         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                  November 20, 2002 Session

         DONALD RAY MIDDLEBROOKS v. STATE OF TENNESSEE

                 Direct Appeal from the Criminal Court for Davidson County
                          No. 87-F-1682    Walter C. Kurtz, Judge



                     No. M2001-01865-CCA-R3-PD - Filed January 9, 2003


The petitioner has been sentenced to death and now appeals as of right the judgment of the Davidson
County Criminal Court denying his petition for post-conviction relief. The petitioner argues: (1) the
post-conviction court erred in denying his ex parte request for funds for expert services; (2) the post-
conviction court erred in denying his request for a continuance; and (3) he did not receive effective
assistance of counsel during his resentencing hearing. We affirm the judgment of the post-
conviction court.

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

JOE G. RILEY, J., delivered the opinion of the court, in which DAVID H. WELLES and ALAN E.
GLENN, JJ., joined.

Hershell D. Koger, Pulaski, Tennessee (at hearing and on appeal), and John E. Herbison, Nashville,
Tennessee (at hearing), for the appellant, Donald Ray Middlebrooks.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Jennifer
L. Smith, Assistant Attorney General; Victor S. (Torry) Johnson, III, District Attorney General; and
John C. Zimmerman and Roger D. Moore, Assistant District Attorneys General, for the appellee,
State of Tennessee.


                                              OPINION

        The petitioner was convicted of the felony murder of fourteen-year-old Kerrick Majors and
was sentenced to death. The Tennessee Supreme Court affirmed the conviction, but remanded the
case for resentencing because one of the aggravating circumstances used to impose the death
penalty, the felony murder aggravating circumstance, was unconstitutional as applied to the
petitioner’s conviction. See State v. Middlebrooks, 840 S.W.2d 317, 346 (Tenn. 1992), cert.
dismissed, 510 U.S. 124, 114 S. Ct. 651, 126 L. Ed. 2d 555 (1993). At resentencing, the jury again
imposed the death penalty and the Tennessee Supreme Court affirmed the sentence. See State v.
Middlebrooks, 995 S.W.2d 550 (Tenn. 1999). The petitioner filed a timely petition for post-
conviction relief, alleging his counsel at resentencing was ineffective. Following a hearing, the
Davidson County Criminal Court denied the petition. This appeal followed.


                                        BACKGROUND

       The following facts presented at the petitioner’s resentencing hearing are set out in the
opinion of the Tennessee Supreme Court which affirmed the petitioner’s death sentence:

                     On the day of the murder, April 26, 1987, Donald Ray
              Middlebrooks, a twenty-four-year-old white male, his wife, Tammy
              Middlebrooks, a seventeen-year-old white female, and their friend
              Roger Brewington, a sixteen-year-old white male, had set up a
              make-shift flea market in East Nashville. When Kerrick Majors, the
              fourteen-year-old black male victim, and four of his friends walked
              over and began looking at the items on the table, Tammy
              Middlebrooks yelled “Hey, ya’ll niggers leave our stuff alone.”

                       Donald Middlebrooks and Brewington chased after Majors
               and the other boys. Shannon Stewart testified that as he fled from the
               scene, he saw Brewington grab Majors and drag him toward the
               table, where Middlebrooks struck Majors in the face and knocked
               him down. Stewart heard Middlebrooks order Majors to “shut up
               nigger.” The boys who made it to safety told Majors’ mother what
               had happened. Majors’ mother called the police and also searched
               for her son. The next day Majors’ naked body was found lying face
               up in a dry creek bed under a foam mattress in the woods near the
               area where Majors had been abducted.

                       Bruises, scrapes, abrasions, and burns covered Major’s body.
               A woven belt was strapped around his left wrist. A large laceration
               was sliced across his right wrist. Two large lacerations made by a
               sharp instrument formed an “X” across his chest. A bloody and
               swollen gash was above his left eye. His nose was bloody, red, badly
               burned, and had pieces of skin missing. His lips were swollen and
               lacerated, and the inside of his mouth was bloody and lacerated. His
               testicles were badly swollen, and his legs were covered in blood
               down to his feet. There was urine on different parts of his body and
               on a rag tied in a tight knot around his neck that had been used as a
               gag in his mouth. A bloody stick lay next to his head. Finally, there
               were two deep stab wounds in his chest a couple of inches apart.

                      The autopsy indicated that the cause of death was a stab
               wound to the chest and that the murder weapon had been plunged to
               a depth of 3.3 inches. The “X” carved into Majors’ chest was

                                                -2-
inflicted before the stab wounds, and at least one of the stab wounds
was made prior to his death. Majors was alive and conscious
throughout the infliction of the injuries and wounds. Majors lived a
minimum of five to six minutes and a maximum of thirty minutes
from the time of the stab wounds. He also would have been
conscious part of the time while bleeding to death after being
stabbed.

