Larry Scott Reynolds v. State of Tennessee ( 2013 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
February 13, 2013 Session
LARRY SCOTT REYNOLDS v. STATE OF TENNESSEE
Appeal from the Circuit Court for Rutherford County
No. F-67618 Don R. Ash, Judge
No. M2012-01978-CCA-R3-PC - Filed May 1, 2013
Larry Scott Reynolds (“the Petitioner”) was convicted by a jury of first degree premeditated
murder. The trial court sentenced the Petitioner to life imprisonment. The Petitioner
subsequently filed for post-conviction relief, which the post-conviction court denied
following an evidentiary hearing. The Petitioner now appeals, arguing that the post-
conviction court failed to make “sufficient findings of fact to allow meaningful review” and
“erred in questioning the Petitioner and in making other comments” at the post-conviction
hearing. The Petitioner also asserts that he received ineffective assistance of counsel. Upon
our thorough review of the record and the applicable law, we affirm the judgment of the post-
conviction court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment
of the Circuit Court Affirmed
J EFFREY S. B IVINS, J., delivered the opinion of the Court, in which JERRY L. S MITH and
R OBERT W. W EDEMEYER, JJ., joined.
Michael J. Flanagan, Nashville, Tennessee, for the appellant, Larry Scott Reynolds.
Robert E. Cooper, Jr., Attorney General and Reporter; Meredith DeVault, Senior Counsel;
William Whitesell, District Attorney General; and J. Paul Newman, Assistant District
Attorney General, for the appellee, State of Tennessee.
OPINION
Factual and Procedural Background
The Rutherford County Grand Jury indicted the Petitioner on the charge of first degree
premeditated murder. Following a jury trial, the Petitioner was convicted of the indicted
offense, and the trial court sentenced the Petitioner to life imprisonment. This Court affirmed
the Petitioner’s judgment on direct appeal. See State v. Larry Scott Reynolds, No. M2009-
00185-CCA-R3-CD, 2010 WL 5343305, at *37 (Tenn. Crim. App. Dec. 16, 2010), perm.
app. denied (Tenn. May 25, 2011). To assist in the resolution of this proceeding, we repeat
here the summary of the facts set forth in this Court’s opinion resolving the Petitioner’s direct
appeal:
This case arises from the killing of Melissa Atkin, the victim, on or
about December 16, 2007, for which the Defendant was indicted on a charge
of first degree premeditated murder. At his trial, the following evidence was
presented: The victim’s mother and father, Linda and Doug Atkin, testified the
victim was thirty-six at the time of her death and had only one child, a son
named Lucas, whose father was the Defendant and of whom the Atkins had
custody at the time of trial. At the time of her death, the victim lived in
Murfreesboro, in a house that she had owned for ten years, and she worked at
F2 Industries located in Smyrna. The victim and the Defendant had known
each other for ten to eleven years before her death. They began dating shortly
after meeting, and the Defendant soon moved in with her.
The summer after their son was born, in 2001, the Defendant and the
victim moved to Texas, but they moved back to Smyrna after one and a half
years. When they returned, the Atkins noticed that the relationship between
the victim and the Defendant had become “[v]olatile.” In May of 2006, the
Defendant moved out of the victim’s house and moved into a rental house
located just eleven houses from the Atkins’s home. The Defendant would
sometimes visit the Atkins, often when Lucas was at their house. Most, but
not all, of these visits were “amicable.”
After the Defendant moved out, the victim initiated custody
proceedings to formalize the custody arrangement of Lucas, and, with the
financial assistance of her parents, the victim retained attorney Mitchell
Shannon to assist her in this regard. Before her death, papers had been served
on the Defendant, who had also retained counsel, but the custody arrangement
had not been finally resolved by the trial court. The Atkins felt their
relationship with the Defendant changed after the victim initiated court
proceedings regarding Lucas’s custody and the Defendant expressed resistance
to paying child support and insisted that no one come between him and Lucas.
Ultimately, the Defendant ceased communicating with the Atkins, even when
he came to their house to pick up Lucas, and the Atkins felt the Defendant’s
appearance deteriorated.
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While the custody proceedings were ongoing, the victim told her father
that her cell phone voicemail was full of messages from the Defendant, so he
assisted her in recording them to a CD and then gave her a mini-cassette
recorder to use to record and preserve the phone messages in case they became
relevant to the custody proceeding. Mr. Atkin identified the recordings, which
were played for the jury.
