Kevin B. Burns appeals the Shelby County Criminal Court's denial of his post-conviction relief petition following his convictions for two counts of felony murder and two counts of attempted felony murder, with a death sentence for one count. His felony murder convictions were upheld by the Tennessee Supreme Court, but the attempted felony murder convictions were reversed as they were not recognized as a crime in Tennessee. Burns filed a pro se petition for post-conviction relief, which led to appointed counsel and the submission of two amended petitions. After an evidentiary hearing, the post-conviction court rejected the petitions. Burns' appeal raises four main claims: (1) denial of a fair evidentiary hearing, (2) denial of due process, (3) ineffective assistance of counsel, and (4) unconstitutionality of the death penalty. The appellate court affirmed the post-conviction court's judgment.
Factual findings from the Tennessee Supreme Court's prior decision indicate that on April 20, 1992, Burns and Carlito Adams approached a car occupied by four young men in Memphis. After Adams brandished a handgun, Burns also drew one, leading to a confrontation where both men shot at the occupants. Witness accounts included a fourteen-year-old who observed the events and a nearby mother who identified Burns as the shooter.
Tracey Johnson died at the scene of a shooting, while Damond Dawson, who sustained five gunshot wounds, was alive when police arrived but died en route to the hospital. Eric Thomas, who survived gunshot injuries to his chest and stomach, identified Kevin Burns as one of the assailants two days later. Thomas initially named another individual, Adams, to police out of fear of dying and only later clarified his identification of Burns. On June 23, 1992, Burns was arrested in Chicago, where he waived his rights and confessed to his involvement in the shootings. He stated he was called by Kevin Shaw, who informed him that Shaw's cousin had been attacked, prompting Burns and others to confront the attackers, with Burns receiving a handgun from Shaw. During the incident, Burns fired three shots after witnessing a man fleeing.
At trial, the jury found Burns guilty of two counts of felony murder and two counts of attempted felony murder. In the penalty phase, Damond Dawson's mother testified about the profound impact of her son's death, emphasizing the fear that gripped the neighborhood. Brenda Hudson, mother of Tracey Johnson, shared the emotional toll of her son's death on the family, particularly highlighting the pain of his young daughter who refers to him as living "in God's house." In mitigation, Burns' family members testified to his positive character and upbringing. His mother noted his obedience and lack of disciplinary issues in school, while his father and brother described him as a well-mannered, church-going individual. Additionally, his Sunday School teacher commended Burns as a faithful young man.
The prosecution sought the death penalty for the petitioner based on two aggravating circumstances: (1) the petitioner knowingly created a great risk of death to multiple persons during the murder act, and (2) the murder was committed to avoid lawful arrest or prosecution. The jury imposed the death penalty for the murder of Damond Dawson, finding the aggravating circumstance of "great risk of death" outweighed mitigating factors. However, for the murder of Tracey Johnson, the jury sentenced the petitioner to life imprisonment. The trial court upheld the jury's verdict, and the Court of Criminal Appeals affirmed the felony murder convictions but reversed the attempted felony murder convictions, referencing State v. Kimbrough.
During the post-conviction hearing, attorney Harold Archibald testified about his representation of the petitioner, which lasted seven months. Archibald filed motions for expert assistance in anticipation of the penalty phase but later withdrew when co-counsel Madlock discovered connections to a victim's family. The petitioner’s mother requested new counsel. Archibald met with the petitioner several times to discuss his background, learning about his educational achievements and work history. The petitioner had prior convictions for burglary and theft but denied drug use, admitting to consuming beer on the day of the incident. Archibald indicated he would have sought further evaluation if the petitioner had acknowledged substance abuse issues.
Archibald negotiated a life imprisonment plea offer for the petitioner, explaining its implications and the alternative of going to trial, where the State would pursue the death penalty. The petitioner chose not to accept the offer. During representation, co-counsel Clim Madlock, Jr. discovered he lived near the victim's family and knew the victim, prompting the petitioner to request that his mother decide on their continued representation. The mother opted for the attorneys to withdraw, which they did. Madlock stated that while motions for expert assistance were filed, no experts were hired before they withdrew. He was unaware of any drug or alcohol issues concerning the petitioner, and a mental evaluation indicated the petitioner was competent, with no basis for an insanity plea. After the initial counsel's withdrawal, senior and junior trial counsel were appointed. Senior counsel, with extensive experience in criminal law and capital cases, had previously been a prosecutor but could not recall attending specialized capital case seminars. He and junior counsel shared responsibilities leading up to the trial, later dividing trial witnesses between them. Senior counsel met with former counsel Archibald and Madlock several times and reviewed their motions. He filed a motion for a private investigator, Curtis Mull, who interviewed witnesses but faced challenges in locating some. Senior counsel believed a co-participant, Kevin Shaw, should have been charged but did not pursue why he was not, as the petitioner admitted to having a weapon and was implicated as the shooter.
Senior counsel visited the crime scene multiple times to understand the layout and witness perspectives, conducting unsuccessful door-to-door inquiries for additional witnesses. He successfully negotiated for the petitioner to be tried last, allowing for observation of other witnesses. Significant preparation for the trial included discussions with the petitioner about defense strategies, particularly given the petitioner’s FBI confession admitting presence at the scene and possession of a weapon, limiting defense options. The defense argued that while the petitioner participated in the crime, he was not the trigger man and did not shoot into the victims' car. Although there were discussions about involving a ballistics expert, counsel ultimately decided against it. Establishing the defense proved challenging due to overwhelming eyewitness identification of the petitioner as the shooter. A mitigation strategy involved contacting twelve potential character witnesses, but senior counsel primarily relied on their investigator for interviews. Ultimately, key witnesses testified during the penalty phase, and a decision was made, with the petitioner’s consent, about which character witnesses to present. A notable issue arose regarding the petitioner's hairstyle at the time of the crime; one eyewitness described the shooter as having a lengthy "jheri curl," while the petitioner claimed to have had a regular haircut, though he could not provide witnesses to support his assertion.
Counsel noted that neither the petitioner’s parents nor the eyewitness could confirm the petitioner had a short haircut during the incident. The eyewitness failed to recognize the petitioner in a mugshot with short hair but identified him at trial with longer hair. Although the petitioner provided a photograph of himself with short hair, it appeared to be of a younger version of him. Senior counsel recalled that at their initial meeting, the petitioner had long “jheri curl” styled hair, which counsel found concerning and suggested changing for trial, but the petitioner refused.
Senior counsel maintained his case files and noted that items, including transcripts from co-defendants Derrick Garrin and Carlito Adams’ trials, were missing since 1999. He had reviewed Garrin’s trial transcripts, where the victim identified Garrin as the shooter, while at the petitioner’s trial, the same victim identified the petitioner. During Garrin’s trial, the victim described the other perpetrator in a way that aligned more closely with the petitioner. Counsel acknowledged inconsistencies in witness accounts regarding the roles of participants but interpreted this to suggest the petitioner was not among the first two individuals at the scene.
Regarding co-defendant Carlito Adams’ statement, which mentioned only two individuals, it implied that “Kevin” referred to Kevin Shaw rather than the petitioner. Counsel agreed that this, along with the testimony from the victim during Garrin’s trial, indicated Shaw was likely with Adams during the incident. Counsel explained that he did not argue this point due to Adams' mention of unknown shooters. He defined “presentation of mitigation” as including factors like age, mental health, and family background but admitted he had never utilized a mitigation specialist to assist in background preparation for the petitioner’s case.
Mitigation investigation in the petitioner’s case relied solely on Mr. Mull's services, whose specific hours of work could not be recalled by senior counsel. Mull also investigated codefendant Garrin’s case, and counsel expressed surprise at an invoice indicating eight hours of work, suggesting there might be other invoices. Counsel did not instruct Mull to investigate the local culture or the petitioner’s neighborhood, nor was he aware of gunshots fired at the petitioner’s home or its connection to local projects. Counsel attempted to interview the petitioner’s divorced parents and siblings.
Regarding jury selection, a motion for individual voir dire was denied based on Shelby County's standard policy, which requires evidence of pretrial publicity to warrant such a request. Counsel discussed standard questions used in capital case voir dire and requested a jury list to understand potential jurors’ backgrounds. Following the convictions, trial counsel raised nine issues for appellate review, including the proportionality of the death sentence but failed to compare it to the sentences of codefendants. Although the issue was not raised, senior counsel believed the court addressed it sua sponte. Counsel challenged the constitutionality of Tennessee’s death penalty statutes but did not specifically argue against the prosecutor's discretion violating the right to life. There was no challenge to the denial of individual voir dire.
Senior counsel dedicated 218.9 hours to the appeal and acknowledged the petitioner’s statements placed him at the crime scene, negating an alibi defense. Testimonies indicated the petitioner was seen as the trigger person by codefendants. Counsel noted difficulties in their relationship, stemming from the petitioner’s refusal to change his hairstyle and his rejection of a significant plea offer for a bench trial, which counsel believed was favorable given the trial judge's history against imposing the death penalty. The petitioner ultimately rejected this offer on his mother's advice.
The petitioner relied heavily on his mother's advice, often disregarding input from his experienced legal counsel. Specifically, the mother claimed the petitioner fabricated a story about receiving property from a robbery, leading the petitioner to abstain from discussing case details with his counsel. Senior counsel emphasized that the petitioner was a critical witness for the defense, asserting his innocence, which was vital given the defense's limited options. However, the petitioner later decided against testifying, significantly altering counsel's strategy and undermining the defense's core argument.
Counsel explained that the primary purpose of going to trial was for the petitioner to share his account with the jury. He expressed uncertainty about how he would have prepared differently had he known the petitioner would not testify. In terms of mitigation evidence, counsel selected witnesses who could portray the petitioner positively, noting his father's role as a minister and the petitioner's church involvement. However, counsel limited the number of mitigation witnesses to avoid cross-examination about the petitioner's criminal history. The petitioner's mother also directed certain potential witnesses not to attend, a decision the petitioner supported.
