Brimmer v. State (29 S.W.3d 497, 1998)

OPINION

GARY R. WADE, Judge.

The petitioner, David Allen Brimmer, was convicted of first degree murder on March 1, 1991. A jury imposed the death penalty based upon a single aggravating circumstance: that the petitioner was engaged in the commission of a robbery at the time of the crime. Tenn.Code Ann. § 39-13-204(i)(7). On direct appeal, the conviction and sentence were affirmed by our supreme court. State v. Brimmer, 876 S.W.2d 75 (Tenn.1994). On April 18, 1995, the petitioner filed a post-conviction petition alleging, among other things, that he was denied the effective assistance of counsel. At the conclusion of the eviden-tiary hearing, the trial court denied relief.

In this appeal of right, the petitioner presents the following issues for our review:

(I) whether the petitioner was denied the effective assistance of counsel;

(II) whether the petitioner’s confession should have been excluded from the evidence;

(III) whether there was prosecutorial misconduct during the course of the trial; and

(IV) whether various constitutional violations and trial errors entitle the petitioner to relief from his death sentence.

We affirm the denial of post-conviction relief on the conviction of first degree murder. Due to the ineffective assistance of defense counsel in the sentencing phase of the trial, we reverse the penalty of death and remand to the trial court for a new hearing.

On the evening of October 22, 1989, the victim, Rodney Compton, was to have returned to the Knoxville airport from a cruise to the Bahamas. Sixteen days later, his body was discovered in a hayfield in rural Loudon County. An autopsy established that his neck had been cut. Suffocation and strangulation were the probable causes of death.

On February 3, 1990, the petitioner was arrested on unrelated charges in Refugio, Texas. It was determined that he was driving the victim’s pickup truck. The victim’s jacket and a pair of handcuffs were inside the vehicle. Three weeks later, the petitioner confessed that he had killed the victim. He told officers that on the evening of October 22, the victim had offered him a ride in his truck. While conceding that he had intended to rob the victim, the petitioner claimed that when the victim made sexual advances, he represented to the victim that he was a police officer and then “arrested” and handcuffed the victim. The petitioner revealed that he then drove the victim to a location in Anderson County, choked him to death, and returned to Loudon County where he disposed of the body. While being returned to this state from Texas, the petitioner informed officers that he had killed the victim in a park in Anderson County. Another source indicated that the petitioner had been in Anderson County at the time of the victim’s disappearance. Other evidence established that only a few days after the disappearance of the victim, the petitioner was seen in possession of the victim’s truck, his jacket, and several of the souvenirs that had been purchased in the Bahamas. See Brimmer, 876 S.W.2d at 78.

During the course of trial, the petitioner was initially represented only by Attorney Thomas DePersio. When the petitioner complained to the trial court about his lack of communication from DePersio, Michael Clement was appointed. Clement, who had three years’ experience in the law practice, had not been previously involved in a capital case. He recalled that he had not utilized an expert in any prior criminal case, although he “may have [used one] in a personal injury matter.” Clement, who had completed only three jury trials before this case, was appointed as additional counsel approximately two months prior to trial. An investigator, Mike Cohan, was employed to assist the petitioner and his attorneys some five weeks prior to trial.

During the course of the evidentiary hearing on this post-conviction claim, Clement testified that soon after his appointment, he became the first of petitioner’s attorneys to review the state’s evidence. DePersio had not previously done so. Clement recalled meeting with DePer-sio on several occasions prior to trial. He also remembered that DePersio often drank beer during their meetings, some of which started as early as 9:00 A.M. Clement, a solo practitioner, described DePersio as having a heavy caseload as a public defender. Clement perceived DePersio as having a substance abuse problem and remembered that DePersio went to a bar at the conclusion of the penalty phase of the trial while the jury engaged in its deliberations. DePersio was not present when the jury sentenced Brimmer to death. Clement conceded that he made no complaints to either the public defender or the Board of Professional Responsibility about De-Persio’s conduct.

Prior to the trial, Clement had expressed concern to DePersio about the petitioner’s mental condition and suggested an evaluation. DePersio expressed his belief that psychological proof was “voodoo” and “did not work.” He also thought it was not particularly relevant in this case because the petitioner had denied committing the crime. DePersio did, however, consent to a psychological evaluation of the petitioner, which was later performed by Dr. Eric Engum. DePersio had no objections to the psychological proof as long as Clement “had to find the person, [ ] do the research, [and] prepare.... It was [Clement’s] issue.”

Clement recalled that the hearing on the defense motion to suppress the confession filed by DePersio was held long before his appointment to the case. At the suppression hearing, DePersio did not raise any psychological issues concerning the volun-tariness or accuracy of the confession. Clement recalled asking DePersio “why ... didn’t he raise any psychological issues at the suppression level.”

Clement also recalled that he and Dr. Engum had done research on the possibility of Prisoner of War Syndrome, based upon the twenty-one days the petitioner served in solitary confinement prior to his confession in Texas. He questioned De-Persio’s decision not to use Dr. Engum during the suppression hearing. It was Clement’s opinion that Dr. Engum would have been helpful in establishing how Brimmer “could have been broken and given a confession.”

Clement testified that when two attorneys represented a party defendant, it was customary in the Anderson County trial court for the specific attorney who conducted the cross-examination of a state witness to also take full responsibility for making objections to any inappropriate questions by the state. He remembered that DePersio, who cross-examined the Refugio County Sheriff, failed to object to a statement during trial that the petitioner had “killed before.” Clement could not recall why he himself had not done so, but insisted his failure to object was “unforgivable.” He also could not think of any reason why there was no motion for a mistrial or why the issue was not raised in the motion for a new trial. He remembered, however, that DePersio had been effective in cross-examining some of the state witnesses, creating inconsistencies among those present on the “killed before” allegation. Clement claimed DePersio did not get involved with the psychological components of the case because DePersio had insisted that “Dr. Engum was [in his] bailiwick.” Clement conceded that the trial court refused to grant a request by the defense for instructions on the subject of mitigating circumstances at the conclusion of the penalty phase of the proceeding.

