Chad Ray Thompson v. State of Tennessee ( 2019 )

11/25/2019
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs April 16, 2019
CHAD RAY THOMPSON v. STATE OF TENNESSEE
Appeal from the Circuit Court for Warren County
No. F-13595 Larry B. Stanley, Jr., Judge
No. M2018-01074-CCA-R3-PC
The Petitioner, Chad Ray Thompson, appeals from the denial of his petition for post-
conviction relief, wherein he challenged his jury convictions for first degree premeditated
murder, first degree felony murder, and facilitation of especially aggravated robbery. On
appeal, the Petitioner alleges that he received ineffective assistance at trial due to trial
counsel’s (1) failure to seek funding for an investigator and adequately prepare for trial;
(2) failure to call certain witnesses; and (3) failure to file any pretrial motions or object at
trial to exclude evidence. He also submits that the cumulative effect of these errors
deprived him of a fair trial. After a thorough review of the record, we affirm the
judgment of the post-conviction court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which JAMES CURWOOD
WITT, JR., and CAMILLE R. MCMULLEN, JJ., joined.
Brandon J. Cox, Smithville, Tennessee, for the appellant, Chad Ray Thompson.
Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Senior Assistant
Attorney General; and Lisa S. Zavogiannis, District Attorney General, for the appellee,
State of Tennessee.
OPINION
FACTUAL BACKGROUND
The February 2012 term of the Warren County Grand Jury charged the Petitioner
with first degree premeditated murder, first degree felony murder, and especially
aggravated robbery in connection with the death of the Petitioner’s cousin, Tracy Allen
Martin (“the victim”). See Tenn. Code Ann. §§ 39-13-202, -403. Following a jury trial,
the Petitioner was convicted of first degree premeditated murder, first degree felony
murder, and facilitation of especially aggravated robbery. See State v. Chad Ray
Thompson, No. M2015-01534-CCA-R3-CD, 2016 WL 7010921, at *1 (Tenn. Crim.
App. Dec. 1, 2016), perm. app. denied (Tenn. Mar. 8, 2017). Thereafter, the murder
counts were merged into a single conviction, and the Petitioner’s thirty-year sentence for
facilitation was ordered to run concurrently with his life sentence. Id. at *8.
The State presented the following evidence at the Petitioner’s trial. See generally
Thompson, 2016 WL 7010921. The victim was last seen alive at a local McMinnville
Walmart on November 17, 2011. The security footage from Walmart showed that the
victim entered Walmart around 2:30 p.m. wearing a yellow sweatshirt and navy-blue
jogging pants and that he purchased, with cash, a box of Winchester .38 Special target
ammunition and a laser sight.
Teresa Thompson, the Petitioner’s mother, and also the victim’s aunt, reported the
victim missing on November 19, 2011. The following day, on November 20, 2011, the
victim’s body was discovered partially submerged on a creek bank on a Warren County
farm. When discovered, “[t]he victim was wearing a yellow shirt, ‘blue jogging pants[,]’
and a wedding band.” Thompson, 2016 WL 7010921, at *2. Once the victim was
removed from the water, his pockets were checked for personal belongings, and the
victim had “absolutely nothing on him other than that wedding band and a watch[.]” Id.
Pertinent findings at autopsy were that the victim suffered from multiple blunt
force injuries to the back and right side of the victim’s head with two depressed skull
fractures, subdural hemorrhages, and contusions of the brain. The toxicology report
indicated the presence of methamphetamine and amphetamine in the victim’s system.
The forensic pathologist determined that the cause of death was multiple blunt force
injuries to the victim’s head and that the manner of death was homicide. The forensic
pathologist also concluded that the victim “probably died around” November 18 or 19,
2011, but was unable to determine the time of death with greater specificity. According
to the pathologist, the victim was bludgeoned with a “hard, heavy object swung with
some force,” and the object “would have [had] at least a semi-circular edge on one side.”
When asked if it were possible that the victim could have been hit “with a handle of
pistol,” the forensic pathologist replied, “No. Unless the pistol has a spherical grip, a
round grip to it and it has to be—pistol grips typically are plastic or wood. I would
expect something more dense and hard than a pistol grip.” However, the forensic
pathologist acknowledged that some pistol grips are circular.
Prior to his death, the victim was unable to maintain employment due to mental
illness, so he enrolled for Social Security disability benefits. The victim eventually was
awarded a lump sum disability payment of about $20,000. About $12,000 remained
when Ozella Craven was appointed as the new payee for the Petitioner’s benefits. Ms.
Craven testified that the victim “showed up at [her] house” approximately one to two
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weeks before his death. Thompson, 2016 WL 7010921, at *1. Ms. Craven understood
that the victim wanted to move to the McMinnville area to be closer to his children and
intended on staying with the Petitioner. Ms. Craven, in her capacity as payee, received a
check in the amount of $11,711.12 made out to the order of herself and the victim. She
cashed the check and gave the money to the victim. However, the victim counted out
$1,300 and gave the rest back to Ms. Craven. Ms. Craven clarified that she did not count
the money the victim had given her and did not know how much he had actually taken;
she simply trusted him when he said that he took $1,300. In addition, Ms. Craven had
purchased a handgun for the victim, which she gave to him just prior to his going
missing.
Sometime later, Tonya Debuty, the victim’s sister, received a call from the
Petitioner’s mother, informing her that the victim was missing. The victim’s sister
testified that during that conversation, she also spoke with the Petitioner, who asked
about the whereabouts of the victim’s money. According to Ms. Craven, she also
received a call from the Petitioner’s mother, and the Petitioner’s mother told her that the
victim had left her house with his money, gun, and two boxes of Sudafed and that she
was worried.
The victim’s sister acknowledged that she knew the victim “had a
methamphetamine habit” and that “he was hanging around with the wrong kind of
people[.]” Thompson, 2016 WL 7010921, at *1. Additionally, the Petitioner’s mother
stated that she did not know of any “bad blood” between the victim and the Petitioner.
Officer Brad Hall of the McMinnville Police Department responded to the missing
person call. After speaking with the Petitioner and the Petitioner’s mother, Officer Hall
did not take a formal report because the Petitioner gave Officer Hall the impression that
“it wasn’t unlike [the victim] to just pick up and move, leave town.” Thompson, 2016
WL 7010921, at *2. Officer Hall issued a “be on the lookout” (“BOLO”) call for the
victim. Id.
Ms. Craven recalled that she saw the Petitioner at the victim’s funeral. There, the
Petitioner told Ms. Craven that the victim had said he kept his money in a lock-box at
Ms. Craven’s home, and he asked Ms. Craven if she still had it.
Mary Alvarado testified that she worked at Perry’s Country Market in
McMinnville. Ms. Alvarado noted that the Petitioner had come to her store around 5:00
p.m. on November 17, 2011, and paid for his purchase with a $100 bill.
Destry Cobb and Scott Muncey testified at the Petitioner’s trial. They both
implicated the Petitioner in the victim’s murder:
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Destry Cobb testified that he lived with Scott Muncey and that he
was a friend of the [Petitioner]. Mr. Cobb admitted that he had prior
charges for manufacturing a controlled substance and assault. Mr. Cobb
recalled that the [Petitioner] would visit his apartment “[a]t least every
other day.” Around November 2011, the [Petitioner] asked Mr. Cobb and
Mr. Muncey to “help[] him rob somebody.” The [Petitioner] told Mr. Cobb
that the intended target had $30,000 and that he planned to rob the target at
Harrison Ferry. When asked how the robbery would happen, Mr. Cobb
said, “I believe in a moving truck. They would be together. He asked us to
assault him also and make it look good and that was pretty much the
details.” Mr. Cobb refused to help the [Petitioner].
Mr. Cobb also recalled that, the day after his conversation with the
[Petitioner], Mr. Muncey called him “and said that he had a gun for $75
that it was a .38.” Mr. Cobb then called his uncle, Buford Tucker, who
agreed to buy the gun for $135. The [Petitioner] brought the gun to Mr.
Cobb’s apartment, and Mr. Cobb gave him $75. During the transaction
with the [Petitioner], Mr. Cobb spoke with the [Petitioner] about the
murder, and Mr. Cobb recalled, “[The Petitioner] told me it got out of hand
one time and another time he told me that he had to kill him.” Mr. Cobb
also recalled that he paid the [Petitioner] cash for the gun and that the
[Petitioner] had approximately $1,000 in cash in his wallet at that time. Mr.
Cobb stated that he never knew the [Petitioner] to have that much money
on him. Mr. Cobb, in turn, sold the gun to Mr. Tucker for the agreed-upon
$135. Later, Mr. Cobb learned that a body had been found in a river, and
he worried that the person may have been killed with the .38 he had sold to
Mr. Tucker, and he tried to get the gun back so that his uncle did not get
into trouble.
Mr. Cobb confirmed that he had spoken with police and that the
[Petitioner] had called him during that interview. That phone call was
recorded. During that phone call, Mr. Cobb told the [Petitioner] that the
police had been to Mr. Tucker’s house looking for Mr. Cobb. He also told
the [Petitioner] that investigators had already picked up the gun from Mr.
Tucker. The [Petitioner] said he did not want to talk on the phone, which
Mr. Cobb understood to mean the [Petitioner] was nervous.
On cross-examination, Mr. Cobb admitted that he had a prior
conviction for manufacture, delivery, or sale of methamphetamine and that
he still used methamphetamine at the time of trial. Mr. Cobb stated that he
was afraid that Mr. Muncey would be charged in connection with the
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victim’s death. Mr. Cobb also admitted that he used methamphetamine the
day before the [Petitioner] asked for assistance in the robbery. Mr. Cobb
confirmed that he had not been charged with the offense of
methamphetamine use or felon in possession of a handgun for his actions
around the time of the victim’s death. Mr. Cobb also admitted that
methamphetamine use impaired his memory. Mr. Cobb affirmed that he
did not speak with police until February 6, 2012. He explained the he
delayed speaking with people because “[n]o one was in trouble.” Mr. Cobb
denied telling someone named Jamie Nichole Powell “that she needed to
keep her mouth shut or she [would] be found in the river like Tracy
[Martin].”
Scott Muncey testified that he had known the [Petitioner] for
approximately fifteen years. Mr. Muncey stated that Mr. Cobb was living
with him in November 2011. Mr. Muncey estimated that Mr. Cobb lived
with him for five to six months, but he could not state specifically how long
Mr. Cobb lived with him because he was using methamphetamine at the
time, which caused his concept of time to “blur[].” However, Mr. Muncey
recalled that, in November 2011, the [Petitioner] told him that he “knew
someone that was getting a $35,000 settlement” and who liked
methamphetamine. The [Petitioner] told Mr. Muncey that he planned to
steal the money and make it appear as if a drug deal had gone bad. Mr.
