IN THE SUPREME COURT OF TENNESSEE r

AT NASHVILLE 
February 5, 2014 Session ‘

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JERRY RAY DAVIDSON v. STATE OF TENNESSEE

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Appeal by Permission from the Court of Criminal Appeals”
Circuit Court for Dickson County
No. CR—7386 Robert E. Burch, Judge

No. M2010-02663-SC-R11-PD

GARY R. WADE, J ., concurring in part and dissenting in part.

Initially, no words adequately describe the horrible nature of this murder.
Nevertheless, I concur with the majority that a new sentencing hearing is warranted based
upon the ineffective assistance of counsel at the penalty stage of the trial. Moreover, I
believe that the deﬁciency in counsel’s performance was such that an entirely new trial
should be granted. In that regard, I dissent.

The Sixth Amendment to the United States Constitution provides that “[i]n all
criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel
for his defence.” Likewise, article 1, section 9 of the Tennessee Constitution provides “[t]hat
in all criminal prosecutions, the accused hath the right to be heard by himself and his
counsel.” These constitutional provisions guarantee every defendant charged with a felony
the right to effective assistance of counsel. Strickland v. Washington, 466 US 668, 686
(1984); Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). To prevail on a claim of
ineffective assistance of counsel, however, a defendant must prove not only a deﬁciency in
the performance of counsel but also that the deﬁcient performance had a prejudicial effect
upon the defense. Strickland, 466 US. at 687; Felts v. State, 354 S.W.3d 266, 276 (Tenn.
201 1). In my View, Jerry Ray Davidson (the “Petitioner”) is one of the few who have been
able to meet that burden as to both the guilt and the penalty phases of his trial.

The ﬁrst prong of an ineffective assistance of counsel claim requires a showing “that
counsel’s representation fell below an objective standard of reasonableness,” a level of
performance measured by “professional norms” existing at the time of the trial or the appeal.
Strickland, 466 US. at 688. The second prong requires a showing of “a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding would

 

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have been different. A reasonable probability is a probability sufﬁcient to undermine
conﬁdence in the outcome.” I_d_. at 694. Although a defendant cannot establish ineffective
assistance based upon a failed strategy or an unsuccessful trial tactic, strategic and tactical
choices are given deference only when counsel has conducted a reasonably adequate
investigation prior to making such decisions. Goad v. State, 938 S.W.2d 363, 369 (Tenn.
1996) (citing Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982)); see also Cooper v. State, 847
S.W.2d 521, 528 (Tenn. Crim. App. 1992) (“[D]eference to tactical choices only applies if
the choices are informed ones based upon adequate preparation”). Here, the trial attorneys,
as the majority properly concludes, fell short in the exercise of their responsibilities.

The trial attorneys for the Petitioner pursued a theory of defense challenging the
sufﬁciency of the State’ 3 evidence. The Petitioner’ 5 initial argument in this appeal is that his
trial attorneys failed to timely investigate, obtain, and present medical evidence of the
Petitioner’s severe mental deﬁcits, which, he insists, would have demonstrated that he was
incapable of premeditation, an element essential to a ﬁrst degree murder conviction.
According to the Petitioner, the mental health professionals who testiﬁed at the evidentiary
hearing on his claim for post-conviction relief established that his mental condition prevented
him from forming an “intent to kill . . . prior to the act itself.” Tenn. Code Ann.
§ 39-13-202(d) (Supp. 1995). Because the statute at the time of the offense deﬁned
.premeditation as “an act done after the exercise of reﬂection and judgment,” 1d,, the
Petitioner claims that the medical evidence available prior to trial, had it been properly
investigated and presented, would have produced a verdict of murder in the second degree.
The majority fully addresses the second issue on appeal—the claim that the Petitioner’s
attorneys were ineffective by failing to present mental health expert testimony as mitigating
evidence during the penalty phase of his trial—and concludes that the medical proof, had it
been presented, may have persuaded the jury not to return a death verdict. As I see it,
however, the crux of the Petitioner’s appeal is his ﬁrst claim. He asserts that if his trial
attorneys had conducted more than a superﬁcial investigation of his medical history and had
made an informed assessment as to the value of this evidence, there is a reasonable
probability that the result of the guilt phase of the trial would have been different. Portions
of the majority opinion demonstrate the Court’s concerns about the quality of the
representation:

Although [the Petitioner’s] attorneys obtained [mental health] records before

trial, they did not share them with the neuropsychologist they had retained,

[Dr. Pamela Auble]. Nor did they introduce any of these records at trial.
Among the . . . [r]ecords [were] a CT scan of [the Petitioner’s] head,

performed on March 24, 1997. The opinion of the doctor who reported the
scan was that [the Petitioner] had “[s]light prominence of the sulci, particularly

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in the posterior fossa[,] compatible with mild atrophy.” At [the] post-

conviction hearing, psychiatrist Peter I. Brown explained that this ﬁnding
meant that |the Petitioner] suffered from cerebral atrophy: “a signiﬁcant
shrinking . . . an actual decrease in the amount of brain tissue.”

