Dennis Allen Rayfield v. State of Tennessee ( 2021 )

09/16/2021
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
August 10, 2021 Session
DENNIS ALLEN RAYFIELD v. STATE OF TENNESSEE
Appeal from the Circuit Court for Wayne County
No. 15892 David L. Allen, Judge
No. M2020-00546-CCA-R3-PC
The petitioner, Dennis Allen Rayfield, appeals the denial of his petition for post-conviction
relief, which petition challenged his conviction of first degree murder, alleging that the trial
court committed errors which deprived him of his constitutional rights to due process and
a fair trial and that he was deprived of the effective assistance of counsel. Discerning no
error, we affirm the denial of post-conviction relief.
Tenn. R. App. P. 3; Judgment of the Circuit Court Affirmed
JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which CAMILLE R.
MCMULLEN, and J. ROSS DYER, JJ., joined.
Brandon E. White, Columbia, Tennessee (on appeal); and Shara Ann Flacy, Ardmore,
Tennessee (at hearing), for the appellant, Dennis Allen Rayfield.
Herbert H. Slatery III, Attorney General and Reporter; Cody N. Brandon, Assistant
Attorney General; and Brent A. Cooper, District Attorney General, for the appellee, State
of Tennessee.
OPINION
A Wayne County petit jury convicted the petitioner of the first degree murder
of his estranged wife, Julie Rayfield, who was shot to death in her home in March 2012.
State v. Rayfield, 507 S.W.3d 682, 684 (Tenn. Crim. App. 2015). At the time of her death,
the victim was preparing to initiate divorce proceedings against the petitioner. Id. This
court summarized the evidence on direct appeal:
[T]he evidence shows that the [petitioner] did not want a
divorce and was upset about the amount of child support he
would be required to pay. The [petitioner] had existing
problems with remaining current in his child support
obligations for his children from his first marriage. Although
the victim’s attorney thought, based upon the information he
had been provided, that the victim should seek an order of
protection against the [petitioner] and that the victim should
not personally present the divorce paperwork to the
[petitioner], the victim planned to meet with the [petitioner] on
March 17 or 18 and provide him with the documents. The
victim was found dead from a gunshot wound to the head on
March 19.
Despite having made plans to visit Ms. [Amanda] Isbell
on the evening of March 18, 2012, the [petitioner] never
appeared at her house and failed to communicate with her
about his change in plans. The truck the [petitioner] drove was
seen at Mount Hope United Methodist Church around 9:18
p.m., and no person was seen near the truck. On March 24, a
bloodhound tracked the [petitioner’s] scent from the front steps
of the victim’s home to the same location in the Mount Hope
United Methodist Church parking lot where the truck the
[petitioner] drove was parked on the night of March 18.
Although the bullet removed from the victim’s body
was too damaged to be matched through ballistics testing to a
particular weapon, .22 caliber weapons were found in the
[petitioner’s] mother’s home, and .22 caliber ammunition was
recovered from the truck the [petitioner] drove and the
[petitioner’s] mother’s house. The [petitioner] acknowledged
owning .22 caliber weapons and admitted he had two .22
caliber weapons with him when he went rock crawling on
March 18, 2012. The bullet removed during the autopsy was
consistent with the caliber and brand of ammunition recovered
from the truck the [petitioner] drove.
....
From the proof, the jury could infer that the [petitioner]
traveled about one-fourth of one mile on foot from Mount
Hope United Methodist Church to the victim’s house, where
he placed a barrel under a window, removed the screen, entered
the house through the open window, shot the victim in the head
-2-
with a .22 caliber weapon, left through the front door, went to
his mother’s house, and waited until the body had been
discovered the next day before initiating any contact with the
authorities.
Id. at 694-95. The jury convicted the petitioner of first degree murder, and the trial court
imposed a life sentence. Id. at 692. This court affirmed the petitioner’s conviction on
appeal, and our supreme court denied further review. Id. at 684.
The petitioner filed a timely pro se petition for post-conviction relief, and
after the appointment of counsel, he filed an amended petition, alleging multiple instances
of ineffective assistance of counsel and violations of his right to a fair trial.
