        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                      August 21, 2013 Session

     JONATHAN WESLEY STEPHENSON v. STATE OF TENNESSEE

                             Circuit Court for Cocke County
                         No. 30,366-I Ben W. Hooper, II, Judge


                No. E2012-01339-CCA-R3-PD - Filed January 13, 2014


A Cocke County jury convicted petitioner, Jonathan Wesley Stephenson, of first degree
premeditated murder and conspiracy to commit first degree murder. The jury imposed the
death penalty for the murder conviction, and the trial court sentenced petitioner to twenty-
five years for the conspiracy conviction. After several appeals, remands, and collateral
proceedings, petitioner’s resulting sentence was the death penalty for the murder conviction
and a sixty-year sentence for the conspiracy conviction. Petitioner then sought post-
conviction relief. Following an evidentiary hearing, the post-conviction court denied relief.
Petitioner now appeals the denial of relief, alleging multiple claims of ineffective assistance
of counsel. Following our review of the record, we discern no error and affirm the judgment
of the post-conviction court.

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

R OGER A. P AGE, J., delivered the opinion of the court, in which J OSEPH M. T IPTON, P.J., and
A LAN E. G LENN, J., joined.

Daniel E. Kirsch and Avram Frey, Office of the Post-Conviction Defender, Nashville,
Tennessee, for the petitioner, Jonathan Wesley Stephenson.

Robert E. Cooper, Jr., Attorney General and Reporter; Kyle Hixson, Assistant Attorney
General; James B. Dunn, District Attorney General; and William Brownlow Marsh, Assistant
District Attorney General, for the respondent, State of Tennessee.
                                            OPINION

                                      I. Procedural History

       Petitioner was convicted of the 1989 first degree premeditated murder of his wife and
conspiracy to commit first degree murder. State v. Stephenson, 878 S.W.2d 530 (Tenn.
1994). He hired his co-defendant, Ralph Thompson, Jr., to help him kill the victim. Id. at
535-36. Petitioner had been unsuccessful in two previous attempts to solicit assistance from
other people. Id. at 535. Petitioner received the death penalty for the murder conviction and
a twenty-five-year sentence for the conspiracy conviction. Id. at 534. The jury found the
existence of one aggravating circumstance: “[T]he defendant . . . employed another to
commit the murder for remuneration or the promise of remuneration.” Id. (quoting Tenn.
Code Ann. § 39-13-204(i)(4)) (hereinafter referred to as the “murder for hire” aggravator).
His co-defendant was also convicted separately of the same crimes, but the jury sentenced
him to life in prison instead of death for the murder conviction, and he received a twenty-
two-year sentence for conspiracy. See State v. Ralph Thompson, Jr., No. 03C01-9201-CR-
00006, 1992 WL 322404 (Tenn. Crim. App. Nov. 10, 1992), perm. app. denied (Tenn. Mar.
29, 1993) (issues related to convictions only), appeal after remand, No. 03C01-9306-CR-
00177, 1994 WL 263177 (Tenn. Crim. App. June 15, 1994), perm. app. denied (Tenn. Aug.
28, 1995) (resentencing hearing).

       In the first direct appeal in this case, the supreme court affirmed petitioner’s
convictions but remanded the matter for resentencing on both convictions because the jury
was incorrectly instructed on the burden of proof regarding the aggravating circumstance and
because the jury was provided an outdated verdict form. Stephenson, 878 S.W.2d at 57-58.
Following remand, the parties agreed to a sentence of life without parole for the murder
conviction and a consecutive sixty-year sentence for the conspiracy conviction.

        Petitioner filed his first petition for post-conviction relief in 1995, challenging the plea
negotiations following remand. He voluntarily withdrew that petition. In 1998, he filed his
first habeas corpus petition in which he challenged the legality of his life without parole
sentence. Stephenson v. Carlton, 28 S.W.3d 910 (2000). On appeal, the supreme court
concluded that the sentence was, in fact, illegal because at the time of the crime in this case,
life without parole was not an available penalty for first degree murder. Id. at 912. However,
the court specifically noted that its ruling did not affect the sixty-year sentence for the
conspiracy conviction, which petitioner did not challenge in his habeas corpus petition and
which the court concluded was not void or illegal. Id. at 912 n.3.

      Thereafter, the trial court held a new sentencing hearing on the first degree murder
conviction. During this second remand, the State again filed a notice of intent to seek the

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death penalty. The sentencing jury found that the same “murder for hire” aggravating
circumstance outweighed the mitigating evidence and sentenced petitioner to death. State
v. Stephenson, 195 S.W.3d 574, 585 (2006). The supreme court affirmed the death sentence
on appeal. Id. at 581. The court again noted that petitioner waived any challenge to his
sixty-year sentence for the conspiracy conviction. Id. at 596 n.16.

        Petitioner has also filed three petitions for writ of habeas corpus since the second
remand for resentencing. He voluntarily dismissed the first petition, filed in June 2004. See
Jonathan W. Stephenson v. Ricky Bell, Warden, No. M2011-01562-CCA-R3-HC, 2012 WL
2356586, at *2 (Tenn. Crim. App. June 20, 2012), perm. app. denied (Tenn. Nov. 28, 2012).
He filed the second petition in June 2010. Id. In that petition, he challenged the trial court’s
actions in the initial remand after the first direct appeal. As noted above, the State agreed to
a sentence of life without parole for the murder conviction and a sixty-year sentence for the
conspiracy conviction. However, at the time of the plea submission, in addition to accepting
those sentences, the trial court also accepted petitioner’s guilty pleas to both indicted
offenses. Id. at *1. The judgment sheet filed by the trial court in 1994 reflected that
petitioner was not only “found guilty” after a jury trial but that he also “pled guilty” to the
offenses. Id. According to petitioner’s habeas corpus argument, his guilty pleas in 1994
voided the original jury convictions rendered in 1990. Id. at *4. Thus, he claimed that when
the supreme court remanded the case for resentencing in 2000, he should have been permitted
to withdraw his guilty pleas and either enter into a new plea agreement or proceed to a new
trial. Id. The habeas court denied relief. This court held that the trial court lacked
jurisdiction in 1994 to accept petitioner’s guilty pleas to the offenses because it was limited
on remand to conducting a new sentencing hearing. Id. This court further noted that the
supreme court had already affirmed the 1990 jury convictions; thus, the convictions for first
degree murder and conspiracy to commit first degree murder stemmed from the original jury
trial, not the resentencing hearing in 1994. Id. at *4-5. Accordingly, the trial court’s
jurisdiction at resentencing was limited to determining the appropriate sentence for
petitioner’s valid 1990 convictions by a jury. Id. at *5.

        In his third petition for habeas corpus relief, petitioner challenged the validity of his
sixty-year sentence for conspiracy. The habeas corpus court dismissed his petition, and this
court affirmed the court’s ruling. See Jonathan Stephenson v. Ronald Colson, Warden, No.
M2013-00720-CCA-R3-H, 2013 WL 6705997 (Tenn. Crim. App. Dec. 19, 2013). Petitioner
timely filed his second petition for post-conviction relief in October 2006. The instant appeal
stems from the post-conviction court’s May 31, 2012 order denying relief on that petition.
In this appeal, petitioner argues that he received ineffective assistance of counsel in the
following areas: (1) failure to advocate for specific performance of the plea agreement; (2)
failure to argue against the applicability of the sole aggravating circumstance; (3) failure to
contest the admission of his statement of law enforcement officers; (4) failure to advance an

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argument with regard to the State’s pursuit of inconsistent theories in his trial and his co-
defendant’s trial; (5) failure to present sufficient mitigating evidence at his resentencing
hearing; (6) failure to object to allegedly improper victim impact evidence; (7) failure to
contest various jurors during voir dire; and (8) failure to adequately challenge Tennessee’s
death penalty statute.

                                           II. Facts

                            A. Facts from Trial (Resentencing)

       The facts of this case were summarized by the supreme court in its 2006 opinion:

               At the resentencing hearing, the State presented proof showing that in
       December 1989, the defendant was married to Mrs. Stephenson and had a
       four-year-old son and an eight-month-old son. The defendant worked as a
       tractor-trailer driver in Morristown, Tennessee. In March 1989, the defendant
       met Julia Ann Webb (“Webb”) at a bar in Knoxville, Tennessee, and the two
       became romantically involved. The defendant told Webb that his wife had
       been killed in a traffic accident five years earlier and that afterwards he had an
       affair with his wife’s sister, “Kathy.” He also told Webb that he had a child
       with each woman.

              In 1989, on numerous occasions, the defendant asked Glen Franklin
       Brewer (“Brewer”), a co-worker, to kill the wife of a friend. However, the
       description of the residence of the proposed victim matched the defendant’s
       own home. On one occasion the defendant offered Brewer a boat, a motor,
       and a pickup truck in return for the requested killing. On another occasion the
       defendant offered Brewer $3,000.00 in return for the killing, and on yet
       another occasion, the defendant offered Brewer $5,000.00 from life insurance
       proceeds. The defendant complained to Brewer that his wife was receiving
       expensive psychiatric treatment and medication and that he feared he would
       “lose everything he had worked for” if he divorced her. In the fall of 1989, the
       defendant offered another man, Steven Michael Litz (“Litz”), who was a friend
       of Thompson, $5,000.00 to kill the defendant’s wife because, the defendant
       said, she was going to divorce him and “take everything he’d ever worked
       for.”

             `On the evening of December 3, 1989, the defendant and Thompson
       took Thompson’s 30/30 rifle and went to the home of Dave Robertson
       (“Robertson”), the defendant’s employer, at around 7:30 p.m. After

                                               4
instructing Robertson to tell anyone who asked that he and Thompson had
been at Robertson’s house until 9:45 p.m., the defendant left with Thompson.
The two men drove to an isolated area in Cocke County, Tennessee, near the
home of Thompson’s uncle. Thompson had previously suggested that location
as an out-of-the-way place where the defendant could “get rid of” Mrs.
Stephenson. Mrs. Stephenson was lured to the remote location to pick up
money for the defendant that was supposedly owed to him for “running” drugs.
Thompson and the defendant waited there until Mrs. Stephenson arrived. As
she sat in her vehicle, Mrs. Stephenson was shot at close range through the
car’s windshield. The bullet struck Mrs. Stephenson in the forehead and
caused massive head injuries. The defendant told law enforcement officers
that Thompson shot the victim, and the State’s evidence showed that the
defendant offered to give Thompson a truck, a boat, and a motor for killing the
victim. Thompson, however, testified that the defendant shot Mrs.
Stephenson. Thompson added that, at the defendant’s insistence, he also fired
the rifle. The two then drove to the defendant’s place of work, and the
defendant subsequently headed to Ohio in an eighteen-wheeler truck. When
Thompson asked about the defendant’s children, the defendant told him that
they would be all right because his father-in-law would check on them.

        On his way out of the state, the defendant met Webb in Harrogate,
Tennessee. He informed Webb that “Kathy” had just been killed by some
people to whom she owed money. He explained that he and Thompson had
gone to the scene of the killing where “Kathy” was found dead. The defendant
and Thompson fought there with two men who had killed “Kathy,” and they
thought that the men were dead. The defendant said that he had not contacted
the police because the police were in league with the killers. He told Webb
that his children were with “Kathy’s” father and commented, “I didn’t love her
but I’m going to miss the Bitch.” [FN] Webb recalled that she was with the
defendant the weekend prior to Mrs. Stephenson’s murder and that at that time
the defendant purchased ammunition for a rifle at a K-Mart store.