Clement testified that he had given his best effort on behalf of the petitioner, although much of his time investment had been after his regular business hours. He utilized the discovery procedure soon after his appointment, had no difficulty in communicating with the petitioner, and had access to a forensic team’s evaluation of the petitioner which showed the petitioner was competent to stand trial and sane when he committed the offense.

The defense theory was that the petitioner did not commit the crime. Clement testified that there had been no attempt to establish an insanity defense. He explained that such a defense would have essentially required an acknowledgment that the petitioner committed the murder, but that it was due to a mental disease or defect. Clement recalled that the defense had been successful in its effort to bar any reference to the specific details of the prior killing in Massachusetts. The state had been ordered not to make any reference to the occurrence.

Clement recalled that he felt the defense had been “gutted” during the guilt phase when the trial court refused to allow Dr. Engum to testify. The defense strategy included a representation to the jury that Dr. Engum would appear on behalf of the petitioner. Dr. Engum would testify that the confession was the result of the Prisoner of War Syndrome. Clement “had no idea that Dr. Engum’s testimony was going to be disallowed during the guilt phase.” The theory at trial was to “show the jury that these people in Texas treated [Brimmer] like a prisoner of war and he ... became a babbling idiot and said anything they wanted [him] to say. But that [evidence] was disallowed by Judge Scott.”

At trial, there were general instructions to the jury on mitigating circumstances. The defense was allowed to argue that the petitioner was afflicted with Borderline Personality Syndrome and Abandoned Child Syndrome.

At the evidentiary hearing, Dr. Eric En-gum testified that at the time of his examination, he had records and letters from the Devereux Foundation, the John Byrne Center, the Ridgeview Psychiatric Hospital, and the Middle Tennessee Mental Health Institute concerning the petitioner. He concluded that the petitioner was competent to stand trial and that an insanity defense could not be supported. He recalled that he had informed defense counsel in early January, at least six weeks before the trial, that there was some evidence of mitigation. Dr. Engum had no further contact with trial counsel until the date the trial began. He acknowledged, however, that he conferred with defense counsel on a daily basis thereafter as to the voluntariness of the confession. He recalled that defense counsel first talked to him about mitigation evidence “an hour or so” before the penalty phase began. Dr. Engum acknowledged that defense counsel never specifically asked about the statutory mitigating circumstances, something which was typically done in his prior experience with capital cases. There was some mitigation evidence. Dr. Engum did testify about his diagnosis of borderline personality disorder and specifically recalled commenting about the possibilities associated with Abandoned Child Syndrome and Burned Child Syndrome.

Dr. Ann Marie Charvat, a clinical sociologist, also testified at the evidentiary hearing. Having been employed in approximately fifty capital cases, she did not participate in the trial but, sometime afterward, had prepared a social history assessment of the petitioner at the request of post-conviction counsel. While acknowledging that she had not advertised the availability of her services prior to the trial, Ms. Charvat assessed what, in her view, should have been done for the petitioner on the subject of mitigation. Dr. Charvat prepared a report, called a “mitigation time line,” which was entered into evidence without objection from the state. Dr. Charvat described the time line as “the outline that I would have followed if I had done the investigation.”

Dr. Charvat testified that she usually goes through various steps in preparing mitigation for trial: (1) interviewing the defendant and attorneys; (2) obtaining documentation of the individual’s life beginning with birth records; (3) interviewing witnesses she discovers from the documents; (4) interviewing significant family members; and (5) clarifying mitigation factors for presentation to the jury. In the petitioner’s case, however, she only interviewed the attorneys from the petitioner’s trial, reviewed the materials provided by the attorneys and collected a “substantial amount of documentation that included some school records [and] some of his early intervention records.” She also interviewed the petitioner extensively. Other than petitioner’s attorneys and the petitioner himself, Dr. Charvat did not interview any other witnesses. On cross-examination, Dr. Char-vat conceded that she had no way of knowing if any of the witnesses uncovered in her investigation would actually testify in court.

The mitigation time line report shows the petitioner’s mother had a “serious drinking problem” and neglected, malnourished, and abused the petitioner and his siblings. When the petitioner was three years old, he was placed in foster care and separated from his siblings. When he was seven, he was placed in the Hansen foster home and subjected to severely “ritualized” physical abuse while in their custody. He was also forced to live in the basement while the Hansen’s biological children lived in the main area of the house. The Hansen’s natural children were not abused.

At age thirteen, the petitioner was placed in Devereux Foundation, a home for mentally disturbed children. At the initial evaluation, the petitioner reported having numerous nightmares while living with his foster parents. The psychiatric evaluation conducted by Devereux Foundation showed the petitioner suffered Abandoned Child Syndrome and depression. The report indicated he also tended to reject interpersonal relationships in order to avoid rejection. Devereux Foundation reported the petitioner AWOL on occasion. He also ran away from his foster placements on various occasions.

The petitioner left Devereux Foundation after graduating from high school and lived as a drifter for several years. In 1982, at twenty years of age, he met Mary Barber, who would become the mother of his two sons. He lived with her sporadically. He was in and out of various hospitals for mental problems but never remained in one hospital long enough to get any type of qualitative treatment. Northwest Texas Hospital, where he stayed for less than one month, diagnosed him with “atypical psychosis.” A second stay at Northwest Texas Hospital resulted in a determination that the petitioner suffered “no real signs of deficit or psychosis.” A third diagnosis by Northwest Texas Hospital was that the petitioner had factitious disorder and anti-social personality disorder.

The mitigation time line also showed the petitioner had several brushes with the law for theft offenses, burglary, disorderly conduct and malicious mischief.

