        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                           Assigned on Briefs March 21, 2012

              MARIO PENDERGRASS v. STATE OF TENNESSEE

                 Appeal from the Criminal Court for Davidson County
                        No. 93-C-1345    Seth Norman, Judge


                 No. M2011-00126-CCA-R3-PC - Filed August 17, 2012


In a bench trial, petitioner, Mario Pendergrass, was convicted of two counts of first degree
murder, especially aggravated kidnapping, and especially aggravated robbery. The trial court
sentenced him to an effective sentence of life in prison plus forty-four years. Petitioner filed
a petition for post-conviction relief raising the following issues: (1) whether trial counsel was
ineffective for failing to develop mental health evidence; (2) whether trial counsel denied
petitioner his right to testify at trial; and (3) whether petitioner voluntarily waived his right
to a trial by jury. The post-conviction court denied relief following a full evidentiary hearing.
Finding no error, we affirm the judgment of the post-conviction court.

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

R OGER A. P AGE, J., delivered the opinion of the Court, in which N ORMA M CG EE O GLE and
R OBERT W. W EDEMEYER, JJ., joined.

Paula Ogle Blair, Nashville, Tennessee, for the appellant, Mario Pendergrass.

Robert E. Cooper, Jr., Attorney General and Reporter; Lindsy Paduch Stempel, Assistant
Attorney General; Victor S. Johnson, III, District Attorney General; and Dan Hamm,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                          OPINION

                                            I. Facts

       In the direct appeal, this court summarized the following facts established at trial:

             In April of 1993, Donald Crockett, Sr., a former professional wrestler
       who used the name “Pretty Boy Michael Rose,” was employed as a taxi driver
in Nashville. On the evening of April 19, someone called and requested a taxi,
but instructed the dispatcher not to send number 15, the cab driven by
Crockett. Initially, Crockett suspected that the caller was a previous passenger
who owed him money. Moments later, however, the same person called back
and said, “Don’t send Mike Rose.” Crockett, curious about the identity of the
caller, drove to the dispatch point at a Krystal restaurant at the corner of
Dickerson and Trinity Lane. When he arrived, he observed two men at a
telephone booth, one of whom he recognized as Lorenzo Ensley, and the other
of whom he identified at trial as the defendant.1 Crockett described the
defendant, whom he did not know, as having a shaved head with “a little bitty
ball on the back.” He testified that when he asked Ensley why they did not
want to ride in his cab, Ensley responded, “Well, I didn’t want to get you in no
more trouble.” Crockett, who explained that he interpreted the comment to
mean that illegal drugs were involved, then called the dispatcher and requested
another cab. The victim, Robert Glen Pruitt, was dispatched in his taxi. He
arrived at the Krystal at approximately 10:30 p.m.

        Later that evening, a security device in the victim’s taxi alerted the
other cab drivers of trouble. When activated, the security device shut down all
radio communications other than those from the distressed driver. Crockett
overheard a reference to Stevens Lane and Clarksville Highway and drove to
that location. Neither the victim nor his cab was there at the time of his arrival.
Crockett then drove to a “drug house” on Douglas and inquired as to the
whereabouts of Ensley. When he learned that Ensley had been staying at the
Colony Motel, Crockett drove to the motel. Police officers were already on the
scene and instructed Crockett to leave after he confronted Ensley. The victim’s
cab was located the following morning near Ewing Lane. Later, the victim’s
body was found in a field at Brick Church Lane.

       Crockett acknowledged that he had never seen the defendant prior to
the night in question and had not overheard any conversations between Ensley
and the defendant while at the Krystal restaurant. He maintained that he
warned Ensley not to hurt any of his fellow cab drivers because Ensley
appeared to be “high.” While conceding that he was not “one hundred percent
certain” at the time of his initial identification of the defendant, he testified, “If
there’s a God in heaven, that’s the man.”




1
    Petitioner is referred to as “defendant” in the direct appeal opinion.

                                              -2-
        Bernadette Mitchell often rode in the victim’s cab when she could not
get a ride home from work. On the evening of the victim’s abduction between
10:30 and 11:00 p.m., Ms. Mitchell was at the Krystal on the corner of
Dickerson and Trinity with a friend when the defendant and another man
approached their car and asked for a ride. She recalled that the defendant did
all of the talking and that the other individual stood in the background. When
Ms. Mitchell explained that she would not provide the transportation because
she did not know them, the defendant replied, “I am Mario Pendergrass. Now
you know my name.” At that point, the victim arrived in his taxi and, upon
seeing Ms. Mitchell, joked that because she worked at a Taco Bell, she should
not eat at a Krystal. The defendant and his companion then got into the cab and
left. After seeing news of the murder on the next day’s 5:30 a.m. broadcast,
Ms. Mitchell called the police and told them of her encounter with the
defendant and the victim.

        Detective Clinton Vogel of the Metro Police Department’s murder
squad investigated the crime. During the early morning hours of April 20, the
victim’s taxi was found off of Ewing Lane on a dead-end street hidden behind
a closed business. After speaking with Donald Crockett, Detective Vogel went
to the Colony Motel to talk to Lorenzo Ensley. The detective testified that
Crockett arrived later and identified Ensley. Although the defendant was in the
same hotel room as Ensley, Detective Vogel did not speak directly with him
at that time. There were other occupants in Ensley’s motel room. When asked
about their activities the night before, one of the occupants stated that they had
been watching television in the motel room. The defendant made no response.