       [FN: The two young boys were actually left alone at the
       defendant’s house until Mrs. Stephenson’s father found them the
       next day.]

       After meeting with Webb, the defendant drove his truck to Ohio. Upon
the discovery of his wife’s body, the defendant was called back to Tennessee
for questioning. The defendant initially denied involvement in his wife’s
murder. After Thompson and Robertson implicated him in Mrs. Stephenson’s

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       death, the defendant confessed to having Thompson kill her. At the time of
       Mrs. Stephenson’s death, the defendant was the beneficiary of a $5,000.00 life
       insurance policy covering his wife. The defendant’s sons, who were teenagers
       by the time of the resentencing hearing, were adopted by Mrs. Stephenson’s
       parents and had no contact with their father, who, according to his former
       father-in-law, had never shown any remorse for the killing. At a separate trial,
       Thompson was convicted of first degree murder and was sentenced to life in
       prison.

Stephenson, 195 S.W.3d at 582-83.

                        B. Facts from the Post-Conviction Hearing

       The post-conviction court appointed the Office of the Post-Conviction Defender to
represent petitioner. Prior to the start of the evidentiary hearing, the court conducted a
separate hearing to determine whether petitioner was competent to proceed with his petition.
Petitioner had apparently disagreed with counsel’s strategy and had attempted to dismiss
counsel from further representation. Based primarily on these actions, counsel requested a
competency hearing. After hearing expert testimony and having considered its own
observations of petitioner throughout the proceeding, the post-conviction court concluded
that petitioner was indeed competent to proceed with his petition. The court then gave
petitioner the opportunity to proceed with the assistance of counsel or on his own. Petitioner
elected to go forward with counsel but waived his right to be present at the evidentiary
hearing.

        The evidentiary hearing occurred over the course of several days in September 2011.
Following the conclusion of the hearing but before the entry of the post-conviction court’s
order, petitioner seemingly became displeased with the manner in which his attorneys were
handling the petition and requested to proceed pro se. Following a hearing, the court granted
that request. Petitioner filed a post-hearing brief on his own, but the court also accepted a
brief filed by counsel on petitioner’s behalf. Following entry of the post-conviction court’s
order denying relief, petitioner filed a pro se notice of appeal. This court, however,
reappointed the Office of the Post-Conviction Defender to represent petitioner in this appeal.

                                  1. Competency Hearing

        The post-conviction court heard testimony pertaining to petitioner’s mental health
prior to ruling that he was competent to proceed. Although petitioner does not challenge the
court’s ruling in that respect, some of the testimony from that hearing is summarized below



                                              6
for reference in consideration of his claim that counsel was ineffective for not pursuing an
adequate defense in mitigation.

       Petitioner’s mother, Nancy Lemieux, testified that when he was nine years old, he was
diagnosed with dyslexia and attention deficit hyperactivity disorder (“ADHD”), for which
he was prescribed Ritalin. She stated that she was told that petitioner suffered some mild
brain damage possibly during birth. Ms. Lemieux also recalled that petitioner began having
seizures when he was about nine months old. She explained that petitioner’s father played
too roughly with him as an infant.

         Dr. Peter Irvin Brown, a forensic psychiatrist, testified on behalf of petitioner. He
diagnosed petitioner with a cognitive disorder not otherwise specified and a personality
disorder with avoidant and dependent features. According to Dr. Brown, the cognitive
disorder impaired petitioner’s ability to rationally understand and process information, and
the personality disorder affected his ability to regulate his emotions and relate to other
people. Dr. Brown found that petitioner had a substantial defect in his executive capacity,
i.e., his ability to integrate information from different sources. He attributed that defect to
damage in the pre-frontal cortex of the brain, possibly caused by petitioner’s father rough-
housing with him as an infant. According to Dr. Brown, petitioner had difficulty organizing
his thinking: “He vastly overrates his own intellectual capacities, is blind to flaws in his
planning and judgment, ignores the advice of people who would help him[,] and[] with an
abiding refusal to stop or reconsider, finds himself in a catastrophic situation primarily of his
own making.” Although Dr. Brown concluded that petitioner was incompetent to proceed
with his post-conviction petition, he admitted that petitioner’s competency fluctuated
according to the circumstances.

        Dr. Daniel Malcolm Spica, a clinical neuropsychologist, also testified on behalf of
petitioner. He was initially asked to review the results of Dr. Eric Engum, who testified for
petitioner during the mitigation phase of the resentencing hearing. Dr. Spica determined,
after reading Dr. Engum’s report, that additional testing should have been done to ascertain
the extent of the damage to petitioner’s frontal lobe. Dr. Spica conducted a full
neuropsychological exam that included “a slightly more modern battery of
neuropsychological tests” that may not have been available to Dr. Engum. Dr. Spica found
that petitioner had difficulties with his executive functioning (multi-tasking or thinking about
different things at the same time), new learning, and sensory motor speed. Those difficulties,
which corresponded to frontal lobe activity, led to a diagnosis of a cognitive disorder not
otherwise specified. Dr. Spica surmised that the onset of the damage to petitioner’s frontal
lobe likely occurred during childhood, possibly in connection with the seizures he
experienced. Dr. Spica assessed petitioner’s full scale I.Q. at 105, which placed him in the
average range. According to Dr. Spica’s report:

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       [Petitioner’s] slow sensory motor speed may be directly related to his problems
       with mental organization; that is, the frontal lobes of the cerebral cortex are
       believed to mediate both fine motor speed and executive functions. His
       difficulties with executive control led him to be perseverative in his attempts
       to solve problems; he continued to attempt methods that had been proven
       ineffective, without gaining from the experiences of failure. His overall
       intellectual level is average, with some skills (such as knowledge for general
       facts) ranking him into the Superior range. It appears likely that [petitioner]
       over estimates his own mental ability[] and may become both overconfident
       and overcommitted to his ineffective approaches to solving problems.
       Psychological testing indicated features of repression, and he appears to view
       himself in an unrealistic light.

       Unfortunately, [petitioner’s] mental defects in mental organization and
       learning likely combine with his problematic personality features during times
       of stress to cause [him] to feel overwhelmed by information from multiple
       sources and revert to known - but highly ineffective - behavioral responses to
       solve problems at hand.

Dr. Spica did not comment on petitioner’s competency to proceed with his petition for post-
conviction relief.

        Drs. Samuel Craddock and Rokeya Farooque evaluated petitioner at the Middle
Tennessee Mental Health Institute for approximately twenty-three days. Dr. Craddock, a
clinical psychologist, also evaluated petitioner prior to the initial trial in this case. Dr.
Craddock did not believe that petitioner had a cognitive or mental disorder, but he was
inclined to diagnosis him with a personality disorder not otherwise specified. Dr. Craddock
concluded that petitioner had a sufficient understanding of his legal situation to be considered
competent. Dr. Craddock also said that petitioner possessed above-average intelligence.
According to Dr. Craddock, petitioner’s primary concern was being allowed to advance the
legal issues that he deemed important. Dr. Craddock suggested that petitioner was possibly
his own worst enemy, though, because he refused to listen to the advice of others. However,
he could not attribute that “self-defeating” trait to a cognitive impairment or personality
disorder.

       Dr. Farooque, a forensic psychiatrist, did not diagnose petitioner as having either a
cognitive or personality disorder. She testified that both the EEG and CT scan that she
administered revealed normal results. Dr. Farooque noted that petitioner had a history of
treatment for depression. She concurred with Dr. Craddock’s finding of competency. She
also testified that petitioner was adamant about having the opportunity to present the legal

                                               8
issues that he included in his petition. The report prepared by Drs. Craddock and Farooque
indicated that petitioner

       is willing to work with his legal counsel so long as he [is] given the
       opportunity to present before the court the claims and issues that are
       enumerated in his written submissions . . . . [Petitioner] has an adequate
       understanding of his legal status and pending proceedings. If error exists in
       [his] understanding of his legal status, it is [our] opinion that the error would
       not be attributable to a mental disorder. Throughout [his] stay at [MTMHI][,]
       he did not express delusional beliefs or other signs of symptoms of a mental
       disorder that might interfere with his ability to represent and defend himself
       in post-conviction proceedings. His ability to process and analyze information
       is adequate as is his ability to articulate his reasoning in court and through
       written word.

The report further indicated that petitioner was polite and cooperative and that his general
demeanor and daily habits did not raise the suspicion of a mental illness or other
neuropsychiatric disorder.

                                   2. Evidentiary Hearing

        The several attorneys who have represented petitioner throughout this case testified
at the evidentiary hearing. They will be designated herein as: trial counsel (collectively) or
trial counsel A and B (individually) (1990 trial and first remand); habeas corpus counsel
(1998 habeas corpus proceedings and 2002 resentencing hearing); and subsequent counsel
(collectively) or subsequent counsel A and B (individually) (2002 resentencing hearing).
Retired District Attorney General Al Schmutzer, Jr., the original prosecuting attorney who
handled the case through the 2002 resentencing hearing, also testified.

        Mr. Schmutzer testified that a jury was empaneled during the first remand for
resentencing but that prior to the start of the hearing, trial counsel approached the State about
a plea offer. Mr. Schmutzer informed counsel that he would need to discuss the matter with
the victim’s father. The victim’s father agreed, as long as petitioner was never eligible for
parole. Mr. Schmutzer knew that life without the possibility of parole was not an available
sentence for petitioner, but he thought that “the Department of Correction[] would probably
follow that as long as he didn’t complain.” Mr. Schmutzer said that they worked out an
agreement for life in prison without the possibility of parole for the murder conviction and
a consecutive sixty-year sentence for conspiracy, which was outside the applicable
sentencing range. According to Mr. Schmutzer, petitioner was aware that he was agreeing
to life without parole even though it was not an available sentence and that the sixty-year

                                               9
sentence was outside of the applicable range of punishment. Petitioner stated several times
that he did not want to spend another day on death row. Mr. Schmutzer testified that prior
to being approached by trial counsel, the State was, in fact, prepared to pursue the death
penalty again.

        Mr. Schmutzer recalled that he moved to sever the trials of petitioner and his co-
defendant because they each gave statements implicating the other as the shooter. During
each trial, the State introduced each defendant’s statement into evidence. Mr. Schmutzer
stated, however, that the State did not have a theory as to who actually pulled the trigger. Nor
did he recall making any argument to the jury in Thompson’s case suggesting that petitioner
was the actual shooter. Mr. Schmutzer testified that he “[didn’t] try people on theories.”
Instead, he said, “The inconsistencies came from the facts as presented by the two defendants
and the way they confessed.” However, he did not believe being unable to identify the actual
shooter made a difference in the State’s case.

        Habeas corpus counsel testified that he was appointed by the supreme court to
represent petitioner in his habeas corpus appeal challenging the validity of his sentence of
life without parole. Subsequently, habeas corpus counsel was retained by petitioner’s family
for the resentencing hearing. He joined subsequent counsel A and B, who were appointed
by the court. Habeas corpus counsel identified subsequent counsel as lead counsel. He
recalled that he was primarily responsible for identifying the appropriate legal arguments
while subsequent counsel focused on the presentation of mitigation.