Attorney Tom DePersio, who had practiced law for eighteen years and also had engaged exclusively in the criminal law as an assistant with the Public Defender’s Office, had been involved in capital cases before that of the petitioner; in the prior instances, however, the cases had been resolved without an actual trial. He admitted that he had little contact with the petitioner during his representation and conceded that he had done “some, not much” of the investigation. An investigator from the Public Defender’s Office was available to gather files and other information. DePersio acknowledged that there had been no effort to obtain Texas records or to contact officers from that state prior to the pretrial suppression hearing on the admissibility of the confession. He recalled filing a motion for services but then not following through on the request. He also admitted that he had not sought a psychological evaluation of the petitioner to assist in the suppression hearing.

DePersio, who admitted that he was abusing alcohol and cocaine at the time of the trial, conceded that his abuse adversely affected his ability to give full attention to matters relating to the petitioner at that time. He recalled that he had filed an affidavit to that effect in the direct appeal. The Rule 12 report form of the trial judge made no mention of any inadequacies in his representation. See Tenn. Sup.Ct. Rule 12(D).

DePersio recalled that the petitioner had filed a pro se “Motion to Elect Counsel” on December 12, 1990. The petitioner alleged that he had not seen his attorney since May, 1990. At the motion hearing, the petitioner testified that he was not otherwise dissatisfied with his attorney and said, “[i]f I can just get to, you know, talk to them once in a while and know what’s going on.” After the hearing, Clement was appointed to assist in the representation of the petitioner.

DePersio claimed that the confession had been coerced. He specifically recalled a vigorous attack on the credibility of the sheriff during cross-examination. He acknowledged that he had not objected to the sheriffs reference to the petitioner’s comment that he had “killed before” because the reference, in context, was not particularly damaging and to object would have emphasized the point to the detriment of the petitioner. DePersio’s cross-examination also established that none of the other officers present during the interrogation had heard the petitioner say “he had killed before.”

In May of 1991, about two months after Brimmer’s trial, DePersio was placed on probation by the Board of Professional Responsibility. At that time, he also went through a four-month period of treatment for the substance abuse problem.

Ralph Harwell, who had practiced criminal law in the Knoxville area for twenty-seven years, examined certain of the trial records. He had been asked to determine whether defense counsel’s performance “had measured up to an objective norm in the profession at that time” and “whether or not any errors that happened were so serious as to deprive the defendant of a fair trial.” He was also asked to determine whether there was a reasonable probability that effective representation might have produced a different result. It was his opinion that the performance of defense counsel fell below the standards existing in 1991. Harwell pointed out that counsel should have had the petitioner examined by a psychiatrist or psychologist before the suppression hearing. He believed that counsel’s failure to raise the unreasonableness of the petitioner’s detention without a probable cause hearing in Texas fell below the minimum standards required in Tennessee and he faulted counsel for failing to object or seek a new trial based on the sheriffs testimony that the petitioner admitted “killing before.” He testified that the failure to investigate until two months prior to trial, the failure to object to the trial court’s refusal to instruct on applicable statutory mitigating circumstances, and the failure to include this issue in a motion for a new trial did not meet the minimum standards required of attorneys in this state.

On cross-examination, Harwell acknowledged that DePersio’s affidavit concerning his substance abuse problem, while filed as an exhibit with the appellate brief, did not address his competence as counsel. He was aware that the supreme court did indirectly address the issue, ruling that the defendant’s brief contained “innuendo and incomplete citations” and misleading argument. Brimmer, 876 S.W.2d at 78.

Dr. Sam Craddock, a licensed psychologist employed by the Middle Tennessee Mental Health Institute, had testified in the sentencing phase of this trial. After conducting a seventy-one day evaluation of the petitioner, his forensic team had concluded that the petitioner was not mentally ill at the time of the offense and that there was no basis for an insanity defense. At the evidentiary hearing, Dr. Craddock recalled that the petitioner had not been “forthcoming” in supplying informational sources which might have assisted the team in its evaluation. A woman from Birmingham, Alabama, with whom the petitioner had resided for a time, was contacted and interviewed by the forensic team. While she was deemed credible, her comments about the petitioner were inconsistent with an insanity defense. Dr. Craddock conceded on cross-examination that his diagnosis might have been different had more information consistent with insanity been discovered. Dr. Craddock recalled that the petitioner made no claim about being diagnosed at a Virginia hospital in 1986 as suffering from atypical psychosis or other mental disease. When asked if he would have been able to determine a psychosis, if present, Dr. Craddock responded as follows:

We suspected a psychosis, and anticipated seeing one, because he had been at Lakeshore [Mental Health Institute in Knoxville] before he was sent to forensic services. So we were watching carefully, and we saw some mild symptoms [that] gave us a suspicion of him being psychotic or schizophrenic. However, his behavior during our interviews wasn’t particularly consistent with what he was like on the residential unit. And with the opportunity to have the seventy-one days, we ruled out that he was psychotic, while with us.

⅜ ⅝ ⅝ ⅜ ⅝ ⅝

[0]ne of the tests that I gave was suggestive of symptom exaggeration, and it was primarily his ability to function well on the residential unit versus while he was during clinical interviews.

Tom Marshall, the Public Defender for Anderson County, who had assigned De-Persio to the case, testified that he had been involved in consultations from time to time during the preparations for trial and had no concerns about the quality of De-Persio’s performance. Marshall was aware of the petitioner’s pretrial complaints about his lack of contact with De-Persio and was aware of the formal hearing on the subject before the trial judge. He acknowledged receiving a few complaints that DePersio occasionally had alcohol on his breath but contended that he had investigated each complaint without finding corroborating evidence of impairment or “any qualitative problem with his representation.” Marshall testified that he had represented the petitioner on direct appeal when DePersio resigned from his employment as assistant public defender. Marshall believed that DePersio and Clement were effective in their representation of the petitioner.

I

In this appeal, the petitioner first argues that he received the ineffective assistance of counsel. He complains about the following specific deficiencies:

(a) abuse of alcohol and illegal drugs during the period of representation;

(b) failure to provide regular consultation;

(c) failure to present psychological testimony at the suppression hearing;

(d) failure to perform an adequate investigation;

(e) failure to address comments that the petitioner had “killed before”;

(f) failure to object to testimony about petitioner’s comments made during transport from Texas to Tennessee;

(g) failure to prepare or present psychological testimony in the sentencing phase;

(h) failure to include all possible grounds for relief in the motion for new trial; and

(i) failure to present as an issue the illegal detention of the petitioner.