        Detective Vogel testified that the body of the victim had a gaping
wound to the left side of his head. The location of the blood indicated that the
victim had been shot in the field where the body was found. The detective also
described a series of lacerations that he observed on the victim’s left index
finger. The victim’s pockets appeared to have been turned inside out and no
money was found on the body. Later, his wallet was found among his personal
belongings. The following day, Detective Vogel returned to the Colony Motel.
The defendant, Ensley, and a few other individuals were there. Ensley directed
Detective Vogel and Detective Ed Moran to two vacant lots in Parkwood
subdivision where they recovered a sawed-off single-shot 12 gauge shotgun.
A single spent shell was in the barrel of the gun.

       Detective Vogel acknowledged that Crockett had initially told police
that he left the Krystal restaurant before the victim arrived. He also admitted

                                       -3-
that of the four men in the room at the Colony Motel, one of whom was the
defendant, Crockett could initially identify only Ensley.

        Tellas Ensley testified that in April of 1993, he lived at the Colony
Motel with his two younger brothers, Lorenzo and Timothy Ensley, and the
defendant. He stated that he used to sell drugs on Dickerson Road and that he
became acquainted with the victim by riding in his cab. According to Tellas
Ensley, he learned of the victim’s disappearance when Crockett came to the
motel and asked if he had heard anything. He testified that the defendant and
Lorenzo Ensley returned to the motel between 9:45 and 11:30 p.m. that
evening. Later, while they were watching a movie, a special news bulletin
announced that a taxi driver had been killed. In response to the news report,
Lorenzo Ensley remarked, “It wasn’t worth it.” The defendant replied that if
he was “going down,” Lorenzo Ensley was going with him. According to
Tellas Ensley, the defendant then explained that he killed the victim because
he did not have enough money for the cab fare, which was $12 to $13. The
defendant then admitted that he had removed the victim from the cab and shot
him in the head. After making the remarks, the defendant left the room for
three to five minutes and then came back with a shotgun and a pistol. Ensley
recalled that the defendant then threatened to kill everyone in the room if
anything was said about the crime. Later, when the police had left the motel,
both the defendant and Lorenzo Ensley asked Tellas Ensley to inform police
that they had been in the room at the time of the murder.

       Don Carman, a TBI agent specializing in forensic firearm identification,
described the shotgun recovered by police as functional and capable of firing
12-gauge shells. He was unable to determine whether the shell recovered by
police was fired by the shotgun. Because the weapon had been left outside, the
likelihood of positive identification was lessened. Agent Carman stated,
however, that both the shell and the wadding discovered next to the body were
consistent with the type of ammunition used by the weapon.

       James Robert Goodman, an officer with the identification section of the
Metro Police Department, investigated the murder scene. While he was
photographing the area, he found shotgun wadding “right next” to the victim.
Officer Goodman testified that he also found human tissue in the area
surrounding the body. In his opinion, the victim had been killed where police
found the body.




                                      -4-
        Steve Stone, who is also an officer with the Metro Police Department
identification section, testified that he investigated the area where the victim’s
taxi cab was located. He stated that the cab was towed to a secure garage
where it was processed inside and out for fingerprints. According to Stone,
latent prints of the defendant were on the driver’s side trunk deck
(fingerprints) and the driver’s side rear quarter panel (a partial palm print).

        James Patterson, an acquaintance of the defendant who was living in the
Colony Motel at the time of the murder, recalled that he was “sitting around
getting high” with Tim and Lamont Ensley when Lorenzo Ensley and the
defendant arrived. Patterson testified that when Lorenzo made a joking remark
to his brother Tim about killing someone, the defendant responded by striking
the television and instructing Lorenzo that he “need[ed] to stop bullshitting.”
According to Patterson, the defendant then told Lorenzo that if he was “going
down,” Lorenzo was going with him. Later, the defendant warned Patterson,
“Don't let nothing we talked about leave the room .”

        Patterson acknowledged that he had omitted important facts when
interviewed by investigators for the state and the defense. He admitted that he
had used cocaine “off and on” for approximately fifteen years and
acknowledged that he had spent the day of the murder smoking marijuana,
drinking beer, and using cocaine. Patterson estimated that he used cocaine
approximately ten times that day and admitted that he engaged in such use two
to three times per week. He testified that he may have used cocaine before
testifying for the state. Patterson denied having used cocaine the morning of
his cross-examination by the defense but conceded that he may have been
“high” the preceding evening. He denied buying drugs from the Ensleys and
maintained that he merely shared drugs with them.

       Larry Flair of the Metro Police Department, the lead detective assigned
to the murder, learned at 2:00 a.m. following the murder that the defendant’s
fingerprints were on the victim’s cab. At approximately 7:00 a.m., he and two
other detectives questioned the defendant at the Colony Motel. The defendant
claimed that “he had been there all night and didn’t know anything about it.”
Afterward, the defendant was arrested and advised of his Miranda rights.
Upon his arrival at the Criminal Justice Center, the defendant was advised of
his rights a second time. Detective Flair testified that the defendant then
waived his rights and admitted his involvement in the abduction of the victim.
Detective Flair recalled that the defendant claimed that he and Lorenzo Ensley
went several places in the victim’s cab and that Ensley left the cab, returned

                                       -5-
with a shotgun, and said, “Just don’t say anything.” The defendant stated that
Ensley robbed the victim, forced him into the trunk, drove to a remote location,
and shot him. At trial, Detective Flair testified that he did not record the
interview and that the defendant agreed to repeat the interview on videotape.
After moving to the interview room and going over the Miranda form,
however, the defendant asked to speak with an attorney. The detective ceased
the interview.

