David Lynn Jordan v. State of Tennessee ( 2016 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
May 3, 2016 Session
DAVID LYNN JORDAN v. STATE OF TENNESSEE
Appeal from the Circuit Court for Madison County
No. C-11-159 Don R. Ash, Senior Judge
No. W2015-00698-CCA-R3-PD - Filed October 14, 2016
_____________________________
The petitioner, David Lynn Jordan, appeals the post-conviction court‟s denial of his
petition for post-conviction relief in which he challenged his convictions of three counts
of first degree premeditated murder, two counts of felony murder, two counts of
attempted first degree murder, two counts of aggravated assault, and one count of leaving
the scene of an accident and his sentences of death. On appeal, the petitioner contends
that (1) he received ineffective assistance of counsel during both the guilt and penalty
phases of the trial; (2) the venue of the trial in Madison County, Tennessee, violated his
rights to a fair trial and due process; (3) the State committed prosecutorial misconduct by
suppressing evidence; (4) the selection and impaneling of the grand jury was
unconstitutional; (5) the post-conviction court erred in denying his motion to continue the
evidentiary hearing; (6) the post-conviction court erred in allowing trial counsel to assist
the State during the evidentiary hearing; (7) the post-conviction court erred in excluding
an expert witness; (8) Tennessee‟s death penalty scheme is unconstitutional; (9) his death
sentence is disproportionate; and (10) cumulative error warrants a new trial. Upon
reviewing the record and the applicable law, we affirm the judgment of the post-
conviction court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
ALAN E. GLENN, J., delivered the opinion of the Court, in which JOHN EVERETT
WILLIAMS and CAMILLE R. MCMULLEN, JJ., joined.
Sarah R. King and Kelly A. Gleason, Assistant Post-Conviction Defenders, Nashville,
Tennessee, for the appellant, David Lynn Jordan.
Herbert H. Slatery III, Attorney General and Reporter; James E. Gaylord, Senior
Counsel; James G. Woodall, District Attorney General; and Al Earls and Jody S. Pickens,
Assistant District Attorneys General, for the appellee, State of Tennessee.
OPINION
FACTS
The petitioner‟s convictions arose from a shooting on January 11, 2005, at the
Tennessee Department of Transportation (TDOT) facility in Jackson, Tennessee, where
the petitioner killed three people: Renee Jordan, his thirty-one-year-old wife who was
employed at TDOT; Jerry Hopper, an employee of the Tennessee Division of Forestry
who was at the TDOT office; and David Gordon, a motorist the petitioner ran off the road
en route to the TDOT garage. The petitioner also shot and injured two other TDOT
employees, James Goff and Larry Taylor. Following a jury trial, the petitioner was
convicted of three counts of first degree premeditated murder, two counts of felony
murder, two counts of attempted first degree murder, two counts of aggravated assault,
and one count of leaving the scene of an accident. The trial court merged the felony
murder convictions with the premeditated murder convictions involving the same victims
and the aggravated assault convictions with the attempted murder convictions.
The jury sentenced the petitioner to death for each of the three first degree murder
convictions. As to the first degree murder of Renee Jordan, the jury found that the State
had proven the following statutory aggravating circumstances beyond a reasonable doubt:
(1) the petitioner knowingly created a great risk of death to two or more persons other
than the victim murdered during the act of murder; (2) the murder was especially
heinous, atrocious, or cruel; (3) the murder was knowingly committed, solicited, directed,
or aided by the petitioner while he had a substantial role in committing or attempting to
commit first degree murder; (4) the petitioner committed mass murder; and (5) the
petitioner knowingly mutilated the victim‟s body after death. See Tenn. Code Ann. § 39-
13-204(i)(3), (5), (7), (12), (13). As to the first degree murder of Jerry Hopper, the jury
based the sentence of death upon the following aggravating circumstances: (1) the
petitioner knowingly created a great risk of death to two or more persons other than the
victim murdered during the act of murder; (2) the murder was committed for the purpose
of avoiding, interfering with, or preventing the lawful arrest or prosecution of the
petitioner or another; (3) the murder was knowingly committed, solicited, directed, or
aided by the petitioner while the petitioner had a substantial role in committing or
attempting to commit first degree murder; and (4) the petitioner committed mass murder.
See id. at (i)(3), (6), (7), (12). As to the first degree murder of David Gordon, the jury
based the sentence of death upon the following aggravating circumstances: (1) the
murder was especially heinous, atrocious, or cruel; (2) the murder was committed for the
purpose of avoiding, interfering with, or preventing a lawful arrest or prosecution of the
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petitioner or another; (3) the murder was knowingly committed, solicited, directed, or
aided by the petitioner while he had a substantial role in committing or attempting to
commit first degree murder; and (4) the petitioner committed mass murder. See id. at
(i)(5), (6), (7), (12).
The trial court sentenced the petitioner as a Range I, standard offender to
consecutive terms of twenty-five years for each of the attempted first degree murder
convictions, six years for each of the aggravated assault convictions, and thirty days for
leaving the scene of an accident. The Tennessee Supreme Court affirmed the petitioner‟s
convictions and sentences on direct appeal. See State v. Jordan, 325 S.W.3d 1, 15-16
(Tenn. 2010). In doing so, the court concluded that the evidence was insufficient to
support the aggravating circumstance that the petitioner murdered the victims “for the
purpose of avoiding, interfering with, or preventing [his] lawful arrest or prosecution” as
it applied to the first degree murders of Mr. Hopper and Mr. Gordon. Id. at 72-73; see
Tenn. Code Ann. § 39-13-204(i)(6). The court, however, concluded that the jury‟s
erroneous consideration of the (i)(6) aggravating factor was harmless beyond a
reasonable doubt. Jordan, 325 S.W.3d at 75.
The petitioner subsequently filed a petition for post-conviction relief, which was
later amended on multiple occasions following the appointment of counsel. Following an
evidentiary hearing, the post-conviction court entered an order denying relief. This
appeal followed.
TRIAL PROCEEDINGS
The Tennessee Supreme Court summarized the evidence presented at trial in its
opinion on direct appeal as follows:
The State‟s theory at trial was that [the petitioner] first threatened
and then decided to murder his wife because he believed she was having an
affair with a co-worker, Johnny Emerson, and because she told him she
wanted a divorce.
Johnny Emerson testified that he was employed as a mechanic at the
TDOT garage where Mrs. Jordan worked. Emerson explained that he and
Mrs. Jordan were “just real good friends,” but acknowledged that their
relationship had developed “[a] little bit” beyond a co-worker relationship.
Physically, their relationship was limited to hugging and kissing. Emerson
said that Mrs. Jordan had been talking about getting a divorce. On one
occasion, [the petitioner] telephoned Emerson at home regarding his
relationship with Mrs. Jordan. [The petitioner] told Emerson that he was
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“too old” for Mrs. Jordan and that he “needed [his] ass whooped.”
Emerson agreed with [the petitioner] that he “didn‟t have no business doing
what [he] did.” [The petitioner] also contacted Emerson‟s wife on
numerous occasions. At some point prior to January 11, 2005, Emerson
informed Mrs. Jordan that he was not going to divorce his wife. Emerson
testified that he was not at work on January 11, 2005, because he was on
medical leave.
Linda Sesson Taylor, an attorney in Jackson, testified that Mrs.
Jordan hired her on December 14, 2004, to represent her in divorce
proceedings against [the petitioner]. She said she initially prepared the
necessary documents for a contested divorce, and Mrs. Jordan told her she
would have the money to pay her fee after the Christmas holiday. Taylor
said she also prepared the paperwork to obtain a restraining order against
[the petitioner], and Mrs. Jordan had an appointment scheduled for January
12, 2005. Taylor identified a page out of her phone message book
indicating that Mrs. Jordan had called her office on January 11, 2005, at
9:56 a.m. wanting to know how much Taylor charged for an uncontested
divorce.
Kevin Deberry, the next-door neighbor of [the petitioner] and Mrs.
Jordan, testified that Mrs. Jordan called him on the night of January 10,
2005, and was upset with [the petitioner]. About an hour later, [the
petitioner] came to Deberry‟s house and asked Deberry to take Mrs.
Jordan‟s dog to their house and get his house key, but Deberry refused to
do so. [The petitioner] then told Deberry if he did not take Mrs. Jordan‟s
dog to her, he “was gonna take it over there and shoot it in the driveway.”
As [the petitioner] turned to walk away, Deberry noticed what he believed
to be a “snub-nose .38” in [the petitioner]‟s back pocket. [The petitioner]
then turned around and told Deberry that he “better watch [his] back, you
never kn[o]w which way the bullets are gonna fly.” Deberry called Mrs.
Jordan and told her to take her child and leave the house because [the
petitioner] was on his way over there. Mrs. Jordan told Deberry that [the
petitioner] had left some threatening voice mails on her phone. [The
petitioner] later called Deberry and apologized. The two men talked “for
awhile” and Deberry offered [the petitioner] a drink. [The petitioner]
declined but called back later and accepted Deberry‟s offer of alcohol.
Deberry said that he took a half-gallon bottle of vodka to [the petitioner‟s]
house at about 1:00 a.m. and put it in the freezer. Although [the petitioner]
and his children were still up when he arrived, Deberry did not stay and
returned home.
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Kenneth Evans, Mrs. Jordan‟s cousin, testified that he was aware
that [the petitioner] and Mrs. Jordan were having marital problems and, on
January 10, 2005, Mrs. Jordan called and told him that “she was about to
have a nervous breakdown, and she was scared of [the petitioner], that he
was calling threatening her.” Mrs. Jordan told Evans that [the petitioner]
“was on his way out to the house and that he said . . . it didn‟t matter how
many lawyers she had and how much money she had, that what he had for
her wasn‟t going to do her any good.” Evans advised Mrs. Jordan to leave
the house and go to the police department, but she refused to do so, saying
that [the petitioner] had “had run-ins with the police department before. He
would shoot me there whether the police was there or not, and he would
probably shoot them, too.” Evans then told her to come to his house, which
she did. After she arrived, they took Mrs. Jordan‟s three-year-old daughter
to Mrs. Jordan‟s mother‟s house. Evans later hid Mrs. Jordan‟s car at a
friend‟s house, and they returned to Evans‟ home around 10:30 p.m.
The following morning, January 11, 2005, Mrs. Jordan and Evans, a
TDOT “[p]arts runner,” went to work. Mrs. Jordan worked in the office of
the TDOT garage, which was commonly referred to as “the crow‟s nest.”
That morning, Evans was in the crow‟s nest with Mrs. Jordan until
approximately 11:10 a.m., when he left to go pick up some parts. Ricky
Simpson and James Goff were in the office with Mrs. Jordan when he left.
Vernon L. Stockton, Sr. testified that on January 11, 2005, he was
employed as an equipment mechanic at the TDOT garage which was
located in the same building as the crow‟s nest where Mrs. Jordan worked.
He said he knew that Mrs. Jordan and [the petitioner] were having marital
problems. Between 9:30 and 10:00 a.m. on the morning of January 11,
Mrs. Jordan handed Stockton her portable phone when it rang and asked
him to answer it. Stockton recognized the caller‟s voice as that of [the
petitioner]. [The petitioner] asked to speak to Mrs. Jordan, but Stockton
told him that she was in the restroom because she did not want to talk to
him. Stockton said he later left TDOT to pick up some parts and was not
present when the shooting occurred.
Sonny Grimm testified that he was riding in a Ford pickup while
Paul Forsythe was driving it westbound on Lower Brownsville Road on
January 11, 2005. The two men worked for Ralph‟s Trailers and were on
their way to pick up some starter fluid for a backhoe. A green car was
traveling in front of them. As they approached Anglin Lane, Grimm saw
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[the petitioner], who was driving a red pickup truck, run a stop sign and
strike the green car, knocking it off the road. Grimm wrote down the
license plate number of [the petitioner‟s] vehicle; he said that [the
petitioner] continued traveling toward the TDOT garage. Grimm, Forsythe,
and the driver of the green car followed [the petitioner] to the garage.
There, Grimm saw people running everywhere. Forsythe gave the driver of
the green car the license plate number of the red pickup truck. [The
petitioner] came out of the garage and told the driver of the green car, “You
better leave.” The driver responded, “I‟m not going [any] where.” [The
petitioner] said, “yes, you are, too,” reached inside his truck, pulled out a
rifle, and shot the driver.
Paul Forsythe testified that, on the morning of January 11, 2005, he
and Sonny Grimm were traveling west on Lower Brownsville Road behind
a green car when they saw a red Mazda pickup truck come down Anglin
Lane, run a stop sign, and strike the green car, knocking it off the road.
Forsythe followed the truck to get its license plate number for the driver of
the green car. Because he was driving, Forsythe called out the license
number to Grimm, who wrote it down. The pickup truck then ran a four-
way stop and turned into the main entrance of TDOT. Forsythe called 911
and pulled into the TDOT parking lot. The green car then pulled up, the
driver got out, and Forsythe gave the driver, David Gordon, the tag number
of the pickup truck. As Gordon was walking back to his car, [the
petitioner] came out of the TDOT building and told Gordon to leave. When
Gordon said, “I‟m not going [any]where,” [the petitioner] said, “You will”
and then reached inside his truck and pulled out a long gun. Gordon threw
his hands up in the air and told [the petitioner], “Please don‟t shoot. Wait a
minute.” However, [the petitioner] started shooting, and Forsythe and
Grimm fled the scene.
Randy Joe Perry, a TDOT employee, testified that on January 11,
2005, [the petitioner] came to the TDOT garage and pushed Perry out of his
way as he approached the steps leading up to the crow‟s nest where Mrs.
Jordan worked. David Pickard, another TDOT employee who was standing
near Perry, said, “Who was that son-of-a-bitch?” [The petitioner], who had
his right hand in his coat pocket, turned around and gave Perry and Pickard
a “hard look” before going upstairs to the crow‟s nest. Perry then heard
three or four gunshots and, looking through the window in the crow‟s nest,
saw [the petitioner] pointing a gun at Jerry Hopper who was sitting in a
chair. Perry heard another gunshot and saw Hopper slump over. Hearing
more gunshots, Perry ran and got behind his truck. Shortly thereafter, [the
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petitioner] calmly walked outside to his vehicle. Perry next noticed a man
get out of another vehicle and walk toward [the petitioner]. [The petitioner]
reached inside his truck and retrieved a rifle. The man who had been
walking toward [the petitioner] stopped and raised his hands. A few
seconds later, [the petitioner] fired several shots at the man. Perry
described the shots as coming from a “fully automatic” and so quick that he
could not count them. The man [the petitioner] shot “went out of sight
down behind the vehicle.” [The petitioner] walked over to the fallen man,
shot again, “and then he turned and just calmly walked back towards his
truck, put the rifle in his truck, just eased in there and drove off just as
easy” toward the front gate.
David Thomas Pickard testified that he was standing near the stairs
with Randy Perry and other employees when [the petitioner] came in the
garage and shoved him and Perry backwards as he walked past the group of
men. Pickard responded by saying, “Who does that crazy son-of-a-bitch
think he is?” [The petitioner], who smelled of alcohol, turned around and
got in Pickard‟s face “like he wanted to whoop [him].” [The petitioner]
then proceeded upstairs to the crow‟s nest where Mrs. Jordan was facing
the window. Pickard saw [the petitioner] shoot Mrs. Jordan and described
the shooting: “The first time it went „Pow‟ and she went like this and come
back and he went „Pow, Pow, Pow,‟ like that.” Pickard ran out of the
garage to his office located across from the garage. After instructing the
employees in his office to lock the door, Pickard went back outside and saw
[the petitioner], pistol in hand, exit the garage and go to his truck and
retrieve a rifle. Pickard went back inside the office and, a few minutes
later, saw [the petitioner] leave in his truck. Pickard then went to the
crow‟s nest where he saw Mrs. Jordan and Jerry Hopper lying on the floor.
He said he looked at Mrs. Jordan and knew she was dead, but Hopper was
still alive and a man was trying to resuscitate him. Outside in the parking
lot, Pickard saw another man lying on the ground. He said the man was not
dead at that time, but he “was turning real yellow-looking and blood was
everywhere.”
James Goff testified that he was in the crow‟s nest with Mrs. Jordan,
Larry Taylor, and Jerry Hopper when [the petitioner] came in, raised his
shirt, and pulled out what appeared to be a nine-millimeter pistol. Mrs.
Jordan had her back to the door, and [the petitioner] called out her name.
Mrs. Jordan turned around, and [the petitioner] started shooting. Goff
stated that [the petitioner] was about 6 feet away. [The petitioner] shot
Mrs. Jordan in the chest and fired additional shots, including what appeared
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to be a shot to the forehead. [The petitioner] then shot Hopper. Taylor
dove under a desk, and [the petitioner] shot Goff in the leg, the right side of
the neck, the arm, and the stomach. Although he did not see Taylor being
shot, Goff heard two more shots and heard Taylor grunt. As [the petitioner]
was leaving the crow‟s nest, Goff heard him mutter, “I love you, Renee.”
After [the petitioner] left the room, Goff got up and asked Taylor
about his condition. He saw Hopper lying on the floor “in bad shape” and
Mrs. Jordan was dead. Goff was then able to make his way to the main
office for help. He said he was hospitalized for three days as a result of his
injuries.
Larry Taylor testified that he was ending a telephone call inside the
crow‟s nest when [the petitioner] entered the room, stood there “for a
moment or so,” pulled his coat back, brandished a weapon, and took a
“police stance.” [The petitioner] then called Mrs. Jordan by name and,
when she turned to face him, shot her. One gunshot struck her in the
stomach area. She fell back in a chair, and [the petitioner] fired two
additional shots, with the second shot striking her torso “a little higher up”
and the third shot striking her in the head. Mrs. Jordan fell to the floor, and
Taylor could tell that she was dead. Taylor dove under a desk for
protection, heard more gunshots, and saw Goff fall. He then heard more
gunshots and felt pain in his legs. Taylor heard the door close, and Goff
asked him if he was all right before leaving the room. Taylor then got up
and saw Hopper on the floor on his knees with his face in his hands and
saw Mrs. Jordan on the floor with her face in a pool of blood. He called
911 and was trying to assist Hopper when he heard the door open and saw
[the petitioner] with “a rifle-type gun.” Taylor looked [the petitioner]
“square in the eye” and stood back up, holding both his hands in front of
him. He asked [the petitioner] if he could leave, and, after a brief pause,
[the petitioner] said, “Yeah, you can go out now.” After Taylor got
downstairs, he heard gunshots in rapid succession and hurriedly went out
the door. He saw Goff, who was “kind of delirious” and holding a towel to
his neck, and told another employee, Alvin Harris, to drive Goff to the
hospital in the parts truck. Taylor then got in his car and drove himself to
the hospital where he was treated for the gunshot wounds to his legs.
Freddie Ellison, a reserve sheriff‟s deputy and a mechanic at TDOT,
testified that when he returned to the garage from his lunch break around
11:30 a.m., people were running out of the garage. He then observed [the
petitioner], whom he had known for approximately twenty years, walk out
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the roll-up doors of the garage. Ellison asked [the petitioner] what he was
doing. [The petitioner] raised his right hand and Ellison saw two semi-
automatic handguns. [The petitioner] said, “Go on. Back off. Just go on.
Back off.” [The petitioner] had his hand on one of the guns. Ellison
retreated to the back of the building where he observed David Gordon pull
up in a green car. Gordon announced that “[t]he guy in the red pickup truck
has run over me,” and Ellison advised Gordon to “back off” because [the
petitioner] had a gun. Gordon refused, stating that he had the police on the
way. Ellison then heard “automatic” gunfire and called the Madison
County Sheriff‟s Department for assistance. He and Willie Martin left
TDOT and went “out on 223.” He saw [the petitioner] leave in his red
pickup truck, driving normally and headed toward Jackson.
Shortly thereafter, Ellison observed an unmarked police unit and
advised dispatch to instruct the unit to follow [the petitioner]. Ellison then
returned to the TDOT garage and saw David Gordon on the ground.
Gordon had been shot multiple times. Inside the crow‟s nest, Ellison
discovered “blood all over the floor” and saw Mrs. Jordan lying on the floor
with multiple gunshot wounds. He described Mrs. Jordan as being “shot all
to pieces,” including being shot in the forehead. Jerry Hopper had been
shot several times in the chest.
Alvin Harris, a “store clerk” at TDOT who picked up and delivered
parts, testified that he heard gunshots and went to the garage where he
encountered Goff who was holding his throat and bleeding. He also saw
Taylor who was “real pan icky” and pointed to his legs when Harris asked
him if he was hurt. Taylor told Harris that [the petitioner] had shot Mrs.
Jordan and that she was “gone.” Because Goff was losing a lot of blood
and Harris feared death was imminent, Harris decided to drive Goff to the
hospital rather than wait for the ambulance.
Darrell Vaulx, a TDOT mechanic, testified that as he was leaving the
shop on January 11, 2005, he saw [the petitioner], Mrs. Jordan, Hopper, and
Taylor through the glass window in the crow‟s nest. [The petitioner]
pointed a gun at Mrs. Jordan, and she fell. Vaulx heard two more gunshots
and saw [the petitioner] turn toward the men in the crow‟s nest. Vaulx said
he and other employees ran outside to the parking lot where Vaulx saw [the
petitioner‟s] red Mazda pickup truck. Vaulx then saw [the petitioner] come
outside and calmly walk to his truck. Thinking that [the petitioner] was
leaving, Vaulx ran inside to the crow‟s nest where he found Mrs. Jordan on
the floor with three gunshot wounds to the head. Someone yelled, “He‟s
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coming back,” and Vaulx ran back outside to the parking lot and noticed
that [the petitioner‟s] truck was still there. He then heard a noise that
sounded like an airgun or a rifle. After someone said [the petitioner] was
getting in his truck and leaving, Vaulx went back inside and found Hopper
who was “breathing just a little bit” and “[s]quirming” like he was in pain.
Vaulx administered CPR to Hopper until the paramedics arrived.
George Washington Bond, a TDOT employee who worked in the car
wash room in the garage, testified that he heard “three pops,” looked out
the window in the garage door, and saw [the petitioner] standing over “the
victim.” [The petitioner] then looked at Bond and shook his head, which
Bond interpreted to mean “[d]on‟t get involved.” Bond saw what appeared
to be the grip of a gun in [the petitioner‟s] hand. [The petitioner] then
walked into the garage and went to the crow‟s nest. Bond saw [the
petitioner] pointing a long gun toward where Mrs. Jordan sat. Bond then
ran to another building and did not return to the garage. On cross-
examination, Bond acknowledged that he did not see [the petitioner] shoot
“the victim.”
Barbara Surratt, Mrs. Jordan‟s mother-in-law from a previous
marriage, testified that, even after Mrs. Jordan and her son divorced, she
remained “very close” with Mrs. Jordan. During the early part of 2005,
Mrs. Jordan was staying with Surratt at her home on Old Pinson Road. On
January 11, 2005, at approximately 1:30 a.m., Surratt received a telephone
call from [the petitioner]. [The petitioner] told her that he knew Mrs.
Jordan was not there and asked her to tell Mrs. Jordan “happy birthday” the
next time she saw her. Surratt stated that Mrs. Jordan‟s birthday was not
until February. Around 11:30 a.m., Surratt telephoned Mrs. Jordan at work
and, during their conversation, heard an “ungodly racket, loud noises” and a
sound like “a chair go across the room.” She screamed Mrs. Jordan‟s
name, but got no answer. After it became quiet, Surratt heard [the
petitioner] say, “Renee. Renee. I hate you.”
Jackson Police Sergeant Mike Thomas testified that he was on patrol
in an unmarked cruiser on Vann Drive when he received a call about the
shooting at the TDOT garage. En route to the scene, Sergeant Thomas was
advised that the suspect had a machine gun. Before reaching the TDOT
garage, he observed a red Mazda pickup truck matching the description of
the suspect‟s vehicle and began pursuit of the truck. The truck ran a stop
sign. Shortly thereafter, a marked patrol unit, driven by Sergeant Sain,
passed the truck on Anglin Lane. Sergeant Sain turned his cruiser around
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and joined the pursuit. Another unmarked unit, driven by Captain Priddy,
joined the pursuit after the suspect‟s vehicle forced Captain Priddy‟s
vehicle off the road. Officer Maxwell placed his patrol cruiser in position
to do a partial roadblock. The suspect‟s vehicle hit Officer Maxwell‟s car,
and Sergeant Thomas pulled in behind it to block it from leaving. The
suspect, identified as [the petitioner], was taken into custody. A search of
[the petitioner‟s] person revealed a loaded .45 caliber pistol and a loaded
nine-millimeter pistol. Inside [the petitioner‟s] truck, the officers
discovered a rifle and a shotgun.
Officer Ted Maxwell of the Jackson Police Department testified that
he responded to a call concerning the shooting at the TDOT garage. En
route to the scene, he encountered [the petitioner], driving a red pickup
truck, followed by two police units. Officer Maxwell said he was traveling
north on Anglin Lane, and [the petitioner] was traveling south. Ultimately,
Maxwell managed to stop [the petitioner] by ramming the front of his
vehicle. [The petitioner] got out of his vehicle, and Maxwell noticed a gun
in the small of his back under his belt. Sergeants Sain and Thomas placed
[the petitioner] on the ground and removed two handguns from him that
Maxwell identified as an Intra Arm Star .45-caliber semi-automatic with a
clip containing six live rounds and one live round inside the chamber, and
an Intra Arm Star nine-millimeter semi-automatic with a clip containing
two live rounds and one live round in the chamber. Maxwell said that eight
.45-caliber and nineteen nine-millimeter rounds were recovered from [the
petitioner‟s] pockets.
Tennessee Highway Patrol Sergeant Johnny Briley testified that he
initially received a call regarding a hit-and-run accident on Lower
Brownsville Road at Anglin Lane involving a red Mazda pickup truck.
While proceeding to that location, he received another call about the
shooting at the TDOT garage. He received information that there were
multiple victims involved. Before he reached the TDOT garage, he
observed that the suspect vehicle had been pulled over by Jackson police
officers. He stopped at the scene. Sergeant Briley said that he had known
Mrs. Jordan and her family for thirty years and also knew [the petitioner].
As [the petitioner] stood up, he told Sergeant Briley, “She fucked me over,
Johnny.” Sergeant Briley responded, “No, she didn‟t, David.” Sergeant
Briley, who was standing within a foot of [the petitioner], detected an odor
of alcohol on [the petitioner‟s] person. [The petitioner] was subsequently
placed in the backseat of a police car.
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Jackson Police Officer Rodney Anderson testified that, en route to
the scene of the shooting, he received a call that the suspect was headed
down Anglin Lane. Officer Anderson turned onto Anglin Lane where he
observed a vehicle matching the description of the suspect‟s vehicle
between two patrol cars. The driver of the vehicle, [the petitioner], was
taken into custody and placed in the backseat of Officer Greer‟s marked
police unit. As Officers Greer and Anderson were transporting [the
petitioner] to the Criminal Justice Complex, [the petitioner] spontaneously
told them that:
he could have cut the police in half with his weapon,
that he had full auto. He stated that his wife‟s dead and she‟s
full of holes. He stated she drove him crazy . . . by fucking
around on him, and he advised that he shot her with her
brother‟s gun. He also stated that he feels sorry for his
daughters, and that Mrs. Jordan wouldn‟t be fucking around
on anybody else.
[The petitioner] also said that the other people “just got in the way”
and asked how many people were hurt. [The petitioner] also said that his
wife “hurt him and tore his heart out” and that he had been “going crazy”
for a month. Officer Anderson said that [the petitioner] smelled of alcohol.
Investigator Jeff Shepherd of the Jackson Police Department
testified that, as part of his investigation, he retrieved and recorded voice
mail messages left on Mrs. Jordan‟s cell phone. The audiotape of the
messages was entered into evidence and played for the jury; a transcript of
the messages was also provided. The messages included one left at 10:48
p.m. on January 10, 2005, stating “You‟re the only asshole on the face of
this earth that I truly hate”; one left at 2:11 a.m. on January 11, 2005,
stating “I‟ll see you at work, bitch”; one left at 2:17 a.m. on January 11,
2005, stating “I hope you go to work tomorrow, bitch, „cause you‟ll be
there one day. It may not be tomorrow, but I will catch up with your
raggedy ass. Your day is coming.”; and one left at 2:19 a.m. on January 11,
2005, stating “You home wreckin‟, low life, sorry mother fuckin‟ bitch.
Your ass is gonna pay.” Additionally, Investigator Shepherd was involved
in the booking process of [the petitioner], during which [the petitioner]
asked him if Mrs. Jordan was “real bad messed up.” [The petitioner]
started crying and told Shepherd that most people probably thought he was
crazy, but he was not crazy, he was “driven to crazy.” [The petitioner] also
12
said that the assault rifle he used in the shooting belonged to his brother-in-
law, Dale Robinson.
Trent Harris, a paramedic at Jackson-Madison County General
Hospital, testified that he and Corey Shumate, an emergency medical
technician, responded to the scene at the TDOT garage, arriving at 11:39
a.m. They first attended David Gordon, who was lying on his back in the
parking lot and appeared to have gunshot wounds to the upper right and
upper left portion of his abdomen. Gordon was not breathing but had a
faint pulse. Harris intubated Gordon and immediately began transportation
to the hospital. En route, Gordon lost a pulse and CPR was initiated. Upon
their arrival at the hospital, Gordon‟s care was transferred to the hospital‟s
trauma team.
Dr. Herbert Lee Sutton, a trauma surgeon at Jackson-Madison
County General Hospital, testified that he tried to save David Gordon‟s life
once he arrived at the hospital. Dr. Sutton was able to regain a heartbeat on
Gordon and performed surgery to try to stop the bleeding in his abdomen
and perineum. Dr. Sutton described what he saw when he surgically
opened Gordon‟s abdomen: “[T]he blast injury from what he was shot with
had almost morselized his intestines. It was like soup. And I‟m quite sure
even if I had stopped him from bleeding and he had regained everything, he
probably wouldn‟t have had any small intestine left from what I could see.”
Despite all of Dr. Sutton‟s lifesaving procedures, Gordon died at 12:47 p.m.
Dr. Sutton testified that he also treated James Goff on January 11,
2005, for multiple gunshot wounds which he described as wounds to the
left arm, abdomen, left thigh, and neck. The gunshot wound to the neck
“went anterior to the trachea and the carotid vessels which are the main
vessels that go[ ] to his brain.” The bullet did not hit any major arteries or
veins. Dr. Sutton stated that Goff remained hospitalized until January 13,
2005.
Eric Leath, a paramedic with the Medical Center EMS, testified that
he was also dispatched to the TDOT garage. Upon his arrival, he was
directed inside to an office where he observed a man lying on the floor on
his back and a woman lying inside the door to the left. The woman had “a
massive . . . injury to her head that had blood tissue lying all around, pooled
around her head” and had no signs of life. The other victim, Jerry Hopper,
was very pale and had “some gasping or . . . agona[l], gasping-type breaths,
just very shallow, slow.” Hopper had a faint carotid pulse. Leath inserted a
13
breathing tube, but Hopper was unresponsive. A Jackson police officer
offered assistance to Leath and began CPR. Hopper was then moved to an
ambulance and transported to the hospital. Upon arrival at the hospital,
Hopper exhibited no signs of life.
Dr. David James testified that he treated Jerry Hopper, who had two
gunshot wounds to his abdomen. Upon Hopper‟s arrival at the hospital, he
was not breathing and all attempts at resuscitation were unsuccessful.
Hopper was pronounced dead at 12:34 p.m. Dr. James also treated Larry
Taylor at the Jackson-Madison County General Hospital. Taylor had
suffered gunshot wounds to both of his upper legs.
Dr. Tony R. Emison, the medical examiner and coroner for Madison
County, testified that he requested autopsies on the bodies of the three
deceased victims. The bodies were sent to the state medical examiner‟s
office in Nashville.
Dr. Staci Turner testified that she performed the autopsy on Mrs.
Jordan. Dr. Turner found that Mrs. Jordan had been shot eleven times,
resulting in wounds to the head, torso, and right leg. Dr. Turner found
injuries to the scalp, the skull, the bones of the face, the brain, multiple ribs,
the right lung, the diaphragm, the liver, the right kidney, the stomach, the
small intestine, the urinary bladder, and the uterus. Dr. Turner recovered
multiple bullets, bullet jackets, bullet cores and white plastic disk fragments
during the autopsy. The gunshot wound to Mrs. Jordan‟s forehead was
fired from a handgun within a foot of the body.
Dr. Turner discovered a visible bullet in a partial exit wound in the
back of Mrs. Jordan‟s head. She recovered the bullet and the jacket that
had separated from the bullet. The bullet was identified as a Black Talon-
type bullet, one fired from a handgun. She described the bullet as having a
bullet core and a jacket, “and when it enters the body, the jacket usually
opens and forms sharp points that look like talons.” Other fragments
discovered in Mrs. Jordan‟s body were identified as coming from a high-
powered assault rifle. Dr. Turner described the wounds associated with the
bullets fired from the assault rifle: “They went through multiple ribs on the
right side of the body, through the right lung, through the diaphragm . . .,
through the liver and the kidney and into the spinal column and then lodged
in the muscle of the back with some fragments scattered throughout the
organs.” Two notes were found in the victim‟s clothing, both addressed to
Mrs. Jordan. One note was signed, “Your faithful faithful worried David.”
14
The second note was signed, “Your forgiving husband, David Lynn
Jordan.” Dr. Turner concluded that the cause of Mrs. Jordan‟s death was
multiple gunshot wounds.
Dr. Amy R. McMaster testified that she performed the autopsy on
Jerry Hopper. Hopper had suffered multiple gunshot wounds and had
multiple abrasions and lacerations resulting from these wounds. Dr.
McMaster discovered a gunshot wound to the right wrist and two gunshot
wounds to the right side of his abdomen. She recovered two projectiles
from Hopper‟s body. The projectiles were large caliber deformed hollow
point bullets, which were consistent with those fired from a nine-millimeter
weapon. Dr. McMaster concluded that the cause of Jerry Hopper‟s death
was multiple gunshot wounds.
Dr. McMaster testified that she also performed the autopsy on David
Gordon. Gordon had multiple gunshot wounds and injuries associated with
the wounds. Although no exact number of wounds could be determined,
Gordon had been shot at least thirteen times. He had wounds to his right
thigh, right forearm, right lower abdomen, right and left sides of the torso,
buttocks, and left hip. The projectiles recovered from these wounds were
consistent with a 7.62 millimeter round. Dr. McMaster concluded that the
cause of Gordon‟s death was multiple gunshot wounds.
Sergeant Mike Turner of the Jackson Police Department testified
that he collected evidence from the red Mazda pickup truck. Among the
items he recovered were: a loaded Norinco SKS 7.62 assault rifle with
twenty-six rounds in the magazine and one in the chamber; a black bag
containing a large quantity of assorted ammunition; a loaded Mossberg
twelve-gauge shotgun with two rounds in the magazine and one in the
chamber; loose ammunition; a 7.62 magazine with fourteen rounds of
ammunition; two spent 7.62 casings; and a .38 special caliber Winchester
spent casing.
Agent Cathy Ferguson of the Tennessee Bureau of Investigation
(TBI) testified that, on January 11, 2005, she was employed as a violent
crimes investigator with the Jackson Police Department. She said she
responded to the scene at the TDOT garage and was directed to the crow‟s
nest area where she found Mrs. Jordan lying in a large pool of blood that
contained brain matter. Realizing that she could not help Mrs. Jordan,
Ferguson assisted with the CPR on Jerry Hopper. Ferguson subsequently
recovered evidence found inside the crow‟s nest and outside the garage,
15
including nine-millimeter and 7.62 shell casings, bullet fragments, and a
note on which Grimm had written [the petitioner‟s] license tag number.
She said that fifteen 7.62 shell casings were recovered from the exterior
crime scene and four from inside the crow‟s nest. Nine nine-millimeter
shell casings and one live nine-millimeter round were found inside the
crow‟s nest.
TBI Agent Scott Lott testified that he and other agents executed a
search warrant at [the petitioner‟s] house on January 11, 2005. Among the
items recovered were: a Thompson Center Firearms .50 caliber muzzle
loader, a Montgomery Ward 30/30 rifle, a Remington 20-gauge pump
shotgun, a Remington 30.06 rifle, a Remington Caliber .243 rifle, a Ruger
.22-caliber rifle, a Savage Firearms .22-caliber rifle, a Ruger .44 magnum
rifle, a Springfield .410-gauge shotgun, a Pioneer 750 .22-caliber rifle, a
Bauer Firearms .25-caliber automatic handgun, a .38 Special revolver, five
live rounds of Winchester .38 Special ammunition, and a trigger group
assembly.
TBI Agent Shelly Betts, accepted by the trial court as an expert in
ballistics, testified that she examined evidence collected in this matter,
including a 12-gauge shotgun, a Norinco SKS rifle, a Star .45-caliber semi-
automatic pistol, and an Inter Arms Star nine-millimeter semi-automatic
pistol. She said that the safety feature functions on the SKS rifle had been
converted to fire in fully automatic mode, rather than the semi-automatic
mode, which was how it had been manufactured to function. She explained
that several modifications had been made to the rifle‟s trigger housing
assembly, causing the weapon to fire continuously once the trigger was
pulled. Agent Betts tested several cartridge cases recovered from the crime
scene and determined that they had been fired from the SKS rifle.
Additionally, she tested nine-millimeter cartridge cases recovered from the
interior crime scene and determined that they had been fired from the Star
nine-millimeter pistol. She examined bullet fragments recovered from
David Gordon‟s right thigh and determined that one had “conclusively been
fired through the barrel of the SKS rifle.” Agent Betts further determined
that some of the fragments recovered from Gordon‟s right hip and abdomen
had been fired through the barrel of the SKS rifle. She also examined nine-
millimeter projectiles recovered from Jerry Hopper‟s back and pelvis and
determined they had been fired from the Star nine-millimeter pistol. Her
examination of the nine-millimeter projectiles recovered from Renee
Jordan‟s leg and uterus revealed they had been fired from the Star nine-
millimeter pistol. Agent Betts said that the nine-millimeter projectile
16
recovered from Mrs. Jordan‟s brain had “probably” been fired from the Star
pistol. Fragments recovered from Mrs. Jordan‟s liver and chest were
conclusively identified to the SKS rifle. Agent Betts explained that the
7.62 rounds found in the bodies of Mrs. Jordan and David Gordon were
hollow point bullets, meaning that as soon as they struck the skin they
fragmented into numerous pieces. She examined the 7.62 magazine found
inside [the petitioner‟s] truck and described it as “an SKS-type detachable
magazine that would function in this SKS rifle, and it holds approximately
31 rounds.”
