Harris v. State

¶1ORDER DENYING PETITION TO REHEAR

¶2The appellant has filed a Petition to Rehear requesting that this court reconsider *178our opinion holding that the appellant received the effective assistance of counsel at the guilt and sentencing phases of his trial. He contends that the court’s opinion incorrectly states the material facts established by the evidence and set forth in the record, is in conflict with prior decisions, and overlooks material facts and propositions of law. Tenn. R.App.P. 39(a)(1), (2), and (3). Having thoroughly re-examined the record, we conclude that the issue of ineffective assistance of counsel has been adequately considered. Accordingly, the appellant’s Petition to Rehear is denied. Nevertheless, recognizing the heightened standard of scrutiny applicable to the review of a sentence of death and to insure that our conclusions are sufficiently reflected on the record, we elect to address certain points raised by the appellant in his Petition. See Tenn.Code Ann. § 39-13-206(c)(1)(B), (c)(1)(C) (1994 Supp.).

¶3First, the appellant contests this court’s citation to Dees v. Caspiri, 904 F.2d 452, 455 (8th Cir.), cert. denied, 498 U.S. 970, 111 S.Ct. 436, 112 L.Ed.2d 419 (1990), in support of the proposition that trial counsel’s failure to further investigate the authorship of the Maggie Valley letter was a reasonable strategic decision. We acknowledge, as correctly pointed out by the appellant, that under Tennessee law trial counsel would not have been required to disclose to the State any unfavorable opinion by an expert whom he did not intend to call at trial or whose report he did not intend to introduce at trial. Tenn.R.Crim.P. 16(b)(1)(B) and (b)(2). See also State v. Nichols, 877 S.W.2d 722, 729-730 (Tenn.1994), cert. denied, 513 U.S. 1114, 115 S.Ct. 909, 130 L.Ed.2d 791 (1995); State v. Vilvarajah, 735 S.W.2d 837, 839 (Tenn. Crim.App.1987); State v. Bell, 690 S.W.2d 879, 883 (Tenn.Crim.App.), perm. to appeal denied, (Tenn.1985). However, the appellant incorrectly infers that our evaluation of trial counsel’s investigation of the Maggie Valley Letter relied upon Dees, 904 F.2d at 452.

¶4Initially, we noted in our opinion that the appellant, by refusing to submit additional handwriting samples to the State, rejected an opportunity to exonerate himself as the author of the Maggie Valley letter. Moreover, the record does not support the appellant’s position that defense counsel failed to further explore a November 20, 1987, report by document examiner James Kelly, in which Kelly indicated that “Comparison of the writing of Rufus Edward Doby with the writing in [the Maggie Valley letter] discloses similarities, but there are not enough for a positive identification.” Kelly suggested in his report that the original copy of the Maggie Valley letter be submitted, along with additional writing samples from Doby.

¶5For the purpose of clarification, we will outline the events concerning defense counsel’s investigation of the Maggie Valley letter, as reflected in the record. Defense counsel received a copy of the Maggie Valley letter on February 2, 1988. They received samples of the appellant’s handwriting on February 26, 1988. On or about February 29, 1988, defense counsel Charles Sexton communicated with Kelly. Kelly apparently informed Sexton that he had eliminated co-defendants Doby, Pelley, and DeModica as the author of the Maggie Valley letter. Defense counsel received Kelly’s report on approximately March 11, 1988. On the same day, defense counsel also received reports completed by the State’s document examiner, Thomas Vastrick, which indicated that neither Pelley, DeModica, nor Doby had written the Maggie Valley letter. Vastriek’s reports also reflected a possibility that the appellant had written the letter, but Vastriek required additional handwriting samples. Notes recovered from the file of defense counsel William Goddard, dated March 15, 1988, indicated that Sexton and Goddard contemplated consulting another handwriting expert, Buster Brown. At the post-conviction hearing, Sexton testified that defense counsel spoke with Mr. Brown but did not request an analysis. On April 5, 1988, the State submitted a motion for additional samples of the appellant's handwriting. Defense Counsel submitted a motion requesting a certificate of need which would allow the appellant to subpoena James Kelly for trial. On April 7, 1988, defense counsel received a report from Thomas Vastrick indicating that he was still unable to establish that the appellant was the author of the Maggie Valley letter. On April 11, 1988, defense counsel discussed with the court their efforts to obtain an opinion from *179Kelly that Doby, rather than the appellant, was the author of the letter. They indicated that they would like to send the original Maggie Valley letter and additional samples of Doby’s handwriting to Kelly. On April 13, 1988, the court ordered the State to provide the requested materials to defense counsel, with the exception of the original Maggie Valley letter. However, the court indicated that, should the original letter prove indispensable, the State and defense counsel might, on their own, arrange to send the letter to Kelly, or defense counsel could submit additional motions to the court. Sexton testified at the post-conviction hearing that he could not recall specifically what happened after this hearing with respect to Mr. Kelly. However, he did state, “I believe at some point, in time, additional information [was] obtained, and I do believe that in the course of the proceedings those were eventually provided to Mr. Kelly.” He also testified that defense counsel did engage in further communication with Kelly. However, he could not recall the outcome of those communications. Sexton also stated that defense counsel spoke with Vastrick and determined that Vastrick was unable to testify that the appellant wrote the Maggie Valley letter.