        Detective Terry McElroy investigated the scene where the body was
discovered. He found no money in the victim’s possession. Later on the
morning following the murder, Detective McElroy accompanied Detective
Flair to the Colony Motel. He recalled that the defendant initially denied any
knowledge of or involvement in the murder. Detective McElroy, who
confirmed that the defendant was advised of his Miranda rights first at the
motel and later at the Criminal Justice Center, asserted that the defendant
provided details of the crime. According to McElroy, the defendant maintained
that after he and Lorenzo Ensley got into the victim’s cab, they went to the
residence of Ensley’s relative, where Ensley obtained a sawed-off shotgun.
The defendant acknowledged that they drew the weapon and forced the victim
into the trunk of the cab. The defendant stated that after driving around for a
while, they stopped along Brick Church Lane and removed the victim from the
trunk. According to the defendant, Ensley then walked the victim into a field
and shot him; upon his return, Ensley handed the weapon to the defendant and
instructed him to remove the shell casing. The defendant claimed that he was
unable to do so and they decided to dispose of the weapon with the shell
casing. He stated that they then abandoned the cab and returned to the motel.
Detective McElroy acknowledged that the defendant’s statement was not
recorded and testified that the defendant initially agreed to repeat his statement
on videotape, but changed his mind and requested counsel after being advised
of his Miranda rights a third time. Detective McElroy testified that after the
interview ended he overheard the defendant acknowledge to his mother that
he was present when the victim was killed. He also overheard the defendant
and his mother discussing the disposal of the weapon.

       Three days after the murder, Detective McElroy learned through
another officer that the defendant wanted to speak with him. One and one-half
hours later, a Davidson County Sheriff’s Deputy paged Detective McElroy a
second time at the request of the defendant. When he returned from Rutherford
County that evening, Detective McElroy met with the defendant at the jail. The
defendant signed a specially prepared form acknowledging that he had had no

                                       -6-
contact with the detective since the initial interview and that the second
meeting was made of his own free will and not the result of any threat or
promise. After receiving Miranda warnings, the defendant executed a written
waiver and made a recorded statement. The defendant stated that on the
evening of the murder, he was at the Colony Motel with Lorenzo Ensley and
others when they were told to “vacate the premises [be]cause there were too
many people.” After unsuccessfully attempting to make contact with Lorenzo
Ensley’s brother, he and Ensley walked to a nearby Amoco station to use a pay
telephone. The defendant claimed that he called his mother and that Ensley
used a second pay telephone to call for a cab. At that point, the defendant
informed Ensley that he did not have money for a cab and agreed to Ensley’s
suggestion that they accept the ride and escape without paying. The defendant
claimed that when the cab arrived, Ensley and the driver acted as though they
knew one another. The cab left and when the defendant asked why, Ensley
replied that he knew the cab driver. Later, the defendant saw the same cab
driver at the Krystal and heard the cab driver warn Ensley, “[J]ust don’t kill my
friend.” The defendant told Detective McElroy that the first cab driver then left
and, later, the victim arrived.

        The defendant also informed Detective McElroy that he and Ensley
initially went to the home of Ensley’s aunt. When they left, the defendant
noticed a gun slide out of Ensley’s sleeve. The defendant stated that he
inquired about the weapon and Ensley instructed him to be quiet. The
defendant claimed that when Ensley held the gun to the victim’s head, he
begged Ensley to let the victim go. The defendant contended that Ensley
ordered the victim to stop the cab and, after assuring the defendant that
“everything[ ][was] cool,” put the victim in the trunk. The defendant asserted
that he continued to beg Ensley not to kill the victim and that Ensley assured
him that he would not. He stated that Ensley eventually stopped the cab in a
dark area, got the victim out of the trunk, and pointed the gun at him. The
defendant told Detective McElroy that he heard a gunshot and then saw the
victim lying on the ground with gravel on his face. He said that Ensley
returned to the cab and instructed him to wipe his fingerprints “off of
everything.” According to the defendant, Ensley told him to remove the spent
shell from the shotgun. When he was unable to do so, Ensley stopped the cab
and directed him to get out and hide the gun. Ensley then drove to a remote
location and abandoned the car. The defendant maintained that he had seen
Ensley with the gun several days before the shooting. He also implicated
Ensley in the robberies of a local convenience store and motel, as well as in the
homicide of another taxi driver.

                                       -7-
State v. Mario Pendergrass, No. M1999-02532-CCA-R3-CD, 2002 WL 517133, at *1-5
(Tenn. Crim. App. April 5, 2002), perm. app. denied (Tenn. Oct. 7, 2002).