        Habeas corpus counsel described his involvement in petitioner’s resentencing
proceedings. He stated that he believed that petitioner’s statement to the police prior to his
arrest was crucial in providing probable cause for the issuance of the arrest warrant. He
moved to suppress that statement at the resentencing hearing on Fourth Amendment grounds
because the police unlawfully detained petitioner prior to his arrest. Although the supreme
court already ruled that the admission of petitioner’s statement did not violate either the Fifth
or Sixth Amendments, habeas corpus counsel believed that a Fourth Amendment argument
was viable because evidence secured in violation of the Constitution should not be admitted
in capital sentencing hearings. His motion to suppress was denied by the trial court, and both
appellate courts held that the issue was waived because the issue was not raised in the first
motion to suppress before the original trial.

       Prior to the resentencing hearing, habeas corpus counsel did not request specific
performance of the plea bargain that was meant to keep petitioner off death row. Nor did he
request that the State be estopped from seeking the death penalty again. He remembered
some discussion about a vindictiveness claim, but it was never raised. He failed to argue that
the imposition of the death penalty following resentencing was arbitrary. He testified,

                                               10
however, that a plea agreement involving life in prison plus sixty years would have had the
practical effect of ensuring that petitioner remained in prison for the rest of his life. Habeas
corpus counsel did not recall participating in any plea negotiations prior to the resentencing
hearing.

       Habeas corpus counsel testified that the defense sought to prove that petitioner shot
the victim to negate the “murder for hire” aggravating circumstance. He read this court’s
opinion in co-defendant Thompson’s case, but he did not read the State’s brief. He testified
that his primary focus with respect to the co-defendant’s case was developing a
disproportionate sentencing argument on appeal.

        Trial counsel A and B were appointed to represent petitioner at the original trial and
during the first resentencing hearing after remand in 1994. Trial counsel A had been
practicing law for twenty years at the time of his initial appointment. He testified that
petitioner denied killing the victim. He could not recall why a Fourth Amendment argument
was not advanced in their motion to suppress petitioner’s statement. Trial counsel A stated
that after the first remand, counsel engaged the prosecution in plea negotiations. According
to trial counsel A, their goal was to have petitioner transferred from death row, while the
State’s goal was to ensure that petitioner never left prison.

       Trial counsel B testified that he had been practicing law less than two years when he
was first appointed to this case. He did not recall any strategic reason why they did not
advance a Fourth Amendment argument in their motion to suppress petitioner’s statement.
He did not remember whether they opposed the State’s motion to sever the two cases. Trial
counsel filed a motion to exclude mention of the victim’s insurance policy. Trial counsel A
recalled that as part of the sentencing plea negotiations on remand, the State required
petitioner to admit his guilt to the convictions. Trial counsel A testified that the sixty-year
sentence for the conspiracy conviction was necessary to ensure that petitioner remained in
prison in the event that the sentence of life without parole was later ruled invalid. He did not
recall any discussions about whether the same goal could have been reached with a life
sentence.

       Subsequent counsel were appointed to represent petitioner during the 2002
resentencing hearing. Subsequent counsel A was appointed as lead counsel, and he focused
on developing mitigation evidence. Counsel were assisted by an investigator, a mitigation
specialist, and a mental health expert, Dr. Engum. Subsequent counsel A testified that they
had access to the files of former counsel in the case. He recalled there being “two totally
different opinions” about petitioner’s mental health issues. Subsequent counsel A said he
was aware of the issues mentioned by Dr. Brown. He was also aware of the problems that



                                              11
petitioner’s mother had with depression and of his father’s constant absence from the home
due to his military service.

       According to subsequent counsel A, petitioner had unrealistic expectations concerning
any plea negotiations in that the most he was willing to accept was a twenty-five-year
sentence. After reviewing Dr. Engum’s evaluation, subsequent counsel said that they did not
consider employing another expert because he had used Dr. Engum before and maintained
confidence in his work. Subsequent counsel A testified that the defense considered both
mitigation tactics but ultimately decided that the best way to save petitioner’s life was to
show the jury that he was rehabilitated and was an asset, rather than a danger, to the prison
community because they had concerns about being able to convince the jury that petitioner’s
social and medical backgrounds were sufficient mitigation.

        Subsequent counsel A believed that if they proved that petitioner fired the fatal shot,
then the “murder for hire” aggravating circumstance would not apply. The defense requested
an instruction to that effect but did not raise the issue on appeal. According to subsequent
counsel A, he deferred to subsequent counsel B regarding the issues to present on appeal.
However, subsequent counsel A testified that they all discussed which issues they thought
would represent the strongest arguments. He acknowledged that the better practice in capital
cases is to raise as many issues on appeal as possible. He read the transcript of Thompson’s
trial, but he did not read the appellate opinion or briefs of the parties.

       Subsequent counsel A deferred any questions about which jurors to keep or strike to
subsequent counsel B because subsequent counsel B was from Cocke County and was more
familiar with the character of the venire. Subsequent counsel B testified, though, that they
did not exercise all of their peremptory challenges because they feared there was a
“substantial chance” they could end up with someone less favorable on the panel.

       Subsequent counsel B testified that defense counsel did not seek to enforce the
essence of the previous plea agreement in which the State agreed to remove the death penalty
from consideration. He stated that they used a jury questionnaire and ranked prospective
jurors based upon their responses to the written questionnaire as well as the questions asked
during individual voir dire. Subsequent counsel B recalled one juror asking the court before
deliberations how long the defendant would have to serve on a life sentence. He also
recalled requesting that the court inform the jury about the sixty-year sentence petitioner
already had.

       According to subsequent counsel B, the defense sought any information in the State’s
possession concerning who fired the fatal shot because their theory was that the State could
not satisfy the “murder for hire” aggravator if they could prove petitioner actually shot the

                                              12
victim. Subsequent counsel B testified they even requested an instruction to that effect. He,
however, did not remember reviewing the appellate briefs or opinions in Thompson’s case.
He did not recall making any argument about whether the victim’s life insurance had lapsed
prior to the murder.

       Dr. Brown testified again during the evidentiary hearing. Dr. Brown’s evaluation
addressed whether petitioner suffered from a mental disease or defect at the time of the
offense that substantially impaired his judgment. As noted above, Dr. Brown opined that
petitioner suffered from a cognitive disorder not otherwise specified and a personality
disorder with avoidant and dependent features. He determined that the combination of those
two disorders substantially affected petitioner’s capacity to appreciate the wrongfulness of
his conduct or to conform his conduct to the requirements of the law at the time of the crime.
Dr. Brown testified that petitioner’s ability to make rational decisions was adversely affected
by stress. He also concluded that petitioner’s disorders caused him to lie to Julia Webb.
Similarly, according to Dr. Brown, the disorders contributed to the indiscriminate manner in
which petitioner solicited assistance in killing his wife. Dr. Brown testified that petitioner’s
behavior could be characterized by the adage, “[Y]ou have to be able not only to talk the talk
but walk the walk. For [petitioner], there’s no such thing as a walk. He equates being
successful at something with being able to talk about it.” As such, Dr. Brown said petitioner
had a fear of failure. He stated that petitioner tended to exaggerate his intelligence so that
he appeared to be in control of the situation, even though his ultimate decisions might be
unreasonable. However, Dr. Brown did not believe petitioner was capable of manipulating
others to get his way.

       Dr. Brown distinguished between pleasant people with mental illnesses and “jerks”:
“The studies show that bad behavior, criminal behavior, insensitive behavior, is found in
equal proportions in psychiatric patients [and] people who don’t have a psychiatric illness.
But being a jerk is not a psychiatric condition.” Dr. Brown did not believe that petitioner fell
in the latter category, and he did not diagnose petitioner with an antisocial personality
disorder. Dr. Brown’s report reflected that petitioner functioned well in prison and that he
had no serious disciplinary problems. The report further noted:

       The testing and history demonstrate marked impairment in the cognitive
       abilities relating to appropriate planning and the capacity to control his
       behavior in challenging or stressful situations. He has functioned well
       whenever he is in a highly structured and low conflict situation. When the
       rules are clear and unambiguous and the environment places minimal demands
       on judgment he has done extremely well (e.g. as a long-distance truck driver
       and while an inmate).



                                              13
The available information concerning the time of the offense shows
extraordinarily poor judgment and planning actions, even by the standards of
the average criminal. Both his planning and attempts to conceal those plans
were obviously deficient. While he fantasized aloud about having his wife
killed, his attempts to follow through were limited to making inquiries in his
circle of friends. In ordinary circumstances it would not be unreasonable to
expect her to be alerted by one of the many people he told. Secondly, he
created a substantial number of people who could later testify that he had
talked about killing his wife and offered money or goods. Finally, far from
hiring someone to commit the crime, he instead settled on committing the
crime himself while bringing along a younger friend who had a history of
being easily influenced by [petitioner]. Rather than being a killing for hire the
effective result was an eyewitness to his commission of the crime. In
retrospect every step that [petitioner] took simply served to make it relatively
simple to unravel his modest alibi.

[Petitioner] meets criteria for personality disorder with mixed avoidant and
dependent traits on the basis of consistent and pervasive patterns of impaired
social function with a fear of failure that prevents him from making
appropriate academic or educational efforts (e.g. failing in military basic
training and withdrawing from community college); and an excessive need to
appear more confident or capable than he actually is (e.g. his efforts to
convince others of [his] superior legal talents.) His insistence is often against
his own best interests, in this instance spectacularly so, and a maladaptive and
excessive need to obtain help and assistance from others in times of emotional
distress (e.g. feigning illness in an attempt to obtain emotional support,
offering multiple excuses for his failures in the military or school and, most
significantly[,] insisting that a friend accompany him during the event in
question).

He does not meet criteria for antisocial personality disorder.

Significant weight must be placed on evidence of impaired judgment and
planning as evidenced by the neuropsychological testing and the psychiatric
history dating back to infancy.

Put in perspective, he shows evidence of significant mental disorganization
and difficulties with comprehending the significance of spoken interactions
with others as evidenced by both the history and the deficits noted in testing
results . . . . This is especially so under time or emotional pressures. He is

                                       14
largely unaware of the difficulty and will tend to overrate his own abilities.
This is consistent with his belief that he has a special understanding of the law
related to his case and for his belief that anyone who disagrees with him is
either ill-informed or dishonest. He is also impaired in his ability to recognize
when he is making mistakes and to make changes in his plans when they fail.

These difficulties are consistent with the reports of the people who knew and
worked with him at the time: that he was a serial exaggerator, blithely
self-confident and given to bizarre and needlessly complex stories (e.g. the
woman who[m] [he] is living with was not his wife but her crazy sister).

His difficulties are also consistent with his spectacularly maladroit conspiracy.
He repeatedly offered to pay several friends to kill his wife, regardless of their
persistent lack of interest. He made no attempts to “cover his tracks” when he
was rebuffed. The net result was a half-dozen witnesses who could report of
his repeatedly stated intent to have his wife killed.

Secondly, when he was unable to hire anyone, he committed the act himself
(as stated in the appellate court’s opinion in the Thompson case). Instead of
leaving the act to a hired killer he went himself while bringing along a younger
and impressionable friend whose only effective contribution was to provide an
eyewitness placing him at the crime scene.

