Strouth v. State
| Decision Date | 28 October 1986 |
| Citation | 755 S.W.2d 819 |
| Parties | Donald Wayne STROUTH, Appellant, v. STATE of Tennessee, Appellee. 755 S.W.2d 819 |
| Court | Tennessee Court of Criminal Appeals |
Mark Evan Olive, Tallahassee, Fla., for appellant.
Gordon W. Smith, Asst. Atty. Gen., Nashville, Carl K. Kilpatrick, Dist. Atty. Gen., H. Greeley Wells, Asst. Dist. Atty. Gen., Blountville, for appellee.
Donald Wayne Strouth, currently an inmate on death row at the state penitentiary, was convicted of first degree murder and sentenced to death in 1978 for the murder of a Kingsport shopowner, Jimmy Keegan. Strouth's conviction and death sentence were affirmed by the Tennessee Supreme Court in 1981. State v. Strouth, 620 S.W.2d 467 (Tenn.1981).
The following year, Strouth filed a petition for post-conviction relief, which was denied by the trial court. He now appeals that ruling on multiple grounds. He contends (1) that he was not given a full and fair hearing on his post-conviction petition; (2) that he received ineffective assistance of counsel at trial and (3) at his sentencing hearing; (4) that his conviction was caused by the state's failure to reveal exculpatory evidence; (5) that the jury was improperly charged; (6) that the sentencing hearing was marked by reversible error; and (7) that other miscellaneous claims require reversal despite the state's insistence that they are foreclosed from review as previously determined or waived. The brief filed in this court in support of Strouth's appeal reflects a high degree of thoroughness and dedication on the part of petitioner's current attorney. But despite the valiant effort of counsel to secure his client a new trial or penalty hearing or both, we find no basis upon which to disturb the trial court's judgment, and we therefore affirm the denial of relief.
Strouth first claims that he was denied a full and fair hearing on his post-conviction petition and that the trial court's order denying relief provides an insufficient basis for appellate review. He challenges specifically the denial of funding for certain experts, the form of the order denying relief, and the alleged bias of the trial judge who ruled on his petition.
Prior to the post-conviction hearing, Strouth's attorney filed a motion for "appointment and funding of experts and investigators," listing the names of nine proposed "experts" whose assistance he asserted he needed to prepare for the hearing. Eight were located out-of-state and would have testified about various psychological aspects of the death penalty and its application and effect. 1 The ninth person listed was Dr. Kathleen Broughan, described as a Knoxville psychologist with a background in forensic psychology. Counsel relied on the United States Supreme Court's opinion in Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), to support his motion. There the Court, in upholding an indigent defendant's right to the state-funded assistance of a psychiatric expert, noted that "fundamental fairness entitles indigent defendants to 'an adequate opportunity to present their claims fairly within the adversary system.' " Id., 105 S.Ct. at 1094 (citation omitted). The trial judge found that the proposed testimony from the sought-after experts would address questions of law rather than of fact and overruled the motion in its entirety.
Dr. Broughan was the only proposed expert with personal knowledge of this particular case. At counsel's request, she had reviewed the records of the local mental health center where Strouth had been examined prior to his trial. In an unnotarized affidavit, she stated her opinion that the examination had been inadequate. The state successfully objected to the proffer of this affidavit on the grounds that it pertained to a factual issue and that the state had had no opportunity to cross-examine the affiant. The petitioner had not subpoenaed Dr. Broughan but apparently had waited for a decision on the funding request. Defense counsel stated at the hearing that Dr. Broughan's testimony would be that the evaluation had been "insufficient."
On appeal, the petitioner concedes that Ake "involved the trial right of a defendant to an independent expert," but argues that due process should extend that right to include other criminal or quasi-criminal proceedings.
