Murder for hire (Hired to kill)

Tennessee Reports

Unpublished

STEVENS v. STATE, M2005-00096-CCA-R3-PD (Tenn.Crim.App.
12-29-2006) WILLIAM R. STEVENS v. STATE OF TENNESSEE. No.
M2005-00096-CCA-R3-PD. Court Of Criminal Appeals Of
Tennessee, at Nashville. December 29, 2006.

[EDITOR’S NOTE: This case is unpublished as indicated by the
issuing court.] Appeal from the Criminal Court for Davidson
County No. 98-A-625 Steve R. Dozier, Judge.

The petitioner, William R. Stevens, appeals the judgment of
the Davidson County Criminal Court denying his petition for
post-conviction relief. He was convicted in 1999 of two
counts of first degree premeditated murder and one count of
especially aggravated robbery and sentenced to death for
the murder convictions. His convictions and death sentence
were affirmed by the Tennessee Supreme Court. See State v.
Stevens, 78 S.W.3d 817, 823 (Tenn. 2002), cert. denied, 537
U.S. 1115, 123 S. Ct. 873 (2003). On appeal, the petitioner
presents a number of issues: (1) the petitioner was denied
his right to due process and a fair hearing when the
post-conviction court refused to reset the evidentiary
hearing even though counsel had not had time to prepare;
(2) trial and appellate counsel were ineffective; (3) the
State committed prosecutorial misconduct during the
petitioner’s trial; (4) the trial court erred in refusing
to sequester prospective jurors during the jury selection
process; (5) the evidence is insufficient to support the
convictions; (6) imposition of a death sentence violates
the petitioner’s constitutional rights; and (7) the rights
of Dr. William Kenner were violated when he was not
properly compensated for services rendered in this matter.
Following our review, we affirm the judgment of the
post-conviction court.

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

ALAN E. GLENN, J., delivered the opinion of the court, in
which JOSEPH M. TIPTON, P.J., and J.S. DANIEL, SR. J.,
joined.

Paul J. Morrow, Jr., Deputy Post-Conviction Defender, and
Kelly A. Gleason, Assistant Post-Conviction Defender, for
the appellant, William R. Stevens.

Paul G. Summers, Attorney General and Reporter; Michael E.
Moore, Solicitor General; Mark E. Davidson, Assistant
Attorney General; Victor S. Johnson, III, District Attorney
General; and Thomas B. Thurman and Jon P. Seaborg,
Assistant District Attorneys General, for the appellee,
State of Tennessee.

ALAN E. GLENN, JUDGE.

OPINION

FACTS

The petitioner solicited his eighteen-year-old neighbor,
Corey Milliken, to kill his wife, Sandra (Sandi) Stevens,
and mother-in-law, Myrtle Wilson. In imposing the death
penalty, the jury found two aggravating circumstances:
prior violent felony and murder for hire. The proof, as set
forth in our supreme court’s decision on direct appeal,
established the following:

Guilt Phase

On December 22, 1997, police were dispatched to the
[petitioner’s] mobile home in Nashville in response to a
911 call made by the [petitioner] and eighteen year-old
Corey Milliken. When the police arrived, they found the
murdered bodies of forty-five year-old Sandra (Sandi) Jean
Stevens, the [petitioner]’s wife, and seventy-five
year-old Myrtle Wilson, the [petitioner]’s mother-in-law.
After further investigation, the police concluded that
Corey Milliken was hired by the [petitioner] to kill the
women and to make the murders look like they were
committed in furtherance of a burglary.

The record reveals that the [petitioner] and Milliken had
known each other for approximately one year. Milliken and
his then fifteen year-old brother, Shawn Austin, lived
with their mother and step-father three trailers down from
the [petitioner]. Both boys often worked for the
[petitioner], assisting him in his job of putting
underskirting on mobile homes. Austin testified at trial
that his brother had a close relationship with the
[petitioner] and that he and his brother spent a lot of
their free time at the [petitioner]’s trailer.

Austin testified that in the fall of 1997, the
[petitioner] approached both brothers and asked them if
they would kill the [petitioner]’s ex-wife, Vickie
Stevens. The [petitioner] instructed them to “get a rifle”
and shoot her when she came out of her trailer. He told
them that if she were dead, he would get full custody of
his then nine year-old son, John. He would also get “her
car, her trailer and her land.”

However, around Thanksgiving, the [petitioner] changed
his mind and offered to pay Milliken and Austin $2,500
apiece if they would instead kill his current wife, Sandi
Stevens, and his mother-in-law, Myrtle Wilson. The
[petitioner] and his wife were having marital problems,
and he knew that another divorce would “wipe him out.”
He told the boys that he would get the money either from
the proceeds of Ms. Wilson’s life insurance policy or from
the proceeds of a yard sale. Austin would act as a
“lookout,” while Milliken killed the victims in their
trailer. The [petitioner] preferred that the victims be
shot; however, if the boys could not find a gun with a
silencer, Milliken was to kill them using a knife. Austin
eventually decided that he did not want to be the
“lookout,” but agreed to provide an alibi for the
[petitioner]. He would not be paid for this participation,
and therefore the entire $5,000 would be paid to Milliken.

Although the [petitioner] had not yet set a date for
these murders, he took great pains in planning and
instructing Milliken on exactly how the murders were to
take place. For instance, he told Milliken to kill his
mother-in-law first because his wife would not hear
anything: she kept her door shut and the fan running in
her bedroom. He also told Milliken that on the eve of
the murders, the trailer would be unlocked, and the
burglar alarm would not be set; as an extra precaution,
Milliken would be given a key to the trailer.

The [petitioner] further instructed that after Milliken
killed the victims, he was to steal certain items,
including some of Mrs. Stevens’s jewelry, and then
“destroy” the trailer to make it look like a robbery had
occurred. In fact, he took Milliken on a walk-through of
the trailer, and he specified which items were to be
stolen, which items were to be “trashed,” and which items
were to remain untouched, such as “the TV and the dishes
and [his] Star Trek collection.”

The [petitioner] also instructed Milliken on how he was
to get rid of the evidence. For instance, Milliken was to
take the stolen jewelry and put it in a bag. He would then
throw the murder weapon on top of a nearby school
building and throw the bag of stolen items into the
river. Once all the evidence was disposed of, he would
go to his girlfriend’s house to establish an alibi.

According to the [petitioner]’s plan, on the morning of
the murders, he and Austin would leave together to go to
work. Milliken would commit the crimes while they were
gone. The [petitioner] told Austin that if he was
questioned by the police, he was to tell them that he saw
Mrs. Stevens wave to them that morning as they left for
work. The [petitioner] also told the brothers that if
anybody got caught, “everybody was on their own.”
Furthermore, he instructed them not to take lie detector
tests or “snitch on the other person.”

Finally, a few days before December 22, 1997, the
[petitioner] told the brothers that the murders needed to
be committed on the twenty-second. He explained that his
ex-wife was going to have back surgery at that time, and
he would have his nine year-old son, John, staying with
him. John would act as another alibi. Milliken agreed to
commit the murders on that date.

At approximately 4:45 on the morning of Monday, December
22, Austin went over to the [petitioner]’s trailer where
the [petitioner] and his young son were waiting for him.
Milliken was still asleep because he had stayed up late
the night before after having had an argument with his
mother and step-father. Mrs. Stevens and Ms. Wilson were
also still asleep in their rooms and did not see the
[petitioner] and the two boys leave for work.

The threesome drove approximately ninety miles to their
jobsite at New Johnsonville, stopping for breakfast along
the way. After they arrived, the [petitioner] decided that
it was too muddy to work on the trailer, so they returned
home, arriving back at the trailer park at around 8:30
a.m.

In a taped statement given on the day of his arrest, the
[petitioner] said that when he walked up to the front door
of his trailer, he observed that the door was ajar. When
he stepped inside, he noticed that the Christmas tree was
lying on its side and that “stuff was laying all over,”
and he “knew something was wrong.” He looked towards his
bedroom, saw his wife’s leg “laying across the bed,” and
immediately assumed that both his wife and his
mother-in-law were dead. The [petitioner] said that he
never went into either bedroom to actually check on the
women, nor did he ever see his mother-in-law’s body.
Instead, he just “ran out” with his son and Austin and
went to Austin’s trailer to call the police.

Officers Gary Clements and John Donnelly of the Metro
Police Department were the first officers to arrive at the
crime scene. After entering the trailer and finding the
two bodies, the officers sealed off the crime scene and
then began canvassing the area for witnesses and
searching the grounds for physical evidence. Officer
Clements soon met Corey Milliken in his trailer and
started talking to him. During their conversation, he
noticed blood spots on Milliken’s t-shirt, blood under his
nails, and fresh gouge marks on his cheek and wrist.
Officer Clements eventually turned Milliken over to
detectives for further questioning. Milliken confessed to
committing the murders by himself and provided a detailed
description of the murders and the crime scene.

Continuing his search for evidence, Officer Clements soon
discovered that the underpinning on a nearby trailer had
been pulled loose. When he looked under that trailer, he
found a green canvas bag. The contents of the bag included
the following: a white, blood-stained Miami Dolphins
t-shirt; several pieces of jewelry; an eight-inch long
butcher knife or kitchen knife; prescription medication
lying loosely in the bag; a thirty-five millimeter camera;
and a black camera bag.

Detectives Pat Postiglione and Al Gray, members of the
Metro Police Department assigned to investigate the
homicides, found no sign of forced entry. In fact, aside
from the appearance of a struggle “in and about the bed
area” in Ms. Wilson’s room, the crime scene looked, for
the most part, “staged.” For instance, Detective Gray
explained that dresser drawers were pulled open, but
nothing in them appeared to be disturbed; clothes were
taken out of the closet and dumped onto the floor while
still on their hangers; and the Christmas presents were
unwrapped, but nothing appeared to have been stolen. Even
the Christmas tree looked as if it were “gently pushed
over,” because none of the glass ornaments were broken or
scattered on the floor, which would most likely have
happened had there been a struggle. He also testified that
certain rooms, which “looked like . . . very valuable
area[s] of the trailer,” remained undisturbed.

Both victims were found lying in their beds. Ms. Wilson
was wearing a nightgown, which had been pulled above her
waist. Her underwear was on the floor. There was a
substantial amount of blood on her body, on the bed, and
on several items in the room. Dr. Emily Ward, a
pathologist with the Davidson County Medical Examiner’s
Office, performed autopsies on the victims. Her
examination of Ms. Wilson revealed that she died from stab
wounds and manual strangulation. Although her stab wounds
were relatively superficial and did not pierce any vital
organs, they resulted in a considerable amount of lost
blood.