Taken together the history is one of an individual with substantial impairment
in judgment and planning who was unable to cope with the steady and
progressive deterioration of his most significant relationship. The sequence
of events shows evidence of impaired planning, an inability to foresee negative
consequences and an inability to prepare reasonable precautions to evade
detection.

Further, his failures in judgment were compounded by a social environment
that did nothing to restrain or prevent his repeatedly announced plan. In fact,
he appears to have spent most of his time with close associates who were not
significantly bothered by talk of “getting rid” of a spouse. It is significant that
so many people were later able to testify as to his repeated intentions to have
his wife killed. It is equally significant that none of them made any significant
attempt to dissuade or prevent him over a period of many months. Given his
extreme reliance on the approval and support of others, it is more likely than
not that he interpreted this general silence as more than tacit approval. It is



                                        15
       also more likely than not that, given his impulsivity and impairments in
       judgment and planning, he was unable to “back down” or reconsider.

       Finally, his planning was not merely ineffective, it was grossly
       counterproductive. Without his persistent efforts it is more likely than not that
       law enforcement would have had a much more difficult time solving the crime.

       In the first place, the obvious purpose of murder for hire is to distance the
       individual from the crime. Secondly, the purpose of premeditation is to
       organize an effective plan that includes method and timing to achieve the goal.
       Typically, this also means taking effective steps to evade detection, before and
       after commission of the crime.

       Instead, he settled for dragging along an, at best, unwilling accomplice who
       thereby became an eyewitness to his involvement in the crime. In the second
       place, his preparations consisted of providing witnesses capable of testifying
       to his frequently repeated stated intent, his having the murder weapon,
       purchasing bullets and of his whereabouts and schedule for the night in
       question. Finally, he provided his fiancée, who appears to have been in
       complete ignorance of his actual circumstances, with a simply incredible
       explanation for his wife’s death at the hands of unknown assailants. In the end
       he produced a panoply of virtually every kind of evidence of his direct
       involvement.

        Based on the evidence presented at the hearings, the post-conviction court denied
petitioner relief by written order. Relevant excerpts from the order will be discussed below
in the context of the issues presented.

                                        III. Analysis

                       A. Burden of Proof and Standard of Review

        To obtain relief in a post-conviction proceeding, a petitioner must demonstrate that
his or her “conviction or sentence is void or voidable because of the abridgement of any right
guaranteed by the Constitution of Tennessee or the Constitution of the United States.” Tenn.
Code Ann. § 40-30-103. A post-conviction petitioner bears the burden of proving his or her
factual allegations by clear and convincing evidence. Tenn. Code Ann. § 40-30-110(f).
“‘Evidence is clear and convincing when there is no serious or substantial doubt about the
correctness of the conclusions drawn from the evidence.’” Lane v. State, 316 S.W.3d 555,
562 (Tenn. 2010) (quoting Grindstaff v. State, 297 S.W.3d 208, 216 (Tenn. 2009)).

                                              16
        Appellate courts do not reassess the trial court’s determination of the credibility of
witnesses. Dellinger v. State, 279 S.W.3d 282, 292 (Tenn. 2009) (citing R.D.S. v. State, 245
S.W.3d 356, 362 (Tenn. 2008)). Assessing the credibility of witnesses is a matter entrusted
to the trial judge as the trier of fact. R.D.S., 245 S.W.3d at 362 (quoting State v. Odom, 928
S.W.2d 18, 23 (Tenn. 1996)). The post-conviction court’s findings of fact are conclusive on
appeal unless the preponderance of the evidence is otherwise. Berry v. State, 366 S.W.3d
160, 169 (Tenn. Crim. App. 2011) (citing Henley v. State, 960 S.W.2d 572, 578-79 (Tenn.
1997); Bates v. State, 973 S.W.2d 615, 631 (Tenn. Crim. App.1997)). However, conclusions
of law receive no presumption of correctness on appeal. Id. (citing Fields v. State, 40 S.W.3d
450, 453 (Tenn. 2001)). As a mixed question of law and fact, this court’s review of
petitioner’s ineffective assistance of counsel claims is de novo with no presumption of
correctness. Felts v. State, 354 S.W.3d 266, 276 (Tenn. 2011) (citations omitted).

        The Sixth Amendment to the United States Constitution, made applicable to the states
through the Fourteenth Amendment, and article I, section 9 of the Tennessee Constitution
require that a criminal defendant receive effective assistance of counsel. Cauthern v. State,
145 S.W.3d 571, 598 (Tenn. Crim. App. 2004) (citing Baxter v. Rose, 523 S.W.2d 930
(Tenn. 1975)). When a petitioner claims that he received ineffective assistance of counsel,
he must demonstrate both that his lawyer’s performance was deficient and that the deficiency
prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984); Finch v. State,
226 S.W.3d 307, 315 (Tenn. 2007) (citation omitted). It follows that if this court holds that
either prong is not met, we are not compelled to consider the other prong. Carpenter v. State,
126 S.W.3d 879, 886 (Tenn. 2004).

       To prove that counsel’s performance was deficient, petitioner must establish that his
attorney’s conduct fell below an objective standard of “‘reasonableness under prevailing
professional norms.’” Finch, 226 S.W.3d at 315 (quoting Vaughn v. State, 202 S.W.3d 106,
116 (Tenn. 2006)). As our supreme court held:

       “[T]he assistance of counsel required under the Sixth Amendment is counsel
       reasonably likely to render and rendering reasonably effective assistance. It is
       a violation of this standard for defense counsel to deprive a criminal defendant
       of a substantial defense by his own ineffectiveness or incompetence. . . .
       Defense counsel must perform at least as well as a lawyer with ordinary
       training and skill in the criminal law and must conscientiously protect his
       client’s interest, undeflected by conflicting considerations.”

Id. at 315-16 (quoting Baxter, 523 S.W.2d at 934-35). On appellate review of trial counsel’s
performance, this court “must make every effort to eliminate the distorting effects of
hindsight, to reconstruct the circumstances of counsel’s conduct, and to evaluate the conduct

                                             17
from the perspective of counsel at that time.” Howell v. State, 185 S.W.3d 319, 326 (Tenn.
2006) (citing Strickland, 466 U.S. at 689).

       When 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, 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). 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.

        With regard to the second prong of the Strickland analysis, to prove that petitioner
suffered prejudice as a result of counsel’s deficient performance, he “must establish a
reasonable probability that but for counsel’s errors the result of the proceeding would have
been different.” Vaughn, 202 S.W.3d at 116 (citing Strickland, 466 U.S. at 694). “A
‘reasonable probability is a probability sufficient to undermine confidence in the outcome.’”
Id. (quoting Strickland, 466 U.S. at 694). As such, petitioner must establish that his
attorney’s deficient performance was of such magnitude that he was deprived of a fair trial
and that the reliability of the outcome was called into question. Finch, 226 S.W.3d at 316
(citing State v. Burns, 6 S.W.3d 453, 463 (Tenn. 1999)). “A reasonable probability of being
found guilty of a lesser charge, or a shorter sentence, satisfies the second prong in
Strickland.” State v. Zimmerman, 823 S.W.2d 220, 225 (Tenn. Crim. App. 1991). Similarly,
petitioner must show that “‘there is a reasonable probability that, absent the errors, the
sentencer . . . would have concluded that the balance of the aggravating and mitigating
circumstances did not warrant death.’” Henley, 960 S.W.2d at 579-80 (quoting Strickland,
466 U.S. at 695).

                                          B. Issues

                                     1. Plea Agreement

      In this appeal from the denial of post-conviction relief, petitioner demands specific
performance of the previous plea agreement with regard to the State’s concession not to seek

                                             18
the death penalty. He contends that because the State reaped the benefit of the sixty-year
sentence and promised to forgo seeking the death penalty, the State was in breach of its
promise by seeking the death penalty at the resentencing hearing.

        The complex procedural history of this case is outlined above. During the first
remand in 1994, the parties negotiated an agreement to ensure that petitioner would remain
in prison for the rest of his life. The victim’s family assented to the State’s proposal to forgo
another capital sentencing hearing if the State could assure them that petitioner would never
be eligible for parole. Petitioner was motivated by his desire to be transferred from death
row. Accordingly, petitioner agreed to an out-of-range sentence for the conspiracy
conviction and agreed to a sentence of life in prison without the possibility of parole for the
murder conviction. All parties acknowledged that the validity of a life without parole
sentence could be questioned. According to petitioner’s current argument, however, the
sixty-year sentence for conspiracy was “the crux” of the deal for the State in exchange for
removing the death penalty from consideration.

       The post-conviction court concluded that petitioner’s claim for specific performance
is waived because he failed to pursue the issue during the resentencing proceedings. We
agree. The Post-Conviction Procedure Act provides that “[a] ground for relief is waived if
the petitioner personally or through an attorney failed to present it for determination in any
proceeding before a court of competent jurisdiction in which the ground could have been
presented . . . .” Tenn. Code Ann. § 40-30-106(g). Petitioner sought and was granted habeas
corpus relief as to the legality of the life without parole sentence for first degree murder.
Stephenson, 28 S.W.3d at 912. He was resentenced and again appealed the imposition of the
death penalty. Stephenson, 195 S.W.3d 574. The appropriate time to advance his claim that
the State breached the terms of the plea agreement was during the resentencing hearing and
the appeal therefrom. Accordingly, because petitioner failed to present his claim at the
appropriate time, the issue is waived for purposes of post-conviction review.

       Alternatively, petitioner argues that waiver of the issue is attributable to the
ineffective assistance of counsel. He maintains that his attorneys at the resentencing hearing
should have objected to the State’s notice of intent to seek the death penalty again and should
have requested specific performance of the State’s agreement to forgo the death penalty. The
post-conviction court determined that counsel’s performance was deficient in that respect but
otherwise concluded that petitioner was unable to demonstrate prejudice.

       Our analysis of this issue entails a review of the remedies available for breach of a
plea agreement. In that regard, our supreme court has set forth the following guidance:




                                               19
             Some courts, in addressing breach of plea agreements, have applied
      principles of contract law to construe the agreement and determine the
      appropriate remedy. See, e.g., United States v. Ready, 82 F.3d 551, 556 (2d
      Cir. 1996); United States v. Giorgi, 840 F.2d 1022, 1025 (1st Cir. 1988);
      United States v. Verrusio, 803 F.2d 885, 886 (7th Cir. 1986); United States v.
      Calabrese, 645 F.2d 1379, 1390 (10th Cir. 1981). The courts of this state have
      taken a similar approach. See State v. Howington, 907 S.W.2d 403, 407-08
      (Tenn. 1995). The general rule has been that where an agreement is accepted
      and later breached, the remedy for the breach is either specific performance or
      restoration of the parties to the status existing immediately before the plea was
      entered. See Harris v. State, 875 S.W.2d 662, 666 (Tenn. 1994); State v.
      Turner, 713 S.W.2d 327, 329 (Tenn. Crim. App. 1986); Metheny v. State, 589
      S.W.2d [943] at 945 [(Tenn. Crim. App. 1979)].