¶6Thus, the record does not reveal whether or not Kelly was ever provided with the original Maggie Valley letter, additional samples of Doby’s handwriting, or samples of the appellant’s handwriting. As to the “eleventh-hour request for an expert on the eve of trial,” this request was not necessarily a reflection of “haphazard” investigation, but rather a reaction to the “eleventh-hour” production by the State of an additional witness prepared to testify that the handwriting in the Maggie Valley letter was that of the appellant. The burden is on the appellant at a post-conviction proceeding to prove the allegations in his petition by a preponderance of the evidence. McBee v. State, 655 S.W.2d 191, 195 (Tenn.Crim.App.1983). See also State v. Buford, 666 S.W.2d 473, 475 (Tenn. Crim.App.1983), perm. to appeal denied, (Tenn.1984). While admittedly the issue of ineffective assistance of counsel in this ease is a close one, we conclude that the appellant simply did not meet his burden of proof.

¶7With respect to counsel’s investigation at the penalty phase of the trial, we acknowledge that this court in Cooper v. State, 847 S.W.2d 521, 529 (Tenn.Crim.App.1992), indicated that there is a greater burden placed on defense counsel to investigate possible mitigating evidence at the penalty phase of a capital trial. However, in Cooper, 847 S.W.2d at 525-526, the defendant’s sister told defense counsel about “the defendant’s depression, attempted suicide, and his seeing [a clinical psychologist] ninety days before the killing.... she told the attorney about the involuntary commitment order which she had obtained for [the defendant] on the day of the killing.” This court found that the attorney’s failure to further investigate the defendant’s psychological background and condition was ineffective assistance of counsel. Similarly, in Adkins v. State, 911 S.W.2d 334, 355 (Tenn.Crim.App.1994), perm. to appeal dismissed, (Tenn.1995), defense counsel learned from family members and friends that the defendant’s father was an alcoholic who had abused the appellant. This court found that defense counsel’s decision to forgo further investigation of mitigating evidence and his failure to present mitigating evidence were ineffective assistance of counsel. In Bell v. State, No. 03C01-9210-CR-00364, 1995 WL 113420 (Tenn.Crim.App. at Knoxville), perm, to appeal denied, (Tenn.1995), this court found that counsel’s investigation and preparation for the penalty phase of the trial, including counsel’s failure to request a psychological examination of the defendant, constituted ineffective assistance of counsel. As in the instant case, counsel failed to obtain juvenile records that arguably revealed the defendant’s low I.Q. However, in Bell, No. 03C01-9210-CR-00364, counsel personally believed that the defendant was suffering psychological difficulties. Moreover, at the post-conviction hearing, counsel conceded that less preparation was done for the penalty phase of the trial than for the guilt/inno-eenee phase. Counsel described the investigative effort as “not overwhelming.”