Counsel reported the petitioner's upbringing as normal, rejecting the notion that a nearby housing project should serve as mitigating evidence. The only injury counsel was aware of was a broken arm; the petitioner had not mentioned being shot. Counsel acknowledged the delicate balance of presenting mitigation evidence, stating that inappropriate evidence could offend the jury.
Throughout the trial, counsel maintained that the petitioner was involved in strategic decisions, obtaining his approval for all actions taken. He did not call codefendants as witnesses, believing their testimonies would only reveal their sentences and likely provoke objections from the prosecution. Counsel noted that inconsistencies in testimonies across trials would not affect the petitioner's involvement in the crime. The jury deliberated for two days on both the guilt and penalty phases. Senior counsel found no evidence of mental health issues from evaluations or family history and rejected claims that the petitioner lacked understanding of his actions or their consequences, indicating the petitioner chose not to follow legal advice. The post-conviction court later inquired about the murder weapons.
Counsel recalled that the murder weapons were not introduced at the petitioner’s trial, although two weapons found on codefendant Garrin’s porch were identified as the murder weapons, each linked to a victim. No evidence connected the petitioner to these weapons, leading counsel to conclude that a ballistics expert was unnecessary. Junior counsel, appointed in April 1993, had extensive experience in criminal law, including representing capital defendants and attending relevant seminars. He was familiar with the ABA standards for capital case representation.
A motion for individual voir dire was filed but denied, and during jury selection, potential jurors were questioned about their views on the death penalty, but not whether they would consider a life sentence. Counsel believed asking about life sentences could imply the petitioner’s guilt. The defense strategy focused on the petitioner’s claims of firing into the ground or air, his lack of familiarity with the victims, and challenging eyewitness identification.
During the trial, victim Eric Thomas identified the petitioner as the shooter, but counsel attempted to undermine this by referencing Thomas’ earlier statement identifying another individual, Carlito Adams. Discrepancies in witness descriptions and confusion between the petitioner and another individual, Kevin Shaw, were also noted. Counsel agreed that Adams likely referred to Shaw in his statement about walking up to the victims' car. The petitioner’s choice not to testify was seen as detrimental to the defense, as his testimony could have downplayed his culpability and potentially mitigated the risk of a death sentence, despite possibly supporting a felony murder conviction.
Counsel recognized that much of the evidence presented during the penalty phase stemmed from the petitioner’s statement to the FBI, describing their defense as "very weak." Although there was evidence suggesting the petitioner was a good person, they could not introduce certain witness testimonies due to their cumulative nature. Five mitigation witnesses were presented, including two pastors and the petitioner’s family members. The defense aimed to demonstrate the petitioner’s good character and argue against the death penalty, asserting he had a good childhood that should mitigate his involvement in the case.
However, the petitioner’s mother significantly restricted the introduction of mitigation evidence by discouraging family and community members from cooperating with counsel. Counsel admitted to not investigating the culture of West Memphis, mistakenly assuming it was similar to Memphis. They noted that the petitioner’s father, a minister with another family, had a complicated influence on the petitioner’s upbringing, but ultimately, the mother had a stronger impact. The neighborhood was described as non-violent, and although knowledge of gunfire at the petitioner’s home could have been useful, no such incident was confirmed.
Junior counsel explained the role of a mitigation specialist, emphasizing their thorough investigation of an individual's background, although he believed the information they gathered often lacked significant impact. He noted that while incarcerated, the petitioner had experienced a religious conversion and expressed faith in divine intervention, clarifying that he was not a religious fanatic.
Junior counsel faced significant communication challenges with the petitioner’s family, particularly the petitioner’s mother, who firmly believed in her son's innocence and was uncooperative despite being informed of the serious charges. The relationship between the petitioner and his mother was close, and she had previously aided him in evading arrest. The petitioner actively participated in developing a mitigation strategy and suggested potential witnesses; however, many of these witnesses declined to testify due to disinterest or poor recollection. Counsel deemed it inappropriate to compel these witnesses to provide testimony.
During the penalty phase, several witnesses were available to present mitigation evidence but were ultimately not called to avoid introducing the petitioner’s prior convictions and because their testimony would have been redundant. Counsel found no evidence of mental or personality defects in the petitioner, who had a stable upbringing and appeared to be of normal disposition.
Junior counsel attempted to persuade the petitioner to change his hairstyle before the trial, as an eyewitness had described the shooter as having a jheri curl, which matched the petitioner’s hairstyle at the time. No witnesses could confirm that the petitioner had short hair during the incident. Counsel focused the appeal on significant issues rather than peripheral ones, leading to some successes, including the reversal of the petitioner’s two attempted felony murder convictions and the introduction of certain victim impact evidence.
Mary Jones, a key eyewitness, testified that she saw a shooter with shoulder-length jheri curl hair and a long black trench coat, describing the second assailant as tall and heavyset. Throughout the proceedings, the name Kevin Whitaker was not mentioned, even though the petitioner was involved in rap music at the time of the incident.
Ms. Jones identified the petitioner as the assailant with shoulder-length jheri curl hair. Kevin Whitaker, a pastor with a long-standing relationship with the petitioner, testified about their shared history in the rap band S.I.R. and his record label, Unlimited Phonic Records. He recounted a call from Kevin Shaw in April 1992, asking for his assistance in dealing with a problem in Memphis, which Whitaker declined due to distrust of Shaw. Whitaker noted that Shaw had a high-top hairstyle and often wore a trench coat, while he described the petitioner's hairstyle at the time as low on the scalp. He clarified that S.I.R. was in the process of changing its name to H.O.H. and that neither band wore trench coats as part of their attire. Whitaker acknowledged being aware that the petitioner and another band member faced murder charges and expressed willingness to testify at the trial if requested.
Lloyd Davis, the jury foreman from the petitioner’s 1995 trial, recounted reciting a Bible verse during deliberations to address a juror's indecision regarding the death penalty. Arlee Bruce, the petitioner’s senior English teacher, described him as a model student who was respectful and never disciplined. She noted that the petitioner and a classmate, Paul Burks, were often together and made good grades. Samuel G. Brooks, a friend and former classmate who played junior high football with the petitioner, confirmed their friendship and stated that the petitioner had a low fade hairstyle after high school, with no recollection of him ever wearing a jheri curl. Brooks was not contacted by the petitioner's trial attorneys.
Rodney Weatherspoon testified about his background with the petitioner, stating they grew up in the same neighborhood and interacted frequently after high school. They were members of a rap group called "Hall of Hell," comprised mainly of West Memphis residents, while Kevin Shaw, a member from Memphis, had a distinct style of dress. Weatherspoon noted differences in hairstyle preferences between the groups and confirmed he never saw the petitioner wear long hair or a jheri curl.
Leslie Burns, the petitioner’s mother, described her involvement in his legal case following his arrest. After the initial attorneys were dismissed due to conflicts with the victim's family, she retained an attorney for a $700 retainer and a $17,000 fee, but this attorney was also dismissed for lack of capital trial qualifications. The trial court then appointed senior and junior counsel. Burns provided family information to senior counsel, whose follow-up meeting was brief and unproductive, as they did not inquire about the petitioner’s background or seek necessary releases for information.
Burns attended the trials of co-defendants Carlito Adams and Derrick Garrin but noted she did not see the petitioner’s attorneys present. She took notes during those trials, which senior counsel declined to review. While junior counsel was kind, senior counsel was described as rude. Burns expressed disagreement with senior counsel’s suggestion for the petitioner to accept a life sentence, believing a death sentence was unlikely based on recent trial developments. She felt uninformed about the specifics of the charges against her son and only learned that the state sought the death penalty once the trial commenced.
Trial counsel failed to visit or contact the petitioner’s family, including her children and those of Obra Carter. Ms. Burns attended every day of the trial but was unaware of the bifurcated proceedings until the jury delivered guilty verdicts for first-degree murder. Counsel did not inform her about the need for evidence regarding the petitioner’s background, and she only learned she was to testify during the penalty phase on the day she was called. She denied instructing others not to cooperate with the petitioner’s attorneys.
Ms. Burns had five children with Nathaniel Burns and began a relationship with Obra Carter in 1963, resulting in the birth of the petitioner and four other children. Carter had another family in Memphis, leading to a complicated relationship. Ms. Burns lived in various rented accommodations before moving into a housing project, where she was evicted for having another child. While receiving child support from Nathaniel Burns, she stated that Carter provided for major expenses but did not pay formal child support.
After moving to Memphis, she returned to West Memphis due to incidents involving her children. Obra Carter purchased a house for her in 1976 and transferred ownership to her in 1998. He visited regularly but never cohabited with her. Ms. Burns expressed embarrassment over Carter's marriage to Louise Hall while having four children with him. She also recounted the murder of her son, Nathaniel Burns, Jr., in 1996. During cross-examination, she reiterated that the petitioner was a good son and raised concerns about the adequacy of his representation by Archibald and Madlock, feeling that they were more focused on the victims’ families than on her.
Concerns were raised about Madlock's friendship with others potentially overshadowing his concern for the petitioner, who was living with her at the time of the incident. The witness noted that the petitioner had a jheri curl hairstyle while in jail, which she was unaware of until the trial, despite trial counsel suggesting he change it. She explained a prior theft conviction stemmed from a misunderstanding involving a stolen air conditioner, for which the petitioner received probation. The petitioner was arrested for current offenses in Chicago and had made a statement to law enforcement there. During redirect examination, the witness confirmed the petitioner wore his hair short at the time of the incident and only began to grow it longer post-arrest, observing that many young men in the facility had similar hairstyles.
Louise Carter, the petitioner’s stepmother, provided a detailed account of her relationship with Obra Carter, which began in 1959. She described their common-law union, their children, and a significant revelation regarding Mr. Carter's relationship with Leslie Burns, who he had five children with, which he initially denied. Mrs. Carter expressed willingness to testify for the petitioner but was not contacted by his counsel prior to trial.