During this time, the victim worked full time, so Lucas went to daycare
three days a week, and the Atkins kept him two days a week. Because she
wanted to spend time with Lucas, the victim and Lucas participated in karate
lessons together, and the Atkins sometimes watched these lessons. One such
occasion was on Friday December 14, 2007, when the Atkins went to a karate
school to watch as the victim attempted to obtain her second-degree green belt
and Lucas attempted to obtain his brown belt. There, they saw the Defendant,
who had come to support Lucas. The victim had originally planned to have
Lucas’s birthday party at the karate school on December 15, 2007, but the
Defendant refused her request saying that it was his weekend with Lucas.
On December 15, 2007, Linda Atkin and the victim spent the day
shopping and preparing for Lucas’s postponed birthday party, eating dinner,
and watching a movie at Linda Atkin’s house. Before leaving her parents
home on that Saturday night, the victim asked Linda Atkin to call her in the
morning to make sure she was awake so she could meet her parents at church.
The victim had told her parents that, after church, she would help bathe their
dog and eat dinner with them. The victim also said before leaving that she
intended to go to Wal–Mart before going home to purchase some items she
needed for herself and for Lucas’s party. She left between 8:00 and 9:00 p.m.
Linda Atkin called the victim on Sunday morning at 7:30 a.m. as they
had planned, but the victim never answered the telephone. The Atkins went
to church and called the victim again repeatedly upon their return home from
church. At around 3:30 p.m. they drove to the victim’s house where they
noticed her car in the driveway and her front door locked. Linda Atkins
recalled that the victim kept a key to her house hidden outside of her house.
When the Atkins looked through the front window, they saw that the curtains
to the sliding glass doors in the back were blowing. They went around back
and entered the house, where they found the victim dead, lying on her stomach,
naked from the waist down, with her hands tied behind her back. Doug Atkins
called 911, and, when police arrived, they asked the Atkins to wait outside,
which they did, staying in the victim’s driveway or in the neighboring house
of Bobby Spicer.
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The victim’s brother, Kenneth Atkin, described his relationship with the
Defendant as “pretty good” when the Defendant and the victim were dating,
with their only issue being that the Defendant did not financially assist the
victim in caring for Lucas. Kenneth spoke with the victim the night before her
death on the telephone at 10:43 p.m. for about five to ten minutes while the
victim was shopping at Wal–Mart. Kenneth heard of the victim’s death the
next day and went to the victim’s house where he met his mother and father.
He stayed outside the house for much of the time and then went into Bobby
Spicer’s house. The Defendant did not come to the victim’s memorial service,
but the Defendant’s father did attend.
Christopher Atkin, Kenneth Atkin’s son and the victim Atkin’s nephew,
testified that he visited the victim and the Defendant when they lived together
in Texas. He said the two “[a]rgued a lot when they lived in Texas,” recalling
that one time the two were arguing so heatedly while in a car together that they
had to pull over onto the side of the road.
Marcia Kautz testified she had known the victim since 1989, and she
met the Defendant shortly after the victim and the Defendant began dating in
1995 or early 1996. Kautz noted the victim and the Defendant’s “very
passionate . . . physical chemistry” but said there seemed to be some
underlying tensions regarding their different social, family, and moral
upbringing. Kautz, who spoke with the victim every day, last spoke to her at
9:00 p.m. on December 15, 2007, when the victim was on her way to
Wal–Mart to buy a few items for Lucas’s upcoming birthday party. Kautz
agreed on cross-examination that she never saw any marks on the victim, or
any pictures of any marks on the victim, from injuries caused by the
Defendant.
Todd and Tina Burfield testified that they knew the victim and Kenneth
Atkin and had met the Defendant once previously. Todd saw the victim
December 15, 2007, while she was shopping at Wal–Mart and talking on her
cell phone to her brother. Todd briefly took the victim’s phone and spoke with
Ken because the two were friends. The victim told Todd she was going to go
home to clean her house after leaving Wal–Mart. Todd recalled that his
Wal–Mart receipt indicated that he checked out of Wal–Mart at 10:47 p.m.
Tina, Todd’s wife, confirmed that he was at home when she arrived there at
11:30 p.m., and he remained home the rest of the evening. The State also
introduced Wal–Mart security recordings from December 15, 2007, which
showed the victim arriving in the Wal–Mart parking lot at 8:50 p.m., coming
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into the store at 8:52 p.m., and exiting at 11:30 p.m. After exiting, the victim
went straight to her car, put her purchases in her car, and left the parking lot.