Muncey later learned that the intended target was the [Petitioner]’s cousin.
The [Petitioner] asked for Mr. Muncey’s and Mr. Cobb’s assistance
in robbing the victim, but Mr. Muncey refused. The [Petitioner] became
angry and left. A short time later, the [Petitioner] returned and told Mr.
Muncey that the intended victim “was only going to have five grand on
him” and that they needed to act quickly because “his cousin [was] going
through the money.” Mr. Muncey again refused to participate in the
planned robbery. The [Petitioner] responded that “he’d just go kill him
then and do it himself.” The [Petitioner] left angry.
“[A] couple or three days” after that conversation, the [Petitioner]
sent Mr. Muncey a photo of a .38 Special, and Mr. Muncey agreed to
purchase the gun. Mr. Muncey planned to sell the gun to a man he knew as
“Uncle.” Mr. Muncey paid seventy-five dollars for the gun, and Mr. Cobb
acted as “the middle man” in the transaction. At the time of the transaction,
Mr. Muncey was not aware of the gun “being involved in anything.”
A few days after the transaction, the [Petitioner] came to Mr.
Muncey’s apartment dressed “in his Sunday best[.]” The [Petitioner] told
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Mr. Muncey that he was on his way to his cousin’s funeral. The
[Petitioner] also told Mr. Muncey that he had “thr[own] a hammer beside
[Mr. Muncey’s] apartment” and that “he needed to find it because it ha[d]
his old lady’s initials on it.” Mr. Muncey did not understand why the
[Petitioner] was talking about a hammer, and he “felt like [the Petitioner]
maybe was setting [him] up for something.” Mr. Muncey also reported that
“the girl” found a pair of coveralls and a pair of slippers in his apartment
and that “the girl” said she had seen the [Petitioner] wearing them. “The
girl” is not identified in the record. Mr. Muncey stated that the clothes
were sized “at least 4X, 3 to 4X” and did not fit him. Additionally, after
the gun transaction, Mr. Muncey noticed that the [Petitioner] began to visit
him more often and for longer periods of time, and Mr. Muncey felt that the
[Petitioner] was “keeping an eye on [him.]” Mr. Muncey called his
stepfather and told him that he was concerned that “dude’s setting me up
for murder.” Mr. Muncey and his stepfather searched the area around Mr.
Muncey’s apartment for a hammer but did not find one.
Mr. Muncey also recalled that he asked the [Petitioner] if anyone
else knew what the [Petitioner] had done, and the [Petitioner] responded
that only he and Mr. Muncey knew what happened. Mr. Muncey noted that
the [Petitioner] never explicitly said that he killed his cousin. However,
Mr. Muncey “put it together” when he learned that the [Petitioner’s] cousin
bought a .38 Special, which Mr. Muncey understood to be the same gun the
[Petitioner] sold him. Additionally, the [Petitioner] admitted that he
“pushed him over” and “said a statement like, [‘]you don’t know what it
feels like to feel a man’s, like his bones crush underneath your fists[.’]”
Mr. Muncey admitted that he was currently serving time for felon in
possession of a handgun. Mr. Muncey stated that he knew the
consequences of his having a gun, but he explained that he got the gun to
protect himself from the [Petitioner]. Mr. Muncey also admitted that he did
not contact law enforcement even though he thought the [Petitioner] was
setting him up for the murder. Mr. Muncey explained he was afraid the
[Petitioner] would learn he had contacted law enforcement and would
retaliate against Mr. Muncey’s family. Mr. Muncey also admitted that he
spoke to law enforcement after he was arrested in an attempt to receive
leniency.
On cross-examination, Mr. Muncey stated that he was arrested after
police executed a search warrant at his apartment and discovered “a couple
of guns.” Mr. Muncey also admitted that he did not talk to law
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enforcement until after the search warrant was served. Mr. Muncey
eventually pled guilty to the firearms charge, and his testimony for this case
was “[taken] under consideration” during the plea. Mr. Muncey admitted
that he would like to have his sentence reduced as a result of his testimony
in this case. Additionally, Mr. Muncey stated that he had been addicted to
methamphetamine for “a very long time” and that he made his own
methamphetamine. However, Mr. Muncey said he had never met the
victim and that he was not aware that the victim’s autopsy revealed that he
had methamphetamine in his system.
Thompson, 2016 WL 7010921, at *3-5 (“Defendant” altered to “Petitioner” throughout;
all other alterations in original).
State Investigator Jason Rowland took a statement from Buford Tucker, who had
passed away prior to the Petitioner’s trial. Mr. Tucker relayed the following:
Sometime in November Destry Cobb sold me a .38 Special with a [two]-
inch barrel. It was a Charter Arms. I gave him $130.00 for it and I sold it
to Wendell Smartt. [Mr. Cobb] came back about a week or so later and
wanted to get it back. He wanted to burn it or melt it down. He said it was
involved in something bad. I told him Wendell had it in Beersheba and not
to worry about it.
Thompson, 2016 WL 7010921, at *2. Investigator Rowland then met Wendell Smartt
and obtained the .38 Special Charter Arms revolver.
The day after the victim’s body was discovered, the victim’s sister spoke with the
Petitioner by phone. The conversation was recorded. During the conversation, the
Petitioner indicated that the victim had sustained injuries to the back of his head, and he
knew that the police had taped off the location where the victim’s body was found.
However, at the time of the interview, law enforcement had not released information
about the manner of the victim’s death, where his wounds were located, or what type of
wounds they were. Moreover, Chief Investigator Marc Martin of the Warren County
Sheriff's Department “explained that you could not see the tape from the road, so in order
to know that information, the [Petitioner] would have ‘had to [drive] nearly a half mile
through this nursery field to see that [the police] had the crime scene taped off.’”
Thompson, 2016 WL 7010921, at *5 (“Defendant” altered to “Petitioner”; all other
alterations in original). Investigator Martin acknowledged that in the phone call with the
victim’s sister, the Petitioner also repeated the rumor that the victim had been shot in the
head.
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On February 1, 2012, David George, Mr. Muncey’s stepfather, received a call
informing him that police were at Mr. Muncey’s apartment. When Mr. George arrived at
apartment, he encountered the Petitioner and the Petitioner’s girlfriend, and Mr. George
was surprised to see the Petitioner there. After Mr. George told the Petitioner that Mr.
Muncey had been arrested on a gun charge, the Petitioner, in Mr. George’s opinion,
appeared concerned and “wanted to know what kind of gun it was[.]” Thompson, 2016
WL 7010921, at *5. Mr. George testified that over the following week while he was
packing Mr. Muncey’s belongings, the Petitioner came to Mr. Muncey’s apartment
“[f]ive or six times,” continuously asking about the nature of the charges against Mr.
Muncey. Id.
Debbie George, Mr. Muncey’s mother, testified that on the night Mr. Muncey was
arrested, the Petitioner and his girlfriend came to Mrs. George’s house for the Petitioner
to “pay [his] respects” and also to give Ms. George the “phone chip” out of Mr.
Muncey’s phone. Thompson, 2016 WL 7010921, at *5. When Ms. George asked if there
was anything on the SD card, the Petitioner responded that “the card had contained some
photos but that he had erased everything that was on there.” Id. According to Ms.
George, the Petitioner also asked about a pistol.
Captain James Ramsey recalled that he retrieved a phone SD card from Ms.
George but that he was unable to retrieve any information from the SD card.
Furthermore, Captain Ramsey testified that he accompanied officers to the Petitioner’s
mother apartment to inform her that the victim’s body had been found. The next day,
Captain Ramsey returned to the apartment to interview the Petitioner’s mother.
According to Captain Ramsey, the Petitioner came into the apartment “very irate,”
“start[ed] screaming,” and asked why the police were interrogating his mother.
Thompson, 2016 WL 7010921, at *5. The Petitioner also tried to view the notes that
Captain Ramsey was taking during the interview.
Investigator Martin testified that during the course of the investigation, wherever
Investigator Martin went, the Petitioner “would be lurking in the shadows” “trying to
figure out what was going on, who [they] were talking to, and what [they] were finding
out.” Thompson, 2016 WL 7010921, at *6. Once, Investigator Martin approached the
Petitioner and “talked to him for just a second[.]” Id. According to Investigator Martin,
the Petitioner appeared nervous and “was just shaking all over” during this encounter. In
addition, the Petitioner also had Investigator Martin’s cell phone number and called him
numerous times during the investigation. Some of those calls were recorded and played
for the jury.
Investigator Steven Carpenter of the Warren County Sheriff’s Department went to
the apartment complex where the Petitioner lived to “pick up” the Petitioner’s sister.
Thompson, 2016 WL 7010921, at *7. Upon arrival, someone at the apartment complex
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told them that “a guy took off running.” Id. Investigator Carpenter and two other
officers walked in the direction where the man had pointed, and they saw the Petitioner
standing in a breezeway. When the Petitioner saw the officers, he took “took off
running” again, and the officers gave chase, eventually locating the Petitioner “ducked
down in the weeds and bushes.” Id. Investigator Carpenter asked the Petitioner why he
ran, and the Petitioner responded, “[Y]’all are here to get me.” Id.
Investigator Martin recalled that federal agents “raid[ed]” Mr. Muncey’s
apartment on February 1, 2012. Thompson, 2016 WL 7010921, at *6. Investigator
Martin saw the Petitioner park his car in the parking lot across from Mr. Muncey’s
apartment and watch the officers conduct the raid. Investigator Martin noted that after
Mr. Muncey was arrested, “it was like [the Petitioner] disappeared,” and the Petitioner
even changed his phone number. Id. (“Defendant” altered to “Petitioner”).
Investigator Martin also confirmed that the victim’s autopsy revealed that he had
methamphetamine in his system. Investigator Martin indicated that both Mr. Cobb and
Mr. Muncey were “in the meth business” and that he “looked into” Mr. Cobb and Mr.
Muncey in connection with the victim’s murder. Thompson, 2016 WL 7010921, at *6.
Investigator Martin stated that he believed the victim was killed at the scene after being
taken there in the Petitioner’s car.
Several months after the victim’s death, a sledge hammer, which tested positive
for blood, had been found in the woods near Mr. Muncey’s apartment. The hammer “was
consistent with the type of object that would have inflicted the victim’s injuries.”
Thompson, 2016 WL 7010921, at *8. The name “Nina” was scratched into the head of
the hammer, and the Petitioner’s girlfriend’s name was Nina Parker. However, the
hammer had been exposed to the elements “for some period of time.” Id. at *7. Tests
failed to indicate the presence of human DNA, so no DNA profile was obtained.