Madison County Sheriff‟s Department Sergeant Chad Lowery
testified that, shortly after [the petitioner] was apprehended, he went to [the
petitioner‟s] home to check on the welfare of any children who may have
been at the home, but no children were present when he arrived. Sergeant
Lowery discovered a loaded pistol on top of the refrigerator and saw
several other weapons in the home. On the kitchen counter, Sergeant
Lowery observed a handwritten note, which stated: “Renee got what she
deserved. Bitch. I‟m sorry. I love you. Thanks for being so good to me.
Love you Shelby, Sydney, Deanna. Thanks, Mom and Dad. You did all
you could.” On cross-examination, Sergeant Lowery acknowledged that,
during [the petitioner‟s] apprehension, he “smelled alcohol, or what [he]
thought to be alcohol” on [the petitioner].
Defense Proof
Jackson Police Investigator Tyreece Miller testified that he
interviewed [the petitioner] at approximately 3:35 p.m. on the day of the
shooting. [The petitioner] waived his right to an attorney and volunteered
to speak with Investigator Miller. During their conversation, [the
petitioner] asked how many people he had shot and if Mrs. Jordan was
dead. [The petitioner] provided a urine sample and consented to give a
blood sample which was drawn at approximately 9:50 p.m. [The
petitioner] said he had consumed approximately five shots of vodka but
“was not under the influence.” [The petitioner] also provided the following
statement to Investigator Miller:
I‟ve been married to Renee Jordan for five years. She
has a son named Tyler Surratt. He is my stepson. She has a
daughter named Sydney Jordan. She is my daughter also by
Renee. I have three others by two other women who are my
former wives. Back in the summer 2002, Renee‟s son Tyler
17
molested my daughter, Shelby Jordan. He was 10 years old
and she was 8 years old at the time. [Department of
Children‟s Services] was involved, and Tyler had to go to
counseling. On December the 11th, 2004, Tyler was in
Lindsey‟s bedroom. He was lying on his back and he had
something in his hand. He was playing with Lindsey. He
was trying to let her get whatever it was out of his hand, but
he had a tight grip on it. She was reaching for it. He would
let her grab his hand, and then he would pull her across his
body. He didn‟t know it, but I was watching him. It looked
like he was pulling her across his penis. I saw him do this
three times before I stopped him. I went in the room. I
cursed him. I told him that I was going to stick my foot up
his ass if he ever touched one of my daughters again. I left
and went deer hunting. When I got back, Renee was on the
phone with some man. My mother showed up, and Renee left
and never came back home. We did spend Christmas Eve,
New Year‟s Eve and this past Sunday night together.
Back in September 2004, Renee started having an
affair with Johnny Emerson. He works in a building where
she works. He works in the shop and Renee works in the
office. . . . I found out about their affair in October. She
admitted to it and I forgave her. This morning I woke up and
had no intentions of hurting Renee.
She called me from work. I was at home. She was
acting like a bitch. I had been begging and bending over
backwards to make this work up to this point. She
unexpectedly told me that me and my daughters from another
marriage have until the first of February to get out of her
house. She said that she was going to see her lawyer
tomorrow and she was going to have me evicted. . . . Renee
hung up on me before I had a chance to say a word. This
made my blood boil. I started loading my guns. I loaded my
12-gauge shotgun, a Star .45 caliber semi-automatic handgun
and an SKS fully automatic rifle with a folding stock. I put a
33-round clip in it. I left a note on the counter stating that if
something happens to me, I love my mother, father and four
daughters. I didn‟t know if I was going to do anything to
Renee or not. I was thinking more of killing myself.
18
I got in my 1991 Mazda truck, red, and I was going to
Renee‟s workplace at TDOT. On the way there I broad-sided
a green four-door vehicle. I was going down Anglin Lane. I
was driving fast and couldn‟t stop soon enough. I T-boned
the green car that was going down Lower Brownsville Road.
I didn‟t stop. I went on up to TDOT. I pulled up to where
Renee works. I left the 12-gauge and the SKS in the truck. I
had the .45 in a holster on my hip, the nine-millimeter was in
my back.
I walked in the office. Renee said, “What the fuck are
you doing here?” She was sitting in the chair at her desk. I
didn‟t say a word to her. I pulled out the .45 and I shot her in
the leg. I shot her in the leg because I wanted her to look at
me. She hollered. The guy that was sitting in the corner got
up and came at me. I shot him and he fell to the floor. I think
he was James Goff, but I‟m not sure. I heard him moaning.
Larry Taylor was in the office. I patted him on the back with
the pistol and told him that he needed to get out of there. He
left. I looked back at Renee, and she was already dead I
think. I can‟t remember if I had shot her more than just in the
leg. I remember the last time that I shot her was in the top of
the head with the .45. I didn‟t want to shoot her in the face.
I walked back out to my truck and I saw the guy in the
green car that I had hit. He was parked behind me. I got in
the truck. He was pointing his finger and coming at me. I
grabbed the SKS and I fired it at him. He went to the ground.
I don‟t remember going back to the office with the SKS, but
if there was a shell casing there, I must have fired it in the
office. I got in my truck and left. I had intentions of killing
myself when I got back home, but the police hit me head on.
I have made this statement openly and freely. I have
not been promised anything, and I have not been threatened in
any way. I am sorry that this happened. Renee didn‟t
deserve to die.
TBI Special Agent John W. Harrison testified that he analyzed the
urine and blood samples submitted by [the petitioner]. The result of the
19
blood sample, taken at 9:50 p.m., was “no alcohol present.” Agent
Harrison agreed that if a person consumed five shots of vodka in the early
morning hours but did not give a blood sample until 9:50 p.m., the alcohol
could have metabolized by that time. He explained that if a person
consumed five shots rapidly within an hour, the person‟s blood-alcohol
level would be approximately .10%, but about five hours later, the level
would be down to 0. The result of the urine sample, taken at 3:35 p.m., was
.17%. However, Harrison said not much significance should be attached to
that result because it did not indicate how much [the petitioner] had had to
drink. He acknowledged that all the urine sample really revealed was that,
sometime prior to the collection of the sample, there had been alcohol in
[the petitioner‟s] bloodstream. Pursuant to the TBI‟s normal operating
procedure, the samples were preserved “for a period of time and then
destroyed.”
TBI Agent Kelly Hopkins testified that she performed a drug screen
on the urine and blood samples submitted by [the petitioner]. The urine
sample was positive for Citalopram, an antidepressant, and
benzodiazepines, which include antidepressant and anti-anxiety
medications, such as Xanax. The blood sample was positive for Citalopram
but negative for benzodiazepine. Agent Hopkins explained that, after a drug
is ingested, it first goes into the person‟s bloodstream and is later
metabolized in the urine. She said that the blood sample was destroyed on
January 3, 2006.
Officer Tikal Greer of the Jackson Police Department testified that
when he and Officer Anderson transported [the petitioner] to the Criminal
Justice Complex, he noticed a strong odor of alcohol on [the petitioner‟s]
person. [The petitioner] told the officers that “his wife was dead, full of
holes” and that she had driven him crazy by “fucking around on him.”
[The petitioner] also said that “he hated [that] people got in the way” and
that his wife “got a taste of his .45 and her brother‟s gun.” Once they
arrived at the Criminal Justice Complex, [the petitioner] admitted “to
killing or hurting four people.”
Sergeant Marneina Murphy of the Madison County Sheriff‟s
Department testified that she supervised [the petitioner‟s] booking process
at the jail. She estimated that she was around the [petitioner] for thirty
minutes to one hour and described his demeanor as “more confused, maybe
not focusing, probably dazed a little bit.” She acknowledged that another
officer asked [the petitioner] the questions on the intake questionnaire.
20
Dr. Dennis Wilson, a clinical psychologist, testified that he
evaluated [the petitioner], meeting with him on four different occasions
beginning on October 12, 2005, for a total of eleven hours. He conducted
clinical interviews, IQ testing, and some brief personality testing. Dr.
Wilson determined that [the petitioner] was competent to stand trial and
that a defense of insanity was not available. However, in Dr. Wilson‟s
professional opinion, [the petitioner] “lacked substantial capacity when the
crimes were committed,” meaning [the petitioner] was “unable to exercise
restraint or judgment” and “unable to reflect or premeditate.”
In formulating his opinion, Dr. Wilson discovered that [the
petitioner] was brought up in a stable family. His parents were good
parents and were active in the community. Dr. Wilson opined that [the
petitioner] was determined to set up a loving, stable environment for his
children whom he clearly loved. Dr. Wilson also noted that [the petitioner]
had been divorced twice and suffered from depression and anxiety. He was
prescribed Prozac in his early twenties. [The petitioner] began self-
medicating with alcohol and drugs, including methamphetamine and crack
cocaine. In 1986, [the petitioner] was injured in a car accident. He had a
broken back and ribs and injuries to his knee, ankle, and pelvis. He
developed chronic headaches and various pains. Beginning in 1996, he was
prescribed narcotic medications, including hydrocodone, oxycodone,
Vicodin, Lortab, and Darvocet. In 2000, [the petitioner] was prescribed
Xanax, an anti-anxiety medication, and Ambien, for insomnia. [The
petitioner], at various times, was given other medications for depression
and agitation.
At the time of his marriage to Mrs. Jordan in 2000, [the petitioner]
had stopped using illegal drugs and “became a regular moderate beer
drinker” that “would qualify for a diagnosis of alcoholism.” Their daughter
Sydney was born in late 2001. At this time, [the petitioner‟s] previous wife
was using drugs and neglecting their two daughters. [The petitioner] and
Mrs. Jordan began trying to get custody of Shelby and Lindsey. Their
marriage began to deteriorate, however.
The couple attended marriage counseling. In September 2004, they
got custody of Shelby and Lindsey. Later, Mrs. Jordan told [the petitioner]
that she desired other male companionship and, in October 2004, she
started going to bars, staying out late, and coming home intoxicated. Mrs.
Jordan also told [the petitioner] about her relationship with a male co-
21
worker and said she wanted to have sex with this co-worker. Divorce was
imminent, and [the petitioner‟s] family structure was crumbling. During
this time, Mrs. Jordan continued her intimate relationship with [the
petitioner] but also shared the details of her encounters with other men with
him. [The petitioner] was confused and upset about her extramarital
activities. [The petitioner‟s] doctor doubled his dose of Xanax on January
4, 2005. Mrs. Jordan then gave [the petitioner] a deadline of February 1 for
him and his two daughters to move out of the house. Dr. Wilson opined
that this was the end of whatever was left of [the petitioner‟s] dream of
creating a happy home for his children.
Dr. Wilson further testified that on the date of the shooting, [the
petitioner] drank alcohol and had not slept for three days. His world had
collapsed, and he could no longer control his behavior. [The petitioner]
started talking to himself. People observing [the petitioner] after the
shooting described him as being “out of it.” [The petitioner] expressed
remorse over the incident and cooperated with the authorities. Dr. Wilson
concluded:
[The petitioner] has a major depressive disorder,
recurrent episodes. It was moderate over his lifespan. He had
generalized anxiety disorder, alcohol abuse and a borderline
personality disorder. This is by definition someone who has a
hard time maintaining interpersonal relationships, dealing
with problems, coping with stress. He just never was any
good with any of that stuff. At the time of the crime, it is my
opinion that he was intoxicated with alcohol, and it is my
opinion, I believe, that he was also intoxicated with
anxiolytics which was the Xanax. These two drugs, alcohol
and the Xanax, potentiate each other, and anything can
happen if you take both of those things together. . . . [T]hey
sort of multiply each other. They can easily do brain damage.
....
[D]issociative disorder is when . . . [t]here‟s a
disruption in the usually integrated functions of
consciousness, memory or perception of the environment.
That‟s from the Diagnostic & Statistical Manual.
....
22
You also have symptoms of what we call derealization.
That‟s as if you‟re detached and you‟re an outside observer.
It‟s like you‟re watching someone else do it.
....
I don‟t think he was in control of his faculties when all
this happened. I don‟t know if it was from the stress, from
the depression, the anxiety, the dissociation, the intoxication,
or, most likely a combination of all of the above.
Dr. Wilson opined that [the petitioner] was substantially impaired to the
extent that he was unable to form premeditation.
Asked on cross-examination if [the petitioner] was in control at the
time of the shooting, Dr. Wilson said that [the petitioner] “was in control
sometime before the crime and he became in control again after the crime,
but during the crime he was not. I‟m not sure. It‟s a gray area, a gradual
change. I just don‟t know.” Dr. Wilson opined that [the petitioner] was not
capable of forming intent at the time of the shooting. He said that [the
petitioner] “knew the difference between right and wrong. He was not
insane. He was just incapacitated.” Dr. Wilson explained that [the
petitioner‟s] “behavior was inconsistent and out of control. He was in and
out of consciousness there. He knew some things, remembered some
things and not others, but I don‟t think he was at all in control the whole
time.”
Rebuttal Proof
In rebuttal, the State recalled Investigator Tyreece Miller. Miller
reiterated that, at the time [the petitioner] gave his statement, [the
petitioner] said he had been drinking but was not under the influence of any
drugs or alcohol. He said that [the petitioner] walked steadily, was able to
answer the questions he asked, and was “very coherent.” Miller said that
[the petitioner] did not appear to be under the influence of drugs or alcohol.
[The petitioner] consented to give a urine sample but initially refused to
provide a blood sample because he did not like needles.
Following the department‟s standard operating procedures, Miller
wrote down [the petitioner‟s] statement as he talked and allowed him to
23
review it before he signed it. Asked if [the petitioner] made any additional
comments that were not included in his statement, Miller said [the
petitioner] told him, “Today is Renee‟s father‟s birthday. I guess I gave
him a hell of a birthday present.” According to the driver‟s license
belonging to Mrs. Jordan‟s father, his date of birth was January 11, 1932.
Miller asked [the petitioner] if he could include the birthday present
comment in the statement, but [the petitioner] said, “I don‟t want that in
there.” [The petitioner] also told Miller, “[Mrs. Jordan] was in a pool of
blood the last time that [he] shot her.”
On cross-examination, Investigator Miller said that [the petitioner]
signed a waiver of his rights at 3:50 p.m. and signed his statement at 5:35
p.m. [The petitioner] eventually gave his consent for a blood sample at
9:50 p.m. Miller acknowledged that a Breathalyzer test was not performed
on [the petitioner] and that [the petitioner] told him he was taking
medication. Miller said that although the police department had video
equipment, he did not have it brought to the Criminal Justice Center to
videotape [the petitioner‟s] interview because it was against departmental
policy and not standard operating procedure. Miller said he was not aware
of the availability of any video equipment in the booking area of the
Criminal Justice Center.
Dr. Daryl Matthews, a forensic psychiatrist, testified that he
evaluated [the petitioner] on April 24, 2006. Dr. Matthews spent
approximately six hours with [the petitioner], during which he conducted a
psychiatric interview and a mental status evaluation. As a result of his
examination of [the petitioner], Dr. Matthews did not find a severe mental
disorder and said, “I don‟t believe [the petitioner] has ever had a severe
mental disorder.” Dr. Matthews concluded that [the petitioner] “was able at
the time of the offense . . . to act intentionally and to act with
premeditation.” He added that [the petitioner] was able to conform his
behavior to the requirements of the law.
In reaching his determination that [the petitioner] had the capacity to
premeditate, Dr. Matthews said he reviewed, among other things, the note
[the petitioner] wrote, the recorded messages [the petitioner] left on Mrs.
Jordan‟s cellular telephone, the statements of various witnesses at the
scene, and the police reports. The messages [the petitioner] left on Mrs.
Jordan‟s phone included sarcastic comments about her obtaining a
restraining order and statements such as: “I hope you go to work
tomorrow, bitch, „cause you‟ll be there one day. It may not be tomorrow,
24
but I will catch up with your raggedy ass. Your day is coming” and “Your
ass is gonna pay.” Dr. Matthews disagreed with Dr. Wilson that [the
petitioner] was dissociated at the time of the shooting, saying that
dissociation is very common, mostly pertains to memory, and has nothing
to do with intent or premeditation.
Among the witness statements Dr. Matthews reviewed was that of
Paul Forsythe, which Dr. Matthews recited:
The driver of the red truck told the driver of the green car to
get out of here. The driver of the green car said, “No, you hit
me.” The driver of the red truck folded the seat forward on
the truck and he said, “You will.” He pulled out a black rifle
with a silencer or something on the end of the barrel. He
fired at the driver of the green car.
Dr. Matthews also recited from the statement of George W. Bond, Sr.:
“The man with the gun was white. He looked up and saw me and shook his
head as if to tell me he didn‟t want me involved.” Dr. Matthews said that
[the petitioner‟s] statement to Sergeant Johnny Briley, “Renee fucked me
over, Johnny,” showed that [the petitioner] recognized Briley and indicated
the “intactness of his mental capacity.” Dr. Matthews read from the
statement of Freddie Ellison: “When I saw [the petitioner], he had a gun
and was trying to hide it. I said, „David, what are you doing?‟ He said,
„Just go on.‟ I said, „What‟s the matter? He said, „Just go on.‟” Dr.
Matthews said that [the petitioner‟s] ability to recognize someone he knew
at the scene, Freddie Ellison, implied that he “had the ability in memory to
keep in mind people that he knew, and most importantly . . . he had the
ability not to . . . shoot Mr. Ellison.” Dr. Matthews concluded that [the
petitioner] was making choices and able to control himself at the time of
the shooting.
....
Penalty Phase
Donald Roberson, Renee Jordan‟s father, testified that she was the
youngest of his three children; his only daughter; and his last living child.
One son died of cystic fibrosis when he was seven years old, and the other
son died at age thirty-three. Roberson related that Renee‟s daughter,
Sydney, was four years old at the time of her mother‟s death and that he
25
and his wife currently had custody of her. He said that Sydney still asks for
her mother. Since Renee‟s death, Roberson has experienced “attacks,
anxiety and depression.” Roberson added that Renee was murdered on his
birthday, and he is no longer able to celebrate his birthday.
Robert E. Lee Gordon, Jr., David Gordon‟s older brother, testified
that he and David had two other brothers, both of whom were deceased at
the time of David‟s death. Gordon, Jr. explained the impact of the death of
his last remaining brother on him and his family. He said that he has
difficulty sleeping and that his brother‟s death is “all I think about, the way
he died.” One of David‟s sons was in college and the other in high school,
but both gave up on school as a result of their father‟s death. Gordon, Jr.
said he had buried two brothers and his mother in the past two years. He
related that David was a hard worker, a good father, and “very well
respected . . . a fine man.”
Shane Gordon, the eighteen-year-old son of David Gordon, testified
that he was a junior in high school when his father was killed. He said that
he thought about his father‟s death “all the time and it gets me down. . . .
It‟s just something that‟s hard to deal with.” He said that his father was a
hard worker and was kind to everyone.
Renee Dawson testified that David Gordon was her fiancé and best
friend. On the date of his murder, Ms. Dawson and Gordon had a lunch
date planned. The couple had moved into a new home together on
Thanksgiving Day, but Ms. Dawson was unable to keep the home after
Gordon‟s death. Ms. Dawson stated, “I would say that my life is empty and
my life ended that day as well.”
Emma Hopper, the wife of Jerry Hopper, testified that they had been
married twenty-nine years. She explained that losing her husband was like
“losing half of myself.” Mr. Hopper worked for the Tennessee Division of
Forestry and had been a state employee for twenty-eight years. At the time
of his murder, Mr. Hopper had been making plans for retirement. Mrs.
Hopper explained that the couple planned on spending more time with their
young granddaughter, who was eighteen months old at the time of Mr.
Hopper‟s death. She said that she had not been able to spend a single night
in their home since his death and had been living with her daughter and her
family. Mrs. Hopper testified that her granddaughter still asks, “Where is
my papaw?”
26
Misty Ellis, the daughter of Jerry Hopper, testified that she had
worked with victims of crimes in the past. She described her experience
dealing with her father‟s death as an “[a]bsolute nightmare.” Ellis said that
it was “just torture” to know that one day she would have to explain to her
daughter why her grandfather was no longer here.
TBI Agent Cathy Ferguson identified photographs of the victims.
Exhibit 179 was a photograph of James Goff depicting the bullet wound to
his abdomen. Exhibit 180 was a photograph of James Goff depicting the
bullet wound to his neck. Exhibits 181 and 182 were photographs of Larry
Taylor depicting the gunshot wounds to his legs. The photographs of Goff
and Taylor were taken at the emergency room. Exhibit 183 was a
photograph depicting Renee Jordan as she was found in the crow‟s nest at
the TDOT garage.
Dr. Amy McMaster testified that Dr. Staci Turner performed the
autopsy on Renee Jordan. Identifying exhibit 184 as a photograph
depicting a gunshot wound to Mrs. Jordan‟s forehead, Dr. McMaster stated
that the wound was inflicted from a “close range.” She explained that it
was “a close range wound because there‟s soot,” or burnt gunpowder, on
the skin surrounding the wound. She said that the wound to the forehead
was a fatal wound. The autopsy further revealed a gunshot wound to the
back of Mrs. Jordan‟s head, which went through her head and exited on her
face. Exhibit 185 was a photograph depicting the gunshot wound to the
back of the head. Dr. McMaster stated that this wound also would have
been fatal. Dr. McMaster also identified nine entrance wounds on Mrs.
Jordan‟s torso. She stated that there was significant injury to the abdominal
area, which was a potentially fatal wound. Dr. McMaster said that this
wound would have been painful. She explained, “in general terms, the
body has about 30 seconds‟ worth of reserve of oxygen in the brain. So
assuming your heart stops immediately, you‟ve got about 30 seconds left of
oxygen in your brain that will allow you to remain conscious.” She
affirmed that, during this time, one could experience pain. She added that,
depending on other factors such as adrenaline, this time period could be
longer. Dr. McMaster additionally stated that the wounds to Mrs. Jordan‟s
body were from two different caliber bullets and agreed that the wounds
were “beyond that which was necessary to inflict death.” On cross-
examination, she admitted that there was no indication in the autopsy report
of post-mortem wounds.
27
Regarding the autopsy of Jerry Hopper, Dr. McMaster testified that
he had two gunshot wounds to his abdomen, which injured segments of
bowel and also segments of the aorta. Dr. McMaster stated that these
wounds would not have been immediately fatal but would have been
painful. Hopper also sustained a gunshot wound to his right wrist. Dr.
McMaster was unable to determine the order in which the wounds were
inflicted.
Dr. McMaster testified that she performed the autopsy on David
Gordon. Gordon had “at least 13 entrance wounds” which were inflicted
from the front, the side, and the back of the body. Gordon sustained injury
to his bowel area, specifically, the natal cleft. The wounds sustained to the
buttocks and natal cleft could be consistent with Gordon being face-down
on the pavement. She opined that the number of wounds were more than
that necessary to cause death. She added that the wounds would have been
painful and that Gordon would have eventually lost consciousness.
In mitigation, [the petitioner] presented the following testimony.
Larry Jordan, [the petitioner‟s] younger brother, testified that, during their
childhood, he and [the petitioner] played ball and went fishing and hunting.
Their father was their Little League coach. Jordan stated that he would be
devastated if his brother was sentenced to death. He added that, if his
brother received a sentence of life without parole, he would maintain his
relationship with him. Jordan testified that [the petitioner] has a close
relationship with his four daughters.
Suzie Silas, a guidance counselor at Malesus Elementary School,
testified that [the petitioner] had obtained custody of Shelby and Lindsey,
his daughters from a previous marriage. She characterized [the petitioner]
as a concerned parent and said that he regularly checked on his children.
After [the petitioner] was incarcerated, Lindsey wrote a letter expressing
her desire to spend a day with [the petitioner] because “I miss my daddy
very much.” Ms. Silas also received a letter from [the petitioner] after his
incarceration, thanking her for helping his children.
Michael Lee Merriwether testified that he met [the petitioner] while
incarcerated at the Criminal Justice Complex. He stated that he and [the
petitioner] often read Christian literature. Merriwether added that it was a
benefit to him to have this interaction with [the petitioner]. He opined that
[the petitioner] has the ability to do some good while in jail, including
ministering to others.
28
Cheryl Fisher testified that she dated [the petitioner] before his
marriage to Renee Jordan. They remained friends after their romantic
relationship ended. She opined that, if [the petitioner] received a sentence
of life, his children would benefit. She explained that [the petitioner] was a
very good father and that his children idolized him. Ms. Fisher related how
[the petitioner‟s] children were having difficulty rationalizing the potential
punishment of death.
Madison County Deputy Andre Denice Hays, a jailer at the Criminal
Justice Complex, testified that she had frequent contact with [the petitioner]
and described him as quiet and polite. Deputy Hays opined that [the
petitioner] would make a good prisoner and would be able to serve a
sentence of life without parole without being a risk to any prisoner, guard,
or other human being.
Sergeant Neina Murphy, also assigned to the Criminal Justice
Complex, testified that she had not had any problems with [the petitioner]
since his incarceration. She affirmed that [the petitioner] had not
demonstrated to her that he would be a threat to any prisoner, guard, or
other human being. She added that she would be disturbed if [the
petitioner] received the death penalty.
Madison County Deputy Jason Walker, a jailer at the Criminal
Justice Complex, testified that [the petitioner] often mentioned his family.
Deputy Walker stated that [the petitioner‟s] demeanor was pleasant, he
never complained, and he did what he was told to do. He described [the
petitioner] as one of the better inmates. Deputy Walker opined that [the
petitioner] would make a good prisoner in the penitentiary and would not
be a threat to other individuals.
Deanna Jordan, [the petitioner‟s] oldest daughter, testified that she
was a junior at Freed–Hardeman University. She said that she had three
sisters, Lindsey, Shelby, and Sydney, and that they all loved their father and
knew that he loved them. She stated that, while her father will not be able
to walk her down the aisle, she would like for him to be able to meet his
grandchildren some day. She stated that she wanted [the petitioner] to have
a part in their lives, even if it was just visitation.
Dr. Dennis W. Wilson made a PowerPoint presentation to
demonstrate the psychological point of view of the mitigating factors. He
29
explained that [the petitioner] started life in a stable and loving family but
later suffered from depression, anxiety, and insomnia. He stated that [the
petitioner] began using drugs and alcohol. Dr. Wilson spoke of [the
petitioner‟s] two failed marriages before marrying Renee. He mentioned
[the petitioner‟s] four children. He described [the petitioner‟s] health
problems and prescription medications. Dr. Wilson testified regarding the
disintegration of [the petitioner‟s] marriage to Mrs. Jordan. He said [the
petitioner] took too much Xanax, drank vodka, lost control, and “fell
apart.”
Dr. Wilson also described [the petitioner‟s] remorse expressed very
soon after the incident. He verified [the petitioner‟s] status as a model
prisoner. He added that [the petitioner] was fully aware that he will spend
the rest of his life in prison. Dr. Wilson opined that the structured setting of
incarceration was good for [the petitioner] because the stressors of every
day life were gone. [The petitioner] had adjusted well to the environment.
Dr. Wilson added that [the petitioner] had been a loving and active father.
Dr. Wilson provided his opinion as a clinical psychologist:
[The petitioner] was under a lot of stress. He has a long
history of not being able to deal with stress or change, and he
was disturbed at the time of this crime.
And t[o]o, he was impaired also due to that chronic
depression and anxiety, plus the intoxication. He just wasn‟t
used to drinking that much. He took the Xanax in an attempt
to try to sleep or calm down. He wasn‟t trying to get
intoxicated, but the net effect was that he became impaired.
....
Confinement is -- No one will ever have to worry
about him doing something like this ever again, and even
inside the prison system, he‟s likely to have a calming effect.
. . . And importantly, he will be punished for what he did.
Gary Morris, the pastor of Bemis United Methodist Church, testified
that [the petitioner‟s] parents were members of his congregation. Since the
incident, Morris had visited [the petitioner] at the jail between thirty-five
and fifty times. He recalled that, the day after [the petitioner‟s] arrest, [the
30
petitioner] appeared dazed and confused. [The petitioner] was very tearful
and emotional and asked Morris to attend Mrs. Jordan‟s funeral. Morris
stated that [the petitioner] had expressed his repentance and remorse. He
added that it would be devastating to the family if [the petitioner] received a
sentence of death.
Jordan, 325 S.W.3d at 16-35 (footnotes omitted).
POST-CONVICTION PROCEEDINGS
Petitioner’s Proof
Lead counsel testified that he had been the District Public Defender since 1990
and had represented defendants in multiple capital cases prior to representing the
petitioner. One case proceeded to the penalty phase, and the defendant in that case
received the death penalty.
Lead counsel said he first met the petitioner on January 14, 2005, shortly after he
was appointed to the case in Jackson City Court. The petitioner described his actions as
“psychotic” and said he was taking Xanax, Celexa, Dolgic, hydrocodone for his knee,
and Mobic. He stated that he was seen by Dr. Andy Coy twice and called him
complaining of the inability to sleep. Lead counsel noted that the petitioner had not slept
in two days and had had issues sleeping in the past thirty to forty days.
Lead counsel represented the petitioner during the preliminary hearing on April
13, 2005, and the petitioner‟s case was bound over to the grand jury. Lead counsel
visited the petitioner at the jail on April 28, during which they discussed the petitioner‟s
health problems and the different medications he had been taking. Lead counsel
questioned whether the medications had interacted. The petitioner complained of trouble
sleeping during a meeting on July 27.
The petitioner was indicted on August 1, 2005; the death notice was filed on
August 8; and lead counsel was appointed by the trial court to represent the petitioner on
August 10. On August 9, an assistant public defender, who was acting as co-counsel at
the time, filed a motion for discovery in which he requested all tangible and exculpatory
evidence in the State‟s possession. The trial court entered a scheduling order setting the
jury selection for May 15, 2006, and the trial for the following day.
Lead counsel testified that based upon his prior experiences, he did not believe
that he could seek funding for expert services until he was appointed in the trial court
31
after the petitioner was indicted. He had requested funding for expert services in a prior
case before he was appointed in the trial court, and the Tennessee Administrative Office
of the Courts had denied the request. On August 25, 2005, lead counsel filed a motion
for funds to retain Glori Shettles, a mitigation specialist with Inquisitor, Incorporated,
with whom lead counsel had previously worked on other cases, and funding was
subsequently approved. Franklin Rice, a former police officer and an investigator on lead
counsel‟s staff, also was assigned to the petitioner‟s case. Ms. Shettles interviewed
witnesses, obtained records, discovered possible mitigation themes, worked with the
petitioner, and investigated all aspects of the case.
Lead counsel testified that on August 25, 2005, he filed a motion seeking the
approval of funds to retain Dr. Dennis Wilson, a licensed clinical psychologist. The
motion stated that the petitioner had been treated for depression and appeared to have
been under extreme mental stress at the time of the shooting. The motion also stated that
the petitioner‟s mental condition needed to be evaluated for the purposes of sanity,
diminished capacity, and mitigation-related issues.
Lead counsel recalled that on September 2, 2005, the prosecutor sent him a letter
listing discovery materials and requesting that he acknowledge his receipt of the materials
by checking off each document listed and returning the letter. The letter listed the
petitioner‟s consent to give a urine sample, his consent to give a blood sample, and his
consent to search his home for medication. There was a checkmark acknowledging the
receipt of the serology report. Lead counsel said he thought he had to write a letter to the
prosecutor requesting the report on “urine and alcohol.”
Lead counsel acknowledged that according to Investigator Tyreece Miller‟s report,
Investigator Miller requested that the petitioner submit urine and blood samples
following his arrest on January 11, 2005. The petitioner agreed to submit a urine sample
but refused to submit a blood sample because he did not want to be stuck with a needle.
He signed the consent form for the urine sample at 3:35 p.m. but initially was unable to
provide a urine specimen. He provided a urine sample at some point during his interview
and signed his statement at 5:35 p.m. Lead counsel noted that the evidence form and
property receipt from the Jackson Police Department seemed to indicate that the urine
sample was taken at 3:35 p.m. The petitioner signed a form consenting to a blood sample
at 9:50 p.m., and four tubes of blood were taken from him at 10:05 p.m.
Lead counsel noted that the TBI‟s report of the blood and urine analysis was
issued to Agent Cathy Ferguson on May 18, 2005, after the preliminary hearing but
before lead counsel was appointed in the trial court. Lead counsel explained that,
technically, his office‟s obligation to represent a defendant in the general sessions court
ends following the preliminary hearing. Once a defendant is indicted, the trial court
32
reevaluates the issue of indigency. Lead counsel said that because he knew the State
could seek the death penalty against the petitioner, he met with the petitioner on several
occasions between the preliminary hearing and the arraignment in the trial court.
Lead counsel stated that his notes of the meeting with the petitioner at the jail on
October 11, 2005, reflected that he questioned whether the blood sample was analyzed
for alcohol and noted the urine sample was analyzed for alcohol. He questioned whether
the intoxication level at the time of the offense could be determined through the urine
sample. He acknowledged that in his notes dated November 7, 2005, he questioned
whether there were any blood test results for the petitioner.
The petitioner signed a consent form on January 11, 2005, at 5:45 p.m. to search
his residence for prescription medication. During the search, officers seized at least four
prescription medications. The dosage of the Xanax seized was one milligram.
Lead counsel testified that Ms. Shettles collected pharmacy records of the
petitioner‟s prescription medication. She spoke to Dr. Wilson regarding any issues that
arose from a change in the dosage in the petitioner‟s prescription for Xanax
approximately one week prior to the shootings. Ms. Shettles stated in a memorandum
that from November 14, 2000, to July 19, 2004, the petitioner‟s dosage of Xanax was 0.5
milligrams. Three refills were noted at the time of the July 2004 prescription. On
January 4, 2005, the petitioner‟s dosage of Xanax was increased to one milligram after he
called his doctor complaining of insomnia. Ms. Shettles indicated that Dr. Wilson was
interested in the number of tablets remaining in the January 4 prescription bottle.
Lead counsel stated that on November 16, 2005, Dr. Wilson faxed him a letter
requesting that lead counsel consider retaining a psychiatrist. Dr. Wilson stated that a
psychiatrist was needed to evaluate the “interaction of physical and psychiatric
functioning with the ingestion of the medication and use of alcohol as relates to [the
petitioner‟s] state of mind at the time of the crime.” As a result, lead counsel retained Dr.
Caruso.
On November 17, 2005, a new scheduling order was filed setting the hearing date
on all pending matters for February 13, 2006; the plea deadline and the deadline for
disclosing the use of a mental health defense in either phase of the trial for March 6,
2006; and the trial for May 22, 2006. The trial was later continued to September 19,
2006. Lead counsel subsequently filed a Motion for Disclosure of Brady Material and a
Motion to Disclose Information Relating to Mitigating Circumstances. He said he
considered toxicology reports; blood and urine evidence; witness statements supporting
intoxication; and any other physical evidence indicating the presence of alcohol,
33
prescription medication, nonprescription medication, or other intoxicants in the
petitioner‟s blood or urine to be potentially exculpatory or mitigating.
On February 9, 2006, lead counsel requested the appointment of co-counsel. He
explained that the assistant public defender who was assigned to that particular trial court
had been serving as co-counsel “by default.” The assistant public defender‟s
involvement in the case was limited due to his full caseload and health problems. Lead
counsel stated that he and the assistant public defender were the only death qualified
attorneys in the office and that he believed he needed another attorney to assist him.
Lead counsel testified that, at some point, he realized he did not have the
toxicology report of the urine and blood samples and that TBI Special Agent J.W.
Harrison faxed the report to him on March 30, 2006. Lead counsel stated that the report
was issued on July 8, 2005, during the “limbo period” following the preliminary hearing
but before lead counsel was appointed in the trial court. The report provided that
“[p]resumptive testing indicates the possibility of benzodiazepines,” that the crime
laboratory should be contacted if further testing is necessary, and that the evidence would
be destroyed in sixty or eighty days. The TBI agent who issued the report was Special
Agent Kelly Hopkins, whom the defense called as a witness at trial. On March 30, 2006,
lead counsel spoke to Special Agent Harrison, who stated that converting the petitioner‟s
urine alcohol level to a blood alcohol level would be “pure speculation.” Lead counsel
asked him if the samples were still available, and Special Agent Harrison said that they
“probably” were and that if lead counsel wanted the evidence to be preserved, he should
send a written request. On April 7, 2006, lead counsel sent a letter to the TBI Crime
Laboratory requesting that the petitioner‟s blood samples be preserved in the event that
additional testing was required. The blood sample, however, had already been destroyed.
Lead counsel testified that he, co-counsel, Ms. Settles, and Dr. Wilson met on
multiple occasions. Dr. Wilson assisted counsel in preparing questions for the State‟s
experts at trial. Lead counsel was “fairly positive” that they discussed whether they
could make a case that six of the petitioner‟s one-milligram Xanax tablets were
unaccounted for between January 5 and January 11, 2005. Lead counsel researched the
effects of Xanax and learned that Xanax can encourage suicidal thoughts or mania and
may intensify the effects of alcohol. He also learned that a person should not drink
alcohol while taking Xanax.
Lead counsel did not recall whether he received from the State a photograph of a
squeeze bottle found on the floor on the passenger side of the petitioner‟s truck. He said
an inventory of the truck‟s contents may have been provided to him as discovery. He did
not believe that he filed a motion to preserve the evidence.
34
Lead counsel recalled that two of the petitioner‟s daughters were living with him
on January 10-11, 2005. The petitioner obtained custody of his daughters following an
investigation by the Tennessee Department of Children‟s Services into allegations of
child abuse and neglect while the children were living with their mother. Dr. Wilson
attempted to schedule a meeting with the petitioner‟s daughters and his parents through
Ms. Shettles.