Mrs. Stevens was completely nude and left in a
“displayed” position, that is, lying on her back with her
legs spread apart. She died as a result of ligature
strangulation. However, there was blood on her knees,
indicating that the murderer had killed Ms. Wilson first
and then transferred some blood onto Mrs. Stevens. There
were also pornographic magazines placed around her body,
as well as a photo album containing nude photos of the
victim, presumably taken by the [petitioner] during their
marriage. There was no evidence of blood on these items.

Dr. Ward’s examination of Mrs. Stevens revealed a small,
superficial tear in her vagina. Dr. Ward testified that
she thought it was a post-mortem change in the skin, which
likely occurred while the body was being moved for
examination. Although she conceded on cross-examination
that the decedent could have been sexually assaulted
after death, she did not believe this to be the case
because there was no bruising, swelling, or hemorrhaging
around the tear.

The State introduced the testimony of Chris Holman, a
friend of Milliken’s, as additional evidence that the
[petitioner] hired Milliken to commit these crimes. Mr.
Holman testified that around the end of October, Milliken
approached him and asked him if he knew where Milliken
could get a gun with a silencer. Mr. Holman told him
that he “wasn’t into that anymore.” Three weeks prior to
the murder, Milliken approached Mr. Holman again and asked
if he would help murder the [petitioner]’s wife and
mother-in-law. He told Mr. Holman that they would go into
the house and “make it look like it was a burglary,” and
that he would “split even” the $5,000 he was supposed to
be paid. Mr. Holman refused.

Lane Locke, an inmate at the West Tennessee State
Penitentiary, testified that he was the [petitioner]’s
cellmate at the Davidson County Criminal Justice Center
for approximately three weeks. During that time, the
[petitioner], who knew that Locke was formerly a police
officer and a certified paralegal, discussed his case at
great length because the [petitioner] wanted to benefit
from Locke’s “legal knowledge.” The [petitioner] described
his marital problems and told Locke that he did not want
to go through another divorce because he had “his life in
order and felt like . . . a divorce would wipe him out.”
The [petitioner] also discussed his relationship with
Milliken, describing him as a “big, dumb kid” who was a
source of conflict between him and his wife. Based on what
the [petitioner] told him, Locke stated that it appeared
that the [petitioner] “led Corey around quite a bit.”

Locke also testified that the [petitioner] did not want
to attend his wife’s funeral and that he never showed any
remorse or emotion over his wife’s death. However, Locke
testified that the [petitioner] was very upset when he
returned from his preliminary hearing. He quoted the
[petitioner] as saying, “Shawn [Austin] is just as guilty
as the rest of us, and he’s the only one that’s gonna get
away with it. I can’t believe those idiots thought I was
gonna pay them.”

Michael Street, another inmate at the Criminal Justice
Center, testified that the [petitioner] asked him if he
would “intimidate Corey Milliken or have him killed in one
form or fashion,” because, as the [petitioner] said,
“Corey was the only person that could put [him] in prison
for the rest of [his] life.” The [petitioner] told
Street that he had hired another inmate to “try to do it,”
but the plan fell through. Street refused the
[petitioner]’s request.

The State also introduced letters between the
[petitioner] and Charles Randle, another inmate, in which
the [petitioner] offered Randle money to harm or
intimidate Milliken in jail. Evidence was introduced that
the [petitioner] had obtained several hundred dollars in
money orders made payable to Charles Randle.

The State also presented evidence indicating that the
[petitioner] was taking money from his mother-in-law,
Myrtle Wilson. Ms. Wilson’s son, Larry Wilson, testified
that for over three years before the murders were
committed, he had been investing and otherwise monitoring
her finances totaling $83,000. A month before she was
killed, his mother expressed concern that she “didn’t
have the funds that she thought she should.” Shortly after
the murders, Mr. Wilson was examining his mother’s
financial information, and he discovered a check written
on June 10, 1997, made payable to the [petitioner] for
four thousand dollars. He explained that the check was
questionable for several reasons: first, the check was
printed rather than handwritten, and his mother never
printed her checks; second, the printing was “way too
clear” to be his mother’s because she had grown “feeble”
and her hand was “rather shaky” when she wrote; and
finally, Ms. Wilson had recorded the amount for that check
as forty dollars, not four thousand.

Additionally, Doris Trott, the victims’ hairdresser since
1992, testified to several conversations she had with Ms.
Wilson early in the fall of 1997, during which Ms. Wilson
complained that the [petitioner] never repaid her any of
the money that he often borrowed. Later that fall, Ms.
Wilson told Ms. Trott that the [petitioner] had asked her
to sign a ten-thousand dollar life insurance policy, which
she refused to do.

Evidence was also presented regarding the marital
problems that the [petitioner] and Mrs. Stevens were
having. In Mrs. Stevens’s diary, she described her
unhappiness in the marriage and her increasing distrust of
her husband’s fidelity. Although she still loved the
[petitioner], she wanted to “get out” of the marriage.
William Byers, Sandi Stevens’s ex-husband, testified that
he talked to her shortly before she died, and she told
him that the [petitioner] explicitly refused to give her a
divorce. She also expressed her dislike for Corey Milliken
and described him as the source of many heated arguments
between the [petitioner] and herself. She wrote that he
was the “wedge” driving her and the [petitioner] apart.

The defense presented evidence of Corey Milliken’s sexual
infatuation with Sandi Stevens. Shawn Austin testified
that his brother told him that the [petitioner] had shown
him pictures of his wife in lingerie and in the nude, and
that the [petitioner] told Milliken that she wanted to
have sex with both of them at the same time.

The defense theory was that Milliken committed sexual
murder as an act of aggression precipitated by an argument
with his mother and step-father the night before the
crimes. Milliken’s step-father, Billy Stevens (unrelated
to the [petitioner]), testified that he and Milliken did
argue the night before the crimes, and that at one point
he “grabbed” Milliken after Milliken “got smart with his
mother.” Milliken ran out of the house, but had returned
home by the time Mr. Stevens left for work early the next
morning. Mr. Stevens also testified that he and Milliken
had argued in the past, and that on several occasions
Milliken had run out of the house following an argument.

As evidence that these murders involved a sexual
component, the defense introduced the testimony of crime
scene expert, Gregg McCrary. Mr. McCrary testified that
the display of pornographic magazines around Mrs. Stevens
could “best be interpreted as an attempt to further
humiliate or degrade” the victim, which “goes to the
motive of a sex crime.” He defined a sex crime as
primarily a crime of violence in which the perpetrator
uses sex to punish, humiliate, and degrade the victim.

. . . . Penalty Phase

The State first presented evidence of the [petitioner]’s
conviction in 1977 for second degree murder. The State
also presented as victim impact evidence the testimonies
of the victims’ family members, who each discussed the
devastating effect of the murders of Myrtle Wilson and
Sandi Stevens on their lives.

In mitigation of the sentence, the defense presented
testimony from the [petitioner]’s family members,
co-workers, and neighbors. The [petitioner] was adopted
into a family of five children. Chris Baumann, the
[petitioner]’s sister, testified that the [petitioner] had
a good childhood and was part of a “normal family.” She
also testified to the [petitioner]’s close relationship
with his son, John. Robert Rasmus, the [petitioner]’s
foster brother, also testified to the “great family
upbringing” that all five children enjoyed. He further
stated that the [petitioner] had done a wonderful job
raising his son John, and that he was proud of how the
[petitioner] had turned his life around after his first
conviction in 1977. On cross-examination, Mr. Rasmus
admitted that the [petitioner] had also been convicted of
felony escape during his incarceration for second degree
murder.

Vickie Stevens, the [petitioner]’s ex-wife, testified
that the [petitioner] was a good husband and father during
most of their marriage. After the divorce, he made all of
his child support payments and remained a loving and
supportive father. She also expressed her wish that the
[petitioner] be spared the death penalty for the sake of
their son.

Roger Cooper, the sales manager of a mobile home company,
testified that he employed the [petitioner] in 1989 for
approximately one year. During that time, he knew the
[petitioner] to be a hard-working and dedicated employee,
and he trusted the [petitioner] enough to give him a key
to his own home.

Several of the [petitioner]’s neighbors testified to how
helpful the [petitioner] was to others in the community.
Specifically, the [petitioner] loaned money to his
neighbors, checked in on neighbors who were elderly,
sick, or alone, and voluntarily fixed their trailers
without requiring payment.

At the close of the proof, the jury was instructed on the
following statutory aggravating circumstances for each of
the two counts of murder: (1) the [petitioner] was
previously convicted of the felony of second degree
murder; and (2) the [petitioner] employed another to
commit the murders of his wife and mother-in-law for the
promise of remuneration. The jury was also instructed to
consider all mitigating evidence, including the
[petitioner]’s work history, the [petitioner]’s family
history and close familial relationships, his positive
role in the community, any other aspect of the
[petitioner]’s background, character, or record, and any
aspect of the circumstances of the offense favorable to
the [petitioner] and supported by the evidence.

The jury found that the State had proven the two
statutory aggravating circumstances beyond a reasonable
doubt and that these two aggravating circumstances
outweighed the mitigating circumstances beyond a
reasonable doubt. Consequently, on July 23, 1999, the
[petitioner] was sentenced to death for each of the two
murder convictions. . . .

Stevens, 78 S.W.3d at 823-29 (footnotes omitted).

Post-Conviction Hearing

At the August 30-31, 2004, post-conviction hearing, trial
counsel testified that he had been practicing law for about
eighteen years and had handled numerous felony trials,
including first degree murder cases. He said he was
appointed to represent the petitioner on or about May 6,
1998, and was qualified to represent clients charged with
the death penalty; however, the petitioner’s case was his
first capital case. Trial counsel said he spent over 600
hours preparing for the petitioner’s case and received
funding to employ investigators to help prepare for both
stages of the trial and submitted bills totaling
approximately $55,000 for investigative services. He filed
numerous pretrial motions and reviewed the police and
prosecution files. Counsel also hired a jury consultant,
crime scene expert, and mental health expert. He said he
developed a “good relationship” with the petitioner and
visited him in jail “at least once a week, probably most
weeks, twice a week.” The petitioner was “very adamant”
about counsel’s not presenting any mitigation evidence.
Trial counsel said that an additional attorney was
appointed after the State filed its notice of intent to
seek the death penalty on July 13, 1998; however, another
attorney was subsequently substituted as co-counsel on March
5, 1999. Trial counsel said he prepared for the
guilt/innocence phase of the trial while co-counsel
prepared for the mitigation phase.