                                         II. Procedural History

       After a bench trial, petitioner was convicted of premeditated murder, felony murder,
especially aggravated kidnapping, and especially aggravated robbery. The trial court merged
the murder convictions and imposed a life sentence for murder and twenty-two years each
for especially aggravated kidnapping and especially aggravated robbery. The sentences for
especially aggravated kidnapping and especially aggravated robbery were consecutive to
each other and consecutive to the life sentence for an effective sentence of life plus forty-four
years. On direct appeal, this court affirmed the convictions and sentences. Id.

       Petitioner filed a pro se petition for post-conviction relief on April 16, 2003. The trial
court summarily dismissed the petition. On appeal, this court reversed the trial court’s
dismissal of the petition and remanded the case for appointment of counsel. Mario
Pendergrass v. State, No. M2003-02144-CCA-R3-PC, 2005 WL 176494, at *3 (Tenn. Crim.
App. Jan. 25, 2005). Petitioner, with the assistance of counsel, filed an amended petition.
After a full hearing, the post-conviction court denied post-conviction relief. This appeal
follows.
.
                         III. Facts from the Post-Conviction Hearing

         The Davidson County Criminal Court held an evidentiary hearing on September 27,
2010. The hearing began with petitioner’s motion for the judge to recuse himself on the
basis that petitioner believed him to be biased because the judge heard the facts established
at trial and conducted the sentencing hearing. Upon denying petitioner’s motion to recuse,
the court heard the following testimony of trial counsel and petitioner:

       Attorney One,2 now a professor of law at the New England School of Law in Boston,
Massachusetts, testified that he was employed by the Davidson County Public Defender’s
Office from May, 1990, until May, 1996. During that time, Attorney One’s law practice was
exclusively criminal in nature. At the time Attorney One began representing petitioner, he

        2
            At trial, attorneys from the Davidson County District Public Defender’s Office represented
petitioner. To avoid confusion, this court will refer to petitioner’s original lead attorney as “Attorney One.”
“Attorney Two” shall refer to the attorney who, although Attorney One’s supervisor, assisted and supported
Attorney One in representing petitioner before assuming a more central role in the case due to Attorney
One’s relocation to Massachusetts. Attorney Three shall refer to an assistant district public defender who
assisted Attorneys One and Two. At the time of the hearing on the post-conviction petition, Attorney Two
was deceased.

                                                     -8-
had been practicing law for approximately three years. He was assigned as principal counsel,
but had support from a senior assistant district public defender (hereinafter “Attorney Two”)
and various staff members. Attorney One represented petitioner through his trial in 1998,
but when he physically left the public defender’s office in 1996, Attorney Two assumed the
role of lead counsel.

        During 1994 or 1995, the State notified Attorney One that it would seek the death
penalty in petitioner’s case. At that time, the supreme court rule regarding qualification of
capital case lawyers did not exist; however, Attorney One had tried approximately fifteen to
twenty murder cases and had been involved in an equal amount that were resolved without
a trial. Attorney One’s particular position of Senior Assistant Public Defender/Criminal
Court Floating Lawyer involved handling cases in different divisions that were either
particularly long or relatively complex.

        During his representation of petitioner, Attorney One met with petitioner more than
one hundred times, in addition to telephone calls and letters. After petitioner was moved to
Riverbend Correctional Facility, Attorneys One and Two met with petitioner primarily on the
weekends, at least once per month. After Attorney One left the district public defender’s
office, petitioner continued to call him collect, and Attorney One traveled back to attend pre-
trial hearings and to meet with petitioner.

        Petitioner’s attorneys sought the assistance of mental health experts in preparing for
the trial and the penalty phase of the case. The State withdrew its notice of intent to seek the
death penalty in July 1998, but until that time the defense attorneys prepared for the case as
though it would be a death penalty case. The defense sought funds ex parte for mental health
experts and attempted to develop mental health evidence. Attorney One recalled that
petitioner was evaluated by Dr. Tom Neilson. Dr. Michael Batari in Georgia reviewed
petitioner’s records, and Dr. Harold Burstajyn, a psychiatrist at Harvard Medical School,
assisted in examining and developing issues. Vanderbilt Hospital conducted a positron
emission tomography (“PET”) scan to look for disease of or injury to the brain. Although
Dr. Neilson diagnosed petitioner as having Intermittent Explosive Disorder in 1995, the
doctor did not believe that the diagnosed disorder would have supported an insanity defense.
The doctor’s concern with petitioner’s disorder was that it would cause him to decompensate
under the pressures of trial and would thus render him incompetent to stand trial either
immediately before or during the trial.

       Attorney One further testified that in July of 1998, petitioner’s attorneys reached an
agreement with State for the State to withdraw its notice of intent to seek the death penalty
in exchange for petitioner’s waiver of his right to a jury trial. Attorney One believed that to
be a positive outcome, as it removed the death penalty from consideration. The result was

                                              -9-
also beneficial in that petitioner would not be subject to the stress of a jury trial. At the time
petitioner executed the waiver of his right to a jury trial, Attorney One believed that he was
competent.