Lead counsel testified that in December 2005, he filed a motion seeking a change
of venue. He alleged in the motion that The Jackson Sun had carried sensational stories
regarding the case. He explained that the newspaper reporters had interviewed people
who had not witnessed the shooting and had written stories that included many rumors
about the case. He also alleged in the motion that radio and television stations carried
news reports at various hours of the day and sent stories regarding the petitioner into
practically every home in the county. Lead counsel filed a motion to conduct individual
and sequestered voir dire in which he alleged that due to the publicity that the case had
received, there was a significant possibility that potential jurors had been exposed to
certain information in the case and may have formed an opinion regarding the petitioner‟s
guilt and the appropriateness of the death penalty.
Lead counsel withdrew his motion for change of venue in February 2006 while
reserving the right to revisit the issue. He explained that the trial court stated that it
would revisit the issue if they were unable to obtain a jury due to the publicity the case
had received. He said he met with co-counsel and Ms. Shettles and discussed whether
they should pursue the change of venue motion or try the case with a Madison County
jury. Lead counsel also discussed the issue with the petitioner and his parents. Lead
counsel stated that because the petitioner‟s family were well-known members of the
community with good reputations, trial counsel believed that they would have “just as
good a shot at a fair jury” in Madison County as in any other county. Lead counsel said
that after speaking to other attorneys, he learned that when the venue is changed and a
new jury is brought in to hear the case, those jurors feel that the case has to be very
serious or they would not have been brought in for it. He stated, “So we did a good bit of
discussion and just made what I call a tactical decision to withdraw” the motion for a
change of venue. He explained that he understood that if the parties were unable to
obtain a fair and impartial jury during the voir dire process, the trial court would recess
and change the venue. Lead counsel did not hire a jury consultant or conduct a venue
study in Madison County to determine the level of saturation and preformed beliefs
regarding the petitioner‟s case.
Lead counsel said that trial counsel drafted a proposed jury questionnaire but that
the trial court used its own jury questionnaire. The parties conducted individual voir dire
addressing the death penalty and pretrial publicity and conducted voir dire of the jurors as
35
a group on the “general questions.” The defense did not use all sixteen of its preemptory
challenges. Lead counsel identified a newspaper article in which he was quoted
regarding his concern that some of the jurors stated that the petitioner had not shown
remorse. Lead counsel was further quoted in the article as stating that the petitioner was
taking antidepressants, which could have accounted for his lack of expression during the
trial.
Lead counsel testified that he and co-counsel worked together in preparing for the
cross-examination of each of the State‟s witnesses. Lead counsel recalled that Barbara
Surratt gave a statement regarding her telephone conversation with Renee Jordan on the
morning of January 11, 2005. Ms. Surratt stated that Mrs. Jordan told her that the
petitioner‟s mother said the petitioner needed to be committed to a mental health facility
and that his mother did not know how to do it. Mrs. Jordan also told Ms. Surratt that she
would be home after work and hoped to meet with her attorney. Lead counsel stated that
he made a strategic decision not to question Ms. Surratt about these statements. He
explained that the statements were “double hearsay,” “could open the door to a lot more
of that stuff,” and were not helpful. He did not recall whether he considered investigating
the statements.
On cross-examination, lead counsel testified that he had tried more than 100 jury
trials and that at the time of the petitioner‟s case, he had tried almost twenty murder trials.
He acknowledged that the defense at trial was intoxication with alcohol combined with
the effects of prescription medications, depression, and other factors listed by Dr. Wilson
in his testimony. He explained that a large portion of the defense was that various
stressors in the petitioner‟s life “caused him to snap.” Dr. Wilson referenced medical
reports of the petitioner‟s prior injuries, including a broken back and fractured ribs from a
car accident, and discussed the stressors placed on the petitioner due to the injuries. Dr.
Wilson also discussed the effect of the stress of the petitioner‟s multiple divorces and
pending divorce.
Lead counsel stated that based upon his prior cases, he knew that a person who
was abusing cocaine could be violent. He was aware of evidence that the petitioner was
abusing cocaine either prior to or during his marriage with Mrs. Jordan and that the
petitioner had quit using cocaine sometime prior to the shootings. Lead counsel recalled
several occasions during the trial when the State attempted to introduce evidence of
violence in the family and he objected. The State had certified copies of the petitioner‟s
prior conviction of domestic assault in which the petitioner received diversion and
evidence of another incident witnessed by Kevin Deberry. Following a jury-out hearing
on the issue, the trial court excluded the evidence. Lead counsel said that if he had
attempted to establish that the shooting was an isolated incident, the State would have
attempted to establish that the petitioner had been violent in other situations.
36
Lead counsel acknowledged that the case was highly publicized and said that he,
co-counsel, and Ms. Shettles discussed withdrawing the request for a change of venue
with the petitioner‟s family. Lead counsel noted that the petitioner came from a good
family, who was well known in the community. The petitioner‟s father coached little
league for a number of years and “did some flea market work.” Lead counsel said trial
counsel discussed the issue with the petitioner and “bounced that back and forth. We
didn‟t just come to it just, snap, let‟s let it go. We made a decision as a team.” Lead
counsel characterized the decision as a trial tactic and explained, “We thought we might
have as nearly or even better chance of getting a fair jury in this community as any other
under the circumstances. A lot of times, you don‟t have a family that is well-known or
well-liked in the community.”
Lead counsel testified that trial counsel utilized the potential jurors‟ completed
questionnaires during voir dire. During the group voir dire, jurors were questioned about
intoxication, reasonable doubt, any experiences as victims of crimes, burden of proof, and
other general issues. Individual voir dire occurred in the jury room in the presence of the
judge, lead counsel, co-counsel, Ms. Shettles, the petitioner, the district attorney general,
and his assistants. Lead counsel said he questioned jurors individually about pretrial
publicity to avoid the risk of tainting the entire jury pool. He recalled that several
potential jurors were excused due to their knowledge of the case. He also recalled that
other potential jurors either had not heard a great deal about the case or had not formed
an opinion based upon what they had heard. Lead counsel believed potential jurors were
remaining in the jury pool once the jury was chosen. He said each juror stated that he or
she could base the decision on the law and the evidence presented and be fair and
impartial in making his or her decision.
Lead counsel testified that the defense‟s strategy in choosing jurors who knew the
petitioner‟s family was successful in that they were able to retain a particular juror, whom
he identified. The juror previously attended St. Luke‟s Episcopal Church with co-counsel
and lead counsel‟s wife. Lead counsel recalled that at the time, the church had “qualms”
about the death penalty, and he was familiar with statements in the church against the
death penalty. Lead counsel noted that the juror also was a special deputy for the
Madison County Sheriff‟s Department and a member of the NRA and that the district
attorney general had assisted the juror on a prior occasion.
Lead counsel stated that he represented the petitioner during the preliminary
hearing and had the opportunity to cross-examine several of the State‟s witnesses at that
hearing. He later obtained a copy of the transcript of the preliminary hearing. He said
the State had an “open file” policy where he could obtain copies of all the files from all of
the state agencies.
37
Lead counsel acknowledged that he first became aware of the TBI reports of the
blood and urine analysis “a little bit later in the game” in March 2006 after the evidence
was destroyed. He said that the report of the urine analysis was dated May 2005 and that
as a result, the urine sample likely had been destroyed by the time he was appointed in
the trial court and had discovery. He noted that one report was issued on July 8, 2005.
He said when he first learned of the report in March, he contacted Special Agent
Harrison. Lead counsel confirmed that he was aware of the blood draw because
Investigator Miller testified during the preliminary hearing and the petitioner‟s statement
was read into evidence. Lead counsel explained that TBI laboratory reports could take
several months to be issued but that “[t]his one just came back quicker I guess.” Upon
learning that the evidence might be destroyed, he took immediate action. He raised an
issue regarding the destruction of the blood samples in his motion for new trial and on
appeal.
Lead counsel stated that he researched the effects of alcohol and Xanax in
preparing to present experts on the issue. He also stated that he introduced the blood and
urine reports into evidence at trial and asked Special Agent Harrison to conduct a
retrograde extrapolation from the urine. Lead counsel said he and co-counsel discussed
locating an expert who would say that retrograde extrapolation from urine was an
accurate process from a single sample of urine. Special Agent Harrison explained the
factors that affected the reliability of retrograde extrapolation from the urine. He testified
at trial that alcohol was in the petitioner‟s bloodstream at some time in the recent past and
that the alcohol had gone into the urine. The petitioner did not drink alcohol after the
shootings because he was apprehended immediately.
Lead counsel testified that one of the factors in the decision against calling Dr.
Caruso as a witness at trial was Dr. Caruso‟s opinion that the petitioner was able to
premeditate at the time of the shootings. Lead counsel said that while Dr. Caruso
included helpful mitigating factors in his report, lead counsel believed that he could
establish those factors through Dr. Wilson‟s testimony. Lead counsel discussed the issue
of whether to present Dr. Caruso‟s testimony with co-counsel and Ms. Shettles. Lead
counsel recalled that Dr. Caruso discussed the petitioner‟s ability to premeditate and that
the petitioner moved “in his steady progression and decide[d] what to do and that sort of
thing.” Lead counsel said Dr. Caruso‟s finding of narcissistic personality disorder “was
going to be a real problem.” Lead counsel also said Dr. Caruso‟s opinion was consistent
with Dr. Matthews‟ opinion.
Lead counsel testified that by withdrawing Dr. Caruso as an expert, the State was
not entitled to see his report. Lead counsel assumed that had he retained another expert,
the State would have attempted to learn about Dr. Caruso‟s opinions. He noted that many
38
of Dr. Caruso‟s findings were supported by the physical evidence and said he was able to
use Dr. Wilson as a defense witness. Finally, he explained that if a defense attorney has a
client evaluated by multiple experts and uses the expert who gives the most favorable
opinion, the jury could think that the attorney was “shopping for experts.”
Lead counsel testified that Dr. Nat Winston conducted the initial forensic
evaluation of the petitioner as ordered by the city court judge. Lead counsel noted that
such evaluations were fairly routine in these types of cases. He was given a copy of Dr.
Winston‟s report and said that according to the report, the petitioner denied having
hallucinations and stated that “he took two swigs out of his wife‟s vodka bottle but he
was not drunk and knew what he was doing.”
Lead counsel stated that he did not file a motion to suppress the petitioner‟s
statement to the police because he did not believe any grounds for suppression existed.
He explained that the petitioner signed a written waiver of his rights and that the
statement appeared to be knowingly, voluntarily, and intelligently given. He noted that
the petitioner made voluntary statements to the police following his arrest, some of which
were more damaging than his formal written statement. Lead counsel said portions of the
written statement were needed to support the defense. In the statement, the petitioner
expressed some remorse and stated that he had five shots of vodka prior to the shootings.
Lead counsel recalled that the defense called Investigator Miller as a witness “to do a
little front-loading mitigation on the remorse and put on the evidence of intoxication
there with him.”
Lead counsel did not file a motion to suppress the search of the petitioner‟s home.
He understood the initial entry involved a welfare check of the petitioner‟s two daughters
who had been living with the petitioner at the time of the shootings. He said that
following their initial entry, the police officers backed out of the home and obtained a
search warrant.
Lead counsel acknowledged that the petitioner demonstrated in his statement a
“ready recollection” of many of the details up to the time of the shootings. The petitioner
was able to load multiple weapons and drive to Mrs. Jordan‟s place of employment.
During the trial, evidence was presented establishing that the petitioner walked past
several people without harming them. Lead counsel said that the petitioner was unable to
remember some details, such as returning to the crow‟s nest following the initial
shooting, and that the defense used the lack of memory as evidence of “some impaired
mental state.” Lead counsel noted that Dr. Caruso viewed the petitioner as having
“selective memory.”
39
Lead counsel testified that he and co-counsel conferred with each other regarding
the cross-examination of Dr. Matthews and that co-counsel questioned Dr. Matthews at
trial. Lead counsel described Dr. Matthews as a “loose cannon” and said, “If you start
asking him too many questions, he will be explaining into the next year. He just keeps
on.” He said Dr. Matthews was a very experienced witness who knew how to answer a
question in such a way that he could discuss as much evidence as possible. Dr. Matthews
discussed evidence that the State could not otherwise introduce. Lead counsel stated that
trial counsel attempted to show that Dr. Matthews was a “hired gun from Hawaii.” Lead
counsel also stated, “We were just trying to shut him up and get him out of here.” He
noted that he and co-counsel did not question Dr. Matthews extensively on the issue of
the petitioner‟s mental state because Dr. Matthews was a damaging witness if not
“reign[ed] in.” Lead counsel raised an issue on appeal regarding Dr. Matthews‟ reference
to evidence that the State could not otherwise introduce. The court concluded that the
trial court‟s failure to give a curative instruction was harmless error.
Lead counsel stated that while he understood that Mrs. Jordan‟s statement to
Barbara Surratt regarding the statement of the petitioner‟s mother was “double hearsay,”
he also did not want to question Ms. Surratt about the conversation due to fear that he
could open the door to any other statements made by Mrs. Jordan during the
conversation. Lead counsel said that because there was physical abuse in the family
history, open-ended questions that might lead to evidence of such abuse needed to be
avoided. He did not call the petitioner‟s mother to testify about the petitioner‟s need to
be committed because his parents wanted to be present in the courtroom for the trial.
The trial court ruled that the petitioner‟s parents could not remain in the courtroom during
the trial if they were going to testify. Other family members who testified regarding
mitigation evidence were not allowed to remain in the courtroom for the trial. Lead
counsel challenged the trial court‟s ruling on appeal, and the Tennessee Supreme Court
held that the trial court erred but that the error did not affect the verdict and the sentence.
Lead counsel said he and co-counsel made every effort to elicit from every witness
who came into contact with the petitioner any information that may have supported an
intoxication or mental health defense. He believed that they were not surprised by any of
the evidence that was presented at trial. He also believed that Ms. Shettles interviewed
Kevin Deberry prior to trial and that he discussed giving the bottle of vodka to the
petitioner.
Lead counsel testified that he asked Ron Lax with Inquisitor, Incorporated to
analyze the crime scene evidence and offer an opinion as to whether the evidence
supported the actions of someone who was acting irrationally. Lead counsel asked Mr.
Lax to determine whether the shots were random or were “well-targeted.” Mr. Lax
issued a report in which he concluded, “Based on my review of this material, I could not
40
offer any opinion that the crime scene evidence suggested David Jordan was not fully
aware of what he was doing. This is based on the earlier phone call to TDOT, the amount
of ammunition, his comments to others present and the accuracy of the shots fired.”
On redirect examination, lead counsel testified that he understood that the
petitioner‟s prior domestic violence charge was a misdemeanor offense. The petitioner
was alone in his backyard firing several gunshots, and someone called 911.
Lead counsel said Dr. Winston likely conducted the initial evaluation without
relying upon a social history and the toxicology report from the TBI. Lead counsel
received the toxicology reports on March 30, 2006. He first interviewed the petitioner on
January 14, 2005, and learned early during his representation that blood and urine
samples had been taken. He received discovery from the State referencing the toxicology
reports in September 2005 and acknowledged that the samples were not destroyed until
January 3, 2006.
Lead counsel acknowledged that funding for Dr. Caruso was approved in January
2006 and that the defense‟s expert disclosures were due in March 2006. Lead counsel
further acknowledged that Dr. Caruso had a “somewhat limited” amount of time in which
to conduct an evaluation. Unlike Dr. Wilson, Dr. Caruso did not find any evidence of
dissociative disorder. Dr. Caruso indicated that the petitioner had experienced some
trauma and discussed “[l]oss or abandonment precipitating violence,” including Mrs.
Jordan‟s threat to leave him and force him and his children out of their home. Dr. Caruso
concurred that the petitioner had difficulty controlling himself. When asked about
diminished capacity, Dr. Caruso said, “Maybe, but there‟s too much organization.” Lead
counsel acknowledged that he did not retain a neuropsychologist, neuropharmacologist,
toxicologist, or pharmacologist.
Lead counsel testified that Mr. Lax was a licensed private investigator. He did not
know whether Mr. Lax had a degree in the area of forensics or any training in ballistics
but said Mr. Lax appeared to be well-qualified in those areas. He never filed a motion to
retain Mr. Lax as an expert, and Mr. Lax agreed to perform the work as part of their
hiring of Inquisitor, Incorporated.
Co-counsel testified that he was appointed to represent the petitioner on February
13, 2006. At that time, co-counsel had a general practice in Henderson, Tennessee. Prior
to representing the petitioner, co-counsel had represented defendants in two capital cases,
neither of which entered the penalty phase.
Co-counsel stated that he and lead counsel discussed what motions to file and who
would be responsible for filing each motion. Co-counsel believed that he drafted a
41
proposed jury questionnaire but said that the trial judge drafted his own jury
questionnaire. He did not believe that he or lead counsel investigated the possibility of
raising a claim of discrimination regarding the race and gender of grand jury forepersons
in Madison County. Co-counsel said no strategic reason for their failure to raise the issue
existed.
Co-counsel testified that by the time he was appointed to represent the petitioner,
lead counsel had retained Ms. Shettles, Dr. Wilson, and Dr. Caruso. Co-counsel
identified notes that he had written regarding other possible mental health experts
including a pharmacologist and a neuropsychologist. He also noted that alcoholism
existed in the petitioner‟s family and questioned whether the petitioner had “organic brain
problems.” Trial counsel did not retain a pharmacologist or a neuropsychologist and did
not obtain any brain imaging scans.
Co-counsel identified an email that lead counsel sent to Dr. David Stafford on
April 7, 2006, in which lead counsel asked Dr. Stafford whether the petitioner‟s
intoxication level at 11:30 a.m. on the day of the shootings could be determined from the
results of the urine sample. Lead counsel stated in the email that he might be interested
in an expert to address that issue. Co-counsel did not know whether Dr. Stafford
received the email. Co-counsel noted that according to his fee claim submitted to the trial
court, he had a telephone conference with Dr. Stafford regarding urine and alcohol on
May 31. Co-counsel also made a note to call the Tennessee Association of Criminal
Defense Lawyers regarding Dr. Stafford or other experts in “urine/alcohol.” Co-counsel
sent a letter to Dr. Stafford on June 14, in which co-counsel set forth the time in which
the urine sample was taken and the time in which the blood sample was taken. Co-
counsel questioned whether the petitioner‟s intoxication level at 11:30 a.m. on the day of
the shootings could be determined from the alcohol results of the urine sample. He also
questioned whether the results could be used to corroborate the petitioner‟s testimony
regarding the level of intoxication or alcohol intake. Co-counsel did not mention in the
letter that the presumptive testing of the urine sample by the TBI suggested the presence
of benzodiazepine.
Co-counsel testified that he had not worked with Dr. Wilson prior to the
petitioner‟s case. Co-counsel did not recall the State pointing out on cross-examination
that Dr. Wilson was not board certified as a forensic psychologist and that only one or
two percent of his practice was comprised of criminal defense work. Co-counsel
believed that the State pointed out on cross-examination that Dr. Wilson could not
prescribe medication.
Co-counsel conducted the cross-examination of Dr. Matthews at trial. While co-
counsel was aware that Dr. Matthews was employed by Park Dietz Company, co-counsel
42
did not contact anyone in the Tennessee or national capital defense community regarding
the methodology used by that company. He did not recall whether Dr. Matthews had
testified previously in Tennessee. He did not believe that he obtained transcripts of Dr.
Matthews‟ prior testimony and did not recall if he researched previous testimony of Dr.
Matthews in other cases on Westlaw or Lexis.
On cross-examination, co-counsel testified that he had been practicing law for
twenty-nine years and had worked on “thousands” of criminal cases, including homicide
cases as both a prosecutor and a defense attorney. He and lead counsel consulted each
other regarding any motions filed. They reviewed the discovery materials and discussed
them at length. Co-counsel stated that the district attorney general‟s office had an “open
file” policy where defense attorneys could copy any materials in the files of the
prosecutor and the law enforcement officers. He explained that defense attorneys were
allowed to return and review the files on multiple occasions during the course of
representing their clients. He said the defense team took full advantage of the “open file”
policy while representing the petitioner.
Co-counsel said Ms. Shettles interviewed witnesses, took statements, and
discovered mitigation evidence. He recalled difficulty in interviewing some witnesses
because officials with TDOT instructed witnesses not to speak with members of the
defense team. He said they made every effort to interview witnesses who agreed to be
interviewed and to search for mitigation proof. Co-counsel testified that due to Ms.
Shettles‟ investigation and trial counsel‟s review of the State‟s files, they were not
surprised by any evidence that was introduced at trial. Co-counsel noted that every
witness basically testified that the petitioner shot the victims and that as a result, the only
defense theory involved mental health. Trial counsel pursued a mental health defense by
retaining Dr. Wilson, a psychologist, and Dr. Caruso, a forensic psychiatrist.
Co-counsel stated that he had worked with Dr. Caruso on at least two other
occasions and that Dr. Caruso was “well-thought of” by the criminal defense bar. Co-
counsel explained that Dr. Caruso was not called as a witness at trial because trial counsel
concluded that Dr. Caruso‟s testimony could have been harmful to the defense.
According to co-counsel, Dr. Caruso stated in his report that the petitioner
was able to appreciate the nature and wrongfulness of his behavior at the
time of the offenses. There were no grounds to support an insanity defense
in accordance with the criteria in TCA [§] 39-11-501. In addition, while he
was intoxicated and suffered from major depression and severe mental
disease, neither precluded him from forming the requisite mens rea for his
offense in accordance with criteria in State v. Hall.
43
Co-counsel stated that Dr. Caruso shared the same opinion as the State‟s mental health
expert. In an email to Dr. Wilson on April 3, 2006, Dr. Caruso stated:
While the precise levels of benzodiazepine, opiates, and alcohol are not
unimportant, the larger issue is what effect that had on his mental state,
specifically the capacity to premeditate. I just did not see evidence from
the discovery that [the petitioner] was unable to plan or that he was in such
a state of passion and excitement that he couldn‟t premeditate his actions.
He apparently moved in a steady progression to achieve his intended
actions. He even had the capacity to converse and decide that he did not
wish to kill one victim and did not want to engage police. He was
apparently exercising some degree of reflection and judgment over his
actions.
Dr. Caruso stated in his report that the petitioner had told him that he loaded
several guns and thought that “he had to stop [Mrs. Jordan] from doing this to the kids.
He guessed he‟d have to shoot her, like going to war.” The petitioner informed Dr.
Caruso that he had threatened Mrs. Jordan with a knife in 2002, and Dr. Caruso
referenced other instances involving the use of a knife. Co-counsel testified that during
trial, the State attempted to introduce evidence of these prior instances, but the trial court
excluded the evidence. He explained that in cases involving alcohol and a family history
of abuse, presenting mitigation evidence without opening the door to other aspects of
family life “can be like negotiating a minefield.” Co-counsel agreed that the more
evidence the defense presented about the petitioner‟s family history, the more likely the
State could have presented evidence of prior domestic abuse and assault and the
petitioner‟s prior threat involving a knife, all of which the trial court excluded.
Co-counsel stated that the defense team obtained the records from Dr. Nat
Winston from Pathways, who evaluated the petitioner while the case was in city court.
Dr. Winston evaluated the petitioner on the issues of insanity and his ability to assist
counsel and found that an insanity defense could not be supported. During the
evaluation, the petitioner told Dr. Winston that he was not intoxicated at the time of the
shootings.
Co-counsel testified that the defense at trial involved a combination of alcohol
intoxication, the use of Xanax, or alprazolam, depression, and lack of sleep. He said trial
counsel presented evidence of intoxication at every opportunity in an effort to obtain a
jury instruction on intoxication. The trial court instructed the jury on intoxication during
both phases of the trial.
44
Co-counsel said trial counsel presented testimony from two TBI Crime Laboratory
technicians regarding the results of the State‟s testing of the petitioner‟s blood and urine
specimens. The specialist testified that a reliable extrapolation could not be made from
the urine alcohol results. Trial counsel presented evidence that the petitioner‟s blood
tested positive for Xanax and Citalopram. Co-counsel stated that trial counsel did not
present Dr. Stafford as a witness at trial because he would have testified that the only
inference that could be drawn from the results of the urine alcohol test was the petitioner
had consumed alcohol.
Co-counsel acknowledged that Investigator Miller testified that when the
petitioner gave his statement at 3:35 p.m. on the afternoon of the shootings, he was not
intoxicated. In his statement, the petitioner also denied taking Xanax. Dr. Wilson
testified that the petitioner was able to premeditate before and after the offenses but not
during the offenses.
On redirect examination, co-counsel acknowledged that Dr. Caruso determined in
his report that the petitioner was intoxicated at the time of the offenses. Dr. Caruso
mentioned that the effects of alcohol are increased by the concomitant use of Xanax,
hydrocodone, and Dolgic, all of which the petitioner was taking. Dr. Caruso diagnosed
the petitioner under Axis II with alcohol and benzodiazepine intoxication at the time of
the offenses, major depression, and alcohol and polysubstance dependence. Dr. Caruso
found as a mitigating circumstance that the offenses were committed while the petitioner
“was under the influence of mental and emotional disturbance, major depression, and in a
state of intoxication.” Dr. Caruso also found that the petitioner‟s capacity “to appreciate
the criminality of his conduct or to conform his conduct to the requirements of the law
was impaired by his major depression and alcohol and benzodiazepine intoxication.” Co-
counsel did not know that in 2006, the criminal defense bar was aware of problems with
Dr. Caruso‟s credibility in that he had falsified data while in medical school.
On recross-examination, co-counsel stated that Dr. Wilson testified at trial
regarding the petitioner‟s dependence on various substances, including alcohol,
benzodiazepine, and opiates. Co-counsel noted that Dr. Caruso expressed concern that
the petitioner complained of “memory deficits in such a convenient fashion.”
Glori Shettles, a mitigation specialist with the capital defense team of the Shelby
County Public Defender‟s Office, testified that in 2005 and 2006, she was a mitigation
specialist with Inquisitor, Incorporated, which had been formed by Ron Lax who was
deceased. Ms. Shettles worked for Inquisitor, Incorporated as a mitigation investigator
for twenty and one-half years and was retained as a mitigation specialist for the
petitioner‟s case.
45
Ms. Shettles testified that the only issue in the petitioner‟s case was his mental
state at the time of the shootings. She said the petitioner was concerned about the
combination of the drugs and alcohol he had consumed and asked about the results of the
blood and urine tests from the beginning of the case. Ms. Shettles collected the
petitioner‟s pharmacy data and researched an issue concerning the increase in the dosage
of Xanax prescribed to the petitioner approximately one week prior to the shootings.
She discovered fewer pills in the bottle of Xanax than she would have expected.
Ms. Shettles and lead counsel discussed retaining a psychiatrist or a medical
doctor. She contacted Dr. Caruso about his willingness to work on the case. She did not
recall whether she contacted Dr. Murray Smith, a medical doctor who specialized in
addiction. She had worked with Dr. Smith in prior cases involving addiction and
substance abuse.
Ms. Shettles testified that she assisted trial counsel in preparing a defense based in
part on intoxication. She saw intoxication as a central issue in the case. She recalled
evidence that Kevin Deberry, a neighbor, brought a bottle of vodka to the petitioner‟s
house and placed it in the freezer at approximately 1:00 a.m. on January 11, 2005. Ms.
Shettles interviewed the Naylors, the maternal grandparents of the petitioner‟s two
daughters, about what the children saw and heard on January 10 and 11, 2005, while with
the petitioner. Ms. Shettles did not recall speaking directly to the children. Her notes
reflected “big bottle, asleep in recliner, turned coffee on, came back and leave, had a
bottle, after drink coffee.” Ms. Shettles was unsure whether the “bottle” was a bottle of
liquor or a bottle of pills.
Ms. Shettles said she interviewed Larry Jordan, the petitioner‟s brother, who
described the petitioner as a “straight beer drinker.” She learned that the petitioner‟s
truck was released to Mr. Jordan months following the shootings. Mr. Jordan told Ms.
Shettles that he found a cup in the truck that still smelled of alcohol, which led him to
believe the petitioner had been drinking heavily around the time of the shootings.
Ms. Shettles believed trial counsel did not actively pursue an intoxication defense
after receiving the toxicology report. She recalled lead counsel informing her that he
would not be using Dr. Caruso in the case. She had a conversation with lead counsel on
May 5, 2006, during which lead counsel informed her that he expected to receive a report
from the State‟s mental health expert soon and that he was considering retaining a
neuropsychologist. Lead counsel also said he was considering asking Dr. Wilson to
delete from his report the information relayed to him by the petitioner about the
shootings. Ms. Shettles assisted Dr. Wilson in preparing a PowerPoint presentation to
use during his testimony at trial, and the presentation referenced the missing Xanax pills.
46
On cross-examination, Ms. Shettles testified that according to her notes, the
petitioner was “bad on drugs” when he was married to his former wife, Lisa Naylor. The
petitioner beat Ms. Naylor while she was pregnant with their first daughter. Ms. Naylor
began abusing drugs and left the petitioner when their daughter was one or two years old.
They later reconciled, and Ms. Naylor became pregnant with their second daughter. The
petitioner and Ms. Naylor had a fight when their youngest daughter was three weeks old,
during which the petitioner beat Ms. Naylor who was jailed after someone called 911.
Ms. Shettles noted that the petitioner hated his daughter with Mrs. Jordan because she
looked like Mrs. Jordan. The petitioner was abusing crack cocaine at one point. Ms.
Shettles also noted that even after the petitioner stopped using drugs, he never financially
supported his daughters with Ms. Naylor. The petitioner was taken to court on numerous
occasions for failure to pay child support. According to Betty Naylor, Ms. Naylor‟s
mother, “[The petitioner] would quit a job just to not pay child support.”
On redirect examination, Ms. Shettles testified that she was aware of an
association between substance abuse and domestic violence. She noted that the petitioner
had been married three times. His first marriage was to Denise when they were both very
young. They had a daughter named Deanna, who testified during the penalty phase. The
petitioner‟s second marriage was to Lisa Naylor, who had severe addiction issues. Ms.
Shettles said she did not interview Ms. Naylor because Ms. Naylor was undergoing
treatment at a rehabilitation facility at the time. Ms. Shettles said that during a violent
incident between the petitioner and Ms. Naylor, Ms. Naylor was jailed, which Ms.
Shettles assumed meant that Ms. Naylor was the assaulter. The petitioner and Ms.
Naylor had two children, both of whom were living with the petitioner on January 10 and
11, 2005. Ms. Shettles said she met the children but did not recall directly speaking with
them about the case. She believed that their grandparents objected to her interviewing
the children, and, as a result, the information she received was from the grandparents.
Ms. Shettles stated that Ms. Naylor‟s parents, who had custody of the two children,
expressed “very negative” feelings about the petitioner. The petitioner and Mrs. Jordan
obtained custody of the children prior to the shootings because Ms. Naylor could not care
for them.
Ms. Shettles did not recall the petitioner‟s ever indicating that he did not want his
child with Mrs. Jordan. She said the information she obtained from Betty Naylor
appeared to have been second or third-hand information. Betty Naylor did not state that
she witnessed certain events but that she heard about the events.
Joby Emerson, the wife of Johnny Emerson, testified that she spoke to the
petitioner approximately ten times in December 2004. She said that the petitioner was
very nice to her and that she never heard the petitioner threaten to harm anyone. She
stated that the petitioner called her and asked whether she was aware of the affair
47
between Mrs. Jordan and her husband. The petitioner told Mrs. Emerson that he and
Mrs. Jordan had a house together and that he had given Mrs. Jordan the proceeds from
the sale of his home to go toward their house. He said that Mrs. Jordan told him if their
marriage ended, he could have the house because they had recently received custody of
his two children. Mrs. Emerson stated that the petitioner did not want himself or his
children to be homeless.
Mrs. Emerson testified that one night in December 2004, her husband received a
telephone call from the petitioner and that she listened to the conversation on another
telephone. The petitioner asked Mr. Emerson what was going on between him and Mrs.
Jordan. Mrs. Emerson said the petitioner was “[v]ery calm.”
Gary Morse testified that in 2004 and 2005, he was the pastor at Bemis United
Methodist Church where the petitioner‟s parents were parishioners. The petitioner had
grown up in the church but was not active in the church when Reverend Morse was the
pastor. Reverend Morse stated that he visited the petitioner at the jail within twenty-four
hours of his arrest on January 11, 2005. He described the petitioner as “disheveled,”
“wired,” and “discombobulated” and said the petitioner was distraught and appeared to
have been crying. The petitioner told Reverend Morse that he had not slept. Reverend
Morse visited the petitioner two or three times per month over the next twenty months
while the petitioner was housed at the local jail. They discussed the petitioner‟s use of
alcohol and prescription drugs. On cross-examination, Reverend Morse acknowledged
that he testified at trial and described the petitioner as “dazed,” “[r]emorseful,” and
“tearful.”
Kippi Jordan, the petitioner‟s former sister-in-law, testified that the petitioner‟s
family moved into her neighborhood when she was in the fifth grade. She had known the
petitioner for thirty-five years and was married to his brother, Larry, for twenty-two
years. At the time of the post-conviction hearing, she was the principal at Nova
Elementary School.
Kippi Jordan stated that when she and the petitioner were growing up, the
petitioner was very friendly and like a brother to her. She was friends with the
petitioner‟s first wife but did not have as much contact with him during his second
marriage. The petitioner and Larry Jordan were close and hunted together. The
petitioner was very involved with his children.
Kippi Jordan testified that the petitioner had an uncle who exhibited “strange
behaviors” and was treated at Western State Mental Institute in Bolivar, Tennessee. The
petitioner‟s paternal grandfather was known to be an alcoholic and had a bad relationship
with the petitioner‟s father. She recalled a period of time during which the petitioner was
48
hallucinating. The petitioner called Larry Jordan on three occasions claiming to see cats
in the petitioner‟s trees. Larry Jordan told the petitioner that nothing was in the trees, but
the petitioner insisted otherwise.
Kippi Jordan stated that she saw the petitioner drink alcohol in junior high school
and throughout his adulthood. She said it was “common” for the petitioner to be seen
holding a beer. She had observed him drink ten or twelve beers without appearing to be
intoxicated. The petitioner did not stagger, fall, or slur his speech. He was a mechanic in
his spare time and had a race car. She previously observed the petitioner in his shop
working on a vehicle and drinking a beer.
Kippi Jordan testified that in January 2005, she was a consulting teacher at the
school where one of the petitioner‟s daughters attended. On January 10, 2005, the
petitioner was late bringing his daughter to school. The petitioner told her that he had not
been able to sleep and that when he finally fell asleep, he overslept. She said the
petitioner appeared very tired as if he had something on his mind.
On cross-examination, Kippi Jordan acknowledged that if the petitioner drank ten
beers, he would not have slurred speech, could perform mechanic work, could walk
without stumbling, and could communicate. She did not know what drugs the petitioner
was taking when he was hallucinating.
Kippi Jordan stated that she had a lengthy conversation with Ms. Shettles during
which they discussed the petitioner‟s daughter being late to school. Ms. Shettles asked
her how long she had known the petitioner‟s family and questioned her about the
petitioner‟s childhood.
Special Agent Kelly Hopkins, a forensic scientist in the toxicology section of the
TBI, testified that prior to the petitioner‟s trial she met with trial counsel at the crime
laboratory to review her testimony regarding her alcohol and drug testing. She said she
provided trial counsel with a “litigation packet,” which included information pertaining to
her testing of the petitioner‟s blood and urine samples.
Special Agent Hopkins said that while the TBI had similar testing procedures that
were employed when the testing was completed in the petitioner‟s case in 2005, the TBI
had added additional procedures since 2005. She explained that a calibration is used in
the field to determine the concentration of the drug within the sample. Whether a
concentration of a drug is too small to appear in a drug screen is dependent upon the
calibration range and the instrumentation used. Special Agent Hopkins stated that in
2005, the TBI‟s Crime Laboratory was not calibrated to reliably measure therapeutic
concentrations of Xanax.
49
Special Agent Hopkins said the enzyme multiplied immunoassay technique
(EMIT) is the initial drug screen that tests five categories of drugs: barbiturates,
benzodiazepines such as alprazolam, cocaine and its metabolites, marijuana and its
metabolites, and opiates. Any negative tests are recorded in the toxicology report as
being negative for that category, and any positive results from the initial screen must be
confirmed through additional testing. The petitioner‟s urine sample was positive for
benzodiazepines, while his blood sample was negative for benzodiazepines. Special
Agent Hopkins stated that in 2005, the laboratory did not test for alpha hydroxy
alprazolam, a metabolite of alprazolam, but that the lab currently tested for this
metabolite.
Special Agent Hopkins testified that gas chromatography is used in the field of
toxicology to separate drugs from a sample to determine the amount of the drug that was
present. A gas chromatograph mass spectrometer is a selected detector that separates the
drugs in a sample by a fingerprint of known standards of those drugs. In order for the
laboratory to report the presence of a drug, its existence must be registered under both the
gas chromatograph and the mass spectrometer. The gas chromatograph reading must be
within a calibration curve to report an actual amount of the drug‟s concentration. If the
amount is below the lowest calibration point, the amount of the drug must be reported “at
less than.” Special Agent Hopkins stated that the policy of the laboratory is to report
drugs found in a urine sample as positive without assigning a quantity. She could not
confirm the presence of alprazolam in the petitioner‟s urine or blood sample in the mass
spectrometer data.
Special Agent Hopkins acknowledged that the toxicology report issued on July 8,
2005, provided that “[p]resumptive testing indicates the possibility of benzodiazepines.
Contact the crime lab if further testing is needed.” She explained, “[W]hile I couldn‟t
confirm presence of a benzodiazepine, we‟re just giving information to the customer if
they want to independently test it or further test it with a more sensitive instrument.” She
stated that the records did not indicate that additional testing was requested and that the
testing would have been done had trial counsel requested it. She also stated that the
petitioner‟s urine and blood samples were destroyed on January 3, 2006, pursuant to the
policy of the crime laboratory. On cross-examination, she testified that her results were
consistent with a statement that the person had not taken Xanax in approximately three
days.