Renita Jo Burns, the petitioner’s sister, testified about their living situation in 1992, where multiple people resided in their mother's home. She denied ever seeing the petitioner with long hair or using hair chemicals and recounted the frequent sounds of gunshots from the nearby projects, which instilled fear in her, especially when a bullet struck their home during her childhood.
Renita Burns described a challenging upbringing marked by a lack of parental presence, as their father was infrequently involved in their lives, visiting only every couple of weeks and never attending birthdays. She viewed her oldest brother, the petitioner, as the head of the household in their father's absence, noting he acted as a chaperone for the younger siblings. Their father was described as strict, often resorting to physical punishment, such as whipping with a switch, while their mother employed different disciplinary methods, focusing on restrictions rather than physical punishment. Renita stated she was never contacted by trial counsel but would have testified at trial if given the opportunity.
Her sister, Robin Michelle Burns, corroborated the experiences of discipline, detailing the father's use of a belt or switch and the consequences for not being home when he returned. She also noted that their mother imposed discipline through restrictions instead of physical punishment. Both sisters indicated a close-knit family despite the crowded living conditions. Brenda Burns, another sibling, testified to their father's frequent visits and her role in caring for the younger children after their mother returned to work. She had not experienced electricity disconnections at their home and had heard gunshots in the projects but not from her mother's house. The context highlights the dynamics of their family life, the disciplinary methods employed, and the siblings' relationships.
Phillip Carter, half-brother of the petitioner and a juvenile probation officer in Crittenden County, Arkansas, testified at the petitioner’s 1995 trial regarding the petitioner’s background and character. He met the petitioner's attorneys shortly before testifying and was not informed about the specifics of his testimony or questioned about his relationship with the petitioner. His testimony focused on their shared upbringing, schooling, and the petitioner’s employment history. Phillip noted that the petitioner had moved to Jonesboro in 1991 to work at a Shoney’s restaurant, accompanying the executive manager who had been transferred there, before returning to West Memphis and later accepting a position at a Shoney’s in Memphis at the time of the incident leading to the petitioner’s arrest.
Phillip described their childhood household rules, which were strictly enforced, including not leaving the yard without permission, making their beds immediately, and completing chores and homework. He explained that these rules were a response to the perceived danger in their neighborhood, which had a high crime rate and gang activity, contrasting it with his own neighborhood, described as safer. He recounted experiences of corporal punishment administered by their father, which included whippings with a belt or extension cords, typically not breaking the skin. Phillip also recalled a specific incident of conflict among the siblings that led him to leave home temporarily. He mentioned that despite the strict rules, the children were allowed to engage in extracurricular activities and highlighted the presence of gangs, such as the Rayfield Posse and the Delta Dogs, in the petitioner’s neighborhood.
Rival gangs, “Delta Dogs” and “Rayfield Posse,” frequently clashed in the neighborhood, particularly during school sporting events, using weapons such as brass knuckles, bats, and guns. Gang-related activity, including robberies, occurred near the petitioner’s residence, with an incident involving the petitioner’s friend, Paul Burks, being assaulted by the Delta Dogs. The petitioner, unassociated with either gang, fled to ensure his safety. Phillip Carter, a witness, recounted that he had previously owned a gun, which was destroyed by the City of West Memphis after the petitioner was arrested for carrying it inadvertently. Phillip confirmed the petitioner had no juvenile criminal history, attributing their family’s law-abiding nature to their father's strict upbringing.
Steve Carter, another witness and brother of Phillip, shared a contrasting background, having been convicted of drug selling. He testified about the petitioner’s involvement in sports and church activities, asserting the petitioner was not involved in gangs but faced challenges due to Steve's affiliation with “NWA.” Steve described their upbringing under strict household rules, highlighting severe physical discipline for minor infractions, which he indicated was a regular part of their childhood.
The petitioner experienced physical abuse, including "bad bruises and welts," from Obra Carter, who also frequently embarrassed their mother, Louise Carter, and the children in public settings. Steve Carter recounted instances of their father's abusive behavior, including an incident where Obra broke Leslie Burns's jaw. He mentioned that several of his brothers had been incarcerated for misdemeanors and noted the petitioner's involvement in a rap band, stating the petitioner always kept his hair short. George Michael Hissong, a senior vice-president at Shoney’s, testified that the petitioner was a dependable employee and he was surprised by the petitioner’s alleged involvement in a killing, as it contradicted his character. Hissong had not been contacted by the petitioner’s trial counsel. Attorney Thomas Bloom discussed his role in preparing the petitioner’s initial appellate brief, stating he was limited to issues developed by senior and junior counsel. Dr. Lee Norton, a clinical social worker, explained the responsibilities of a mitigation specialist, emphasizing the importance of conducting thorough social history evaluations and understanding mental health issues, particularly in gathering sensitive information about the defendant's family history, including creating a genogram to identify patterns across three generations.
Dr. Norton identified the petitioner's genogram as incomplete due to insufficient research, highlighting the lengthy process of gathering necessary documents, including one from the FBI that took three years. She was tasked by post-conviction counsel to conduct interviews and find documentation about the petitioner's family, but encountered significant communication barriers. Dr. Norton observed issues among the petitioner's siblings and noted the non-traditional family structure, characterized by the petitioner’s father having relationships outside of his marriage. She recognized communication problems between trial counsel and the petitioner’s family, attributing this to the counsel's lack of skills in building trust. In contrast, Dr. Norton and the post-conviction defender’s investigator successfully established rapport with Ms. Burns, the petitioner’s mother, who was open and cooperative during four interviews that revealed her challenges with trial counsel.
Significant information emerged regarding Ms. Burns's traumatic childhood experiences, including an incident where her sister was severely burned, which affected family dynamics. Ms. Burns faced excessive responsibilities and left her grandmother's home at fourteen to start a family with Nathaniel Burns, with whom she had five children, the first of whom had severe disabilities. These circumstances created multiple risk factors for the children, including the stress from caring for a disabled child and Ms. Burns's own physical and emotional struggles. Dr. Norton noted that Ms. Burns showed signs of ongoing depression, which impacted her ability to nurture the petitioner.
Dr. Norton conducted interviews with Louise Carter and her family, revealing a tumultuous and hostile relationship with her husband, Obra Carter. Louise described feeling trapped in the relationship. Observations of their living conditions indicated severe neglect, with substandard housing, inadequate sanitation, and a police scanner that suggested ongoing neighborhood issues, which contributed to reports of Mr. Carter restricting the children's freedom.
Dr. Norton's investigation also included insights from Zettie Thomas, Mr. Carter's previous wife, who described an abusive marriage characterized by isolation and violence. She recounted an incident where her father intervened due to inadequate food in their home.
Additionally, Betty Douglas, a cousin of Leslie Burns, reported observing Mr. Carter's domineering behavior and physical abuse towards Ms. Burns, including instances of severe injuries. Dr. Norton concluded that Obra Carter inflicted both physical and emotional abuse on Louise, Leslie, and Zettie. He noted that emotional mistreatment of the children stemmed from fear of their father, a lack of positive reinforcement, and witnessing their mother's abuse. Dr. Norton emphasized that exposure to such trauma could have significant negative effects on child development, creating a climate of anxiety and fear in both households.
Dr. Norton assessed the impact of a challenging environment on children's development, highlighting that such conditions hinder their self-understanding, problem-solving abilities, communication skills, coping mechanisms, and relationships, often leading to misinterpretations of others' actions. She identified three critical domains influencing the petitioner’s development: home, school, and community. The home environment was characterized as overcrowded and stressful, with an overburdened mother lacking resources. The school environment was marked by violence and anxiety, while the community faced high crime rates and significant police presence. Dr. Norton emphasized that the interplay of these factors severely increases the risk of academic and social difficulties for children.
She reviewed the petitioner’s educational records and noted his poor judgment and immature coping skills at the time of his offenses, attributing these issues to the aforementioned risk factors. Dr. Norton and a colleague began working on the petitioner’s case on September 28, 2002, with the court initially approving 50 hours of work, followed by an additional 50 hours. Her request for funding for out-of-state travel was denied, and she declined to work for $65 an hour, leading to a halt in her involvement.
During cross-examination, Dr. Norton admitted she did not take notes herself, relying on an investigator, and had not brought her case file to court, which contained only information from post-conviction counsel. She acknowledged that her investigation was incomplete as she had not interviewed key individuals, including family members and teachers. Dr. Norton clarified that her role was to assist the investigator and that she was unaware she would testify as an expert until just before the hearing. She stated that she would have prepared differently had she known she would be called as an expert witness.
Dr. Norton described her role as primarily assisting the investigator and the family to address underlying family issues. Over time, her responsibilities shifted to those of a mitigation expert. She explained a five-month delay in interviewing Leslie Burns due to an unusual case circumstance, including the investigator's illness and funding lapses. Dr. Norton did not review the petitioner’s social history records, as many had been destroyed due to retention policies. Her sole interview with the petitioner relied on notes and testimonies from neighborhood friends, who generally characterized him positively, noting he was a well-liked kid who had not been in trouble. While acknowledging some limitations in the petitioner’s childhood activities, she noted he frequently stayed with various neighbors and helped with odd jobs. Initial interviews did not indicate an abusive home life; instead, concerns were raised about the company the petitioner kept. Kay Carter, a sibling, indicated that the petitioner was good with family but had negative influences from his friends and had ceased attending church after joining a rap band. Dr. Norton highlighted that the petitioner, being the only male in his household, spent time in a tougher neighborhood, suggesting he was more of a follower. She noted a change in the neighborhood over the years and reported that the petitioner’s father regarded him as intelligent and talented. Steve Carter’s testimony portrayed a negative view of the petitioner’s home life, yet overall statements painted the petitioner as a kind and responsible individual, with his actions on the day of the incident being out of character. Dr. Norton expressed concerns after interviewing the petitioner, particularly regarding his pressured speech, rapid communication, and lack of visible distress, suggesting that a thorough mental evaluation by a medical professional might be warranted.