The . . . [r]ecords also contain a report of an EEG of [the Petitioner’s]
brain activity. The report identiﬁed an “[a]bnormal EEG because of a slight

excess of asynchronous slowing in all quadrants.” [At the post-conviction
hearin Dr. Brown . . . ex lained . . . that this meant the electrical activi '

[the Petitioner’sl brain was “out of beat.” This abnormality would interfere
with |the Petitioner’s] executive functioning and his ability to behave
coherently.

     

[The Petitioner’s] counsel also possessed [records] which chronicled
[the Petitioner’s] interactions with mental health professionals during the
decades leading up to the murder. These records were examined (at least in
part) by [Dr. Auble, the neuropsychologist,] and the mitigation specialist who
counsel belatedly retained prior to trial. [Neither of these experts testiﬁed at
the Petitioner’s trial]

[These records] reveal [the Petitioner] to be a very mentally disturbed
individual. A 1979 letter from a forensic psychiatrist in Chattanooga to a state
judge explains that [the Petitioner] “does have a rather serious defect of
judgment based on his mental illness, which prevents him from being fully
aware of the social consequences of all his behavior.” A September 1980
social history report includes [the Petitioner’s] self-report that he had been
diagnosed with “undifferentiated schizophrenia” in the tenth grade.

[Furthermore, one of the Petitioner’s trial attorneys] explained that his
ofﬁce was overworked and understaffed in the months leading up to [the
Petitioner’s] trial.

(Emphasis added) (footnote omitted).

In assessing this proof, the majority focused almost entirely upon “the extent of
defense counsel’s duty to present mitigation evidence during the penalty phase of a capital
murder trial,” as indicated by the following comments:

After carefully reviewing the record, we have concluded that |the Petitioner]
was prejudiced at his sentencing hearing by his counsel’s ineffective assistance

because his counsel failed to give the jury any mitigating information
regarding [the Petitioner’s] intellectual and cognitive deﬁciencies.

Withholding this mental health information stemmed more from counsel’s
superﬁcial investigation than from a legitimate strategic choice.

At least one member of the jury could have decided that [the Petitioner] was
less morally blameworthy (and thus undeserving of death) in light of his
lifelong history of psychosis, his frontal lobe dysfunction, and the fact that his
mental functioning was in some respects equivalent to that of a nine— or ten-

year old child. These post-conviction revelations sufﬁciently undermine our
conﬁdence in the verdict to merit post-conviction relief. We ﬁnd a reasonable

probability that, but for counsel’s failure to present psychological mitigation
evidence, the result of the sentencing trial would have been different.

(Emphasis added.) The only reference by the majority to the guilt phase of the trial is as
follows:

[We agree . . . that counsel made a reasonable tactical decision to
abstain from presenting psychological evidence during the guilt phase of trial.
[Davidson V. State, No. M2010-02663-CCA-R3—PD, 2013 WL 485222, at
*19-20 (Tenn. Crim. App. Feb. 7, 2013)]. Counsel was legitimately concerned
that presenting any psychological evidence could open the door for the State
to show the jury the alarming statements from [the Petitioner’s] mental health
records that revealed his malignant misogyny and his propensity to commit

sexual violence. Ensuring that this evidence remained inadmissible was a
reasonable strategy.

(Emphasis added.)

While the majority has properly ruled that the failure of trial counsel to present mental
health evidence as mitigation during the penalty phase resulted in prejudice to the Petitioner,
I believe that the same rationale should extend to the guilt phase of the trial. Because of their
inadequate preparation as to the Petitioner’s medical history, his trial attorneys were unable
to make an informed choice to forgo the presentation of this important evidence at trial. As
stated, premeditation is an essential element of ﬁrst degree murder. Severe mental defects
might be considered by a jury as having an adverse effect upon the ability to exercise

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“reﬂection and judgment” as required by statute. Absent the errors by trial counsel, there is,
in my view, a reasonable probability that a second degree murder conviction may have been
the result.