Dee Rubo, who knew the victim and the Defendant from the karate
studio where her child also participated in karate classes, testified she was at
the studio on December 14, 2007, when the studio was conducting testing for
belt rank. After Lucas and the other kids were successful in achieving their
new belts, a party was held at a classmate’s home, and Dee and the victim
spoke during this party. The two often spoke of the victim’s struggle with
child custody issues. The next day, Rubo called the victim about a shipment
of items, some of which the victim needed to pick up, and the victim met Rubo
at the karate studio at around 7:15 or 7:30 p.m. While the victim was at the
studio, she spoke with both Rubo and Bobby Austin, a karate instructor or
“sensei,” about being upset that she did not know where the Defendant had
taken Lucas that weekend. Both Rubo and Austin encouraged the victim to try
to speak with the Defendant in a positive manner about Lucas. Rubo described
the victim and the Defendant’s relationship at that point as “distant” and
“volatile,” with the pair saying “as few words as possible to each other.”
Bobby Spicer, the victim’s neighbor, testified he had lived in his house
for nineteen years and, as such, knew both the Defendant and the victim,
whom he described as his “friends.” Spicer recalled the Defendant’s moving
out of the house and recalled the victim and the Defendant thereafter engaging
in a custody dispute. The Defendant called Spicer one day in August
complaining that the victim had called him an unfit parent, said he was not
taking care of his son, and had initiated proceedings to collect child support
from him. Spicer last saw the victim on the Saturday morning before her
death. He said when he went to bed at 10:30 p.m. on Saturday night the
victim’s car was not yet home. Her car was present at the house at 6:00 a.m.
when he awoke. Spicer noted that the victim’s curtains to her sliding glass
door were blowing at around 10:00 a.m., but he did not learn of her death until
her parents arrived at around 3:00 p.m. He offered for her parents to come into
his house and wait for the police to complete the search.
Spicer testified the Defendant called him from a telephone number
different from the Defendant’s cell phone number at 9:55 p.m. and said he
heard the victim was found dead. He asked how she died and seemed upset
that he found out from someone at the karate studio rather than a family
member. The Defendant told Spicer he had been out of town and had just
returned. The Defendant asked Spicer for details of what the police had found,
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but Spicer said he did not know. Spicer never saw any signs of violence
between the Defendant and the victim.
Michael Elliot testified he knew the victim from junior high school, and
the two lived near each other as adults. On December 15, 2007, Elliot left his
house at around 11:45 p.m. to get a drink at a nearby gas station, and he passed
the victim’s house on the way. He saw the victim inside, and she appeared to
be hanging a picture or a clock on a wall inside the home. Elliot said that
around 6:00 or 7:00 p.m. he saw lights coming from a four-wheeler in the
woods behind the victim’s home, and he reported this “suspicious” activity to
the police.
Todd Brown testified knew the victim from the karate studio, and the
victim had come to his house to bring Lucas to play with his children. Brown,
Brown’s wife, and the victim had also all taken the children out to eat. Brown
last saw the victim about a month before her death when they were both
dropping their children at school. Someone from the karate studio called him
on December 16, 2007, and told him that the victim had been murdered.
Brown went to the karate studio, where friends of the victim’s had
congregated, and he saw the Defendant walk into the studio, “sniffling.” The
Defendant said another karate patron, Brandon McKinney, called him and told
him that the victim was murdered. Brown asked the Defendant where Lucas
was, and the Defendant told them he was with Tanner Long, a fifteen or
sixteen year old boy who Brown knew lived with the Defendant and called the
Defendant “Dad.” The Defendant told Brown he had been hunting in
Lewisburg that weekend before learning of the victim’s death. The Defendant
then went straight into the office of the karate instructor, Austin. Austin, who
Brown described as “pretty upset,” made the Defendant leave, telling the
Defendant he was on his way to the sheriff’s office. The Defendant said he
too was on his way to the sheriff’s office.