Dr. Norton verified that a psychologist had examined the petitioner and found no signs of overt psychopathology, and the Department of Correction also identified no mental illness during the petitioner’s classification process. She did not communicate with the trial attorneys about their relationship with the petitioner or his mother, who she believed raised him with strong values. Dr. Norton acknowledged that there were no clear indicators of maladjustment before the crimes and noted that interviewees suggested the petitioner’s troubles stemmed from being a follower influenced by a negative peer group. She observed inconsistencies between the initial information and the petitioner’s personality, highlighting the complexity of the petitioner’s family dynamics. Dr. Norton pointed out that the positive aspects of the petitioner’s life could serve as mitigation evidence, contrasting with his later violent behavior.
Dr. George Washington Woods, Jr., a psychiatrist, testified about evaluating the petitioner at the request of the post-conviction defense team. He distinguished between neuropsychiatry and clinical psychiatry, acknowledging his understanding of neuropsychological testing despite not being a neuropsychologist. He collaborated with Dr. Kertay, a clinical psychologist, who conducted a three-day psychological evaluation of the petitioner. Dr. Woods used this evaluation to assess potential malingering and analyzed the test results, explaining that neuropsychological testing is more focused on brain function than personality assessments. The results showed that the petitioner put forth good effort, displaying strengths and weaknesses, with an average IQ but slightly below-average academic performance. Dr. Kertay’s report indicated the petitioner exhibited defensive denial, complicating his understanding of his circumstances, and noted his experiences of unusual religious visions that were not commonly shared, marked by feelings of joy and peace inconsistent with his environment.
Dr. Woods reported that tests indicated the petitioner had an elevated score on the bizarre mentations scale of the MMPI-2, suggesting his unusual thoughts approached psychosis, yet were primarily idiosyncratic. He noted the petitioner’s atypical religious experiences, while genuine, served defensively to shield him from difficult emotions. Woods concurred with Dr. Kertay’s assessment that the petitioner tended to deny his issues and present a positive outlook, without indicating psychosis or psychiatric disorder.
Dr. Kertay's evaluation highlighted the petitioner's difficulty in processing new information rapidly, which could hinder his understanding of complex situations under stress. While Woods found the petitioner courteous and engaged during their meeting in jail, he expressed concern that the petitioner did not fully grasp the seriousness of his circumstances, despite having an understanding of the situation and the legal process.
Woods reviewed prior evaluations and records, and believed further psychological testing was needed. Additional tests, including the Dallas Kaplan for executive functioning, were conducted by Dr. Pamela Auble. He explained that the frontal lobes, crucial for executive functioning, were potentially problematic for the petitioner, particularly regarding his denial of the situation's gravity. Dr. Auble noted the petitioner’s tendency to focus on superficial aspects of situations, which could lead to errors.
The Wechsler memory scale results indicated that the petitioner’s psychological profile was more aligned with being a follower than a leader. Woods described the petitioner as generally friendly and eager to please but noted his difficulty in recognizing the less favorable intentions of others. Testing showed that the petitioner retained limited information upon first exposure, scoring in the twenty-first percentile, but improved with repeated exposure, scoring in the thirty-ninth percentile, reflecting his challenges in quickly grasping critical information.
Dr. Woods assessed the petitioner as someone who acts impulsively, often making decisions without sufficient deliberation. He identified the influence of the petitioner’s environment, particularly the violent behavior of his father, on the petitioner’s psychological state. Dr. Woods emphasized the need to explore genetic factors affecting mental health and described a genogram as a tool to trace family medical and psychiatric histories, although one was not completed for the petitioner. Preliminary findings suggested behaviors indicative of potential genetic mood disorders, such as bipolar disorder or depression, within the family.
The petitioner exhibited poor problem-solving skills, which Dr. Woods categorized as a symptom following neuropsychological testing. He noted that trauma experienced by a parent could adversely affect parenting, acknowledging Ms. Burns's love for her children but recognizing her limitations due to past stressors. The family’s structure and environment, including the number of children and living conditions, were also considered as factors influencing the petitioner’s behavior.
Dr. Woods concluded that the petitioner faced significant impairments in decision-making, coping skills, and situational assessment, compounded by a chaotic family life marked by intermittent violence. While he noted the presence of symptoms, he could not definitively determine their origins due to incomplete investigations. He highlighted that the petitioner’s history was atypical for someone convicted of the offenses, with his actions being driven by a desire to help a friend. He linked the petitioner’s flight to Chicago to his impaired judgment and coping skills, also mentioning the petitioner’s refusal to cut his hair before trial as a relevant behavioral detail.
Dr. Woods provided testimony indicating that the petitioner exhibited a significant lack of understanding regarding his legal circumstances, particularly in relation to the felony murder principle. He could not definitively state whether the petitioner’s symptoms hindered his ability to consider plea offers. The petitioner claimed that the complexities of his situation were not adequately explained to him, which contributed to his misunderstanding of his legal standing, especially regarding the distinction between legal and moral responsibility. Dr. Woods expressed uncertainty about whether the petitioner's rejection of a life sentence was due to his psychological condition or a failure of his attorneys to inform him about the law.
During cross-examination, Dr. Woods noted that the petitioner had a long-standing religious fervor that intensified after his arrest and acknowledged that being on death row is inherently traumatic. He suggested that if the petitioner had been properly informed about the felony murder rule, he would have eventually comprehended it through repeated explanations.
The analysis section outlines the burden of proof for post-conviction relief, stating that the petitioner must demonstrate allegations by clear and convincing evidence, meaning there should be no substantial doubt regarding the conclusions drawn. It emphasizes that findings of fact by the post-conviction court are generally conclusive unless the evidence strongly contradicts them. When claims pertain to ineffective assistance of counsel, factual findings are reviewed de novo, with a presumption of correctness unless disproven. The petitioner contends that the court must conduct a de novo review of the entire record, arguing that the post-conviction court failed to make objective findings of fact.
Disagreement exists regarding the post-conviction court's conclusions, and the petitioner asserts a violation of constitutional rights during the hearing process while adhering to the standard of review established in Fields. The chronology of events begins with the original petition filed on August 19, 1999, followed by delays due to counsel's illness, leading to the official appointment on November 4, 1999. An amended petition was eventually filed on February 9, 2000, after several continuances, with an evidentiary hearing initially scheduled for June 19, 2000, then postponed to October 9, 2000, at the request of post-conviction counsel. A second amended petition was submitted on September 21, 2000, but subsequent requests for continuances and a motion to recuse the district attorney were denied. The hearing was rescheduled multiple times, ultimately taking place over several weeks in 2003, with the final session on September 5, 2003, where a third amended petition was rejected as untimely. The post-conviction court denied the petition on February 20, 2004. Key issues raised by the petitioner include a claim that the post-conviction court erroneously concluded he did not present mental health evidence, despite testimony from Dr. Woods regarding his mental health. Additional complaints involve trial counsel's failure to introduce expert testimony on ballistics, tool marks, pathology, and mental health functioning.
The post-conviction court found that the petitioner did not demonstrate ineffective assistance of trial counsel for failing to call psychological experts, as no such experts testified at the evidentiary hearing. Although the petitioner was approved funds for experts, including a psychologist, no evidence from these experts was presented. The burden of proof lies with the petitioner to show that the lack of these witnesses affected the jury's verdict, and the court determined this claim lacked merit. The State argued that the post-conviction court's findings were correct, noting that the testimonies of Drs. Auble and Kertay were not presented, but Dr. Woods did testify and indicated he relied on their evaluations. This led to the conclusion that the petitioner did provide psychological evidence, contradicting the court's findings.
Regarding trial counsel's filing of pretrial motions, the petitioner contended that numerous motions filed were inadequate for a capital case and that counsel failed to file essential motions. However, the post-conviction court found these claims meritless, noting that the petitioner did not specify any particular motion that should have been filed or how the motions impacted the trial outcome. Testimony indicated that trial counsel adopted motions from previous counsel and had access to the entire police file. The petitioner’s claims of failure to file a motion regarding forensic evidence integrity and a motion for Bill of Particulars were also found without merit, as there was no evidence presented to show that these failures affected the verdict.
The petitioner contends that his trial counsel's pretrial motions were insufficient, arguing that only form motions were filed without serious challenges to the death penalty, key motions were neglected, and crucial appeals were not pursued. However, the post-conviction court reviewed the pretrial motions, deemed them "numerous," and found no evidence presented during the hearing to support claims about specific motions that should have been filed or how they would have affected the verdict. The petitioner did not challenge this conclusion and failed to indicate the criteria for assessing the adequacy of the motions or the standard for determining ineffective assistance of counsel. The appellate court concluded that the petitioner's claims lacked merit.
Additionally, the petitioner claimed ineffective cross-examination of Eric Thomas, asserting that trial counsel did not utilize a transcript from a related trial to highlight inconsistencies in Thomas's testimony. While trial counsel did use Thomas's police statement identifying Carlito Adams as the shooter, they missed the chance to demonstrate a pattern of unreliable identification by failing to mention that Thomas identified Derrick Garrin in a separate case. Nevertheless, the post-conviction court ruled that the petitioner did not prove he was prejudiced by this alleged ineffectiveness, noting the absence of evidence regarding what Thomas's testimony would have been if fully cross-examined.
The Court noted a lack of clarity regarding witness Mr. Thomas's identification of the petitioner as one of his assailants. Mr. Thomas had previously identified the petitioner in a line-up shortly after the incident and testified that he was shot by the petitioner and another individual. However, during the trial, the State did not inquire further about another suspect, Garrin, despite Mr. Thomas's earlier identification and description of him. The Court speculated on the implications of Mr. Thomas's identification but found no evidence that a more thorough cross-examination would have altered the trial's outcome. The post-conviction court concluded that without demonstrating how different questioning would have affected Mr. Thomas's testimony, the petitioner could not claim ineffective assistance of counsel.