              We note, however, that a defendant’s rights relative to a plea bargain
      are grounded in more than contract; contract principles, while useful, do not
      completely define the obligations of the parties. “‘Plea agreements . . . are
      unique contracts in which special due process concerns for fairness and the
      adequacy of procedural safeguards obtain.’” United States v. Ready, 82 F.3d
      at 558 (quoting Carnine v. United States, 974 F.2d 924, 928 (7th Cir. 1992));
      see also United States v. Harvey, 791 F.2d 294, 300 (4th Cir. 1986) (the
      defendant’s underlying “contract” right is constitutionally based and therefore
      reflects concerns that differ fundamentally from and run wider than those of
      commercial contract law).

             Since Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d
      427 (1971), Tennessee courts have held that where the State breached a plea
      agreement, or some other infirmity occurred that was not caused by the
      defendant, but which invalidated the agreement, the remedy for breach was to
      allow the defendant to choose either specific performance or withdrawal of the
      plea. Goosby v. State, 917 S.W.2d 700, 707 (Tenn. Crim. App. 1995); see also
      Harris v. State, 875 S.W.2d at 666-67; State v. Turner, 713 S.W.2d at 329;
      Metheny v. State, 589 S.W.2d at 945. We have not previously had the
      opportunity to address the situation where it was the defendant, not the State,
      who breached a plea agreement. In other jurisdictions, however, it appears that
      the same options remain available[;] the State has the option either to
      specifically enforce the agreement or to rescind the plea agreement. See State
      v. Thomas, 79 Wash. App. 32, 899 P.2d 1312, 1315 (1995), and the cases cited
      therein.

State v. Mellon, 118 S.W.3d 340, 346 (Tenn. 2003).

                                             20
        Following the first remand in 1994, petitioner agreed to two sentences that he and his
attorneys knew were outside the range that the jury and trial court could have imposed. His
goal, however, was to be transferred from death row. Apparently dissatisfied with the
resulting sentence, petitioner successfully argued to the supreme court that his life without
parole sentence was illegal. Although he initiated the habeas corpus proceeding pro se, the
supreme court appointed habeas corpus counsel to assist him on appeal. According to the
supreme court, the legislature specifically intended that the life without parole sentencing
option would only be available for those defendants who committed the offense of first
degree murder on or after July 1, 1993. Stephenson, 28 S.W.3d at 912. The court thus held
that petitioner’s sentence was illegal and void, “notwithstanding the agreement between the
parties.” Id. Petitioner did not complain about his sixty-year sentence when he filed his
habeas corpus petition attacking the life without parole sentence. Importantly, the supreme
court affirmatively stated that its decision did not affect the validity of the separate sixty-year
sentence for conspiracy that, it concluded, was not void or illegal. Id. at 612 n.3.
Accordingly, when subsequent counsel were appointed to represent petitioner during
resentencing in 2002, the supreme court had already addressed the legality of the sentences
that stemmed from the plea agreement for the murder.

        Upon our review, we conclude that the State did not breach the terms of the plea
agreement. Petitioner is the party who sought annulment of the agreement. The State upheld
its obligation under the agreement, and according to Mr. Schmutzer, “[T]he Department of
Correction[] would probably follow [the agreement of life without parole] as long as
[petitioner] didn’t complain.” In addition, based upon petitioner’s actions, the supreme court
agreed that life in prison without the possibility of parole was not an available sentence in
this case. Accordingly, on remand, petitioner faced either life with the possibility of parole
or the death penalty.

         The record reflects that the State never agreed to recommend a sentence of life with
the possibility of parole.1 The State was prepared to pursue the death penalty again after the
initial remand until petitioner initiated plea negotiations. The State agreed to a sentence of
life without the possibility of parole, which was the only way to ensure that petitioner would
never be released from confinement. That sentencing option, however, was no longer
available during the second remand. Petitioner argues that the State should be required to
adhere to the intent of the original agreement, which, according to him, was that the State


        1
           We note that in Tennessee, there is no such sentence as life in prison with the possibility of parole.
See Tenn. Code Ann. § 39-13-202 (c) (noting that the possible sentences for first degree murder are death,
life imprisonment without the possibility of parole, and imprisonment for life). However, we have employed
this language to highlight the distinction between life in prison without the possibility of parole and a life
sentence.

                                                       21
would abstain from seeking the death penalty. Petitioner contends that the sixty-year
sentence for the conspiracy conviction, which was out of range but agreed upon by petitioner,
was part of the original agreement to ensure that he remained in prison for the rest of his life.
Accordingly, he posits, because that sixty-year sentence remains in effect, the State received
the benefit of the bargain and thus should not have been permitted to seek the death penalty
again. However, the State counters that even consecutive sentences of life and sixty years
cannot not guarantee that petitioner will never be released from prison because he would
eventually become eligible for parole under the applicable sentencing laws, albeit at a very
advanced age. Nevertheless, because the State did not offer a life sentence, specific
performance of the original agreement was no longer an option, and the parties were restored
to their position prior to the sentencing plea for the murder.

       Contrary to petitioner’s argument, the State cannot be forced to agree to a life sentence
merely because petitioner successfully challenged the legality of the life without parole
sentence. As our supreme court has explained:

       Since . . . the State is not constitutionally limited or bound by its initial formal
       charge, the State certainly is not limited or bound, as the defendant argues, by
       a plea offer [that] was rejected by the defendant. When a plea is rejected, the
       State may prosecute a defendant to the fullest extent of the law and seek the
       most severe punishment available under the law. Cf. State v. Hines, 919
       S.W.2d 573 (Tenn. 1995) (upholding a trial judge’s refusal to approve a plea
       bargain agreement [that] resulted in the case going to trial in which the
       defendant was sentenced to death); Parham v. State, 885 S.W.2d 375, 381
       (Tenn. Crim. App.), perm. app. denied[] (Tenn. 1994) (guilty plea is not
       involuntary by the fact that the accused is faced with an election between
       possible death sentence on a plea of not guilty and a lesser sentence upon a
       guilty plea). To hold, as the defendant urges, that the State can pursue no
       greater charge or seek no greater punishment than that offered during plea
       negotiations could effectively abolish the practice of plea bargaining in first
       degree murder cases. Prosecutors would rarely, if ever, be willing to make an
       offer of leniency in exchange for a guilty plea. We decline to adopt such a
       radical and far reaching principle.

State v. Mann, 959 S.W.2d 503, 510 (Tenn. 1997). This case presents a similar scenario.
Although petitioner did not reject the plea, he nonetheless nullified it by pursuing habeas
corpus relief. We equate petitioner’s successful challenge to the original sentencing plea
with a de facto rejection of the plea offer.




                                               22
       Our supreme court has held:

       Plea negotiations often give rise to difficult choices for a defendant. Indeed,
       “[t]he criminal process . . . is replete with situations requiring the making of
       difficult judgments as to which course to follow. Although a defendant may
       have a right, even of constitutional dimensions, to follow whichever course he
       chooses, the Constitution does not by that token always forbid requiring him
       to choose.” [Corbitt v. New Jersey, 439 U.S. 212, 220, n.8 (1978)] (internal
       citations and quotations omitted). In this case, the defendant was faced with
       the choice of pleading guilty and being sentenced to life imprisonment or
       exercising his constitutional right to a jury trial, and facing the broad spectrum
       of possibilities, including, on the one extreme, an acquittal of all charges, and
       on the other extreme, conviction for first degree murder and imposition of the
       death penalty. [The defendant] decided to exercise his constitutional right to
       a jury trial, and he must now accept the consequences of that choice.

Id. at 511. Similarly, petitioner elected to challenge the sentence that resulted from the plea
agreement. The State took no action to contest the validity of the sentences. Petitioner states
that his position now is less desirable than it was prior to the plea agreement because the
sixty-year sentence remains in effect. While that may be true, the State was within its rights
to pursue capital punishment during resentencing.

        Accordingly, we conclude that petitioner has failed to demonstrate how his counsel’s
performance was deficient. Original trial counsel negotiated an agreement to have petitioner
transferred from death row. Although all parties acknowledged that the agreement was
novel, the negotiated agreement benefitted petitioner at the time. At the resentencing
hearing, subsequent counsel were aware that the only remaining sentencing possibilities were
life with the possibility of parole and the death penalty. The State was unwilling to agree to
a life sentence. Counsel testified that petitioner had “unrealistic expectations” concerning
the plea negotiations. Subsequent counsel A testified that petitioner would not agree to any
sentence longer than twenty-five years. Despite the concessions by counsel during the
evidentiary hearing that they should have sought specific performance, their conduct cannot
be deemed objectively unreasonable in this situation. Moreover, because the resentencing
hearing was conducted in accordance with the statute and because petitioner has not proven
that the State would have agreed to a life sentence, he cannot show prejudice. Petitioner is
not entitled to relief on this claim.




                                              23
                                2. Aggravating Circumstance

       Petitioner was sentenced to death on the finding of one aggravating circumstance:
“The defendant committed the murder for remuneration or the promise of remuneration or
employed another to commit the murder for remuneration or the promise of remuneration.”
Tenn. Code Ann. § 39-13-204(i)(4). Petitioner contends that the jury’s finding of this
circumstance cannot stand, based on the sufficiency of the evidence presented. As the State
correctly notes, the supreme court affirmed the jury’s sentence of death in this case,
specifically determining that the evidence was sufficient to support the sole aggravating
circumstance and that the evidence was also sufficient to support the finding that it
outweighed the mitigating evidence. Stephenson, 195 S.W.3d at 593-94. Thus, this claim
has been previously determined as defined by the Post-Conviction Procedure Act. Tenn.
Code Ann. § 40-30-106(h); see also Workman v. State, 868 S.W.2d 705, 711 (Tenn. Crim.
App. 1993) (“It has long been established in this jurisdiction that a petitioner may not litigate
the sufficiency of the evidence in a post-conviction suit.”).

        Petitioner also argues that his attorneys were ineffective in their defense of the sole
aggravating circumstance. He contends that counsel’s failure to identify statements in the
State’s brief on appeal in the Thompson case, as well as in this court’s opinion, deprived him
of evidence establishing that the State previously admitted that petitioner, not Thompson,
killed the victim. In addition, he asserts that counsel failed to present an argument similar
to the one he advances now, mainly that the “murder for hire” aggravating circumstance
requires proof of three distinct elements.

       At the resentencing hearing, subsequent counsel introduced evidence to the jury to
suggest that petitioner was the actual shooter, or, in the alternative, that the State could not
affirmatively prove who shot the victim, thus attempting to bolster their argument that the
State did not establish the elements of the “murder for hire” aggravating circumstance
beyond a reasonable doubt. Petitioner points out that this court summarized the trial
evidence in Thompson’s direct appeal and intimated that petitioner killed the victim himself,
Ralph Thompson, Jr., 1992 WL 322404 at *1-2, and that the State’s brief in that case
contained a similar summary. This evidence, he suggests, could have been utilized by
subsequent counsel in negating the “murder for hire” aggravator.

       The post-conviction court correctly noted:

       [T]he appellate court and the State on appeal were merely summarizing the
       admissible evidence in a discussion of the sufficiency of the evidence in the
       Thompson case. It would have been inappropriate to refer to evidence [that]
       had not been admitted against Thompson[,] such as the Petitioner’s statement.