        Two days after the murder, Brewington voluntarily notified
the police that Donald Middlebrooks and Tammy Middlebrooks were
involved in the murder. He showed the officers a bloodstained knife
with a brass knuckle handle that had been used on Majors.
Brewington also told the officers where to find Middlebrooks and his
wife.

        After being arrested, Middlebrooks gave a video-taped
confession to the police in which he admitted his own involvement
but described Brewington as the leader. According to Middlebrooks,
after dragging Majors into the woods, Brewington tied Majors’ hands
and then slapped him, beat him with brass knuckles, urinated in his
mouth, and made him swallow. Middlebrooks said that Brewington
also beat Majors’ testicles, threatened to cut “it” open, beat his mouth
and tongue with a stick, and stuck a stick in Majors’ anus. Whenever
Majors resisted or screamed, Brewington continued to beat and slap
him. Brewington told Majors he was taking him “back to the days of
Roots.” Brewington “dropped” the knife repeatedly on top of
Majors, gagged him, and slashed his wrist. Middlebrooks stated that
Tammy Middlebrooks also slapped Majors and burned his nose with
a cigarette lighter.

        Middlebrooks said that Majors was crying and begging them
to stop. When Majors pleaded that all he wanted to do was to “go to
school and get an education,” Brewington replied “F--- you, nigger.”
Middlebrooks also said that Majors’ cries were getting on his nerves
so he asked Brewington to stop. According to Middlebrooks,
Brewington then kissed Majors on the forehead and told him that it
was “the kiss of death.”

        In the video-taped confession, Middlebrooks admitted
stabbing Majors once and striking him across his legs with a switch.
Middlebrooks explained that both he and Brewington stabbed Majors
once. In a prior statement, however, Middlebrooks claimed to have
inflicted both stab wounds. He also claimed he did not stop the
torture because he was afraid of Brewington and is “scared to fight.”


                                  -3-
At another point, Middlebrooks contended that he stabbed Majors to
prove he was “cooler” than Brewington.

        According to the State’s proof, fourteen-year-old Majors was
small for his age. He was described as a good student who loved
school. He was not a violent person, nor did he carry a weapon.
Since his murder, his mother’s health has deteriorated. She has been
on medication and will not leave the house except for doctor
appointments. She has had a nervous breakdown, suffers from panic
attacks, and has not been able to sleep at night since the murder.
Majors’ older brother blames himself for Majors’ death and now
suffers from mood swings.

         Shannon Stewart testified that he had spoken with
Middlebrooks the morning of the murder. Middlebrooks had told
Stewart that he was a member of the KKK, that he “hated niggers,”
and that he punched a black man just for saying hello. Stewart also
testified that he overheard Middlebrooks order Majors to “shut up
nigger.”

        The defense introduced mitigation evidence as follows:
Middlebrooks’ cousins, James and Carol Sue Little, and his
half-sister, Sharon Fuchs, testified about Middlebrooks’ childhood.
Middlebrooks grew up in Texas. His father died when he was four.
His mother remarried and had another child, Ms. Fuchs, before she
again divorced. Middlebrooks’ mother either left the children at
night with relatives or else would take them to bars with her.

         According to the proof, Middlebrooks’ mother would often
bring men to the house, and the children sometimes heard or saw
their mother having sex. Ms. Fuchs testified that sometimes these
men would molest her while her mother watched. She further
testified that she, Middlebrooks, and other children in the family
were molested by different family members. For example,
Middlebrooks was often left alone with a male relative who had
sexually abused him, and Middlebrooks’ mother would grab him
between his legs and also watch him use the bathroom. According
to Sharon Fuchs, the small town in which they grew up lacked
counseling services or social service agencies where they could seek
help for sexual abuse. According to her, no one in the family ever
discussed or admitted the family's problems.

       The proof further indicated that Middlebrooks was often
angry and got into trouble. He was sent to a Methodist Home for
Children in Waco for two years. Later, he was twice sent to prison.

                                -4-
Between prison stays, Middlebrooks started to have seizures. On one
occasion he climbed a water tower and threatened to commit suicide.
He was hospitalized more than once at a mental institution.