Furthermore, the petitioner contested the post-conviction court's findings regarding the lack of evidence that Kevin Shaw had a jheri curl or that the petitioner was not wearing a black trench coat. The post-conviction court found that the petitioner failed to prove trial counsel's ineffectiveness concerning his hairstyle, noting that the petitioner had not cooperated with counsel during pre-trial preparations. Despite evidence presented about the length of the petitioner's hair, it was established that he did not provide relevant names to assist in his defense. The Court recognized that the petitioner’s refusal to follow his attorneys' advice on cutting his hair contributed to the identification by an eyewitness, ultimately concluding that the attorneys could not be deemed ineffective due to the petitioner's lack of cooperation.
The court noted substantial evidence against the petitioner, including witness identifications and a description of the petitioner wearing a long black trench coat, which distinguished him from others at the scene. The petitioner had argued about the significance of his hair length, claiming he had short hair at the time of the crime, while witness Ms. Jones identified him as having a jheri curl. The court emphasized that the petitioner did not provide proof to support his claims regarding his hair or to substantiate that another individual, Kevin Shaw, was the person with a jheri curl. The court found no merit in the petitioner's arguments, stating that he failed to prove he was not the person in the trench coat or that his hair length was relevant to the case. Furthermore, the petitioner alleged a denial of due process during his post-conviction hearing due to insufficient funds for expert witnesses and bias from the court, which he argued hindered his ability to present his claims effectively. The court indicated it would consider these due process claims.
The petitioner claims a denial of necessary funds for expert witness services, which he argues hindered his ability to demonstrate the prejudice resulting from his trial counsel's failure to investigate mitigation issues. Initially, the post-conviction court authorized $5,000 for fifty hours of work by Dr. Lee Norton, a mitigation specialist, and later approved an additional $15,000 for 150 hours of work. However, the Chief Justice subsequently reduced the funding to $4,875 for seventy-five hours at a rate of $65 per hour, which Dr. Norton refused to accept, leading to her inability to complete her work. The petitioner contends this refusal and the funding limitations prevented him from presenting evidence of prejudice due to inadequate legal representation. The court, however, found that sufficient funds were provided, and the refusal of Dr. Norton to work for the reduced rate does not constitute a denial of funds by the court. The petitioner has not demonstrated that he could not hire another expert at the authorized rate, leading to the conclusion that he was not denied a full and fair hearing.
Dr. Norton’s contract with the petitioner’s counsel was limited to conducting interviews, although she also performed some traditional mitigation specialist functions, identifying herself as a consultant. She expressed surprise at being subpoenaed to testify as an expert and indicated she would have prepared differently had she anticipated this. Regarding Dr. Woods’s evaluation, he clarified that his description of the investigation as “incomplete” pertained to the unfolding process rather than a lack of thoroughness, and there was no evidence to suggest Dr. Woods’s opinion would have changed had Dr. Norton completed her interviews.
The petitioner alleged that the post-conviction court exhibited bias, hindering its ability to consider mitigation evidence and demonstrating hostility towards the concept of mitigation, thus denying him a full and fair hearing. Specific claims included testimony regarding the petitioner’s father, Obra Carter, who allegedly exhibited signs of mental illness. During the post-conviction hearing, Louise Carter’s testimony aimed to introduce evidence of Mr. Carter's sleep habits as indicative of mental illness. However, the state objected, and the court sustained the objection, questioning the relevance of the testimony. Post-conviction counsel argued that the sleeping patterns were significant for the mental health experts, who would address their relevance in their testimony, but the court dismissed the point, suggesting that a lack of sleep does not necessarily indicate mental health issues.
The court is questioning the existence of any evidence regarding the petitioner’s mental health issues, noting a lack of proof or documentation indicating such problems. Post-conviction counsel acknowledges that there is no indication that the petitioner shares a mental illness with Mr. Carter but suggests that behavioral symptoms exhibited by Mr. Carter, particularly in relation to his treatment of the petitioner, will be explored through upcoming testimony. The State objects, asserting that there is no basis for inferring a connection between Mr. Carter’s behavior and the petitioner, especially given that Mr. Carter has not been diagnosed with a mental illness and has had minimal impact on the petitioner. The court expresses concern regarding the relevance and reasonableness of the testimony being presented, emphasizing the need for a clear connection between any potential mental illness in Mr. Carter and the petitioner. Post-conviction counsel clarifies that they do not claim the petitioner has the same mental illness as Mr. Carter but insists that the nature of Mr. Carter’s interaction with the petitioner is significant and will be further elucidated by mental health experts.
The court sustained an objection regarding the relevance of evidence related to Obra Carter's sleeping habits, determining that there was insufficient evidence to link these habits to a mental condition, such as bipolar disorder. The post-conviction court found that Obra Carter had minimal influence on the petitioner’s life, as he had limited contact with the Burns children. Testimony from Louise Carter indicated that Obra Carter sometimes stayed out all night and sometimes came home at reasonable hours, but this did not establish a significant connection to the petitioner's claims. The court allowed Dr. Norton to present evidence of Obra Carter’s nocturnal behavior through his first wife, Zettie Thomas, who confirmed he often returned home late.
Additionally, testimony from Robin Burns, the petitioner’s sister, described physical discipline administered by Obra Carter, including whippings with a switch or belt. The court objected to the relevance of this testimony, questioning its significance to the petitioner without a clear link to his background or its impact on him. The petitioner’s counsel attempted to argue that the fear experienced by Ms. Burns during these incidents was relevant, particularly highlighting a specific instance when she wet her pants in anticipation of punishment. However, the court remained unconvinced of the relevance of this testimony.
The discussion centers on the nature and severity of discipline administered by Mr. Obra Carter to his children, specifically focusing on the use of a switch for spankings. The court expresses skepticism regarding characterizations of Mr. Carter's actions as "severe beatings" or indicative of a violent household, noting that the testimonies describe spankings rather than abuse. The court highlights a distinction between cultural perceptions of spanking and the contemporary understanding of child discipline, indicating that spankings with a switch on the legs were common in the past and not deemed abusive. Post-conviction counsel argues that the children's fear, exemplified by a 13-year-old's loss of bladder control, signifies the trauma associated with the discipline, suggesting expert testimony will clarify the impact of such experiences. The court, however, remains unconvinced of the relevance of this fear in relation to the petitioner, questioning the implications of the children's reactions and the characterization of Mr. Carter's discipline as extreme or abusive.
The post-conviction court sustained an objection regarding the relevance of evidence related to Obra Carter's alleged abusive behavior, specifically an incident involving embarrassment to a young woman, as there was no substantiated proof of ongoing abuse that affected the petitioner. The court acknowledged previous testimony from family members about Carter's punitive actions but determined that the specific incident in question did not contribute relevant evidence to the case. The petitioner argued that evidence of a troubled family background should typically be considered in mitigation, citing *Eddings v. Oklahoma*, but the court found that such evidence had already been presented through other witnesses.
Additionally, the petitioner claimed bias against Dr. Norton during her testimony, asserting the court displayed hostility towards mitigation efforts. Dr. Norton testified about the abusive environment created by Obra Carter, describing the fear and anxiety experienced by children in both the Carter and Burns households. The court questioned Dr. Norton’s definitions and comparisons between the two families but ultimately denied a request for a continuance to review transcripts, asserting that the experts could still provide testimony while emphasizing the differing dynamics between the two families concerning their interactions with Obra Carter.
A distinct difference in the environments of the Carter and Burns families is highlighted, with the Carter family reportedly living under strict rules and frequent punishments, while the Burns family experienced less frequent discipline, primarily related to specific behaviors when Obra Carter was present. The speaker challenges the generalization that all children lived in a climate of fear under Obra Carter, seeking to establish a distinction between the experiences of the Carter and Burns children. The petitioner argues that Obra Carter cannot be considered the head of a household he does not reside in, referencing the Internal Revenue Code, but the relevance of this point is questioned. The court notes that Obra Carter spent more time with his children from his marriage than with those from his relationship with Leslie Burns, suggesting the need to evaluate his treatment of all children. The petitioner also claims a violation of due process due to jury misconduct, alleging the jury foreman used a Bible verse during deliberations and that jurors discussed potential sentencing during the guilt phase. The State counters that this issue is waived since it wasn't raised on direct appeal and lacks sufficient evidence of jurors consulting extraneous materials. The court indicates that the State's waiver argument is also waived, as issues typically not addressed in post-conviction courts are not considered on appeal. The testimony of jury foreman Lloyd Davis will be reviewed in relation to these claims.
During the trial, a juror named Mr. Davis admitted to having a Bible in the jury room and recited a verse from Isaiah to another juror who expressed religious concerns about her ability to make a decision regarding the death penalty. Mr. Davis recalled that the verse indicated God's thoughts and ways are different from human understanding, but could not specify the exact chapter or verse. The state objected to further inquiries about jurors' internal communications, citing rules of evidence that limit juror testimony regarding deliberations. The court upheld this objection but allowed questioning to preserve the issue for appeal. Mr. Davis's testimony served as the basis for the petitioner’s claim that the jury improperly considered punishment during the guilt phase. The post-conviction court found that reciting a Bible verse was not prejudicial and noted that jurors often seek divine guidance in significant decisions. The court asserted that such actions do not violate the petitioner’s right to a fair trial. Tennessee Rule of Evidence 606(b) restricts juror testimony about deliberations but allows for inquiries regarding extraneous prejudicial information or improper outside influence. The rule emphasizes that jurors cannot testify about influences on their decision-making, except under specific circumstances.
