State v. Bondurant3/20/1998
he stand that she had lied to law enforcement officers when they initially questioned her about the victim's disappearance, that she had used drugs, and that she had been involved in the cover-up of this murder, albeit due to her fear of the defendant. It is clear from our review of the record that Denise's character did not remain untarnished. While trial counsel should have investigated further all possible impeachment information, especially since it had already been collected for use at the Dugger trial, we do not find that the defendant was prejudiced by this failure.
E. Failure to Prepare for and Present Evidence at the Sentencing Hearing.
Next, the defendant argues that trial counsel was ineffective by failing to expect, anticipate, or prepare for the sentencing hearing.
In death penalty cases, the sentencer may not be precluded from considering any aspect of a defendant's character or record as a basis for a sentence less than death. Lockett v. Ohio, 438 U.S. 586, 604-05, 98 S. Ct. 2954, 2964-65 (1978) (plurality opinion); see also Johnson v. Texas, 509 U.S. 350, 361, 113 S. Ct. 2658, 2666 (1993). The United States Supreme Court has held that mitigating evidence is relevant to sentencing hearings and should be heard. See California v. Brown, 479 U.S. 538, 541, 107 S. Ct. 837, 839 (1987); Eddings v. Oklahoma, 455 U.S. 104, 113-15, 102 S. Ct. 869, 876-77 (1982).
There is no legal requirement and no established practice that the accused must offer evidence at the penalty phase of a capital trial. State v. Melson, 772 S.W.2d 417, 421 (Tenn. 1989). In fact, in many death penalty cases, counsel has properly seen fit not to offer any evidence at the penalty phase. Melson, 772 S.W.2d at 421 (citations omitted); see also State v. Zagorski, 701 S.W.2d 808 (Tenn. 1985).
However, " strategy of silence may be adopted only after a reasonable investigation for mitigating evidence or a reasonable decision that an investigation would be fruitless." Tafero v. Wainwright, 796 F.2d 1314, 1320 (11th Cir.1986). Courts have held counsel's representation beneath professionally competent standards when sentencing counsel did not conduct enough investigation to formulate an "accurate life profile" of a defendant. Jackson v. Herring, 42 F.3d 1350, 1367 (11th Cir.), cert. dismissed sub nom. Jackson v. Jones, ---U.S. ---, 116 S. Ct. 38 (1995).
To prove that counsel was ineffective by failing to present mitigating proof, the defendant presented the testimony of several witnesses who he maintains should have been called to testify at the sentencing hearing. All of these witnesses testified at the hearing on the new trial motion that they had been available and would have been willing to testify at the defendant's trial. In addition, the defendant introduced into evidence several affidavits from family members, friends, teachers, prison guards, and professionals who had observed, treated or evaluated the defendant.
The defendant's uncle and first cousin by marriage testified to various aspects of the defendant's childhood and adolescence, including his parents' tendency to reject criticism of the twins and to accept the twins' version of disputed events, resulting in the twins' belief that they could get away with anything. The defendant's father drank heavily at times and had "temper fits" with the twins when they were children. Generally, however, the parents did not physically abuse the twins, although the parenting style included yelling, cursing and ridiculing the children. Being overweight, the twins struggled to establish wholesome peer relationships and sometimes associated with the wrong crowd in order to gain acceptance.
Co-w
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