        However, a short time after petitioner executed the waiver, his attorneys grew
concerned about his competence. Consistent with the information counsel received from the
various medical professionals, petitioner developed fears of being manipulated and had
difficulty trusting people. In Attorney One’s opinion, it was not unusual to have clients who
were distrustful of the criminal justice system in general and the judges and attorneys
specifically. Petitioner also became delusional. At one point, petitioner indicated that he no
longer wanted the district public defender’s office to represent him. Attorney One and
members of his staff discussed the issue with petitioner. Each attorney met individually with
petitioner and collectively they forwarded their observations via e-mail to Dr. Burstajyn at
Harvard. Dr. Burstajyn opined that petitioner’s reaction in becoming mildly delusional was
not an uncommon response to a sudden removal of extreme pressure, in this case, removal
of the possibility of the death penalty. Dr. Burstajyn did not believe that petitioner’s mental
condition raised a question about competence. Petitioner became more calm after a few days.

        During this delusional period, petitioner reportedly suffered from a delusion called the
“Masonic Conspiracy.” Pursuant to this conspiracy theory, petitioner asserted to counsel’s
staff that he believed himself to be Jesus Christ, the Son of God. Attorney One and his staff
communicated about whether petitioner would be competent enough to decide whether to
testify and to actually testify if he so chose. Attorney One’s view of “competency” embraced
a range of factors, including being able to communicate effectively with counsel, to testify
coherently if he chose to do so, to understand and appreciate the significance of the
proceedings, and to make rational judgments about decisions during the course of the
proceedings. Attorney One and his staff agreed that the touchstone for going forward was
whether petitioner could assist in his own defense. Attorney One noted that, at that point in
the process, they did not require much assistance from petitioner. Attorney One and his team
did not seek further evaluation of petitioner because the recent delusions would have no
affect on petitioner’s sanity at the time of the offense and further e-mail correspondence with
Dr. Burstajyn at Harvard yielded the professional opinion that his delusion was consistent
with the sudden removal of extreme stress. Dr. Burstajyn did not believe that the delusions
gave rise to a competency issue. Had Dr. Burstajyn’s conclusions indicated otherwise,
Attorney One would have sought an additional evaluation. Petitioner’s deterioration and
delusions about the Masonic Conspiracy were very intense immediately following execution
of the waiver of his right to trial by jury. Attorney One did not observe the symptoms a few
weeks later as they began to prepare for trial. As time for trial neared, petitioner no longer
expressed a desire for his attorneys to withdraw from the case. Nothing in petitioner’s



                                              -10-
behavior at trial led trial counsel to have concerns regarding petitioner’s competence or
mental state.

       In addition to developing mental health evidence, Attorney One and his staff
thoroughly investigated the events of petitioner’s life. He learned of petitioner’s history in
foster care, his juvenile mental health history, and his history of inpatient and outpatient
hospitalization for mental health issues. Attorney One studied petitioner’s educational
history, including early intelligence testing. He maintained a trial notebook with tabbed
sections for each prospective guilt phase witness. The sections contained statements received
from the State and interviews Attorney One or his staff conducted.

        During pre-trial preparations, petitioner participated in his defense. During the course
of the proceedings, the attorney-client relationship was effective. Attorney One attributed
the occasional conflict as being consistent with petitioner’s mental state and the pressures of
being held in a maximum security facility awaiting trial and previously facing the death
penalty. Attorney One did not recall whether he litigated petitioner’s alleged illegal arrest
and seizure as a pre-trial motion. If he did not, he did not see a basis for such a challenge.
Law enforcement did not seize any incriminating physical evidence as a result of petitioner’s
arrest. The most incriminating evidence against petitioner were his statements. Attorney
One fully litigated the admissibility of petitioner’s statements by pre-trial motion in the trial
court and by interlocutory appeal to this court. He also litigated a Brady issue in an attempt
to discover the exact terms of the State’s agreement with petitioner’s co-defendant.

       In preparing for trial, Attorney One interviewed Tellas Ensley, a witness for the State.
Attorney One conducted the interview and two other staff members were present. The
interview was tape-recorded and Attorney One secured a transcript of the interview. The
State offered the witness during its case-in-chief. On cross-examination, the witness claimed
that he was not the person on the tape. Attorney One attempted to impeach the witness’s
testimony with the tape; however, because no witnesses to the interview were available to
authenticate the recording, the court disallowed introduction of the tape. The court permitted
Attorney One to use the transcript to impeach the witness.

       Attorney One advised petitioner of his right to testify on his own behalf. Attorney
One and his staff spent considerable time with petitioner to develop his testimony. Attorney
One felt that petitioner was prepared if he had chosen to exercise his right to testify.
Petitioner made the informed decision not to testify. Attorney One did not recall whether he
advised petitioner not to testify, but was certain that petitioner’s competency was not a factor
in making the decision.




                                              -11-
       Petitioner testified at the evidentiary hearing that he had regular contact with trial
counsel and members of the staff. He recalled seeing a doctor early in the legal process and
receiving a prescription for Depakote. Petitioner stopped taking the medication a month later
because he did not like the side effects. The medication made petitioner experience “highs
and lows.” Petitioner maintained that no one informed him that he had been diagnosed with
Intermittent Explosive Disorder.

        Petitioner did not trust Attorney Two. He would refuse visits with Attorney Two
because of his mistrust. Petitioner’s mistrust was based on Attorney Two allegedly sending
other attorneys to meet with petitioner. One such attorney allegedly gave petitioner a credit
card from Attorney Two and told him to pick out anything he wanted from Eastbay. In
exchange, the attorney asked petitioner to sign a waiver stating that he would accept a life
sentence. The attorney supposedly told petitioner that Attorney Two sent him to speak with
petitioner because petitioner would identify better with said attorney because they were both
African-American. After that development, petitioner declined visits with Attorney Two
until petitioner met one of the female attorneys (hereinafter “Attorney Three”) from the
district public defender’s office.

