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King v. Westbrooks

United States Court of Appeals, Sixth Circuit

February 9, 2017

Terry Lynn King, Petitioner-Appellant,
v.
Bruce Westbrooks, Warden, Respondent-Appellee.

          Argued: September 28, 2016

         Appeal from the United States District Court for the Eastern District of Tennessee at Knoxville. No. 3:99-cv-00454-Robert Leon Jordan, District Judge.

          ARGUED: Dana C. Hansen Chavis, FEDERAL DEFENDER SERVICES OF EASTERN TENNESSEE, INC., Knoxville, Tennessee, for Appellant.

          Jennifer L. Smith, OFFICE OF THE TENNESSEE ATTORNEY GENERAL, Nashville, Tennessee, for Appellee.

          ON BRIEF: Dana C. Hansen Chavis, FEDERAL DEFENDER SERVICES OF EASTERN TENNESSEE, INC., Knoxville, Tennessee, Wade V. Davies, Stephen Ross Johnson, RITCHIE, DILLARD, DAVIES & JOHNSON, P.C., Knoxville, Tennessee, C. Mark Pickrell, THE PICKRELL LAW GROUP, P.C., Nashville, Tennessee, for Appellant.

          Jennifer L. Smith, OFFICE OF THE TENNESSEE ATTORNEY GENERAL, Nashville, Tennessee, for Appellee.

          Before: BATCHELDER, MOORE, and GIBBONS, Circuit Judges.

          OPINION

          KAREN NELSON MOORE, Circuit Judge.

          This death penalty case arises out of the kidnapping and murder of Diana K. Smith by Petitioner-Appellant Terry King. Following the district court's dismissal of King's petition for a writ of habeas corpus, we granted a certificate of appealability on two issues: whether trial counsel was ineffective for failing to present during the trial testimony about King's intoxication at the time of the murder and whether trial counsel was ineffective for failing to investigate adequately King's mental health and to obtain expert assistance in a timely manner. For the reasons stated below, we AFFIRM the judgment of the district court.

         I. BACKGROUND

         At trial, the Government put forth the testimony of two individuals to whom King confessed: Jerry Childers, [1] an acquaintance of King, see Trial Tr. ("TT") Vol. IX at 52 (Childers Test.), and David Davenport, id. at 84 (Davenport Test.), an investigator for the Tennessee Bureau of Investigation. Childers described a conversation he had with King, see id. at 53-69 (Childers Test.), and Davenport read statements that he took from King and Randall Joe Sexton, King's co-defendant, at the Knox County Sherriff's Department, see TT Vol. IX at 86 (Davenport Test.); id. at 90-94 (Davenport Test., Sexton Statement); TT Vols. IX-X at 100-05 (Davenport Test., King Statement). The following is a summary of that testimony.

         On July 31, 1983, King; his cousin, Don King; a man named Eugene Thornhill; and the victim, Diana K. Smith, consumed large amounts of alcohol, LSD, and Quaaludes and engaged in sexual intercourse throughout the day. Id. at 100-01 (Davenport Test., King Statement). At one point, King and Smith drove to a wooded area in Smith's car, where Smith accused King and the others of raping her. TT Vol. IX at 56 (Appellant's App'x at 110) (Childers Test.); TT Vol. X at 101 (Davenport Test.). In response, King told Smith to get into the trunk of the car. TT Vol. IX at 56 (Appellant's App'x at 110) (Childers Test.); TT Vol. X at 101-02 (Davenport Test., King Statement). With Smith in the trunk, King drove to Sexton's house, where King obtained a rifle and shovel. TT Vol. IX at 56 (Appellant's App'x at 110) (Childers Test.); id. at 91 (Davenport Test., Sexton Statement); TT Vol. X at 102 (Davenport Test., King Statement). King and Sexton then drove to a wooded area, where King ordered Smith out of the trunk and shot her in the back of the head. TT Vol. IX at 67-68 (Childers Test.); TT Vol. X at 102-03 (Davenport Test., King Statement). After unsuccessfully attempting to bury Smith, King and Sexton went home. TT Vol. X at 103 (Davenport Test., King Statement). The following day, King and Sexton returned to the scene and disposed of Smith's body in a nearby quarry. TT Vol. IX at 92 (Davenport Test., Sexton Statement); TT Vol. X at 103 (Davenport Test., King Statement).