In Walsh, the Tennessee Supreme Court addressed the application of Rule 606 regarding juror testimony related to external influences during deliberations. The court determined that while jurors can testify about the existence of extraneous information or improper influence, they cannot testify about its impact on their deliberative processes. If a petitioner demonstrates that a juror was exposed to prejudicial information or improper influence, a rebuttable presumption of prejudice arises, shifting the burden to the State to show that the influence was harmless.
In the case at hand, the petitioner failed to prove that the jury was exposed to such extraneous prejudicial information. The juror, Davis, was not specifically questioned about whether he displayed his Bible or whether the other jurors were aware of it during deliberations. Although he claimed to have recited a Bible verse, he could not identify it accurately and was not asked about the nature of his recitation. Therefore, the court concluded that the petitioner did not demonstrate that improper information was brought to the jury’s attention, negating the presumption of prejudice required to shift the burden to the State.
Additionally, the petitioner argued that the State violated his rights to due process and a fair trial through conflicting theories presented during his and his codefendant's trials, as well as the use of perjured testimony. His conviction for felony murder was upheld, but convictions for attempted murder were reversed due to the lack of a criminal offense for attempted felony murder. The relevance of inconsistent theories regarding the shooting of a witness was questioned, as it did not directly pertain to the convictions for the murders the petitioner was charged with, which he claimed were aimed at establishing his culpability for the death penalty.
The petitioner fails to reference specific evidence in the appellate record to support his claims regarding trial inconsistencies and witness testimony. During codefendant Garrin’s trial, Eric Thomas identified his assailant as "the big fellow with glasses," which the petitioner argues refers to Derrick Garrin, but he does not specify where this information can be found in the extensive trial transcripts. The petitioner also cites statements from witnesses Adams and Shaw but does not clarify how these confusing testimonies substantiate his assertions. He does not address why Thomas was not cross-examined as he believes appropriate, nor does he provide evidence that trial counsel or other witnesses were questioned on this point.
The court distinguishes this case from State v. Harrington, where a jury foreman improperly influenced deliberations, and finds the petitioner’s claim that the Shelby County District Attorney’s Office suborned perjury through Thomas to be unsubstantiated. The court notes that Thomas's inconsistent descriptions do not prove perjury, and the petitioner fails to direct the court to specific evidence supporting his allegations of subornation. Kevin Shaw's statement does not corroborate the petitioner’s claims, as he merely recounted fleeing the scene without identifying the shooter. The post-conviction court determined that no evidence was presented to support the petitioner’s theories of contradiction, and it ruled that the State did not present alternative theories of prosecution in the trials of co-defendants. The petitioner acknowledged his presence at the scene and admitted to firing a gun, with several witnesses identifying him as a shooter. The appellate brief lacks acknowledgment of the post-conviction court's findings, supporting the conclusion that the claims lack merit and that the record affirms the court's decisions.
The petitioner asserts ineffective assistance of counsel on appeal, citing several specific failures: inadequate investigation and presentation of evidence for lesser culpability, poor jury selection, failure to object to victim impact evidence, lack of expert assistance for mitigation investigation, insufficient mitigation evidence, and failure to prepare defense witnesses. Under the Sixth Amendment, the right to counsel includes the right to effective representation, which is essential for a fair trial and due process, as established by the Fourteenth Amendment. The standard for evaluating claims of ineffective assistance is derived from Strickland v. Washington, which outlines a two-prong test: the defendant must demonstrate that counsel's performance was deficient and that this deficiency prejudiced the defense, resulting in an unreliable trial outcome. Deficient performance is defined as falling below an objective standard of reasonableness, with courts applying a highly deferential scrutiny to counsel’s actions, presuming they fall within a reasonable range of professional assistance. The assessment should focus on the circumstances at the time of the counsel's actions, and courts will defer to tactical choices made by counsel if they are based on adequate preparation.
Criminal defendants are entitled only to constitutionally adequate representation, not perfect representation. In evaluating claims of ineffective assistance of counsel, courts focus on constitutional standards rather than what might be deemed prudent. In capital cases, scrutiny for constitutional deficiencies is particularly rigorous. A petitioner must demonstrate that counsel's performance fell below a reasonable standard and that this deficiency prejudiced the outcome of the trial under the Strickland test. This involves proving a reasonable probability that, had counsel performed adequately, the trial's result would have been different, undermining confidence in the outcome. Courts assess whether the deficient performance rendered the trial's result unreliable or fundamentally unfair, requiring proof that the failure to prepare a sound defense or present witnesses significantly affected the trial's fairness. A reasonable likelihood of a lesser charge or shorter sentence can satisfy the prejudice requirement. In death penalty cases, the petitioner must show a reasonable probability that, without counsel's errors, the sentencing body would have found that mitigating circumstances outweighed aggravating factors. The petitioner claims ineffective assistance due to trial counsel’s failure to adequately investigate, specifically regarding the relative culpability of other participants who were not charged, and argues that counsel inappropriately relied on the petitioner to present his defense without thorough investigation.
Kevin Shaw is the petitioner asserting that his trial counsel failed to adequately investigate his claims regarding his hairstyle at the time of the incident, which he insists was short rather than the jheri curl described by witnesses. The petitioner contends that trial counsel ignored his insistence and did not interview relevant witnesses, including Mary Jones, who lived nearby and witnessed the shooting. The post-conviction court reviewed the trial transcript and determined that the identification of the petitioner by witnesses was based on other factors, such as the long black trench coat he wore, rather than solely on hair length. Ms. Jones identified the petitioner in court, but the court noted that she had not made prior identifications before the trial. The petitioner admitted his presence at the scene with a firearm, and the court found no substantial evidence to support his claims regarding hair length or to prove that another individual, Kevin Shaw, was the one with a jheri curl. Consequently, the court concluded that the petitioner failed to meet his burden of proof, rendering his claims without merit.
The post-conviction court found no evidence supporting the petitioner's claim that trial counsel failed to show he had a shorter hairstyle during the incident. Senior trial counsel indicated that the petitioner could not identify any witnesses to confirm his hair length at the time, nor could he provide any names of individuals who could testify regarding his hairstyle. Although the petitioner provided a photograph of himself with short hair, it appeared to be much younger and similar to the photo used in the witness lineup, which could potentially reinforce the witness identification against him.
Trial counsel expressed frustration over the petitioner's decision to maintain a jheri curl hairstyle during the trial, believing it was detrimental to his defense given its relevance to witness descriptions. Despite attempts to persuade the petitioner to change his hairstyle, including involving his parents in the discussion, the petitioner refused, stating that he liked his hair. Junior trial counsel corroborated these efforts, confirming that they tried to convince the petitioner to cut his hair, especially since the description of the shooter included a jheri curl. Ultimately, neither counsel could recall the petitioner stating whether he had a jheri curl on the day of the crime or providing names of witnesses to support his claim.
Derrick Garrin was the only individual in the community with a jheri curl hairstyle at the time of trial, which stood out, as the style had fallen out of favor. Despite encouragement from others to cut his hair, the petitioner refused, maintaining his jheri curl, which some considered detrimental to his defense. The trial counsel struggled with the petitioner’s insistence that he had not worn the jheri curl during the offense, creating a challenging contradiction. The petitioner’s claims about changing his hairstyle for trial were unusual, as typically defendants alter their appearance to avoid associations with the crime.
The post-conviction court found support for the trial counsel's decisions, despite the petitioner’s assertions that they failed to use Eric Thomas’s testimony from Garrin’s trial to counter evidence of his supposed role as the shooter. The petitioner argued that proving his lesser involvement and highlighting the lighter sentences of his co-defendants were crucial for his defense. He contended that ineffective counsel led to missed opportunities to cross-examine witnesses and cast doubt on his involvement in the shooting.
The evidence presented at trial indicated that the petitioner, alongside Carlito Adams, approached a car occupied by four individuals. After Adams brandished a firearm, the petitioner also drew his gun. Witness Mary Jones testified that she observed Adams shoot one victim, while the petitioner was identified as the shooter of another. This testimony, along with evidence of the events surrounding the shooting, formed the basis of the prosecution's case against the petitioner.
The petitioner was identified clearly by a witness, who noted having a good view of him fleeing the scene following a shooting incident. Survivor Eric Thomas made a photographic identification of the petitioner shortly after the event, though he initially named another individual, Adams, under the stress of the situation. Following his arrest on June 23, 1992, the petitioner admitted his involvement in the shootings to FBI agents after waiving his rights, recounting that he was called by Kevin Shaw to confront four men, was given a handgun, and fired shots upon hearing gunfire.
During the post-conviction hearing, a witness described the shooter as having a shoulder-length jheri curl and wearing a long black trench coat, identifying the petitioner. Another witness characterized the shooter as tall and heavyset, which matched the petitioner's description. Trial counsel noted that the petitioner limited his defense options by admitting to his presence and actions at the scene. The defense strategy focused on challenging eyewitness identifications, but the credibility of the petitioner was undermined when he chose not to testify, which affected the defense's effectiveness.
Senior counsel highlighted inconsistencies in witness testimonies but noted a general consensus implicating the petitioner as the shooter. Most codefendants identified him as the trigger person, except for one. At the post-conviction hearing, the petitioner presented witnesses who claimed he did not have a jheri curl at the time of the incident.
Kevin Whitaker testified that in 1992, Kevin Shaw had a high-top hairstyle and often wore a trench coat, while noting that the petitioner’s hair was cut low. Samuel G. Brooks could not recall the petitioner having a jheri curl, as he last saw him in March 1992. Rodney Weatherspoon described Shaw's hair as bushy and longer with curls, stating he never saw the petitioner with long hair or a jheri curl. The petitioner’s mother, Leslie Burns, confirmed the petitioner had short hair at the time of the incident and began growing it longer only after his arrest, asserting there was no reason for him to change his hairstyle for trial. Renita Burns also testified that the petitioner never had long hair or used hair chemicals, while Steve Carter and George Michael Hissong stated he always kept his hair short.