Trial counsel said that their theory at the guilt-innocence
phase was that Milliken was sexually enamored with the
petitioner’s wife, had a violent encounter with his mother
and stepfather the night of the murders, and killed the
victims. Counsel said his decision not to call Milliken to
testify was a strategic one because he was afraid the jury
would believe Milliken. Counsel said he tried to introduce
Milliken’s inconsistent statements to the police through
the lead detective, but the State objected. At the
sentencing phase, counsel’s theory was “to ask the [j]ury
for mercy” by introducing testimony of witnesses who
“liked” the petitioner. The defense called twelve witnesses
at the guilt phase and seven at the penalty phase.

Trial counsel testified that the jury selection process was
lengthy and involved. He submitted questionnaires to each
of the prospective jurors asking, among other things, about
their views on the death penalty. Counsel said that he had
no independent recollection of the jurors’ answers during
voir dire and that there were “a lot” of jurors he did not
want on the case. The defense used all of the available
peremptory challenges. Regarding Juror Jill Mersman who knew
the petitioner’s ex-wife, Vickie Stevens, counsel said he
did not challenge Mersman because “[t]heir relationship was
more that they — she worked at a place where Ms.
Stevens came in and left and they didn’t know each other,
they just knew each other. I think my metaphor, ships
passing in the night, applies — describes what I
thought their relationship was.” Counsel said that he was
satisfied that the juror’s contact with Ms. Stevens was “so
minimal as not to be a concern.” Regarding the jurors who
indicated on their questionnaires that they were in favor of
the death penalty, trial counsel said, “I cannot believe
that I wouldn’t have asked for a challenge for cause. And
being familiar with the process, I cannot believe that the
Court didn’t rehabilitate these [j]urors.” Although Juror
Robert Asbury was an attorney who favored the death
penalty, trial counsel believed he would properly weigh and
consider the facts. Trial counsel said he thought Asbury
would be “a cantankerous juror” and not want “to agree with
the other [j]urors, which is what [counsel] look[ed] for in
a [j]uror.” Counsel said the trial court questioned the
petitioner about the decision regarding Juror Asbury in
open court, and the petitioner agreed with it.

Trial counsel said that Shawn Austin and Sarah Suttle
refused to meet with the defense team. He identified his
March 9, 1999, letter to the district attorney general’s
office requesting copies of the audio interview of Suttle
and Austin in exchange for not questioning them on
cross-examination about their refusal to talk to the
defense. He explained that he made this agreement with the
State in order “to get the Jencks material early” and
considered it to be “a fair trade-off, a good tactical
decision.” Asked his reason for not objecting to hearsay
statements Milliken made to Austin, trial counsel responded,
“I objected throughout the trial to what I thought was
hearsay and was usually overruled. I believe in my mind
that I kept getting overruled and quit making objections to
try to obtain some credibility with the [j]ury. In my mind,
if you’re continuously overruled, . . . you lose
credibility with the [j]ury.” Asked if there was a reason
not to ask for a limiting instruction about the hearsay,
counsel said, “Not that I recall, there wouldn’t be.”

Trial counsel said he hired Dr. Leah Welch to conduct a
full psychological evaluation of the petitioner. Dr.
Welch’s written report, as well as Dr. Schacht’s[fn1]
report and videotaped interview of the petitioner, were
admitted into evidence. Counsel said the reports were
discussed with the petitioner, and the petitioner did not
want any mental health evidence introduced and acknowledged
that in open court. Trial counsel said he did not call Dr.
Welch to testify because the petitioner was diagnosed with
Antisocial Personality Disorder. The petitioner never told
the defense team that he had been sexually abused. Trial
counsel said he did not want the jury to hear about the
petitioner’s prior conviction for second degree murder, the
facts of which were that the petitioner shot, stabbed, and
hit the victim in the head with a tire iron before setting
his body on fire in a dumpster. Counsel also did not want
the jury to learn that the petitioner had lied about his
background or that he had a prior arson conviction for
attempting to set a fire in the jail because there was no
heat at the time.

Co-counsel testified that she graduated from law school in
1997 and that 75% of her caseload at the time of the
petitioner’s trial was criminal in nature. She was
appointed in the petitioner’s case on March 5, 1999, and
his was her first capital case. She said that she was
primarily responsible for the sentencing phase and that she
spent approximately 160 out-of-court hours and 73.5
in-court hours on the petitioner’s case. Counsel said that
the petitioner cooperated in the preparation for trial and
that she did not “feel like he was hiding anything from us
that could help the mitigation.” She said the petitioner
was concerned about the stress that testifying would cause
his family. The petitioner never told her he had been
sexually abused, and, to her knowledge, he never told Dr.
Welch.

Co-counsel said that their main theory at the
guilt-innocence phase was that “this was a sex crime and
not a murder for hire crime. And then, of course, [the
petitioner’s] theory all along, from day one, was that he
was not there and he did not do this.” At the penalty
phase, counsel attempted to “delve into the fact that [the
petitioner] was a foster child, that there were problems
tying in relationships with anybody.” Co-counsel said they
also tried to convince the jury that the petitioner’s age
should be a consideration for life imprisonment. She said
that some of the petitioner’s siblings, his ex-wife, and
people who knew the petitioner’s work ethic and character
at the time of the crimes testified at the sentencing
hearing.

Co-counsel said that she participated in the voir dire and
that the decision about which jurors to strike and
challenge for cause was a joint effort between her and
trial counsel. She said the defense and the State submitted
jury questionnaires to the trial court, and the trial court
then submitted a court questionnaire to the jury.

Co-counsel said the defense team hired a mitigation
specialist, Julie Hackenmiller, to investigate the
petitioner’s childhood background, medical records, mental
health records, prior criminal records, and juvenile
records. Co-counsel said that she reviewed all the
information gathered by Hackenmiller and that the defense
team had weekly and bi-weekly meetings to discuss the
petitioner’s case. The social history gathered by
Hackenmiller revealed that the petitioner lived with his
biological parents from birth to toddler age when he was
placed in foster care. Co-counsel said that the defense had
difficulty in obtaining the petitioner’s records from
Catholic Charities in Chicago, the foster care agency, and
that some of the information in the records had been
blacked-out, including the names of the petitioner’s
biological parents. According to the agency records, the
petitioner experienced “spells and fainting” as a child,
and his school records reflected that he had been diagnosed
with Attention Deficit Hyperactivity Disorder (ADHD) and
had disciplinary problems in school. Co-counsel recalled
that the petitioner lived at a facility called Sky Ranch in
South Dakota for about a year.

Co-counsel said that the social history compiled by
Hackenmiller was provided to Dr. Welch prior to her
evaluation of the petitioner. Counsel said she was aware
that the petitioner’s youngest son had been diagnosed with
ADHD. Dr. Welch was retained by the defense to evaluate the
petitioner’s mental health “from the time of the crime until
the time of trial.” Dr. Welch administered a series of
tests to the petitioner, conducted an extensive interview
with him, and diagnosed him with Antisocial Personality
Disorder. Co-counsel said she considered the diagnosis as a
negative assessment of the petitioner “[t]o the ears of a
[j]ury.” After learning Dr. Welch’s diagnosis, counsel
decided not to have the petitioner evaluated by a
psychiatrist.

Co-counsel said the decision regarding mental health
mitigation was made by her, trial counsel, and Dr. Welch,
and they feared the details of the petitioner’s prior
murder conviction would be brought out if they presented
the mental health issues. She said she reviewed the reports
from Drs. Welch and Schacht. She acknowledged that,
according to the social history the defense obtained, the
petitioner had lied about his background to the prison
officials and said that the defense did not want the jury
to hear about his untruthfulness. Counsel said she wanted
to “humanize” the petitioner for the jury and, because he
did not testify, she decided that calling his family
members and others who knew him was a better approach than
introducing records from his past.

Dr. William D. Kenner, a forensic psychiatrist, testified
that he met with the petitioner twice in prison and
reviewed numerous documents pertaining to the petitioner,
including the reports from Drs. Welch and Schacht and his
social history. Dr. Kenner said that the purpose of his
evaluation of the petitioner was “to determine if at the
time of the alleged crime, [the petitioner] suffered from a
mental illness and whether those had a bearing on either
issues of . . . guilt-innocence or mitigation.” A review of
the unredacted version of the Catholic Charities records
showed that the petitioner was placed in an orphanage,
shortly after he was born, as a result of his biological
mother’s neglect of his siblings. His siblings were placed
in foster homes, and the petitioner remained at the
orphanage for about three months before being placed in a
series of foster homes. In October 1956, the petitioner was
placed in the home of Clarence and Vernadine Rasmus where
he “did well” as a young child. Dr. Kenner said the
petitioner’s ADHD caused him difficulty in school.

Dr. Kenner said that notations made by the petitioner’s
social workers showed that at age five, the petitioner was
“a somewhat high-strung and nervous child and at times has
difficulty accomplishing different tasks, because he’s so
excited.” As a result of his problems in school, testing
was conducted on the petitioner which revealed that he had
an above-normal I.Q. but “barely adequate scores in his
perceptional ability, spacial reasoning, number skills,
visual motor coordination.” Psychologists described the
petitioner’s behavioral development as “slower than
average.” Dr. Kenner said that the petitioner’s stay in the
orphanage provided him less than adequate kinesthetics
stimulation and that children in orphanages develop at
about two-thirds the rate of children who have normal
environments. According to one report, the petitioner was
“a rather nervous child, accustomed to having adults deal
firmly with him. . . . And . . . in school, it’s noted that
he becomes so nervous and upset that he vomits.” The
petitioner’s social adjustment was “very poor,” and he
often fought with other children his age. The petitioner
also had ongoing orthopedic problems and had to wear
special shoes for years.