Dr. Murray Smith, a medical doctor and addiction specialist, was accepted by the
post-conviction court as an expert in the area of addiction. He was asked to evaluate the
petitioner‟s medical circumstances, addiction and treatment, and mental status at the time
of the shootings. He reviewed the petitioner‟s records from Pathways, his medical
50
records from the Jackson Clinic, the transcripts of the testimonies of Dr. Wilson and Dr.
Matthews at trial, and the reports of Dr. Jonathan Lipman and Dr. Peter Brown. He also
interviewed the petitioner for three hours on February 28, 2012. Dr. Smith opined that
the petitioner “was a far-advanced, severe chemically-dependent addict who at the time
of the offense[s] was severely intoxicated and unable to recognize what was going on
fully in terms of the events and the circumstances or to conform his behavior to the
requirements of the law.”
Dr. Smith testified that addiction is a medical illness that exists as an entity to
itself and can be influenced by other illnesses, medical conditions, society, environment,
and the particular circumstances. The three diagnostic criteria for addiction are (1)
preoccupation with obtaining and using the substance; (2) loss of control with the use of
the substance; and (3) the continued use of the substance even though it has caused
problems in the user‟s life. Dr. Smith concluded that the petitioner met the criteria for
addiction. Dr. Smith explained that addiction can take control of the brain chemistry so
that the user‟s behavior is controlled by the substance. He described the petitioner as a
“slave to the chemistry.”
Dr. Smith stated that the use of alcohol inflames the emotion of anger and
magnifies depression. Intoxication interferes with the process of the brain so that the
ability to perceive, judge, analyze, discern, and reflect is impaired. Dr. Smith defined
“blackouts” as amnesia caused by chemicals interfering with the brain‟s ability to record
the events that are occurring. According to Dr. Smith, although the event occurs, the
“recorder is not on.”
Dr. Smith testified that the petitioner began smoking marijuana and drinking
alcohol at the age of fourteen. By the age of seventeen, the petitioner was smoking
marijuana and drinking alcohol more than half the time and began experiencing
blackouts. At the age of nineteen, he began snorting cocaine intermittently. By 1995,
when the petitioner was thirty-one years old, he did not use marijuana and cocaine as
often. Dr. Smith explained that the company where the petitioner was employed
conducted random drug screens and that the petitioner was afraid that any positive drug
screen would adversely affect his job. Rather, the petitioner primarily consumed alcohol.
The petitioner lost his job in 1995 and attempted to manage a garage and convenience
store. At that time, he began using crack cocaine and methamphetamine, along with
marijuana and alcohol. From 1995 to 2000, the petitioner regularly used alcohol,
marijuana, methamphetamine, and crack cocaine. He was unable to maintain his
employment because he was losing weight and experiencing auditory and visual
hallucinations. Dr. Smith noted that the side effects of cocaine and methamphetamine
included sleep deprivation and paranoia.
51
Dr. Smith testified that the petitioner and Mrs. Jordan married in 2000. The
petitioner told Dr. Smith that Mrs. Jordan insisted that he stop using crack cocaine and
methamphetamine and that he complied. The petitioner increased his alcohol intake and
began taking Xanax and hydrocodone. Dr. Smith stated that Xanax essentially has the
same effect on brain chemistry as alcohol.
Dr. Smith noted that the petitioner had suffered multiple injuries during his life,
including a 1996 accident where he drove his truck into a field, sustained a severe
concussion, and spent four hours lying in the field while in and out of consciousness. As
a result of the accident, the petitioner injured his back and left knee and broke three ribs
on his left side. In 2000, the petitioner fell and hit his head, requiring a CT scan.
Dr. Smith testified that he reviewed the records of Dr. Coy, a licensed medical
doctor with a doctorate of osteopathy. Dr. Smith said that in prescribing medication, a
doctor must learn about the patient by taking a history and conducting a physical. The
doctor also must understand the disease that is being treated. If the doctor does not
understand the disease, the doctor must either order additional testing or consult other
doctors. Once the doctor understands the disease, he or she then must construct a
treatment plan that may or may not include prescription medication. The doctor must
review the status of the patient periodically to determine whether the treatment plan is
working. Dr. Smith said Dr. Coy failed to take these steps.
Dr. Smith stated that in February 2002, blood tests revealed that the petitioner had
abnormal liver function. Dr. Coy recorded in his notes that the petitioner told him that he
was a heavy drinker. Dr. Smith said Dr. Coy failed to take any action to evaluate or
follow up with the petitioner based upon that statement. On the same day, Dr. Coy
prescribed the petitioner a large quantity of Xanax, which, according to Dr. Smith, should
not have been prescribed. Dr. Smith explained that Xanax is an addictive medication and
if combined with alcohol, it increased intoxication and the potential for blackouts. The
combination of Xanax and alcohol can cause an increase in confusion and impair
judgment and perception. Dr. Smith said that on January 4, 2005, one week before the
shootings, Dr. Coy prescribed the petitioner 240 Xanax pills without seeing the petitioner
or noting whether he had spoken to the petitioner. Dr. Smith also said that “at a very
critical time when some measure of intervention could have been done in a very inflamed
dangerous situation, Dr. Coy did not see or intervene, but, in fact, prescribed things that
could, to my opinion, worsen the situation.”
The petitioner told Dr. Smith that on the Friday night prior to the shootings, he
was up all night with his sick daughter. His daughter was better the next day, and the
petitioner believed that he would be able to catch up on his sleep that night. Mrs. Jordan
asked the petitioner to care for their youngest daughter that Saturday night. The
52
petitioner reported that he was awake most of the night while waiting for Mrs. Jordan to
return from “partying.” He said he slept for a couple of hours that night. On Sunday, the
petitioner was with Mrs. Jordan and his daughters all day. The petitioner said that on
Sunday night, he slept only a few hours. The petitioner spent that Monday caring for his
daughters. Dr. Smith stated that by that evening, the petitioner was severely sleep
deprived.
Dr. Smith testified that the metabolites or oxidants collect in the brain due to sleep
deprivation and serve as another chemical intoxicant. He stated that as a result, the
petitioner had the intoxicants of alcohol, Xanax, and sleep deprivation on the day of the
shootings. Dr. Smith further stated that the petitioner‟s behavior on the day of and the
day prior to the shootings was consistent with intoxication. The petitioner reported that
during the time leading up to the shootings, he had been drinking six to eight beers each
day. He reported that on January 10, 2005, he ingested Xanax and alcohol. Dr. Smith
said that by 6:00 p.m., the petitioner began blacking out and did not know the amount of
pills or alcohol that he ingested after 6:00 p.m. Dr. Smith concluded:
In the presence of the intoxication, [the petitioner] not only had the
amnesia, but the fact that he would have the amnesia reflected that there
was generalized toxicity of his brain such that his ability to accurately
observe what was happening, perceive what was happening, his ability to
make good judgments, his impulsivity was markedly increased, his overall
brain functioning was severely impaired and he had difficulty with his
ability to control his emotions. The emotions were greatly magnified, both
depression and anger.
On cross-examination, Dr. Smith testified that in reaching his opinion, he did not
review two boxes of mitigation evidence compiled by the defense, Dr. Winston‟s report,
Dr. Caruso‟s report, the statements of witnesses at trial, or the petitioner‟s statement to
the police. Dr. Smith stated that although the petitioner told Dr. Winston that he was not
intoxicated at the time of the shootings, an intoxicated person generally believes, “I‟m
not as intoxicated as people would think I was.”
Dr. Smith said that on March 6, 2002, Dr. Coy encouraged the petitioner to refrain
from using alcohol while using Xanax. On May 22, 2002, testing revealed elevated liver
function, and Dr. Coy stopped the petitioner‟s Celexa. At that time, the petitioner told
Dr. Coy that he was no longer drinking alcohol. Dr. Smith acknowledged that the
petitioner lied to Dr. Coy and stated that he expected the petitioner to lie “because the job
description of addiction is to lie.”
53
Dr. Smith acknowledged that the petitioner underwent two prior CT scans of his
head, both of which revealed normal results. The petitioner told Dr. Smith that he did not
use any drugs or alcohol prior to the 1996 accident. According to the hospital records
from the accident, however, the petitioner lay in the field for four hours to avoid being
charged with driving under the influence. The report from the emergency room stated
that the petitioner had consumed three beers. The petitioner told Dr. Lipman that prior to
the accident, he had been taking powder cocaine and drinking alcohol. Dr. Smith did not
believe that the hospital records and the petitioner‟s statement to Dr. Lipman contradicted
the petitioner‟s statement to him because the petitioner told him that he was not “doing
heavy alcohol or drugs.”
Dr. Smith testified that the petitioner informed him of a history of physical and
sexual abuse as a child that resulted in “shame issues.” The petitioner said that a
fourteen-year-old relative physically abused him and that his father was physically and
emotionally abusive. Dr. Smith read the transcript of the petitioner‟s testimony in 2008
of custody proceedings involving his daughter with Mrs. Jordan. During the deposition,
the petitioner testified that his parents were “exceptional” and denied that they abused
him or their foster children in any way. The petitioner further testified, “My parents did
all anybody could ask them to humanly possibly do raising me. There‟s no connection
between what I‟ve done and what they‟ve done.” Dr. Smith acknowledged that the
petitioner‟s deposition testimony was inconsistent with the petitioner‟s statements to him.
Dr. Smith stated that the petitioner was motivated to offer the testimony in 2008 to
prevent his daughter from being adopted by his in-laws. Dr. Smith acknowledged that
the petitioner may have been motivated to lie to him to receive some benefit related to the
criminal proceedings. Dr. Smith noted that the petitioner‟s statements to him, Dr.
Lipman, and Dr. Brown were consistent.
Dr. Smith stated in his report that an accurate determination of the petitioner‟s
blood alcohol on January 11, 2005, at 11:30 a.m. was not possible based upon the TBI
laboratory report. He said that while he would have considered the petitioner‟s statement
to Investigator Miller that he had not taken Xanax for two or three days, the petitioner
could not have known this information because he was intoxicated and experiencing
blackouts. Dr. Smith stated that based upon his experience, he believed that the
petitioner provided an accurate account of a blackout. He explained that the petitioner
“remembered spotlighted incidents, kind of like little snippets of a preview of a movie,
and that is a typical type of amnesia where certain things are spotlighted.” Dr. Smith said
the petitioner did not state that he remembered waking up and having no intentions of
hurting Mrs. Jordan. The petitioner said Mrs. Jordan told him that he and his daughters
had until the beginning of February to leave the home. The petitioner informed Dr.
Smith that on the day of the shootings, he recalled having weapons and ammunition on
the bed and talking to someone who was not there. The petitioner said he loaded his
54
weapons but did not tell Dr. Smith about writing the note. The petitioner did not tell Dr.
Smith that he did not know whether he was going to hurt Mrs. Jordan. At some point, the
petitioner said he considered committing suicide, but Dr. Smith was unsure at what point
the petitioner contemplated suicide.
Dr. Smith testified that any discrepancy between the petitioner‟s statements to him
and the petitioner‟s statements to Investigator Miller was due to the petitioner‟s
intoxication and the amount of time that had passed between the two statements. Dr.
Smith did not know why the petitioner provided more detail of the events to Investigator
Miller and said the petitioner provided the details to Investigator Miller regardless of
whether the details were accurate. Dr. Smith stated that the petitioner‟s recollection of
some details following his arrest was due to “spotlighted amnesia.”
In rendering his opinion, Dr. Smith did not consider the note that the petitioner had
written prior to the shootings. He stated that “automatic activity,” such as writing while
severely intoxicated and in a blackout, was possible. Dr. Smith testified that the
petitioner‟s blood alcohol level could have been as high as .40. Dr. Smith could not
determine exactly how high the petitioner‟s blood alcohol level was but stated that it was
higher than the legal limit.
On redirect examination, Dr. Smith testified that he understood that the physical
abuse referenced by the petitioner involved beatings with a belt. Dr. Smith stated that Dr.
Caruso‟s report supported his opinion and explained that Dr. Caruso found that because
of the petitioner‟s intoxication, he was unable to appreciate the “criminality” of his
conduct or conform his conduct to the requirements of the law. Dr. Smith said Dr.
Winston‟s report did not change his opinion.
In response to questioning by the post-conviction court, Dr. Smith said he
determined that while the petitioner was intoxicated at the time of the shootings, the
petitioner also had “dreamlike amnesia with brief snippets of disconnected memory.”
Dr. Smith explained that those who experience such “dreamlike amnesia” describe the
events as if they are watching them from a distance. The petitioner told Dr. Smith that he
watched himself drive through the stop sign on Highway 70. Dr. Smith said, “It‟s like
somebody else is in control of his actions, and what‟s in control of his actions is the drugs
and alcohol.” The “snippets” were the spotlights of the events that the petitioner could
remember but were not always in sequence.
Dr. Malcolm Spica, a clinical neuropsychologist, was accepted by the post-
conviction court as an expert in neuropsychology. He was asked to assess the petitioner‟s
information processing capabilities. He administered the Wechsler Adult Intelligence
55
Scale and determined that the petitioner‟s I.Q. score was 95, which fell within the 37th
percentile.
Dr. Spica tested the petitioner‟s executive functioning or mental organization. He
determined that the petitioner had a cognitive disorder in that he had organizational
deficits that led to inconsistent performances on various tests. Dr. Spica found that the
petitioner had inconsistent and deficient executive control, which led to issues involving
problem-solving and learning new information. Dr. Spica determined that when the
information became complex and the petitioner was required to track different pieces of
information, he became confused and inefficient in the way he solved a problem. Dr.
Spica stated that the petitioner‟s problems with executive control were exacerbated by
various forms of stress. He explained that time pressure, sleep deprivation, and metabolic
disruption, such as an illness or substance abuse, were factors that could have
exacerbated the petitioner‟s deficits and issues with information processing.
Dr. Spica diagnosed the petitioner with depression not otherwise specified based
upon the results of four standardized tests of mood. He deferred to the forensic
psychiatrist for a more detailed assessment of the petitioner‟s mood. He acknowledged
the petitioner‟s history of substance abuse and diagnosed him with alcohol/substance
abuse in remission.
On cross-examination, Dr. Spica testified that the petitioner had a cognitive
disorder in mental organization. He acknowledged that a person who abuses cocaine,
methamphetamine, and alcohol could exhibit the same characteristics of mental
disorganization while the substances are active in the body. The substances can lead to a
cognitive disorder through brain damage. Dr. Spica said the petitioner was of average
intelligence and had the capability to plan to kill someone in the condition he was in at
the time of the post-conviction hearing.
Dr. Spica acknowledged that the petitioner was able to repair automobiles and
vending machines. Dr. Spica said that as long as the petitioner was not intoxicated, sleep
deprived, or under duress, he could complete the tasks required for a building a race car.
Dr. Spica was not sure that “a relative‟s observations would precisely enough measure
whether or not [the petitioner] was affected by alcohol.”
Dr. Spica did not know if he had reviewed the information gathered by Ms.
Shettles and did not recall whether he had reviewed the transcript of Dr. Wilson‟s
testimony at trial. Dr. Spica stated that the petitioner had cognitive deficits that were
likely to influence his capacity to premeditate and were likely to be exacerbated by the
circumstances surrounding the shootings. Dr. Spica explained that sleep deprivation,
intoxication, and stress would exacerbate the petitioner‟s cognitive impairments and
56
lower his capacity to develop a plan of action. He was unable to determine whether the
petitioner could premeditate if he was not intoxicated and said other factors could
interfere with the petitioner‟s ability to premeditate. He did not know the petitioner‟s
level of intoxication at the time of the shootings and said he had to “defer that to the
experts.”
Dr. Spica acknowledged that while the petitioner had a history of multiple head
injuries, he had CT scans in 2000 and 2002, both of which were clear. He explained that
a CT scan might not be the most appropriate way to assess a brain injury because the scan
only shows structural damage and does not measure brain tissue functioning. He said a
neuropsychological examination is needed to measure brain tissue functioning.
On redirect examination, Dr. Spica testified that he tested the petitioner for
malingering, but no malingering was shown. On recross examination, he acknowledged
that the testing for malingering did not indicate whether the patient was lying to the
mental health expert.
In response to questioning by the post-conviction court, Dr. Spica testified that the
petitioner reported that he drank alcohol heavily from October 2003 to June 2004 and that
he used cocaine and methamphetamine in the 1990s. Dr. Spica did not mention
prescription drug abuse in his report. He explained that he did not ask the petitioner
whether he abused prescription drugs because “it‟s not quite my world.” He stated that
prescription drug abuse and alcohol abuse would have had a similar effect on the
petitioner‟s cognitive functioning. Dr. Spica noted that the petitioner fell within the
second percentile in mental organization, which meant that ninety-eight percent of the
population performed better than him.
Dr. Jonathan Lipman, a neuropharmacologist specializing in forensic
neuropharmacology, was accepted by the post-conviction court as an expert in
pharmacology and neuropharmacology. Dr. Lipman assessed the petitioner‟s state of
mind from a neuropharmacological perspective at the time of the offenses on January 11,
2005. He reviewed a timeline of the petitioner‟s life, the petitioner‟s medical and
pharmacological records, materials from the trial, the Tennessee Supreme Court‟s
opinion from the direct appeal, documents from the TBI and the Jackson Police
Department, the transcript of Investigator Miller‟s testimony at trial, the petitioner‟s
statement to the police, and various psychological and psychiatric reports. In addition to
the TBI reports of the petitioner‟s blood and alcohol analysis, he reviewed the TBI‟s files
and the standard operating manuals for the crime laboratory.
Dr. Lipman opined that at the time of the shootings, the petitioner was heavily
intoxicated on Xanax and alcohol. He said the petitioner also had clinical depression,
57
protracted sleeplessness, and brain dysfunction and was “under conditions of extremely
highly emotional milieu.” He stated that the petitioner‟s history of drug use related to his
conditions at the time of the shootings. He explained that in the past, the petitioner had
used stimulant drugs, which had a lasting effect on his personality. He also opined that
the petitioner was impaired in his ability to think and conform his behavior to the law
because he was in a “state of drug-influenced emotionality.”
Dr. Lipman testified that the effect of alcohol on the brain is dependent upon the
amount of alcohol used and the duration of its use. Alcohol inhibits the frontal lobes of
the brain. When used chronically, alcohol damages the brain, and the damage can be
permanent, particularly in “continuous drinkers.” Dr. Lipman said the petitioner was not
a “continuous drinker” but was a “binge drinker.”
Dr. Lipman stated that Xanax is a benzodiazepine with a half-life of between six
and twenty-four hours and an average half-life of eleven hours. He said the petitioner
had been prescribed Xanax for many years but took less than the prescribed amount. He
stated that when taken regularly every day, the drug was not cleared from the person‟s
system by the time he or she took the next dose. He also stated that a person should not
drink alcohol while taking benzodiazepines.
Dr. Lipman testified that both cocaine and methamphetamine cause excessive
dopamine stimulation in the brain. As a result, the drugs produce elation and a sensation
of joy, power, and increased strength. Dr. Lipman stated that the “shadows” of the
petitioner‟s prior use of cocaine and methamphetamine were reflected in his current
character traits and that the petitioner used the drugs to the point that he was paranoid,
delusional, and hallucinating. Dr. Lipman said his research indicated that those who have
used the drugs persistently to the point they experience hallucinations “remain vulnerable
to the provocation of psychosis in the future.” He explained that even when the person is
not using the drugs, the character logical structure is changed as a result. The person
becomes more jealous, superstitious, anxious, and vulnerable to depression.
Dr. Lipman understood that during a period in the 1990s, the petitioner used
cocaine and methamphetamine excessively and began having irrational fears,
hallucinations, and paranoia. The petitioner told Dr. Lipman that he would sit all night
with a pistol in his hand while looking out the window. The petitioner reported hearing
“threatening noises” and voices coming from the crawl space underneath his house. He
said he saw people in his trees and called his brother to check the trees. He once called
his parents to report that he saw people on the roof and underneath the floor, and his
parents tried to take him to Western State Mental Health Institute. Dr. Lipman stated
that, according to records from the petitioner‟s automobile accident in August 1996, the
petitioner weighed 143 pounds at that time and that those who use excessive amounts of
58
cocaine or methamphetamine commonly lose weight. The petitioner stopped using
cocaine and methamphetamine in 1999 or 2000 by the time that he met Mrs. Jordan.
Dr. Lipman testified that the petitioner‟s parents were “totally abstemious” of
alcohol and would not take the family to events where alcohol was served. The
petitioner‟s paternal and maternal grandparents and one of his uncles were alcoholics.
Dr. Lipman said that as a result, the “genetic determinants of alcoholism certainly run
through his line.” He believed that the petitioner‟s upbringing in a total “abstemious”
family may have added to his problems because he did not see any examples of the
responsible use of alcohol. The petitioner began using alcohol and marijuana at the age
of fourteen and also had trouble sleeping. At the age of eighteen, the petitioner was
introduced to cocaine and methamphetamine.
Dr. Lipman noted that the petitioner was first diagnosed with depression in 1991 at
the age of twenty-seven. At that time, the petitioner‟s first marriage was ending, and he
had a four-year-old child. The petitioner began using methamphetamine “seriously” in
1995. He was married to Lisa Avent,1 who also had substance abuse issues. The
petitioner was using methamphetamine while working at a “garage convenience place,”
and the drug “took over his life.” He abandoned his employment and remained
unemployed for some time. It was during this time that the petitioner was paranoid and
hallucinating. Ms. Avent left the petitioner in January 1996.
Dr. Lipman testified that in 1996, the petitioner was involved in a cocaine-related
automobile accident. The petitioner broke his pelvis and ribs and had compression
fractures of the Lumbar 4 and 5 vertebra. To address the pain from his injuries, the
petitioner was prescribed hydrocodone and a muscle relaxant. In November 2000, the
petitioner was prescribed Xanax for anxiety.
The petitioner met Mrs. Jordan in July 1999, they married in May 2000, and their
daughter was born in November 2000. Dr. Lipman stated that the petitioner had stopped
using stimulants at that point but was drinking alcohol excessively. The petitioner
described an incident during which he “poked [Mrs. Jordan] in the chest and then let off
steam by firing a weapon.” Someone called 911, and the police responded. The
petitioner was required to attend anger management classes. He reported that he was
drinking six to eight twelve-ounce cans of beer five nights a week. On some days, he
drank twelve beers between noon and midnight.
1
Although Dr. Lipman referred to the petitioner‟s second wife as Lisa Avent, Ms.
Shettles testified that her name was Lisa Naylor.
59
Dr. Lipman noted that the petitioner had arthroscopic surgery in October 2003,
which was unsuccessful. He had knee surgery again in March 2004. He had ongoing
issues with pain from his fractured vertebra and pelvis. Ms. Avent was not caring for the
petitioner‟s two daughters and was continuing to abuse drugs. Dr. Lipman said that
because the petitioner was no longer abusing drugs, the petitioner and Mrs. Jordan
decided that it was a good time to seek custody of his daughters. The petitioner had an
appendectomy in 2004 and was prescribed hydrocodone as a result. Dr. Lipman stated
that most of the addicts he had dealt with were addicted to hydrocodone and would take
as much as they could get. The petitioner, however, was taking less hydrocodone than
prescribed, which Dr. Lipman found to be unusual. While in the hospital for the
appendectomy, the petitioner suffered a rare hallucinogenic effect of meperidine, the pain
medication that he was given. Dr. Lipman considered this effect to be “potentially
relevant” due to the petitioner‟s history of “prior psychotic-like behavior under stimulant
abuse.” In late 2004, the petitioner continued to suffer from anxiety and was prescribed
alprazolam. He began taking Celexa for depression in November 2004.
The petitioner told Dr. Lipman that in September 2004, after he obtained custody
of his two daughters, he found Mrs. Jordan‟s son in a “compromising” position with one
of his daughters. Dr. Lipman said that, at that time, the petitioner and Mrs. Jordan‟s
marriage was “fragile” and that the petitioner did not want her son in the home. Mrs.
Jordan had “outside interests” and was behaving in a way that made the petitioner
“jealous and suspicious.” They were separated, and Mrs. Jordan wanted a divorce.
Dr. Lipman testified that he was concerned about Dr. Coy‟s prescribing the
petitioner Xanax because the petitioner was drinking alcohol excessively and had been
prescribed Xanax since 2000. In 2000, the petitioner was prescribed one-quarter of a
milligram of Xanax to be taken twice daily. Dr. Lipman said that based upon the
pharmacy records, the petitioner was taking less than the prescribed amount. The dosage
later was increased to one-half of a milligram, and this dosage remained in place until
shortly before the shootings. On January 4, 2005, Dr. Coy increased the petitioner‟s
dosage to one milligram twice daily due to increased anxiety. The petitioner also was
taking Citalopram to treat depression. Dr. Lipman stated that Xanax and alcohol can
worsen depression and that alcohol disrupts the sleep rhythm in that it makes it more
difficult to fall asleep and remain asleep.
Dr. Lipman noted that the shootings occurred at approximately 11:30 a.m. and that
the petitioner was arrested shortly thereafter. The petitioner signed the consent to provide
a urine sample at 3:35 p.m. but was not able to produce a sample at that time. He
produced a urine sample before the end of the statement at 5:35 p.m. The blood sample
was taken at 9:50 p.m. The TBI analyzed both samples. Agents identified .17 gram
60
percent alcohol in the urine sample, and the urine sample also was positive for
benzodiazepine.
Dr. Lipman said that considering “certain reasonable assumptions,” he used the
results of the urine analysis to calculate the petitioner‟s blood alcohol level at the time of
the urine sample and then used the data to extrapolate the petitioner‟s blood alcohol
concentration at the time of the shootings. Dr. Lipman stated that blood alcohol
concentration cannot be directly estimated from a urine concentration. He explained that
when alcohol is consumed and absorbed in the body, blood alcohol levels rise, and urine
alcohol levels are lower than blood alcohol levels. The urine would have considerably
less alcohol than the blood. In the post-absorptive state, the blood alcohol level falls, and
the urine alcohol concentration begins to rise. Dr. Lipman noted that during the post-
absorptive state, the relationship between the blood alcohol concentration and the urine
alcohol concentration falls within a certain range. When the urine concentration is below
the blood concentration, the ratio could be 1 to .07. Dr. Lipman stated that measuring the
blood alcohol concentration when the level in the blood is rising would be “hopelessly
unreliable.” As a result, extrapolation can only occur in the post-absorptive phase. Dr.
Lipman said most textbooks recommend multiple urine samples be taken in order to
ensure that the post-absorptive phase is occurring. He also said urine alcohol is at its
highest point at 1.3 times the amount of alcohol found in the blood.
Dr. Lipman testified that the most important assumption was that the petitioner
was in the post-absorptive stage when he provided a urine sample. He said several hours
had passed since the petitioner‟s arrest when he provided the urine sample. Dr. Lipman
believed that the petitioner was not drinking alcohol while in police custody. Dr. Lipman
stated that since the petitioner was in the post-absorptive phase when the urine sample
was collected, the ratio of the blood alcohol level and the urine alcohol level was
“clearly” 1 to 1.3. The petitioner‟s urine contained alcohol that was excreted when the
ratio was lower than 1 to 1.3, and as a result, a mixture of ratios existed. Dr. Lipman
stated that in interpreting what the blood alcohol level would have been, he had to allow
for the fact that there was an average of the relationship between blood and urine over the
post-absorptive phase. He also stated that when the blood and the urine levels are the
same, the ratio is 1 to 1. He did not know at what point that this 1-to-1 ratio occurred.
Dr. Lipman testified that assuming a ratio of 1 at the turnover of the absorption
phase to 1.3 at the extreme time of the post-absorption phase enabled him to interpret the
petitioner‟s range of blood alcohol concentration at the time of the collection of the urine
sample to be 170 milligrams per deciliter. Dr. Lipman said the petitioner likely was
producing urine containing the blood alcohol equivalent of between 130 and 170
milligrams per deciliter at the time the urine was collected. He stated that as a result, the
petitioner‟s blood alcohol level could have been up to twice the legal limit for driving at
61
the time that the urine sample was collected. He explained that the ratio is not dependent
upon how often the person drinks alcohol; rather, the ratio “is simply the solubility of
alcohol in the tissues over time as it‟s being cleared from the body.”
Dr. Lipman next considered the rate of metabolization of alcohol in calculating the
petitioner‟s blood alcohol level at the time of the shootings. Alcohol metabolizes when it
is converted into acetone and then carbon dioxide and water. The clearance rate is the
rate at which the alcohol disappears from the blood. Dr. Lipman noted that alcohol in an
experienced adult can metabolize at a rate of sixteen to twenty milligrams per deciliter
per hour and that the clearance rate in a chronic alcoholic is between thirty and forty
milligrams per deciliter per hour. He assumed that the petitioner had a clearance rate of
thirty milligrams per deciliter each hour and that five hours had passed between the time
of the shootings and the time of the urine collection. Based upon these figures, Dr.
Lipman determined that the petitioner‟s blood alcohol concentration at the time of the
shootings would have been .28 to .32 grams percent or 280 to 320 milligrams per
deciliter. He stated that if he assumed that the petitioner had a clearance rate of forty
milligrams per deciliter, his blood alcohol level at the time of the shootings could have
been as high as 330 to 370 milligrams per deciliter. He also stated that the assumption of
a clearance rate of forty milligrams per deciliter was not unreasonable given the
petitioner‟s history of chronic alcohol abuse.
Dr. Lipman testified that the gas chromatography conducted by the TBI identified
alprazolam and quantitated the alprazolam present at .101 microgram per milligram. He
said that according to the laboratory‟s protocol, the agents should have calibrated the
machine to a point lower than the amount of alprazolam found but failed to do so. As a
result, the amount of alprazolam that the gas chromatogram actually identified was
outside the range of calibration and, therefore, not reportable.
Dr. Lipman stated that based on the data, it was difficult for him to determine
whether the petitioner‟s defects were caused by alcohol, drug use, or head injuries. He
opined that the petitioner was suffering from extreme emotional distress and cognitive
confusion and distortions and was “unable to properly regulate his emotions or to control
his behavior to the requirements of the law at the time of the offenses.” Dr. Lipman
noted in the jail records an entry on January 12, 2005, that one of the jailers was unable to
wake the petitioner and that the petitioner appeared to be sleeping heavily. He said the
incident was the result of “post-excitement culmination of many, many days of lack of
sleep, a huge dose of alcohol in combination with alprazolam.”
Dr. Lipman said there were six or seven fewer pills of alprazolam in the
petitioner‟s pill bottle than he would have expected based on the prescribed dosage. He
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stated that the amount of alprazolam in the petitioner‟s blood corresponded to
approximately six more pills than his prescribed dosage.
Dr. Lipman testified that the ability to smell alcohol varied among people and that
he was not surprised that some people smelled alcohol on the petitioner following the
shootings while others did not. He noted studies indicating that trained individuals were
deficient in identifying intoxication in chronic alcoholics except at the highest
concentration of alcohol. He explained that chronic alcoholics were more difficult to
detect by their behavior. They can walk, talk, and behave normally with a blood alcohol
concentration of between 300 and 400 milligrams per deciliter. They have issues with
mental flexibility in that they become confused if diverted.
On cross-examination, Dr. Lipman testified that he was unaware of the Jackson
Police Department‟s protocol for collecting urine samples and that as a result, he was
unaware of whether there were any issues with the collection of the petitioner‟s urine
sample. He assumed that the sample was collected in the proper way. He stated that
glycosuria, or blood sugar, may be released in the urine of a diabetic or an alcoholic.
Bacteria may feed on the sugar, and the sugar can produce excess alcohol when the
person has a urinary tract infection or the vessel into which the sample was collected was
not clean. A preservative typically is placed in the urine sample to ensure that any
bacteria does not affect the sample. Dr. Lipman did not know whether a preservative was
added to the petitioner‟s urine sample. If the urine is not refrigerated, the bacterial
activity in the urine sample can increase if bacteria is in the sample and no preservative is
added. Dr. Lipman did not know whether the petitioner‟s urine sample was left
unrefrigerated or how long.
Dr. Lipman stated that a timed urine analysis ensures that the alcohol collected in
the urine is in the post-absorptive phase. Multiple urine samples are taken over time, and
the post-absorptive phase is determined to be in place once the alcohol concentration in
the urine rises. Dr. Lipman said the petitioner was clearly in the post-absorptive phase
when his urine sample was collected. He explained that the petitioner had last consumed
alcohol hours before the sample was collected.
Dr. Lipman did not know the exact time that the petitioner began drinking alcohol
on the day of the shootings. The petitioner told Dr. Lipman that he drank from a bottle of
vodka. Dr. Lipman recalled that the petitioner told Investigator Miller that he drank five
shots of vodka on the day of the shootings but said he did not consider the petitioner‟s
statement to Investigator Miller in his analysis.
Dr. Lipman acknowledged that he stated in his report, “The variations in urine to
blood concentration ratio for individuals in the post-absorptive phase can be so large that
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it is generally considered unacceptable to estimate a blood ethanol concentration from the
ethanol concentration of a randomly collected urine specimen.” He also acknowledged
that this type of estimation was not done in the scientific community for purposes of
driving under the influence. He said the estimation can be done for autopsy purposes and
other forensic purposes. He stated that while a single urine analysis is generally
unreliable, “under circumstances in which you are certain that you are dealing with the
post-absorptive phase, certain assumptions can be made that are reasonable and accepted
in the field.” When asked about whether the sources cited in Dr. Lipman‟s report
allowed him to use a single urine sample to calculate blood alcohol and then extrapolate
the blood alcohol back to the time of the shootings, Dr. Lipman responded, “I did it
because I‟m a pharmacologist and I know what I‟m doing.”
Dr. Lipman disagreed that he had to know when the petitioner‟s bladder had been
last emptied before providing the urine sample in order to make an estimation and said he
accounted for this by using the ratio of 1.0 to 1.3. He acknowledged that “ideally” urine
should be collected for analysis approximately one hour after an initial void. He said that
if the period during which the alcohol is being absorbed is included in the calculation, the
ratio falls below 1.0 and rises to 1.7. He acknowledged that blood alcohol extrapolation
is more reliable than urine extrapolation.
Dr. Lipman did not know how long the .17 gram percent of urine alcohol had been
in the petitioner‟s system or when it entered his system. He assumed that the alcohol
entered the petitioner‟s system over several hours. Dr. Lipman testified that it was
possible that, before the petitioner left his house, he consumed an unknown quantity of
alcohol and that the alcohol would not have been in his blood when he was at TDOT.
The alcohol that the petitioner consumed prior to leaving his home would not have been
excreted into the urine before the shootings. Dr. Lipman said if it were assumed that the
petitioner stopped absorbing alcohol at a time before the alcohol was actually absorbed
that “you will mistakenly back-calculate it to a higher level than it actually was.” He
acknowledged that if the petitioner consumed alcohol prior to leaving his home, he would
have had alcohol in his stomach or intestine that was not affecting his ability at the time
of the shootings and “would be confounding the calculation [Dr. Lipman] did.” He did
not know how much alcohol was in the petitioner‟s stomach at the time of the shootings
or whether there was any alcohol in his stomach. He said, “I assumed post-absorptive
assumptions and that the alcohol was being cleared from his blood into his urine after his
arrest. That‟s the limit of my calculation.”
Dr. Lipman disagreed that the petitioner‟s statement to Investigator Miller that he
had not taken his medication for two or three days was consistent with the results of the
TBI‟s analysis. He acknowledged that according to the jail records on January 12, 2005,
the petitioner did not appear to be under the influence of alcohol or drugs and that there
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were no signs of alcohol withdrawal. According to the jail records, the petitioner was
asked whether he used “alcohol/drugs,” and the petitioner responded, “Twice a week.”
Dr. Lipman stated that when asked about drugs, people generally assume that the
question involves illegal drugs. He did not expect that the petitioner would refer to
alprazolam as a drug. He said that while he considered the petitioner‟s statements
reflected in the jail records and his statement to Investigator Miller that he only consumed
five shots of vodka and had not taken his medication in two or three days, Dr. Lipman
could not “overcome the fact that [the petitioner] clearly ha[d] alprazolam in his body.”
Dr. Lipman could not “reliably” quantify the amount of alprazolam that was in the
petitioner‟s system.
Dr. Lipman stated in his report that sleep deprivation is cognitively disabling and
disorienting. He explained that people who are sleep deprived can acquire targets but
that the targets acquired are often the wrong ones.
On redirect examination, Dr. Lipman testified that according to the property
receipt for the petitioner‟s urine sample, the petitioner provided the sample to
Investigator Miller on January 11, 2005, at 3:35 p.m.; Investigator Miller gave the sample
to Investigator Ferguson on January 11 at 11:25 p.m.; and Investigator Ferguson
delivered the sample to the TBI laboratory on January 12. Dr. Lipman said police
departments generally used sterile cleaned jars with labels placed over the openings to
seal them. If a preservative is required, it generally is added. He did not recall seeing
any data from the TBI screening for contamination.
Dr. Lipman identified a summary of an interview in September 2006 of the
petitioner‟s parents and his two daughters who were with the petitioner on the evening of
January 10, 2005, and until the next morning before they went to school. One daughter
reported that on the morning of the shootings, the petitioner was drinking from an opaque
glass which she believed contained alcohol. Both of his daughters reported that on the
evening of January 10 and the morning of January 11, the petitioner was looking at the
television, which was not turned on, and staring out the window. The petitioner also was
talking to himself and responding to himself.
Dr. Peter Brown, a psychiatrist, was accepted by the post-conviction court as an
expert in the field of psychiatry. Dr. Brown conducted a psychiatric forensic evaluation
of the petitioner. He diagnosed the petitioner with cognitive disorder not otherwise
specified; acute alcohol and benzodiazepine intoxication; benzodiazepine abuse;
depressive disorder not otherwise specified; opiate dependence; alcohol dependence;
adjustment disorder with anxious and depressed mood; and a past history of stimulant-
induced psychosis and polysubstance dependence, including both methamphetamine and
cocaine which were in sustained remission at the time of the shootings.
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Dr. Brown testified that upon reviewing the petitioner‟s family neuropsychiatric
history, he found strong evidence of a genetic component for substance abuse. He found
a significant history of mental disorder and alcohol abuse in three of the petitioner‟s male
relatives. He noted that those with a family history of psychiatric illness are more likely
to have a psychiatric illness.