In order to establish that his counsel was ineffective, the defendant must show that the advice given or services rendered were not within the range of competence of attorneys in criminal cases. Baxter v. Rose, 523 S.W.2d 930 (Tenn. 1975). He must also establish that but for his counsel’s deficient performance, the results of the trial would have been different. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

"When defense counsel “entirely fails to subject the prosecution’s case to meaningful adversarial testing, there has been a denial of Sixth Amendment rights that 'makes the adversary process itself presumptively unreliable.” United States v. Cronic, 466 U.S. 648, 659, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984). If there has been “an actual breakdown of the adversarial process,” no prejudice need be shown. Id. at 658, 104 S.Ct. 2039; Rickman v. Bell, 131 F.3d 1150 (6th Cir.1997), cert. denied, 523 U.S. 1133, 118 S.Ct. 1827, 140 L.Ed.2d 962 (1998).

The burden is on the defendant to show that the evidence preponderates against the findings of the trial judge who, in this instance, found in favor of the state. State v. Zimmerman, 823 S.W.2d 220, 224 (Tenn.Crim.App.1991); Clenny v. State, 576 S.W.2d 12 (Tenn.Crim.App.1978). The findings in the trial court on questions of fact may not be reversed on appeal unless the evidence preponderates otherwise. Zimmerman, 823 S.W.2d at 224; Graves v. State, 512 S.W.2d 603 (Tenn.Crim.App.1973).

In Strickland, the Court described the burden of proof as follows:

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. Unless a defendant makes both showings, it cannot be said that the conviction or ... sentence resulted from a breakdown in the adversary process that renders the result unreliable.

466 U.S. at 687,104 S.Ct. 2052.

To establish prejudice, the evidence stemming from failure to prepare a sound defense or present witnesses must be significant, but it does not necessarily follow that the trial should have otherwise resulted in an acquittal. See generally Nealy v. Cabana, 764 F.2d 1173, 1178-79 (5th Cir.1985); Code v. Montgomery, 799 F.2d 1481, 1483 (11th Cir.1986). There must be a reasonable probability that but for counsel’s unprofessional error, “the result of the proceeding would have been different,” not that it necessarily would have been different. Strickland, 466 U.S. at 693, 104 S.Ct. 2052. The probable re-, suit need not be an acquittal. A reasonable probability of being found guilty of a lesser charge, or a shorter sentence, satisfies the second prong in Strickland. See Zimmerman, 823 S.W.2d at 225 (citing Chambers v. Armontrout, 907 F.2d 825, 832 (8th Cir.1990)).

In Hellard v. State, 629 S.W.2d 4 (Tenn.1982), our supreme court made the following pronouncements:

Although ... we adopted a higher standard of competence for the legal representation required in criminal cases, we did not require perfect representation. Moreover, the defense attorney’s representation, when questioned, is not to be measured by “20-20 hindsight.”

It cannot be said that incompetent representation has occurred merely because other lawyers, judging from hindsight, could have made a better choice of tactics.... [W]e know that a criminal trial is a very dramatic, vibrant and tense contest involving many variables and that counsel must make quick and difficult decisions respecting strategy and tactics which appear proper at the time but which, later, may appear to others, or even to the trial lawyer himself, to have been ill-considered.

Id. at 9-10. In Hellard, our supreme court adopted the rationale of United States v. DeCoster, 487 F.2d 1197, 1201 (D.C.Cir.1973):

This court does not sit to second guess strategic and tactical choices made by trial counsel. However, when counsel’s choices are uninformed because of inadequate preparation, a defendant is denied the effective assistance of counsel.

Hellard, 629 S.W.2d at 9. Our supreme court has observed that “[cjourts are particularly cautious in preserving the defendant’s right to counsel at a capital sentencing hearing.” Goad v. State, 938 S.W.2d 363, 369 (Tenn.1996) (internal quotation marks omitted). When, as here, there has been no complete breakdown of the adversarial process, the question becomes whether the defendant was prejudiced by these deficiencies:

A convicted defendant making a claim of ineffective assistance must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance. In making that determination, the court should keep in mind that counsel’s function, as elaborated in prevailing professional norms, is to make the adversarial testing process work in the particular case.

Strickland, 466 U.S. at 690, 104 S.Ct. 2052.

(a)

The petitioner first argues that DePersio’s “severe alcohol and cocaine abuse problems” prior to and during the trial prevented DePersio from providing the effective assistance of counsel. He argues that “Mr. DePersio’s condition was, on its own, enough to severely prejudice [the petitioner’s] defense.”

The proof at the evidentiary hearing showed that DePersio regularly abused alcohol during the time he represented the petitioner. Attorney Clement testified that DePersio would arrive at early morning meetings with a six-pack of beer and that one or more of them would have already been consumed. Clement recalled that DePersio was at a bar during jury deliberations on the penalty. He believed DePersio to be “inebriated.” DePersio acknowledged consuming “a lot of alcohol and cocaine” during this time.

In State v. Hamrick, 688 S.W.2d 477, 481 (Tenn.Crim.App.1985), our court reviewed a claim of ineffective assistance where counsel suffered an “acute illness during the trial.” At one point during trial, counsel had to be taken to the Lou-don County Memorial Hospital. Id. The trial judge consulted with trial counsel and indicated that he would declare a mistrial if necessary. Counsel informed the trial judge he felt “good enough to continue.” Id. On appeal, the defendant argued he was denied the effective assistance of counsel. Relying on Strickland’s requirement of both deficiency in performance as well as a showing of prejudice, this court denied relief. Id. at 482. Both deficiency and prejudice must be shown. In this instance, the general condition of DePersio before or during the course of trial would not, standing alone, entitle the petitioner to relief.