The state argues in response that there was no abuse of discretion in that Strouth did not demonstrate any prejudice by the trial court's denial of funding. "[T]he employment of an expert witness at state expense is not authorized or required in the absence of a threshold showing of a denial of due process by the failure to employ such an expert." State v. Goodman, 643 S.W.2d 375, 379 (Tenn.Crim.App.1982). The expected testimony of the proposed witnesses was not relevant to any material issue at the post-conviction proceeding, according to the state, because the issues involved had been either previously determined or waived. The state also insists that Ake has no application to a post-conviction proceeding.
We find that there is no need to determine the applicability of Ake to the post-conviction setting. In the first place, the state's argument that the issue of the adequacy of Strouth's mental evaluation has been waived is essentially correct, in that it was not raised at trial or on direct appeal. It might then be argued, of course, that the failure of trial counsel to raise the issue in a timely fashion is just one example of the inadequacy of representation afforded the petitioner at trial.
On the other hand, Strouth's post-conviction counsel concedes that our review here is governed by the principles announced in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In order to support a grant of relief, Strickland requires a demonstration not only that trial counsel's performance fell below an objective standard of reasonableness, but also that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. 466 U.S. at 694, 104 S.Ct. at 2068. In this record, we have only a written statement from Dr. Broughan that Strouth's pre-trial mental evaluation was "insufficient," apparently because it addressed the questions of his competency to stand trial and his sanity at the time of the offense, but not the possibility of mitigating circumstances relevant to his sentence. There is no showing in the record, however, of what an evaluation deemed "sufficient" by Dr. Broughan would have turned up that might have affected the outcome of the sentencing hearing. In the absence of any demonstration of prejudice, we decline to hold that the failure to fund Dr. Broughan's testimony was an abuse of discretion that merits reversal on appeal.
The petitioner next attacks the form of the trial court's order denying post-conviction relief. He first alleges that it does not meet statutory requirements because the findings of fact are not sufficiently detailed and the conclusions of law are sweeping and unsubstantiated. Second, he contends that it improperly incorporates part of the state's memorandum of law filed in the post-conviction proceeding below.
It is true that the trial judge frequently generalized that a claim put forward by the petitioner was "unsupported by convincing evidence in the record," or the like. But it is also true that the trial judge in his order commented upon every claim made by the petitioner, and when read together with the very detailed post-conviction petition, the order is sufficiently clear to permit appellate review, even if it lacks desired specificity on some points.
The incorporated portion of the state's memorandum discusses the ineffectiveness-of-counsel claim. The petitioner contends that this practice does not represent a detached finding that counsel was effective, but is instead an argument "rife with advocacy-laden hyperbole." The petitioner overstates the case. In fact, the appended part of the state's memorandum appears to be reasonable and balanced in its description and assessment of trial counsel's conduct.
In Delevan-Delta Corp. v. Roberts, 611 S.W.2d 51 (Tenn.1981), the Tennessee Supreme Court specifically did not condemn party-prepared findings, contrary to the petitioner's contention. The court said that "[f]indings prepared by the trial judge which represent his independent labor are preferable, however we do not disapprove of party-prepared findings," adding that prior to adoption, "the trial judge should carefully examine them to establish that they accurately reflect his views and conclusions and not those of counsel." Id. at 53.
The petitioner has failed to show that the statements incorporated were not actually in accord with the trial judge's findings or that they were not correct. Although we do not believe that the trial judge's procedure should be encouraged, we cannot say that the practice prejudiced the petitioner in this case.
Finally, the petitioner claims that the trial judge was biased against him and that the judge's lack of impartiality deprived him of a fair hearing. The petitioner's brief cites several examples of allegedly prejudicial conduct by the trial judge, and, in fact, the trial judge did make several remarks that could be interpreted as impatient or rude. However, the issue "is not the propriety of the judicial conduct of the trial judge, but whether he committed an error which resulted in an unjust disposition of the case." State v. Hawk, 688 S.W.2d 467, 472 (Tenn.Cr.App.1985). A review of the hearing transcript shows that the majority of the comments were made at the beginning of the hearing, when petitioner's attorney was presenting the motion for funding of experts, discussed above, and other claims found equally meritless by the trial judge. These statements appear to...
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