Dr. Brown reviewed the petitioner‟s records from Pathways and noted a
longstanding issue with polysubstance abuse. He said the petitioner had a history of
regular consumption of alcohol since middle to early adolescence and consumption of
other substances throughout his life. The petitioner was admitted to Pathways after using
crack cocaine for four to six months and exhibiting paranoid delusions and
hallucinations. Dr. Brown stated the petitioner‟s psychotic symptoms indicated a
predisposition to losing touch with reality and exhibiting such symptoms when under
stress.
Dr. Brown reviewed the petitioner‟s record from the Jackson Clinic and noted a
longstanding history of progressive and continuing use of opiates or narcotics for chronic
pain dating back to approximately 1999. He said the petitioner was using narcotics for a
prolonged period for symptoms that were not clearly identified by the physician. He
stated that the records also showed that the petitioner had a recurrent history of
depressive symptoms and longstanding sleep disturbance problems for which he was
being prescribed small doses of antidepressants. The petitioner was prescribed sedatives
or benzodiazepines to help him with his sleep problems and emotional distress. Dr.
Brown said the medication was being prescribed for longer than required for the
symptoms that the petitioner was presenting at any one time without a referral to a
behavioral health specialist or consideration of another diagnosis or treatment. He stated
that the petitioner‟s symptoms and complaints were never addressed in a systematic way
but were treated more on an intermittent and episodic form.
Dr. Brown testified that in making a psychiatric diagnosis, such as cognitive
disorder not otherwise specified, he first was required to eliminate the possibility that the
disorder or symptoms were being caused by a substance. He found that the petitioner had
a significant impairment but was not able to conclude that the petitioner had a
freestanding psychiatric condition as a result of substance abuse because the petitioner‟s
symptoms were appearing concurrently with his substance abuse. He was next required
to determine whether a medical condition could be the possible cause of the disorder or
symptoms. He found that the petitioner‟s impairments were not caused by a medical
condition and, as a result, labeled the petitioner‟s impairment as “not otherwise
specified.”
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Dr. Brown found that the petitioner‟s cognitive disorder was the result of
impairments in executive functioning, which involved integrating information, making a
decision after careful consideration, making a plan, and following through on the plan.
He stated that sleep deprivation, intoxication, and emotional distress had a greater effect
on executive functioning in a vulnerable brain. A “vulnerable brain” is one that has been
damaged by head injuries, various substances, or medical conditions. Dr. Brown noted
that the petitioner had a history of head injuries and said the petitioner‟s history and test
results revealed that he had a vulnerable brain. He said the petitioner demonstrated a
defect in “neutral situations that would predispose him to having the increased risk of the
catastrophic failure under the . . . wrong conditions.” He defined “catastrophic failure” as
the “complete inability to use appropriate executive functions in making decisions and
thinking about possible consequences of weighing actions and options.” He found that
the petitioner‟s executive functions were impaired during the shootings and the time
leading up to the shootings.
Dr. Brown testified that the petitioner was acutely intoxicated at the time of the
shootings. He stated that the petitioner was arrested with an open container of alcohol,
noting that a squeeze bottle with a top on it was found in the petitioner‟s truck. Family
members observed the petitioner drinking throughout the day, mumbling to himself, and
appearing disorganized. Dr. Brown found the petitioner‟s report of the evidence to be
typical of someone who had been intoxicated. He explained that the petitioner had
“spotlight memory” in that he recalled one particular fragment in the middle of his
perceptual field but did not recall the details. The petitioner told Dr. Brown that he
turned the corner after running a stop sign and saw the back quarter of a green car in front
of him. The petitioner did not have a memory of the entire car. Dr. Brown noted that the
petitioner was unable to safely operate a motor vehicle. The petitioner ran stop signs,
was involved in a collision, and narrowly missed a second collision. Dr. Brown found
that the petitioner was drifting in and out of internal reality. The petitioner reported
having an imaginary conversation with Mrs. Jordan‟s deceased brother, whom he had
never met, while the petitioner also was deceased. Dr. Brown stated that the petitioner
was “drunk dialing,” meaning a “ceaseless attempt to get in touch with somebody who
either is clearly not there or not wanting to return the call, all the while becoming more
and more disorganized and disinhibited by the very act of calling.”
Dr. Brown testified that people who are intoxicated can perform a variety of well-
learned or over-learned tasks without difficulty and are cable of carrying on a
conversation. He said that as a person‟s tolerance of alcohol grows over time, he or she
becomes less likely to demonstrate overt slurring or motor problems. The person‟s
reaction time to reflex tasks returns to normal. Dr. Brown stated that experienced
drinkers continue to be impaired in their ability to recognize mistakes and refrain from
making them.
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Dr. Brown found that the petitioner continued to be impaired for a period of time
following his arrest and that his condition affected his behavior during that time. He also
found that the petitioner experienced a period of withdrawal. He explained that the
detoxification from alcohol and the return to a baseline function could take up to one year
or eighteen months depending on the level of damage. With regard to the petitioner‟s
condition at the time of the trial, Dr. Brown concluded, “It‟s more likely than not,
because of the absence both of narcotics after prolonged use and alcohol after prolonged
use, that he would have had impairment both in emotional regulation which typically
means an absence of feelings and a decrease of depression.”
On cross-examination, Dr. Brown acknowledged that he stated in his report that
“it‟s more likely than not that under circumstances, extended restricted confinement, loss
of excess, habitual coping patterns, including heavy polysubstance abuse as well as
ongoing stressors and chemical changes and a trial while attempting to come to some
realization what had occurred, he is unable to cope constructively.” Dr. Brown said this
statement was based upon a “more likely than not” standard and not a “reasonable degree
of medical certainty” standard. He also said this statement did not appear in the same
section of his report as his conclusions.
Dr. Brown agreed with Dr. Wilson‟s opinion that the petitioner was not able to
premeditate and suffered from anxiety and depression. Dr. Brown also agreed that he and
Dr. Wilson addressed many of the same issues regarding the petitioner‟s social history.
Dr. Brown did not agree with Dr. Wilson that the petitioner had major depressive
disorder; rather, Dr. Brown diagnosed the petitioner with depressive disorder. He
explained that because the petitioner was having symptoms of depression while using
alcohol and drugs known to produce depressive disorders, major depressive disorder was
not the correct diagnosis. He agreed that the petitioner was suffering from some type of
depression and with Dr. Wilson‟s finding of alcohol abuse. Unlike Dr. Wilson, Dr.
Brown did not make a finding of borderline personality disorder. He agreed with Dr.
Wilson that the combination of prescription drugs and alcohol could easily cause brain
damage and that based upon the petitioner‟s state of anxiety and prior drug use, the
effects of the alcohol were cumulative.
Dr. Brown noted in his report that the petitioner‟s relationship with his father was
“distant” and that his father demonstrated “recurrent disapproval” and “disappointment.”
He further stated in his report that the “combination of paternal withdrawal, disapproval,
maternal collusion resulted in a character marked by low self-esteem.” He learned of this
information through a mitigation report provided to him by post-conviction counsel and
denied that the petitioner provided him with the information. Dr. Brown did not recall
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reviewing a copy of a deposition given by the petitioner in 2008 during which he testified
to having an excellent childhood.
Dr. Brown testified that he considered the petitioner‟s statement to the police, and
the State questioned him about the details that the petitioner provided in the statement.
He acknowledged that Investigator Miller said the petitioner was not intoxicated at the
time of the interview and that the petitioner stated on the waiver of rights form that he
was not intoxicated. Dr. Brown stated that police officers do not have a consistent way of
establishing intoxication and that there are a number of factors that lead to both
overestimating and underestimating intoxication.
Dr. Brown said that the petitioner was contemplating suicide on the morning of the
shootings and understood the consequences of killing himself. He also stated there was
no reason that the petitioner was unable to understand that he could use the guns to hurt
Mrs. Jordan. Dr. Brown did not know whether the petitioner‟s statement was an accurate
representation of what he was thinking up to and at the time of the shootings. He
acknowledged that the petitioner was thinking about shooting Mrs. Jordan when he
entered the TDOT office with two guns. Dr. Brown stated that the note written by the
petitioner prior to the shootings did not significantly change his opinion. He said the note
could be interpreted as a suicide note or a note about “something that [the petitioner had]
accomplished” after the fact.
Dr. Brown acknowledged that when the petitioner arrived at the TDOT facility, he
was going to enter the office and shoot Mrs. Jordan and that there was no reason to
believe that the petitioner did not have the same thought process while at his home. Dr.
Brown explained that “people can have plans or desires or intend to do things but not
with the requisite level or forethought or ability to consider their opinions.” He
expressed concern about the use of the word “„intention‟ to distinguish between what [the
petitioner] had planned to do versus whether he could form the intention of doing that by
using his own judgment and considered premeditation.” He acknowledged that the
petitioner was able to control his actions about shooting himself while thinking about
shooting Mrs. Jordan first.
Dr. Brown testified that most of a person‟s actions and thoughts do not involve an
executive function and premeditation because the person has learned to complete these
actions and thoughts automatically. He said this also applies to the use of firearms or any
other activities with which the person is familiar. He also said there was never a period
prior to the shootings where the petitioner was not under the influence of alcohol or other
substances, emotional distress, and his other longstanding issues so that he could
“rehearse and plan in a careful and methodical way.” Dr. Brown stated that he based the
estimate of the petitioner‟s blood alcohol level on Dr. Lipman‟s report. He also stated
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that, based upon the history he obtained, the petitioner “clearly” had been drinking
alcohol for some period of time before he left his home to go to the TDOT facility. He
stated the petitioner told Dr. Winston and Investigator Miller that he was not intoxicated
and told Investigator Miller that he had not taken his medication for two or three days.
Dr. Brown acknowledged that the petitioner wrote a note in advance of the
shootings and anticipated the consequences, such as never seeing his children again. He
further acknowledged that when the petitioner wrote, “she got what she deserved,” he
was able to associate negative connotations with Mrs. Jordan‟s behavior and that his
retribution was shooting her. In response to questioning by the post-conviction court, Dr.
Brown agreed that the petitioner‟s actions in writing the note, loading the guns, going to
Mrs. Jordan‟s workplace, and shooting her were more than just “automatic” reflexes. He
said people can commit crimes of passion.
Dr. Brown acknowledged that the petitioner determined that he was going to shoot
his wife and that he needed a loaded gun. The petitioner called Mrs. Jordan‟s place of
employment, and Dr. Brown stated that it could be assumed that the petitioner did so to
ensure that Mrs. Jordan was there. While driving to the TDOT facility, the petitioner ran
a stop sign and failed to remain at the scene. Dr. Brown acknowledged that it could be
assumed that the petitioner knew that the police would arrive at the scene of the accident
if he did not flee. Mrs. Jordan‟s vehicle was not in the parking lot of the TDOT facility,
and the petitioner hid his guns while entering the building. Dr. Brown stated that the
petitioner was aware that people would see the guns if he displayed them and possibly
believed that people would try to stop him if they saw the guns. The petitioner passed
three people while walking to the building and did not shoot them. The petitioner knew
where Mrs. Jordan would be, shot her in the leg to get her attention, and then shot her two
more times. When he left the building, the petitioner saw the man whose car he had hit
and told him to leave. Dr. Brown acknowledged that the petitioner went through the
thought process of deciding to warn the man. He said the petitioner thought if the man
heeded the warning, he would not shoot him, but if the man did not do so, he would shoot
him. He also said that when the man did not heed the warning, the petitioner walked
back to his car and retrieved a SKS rifle with the purpose of carrying out his warning.
Dr. Brown acknowledged that the petitioner made the conscious decision to shoot the
man in spite of the man‟s pleas for his life. The petitioner drove away from the scene
smiling, and law enforcement officers began their pursuit. The petitioner was able to
respond to the officers‟ movements and control his vehicle in response to their
movements. Officers eventually were able to stop the petitioner and ordered him out of
his vehicle. Dr. Brown acknowledged that the petitioner went through the mental process
of choosing whether to come out shooting and was able to conform his actions to the
officers‟ demands. He also acknowledged that the petitioner understood that he would be
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shot if he did not obey the officers. The petitioner recognized Trooper Briley and told
him he had shot Mrs. Jordan for “revenge.”
On redirect examination, Dr. Brown testified that people who are intoxicated
commonly lie about it or otherwise minimize their usage. He said that intoxicated people
are not good judges of whether they are intoxicated.
Dr. Brown defined a “fixed action pattern” as “any learned pattern of behavior that
involves a sequence of things that a person has learned to coordinate over time.” He
stated that a person can learn motor patterns over the course of his or her life that involve
a conscious effort while being learned but then become an automatic procedure once they
are learned. He also stated that there are automatic fixed action patterns that do not
require reflection.
In response to questioning by the post-conviction court, Dr. Brown testified that
the petitioner‟s actions were closer to fixed action patterns. He said fixed action patterns
are preserved when a person is intoxicated and while the executive function of the brain
is turned off. They are overlearned social behaviors and simply involve reactions. Dr.
Brown stated that the petitioner had experience with guns and target shooting games and
that his use of the guns was a “default position.” He was aware that the petitioner
reportedly carried a gun on his back as a normal manner of practice.
The petitioner presented the deposition testimony of Dr. Kenneth Ferslew, a
professor in the biomedical science department at the James H. Quillen College of
Medicine and a toxicologist in the school‟s forensic department. Dr. Ferslew testified
that he was contacted by the State in 2012 in connection with the petitioner‟s post-
conviction case and was asked to review the toxicology reports and offer an opinion on
impairment. He reviewed the toxicology reports; a report from post-conviction counsel;
the reports of Dr. Spica, Dr. Lipman, Dr. Smith, and Dr. Brown; the appellate opinions
from the petitioner‟s direct appeal; the petitioner‟s amended post-conviction petition;
police statements and trial testimony from various witnesses; the testimony of Dr. Wilson
and Investigator Miller at trial; and an interview of TBI Special Agent Hopkins
conducted by post-conviction counsel.
Dr. Ferslew testified that he informed the State that he did not wish to form an
opinion in the case due to reservations regarding the sampling and the specimen. He
noted that because of the lack of sodium fluoride in the urine sample, the potential for
fermentation existed. He stated that in order to use the urine alcohol level to extrapolate
to a blood alcohol level, the urine sample must have been sterile and collected properly
without any post-collection fermentation or production of alcohol. Dr. Ferslew stated
that there was no way to establish that sodium fluoride had been added to the petitioner‟s
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urine sample. Because of the “time lag” between the collection of the sample and the
analysis and the potential for bacterial contamination, Dr. Ferslew expressed concerns
regarding the legitimacy of the urine sample to the State. He informed that State that due
to these issues, he did not wish to be involved.
Dr. Ferslew testified that he did not disagree with some of Dr. Lipman‟s
calculations “[a]ssuming no contamination of the urine sample, assuming that this was a
valid specimen and proper extrapolation could be made to the blood.” He did not know
whether he could take issue with Dr. Lipman‟s calculations in the toxicology portion of
his report. He stated that assuming that the urine was a valid sample, the urine alcohol
concentration was .17 gram percent, and the alcohol had completely distributed to body
water, the petitioner‟s blood alcohol concentration at some point was .1307 gram percent.
He noted that 3.95 hours had elapsed between the crimes and the collection of the
petitioner‟s urine. He stated that based upon the average standard elimination rate of .017
gram percent per hour, the petitioner would have eliminated up to .06715 gram percent in
3.95 hours. Taking the blood alcohol extrapolated from the urine and adding the amount
eliminated over time, Dr. Ferslew stated that the petitioner‟s maximum blood alcohol
level at the time of the shootings, based on various assumptions, would have been .19785
gram percent.
Dr. Ferslew noted that 10.2 hours had elapsed between the shootings and the
petitioner‟s blood draw. He said that based on an average elimination rate of .017 gram
percent per hour, the petitioner could have eliminated .1734 gram percent of alcohol from
his blood by the time a blood sample was taken. Dr. Ferslew stated this calculation
explained why the petitioner‟s blood sample was negative for alcohol. He also stated that
while his estimation of a blood alcohol level of .19785 gram percent at the time of the
shootings and his estimation of an elimination of .1734 gram percent of alcohol from the
blood at the time of the taking of the blood sample did not match, “this is not CSI. All
that stuff you watch on TV, when they say they can do something exact to six decimal
places, they‟re out of their minds.”
Dr. Ferslew testified that based upon the petitioner‟s body weight, if he drank five
shots of vodka, his estimated blood alcohol level would have been .11 gram percent. Dr.
Ferslew estimated the petitioner‟s blood alcohol to be between .13 and .197 gram percent
at the time of the shootings. He stated that a person with that blood alcohol level would
exhibit loss of inhibition, expansion of personality, psychomotor impairment, and ataxia,
a certain degree of incoordination. The degree of tolerance and experience with alcohol
could increase or decrease the effects depending upon the person‟s history and degree of
impairment. Dr. Ferslew said the combination of alcohol and Xanax impairs motor
function and cognitive skills.
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The petitioner also presented the deposition testimony of Dr. Edward J. Bronson,
whom the post-conviction court later accepted as an expert in the fields of venue and jury
selection. Dr. Bronson testified that in determining whether a request for a change of
venue is warranted, the attorney first must examine the pretrial publicity and gather as
much information as possible about prejudice in the community. He stated that the use of
surveys to gather information was standard practice and that when conducting a survey,
the attorney must examine case recognition, prejudgment of guilt and the penalty, and
knowledge of harmful evidence. He said that while an expert jury consultant need not be
retained in every case, most attorneys do not seek a change of venue and that a consultant
is necessary due to his or her specialized training.
Dr. Bronson testified that in preparing to seek a change of venue, trial counsel
only collected newspaper articles. He said trial counsel should have retained an expert
consultant or taken more actions to “assure themselves that a change of venue is ill-
advised.” He noted that the shootings were a major incident in a small community and
received publicity around the country. He stated that trial counsel did not conduct a
survey of the community, perform a content analysis of the media, or consult an expert.
Dr. Bronson stated that trial counsel filed a motion for a change of venue but later
withdrew the motion. He noted that trial counsel‟s decision was based on the fact that the
petitioner‟s father had been a longtime Little League coach to many children in the
community. He stated that trial counsel should have called the petitioner‟s father as a
witness. He said a juror provided a written statement after the trial indicating that the
deciding factor in her decision to vote for the death penalty was that the petitioner‟s
father did not testify. Dr. Bronson maintained that once trial counsel learned that the
petitioner‟s father intended to attend the trial and, therefore, could not testify based upon
the trial court‟s order, trial counsel should have renewed the motion for a change of
venue.
Dr. Bronson identified fifty-eight newspaper articles about the petitioner‟s case
leading up to the trial, which was a large number in a relatively small community.
Thirty or thirty-one newspaper articles were published during and after the trial. Dr.
Bronson said many of the articles did not focus on the facts of the case but on collateral
issues, such as spousal abuse and guns. Twelve articles were on the front page of the
newspaper, and Dr. Bronson stated that as a result, the articles were more likely to have
been read. He noted that sixty-five photographs, which took up more space and got the
readers‟ attention, accompanied the articles and that more than forty “side bars,” or short
articles, accompanied the primary articles. He did not review the television, radio, or
online coverage. He stated that while the amount of publicity was great, it was not “a
super amount as you would get in some of the really famous cases.” He did not see any
inadmissible or erroneous coverage.
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Dr. Bronson testified that, in determining whether a change of venue is warranted,
the extent to which the media coverage portrayed the defendant as guilty must be
examined. He said the media generally does not publish the defense‟s argument
regarding mental state or other issues. He stated that potential jurors who read articles
about a case may develop a “story model” of what they believe occurred. As a result, the
jurors accept evidence during the trial that is consistent with their “story model” and
reject evidence that is inconsistent with the “story model.”
Dr. Bronson said the gravity of the offense is a major factor that must be examined
in determining whether to see a change of venue. He identified several references in the
newspapers articles regarding the death penalty. He also examined the victims‟ portrayal
in the media and stated that the victims were “entirely blameless” and were at a location
in which many people in the county could identify and see themselves being in a similar
position. Dr. Bronson stated that the petitioner was portrayed in the media as a “mean
person with a domestic violence history, almost maniacal behavior at the crime scene,
including an escape attempt.” He explained that trial counsel were required to attempt to
humanize the petitioner and make every possible argument in an attempt to save his life.
Dr. Bronson stated that based upon his review of interviews of various jurors, trial
counsel failed to do so. Some of the jurors stated that once they knew he was guilty of
first degree murder, they imposed the death penalty.
Dr. Bronson testified that during voir dire, “conclusionary” questions were asked
in which the answer was simply “yes” or “no.” He stated that a question to a potential
juror regarding whether he or she will follow the law is essentially a cue to respond
“yes.” He also stated that trial counsel never asked questions during voir dire that would
have provided them with useful information. Dr. Bronson also faulted trial counsel for
failing to exercise all of their preemptory challenges and said trial counsel had sufficient
information to excuse some of the jurors. He said that as a result, “fairly automatic death
penalty jurors” remained on the jury. Dr. Bronson did not see any attempt by trial
counsel to change the trial court‟s practice of conducting voir dire. He stated that trial
counsel could have asked the appropriate questions themselves during voir dire or in the
jury questionnaire. He noted that the jury questionnaire only included two questions
addressing the death penalty and did not address whether intoxication could result in a
sentence of life.
Dr. Bronson stated that a number of potential jurors knew witnesses or were
related to someone on the police department. He also stated that in a smaller community,
a sentence of life or life without parole would be more explosive and that jurors would
feel pressured to explain such a verdict.
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On cross-examination, Dr. Bronson stated that the existence of a confession would
weigh in favor of a change of venue. He explained that if the potential jurors have
learned from the media that a defendant confessed, the burden of proof shifts to the
defendant to establish that he is not guilty. He said the confession should not be a topic
of voir dire but should be addressed in the community survey. Dr. Bronson was unaware
of any Tennessee case mandating a jury survey. He generally agreed that the State‟s
evidence of guilt was overwhelming and that the penalty phase was “the only issue in this
case.”
Dr. Bronson did not speak to the petitioner, trial counsel, or Ms. Shettles in
reaching his opinion. He did not believe that he was aware that trial counsel submitted a
jury questionnaire to the trial court but that the trial court chose to use its own jury
questionnaire. He did not review the jury questionnaire submitted by trial counsel and
the State but only reviewed the questionnaire that the trial court submitted to the jury.
State’s Proof
The State presented the testimony of Dr. Glen Farr, a licensed pharmacist and a
professor of clinical pharmacy and associate dean at the University of Tennessee College
of Pharmacy, who was accepted by the post-conviction court as an expert in
pharmacology and toxicology. Dr. Farr testified that he was asked to examine the effects
of alcohol and Xanax and the differences between urine levels and blood levels. He
reviewed Dr. Lipman‟s report and a case summary provided to him by the State.
Dr. Farr stated that when alcohol is consumed, it goes through an absorption
phase, which generally takes thirty to sixty minutes depending upon the amount of food
that the person has eaten and the gastrointestinal motility. Once the alcohol starts to be
absorbed, the body treats it as a foreign substance and immediately attempts to get rid of
it. The metabolic process where the liver breaks down alcohol into a product begins.
The alcohol is excreted in the urine, and the body gets rid of it. Alcohol also is excreted
from the lungs, and a breathalyzer may show the presence of alcohol and an estimate of
blood alcohol level.
Dr. Farr said the urine alcohol level is a qualitative measure and not a quantitative
measure of the alcohol level. He explained that while some estimations can be made
regarding the blood alcohol, the urine alcohol level is “not a measure of the amount of
alcohol in the blood at any point.” He stated that the amount of alcohol in the urine is
proportional depending upon several factors, including the amount of water and other
fluids in the urine, whether the bladder has been emptied prior to the sample, and when it
was emptied. He said that as a result, “a one-time calculation based on a one-time urine
reading is, at best, a very, very rough prediction of what the blood alcohol would be.” He
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also said that while multiple urine samples would provide a more accurate estimate,
“[Y]ou still can‟t be totally accurate. There‟s no way to predict exactly how much was in
the blood at that time.” Dr. Farr noted that Clark‟s Analytical Forensic Toxicology
recommends that the bladder be voided, an hour pass to allow for the urine to build back
up in the body, and then the urine be tested at least one more time. He stated that this
method is not “totally reliable” and is less reliable than blood testing.
Dr. Farr testified that the testing of the urine involved a screen to determine
whether alcohol or drugs were present in the person‟s body. The testing did not indicate
when the substance was taken or its effect on the person‟s body. Dr. Farr said that
predictions could be made regarding how much of the substance would have been in the
blood or its effect but that the predictions could not be made with scientific certainty. He
agreed with TBI Special Agent Harrison‟s testimony at trial that the results of the urine
analysis indicated that the petitioner had consumed alcohol in the past but that no further
conclusions could be reached. Based upon the results of the analysis of the petitioner‟s
urine sample, Dr. Farr concluded that the petitioner had “consumed alcohol at some point
in time. I can‟t say when, I can‟t say how much, and I can‟t say what [e]ffect, if any, it
had at the time of the incident, and that‟s really about all you can say.”
Dr. Farr testified that Xanax is a calming agent that is metabolized in the liver at a
much slower rate than alcohol or many other drugs. The half-life of Xanax is sixteen to
seventeen hours with an average half-life of eleven hours. Dr. Farr said it takes an
estimated three to five half-lives for the effects to no longer be noticeable or reportable.
He also said that over a period of roughly eighteen hours, there should be some detectable
level of Xanax in the blood, depending upon the sensitivity of the testing. He stated that
after eighteen to thirty-six hours, Xanax probably would not be detectable in the blood.
In the petitioner‟s case, Xanax was reported in the urine at 3:35 p.m. but was not reported
in the blood analysis at 9:50 p.m. Dr. Farr said that based upon the analysis, the
petitioner had taken a Xanax tablet at some point where it was still present in his urine
when he provided the sample. He also said the Xanax would have excreted at mid-
afternoon and was not at a detectable level at 9:50 p.m. He concluded that the level of
Xanax in the petitioner‟s system at the time of the shootings “would have been very low
or subtherapeutic and would not have been a factor in this matter.”
In response to questioning by the post-conviction court, Dr. Farr testified that the
ratio used by Dr. Lipman was “the best that we can do scientifically” and was only an
estimate. Dr. Farr stated that the problems with the estimation included there was only
one urine collection and the volume of the urine, the length of time the urine had been in
the petitioner‟s system, and the petitioner‟s rate of metabolism were unknown. He also
stated that a person‟s genetic makeup is likely more important than the rate of
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metabolism and that the petitioner‟s genetic makeup was not known. He said Dr.
Lipman‟s method of “back calculations” was
the best that we can do with the science that we have. But then, once you
get that level, then you bring in the concept of tolerance which we don‟t
know, and different people respond different at different levels. So, I‟m
questioning the ability to make those back calculations. In fact, that‟s about
all we can do in these cases.
On cross-examination, Dr. Farr testified that he did not recall any statements from
witnesses that the petitioner smelled of alcohol on the morning of January 11. He said
that while he may not have reviewed the actual toxicology report from the TBI, the
information in the report was included in either a summary provided to him by the State
or in Dr. Lipman‟s report. Dr. Farr did not review the TBI protocols regarding levels of
calibrations for the panels of drugs tested in January 2005 prior to rendering his report
but reviewed Dr. Lipman‟s report, which referenced the protocols. Dr. Farr reviewed the
petitioner‟s medical and pharmaceutical records to the extent that they were included in
Dr. Lipman‟s report.
Dr. Farr stated that he based his calculations on a urine collection time of 3:35
p.m. on January 11, 2005. He also considered the time of the offenses as occurring
between 9:30 a.m. and 11:30 a.m. He noted that Dr. Lipman‟s report stated that the
petitioner‟s urine sample was collected between four hours and twenty-four minutes and
six hours and nine minutes after the offenses. Dr. Farr subsequently learned that multiple
witnesses testified that the shootings occurred at approximately 11:30 a.m. He
acknowledged that based on the telephone records from the petitioner‟s home which
provided that the last call occurred at 11:00 a.m. and lasted four minutes, the shootings
did not occur before 11:04 a.m.
Dr. Farr said those arrested for driving under the influence often report their intake
of alcohol inaccurately or incorrectly assess their own state of intoxication. With regard
to Investigator Miller‟s testimony that the petitioner did not appear to be under the
influence of drugs or alcohol, Dr. Farr stated that “any subjective analysis is just that, it‟s
very subjective.”
Dr. Farr agreed with Dr. Lipman that the petitioner was in the post-absorptive
phase of ethanol metabolism, based on the information that Dr. Farr had. Dr. Lipman‟s
report also detailed the petitioner‟s long history of taking Xanax and using alcohol, but
Dr. Farr said that it is difficult to determine whether a person is taking medication as
prescribed. Dr. Farr reviewed information that the pill bottle of Xanax collected by the
Jackson Police Department was missing a quantity of pills and addressed this information
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in his report. He recalled reviewing information regarding the petitioner‟s obtaining
custody of his daughters, his marital problems leading up to the shootings, and his
employment history but said the information did not affect his opinion “on the
interpretation of the data.” He also recalled reviewing information that the petitioner had
been prescribed hydrocodone, was sleep deprived, and had a prior history of crack
cocaine use that resulted in hallucinations.
On redirect examination, Dr. Farr testified that he was retained by the State to
analyze the accuracy of the urine analysis. He said the petitioner‟s family history was
relevant to estimate some degree of tolerance, but “all the other stuff would be irrelevant
to [his] opinion.” He stated that while the urine analysis to calculate blood alcohol was
the “best we can do” in this case, it was an estimation based on several factors and was
not the desired method to determine blood alcohol levels. He also stated that the urine
analysis based upon a single sample only established that the petitioner consumed
alcohol. The results did not establish the amount of alcohol consumed or the period of
time during which it was consumed.
Dr. Farr stated in his report that, although Dr. Lipman stated that the TBI Crime
Laboratory was capable of measuring only very large quantities of alprazolam, since their
calibration standards were higher than the concentration detected in the petitioner‟s blood
and urine, Dr. Farr opined that even with a high calibration standard, “[I]f there was a
clinically significant level of alprazolam in the blood in the morning of the offenses, there
would have been a detectable level of alprazolam in the blood at 9:50 p.m.” Dr. Farr
noted that the TBI laboratory report did not quantify the amount of alprazolam in the
petitioner‟s urine. He said the report stating that the petitioner‟s urine was positive for
alprazolam was not consistent with the petitioner‟s claim that he had not taken his
medication for two or three days. He explained that due to the long half-life of
alprazolam, the petitioner would have had to have taken his medication within one to two
days for it to have shown up in the urine analysis. He stated that the fact that the blood
and urine samples were destroyed did not affect his calculation.
Dr. Daniel Martell, a psychologist, was accepted by the post-conviction court as
an expert in forensic psychology. He was retained by the State to address the petitioner‟s
mental state at the time of the shootings. He evaluated the petitioner for approximately
five hours at the prison where the petitioner was housed. He administered a battery of
neuropsychological tests and interviewed the petitioner. He reviewed the opinions of
Drs. Lipman, Smith, Spica, Brown, and Matthews; the trial transcript; eyewitness
statements; and relevant Tennessee law. He tested the areas of deficiency identified by
Dr. Spica to determine whether the deficits were reproducible and whether they became
better or worse over time.
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Dr. Martell testified that he found the petitioner to be polite and cooperative. The
petitioner‟s speech was normal, and his thoughts were logical. He was not psychotic in
that he was in touch with reality and knew who he was, where he was, and the purpose of
the meeting. The petitioner stated that he was stressed in part because the prison had
changed the staff to twelve-hour shifts, resulting in changes to the petitioner‟s daily
routine. The petitioner also described issues with short-term memory due to stress about
his case.
Dr. Martell administered a battery of tests to determine whether the petitioner was
malingering and concluded that the petitioner was trying hard and being honest and that
the results were valid and interpretable. Dr. Martell stated that based on the results of
psychodiagnostic testing, he found no evidence of an Axis I psychiatric diagnosis. He
found evidence of an Axis II diagnosis due to the petitioner‟s personality style. He
explained that those who have the petitioner‟s personality “tend to be quiet and
withdrawn but can be prone to sudden outbursts that may come as a surprise to others.
They are typically passive/aggressive in their relationships with other people. They are
very sensitive to rejection and tend to get hostile when they are criticized.” Dr. Martell
believed that the petitioner‟s personality style was reflected in what transpired during the
offenses.
Dr. Martell testified that the petitioner‟s test scores on neuropsychological testing
indicated that the petitioner‟s brain was not functioning normally and that his brain
functioning might have affected his behavior. Dr. Martell found that the petitioner had a
“normal IQ, normal memory functioning, intact problem solving and good impulse
control.” He noted that while the petitioner‟s motor skills were generally within normal
limits, he demonstrated mild impairment in both hands in placing steel pegs into a
pegboard. Dr. Martell found a “mixed pattern” in testing the petitioner‟s executive
functioning. The petitioner performed some tests normally or well and demonstrated
mild or moderate impairment in other areas. In the tests of speed of processing
information, the petitioner performed within the low average range and demonstrated
mild impairment on another test. Dr. Martell noted that these results were often seen in
patients with depression and that the petitioner had a history of depression. The results of
some of the petitioner‟s tests on divided attention, such as multitasking, problem solving,
impulse control, and the ability to affectively switch between competing stimuli, fell
within the normal range. The petitioner had a moderate level of impairment in a test of
verbal fluency.
Dr. Martell testified that the petitioner had impairments in fine motor dexterity,
impairments in some tests of speed of information processing but not others, and
moderate impairment in verbal fluency. He stated that Dr. Spica also found all three
deficits but that Dr. Spica “over-interpreted his results.” Dr. Martell explained that the
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sixteenth percentile, or one standard deviation below the mean, is considered normal or
average. He said Dr. Spica repeatedly interpreted scores that fell within the twenty-fifth
or thirty-seventh percentile as indicative of cognitive impairment when such results fell
within normal limits. Dr. Spica also found that the petitioner‟s scores on the pegboard
test fell within the first percentile when they actually fell within the fourteenth percentile,
in the mild range of impairment.
Dr. Martell concluded that the petitioner retained the capacity for reflection and
judgment at the time of the shootings. He reached his conclusion by examining the
petitioner‟s behavior before, during, and after the shootings. Dr. Martell examined
evidence that the petitioner was engaging in periods where he would stop and reflect on
the situation and then use judgment to determine his course of action. Dr. Martell found
evidence of planning and the petitioner‟s ability to reflect and alter his actions. He based
this conclusion on the petitioner‟s writings and note that he left at his home, his
threatening voicemail messages, his selection and loading of various firearms, his
decision to shoot Mrs. Jordan in the leg so that she would look at him, his decision to not
shoot Mrs. Jordan in the face, his decision to shoot some people but not others, his
concealment of his firearm while entering the crow‟s nest, his statement of intent to
return home and commit suicide, his statement to Sergeant Briley regarding why he shot
Mrs. Jordan, and his statement to police regarding remorse and questions about possible
punishment.
Dr. Martell concluded that the petitioner‟s behavior indicated that his capacity to
exercise reflection and judgment was intact and that his capacity to conform his conduct
to the requirements of the law was not substantially impaired. Dr. Martell stated that the
petitioner was not suffering from an extreme mental or emotional disturbance and that
while he was angry at Mrs. Jordan, he was not extremely intoxicated, cognitively
impaired, or psychiatrically ill. He considered the evidence of intoxication and reviewed
Dr. Lipman‟s report. He concluded that any intoxication did not affect the petitioner‟s
ability to premeditate. He explained, “It‟s clear that despite whatever intoxication he
might have been experiencing, whatever mental illness, whatever cognitive impairment,
the combination of all those things, he was still able to use reflection and judgment as he
went through the commission of the offense.”
In response to questioning by the post-conviction court, Dr. Martell testified that
he believed the petitioner ran the stop sign “as a matter of haste” and hit Mr. Gordon‟s
car as a result. He stated that the petitioner‟s striking Mr. Gordon‟s car was an accident
but that the petitioner made the decision to flee the scene.
On cross-examination, Dr. Martell testified that he and Dr. Matthews utilized the
“forensic behavioral analysis,” which provided that the petitioner‟s capacity was best
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assessed through an analysis of his actual behavior at the time of the offenses. The
analysis involved a detailed reconstruction of the petitioner‟s behavior before, during,
and after the offenses. Dr. Martell believed the method was standard forensic practice.
Dr. Martell believed that in conducting tests, the standard practice is to compare
the patient with others of the same age, education, and gender. He was critical of Dr.
Spica‟s failure to utilize published norms. Dr. Martell did not find impairments in the
petitioner‟s memory but found impairments in motor skills and executive functioning.
He did not question the validity of Dr. Spica‟s neuropsychological data. Dr. Martell
agreed that the petitioner had mild to moderate neuropsychological deficits. He said he
did not include a psychological or psychiatric diagnosis in his report because he did not
conclude that one existed. He did not review the petitioner‟s medical records, pharmacy
records, or jail records but noted that they were cited in the reports of other experts,
which he had reviewed.
The petitioner presented as a rebuttal witnesses Dr. Gordon Logan, whom the
post-conviction court accepted as an expert in experimental psychology. Dr. Logan
testified that he was asked to review the reports of Dr. Martell and Dr. Matthews and the
transcript of Dr. Matthews‟ testimony at trial to determine whether any scientific basis
existed for their conclusions. Dr. Logan said Dr. Martell and Dr. Matthews interpreted
the facts of the case and drew inferences about the petitioner‟s intentions at the time he
committed the offenses. Dr. Logan stated that based on his experience, “[T]here isn‟t a
scientific way of determining whether a person has a specific intention.”
Dr. Logan testified that inferring a particular mental state by observing a person‟s
behavior was not possible. Rather, sophisticated experiments were required. Dr. Logan
explained that people often attribute beliefs, desires, and rationality to things that do not
have them. He stated, “So the fact that we can see intentions as people is important to
our social interaction, to our social institutions and the world, but it‟s not science, . . . it‟s
the beliefs that people carry in their head.”