Investigator Rowland intercepted mail sent between the Petitioner and Ms. Parker
while the Petitioner was in jail. In one letter, the Petitioner wrote to Ms. Parker:
Do you remember me sayin[g] something about what might be in the
short weeds over by[] you know where? See if you can get that one guy
that is like lighting [sic] in the woods [to] go over there [and] look around.
Get rid of it, only cause it[’]s got [your] name on it. It just needs [to] be
found. If they would have found it then we would’ve already known. He
tossed it by the trailer that was once used [for] an office. J-Pa’s pond/lake
would be a good place [for] it.
Thompson, 2016 WL 7010921, at *8.
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Investigator Rowland also listened to recorded phone calls the Petitioner placed
from the jail to Ms. Parker.
In one phone call, the [Petitioner] asked Ms. Parker if she remembered
“what [he] told [her] at, remember in the weeds?” He also told her to tell
her “daddy [to] go look” and to look “thoroughly.” He also noted that the
object was “just right up there out of the way[.]” In another call, the
[Petitioner] told Ms. Parker to “call [her] daddy . . . about what [he] was
[sic] telling [her] yesterday[.]” He also instructed her to “tell him to put a
sticker on the window saying it’s out of gas or something.” He also
instructed Ms. Parker to call her father immediately after she hung up with
the [Petitioner] to “get him on it.” In another call, the [Petitioner]
instructed Ms. Parker to call her father and say she had something to tell
him. He also told Ms. Parker, “Your name’s on it. Your name’s all over
that toilet paper.” He then said, “Hell, I just want a mother----r to g--damn
find that roll of toilet paper, by God, just like you’re fixing to find that roll
of toilet paper, you know?” Ms. Parker responded, “Supposedly they’ve
already got it,” to which the [Petitioner] responded, “Oh, s---.”
Thompson, 2016 WL 7010921, at *7 (“Defendant” altered to “Petitioner” throughout; all
other alterations in original). Investigator Rowland opined that the Petitioner was not
actually talking about a roll of toilet paper in the last conversation.
Investigator Rowland confirmed that he followed up on leads involving Mr. Cobb
during the course of the investigation. However, he never interviewed Mr. Muncey.
Based on his investigation, Investigator Rowland, like Investigator Martin, believed that
the victim was killed at the scene where he was found. Investigator Rowland
acknowledged that he did not know to whom the Petitioner was referring when the
Petitioner said in the letter, “He tossed it by the trailer.” Thompson, 2016 WL 7010921,
at *7.
On March 23, 2017, the Petitioner filed a pro se petition seeking post-conviction
relief, which was later amended following the appointment of counsel. In the amended
petition, the Petitioner alleged, among other things,1 that he received ineffective
assistance in the following ways: (1) trial counsel “failed to spend adequate time with
[the] Petitioner prior to trial in preparation for this case”; (2) trial counsel “failed to
interview or subpoena witnesses in support of [the] Petitioner’s defense”; (3) trial counsel
“failed to request investigative services and improperly advised [the] Petitioner about the
availability of such services”; (4) trial counsel “failed to object to hearsay evidence
1
Although the Petitioner raised other grounds for relief in his petition, we will focus only on those issues
that are the subject of this appeal.
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provided by Scott Munc[e]y respecting an unknown and unidentified ‘girl’ that pointed
prejudicial evidence toward [the] Petitioner without [the] Petitioner’s ability to cross-
examine or confront this witness”; and (5) trial counsel “failed to object or otherwise
challenge evidence presented at trial that was prejudicial to the Petitioner[,]” specifically,
“the failure to object to any and all evidence that was referenced by Scott Munc[e]y in
relation to ‘the girl,’ i.e. the coveralls with blood.” The post-conviction court held an
evidentiary hearing on April 25, 2018.
At the post-conviction hearing, trial counsel testified that he had been practicing
law since 1970 and that during that time, he had tried forty to fifty homicide cases. He
was appointed to the Petitioner’s case after the Public Defender’s Office had to withdraw
due to a conflict. A motion for discovery had already been filed in the Petitioner’s case,
and the Public Defender’s Office gave trial counsel two boxes of discovery materials,
which included a list of approximately 115 potential State witnesses, a “lot of discs,” and
approximately 200 pages of documents. Trial counsel indicated that the Petitioner’s prior
attorney “was very cooperative” and that they were able to discuss “theories of the case,
the way to approach the case, that kind of thing.” Trial counsel indicated that he had
approximately seven months to prepare for the Petitioner’s trial.
According to trial counsel, he reviewed the State’s witness list with the Petitioner,
and the Petitioner requested that trial counsel speak with specific individuals—“the main
one” being Nina Parker, the Petitioner’s girlfriend. According to trial counsel, the
Petitioner’s previous attorney, who “had done all kinds of work,” had prepared “a list of
every potential witness” and “had talked to some of” the witnesses as well. Trial counsel
testified that he interviewed “several” of the witnesses from the State’s list, including Ms.
Parker and the Petitioner’s mother. Trial counsel confirmed that he did not talk to all of
the witnesses on the State’s list. He averred, however, that he did read all of the
witnesses’ statements and that he spoke with the witnesses that “were critical to the
defense,” which he determined from reviewing the “investigative facts” and during his
discussions with the Petitioner. Trial counsel explained that “[ninety] percent” of the
potential testimony from the State’s witnesses was either cumulative, irrelevant, or
immaterial. For example, trial counsel stated that the witnesses from the fire department,
the Tennessee Wildlife Resources Agency, and the Tennessee Bureau of Investigation
(“the TBI”) were involved in the discovery of the victim’s body.
Trial counsel relayed that the defense theory was “that this was a meth-induced
killing and that the likely suspects were Destry Cobb and Scott Muncey” and that the trial
strategy was to attack the credibility of these two individuals. Trial counsel explained
that the victim’s toxicology report showed he had methamphetamine in his system, that
both Mr. Cobb and Mr. Muncey were “notorious meth users,” and that
“there was no evidence at the time that [the Petitioner] was under the influence of meth.”
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Trial counsel thought it “was inconceivable . . . that this homicide took place out there
where the body was found” and that the hammer “was then transported back” to the
residence of Mr. Muncey and Mr. Cobb “and left there.” Rather, trial counsel opined that
it “was a reasonable theory” “the killing took place at the residence of” these two men
and that there was insufficient evidence the Petitioner was at the residence at that time.
Trial counsel acknowledged that it was difficult to identify any witnesses to establish the
Petitioner’s whereabouts because the precise date of the victim’s death was
undeterminable. Ultimately, trial counsel did not present any witnesses in the Petitioner’s
defense.
Trial counsel acquiesced that he did not file any pretrial motions in this case.
Specifically, trial counsel was asked if he could have “sought more information” about
the victim’s time of death “by filing a motion for a bill of particulars.” Trial counsel said
that while he “could have filed additional motions” seeking that information, he had
received the autopsy report and “it would have been extremely difficult, if not
impossible, to have pinpointed the whereabouts of [the Petitioner] at all possible times
when the [victim] was killed.” Trial counsel averred that he tried to establish an alibi
defense instead through speaking with the Petitioner, Ms. Parker, and “others as to where
[the Petitioner] was and his connection with the [victim].” Trial counsel was unable to
establish the Petitioner’s whereabouts during the suspected time period of the victim’s
death, between November 17 and November 20 of 2011, after talking with these
individuals. Although Ms. Parker was not called to testify at trial, trial counsel
maintained that he had “numerous discussions” with the Petitioner about Ms. Parker.
Trial counsel recalled that Steve Gauger was the Petitioner’s boss and agreed, that
as such, Mr. Gauger “could have been a source of providing” information regarding the
Petitioner’s whereabouts. Although trial counsel remembered talking with the Petitioner
about his employment, trial counsel did not speak with Mr. Gauger.
In addition, trial counsel confirmed that he did file a motion requesting an
investigator to assist in the Petitioner’s defense. Trial counsel took on the duty of
working on the case by himself. At the time of the Petitioner’s trial, trial counsel did not
believe that he could have obtained funding for an investigator for a non-capital murder
case. Trial counsel advised the Petitioner accordingly. However, trial counsel was aware
of “some recent cases” that allowed funding for an investigator in non-capital cases based
on principles of equal protection and due process. Trial counsel claimed that he had
“researched that issue” and still did not believe that a motion for funds to obtain an
investigator would have been granted in the Petitioner’s case.
When asked what generally prompted him to seek investigative funding in a
capital case, trial counsel responded, “Because there are certain developments that are
mysterious to me, that are questionable, and I want to find out if those facts can be
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verified.” Trial counsel opined that an investigator would “definitely” have been
beneficial in the Petitioner’s case. Trial counsel stated that he felt that “one matter” was
particularly “questionable,” noting that it would have been helpful to have investigated
“more thoroughly” the “background and behavior and the activities” of Mr. Cobb and
Mr. Muncey. Trial counsel indicated that he talked with the Petitioner about these two
witnesses “numerous times,” but trial counsel was unable to speak with either Mr.
Muncey or Mr. Cobb before trial or obtain any pertinent information from their
associates.
Trial counsel testified that he did not find the proof about the Petitioner’s buying
things at Perry’s Country Market with a $100 bill to be relevant. According to trial
counsel, he and the Petitioner talked about the Petitioner’s being seen with a $100 bill at
the store. Trial counsel opined, “I suspect that we could have gotten collateral proof as to
where he had gotten that $100 but that wasn’t done.” Trial counsel agreed that the State
“made a big deal” about the $100 because “they had nothing else.’’ In addition, trial
counsel acknowledged that this court in its direct appeal opinion did find the event
important. Trial counsel confirmed that despite knowing about this incident pretrial, he
did not file a motion to suppress this evidence. Trial counsel also did not object to the
evidence at trial or cross-examine the store clerk about the incident.
Trial counsel acknowledged that the State “tried to prove” at trial that the victim
“was coming into a large sum of money and that the motivation was for [the Petitioner] to
kill him to get the money.” When asked what “steps or efforts did [he] make to track
down where [the victim’s] money was going,” trial counsel said, “I didn’t do it because
there was no evidence [the Petitioner] ever got any of that money.” Trial counsel
indicated that he knew the Petitioner’s financial situation “pretty well.” However, trial
counsel once again admitted that it was “something that was made a big deal [of] in the
case.”