¶8In the instant case, the record does not support the appellant’s assertion that defense counsel only began to prepare for the sentencing phase the weekend before trial. Rather, Sexton testified at the post-convic*180tion hearing that, prior to that weekend, he “had looked at that, and worked on that-” As stated in our opinion, defense counsel interviewed the appellant on many occasions. During an early interview, counsel used an eight to ten page form to gather background information from the appellant. Defense counsel contacted the appellant’s mother on several occasions. They also attempted to contact other individuals named by the appellant, largely without success. Sexton observed that “it was hard to find somebody that would take an interest in this man....” Sexton also testified that he could not recall being informed of either an abusive family situation or psychological or mental difficulties. There is no evidence in the record that defense counsel was aware of any psychological or mental difficulties. Indeed, Sexton testified that the appellant did not appear to suffer any “mental deficiencies.”1 The appellant testified at the sentencing phase that his poor performance in school resulted from a lack of motivation, rather than a lack of intelligence. With respect to medication administered to the appellant while he was in jail awaiting trial, we would simply note that in Elledge v. Dugger, 823 F.2d 1439, 1444-1445 n. 10 (11th Cir.1987), cert. denied, 485 U.S. 1014, 108 S.Ct. 1487, 99 L.Ed.2d 715 (1988), the court found that trial counsel should have pursued the issue of the defendant’s mental condition, upon learning that he was being treated with antipsychotic medications while in jail, because of trial counsel’s personal conviction that the defendant was “crazy.” In the instant case, Sexton testified that, at no time during the proceedings, did he feel that the appellant was suffering psychological difficulties.

¶9The appellant also argues that the jury had no choice but to return a verdict of death. Adkins, 911 S.W.2d at 356. We disagree. During the penalty phase, defense counsel emphasized to the jury the appellant’s limited education, the appellant’s difficult relationship with his parents during his childhood, the fact that the appellant ran away from home at an early age, remaining doubt concerning the appellant’s role in the murders, the fact that the appellant has two children, and testimony adduced during the guilt phase of the trial concerning various attempts by the appellant to “help[ ] people.” Defense counsel and the appellant asked that the jury exercise mercy.

¶10The appellant also suggests the presence of Eighth Amendment and Fourteenth Amendment claims stemming from the alleged errors of his trial counsel. This court acknowledges that the Supreme Court has held that it is a violation of the Eighth and Fourteenth Amendments for a state, by statute, or a judge to preclude a jury from considering mitigating evidence in a capital case. See, e.g., Hitchcock v. Dugger, 481 U.S. 393, 394, 107 S.Ct. 1821, 1822, 95 L.Ed.2d 347 (1987); Skipper v. South Carolina, 476 U.S. 1, 4, 106 S.Ct. 1669, 1670-1671, 90 L.Ed.2d 1 (1986); Eddings v. Oklahoma, 455 U.S. 104, 111-114, 102 S.Ct. 869, 875-876, 71 L.Ed.2d 1 (1982); Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 2964-2965, 57 L.Ed.2d 973 (1978). However, the Supreme Court has consistently analyzed counsel’s failure to present mitigating evidence against the standards of the Sixth Amendment. See, e.g., Burger v. Kemp, 483 U.S. 776, 788-795, 107 S.Ct. 3114, 3122-3126, 97 L.Ed.2d 638 (1987); Strickland v. Washington, 466 U.S. 668, 687-692, 698-699, 104 S.Ct. 2052, 2065-2066, 2070-2071, 80 L.Ed.2d 674 (1984).

¶11With respect to prejudice at the sentencing phase, under Strickland, 466 U.S. at 695, 104 S.Ct. at 2069, we must consider whether the sentencer would have concluded that the balance of aggravating and mitigating circumstances did not warrant death. Thus, contrary to the appellant’s assertion, in noting the brutal nature of the crimes involved, we in no way implied that the appellant’s crimes are “unmitigatable.” Moreover, in evaluating possible prejudice to the appel*181lant, our review is limited to those mitigating factors reflected in the record. Therefore, our observation concerning the mitigating evidence arguably available to the appellant was only intended to describe the evidence reflected in the record.2 In conclusion, we agree that it is neither this court’s right nor prerogative to impose any limitation on mitigating evidence that may be considered by the jury in a capital case. Hitchcock, 481 U.S. at 394, 107 S.Ct. at 1822; Skipper, 476 U.S. at 4, 106 S.Ct. at 1670-1671; Eddings, 455 U.S. at 111-114, 102 S.Ct. at 875-876; Lockett, 438 U.S. at 604, 98 S.Ct. at 2964-2965.

¶12For the reasons stated above, the appellant’s Petition to Rehear is denied.