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Hall v. State8/22/2005
d that thirty-eight contacts with Co-counsel and fifteen contacts with Dr. Meyer sounded accurate.
Regarding Dr. Merriman's testimony that the victim's injuries were the result of being doused rather than splattered with gasoline, Counsel said that he did not question the doctor's conclusion because it was within her area of expertise and because he did not want to reemphasize her testimony for tactical reasons. Counsel agreed that he was aware, before the trial, that Dr. Merriman's testimony was inconsistent with the pathologist's belief that the gasoline was thrown at, not poured on, the victim. Counsel said that he did not know until trial, however, that the Petitioner was going to change his testimony and make the question of pouring versus throwing the gasoline an issue for the jury. Counsel said that he intentionally did not tell the jury in his opening statement of the sentencing phase what mitigation proof would be presented in order to save that proof for the end and to avoid being "pinned down" by saying something the proof might not support.
On cross-examination, Counsel said that he was in contact with the Capital Case Resource Center, and he contacted other attorneys, including Paul Morrow, who was the Petitioner's counsel in this post- conviction proceeding, about the Petitioner's case. He said that he followed Morrow's advice to hire an independent expert, rather than use a State psychologist, for a mental evaluation because the advice was well-founded. Counsel agreed that his trial strategy was multi-faceted, and he tried to engender some sympathy for the Petitioner, but he never felt that the Petitioner would be able to escape all criminal responsibility for his actions. Counsel also tried to mitigate the offense, and avoid the death sentence, by showing that the Petitioner lacked the capacity for premeditation. He also sought to attribute the Petitioner's actions, partly, to the pressure of his stressful relationship with the victim. He said his efforts were made more difficult because some of the information the Petitioner told him was either untrue or inaccurate. Counsel said that neither he nor the State could establish whether the victim was doused or splattered with gasoline because the effect was the same. Counsel agreed that the best evidence that gas was thrown at the victim was a statement from the victim to a witness indicating that the Petitioner threw gas at her.
Counsel discussed his fee claim, and he said that, if anything, the hours reflected on his claim were "probably a little bit short" of the time he actually worked on the case. Counsel disputed any inference that he was "padding" his fee claim because he needed the money. He explained that, when he was appointed to represent the Petitioner, he had substantial income from several personal injury cases. Counsel estimated that he worked over one thousand hours on the Petitioner's case.
Co-counsel testified that she had practiced law since May 1981, and she began working at the public defender's office in September 1989, where she was currently the "chief assistant." In July 1991, she was appointed as Co-counsel in this case, and, at that time, she had a very heavy caseload. At the time she was appointed to the Petitioner's case, Co-counsel was working on another capital case with Counsel, State v. Amos Copenny, 88 S.W.2d 450 (Tenn. Crim. App. 1993). Co-counsel said that, in the Copenny case, there was a problem with an investigator from her office, who was later terminated, whose actions gave the impression that the defense was paying witnesses for their testimony. Co-counsel said that, as a result, she felt that Counsel did not trust her or her office when the two were appointed to work
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