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State v. Bondurant3/20/1998
" Strickland, 466 U.S. at 698-99, 104 S. Ct. at 2070. As to performance, the decision to disdain "more character or psychological evidence" was reasonable. As to prejudice, the court noted that the possibility of psychiatric testimony that the defendant was under "considerable emotional stress that did not give rise to the level of extreme disturbance" created no reasonable probability of a different outcome, especially in light of the "overwhelming aggravating factors" present in that case. Strickland, 466 U.S. at 700, 104 S. Ct. at 2071.
Against the backdrop of Strickland, the Tennessee Supreme Court has recently decided two post-conviction death-penalty cases in which different results were reached, Goad v. State, 938 S.W.2d 363 (Tenn. 1996), reversing the imposition of the death penalty, and Henley v. State, --- S.W.2d ---, No. 01S01-9703-CC-00056 (Tenn. Dec. 15, 1997), affirming the imposition of the death penalty. Both of these post-conviction cases involved allegations of ineffective assistance of counsel preparatory to and during the sentencing phase of a capital case in which the death penalty was imposed.
In Goad, defense counsel wished to offer mitigating proof at the sentencing hearing that the defendant was affected by post-traumatic stress syndrome which resulted from his tour of military duty in Vietnam. The defense attempted to offer the testimony of an expert witness, but the trial court disallowed the evidence. On direct appeal, the Tennessee Supreme Court remanded the matter to allow the defendant to develop a sufficiently detailed offer of proof of the expert's proposed testimony. At the remand hearing, counsel offered neither the testimony of the expert nor the testimony or report of a second doctor who performed a psychological evaluation of the defendant. See State v. Goad, 707 S.W.2d 846, 854 (Tenn. 1986). The trial court found on remand that counsel had not "`actually prepared to offer the testimony of [the expert they attempted to rely upon] and that [this expert] was not prepared to testify that the defendant suffered from post-traumatic stress syndrome.'" Goad, 938 SW.2d at 366. The report of the second doctor was not entered into evidence on remand, even though it reflected that the defendant had a well-documented history of several traumatic, combat-related episodes, sufficient, it seems, to have supported the approval of a service-related disability through the Veterans Administration. Goad, 938 S.W.2d at 366-67. All of this came to light at the post-conviction hearing where, in addition, the diagnosis of post-traumatic stress disorder was affirmed by a third expert who characterized the traumatic events suffered by Goad in Vietnam as "catastrophic." Id. at 368.
After reviewing the applicable standards for counsel's performance in the context of a capital sentencing proceeding, including the rule that there is no requirement that counsel present mitigating evidence in a capital sentencing proceeding, id. at 369-70, the court reflected upon a teaching of California v. Brown, 479 U.S. 538, 544, 107 S. Ct. 837, 841 (1987), that "`evidence about the defendant's background and character is relevant because of the belief . . . that defendants who commit criminal acts that are attributable to a disadvantaged background, or to emotional and mental problems may be less culpable than defendants who have no such excuse.'" Goad, 938 S.W.2d at 369.
In Goad, our supreme court ruled that counsel's performance was deficient in that counsel "failed to adequately investigate and explore mitigating evidence" relative to the expert's report on the defendant's mental disorder and that, "oreover, counsel's failure to adequately investigate and prepare'` for the
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