Mitch Shannon testified the victim retained him in June 2007 to represent her in her
custody dispute against the Defendant. He filed a petition for paternity and to establish a
parenting plan in late June or early July of 2007. At the first hearing on the case, the court
allowed the Defendant visitation during the week and on the weekends. In September 2007,
at another hearing, the trial court reduced the Defendant’s visitation by giving him visitation
only on the weekends and by eliminating overnight visitation on Sunday. In December,
Shannon and the Defendant’s counsel wrote a number of letters to each other regarding the
Defendant’s violations of the court-established parenting plan. Shannon intended to ask the
court to sanction the Defendant based upon these violations. The two attorneys were also at
odds over the fact that the Defendant had not responded to interrogatories, as was required.
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Shannon sent the interrogatories on November 2, 2007, and had not received the Defendant’s
responses by December 2, 2007. After a number of phone calls between himself and
opposing counsel, on December 11, 2007, he sent opposing counsel a letter saying that he
would file a motion to compel on December 14, 2007, if he still had not received the
responses to his interrogatories.
Shannon recalled that one of the issues involved in this case was that
the Defendant continually called the victim. During their meetings, he would
call her sometimes up to fifteen times. Shannon and the Defendant’s attorney
attempted to keep the parties at arms length, but the Defendant still called the
victim continually. Shannon recounted several conversations between the
Defendant and the victim, one of which occurred on August 30, 2007. On that
day, the victim came to Shannon’s office to discuss the Defendant’s habit of
not bringing Lucas back as instructed. The Defendant kept repeatedly calling
the victim during the meeting, and the victim finally answered the phone and
put it on speaker. Shannon heard the Defendant be “abusive” to the victim,
calling her stupid and an idiot. The Defendant told her that they could work
things out on their own, and, when she refused, he said, “Look, I can get rid
of your attorney. It’s not a problem. I know where he lives. I’ve followed him
home. You just give the word and I’ll handle it.”
Kim McCord testified she knew both the victim and the Defendant
because their sons took karate at the same karate studio. McCord recalled an
evening when the police were called to the karate studio. She described the
events leading up to police being called, saying that, when she arrived at the
karate studio, she saw the victim standing outside crying on the telephone. She
asked the victim if she was okay, and the victim nodded her head, so McCord
went inside. To McCord “[s]omething didn’t feel right,” and she noticed that
both of the victim’s parents were inside the studio with Lucas who was not
dressed in his karate gee, which was unusual because he usually came dressed
for class. McCord went outside and asked the victim about Lucas’s karate gee,
and the victim said that she did not have it and that the Defendant had it and
refused to give it to her. Once karate class was in progress, McCord saw the
victim run inside the studio, straight up to the karate instructor, Austin.
McCord explained that this was against protocol, which required that one bow
before approaching the instructor. Austin quickly left with the victim and went
outside, where the Defendant had pulled up in his truck. Austin gestured for
the Defendant to leave, and, when he did not, Austin called the police. The
police were still at the karate studio, one speaking with the victim and one
speaking with the Defendant, when McCord left.
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Bobby Austin, the karate instructor, testified he met the victim and the
Defendant at the same time, when the two enrolled Lucas into karate lessons.
Austin said he saw the victim and the Defendant interact on a regular basis,
and the two did not seem to get along. Recalling the evening police were
called to his studio to deal with the Defendant’s behavior, Austin said the
victim came into the studio crying and upset, saying that the Defendant had
grabbed her and would not leave her alone. Austin stopped his class, went
outside, and asked the Defendant to leave. The Defendant refused, telling
Austin that he was on public property and not required to leave. Austin
returned to the school and called the police, who arrived and spoke with the
Defendant. After speaking with police, the Defendant left the karate studio.
Austin recalled another incident three weeks before the victim’s
murder. He said the victim had approached him about having a birthday party
for Lucas at the karate studio on December 15. She mentioned to Austin that
it was the Defendant’s weekend to have Lucas, and she was unsure whether
he would allow her to have the party. Austin spoke with the Defendant, who
agreed to have the birthday party on that date. The Defendant later told the
victim that he was not going to bring Lucas to the birthday party. After
learning of this, the Tuesday before the victim’s death, Austin attempted to call
the Defendant into his office to discuss the birthday party. Austin said he first
spoke with the Defendant alone, and the Defendant denied that Austin had told
him about the party. Austin asked the Defendant if he could bring in the
victim so that the three could discuss the situation, and the Defendant said,
“No. I really don’t want to talk to her. I can’t stand to be in the same room
with her.”
Austin invited the victim in anyway, and the conversation went poorly.