Trial counsel testified that he did not find Ms. Craven’s trial testimony that she
purchased a gun for the victim to be relevant to the victim’s murder or the identity of the
murderer. According to trial counsel, he talked to the Petitioner about the gun, and they
both agreed that it “had nothing to do with this case.” Trial counsel classified evidence
of the victim’s gun as “a phony issue,” despite trial counsel’s acknowledgement that the
State’s theory was that the Petitioner got the gun from the victim after the victim was
killed and that the Petitioner was also charged with aggravated robbery. Trial counsel
confirmed that he did not make any motion in limine to keep the gun from being
admitted. Trial counsel explained that the Petitioner and the victim were known to
associate and that he focused instead on a defense that he considered “might appeal to a
jury.”
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When asked about the blank SD card Debbie George gave to the police, trial
counsel replied that he did not remember this piece of evidence, likely because it was not
relevant to the case. Trial counsel did not object to admission of the blank SD card at
trial, and furthermore, he did not “believe that there was any negative implication” to the
Petitioner from its admission. Trial counsel affirmed that it may have been the State’s
“intention” to show that the Petitioner “was hiding or covering up things” through
admission of the card.
Trial counsel was presented with Mr. Muncey’s testimony at trial that Mr. Muncey
had found “a pair of coveralls” in his apartment, which “the girl” said she had seen the
Petitioner wearing, thus, supporting Mr. Muncey’s belief that the Petitioner was setting
him up for the crime. Trial counsel did not remember the identity of “the girl.” In
addition, trial counsel acknowledged that he did not make a hearsay objection to Mr.
Muncey’s mention of the girl’s alleged statement about the coveralls and that he did not
ask Mr. Muncey any questions about these coveralls on cross-examination. Trial counsel
affirmed that he had read Mr. Muncey’s written statement before trial.
Trial counsel confirmed that the TBI report indicated that no blood was found on
the coveralls. Trial counsel opined that he likely did not think the issue was “extremely
material,” noting that the State conceded that “there was no forensic or physical evidence
that connected the [Petitioner] to this crime,” and that he probably hoped the jury would
simply ignore the statement about the coveralls.
Trial counsel asked Destry Cobb on cross-examination at trial about what Mr.
Cobb had allegedly said to Nichole Powell—that she needed “to keep quiet or she
[would] end up in the river like” the victim. Trial counsel noted that Mr. Cobb denied
making that statement. Although trial counsel did not believe Mr. Cobb was telling the
truth, he did not call Ms. Powell to the stand to impeach Mr. Cobb.
Discovery materials, which were provided to trial counsel, included a police report
concerning a domestic violence incident involving Travis Jernigan. In the report, it was
relayed by Ricky Craven that Mr. Jernigan had beaten his wife Mary Jernigan allegedly
because she was involved with a man named “Martin” who had been murdered.
According to the report, Ricky Craven, Ms. Jernigan’s father, told the officer that a man
named “Johnson” from Grundy County was also involved and that he “put [a] baseball
bat up Martin[’]s a-- before he killed him with [the] bat.” The officer wrote that he did
not know whether Mr. Craven was being truthful or lying but reported the statement
anyway. Trial counsel said that he placed no credence on the report and did not
investigate the matter. Trial counsel added that it was not uncommon to “hear all kinds
of rumors” in a “case like this.”
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Trial counsel also remembered reading a statement by Ms. Jernigan wherein she
relayed that Dusty Cope reportedly said that “somebody should knock [the victim] in the
head and take his money.” Trial counsel confirmed that he did not follow-up with Ms.
Jernigan’s statement either and noted that it contained “double and triple hearsay
statements.” In addition, trial counsel noted that Mr. Cope likely would have denied
making this statement to Ms. Jernigan if he had been called to testify. Furthermore, trial
counsel explained that there was no credible evidence Mr. Cope had used a baseball bat
to kill the victim and that no such evidence had surfaced since the Petitioner’s trial. Trial
counsel admitted that the Petitioner maintained his innocence, denying that he killed the
victim.
Trial counsel confirmed that Troy Martin was interviewed on December 27, 2011.
Mr. Martin claimed that he had spoken to Marlin Pinkard while the two men were
incarcerated. Mr. Martin, during his police interview, relayed the following details of
that conversation: Mr. Pinkard asserted that he arrived at “Annette’s” apartment and that
the victim, Dusty Cope, Jeff Johnson, Annette, Robin Holt, and Alli and Joe Piazza were
present; Mr. Pinkard stated that “they had beat [the victim] with a gun for his money”;
Mr. Pinkard indicated that “he had shot the victim to make sure” he was dead before
throwing the victim’s body, which was wrapped in plastic, off of a bridge into the river;
Mr. Pinkard averred that Mr. Johnson accompanied him to the river; and Mr. Pinkard
maintained that “the gun that was used” belonged to Dusty Cope. Despite Mr. Pinkard’s
confession, trial counsel did not feel “it was worth the effort or the time” to speak with
these people because he believed that they “had absolutely nothing to do with what
happened.” Trial counsel opined that “nothing in [Mr. Martin’s] statement matche[d]
anything remotely that had to do with the actual facts of this case” and described that
statement as “ridiculous.”
Likewise, trial counsel “discounted” Frederick Joseph Piazza’s statement about
Mr. Cope, Mr. Pinkard, and Mr. Johnson because he did not find the statement to be
credible. Trial counsel opined that “it would have been a waste of [his] time or anybody
else’s time to investigate that” because the statement did not “meet the facts of the case.”
On cross-examination, trial counsel noted that despite the lack of DNA evidence,
the blow to the victim’s head matched the hammer found in the field behind Mr.
Muncey’s and Mr. Cobb’s residence. Trial counsel further noted that Ms. Parker’s name
was engraved on the hammer. The hammer was therefore “very critical” to the case, in
trial counsel’s opinion. Moreover, according to trial counsel, the jailhouse conversations
between the Petitioner and Ms. Parker, which were transcribed, were also harmful to the
Petitioner’s case. The Petitioner was heard instructing Ms. Parker to locate the hammer
and dispose of it.
-15-
Steve Gauger testified that the Petitioner did construction work for him for several
years, including “[o]ff and on” during the year of 2011. Mr. Gauger indicated that
employment was not always “steady” and that they “were in between jobs when all of
this was going on.” Mr. Gauger said that when they were working on a job, he paid the
Petitioner approximately $500 a week. When they were between jobs, Mr. Gauger would
advance the Petitioner money “[a]t any time.” Mr. Gauger explained that he usually gave
the Petitioner money in $100 bills. According to Mr. Gauger, the Petitioner came to his
house “[j]ust before Thanksgiving” 2011 and asked for an advance. Mr. Gauger
estimated that Perry’s Country Market, where the Petitioner was seen with the $100 bill,
was only about two miles from Mr. Gauger’s house.
Mr. Gauger claimed that he tried to contact trial counsel so he could testify on the
Petitioner’s behalf at trial. However, trial counsel was unavailable, and no one from trial
counsel’s office ever got back in touch with Mr. Gauger. Mr. Gauger admitted that he
did not know the victim or of the circumstances surrounding the victim’s death.
Mr. Gauger maintained that based upon his experience and interactions with the
Petitioner, “the alleged conduct” was inconsistent with the Petitioner’s behavior. Mr.
Gauger described the Petitioner as “very family oriented” and asserted that the Petitioner
would never “lay a hand on them.” Mr. Gauger continued, “As far as personally, I would
leave my daughter with him, and she’s three years old. I mean, I’ve got a lot of trust for
this guy and everybody else that works for me.”
Frederick Joseph Piazza testified that he was familiar with the Petitioner and that
the victim, whom Mr. Piazza knew, came over to his house frequently. Mr. Piazza
asserted that on the day of the victim’s murder, the victim, along with Mr. Cope, Mr.
Johnson, and Mr. Pinkard,2 were at his house. According to Mr. Piazza, the five of them
were engaged in “illegal activities” that involved methamphetamine. Mr. Piazza did not
recall seeing the victim with a gun that day, but Mr. Piazza “had heard” that the victim
had one. In addition, Mr. Piazza said that he was aware that the victim had some cash on
him because the victim had shown it to everyone.
Mr. Piazza testified that later that day, he drove Mr. Cope, Mr. Johnson, and Mr.
Pinkard to the dam in McMinnville so that they could engage in “illegal activity.”
According to Mr. Piazza, they met the victim there, who had already arrived separately.
Mr. Piazza did not see the victim carrying a gun or in possession of cash at that time. Mr.
Piazza claimed that everyone, but him, walked down to the area underneath the bridge.
Mr. Piazza said that he was in the process of leaving the area when he heard an argument
2
Mr. Piazza calls this individual by the name of Marlin Pinkerton, but this appears to be the same
individual referred to above as Marlin Pinkard. For the sake of consistency, we will continue to call this
person Mr. Pinkard.
-16-
followed by a gunshot. Because Mr. Piazza was scared, he left. Mr. Piazza
acknowledged that he did not see what happened underneath the bridge; however, that
was the last time Mr. Piazza saw the victim alive.
Mr. Piazza testified that once he arrived back at his house, Mr. Cope came to his
house in “soaking wet” clothes and asked to borrow a change of clothing, which Mr.
Piazza provided. Mr. Piazza indicated that he ultimately burned Mr. Cope’s clothes
because they had been at his “house for a week and [he] didn’t want to wash them.”
According to Mr. Piazza, Mr. Cope and Mr. Pinkard came to Mr. Piazza’s house
several weeks later and threatened to kill him because he allegedly knew “too much”
about what happened to the victim. Mr. Piazza said that a man named Lee Judkins
intervened and stopped them from killing him.
Mr. Piazza was aware that the victim owed money to Mr. Cope, Mr. Johnson, and
Mr. Pinkard. According to Mr. Piazza, the three men “were pretty upset about it” and
discussed taking the money owed them from the victim.
Mr. Piazza relayed that while he had seen the Petitioner earlier on the day of the
victim’s murder, the Petitioner was not present at the river and that he did not see the
Petitioner at any time later that day. Mr. Piazza indicated that he learned about the
victim’s death from reading “the papers.” Mr. Piazza did not attend the Petitioner’s trial.
On cross-examination, Mr. Piazza testified that he had been in trouble for
assaulting someone and “driving charges.” He admitted that around the time of the
victim’s death, he was using methamphetamine. However, Mr. Piazza claimed that he
specifically remembered when the victim died because, although he was associating with
methamphetamine dealers, addicts, and makers, he “was clean all of November of 2011.”
The post-conviction court thereafter denied the Petitioner relief by written order
filed on May 15, 2018, concluding therein that the Petitioner had failed to establish his
claims of ineffective assistance of counsel. This timely appeal followed.
ANALYSIS
On appeal, the Petitioner addresses the same issues that he raised in his amended
petition and submits that the post-conviction court erred when it denied him relief. The
State responds that the post-conviction court correctly concluded that the Petitioner failed
to carry his burden of proving that trial counsel was ineffective.