         In preparation for trial, which began on January 23, 1985, see Post-conviction Tr. ("PCT") Vol. V at 426 (Appellant's 2d Supp. App'x at 796) (Simpson Test.), King's trial counsel, Robert R. Simpson, suspected that King may have had brain damage as a result of a childhood head injury and substance abuse. PCT Vol. IV at 376, 381-82, 384 (Appellant's 2d Supp. App'x at 744, 749-50, 752) (Simpson Test.). In addition to a childhood head injury, in 1982, King-then about nineteen years old-hit his head in a car accident and had double vision for a couple of months afterwards. R. 254-3 at 4 (Gebrow Report at 2) (Page ID #475). From age eight to sixteen, King sniffed gasoline. Id. at 5 (Gebrow Report at 3) (Page ID #476). He also consumed alcohol beginning at age twelve or thirteen and LSD and Quaaludes beginning at age fifteen or sixteen. Id. at 4-5 (Gebrow Report at 2-3) (Page ID #475-76).

         On January 15, 1985, Simpson retained a mental-health expert, Martin Gebrow, M.D., to evaluate King. Simpson used private funds from King's family to pay for Dr. Gebrow's services because Simpson was unaware of state law that provided for state funding of an expert. PCT Vol. V at 424, 431-32 (Appellant's 2d Supp. App'x at 794, 801-02) (Simpson Test.). Dr. Gebrow's report indicated that he evaluated King on January 23, 1985. R. 254-3 (Gebrow Report at 1) (Page ID #474). The report described King's background, including his history of substance abuse. Id. at 1-3 (Page ID #474-76). Dr. Gebrow concluded, "My examination of Mr. King did not reveal any evidence of psychotic thought process. Nor did it reveal any evidence of an organic brain syndrome such as might have been caused by the chronic use of hydrocarbons by inhalation, alcohol, or LSD." Id. at 3-4 (Page ID #476-77). He continued, "This however does not mean that any brain damage does not exist. It would be my recommendation that Mr. King have an electroencephalogram and psychological testing to rule out organicity and/or major thought disorder." Id. at 4 (Page ID #477).

         During voir dire, Simpson made an oral motion to "permit the taking of an electroencephalogram" of King, TT Vol. VII at 552-53 (Appellant's App'x at 158-59), which is "a brain wave test that measures the electrical activity of the brain and can ascertain whether or not there are any abnormal electrical discharges which would indicate brain damage, " TT Vol. VIII at 642 (Gebrow Test.). In a hearing on the motion, during which Dr. Gebrow testified, the trial court inquired of Dr. Gebrow whether there was "a substantial possibility of damage." Id. at 657. Dr. Gebrow responded, "With the eight year-eight-or-nine-year history of constant hydrocarbon abuse, I think that there would be-could be an excellent chance that this was-that there was some damage" but that it was not a "probability." Id. at 658. Dr. Gebrow also agreed that, based on the examination, King was coherent, his memory appeared to be intact, and that he was able to express himself well. Id. Because Dr. Gebrow "went in cold to do the evaluation, " id. at 655, he was not aware of certain conditions that he admitted would affect the evaluation, including prior psychological testing, id. at 648, and evidence of antisocial behavior, id. at 665- 66. As a result, the trial court denied King's motion but noted that it would reconsider if Dr. Gebrow reviewed more of King's medical records and decided that an electroencephalogram would still be required. See id. at 670. Having reviewed these records, Dr. Gebrow testified later at trial that an electroencephalogram was not necessary. TT Vol. XII at 383 (Gebrow Test.).

         Simpson suggested in his opening statement that King's intoxicated state influenced his actions:

We think the proof will show that whatever happened to Mrs. Smith, Mr. King's involvement was the product of an incredible quantity of intoxicants. And we think the proof will show that he cannot be held legally responsible for all of his actions to the degree the State would ask you, simply because of the vast quantities of intoxicants that he consumed. And the proof is going to be very clear on that point.

TT Vol. IX at 10 (Appellant's App'x at 161). Simpson's trial strategy changed when King's former girlfriend, Lori Eastman Carter ("Carter"), testified. Carter described an incident on October 13, 1982, in which King assaulted her in her car. TT Vol. XI at 278-79 (Appellee's App'x at 203-04). She testified that King struck her, causing her to lose consciousness, and that when she became conscious, "he pulled me from the floorboard by my hair, rolled my hair up in the car window, and continued to beat me around my face and neck." Id. at 279 (Appellee's App'x at 204). She continued, "Several times he said that he wanted me to tell him-he asked me if I knew that I was dying, and I said yes. And he wanted me to tell him how it felt to be dying, so that the next woman he killed he would know how she felt." Id. After losing and regaining consciousness once more, Carter overheard King telling his ...


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