Dr. Kenner said that notations made by the petitioner’s
social worker in 1963 indicated that the petitioner
appeared to have a strong bond of affection toward his
foster mother and needed reassurance of her love for him.
Dr. Kenner attributed this need for reassurance to the
petitioner’s status in the home as a foster child, his early
experiences in the orphanage, and the two failed foster
homes in which he was initially placed. The social worker’s
annual summary for 1963 showed that the petitioner was
impulsive and “aggressively sought adults’ attention by
misbehaving” which, according to Dr. Kenner, showed that
the petitioner was “operating closer to a two year old level
than seven year old level.” Although the petitioner had
adjustment problems in school, he did well academically.
Dr. Kenner said that the petitioner’s foster mother was the
strongest influence in controlling the petitioner’s
behavior. In the fourth grade, the petitioner’s grades
declined and he had more problems concentrating and paying
attention. Dr. Kenner opined that the petitioner also had
symptoms of Obsessive Compulsive Disorder. Dr. Kenner said
the petitioner’s foster parents never adopted him, partly
because of his biological mother’s interference.

Dr. Kenner said that the petitioner, at age ten, was
removed from his foster home in Illinois and placed at Sky
Ranch in South Dakota, a facility affiliated with the
Catholic Church for children with significant behavioral
issues. At Sky Ranch, the petitioner was anally raped and
beaten with a belt by one of the priests. During the nine
months he was at Sky Ranch, the petitioner was sexually
assaulted a total of five times. The first person the
petitioner disclosed the sexual abuse to was Kathryn Pryce,
an investigator with the post-conviction defender’s office,
when she interviewed him in August 2003. As a result of the
abuse at Sky Ranch, the petitioner began having
dissociative episodes. When the petitioner returned to
Illinois from Sky Ranch, he “remained a lonely boy . . .
easily influenced by companions.” In a 1969 annual report,
the petitioner’s case worker described him as “an immature
thirteen and a half year old, who has a chronic problem
with stealing and hoarding his loot in a collection in his
basement” and concluded that his stealing problems
reflected a sense of insecurity. The petitioner saw a
psychiatrist, Dr. Robert Nodene, who diagnosed him as
having “a schizoi[d] personality disorder of rather severe
degree.” Dr. Nodene placed the petitioner in group therapy
with other teenagers which resulted in tremendous
improvement in his attitude toward people as well as his
schooling.

Dr. Kenner said that in high school the petitioner still
had difficulty concentrating and his attention span was
very short, but his relationship with his peers improved.
When he was sixteen, the petitioner stole a woman’s purse
at a basketball game and received counseling as a result.
The petitioner’s foster parents threatened to remove him
from the home if his behavior did not improve. According to
a notation in the petitioner’s records, the petitioner did
not feel that he was being accepted by his foster family.
The petitioner was prescribed Ritalin “for a time” to help
his concentration but had to discontinue it because of
adverse side effects. The petitioner’s behavior began to
improve until 1972 when he was placed on probation for
intent to commit burglary which was the result of his
attempt to retrieve his special orthopedic shoes that
someone had thrown onto the school’s rooftop.

Dr. Kenner testified that by 1974, the petitioner’s “life
had finally come together both academically and socially.”
The petitioner’s records reflected that he appeared “to
have an adequate degree of self-awareness for a seventeen
year old male” and was “able to enjoy normal peer
relationships.” After the petitioner graduated from high
school, he joined the armed forces. Dr. Kenner acknowledged
that the petitioner passed all of the physical and mental
tests required to enter the military and that he was
honorably discharged. The petitioner later married his high
school sweetheart, and they had one son before divorcing in
the mid-1970s. The petitioner married his second wife in
1985 and they also had a son. According to Dr. Kenner, the
petitioner “was dependent on the women in his life.”

Dr. Kenner said that he reviewed the records from Middle
Tennessee Health Institute where the petitioner was sent
for evaluation for his prior murder case and that the
petitioner had lied about his background when he was
interviewed by the mental health professionals there. The
petitioner did not want his foster family involved in that
trial. Dr. Kenner also reviewed Sandi Stevens’ medical
records which showed that she was taking Prozac, Soma,
Prednisone, testosterone, and methadone at the time of her
death. According to Dr. Kenner, the combination of Mrs.
Stevens’ medications and the menopausal symptoms she was
experiencing affected her behavior and state of mind in the
months leading up to her death.

Asked to explain the petitioner’s “unemotional” demeanor in
front of the detectives after the murder of his wife, Dr.
Kenner explained that his demeanor could be attributed to
the previous losses he had suffered in life and his
experiences at Sky Ranch. Dr. Kenner opined that the
detectives misinterpreted the petitioner’s emotional
defenses “in that he emotionally withdrew from the
intensely painful experience of — as — that
he was cold about his wife’s murder.” Dr. Kenner also said
that the petitioner would not display any emotion to other
inmates if he could avoid it. Dr. Kenner said he reviewed
the petitioner’s letters to his ex-wife, Vickie, and their
son, John, which were written about a week after the death
of Sandi Stevens while the petitioner was in solitary
confinement. Dr. Kenner explained that writing these
letters was the petitioner’s “only way of reaching out and
having some human contact.” He further explained that this
was not unusual for someone with the petitioner’s
dependency needs.

Dr. Kenner said that he did not agree with Drs. Welch and
Schacht’s diagnoses of Antisocial Personality Disorder,
explaining that the petitioner’s difficulties “came instead
from his ADHD and . . . the anxiety fueled by his early
losses.” Dr. Kenner said that the petitioner’s improvements
in behavior after receiving the appropriate treatment as an
adolescent tended to negate the diagnosis of Antisocial
Personality Disorder. Dr. Kenner explained that one of the
criteria for Antisocial Personality Disorder is “consistent
irresponsibility, as indicated by repeated failure to
sustain consistent work behavior or on financial
obligations.” He said that, according to the reports, the
petitioner was a good worker and paid child support for his
son, John. Another inconsistency with the diagnosis of
Antisocial Personality Disorder was the length of time
between the petitioner’s release from prison for the second
degree murder and his arrest in this case in which he
functioned fairly well and did not get into trouble.
However, Dr. Kenner acknowledged on cross-examination that
after the petitioner’s release from prison for the prior
murder conviction, he had been arrested twice, been
unfaithful to his wife, “cheated” on his taxes, and “jumped
from job to job to job.” Dr. Kenner said the diagnosis for
Antisocial Personality Disorder changed in 1996 and
acknowledged that if the earlier criteria were used, “you
could fit [the petitioner] into that category, if you
ignored the other issues that would have given rise to that
behavior. If you used the one that was current at the time
of his trial, then you wouldn’t.”

Dr. Kenner opined that Dr. Welch’s work in the petitioner’s
case “fell short,” explaining that Dr. Welch was “fresh out
of school, had limited experience. I don’t think she’s ever
done a death penalty case. She did not . . . review very
carefully the developmental history on [the petitioner]. So
I think she, in her approach, missed some critical issues.”
As to Dr. Schacht, Dr. Kenner said, “I think he was
primarily grading [Dr. Welch’s] papers, as well.” Dr.
Kenner acknowledged that Dr. Welch’s interview with the
petitioner lasted thirteen hours and Dr. Schacht’s lasted
five hours.

Dr. Kenner said he also had reviewed Corey Milliken’s
videotaped statements to the police and his social services
records. Dr. Kenner said that the theory that Milliken
committed the murders as part of a sexual fantasy was
“consistent with his behavior on the tape” where he
could be seen masturbating while talking about the victim,
Sandi Stevens.

Dr. Kenner said he administered a mental status examination
to the petitioner during which the petitioner was oriented
and had no delusions or hallucinations. The petitioner
described men in his past in “very sarcastic terms” which
indicated that he had “a chip on his shoulder when it comes
to men.” The petitioner also described dissociative
episodes which he was still experiencing. The petitioner
related that the social workers he had as a child often
threatened to remove him from his foster home if he did not
behave appropriately which undermined his relationship with
his foster parents and future mental health professionals.
The petitioner described “his painful experiences with his
corrective shoes that left him stigmatized as being
different.” The petitioner told Dr. Kenner that his
experience at Sky Ranch had “sealed his status as a foster
child in his mind.” Dr. Kenner said the petitioner had
“after-effects of the sexual abuse, that he felt like he
needed to keep his distance from men, particularly physical
distance.” Dr. Kenner diagnosed the petitioner with ADHD,
Dissociate Disorder and Dependent Personality Disorder with
obsessive compulsive features, meaning that the petitioner
was unusually dependent on others because of the early
losses in his life.

On cross-examination, Dr. Kenner testified that he was
hired to evaluate the petitioner in late 2003 or early 2004
but did not interview him until June 30, 2004, two days
after the court deadline for expert reports. He explained
that he had wanted to interview Milliken first and that it
took him several months to review and “write up” the
petitioner’s foster care records. His second interview with
the petitioner was on August 13, 2004, the day after the
court denied a continuance. He acknowledged that he did not
review the petitioner’s trial transcripts but said he
reviewed the summaries prepared by the post-conviction
defender’s office.

Dr. Kenner acknowledged that the petitioner, in his prior
murder trial, lied to the jury about his background and had
lied to mental health professionals in the past. Dr. Kenner
agreed that the facts of the petitioner’s prior murder
conviction could have impacted the jury’s decision on the
death penalty. Dr. Kenner said that the petitioner’s
history of malingering with mental health professionals was
partly “an attempt to control the interview and to stay
away from what’s really painful for him.” Dr. Kenner said
it was not unusual that the petitioner did not disclose the
sexual abuse until he was confronted about it by Ms. Pryce
and acknowledged that the petitioner never disclosed the
abuse to Dr. Schacht even though Dr. Schacht specifically
asked him about that type of abuse.

Ross Alderman, the Davidson County Public Defender,
testified that he represented the codefendant, Corey
Milliken. He said that Milliken was available to testify at
the petitioner’s trial and that his testimony would have
implicated the petitioner, consistent with his second
statement to the police. However, Milliken was not called to
testify. On cross-examination, Alderman acknowledged that
Milliken gave a different version of the killings, which
was inconsistent with both his first and second statements
to the police, at his post-conviction hearing.