Post-conviction relief is available when a “conviction or sentence is void or
voidable because of the abridgment of any right guaranteed by the Constitution of
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Tennessee or the Constitution of the United States.” Tenn. Code Ann. § 40-30-103.
Criminal defendants are constitutionally guaranteed the right to effective assistance of
counsel. Dellinger v. State, 279 S.W.3d 282, 293 (Tenn. 2009) (citing U.S. Const.
amend. VI; Cuyler v. Sullivan, 446 U.S. 335, 344 (1980)). When a claim of ineffective
assistance of counsel is made under the Sixth Amendment to the United States
Constitution, the burden is on the petitioner to show (1) that counsel’s performance was
deficient and (2) that the deficiency was prejudicial. Strickland v. Washington, 466 U.S.
668, 687 (1984); see Lockhart v. Fretwell, 506 U.S. 364, 368-72 (1993). “Because a
petitioner must establish both prongs of the test, a failure to prove either deficiency or
prejudice provides a sufficient basis to deny relief on the ineffective assistance claim.”
Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996). The Strickland standard has been
applied to the right to counsel under article I, section 9 of the Tennessee Constitution.
State v. Melson, 772 S.W.2d 417, 419 n.2 (Tenn. 1989).
Deficient performance requires a showing that “counsel’s representation fell
below an objective standard of reasonableness,” despite the fact that reviewing courts
“must indulge a strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance.” Strickland, 466 U.S. at 688-89. When a court
reviews a lawyer’s performance, it “must make every effort to eliminate the distorting
effects of hindsight, to reconstruct the circumstances of counsel’s conduct, and to
evaluate the conduct from the perspective of counsel at that time.” Howell v. State, 185
S.W.3d 319, 326 (Tenn. 2006) (citing Strickland, 466 U.S. at 689). We will not deem
counsel to have been ineffective merely because a different strategy or procedure might
have produced a more favorable result. Rhoden v. State, 816 S.W.2d 56, 60 (Tenn. Crim.
App. 1991). We recognize, however, that “deference to tactical choices only applies if
the choices are informed ones based upon adequate preparation.” Cooper v. State, 847
S.W.2d 521, 528 (Tenn. Crim. App. 1992) (citing Hellard v. State, 629 S.W.2d 4, 9
(Tenn. 1982)).
As to the prejudice prong, the petitioner must establish “a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would have been
different.” Vaughn v. State, 202 S.W.3d 106, 116 (Tenn. 2006) (citing Strickland, 466
U.S. at 694). “A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Strickland, 466 U.S. at 694. “That is, the petitioner must
establish that his counsel’s deficient performance was of such a degree that it deprived
him of a fair trial and called into question the reliability of the outcome.” Pylant v. State,
263 S.W.3d 854, 869 (Tenn. 2008) (citing State v. Burns, 6 S.W.3d 453, 463 (Tenn.
1999)). “A reasonable probability of being found guilty of a lesser charge . . . satisfies
the second prong of Strickland.” Id.
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The burden in a post-conviction proceeding is on the petitioner to prove his
allegations of fact supporting his grounds for relief by clear and convincing evidence.
Tenn. Code Ann. § 40-30-110(f); see Dellinger, 279 S.W.3d at 293-94. On appeal, we
are bound by the post-conviction court’s findings of fact unless we conclude that the
evidence in the record preponderates against those findings. Fields v. State, 40 S.W.3d
450, 456 (Tenn. 2001). Additionally, “questions concerning the credibility of witnesses,
the weight and value to be given their testimony, and the factual issues raised by the
evidence are to be resolved” by the post-conviction court. Id. Because they relate to
mixed questions of law and fact, we review the post-conviction court’s conclusions as to
whether counsel’s performance was deficient and whether that deficiency was prejudicial
under a de novo standard with no presumption of correctness. Id. at 457.
I. Failure to Investigate
First, the Petitioner contends that “trial counsel failed to properly investigate this
matter.” According to the Petitioner, trial counsel was ineffective by failing to
“adequately investigate and prepare” for the Petitioner’s trial on his own and by failing to
request funding for an investigator.
A. Funding for Investigative Services. Regarding the services of an investigator,
the Petitioner notes that trial counsel testified “that there were several issues in [the
Petitioner’s] case that were mysterious and questionable to him” and that this was
generally the standard trial counsel used to seek investigative funding in a capital case.
The Petitioner also observes that trial counsel stated “that investigation into these things
would have been helpful.” (Emphasis removed). The Petitioner then disagrees with trial
counsel’s understanding of the law and trial counsel’s assertion that a motion for
investigative funds would not have been successful. The Petitioner contends that a
“reasonable attorney” would have requested funding for an investigator because
discovery “was quite extensive” and the potential witness list was long. According to the
Petitioner, trial counsel, alone, “did not have the time or the resources” to thoroughly
investigate the first degree murder case.
At the evidentiary hearing, trial counsel testified that at the time of the Petitioner’s
trial, he did not believe that he could have obtained funding for an investigator for a non-
capital murder case. Trial counsel advised the Petitioner of this belief. Trial counsel also
stated that he had reviewed “some recent cases” that allowed funding for an investigator
in non-capital cases based on principles of equal protection and due process. Moreover,
trial counsel claimed that he had “researched that issue” and still did not believe that a
motion for funds to obtain an investigator would have been granted in the Petitioner’s
case.
-19-
Regarding the appointment of investigative or expert services for an indigent
defendant, Tennessee Supreme Court Rule 13 section 5(a)(1) currently provides the
following:
In the trial and direct appeal of all criminal cases in which the defendant is
entitled to appointed counsel and in the trial and appeals of post-conviction
proceedings in capital cases involving indigent petitioners, the court, in an
ex parte hearing, may in its discretion determine that investigative or expert
services or other similar services are necessary to ensure that the
constitutional rights of the defendant are properly protected.
Contrary to trial counsel’s understanding, this was also the law in effect at the time of the
Petitioner’s trial in January of 2013. We note that Rule 13 does not allow funding for
investigative services in non-capital post-conviction proceedings, but that provision is not
applicable to the issue presented here. See Tenn. Sup. Ct. R. 13, § 5(a)(2). The issue is,
in fact, whether trial counsel was ineffective for failing to seek funding for an
investigator during the trial process; funding that is provided for by the rule regardless of
the capital nature of the case. Because trial counsel’s failure to seek funding was based
upon his misunderstanding of the law, we conclude that trial counsel was deficient in this
regard.
The Petitioner must also establish resulting prejudice from trial counsel’s failure to
request funds for and retain a fact investigator. We note that had funding been
requested, the Petitioner would still have been required to demonstrate a “particularized
need for the requested services.” Tenn. Sup. Ct. R. 13, § 5(c)(1). Furthermore, there is
no rule requiring defense counsel to retain an investigator in every case, even in capital
cases. See, e.g., Tyrone Chalmers v. State, No. W2006-00424-CCA-R3-PD, 2008 WL
2521224, at *28 (Tenn. Crim. App. June 25, 2008) (holding that defense counsel was not
ineffective in failing to retain an investigator in the petitioner’s capital case).
Here, trial counsel testified that an investigator would “definitely” have been
beneficial in the Petitioner’s case, specifically opining that it would have been helpful to
have investigated “more thoroughly” the “background and behavior and the activities” of
Mr. Cobb and Mr. Muncey. Trial counsel indicated that he talked with the Petitioner
about these two witnesses “numerous times,” but trial counsel was unable to speak with
either Mr. Muncey or Mr. Cobb before trial or obtain any pertinent information from their
associates.
At trial, Mr. Cobb relayed that he had a prior conviction for “manufacture,
delivery, or sale of methamphetamine” and that he was still using methamphetamine at
the time of trial. Thompson, 2016 WL 7010921, at *3. He also testified that he had a
prior charge for assault. In addition, Mr. Cobb testified “that he was afraid that Mr.
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Muncey would be charged in connection with the victim’s death,” and Mr. Cobb
confirmed “that he had used methamphetamine the day before the [Petitioner] asked for
assistance in the robbery.” Id.
Mr. Muncey testified at trial that he was using methamphetamine in November
2011. He also stated that “he had been addicted to methamphetamine for ‘a very long
time’ and that he made his own methamphetamine.” Thompson, 2016 WL 7010921, at
*5. Moreover, Mr. Muncey admitted that he was incarcerated at the time of the
Petitioner’s trial for being a felon in possession of a handgun.
Investigator Martin testified that both Mr. Cobb and Mr. Muncey were “in the
meth business.” Thompson, 2016 WL 7010921, at *6. In addition, Investigator Martin
confirmed that he “looked into” Mr. Cobb and Mr. Muncey in connection with the
victim’s murder. Id. Investigator Rowland likewise testified at trial that “he followed up
on leads involving Mr. Cobb during the course of the investigation,” although he did not
interview Mr. Muncey. Id. at *7.
Accordingly, the jury was presented with testimony about the background and
behaviors of Mr. Muncey and Mr. Cobb, including that Mr. Muncey and Mr. Cobb were
also investigated in connection with the victim’s murder, that they were both involved in
the methamphetamine business, and that the victim had methamphetamine in his system
at the time of his death. In addition to the testimony of trial counsel cited by the
Petitioner, trial counsel also testified that he talked with the Petitioner about these two
witnesses “numerous times,” but trial counsel was unable to speak with either Mr.
Muncey or Mr. Cobb before trial or obtain any pertinent information from their
associates. Thus, it appears that trial counsel attempted to investigate this specific matter
further but was unable to obtain any additional information. Furthermore, the Petitioner
has not provided this court with any evidence of what further investigation into the
background and activities of these two witnesses would have revealed. Accordingly, the
Petitioner has failed to establish prejudice from trial counsel’s deficient performance in
this regard. See, e.g., William T. Minton v. State, No. E2015-00986-CCA-R3-PC, 2016
WL 2605782, at *6 (Tenn. Crim. App. May 4, 2016) (finding that the petitioner had
failed to show that trial counsel’s investigation caused the petitioner prejudice when trial
counsel testified that he did not hire a private investigator because he conducted his own
investigation and described the details of that investigation).
B. Trial counsel’s investigation and preparation. The Petitioner submits that trial
counsel’s solo investigation was inadequate in the following ways:
[T]rial counsel to[ok] no actions to corroborate or discredit anything stated
by [Mr.] Cobb or [Mr.] Muncey, he took no steps to establish where [the
Petitioner] could have been at the times in question, he took no steps to
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establish that [Petitioner] could have had $100.00 legally, he took no steps
to corroborate or discredit the issue regarding the gun, and he took no steps
to follow up on any of the other statements indicating persons other than
the [Petitioner] were responsible.