                                               24
       Such a summary of evidence by a court does not take into account all possible
       interpretations of the evidence but views the evidence in a light most favorable
       to the State to determine if the evidence is sufficient. The State had been
       limited by the rules of law and the statements of Thompson as to what could
       be admitted in Thompson’s trial and what they could argue to the jury about
       how the offense occurred. The record clearly indicates that the State argued
       that while the jury could never be sure who the shooter was[,] the Petitioner
       and Thompson had both played an integral role in the victim’s death and that
       the Petitioner had offered to pay Thompson with a boat, motor, and truck for
       his help in getting rid of the victim.

        Although petitioner argues that subsequent counsel failed to utilize the State’s brief
and this court’s opinion in the Thompson case to bolster the defense, the State correctly notes
that petitioner has not cited any rule of law that would have allowed those items to be
submitted to the jury. Nevertheless, counsel sought to introduce into evidence a portion of
the State’s closing argument from the Thompson case, requested a special jury instruction
that the “murder for hire” aggravator could not apply to someone who was both the employer
and the triggerman, and moved to dismiss the State’s notice of intent to seek the death
penalty because it could not prove who shot the victim. The trial court denied those requests.
Thompson testified for the defense that petitioner shot the victim. Because petitioner’s guilt
had been proven, counsel argued this point to the jury in support of the position that if
petitioner pulled the trigger, then he could not be sentenced to death under the terms of the
“murder for hire” aggravating circumstance. Habeas corpus counsel testified that he read this
court’s opinion in the Thompson appeal, and subsequent counsel A read the entire transcript
of that trial. The record reflects that counsel diligently pursued their defense strategy. We
agree with the post-conviction court and conclude that the representation petitioner received
was not deficient in this respect.

       Petitioner also claims that counsel were ineffective because they did not argue that the
“murder for hire” aggravating circumstance required three distinct elements that the State
must have proven. He posits that those elements are: “(1) the murder was preceded by an
agreement to commit murder for hire; (2) the agent/employee to the contract performed the
actual killing; and (3) the agent/employee was motivated by the promise of compensation.”
There is no controlling legal authority, however, mandating the interpretation advanced by
petitioner. Thus, counsel could not reasonably be expected to make such an argument.
Moreover, as the post-conviction court observed, the plain language of the aggravating
circumstance does not warrant such an interpretation. The jury was only required to find that
petitioner employed another to commit the murder. See Tenn. Code Ann. § 39-13-204(i)(4).
Accordingly, counsel’s failure to make such an argument was not objectively unreasonable.



                                              25
Moreover, prejudice cannot be shown because, as discussed above, the evidence reasonably
supports the inference that petitioner hired Thompson and that Thompson shot the victim.

                                    3. Statement to Police

       Petitioner challenged the admission of his confession in his original direct appeal
claiming that it was taken in violation of the Fifth and Sixth Amendments. He advanced
several arguments in support of his position:

       (1)     his intoxication and emotional condition prevented a knowing,
               intelligent[,] and voluntary waiver of his right to remain silent;

       (2)     the officers influenced his decision by coercion;

       (3)     his rights were violated by the failure of law enforcement officers to
               inform him that an attorney, employed by his father, was present at the
               sheriff’s department and asking to see him; and

       (4)     he invoked his right to counsel.

Stephenson, 878 S.W.2d at 542. The supreme court concluded, however, that the trial court
did not err in denying his motion to suppress his statements to the police. Id. at 544-48. On
direct appeal from the resentencing hearing, the Petitioner advanced an additional argument,
that his statements were taken in violation of the Fourth Amendment, i.e., that he was
detained at the station without probable cause. The supreme court held that the issue was
waived because petitioner did not raise it prior to trial. Stephenson, 195 S.W.3d at 592.
Accordingly, any attempt to re-litigate the merits of that claim in these proceedings must fail.

       Petitioner also argues that trial counsel were ineffective for failing to present the
additional Fourth Amendment argument prior to trial. The State argues that petitioner’s
claim against trial counsel is waived. See Tenn. Code Ann. § 40-30-106(g). We agree.

        As noted in our review of the procedural history of this case, petitioner filed a petition
for post-conviction relief in 1995, then later, on advice of counsel, voluntarily withdrew his
petition. The instant post-conviction action was not initiated until 2006. The 1995 post-
conviction petition would have been the proper vehicle for challenging the effectiveness of
his trial counsel. Because he elected to withdraw that petition, he has waived review of the
issue he now advances. Id. Petitioner’s convictions were affirmed in 1994. All subsequent
proceedings have pertained to sentencing. As the supreme court ruled when it addressed this
claim in 2006, “The fact that [petitioner’s] sentence was overturned on appeal does not

                                               26
provide him with a second opportunity to litigate pre-trial issues that could have been raised
before his original trial.” Stephenson, 195 S.W.3d at 592. Similarly, the fact that petitioner
withdrew his first post-conviction petition and later successfully pursued habeas corpus relief
does not grant him the opportunity now to raise a pre-trial claim that could have been raised
in the first post-conviction petition. Petitioner is not entitled to relief on this claim.

                                   4. Inconsistent Theories

       Petitioner contends that the State violated his due process rights by pursuing
inconsistent theories at his trial and sentencing hearing and at the trial of his co-defendant.
His argument is rooted in the statements made by the State in its brief in Thompson’s direct
appeal suggesting that petitioner was the shooter. Petitioner also couches this argument in
terms of ineffective assistance of counsel.

        Petitioner adheres to his position that the identity of the triggerman was central to the
State’s ability to prove the “murder for hire” aggravating circumstance. Accordingly, he
contends that the State violated his due process rights by arguing different theories at the two
trials. As the post-conviction court noted, however, Mr. Schmutzer testified that the State
did not have a theory as to who actually pulled the trigger. Mr. Schumtzer said that he
“[didn’t] try people on theories;” instead, he relied on “the facts as presented by the two
defendants and the way they confessed.” Accordingly, at each trial, the State introduced each
defendant’s statement against him. As the post-conviction court observed:

               The evidence established that the same week as the murder the
       Petitioner and Co-defendant Thompson gave incriminating statements to law
       enforcement in which each admitted to being present but claimed that the other
       did the actual shooting. Two other witnesses testified to the Petitioner’s
       attempts to hire them to commit the murder. The Petitioner’s girlfriend
       testified that she had gone out of state with the Petitioner during the middle of
       the night once and taken his father’s boat without speaking to his father and
       that the Petitioner had stored the boat at her home. A life insurance policy for
       $5000 on the victim’s life existed and was still in the grace period for payment
       to which the Petitioner was the beneficiary. $5000 was the amount offered at
       one point for the murder.

               At the Petitioner’s re-sentencing hearing in 2002 and Thompson’s trial,
       all of the evidence mentioned above was introduced. The substance of [the
       Petitioner’s] statement was not introduced at Thompson’s trial but the fact that
       [the Petitioner] had made a statement was. At the 1990 trial of the Petitioner,
       Thompson’s statement was not introduced but the fact that he had made a

                                               27
       statement was introduced to show its [e]ffect on the Petitioner and how he
       changed his statement when he found this out. At the 2002 re-sentencing
       hearing, Ralph Thompson was called as a witness by the defense and he was
       asked in detail about his statement and it was admitted into evidence along
       with the Petitioner’s own statement.

               In proceedings against both Thompson and the Petitioner, the State
       argued that the Petitioner was looking for someone to kill his wife and that
       Thompson had been helping him look. When two other people had refused to
       take the job, the Petitioner had offered to give Thompson a boat, motor, and
       truck to help him get rid of his wife. The Petitioner’s own statement discussed
       the agreement to give these things to Thompson in exchange for his help. In
       both cases, the State told the jury that they would never know who the
       triggerman was and that it did not matter. Thompson suggested the location
       of the murder and provided the weapon. Thompson went with the Petitioner[,]
       and they were to be each other’s alibi. Thompson cleaned and hid the murder
       weapon at his home. In both cases, the State argued that Thompson and [the
       Petitioner] had both played an integral part in the murder and that it did not
       matter who had actually been the shooter.

        We agree with the post-conviction court’s conclusion that the State did not present
“core” inconsistencies. “Although our supreme court has recognized the possibility that
pursuit of inconsistent theories at the separate trials of co-defendants may have due process
implications, the court has steadfastly declined to adopt the rule of Smith v. Groose, 205 F.3d
1045 (8th Cir. 2000), that ‘‘core’ inconsistencies violate Due Process guarantees.’” Berry
v. State, 366 S.W.3d 160, 182-83 (Tenn. Crim. App. 2011) (citing State v. Housler, 193
S.W.3d 476, 492 (Tenn. 2006) and State v. Robinson, 146 S.W.3d 469, 496 n. 13 (Tenn.
2004)). The supreme court has elaborated:

       We agree that “prosecutors must not present proof of an historical narrative
       that they know not to be true[,]” United States v. Siriprechapong, 181 F.R.D.
       416, 422 (N.D. Cal. 1998) (summarizing Brady v. Maryland, 373 U.S. 83, 83
       S.Ct. 1194, 10 L.Ed.2d 215 (1963), and its progeny), but we also recognize
       that “prosecutors are not omniscient.” Thompson v. Calderon, 120 F.3d 1045,
       1071 (9th Cir. 1997) (Kozinski, J., dissenting). Just as important, prosecutors
       are not finders of fact. When a prosecutor has conflicting evidence or simply
       does not know the truth, he “is entitled to retain skepticism about the evidence
       he presents and trust the jury to make the right judgment.” Id.; see also id. at
       1074-75 (Kleinfeld, J., dissenting) (“The jury is supposed to decide the case
       based on the evidence and the judge’s instruction. . . . It is up to the jury, not

                                              28
       the prosecutor, to decide what happened amidst a lot of lies.”) In sum, we
       think the words of Justice Thomas in his Bradshaw [v. Stumph, 125 S.Ct. 2398
       (2005),] concurrence apply aptly to this case:

              The Bill of Rights guarantees vigorous adversarial testing of
              guilt and innocence and conviction only by proof beyond a
              reasonable doubt. These guarantees are more than sufficient to
              deter the State from taking inconsistent positions; a prosecutor
              who argues inconsistently risks undermining his case, for
              opposing counsel will bring the conflict to the factfinder’s
              attention.

       125 S.Ct. at 2410.

Housler, 193 S.W.3d at 493. Moreover, “[a]s a practical matter, discrepancies are commonly
unavoidable when several individuals are prosecuted in separate trials for the same offense.”
Robinson, 146 S.W.3d at 497.

        Both petitioner and his co-defendant played integral roles in the death of the victim.
Each stated that the other pulled the trigger. Consequently, the prosecution had two versions
of the killing and thus presented the statement of each defendant at his own trial.
Nevertheless, either as a principal or under a theory of criminal responsibility, both
defendants were equal participants in the crime, and both were guilty of first degree murder.
Mr. Schmutzer admitted he did not know who pulled the trigger. Despite statements by the
State in its brief in Thompson’s direct appeal, Mr. Schmutzer testified that he never argued
to the jury in either case who he believed pulled the trigger.