At the January 2019 evidentiary hearing, the petitioner’s first trial counsel1
testified that he was appointed to represent the petitioner at the beginning of this case. He
recalled that the petitioner was able to make a $250,000 bond but that, after a hearing on
his indigency status, the court concluded that the petitioner was indigent and allowed the
petitioner to proceed with appointed counsel. First counsel said that as part of discovery
materials, he received a report from the Tennessee Bureau of Investigation (“TBI”)
laboratory that indicated that gunshot residue was found on the victim but not on the
petitioner. He said that he would have argued to the jury the importance of the petitioner’s
testing negative for gunshot residue but noted that the petitioner was arrested the day after
the shooting and that if the petitioner “had showered or anything, you wouldn’t expect any
residue.” First counsel identified another report from the discovery materials that indicated
that no traces of blood were found in the petitioner’s vehicle or on any item collected from
the vehicle or from the petitioner’s person. He said that he would have “[c]ertainly” wanted
the jury to see that report.
First counsel recalled filing a standard motion to exclude autopsy
photographs from trial, explaining that “any photograph that would show blood or tend to
be gruesome or horrific, you would want the [c]ourt to consider excluding.” He viewed
black-and-white copies of photographs of the victim taken at the crime scene, the originals
of which were admitted as trial exhibits. He said that a photograph showing the victim
lying on the bathroom floor was one that he would prefer the jury to see over one showing
a gunshot wound because the photograph did not appear to show any blood. As for a
photograph showing “a close-up of the left side of [the victim’s] face showing blood
coming from somewhere -- it looks like going into her eye and down the side of her nose,”
1
The petitioner was appointed counsel who represented him up until two months before trial, at
which point, the petitioner hired new trial counsel. Because all claims of ineffective asisstance are against
the petitioner’s second, retained attorney, we will refer to him as “trial counsel” and to the petitioner’s first,
appointed attorney as “first counsel.”
-3-
first counsel said that he “would want to jump up and down on and say, Judge, don’t show
that to the jury” because it was gory. He said that he would also have objected to the
admission of a photograph showing what appeared to be “blood oozing from the wound
around [the victim’s] head.” He conceded, however, that in his experience, the State
“always get[s] something in that . . . I wish hadn’t come in.”
During cross-examination, first counsel acknowledged that trial counsel’s
“time would have been severely limited” to prepare for the trial, noting that he withdrew
from the case because the petitioner retained trial counsel. He said that he and the
petitioner’s sister “didn’t see the facts in the same way” and that the sister came to his
office one day in January 2012 and “became so demeaning and insulting to me that I asked
her to leave my office.” He said that the petitioner was present during that incident and
that after the petitioner’s sister left the office, he and the petitioner met for “another 45
minutes or so.” Shortly after that incident, the petitioner’s family hired trial counsel. First
counsel explained that the petitioner told him that the police officer who had reported
seeing the petitioner’s vehicle parked at a church near the victim’s house on the night of
the murder was lying. After investigating the matter, first counsel concluded that the
officer was not lying and told the petitioner that he would not call the petitioner to testify
that his vehicle was not at the church that night. First counsel said that this was the issue
over which the petitioner’s sister became angry. He said that he thought that “there was a
lot to say” in the petitioner’s defense but that the petitioner’s wanting to say that his truck
was not at the church when there was “what a jury would consider conclusive” proof, would
have been difficult to overcome, stating, “[A] jury will convict a fellow of lying quicker
than anything else.”
On redirect examination, first counsel testified that a TBI official firearms
report included in the discovery materials indicated that the bullet recovered from the
victim was “‘a .22 long rifle caliber . . . consistent with Remington manufacture’” and was
of “‘the same type and design as the Remington .22 long rifle cartridge’” that was recovered
“‘from the center console of [the petitioner’s] truck.’” First counsel said that he would not
have advised the petitioner to testify in his own defense because he expected the petitioner
to testify that his truck was not at the church on the night of the victim’s death and that
such testimony would make the petitioner “look like a liar.” First counsel said, “My
opinion is that he would have been better off just sitting and letting his attorney make the
argument that . . . there’s not enough evidence here to convict.”
Trial counsel testified that he was retained in February 2012 by “[s]ome
members of [the petitioner’s] family,” who expressed “their need for a new attorney on the
case.” He said that he sought funds from the court for an investigator to aid his preparation,
noting that the petitioner “certainly fit the bill” of an indigent defendant. The trial court
denied the motion, however, because the petitioner had retained counsel. He
-4-
acknowledged that he did not offer an affidavit of indigency at the hearing on the matter
but said that “[i]t was my understanding that [the petitioner] had already been found
indigent for purposes of the proceedings” and that he did not believe that the petitioner’s
financial circumstances had changed since that determination. Trial counsel said that the
trial court simply stated, “I’m not giving you the funds for an investigator, . . . you’re
retained counsel, and that was it.” He recalled “being somewhat shocked” that the trial
court denied the petitioner funds for an investigator.