        Petitioner was not concerned that he faced a possible death sentence. He believed his
attorneys were more concerned about it than he was, perhaps because they would feel guilty
if he were sentenced to death. For that reason, petitioner felt that his attorneys were more
inclined to encourage him to accept an agreement rather than to fight for his defense. During
his first meeting with Attorney One, petitioner stated that he would not accept a plea and that
he wanted to “fight adamantly” to defend himself.

        When Attorney Two presented petitioner with the waiver of his right to a jury trial,
petitioner recalled that Attorney Two told him that a judge would look at the case differently
than a jury would. Petitioner stated he just wanted to proceed to trial. Petitioner also stated
he wanted to take the stand and ask questions of the judge. Although Attorney Two allegedly
responded that petitioner would be able to do so, he never had the opportunity.

        Petitioner further testified that at the time he executed the waiver, he told both of his
attorneys that he wanted to take the stand and question the judge about the waiver. He
wanted to ask whether the judge would consider the polygraph that petitioner completed.
Petitioner knew that the judge would have access to the entire police report and wanted to
ask the judge if, after reading the contents, he could remain fair and neutral. Petitioner
wanted to confirm that he would be able to testify and speak on his own behalf, as he had
been reprimanded for speaking out in court on prior occasions. Petitioner also sought
clarification from the judge about whether he could be convicted of both first-degree murder
and felony murder. He further wanted to confirm the ranges of punishment for the offenses

                                              -12-
with the judge. Petitioner did not wish to sign the waiver until he questioned the judge.
Attorney Two informed petitioner that there was a deadline by which he must be sign the
waiver and return it to his attorneys. Petitioner was adamant that until he took the stand and
questioned the judge, he did not want the waiver submitted. His position was that his signing
the waiver did not authorize his attorneys to submit it. He believed that his agreement with
his attorneys was that they would not move forward with submitting the waiver until he had
the opportunity to question the judge and that if he was not permitted to take the stand and
question the judge about the waiver, he would be able to revoke it. His attorneys later
informed him that he would not be allowed to question the judge. Petitioner stated at the
evidentiary hearing that he would rather have faced the death penalty than for his life to be
worthless.

       Petitioner testified he was informed that he had a right to testify on his own behalf.
He told Attorney Two that he wanted to testify, and he prepared for his testimony. Attorneys
Two and Three and another individual from the district public defender’s office met with
petitioner to prepare his testimony. During the trial, petitioner reminded Attorney Three that
the defense team had told him that he could take the stand. She responded by telling him to
calm down and be patient. From that point forward, petitioner did not trust his attorneys.
He felt that he was being coerced and that he had no input into the direction the attorneys
were taking the case. If petitioner had testified, he would have maintained his innocence to
the court. He also would have allegedly rebutted some of the testimony of the State’s
witnesses.

        At the post-conviction hearing, petitioner stated that one of his attorneys should have
interviewed a juvenile detention officer regarding statements made by his co-defendant
indicating that the co-defendant had committed the murders. He was unaware of whether his
attorneys discovered the officer’s identity and whether anyone interviewed the officer. One
of his attorneys told petitioner that the testimony of another witness, the co-defendant’s
brother, would have been beneficial to highlight the discrepancy in Steve Tellas’s 3 testimony.
Petitioner felt that someone should have interviewed his co-defendant’s aunt and her
husband, as his co-defendant had asserted that the murder weapon belonged to the husband
of the co-defendant’s aunt. The testimony would have refuted the State’s contention that the
gun belonged to petitioner. Petitioner had not spoken with any of the witnesses and did not
know what their testimony would have been. The only information he had regarding their
potential testimony came from his attorneys.




       3
           Attorney One testified about the witness Tellas Ensley. Presumably, Tellas Ensley and Steve
Tellas are the same individual in light of the context.

                                                -13-
        Petitioner believed his attorneys erred in failing to challenge the testimony of a
witness. The witness testified that petitioner hid the guns after the murders. The witness then
testified that he showed the police where the guns were hidden. Petitioner maintains that
counsel did not challenge the contradictory statements made by the witness. Petitioner
observed that his attorneys became overly relaxed after the death penalty was removed from
consideration and asserted that they should have advanced a more effective defense.

      Petitioner complains that his attorneys never informed him of the maximum and
minimum punishments for the offenses. Once the death penalty was no longer a
consideration, they did not inform petitioner of the sentencing possibilities.

     The post-conviction court issued a thorough order denying post-conviction relief on
December 7, 2010.

                                         IV. Analysis

        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 (2006). 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)
(2006); Lane v. State, 316 S.W.3d 555, 562 (Tenn. 2010) (citing Grindstaff v. State, 297
S.W.3d 208, 216 (Tenn. 2009)). “‘Evidence is clear and convincing when there is no serious
or substantial doubt about the correctness of the conclusions drawn from the evidence.’”
Lane, 316 S.W.3d at 562 (quoting Grindstaff, 297 S.W.3d at 216).

