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State v. Bondurant3/20/1998
1997), perm. app. denied (Tenn. 1997); see also Rickman v. Bell, 131 F.3d 1150, 1157 (6th Cir. 1997) (finding deficient counsel's performance where he "succeeded in creating a loathsome image for Rickman -- one that would make a juror feel compelled to rid the world of him"). Furthermore, had counsel investigated and discovered a witness such as Dr. Smith or Dr. Blair, counsel would have necessarily considered the daunting prospect that such proposed evidence would have invited cross-examination or rebuttal to show, as the TDOC report suggests, that the defendant's claims of reduced culpability were themselves manifestations of his propensity to see himself as the victim and to make excuses.
As to the second factor offered in Goad, whether evidence similar to the proposed evidence had already been heard by the jury, we observe that the jury had heard during the guilt phase about the defendant's prodigious appetite for alcohol and controlled substances. They had not been told about the full panoply of the defendant's diseases or illnesses, or about the combination of effects from the illnesses, their treatments, and illicit chemical use. However, Dr. Smith's testimony about the effects of the defendant's many health problems is only articulated through a lengthy litany of the defendant's staggering indulgences in alcohol, controlled substances and legend drugs. This proof would have starkly counter-vailed against Mr. Colley's chosen portrayal of the defendant as a benign citizen who had for many years held down a steady job, a portrayal that continued into the sentencing phase through the use of the defendant's mother as a witness. While the absence in the case of proof of the type offered by Dr. Smith and to a lesser extent by Dr. Blair counts in favor of prejudice, its viability is diminished by its conflict with the chosen strategy of the defense.
Regardless of the effect of the second Goad factor, the third factor, the competing strength of the aggravating factors, more cogently illustrates that any deficient performance was not prejudicial. See Henley, --- S.W.2d ---, slip op. at 22. Initially we note that, unlike the one aggravating factor found by the Goad jury, the jury in the present case found two. One of these factors was the defendant's previous history of committing a violent offense, in particular, a previous murder. Whereas this statutory factor was the single aggravator in Goad, none of Goad's prior violent offenses was a homicide. The jury in the present case is likely to have accorded great weight to the fact that the defendant was convicted of a prior murder. In State v. Howell, 868 S.W.2d 238 (Tenn. 1993), our supreme court commented that evidence of a previous conviction of a felony involving violence to the person under Code section 39-2-203(I)(2) (1982) (repealed 1989) is an aggravating circumstance that is "more qualitatively persuasive and objectively reliable than others." Howell, 868 S.W.2d at 261. More recently, our supreme court has said, defendant's prior conviction for second-degree murder is a significant element to be considered in our analysis [of a death penalty sentence]; in fact, we have affirmed the death sentence in all but one previous case in which a prior violent felony conviction supported the aggravating factor in Tenn. Code Ann. § 39-2-203(I)(2).
State v. Boyd, --- S.W.2d ---, No. 02S01-9611-CR-00102, slip op. at 8 (Tenn. Jan. 5, 1998) (commenting that the "remaining case" involved a prior offense of voluntary manslaughter, "a lesser grade of offense than second-degree murder") (citations to cases omitted). In fact, the defendant in the present case, in a portion of his brief dealing with another issue, tells us that according to probability
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