Trial counsel said that the petitioner would have seen the jury venire list that
was at the defense table during trial. He said that he discussed jury selection with the
petitioner but could not recall whether “I had the discussion with [the petitioner] himself
or with someone in his family, but that discussion was held.” He recalled that the petitioner
told him that Juror A.B. had previously witnessed the petitioner shoot a dog but said that
the petitioner did not reveal this information until “after the jury had been . . . seated and
sworn,” and, consequently, he did not challenge A.B.’s inclusion in the jury.
Trial counsel testified that he was retained in February 2012, “got the file in
March and we went to trial in May of the same year. . . . [I]t was a matter of luck that we
were able to know as much about this case as we did.” He explained that he did not object
to admission of the petitioner’s .22 bolt-action Crickett gun, .22 Ruger gun, or the “various
caliber of ammunition” because “[t]here was not one bit of evidence presented that any of
those weapons were the murder weapon.” His strategy was to let the jury see the guns “but
then point out that [the murder weapon] could be any number of .22 caliber rifles that
exists, even to this day, in Wayne County let alone the state of Tennessee. It could have
been any weapon anywhere.”
Trial counsel acknowledged that he did not think that the State had conducted
“a first-class investigation” in this case and that an expert crime scene investigator could
have helped him better prepare to cross-examine the State’s witnesses on their handling of
the crime scene. He explained, however, that because he “couldn’t get funds for an
investigator,” he did not believe the court would give him the funds for an expert witness,
saying, “[T]here was no indication that [the trial court] was going to give us anything we
asked for. He hadn’t so far.” He also said that he did not “have time to find experts.” Trial
counsel acknowledged that he could have filed an interlocutory appeal challenging the trial
court’s denial of his motion but said that in light of the “gargantuan task ahead of me,” he
“didn’t have time to go to the court of criminal appeals.” He acknowledged that his
inability to engage expert witnesses or an investigator in this case constrained his defense
strategy.
Trial counsel asserted that “[w]e needed a continuance in this matter. We
begged for a continuance in this matter. The judge would not give us a continuance in this
-5-
matter.” He said that it was “almost inconceivable to prepare for any trial in two months.
It’s almost inconceivable that the remainder of a man’s life lay in the hands of someone
who had only 60 days to prepare.” He did not challenge the trial court’s denial of the
motion for a continuance because “[w]e didn’t have time to argue with the judge that he’s
indigent, we need more time. We had to get ready for trial. That’s what it was.” Trial
counsel explained that he “chose to spend my time trying to figure out what was actually
going on in the discovery in this case. There was quite a bit of it.” He reiterated, “[W]e
had this gargantuan task ahead of us and no time to do it.” Trial counsel acknowledged
that he was not prepared for trial and explained that the “short timeline took a lot off the
table” in terms of a defense strategy. Another attorney had agreed to assist counsel at the
trial but, because that attorney could not be present on the scheduled trial date and because
the trial court would not continue the case, trial counsel had to proceed to trial without
assistance. He said that although he could have done more preparation had he been given
more time, he “did the best job I could” under the circumstances.
Trial counsel recalled a pretrial discussion about the admissibility of
photographs of the victim. He agreed that the three photographs of the victim taken at the
crime scene were graphic and gruesome, but he could not recall if the photographs were
shown to the jury or admitted for identification only. The parties stipulated that the
photographs were displayed to the jury, and trial counsel acknowledged that he should have
objected to their admission.
Trial counsel said that his failure to challenge evidence of prior acts of
violence by the petitioner was not part of a trial strategy but, rather, was the result of the
lack of time that he had to prepare and “to get into the minute details of the trial.” He
acknowledged that “[a]s it stood, under Rule 404(b), the testimony shouldn’t have come
in, specifically, because . . . it wasn’t relevant to the proceedings.” Trial counsel said that
he objected to Alexandria Pope’s testimony that she had heard the petitioner yelling at the
victim over the telephone and that the victim later appeared with a red mark on her chest,
but the trial court overruled the objection. He acknowledged that he should have also
objected to a portion of Ms. Pope’s testimony that amounted to speculation.
Trial counsel testified that the trial judge told the jury during deliberations
“that he was going to be out of the county on Friday” and that if they did not reach a verdict
that day, the jury would remain sequestered at the hotel on Friday and not return to
deliberations until Saturday.