        A psychologist, Dr. Jeffrey L. Smalldon, performed
neuropsychological and psychological evaluations of Middlebrooks.
From these evaluations, interviews, testing, and prior education and
medical records, Smalldon concluded that Middlebrooks has a severe
borderline personality disorder. Middlebrooks exhibited several
characteristics of the disorder including inconsistent behavior,
instability of mood, a marked identity disturbance, impulsive and
reckless behavior, poor anger control, and recurring suicidal or
self-destructive acts. Smalldon testified that the documents from
other mental health professionals who have evaluated Middlebrooks
indicate that he suffers from substance abuse, psychotic personality
disorder, and schizophrenia. Middlebrooks also suffers a mild degree
of organic brain impairment which causes him to be more impulsive
and less able to delay his responses. Finally, Smalldon testified that
Middlebrooks has also exhibited characteristics of adults who were
sexually abused as children.

       During cross-examination, Dr. Smalldon admitted that
Middlebrooks confessed to a greater involvement in Majors’ death
than he had in the video-taped confession. For instance, Smalldon
disclosed that Middlebrooks admitted to him that it was his idea to
hold Majors for ransom, that he helped tie Majors up, and that he
urinated on Majors. In an attempt to resolve the discrepancies
between the video-taped confession to the police and the confession
made to him in the interview, Smalldon explained that Middlebrooks
is a chronic liar. Dr. Smalldon conceded that Middlebrooks had
never expressed any remorse to him. Smalldon agreed that there
were some indications in the medical records of Middlebrooks’
malingering, but testified that these indications were not inconsistent
with mental illness.

         In rebuttal, the State introduced the testimony of two experts
indicating that Middlebrooks was exaggerating his mental illness
symptoms, that he was competent to stand trial, that he did not have
a defense of insanity, and that he was not committable. One expert
testified that he could not say whether Middlebrooks was mentally ill.
The other expert testified that he made no finding of mental illness
and did not consider a personality disorder to be a mental illness.

       After considering the evidence, the jury concluded that the
aggravating factor set forth in Tenn. Code Ann. § 39-2-203(i)(5), that

                                 -5-
               the murder was “especially heinous, atrocious, or cruel in that it
               involved torture or depravity of mind,” outweighed the evidence of
               mitigating factors. Accordingly, the jury sentenced Middlebrooks to
               death for the murder of Kerrick Majors.

Middlebrooks, 995 S.W.2d at 553-56 (footnotes omitted).


                PROOF PRESENTED AT POST-CONVICTION HEARING

        At the post-conviction hearing, attorney David Stebbins testified he initially worked on the
petitioner’s case while it was before the United States Supreme Court on appeal. When the United
States Supreme Court dismissed the appeal, Stebbins and two of the attorneys who represented the
petitioner during his initial trial, Richard McGee and Lionel Barrett, agreed to represent the
petitioner at resentencing.

        Stebbins stated he was primarily responsible for the investigation and presentation of
mitigation evidence at resentencing. Stebbins said he met often with the petitioner, reviewed the
records from the petitioner’s first trial, collected records and investigated the petitioner’s
background in preparation for resentencing. Stebbins testified they hired a mitigation specialist to
investigate the petitioner’s background.

        Stebbins said the defense team had two theories at resentencing: (1) the petitioner was the
“lesser player” in committing the offense in comparison to co-defendant Roger Brewington; and (2)
the petitioner had “a bizarre childhood with a history of mental illness.” Stebbins testified the
defense team reviewed the transcript of Roger Brewington’s trial and other documents and
interviewed people who knew Brewington. Stebbins stated the only proof presented at resentencing
which supported the theory that Brewington was more active in the offense than the petitioner was
the petitioner’s statements, in which the petitioner indicated he was afraid of Brewington and
participated because Brewington threatened him. Stebbins said the defense team decided to limit
the amount of proof they presented regarding Brewington because they were concerned that if they
“came after Brewington too hard,” the state would present Brewington’s testimony at the hearing.
Stebbins testified they were aware Brewington had given a statement to the police in which he
blamed the petitioner for the offense. In his statement, Brewington said the petitioner told the victim
to remove his clothes, indicated they were going to have to kill the victim, and stabbed the victim
twice.

         Stebbins said he was aware Brewington was larger than the petitioner and appeared to be far
older than his actual age of sixteen at the time of the offense. Stebbins testified he was aware of
information contained in a psychological report on Brewington. The report indicated Brewington
had poor impulse control; unsocialized, aggressive behavior; impoverished moral reasoning; and
was extremely self-centered. Stebbins stated he was unsure whether he reviewed Brewington’s
presentence report but was generally familiar with information contained in the report. Stebbins
testified he was not aware the state submitted in the presentence report that Brewington’s sentence
should be enhanced because he was “a leader in the commission of the offense.” Stebbins stated he

                                                 -6-
had reviewed documents belonging to Brewington, which included racist writings and drawings and
an oath to serve the devil. Stebbins stated he had not seen certain documents relating to
Brewington’s social history, including medical records, court documents concerning his legal
custody, and certain psychological reports.