        During the resentencing hearing, the State introduced petitioner’s own statement in
which he said Thompson shot the victim, and, in an admitted attempt to create reasonable
doubt, defense counsel introduced Thompson’s statement in which he said that petitioner shot
the victim. However, the “core” theory of the two prosecutions was the same; namely that
petitioner hired Thompson to kill his wife. The proof was found to be sufficient to support
the State’s position. Despite the inconsistencies highlighted by counsel, the jury evidently
chose not to credit Thompson’s self-serving statement in light of the other evidence
introduced. Thus, petitioner has not demonstrated how the State presented false evidence or
inconsistent theories and therefore, violated his due process rights. See Housler, 193 S.W.3d
at 493. Discerning no violation of petitioner’s due process rights with regard to inconsistent
theories of prosecution, we accordingly conclude that counsel were not ineffective for failing
to raise the issue of inconsistent theories at petitioner’s resentencing hearing.



                                             29
                                        5. Mitigation

       Petitioner contends that subsequent counsel were ineffective at the resentencing
hearing for failing to present sufficient evidence of his mental conditions. He claims that the
jury might have been convinced to impose a lesser sentence than the death penalty if it were
made aware of this evidence.

        As noted above, the two experts petitioner employed during post-conviction, Drs.
Brown and Spica, concluded that he suffered from a cognitive disorder caused by damage
to the frontal lobe of his brain that especially in times of stress, substantially affected his
judgment and impaired his ability to conform his conduct to the law.

       The evidence presented by petitioner during post-conviction is summarized above.
The post-conviction court reviewed the evidence and noted that “this is clearly not a case in
which counsel failed to conduct appropriate investigation into the accused’s background and
social history.” In denying relief on this claim, the post-conviction court stated:

               The evidence establishes that counsel had at least most if not all the
       information from the investigation for the 1990 trial as well as the information
       developed by [their investigators] for the 2002 hearing. In addition, counsel
       had retained the psychological services of Dr. Engum. Petitioner criticizes
       counsel for not having sought further assistance when Dr. Engum did not find
       any evidence of brain damage. As alluded to above, generally much of the
       mitigation offered at the post-conviction hearing fell in line with the themes
       put forward by the defense at trial: the Petitioner was a model prisoner, with
       a history of certain psychological issues and a dysfunctional family that had
       moved frequently. The primary focus of the evidence was the Petitioner’s
       ability to do well in a structured setting and his behavior as a model prisoner.

               [Subsequent counsel A] testified that in preparing for the hearing, there
       were several things they believed needed to be pursued from the Petitioner’s
       records and counsel’s prior file. He stated that the things that Dr. Brown had
       discussed in his testimony, such as family history, family dynamics, and
       problems, were things that they had been aware of when they worked on the
       case. After receiving the materials from the other attorneys, they picked up
       and interviewed the people and developed the issues. He stated that after they
       received Dr. Engum’s report they did not believe that they could use a lot of
       the history and information in mitigation. He testified that he had confidence
       in Dr. Engum because he had worked with him previously and that based upon
       Dr. Engum’s report, they could not substantiate a mental defense. The team

                                              30
       had believed that the best way to avoid the death penalty was to focus on the
       Petitioner’s rehabilitation in the prison system. [Subsequent counsel A] also
       expressed concerns about presenting too many themes to the jury and
       spreading things out for the jury to think about concerning mitigation.

              After carefully reviewing all the records, testimony, and applicable law,
       this Court finds that counsel [were] not deficient in their investigation and
       preparation of potential mitigating evidence for the Petitioner’s capital re-
       sentencing hearing. Counsel hired experts to investigate both the facts of the
       case and any mitigation, as well as mental health experts to explore any
       available issues of mental health and/or brain damage. Petitioner would now
       have this court find counsel deficient for having relied upon those experts.
       This court, however, cannot agree. In considering the issue of deficiency, this
       Court’s review must be a context-dependent consideration of the challenged
       conduct as seen from counsel’s perspective at the time. Counsel relied upon
       the defense team and understood that certain potential mitigating witnesses or
       evidence would be helpful. Counsel made a strategic decision to focus on the
       theme of the Petitioner’s favorable behavior in prison and to argue the
       inapplicability of the aggravating factor. They appropriately relied upon
       experts and formulated a strategy based on what they were provided.

       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 granted
to capital defendants 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
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 has the duty to investigate and prepare for both the guilt and the penalty phase. See
Goad v. State, 938 S.W.2d 363, 369-70 (Tenn. 1996); see also Zagorski v. State, 983 S.W.2d
654, 657 (Tenn. 1998).

       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)

                                             31
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. Goad, 938 S.W.2d at 371. However, deference must be given to counsel’s
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 prospective 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.

        We agree with the post-conviction court that this is not a case in which counsel failed
to conduct any substantial investigation or present any meaningful mitigating evidence. At
resentencing, petitioner was represented by three attorneys with significant criminal defense
experience. They employed two investigators, had access to the file of the previous
attorneys, and retained a qualified mental health expert to conduct a comprehensive
evaluation of petitioner. In sum, defense counsel called no less than twelve witnesses to
testify on behalf of petitioner during the resentencing hearing. Defense witnesses presented
the jury with an overview of petitioner’s social history and mental health status. Based upon
their investigation and review of the results of Dr. Engum’s evaluation, counsel elected to
focus on petitioner’s efforts toward rehabilitation while in prison. In light of Dr. Engum’s
findings, to which he testified at the hearing, counsel believed they would have had a
difficult time convincing the jury that petitioner’s mental status was sufficient mitigation.
Rather, they decided to highlight petitioner’s positive adjustment to prison life.


       Petitioner is challenging defense counsel’s chosen strategy in mitigation. This court,
however, 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. Moreover,
we must defer to counsel’s sound strategic choices in the presentation of their defense.

                                              32
Hellard, 629 S.W.2d at 9. Upon our review of the record in this case, we conclude that
counsel conducted a reasonable investigation into mitigating evidence and, based upon the
information they received, chose a reasonable strategy. Counsel’s trusted expert found no
evidence of brain damage. Petitioner introduced evidence through Drs. Brown and Spica at
the post-conviction evidentiary hearing that he had a cognitive brain disorder that likely
affected his judgment at the time of the crime. However, Drs. Craddock and Farooque, who
evaluated petitioner over the course of approximately twenty-three days, as well as Dr.
Engum, found no evidence of brain damage. Dr. Craddock also evaluated the Petitioner prior
to the first trial and found no evidence of a cognitive disorder. Notably, Dr. Spica stated that
his evaluation employed modern tests that may not have been available to Dr. Engum at the
time of petitioner’s first trial. Dr. Brown also acknowledged that the prior reports of the
other experts were based on the testing done at the time.

        A criminal defense attorney “must conduct appropriate investigations, both factual and
legal, to determine what matters of defense can be developed.” Baxter, 523 S.W.2d at 933.
However, an attorney is only required to perform “as well as a lawyer with ordinary training
and skill in the criminal law.” Id. at 935. After a comprehensive examination, Dr. Engum
found no evidence of brain damage. “A defense attorney is not required to question a
diagnosis put forth by a professional expert in the field.” Christa Gail Pike v. State, No.
E2009-00016-CCA-R3-PD, 2011 WL 1544207, at *54 (Tenn. Crim. App. Apr. 25, 2011),
perm. app. denied (Tenn. Nov. 15, 2011); see Farris Genner Morris, Jr. v. State, No.
W2005-00426-CCA-R3-PD, 2006 WL 2872870, at *55 (Tenn. Crim. App. Oct. 10, 2006),
perm. app. denied (Tenn. Feb. 26, 2007) (“We cannot find trial counsel deficient for relying
upon the pre-trial evaluation finding the Petitioner competent and sane.”); Glenn Bernard
Mann v. State, No. W2002-00260-CCA-R3-CD, 2003 WL 22319581, at *32 (Tenn. Crim.
App. Oct. 9, 2003), perm. app. denied (Tenn. Mar. 8, 2004) (“counsel’s decision not to
pursue [I.Q.] angle was reasonable based on his reliance upon Dr. Blair’s recommendation”).
Despite the fact that petitioner subsequently retained two experts who diagnosed him as
having brain damage, counsel elected not to pursue the matter further at resentencing after
reading Dr. Engum’s report. Counsel developed their defense strategy based, in part, upon
Dr. Engum’s diagnosis.

       Notwithstanding the fact that petitioner and counsel knew that some of the mental
health experts did not find evidence of brain damage, petitioner maintains that counsel should
have presented Dr. Brown’s findings to the jury. Dr. Brown was given the facts surrounding
the murder in this case and made the following comments:

       The available information concerning the time of the offense shows
       extraordinarily poor judgment and planning actions, even by the standards of



                                              33
       the average criminal. Both his planning and attempts to conceal those plans
       were obviously deficient.

       ....

       In the first place, the obvious purpose of murder for hire is to distance the
       individual from the crime. Secondly, the purpose of premeditation is to
       organize an effective plan that includes method and timing to achieve the goal.
       Typically, this also means taking effective steps to evade detection, before and
       after commission of the crime.

       Instead, [petitioner] settled for dragging along an, at best, unwilling
       accomplice who thereby became an eyewitness to his involvement in the
       crime. In the second place, his preparations consisted of providing witnesses
       capable of testifying to his frequently repeated stated intent, his having the
       murder weapon, purchasing bullets and of his whereabouts and schedule for
       the night in question. Finally, he provided his fiancée, who appears to have
       been in complete ignorance of his actual circumstances, with a simply
       incredible explanation for his wife’s death at the hands of unknown assailants.
       In the end he produced a panoply of virtually every kind of evidence of his
       direct involvement.

The post-conviction court concluded that Dr. Brown’s testimony would not have affected the
jury’s sentencing decision: “The evidence of petitioner’s efforts to employ someone to get
rid of his wife so that he could get out of his marriage without losing financially was strong[,]
and the alleged differences in the presentation of mitigating evidence would not have
affected the jury’s determination.”

        Similar to the post-conviction court, we cannot conclude, in light of the facts of this
case, that any attempt by counsel to attribute petitioner’s actions to possible brain damage
would have affected the jury’s sentencing decision. Counsel weighed their options and
pursued a line of defense that was objectively reasonable given the facts known to them. This
court concludes that subsequent counsel’s presentation of the case at sentencing was not
deficient or otherwise unreasonable. Accordingly, petitioner is not entitled to post-conviction
relief on this basis.

                                  6. Victim Impact Evidence

      Petitioner also argues that counsel inappropriately solicited inadmissible victim impact
evidence during his cross-examination of the victim’s father. Specifically, in questioning the

                                               34
victim’s father about whether he approved of the victim’s children visiting petitioner in
prison, the victim’s father stated that “they ought to hang the son of a b---h.”

      The specific line of questioning at issue is as follows:

      Counsel:      Had you told [petitioner’s mother] that if there was contact with
                    their father through them that they would be allowed to see the
                    children again?

      Mr. Saylor:   No, I didn’t say anything like that. I told them I didn’t want that
                    to happen.

      Counsel:      You didn’t want what to happen, sir?

      Mr. Saylor:   For them to try and take them to the penitentiary where he’s in
                    jail. It would be bad influence on the children.

      Counsel:      Yes, sir. You certainly haven’t encouraged any contact between
                    the children and their father, have you?

      Mr. Saylor:   Absolutely none.

      Counsel:      And I understand, you’re pretty bitter at [petitioner], aren’t you?

      Mr. Saylor:   Wouldn’t you be?