During cross-examination, trial counsel testified that when he agreed to take
the petitioner’s case, he knew that the trial was scheduled but could not “imagine a judge
requiring us to move on to trial that soon.” After it “became very clear, very clear, that we
were not going to get investigative funds and we were not going to get a continuance,” trial
-6-
counsel tried the case as best he could. He said that he cross-examined the State’s witnesses
as best he could and raised numerous objections to evidence. He agreed that it was not
always advantageous to object to every inadmissible piece of evidence. At trial, he raised
the issue that the crime scene had been contaminated by “[s]everal family members” before
law enforcement arrived and that the criminal investigation was sloppy. He maintained
that although two months was insufficient time for him to fully prepare for trial in this case,
he was as prepared as he could have been with the limited time that he had.
The petitioner testified that he had been found indigent by the trial court
when he was appointed first counsel. He said that his family made his bond because he
did not have the means to do so and that his sister paid trial counsel to represent him. He
denied that his financial situation changed after the indigency determination. The
petitioner said that he had received all discovery materials before trial counsel was retained.
He denied that trial counsel discussed a defense strategy or whether the petitioner should
testify and said that counsel “just flew by the seat of his pants.” He did not recall ever
seeing a list of the jury venire and said that his first opportunity to discuss potential conflicts
with jurors was during jury selection. The petitioner said that he told trial counsel that he
had a conflict with Juror A.B. because he had “shot her dog one night when her dog had
jumped on my dog” but that counsel said, “‘We can’t do nothing about it.’”
The petitioner said that he wanted trial counsel to object to the admission of
his two firearms but that counsel failed to do so. He posited that the assistance of expert
witnesses would have been helpful to his case and that trial counsel should have sought
such services from the court. He said that counsel should have offered into evidence the
TBI laboratory report that indicated that gunshot residue was found on the victim but not
on the petitioner. He also said that trial counsel should have objected to the admission of
the photographs of the victim. The petitioner recalled that the trial court told the jury that
“they would stay there all night until they reached a verdict, and they wouldn’t be going
home until they did so.”
During cross-examination, the petitioner said that he knew that the outcome
at trial would have been different if trial counsel had not made the alleged errors because
he was innocent of the crime. He denied that he asked his family to make his bond or to
hire an attorney and reiterated that he personally did not have financial resources. He said
that he believed the trial court pressured the jury to reach a verdict, which pressure led the
jury to convict him.
In its written order denying post-conviction relief, the post-conviction court
concluded that the petitioner had failed to establish that Juror A.B. was biased against him
by clear and convincing evidence. The court also concluded that, although trial counsel
should have objected to evidence of the petitioner’s having owned two .22 caliber weapons
-7-
and various ammunition, the petitioner was not prejudiced by this evidence. The post-
conviction court accredited trial counsel’s testimony that “it would have been futile to
repeat his request for an investigator or to have requested other expert witness services”
after the trial court denied his motion for a state-funded investigator. The court found that
trial counsel’s bringing into evidence the petitioner’s attempts to reconcile with the victim
was consistent with his trial strategy of “attempt[ing] to establish that there was no
domestic violence in [the p]etitioner’s and victim’s marriage” and that, even if counsel
performed deficiently in this matter, the petitioner was not prejudiced by counsel’s actions.
As to the admission of the three photographs of the victim, the post-conviction court found
that trial counsel did not object to the admission of one photograph “because he intended
to use that photograph to support the defense theory that the victim had committed suicide”
and concluded that the other two photographs “would have been admitted” over an
objection by trial counsel as evidence “illustrating the nature of the injury.” The court also
concluded that the admission of the photographs did not prejudice the petitioner.
As to the petitioner’s due process and fair trial claims, the post-conviction
court found that the trial court did not err by denying the petitioner’s motion for a
continuance because “it was the [p]etitioner’s actions” that gave rise to his having new trial
counsel only two months before the trial. The post-conviction court also found that the
trial court “did not pressure the jury into reaching a verdict” and that the jury agreed to the
trial court’s stated preference of continuing deliberations that night until a verdict was
reached.
In this timely2 appeal, the petitioner reasserts his arguments that he was
deprived of the effective assistance of counsel and that the trial court violated his rights to
due process and a fair trial.
We view the petitioner’s claim with a few well-settled principles in mind.