The Defendant told them both that he was taking Lucas out of town for the
weekend. Austin and the victim asked where they were going, but the
Defendant responded that he did not have to tell them where he was taking
Lucas. He said he had been planning “this” for awhile now. Austin recalled
being confused by the Defendant’s response because the Defendant did not say
he had been planning the “trip” for awhile but said only he had been planning
“this” for awhile. Further, Austin said the Defendant was not the “type of
person to plan a trip.” Austin described the Defendant as “just pure evil” and
said the victim did not understand why the Defendant hated her so much. The
Defendant told Austin that the victim was trying to take Lucas away from him.
Austin testified about the evening that he learned that the victim had
been killed, saying that people began coming to the studio when they learned
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of her death. The Defendant came to the studio and said, “I just heard. I just
heard.” The Defendant said he had been in Lewisburg, and Austin noticed he
was driving a white two-door Corolla. The Defendant tried to appear as if he
was crying, but Austin did not see any actual tears.
On cross-examination, Austin agreed that the Defendant had
approached him about being a mediator between the Defendant and the victim.
Austin said, after the incident where police were called, he told the Defendant
that he must call all the parents of the children who were present at the karate
studio and apologize before Austin would allow him to return. Austin
believed the Defendant complied with this request. Austin agreed that the
victim was talented at karate and had achieved an intermediate level. She had
taught herself self-defense as part of her karate training.
Mike Hoekstra, a deputy with the Rutherford County Sheriff’s Office,
testified he responded to a call at the victim’s house about a possible corpse on
December 16, 2007. The victim’s parents were there when he arrived, and,
after viewing the victim’s body, he asked her parents to leave because he
considered the house a crime scene. After three or four minutes, other officers
arrived, and the officers created a crime scene log. Deputy Hoekstra created
a report, in which he opined the method of entry into the victim’s house was
“forced.” George Chew, a paramedic with Rutherford County Emergency
Medical Service, testified he responded to the victim’s house, where he found
her body on the bed with her hands bound behind her. She did not have a
pulse and appeared to have a gunshot wound to the back of her head.
Detective Bryant Gregory, with the Rutherford County Sheriff’s Office,
testified he responded to a call about a possible homicide at the victim’s house.
Upon his arrival, he examined and photographed the scene. He noted that the
victim’s purse and jacket were on the kitchen table, and her thermostat was set
to sixty-nine degrees. The detective identified photographs of the victim’s
body, one of which depicted a scratch to her left arm. Detective Gregory
examined the victim’s car, in which he found a bag from Wal–Mart. He also
attended the autopsy of the victim’s body, where he collected bullets the
medical examiner retrieved from her body.
Dr. Amy McMaster, with the Nashville Davidson County Medical
Examiner’s Office, testified she conducted the autopsy on the victim’s body.
The victim, who was thirty-six at he time of her death, had three gunshot
wounds to her head; her hands were bound with black plastic ties; and she had
small abrasions and a bruise on the back of her right hand and abrasions to the
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back of her upper left arm. The doctor determined that the gun was fired from
a few inches away from the victim’s head, and she successfully retrieved three
bullets from the victim’s head. From these bullet wounds, the victim suffered
bleeding in her brain, multiple fractures to her skull, bleeding in her eyes, and
injury to her brain. Death, the doctor opined, was nearly instantaneous.
Elizabeth Bradley testified she moved to Tennessee in August of 2007
and met the Defendant through her son Julian Bradley. Julian and Tanner
Long, the teenager who lived with the Defendant, grew up together in Texas.
When Bradley first moved to Tennessee, she lived with the Defendant in
Smyrna for four-and-a-half weeks. Bradley said, while living with the
Defendant, she met Lucas but not the victim. Bradley recalled that the
Defendant was “very upset” with the victim because he wanted more time with
his son than every other weekend and Tuesday nights. The Defendant said he
was not willing to pay child support because he felt like he would be paying
her mortgage. Bradley said it was clear the Defendant did not like the victim
because he spoke about her using derogatory remarks while around Bradley
and Lucas, calling the victim stupid and saying that she did not know what she
was talking about.
Bradley recalled a time when she loaned the Defendant her car on a
night that the victim and Lucas had gone to karate. The Defendant wanted to
watch and see how late the victim kept Lucas at karate, because the parties
argued over the fact that Lucas was at karate after his bedtime. The Defendant
told Bradley that he wanted to use Bradley’s car because no one would
recognize him in that car. On cross-examination, Bradley agreed that the
Defendant was trying to prove that the victim was not getting Lucas to bed at
the same time she demanded that he have Lucas in bed.