According to the Petitioner, “[a]ll of this could have easily been discovered prior to the
trial of this matter based upon the discovery that was provided by the State.” The
Petitioner further notes that “[t]here was no DNA or genetic evidence that directly
connected [the Petitioner] to the victim or to the purported murder weapon” and that the
State’s only option then “was to utilize circumstantial evidence respecting the gun,
money, statements from [Mr.] Cobb and [Mr.] Muncey and the [Petitioner’s] own written
and recorded statements regarding a hammer with the initials, ‘N.P.’” The Petitioner
concludes that trial counsel’s performance in this regard “was deficient so as to deprive
[him] of his Sixth Amendment right to counsel.”
Although trial counsel does not have an absolute duty to investigate particular
facts or a certain line of defense, counsel has a duty to conduct a reasonable investigation
or make a reasonable decision rendering a particular investigation unnecessary.
Strickland, 466 U.S. at 691. Counsel is not required to interview every conceivable
witness. See Hendricks v. Calderon, 70 F.3d 1032, 1040 (9th Cir. 1995). Furthermore,
no particular set of detailed rules for counsel’s conduct can satisfactorily
take account of the variety of circumstances faced by defense counsel.
Rather, courts must judge the reasonableness of counsel’s challenged
conduct on the facts of the particular case, viewed as of the time of
counsel’s conduct, and judicial scrutiny of counsel’s performance must be
highly deferential.
Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000) (internal citations and quotations
omitted). There are “countless ways to provide effective assistance in any given case.
Even the best criminal defense attorneys would not defend a particular client in the same
way.” Harrington v. Richter, 562 U.S. 86, 106 (2011) (quoting Strickland, 466 U.S. at
689). Cases rarely exist in which the “‘wide latitude counsel must have in making
tactical decisions’ will be limited to any one technique or approach.” Id. (quoting
Strickland, 466 U.S. at 689).
A reasonable investigation does not require counsel to “leave no stone unturned.”
Perry Anthony Cribbs v. State, No. W2006-01381-CCA-R3-PD, 2009 WL 1905454, at
*49 (Tenn. Crim. App. July 1, 2009). “Reasonableness should be guided by the
circumstances of the case, including information provided by the defendant,
conversations with the defendant, and consideration of readily available resources.” Id.
The United States Supreme Court has said, “[I]nquiry into counsel’s conversations with
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the defendant may be critical to a proper assessment of counsel’s investigation decisions,
just as it may be critical to a proper assessment of counsel’s other litigation decisions.”
Strickland, 466 U.S. at 691.
1. Discovery statements. Specifically, the Petitioner submits that trial counsel did
not investigate various statements provided by the State in discovery materials: (1) the
police report from the domestic violence incident concerning Travis Jernigan’s beating
his wife Mary because she was having an affair with a man named “Martin,” and the
statement contained therein from Ricky Craven, Mary’s father, that a man named
Johnson from Grundy County “put [a] baseball bat up Martin[’]s a-- before he killed him
with [the] bat”; (2) Mary Jernigan’s police statement wherein she stated that Dusty Cope
had reportedly said that “somebody should knock [the victim] in the head and take his
money”; (3) the written statement of Troy Martin relaying the details of his conversation
with Marlin Pinkard while the two men were incarcerated together, identifying Dustin
Cope, Jeffrey Johnson, Annette West, Robin Holt, and Alli and Fredrick Joseph Piazza as
being involved in the victim’s murder.
Trial counsel testified that he was appointed to the Petitioner’s case after the
Public Defender’s Office had to withdraw due to a conflict and that he prepared for the
Petitioner’s trial for approximately seven months. A motion for discovery had already
been filed prior to trial counsel’s appointment, and the Public Defender’s Office gave
trial counsel two boxes of discovery materials, which included a list of approximately
115 potential State witnesses, a “lot of discs,” and approximately 200 pages of
documents. Trial counsel testified that he had reviewed the various documents.
Trial counsel also testified that he met with the Petitioner and that they discussed
which individuals trial counsel should interview. According to trial counsel, he placed no
credence on the police report, and it was not uncommon to “hear all kinds of rumors” in a
“case like this.” Trial counsel confirmed that he did not follow-up with Ms. Jernigan’s
statement either and noted that it contained “double and triple hearsay statements.” In
addition, trial counsel maintained that Mr. Cope likely would have denied making the
statement to Ms. Jernigan if he had been called to testify. Furthermore, trial counsel
explained that there was no credible evidence that Mr. Cope had used a baseball bat to
kill the victim and that no such evidence had surfaced since the Petitioner’s trial. Despite
Mr. Pinkard’s confession to Mr. Martin, trial counsel did not feel “it was worth the effort
or the time” to speak with these people because he believed that they “had absolutely
nothing to do with what happened.” Trial counsel opined that “nothing in [Mr. Martin’s]
statement matche[d] anything remotely that had to do with the actual facts of this case”
and described that statement as “ridiculous.”
We cannot conclude that evidence of these statements alone provides a sufficient
basis to determine that trial counsel’s investigation was deficient in this regard. The
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Petitioner filed an exhibit listing the discovery materials but he did not provide the full
discovery filed. The discovery file in this case apparently included statements from
Marlin Pinkard, Dustin Cope, Jeffrey Johnson, Annette West, Robin Holt, and Fredrick
Joseph Piazza and interviews with Mary Jernigan and Troy Martin. All these individuals
were referenced in the three specific statements to which the Petitioner cites. These
additional discovery materials, which the Petitioner has not provided in the post-
conviction record, may have shed some light on trial counsel’s decision not to pursue
further investigation of the challenged witnesses and their statements. Accordingly, the
Petitioner’s piecemeal presentation of discovery materials is insufficient to assess the
reasonableness of trial counsel’s decision.
Moreover, the Petitioner did not present Mr. Cope, Mr. Craven, Ms. Jernigan, Mr.
Martin, Mr. Pinkard, or Mr. Johnson at the evidentiary hearing. No reason other than the
passage of time was offered for their absence. We will not speculate as to what those
witnesses would have said if called to testify at trial. See Black v. State, 794 S.W.2d 752,
757 (Tenn. Crim. App. 1990). Because the Petitioner did not provide the full discovery
file or present any additional witnesses other than those discussed below, he has failed to
establish ineffective assistance as to this allegation.
2. The victim’s gun and possession of the $100 bill. The Petitioner notes that due
to the lack of resources, trial counsel did not investigate “the gun issue,” “referring to the
gun that had been exchanged between” the Petitioner and Mr. Cobb and Mr. Muncey.
According to the Petitioner, the pretrial statements of Mr. Cobb and Mr. Muncey
“reveal[ed] that the two [men] were attempting to draw a connection between” the
victim’s death and the Petitioner’s possession of that gun. The Petitioner also notes that
trial counsel did not take any “steps to corroborate” the statements of Mr. Cobb and Mr.
Muncey regarding the gun or whether the Petitioner “actually had the gun at any time.”
While discussing this alleged failure by trial counsel, the Petitioner mentions that he was
charged with especially aggravated robbery in this case and that the implication at trial
was that the Petitioner was in possession of the victim’s gun after the victim’s death.
In addition, the Petitioner asserts that trial counsel “failed to confirm whether or
not [the Petitioner] was employed or otherwise had access to legal means of income.”
The Petitioner cites to trial counsel’s testimony that the issue of the $100 bill was
irrelevant and to trial counsel’s corresponding failure to “ask any questions about this
money or file any motions” regarding the issue. The Petitioner maintains that “it is
difficult to see how the jury could ‘agree with’” trial counsel that the $100 bill evidence
“didn’t have anything to do with this trial.”
At the evidentiary hearing, trial counsel asserted that he did not find Ms. Craven’s
trial testimony that she purchased a gun for the victim to be relevant to the victim’s
murder or the identity of the murderer. Trial counsel classified evidence of the victim’s
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gun as “a phony issue,” despite trial counsel’s acknowledgement that the State’s theory
was that the Petitioner got the gun from the victim after the victim was killed and that the
Petitioner was also charged with especially aggravated robbery. Furthermore, trial
counsel testified that he did not find the proof about the Petitioner’s buying things at
Perry’s Country Market with a $100 bill to be relevant. Trial counsel acknowledged that
the State “tried to prove” that the victim “was coming into a large sum of money and that
the motivation was for [the Petitioner] to kill him to get the money.” When asked what
“steps or efforts did [he] make to track down where [the victim’s] money was going,”
trial counsel said, “I didn’t do it because there was no evidence [the Petitioner] ever got
any of that money.”
First, possession of a victim’s belongings following his or her death is often
indicative of consciousness of guilt and relevant in a murder case, as it was here. Any
argument about how a defendant came into possession of those items goes to the weight
of the evidence and not its admissibility.
In addition, trial counsel’s testimony that these issues were irrelevant fails to take
into account that the Petitioner was also charged with felony murder and especially
aggravated robbery. Importantly, on direct appeal this court found the following facts
relevant to upholding the sufficiency of the convicting evidence pertaining to the
Petitioner’s conviction for felony murder and the underlying felony of robbery:
[T]he [Petitioner] asked Mr. Cobb and Mr. Muncey for assistance in his
plan to rob the victim of money the victim had received from a social
security disability payment. The [Petitioner] planned to make the
transaction look like a drug deal gone bad. Ms. Craven testified that she
gave the victim $1,300 and a handgun in the days before he disappeared,
and the victim bought ammunition for a .38 Special caliber weapon.
Additionally, when she reported him missing, Ms. Thompson said the
victim had left with money and a gun. The victim did not have any money
or the gun when his body was discovered. Within days of asking for help
robbing the victim, the [Petitioner] arranged to sell a .38 Special Charter
Arms firearm to Mr. Cobb and Mr. Muncey. When they executed this
transaction, Mr. Cobb saw the [Petitioner] with approximately $1,000 in
cash in his wallet. Mr. Cobb had never known the [Petitioner] to have that
much money. Additionally, around 5:00 p.m. on the day the murder was
alleged to have occurred, the [Petitioner] paid for a purchase with a $100
bill. Such evidence was sufficient for the jury to conclude that the
[Petitioner] intended to take property from the victim by use of violence or
fear and that the victim died in the perpetration of that robbery.
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Thompson, 2016 WL 7010921, at *10. Accordingly, we cannot agree with trial counsel
that the Petitioner’s alleged possession of the victim’s gun and his payment at Perry’s
Country Market with a $100 bill were irrelevant issues. Trial counsel’s performance was
deficient in this regard.