Post-conviction relief is available only “when the conviction or sentence is void or voidable
because of the abridgment of any right guaranteed by the Constitution of Tennessee or the
Constitution of the United States.” T.C.A. § 40-30-103. A post-conviction petitioner bears
the burden of proving his or her factual allegations by clear and convincing evidence. Id.
§ 40-30-110(f). On appeal, the appellate court accords to the post-conviction court’s
findings of fact the weight of a jury verdict, and these findings are conclusive on appeal
unless the evidence preponderates against them. Henley v. State, 960 S.W.2d 572, 578-79
(Tenn. 1997); Bates v. State, 973 S.W.2d 615, 631 (Tenn. Crim. App. 1997). By contrast,
2
The petitioner’s notice of appeal is considered timely under our supreme court’s order of March
25, 2020, extending the filing deadline due to the COVID-19 pandemic. In re: COVID-19 Pandemic, No.
ADM2020-00428 (Tenn. Mar. 25, 2020) (Order) (“Deadlines set forth in court rules, statutes, ordinances,
administrative rules, or otherwise that are set to expire during the period from Friday, March 13, 2020,
through Tuesday, May 5, 2020, are hereby extended through Wednesday, May 6, 2020.”).
-8-
the post-conviction court’s conclusions of law receive no deference or presumption of
correctness on appeal. Fields v. State, 40 S.W.3d 450, 453 (Tenn. 2001).
I. Due Process and Fair Trial
The petitioner argues that the trial court violated his right to due process by
denying him a continuance to allow trial counsel to fully prepare for trial and by denying
his motion for funds to hire an investigator and that he was denied a fair trial by the
inclusion of A.B. on the jury because A.B. harbored bias against him.
In the post-conviction context, “[a] ground for relief is waived if the
petitioner personally or through an attorney failed to present it for determination in any
proceeding before a court of competent jurisdiction in which the ground could have been
presented,” with certain exceptions not applicable in this case. T.C.A. § 40-30-106(g).
We first note that the petitioner failed to assert his due process claim that the
trial court erred by denying his request for a state-funded investigator in either of his
petitions for post-conviction relief, and, consequently, that claim is waived. See State v.
Townes, 56 S.W.3d 30, 35 (“The issue, as stated, was not presented in the post-conviction
petition and may not be raised for the first time on appeal.” (citing Cone v. State, 747
S.W.2d 353, 356 (Tenn. Crim. App. 1987))), overruled on other grounds by State v. Terry,
118 S.W.3d 355 (Tenn. 2003).
The remaining alleged trial errors are issues that were ripe for direct appeal
of the petitioner’s conviction, and the petitioner’s failure to raise these issues at that time
render them waived for the purposes of post-conviction relief. See House v. State, 911
S.W.2d 705, 714 (Tenn. 1995) (“Waiver in the post-conviction context is to be determined
by an objective standard under which a petitioner is bound by the action or inaction of his
attorney.”); see also e.g., State v. Schmeiderer, 319 S.W.3d 607, 616-18 (Tenn. 2010)
(reviewing on direct appeal whether the trial court’s denial of the defendant’s motion for a
continuance denied him a fair trial); Greene v. State, No. E2013-01583-CCA-R3-PC, 2014
WL 3698347, at *7 (Tenn. Crim. App., Knoxville, July 24, 2014) (concluding that an issue
of juror bias was waived on post-conviction because the petitioner failed to raise it on direct
appeal); Edmund George Zagorski v. State, No. 01C01-9609-CC-00397, 1997 WL 311926,
at *18 (Tenn. Crim. App., Nashville, June 6, 1997) (concluding that the issue of the trial
court’s denying the petitioner funds for expert services was waived on post-conviction for
failure to raise it on direct appeal). Consequently, these claims have been waived for the
purposes of post-conviction relief.
-9-
This conclusion, however, does not bar our consideration of these alleged
errors as they relate to the petitioner’s claim of ineffective assistance of counsel, which we
discuss below.
II. Ineffective Assistance of Counsel
The defendant asserts myriad instances of deficient performance by trial
counsel, including counsel’s failure to challenge the trial court’s denial of his motion for a
continuance and motion for a state-funded investigator, failure to seek funding for expert
witnesses, failure to call TBI Special Agent Russell Davis regarding the gunshot residue
report, failure to object to the evidence of the petitioner’s owning firearms and ammunition,
failure to object to the trial court’s pressuring the jury to reach a verdict, opening the door
to hearsay and bad act evidence, failure to object to crime scene photographs, and failure
to challenge the inclusion of A.B. on the jury. The State contends that the post-conviction
court properly denied relief.
