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State v. Bondurant3/20/1998
use of an expert witness and/or the report resulted in counsel's failure to discern the availability of a second expert who, in fact, was better qualified than the one counsel ineffectually planned to use. Id. at 370. The court noted that these errors were compounded by counsel's failure to present the two possible experts as witnesses at the remand hearing. Such deficient performance was then determined to be prejudicial under Strickland after assessing the following factors: (1) the nature and extent of available mitigating proof; (2) whether substantially similar proof was otherwise presented to the trier of fact; and (3) whether there was strong evidence of aggravating factors so that "the mitigating evidence would not have affected the jury's determination." Id. at 371.
Applying these factors, the court found that the nature and extent of the proposed mitigating evidence was significant, establishing "a psychological cause and effect between Vietnam and Goad's later behavior." Id. Next, the court found that there was no other evidence before the jury equivalent to the evidence of the psychological disorder which the expert witness(es) could have established. Id. at 373. Finally, the court found that the proposed mitigating proof would have had an impact upon the single aggravating factor found by the jury, that the defendant was "`previously convicted of one or more felonies, other than the present charge, which involved the use or threat of violence to the person.'" Id. at 372; see Tenn. Code Ann. § 39-2-203(I)(2) (1982) (repealed 1989). The court reached this Conclusion after observing that the onset of the post-traumatic stress disorder was prior to the commission of the violent felonies and could have mollified the effect of those felony offenses as aggravators. Id. at 372-73. Furthermore, the court noted that, even without the mitigating proof, "the jury reported to the trial court they were deadlocked on the question of punishment four hours after retiring to deliberate." Id. at 372-73. Once again, the court referred to the likelihood that Goad would have received a new sentencing hearing after the remand hearing but not for the continued deficient performance of counsel in failing to prepare a proffer of expert evidence for the remand hearing. For these reasons, a new sentencing hearing was ordered.
In Henley, the defendant was convicted of aggravated arson and two counts of premeditated murder. "At trial Henley maintained his innocence and attempted to discredit the prosecution's evidence ...." Henley, --- S.W.2d at ---, slip op. at 4. The defendant testified and denied involvement in the crimes. At the capital sentencing hearing, the defense called the defendant's mother to the stand. In the presence of the jury, she disrupted her own testimony by announcing that she wanted "to talk to" defense counsel. A recess was had, following by the defense resuming its proof by calling the defendant's grandmother, without explaining the failure of the defendant's mother to return to the stand. The grandmother testified to various attributes of the defendant, and the defendant himself testified about a financial reversal that caused him to lose his grandfather's farm. Id., slip op. at 5. The jury sentenced the defendant to death, based upon finding one aggravating factor in each homicide, that each murder was "`especially heinous, atrocious, or cruel in that it involved torture or depravity of mind.'" Id., slip op. at 7; see Tenn. Code Ann. § 39-2-203(I)(5) (1982) (repealed 1989). In his post-conviction proceeding, Henley alleged his counsel failed to investigate and prepare for the sentencing hearing, including the claims that counsel failed to investigate his mental condition and request an approp
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