There are few cases in this state in which a claim of ineffective assistance has been made due to counsel’s intoxication. In State v. John C. Garrison, however, one of the claims of ineffective assistance of counsel was that counsel was absent from work and did not adequately prepare for trial “due to depression or excessive alcohol use.” C.C.A No. 03C01-9702-CC-00047, slip op. at 25, 1998 WL 103318 (Tenn.Crim.App., at Knoxville, Feb. 27, 1998), app. filed, April 29, 1998. In Garrison, this court ruled that there must be a showing of prejudice before relief could be granted on the basis of alcohol abuse. Id.

These rulings are consistent with the majority of jurisdictions. See Jeffrey L. Kirchmeier, Drink, Drugs, and Drowsiness: The Constitutional Right to Effective Assistance of Counsel and the Strickland Prejudice Requirement, 75 Neb. L.Rev. 425, 453 (1996). The federal courts have ruled that the abuse of drugs or alcohol is not “in and of itself, relevant to an ineffective assistance claim.” Berry v. King, 765 F.2d 451, 454 (5th Cir.1985). The Fifth Circuit has followed this reasoning even where the allegations supporting the ineffective assistance claim were that the defendant could smell alcohol on the attorney’s breath during the trial and that, immediately afterward, the attorney entered a facility for treatment of alcohol abuse. Burnett v. Collins, 982 F.2d 922, 930 (5th Cir.1993).

It is of particular concern that in a case of this magnitude, one of the two defense attorneys suffered from alcoholism or drug addiction. Professional standards demand much of the bench and the bar. Litigants expect and deserve sobriety among the officers of the courts. These circumstances reflect poorly on the criminal justice system. Yet alcohol or drug abuse by the defense attorney, without specific proof of its effect on performance, does not merit relief.

(b)

The petitioner’s next complaint is that counsel failed to engage in regular consultation. Prior to trial, the petitioner filed a motion seeking new counsel. The petitioner complained that he had not seen his attorney in seven months, except for a few moments before the suppression hearing, which had been held some five months earlier. At the hearing, the petitioner described their meeting as follows:

We didn’t have any kind of conference. It was just, I came into the court room and came up here, did it, and then went back. No follow up and nothing beforehand — before or after.

DePersio admitted that he did not consult with the petitioner. Clement’s testimony corroborates the claim that DePersio did not engage in any meaningful conversations with the petitioner. Yet Clement testified that he himself had met with the petitioner on several occasions.

The trial court found as follows:

(D) Failure to consult with the petitioner at all crucial stages of the proceedings. At the [post-conviction] hearing, the petitioner chose not to testify.... There is some evidence petitioner sought new counsel pretrial ... but the record reflects that the petitioner abandoned his motion_ No [other] evidence was presented that the petitioner’s other attorney failed to adequately communicate with him. The court concludes that the petitioner has failed to meet his burden of proof regarding this allegation.

In Baxter v. Rose, our supreme court emphasized the importance of consultation between the attorney and client. 523 S.W.2d at 934. The purposes are to “elicit matters of defense” and apprise the accused of “potential strategies and tactical choices.” Id. at 933.

Clearly, DePersio failed to achieve the minimum standards in the area of client consultation. On the other hand, Attorney Clement, who was appointed about two months before the trial, did regularly confer with the petitioner on matters pertinent to his defense. His effort is worthy of mention. The question is whether the petitioner has shown by a preponderance of the evidence that DePersio’s failure to meaningfully communicate with him from May of 1990 through November of 1990 affected the outcome of the trial.

The short answer is no. There are few indications in the record that DePersio would have changed the trial strategy had he conferred more regularly with Brimmer during this period of time. Because the petitioner has failed to satisfactorily prove how this lack of communication might have affected the results of the trial, no relief can be granted on this basis. In this regard, the evidence does not preponderate against the findings of the trial court.

(c)

The petitioner also argues that his attorneys were ineffective for failing to present psychological testimony at the suppression hearing. He contends that psychological testimony should have been used to “show that [he] was especially susceptible due to mental and emotional disorders and may have told the authorities whatever they wished to hear.” He submits that his trial counsel failed to consider the use of psychological evidence until several months after the suppression hearing and points out that Dr. Engum had not been asked to render an opinion on the confession until the trial began.

At trial, defense counsel sought to introduce Dr. Engum’s testimony to show that the petitioner may have given a false confession due to “Prisoner of War Syndrome.” The state objected and the trial court conducted an extensive jury out hearing during which Dr. Engum testified that sensory deprivation occurring in solitary confinement might result in a false statement by the prisoner in order to please his captors. Dr. Engum testified that the petitioner was susceptible to giving a false confession. The trial court excluded the evidence as unreliable but also observed that this psychological testimony “would have been vitally important for the record at the time I made my decision [at the suppression hearing].”

In the original appeal, the petitioner argued that the trial judge’s ruling amounted to a violation of his right to present a defense. Brimmer, 876 S.W.2d at 79. Our supreme court, however, ruled that the trial court did not abuse his discretion by disallowing the testimony. Id. In consequence, that issue may not be revisited by this court.

At the post-conviction hearing, the trial judge made the following findings as to this claim:

(A) Failure to adequately investigate all pretrial motions, including motions for investigative services and motions relating to the suppression of his confessions while in custody in Texas. Trial counsel investigated and fully litigated all Fifth and Sixth Amendment claims relating to the petitioner’s confessions in Texas. The issue was determined to be without merit in the trial court and on direct appeal. The petitioner has failed to meet his burden of proof with respect to any other possible claims relating to the suppression of his confessions.

In our view, the petitioner has shown no prejudice by the failure to present psychological evidence at the suppression hearing. Whenever the claim of ineffective assistance is based on the failure to submit proof, there must be a showing of what the evidence would have been. Davis v. State, 912 S.W.2d 689, 698 (Tenn.1995). In the absence of that, there can be no speculation as to what the psychological evidence “would have shown and ... how it would have benefitted” the petitioner. Id. No such evidence appears in this record.