Julie Hackenmiller, a mitigation specialist with
Inquisitor, Incorporated, testified that she was hired by
the defense team in August 1998 to investigate the
petitioner’s background. She said she was unable to obtain
the unedited records from Catholic Charities. She said
trial counsel did not seem interested in mitigation because
the petitioner told counsel he preferred the death penalty
if convicted; however, co-counsel appeared to be interested
in working on the mitigation. According to a memorandum
Hackenmiller wrote to counsel on June 30, 1999, less than
two weeks prior to trial, co-counsel was not going to
obtain the unredacted Catholic Charities records even though
counsel mentioned she had the opportunity to do so. Counsel
requested Hackenmiller not to pursue the identity or
location of the petitioner’s biological family. Counsel
also informed her that they “planned to keep all mental
health issues out of trial and mitigation, including [the
petitioner’s] long history of counseling since a young age.”
According to Hackenmiller, co-counsel “believed it would be
difficult to explain and convince the [j]ury that
mitigation is not an excuse or justification for the
[petitioner’s] actions.” Hackenmiller explained that the
mitigation themes she suggested that counsel use were: the
petitioner was placed in an orphanage as a baby and did not
know his biological family; he lived in a foster home where
his ability to stay in the home was contingent upon his
behavior and he did not receive unconditional love; he was
sent away for behavioral problems at age nine for one year
and was not allowed to visit home during that period; he
was required to wear orthopedic shoes for over ten years as
a child which caused teasing by his peers; he was sent to
mental health counseling beginning at age six; he was
diagnosed with ADHD at a time when the diagnosis was rare
and was prescribed Ritalin for at least six years; he was
diagnosed as having a schizoid personality disorder where
he was void of emotional bond with others, partly due to his
foster parents’ refusal to totally commit to him; he made
“an excellent transition back into society after his
incarceration”; he had an excellent employment record; he
was helpful and kind to neighbors; he had a son whom he
loved; he had been examined by physicians for epileptic
seizures, neurological disorders, hypoglycemia, and
fainting spells; and his biological father was incarcerated
in a maximum security facility in Illinois. She
acknowledged that the petitioner never told her he had been
sexually abused.

Kathryn Pryce, a legal clerk and investigator for the
post-conviction defender’s office, testified that she made
inquiries into the petitioner’s stay at Sky Ranch and that
through her research she discovered a newspaper article and
a court case dealing with sexual abuse at Sky Ranch. She
met with the petitioner several times to review his social
history and then met with him on August 21, 2003, at which
time the petitioner disclosed the sexual abuse to her. She
acknowledged that the petitioner did not tell her about the
sexual abuse until after she had informed him that she had
documentation about the abuse that occurred at Sky Ranch.
She said the petitioner did not want to testify about his
alleged abuse.

At the conclusion of the testimony, defense counsel
introduced a written offer of proof of additional evidence
that would have been presented had the post-conviction
court granted his motion to continue the hearing. The offer
contained the information gathered by Pryce and a list of
witnesses and facts about which they would have allegedly
testified. Included in the witness list were a fellow inmate
of the petitioner, two fellow inmates of one of the State’s
witnesses from trial, and the petitioner’s foster mother
and biological mother. Information about Milliken’s social
history was included in the offer as well. Defense counsel
did not inform the trial court when the information in the
offer was obtained.

The post-conviction court subsequently entered a lengthy
and detailed order on December 14, 2004, denying the
petition for post-conviction relief.

ANALYSIS

I. Denial of Continuance of Evidentiary Hearing

The petitioner argues that he was denied his right to due
process and a full and fair hearing “when counsel were
forced to proceed to hearing without having read the entire
file, fully investigating grounds for relief, or adequately
preparing for the hearing.”

The petitioner filed his petition for post-conviction
relief, with the assistance of the Office of the
Post-Conviction Defender, on February 25, 2003. On March 4,
2003, the post-conviction court appointed the
Post-Conviction Defender to represent the petitioner,
ordered counsel to file any amended petition within thirty
days, and scheduled a hearing date for July 1, 2003.
According to statements by counsel, the Office of the
Post-Conviction Defender assigned this case to Attorneys
Paul J. Morrow, Jr. and Jon J. Tucci. On March 19, 2003,
counsel filed a motion for an extension of time to file an
amended petition. The court granted counsel until August
29, 2003, to file the amended petition and set a new
hearing date for November 3, 2003. Counsel filed a motion on
August 26, 2003, for a second extension of time in which to
amend the pro se petition. The requested extension to
prepare an adequate amended petition was necessary,
according to counsel, because of counsel’s caseload, the
nature of the case, the volume of the original trial
record, the trial court’s denial of funding for support
services, recent health problems experienced by Attorney
Tucci, and a recent death in the investigator’s family. The
post-conviction court granted this request as well, giving
counsel until October 30, 2003, in which to file the
amendment. After conferring with both parties, the court
subsequently set a new hearing date of February 17-19,
2004.

Counsel filed the amended petition on October 30, 2003.
Although the petitioner raised many different issues, the
petition focused primarily on the ineffective assistance of
counsel. The State filed its response to the petition on
December 1, 2003. On January 9, 2004, the petitioner filed
a motion to continue the hearing date. Counsel stated in
the motion that additional time was needed to further
investigate and to consult with recently funded expert
witnesses. The court granted petitioner’s motion and
continued the hearing date until May 3, 2004. On March 12,
2004, the petitioner filed another motion to continue. In
support of the motion, counsel stated that the investigator
involved in this case was scheduled to appear in another
post-conviction capital case previously set for hearing on
May 10, 2004, and that counsel had a previously planned
vacation. The court again granted the petitioner’s request
and continued the hearing until August 30, 2004.

On August 4, 2004, the petitioner filed another motion to
continue the evidentiary hearing, setting out the following
reasons for the request:

1) the sudden departure of lead counsel Jon Tucci; 2) the
loss of one-third of Post-Conviction Defender legal staff
since the beginning of this year; 3) the need for
reasonable time to allow newly hired counsel Kelly
Gleason, who has been assigned to this case, to engage in
adequate preparation for a hearing in this death penalty
case; 4) the combination of end of fiscal year funding
problems, the surgeries of the sole investigator assigned
to this case, and recent discovery of an erroneous line of
investigation by trial attorneys which has now led to
discovery of the petitioner’s true biological family; and
5) undersigned counsel’s briefing and hearing schedule
over which he has little or no control.

According to Attorney Morrow’s motion, Attorney Tucci
“bor[e] the brunt of the work in this case —
including client contact, working with the mental health
expert, and coordinating the investigation.” Tucci offered
his letter of resignation from the Office of the
Post-Conviction Defender on May 19, 2004, and his last day
of employment was May 31, 2004. Attorney Kelly Gleason
replaced Tucci on August 2, 2004.

The post-conviction court conducted a hearing on the
petitioner’s motion to continue, at which Attorney Tucci
was subpoenaed to appear. However, citing his ethical duty
to his former client, Tucci refused to answer specific
questions the judge asked about the nature and extent of
his involvement in this case. Although the reason for
Tucci’s departure was never clearly revealed, it appears he
had some disagreement with other staff members in an
unrelated matter. Attorney Morrow told the court that he
had participated in a post-conviction hearing in a separate
capital case in February 2004 and had been involved in two
hearings in the previous year to determine whether his
clients were mentally retarded. Morrow also indicated that
he had two post-conviction hearings scheduled in Shelby
County in September, but he could not advise the court
whether those hearings were set prior to, or after, he was
granted his previous motion for continuance in this case.
Asked why counsel waited over two months after learning
that Tucci was leaving to file their latest motion or
inform the court, Attorneys Morrow and Donald Dawson, the
Post-Conviction Defender, were uncertain. Although Morrow
stated he would not want the court to order/appoint Tucci
to continue representing the petitioner, Tucci indicated he
was willing to provide Morrow with the information he had.

The post-conviction court issued an eight-page order
denying the motion to continue. After recounting the
procedural history and the statements of counsel, the court
detailed why it was denying the motion:

Having reviewed the motion and having heard from counsel,
the Court is unpersuaded by any of the arguments of
petitioner’s counsel. First, although Mr. Tucci’s
departure from the PCDO [Post-Conviction Defender’s
Office] in May 2004 is a primary basis for a continuance
of the hearing, no one from the PCDO notified this Court
of the departure or of a need for relief from the present
deadlines. When asked by the Court, counsel could offer no
explanation for such a delay. Mr. Dawson expressed his
belief that the Court should have been notified earlier.
Nothing from the explanation given by Mr. Tucci or the
PCDO justifies a continuance of this matter.

Second, this matter has been rescheduled on a number of
occasions as set out herein. In many of those motions for
a continuance, counsel affirmatively states that no
further continuances will be necessary. While the Court is
mindful that on occasion unexpected events do occur that
warrant a last-minute continuance, this is not one of
those occasions.

Third, the scheduling in other matters is addressed by
the Court each time a new hearing date is selected. The
Court inquires into the parties’ schedule and attempts to
schedule a mutually agreeable date for a hearing. Each
time the hearing is rescheduled a week of the Court’s
schedule is designated solely for this matter. This Court
recognizes the importance of these matters and the
necessity of bringing numerous schedules together.
However, if counsel scheduled this hearing with the
knowledge of two September hearings in Memphis or in the
alternative if counsel scheduled the Memphis hearings
with knowledge of this hearing, counsel did so at its
peril. Counsel’s statement to the Court that he “took a
crash course” to prepare for a scheduled hearing in a
Knoxville case perhaps is telling of his recognition of
the urgency of deadlines. Although counsel indicates that
the Knoxville matter was continued, he nonetheless
recognized the need to prepare for the hearing deadline.

Counsel also referenced the “new information” discovered
by his office. According to the motion, it appears that
the investigator located the petitioner’s biological
family. Therefore, they need additional time to further
investigate the biological family. When asked by the
Court, counsel conceded that he had already located the
family but needed to follow up with interviews and records
requests.

Viewing this case in its entirety, in light of the
procedural history and in light of the continuance motion
now before the Court, the Court cannot conclude that a
fifth continuance is warranted in this case. The Court
must balance the [petitioner’s] right to a full and fair
hearing with the rights of the state, the statutory
mandates, and the victim’s rights amendment. Because the
Court has granted the petitioner’s motions to continue on
at least four prior occasions since the appointment of the
PCDO over sixteen (16) months ago, the scales have thus
far been tipped in favor of the [petitioner]. He has had
more than sufficient time to prepare for a full and fair
hearing. Accordingly, this fifth motion for a continuance
is denied.

At the conclusion of the hearing, counsel asked permission
for an interlocutory appeal, which was denied, and
thereafter asked permission to withdraw, which was also
denied.