       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)). Questions regarding the credibility of witnesses are matters
entrusted to the trial judge as the trier of fact. Dellinger, 279 S.W.3d at 292 (citing State v.
Odom, 928 S.W.2d 18, 23 (Tenn. 1996)). The post-conviction court’s findings of fact carry
the weight of a jury verdict and are conclusive on appeal unless the preponderance of the
evidence is otherwise. Rigger v. State, 341 S.W.3d 299, 307 (Tenn. Crim. App. 2010) (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 correct-
ness on appeal. Rigger, 341 S.W.3d at 307 (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. Dellinger, 279
S.W.3d at 294 (citing Finch v. State, 226 S.W.3d 307, 315 (Tenn. 2007)).



                                              -14-
        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. 2004) (citing Baxter v. Rose, 523 S.W.2d 930 (Tenn.1975)). The
constitutional right to counsel attaches when adversarial judicial proceedings are initiated
against the defendant. State v. Mitchell, 593 S.W.2d 280, 286 (Tenn. 1980). “Initiation” is
construed as issuance of an arrest warrant, the time of the preliminary hearing in cases where
an arrest warrant is not first issued, or by indictment or presentment issued by a grand jury.
Id. at 286.

       To prevail on his claim of ineffective assistance of counsel, petitioner must
demonstrate both that his lawyer’s performance was deficient and that the deficiency
prejudiced the defense. Finch, 226 S.W.3d at 315; Vaughn v. State, 202 S.W.3d 106, 116
(Tenn. 2006) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984); Baxter, 523
S.W.2d at 936). 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 Strickland, 466 U.S. at
688). As our supreme court has previously 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.’

Baxter, 523 S.W.2d at 934-35 (quoting Beasley v. United States, 491 F.2d 687, 696 (6th Cir.
1974)). 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 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); see
Finch, 226 S.W.3d at 316.

        To establish that petitioner suffered prejudice as a result of counsel’s deficient
performance, petitioner “‘must establish a reasonable probability that but for counsel’s errors
the result of the proceeding would have been different.’” Finch, 226 S.W.3d at 316 (quoting
Vaughn, 202 S.W.3d at 116). “A ‘reasonable probability is a probability sufficient to
undermine confidence in the outcome.’” Vaughn, 202 S.W.3d at 116 (quoting Strickland, 466
U.S. at 694); see Finch, 226 S.W.3d at 316. As such, petitioner must establish that his

                                             -15-
attorney’s deficient performance was of such magnitude that he was deprived of a fair trial
and the reliability of the outcome was called into question. Vaughn, 202 S.W.3d at 116
(citing Strickland, 466 U.S. at 694; State v. Burns, 6 S.W.3d 453, 463 (Tenn. 1999)).

        Petitioner must establish both deficient performance and prejudice therefrom to be
entitled to post-conviction relief. Vaughn, 202 S.W.3d at 116; Howell, 185 S.W.3d at 326.
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).

        In his petition for relief, petitioner first asserts that he was incompetent to stand trial
and incompetent to waive his right to a trial by jury. He claims that his attorneys were
ineffective in failing to obtain an additional mental health evaluation, in failing to file a
motion to have him declared incompetent, and in failing to move that the jury trial waiver be
set aside on this basis. Because petitioner’s claim stems from his competency at or around
the time he executed the waiver of a jury trial, evaluation of this issue necessarily involves
an analysis of his attorneys’ actions in preparing for trial (pre-waiver) and performance after
he signed the waiver (post-waiver).

       As part of his trial preparation, Attorney One sought assistance in developing mental
health evidence through four separate sources. He secured a personal mental health
evaluation for petitioner. Attorney One retained two additional experts to review petitioner’s
records and the mental health evaluation. One of the experts consulted with counsel
regularly regarding petitioner’s behavior. Attorney One also obtained a “PET” scan for
petitioner at Vanderbilt Hospital. The testimony developed at the evidentiary hearing
established that, through the mental health evaluations of petitioner, Attorney One learned
that petitioner suffered from Intermittent Explosive Disorder. He testified that while none
of the evaluations supported an insanity defense, the evidence would have been essential
during the penalty phase of the capital trial. Petitioner failed to present evidence to the
contrary at the evidentiary hearing.

        The post-conviction court found that Attorney One’s representation was not deficient
in this respect. We agree. Petitioner failed to present clear and convincing evidence of his
pre-waiver insanity or incompetence, and after de novo review of the trial court’s conclusion
of law, we credit the trial court’s finding that counsel performed effectively. Because
petitioner has failed to establish the first prong of an ineffective assistance of counsel claim
with respect to this issue, that of deficient performance, we are not compelled to review
whether petitioner suffered prejudice.

       Petitioner further avers that he was incompetent to execute the waiver of his right to
trial by jury. The post-conviction court heard testimony that, in the days following

                                               -16-
petitioner’s signing of the waiver, he experienced mildly delusional behaviors such as a fear
of being manipulated and general mistrust of his attorneys and the criminal justice system.
Further evidence demonstrated that petitioner experienced delusional behavior in the period
immediately following his execution of the waiver of his right to a jury trial. Attorney One
testified he was aware of the delusions and was concerned about petitioner’s competence to
go forward.