Moreover, even if the testimony of Dr. Engum had been presented at the suppression hearing, the confession would not have been excluded. In Colorado v. Connelly, 479 U.S. 157, 164, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986), the United States Supreme Court ruled that “a defendant’s mental condition, by itself and apart from its relation to official coercion” does not render a statement involuntary. Because the rule of exclusion has been established as a deterrent to police misconduct, coercive activity on the part of law enforcement is a necessary predicate to finding that a confession is not voluntary under the Due Process Clause. Id. at 165.

(d)

The petitioner also makes the general claim that his trial counsel failed to perform an adequate investigation. Assistant District Attorney Jan Hicks filed a sworn statement that she advised DePer-sio of her office’s open file policy in May of 1990. She stated that DePersio never “avail[ed] himself of this offer.” No discovery was conducted until Clement was appointed co-counsel seven months later. Clement testified that Ron Johnson, an attorney with the public defender’s office, had conducted some investigation. Also, the trial court appointed an investigator, Mike Cohan, to assist in the preparation of the defense.

In Baxter v. Rose, 523 S.W.2d at 932, our supreme court set forth the following standards on investigation:

Counsel must conduct appropriate investigations, both factual and legal, to determine what matters of defense can be developed. The Supreme Court has noted that the adversary system requires that all available defenses are raised so that the government is put to its proof. This means that in most cases a defense attorney, or his agent, should interview not only his own witnesses but also those that the government intends to call, when they are accessible. The investigation should always include efforts to secure information in the possession of the prosecution and law enforcement authorities. And, of course, the duty to investigate also requires adequate legal research.

The preparation of the defense was delayed by the inaction of DePersio. Professional standards require a more timely effort. Yet there has been no proof offered as to what more trial counsel would have discovered had he begun the investigation earlier. Thus, we agree with the assessment of the trial judge that the petitioner has failed to establish prejudice.

(e)

The petitioner also complains that his trial counsel was ineffective for failing to object to testimony at trial that he had “killed before.” The state argues that counsel properly wanted to avoid any emphasis on the statement in the presence of the jury.

Sheriff Jim Hodges, of Refugio County, Texas, testified during direct examination as to the circumstances surrounding petitioner’s written confession:

We talked to him, and he said that he did kill this Mr. Compton and that the reason — I had told him that I felt like he had killed before and that was the reason he was holding back, because he didn’t want to tell about everything. And so he said, yeah, you’re right. I have killed before, and I did kill Mr. Compton.

The reference does not appear to have been solicited by the state and no objection was made to this testimony.

On re-direct examination at trial, the following exchange occurred:

Prosecutor: How far did you actually get into the interview, when you all first set down for the interview, before he started crying?

Sheriff Hodges; Probably right after he came back with the jailer and sat down and we started talking to him and he started answering questions; and the more we got into it, you know, it was catching up with him and, like I say, he was just unloading and he had this burden that was bothering him a lot about this murder and some others.

On re-cross, the following exchange occurred:

DePersio: Now then, from the time that he began to talk after the jailer brought him back, was Moldenhauer and Hernandez present?

Sheriff Hodges: Yes, sir.

DePersio: So if he had said, I’ve killed before, they would have heard that; is that correct?

Sheriff Hodges: I would think so. I’m not sure.

In the very last paragraph of closing argument at the guilt phase, the state made the following argument:

There is ... what one would call the Soddi defense, S-O-D-D-I. Some other dude did it. Who? It’s not there. It’s easy though to fantasize. One could fantasize anything. One could fantasize Martians coming down and doing it. But that’s not what the proof in this case is. I trust you to use your common sense....

Mr. DePersio said something to you and I have the right to respond, to make a fair response to something that he said. And what he said to you and I quote, “Nothing in his background to suggest he is a killer.” Recall what the sheriff said to him when he was alone with him. He said, son, you’ve killed before. And that’s truth, members of the jury, not speculation.

(Emphasis added).

At the post-conviction hearing, DePersio testified that he had filed a motion in limine to limit reference to any prior crimes. He recalled that his usual practice in this type of situation, where a state witness has not complied with a pretrial order limiting testimony, is to address the matter outside the jury’s presence diming a recess. DePersio acknowledged he did not do that in this case. He testified, however, that he did not make a contemporaneous objection because he did not want to draw further attention to it. Clement characterized his own failure to object as unforgivable.

On direct appeal, the petitioner argued that the admission of this testimony denied him his right to due process. Brimmer, 876 S.W.2d at 80. Our supreme court ruled as follows:

Our investigation of these complaints indicates initially that the issue was waived. There was no contemporaneous objection when any of these allegedly objectionable remarks were made. Defendant did not request the Court to instruct the jury to disregard comments about other killings.... Moreover, this issue was not raised on the motion for new trial. Certainly it would have been better if none of the remarks had been made .... Under the circumstances and evidence in this case we do not think these incidents constitute reversible error.

Id. (emphasis added).

In the order denying post-conviction relief, the trial judge made the following findings and conclusions:

(I) Failure to enforce pretrial rulings regarding the admission of evidence that the petitioner had killed before. This issue has been previously determined on direct appeal [and it has been determined that the] petitioner suffered no prejudice from this evidence. [Counsel was not ineffective in this regard.]

Clearly, the supreme court considered the merits of the petitioner’s claim that the “killed before” reference qualified as error. The ruling was that the evidence should not have been permitted but was nonetheless not reversible in the context of the entire trial. While the issue has been raised here in a context of ineffective assistance of counsel, the supreme court held that if there was error by the failure to exclude the reference, no prejudice resulted. That conclusion by the supreme court controls. Even if counsel was deficient for having failed to further object to the reference made by the witness, our supreme court has already determined that the deficiency had no effect on the results of the trial.