        Stebbins testified that prior to the testimony of defense expert Dr. Jeffery Smalldon at
resentencing, he was unaware of any evidence indicating the petitioner urinated on the victim.
Stebbins said he recommended hiring Dr. Smalldon because Dr. Smalldon had testified in a number
of capital sentencing hearings and had a reputation for being competent. Stebbins testified he spoke
with Dr. Smalldon a number of times in preparation for the petitioner’s resentencing hearing, and
they had at least four or five lengthy discussions. Stebbins stated he and Dr. Smalldon had detailed
discussions regarding what the petitioner told Dr. Smalldon about the offense, but that Dr. Smalldon
never advised him of the petitioner’s statement that he urinated on the victim. Stebbins testified that
if he had known the petitioner made such a statement, it would have been a factor in deciding
whether to present Dr. Smalldon’s testimony; however, Stebbins could not say it would have
changed their decision to proceed with Dr. Smalldon’s testimony.

        Stebbins said he was unaware of any discrepancy between Dr. Smalldon’s handwritten notes
and his typed summary of those notes prior to Dr. Smalldon’s testimony. Stebbins said Dr.
Smalldon’s recitation of the petitioner’s statements to him concerning the offense did not vary from
the version of the events the petitioner had communicated to Stebbins.

         Stebbins said the defense began its proof with testimony from the petitioner’s relatives
concerning his childhood and personal history. According to Stebbins, that testimony went well.
Stebbins testified he and co-counsel McGee briefly discussed whether they would present Dr.
Smalldon’s testimony and made a joint decision to proceed with the psychologist’s testimony.
Stebbins opined Dr. Smalldon’s testimony “probably put the jury to sleep” and was unsure whether
it carried much weight. Stebbins further stated the expert’s testimony introduced to the jury the
petitioner’s statement that he urinated on the victim, which was harmful.

         Prior to the resentencing hearing, two assistant district attorneys traveled to Ohio to
interview Dr. Smalldon. Their interview was taped. Stebbins stated he was aware of the interview,
but did not attend. According to Stebbins, Dr. Smalldon later debriefed him regarding the interview.
Stebbins sent a letter to co-counsel in which he discussed Dr. Smalldon’s meeting with the
prosecutors, advised them the interview was taped, asked if the defense team should obtain a copy
of the tape, and indicated they should review Dr. Smalldon’s notes regarding the state’s interview
for potential weaknesses in his testimony. Stebbins testified he did not receive a copy of the tape
and was not aware the tape was transcribed. The transcript of the tape revealed that Dr. Smalldon
told the prosecutors the petitioner said he and Brewington urinated on the victim.

       Stebbins testified that, prior to resentencing, the state received a copy of Dr. Smalldon’s
handwritten notes taken during his meetings with the petitioner along with Dr. Smalldon’s summary
of the notes. Stebbins indicated he did not notice a reference in the notes to the petitioner’s
statement that he urinated on the victim.


                                                 -7-
         Another member of the defense team, attorney Lionel Barrett, testified at the post-conviction
hearing that he reviewed Brewington’s criminal court file and discussed the case with Brewington’s
attorney. Barrett opined that the petitioner’s proof at resentencing went well until Dr. Smalldon
testified. According to Barrett, the prosecutor did an excellent job of portraying Dr. Smalldon as
a “hired gun.” Barrett also indicated Dr. Smalldon’s testimony regarding the petitioner’s statement
that he urinated on the victim was harmful, but that it was the cumulative effect of Dr. Smalldon’s
testimony that was detrimental. Barrett opined that he and co-counsel McGee were deficient in not
properly investigating Dr. Smalldon’s qualifications.

         Clinical psychologist Dr. Jay David Woodman testified as a defense expert at the petitioner’s
first trial but not at the resentencing hearing. He testified at the post-conviction hearing that he
interviewed Roger Brewington and reviewed some of Brewington’s medical records, psychological
reports, presentence report, and other records. Dr. Woodman opined that Brewington would have
been more dominant and more inclined to be a leader than the petitioner. Further, Dr. Woodman
testified it was possible Brewington sat back and allowed the petitioner to torture and kill the victim,
and that the petitioner could have committed the offense without the help or encouragement of
Brewington.