Nonetheless, the Petitioner has not provided this court with any evidence of what
further investigation into the gun issue would have revealed, including any evidence that
would “corroborate or discredit” the Petitioner’s possession of the victim’s gun. We will
not speculate. Also, the Petitioner did not testify at the hearing, and this issue certainly
involves substantial questions of fact as to events in which the Petitioner participated.
See Tenn. Code Ann. § 40-30-110(a). Accordingly, the Petitioner has not established his
factual allegations by clear and convincing evidence.
As the Petitioner’s investigation issue relates to his lawful possession of the $100
bill, the Petitioner did present the testimony of Mr. Gauger at the evidentiary hearing,
which we will discuss later in this opinion. Here, we note that given the overwhelming
nature of evidence indicating the Petitioner’s consciousness of guilt—the sledge
hammerer that had the Petitioner’s girlfriend’s name scratched into the head of the
hammer, the mail intercepted by Investigator Rowland, and the recorded phone called
placed by the Petitioner while incarcerated, we cannot say that the Petitioner has
established prejudice due to any deficiency in this regard.
3. Defense Theory. The Petitioner claims that trial counsel’s investigation was
ineffective in the following ways: (1) trial counsel failed to adequately investigate the
backgrounds of Mr. Cobb and Mr. Destry although the defense theory was that these
individuals were responsible for the victim’s death; and (2) trial counsel “failed to take
any steps to narrow down the timeline of events” despite the importance of pinpointing
the Petitioner’s whereabouts during the relevant time period.
Trial counsel stated that the Petitioner’s prior attorney from the Public Defender’s
Office “was very cooperative” and that they were able to discuss “theories of the case, the
way to approach the case, that kind of thing.” Trial counsel indicated that the defense
theory was “that this was a meth-induced killing and that the likely suspects were Destry
Cobb and Scott Muncey” and that trial strategy was to attack the credibility of these two
individuals. Trial counsel opined that it “was a reasonable theory” “the killing took place
at the residence of” these two men and that there was insufficient evidence the Petitioner
was at the residence at that time. Trial counsel also testified that he talked with the
Petitioner about these two witnesses “numerous times.”
As noted above, evidence of Mr. Cobb’s and Mr. Muncey’s backgrounds and
behavior was put in front of the jury. The jury was aware that law enforcement also
investigated these two individuals in relation to the victim’s murder. Again, it appears
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that trial counsel attempted to investigate this specific matter further but was unable to
obtain any additional information, and the Petitioner has not provided this court with any
evidence of what further investigation into the background and activities of these two
witnesses would have revealed.
Regarding trial counsel’s failure to present an alibi defense, the Petitioner
maintains that November 17 to 20 of 2011 “was not an extremely difficult period of time
within which to try and account for [the Petitioner’s] whereabouts.” The Petitioner then
notes the difficulty of establishing this evidence seven years after the fact and that
locating this type of information would have been “easier” for trial counsel prior to trial.
Trial counsel testified at the evidentiary hearing that it was difficult to identify any
witnesses to affirmatively establish that the Petitioner was not present at Mr. Cobb and
Mr. Muncey’s residence when the killing occurred because the precise date of the
victim’s death was undeterminable. Trial counsel opined that while he could have filed
additional motions seeking information about the victim’s time of death, he had received
the autopsy report, and “it would have been extremely difficult, if not impossible, to have
pinpointed the whereabouts of [the Petitioner] at all possible times when the [victim] was
killed.” Trial counsel maintained that he tried to establish an alibi defense instead
through speaking with the Petitioner, Ms. Parker, and “others as to where [the Petitioner]
was and his connection with the [victim].” Ultimately, trial counsel was unable to
establish the Petitioner’s precise whereabouts during the suspected time period of the
victim’s death after talking with these individuals.
The Petitioner did not present any evidence at the hearing that would dispute trial
counsel’s testimony and provide support for an alibi defense by accounting for his
whereabouts during the relevant time period. Importantly, the Petitioner would have
knowledge of his own whereabouts during the relevant time period and know of the
information in this regard that he conveyed to trial counsel. However, the Petitioner did
not testify at the post-conviction hearing or dispute trial counsel’s testimony in any way
regarding the defense theory. “[T]he Post-Conviction Procedure Act requires a petitioner
to testify at the post-conviction hearing ‘if the petition raises substantial questions of fact
as to events in which the petitioner participated.’” Timothy Evans v. State, No. E2017-
00400-CCA-R3-PC, 2018 WL 1433396, at *4 (Tenn. Crim. App. Mar. 22, 2018)
(quoting Tenn. Code Ann. § 40-30-110(a) and citing Tenn. Sup. Ct. R. 28, § 8(C)(1)(b)),
perm. app. denied (Tenn. July 19, 2018). The Petitioner’s complaint that trial counsel
failed to present an alibi witness at trial is certainly a “substantial question of fact as to
events in which [Petitioner] participated.” Christopher M. Heath v. State, No. M2016-
01906-CCA-R3-PC, 2017 WL 3382804, at *5 (Tenn. Crim. App. Aug. 7, 2017) (citation
omitted). The Petitioner has failed to establish his factual allegations with respect to this
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issue by clear and convincing evidence and provides nothing but mere speculation that he
had an alibi. The Petitioner is not entitled to relief.
II. Failure to Call Witnesses
The Petitioner notes that “[t]rial counsel failed to subpoena or call one single
witness” in support of the Petitioner’s defense at trial. The Petitioner avers that “there
were numerous witnesses that made various statements that could have been beneficial.”
The Petitioner indicates that it “was quite difficult” to “track down the witnesses for the
evidentiary hearing” since these events occurred “nearly seven years ago.”
However, when a petitioner contends trial counsel failed to discover, interview, or
present witnesses in support of his defense, the petitioner must call those witnesses to
testify at an evidentiary hearing. Black, 794 S.W.2d at 757. This is the only way the
petitioner can establish that:
(a) a material witness existed and the witness could have been discovered
but for counsel’s neglect in his investigation of the case, (b) a known
witness was not interviewed, (c) the failure to discover or interview a
witness inured to his prejudice, or (d) the failure to have a known witness
present or call the witness to the stand resulted in the denial of critical
evidence which inured to the prejudice of petitioner.
Id. Even if a petitioner is able to show counsel was deficient in the investigation of the
facts or the calling of a known witness, the petitioner is not entitled to post-conviction
relief unless he produces a witness at his post-conviction evidentiary hearing who “could
have been found by a reasonable investigation” and “would have testified favorably in
support of his defense if called.” Id. at 758. Without doing this, the petitioner cannot
establish the prejudice requirement of the two-prong Strickland test. Id.
Trial counsel indicated that he reviewed the State’s witness list with the Petitioner
and that the Petitioner requested that he speak with specific individuals, which he did.
According to trial counsel, the Petitioner’s previous attorney, who “had done all kinds of
work,” had prepared “a list of every potential witness” and “had talked to some of” the
witnesses as well. Trial counsel testified that he interviewed “several” of the witnesses
from the State’s list, but he confirmed that he did not talk to all of the witnesses on the
State’s list. Trial counsel averred, however, that he did read all of the witnesses’
statements and that he spoke with the witnesses that “were critical to the defense,” which
he determined from reviewing the “investigative facts” and during his discussions with
the Petitioner. Trial counsel explained that “[ninety] percent” of the potential testimony
from the State’s witnesses was either cumulative, irrelevant, or immaterial, such as
testimony from witnesses that were involved in the discovery of the victim’s body.
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The only two witnesses the Petitioner called at the evidentiary hearing were
Steven Gauger and Frederick Joseph Piazza. Throughout these proceedings, the
Petitioner has cited to trial counsel’s failure to present multiple witnesses at trial;
however, the Petitioner offered no reason other than the passage of time for their absence
at the post-conviction hearing. Again, we will not speculate as to what those witnesses
would have said if called to testify at trial. See Black, 794 S.W.2d at 757.
As for the two witnesses the Petitioner did present at the hearing, he maintains that
testimony from Mr. Gauger and Mr. Piazza was “admissible and material” because it
“could have given the jury reason to doubt the State’s theory of the case” and, therefore,
“could have affected the outcome of this case.” The Petitioner once more indicates that
“there was no direct evidence” implicating him in these crimes.
1. Mr. Gauger. Regarding Mr. Gauger’s testimony, the Petitioner asserts that trial
counsel “failed to confirm whether or not [the Petitioner] was employed or otherwise had
access to legal means of income.” According to the Petitioner, Mr. Gauger’s testimony
“would have established a response to the State’s averment of money being the motive
for [the Petitioner] to murder and rob [the victim],” and “[i]t would have put credible
testimony before the jury to establish that [the Petitioner] had legal means of income and
a valid basis for having” a $100 bill. The Petitioner surmises that without Mr. Gauger’s
testimony, “[t]he jury was left only to infer that which the Court of [Criminal] Appeals
found as a reasonable conclusion that [the Petitioner] ‘intended to take property from the
victim.’” (citing Thompson, 2016 WL 7010921, at *10).
While the Petitioner’s possession of the $100 bill was relevant evidence of his
guilt, we cannot say that Mr. Gauger’s testimony was material and resulted in the denial
of critical evidence which inured to the prejudice of the Petitioner. Mr. Gauger testified
that he usually paid the Petitioner for work with $100 bills and that he paid the Petitioner
$500 a week when they worked. According to Mr. Gauger, the Petitioner came to his
house “[j]ust before Thanksgiving” 2011 and asked for an advance. However, Mr.
Gauger could not provide a specific date as to when the Petitioner made this request.
Moreover, there was evidence presented at trial that the Petitioner devised a plan
to rob the victim of his social security disability payment. Mr. Muncey testified that the
Petitioner told him that the intended victim “was only going to have five grand on him,”
rather than the expected larger sum, and that they needed to act quickly because “his
cousin [was] going through the money.” Thompson, 2016 WL 7010921, at *4.
Furthermore, Mr. Cobb testified that he saw the Petitioner with approximately $1,000 in
cash in his wallet at the time the Petitioner sold him a .38 Special Charter Arms, which
transaction occurred after the victim’s death. Mr. Cobb said that for the Petitioner to
have this large of a sum of money in his possession was irregular. The Petitioner also
asked the victim’s sister and Ms. Craven about the whereabouts of the remainder of the
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victim’s money. There was more than ample evidence at trial to establish that the
Petitioner obtained the $100 bill through unlawful means. Besides, the Petitioner’s
possession of the victim’s gun also established evidence of the robbery. Accordingly, we
conclude that the Petitioner has failed to establish ineffective assistance due to trial
counsel’s failure to interview or call Mr. Gauger to the stand.