On August 19, 2004, counsel filed a renewed motion for a
continuance, again mentioning the resignation of Attorney
Tucci and the need for additional time to allow Attorney
Gleason to familiarize herself with the case as reasons in
support of the request. Counsel further stated that
additional time was needed to further investigate new
leads. Attorney Morrow also described his caseload and
general lawyering duties. In both the previous motion and
the renewed motion, counsel asserted that the lack of a
full staff in their office hindered their ability to
effectively and fully pursue their representation in this
and other cases in which they had been appointed. On August
25, 2004, the post-conviction court denied in a written
order the renewed motion, observing that counsel offered no
new argument, except for their extensive quoting of the
American Bar Association Guidelines. The petitioner
subsequently filed an application for permission to appeal
pursuant to Tennessee Rule of Appellate Procedure 10, which
was denied by this court on August 26, 2004. William R.
Stevens v. State, No. M2004-02050-CCA-R10-PD, Davidson
County (Tenn.Crim.App. Aug. 26, 2004), perm. to appeal
denied (Tenn. Aug. 27, 2004). This court concluded that the
post-conviction court did not so far depart from the
accepted and usual course of judicial proceedings as to
require immediate review.

Prior to the commencement of the hearing on August 30,
2004, counsel orally renewed their motion to continue in
open court. The court again denied the request for a
continuance.

The petitioner argues on appeal that the post-conviction
court abused its discretion in denying his request for a
continuance of the August 30, 2004, hearing date. He
contends that the court denied him a full and fair hearing
on his petition by forcing him to proceed with the hearing
after Attorney Tucci quit his position with the Office of
the Post-Conviction Defender but before Attorneys Morrow
and Gleason could adequately prepare for the hearing. The
petitioner alleges that, despite Morrow’s acknowledgment
that he was assigned co-counsel to this case upon the
appointment of the Office of the Post-Conviction Defender
in March 2003, Tucci was in charge of the case. According
to the petitioner’s argument, when Tucci left the office in
May 2004, the Post-Conviction Defender’s Office was
ill-prepared to go forward with the scheduled hearing
almost three months later.

The decision whether to grant a continuance rests within
the sound discretion of the trial court. State v. Hines,
919 S.W.2d 573, 579 (Tenn. 1995). The denial of a
continuance will not be disturbed on appeal unless it
appears the trial court abused its discretion resulting in
prejudice to an appellant, namely that the failure “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.

In assessing this claim, we briefly will review the
procedural history of this matter. Counsel were appointed
to represent the petitioner in March 2003. The original
hearing date of July 1, 2003, which the post-conviction
court recognized was unrealistic, was continued four times
upon the petitioner’s requests. Attorney Morrow filed a
motion on March 12, 2004, to continue the hearing date of
May 3, 2004. The only reasons offered in support of the
motion were a previously scheduled vacation by Attorney
Morrow and a conflict in the schedule of the investigator
assigned to this case. Presumably then, counsel were
otherwise prepared to go forward with the hearing on May 3,
2004. As for the final continuance, the trial court
continued the matter until August 30, 2004.

While Attorney Gleason stated she could not be prepared for
the hearing within one month of having been hired by the
Post-Conviction Defender’s Office, Attorney Morrow never
specifically explained to the post-conviction court why he
was not prepared after having been assigned to the case for
well over a year and a half. Morrow acknowledged he was
assigned to the case as soon as the Office of the
Post-Conviction Defender was appointed, and his name
appears on all motions and pleadings filed in the
post-conviction court. As noted above, Morrow was
presumably ready for the hearing in May were it not for his
previously planned vacation. Moreover, during the hearing
on August 12, 2004, Morrow advised the court he was not
interested in having the court appoint Tucci to continue
his representation of the petitioner, despite the fact that
Tucci informed the court he was willing to cooperate with
Morrow and provide him with whatever information he
possessed.

Attorney Tucci resigned three months before the scheduled
hearing. As the post-conviction court stated, before
setting any hearing date, the court conferred with counsel
for both parties to ensure there would be no conflict with
their schedules. Attorney Morrow offered no reasonable
explanation why three months was an insufficient amount of
time to review any work performed by Tucci, especially
given the fact that he was already involved in the matter
for over a year.

At the hearing, the petitioner presented to the court an
offer of proof he would have introduced had he been granted
a further continuance. It consisted of information
available to trial counsel or in existence at the time of
trial, which the petitioner argues should have been
investigated and revealed to the jury, and of witnesses
whom the petitioner claims he did not have time to depose
or call to testify at the post-conviction hearing. Counsel
did not state when they obtained the information which
comprised the offer of proof.

Although counsel never specified how much additional time
would be needed, Attorney Morrow stated before the hearing
on August 30, 2004, that “the kind of continuance we were
asking for, I think, was only a matter of months for Ms.
Gleason to get up to speed.” In fact, Morrow had “a matter
of months” after Tucci resigned. The bulk of counsel’s
argument in their brief before this court focuses on their
duties relating to representation of their client. Counsel
cites to numerous rules and guidelines governing every
attorney’s professional responsibilities but devotes little
time addressing actual prejudice to this case. Morrow was
counsel of record in this case beginning in March 2003.
There is no explanation as to why he did not have sufficient
time within the three months between Tucci’s departure and
the hearing date, or prior to May 2004 for that matter, to
discuss the case with Tucci. Tucci agreed to convey any
information regarding his knowledge of the case; however,
Morrow specifically informed the court he was not
interested in having Tucci continue representation. Indeed,
there is nothing in the record to show that any aspect of
the case was prejudiced by Tucci’s departure. Accordingly,
we conclude that the record does not reflect that the
post-conviction court abused its discretion in denying
another continuance of the evidentiary hearing.

II. Ineffective Assistance of Counsel

The petitioner claims that counsel were ineffective in a
number of areas, both at trial and during the appeal.

In order to determine the competence of counsel, Tennessee
courts have applied standards developed in federal case
law. See State v. Taylor, 968 S.W.2d 900, 905
(Tenn.Crim.App. 1997) (noting that the same standard for
determining ineffective assistance of counsel that is
applied in federal cases also applies in Tennessee). The
United States Supreme Court articulated the standard in
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052
(1984), which is widely accepted as the appropriate
standard for all claims of a convicted petitioner that
counsel’s assistance was ineffective. The standard is
grounded in the belief that counsel plays a role that is
“critical to the ability of the adversarial system to
produce just results.” Id. at 685, 104 S. Ct. at 2063. The
Strickland standard is a two-prong test:

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, 104 S. Ct. at 2064. The Strickland Court further
explained the meaning of “deficient performance” in the
first prong of the test in the following way:

In any case presenting an ineffectiveness claim, the
performance inquiry must be whether counsel’s assistance
was reasonable considering all the circumstances. . . . No
particular set of detailed rules for counsel’s conduct
can satisfactorily take account of the variety of
circumstances faced by defense counsel or the range of
legitimate decisions regarding how best to represent a
criminal defendant.

Id. at 688-89, 104 S. Ct. at 2065. The petitioner must
establish “that counsel’s representation fell below an
objective standard of reasonableness under prevailing
professional norms.” House v. State, 44 S.W.3d 508, 515
(Tenn. 2001) (citing Goad v. State, 938 S.W.2d 363, 369
(Tenn. 1996)).

As for the prejudice prong of the test, the Strickland
Court stated: “The defendant must show that there is a
reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would
have been different. A reasonable probability is a
probability sufficient to undermine confidence in the
outcome.” 466 U.S. at 694, 104 S. Ct. at 2068; see also
Overton v. State, 874 S.W.2d 6, 11 (Tenn. 1994) (concluding
that petitioner failed to establish that “there is a
reasonable probability that, but for counsel’s errors, the
outcome of the proceedings would have been different”).

Courts need not approach the Strickland test in a specific
order or even “address both components of the inquiry if
the defendant makes an insufficient showing on one.” 466
U.S. at 697, 104 S. Ct. at 2069; see also Goad, 938 S.W.2d
at 370 (stating that “failure to prove either deficiency or
prejudice provides a sufficient basis to deny relief on the
ineffective assistance claim”).

We note that when post-conviction proceedings have included
a full evidentiary hearing, as was true in this case, the
court’s findings of fact and conclusions of law are given
the effect and weight of a jury verdict, and this court is
“bound by the trial judge’s findings of fact unless we
conclude that the evidence contained in the record
preponderates against the judgment entered in the cause.”
Black v. State, 794 S.W.2d 752, 755 (Tenn.Crim.App. 1990).
The reviewing court must indulge a strong presumption that
the conduct of counsel falls within the range of reasonable
professional assistance, see Strickland, 466 U.S. at 690,
104 S. Ct. at 2066, and may not second-guess the tactical
and strategic choices made by trial counsel unless those
choices were uninformed because of inadequate preparation.
See Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982). The fact
that a strategy or tactic failed or hurt the defense does
not alone support the claim of ineffective assistance of
counsel. See Thompson v. State, 958 S.W.2d 156, 165
(Tenn.Crim.App. 1997). Finally, a person charged with a
criminal offense is not entitled to perfect representation.
See Denton v. State, 945 S.W.2d 793, 796 (Tenn.Crim.App.
1996). As explained in State v. Burns, 6 S.W.3d 453, 462
(Tenn. 1999), “[c]onduct that is unreasonable under the
facts of one case may be perfectly reasonable under the
facts of another.”

The post-conviction petitioner bears the burden of proving
his allegations by clear and convincing evidence. See Tenn.
Code Ann. § 40-30-110(f) (2003). When an evidentiary
hearing is held in the post-conviction setting, the
findings of fact made by the court are conclusive on appeal
unless the evidence preponderates against them. See Tidwell
v. State, 922 S.W.2d 497, 500 (Tenn. 1996). Where appellate
review involves purely factual issues, the appellate court
should not reweigh or reevaluate the evidence. See Henley
v. State, 960 S.W.2d 572, 578 (Tenn. 1997). However, review
of a trial court’s application of the law to the facts of
the case is de novo, with no presumption of correctness.
See Ruff v. State, 978 S.W.2d 95, 96 (Tenn. 1998). The
issues of deficient performance of counsel and possible
prejudice to the defense are mixed questions of law and
fact and, thus, subject to de novo review by the appellate
court. See Burns, 6 S.W.3d at 461.