        Dr. Woodman stated that prior to resentencing, he was contacted by someone from the
petitioner’s defense team seeking to review his data, which he made available. Dr. Woodman also
said that when he interviewed Brewington in preparation for the post-conviction hearing,
Brewington indicated he was unwilling to cooperate until the petitioner admitted he stabbed the
victim. According to Dr. Woodman, Brewington stated the petitioner stabbed the victim, and the
petitioner was the primary assailant who “did all of what was horrible.”


                          POST-CONVICTION COURT’S FINDINGS

        Following the post-conviction hearing, the post-conviction court entered a detailed, thirty-
page order in which it found, “Trial counsel should have done a much better job in showing the jury
that [the petitioner] was entitled to the statutory mitigating circumstance set forth at T.C.A. § 39-13-
204(j)(6) in that [the petitioner] acted ‘under the substantial domination of another person,’” and,
therefore, violated reasonable standards by failing to properly investigate co-defendant
Brewington’s background. The post-conviction court stated that documents produced at the post-
conviction hearing depicted Brewington as “an aggressive and intelligent individual with a
dominating personality;” counsel was aware of a psychological report on Brewington, but unaware
of Brewington’s presentence report in which the state submitted Brewington was a leader in the
commission of the offense; counsel did not consider presenting expert testimony to compare the
personalities of the petitioner and Brewington; and counsel should have known about additional
information regarding Brewington’s aggressive personality. According to the post-conviction court,
trial counsel’s decision to bypass a strong pursuit of the theory that Brewington was the dominant
actor was not an informed decision.

      Further, the lower court found that during the interview between the prosecutors and Dr.
Smalldon, Dr. Smalldon revealed the petitioner’s statement that he had urinated on the victim, that

                                                  -8-
neither the petitioner nor Dr. Smalldon had shared this information with trial counsel, and that trial
counsel was surprised by this information during Dr. Smalldon’s testimony. The post-conviction
court also found attorney Stebbins spent considerable time interviewing Dr. Smalldon, reasonably
believed he was thoroughly familiar with Dr. Smalldon’s knowledge of the petitioner, and was not
at fault for failing to know about the petitioner’s statement. The lower court held trial counsel did
not violate reasonable standards in presenting Dr. Smalldon’s testimony, and that counsel’s failure
to review the tape of the state’s interview with Dr. Smalldon and Dr. Smalldon’s notes did not
violate reasonable standards. The post-conviction court also found counsel was not at fault for the
state’s effective impeachment of Dr. Smalldon as a “hired gun” nor with inconsistencies between
his written notes and the summary of those notes. Thus, the post-conviction court found no
deficiency by trial counsel with regard to Dr. Smalldon.

        Despite the post-conviction court’s finding that trial counsel’s performance was deficient in
failing to properly investigate information that Brewington was the dominant offender, the lower
court found the petitioner failed to prove there was a reasonable probability the outcome at trial
would have been different but for counsel’s deficiency. According to the post-conviction court, the
“written word fails to convey the senselessness and horror of this crime” in which the twenty-four-
year-old petitioner and two juveniles subjected the fourteen-year-old victim to torture over a period
of several hours before killing him. The lower court stated the petitioner’s confession described the
“horrible details” of the crime. It found the petitioner’s best mitigating evidence, his impoverished
background and his suffering repeated childhood sexual abuse and neglect, were well presented to
the jury through the testimony of family members. It further found that even if evidence of
Brewington’s dominance were added, the impact of this mitigation evidence would never overcome
the torture of the victim, and the outcome at trial would have been no different.

                             I. FUNDS FOR EXPERT SERVICES

        In an ex parte proceeding approximately two months prior to the post-conviction relief
hearing, the petitioner moved the post-conviction court for funds to hire a neurological radiologist
to conduct tests on the petitioner. During the hearing, post-conviction counsel explained that the
petitioner had been stabbed in the head with an ice pick years prior to the offense. According to
post-conviction counsel, trial counsel was aware of the injury and Dr. Smalldon testified about it,
but no tests were performed to confirm the petitioner suffered from organic brain damage. The
neurological radiologist informed post-conviction counsel that an MRI could detect such brain
damage and, if damage were detected, a PET scan would also be necessary. The post-conviction
court denied the petitioner’s motion because Dr. Smalldon testified at the resentencing hearing that
the petitioner had organic brain damage, and the petitioner had not met his burden of showing the
need for expert services. The petitioner contends the trial court abused its discretion in denying his
request.

       Our review of the record from the resentencing hearing reveals Dr. Smalldon indeed stated
the petitioner suffered from organic brain damage and had a mild degree of functional brain
impairment which affected his language skills.