Dr. Logan stated that Dr. Matthews and Dr. Martell were not asked to “do
science” but to give an opinion about a person‟s behavior. Dr. Logan said some things
could be ruled out solely by observing a person‟s behavior, but it was difficult to
eliminate the necessary alternatives. He saw a chain of inferences built around the event.
He stated that the petitioner could have been loading the guns for purposes other than
shooting his wife, but Dr. Matthews and Dr. Martell failed to consider alternative
hypotheses.
In response to questioning by the post-conviction court about the petitioner‟s note
which stated, “She‟s going to get what she deserves,” Dr. Logan testified that the note
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could have meant many different things. He said the petitioner could have wanted to go
to Mrs. Jordan‟s office and commit suicide in front of her. He explained, “Science isn‟t
about proving one thing, it‟s proving that one thing is more likely to be the explanation
than another. So there should have been perhaps consideration of alternative
possibilities.”
On cross-examination, Dr. Logan acknowledged that he was not qualified as an
expert in the field of forensic psychology. He said that while jurors can infer intentions
based on actions, “there is no scientific basis for inferring intentions from specific
behaviors.” He explained that while some mental states and intoxication can be inferred
through actions, intent is a “special mental state[].” He testified that even if a person tells
someone that he is going to shoot the person in the leg and then does so, a scientist
cannot reach any conclusions about the shooter‟s mental state. He said that while a lay
person can reach a conclusion, “people think about things that science hasn‟t managed to
think about yet.”
Following the hearing, the post-conviction court entered an order denying the
petitioner‟s post-conviction petition. This appeal followed.
ANALYSIS
On appeal, the petitioner contends that (1) he received ineffective assistance of
counsel during both the guilt and penalty phases of the trial; (2) the venue of the trial in
Madison County violated his rights to a fair trial and due process; (3) the State committed
prosecutorial misconduct by suppressing evidence; (4) the selection and impaneling of
the grand jury was unconstitutional; (5) the post-conviction court erred in denying his
motion to continue the evidentiary hearing; (6) the post-conviction court erred in
allowing trial counsel to assist the State during the evidentiary hearing; (7) the post-
conviction court erred in excluding an expert witness; (8) Tennessee‟s death penalty
scheme is unconstitutional; (9) his death sentence is disproportionate; and (10)
cumulative error warrants a new trial.
Tennessee‟s Post-Conviction Procedure Act affords post-conviction relief to a
petitioner who is “in custody” and whose “conviction or sentence is void or voidable
because of the abridgement of any right guaranteed by the Constitution of Tennessee or
the Constitution of the United States.” Tenn. Code Ann. §§ 40-30-102, -103. The
petitioner seeking relief has “the burden of proving the allegations of fact by clear and
convincing evidence.” Tenn. Code Ann. § 40-30-110(f); see Nesbit v. State, 452 S.W.3d
779, 786 (Tenn. 2014). We review a post-conviction court‟s “conclusions of law,
decisions involving mixed questions of law and fact, and its application of law to its
factual findings de novo without a presumption of correctness.” Kendrick v. State, 454
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S.W.3d 450, 457 (Tenn. 2015). We are bound by the post-conviction court‟s findings of
fact unless the evidence preponderates against the findings, and we may not reweigh or
reevaluate the evidence or substitute our own inferences for those drawn by the post-
conviction court. Id. Generally, we must defer to a post-conviction court‟s findings
regarding “witness credibility, the weight and value of witness testimony, and the
resolution of factual issues presented by the evidence.” Id.
I. Ineffective Assistance of Counsel
The petitioner asserts that trial counsel were ineffective during both the guilt and
penalty phases of the trial. In pertinent part, the Sixth Amendment provides, “In all
criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of
Counsel for his defense.” U.S. Const. amend. VI. This right to counsel is “„so
fundamental and essential to a fair trial, and so, to due process of law, that it is made
obligatory upon the states by the Fourteenth Amendment.‟” See Gideon v. Wainwright,
372 U.S. 335, 340 (1963) (quoting Betts v. Brady, 316 U.S. 455, 465 (1942)). Inherent in
the right to counsel is the right to the effective assistance of counsel. Cuyler v. Sullivan,
446 U.S. 335, 344 (1980). “The benchmark for judging any claim of ineffectiveness
must be whether counsel‟s conduct so undermined the proper functioning of the
adversarial process that the trial cannot be relied on as having produced a just result.”
Strickland v. Washington, 466 U.S. 668, 686 (1984).
The United States Supreme Court adopted a two-prong test to evaluate a claim of
ineffectiveness:
First, the defendant must show that counsel‟s performance was deficient.
This requires showing that counsel made errors so serious that counsel was
not functioning as the “counsel” guaranteed the defendant by the Sixth
Amendment. Second, the defendant must show that the deficient
performance prejudiced the defense. This requires showing that counsel‟s
errors were so serious as to deprive the defendant of a fair trial, a trial
whose result is reliable.
Id. at 687. The performance prong of the Strickland test requires a showing that
counsel‟s representation fell below an objective standard of reasonableness, or “outside
the wide range of professionally competent assistance.” Id. at 690. “Judicial scrutiny of
performance is highly deferential, and „[a] fair assessment of attorney performance
requires that every effort be made to eliminate the distorting effects of hindsight, to
reconstruct the circumstances of counsel‟s challenged conduct, and to evaluate the
conduct from counsel‟s perspective at the time.‟” Combs v. Coyle, 205 F.3d 269, 278
(6th Cir. 2000) (quoting Strickland, 466 U.S. at 689).
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In reviewing claims of ineffective assistance of counsel, the court “must indulge a
strong presumption that counsel‟s conduct falls within the wide range of reasonable
professional assistance; that is, the defendant must overcome the presumption that, under
the circumstances, the challenged action „might be considered sound trial strategy.‟”
Strickland, 466 U.S. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)).
Additionally, courts should defer to trial strategy or tactical choices if they are informed
ones based upon adequate preparation. Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982).
Finally, we note that criminal defendants are “not entitled to perfect representation, only
constitutionally adequate representation.” Denton v. State, 945 S.W.2d 793, 796 (Tenn.
Crim. App. 1996). In other words, “in considering claims of ineffective assistance of
counsel, „[w]e address not what is prudent or appropriate, but only what is
constitutionally compelled.‟” Burger v. Kemp, 483 U.S. 776, 794 (1987) (quoting United
States v. Cronic, 466 U.S. 648, 655 n.38 (1984)). Notwithstanding, we recognize that
“[o]ur duty to search for constitutional error with painstaking care is never more exacting
than it is in a capital case.” Id. at 785.
If the petitioner shows that counsel‟s representation fell below a reasonable
standard, then he must satisfy the prejudice prong of the Strickland test by demonstrating
“there is a reasonable probability that, but for counsel‟s unprofessional errors, the result
of the proceeding would have been different.” 466 U.S at 694. “A reasonable probability
is a probability sufficient to undermine confidence in the outcome.” Id. The reasonable
probability standard “requires a „substantial,‟ not just „conceivable,‟ likelihood of a
different result.” Cullen v. Pinholster, 563 U.S. 170, 189 (2011). In evaluating whether a
petitioner satisfied the prejudice prong, a court must ask “whether counsel‟s deficient
performance renders the result of the trial unreliable or the proceeding fundamentally
unfair.” Lockhart v. Fretwell, 506 U.S. 364, 372 (1993) (citing Strickland, 466 U.S. at
687). In other words, “a petitioner must establish that the deficiency of counsel was of
such a degree that it deprived the [petitioner] of a fair trial and called into question the
reliability of the outcome.” Nichols v. State, 90 S.W.3d 576, 587 (Tenn. 2002). That is,
“the evidence stemming from the failure to prepare a sound defense or [to] present
witnesses must be significant, but it does not necessarily follow that the trial would have
otherwise resulted in an acquittal.” State v. Zimmerman, 823 S.W.2d 220, 224 (Tenn.
Crim. App. 1991). “A reasonable probability of being found guilty of a lesser charge, or
a shorter sentence, satisfies the second prong in Strickland.” Id. at 225. When
challenging a death sentence, the petitioner must show that “„there is a reasonable
probability that, absent the errors, the sentencer . . . would have concluded that the
balance of the aggravating and mitigating circumstances did not warrant death.” Henley
v. State, 960 S.W.2d 572, 579-80 (Tenn. 1997) (quoting Strickland, 466 U.S. at 695); see
Cullen, 563 U.S. at 189.
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A. Failure to Adequately Investigate and Pursue a Change of Venue
The petitioner asserts that trial counsel were ineffective in failing to adequately
investigate and pursue a change of venue. According to the petitioner, trial counsel
“acted unreasonably” in (1) withdrawing the motion for a change of venue; (2) failing to
retain an expert to assist in evaluating the need for a change of venue; (3) failing to
conduct a public opinion poll; (4) failing to investigate whether the favorable reputation
of the petitioner‟s family would affect the jury‟s sentencing decision; and (5) failing to
seek a change of venue during jury selection.
Tennessee Rule of Criminal Procedure 21(a) provides that venue may be changed
“when a fair trial is unlikely because of undue excitement against the defendant in the
county where the offense was committed or for any other cause.” “The ultimate test is
whether the jurors who actually sat and rendered verdicts were prejudiced by the pretrial
publicity.” State v. Kyger, 787 S.W.2d 13, 18-19 (Tenn. Crim. App. 1989) (citing State
v. Garland, 617 S.W.2d 176, 187 (Tenn. Crim. App. 1981)). “Prejudice will not be
presumed by a mere showing that there was considerable pretrial publicity.” Keith
Whited v. State, No. M2012-02294-CCA-R3-PC, 2014 WL 1832962, at *12 (Tenn.
Crim. App. May 7, 2014), perm. app. denied (Tenn. Sept. 18, 2014) (citing Dobbert v.
Florida, 432 U.S. 282, 303 (1977); Kyger, 787 S.W.2d at 19).
The post-conviction court did not specifically address this issue in its order
denying post-conviction relief. Rather, the post-conviction court stated in a footnote that
“[a]ny claim not specifically addressed in this order has been found by this court to be
without merit.” Nevertheless, we conclude that the petitioner has failed to establish that
any deficiency resulted in prejudice. While the petitioner argues that the jurors were
exposed to pretrial publicity, he failed to establish that the jurors were prejudiced by the
pretrial publicity. „“Qualified jurors need not . . . be totally ignorant of the facts and
issues involved.‟” State v. Bates, 804 S.W.2d 868, 877 (Tenn. 1991) (quoting Murphy v.
Florida, 421 U.S. 794, 799-800 (1975)). The majority of the jurors stated during
individual voir dire that while they heard about the offenses as a result of publicity, they
could not recall details of the offenses. As the post-conviction court later found in its
order, “All jurors who had heard or seen some of the pretrial publicity stated they could
set aside what they had heard or read and follow the law. Petitioner has presented no
evidence to contradict their assertions.” The petitioner is not entitled to relief regarding
this issue.
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B. Voir Dire
The petitioner contends that trial counsel were ineffective during voir dire in
failing to inquire into crucial topics of the defense, failing to object to the prosecutor‟s
inappropriate comments to the jury, and in failing to “life qualify” the jurors.
1. Failure to Inquire into Crucial Topics of the Defense
The petitioner maintains that trial counsel failed to properly inquire into the jurors‟
exposure to pretrial publicity, question them about their attitudes toward mental disorders
and intoxication, expose them to “facts not in dispute,” or question them “in a manner
that would reveal bias or grounds for disqualification.” The ultimate goal of voir dire is
to ensure that jurors are competent, unbiased, and impartial. State v. Mann, 959 S.W.2d
503, 533 (Tenn. 1997). A defendant does not have a constitutional right to pose
questions to prospective jurors that involve matters that conceivably might prejudice the
jurors against him. Ristaino v. Ross, 424 U.S. 589, 594 (1976) (citing Ham v. South
Carolina, 409 U.S. 524, 527-28 (1973)). “The failure to make certain inquiries to
determine how receptive the jury would be to specific mitigation factors during voir dire
does not necessarily constitute ineffective assistance of counsel.” Steven Ray Thacker v.
State, No. W2010-01637-CCA-R3-PD, 2012 WL 1020227, at *53 (Tenn. Crim. App.
Mar. 23, 2012), perm. app. denied (Tenn. Aug. 16, 2012) (citing State v. Goodwin, 703
N.E.2d 1251, 1257 (Ohio 1999)). The scope of voir dire is a tactical decision, and it is
not within the province of this court to second-guess tactical choices made by trial
counsel. Id. (citing Butler v. State, 789 S.W.2d 898, 901 (Tenn. 1990)).
We note that the petitioner fails to identify in his brief the undisputed facts to
which he claims that the jurors should have been exposed or the manner in which trial
counsel should have questioned prospective jurors in order to reveal bias or grounds for
disqualification. The prospective jurors were asked about their exposure to pretrial
publicity both in the juror questionnaire and during individual voir dire. As the post-
conviction court found, the jurors who had been exposed to pretrial publicity stated that
they could set aside anything they had heard or read and base their decision on the
evidence presented at trial and the law as instructed by the trial court. During the trial,
the trial court instructed the jury on the applicable legal burdens and mitigating
circumstances. There is no evidence establishing that the jury ultimately empaneled was
biased or unfair. The petitioner is not entitled to relief based on this issue.
In a footnote in his brief, the petitioner asserts that trial counsel were ineffective in
failing to object to the jury questionnaire utilized by the trial court. We caution the
petitioner and other appellants against the practice of raising issues on appeal in footnotes
of their appellate briefs. Rather, any issues should be raised in the body of the argument
86
section or risk waiver of the issue. Moreover, we conclude that this issue is without
merit. The questions posed to the prospective jurors in the jury questionnaire and during
voir dire were adequate to ensure that the jurors would base their decision on the
evidence presented at trial and the law as instructed by the trial court. There is no
evidence establishing that the jury ultimately empaneled was biased or unfair.
2. Failure to “Life Qualify” Jurors
The petitioner next avers that trial counsel were ineffective in failing to “life
qualify” the jurors. In capital murder trials where the jury must choose between life and
death, the failure to question whether a prospective juror can fairly consider a life
sentence does not necessarily constitute deficient performance. Hartman v. State, 896
S.W.2d 94, 105 (Tenn. 1995); Steven Ray Thacker, 2012 WL 1020227, at *52. The jury
questionnaire included questions about the prospective jurors‟ views of the death penalty.
Moreover, the post-conviction court found that during individual voir dire:
[T]he issue of death qualification was controlled by the court and the court
thoroughly explained the law to each juror and informed each juror they
must be able to consider all three forms of punishment. With regard to
nearly every juror, in addition to the court‟s extensive questioning, the
defense team reiterated the death penalty was not automatic and each juror
must be able to consider all forms of punishment.
The evidence does not preponderate against the findings of the post-conviction court.
Moreover, each juror asserted that he or she could be fair and impartial, and no evidence
was presented establishing that the jurors were anything but fair and impartial.
Accordingly, trial counsel were not deficient, and any deficiency did not result in
prejudice.
3. Failure to Object to the Prosecutor’s Inappropriate Comments to Jurors
The petitioner maintains that trial counsel were ineffective in failing to object to
the following statement made by the prosecutor to a juror during individual voir dire:
I‟m Jerry Woodall. I‟m the Attorney General, and I‟m the individual who
has responsibility for making the determination as to whether the State
should seek the death penalty or not, and we‟ve made that decision in this
case.
The petitioner asserts that trial counsel also should have objected to the following
statement made by the prosecutor to another juror during individual voir dire:
87
I‟m the Attorney General, and it fell upon me and is my responsibility to
make the determination as to whether or not, if there‟s a finding of guilt of
murder in the first degree, that the State should seek the death penalty, and
I‟ve made that decision.
The petitioner characterizes these statements as improper personal opinions.
This court has recognized that it is “unprofessional conduct for the prosecutor to
express his personal belief or opinion as to the truth or falsity of any testimony or
evidence or the guilt of the defendant.” State v. Goltz, 111 S.W.3d 1, 6 (Tenn. Crim.
App. 2003) (citations omitted). The prosecutor‟s statements in the present case do not
constitute personal opinions but are correct statements of the law. See, e.g., State v.
Hester, 324 S.W.3d 1, 18-19 (Tenn. 2010) (discussing the discretion of the district
attorney general in deciding to seek the death penalty). Furthermore, the petitioner has
failed to present evidence establishing that the prosecutor‟s statements to two jurors
resulted in a biased or unfair jury or otherwise affected the verdict or sentence. The
petitioner is not entitled to relief regarding this issue.
C. Failure to Seek Expert Assistance
The petitioner contends that trial counsel were ineffective in failing to investigate
and seek expert assistance to present evidence of diminished capacity and intoxication
during the guilt and penalty phases. The petitioner specifically contends that trial counsel
were ineffective in failing to retain a neuropharmacologist, a neuropsychologist, a
psychiatrist, and an addiction specialist.
Although trial counsel does not have an absolute duty to investigate particular
facts or a certain line of defense, counsel has a duty to conduct a reasonable investigation
or make a reasonable decision rendering a particular investigation unnecessary.
Strickland, 466 U.S. at 691. Furthermore,
no particular set of detailed rules of counsel‟s conduct can satisfactorily
take account of the variety of circumstances faced by defense counsel.
Rather, courts must judge the reasonableness of counsel‟s challenged
conduct on the facts of the particular case, viewed as of the time of
counsel‟s conduct, and judicial scrutiny of counsel‟s performance must be
highly deferential.
Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000) (internal citations and quotations
omitted).
88
While there may be some cases where the only reasonable defense strategy
involves consultation with experts or introduction of expert testimony, there are
“„countless ways to provide effective assistance in any given case. Even the best
criminal defense attorneys would not defend a particular client in the same way.‟”
Harrington v. Richter, 562 U.S. 86, 106-07 (2011) (quoting Strickland, 466 U.S. at 689).
Cases rarely exist in which the “„wide latitude counsel must have in making tactical
decisions‟ will be limited to any one technique or approach.” Id. (quoting Strickland, 466
U.S. at 689). The Tennessee Supreme Court recently recognized that in most cases, “the
decision to select an expert, or which expert to select, constitutes one of the „strategic‟
defense decisions that Strickland v. Washington shields from scrutiny.” Kendrick, 454
S.W.3d at 475. “The selection of an expert witness is a paradigmatic example of the type
of „strategic choic[e]‟ that, when made „after thorough investigation of [the] law and
facts,‟ is „virtually unchallengeable.‟” Hinton v. Alabama, 571 U.S. __, 134 S. Ct. 1081,
1089 (2014) (quoting Strickland, 466 U.S. at 690); see Kendrick, 454 S.W.3d at 474.
In determining whether trial counsel were deficient in failing to retain these
experts, we must examine trial counsel‟s investigation of issues of intoxication and
diminished capacity. Trial counsel met with the petitioner on numerous occasions and
were aware of the petitioner‟s health issues, use of alcohol and prescription drugs, sleep
deprivation, depression, and claims of extreme mental stress at the time of the shootings.
Trial counsel received the petitioner‟s statement to the police in which the petitioner
stated that he had five shots of vodka prior to the shootings, had not taken Xanax for days
prior to the shootings, and was not intoxicated. Trial counsel were aware that the
petitioner had submitted blood and urine samples following his arrest and obtained the
various reports detailing the test results of the samples. They received documentation
showing that police officers searched the petitioner‟s residence and seized multiple
prescription bottles. They also obtained the report of Dr. Winston‟s evaluation of the
petitioner, during which the petitioner denied that he was intoxicated at the time of the
shootings.
Trial counsel retained Ms. Shettles as a mitigation specialist. Ms. Shettles
gathered numerous records, including the petitioner‟s medical and pharmacy records.
She interviewed witnesses regarding the petitioner‟s prior drug and alcohol use, his social
history, and both his alcohol use and behavior before the shootings. Trial counsel also
obtained information from witnesses regarding the petitioner‟s behavior and the odor of
alcohol following the shootings and presented that evidence at the trial. Ms. Shettles
learned that the petitioner‟s prescribed dosage of Xanax had been increased
approximately one week prior to the shootings and discovered there were fewer Xanax
pills in the petitioner‟s prescription bottle than she would have expected. Trial counsel
also requested that Mr. Lax analyze the crime scene. Mr. Lax issued a report in which he
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concluded that “based on the earlier phone call to TDOT, the amount of ammunition, [the
petitioner‟s] comments to others present and the accuracy of the shots fired,” Mr. Lax
“could not offer any opinion that the crime scene evidence suggested that [the petitioner]
was not fully aware of what he was doing.”
Trial counsel retained Dr. Wilson, a clinical psychologist, to evaluate the
petitioner. According to Dr. Wilson‟s testimony at trial, he met with the petitioner on
four occasions for approximately eleven hours, during which time he conducted an
interview and administered testing. Dr. Wilson reviewed police records; statements of
witnesses; the petitioner‟s medical, education, employment, and social history; and his
parents‟ social history. Dr. Wilson also met with the petitioner‟s children and parents.
Dr. Wilson and lead counsel exchanged emails discussing the results of the toxicology
report. Dr. Wilson issued a report in which he discussed the petitioner‟s history of use of
alcohol, illegal drugs, and prescription drugs; his employment history; his history of
accidents and injuries; his social history; the marital issues between the petitioner and
Mrs. Jordan; the petitioner‟s problems with sleeping; and his recollection of the events
prior, during, and after the shootings.
Dr. Wilson concluded in his report that the petitioner was significantly impaired at
the time of the shootings, was not capable of conforming his behavior to the requirements
of the law, and was not able to exercise reflection and judgment in order to premeditate.
Dr. Wilson stated that the petitioner‟s inability to conform his conduct was the result of
“a substantial impairment related to emotional disturbance, lack of sleep, and
intoxication.” He believed the petitioner‟s “level of intoxication was due to his drinking
much more than was customary for him as well as his consuming an unknown amount of
anxiolytic and narcotic analgesic medication.” Dr. Wilson said that prior to the
shootings, the petitioner was experiencing intense emotional distress and opined that the
petitioner was substantially impaired due to the extreme emotional distress. Dr. Wilson
opined:
[The petitioner] has demonstrated a long history of ineptness in dealing
with emotional and relationship problems. The culmination of his life-time
experiences and the stormy relationship in which he was involved served to
further impair his judgment, reasoning, reality testing and impulse control.
His antianxiety medication had been increased and he was drinking heavily.
I believe that he was experiencing episodes of dissociation and
derealization during this time.
Dr. Wilson diagnosed the petitioner under Axis I with dissociative disorder not
otherwise specified, major depressive disorder, generalized anxiety disorder, and alcohol
abuse concurrent with anxiolytic and analgesic use and under Axis II with borderline
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personality disorder. He further diagnosed the petitioner with alcohol intoxication and
possible opioid and anxiolytic intoxication at the time of the offenses. Dr. Wilson
testified at trial regarding the effects of alcohol and Xanax when combined.
Trial counsel also retained Dr. Caruso, a forensic psychiatrist, who evaluated the
petitioner and concluded that although the petitioner was intoxicated and suffered from
major depression at the time of the offenses, he was able to appreciate the nature and
wrongfulness of his behavior and form the requisite mens rea at the time of the offenses.
Dr. Caruso also diagnosed the petitioner with narcissistic personality disorder and sent an
email to lead counsel characterizing the petitioner‟s complaints of memory deficits as
“convenient.” Dr. Caruso also found that the petitioner had a “BAL of 0.17 gm%
approximately 5 hours after the offense[s]. Extrapolating from this point, [the
petitioner‟s] BAL would be estimated to be between 0.24 and 0.27 gm% at the time of
the various offenses.” Dr. Caruso noted that the effects of alcohol are increased by the
use of Xanax, hydrocodone, and Dolgic. Based upon Dr. Caruso‟s conclusions, trial
counsel decided against calling him as a witness at trial.
Trial counsel interviewed Special Agents Harrison and Hopkins regarding their
testing of the petitioner‟s blood and urine samples. Special Agent Harrison informed lead
counsel that converting the petitioner‟s urine alcohol level to blood alcohol would
involve “pure speculation.” Special Agent Harrison testified at trial that the results of the
urine sample only revealed that alcohol had been in the petitioner‟s bloodstream prior to
the collection of the sample. He also testified that if a person consumed five shots of
alcohol rapidly within an hour, the person‟s blood alcohol level would be approximately
.10%.
Trial counsel discussed the issue of whether a reliable extrapolation could be made
from the urine alcohol level with Dr. David Stafford, a toxicologist. Co-counsel testified
that Dr. Stafford stated that the only inference that could be drawn from the alcohol level
in the petitioner‟s urine was that the petitioner consumed alcohol at some point.
1. Addiction Specialist
The petitioner states in his brief that the post-conviction court did not make any
findings addressing his claim that trial counsel were ineffective in failing to retain an
addiction specialist. The petitioner, however, did not specifically raise trial counsel‟s
omission as an issue in his petition for post-conviction relief or in any of his amended or
supplemental petitions. The petitioner alleged in his amended petition that trial counsel
were ineffective in failing to retain “a properly qualified and informed psychiatrist and/or
other medical expertise [sic].” Even if this court interprets this claim as raising an issue
regarding trial counsel‟s failure to retain an addiction specialist, the petitioner is not
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entitled to relief. Although post-conviction counsel questioned Ms. Shettles regarding
her notes in which she referenced Dr. Smith, post-conviction counsel failed to question
lead counsel or co-counsel regarding whether they considered retaining an addiction
specialist or why they did not do so. The petitioner failed to overcome the presumption
that trial counsel‟s performance was the result of a strategic or tactical decision and,
therefore, failed to establish deficient performance. See William Glenn Rogers v. State,
No. M2010-01987-CCA-R3-CD, 2012 WL 3776675, at *58 (Tenn. Crim. App. Aug. 30,
2012), perm. app. denied (Tenn. Dec. 11, 2012) (holding that the petitioner failed to
overcome the presumption that trial counsel‟s performance was the result of a strategic or
tactical decision when the petitioner did not question trial counsel regarding the claims
during the evidentiary hearing).
2. Psychiatrist
The post-conviction court found that trial counsel made a tactical decision to not
retain an additional psychiatrist. Trial counsel retained Dr. Caruso, a forensic psychiatrist
who evaluated the petitioner and opined that he was able to appreciate the nature and
wrongfulness of his behavior and form the requisite mens rea at the time of the offenses.
A defense attorney “is not required to question a diagnosis put forth by a professional
expert in the field.” Christa Gail Pike v. State, No. E2009-00016-CCA-R3-PD, 2011 WL
1544207, at *54 (Tenn. Crim. App. Apr. 25, 2011), perm. app. denied (Tenn. Nov. 15,
2011).
Lead counsel testified that because he withdrew Dr. Caruso as an expert witness,
the State was no longer entitled to see Dr. Caruso‟s report. Lead counsel believed that
had he retained another mental health expert, the State, through cross-examination of the
new expert, would have attempted to learn of Dr. Caruso‟s opinions and the new expert‟s
reliance on Dr. Caruso‟s opinions. Lead counsel feared that once the jury learned that the
petitioner had been evaluated by multiple experts, the jury would believe that the defense
was “shopping for experts.” While Dr. Caruso included mitigating factors in his report,
lead counsel determined that he could establish the factors though Dr. Wilson‟s
testimony. We agree with the post-conviction court that trial counsel made a tactical
decision to not retain another psychiatrist. Trial counsel were not deficient in this regard.
We also conclude that even if trial counsel had decided to seek to retain an
additional psychiatrist, they would have been unable to establish particularized need in
order to obtain the funds. The trial court‟s obligation to afford an indigent defendant with
the benefit of expert assistance does not arise unless the defendant makes a threshold
showing of a “particularized need” for the expert assistance. See Tenn. Sup. Ct. R. 13, §
5(c)(1); State v. Barnett, 909 S.W.2d 423, 430-31 (Tenn. 1995). Particularized need is
established:
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when a defendant shows by reference to the particular facts and
circumstances that the requested services relate to a matter that, considering
the inculpatory evidence, is likely to be a significant issue in the defense at
trial and that the requested services are necessary to protect the defendant‟s
right to a fair trial.
Tenn. Sup. Ct. R. 13, § 5(c)(2).
Particularized need cannot be established and the trial court should deny requests
for funding when the motion for funding includes only:
(A) undeveloped or conclusory assertions that such services would
be beneficial;
(B) assertions establishing only the mere hope or suspicion that
favorable evidence may be obtained;
(C) information indicating that the requested services relate to
factual issues or matters within the province or understanding of the jury; or
(D) information indicating that the requested services fall within the
capability and expertise of appointed counsel.
Id. at (c)(4). Unsupported assertions that an expert is necessary to counter proof offered
by the State is not sufficient to establish particularized need. Barnett, 909 S.W.2d at 431.
The defendant must reference facts and circumstances of the particular case and
demonstrate that the appointment of the expert is necessary to ensure a fair trial. Id. The
issue of whether a defendant has made the threshold showing is to be determined on a
case-by-case basis. Id. We conclude that a request for funds to retain a second
psychiatrist based upon the mere hope of a more favorable opinion is insufficient to
establish particularized need.
To the extent that the petitioner alleges that Dr. Caruso was not properly qualified,
we note that the United States Supreme Court has rejected a claim of ineffective
assistance of counsel consisting of “the hiring of an expert who, though qualified, was not
qualified enough.” Hinton, 571 U.S. at __, 134 S. Ct. at 1089. The Court declined to
“launch federal courts into examination of the relative qualifications of experts hired and
experts that might have been hired.” Id. Accordingly, the petitioner is not entitled to
relief regarding this issue.
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3. Neuropsychologist
The post-conviction court found that trial counsel considered retaining a
neuropsychologist but made a tactical decision not to seek additional expert assistance.
Co-counsel identified a document from his file listing other possible experts, including a
neuropsychologist and a pharmacologist. Trial counsel, however, retained Dr. Wilson,
who was able to discuss the petitioner‟s history of alcohol and drug abuse, his history of
prescription drug usage, the various stressors in the petitioner‟s life, sleep deprivation,
depression, and other mental difficulties. Trial counsel also retained Dr. Caruso, whose
opinions were not favorable to the defense. In an effort to ensure that the State did not
discover Dr. Caruso‟s opinions, trial counsel amended their notice to remove him as a
witness and did not seek to retain any other mental health experts. Lead counsel
explained that the State would have attempted to learn about Dr. Caruso‟s opinion
through cross-examination of any other mental health expert retained after Dr. Caruso.
Moreover, neither Dr. Wilson nor Dr. Caruso recommended that the petitioner be
evaluated by a neuropsychologist. The post-conviction court found that while there was
some evidence of head trauma in the petitioner‟s past, such evidence did not place an
affirmative duty on trial counsel to retain a neuropsychologist. We agree and conclude
that trial counsel made a reasonable, tactical decision against retaining a
neuropsychologist. Trial counsel were not deficient in this regard.
4. Neuropharmacologist
The post-conviction court initially stated that trial counsel made a tactical decision
not to retain a neuropharmacologist based upon a thorough investigation into the
petitioner‟s past and the issues presented in the case. The post-conviction court later
found that trial counsel were deficient in failing to retain a neuropharmacologist. The
court specifically found that
given the decision by trial counsel to present a defense based partially on
intoxication and diminished capacity, trial counsel should have sought the
services of a pharmacologist or neuro-pharmacologist to assist them in
understanding the interactions between the prescription drugs taken by
petitioner and petitioner‟s use of alcohol. Based upon the breadth of
information possessed by trial counsel relating to petitioner‟s use of illegal
drugs, anti-depressants, and abuse of prescription drugs along with
evidence of petitioner‟s alcohol use, this court finds trial counsel were
remiss in failing to recognize the need for such assistance.
The evidence presented at the post-conviction hearing establishes that while trial
counsel considered retaining a pharmacologist, their decision not to retain a
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pharmacologist or neuropharmacologist was a reasonable, tactical decision based on trial
counsel‟s thorough investigation into the issues of intoxication and diminished capacity.
Trial counsel obtained the petitioner‟s medical and pharmacy records and interviewed
numerous witnesses regarding the petitioner‟s behavior before and after the shootings.
They retained Dr. Wilson, who evaluated the petitioner and discussed the petitioner‟s
history of alcohol and drug abuse, his prescription drug use, the interaction between
alcohol and the prescription drugs, the various stressors experienced by the petitioner, his
sleep deprivation, his mental difficulties, and the effects of these factors upon the
petitioner‟s ability to premeditate during the shootings.
Trial counsel met with the TBI agents who tested the petitioner‟s urine and blood
samples regarding the results. The defense sought opinions from two toxicologists
regarding whether the petitioner‟s blood alcohol level at the time of the offenses could be
determined based upon the petitioner‟s urine alcohol level. Both toxicologists stated that
the petitioner‟s urine alcohol level only indicated that he had consumed alcohol at some
point prior to providing the sample. Special Agent Harrison was able to provide an
opinion regarding the petitioner‟s blood alcohol level after consuming five shots of
vodka. While Dr. Caruso offered an opinion regarding an extrapolation of the
petitioner‟s blood alcohol level, he incorrectly stated that the petitioner had a “BAL of
0.17 gm% approximately 5 hours after the offense[s]” and did not base his calculation on
the petitioner‟s urine alcohol level. Dr. Caruso also opined that the petitioner‟s level of
intoxication did not affect his ability to premeditate.
In light of the fact that Dr. Wilson was able to discuss the effects of various factors
on the petitioner‟s ability to premeditate and two experts had told trial counsel that the
petitioner‟s blood alcohol level at the time of the offenses could not be determined from
his urine alcohol level, we conclude that trial counsel made a tactical decision against
retaining an expert in the area of pharmacology based upon a thorough investigation into
the issues of intoxication and diminished capacity. Once trial counsel obtained opinions
from two experts on the ability to calculate the petitioner‟s blood alcohol level, they were
not required to seek an opinion from a third expert. We conclude that trial counsel were
not deficient in this regard and that the petitioner is not entitled to relief regarding this
issue.
D. Failure to Investigate and Present Mitigating Evidence
The petitioner asserts that trial counsel were ineffective during the penalty phase
of the trial in failing to investigate and present evidence of his prior head injuries, his
cognitive impairment, and his family‟s history of alcoholism and mental illness. Counsel
does not have a constitutional duty to present mitigating evidence at the penalty phase of
a capital trial but has a duty to investigate and prepare for both the guilt and penalty
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phases. See Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996). Counsel does not have an
absolute duty to investigate particular facts or a certain line of defense; however, counsel
has a duty to make a reasonable investigation or to make a reasonable decision that
makes a particular investigation unnecessary. Strickland, 466 U.S. at 691. In determining
whether counsel breached this duty, this court reviews counsel‟s performance for
reasonableness under prevailing professional norms, which include a context-dependent
consideration of the challenged conduct as viewed from counsel‟s perspective at that
time. Wiggins v. Smith, 539 U.S. 510, 523 (2003) (citations omitted).
Counsel is not required to investigate every conceivable line of mitigation
evidence regardless of how unlikely the effort would be to assist the defendant at
sentencing. Id. at 533. Likewise, counsel is not required to interview every conceivable
witness. Hendricks v. Calderon, 70 F.3d 1032, 1040 (9th Cir. 1995). This court will not
conclude that counsel‟s performance was deficient for failing to discover all mitigating
evidence, if, after a reasonable investigation, counsel has not been put on notice that such
evidence exists. See Babbitt v. Calderon, 151 F.3d 1170, 1174 (9th Cir. 1998) (citation
omitted).
We review the following factors in determining whether trial counsel were
ineffective in failing to present mitigating evidence: (1) the nature and extent of the
mitigating evidence that was available but not presented by trial counsel; (2) whether trial
counsel presented substantially similar mitigation evidence to the jury in either the guilt
or penalty phase of the proceedings; and (3) whether the evidence of applicable
aggravating factors was so strong that mitigating evidence would not have affected the
jury‟s determination. Goad, 938 S.W.2d at 371 (citations omitted).
We have concluded that trial counsel were not deficient for not retaining a
neuropsychologist to evaluate the petitioner for cognitive impairments. With regard to
the petitioner‟s family history, the post-conviction court found that while his family may
have had some dysfunction, trial counsel testified that the petitioner‟s parents were highly
respected in the community and that trial counsel determined that the parents‟ status
could be viewed favorably to the jury. The post-conviction court found that trial
counsel‟s strategy was informed and that “given the limited evidence indicating
dysfunction within the petitioner‟s family unit and the high level of regard the
community felt for petitioner‟s father, it appears counsel made an appropriate strategic
choice.” Nevertheless, the post-conviction court found that trial counsel were deficient in
failing to present evidence of the family‟s history of alcoholism and mental illness but
that the deficiency did not result in prejudice.
We likewise conclude that any deficiency did not result in prejudice. Evidence
was presented at trial regarding the petitioner‟s illegal drug and alcohol abuse, his
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prescription drug use, his mental health issues, his consumption of alcohol leading up to
the shootings, and his sleep deprivation. The evidence presented at trial to support those
aggravating circumstances which the Tennessee Supreme Court held to be valid was
“exceptionally strong.” See Jordan, 325 S.W.3d at 75. Based upon the mitigating
evidence presented and the strong evidence supporting the aggravating circumstances, the
petitioner has failed to demonstrate a reasonable probability that the presentation of
evidence of his family‟s history of alcoholism and mental illness would have resulted in a
different sentence.
E. Failure to Ensure Preservation and Independent Testing of Blood and Urine
The petitioner maintains that trial counsel were ineffective in both phases of the
trial by failing to ensure that the petitioner‟s blood and urine samples were preserved and
independently tested. The post-conviction court found that trial counsel were deficient
but that the deficiency did not result in prejudice. We agree with the post-conviction
court‟s findings.
As the post-conviction court correctly found, any prejudice relates to the
petitioner‟s lost ability to conduct further testing of the samples. Although Dr. Lipman
testified that the TBI Crime Laboratory did not accurately detect the level of Xanax in the
petitioner‟s blood due to the limited calibration standards, the post-conviction court found
that additional testing only would have demonstrated that the petitioner had a low
therapeutic dose of the drug in his system at the time of the collection. Dr. Farr testified
that even with a high calibration standard, “if there was a clinically significant level of
alprazolam in the blood [o]n the morning of the offenses, there would have been a
detectable level of alprazolam in the blood at 9:50 p.m.” The petitioner failed to establish
a reasonable probability that had this evidence been presented during the guilt phase, the
verdict would have been different. In light of the mitigating evidence and strong
evidence support the aggravating circumstances presented during the penalty phase, the
petitioner also failed to establish a reasonable probability that the jury would have
returned a verdict other than death had the evidence been presented during the penalty
phase. See Goad, 938 S.W.2d at 371.
