Dr. Harlan’s testimony but, instead, highlighted the Petitioner’s “calculated
behavior” and the statements he made to the police prior to his arrest, as well as the physical
evidence collected, including blood stains consistent with the victim’s blood which were
found in the Petitioner’s truck. Having reviewed the entire record in light of this additional
impeachment evidence, we cannot conclude that “there is a reasonable probability that, had
the evidence been disclosed to the defense, the result of the proceeding would have been

                                              58
different.” Bagley, 473 U.S. at 682. The Petitioner is not entitled to relief on his Brady
claim.

V.     Dr. Harlan’s Testimony

        The Petitioner argues that the trial court denied him a fair trial by allowing Dr. Harlan
to testify, even though he may have lost or destroyed evidence, and by allowing Dr. Harlan
to offer his opinion about the time of death. Because, however, the Petitioner did not raise
this specific issue on direct appeal, it must now be considered waived. Tenn. Code Ann.
§ 40-30-106(g).

VI.    Cumulative Error

       The Petitioner requests this Court to consider the cumulative effect of the errors he
has alleged above in deciding whether to grant him relief in this post-conviction appeal.
Because we have found no single instance wherein trial counsel were deemed ineffective or
wherein he was otherwise denied his constitutional right to a fair and impartial trial, there is
no basis to conclude that any cumulative error resulted in an unfair trial. See State v. Hester,
324 S.W.3d 1, 76-77 (Tenn. 2010). Moreover, the sufficiency of the convicting evidence has
previously been determined. Tenn. Code Ann. § 40-30-106(h).

VII.   Constitutionality of the Death Penalty

        The Petitioner raised a few issues on direct appeal challenging the imposition of the
death penalty. See 121 S.W.3d 600. He now raises several additional issues about the
constitutionality of Tennessee’s death penalty statute and capital punishment in general.
Because they were not raised on direct appeal, however, these issues are waived. Tenn. Code
Ann. § 40-30-106(g). Regardless of waiver, the Petitioner would not otherwise be entitled
to relief on any of them. See, e.g, State v. Richard Taylor, No. M2005-01941-CCA-R3-DD,
2008 WL 624913 at *41 (Tenn. Crim. App., Mar. 7, 2008) (recognizing no per se prohibition
against execution of defendants suffering from mental illness); Andrew Thomas v. State, No.
W2008-01941-CCA-R3-PD, 2011 WL 675936 at *42-45 (Tenn. Crim. App., Feb. 23, 2011),
perm. to app. denied (Tenn. Aug, 25, 2011) (rejecting argument that Tennessee fails to
ensure adequate counsel and resources in capital cases); Hester, 324 S.W.3d at 78-79
(holding that Tennessee’s proportionality review is adequate); Id. at 79-80 (upholding
Tennessee’s lethal injection protocol); Id. at 80 (rejecting right to life claim).

                                          Conclusion




                                               59
       For the foregoing reasons, this Court concludes that the post-conviction court properly
denied post-conviction relief to the Petitioner. Accordingly, this Court affirms the judgment
of the post-conviction court.




                                           _______________________________________
                                           J OHN E VERETT W ILLIAMS, J UDGE




                                             60