                                                 -9-
        A post-conviction court may in its discretion grant an indigent petitioner’s ex parte request
for funds for expert services to ensure the petitioner’s constitutional rights are protected. Owens v.
State, 908 S.W.2d 923, 928 (Tenn. 1995). Before the post-conviction court may authorize the funds,
the petitioner must demonstrate the expert services are necessary to protect his constitutional rights
by showing the services are required to establish a ground for post-conviction relief, and that he is
unable to establish that ground by other available evidence. Id.

        We conclude the post-conviction court did not abuse its discretion in denying the petitioner’s
motion for funds to hire a neurological radiologist. The record shows the proof presented by the
petitioner at resentencing established the petitioner had organic brain damage. The petitioner failed
to prove the expert’s services were necessary for establishing a ground for post-conviction relief;
more specifically, he failed to establish that services of the expert were required to prove trial
counsel was ineffective for failing to seek funds to hire a neurological radiologist or to conduct an
MRI and/or PET scan upon the petitioner prior to resentencing.

                                       II. CONTINUANCE

        The petitioner moved the post-conviction court to continue the post-conviction hearing
because post-conviction counsel needed additional time to complete its investigation into Roger
Brewington’s background. Prior to the start of the hearing, the post-conviction court stated it would
reserve its ruling on the motion until after it heard the available proof. After hearing the proof, the
court determined post-conviction counsel already had presented sufficient information regarding
Brewington’s relatively dominant personality and denied the petitioner’s motion for a continuance.
The petitioner argues the trial court erred in denying his request for a continuance to allow him
additional time to develop proof.

        A trial court is vested with the discretion to grant or deny a continuance. State v. Morgan,
825 S.W.2d 113, 117 (Tenn. Crim. App. 1991). This court will not disturb the denial of a
continuance unless it appears that the lower court abused its discretion, and the movant was
prejudiced as a result. State v. Cazes, 875 S.W.2d 253, 261 (Tenn. 1994), cert. denied, 513 U.S.
1086, 115 S. Ct. 743, 130 L. Ed. 2d 644 (1995). In the instant case, the post-conviction court did
not abuse its discretion in denying the continuance. We further note the post-conviction court found
trial counsel’s performance deficient with regard to the Brewington issue. The petitioner suffered
no prejudice. This issue is without merit.

                      III. INEFFECTIVE ASSISTANCE OF COUNSEL

        The final issue presented in this appeal is whether trial counsel was deficient at the
petitioner’s resentencing hearing and, if so, whether it affected the jury’s verdict. The state
maintains the post-conviction court erred in finding trial counsel was deficient for failing to further
investigate and present proof regarding the relative dominance of Roger Brewington. The petitioner
contends the lower court correctly found deficiency, but erred in concluding trial counsel’s
deficiency did not affect the outcome at resentencing. Further, the petitioner challenges the post-
conviction court’s determination that trial counsel’s preparation for Dr. Smalldon’s testimony did
not violate reasonable standards.

                                                 -10-
A. Standard of Review

        For a petitioner to successfully overturn a jury’s verdict based on ineffective assistance of
counsel, the petitioner must first establish that the services rendered or the advice given was below
“the range of competence demanded of attorneys in criminal cases.” Baxter v. Rose, 523 S.W.2d
930, 936 (Tenn. 1975). Second, the petitioner must show that the deficiencies “actually had an
adverse effect on the defense.” Strickland v. Washington, 466 U.S. 668, 693, 104 S. Ct. 2052, 80
L. Ed. 2d 674 (1984). Should the petitioner fail to establish either factor, the petitioner is not
entitled to relief. Our supreme court described the standard of review as follows:

                       Because a petitioner must establish both prongs of the test, a
               failure to prove either deficiency or prejudice provides a sufficient
               basis to deny relief on the ineffective assistance claim. Indeed, a
               court need not address the components in any particular order or even
               address both if the defendant makes an insufficient showing of one
               component.

Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996) (citing Strickland, 466 U.S. at 697, 104 S. Ct. at
2069). The petitioner is not entitled to the benefit of hindsight; the petitioner may not second-guess
a reasonably based trial strategy; and the petitioner may not criticize a sound, but unsuccessful,
tactical decision made after adequate preparation for the case. Adkins v. State, 911 S.W.2d 334, 347
(Tenn. Crim. App. 1994); see Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992).

        Because the Eighth and Fourteenth Amendments to the United States Constitution require
that a death sentence be based on a particularized consideration of each defendant, the courts are
especially careful in protecting a defendant’s right to counsel at a capital sentencing hearing.
Nichols v. State,     S.W.3d , , 2002 Tenn. LEXIS 419, at **49-50 (Tenn. Oct. 7, 2002).
Generally, trial counsel’s failure to investigate and prepare for a capital sentencing hearing is below
the range of competence required of criminal attorneys. Zagorski v. State, 983 S.W.2d 654, 657
(Tenn. 1998), cert. denied, 528 U.S. 829, 120 S. Ct. 83, 145 L. Ed. 2d 70 (1999).