The post-conviction court ruled that trial counsel was not ineffective in preparing for the trial's guilt phase. The petitioner claimed that counsel failed to interview crime witnesses, but both attorneys testified their investigator attempted to locate and speak to witnesses, though some, like Tommie Blackman, refused to cooperate. They secured the police department file and witness statements before trial and strategically delayed the petitioner’s trial to benefit from the testimony of earlier defendants. The court found no merit in the claim of ineffective assistance regarding witness interviews.
Furthermore, the petitioner alleged counsel's failure to talk to co-defendants Garrin and Adams. Testimony indicated one co-defendant refused to cooperate, while another identified the petitioner as the shooter, but there was no evidence that Garrin or Adams wished to testify for the petitioner or that their testimony would have been beneficial. The court concluded that the attorneys had reviewed relevant statements and testimony, with descriptions of the petitioner as a shooter and participant in the robbery from co-defendants. Overall, it found no testimony or statements that would have significantly aided the petitioner’s case or altered the jury's verdict.
The Court found no merit in the petitioner’s claim that the failure of defense counsel to interview certain witnesses affected the trial's outcome. Testimony indicated that trial counsel and their investigator attempted to interview key witnesses, but Tommie Blackman refused to cooperate. Counsel had access to the prosecution's file and trial transcripts, including evidence from co-defendants who identified the petitioner as the shooter and described him as wearing a black trench coat. Witnesses provided conflicting descriptions of the petitioner’s hairstyle, with some identifying him shortly after the incident while others claimed he had a jheri curl. The petitioner did not assist his counsel in establishing a defense regarding his appearance, refused to testify, and did not provide names of potential witnesses. The post-conviction court determined that the identification of the petitioner as the shooter was not solely based on his hairstyle, noting his statements to FBI agents and the strong evidence against him for the felony murders. The petitioner’s argument regarding ineffective assistance of counsel concerning mitigation evidence was also dismissed, as the claims about his background did not demonstrate inadequate representation. Overall, the petitioner failed to show any prejudice resulting from counsel's actions or inactions.
Norton, Woods, Kertay, and Auble analyzed the petitioner's various symptomologies, including traumatic stress, genetic vulnerabilities, and environmental factors, but the post-conviction court deemed these claims meritless. The petitioner asserted that his defense failed to prepare appropriate mitigation, arguing that the defense strategy was based on portraying him as a good person, which was undermined by his decision not to testify at trial despite earlier intentions. This lack of communication with his attorneys was noted as a failure to cooperate.
The court heard extensive testimony from multiple mitigation witnesses, including family and experts, but found no significant insights that explained the petitioner’s actions or suggested that his upbringing influenced the crime. Instead, evidence indicated he had overcome adversity, suggesting that the crime was out of character. The court concluded that the petitioner did not meet the burden of proof to show that the mitigation evidence would have altered the jury's verdict.
In the penalty phase, witness testimonies established that the petitioner acted recklessly by shooting into a vehicle with children present, confirming the aggravating circumstance of creating a great risk of death to multiple individuals. The petitioner failed to demonstrate that his sentence could have been different based on this evidence.
Regarding jury selection, the petitioner claimed that trial counsel inadequately questioned jurors about their views on the death penalty and did not pursue individual voir dire vigorously enough. However, the post-conviction court found that trial counsel were not ineffective, emphasizing that the depth of voir dire is a strategic choice made by the attorney to secure a fair and impartial jury.
Both trial counsels have significant experience in jury selection, including death-qualified juries, and expressed satisfaction with the jury selected, with no evidence presented to dispute this. The petitioner did not demonstrate that any juror was unfair or unqualified. Trial counsel had previously filed a motion for individual voir dire, which was denied based on standard policy in Shelby County that typically requires evidence of pretrial publicity to warrant such a request. Counsel employed standard questions to assess potential jurors' views on the death penalty, acknowledging that while jurors unable to impose the death penalty cannot serve, the strength of their convictions is difficult to gauge. Although no specific inquiries were made about jurors' willingness to impose the death penalty, courts have ruled that this does not necessarily indicate deficient performance. The decision to forego detailed questions regarding life sentences is deemed strategic, with valid reasons including avoiding jurors hearing each other's responses and preventing the impression of conceding guilt. The petitioner cited Morgan v. Illinois to argue that the failure to ask life-qualifying questions hindered jury challenges; however, Morgan affirms the right to request life-qualification without mandating such questions in all cases, indicating that counsel's strategic choices are permissible. The petitioner failed to provide evidence to challenge the conclusion that the decision not to ask life-qualifying questions was a result of trial strategy.
Junior counsel expressed concern that certain juror questions could imply a defendant's guilt. The post-conviction court determined that the choice not to ask "life-qualifying" questions of potential jurors was a strategic decision made by experienced counsel, supported by the record. The petitioner did not demonstrate that the trial's outcome would have differed had these questions been posed during voir dire. The petitioner also contended that counsel should have more vigorously pursued individual voir dire, including on direct appeal. However, the supreme court noted that collective juror examination is the standard practice, and individual voir dire is at the trial court's discretion, mandated only when there is a significant possibility of juror exposure to prejudicial material. The record indicated that the case was not high profile, thus no necessity for individual voir dire was established. The purpose of voir dire is to ensure juror competence and impartiality, and the petitioner failed to show any juror was unqualified or biased. Junior counsel's prior unsuccessful requests for individual voir dire further weakened the petitioner's argument.
Regarding the failure to object to victim impact evidence, the petitioner claimed ineffective assistance of counsel but did not question trial counsel about this during the post-conviction hearing. The post-conviction court found this claim lacking merit, stating that no evidence was presented to suggest the testimony was improper or that it influenced the jury's verdict. The court reviewed the testimony and deemed it appropriate, concluding that the victim impact testimony had minimal effect on the jury's decision. Testimony was provided by the mothers of the victims, detailing the victims' backgrounds and the impact of their deaths on their families.
Counsel challenged the admission of victim impact testimony from Jonnie Dawson and Brenda Hudson during the penalty phase of a trial. Ms. Dawson described the personal effects of the murder on her life, including divorce and unhappiness, while Ms. Hudson expressed ongoing grief and its impact on her family. The supreme court reviewed the admissibility of this testimony, emphasizing that while emotional impact evidence requires close scrutiny, the trial court acted within its discretion by allowing it. The testimony was deemed limited, reserved, and not inflammatory, aligning with capital sentencing statutes and constitutional standards. The prosecutor's reference to community impacts during closing arguments was noted, but the court concluded it did not result in fundamental unfairness or undue prejudice against the defendant. The petitioner claimed ineffective assistance of counsel for failing to object to the testimony, but the court found no prejudice since the admitted evidence was not inflammatory and determined that any potential error was harmless. Ultimately, the petitioner could not demonstrate that the outcome would have been different but for the alleged counsel error, leading to the rejection of the ineffective assistance claim on direct appeal.
An issue raised on direct appeal cannot serve as a basis for a claim of ineffective assistance of counsel in collateral review. The petitioner claims trial counsel failed to present significant mitigation evidence, including testimony regarding his character, parental abuse, and the challenging environment of his upbringing. He argues that trial counsel did not utilize expert services adequately, specifically by not employing a mitigation specialist and neuropsychologist, which he asserts resulted in substandard legal performance during the capital trial. In capital cases, a defendant's background and mental condition are crucial, as evidence of disadvantage or mental health issues may lessen culpability. However, while capital defendants have the right to present extensive personal information for mitigation, there is no constitutional requirement for counsel to present such evidence. Counsel's primary responsibilities include countering aggravating circumstances and preparing for both the guilt and penalty phases. To assess ineffective assistance claims regarding the failure to present mitigation evidence, courts must evaluate the nature and availability of unpresented evidence, whether similar evidence was introduced, and the strength of any aggravating factors that could have overshadowed the mitigating evidence.
To evaluate whether the petitioner has shown a reasonable probability that at least one juror would have opted against a death sentence with certain mitigation evidence, the court must reweigh aggravating evidence against the totality of mitigating evidence, referencing Wiggins v. Smith. The petitioner cites testimonies from Dr. Norton, a mitigation specialist, and Dr. Woods, a neuropsychologist, who both indicated that Obra Carter was abusive to individuals close to the petitioner. Dr. Norton highlighted that the Burns family experienced a physically and emotionally abusive environment, which could cause trauma in children. Dr. Woods identified the petitioner’s impaired coping skills, mental inflexibility, and poor judgment, attributing these issues to his environment and indicating they contributed to his decision-making failures during the offenses and his refusal to cut his hair pre-trial.
During sentencing, the petitioner’s defense presented six witnesses, among them family and church members, who testified to his positive traits, such as being obedient, well-mannered, and active in church. However, the petitioner criticized this evidence for lacking relevance to the victim, Kevin Burns. At the post-conviction hearing, senior counsel explained that an attempt was made to gather testimonies from various individuals connected to the petitioner but limited the number of witnesses to avoid cross-examination on the petitioner’s criminal history. Counsel admitted to not investigating the cultural context of West Memphis or the petitioner’s neighborhood, and noted that his parents did not indicate any issues during his childhood. Additionally, counsel saw no mitigation value in the proximity of the petitioner’s home to a housing project.
Senior counsel indicated that evaluations from Midtown Mental Health, the petitioner’s family, and 67 school records revealed no evidence of mental health issues for the petitioner. Counsel affirmed that had any concerns about the petitioner’s mental state arisen, they would have requested further court assistance. He believed the petitioner comprehended his defense but chose not to follow counsel's advice. Senior counsel detailed mitigation evidence as factors outlined in the statute, including the petitioner’s age, mental health, role in the crime, and family and societal background, noting he had never utilized a mitigation specialist. Junior counsel characterized the penalty phase defense, asserting that the petitioner was fundamentally a good person, but described it as very weak. He reiterated senior counsel’s position that the exclusion of certain mitigation witnesses stemmed from cumulative testimony and the desire to avoid delving into the petitioner’s criminal history. Their defense aimed to demonstrate that the petitioner had a stable upbringing and no justifiable reasons for his criminal involvement.