Before a petitioner will be granted post-conviction relief based upon a claim
of ineffective assistance of counsel, the record must affirmatively establish, via facts
clearly and convincingly established by the petitioner, that “the advice given, or the
services rendered by the attorney, are [not] within the range of competence demanded of
attorneys in criminal cases,” see Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975), and
that counsel’s deficient performance “actually had an adverse effect on the defense,”
Strickland v. Washington, 466 U.S. 668, 693 (1984). In other words, the petitioner “must
show that there is a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Id. at 694. Should the
petitioner fail to establish either deficient performance or prejudice, he is not entitled to
relief. Id. at 697; Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996). Indeed, “[i]f it is
easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice,
. . . that course should be followed.” Strickland, 466 U.S. at 697.
When considering a claim of ineffective assistance of counsel, a reviewing
court “begins with the strong presumption that counsel provided adequate assistance and
used reasonable professional judgment to make all significant decisions,” Kendrick v.
State, 454 S.W.3d 450, 458 (Tenn. 2015) (citation omitted), and “[t]he petitioner bears the
burden of overcoming this presumption,” id. (citations omitted). We will not grant the
petitioner the benefit of hindsight, second-guess a reasonably based trial strategy, or
provide relief on the basis of a sound, but unsuccessful, tactical decision made during the
course of the proceedings. Adkins v. State, 911 S.W.2d 334, 347 (Tenn. Crim. App. 1994).
Such deference to the tactical decisions of counsel, however, applies only if the choices are
-10-
made after adequate preparation for the case. Cooper v. State, 847 S.W.2d 521, 528 (Tenn.
Crim. App. 1992).
Here, the petitioner has failed to establish that he is entitled to post-
conviction relief on the basis of trial counsel’s performance. First, trial counsel’s
accredited testimony established that he believed it would have been an exercise in futility
to seek funding for expert witnesses after the trial court declined to find the petitioner
indigent for purposes of a state-funded investigator. Counsel explained that he believed
his limited time was best spent preparing for trial with the evidence that he had rather than
challenging the trial court’s denial of his motions for a continuance and for investigative
funds. Under the circumstances, this was a reasonable strategic decision. Additionally,
the petitioner has failed to show that counsel would have been successful had he challenged
the trial court’s denial of his motions via an interlocutory or extraordinary appeal. See
State v. Gilley, 173 S.W.3d 1, 6 (Tenn. 2005) (holding that an interlocutory appeal was
erroneously granted when the issue could “be challenged in an appeal as of right” upon
conviction); see also State v. Mann, 959 S.W.2d 503, 524 (Tenn. 1997) (a less-than-two-
month period of time to prepare for trial in a capital case was not inadequate when the
newly-appointed counsel had the benefit of prior counsel’s seven months of preparation)
(citing State v. Jimmy D. Dillingham, No. 03C01-9110-CR-319, 1993 WL 22155 (Tenn.
Crim. App., Knoxville, Feb. 3, 1993)). Moreover, the petitioner failed to present at the
evidentiary hearing what beneficial evidence such services would have uncovered. See
Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990) (“When a petitioner contends
that trial counsel failed to discover, interview, or present witnesses in support of his
defense, these witnesses should be presented by the petitioner at the evidentiary hearing.”);
Edmund George Zagorski, 1997 WL 311926, at *18 (post-conviction petitioner failed to
establish that he was prejudiced by the trial court’s denying him funds for a private
investigator or expert witnesses because the petitioner failed to present “what significant
information . . . would have [been] discovered that was not known by defense counsel”).
We will not speculate on what evidence could have been produced with the services of a
private investigator or expert witnesses.
The petitioner also argues that counsel should have objected to the admission
of his firearms into evidence on the ground that it was unfairly prejudicial. At trial, the
State presented evidence that the petitioner owned multiple .22 caliber firearms and
ammunition consistent with the bullet recovered from the victim; it could not be determined
whether the fatal shot was fired from one of the petitioner’s guns. The petitioner has failed
to show that he would have been successful had trial counsel objected to admission of the
evidence, which was probative of the material issue of the perpetrator’s identity. See State
v. Reid, 213 S.W.3d 792, 814 (Tenn. 2006) (concluding that the defendant’s possession of
a weapon similar to that used in the crime “was especially probative as to the identity of
the perpetrator”); see also State v. Hurley, 876 S.W.2d 57, 67 (Tenn. 1993) (finding “no
-11-
merit” to defendant’s argument that evidence of his owning a shotgun of the same caliber
as the weapon used to kill the victim was unfairly prejudicial), superseded by statute, 1995
Tenn. Pub. Acts ch. 53 § 1, as recognized in State v. Powers, 101 S.W.3d 383 (Tenn. 2003).