        The petitioner bears the burden of proving his allegations by clear and convincing evidence.
Tenn. Code Ann. § 40-30-210(f). The findings of fact made by the post-conviction court are
conclusive and will not be disturbed unless the evidence contained in the record preponderates
against them. See Fields v. State, 40 S.W.3d 450, 457 (Tenn. 2001).

B. Trial Counsel’s Failure to Investigate Relative Dominance Theory

       The post-conviction court determined trial counsel’s performance in preparation for
resentencing was deficient because counsel failed to adequately investigate facts supporting the
theory that the petitioner’s co-defendant, Roger Brewington, was the dominant actor in the
commission of the murder. The state urges that the post-conviction court erred in making this
determination, while the petitioner maintains the post-conviction court’s determination of deficiency
was proper.


                                                 -11-
        Trial counsel must conduct appropriate factual investigations or make a reasonable decision
that makes particular investigations unnecessary. Nichols, S.W.3d at , 2002 Tenn. LEXIS 419,
at *17-18. In a capital trial, counsel’s duty to investigate and prepare extends to the sentencing
phase. Goad, 938 S.W.2d at 370. Informed choices and tactical decisions are entitled to deference
from the courts; however, uninformed decisions made without adequate preparation are not entitled
to deference. Id. at 369.

         In the instant case, the proof at the post-conviction hearing established that one of the
theories trial counsel pursued at resentencing was that Roger Brewington was the dominant actor
in comparison to the petitioner. There was evidence that trial counsel investigated Brewington’s
background and obtained some information, including information concerning Brewington’s
psychological evaluation. However, the proof at the hearing also showed trial counsel was not
aware of the state’s position that Brewington’s sentence should be enhanced because he was a leader
in the commission of the offense. Trial counsel had not reviewed some documents which, according
to psychologist Dr. Woodman, showed Brewington to have a more dominant personality than the
petitioner. Attorney Stebbins testified the defense team decided not to aggressively pursue the
theory that Brewington dominated the petitioner out of concern the state would present
Brewington’s testimony. There was proof at the hearing which clearly indicated Brewington’s
position was that the petitioner was primarily responsible for the torture and murder of the victim.
We question the trial court’s determination that counsel’s tactical decision was not an informed one
after an adequate investigation. However, because the petitioner has clearly failed to establish that
additional proof of Brewington’s more dominant personality would have affected the jury’s verdict,
it is not necessary for this court to address the deficiency prong. See Goad, 938 S.W.2d at 370.

         When a petitioner claims ineffective assistance of counsel during the penalty phase of a
capital case, he must show “there is a reasonable probability that, absent the errors, the sentencer
. . . would have concluded that the balance of aggravating and mitigating circumstances did not
warrant death.” Nichols, S.W.3d at , 2002 Tenn. LEXIS 419, at *50 (quoting Strickland, 466
U.S. at 695, 104 S. Ct. at 2069). In determining whether a defendant was prejudiced by counsel’s
failure to present sufficient mitigation evidence, the courts should consider several factors, including:
(1) the nature and extent of the available mitigating evidence that was not presented; (2) whether
substantially similar mitigating evidence was presented to the jury in either the guilt or penalty
phase; and (3) whether there was such strong evidence of aggravating factors that the mitigating
evidence would not have affected the jury’s determination. Id. at , 2002 Tenn. LEXIS 419, at *51;
Goad, 938 S.W.2d at 371.

        In the case sub judice, co-defendant Brewington was sixteen years old at the time of the
murder. The resentencing jury heard the petitioner’s statement to police in which he maintained he
committed the offense out of fear of Brewington. Dr. Jeffery Smalldon also testified at resentencing
that the petitioner indicated he was afraid of Brewington, who pressured him to stab the victim.
However, this contention is questionable. In his statement to law enforcement, the petitioner said
he stabbed the victim to prove to Brewington that he was “cooler” and to put the victim out of his
misery. Middlebrooks, 995 S.W.2d at 554. Furthermore, in spite of the fact that Brewington may
well have met the aggressive profile depicted by the petitioner, he was, nevertheless, only sixteen


                                                  -12-
years old at the time of the offense. The twenty-four-year-old petitioner was the only adult
perpetrator.