Counsel faced challenges in presenting mitigation evidence due to the petitioner’s mother's interference, which limited the introduction of certain evidence and the willingness of community witnesses to testify. Junior counsel noted that they did not investigate the culture of West Memphis, believing it similar enough to Memphis to not warrant mitigation. He acknowledged the strict nature of the petitioner’s father and the peculiar family dynamics but deemed them insufficient for mitigation. Despite recognizing that information regarding gunfire at the petitioner’s home could have been beneficial, it was never communicated to them. Junior counsel highlighted that their defense preparation was hampered by the lack of cooperation from the petitioner’s family, particularly the mother’s refusal to acknowledge her son’s criminal actions, including her alleged assistance in evading arrest. Throughout their investigation, both counsel found no evidence of mental or personality defects in the petitioner, confirming a stable childhood with adequate parental support, education, and basic needs.
The post-conviction court determined that the defense strategy centered on portraying the petitioner as a good person, arguing that his criminal behavior was out of character. The court noted the petitioner's claim of inadequate trial preparation concerning mitigation evidence. Despite a significant amount of testimony from mitigation witnesses, including family and experts, the court concluded that the evidence did not provide a clearer understanding of the reasons behind the petitioner’s actions on the day of the crime. The focus of the mitigation evidence largely centered on the petitioner’s father, with no substantial proof linking his upbringing to the offense. Instead, the evidence suggested the petitioner had successfully overcome adversity, reinforcing the notion that the crime was atypical for him. Consequently, the court found that the petitioner did not meet the burden of proof necessary to demonstrate that the mitigation presented could have altered the jury's verdict, deeming the claim to lack merit.
Furthermore, the court acknowledged the importance of effective counsel in capital cases, noting that while attorneys are not obligated to investigate every possible line of defense, they must conduct reasonable investigations or justify their decisions against the need for such investigations. The determination of whether counsel failed in this duty requires an objective evaluation based on professional standards at the time of representation.
Defense counsel is not obligated to investigate every potential line of mitigating evidence or to present such evidence in every case. The duty to interview every possible witness is also not mandated. An investigation is deemed sufficient if nothing alerts counsel to additional mitigating evidence after a reasonable inquiry. Although the petitioner identified potential witnesses who could have provided mitigating testimony, their absence does not constitute ineffective assistance of counsel. The post-conviction court concluded that the mitigation evidence presented indicated the petitioner was a generally well-adjusted individual whose crime was atypical for him, with much of the testimony focused on his father without explaining the reasons for the crime. Consequently, the petitioner did not demonstrate prejudice from the failure to call these witnesses.
The claim regarding the lack of a mitigation specialist or mental health expert is addressed by noting that there is no requirement for counsel to retain experts in every capital case. While the Supreme Court has set reasonable standards as guidelines, it has not established a strict checklist for counsel's duties, allowing for discretion based on the unique circumstances of each case. Counsel's independence further supports their discretion in deciding whether to engage experts. Additionally, not retaining a mitigation specialist does not preclude thorough background investigations, as counsel can utilize various resources such as family and friends. In this instance, the defense conducted an investigation and established a mitigation theory.
Witness testimony at the sentencing hearing corroborated trial counsel’s investigation and mitigation strategy. Although additional family history evidence was presented during the post-conviction hearing, it primarily related to Leslie Burns and Obra Carter, lacking direct relevance to the petitioner’s circumstances. The argument that trial counsel's investigation was limited by the petitioner’s cooperation is rejected; the U.S. Supreme Court has emphasized that reasonable investigation decisions depend significantly on the information provided by the defendant. Counsel was justified in relying on the petitioner and family members' assertions.
Trial counsel conducted a thorough inquiry into the petitioner’s background and concluded that the most effective mitigation defense focused on portraying the petitioner as "a good guy," with no indication from the petitioner or his parents that further investigation into family history was warranted. Although new information about the petitioner’s parents emerged during the post-conviction hearing, it aligned with the original mitigation theme. The petitioner bears the burden of proving that counsel's decision not to investigate further was objectively unreasonable, which he failed to do.
Counsel's choice not to hire a mitigation specialist was deemed reasonable based on available information. The petitioner also criticized the lack of a mental health expert; however, trial counsel had requested various expert evaluations, including a psychological assessment. This assessment found the petitioner competent and indicated no support for an insanity plea, information that was communicated to counsel who represented the petitioner at trial.
Senior counsel assessed the petitioner’s background, including childhood issues and family history, and determined that further investigation into the petitioner’s mental status was unnecessary. They found no evidence suggesting the petitioner lacked understanding of plea offers, and had there been any concerns about his mental condition, counsel would have pursued additional inquiries. Junior counsel corroborated that there were no signs of mental or personality defects in the petitioner.
Trial counsel’s unfamiliarity with certain details presented at the evidentiary hearing regarding the petitioner’s family mental health history and claims of "impaired judgment" was deemed reasonable. Counsel had engaged with the petitioner, his family, and others, none of whom indicated any family history of mental illness or the presence of mental defects. Legal precedent supports that counsel is not deficient for failing to uncover mitigating evidence if, after a reasonable investigation, no indications of such evidence emerge.
The absence of information regarding mental illness, alongside a mental evaluation showing no signs of such, justified counsel's decision against further mental health expert investigation. A review of the record indicated that trial counsel’s choice not to use a mitigation specialist or mental health expert was reasonable given the gathered information. The overwhelming evidence against the petitioner concerning aggravating circumstances was acknowledged, as determined by the supreme court, which supported the prosecution's claims regarding the risk posed by the petitioner’s actions.
The post-conviction court found that potential mitigation evidence presented was cumulative and did not provide a basis for concluding that it would have swayed the jury against imposing the death penalty. Consequently, the petitioner is not entitled to relief on this matter. Additionally, the petitioner alleged that trial counsel failed to prepare defense witnesses, referencing the testimony of Leslie Burns and Phillip Carter.
Leslie Burns, the petitioner’s mother, expressed that she was unaware of her role or the expectations for her testimony until the day she was called, indicating a lack of preparation by trial counsel. Phillip Carter, the petitioner’s half-brother, testified that he had minimal contact with the attorneys before taking the stand and was not properly informed about his testimony. The petitioner argues that this lack of preparation amounted to ineffective assistance of counsel, asserting that better preparation would have led to a more comprehensive examination.
During the penalty phase, Burns testified about the petitioner being 26 years old, having graduated high school without disciplinary issues, and having twelve siblings. Carter supported this by stating that the petitioner was active in church and avoided trouble, emphasizing his good character. At the post-conviction evidentiary hearing, Burns provided further context about her life and the petitioner’s upbringing, asserting he was a good son. Carter reiterated the petitioner’s positive attributes, including a strong work ethic and adherence to moral values.
Senior counsel defended the choice to limit the number of mitigation witnesses to avoid revealing the petitioner’s criminal record and to focus on positive testimonies. They asserted that the evidence indicated the petitioner had a normal childhood and was a good person. The defense strategy aimed to portray the petitioner as a “good guy” to argue against a death sentence. The post-conviction court concluded that the evidence presented supported the idea that the petitioner was a well-adjusted individual who committed an out-of-character crime. The petitioner did not demonstrate how further preparation of the witnesses would have changed the outcome of the penalty phase, failing to meet the burden of proof required.
Numerous constitutional challenges were raised by the petitioner regarding the imposition of the death penalty, claiming that both trial and appellate proceedings contained significant constitutional errors warranting vacating his death sentence. The court determined that these claims were waived as they should have been presented in earlier proceedings, referencing Tenn. Code Ann. 40-30-106(g). However, due to the petitioner's connection of these claims to ineffective counsel, the court chose to address them substantively.
The petitioner argued that his death sentence infringes upon his fundamental right to life, asserting that the death penalty fails to serve a compelling state interest and that less restrictive punishments exist. This claim was dismissed as contrary to established legal precedent.
Next, the petitioner contended that his death sentence violated due process under both state and federal constitutions, referencing Apprendi v. New Jersey. He argued that the indictment lacked necessary aggravating circumstances to classify the murder as capital. This argument was also rejected based on recent rulings from the Tennessee Supreme Court, which confirmed that statutory aggravating circumstances need not be included in the indictment.
Lastly, the petitioner claimed that the death penalty's discretionary nature, as applied by district attorneys, violated constitutional principles, suggesting a need for reconsideration in light of Bush v. Gore. However, this issue had previously been raised and rejected during his direct appeal, and the court indicated no change in its stance on the matter.
The petitioner contends that the prosecutorial function requires fairness in the prosecution of crimes, likening it to a state court remedy. However, the claim is rejected for several reasons. First, the precedent set in Bush, which was decided in 2000, is not applicable as it was not established until after the petitioner’s convictions were affirmed, and it does not create a retroactive new rule of law relevant to criminal procedure. The Supreme Court’s ruling in Bush pertains to voting rights, emphasizing that remedies must adhere to principles of equal treatment and fairness, and does not extend to criminal prosecutions.
Furthermore, prior rulings from the Supreme Court have upheld the constitutionality of death penalty statutes, rejecting claims that prosecutorial discretion in seeking the death penalty is unconstitutional. The Tennessee Supreme Court has similarly affirmed that such discretion does not render the death penalty arbitrary or unconstitutional, nor does it violate the separation of powers under the state constitution.
The petitioner also argues that lethal injection constitutes cruel and unusual punishment, but this claim is countered by recent state court decisions affirming the constitutionality of lethal injection as a method of execution. Lastly, the petitioner asserts that the death penalty violates international law and the Supremacy Clause of the U.S. Constitution, but this argument has consistently been dismissed by the courts.
In conclusion, after a comprehensive examination of the evidence and applicable law, the petitioner has not substantiated the claims in his post-conviction petition, leading to the affirmation of the post-conviction court’s order.