        Attorney One contacted his retained expert, a psychiatrist at Harvard University, and
described petitioner’s delusions and odd behavior. The doctor explained that petitioner’s
behavior was consistent with the sudden removal of a stressor, i.e., an impending capital
murder trial that could result in a death sentence. The doctor did not believe that the
delusions gave rise to a competency issue. Attorney One also testified that petitioner
experienced conspiracy theories and more elaborate delusions, in which he believed himself
to be Jesus Christ. Petitioner’s behavior led Attorney One to again consult with the Harvard
psychiatrist, who stated that the manner of petitioner’s behavior was a very common reaction
among neuropsychiatrically vulnerable individuals upon the removal of extreme stress and
did not rise to the level of incompetence. Petitioner’s psychiatric symptoms dissipated after
a few days, after which petitioner did not suffer from further delusions. Attorney One stated
that petitioner displayed no signs of paranoia or delusions during the bench trial.

       Relying on the expert’s opinion, Attorney One did not seek a post-waiver mental
health evaluation. A 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. Attorney One thoroughly investigated the implications of petitioner’s delusional
behavior as it pertained to a possible mental health issue. When petitioner became delusional,
Attorney One sought the advice of their expert, who did not recommend further testing. We
decline to hold counsel ineffective for following the advice of their expert. See Dennis Wade
Suttles v. State, No. E2008-02146-CCA-R3-PD, 2011 WL 1642640, at *26 (Tenn. Crim.
App. April 29, 2011) (holding that when an expert advises against further testing, the court
will not deem counsel ineffective for failing to pursue the matter further), perm. app. denied
(Tenn. Nov. 16, 2011).

        Although petitioner testified on his own behalf at the evidentiary hearing, he failed
to present medical or mental health evidence to support the proposition that petitioner was
incompetent either to stand trial or to waive his right to a trial by jury. In the absence of such
evidence, we hold that the petitioner has not established by clear and convincing evidence
that his trial attorneys were ineffective in failing to obtain a second, post-waiver, mental
health evaluation. We decline to review this issue for prejudice to petitioner, having found
no deficiencies in his trial counsels’ actions in this regard.



                                               -17-
       Couched in different terms, petitioner again argues that his waiver of his right to a jury
trial was involuntary, not due to incompetence, but because the trial court denied him due
process in failing to determine that the waiver was voluntary.

       Tennessee Code Annotated section 40-30-106(h) provides:

       A ground for relief is previously determined if a court of competent
       jurisdiction has ruled on the merits after a full and fair hearing. A full and fair
       hearing has occurred where the petitioner is afforded the opportunity to call
       witnesses and otherwise present evidence, regardless of whether the petitioner
       actually introduced any evidence.

See Thomas v. State, 298 S.W.3d 610, 614 (Tenn. Crim. App. 2009).

        Petitioner litigated this claim in his motion for new trial, and the trial court found that
petitioner voluntarily waived his right to a trial by jury. On direct appeal, this court reviewed
petitioner’s claim, again finding petitioner’s waiver to be valid. Mario Pendergrass, 2002
WL 517133, at *17. This issue has clearly been determined by two courts of competent
jurisdiction after a full and fair hearing. As such, this issue is foreclosed as being previously
determined.

        Petitioner next advances the argument that his attorneys were ineffective in denying
him the right to testify on his own behalf. Attorney One and petitioner offered conflicting
testimony on the issue. Attorney One testified that he advised petitioner of his right to testify
on his own behalf, and he and members of the defense team spent time with petitioner
developing his testimony, should he have decided to testify at trial. Attorney One stated that
petitioner made an informed decision not to testify. Petitioner stated that he persisted in his
request to his attorneys to testify at trial, and at no time did he choose to waive that right. He
testified that at trial he reminded his attorneys of his desire to testify but they would not
permit him to do so. Petitioner made an offer of proof at the evidentiary hearing regarding
what his trial testimony would have been if he had been permitted to testify at trial.
Petitioner would have asserted his innocence and would have contradicted the testimony of
some of the State’s witnesses.

        The post-conviction court heard the conflicting testimony and ruled, “The petitioner
has three prior felony convictions . . . . [Attorney One], on the other hand, is a well-respected
attorney . . . . Thus, the court is inclined to resolve testimonial conflicts in favor of counsel.”
The post-conviction court made a determination of credibility, which we will not disturb on
appeal. Dellinger, 279 S.W.3d at 282. The post-conviction court resolved the conflicts in
the testimony in favor of trial counsel. “[T]his court gives great weight to the determinations

                                               -18-
made by the trial court concerning the credibility of the witnesses; and this court will not
interfere with the trial court’s findings of fact in this regard unless the evidence contained
in the record clearly preponderates against these findings.” State v. Parker, 932 S.W.2d 935,
956 (Tenn. Crim. App. 1996). The evidence does not preponderate against the post-
conviction court’s findings of fact regarding the credibility of witnesses. Accordingly, we
find no deficiencies in his attorneys’ performance in this regard. We need not reach the
question of whether petitioner suffered prejudice as a result.

                                      V. Conclusion

       After thorough review of the record, we discern no deficiencies in trial counsels’
representation of petitioner. We are precluded from reviewing petitioner’s claim that his
waiver of his right to a trial by jury was involuntary, inasmuch as the issue has been
previously determined. Accordingly, we affirm the judgment of the post-conviction court.




                                                    _________________________________
                                                    ROGER A. PAGE, JUDGE




                                             -19-