On appeal, the petitioner argues that requiring him to
prove both prongs of the Strickland test by clear and
convincing evidence “violates clearly established United
States Supreme Court precedent.” We respectfully disagree
with the petitioner’s interpretation of Sepulveda v. State,
90 S.W.3d 633 (Tenn. 2002), as well as his view of the
ruling of the post-conviction court in this matter. In fact,
that court simply applied the holding of Strickland and
concluded that the petitioner failed to prove his claims by
clear and convincing evidence. This claim is without merit.

Additionally, the petitioner argues that this court “must
disregard the conclusions of the post-conviction court and
review all factual finding[s] and legal conclusions de
novo.” He contends that the standards applied by the
supreme court in Sepulveda, for a petitioner to prove
ineffective assistance of counsel in a post-conviction
petition, and Fields v. State, 40 S.W.3d 450 (Tenn. 2001),
for an appellate court to review a post-conviction court’s
findings of facts and conclusions of law, are erroneous.
However, this court is bound by the decisions of our
supreme court, and we must adhere to the standard of review
set out in Fields. This claim is without merit.

Guilt Phase

A. Jury Selection

The petitioner argues that his trial attorneys failed to
conduct an adequate voir dire and to challenge certain
jurors for cause, especially as to “death qualification.”
Specifically, he argues that trial counsel should have
exercised a peremptory challenge or challenged for cause
Juror Robert Asbury and that the trial court should have
excused him “on its own motion.” He also argues that trial
counsel were ineffective in similar fashions as to Jurors
Jill Mersman, Edward Marks, John Doezema, Robert Woods,
Kenneth Sterling, and Pamela Roberts.

In denying relief as to this part of the ineffective
assistance of counsel claim, the post-conviction court
concluded that the petitioner was second-guessing decisions
of trial counsel:

Petitioner elicited testimony from counsel regarding the
issue and referenced specific jurors by name. Though
counsel could not recall specifics about some of the
jurors, [trial counsel] said he recalled the voir dire
process. He remembered using all of his peremptory
challenges to strike jurors he, [co-counsel] and
petitioner collectively thought should be stricken, noting
that petitioner took an active role in jury selection.
When asked why he did not move for more challenges for
cause, [trial counsel] responded that he understood the
law and the process of rehabilitation. As to each juror,
he chose not to challenge for cause if they were
sufficiently rehabilitated in his mind.

[Trial counsel] also explained that the jury selection
process was a “numbers game.” The process necessarily
required him to select those jurors counsel and petitioner
believed would be best suited to hear the case.

At this post-conviction level, petitioner attempts to
attack various answers given by certain jurors. He claims
these select answers, some given during individual voir
dire and others given as responses in jury
questionnaires, support exclusion of those jurors. In
hindsight an attorney’s performance can always be second
guessed. Further, hindsight permits an analysis of these
select answers given by a prospective juror during the
selection process.

The Court recognizes that jury selection is a “process.”
While jurors give answers in jury questionnaires which
would seem to indicate they believe one way or the other
about the death penalty[,] their responses in open court
differ greatly. Counsel said he took all of the answers
as a whole, consulted with co-counsel and petitioner and
used all of his peremptory challenges to strike those
jurors deemed most detrimental to their case.

This Court concludes that counsel’s performance did not
fall below the acceptable standard enumerated in
Strickland and Baxter v. Rose. This claim is without
merit.

We will review the petitioner’s claims as to these jurors.

Juror Robert Asbury, an attorney with a solo practice in
Nashville at the time of the trial, said, during voir dire,
that serving on the jury would be a financial imposition
but would not preclude his paying attention to the trial.
He ranked himself an eight on a scale of ten in favor of
the death penalty but said he would listen to all of the
evidence and consider all possible punishments. After he was
empaneled as a juror, Asbury wrote a letter to the trial
judge, saying that his practice would suffer during his
service and that he was “shocked” defense counsel would
choose to keep someone with his “pro-prosecution and
pro-death penalty background.” He asked the court to excuse
him from the jury. The trial court thereafter conducted a
hearing concerning the request, at which Asbury testified
that he wrote the letter because of his concern that
information of a pending civil lawsuit against his wife
might end up in the press if it were learned he was serving
on this jury. Asbury said that if his name was not released
publicly, he “certainly . . . could be fair and impartial.”
At no time during the court’s questioning did Asbury
mention his view of capital punishment, and trial counsel
stated he did not have any objection to Asbury remaining on
the jury. Additionally, the court asked the petitioner if
he had any reservations about Asbury sitting on the jury,
and the petitioner, likewise, stated he did not. The trial
court then concluded that Asbury could remain on the jury.
The record supports the finding of the post-conviction
court that the petitioner failed to show trial counsel were
ineffective in not exercising a peremptory challenge or
challenging for cause Juror Asbury.

As to the petitioner’s additional claim that the trial
court erred in not excusing Asbury on its own motion, he
failed to establish any basis for the court’s doing so. His
claims in this regard are not supported by Asbury’s
responses during jury selection. Similarly, the petitioner
contends appellate counsel was ineffective for not raising
the issue on appeal. The claim would have been baseless at
trial, as well as on appeal.

The petitioner argues that counsel should have challenged
Juror Jill Mersman because she “could never consider a
sentence of less than death under the circumstances of
[the] case,” and she knew the petitioner’s ex-wife, Vickie
Stevens. However, the record does not support the
petitioner’s view of the responses made by this juror. As
for the petitioner’s claim that Juror Mersman said that she
would consider only a sentence of death for the facts
presented to her in the case on trial, we respectfully
disagree that she so testified. As for the claim she should
have been excused from the jury because she “knew” the
petitioner’s ex-wife, testimony showed that she encountered
Vickie Stevens only in passing at her workplace. Trial
counsel testified that he was satisfied that Juror
Mersman’s contact with Ms. Stevens was so minimal as not to
be of concern. The record supports the finding of the
post-conviction court that trial counsel were not
ineffective in not exercising a peremptory challenge or
challenging for cause Juror Mersman.

The petitioner argues that trial counsel also should have
challenged Jurors Edward Marks, John Doezema, Robert Woods,
Kenneth Sterling, and Pamela Roberts because of their
opinions as to various aspects of the imposition of capital
punishment. However, the petitioner’s arguments in this
regard rely upon his characterizations of the responses
given by these jurors. The record supports the
determination by the post-conviction court that the
petitioner failed to show that trial counsel were
ineffective in their decisions as to these jurors.

Without elaboration, the petitioner makes the general claim
that trial counsel failed to conduct an adequate voir dire
on the meaning of mitigation and pretrial publicity.
However, he fails to explain in what aspects the voir dire
questions were insufficient or how he was prejudiced by
counsel’ s alleged inadequacies. Likewise, he offers no
argument in support of his claims that the State’s argument
to the jury about the burden of proof for mitigation was
erroneous or that the trial court’s instruction suggested
that the death penalty was “mandatory in certain cases.”
These claims are without merit.

B. Errors as to Witnesses Corey Milliken and Gregg McCrary

1. Codefendant Corey Milliken

The defense theory at trial was that Corey Milliken acted
alone. The petitioner contends counsel were ineffective by
not calling Milliken to testify, so that he could be
impeached with his inconsistent statements to the police.

The post-conviction court found that trial counsel had made
a “strategic decision” in deciding not to call Milliken as
a witness:

At the post-conviction hearing, counsel testified he
considered the effect of Milliken’s testimony in light of
the inconsistent statements given by Milliken. While
counsel acknowledged a potential benefit from a portion of
Milliken’s testimony, he also faced the likely possibility
that Milliken might testify consistently with the
statement which directly implicated petitioner in the
murders. This anticipated occurrence was confirmed by the
testimony of Ross Alderman, the co-defendant’s attorney.
Trial counsel said he had to make the strategic decision
not to call [Milliken] as a witness. Based on this
decision, determining the witness'[s] availability was
unnecessary.

We will review the petitioner’s claims. Milliken gave two
statements to the police, saying in the first that he acted
alone in the killings. However, in his second statement, he
said that he was hired by the petitioner to kill the two
victims. Neither statement was introduced into evidence at
trial. By the petitioner’s view, if Milliken had been
called to testify and invoked his Fifth Amendment right
against self-incrimination, the trial court would have
declared him an unavailable witness under Tennessee Rule of
Evidence 804(a) and allowed his statements to be
introduced.

At the evidentiary hearing, trial counsel explained that he
made the strategic choice not to call Milliken because he
did not want the jury to hear him directly implicate the
petitioner. Milliken’s attorney testified that, had his
client been called to testify at the trial, he would not
have invoked his Fifth Amendment right against
self-incrimination but would have testified, consistent with
his second statement, that he had been hired by the
petitioner to kill the two victims. While the petitioner
has a theory as to how trial counsel might have
successfully countered Milliken’s testimony that the
petitioner had hired him for the killings, it is sheer
speculation that this strategy would have been successful.
Further, the petitioner’s theory as to how evidence of
Milliken’s troubled past, as recounted by Dr. Kenner during
the evidentiary hearing, would have countered any adverse
effects of his testimony implicating the petitioner again
relies upon the speculation that this testimony would have
had the anticipated effect on the jury. The record supports
the determination of the post-conviction court that the
petitioner failed to show that trial counsel were
ineffective in their decision not to call Milliken as a
witness.

Additionally, the petitioner argues that, had trial counsel
called Milliken as a witness, he could have been impeached
with his first statement to the police. However, as
explained in Neil P. Cohen et al., Tennessee Law of
Evidence, § 6.13[2][d] (5th ed. 2005), “a witness
may not be impeached primarily for the purpose of
introducing a prior inconsistent statement.” See State v.
Jones, 15 S.W.3d 880 (Tenn.Crim.App. 1999).

Even if the petitioner were correct that, by calling
Milliken as a witness, trial counsel could have impeached
him with his first statement, the fact remains that
Milliken then would have been subject to cross-examination
by the State and, according to his attorney, would have
testified that his second statement, implicating the
petitioner, was the truthful one. The post-conviction court
found that trial counsel were not ineffective by not
calling Milliken to testify, and, as we have said, the
record supports this determination.