Counsel’s failure to timely investigate and present the mental health history of the
Petitioner in the guilt phase of the trial is particularly disturbing because, on the direct appeal
of the conviction, this Court divided 3~2 on the issue of whether the proof, which was devoid
of any reference to mental health evidence, established ﬁrst degree premeditated murder or
a less culpable mental state. In the 2003 opinion, the majority of this Court, after noting that
“[a]ll of the evidence regarding [the Petitioner’s] role in the killing [was] circumstantial,”
State v. Davidson, 121 S.W.3d 600, 606 (Tenn. 2003), described the evidence as marginally
sufﬁcient to establish the essential element of premeditation:

Although the question is close in this case, we believe that the evidence
is sufﬁcient for a rational trier of fact to have found the element of
premeditation beyond a reasonable doubt. . . .

While there is no direct evidence that |the Petitioner] intended to kill '
[the Victim] when they left the bar together on the night of September 26,

1995, circumstantial evidence supports the jury’s verdict.

[W]hile no single piece of evidence was sufﬁcient in and of itself to
establish premeditation in this case, we believe that the facts and

circumstances as a whole were sufﬁcient for a rational trier of fact to have
found the elements of premeditated ﬁrst degree murder beyond a reasonable

doubt
Id. at 615-16 (emphasis added).

Two justices, however, lodged separate dissents to the afﬁrmance of the ﬁrst degree
murder conviction because of the lack of evidence of premeditation. I; at 625 (Anderson,
J ., dissenting); A at 629 (Birch, J ., dissenting). Justice Anderson expressed his view as
follows:

In my view, the evidence was insufﬁcient to sustain the conviction for ﬁrst
degree murder because there was no evidence of the |Petitioner’s| planning,
the [Petitioner’s] prior relationship with the victim, the cause or manner of the

victim’s death, or any other evidence from which a rational trier of fact could

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have inferred beyond a reasonable doubt that the crime was premeditated, i. e. ,
committed “after the exercise of reﬂection and judgment.”

There was . . . no evidence that the [Petitioner] procured a weapon in
advance for the purpose of killing the victim, made preparations to conceal the
killing before it was committed, or exhibited a calm or cool demeanor
immediately after the killing. [E]Vidence supporting the factors we have
traditionally relied upon in analyzing premeditation was absent in this case.

I_d. at 625-26 (Anderson, J ., dissenting) (emphasis added) (citations omitted).

Likewise, Justice Birch dissented as to the issue of premeditation, expressing his View
as follows:

I write separately to dissent from the majority’s holding that the
evidence in this case is sufﬁcient to establish premeditation . . . .

In my View, . . . the proof of premeditation is woefully lacking. The proof as
I View it not only fails to show premeditation, but demonstrates instead that the
homicide resulted from impulsive behavior.

There was not even one scintilla of evidence in the record that the
[Petitioner] engaged in any preparation or planning for this crime.

[N]othing, . . . in [the Petitioner’s] conduct reﬂects a calm or reﬂective mental
state—either before or after the murder. If anything, []his conduct suggests
extreme irrationality.

I_d. at 629-31 (Birch, J ., dissenting).

Thus, years before the actual extent of the Petitioner’s mental deﬁciencies became
known through this post-conviction proceeding, the two dissenting justices speciﬁcally
targeted the lack of evidence to prove premeditation. At the evidentiary hearing on the post-
conviction claim, a psychiatrist and neuropsychologist testiﬁed that the Petitioner
experienced a thinking disorder, schizophrenic tendencies, and severe cognitive defects that
impaired his ability to either plan or prepare outside of a structured environment. The State

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did not offer proof to the contrary. Dr. Brown, the psychiatrist, testiﬁed that the Petitioner’s
mental defects interfered with his “executive functioning,” which involves “the ability to
think abstractly and to plan, initiate, sequence, monitor, and stop Complex behavior. It [also]
involves a person’s ability to develop and carry out plans . . . .” n re Conservatorship of
Groves, 109 S.W.3d 317, 337 & n.78 (Tenn. Ct. App. 2003). Dr. Brown further concluded
that, in his assessment, the Petitioner was incapable of premeditating the victim’s murder.
This evidence, while critically important for the defense in the penalty phase of the trial,
would be no less important in the guilt phase of the trial. ‘

In summary, I concur in the majority’s determination that trial counsel’s failure to
adequately investigate the mental health records of the Petitioner warrants a new sentencing
hearing. Because, however, the same lack of preparation precluded the jury from hearing
critical proof at trial, I maintain that the Petitioner also established ineffective assistance of
counsel as to the guilt phase. In my View, there is a reasonable probability that the verdict
may have been different. I would, therefore, vacate the ﬁrst degree murder conviction and
the sentence of death and remand for a new trial.

GARY R. WEBB, JUSTICE_ ‘