2. Mr. Piazza. As for Mr. Piazza, the Petitioner maintains that Mr. Piazza’s
testimony provided “relevant, admissible evidence” about other individuals that “could
have been involved” in the victim’s murder, those individuals being Mr. Cope, Mr.
Pinkard, and Mr. Johnson. According to the Petitioner, Mr. Piazza’s testimony would
have provided motive for these individuals to kill the victim because the victim owed
them money and would have implicated them in this crime.
We observe that there was ample evidence presented at trial that the victim had
recently received disability benefits and that he was a frequent methamphetamine user.
The victim’s sister confirmed that the victim “was hanging around with the wrong kind of
people[.]” Thompson, 2016 WL 7010921, at *1. The victim’s character and background
were provided for the jury. In addition, the victim was not shot but was bludgeoned with
a “hard, heavy object with some force.” The forensic pathologist opined that the object
“would have [had] at least a semi-circular edge on one side” and that a pistol grip was an
unlikely murder weapon. The sledge hammer with the Petitioner’s girlfriend’s name on it
was consistent with the type of tool that produced the victim’s injuries, and it was found
at the residence of Mr. Muncey and Mr. Cobb. Mr. Piazza only stated that he heard a
gunshot, but he did not witness the events that took place under the bridge.
We cannot conclude that Mr. Piazza’s testimony of an incident, not sufficiently
connected with the victim’s demise, was material to the Petitioner’s defense. At best, it
provides speculative evidence of another defense theory. The discovery materials
contained statements from Mr. Cope, Mr. Johnson, and Mr. Pinkard, the individuals
alleged to have been involved in this incident, and those statements are not a part of the
post-conviction record. The Petitioner has not shown that trial counsel’s failure to
interview or call Mr. Piazza to the stand resulted in the denial of critical evidence which
inured to his prejudice. Black, 794 S.W.2d at 757. He is not entitled to relief from this
claim.
III. Failure to File Pretrial Motions or Object at Trial
The Petitioner notes that “[t]rial counsel did not file one single motion in this case
. . . despite the fact that trial counsel deemed much of what the State proposed to
introduce into evidence as irrelevant or immaterial.” The Petitioner indicates that trial
counsel’s performance was ineffective with respect to evidence concerning the blank SD
card Debbie George gave to the police, the Petitioner’s possession of the victim’s gun
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after the victim’s death, Mr. Muncey’s conveying “the girl’s statement” about the
coveralls found in Mr. Muncey’s apartment, and the $100 bill. According to the
Petitioner, “[a]ll of these issues were used circumstantially by the State to prove that [he]
was guilty of the crime they alleged.”
A. SD card, the victim’s gun, and the $100 bill. The Petitioner submits that trial
counsel was aware the blank SD card was going to be used by the State in its case-in-
chief and notes that trial counsel testified at the evidentiary hearing that “he did not find
the issue regarding the SD [card] to be relevant.” Accordingly, in the Petitioner’s
opinion, trial counsel should have filed a motion “to have the court rule on its
admissibility.” The Petitioner further avers that this failure was exacerbated at trial due
to trial counsel’s failure to object to the introduction of the blank SD card into evidence.
In support of this argument, the Petitioner observes that at trial, Captain Ramsey testified
that Debbie George, Mr. Muncey’s mother, had given him this blank card and that Ms.
George testified that the Petitioner had “told her there were photographs on the [card] but
he had erased everything on it.” The Petitioner concludes that this trial testimony created
the implication that he “was hiding something.”
The Petitioner also remarks that trial counsel knew Mr. Muncey and Mr. Cobb
were going to testify that the gun they purchased from the Petitioner belonged to the
victim, and the Petitioner observes that trial counsel found the gun issue to be irrelevant.
Accordingly, in the Petitioner’s estimation, “trial counsel could have very well filed a
motion in limine to have the court determine the admissibility of the gun” prior to trial.
The Petitioner continues, “[w]hile such a motion would likely have been unsuccessful, it
could have been utilized to get a greater understanding of the State’s theory as to why the
gun was relevant.” Moreover, the Petitioner notes that trial counsel made no relevance
objection at trial.
In this same regard, the Petitioner also notes that trial counsel “did not object or
even question the witness” about the $100 bill. The Petitioner cites to trial counsel’s
testimony that the issue of the $100 bill was irrelevant and to trial counsel’s
corresponding failure to “ask any questions about this money or file any motions”
regarding the issue. The Petitioner maintains that given these deficiencies, “it is difficult
to see how the jury could ‘agree with’” trial counsel that the $100-bill evidence “didn’t
have anything to do with this trial.”
As we discussed above, we do not agree with trial counsel’s opinion that the
Petitioner’s alleged possession of the victim’s gun and the Petitioner’s payment at Perry’s
Country Market with a $100 bill were irrelevant issues. However, the Petitioner has not
provided this court with any evidence of what further cross-examination of the Perry’s
Country Market employee, Ms. Alvarado, would have revealed.
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Also, the Petitioner acknowledges that a pretrial motion regarding his alleged
possession of the victim’s gun “would likely have been unsuccessful.” Likewise, he has
not shown how filing a pretrial motion would have provided trial counsel with “a greater
understanding of the State’s theory as to why the gun was relevant.” Trial counsel
acknowledged that, prior to trial, he was aware of the State’s theory that the Petitioner got
the gun from the victim after the victim was killed.
Likewise, we do not agree with trial counsel that evidence of the blank SD card
was irrelevant. Ms. George testified that after Mr. Muncey was arrested on a gun charge,
the Petitioner came to her house to “pay [his] respects” and give her the SD card from
Mr. Muncey’s phone. Thompson, 2016 WL 7010921, at *5. When Ms. George asked if
there was anything on the SD card, the Petitioner responded that “the card had contained
some photos but that he had erased everything that was on there.” Id. This provided a
relevant implication for the jury that the Petitioner was indeed hiding something. Trial
counsel’s concluding that this evidence was irrelevant was deficient.
The evidence the Petitioner challenges was both inculpatory and admissible.
While trial counsel was operating under a mistaken belief that the evidence was
irrelevant, we cannot say that the Petitioner was prejudiced by trial counsel’s failure to
challenge this evidence either pretrial or object during trial. As noted above, the
supposed murder weapon was very distinguishing and intimately connected to the
Petitioner, and the mail intercepted by Investigator Rowland and the recorded phone calls
placed by the Petitioner while incarcerated indicated his consciousness of guilt.
Accordingly, the Petitioner has not established that he was prejudiced from any
deficiency.
B. Coveralls. In addition, the Petitioner contends that he received ineffective
assistance due to trial counsel’s failure to challenge the statement from “the girl” that she
saw the Petitioner wearing the coveralls found in Mr. Muncey’s apartment. Specifically,
Mr. Muncey testified at trial that “the girl” had found “a pair of coveralls” in Mr.
Muncey’s apartment and that she said she had seen the Petitioner wearing them. Mr.
Muncey provided this testimony in response to the question, “Anything else go on in
your apartment that made you feel like you were getting set up [by the Petitioner]?”
The Petitioner contends that trial counsel “knew this issue was coming due to the
fact that Mr. Muncey made this same statement in his written statement to police, which
was turned over in discovery.” Accordingly, the Petitioner opines that trial counsel
should have filed a pretrial motion to exclude reference to the girl’s statement and
definitively should have made a hearsay objection at trial to Mr. Muncey’s testimony
about this statement. The Petitioner observes that trial counsel “appeared to be oblivious
to the potential objection that could be made” and that the post-conviction court “agreed
that this was hearsay and it should have been objected to at the trial.”
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Moreover, the Petitioner maintains that trial counsel “failed to utilize the
information and evidence he had at his disposal regarding the coveralls,” specifically, that
“the TBI Lab Report failed to indicate the presence of blood.” According to the
Petitioner, “[t]rial counsel could have utilized this report to negate the inference that these
coveralls were somehow part of the murder and by implication that [the Petitioner] was
involved.”
First, we note that trial counsel testified at the post-conviction hearing that he had
read Mr. Muncey’s statement prior to trial. However, the Petitioner did not enter this
statement into evidence at the post-conviction hearing, and it was not entered as an
exhibit at trial or listed in the discovery materials provided by the State.
Regardless, Mr. Muncey testified that the girl found the coveralls hidden in his
apartment. Mr. Muncey stated that the clothes were sized “at least 4X, 3 to 4X” and did
not fit him. Thompson, 2016 WL 7010921, at *4. Mr. Muncey provided this information
in response to the question, “Anything else go on at your apartment that made you feel
like you were getting set up [by the Petitioner]?” Mr. Muncey would have been able to
supply these details to the jury regardless of the admissibility of the girl’s out-of-court
statement. Additionally, Mr. Muncey did not testify that he saw blood on the coveralls,
and there was no testimony regarding what the Petitioner was wearing on the day the
victim was killed. Besides, the Petitioner’s consciousness of guilt was clearly established
by his jailhouse communications, and the Petitioner’s girlfriend’s name was scratched
into the head of the hammer. Accordingly, we cannot say that the Petitioner has
established ineffective assistance as it pertains to the evidence of the coveralls.
IV. Cumulative Effect
To the extent the Petitioner makes a claim that the cumulative effects of trial
counsel’s errors somehow entitle him to relief, we cannot agree. The cumulative error
doctrine recognizes that in some cases there may be multiple errors committed during the
trial proceedings, which standing alone constitute harmless error; however, considered in
the aggregate, these errors undermined the fairness of the trial and require a reversal.
State v. Hester, 324 S.W.3d 1, 76 (Tenn. 2010). We have concluded that trial counsel
was deficient in certain areas—trial counsel’s failure to seek an investigator based upon
his misunderstanding of the law; and trial counsel’s erroneous conclusions that certain
evidence was irrelevant. Nonetheless, we cannot conclude that such deficiencies, when
considered individually or together, resulted in prejudice in light of the strong evidence
supporting the Petitioner’s guilt—the Petitioner’s jailhouse conversations to his girlfriend
about the hammer; the letters the Petitioner sent from jail instructing his girlfriend to find
and dispose of the hammer; the identifying nature of the hammer; the Petitioner’s
statements to the two women inquiring about the whereabouts of the victim’s money; the
Petitioner’s behavior after the victim’s death and during the ensuing investigation; the
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Petitioner’s knowledge of the victim’s manner of death and of the crime scene; and the
testimony of Mr. Muncey and Mr. Cobb about the Petitioner’s plan to rob his cousin and
about their exchange of the victim’s gun. The Petitioner is not entitled to relief via
cumulative error.
CONCLUSION
Based upon the foregoing, the judgment of the post-conviction court is affirmed.
_________________________________
D. KELLY THOMAS, JR., JUDGE
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