CO

The petitioner also complains that his attorney was ineffective for failing to object to the introduction of statements he made while being transported from Texas to Tennessee. Detective Richard Foschino testified at trial that he and Captain Bob Higgs of the Anderson County Sheriffs Department returned the petitioner to this state. Detective Foschino testified that the petitioner discussed the homicide “freely”:

The way the conversation started out about the homicide itself was, we were talking about — David had been talking about his past and about how he had been a victim of abuse when he was a child. He started talking about victims that Mr. Compton may have had in the past. And when I started talking to him about that, he started clarifying it, saying that when he met with Mr. Compton on the road and they went into the park area, that Mr. Compton had said something about he could get some children for David. And David became very upset with him at the time. And he was referring to sexual activity with these children. And David talked quite a bit about that. That brought his recollection to another case also that involved children.

At that point, defense counsel objected and the following exchange occurred:

Prosecutor: Let me point out that no suppression motion had been filed about this.

DePersio: We know that. Nobody’s talking about ....

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DePersio: Well, we object to any conversations concerning the homicide investigation, that’s the subject matter of this investigation here today.

Court: You have not received statements about that?

Prosecutor: They have received them. DePersio: I have no idea.

Prosecutor: Because he hasn’t looked at the file. Only Mr. Clement has copied the file, and he had it in Foschino’s blue file that had all the statements ....

(Emphasis added).

The petitioner now argues the admissibility of the statements should have been litigated pretrial. He points out that De-Persio had not reviewed the statements before the trial began.

It is true that motions to suppress evidence must be heard before trial. Tenn. R.Crim. P. 12(a)(3). Clearly, defense counsel should have reviewed the statements before trial. A failure to review the statements pretrial or to file the motion to suppress pretrial, while qualifying as deficient performance, does not establish any prejudice. Nothing in this record indicates that the statement would have been suppressed had a motion been timely filed. This is a prerequisite for the grant of relief. Because the petitioner has failed to show that a motion to suppress would have been successful, no prejudice could have resulted from the inaction of his counsel.

(g)

The petitioner also complains that his trial counsel was deficient for failing to effectively prepare or present psychological testimony in the sentencing phase of the trial. He argues that attorney Clement failed to elicit sufficient testimony from Dr. Engum to support an instruction to the jury on two statutory mitigating circumstances: first, that the defendant suffers from a mental disease which affected his judgment and, second, that the murder was committed while the defendant was under the influence of extreme mental or emotional disturbance. See Tenn.Code Ann. § 39 — 13—204(j)(2), (8). He further submits that he is entitled to relief under Goad, 938 S.W.2d at 365, where our supreme court found counsel was ineffective for failing to present “the available expert mitigating evidence of mental illness.”

During the sentencing phase, the state argued three aggravating circumstances: that the murder was heinous, atrocious, and cruel; that the murder was committed to avoid arrest; and that the murder was committed in furtherance of a robbery. Tenn.Code Ann. § 39-13-204(9(6), (6), (7). The jury found only one, that the murder was committed in furtherance of the robbery. Tenn.Code Ann. § 39 — 13—204(i)(7). The defense theory during the penalty phase of the trial was that the defendant had been severely abused as a child, had been abandoned repeatedly by his parents and foster parents, and had suffered a series of personal rejections, all of which should mitigate against a death sentence.

Dr. Eric Engum testified during the penalty phase that the petitioner suffered from borderline personality disorder, which is a “long-term personality disorder dysfunction that manifests itself in impulsive[ness] and unpredictability in behavior, emotional withdrawal from people ... times of intense anger... [and] a sense of loss of personal identity.” The most important consequence of this disorder is the “inability to maintain any kind of enduring relationship with other people.”

Dr. Engum explained that several factors contributed to the formation of this disorder. The petitioner’s mother was an alcoholic who abandoned him at a very early age; in consequence, the initial maternal attachment never occurred. It also developed that the petitioner never had any contact with his father. Dr. Engum learned from recorded data that the petitioner had been transferred from one foster home to another. Records indicated that the petitioner was forced to sleep in the basement of one home while the foster parents focused all of their attention on their biological children. He was also abused while living in the home. Eventually, the petitioner was discovered “playing doctor” with one of the foster parents’ biological children and was placed in Dev-ereau Foundation, which is a home for severely emotionally disturbed children. The petitioner ran away from the Dever-eau Foundation several times.

Based upon many of the same circumstances, Dr. Engum testified that the petitioner also suffered from “Burned” or Abandoned Child Syndrome. Dr. Engum testified that individuals diagnosed with this syndrome have repeatedly suffered emotional injuries and eventually withdraw “into [a] shell.”

Dr. Engum testified that the petitioner became a drifter and, after being released from Devereau, never established any lasting relationships, although he had an “on-again, off-again” relationship with a woman named Mary, who is the mother of his two children. The petitioner had been institutionalized from time to time and functioned well in that type of environment. At one point, after his release from Devereau, the petitioner was institutionalized at West Texas Hospital. The hospital diagnosed the petitioner as having a factitious disorder, which occurs when an individual feels so helpless and isolated that he seeks to play the role of patient. On cross-examination by the state, Dr. Engum conceded that between 500,000 and two million people suffer from a borderline personality disorder.

At a bench conference diming the trial, the trial judge and counsel discussed which of the statutory mitigating circumstances should be instructed to the jury. One of the mitigating circumstances discussed was that the “murder was committed while the defendant was under the influence of extreme mental or emotional disturbance.” Tenn.Code Ann. § 39 — 13—204(j)(2). The trial judge suggested that there might be no proof of that circumstance and DePer-sio, who had yielded psychological preparations to Attorney Clement, inexplicably agreed, simply saying that one was “out.” Another claimed mitigating circumstance was that the “capacity of the defendant to appreciate the wrongfulness of [his] conduct or to conform [his] conduct to the requirements of the law was substantially impaired as a result of mental disease or defect or intoxication which was insufficient to establish a defense to the crime but which substantially affected the defendant’s judgment.” Tenn.Code Ann. § 39-13 — 204(j)(8). The trial judge, apparently referring to the insanity defense as defined in Graham v. State, 547 S.W.2d 531 (Tenn. 1977), refused to instruct on that mitigating circumstance because “the magical words ... weren’t developed during proof.” Defense counsel did lodge an objection to the refusal to charge Tenn.Code Ann. § 39-13-204(j)(8).