Next, the petitioner contends that trial counsel performed deficiently by
placing the nature of the petitioner’s relationship with the victim at issue, arguing that trial
counsel opened the door to damaging evidence that was otherwise inadmissible under
Evidence Rule 404(b) and the hearsay rules. The petitioner points to three incidents
described by Ms. Pope that he alleges were admissible only after trial counsel elicited
testimony from the State’s first witness that he did not know of any domestic violence
incidents between the petitioner and the victim: First, Ms. Pope testified to an incident in
which the victim arrived at Ms. Pope’s house crying and with a handprint mark on her face.
Second, Ms. Pope described an incident in which the victim left a party after a heated
telephone call with the petitioner and returned to the party appearing upset and with a red
mark on her chest.3 Finally, Ms. Pope testified that approximately one week before the
victim’s death, the victim seemed scared after Ms. Pope told her that she saw the petitioner
driving from the direction of the victim’s parent’s house and toward the victim’s house and
that the victim asked Ms. Pope to stay on the telephone with her.
The petitioner has failed to establish that he was prejudiced by trial counsel’s
failing to object to Ms. Pope’s testimony. First, not all of the challenged testimony was
inadmissible as the petitioner asserts. Ms. Pope described only two acts by the petitioner:
that she heard him yelling at the victim over the telephone and that she saw him driving
from the direction of the victim’s parents’ house and toward the victim’s house. Because
the petitioner’s driving around was not a bad act, Evidence Rule 404(b) did not bar
admission of that evidence. Moreover, because Ms. Pope did not hear the substance of the
telephone conversation between the victim and the petitioner, the petitioner’s yelling
during the call was not necessarily a bad act, and, even so, was not so prejudicial that Rule
404(b) required its exclusion. Similarly, because Ms. Pope’s statement that she saw the ,
victim crying and with a handprint mark on her face did not describe any act by the
petitioner—although the jury was free to draw the inference that the petitioner caused the
victim’s injury—Evidence Rule 404(b) does not apply. See Tenn. R. Evid. 404(b); State
v. Stevens, 78 S.W.3d 817, 837 (Tenn. 2002) (“It is well established that in a criminal trial,
evidence of a defendant’s prior misconduct is inadmissible to establish the accused’s bad
character or criminal propensity.”) (citations omitted)). Even if Rule 404(b) applied, the
evidence was admissible to show that the petitioner had a “settled purpose to harm the
victim.” See State v. Gilley, 297 S.W.3d 739, 758 (Tenn. Crim. App., 2008) (“[O]ur
supreme court has ruled that ‘[v]iolent acts indicating the relationship between the victim
of a violent crime and the defendant prior to the commission of the offense are relevant to
3
We note that trial counsel objected to this testimony at trial on the ground of relevance, but in this
post-conviction appeal, the petitioner argues that trial counsel should have objected under Rule 404(b).
-12-
show defendant’s hostility toward the victim, malice, intent, and a settled purpose to harm
the victim.’” (alteration in Gilley) (quoting State v. Smith, 868 S.W.2d 561, 574 (Tenn.
1993)). Although Ms. Pope’s statement that the victim asked her to remain on the
telephone with her constituted hearsay, it was not so prejudicial as to change the outcome
of the trial.
As to the petitioner’s claim that trial counsel should have objected to the
admission of the photographs of the victim taken at the crime scene, the petitioner has
failed to establish that the trial court would have excluded the photographs had trial counsel
objected. Photographs of a deceased victim showing the position of the body and the nature
of the injuries are not necessarily unduly prejudicial simply because they are graphic or
gruesome. State v. Adams, 405 S.W.3d 641, 658 (Tenn. 2013) (“Crime scene photographs
of a victim tend to be prejudicial by nature, but this fact does not make them excludable
per se.” (citing State v. Jordan, 325 S.W.3d 1, 86 (Tenn. 2010)); State v. Foust, 482 S.W.3d
20, 48 (Tenn. Crim. App. 2015) (“Graphic, gruesome, or even horrifying photographs of
crime victims may be admitted into evidence if they are relevant to some issue at trial and
probative value is not [substantially] outweighed by their prejudicial effect.” (alteration in
Foust) (quoting State v. Brock, 327 S.W.3d 645, 694 (Tenn. Crim. App. 2009)); see also,
e.g., State v. Willis, 496 S.W.3d 653, 725-29 (concluding that the trial court did not abuse
its discretion by admitting into evidence graphic and “quite disturbing” color photographs
of the victim’s decapitated head, severed hands, and “headless and handless body”).