        Finally, the state’s proof at resentencing established that the petitioner participated in
subjecting the fourteen-year-old victim to hours of repeated horrific and sadistic acts, which
culminated in the petitioner’s stabbing and killing the victim. Based on our review of the record,
we conclude, as did the post-conviction court, that no degree of finger-pointing to the sixteen-year-
old co-defendant would have affected the jury’s verdict in light of the hours of torture to the young
victim which ended when the petitioner viciously stabbed the victim. The “heinous, atrocious, or
cruel” aggravating circumstance was far too overwhelming to be offset by this mitigation theory.
The petitioner has clearly failed to establish prejudice with regard to the relative dominance issue.

C. Trial Counsel’s Preparation for Testimony of Expert Witness

         Although the post-conviction court found trial counsel was “surprised” by Dr. Smalldon’s
testimony regarding the petitioner’s statement that he urinated on the victim, the court further found
trial counsel had not violated reasonable standards in presenting Dr. Smalldon’s testimony. It noted
that Stebbins had spent considerable time in preparation for Dr. Smalldon’s testimony and
reasonably believed he was familiar with the psychologist’s potential testimony. The petitioner
contends trial counsel were ineffective for failing to more adequately prepare for Dr. Smalldon’s
testimony by seeking a copy of the taped interview between the prosecutors and/or more carefully
reviewing Dr. Smalldon’s handwritten notes.

         The proof at the post-conviction hearing established trial counsel Stebbins spoke with Dr.
Smalldon on numerous occasions regarding Dr. Smalldon’s potential testimony. At least four or five
of those discussions were lengthy, face-to-face meetings. They conversed in detail regarding the
petitioner’s version of the events. The proof showed that, despite these numerous, detailed
interviews, Dr. Smalldon never revealed to Stebbins that the petitioner said he had urinated on the
victim. Further, Stebbins indicated the petitioner did not tell him he had urinated on the victim, or
that he made such a statement to Dr. Smalldon. Given trial counsel’s extensive preparation for the
testimony of Dr. Smalldon, we cannot conclude the post-conviction court erred in its determination
that trial counsel’s performance was within the range of competence demanded of criminal defense
attorneys.

       Furthermore, we conclude there is insufficient proof to establish this actually had a
detrimental effect on the petitioner’s defense at resentencing. Attorney Stebbins testified at the post-
conviction hearing that even if he had known about the petitioner’s statement to Dr. Smalldon, it
would not have foreclosed the defense team’s decision to present Dr. Smalldon’s testimony.
Attorney Barrett testified that while Dr. Smalldon’s testimony about the petitioner’s statement was
harmful, it was the “cumulative effect” of his testimony, including the state’s effective cross-
examination of the psychologist as a “hired gun,” which was detrimental. As noted by the post-
conviction court, the depiction of an opposing party’s expert as a “hired gun” is a common
occurrence in trials, and trial counsel cannot be faulted for the prosecutor’s vigorous cross-
examination of the petitioner’s expert witness. Further, Dr. Smalldon’s testimony provided the jury


                                                 -13-
with significant mitigating evidence regarding the petitioner’s background, mental health problems
and brain impairment.

        Common sense dictates there will be few capital cases in which the entirety of a defendant’s
expert’s testimony paints a totally sympathetic picture of the defendant. Defense counsel is often
faced with a situation, such as the instant case, in which the defense must present mitigation proof
even though it is subject to attack. Finally, as we have previously stated, the state’s proof at
resentencing showed the petitioner committed dreadfully cruel and horrific acts of torture upon the
victim prior to crudely terminating his life. It is not reasonably probable that the jury’s verdict was
affected by the alleged “surprise” testimony from Dr. Smalldon.

       The petitioner has failed to establish either deficiency or prejudice with regard to this issue.

                                IV. MISCELLANEOUS ISSUES

        In an addendum to his brief, the petitioner listed numerous issues for our review in order to
“preserve these issues” for further review. However, he failed to reference the record, cite any
authority, or present any argument regarding these issues. Therefore, these issues are waived. See
Tenn. Ct. Crim. App. R. 10(b); State v. Schaller, 975 S.W.2d 313, 318 (Tenn. Crim. App. 1997);
State v. Turner, 919 S.W.2d 346, 358 (Tenn. Crim. App. 1995); see also Tenn. R. App. P. 27(a)(7)
and (g).


                                          CONCLUSION

        We hold the post-conviction court did not err in denying the petitioner’s request for funds
for expert services or in denying the petitioner’s request for a continuance. Further, we hold the
post-conviction court did not err in finding the petitioner had failed to establish ineffective
assistance of counsel. Accordingly, we affirm the judgment of the post-conviction court.



                                                        ___________________________________
                                                        JOE G. RILEY, JUDGE




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