The trial judge provided the following instruction to the jury on mitigating circumstances:

In arriving at this determination, you are authorized to weigh and consider any mitigating circumstances and any of the statutory aggravating circumstances which may have been raised by the evidence throughout the entire course of this .trial, including the guilt-finding phase or the sentencing phase or both.

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Tennessee Code Annotated 39-2-203(j), provides that in arriving at the punishment, the jury shall consider as heretofore indicated any mitigating circumstances which shall include, but not be limited to, the following: Number one, the murder was committed under circumstances which the defendant reasonably believed to provide a moral justification for his conduct; two, any aspect of the defendant’s character or record, or any aspect of the circumstances of the offense favorable to the defendant which is supported by the evidence.

If you unanimously determine that at least one statutory aggravating circumstance or several statutory aggravating circumstances have been proved by the State beyond a reasonable doubt, and said circumstance or circumstances outweigh any mitigating circumstance or circumstances, the sentence shall be death. The jury shall state in writing the statutory aggravating circumstance or statutory aggravating circumstances so found, and signify in writing that the statutory aggravating circumstance or circumstances outweigh the mitigating circumstance or circumstances so found.

On direct appeal of the conviction and sentence, the defendant argued that the trial court erred by refusing to instruct Tenn.Code Ann. § 39-13-2040(2) and (8). By a 3-2 vote, our supreme court rejected the claim:

Defendant says he was prejudiced by failure to instruct mitigating circumstances [TenmCode Ann. § 39-13-2040(2) and (8) ] raised by the evidence .... The trial court declined to instruct the jury on these factors because he found no evidence in the record that as a result of mental disease the defendant could not conform his conduct to the requirements of the law.... The trial court was of the opinion that the disorder was prevalent even among law abiding persons, and in the absence of specific proof or a statement of causation about the relationship between the disorder and the offense, the instruction was not warranted. We do not find anything in the record to dispute this finding. The issue is without merit.

Brimmer, 876 S.W.2d at 82-88 (second emphasis added).

The majority of our supreme court decided that the failure of the defense to prove the connection between the antisocial personalty disorder and the offense precluded instructions on the statutory mitigating circumstance. Id. (No mention was made of Dr. Engum’s diagnosis of Abandoned Child Syndrome). Two of the five justices dissented from this ruling, concluding that the petitioner had established that he suffered from a mental disease or diseases which could impair his ability to appreciate the wrongfulness of his conduct or conform his conduct to the law. The dissent argued that there should be no requirement to establish any connections between the disorder or disorders and the criminal acts of the defendant, suggesting that the majority had confused the concepts of the insanity defense and mitigating circumstances. One of the dissenters proclaimed that the use of the “magical words” in this context was absolutely unnecessary. See Brimmer, 876 S.W.2d at 88 (Reid, Ch. J., and Daughtrey, J., dissenting); Tenn.Code Ann. § 39-13-204(j)(8). Neither the majority nor the dissenting opinions commented upon the applicability of Tenn. Code Ann. § 39-13-204(j)(2), that is, that the murder was committed while the defendant was under the influence of extreme mental or emotional disturbance. Id. That is understandable; DePersio, of course, had conceded at trial that this possible mitigating circumstance had no application.

At the post-conviction hearing, Dr. En-gum testified that in January of 1991, well before trial, he advised defense counsel that the petitioner was competent and that an insanity defense could not be supported. At that time, he also mentioned to defense counsel that he believed there to be mitigating evidence available to the petitioner. He recalled that the next time he was asked to discuss his possible testimony was “about an hour or so before the sentencing phase of the trial began.” “After he told them [he] couldn’t support the Graham standard, and found him competent [he] told them that [he] could say something in sentencing, [but he] didn’t hear from them again until the day the trial started.” Dr. Engum asserted that he could have testified that both of the statutory mitigating circumstances at issue, Tenn.Code Ann. § 39 — 13—204(j)(2) and (8), were present; he testified that defense counsel “absolutely” never mentioned either of these mitigating circumstances before or during his testimony.

At the evidentiary hearing on this post-conviction claim, Dr. Engum uncategorically stated that in his opinion “David Brim-mer committed this offense while under the influence of extreme mental or emotional disturbance.” See Tenn.Code Ann. § 39 — 13—204(j)(2). He also testified thqt “David Brimmer’s capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law, was substantially impaired as a result of mental disease or defense — insufficient to establish a defense to the crime, but which substantially affected his judgment.” See Tenn.Code Ann. § 39-13-204(j)(8). Other than these specific references to the enumerated mitigating circumstances, the testimony of Dr. Engum at trial and on post-conviction was essentially the same.

Attorney Clement testified that he conducted the entire examination of Dr. En-gum at the sentencing hearing. He recalled being generally satisfied with the content of Dr. Engum’s testimony despite the trial court’s refusal to give jury instructions on the two statutory mitigating circumstances in question.

The post-conviction court made the following findings:

(B) Failure to investigate and present evidence of mitigating factors relating to his background and mental state at the sentencing. Trial counsel presented expert testimony at sentencing hearing phase ... relating to abandoned child syndrome. [A]n investigator testified at the original trial concerning petitioner’s troubled childhood.... The jury had ample evidence of petitioner’s background and mental history. [W]hile ... some evidence [was] presented at post-conviction evidentiary hearing that the expert may not have been prepared until later stages of [ ] investigation, [no prejudice has been shown.]

This finding suggests an “investigator testified concerning petitioner’s troubled childhood.” The transcript of the sentencing hearing does not support that conclusion. The reference to an “investigator” may have been inadvertent because the only witness who testified for the petitioner in the sentencing phase was Dr. En-gum. The finding does not address the more important question of whether the petitioner was prejudiced by defense counsel’s failure to elicit testimony which would have supported jury instructions on the relevant statuto