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State v. Bondurant3/20/1998
riate evaluation.
At the post-conviction hearing, Henley presented two expert witnesses: (1) an attorney, who testified that trial counsel should have used a psychologist to assist in determining if mitigating proof might be feasible for the penalty phase; and (2) a psychiatrist, who interviewed Henley and testified that, at the time of the offenses, he suffered from depression and may have been "`self-medicating' by using alcohol and drugs." Id., slip op. at 11. This latter witness also found that Henley may have been learning disabled and that such a learning disability may have been responsible for Henley's farming failure which, in turn, caused his depression. The trial court dismissed the post-conviction petition. This court found prejudicial ineffective assistance of counsel at the sentencing stage and remanded the case for a new sentencing hearing. The supreme court, however, reversed this court and affirmed the trial court's dismissal of the post-conviction petition.
In addressing the prejudice issue first, see Strickland, 466 U.S. at 697, 104 S.Ct. at 2069, the Henley court first found that any failure of counsel to call as witnesses family members, some of whom testified at the post-conviction hearing about the positive attributes of the defendant, was not prejudicial. Utilizing the first and second prongs of the three-prong test provided in Goad, the court noted that the proposed evidence not only duplicated but perhaps, due to its nature, would have attenuated the poignant testimony of Henley's grandmother. Further, regarding the nature of the proposed testimony, the court acknowledged the principle of California v. Brown that a disadvantaged background is often a proper source of mitigating evidence but expressed concern about the putative witnesses having personal knowledge about Henley's drug use at the time of the crimes. At this juncture the court declared that "ppellate courts must consider the quality of the proposed testimony rather than the quantity of witnesses when determining whether prejudice has been established." Henley, ---S.W.2d at ---, slip op. at 22.
As to the third prong established in Goad, the Henley court observed that the proof of the aggravating circumstance was strong. Id. The defendant killed an elderly couple. He shot them several times and then burned them by setting fire to their house. The court found ample support for the single aggravator that the crime was especially heinous, atrocious, or cruel, involving torture or depravity of mind. Id., slip op. at 22.
Despite the attainment of disparate results in Goad and Henley, the supreme court did not indicate that it departed from the analysis utilized in Goad. Indeed, Henley is replete with citations to Goad, and it applies the Goad three-prong analysis for determining prejudice under the second Strickland prong. Clearly, the court's view of the facts in Henley warranted a different interpretation and different result than the facts in Goad. With the guidance of these cases, we must determine the effect of the facts in the present case.
We undertake our task in the present case by determining initially whether any deficient performance by trial counsel in failing to prepare and present evidence at the sentencing hearing prejudiced the defendant. See Strickland, 466 U.S. at 697, 104 S. Ct. 2069. For the reasons given below, we conclude that no prejudice was shown and that, accordingly, we need not evaluate counsel's performance under Strickland's first prong. See Strickland, 466 U.S. at 697, 104 S. Ct. at 2069.
Analyzing the three Goad factors for determining prejudice, we look first at the "nature and extent of the mitigating evidence that was availab
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