2. Expert Witness Gregg McCrary

The petitioner argues that trial counsel were ineffective
in the handling of their expert witness, Gregg McCrary, who
had been retained to testify about the behavior and
motivation of the perpetrator of the crimes. The defense
intended his testimony to support their theory that
Milliken killed the victims for sexually motivated reasons.
The trial court permitted McCrary to testify as a crime
scene expert, and the court’s limits on his testimony were
affirmed on appeal. Stevens, 78 S.W.3d at 829-36. The
post-conviction court found that this claim was without
merit:

[P]etitioner challenges counsel’s failure to adequately
prepare the expert obtained by trial counsel. Specifically
noting the purported testimony of former F.B.I. Agent
Gregg McCrary, petitioner blamed counsel for the Court’s
exclusion of his testimony. It is often that counsel
brings an expert before the Court in an attempt to present
testimony on a various issue. In this case, trial counsel
called McCrary for a specific purpose. McCrary testified
to the Court about the nature and extent of his
testimony. That the Court . . . eventually excluded the
testimony on evidentiary grounds does not equate to
ineffective assistance of counsel. This claim is without
merit.

At the trial, McCrary testified that the crime scene in
this case resembled a “disorganized sexual homicide scene.”
Id. at 830. The petitioner argues that trial counsel “put
all their eggs in one basket by using Mr. McCrary to
present proof that Milliken acted alone and had a sexual
motivation for the killings.” Similarly, the petitioner
argues that counsel failed to make an appropriate pretrial
motion to determine the admissibility of McCrary’s
testimony. As we understand, the petitioner argues that
either an expert other than McCrary should have been
utilized or trial counsel should have obtained a pretrial
ruling and been better prepared during the hearing on the
admission of McCrary’s expert opinion. As the State
observes, the petitioner did not offer any additional proof
at the evidentiary hearing that he believed counsel should
have presented at the trial.[fn2] The jury learned through
other testimony that Milliken was sexually infatuated with
one of the victims. McCrary’s testimony, in fact, supported
the defense theory that this was a sexually motivated
crime. Counsel’s decision to call McCrary was strategic,
and the petitioner has failed to show how this decision
fell below the objective standard of reasonableness.
Moreover, the petitioner has failed to demonstrate how the
trial court’s ruling regarding the acceptance of McCrary as
an expert on criminal behavior would have been different
had counsel requested a pretrial hearing on the matter or
presented additional authorities when the matter was heard
during the trial. As previously noted, the supreme court
reviewed this matter on direct appeal and determined the
type of testimony intended for McCrary to be inadmissible.
These claims are without merit.

C. Testimony of Sarah Suttle and Shawn Austin

The petitioner contends that counsel were ineffective when
they “incomprehensibly entered into a bargain” to obtain
before trial the statements of Sarah Suttle and Shawn
Austin. According to the petitioner, trial counsel’s
agreement not to question these two witnesses at trial
about their refusal to talk to the defense in exchange for
statements to which they were otherwise entitled negatively
impacted the defense of the case.

Trial counsel testified that the parents of Suttle and
Austin refused to allow them to talk to the defense, and
counsel knew the State was planning to call both as
witnesses at the trial. Because trial counsel believed they
could be important witnesses, he made an agreement with the
State that he would not ask them about their refusal to
speak to defense counsel prior to trial. Although the
petitioner argues to the contrary, he did not establish
that he was prejudiced by this agreement.

Similarly, the petitioner contends that trial counsel were
ineffective in not objecting to the hearsay testimony of
Suttle and Austin, both of whom testified at length at the
trial. He has not identified any of the statements of
Austin or Suttle which he believes was inadmissible
hearsay. Although trial counsel did not raise a hearsay
objection to this testimony, the petitioner speculates that
“[a]lthough difficult to cull from the record, presumably,
the exception used by the Court in the case sub judice
could be the co-conspirator exception.” He then proceeds to
analyze generally whether Austin and Suttle could have met
the definition of “conspirator” and concludes that neither
could.

At the post-conviction hearing, trial counsel testified
that he made numerous hearsay objections at trial which
were overruled and that he wanted to maintain some
credibility with the jury. The post-conviction court
determined counsel was not ineffective in this respect:

[The petitioner] bases his argument on his
characterization of the testimony and the nature of the
role these witnesses played in the offense. He presumes
neither Austin nor Suttle would not be found to be a true
co-conspirator. Further, petitioner’s position ignores
the strategical decision made by counsel to refrain from
excessive objections. An overall examination of the
testimony reveals that the Court would not have excluded
much of the testimony. Had trial counsel objected, it is
likely the Court would not have sustained an objection to
all of the evidence. To the extent small portions of the
testimony could arguably have been excluded, admission of
such minimal testimony does not constitute prejudice
sufficient to warrant relief.

The record supports this determination by the
post-conviction court.

D. Statements Regarding the Petitioner’s Demeanor

The petitioner argues that “Officer Clement was allowed to
testify at trial that there was an air of artificiality
about [the petitioner’s] reaction to the death of his wife
and mother-in-law [and] [a]lthough the defense tried to
object, the gist of his testimony was allowed.” We disagree
with the petitioner’s view of what occurred at trial. In
fact, after trial counsel objected to Officer Clement’s
testimony about an “undercurrent of artificiality” in the
defendant’s actions, the court sustained the objection,
instructing “describe what you observed, but, not
generalize.” This claim is without merit.

The petitioner argues that counsel should have objected to
Lane Locke’s testimony that the petitioner declined to
attend his wife’s funeral and “never showed remorse or
emotion” over her death. He does not suggest what the legal
basis might have been for such an objection. Accordingly,
there is no merit to this claim.

E. Evidence as to Monetary Motive

The petitioner argues that counsel were ineffective in not
objecting to the hearsay statements of Doris Trott that
Myrtle Wilson told her the petitioner never repaid any of
the money he borrowed from her and asked her to sign a
$10,000 life insurance policy, which she refused to do.
Trial counsel did, in fact, object to the testimony, but the
petitioner contends that the objection was incomplete or
erroneous and that counsel should have requested a limiting
instruction. He does not explain the type of limiting
instruction that would have been proper and concedes that
Trott’s testimony may have fallen under the “state of mind”
exception to the hearsay rule.

The petitioner argues that trial counsel were ineffective
in reacting to the State’s claim as to his having monetary
motives for the crimes. First, he asserts that the State
“argued without objection that one of the [p]etitioner’s
motives for the killings was to inherit Sandi’s `share'” of
an $82,000 certificate of deposit jointly owned by Myrtle
Wilson and her son, Larry Wilson. According to the
petitioner’s argument, “[t]he prosecution knew, and the
defense should have known, that any proceeds from the CD
going to [the petitioner] was a legal impossibility.” The
State responds that Tennessee Code Annotated section
31-3-120, which is relied upon by the petitioner as the
basis for this legal claim, did not become effective until
the year following the homicides. Further, according to the
State, the overriding fact as to this matter is that “the
petitioner apparently believed that he could inherit the
money.”

Relating why the petitioner wanted to kill his
mother-in-law, Myrtle Wilson, Shawn Austin said the
petitioner had told him that, after her death, “then, his
wife, Sandi, would get a third. And, . . . if she was
passed away, he would be the sole beneficiary being the
husband; so, he would get it.” Trial counsel testified that
he elected to cover this matter in his final argument,
which he did, arguing that the petitioner “wasn’t gonna get
a nickel, not one single nickel from that eighty-three
thousand dollars.” The petitioner argues that this response
was not sufficient and that trial counsel should have
“address[ed] this critical issue” with evidence.

While the petitioner argues that trial counsel should have
presented “evidence” that he could not inherit from his
wife, he did not present such evidence at the hearing. Even
if Tennessee law would not have allowed the petitioner to
inherit a portion of the proceeds of the CD, this fact
would appear to be irrelevant unless counsel additionally
could have shown that he was aware of this law. However, as
we have set out, the evidence was that the petitioner
believed, perhaps incorrectly, that, upon the death of the
two victims, he would inherit proceeds of the CD.
Accordingly, we conclude that this claim is without merit.

The petitioner argues that Larry Wilson, in his testimony,
implied that the petitioner had changed the amount of one
of his mother’s checks to the petitioner from $40 to $4000.
He argues that the joint signatory, Pat Chapman, the
daughter of Myrtle Wilson, “did not protest or inquire
about the check for more than five months.” The petitioner
acknowledges, and the record reflects, that trial counsel
tried to interview Pat Chapman, but she refused to talk to
him. The petitioner argues that trial counsel’s “answer is
unacceptable” that he did not call Chapman to testify
because he did not know what she would say. We note that
the petitioner did not present Chapman to testify at the
evidentiary hearing. We cannot speculate that her testimony
would have been favorable to the petitioner as he assumes
would have been the case. See Black, 794 S.W.2d at 757.
Additionally, the petitioner has failed to show that a
basis for his claim that a witness who refuses to speak
with counsel should be called to testify nonetheless so
long as it appears that the witness might testify
favorably.

The petitioner argues that trial counsel were ineffective
in “failing to be prepared with evidence of the checks made
payable to Pat Chapman and others which would have shown
that [Myrtle] Wilson was writing checks to distribute” the
proceeds of the $10,000 CD. However, as the State points
out, the petitioner neither presented proof at the
evidentiary hearing as to these checks nor questioned
counsel about them.

F. Victim Sandi Stevens’ Diary

The petitioner argues counsel were ineffective in that they
should have obtained a medical expert to review the
victim’s diary so that the jury could have learned the
victim apparently was writing her entries while under
medication. In support of his argument, the petitioner
relies upon the testimony of Dr. Kenner at the
post-conviction hearing. We note that trial counsel
unsuccessfully challenged the admission of the diary on
direct appeal. Stevens, 78 S.W.3d 846-48. The petitioner
does not allege that he questioned trial counsel at the
evidentiary hearing about this claim, that he argued it to
the post-conviction court, or that it was ruled on by this
court. However, on appeal, he presents the claim that
“[h]ad the defense had [Sandi] Stevens’ medications
evaluated by a medical doctor, her diary could have been
seen by the jury in an entirely new light.” This is pure
speculation as well as a claim which this court is the
first to consider. It is waived because it was not
presented to the post-conviction court. Brimmer v. State,
29 S.W.3d 497, 530 (Tenn.Crim.App. 1998). Additionally, the
petitioner argues that counsel were ineffective for not
“request[ing] any kind of limiting instruction regarding
[Sandi Stevens’] diary entries that would have limited the
use of her diary solely to showing [sic] her state of mind
at the time.” Apparently, this claim also is made for the
first time on appeal, and the petitioner does not suggest
any language which would be appropriate for such an
instruction or provide any legal authorities which would
entitle him to such an instruction. Accordingly, this claim
is without merit.

[…]