      Counsel:      Yes, sir. I understand, I do. I wasn’t making it a bad thing but
                    the bitterness is why you haven’t encouraged the contact?

      Mr. Saylor:   No, it’s not bitter. This man murdered my daughter for no damn
                    reason.

      Counsel:      I understand.

      Mr. Saylor:   And they ought to hang the son-of-a-b---h.

      Counsel:      I understand.

      Mr. Saylor:   You got that?



                                            35
       Counsel:      I understand. And I understand your feelings, sir. Honestly. I’m
                     not mad at you, that’s not . . . .

       Counsel:      Then quit pressing, because I don’t want him to ever see the
                     children again. I adopted them and they don’t belong to him,
                     they belong to me.

       Counsel:      I understand.

       Mr. Saylor:   Now, do you understand that?

       Counsel:      I sure do, and I understand the feeling, but it’s because of that
                     feeling that you certainly haven’t encouraged any contact
                     between the two, have you?

       Mr. Saylor:   He can’t contact them, no. . .

Counsel subsequently elicited testimony from petitioner’s mother explaining how the
victim’s father made it difficult for her to visit her grandchildren. He then argued during
closing that petitioner’s rehabilitation “certainly outweigh[ed] the need for vengeance.”

       The post-conviction court held that petitioner failed to establish prejudice on this
claim. The court noted that counsel attempted to rebut the testimony of the victim’s father
with a plea to save petitioner’s life through the testimony of his mother. The court also
observed that the jury was properly instructed concerning the use of victim impact testimony:

       The prosecution has introduced what is known as victim impact evidence.
       This evidence has been introduced to show the financial, emotional,
       psychological, or physical effects of the victim’s death on the members of the
       victim’s immediate family. You may consider this evidence in determining an
       appropriate punishment.

       However, your consideration must be limited to a rational inquiry into the
       culpability of the Defendant, not an emotional response to the evidence.

       Victim impact evidence is not the same as an aggravating circumstance. Proof
       of an adverse impact on the victim’s family is not proof of an aggravating
       circumstance. Introduction of this victim impact evidence in no way relieves
       the State of its burden to prove beyond a reasonable doubt the aggravating
       circumstance which has been alleged. You may consider this victim impact

                                             36
       evidence in determining the appropriateness of the death penalty only if you
       first find that the existence of the alleged aggravating circumstance has been
       proven beyond a reasonable doubt by evidence independent from the victim
       impact evidence, and find that the aggravating circumstance found outweighs
       the finding of one or more mitigating circumstances beyond a reasonable
       doubt.

The supreme court approved of the trial court’s jury instruction in that regard on direct
appeal. See Stephenson, 195 S.W.3d at 603-04. As it recognized,

       [V]ictim impact evidence should generally be “limited to information designed
       to show those unique characteristics which provide a brief glimpse into the life
       of the individual who has been killed, the contemporaneous and prospective
       circumstances surrounding the individual’s death, and how those
       circumstances financially, emotionally, psychologically or physically impacted
       upon members of the victim’s immediate family.”

Id. at 604 (quoting State v. Nesbit, 978 S.W.2d 872, 891 (Tenn. 1998)).

       We concur with the post-conviction court’s ruling. Petitioner did not examine
subsequent counsel A during the evidentiary hearing about his reasoning behind this line of
questioning. Accordingly, we cannot speculate on whether counsel’s questions were part of
their designed strategy. The State suggests that counsel may have intended to arouse the
temper of the victim’s father in front of the jury to portray him as a vengeful man in their
attempt to present petitioner as a rehabilitated inmate undeserving of death. Regardless,
because jurors are presumed to follow the trial court’s instructions on the law, which in this
case included instructions directing them not to allow emotions to impact their decision and
explaining to them that victim impact evidence is not the equivalent of an aggravating
circumstance, petitioner has not shown any resulting prejudice from counsel’s conduct. See
State v. Reid, 91 S.W.3d 247, 279 (Tenn. 2002). Petitioner is not entitled to relief on this
claim.

                                 7. Peremptory Challenges

       Petitioner challenges counsel’s conduct during voir dire. He alleges that three jurors
were “automatic death penalty voters.” Apparently relying upon trial counsel’s unsuccessful
attempts to strike those three jurors for cause, petitioner contends that counsel were
ineffective by subsequently failing to use available peremptory challenges to remove them
from the panel. Petitioner, however, neglected to identify those three jurors by name in his



                                             37
brief, and he failed to specifically explain how they could be described as jurors who would
not consider any penalty other than death for a defendant convicted of first degree murder.

      The post-conviction court concluded that petitioner failed to establish deficient
performance or prejudice on this ground:

       [Subsequent counsel A] testified that they had not exercised all of the
       peremptory challenges and that the only reason they would have done that was
       because they believed that they would get a less favorable juror based on the
       remaining jurors in the pool if they continued. The evidence also established
       that the attorneys did not base their decision on jurors on the questionnaire
       alone. [Subsequent counsel B] testified that they had done a personal ranking
       system of jurors but that the ranking changed some with personal contact
       through voir dire.

       We agree with the post-conviction court’s conclusions. This court recently addressed
the role of defense counsel during jury selection in a capital case:

               Jury selection implicates an accused’s state and federal constitutional
       rights to a competent, fair-minded, and unbiased jury. See Smith v. State, 357
       S.W.3d 322, 347 (Tenn. 2011) (recognizing that “[b]oth the United States and
       the Tennessee Constitutions guarantee a criminal defendant the right to a trial
       by an impartial jury”) . . . . The process of voir dire is aimed at enabling a
       defense lawyer (as well as a prosecutor) to purge the jury of members not
       meeting these criteria. See United States v. Nell, 526 F.2d 1223, 1229 (5th Cir.
       1976) (“[T]he principal way this right [to an impartial jury] is implemented is
       through the system of challenges exercised during the voir dire of prospective
       jurors.”); Smith, 357 S.W.3d at 347 (recognizing that “‘[t]he ultimate goal of
       voir dire is to ensure that jurors are competent, unbiased and impartial.’”)
       (quoting State v. Hugueley, 185 S.W.3d 356, 390 (appx) (Tenn. 2006) . . . . As
       emphasized by the United States Supreme Court,

              The process of voir dire is designed to cull from the venire
              persons who demonstrate that they cannot be fair to either side
              of the case. Clearly, the extremes must be eliminated – i.e.,
              those who, in spite of the evidence, would automatically vote to
              convict or impose the death penalty or automatically vote to
              acquit or impose a life sentence.




                                             38
       Morgan v. Illinois, 504 U.S. 719, 734 n.7, 112 S.Ct. 2222, 119 L.Ed.2d 492
       (1992) (quoting Smith v. Balkcom, 660 F.2d 573, 578 (5th Cir. 1981)).

              As the United States Court of Appeals for the Sixth Circuit has asserted,
       “Among the most essential responsibilities of defense counsel is to protect his
       client’s constitutional right to a fair and impartial jury by using voir dire to
       identify and ferret out jurors who are biased against the defense.” Miller v.
       Francis, 269 F.3d 609, 615 (6th Cir. 2001). By posing appropriate questions
       to prospective jurors, a defense lawyer is able to exercise challenges in a
       manner that ensures the jury passes constitutional muster. See United States
       v. Blount, 479 F.2d 650, 651 (6th Cir. 1973).

               Despite its significance, a trial lawyer is “accorded particular deference
       when conducting voir dire ” and his or her “actions during voir dire are
       considered to be matters of trial strategy.” Hughes v. United States, 258 F.3d
       453, 457 (6th Cir. 2001). Also, “[a] strategic decision cannot be the basis for
       a claim of ineffective assistance unless counsel’s decision is shown to be so ill-
       chosen that it permeates the entire trial with obvious unfairness.” Id. Thus,
       it is imperative for a petitioner claiming ineffective assistance of counsel
       during jury selection to demonstrate that the resulting jury was not impartial.
       See Smith, 357 S.W.3d at 348 (citing James A. Dellinger v. State, No. E2005-
       01485-CCA-R3-PD, 2007 WL 2428049, at *30 (Tenn. Crim. App. Aug.28,
       2007)).

William Glenn Rogers v. State, No. M2010-01987-CCA-R3-PD, 2012 WL 3776675 at *35-
36 (Tenn. Crim. App. Aug. 30, 2012), perm. app. denied (Tenn. Dec. 11, 2012).

       Counsel in this case utilized written questionnaires and examined each juror
individually during voir dire. Counsel testified that they did not use all of their available
peremptory challenges, however, because they feared, based upon their impression of those
individuals remaining in the jury pool, that there was a “substantial chance” they could end
up with a less favorable jury. This was a reasonable strategic decision which this court will
not second-guess. See Steven Ray Thacker v. State, No. W2010-01637-CCA-R3-PD, 2012
WL 1020227 at *50 (Tenn. Crim. App. Mar. 23, 2012), perm. app. denied (Tenn. Aug. 16,
2012) (counsel’s decision to forego use of remaining peremptory challenges viewed as sound
strategy when counsel affirmatively stated that jurors selected appeared more favorable than
those remaining in pool). Again, although petitioner generally alleges that three jurors were
“automatic death penalty voters,” he did not offer any proof at the evidentiary hearing in
support of those allegations. See William Glenn Rogers, 2012 WL 3776675 at *38 (“Absent
other proof adduced at the post-conviction hearing, a petitioner claiming a biased jury must

                                              39
rely upon the transcript of the voir dire.”). Nor does he offer any specific argument on appeal
as to how the overall responses of those jurors during voir dire exhibited any signs of actual
bias.

        Contrary to petitioner’s assertion that all three contested jurors were unequivocally
committed to voting for death, our review of jury selection reveals that each contested juror
affirmatively stated that they would follow the judge’s instructions and decide the case solely
on the law and facts presented. Petitioner has not established how the jury impaneled during
the resentencing hearing was partial or unfair. Accordingly, he is not entitled to relief on this
claim.

                                   8. Death Penalty Statute

        Petitioner advances several challenges to Tennessee’s death penalty statute. Although
he challenged the statute in his original direct appeal, the supreme court did not address the
issue because it remanded the case for resentencing. Stephenson, 878 S.W.2d at 558.
Accordingly, because petitioner failed to reassert the instant challenges in the appeal from
his resentencing hearing, they are waived in the post-conviction context. See Tenn. Code
Ann. § 40-30-106(g). Furthermore, to the extent he relies upon an ineffective assistance of
counsel claim to present these issues for review, his efforts fail as each challenge advanced
has previously been denied by our supreme court. See, e.g., State v. Hester, 324 S.W.3d 1,
18-19 (Tenn. 2010) (“[W]e have found that the application of the death penalty in Tennessee
is not rendered unconstitutional solely because locally elected District Attorneys General
make discretionary charging decisions within a statutory framework established by the
Tennessee General Assembly.”); id. at 79-80 (upholding Tennessee’s lethal injection
protocol); id. at 80 (rejecting right to life claim).

                                       CONCLUSION

       Based upon our thorough review of the record, the briefs of the parties, the arguments
of counsel, prior opinions of this court and our supreme court, and applicable legal authority,
we discern no error and affirm the judgment of the post-conviction court.




                                            _______________________________________
                                            ROGER A. PAGE, JUDGE




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