Photographs depicting a deceased victim can be probative of the “nature and extent of
injuries,” “the ferocity and the brutality of the attack,” “the location and nature of the
victims’ wounds,” and of the defendant’s premeditation. State v. Brian Cox, No. 18, 1991
WL 35753, at *5 (Tenn. Crim. App., Jackson, Mar. 20, 1991) (citations omitted); see also
Willis, 496 S.W.3d at 727 (“[T]he locations of the victims’ bullet wounds . . . were relevant
to the issue of premeditation, and photographs are clearly an aid.”). Moreover, although
the record before us contains only black and white copies of the color photographs admitted
at trial, the photographs do not appear to be more graphic than those that are routinely
admitted at murder trials.
Next, the petitioner argues that trial counsel performed deficiently by failing
to call Agent Davis to testify to the contents of the agent’s gunshot residue report. The
petitioner has failed to show that he was prejudiced by counsel’s failure to offer the report.
Although the report states that “[e]lements of gunshot residue were absent” from a
“[g]unshot residue kit” collected from the petitioner, the report does not indicate when or
from what part of the petitioner’s body the sample was collected. Because the petitioner
failed to call Agent Davis at the evidentiary hearing, this evidence is absent from the record.
Furthermore, the report qualifies the results of the defendant’s test by stating, “It must be
noted that some .22 rimfire ammunition does not have all the elements needed for gunshot
residue analysis. These results cannot eliminate the possibility that the individual could
-13-
have fired, handled, or was near a gun when it fired.” Because the report clearly cautions
against the conclusion that the results foreclose the possibility of the petitioner’s having
fired a gun, the report is unlikely to have changed the outcome of the trial had it been
admitted.
As to the petitioner’s claim that trial counsel should have objected to the trial
court’s pressuring the jury to reach a verdict, the post-conviction court found that the trial
judge asked the jury if they agreed with its plan to continue deliberations that night until
they reached a verdict, and the record does not preponderate against that finding. The trial
transcript reveals that, after the close of all evidence, the following exchange occurred:
Ladies and gentlemen, let me tell you what I have decided
we’re gonna do today, and that’s this - we’re going to - all the
proof is in. There won’t be any more witnesses to testify. The
attorneys will make their arguments. The State will go first,
then the defendant can argue if they choose to do so, and then
the State can close. After that, I will read my instructions to
you and this will be your case for deliberations.
My preference, tonight, is to go ahead and let’s finish
tonight; let you deliberate toward a verdict and go from there.
Is that - We’ve ordered food for you and all that. You won’t
spend the night but you will stay here until you reach a verdict.
Okay?
(The jurors responds [sic] in the affirmative.)
The transcript indicates that the jury began their deliberations at 6:55 p.m. Because the
trial court stated its plan for the jury to work past dinner time until they reached a verdict
as a “preference” and asked the jury if they agreed, the court’s statement did not constitute
undue pressure on the jury. Consequently, the petitioner has failed to show that trial
counsel performed deficiently by failing to challenge the trial court’s handling of the
matter.
Finally, as to the petitioner’s assertion that trial counsel should have
challenged the inclusion of A.B. on the jury because A.B. was biased against him, the post-
conviction court found that the petitioner failed to establish the facts of this claim by clear
and convincing evidence, and the record does not preponderate against that finding.
Furthermore, the petitioner failed to call Juror A.B. at the evidentiary hearing, and, as such,
the petitioner has failed to establish that he was prejudiced by counsel’s failure to challenge
A.B’s inclusion on the jury. See Gregory Gene Spiceland v. State, No. M2014-01833-
-14-
CCA-R3-PC, 2015 WL 5908532, at *5 (Tenn. Crim. App., Nashville, Oct. 9, 2015) (“The
petitioner failed to present the juror at issue at the evidentiary hearing. As such, we cannot
speculate whether the juror was actually prejudiced against the petitioner at trial.” (citations
omitted)). Consequently, this issue lacks merit.
Accordingly, the judgment of the post-conviction court is affirmed.
_________________________________
JAMES CURWOOD WITT, JR., JUDGE
-15-