F. Failure to Challenge the Indictment
Based Upon Race and Gender of the Grand Jury Foreperson
The petitioner contends that trial counsel were ineffective in failing to investigate
discrimination in the race and gender of the grand jury foreperson and in failing to
challenge the indictment on this basis prior to trial and on appeal. The grand jury
foreperson‟s role is “ministerial and administrative.” State v. Bondurant, 4 S.W.3d 662,
675 (Tenn. 1999). “[T]he method of selection of the grand jury foreperson is relevant
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only to the extent that it affects the racial composition of the entire grand jury.” Id. The
post-conviction court found that while evidence was presented indicating that women and
African-Americans have not served as the grand jury foreperson of the Madison County
Grand Jury in proportion to the population of Madison County, the petitioner failed to
present any evidence establishing the composition of the grand jury as a whole or the
systematic exclusion of minorities or other cognizable groups. The evidence presented
during the evidentiary hearing does not preponderate against the post-conviction court‟s
findings. The petitioner has failed to demonstrate that any deficiency resulted in
prejudice and, therefore, is not entitled to relief regarding this issue.
G. Denial of Assistance of Counsel after the Preliminary Hearing
The petitioner maintains that he was denied the assistance of counsel for four
months between the preliminary hearing and the return of the indictment in violation of
the Sixth and Eighth Amendments of the United States Constitution. This claim was not
raised in the petitioner‟s petition for post-conviction relief or in any of his amended and
supplemental petitions. “As a general rule, this court will not address post-conviction
issues that were not raised in the petition or addressed in the trial court.” Brown v. State,
928 S.W.2d 453, 457 (Tenn. Crim. App. 1996). Therefore, this issue is waived.
H. Failure to Object to the Prosecutor’s
Opening Statements and Closing Argument
The petitioner maintains that trial counsel were ineffective in failing to object to
the following statements made by the prosecutor during his opening statement in the guilt
phase:
There‟s going to be proof that will show you that there‟s no question
that the [petitioner] had consumed alcoholic beverages. Now, we‟re not
sure exactly when these were consumed, how much before or how much
after. And the [petitioner] is going to rely upon a defense that as a result of
consumption of alcohol, as well as depression that . . . he was significantly
impaired by his emotional distress at the time of the crime[s] and, therefore,
not capable of conforming his behavior to the law. That will be what the
[petitioner], it‟s anticipated, will present in the sixth section of this case. . . .
The State asks you to look at each and every witness. The State has
the burden of proof to prove the [petitioner] is guilty beyond a reasonable
doubt, to a moral certainty. I ask you to hold the State to that obligation.
Just because a crime or a terrible crime has occurred, the State still has that
responsibility and it should.
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I know that the defense team has worked hard, and they will not
waste your time any more than the government will. But as your hear this
defense, I want you -- and remember that it‟s impaired by emotional
distress, alcohol, and at the time of the crime[s], not capable of conforming
his behavior to the law, and the Court will instruct you at the proper time on
what the law is as to this, but as you go through these previous five
sections, keeping in mind as this proof comes in, you need to look at each
and every witness, their opportunity to observe this [petitioner], what the
facts present which will demonstrate the [petitioner‟s] ability to conform
his conduct to the requirements of the law.
Trial counsel‟s decisions of whether to object to the arguments of opposing
counsel “„are often primarily tactical decisions.‟” Lemar Brooks v. State, No. M2010-
02451-CCA-R3-PC, 2012 WL 112554, at *14 (Tenn. Crim. App. Jan. 11, 2012), perm.
app. denied (Tenn. May 16, 2012) (quoting Derek T. Payne v. State, No. W2008-02784-
CCA-R3-PC, 2010 WL 161493, at *15 (Tenn. Crim. App. Jan. 15, 2010), perm. app.
denied (Tenn. May 11, 2010)). Trial counsel could refrain from objecting for several
valid tactical reasons, including not wanting to emphasize unfavorable evidence. Derek
T. Payne, 2010 WL 161493, at *15. As a result, “testimony from trial counsel as to why
he or she did not object to the allegedly prejudicial remarks is essential to determine
whether trial counsel was ineffective.” Lemar Brooks, 2012 WL 112554, at *14. Absent
testimony from trial counsel or any other evidence indicating that counsel‟s decision was
not tactical, “we cannot determine that trial counsel provided anything other than
effective assistance of counsel.” State v. Leroy Sexton, No. M2004-03076-CCA-R3-CD,
2007 WL 92352, at *5 (Tenn. Crim. App. Jan. 12, 2007), perm. app. denied (Tenn. May
14, 2007).
The petitioner did not present any evidence at the post-conviction hearing to
indicate that trial counsel‟s failure to object to the prosecutor‟s statements was anything
but a tactical decision. Trial counsel were not questioned at the evidentiary hearing about
why they did not object to the statements. Accordingly, the petitioner has failed to
establish that trial counsel were ineffective.
Even if trial counsel were deficient in failing to object to the prosecutor‟s
statements, the deficiency did not result in prejudice. The post-conviction court found
that the trial court instructed the jury that the statements of counsel were not evidence and
that the court also properly instructed the jury on the law relating to premeditation,
intoxication, and diminished capacity. We agree with the post-conviction court‟s
findings and conclude that the petitioner is not entitled to relief with regard to this issue.
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The petitioner submits that trial counsel were ineffective in failing to object to the
prosecutor‟s comments during his closing arguments in the guilt phase, which the
petitioner claims were based upon facts not in evidence and the misrepresentation of facts
in evidence. The petitioner specifically challenges the prosecutor‟s statements that the
petitioner drove around looking for his wife the night prior to the shootings; that the
trigger assembly for the SKS rifle was found in the cabinet in the petitioner‟s kitchen and
that he switched the assembly to make the rifle fully automatic on the morning of the
shootings; that the petitioner completed a note to his family by 9:30 a.m. on the morning
of the shootings; that the petitioner was intentionally concealing weapons when he was
observed with his hands in his pockets during the shootings; and that the petitioner left
the SKS rifle in his truck because he did not see his wife‟s car in the parking lot and was
uncertain that she was at work. The petitioner failed to question trial counsel about not
objecting to these statements at the evidentiary hearing and did not present any other
evidence indicating that the decision not to object was anything but tactical.
Accordingly, the petitioner has failed to establish that trial counsel were ineffective.
Furthermore, the post-conviction court found that most of the statements were not
objectionable. The post-conviction court also found that while trial counsel should have
objected to the State‟s rebuttal argument claiming that the petitioner drove around
searching for Mrs. Jordan on the night before the shootings, there was not a reasonable
likelihood that the jury would have reached a different verdict had the statements been
excluded “given the trial court‟s instruction [that] the lawyers[‟] arguments are not
evidence and considering the entirety of the proof submitted at trial.” We likewise agree
that any deficiency did not result in prejudice. The petitioner is not entitled to relief with
regard to this issue.
Lastly, the petitioner contends that trial counsel were ineffective in failing to
object to the prosecutor‟s comments during the closing arguments of the penalty phase in
which he referred to the petitioner as the “angel of death,” “belittle[ed]” mitigation
evidence, and made “burden shifting” statements. Trial counsel raised the prosecutor‟s
statements as issues on direct appeal.
With regard to the petitioner‟s claims regarding “burden shifting comments,” the
Tennessee Supreme Court held that the prosecutor‟s comments were not improper.
Jordan, 325 S.W.3d at 59-60. The court also concluded that “the trial court corrected any
improper impression made by the prosecutor‟s comments.” Id. at 60. Accordingly, trial
counsel were not deficient in failing to object to the comments, and any deficiency did
not result in prejudice.
Although the petitioner asserts that the prosecutor improperly “belittled” the
mitigating circumstances, the Tennessee Supreme Court concluded that “for the most
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part, the prosecutor‟s remarks were aimed simply at the weight to be given the mitigating
circumstances.” Id. at 61. The court concluded that one of the prosecutor‟s comments
was improper. Id. However, as the court noted, trial counsel did object to the comments,
and the trial court issued a curative instruction. Id. The petitioner is not entitled to relief
regarding this issue.
The Tennessee Supreme Court concluded that the prosecutor‟s statements
regarding the “angel of death” during the rebuttal closing argument in the penalty phase
was improper. Id. at 61-65. Therefore, trial counsel were deficient in failing to object to
the prosecutor‟s remarks. Our supreme court, however, concluded that “[c]onsidering the
parties‟ arguments as a whole, the trial court‟s instructions, and the evidence adduced
during the sentencing proceeding of both aggravating and mitigating factors, we hold that
the prosecution‟s references to the „angel of death‟ did not affect the jury‟s verdicts.” Id.
at 66. We likewise conclude that there is no reasonable probability that, absent the errors,
the jury would have imposed sentences other than death.
I. Closing Arguments During Both Phases of the Trial
The petitioner submits that trial counsel were ineffective during closing arguments
in both phases of the trial by failing to accurately represent his life history, assert a theory
of defense, educate the jury on premeditation, expose the jury to facts not in dispute, and
articulate the mitigation proof. The United States Supreme Court has observed that
“[j]udicial review of a defense attorney‟s summation is . . . highly deferential.”
Yarbrough v. Gentry, 540 U.S. 1, 6 (2003). Although the right to effective assistance of
counsel extends to closing arguments, counsel “has wide latitude in deciding how best to
represent a client, and deference to counsel‟s tactical decisions in his closing presentation
is particularly important because of the broad range of legitimate defense strategy at that
stage.” Id. at 5-6. The petitioner failed to question trial counsel regarding these claims at
the evidentiary hearing. As a result, the petitioner has not established that trial counsel‟s
performance during closing arguments was anything but the result of a tactical decision.
See William Glenn Rogers, 2012 WL 3776675, at *58. Furthermore, given the strength
of the evidence of guilt and of the aggravating circumstances, we conclude that there is
not a reasonable probability that any additional emphasis on these factors during closing
arguments would have affected the jury‟s verdicts in either phase of the trial.
J. Improper Handling of Witnesses
The petitioner raises several issues of ineffective assistance of counsel claiming
that trial counsel did not elicit crucial testimony or challenge improper testimony from
several witnesses. He specifically claims that trial counsel failed to (1) elicit testimony
regarding attempts to commit him to a mental institution; (2) challenge protected,
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privileged testimony; (3) object to “conflated legal concepts”; (4) object to improper
testimony from numerous witnesses; and (5) properly cross-examine witnesses.
1. Failure to Elicit Testimony Regarding Attempts
to Commit Petitioner to a Mental Institution
The petitioner contends that trial counsel were ineffective in failing to question
Barbara Surratt on cross-examination regarding her conversation with Mrs. Jordan during
which Mrs. Jordan informed her that the petitioner‟s mother stated that the petitioner
needed to be involuntarily committed to a mental institution. Lead counsel testified that
he did not question Ms. Surratt about the statement because he believed that the statement
constituted “double hearsay.” Lead counsel also explained that any questions about the
conversation could have opened the door to any other statements made by Mrs. Jordan
during the conversation. The petitioner does not challenge lead counsel‟s assertion that
the statement constituted “double hearsay.” The petitioner also does not allege that each
statement fell within an exception to the hearsay rule. See Tenn. R. Evid. 805 (“Hearsay
within hearsay is not excluded under the hearsay rule if each part of the combined
statements conforms with an exception to the hearsay rule[.]”). The petitioner is not
entitled to relief regarding this issue.
2. Failure to Challenge Protected, Privileged Testimony
The petitioner maintains that trial counsel were ineffective in failing to file a
motion in limine or otherwise challenge the testimony of Linda Sesson Taylor, who was
Mrs. Jordan‟s attorney. He asserts that Ms. Taylor‟s testimony violated attorney-client
privilege. The petitioner, however, failed to question trial counsel at the evidentiary
hearing regarding the claim and failed to present any evidence during the hearing to
support this claim. Furthermore, this court has recognized that the purpose of the
attorney-client privilege is to “„protect the client and to foster full communication with
the attorney. Because the privilege exists to protect the client, it belongs only to the
client and thus may not be asserted by a third party.‟” State v. Jeffrey Scott, No. W2009-
00707-CCA-R3-CD, 2011 WL 2420384, at *24 (Tenn. Crim. App. June 14, 2011), perm.
app. denied (Tenn. Oct. 18, 2011) (quoting State v. Tracy F. Leonard, No. M2001-00368-
CCA-R3-CD, 2002 WL 1987963, at *8 (Tenn. Crim. App. Aug. 28, 2002)). The
petitioner does not have standing to assert Mrs. Jordan‟s privilege, and trial counsel were
not deficient in failing to challenge Ms. Taylor‟s testimony on this basis.
3. Failure to Object to “Conflated Legal Concepts”
The petitioner argues that the State “conflated legal concepts” while questioning
Dr. Wilson and Dr. Matthews regarding whether the petitioner understood and
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appreciated the wrongfulness of his conduct when no insanity defense was asserted. The
petitioner further argues that trial counsel were ineffective in failing to object to the
State‟s line of questioning. The petitioner, however, did not question trial counsel at the
evidentiary hearing about their failure to object to this line of questioning. Furthermore,
the post-conviction court found that while the State appeared to have misstated the
standard for diminished capacity and conflated it with the standard for insanity, the
State‟s actions did not constitute an intentional attempt to mislead the jury. The post-
conviction court also found that trial counsel attempted to clear up any ambiguities
during cross-examination; that the State did not misstate the law during its closing
argument but focused on the petitioner‟s ability to premeditate; and that the trial court
provided the jury with a proper instruction of the law on diminished capacity. We agree
with the post-conviction court‟s findings and conclude that the petitioner is not entitled to
relief regarding this issue.
4. Failure to Object to Improper Testimony
a. Hearsay
In a footnote in his brief, the petitioner challenges TBI Agent Scott Lott‟s
testimony at trial that he was told that a gun he saw on the kitchen bar had been on top of
the refrigerator as inadmissible hearsay. The petitioner asserts that trial counsel were
ineffective in failing to object to the testimony. The petitioner, however, failed to
question trial counsel at the post-conviction hearing regarding their failure to object to the
testimony or otherwise establish deficient performance. See William Glenn Rogers, 2012
WL 3776675, at *58. Furthermore, we conclude that any deficiency did not result in
prejudice.
b. Rebuttal Testimony
As part of the defense at trial, trial counsel called as the first witness Investigator
Miller, who testified regarding the petitioner‟s statement and the collection of the blood
and urine samples. Trial counsel then presented an additional seven witnesses to support
the defense of intoxication. The following day, the State recalled Investigator Miller in
rebuttal to testify regarding his belief that the petitioner was not intoxicated and the
additional statements made by the petitioner. The petitioner contends that Investigator
Miller‟s rebuttal testimony violated the witness sequestration rule provided in Tennessee
Rule of Evidence 615 and that trial counsel were ineffective in failing to challenge the
testimony on that basis.
Rule 615 of the Tennessee Rules of Evidence provides in pertinent part that “[a]t
the request of a party the court shall order witnesses, including rebuttal witnesses,
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excluded at trial or other adjudicatory hearing. In the court‟s discretion, the requested
sequestration may be effective before voir dire, but in any event shall be effective before
opening statements.” The purpose of the rule of sequestration is to “prevent one witness
from hearing the testimony of another and adjusting his testimony accordingly.” State v.
Harris, 839 S.W.2d 54, 68 (Tenn. 1992). The petitioner does not allege that Investigator
Miller remained in the courtroom after testifying for the defense and failed to otherwise
establish that Investigator Miller‟s testimony violated Rule 615.
It appears that the petitioner challenges Investigator Miller‟s testimony as
improper rebuttal testimony. The petitioner, however, did not question trial counsel at
the evidentiary hearing regarding their failure to object to Investigator Miller‟s testimony
as improper rebuttal testimony or otherwise present evidence that trial counsel were
deficient. Investigator Miller‟s observations, the petitioner‟s additional statements, and
his ability to provide details were relevant to rebut the petitioner‟s intoxication defense.
Furthermore, even if trial counsel were deficient, such deficiency did not result in
prejudice. The petitioner is not entitled to relief regarding this issue.
c. Irrelevant and Prejudicial Testimony
The petitioner contends that trial counsel were ineffective in failing to challenge
the following testimony as irrelevant and prejudicial: (1) Larry Taylor‟s testimony
regarding his state of mind at the time of the shootings; (2) Sergeant Mike Thomas‟
testimony regarding his speed and state of mind while traveling to the scene and his
testimony that the term “machine gun” “gets your attention really quick”; (3) Officer Ted
Maxwell‟s testimony comparing the caliber of his firearms to the petitioner‟s firearms;
(4) Officer Rodney Anderson‟s response to the State‟s question, “Eye-opening day for
you?”; (5) Ricky Simpson‟s testimony that the petitioner appeared to have been laughing;
(6) EMT Trent Harris‟ testimony regarding his transportation of Mr. Gordon to the
hospital and his description of the insertion of breathing tubes; (7) Paramedic Eric
Leath‟s testimony about “blood tissue lying all around, pooled around [Mrs. Jordan‟s]
head” and about Mr. Hopper‟s “gasping-type breaths” and his description of the
intubation procedure involving Mr. Hopper; (8) the testimony of Dr. Herbert Sutton and
Dr. David James regarding the extraordinary lifesaving measures performed on Mr.
Hopper; and (9) TBI Agent Cathy Ferguson‟s testimony regarding her speed while
responding to the scene and her observations of “carnage,” a large pool of blood, and
“brain matter or tissue in the pool of blood.”
We note that the petitioner failed to question trial counsel at the evidentiary
hearing about their failure to object to the testimony. As noted by the post-conviction
court, trial counsel objected to the State‟s repeatedly summarizing Sergeant Thomas‟
testimony and referencing his speed in response to the radio dispatch of the shootings.
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With regard to Ricky Simpson‟s testimony, he clarified on cross-examination that he only
glimpsed at the petitioner briefly and that what he interpreted as laughing could have
been some other facial expression. The post-conviction court found that the testimony of
EMT Harris and Paramedic Leath was “probative” to show the extent of the injuries to
Mr. Gordon and Mr. Hopper and to establish that their deaths were the result of the
injuries and not intervening medical care. The post-conviction court also found that
although the testimony of Dr. James and Dr. Sutton was “gruesome,” the testimony was
relevant to establish the cause of death and the extent of Mr. Hopper‟s injuries. With
regard to Agent Ferguson‟s testimony, the post-conviction court found that her statements
were not improperly inflammatory or prejudicial given the severity of the injuries and the
number of casualties. The evidence does not preponderate against the post-conviction
court‟s findings. The petitioner has failed to establish that trial counsel were deficient or
that any deficiency resulted in prejudice.
d. Prejudicial, Cumulative Testimony
The petitioner submits that trial counsel were ineffective in failing to object to
cumulative testimony regarding the scene of the crow‟s nest following the shootings, the
victims‟ injuries, and the descriptions of the shootings over police radio dispatch. The
petitioner, however, failed to specify in his brief the testimony that he claims was
objectionable. He also failed to question trial counsel at the evidentiary hearing about
their failure to object to the testimony. In denying the claim, the post-conviction court
found:
The state was entitled to present evidence from each of the eye-
witnesses and first responders. The observations of the witnesses were
critical to the state‟s case and probative of the issues of identity and state of
mind. Additionally, . . . testimony regarding the injuries sustained by the
victims was relevant to establishing cause of death or the elements of the
offense. Finally, the description of the offense as received from police
dispatch was relevant to demonstrate why each of the responding officers
took certain actions. Thus, even if counsel were somehow deficient in this
regard, the court finds petitioner has failed to demonstrate he was
prejudiced by counsel[‟s] alleged deficiencies and finds petitioner is not
entitled to relief based upon this claim.
We conclude that trial counsel were not deficient in failing to object to the testimony and
that any deficiency did not result in prejudice.
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e. Improper Ballistics Testimony
The petitioner maintains that trial counsel were ineffective in failing to object to
testimony from Dr. Staci Turner and Dr. Amy McMaster regarding ballistics. He argues
that Dr. Turner improperly testified concerning black talon bullets and the weapons used
to shoot them, the anatomy of a projectile, and whether fragments she recovered could
have been shot from a high velocity firearm. He also argues that Dr. McMaster‟s
testimony about the types and calibers of the bullets recovered was improper. The
petitioner asserts that while Dr. Turner was certified as an expert in pathology, forensic
pathology, and anatomical pathology and Dr. McMaster was certified as an expert in
forensic pathology, neither doctor was certified as an expert in ballistics.
The petitioner did not question trial counsel at the evidentiary hearing concerning
their failure to object to the testimony. Furthermore, this court has recognized that “[a]n
expert‟s qualification in one area will not necessarily preclude testimony concerning a
closely related subject.” State v. Pulliam, 950 S.W.2d 360, 364 (Tenn. Crim. App. 1996)
(citing Sotka v. State, 503 S.W.2d 212, 226 (Tenn. Crim. App. 1972)). Dr. McMaster
acknowledged that she was not an expert in firearms and identified the types and caliber
of bullets recovered as consistent with those she had observed in other cases. Finally,
TBI Agent Shelly Betts, the ballistics expert presented by the State, offered testimony
similar to that of Dr. Turner and Dr. McMaster. Thus, even if trial counsel were
deficient, such deficiency did not result in prejudice.
5. Failure to Properly Cross-Examine Witnesses
The petitioner avers that trial counsel were ineffective in failing to (1) fully cross-
examine Larry Taylor regarding Johnny Emerson‟s affair with Mrs. Jordan and (2)
confront Paul Forsythe with “discrepant testimony” from Sonny Grimm, who
accompanied Mr. Forsythe to the scene. The petitioner did not question trial counsel at
the evidentiary hearing regarding these claims. He also failed to present the testimony of
Mr. Taylor at the post-conviction hearing. Absent Mr. Taylor‟s testimony as to his
knowledge of the relationship between Mr. Emerson and Mrs. Jordan, we cannot
conclude that trial counsel was deficient in their cross-examination of Mr. Taylor. The
petitioner is not entitled to relief with regard to this claim.
The petitioner contends that after Mr. Forsythe testified that when the petitioner
pointed a gun at Mr. Gordon, Mr. Gordon raised his hands and attempted to plead for his
life, trial counsel should have confronted Mr. Forsythe on cross-examination with Mr.
Grimm‟s statement that Mr. Gordon did not gesture or speak to the petitioner before he
was shot. As noted by the post-conviction court, on cross-examination, Mr. Forsythe
acknowledged that when he gave a statement to the police on the day of the shootings, he
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did not mention Mr. Gordon‟s saying anything to the petitioner. Accordingly, any
deficiency by trial counsel did not result in prejudice.
K. Failure to File a Motion to Suppress the Petitioner’s Statements to the Police
The petitioner faults trial counsel for failing to seek to suppress his statements to
the police as involuntary. According to the petitioner, his intoxication, prescription drug
use, addiction, and sleep deprivation were factors affecting the voluntariness of his
statements, and trial counsel could have challenged the statements as involuntary had
they retained the appropriate experts and conducted an adequate investigation into his
intoxication.
At trial, Sergeant Johnny Briley of the Tennessee Highway Patrol testified that he
arrived at the scene of the petitioner‟s arrest as two officers were placing handcuffs on
the petitioner. Sergeant Briley said the petitioner stated, “She f***** me over, Johnny.”
Sergeant Briley replied, “No, she didn‟t, David.” The petitioner said, “Yes, she did. She
f***** me over.” Sergeant Briley stated, “No, David, you f***** up.”
The petitioner was then placed in a patrol car with Officer Rodney Anderson and
Officer Tikal Greer and transported to the jail. Officer Anderson testified that the
petitioner spontaneously told them that
he could have cut the police in half with his weapon, that he had full auto.
He stated that his wife‟s dead and she‟s full of holes. He stated she drove
him crazy . . . by f****** around on him, and he advised that he shot her
with her brother‟s gun. He also stated that he feels sorry for his daughters,
and that Mrs. Jordan wouldn‟t be f****** around on anybody else.
The petitioner said the other people “just got in the way” and asked how many people
were hurt. He also said that his wife “hurt him and tore his heart out” and that he had
been “going crazy” for a month.
In explaining why he did not file a motion to suppress the petitioner‟s statements
to the police, lead counsel testified that he believed the statements were voluntary. The
post-conviction court found that the petitioner was in custody when he made the
statements and that he was not advised of his Miranda rights prior to making the
statements. The court also found that the petitioner‟s statements were “spontaneous” and
were not the result of police interrogation. The court concluded that, as a result, the
statements were not given in violation of Miranda. The post-conviction court did not
address the petitioner‟s claim that the statements were otherwise involuntary.
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The voluntariness test is grounded in both the Fifth Amendment and the Due
Process Clause of the Fourteenth Amendment and recognizes that coerced confessions
are inherently unreliable. Dickerson v. United States, 530 U.S. 428, 433 (2000); State v.
Climer, 400 S.W.3d 537, 567-68 (Tenn. 2013). The voluntariness test is distinct from
Miranda. Dickerson, 530 U.S. at 434-35; Climer, 400 S.W.3d at 568. While Miranda
“asks whether a suspect received certain warnings and knowingly and voluntarily waived
certain rights, . . . the essential inquiry under the voluntariness test is whether a suspect‟s
will was overborne so as to render the confession a product of coercion.” Climer, 400
S.W.3d at 568 (citing Dickerson, 530 U.S. at 433-35; State v. Smith, 933 S.W.2d 450,
455 (Tenn. 1996)). “„Statements and confessions not made as a result of custodial
interrogations must also be voluntary to be admissible.‟” State v. Tyler James Reed, No.
M2012-02542-CCA-R3-CD, 2013 WL 6123155, at *11 (Tenn. Crim. App. Nov. 20,
2013), perm. app. denied (Tenn. Apr. 14, 2014) (quoting State v. Thacker, 164 S.W.3d
208, 248 (Tenn. 2005)).
Voluntariness must be determined upon examining the totality of the
circumstances surrounding the giving of a confession, “„both the characteristics of the
accused and the details of the interrogation.‟” Climer, 400 S.W.3d at 568 (quoting
Dickerson, 530 U.S. at 434). Circumstances relevant to this determination include:
[T]he age of the accused; his lack of education or his intelligence level; the
extent of his previous experience with the police; the repeated and
prolonged nature of the questioning; the length of the detention of the
accused before he gave the statement in question; the lack of any advice to
the accused of his constitutional rights; whether there was an unnecessary
delay in bringing him before a magistrate before he gave the confession;
whether the accused was injured[,] intoxicated[,] or drugged, or in ill health
when he gave the statement; whether the accused was deprived of food,
sleep[,] or medical attention; whether the accused was physically abused;
and whether the suspect was threatened with abuse.
Id. (citations omitted).
While the petitioner presented various mental health experts at the evidentiary
hearing to testify regarding his mental state and intoxication at the time of the shootings,
none of these experts specifically addressed the effect of his mental state and intoxication
on his ability to make voluntary statements to the police. As a result, the petitioner has
not demonstrated that his statements were involuntary due to intoxication and mental
health problems. Rather, the evidence presented established that shortly after his arrest,
the petitioner made spontaneous statements to police officers. These statements were not
made as a result of any interrogation or coercion by the officers. The petitioner has failed
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to establish that these statements were involuntary. Accordingly, the petitioner has failed
to demonstrate that had trial counsel sought to suppress these statements, the motion to
suppress would have been granted.
We also conclude that the petitioner has failed to demonstrate that his statements
were involuntary. The post-conviction court found that despite the testimony of various
experts regarding the petitioner‟s mental state, “it appears, based upon [Investigator]
Miller‟s observations, petitioner was able to understand the warnings provided him and
was capable of waiving his rights and speaking to police about the events surrounding the
murders.” The post-conviction court noted that Investigator Miller testified that he did
not believe the petitioner was intoxicated when he made the statements, and the petitioner
denied that he was under the influence of drugs or alcohol at the time. The court also
noted that Investigator Miller said the petitioner was steady on his feet, was able to
answer questions, appeared “very coherent,” and was able to sign the waiver of rights
form and his statement. The evidence does not preponderate against the post-conviction
court‟s findings. The petitioner is not entitled to relief with regard to this issue.
L. Failure to File Motion to Suppress Evidence
Obtained During the Search of Petitioner’s Home
The petitioner contends that trial counsel were ineffective in failing to challenge
the initial warrantless entry into his home following his arrest during which officers
discovered a pistol and the letter written by the petitioner. At trial, Sergeant Chad
Lowery of the Madison County Sheriff‟s Department testified that shortly after the
petitioner was apprehended, he was instructed to go to the petitioner‟s home to “check
the welfare of some children that might have possibly been in the home.” While looking
for any children in the home, Sergeant Lowery saw a handwritten note on the kitchen
counter, a gun on top of the refrigerator, and several other firearms in the house.
Lead counsel testified that he did not believe that a legal basis to challenge the
search existed. The post-conviction court found that the initial entry was based on
exigent circumstances. The court noted that no one could account for the petitioner‟s
children at that time and that the police entered the residence to determine the welfare of
the children. The court found that the evidence was in plain view of the officer.
The United States Constitution and the Tennessee Constitution prohibit
unreasonable searches and seizures. U.S. Const. amend. IV; Tenn. Const. art. I, §7.
Generally, law enforcement officers cannot conduct a search without first obtaining a
valid warrant. California v. Carney, 471 U.S. 386, 390 (1985); R.D.S. v. State, 245
S.W.3d 356, 365 (Tenn. 2008). One of the exceptions to the requirement of a search
warrant is probable cause to search with exigent circumstances. See State v. Meeks, 262
109
S.W.3d 710, 722 (Tenn. 2008); State v. Brock, 327 S.W.3d 645, 681 (Tenn. Crim. App.
2009). The petitioner does not assert that the officer lacked probable cause to enter the
home. Rather, he maintains that there were no exigent circumstances justifying the entry.
Exigent circumstances arise where “„the needs of law enforcement [are] so
compelling that the warrantless search is objectively reasonable under the Fourth
Amendment.‟” Meeks, 262 S.W.3d at 723 (quoting Brigham City, Utah v. Stuart, 547
U.S. 398, 403 (2006)). Circumstances that have been found to be sufficiently exigent to
render a warrantless search of a home reasonably include, but are not limited to: “(1)
hot-pursuit, (2) to thwart escape, (3) to prevent the imminent destruction of evidence, (4)
in response to an immediate risk of serious harm to the police officers or others, and (5)
to render emergency aid to an injured person or to protect a person from imminent
injury.” Id. (citations omitted). In determining the constitutionality of a warrantless
search, courts must examine whether “the circumstances give rise to an objectively
reasonable belief that there was a compelling need to act and insufficient time to obtain a
warrant.” Id. Courts must evaluate the exigency of the circumstances based upon the
totality of the circumstances known to the officer at the time of the entry. Id. The
circumstances must be viewed objectively, and the officer‟s subjective intent is
irrelevant. Id. “Where the asserted ground of exigency is risk to the safety of the officers
or others, the governmental actors must have an objectively reasonable basis for
concluding that there is an immediate need to act to protect themselves and others from
serious harm.” Id. at 724.
The petitioner did not present any evidence at the post-conviction hearing to
support his claim that had trial counsel challenged the initial warrantless entry into the
home, the motion to suppress would have been granted. Rather, the limited evidence of
the circumstances surrounding the initial warrantless entry that was presented at trial
established that after the petitioner was apprehended for shooting multiple people,
including his wife, officers learned that children were living in the petitioner‟s home, and
no one could account for the petitioner‟s children. Given the petitioner‟s actions, the
officers‟ concern for the safety of the children was reasonable. Accordingly, exigent
circumstances justified the officer‟s initial warrantless entry into the petitioner‟s home.
The petitioner does not challenge the post-conviction court‟s finding that the items were
in the officer‟s plain view. We conclude that had trial counsel filed a motion to suppress
the evidence discovered during the initial entry into the petitioner‟s home, the motion
would have been denied.
M. Failure to File Various Discovery and Evidentiary Motions
The petitioner maintains that trial counsel were ineffective in failing to challenge
Dr. Matthews‟ “long, irrelevant, prejudicial narrations.” In his brief, the petitioner does
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not identify the testimony to which he claims trial counsel should have objected and does
not state how the testimony was irrelevant or prejudicial. Accordingly, this issue is
waived. See Tenn. Ct. Crim. App. R. 10(b) (“Issues which are not supported by
argument, citation to authorities, or appropriate references to the record will be treated as
waived in this court.”).
The petitioner faults trial counsel for not filing a motion challenging the expert
testimony of Dr. Matthews as failing to meet the criteria for admissibility of expert
testimony set forth in McDaniel v. CSX Transp., Inc., 955 S.W.2d 257 (Tenn. 1997) and
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). The admission of
expert testimony is governed by Tennessee Rules of Evidence 702 and 703. Rule 702
provides:
If scientific, technical, or other specialized knowledge will substantially
assist the trier of fact to understand the evidence or to determine a fact in
issue, a witness qualified as an expert by knowledge, skill, experience,
training, or education may testify in the form of an opinion or otherwise.
Tenn. R. Evid. 702. Rule 703 provides:
The facts or data in the particular case upon which an expert bases
an opinion or inference may be those perceived by or made known to the
expert at or before the hearing. If of a type reasonably relied upon by
experts in the particular field in forming opinions or inferences upon the
subject, the facts or data need not be admissible in evidence. Facts or data
that are otherwise inadmissible shall not be disclosed to the jury by the
proponent of the opinion or inference unless the court determines that their
probative value in assisting the jury to evaluate the expert‟s opinion
substantially outweighs their prejudicial effect. The court shall disallow
testimony in the form of an opinion or inference if the underlying facts or
data indicate lack of trustworthiness.
Tenn. R. Evid. 703. Expert testimony also must be relevant. Evidence is relevant if it
has “any tendency to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it would be without the
evidence.” Tenn. R. Evid. 401.
In McDaniel, the Tennessee Supreme Court adopted a non-exclusive list of factors
for courts to consider when determining the reliability of expert testimony:
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(1) whether scientific evidence has been tested and the methodology with
which it has been tested; (2) whether the evidence has been subjected to
peer review or publication; (3) whether a potential rate of error is known;
(4) whether . . . the evidence is generally accepted in the scientific
community; and (5) whether the expert‟s research in the field has been
conducted independent of litigation.
955 S.W.2d at 265. In exercising its gatekeeping function, the trial court must ensure that
“„an expert, whether basing testimony upon professional studies or personal experience,
employs in the courtroom the same level of intellectual rigor that characterizes the
practice of an expert in the relevant field.‟” Brown v. Crown Equip. Corp., 181 S.W.3d
268, 275 (Tenn. 2005) (quoting Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999)
(holding that a trial court may consider the factors set forth in Daubert, 509 U.S. at 593-
94, in assessing the reliability of nonscientific expert testimony in accordance with the
Federal Rules of Evidence)).
During the evidentiary hearing, post-conviction counsel questioned Dr. Martell
regarding the “forensic behavioral analysis,” the method employed by both Dr. Matthews
and Dr. Martell in evaluating the petitioner. This method assesses a person‟s mental
capacity through an analysis of his or her behavior at the time of the offense. Dr. Martell
testified that he believed a detailed reconstruction of a defendant‟s behavior before,
during, and after the offense was “standard forensic practice.” He did not believe that the
method was taught only by his mentor, Dr. Park Dietz. Dr. Martell did not know whether
the method was taught in graduate school, but he employed the method as part of his
post-doctoral training. He also had trained others on the method. Post-conviction
counsel objected to Dr. Martell‟s testimony based upon the criteria set forth in McDaniel
and Daubert. The post-conviction court found that Dr. Martell was qualified to render an
opinion and stated that the petitioner could explore the issue further as part of
“impeachment.” In its order, the post-conviction court also found no basis upon which
trial counsel could have challenged Dr. Matthews‟ testimony.
The petitioner contends that the “forensic behavioral analysis” fails to meet the
criteria set forth in McDaniel. He argues that the method “has not been tested; it has not
been subjected to peer review or publication; no potential rate of error is known; this
methodology is not generally accepted in the scientific community; and the methodology
was not developed independent of litigation.” However, the McDaniel factors need not
be applied rigidly. State v. Copeland, 226 S.W.3d 287, 302 (Tenn. 2007); Brown, 181
S.W.3d at 277. Rather,
[t]he reasonableness of the McDaniel factors in assessing reliability
depends upon the nature of the issue, the witness‟s particular expertise, and
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the subject of the expert‟s testimony. The McDaniel factors may apply,
subject to the trial court‟s discretion, when they are reasonable measures of
the reliability of the expert testimony.
Id. (citations omitted).
At trial, Dr. Matthews testified that he was a forensic psychiatrist and was board
certified in forensic psychiatry. Dr. Matthews explained that while psychiatry involves
the diagnosis and treatment of mental diseases, forensic psychiatry is a “sub-specialty of
psychiatry that exists for the purpose of answering questions that the legal system asks.”
Dr. Matthews was on the faculty at several universities and has been practicing forensic
psychiatry since 1981. He conducted forensic evaluations for the United States Army
and taught forensic psychiatry to the physicians at Trippler Army Medical Center. He
served as an examiner with the American Board of Psychiatry and Neurology to
determine whether young psychiatrists were qualified to practice psychiatry and forensic
psychiatry. He also served on the committee that determines the standards for practicing
forensic psychiatry and drafts the certifying examination and was involved in
determining the standards for court-appointed psychiatrists and psychologists in Hawaii
and Arkansas. He was a member of the American Academy of Psychiatry and the Law,
the primary professional organization in forensic psychiatry. He had written one or two
books, chapters in other books, and numerous journal articles. Dr. Matthews had served
as a court-appointed expert and had been retained by both the prosecution and the defense
in numerous cases. He had been qualified as an expert in forensic psychiatry and had
testified in 100 to 200 cases.
Dr. Matthews interviewed the petitioner and reviewed various documents, police
reports, and statements. He met with the petitioner for approximately six hours and
conducted a mental status examination. Based upon his review of the records, his
interview with the petitioner, and the application of the “forensic behavioral analysis,”
Dr. Matthews rendered an opinion regarding the petitioner‟s mental state at the time of
the offenses.
While the petitioner bases his claims on Dr. Logan‟s testimony, Dr. Logan
acknowledged that he was an experimental psychologist and was not qualified in the field
of forensic psychology. Rather, Dr. Martell testified that the method employed was
generally accepted in the field of forensic psychiatry and that he employed the same
method in evaluating the petitioner for purposes of the post-conviction hearing. As Dr.
Matthews explained at trial, the purpose of forensic psychiatry is to answer questions
posed by the legal system. Thus, the McDaniel factor requiring an examination of
whether the research had been conducted independent of litigation is not a reasonable
measure of the reliability of Dr. Matthews‟ testimony. See Brown, 181 S.W.3d at 277.
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Rather, we conclude that Dr. Matthews employed in the courtroom “the same level of
intellectual rigor that characterizes the practice of an expert” in the field of forensic
psychiatry. Id. at 275. The post-conviction court properly found that trial counsel had no
basis on which to challenge the admissibility of Dr. Matthews‟ testimony. The petitioner
is not entitled to relief with regard to this issue.
The petitioner asserts that trial counsel were ineffective in failing to file a motion
to limit the size of the crime scene photographs and request that they be displayed in
black and white rather than in color. The petitioner, however, failed to question trial
counsel at the evidentiary hearing regarding their failure to file such a motion. As noted
by the post-conviction court, trial counsel were able to prevent some crime scene
photographs from being admitted at trial. Even if trial counsel were deficient, the
petitioner has failed to demonstrate a reasonable probability that, but for the deficiency,
the result of the proceedings would have been different.
The petitioner maintains that trial counsel were ineffective in failing to file a
motion seeking treatment and preservation of his mental health. According to the
petitioner, trial counsel should have sought appropriate psychiatric and medical care for
him while he was incarcerated awaiting trial and during trial. In denying the claim, the
post-conviction court found as follows:
On March 8, 2005, approximately two months after his arrest,
petitioner was evaluated by Dr. Winston of Pathways Clinic and found to
be competent to proceed to trial. The report indicates jailers at the . . . [j]ail
informed Dr. Winston petitioner‟s behavior was normal. Dr. Winston
further reported petitioner understood the role of the judge, prosecuting
attorney, jury and witnesses. Dr. Winston states petitioner was aware of the
nature of the charges pending against him and was aware of the
consequences of his actions and the possible penalties he faced. Dr.
Winston reported petitioner denied having hallucinations or delusions and
petitioner indicated he was eating well and sleeping well and felt his energy
level was good and denied having any suicidal ideation. . . . This court
further notes, during this time petitioner was also being evaluated by Dr.
Caruso and Dr. Wilson; thus, this court does not find counsel were
ineffective in failing to move the court to provide additional psychiatric and
medical care to petitioner while he awaited trial.
The evidence does not preponderate against the findings of the post-conviction court.
The petitioner is not entitled to relief with regard to this issue.
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N. Failure to Seek Jury Instructions
The petitioner faults trial counsel for failing to request jury instructions during the
penalty phase for the following mitigating circumstances: residual doubt as to mental
state, mental disorders, neuropsychological impairments, sleep disorder and deprivation,
adverse social history, history of depression and anxiety disorders, panic attacks, head
trauma, drug-induced psychosis, headaches, and chronic pain. During the penalty phase,
the trial court instructed the jury as to the following mitigating circumstances:
Tennessee law provides that in arriving at the punishment, the jury shall
consider . . . any mitigating circumstances raised by the evidence which
shall include but are not limited to the following:
Number 1: The murder was committed while the [petitioner] was
under the influence of extreme mental or emotional disturbance.
Number 2: The capacity of the [petitioner] to appreciate the
wrongfulness of his conduct or to conform his conduct to the requirements
of the law was substantially impaired as a result of mental disease or defect
or intoxication which was insufficient to establish a defense to the crime
but which substantially affected his judgment.
Number 3: The [petitioner] has adjusted well to the structure of
prison life.
Number 4: The [petitioner] has expressed remorse, has accepted
responsibility for his actions and is willing to accept punishment for his
crimes.
Number 5: The [petitioner] has a loving and supportive family.
Number 6: Any other mitigating factor which is raised by the
evidence produced by either the prosecution or defense at either the guilt or
sentencing hearing. That is, you shall consider any aspect of the
[petitioner‟s] character or record or any aspect of the circumstances of the
offense favorable to the [petitioner] which is supported by the evidence.
Jordan, 325 S.W.3d at 36 (citing Tenn. Code Ann. § 39-13-204(j)(2), (8), (9)). In light of
the mitigating circumstances instructed by the trial court to the jury, we cannot conclude
that trial counsel were deficient in failing to request the additional mitigating
circumstances or that any deficiency resulted in prejudice.
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O. Failure to Develop and Present Evidence of Disproportionality
The petitioner submits that trial counsel were ineffective in failing to develop and
present evidence of disproportionality of his death sentences in the trial court and in
presenting only a limited argument regarding disproportionality on appeal. He further
submits that his death sentences are disproportionate given his cognitive impairments,
mental illness, intoxication at the time of the offenses, and inability to premeditate the
offenses. Both the Tennessee Supreme Court and this court thoroughly analyzed the
issue of proportionality on direct appeal and concluded that the petitioner‟s death
sentences were not disproportionate to the penalty imposed for similar crimes. See
Jordan, 325 S.W.3d at 76-79; David Lynn Jordan, 2009 WL 1607902, at *47-51. The
petitioner has failed to establish that any additional evidence or argument would have
resulted in a different conclusion and, therefore, is not entitled to relief regarding this
issue.
II. Venue in Madison County
The petitioner asserts that the trial court erred in failing to change the venue of the
trial from Madison County sua sponte due to the extent of the publicity and the impact of
the shootings on the community. The petitioner further asserts that the failure to change
the venue violated his rights to a fair trial and to due process. This issue is waived due to
the petitioner‟s failure to raise the claim on direct appeal. See Tenn. Code Ann. § 40-30-
106(g) (A ground for post-conviction relief is waived “if the petitioner personally or
through an attorney failed to present it for determination in any proceeding before a court
of competent jurisdiction in which the ground could have been presented.”).
III. Prosecutorial Misconduct
The petitioner maintains that the State committed prosecutorial misconduct by
destroying his blood and urine samples without prior notice to the defense and cites to
State v. Ferguson, 2 S.W.3d 912 (Tenn. 1999), to support his claim. Trial counsel raised
this issue on direct appeal, and this court held that the petitioner was not entitled to relief
on the claim. See David Lynn Jordan, 2009 WL 1607902, at *34-35. As a result, the
post-conviction court found that the claim was previously determined.
Tennessee Code Annotated section 40-30-106(h) provides:
A ground for relief is previously determined if a court of competent
jurisdiction has ruled on the merits after a full and fair hearing. A full and
fair hearing has occurred where the petitioner is afforded the opportunity to
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call witnesses and otherwise present evidence, regardless of whether the
petitioner actually introduced any evidence.
A claim that is previously determined cannot form a basis for post-conviction
relief. Cauthern v. State, 145 S.W.3d 571, 599 (Tenn. Crim. App. 2004). The petitioner
maintains that due process concerns overcome the bar on previously determined issues
and invoke the exceptions of the law of the case doctrine in urging this court to
reconsider the Ferguson issue. The petitioner asserts that the evidence pertaining to the
issue of the destruction of the samples presented during the post-conviction hearing was
substantially different than the evidence presented by trial counsel in the trial court
because trial counsel were ineffective in discovering and presenting the evidence.
“[U]nder the law of the case doctrine, an appellate court‟s decision on an issue of
law is binding in later trials and appeals of the same case if the facts on the second trial or
appeal are substantially the same as the facts in the first trial or appeal.” Memphis Publ‟g
Co. v. Tenn. Petroleum Underground Storage Tank Bd., 975 S.W.2d 303, 306 (Tenn.
1998). The law of the case doctrine is not a constitutional mandate but a “longstanding
discretionary rule of judicial practice which is based on the common sense recognition
that issues previously litigated and decided by a court of competent jurisdiction ordinarily
need not be revisited.” Id. There are three “limited circumstances” that may justify a
departure from the law of the case doctrine and subsequent reconsideration of an issue
decided in a previous appeal:
(1) the evidence offered at a trial or hearing after remand was substantially
different from the evidence in the initial proceeding; (2) the prior ruling
was clearly erroneous and would result in a manifest injustice if allowed to
stand; or (3) the prior decision is contrary to a change in the controlling law
which has occurred between the first and second appeal.
Id.
“No Tennessee court has yet invoked the law of the case doctrine‟s exceptions,
however, to support reconsideration of a previously determined issue in the post-
conviction context.” William G. Allen v. State, No. M2009-02151-CCA-R3-PC, 2011
WL 1601587, at *8 (Tenn. Crim. App. Apr. 26, 2011), perm. app. denied (Tenn. Aug. 25,
2011). “A petitioner may not relitigate a previously determined issue by presenting
additional factual allegations.” Cone v. State, 927 S.W.2d 579, 582 (Tenn. Crim. App.
1995); see Phedrek T. Davis v. State, M2009-01616-CCA-R3-PC, 2010 WL 1947379, at
*2 (Tenn. Crim. App. May 14, 2010), perm. app. denied (Tenn. Nov. 10, 2010). “To
allow for a wider conception of a previously determined claim would violate a
fundamental rule of post-conviction proceedings: relitigating decided legal questions.”
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Phedrek T. Davis, 2010 WL 1947379, at *2 (citing Ray v. State, 489 S.W.2d 849, 851
(Tenn. Crim. App. 1971)). Because the Ferguson issue was previously raised by trial
counsel and addressed by this court on direct appeal, the claim is previously determined
and cannot serve as a basis for post-conviction relief.
The petitioner next contends that trial counsel were ineffective in presenting the
Ferguson issue in the trial court and on appeal. In light of this court‟s analysis of the
issue on direct appeal, the petitioner has failed to establish that trial counsel were
deficient in failing to present additional evidence to support the Ferguson claim or that
that any deficiency resulted in prejudice. The petitioner is not entitled to relief regarding
this claim.
In a footnote, the petitioner contends that the State suppressed the underlying
records of the data from the testing of his urine and blood samples by the TBI Crime
Laboratory and cites to Brady v. Maryland, 373 U.S. 83 (1963). The petitioner failed to
develop any argument in his brief regarding how the elements of the Brady claim are
satisfied. The only citation to the record that the petitioner included to support his claim
was Dr. Lipman‟s report. Accordingly, this issue is waived. See Tenn. Ct. Crim. App. R.
10(b) (“Issues which are not supported by argument, citation to authorities, or appropriate
references to the record will be treated as waived in this court.”).
IV. Selection of Grand Jury
The petitioner submits that his conviction was the product of an unconstitutionally
selected and impaneled grand jury due to race and gender discrimination. He avers that
the State is precluded from raising the issue of waiver in this appeal because the State
failed to argue waiver of this issue in the post-conviction court. Regardless of waiver, we
note that “the method of selection of the grand jury foreperson is relevant only to the
extent that it affects the racial composition of the entire grand jury.” Bondurant, 4
S.W.3d at 675. As the post-conviction court found, the petitioner failed to present any
evidence establishing the composition of the grand jury as a whole or the systematic
exclusion of minorities or other cognizable groups. The petitioner is not entitled to relief
regarding this issue.
V. Denial of Continuance
The petitioner contends that the post-conviction court erred in denying his motion
to continue the evidentiary hearing. He maintains that after the post-conviction court
granted the State‟s motion to continue the hearing, original post-conviction counsel left
the Office of the Post-Conviction Defender and that replacement counsel were
inadequately prepared to represent him during the hearing. The petitioner also maintains
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that the post-conviction court‟s denial of a continuance constituted a denial of due
process.
On June 17, 2011, the petitioner filed a pro se petition for post-conviction relief in
which he stated that Bradley A. MacLean, an assistant post-conviction defender, assisted
him in preparing the petition. On June 20, the post-conviction court entered a
preliminary order appointing the Office of the Post-Conviction Defender to represent the
petitioner. The court ordered the petitioner to file an amended petition within thirty days
and scheduled the evidentiary hearing for October 31 through November 2, 2011. The
petitioner filed multiple motions requesting extensions of time in which to file an
amended petition and continuances of the evidentiary hearing. The petitioner filed an
amended petition on February 15, 2012, and the evidentiary hearing was scheduled for
August 27 through August 31, 2012. Prior to the evidentiary hearing, the petitioner filed
a motion to recuse the post-conviction judge, and the judge granted the motion. A new
judge was appointed to hear the case, and the evidentiary hearing was rescheduled to
June 18 through June 21, 2013.
On May 24, 2013, the State filed a motion to continue the evidentiary hearing
stating that the prosecutor recently learned that the State‟s expert in forensic
pharmacology was under investigation for improper drug abuse. The State said that
while the prosecutor had recently contacted Dr. Glynn Farr, Dr. Farr was unavailable on
the dates of the hearing and the District Attorney‟s Conference had not yet approved
funding to retain Dr. Farr. The petitioner filed a response in opposition to the State‟s
motion. He stated that Bradley MacLean and Avram Frey, the only attorneys from the
Office of the Post-Conviction Defender‟s Office who had been involved in the case, were
leaving the office effective June 30, 2013. The petitioner argued that due to understaffing
at the office, new counsel would require “potentially a year or more” to prepare for a
hearing. Following a telephonic hearing, the post-conviction court granted the State‟s
motion and set the hearing for May 12 through May 16, 2014, almost one year later.
Other counsel for the Post-Conviction Defender‟s Office was subsequently assigned to
the petitioner‟s case.
On April 7, 2014, the petitioner filed a supplemental amended petition for post-
conviction relief and a motion to continue the evidentiary hearing. Counsel argued that
due to staffing issues and counsel‟s caseload, additional time was needed to prepare for
the hearing. Counsel further stated that Franklin Wells, an attorney expert witness, was
unavailable for one of the hearing dates. The petitioner stated that in August 2013,
following the departure of Mr. MacLean and Mr. Frey, attorney Sarah King was assigned
to the petitioner and attorney Kelly Gleason was assigned as a supervisor. In October
2013, attorney Stacie Leiberman was assigned as co-counsel but left the office in January
2014. Ms. Gleason then was assigned as co-counsel. According to the petitioner,
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paralegal Rebecca Dodd and investigator Chris Pennell, both of whom were assigned to
the petitioner‟s case, resigned in January 2014 and February 2014, respectively.
On April 21, 2014, the post-conviction court entered an order denying the
petitioner‟s motion for a continuance. The court stated that during the hearing on the
State‟s motion for a continuance, Mr. MacLean informed the court that the investigation
of the petitioner‟s case had been completed, that all witnesses had been interviewed and
were ready to proceed, and that counsel were prepared to present the petitioner‟s proof.
The court noted that in granting the State‟s motion for a continuance, the court reset the
case for almost one year to allow new counsel to familiarize themselves with the
petitioner‟s case. The court found that lead counsel, Ms. King, was assigned the case in
August 2013 and had nine months to familiarize herself with the case and prepare for the
hearing. The court found counsel had adequate time to prepare for the hearing in light of
prior counsel‟s assertion that the investigation had been completed. The court stated that
Ms. Leiberman only served as co-counsel for three months before she resigned and that
as a result, she likely did not contribute substantially to the preparation of the petitioner‟s
case. The court found that given Ms. Gleason‟s role as supervisor since August 2013, she
had a working knowledge of the petitioner‟s case before she was assigned as co-counsel.
The court noted that should a continuance be granted, more staff changes could occur,
giving rise to a new claim for a continuance. The court stated that because “this case has
been pending for nearly three years, this court finds to become ensnared in a revolving
cycle of personnel changes and requests for further continuance[s] which could inevitably
result [in] further delay is an untenable position for both the court and the petitioner.”
The court further found that the absence of Mr. Wells for one day of hearings was
not sufficient cause for a continuance. The court stated that counsel could arrange the
presentation of the proof in such a way as to accommodate Mr. Wells‟s schedule and
ensure that he was present for the testimony that was most critical to rendering an expert
opinion. The court found that the “procedure [wa]s a fair compromise between the needs
of the expert, the needs of counsel, the right of petitioner to have this matter handled in a
timely manner and the needs of the court to advance this matter as required by Rule and
statute.”
On May 6, 2014, the petitioner filed another motion to continue the evidentiary
hearing. The petitioner alleged that a continuance was necessary due to (1) the
unavailability of Dr. Bronson, an expert in jury selection, and Skip Gant, an attorney
expert witness, (2) the need to interview Dr. Ferslew, the State‟s consulting toxicology
expert, (3) the petitioner‟s medical issues involving his back, and (4) the need for
additional expert services. During the evidentiary hearing on May 12, counsel requested
a continuance and stated that she was not prepared to proceed with the hearing. The post-
conviction court denied the motion.
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The decision to grant a motion for a continuance is left to the trial court‟s
discretion. State v. Russell, 10 S.W.3d 270, 275 (Tenn. Crim. App. 1999) (citing State v.
Melson, 638 S.W.2d 342, 359 (Tenn. 1982); Baxter v. State, 503 S.W.2d 226, 230 (Tenn.
Crim. App. 1973)). This court will not overturn the denial of a continuance unless the
trial court abused its discretion and the defendant was prejudiced by the denial. State v.
Thomas, 158 S.W.3d 361, 392 (Tenn. 2005). “An abuse of discretion is demonstrated by
showing that the failure to grant a continuance denied defendant a fair trial or that it could
be reasonably concluded that a different result would have followed had the continuance
been granted.” Id. (citing State v. Hines, 919 S.W.2d 573, 579 (Tenn. 1995)). “[A]
defendant who asserts that the denial of a continuance constitutes a denial of due process
or the right to counsel must establish actual prejudice.” State v. Odom, 137 S.W.3d 572,
589 (Tenn. 2004) (citing Morris v. Slappy, 461 U.S. 1, 11-12 (1983)).
We conclude that the post-conviction court did not abuse its discretion in denying
the petitioner‟s motion for a continuance. The case had been pending for almost three
years. When the post-conviction court granted the State‟s motion, it took into account the
fact that the petitioner would be assigned new counsel and continued the hearing for
almost one year to allow counsel time to prepare. At the time of the hearing, new counsel
had been assigned to the petitioner‟s case for approximately nine months, and prior
counsel had previously asserted that the investigation was complete. The post-conviction
court also granted the petitioner‟s counsel leeway in the presentation of their proof to
ensure the presence of the experts.
Following the conclusion of the proof on May 15, 2014, the post-conviction court
continued the hearing to June 30. The post-conviction court later continued the matter to
September 5, 2014, to allow the petitioner to secure the testimony of Dr. Bronson, the
expert in jury selection. During that time period, the petitioner was able to secure the
deposition testimony of Dr. Ferslew and Dr. Bronson. The petitioner has failed to
identify any evidence that he was unable to present at the post-conviction hearing as a
result of the post-conviction court‟s denial of a continuance. Therefore, the petitioner
also has failed to establish that the denial of the continuance resulted in prejudice.
VI. Allowing Trial Counsel to Assist the State
The petitioner contends that the post-conviction court erred in permitting trial
counsel to sit at the prosecutor‟s table and assist the State during the post-conviction
hearing. The petitioner further contends that trial counsel‟s actions violated the
petitioner‟s due process rights and trial counsel‟s ethical duty of loyalty and created an
appearance of impropriety and a conflict of interest.
121
Prior to the evidentiary hearing, the State requested an interview with trial counsel
regarding the petitioner‟s petition. Lead counsel sent a letter to the prosecutor requesting
that he seek court approval of the interview in light of American Bar Association (ABA)
formal ethics opinion 10-456, which addressed the role of prior counsel in post-
conviction matters and stated that “it is highly unlikely that a disclosure in response to a
prosecution request, prior to a court-supervised response by way of testimony or
otherwise, will be justifiable.” Lead counsel acknowledged that this ABA formal ethics
opinion seemed to differ from Tennessee case law and requested court approval of the
interview in light of the potential conflict and the serious nature of the case.
As a result, the State filed a motion seeking permission from the post-conviction
court to discuss the issues raised by the petitioner in his initial petition and amended
petition with trial counsel. The State argued that trial counsel were material witnesses for
the State and that disallowing the State to discuss the issues raised with trial counsel prior
to the hearing would deny the State the opportunity to fully develop the evidence that it
would use in defense of the issues raised in the petition. The petitioner filed a response in
opposition to the State‟s motion. The petitioner argued that even if an ineffective
assistance of counsel claim gave rise to an implied waiver of attorney-client confidences,
trial counsel‟s disclosures should be made only in a formal, judicial-supervised
proceeding, such as the evidentiary hearing where the State could examine trial counsel
and the petitioner‟s current counsel would be in a position to protect the petitioner‟s
rights. The petitioner further argued that to the extent that the post-conviction court
permits disclosure of privileged or confidential information, the court should enter a
protective order limiting the use of such information to the post-conviction proceeding
and prohibiting its use in any retrial or other proceeding.
Following a hearing, the post-conviction court entered an order on May 6, 2013,
finding that by claiming ineffective assistance of counsel, the petitioner waived attorney-
client privilege as it related to the allegations. The court also found that under Tennessee
case law and the applicable ethics rules, “pre-hearing unsupervised disclosure of
confidential attorney-client communications is allowed to the extent reasonably necessary
to defend against petitioner‟s claims of ineffective assistance of counsel.” The court
allowed trial counsel to discuss the issues with either party but declined to require trial
counsel to do so. The court denied the petitioner‟s motion for a protective order, finding
that it was not in the proper posture “to determine the appropriate prospective use of any
confidential communications which may be revealed during either pre-hearing meetings
with the parties or during the post-conviction hearing itself.”
On June 14, 2013, Tennessee Board of Professional Responsibility Formal Ethics
Opinion 2013-F-156 was released and addressed the issue of whether “a criminal defense
lawyer alleged by a former criminal client to have rendered ineffective assistance of
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counsel [may] voluntarily provide information to the prosecutor defending the claim
outside the court supervised setting.” The panel concluded that the Tennessee Rules of
Professional Conduct permit, but do not require, a criminal defense attorney to make
“limited voluntary disclosure to the prosecution of information relating to the
representation of the former client outside the in-court proceeding without judicial
supervision or approval.” The panel also concluded that such disclosure is limited only
to information “(1) which the lawyer reasonably believes necessary to respond to the
specific claims or allegations in the petition as required by RPC 1.6(b)(5) or (2) which
has become „generally known‟ as defined in RPC 1.9, cmt. [8a].”
On March 25, 2014, the State issued a letter to trial counsel agreeing that no
information revealed to the prosecution by trial counsel would be utilized in any retrial
unless the information was presented by the petitioner or his experts at the post-
conviction hearing or was in possession of the State or its agents prior to any discussion
with trial counsel.
Prior to the evidentiary hearing, the State requested that trial counsel be allowed to
remain with the State during the hearing as their representatives. The petitioner‟s counsel
objected and invoked the “rule of separation of witnesses.” The post-conviction court
granted the State‟s request and permitted trial counsel to sit at the table with the
prosecution. During co-counsel‟s testimony, the petitioner‟s counsel continued to object
and noted that lead counsel was sitting at the prosecutor‟s table and reviewing documents
with the prosecutor. The post-conviction court overruled the petitioner‟s objection.
While lead counsel was testifying, the petitioner‟s counsel noted for the record that co-
counsel was sitting at the prosecutor‟s table. The petitioner‟s counsel noted other
instances in the post-conviction hearing during which lead counsel sat with the
prosecutor.
Although the petitioner claims that trial counsel‟s presence and actions at the
evidentiary hearing violated his due process rights and trial counsel‟s ethical duty of
loyalty and created an appearance of impropriety and a conflict of interest, the petitioner
did not raise these issues in the post-conviction court. Rather, the petitioner objected
based upon “the rule of sequestration” provided in Tennessee Rule of Evidence 615.
Accordingly, the petitioner has waived these arguments by failing to raise them in the
post-conviction court. See Tenn. R. App. P. 36.
Regardless of waiver, the petitioner is not entitled to relief. This court has
recognized that “„[g]iven the special circumstances which arise in a post-conviction
proceeding in which a petitioner claims that his trial attorney was ineffective, it is entirely
reasonable to conclude that the trial attorney‟s presence would be essential for the
presentation of the state‟s case.‟” Palmer v. State, 108 S.W.3d 887, 898 (Tenn. Crim.
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Ohio App. 2002) (quoting State v. Jerome Brown, No. 03C01-9107-CR-00201, 1992 WL
259357, at *7 (Tenn. Crim. App. Oct. 7, 1992)). This court has repeatedly held that the
post-conviction court did not abuse its discretion in allowing trial counsel to remain in the
courtroom during a post-conviction hearing. See, e.g., Dameion Nolan v. State, No.
E2012-00429-CCA-R3-PC, 2013 WL 3353333, at *8 (Tenn. Crim. App. June 28, 2013),
perm. app. denied (Tenn. Feb. 21, 2014); Shavon Page v. State, No. E2012-00421-CCA-
R3-PC, 2013 WL 68904, at *9 (Tenn. Crim. App. Jan. 7, 2013); Kevin White v. State,
No. E2004-02986-CCA-R3-PC, 2005 WL 1981484, at *1 (Tenn. Crim. App. Aug. 12,
2005), perm. app. denied (Tenn. Dec. 5, 2005).
Furthermore, the petitioner does not challenge the post-conviction court‟s order
entered prior to the hearing permitting trial counsel to speak to the prosecutor regarding
the issues raised by the petitioner in his post-conviction petition outside of a formal
judicially-supervised proceeding. See also Bryan v. State, 848 S.W.2d 72, 80 (Tenn.
Crim. App. 1992) (holding that when a petitioner attacks the competency of trial counsel
in post-conviction proceedings, the attorney-client privilege “is viewed as waived
regarding the representation in issue”). The petitioner did not present any evidence
establishing what trial counsel and the prosecutor discussed during the post-conviction
hearing. Accordingly, the petitioner has failed to establish that the post-conviction court
erred in permitting trial counsel to remain in the courtroom and sit with the prosecutor
during the hearing or that the court‟s decision resulted in prejudice.
The petitioner appears to contend that trial counsel assisted the State prior to the
hearing by requesting court approval before trial counsel agreed to an interview. The
petitioner, however, did not raise this issue in the post-conviction court. Accordingly,
this argument is waived. See Tenn. R. App. P. 36.
VII. Exclusion of Expert Testimony
The petitioner asserts that the post-conviction court erred in excluding attorney
Franklin Wells as an expert witness. During the post-conviction hearing, the petitioner
tendered Mr. Wells, an attorney from Asheboro, North Carolina, as an expert in the
prevailing professional norms of representation of defendants in capital trials in the
United States. The post-conviction court allowed counsel to make an offer of proof
before deciding whether to accept Mr. Wells as an expert.
Mr. Wells testified that he graduated law school in 1985 and had tried twenty-six
to twenty-eight capital cases. Eight cases proceeded to the penalty phase, and one client
received the death penalty. Mr. Wells said he practiced law primarily in state and federal
district courts in North Carolina. Mr. Wells had attended national training sessions in
capital defense and had trained other attorneys in capital defense. He was familiar with
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case law from the United States Supreme Court on capital issues and with the American
Bar Association guidelines for representation in capital cases. Mr. Wells acknowledged
that he had not previously testified as an expert but stated he had submitted affidavits in a
“couple” of capital post-conviction cases and one noncapital post-conviction case in
North Carolina.
Mr. Wells opined that trial counsel were deficient in jury selection, their
presentation of a mental health defense, and their presentation of mitigation evidence. In
reaching his opinion, Mr. Wells reviewed the trial transcript and a summary of the trial
transcript; the opinions of Dr. Matthews, Dr. Caruso, Dr. Wilson, Dr. Martell, Dr. Farr,
Dr. Brown, Dr. Spica, Dr. Lipman, Dr. Smith, Dr. Bronson, and Skip Gant; the
petitioner‟s medical records; and the opinions from this court and the Tennessee Supreme
Court on direct appeal. Mr. Wells was present for the post-conviction testimony of trial
counsel and Ms. Shettles. Mr. Wells acknowledged that he did not review the files from
Inquisitor, Incorporated, in preparing for his testimony and was unaware that Ms. Shettles
had compiled two boxes of mitigation proof. Mr. Wells did not know what information
that Ms. Shettles had discovered in her investigation.
The post-conviction court found that Mr. Wells was not qualified as an expert due
to his failure to disclose his prior disciplinary action and his failure to review Ms.
Shettles‟ files, which the post-conviction court noted were critical to Mr. Wells‟s opinion.
The post-conviction court also found that Mr. Wells‟s testimony would not assist the trier
of fact. The court stated that it had previously presided over capital cases and did not
require the assistance of an expert attorney to aid in evaluating the petitioner‟s claims.
Questions about the qualifications, admissibility, relevancy, and competency of
expert testimony generally are left to the discretion of the trial court. State v. Howell,
185 S.W.3d 319, 337 (Tenn. 2006). We will not overturn a trial court‟s decision to admit
or exclude expert testimony unless the trial court abuses its discretion. Id. A trial court
abuses its discretion “by applying an incorrect legal standard or reaching an illogical or
unreasonable decision that causes the complaining party to suffer injustice.” Id.
Admissibility of expert testimony in Tennessee is governed in part by Tennessee
Rule of Evidence 702, which provides that “if scientific, technical, or other specialized
knowledge will substantially assist the trier of fact to understand the evidence or to
determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience,
training or education may testify in the form of an opinion or otherwise.” The
admissibility of expert testimony pursuant to Rule 702 is more stringent than under the
federal rule. Howell, 185 S.W.3d at 337. Federal Rule of Evidence 702 requires that the
testimony “assist the trier of fact,” while the Tennessee rule requires that the testimony
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“substantially assist the trier of fact.” Thus, “the probative force of the testimony must be
stronger before it is admitted in Tennessee.” McDaniel, 955 S.W.2d at 264.
The Tennessee Supreme Court addressed the issue of an attorney testifying as an
expert in post-conviction proceedings in Howell. The court concluded that the trial court
did not abuse its discretion by excluding such expert testimony based upon the trial
court‟s finding that it did not need the assistance of an expert to determine whether
counsel was ineffective and that the attorney‟s testimony would not substantially assist
the trier of fact. Howell, 185 S.W.3d at 338. Similar to the trial court in Howell, the
post-conviction court explained that it had previously presided over capital cases and did
not need the assistance of a legal expert to evaluate the petitioner‟s claims. As a result,
Mr. Wells‟s testimony would not have substantially assisted the trier of fact.
We conclude that the post-conviction court did not abuse its discretion in
excluding Mr. Wells as an expert witness. Because Mr. Wells‟s testimony did not meet
the requirements of Rule 702 of the Tennessee Rules of Evidence by substantially
assisting the trier of fact, we need not determine whether the post-conviction court erred
in finding that Mr. Wells was not qualified to serve as an expert witness.
VIII. Constitutionality of Tennessee’s Death Penalty Scheme
The petitioner raises multiple challenges to the constitutionality of Tennessee‟s
death penalty scheme. He asserts that Tennessee lacks statewide standards for pursuing
the death penalty in violation of his right to equal protection. The Tennessee Supreme
Court has rejected general challenges to the unlimited discretion to seek the death penalty
vested in prosecutors in this state. See State v. Thomas, 158 S.W.3d 361, 407 (Tenn.
2005); State v. Keen, 31 S.W.3d 196, 233 (Tenn. 2000) (Appendix). Moreover, this court
has concluded that Bush v. Gore, 531 U.S. 98 (2000), a voting rights case relied on by the
petitioner, does not apply in the context of a criminal prosecution. See Robert Faulkner
v. State, No. W2012-00612-CCA-R3-PD, 2014 WL 4267460, at *102 (Tenn. Crim. App.
Aug. 29, 2014). The petitioner is not entitled to relief on this issue.
The petitioner argues that the death penalty impinges on his fundamental right to
life and the prohibition against cruel and unusual punishment. The Tennessee Supreme
Court has rejected these claims. See, e.g., State v. Sexton, 368 S.W.3d 371, 427 (Tenn.
2012); State v. Kiser, 284 S.W.3d 227, 275-76 (Tenn. 2009).
The petitioner maintains that his death sentences were imposed in an arbitrary and
capricious manner in that:
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(1) No uniform standards or procedures for jury selection existed to ensure open
inquiry concerning potentially prejudicial subject matter. This argument has been
rejected. See State v. Caughron, 855 S.W.2d 526, 542 (Tenn. 1993).
(2) The death qualification process skewed the makeup of the jury and resulted in
a guilt-prone jury. This argument also has been rejected. See State v. Harbison, 704
S.W.2d 314, 318 (Tenn. 1986).
(3) The petitioner was prohibited from addressing each juror‟s misconceptions
about matters relevant to sentencing. Our supreme court has rejected this argument. See
State v. Brimmer, 876 S.W.2d 75, 87 (Tenn. 1994); State v. Cazes, 875 S.W.2d 253(Tenn. 1994).
(4) The petitioner was prohibited from presenting a final closing argument in the
penalty phase of the trial since only the State is permitted a rebuttal closing argument.
The Tennessee Supreme Court also has rejected this argument. See, e.g., State v. Sexton,
368 S.W.3d 371, 428 (Tenn. 2012).
(5) The jury was required to agree unanimously to a life verdict in violation of
Mills v. Maryland, 486 U.S. 367 (1988), and McKoy v. North Carolina, 494 U.S. 433(1990). This argument has been rejected. See State v. Hester, 324 S.W.3d 1, 77 (Tenn.
2010); Brimmer, 876 S.W.2d at 87.
(6) A reasonable likelihood exists that jurors believed that they were required to
unanimously agree as to the existence of mitigating circumstances because of the failure
to instruct the jury on the meaning and function of mitigating circumstances and because
the jury was not told the effect of a non-unanimous verdict. This argument also has been
rejected. See State v. Banks, 271 S.W.3d 90, 157 (Tenn. 2008); State v. Thompson, 768
S.W.2d 239, 251-52 (Tenn. 1989).
(7) The jury was not required to make the ultimate determination that death is the
appropriate penalty. Our supreme court has rejected this argument. Brimmer, 876
S.W.2d at 87.
The petitioner maintains that his rights under the federal and state constitutions
were violated because the aggravating factors making him eligible for the death penalty
were not included in the indictment and were not returned by the grand jury. “The
Tennessee Supreme Court has consistently rejected this argument by holding that
aggravating circumstances need not be pled in the indictment.” Banks, 271 S.W.3d at
167 (citing State v. Reid, 164 S.W.3d 286, 312 (Tenn. 2005); State v. Leach, 148 S.W.3d
42, 59 (Tenn. 2004); State v. Berry, 141 S.W.3d 549, 562 (Tenn. 2004); State v. Holton,
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126 S.W.3d 845, 863 (Tenn. 2004); State v. Dellinger, 79 S.W.3d 458, 467 (Tenn.
2002)). The supreme court has also repeatedly held “that the provisions of Rule 12.3
satisfy the constitutional requirements of notice” such that grand jury review is not
constitutionally required for death notices. Berry, 141 S.W.3d at 562 (citing Odom, 137
S.W.3d at 572 n.13; Dellinger, 79 S.W.3d at 467; State v. Bush, 942 S.W.2d 489, 520
(Tenn. 1997); State v. Johnson, 762 S.W.2d 110, 117 (Tenn. 1988)).
The petitioner argues that the appellate review process is not meaningful because
(1) the courts could not reweigh proof due to the absence of written findings concerning
mitigating circumstances; (2) the information relied upon for comparative review was
inadequate and incomplete; and (3) the methodology, in which only cases where a death
sentence was upheld are reviewed, is fundamentally flawed. The Tennessee Supreme
Court has rejected this claim. See Banks, 271 S.W.3d at 159.
Finally, the petitioner contends that Tennessee‟s current protocols for carrying out
executions are illegal under state and federal laws, including laws regarding the handling
of controlled substances. The post-conviction court found that because the Tennessee
Department of Correction promulgates execution protocols pursuant to Tennessee Code
Annotated section 40-23-114(c), any challenges to the protocol must first be undertaken
administratively through the TDOC grievance process and then via a lawsuit in the
Chancery Court for Davidson County pursuant to Tennessee Code Annotated section 4-5-
225. Furthermore, the petitioner has failed to present any evidence regarding the
protocols or otherwise meet his burden established in Glossip v. Gross, __ U.S. __, 135
S. Ct. 2726 (2015). The petitioner is not entitled to relief with regard to this issue.
IX. Proportionality
The petitioner requests that this court conduct another proportionality review
“given his cognitive impairments, mental illness, intoxication at the time of the offenses,
and inability to premeditate the offenses.” The Tennessee Supreme Court conducted a
proportionality analysis on direct appeal and concluded that the death penalties imposed
on the petitioner were “not excessive or disproportionate.” Jordan, 325 S.W.3d at 79. It
is well established that post-conviction proceedings may not be employed to raise and re-
litigate issues previously determined on direct appeal. See, e.g., Miller v. State, 54
S.W.3d 743, 747-48 (Tenn. 2001); see also Robert Faulkner, 2014 WL 4267460, at *85
(declining to conduct another proportionality review in light of evidence that the
petitioner presented during the post-conviction hearing regarding partial fetal alcohol
syndrome). The petitioner is not entitled to relief regarding this claim.
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X. Cumulative Error
The petitioner requests this court to consider the cumulative effect of the errors he
has alleged above in deciding whether to grant him relief in this post-conviction appeal.
Because we have found no single instance wherein trial counsel were deemed ineffective
or wherein the petitioner was otherwise denied his constitutional right to a fair and
impartial trial, there is no basis to conclude that any cumulative error resulted in an unfair
trial.
CONCLUSION
For the foregoing reasons, we conclude that the petitioner is not entitled to post-
conviction relief. Accordingly, we affirm the judgment of the post-conviction court.
_________________________________
ALAN E. GLENN, JUDGE
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