Charles Hardy, with the Tennessee Bureau of Investigations (“TBI”),
testified he responded to the scene of the victim’s murder and assisted in the
investigation. Agent Hardy identified multiple pictures and sketches of the
scene. The agent did not see any signs of forced entry but noticed that the
victim’s purse and keys were on the kitchen table. Law enforcement personnel
found the victim’s body dressed only in a black camisole and positioned face
down, with her head toward the foot of the bed. Officers took multiple items
for further testing, including a bullet they found between the victim’s head and
the mattress. Agent Hardy identified photographs of possible muddy shoe
tracks in the victim’s house. Agent Hardy took swabbings of blood stains, all
of which were later determined to be from the victim or Lucas.
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Agent Hardy received multiple items to test as part of this investigation,
including the Defendant’s boots and several items from the house of Eve
Barger, a woman with whom the Defendant sometimes stayed. The agent
testified he examined the Defendant’s boots and found the presence of blood
on the Defendant’s right boot. He could not, however, generate a DNA profile
from the stains on his boot. On the fitted sheet found at Barger’s house, Agent
Hardy found blood, but he excluded the victim as the source of that blood and
determined the blood belonged to Barger. The agent did not find the victim’s
blood on any of the Defendant’s clothing, his car, or the sheet upon which the
Defendant slept the evening of the the victim’s murder.
Oakley McKinney, a TBI agent and expert in latent fingerprints,
testified that the only fingerprints he found at the crime scene belonged to the
victim. Agent McKinney also examined fingerprints recovered from Barger’s
home, but he was unable to match the prints to either the victim or the
Defendant.
The State presented evidence about the gun and the bullets used to
shoot and kill the victim. Shelly Betts, with the Firearms Identification Unit
of the TBI, testified she went to the scene of this murder, where she collected
one fired .32 caliber metal jacketed bullet from the victim’s mattress, and the
medical examiner gave her three other fired bullets the examiner retrieved
from the victim’s body. Betts also examined two unfired .32 bullets that police
recovered from the Grand Prix belonging to Barger, one of which police found
in the gear shift area and the other of which police found in the console. These
two unfired bullets were Winchester Western brand .32 auto caliber full metal
case cartridges with knurled canalures. The four fired bullets, found at the
scene and in the victim’s body, were .32 auto caliber metal case bullets with
canalures that had all been fired through the barrel of the same firearm. The
four fired bullets were the same type, design, and bullet weight as the unfired
bullets found in Barger’s Grand Prix. Agent Betts determined that the fired
bullets were fired from a gun that was manufactured by one of multiple
manufacturers, one of which was a Llama. The gun would have held seven or
eight cartridges in its magazine. Also distinctive about this gun was that it
may have misfired because officers opined that, although there were four
bullets found at the scene, the gun seemed to only be fired three times, judging
from the final resting place of the bullets. It appeared that the gun expelled
two bullets at the same time on one occasion.
On cross-examination, Agent Betts testified that a .32 caliber weapon
is relatively common, and one could purchase .32 auto seventy-one grain full
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metal casings at Wal–Mart. The agent agreed that at least ten manufacturers
could have produced the type of gun used to shoot the victim. The agent
testified that there were no cartridge cases left at the crime scene, so either the
bullets were shot from a revolver or the shooter gathered and took with him the
casings.
Agent Betts contacted Paul Szabo, who was employed with the
Winchester Ammunition Division, and he assisted her in the investigation of
the victim’s murder. Szabo testified that Agent Betts showed him the product
symbol, knurled canalures, from bullets found in this case and asked him when
Winchester last used that particular product symbol. Szabo testified the last
time Winchester manufactured that type of bullet was in 1977. Further, on the
shell case, there was an imprint showing that the brand of shell case used on
the bullets in this case was last manufactured in the late 1960s.
Police also contacted Eve Barger, whose testimony is summarized in its
entirety below, who told them that a gun was missing from a gun bag she kept
in her closet. She said the gun bag belonged to her ex-husband, and she took
it from him after their divorce. The police then contacted Barger’s
ex-husband, Phillip Keith Barger, who testified at trial that the two were
married for thirteen years and lived in Lehigh Acres, Florida, while married.
During this time, Phillip stored his weapons in a locked combination safe in
their home. Sometime after their divorce, Eve Barger moved to Lewisburg,
Tennessee, and Phillip moved from the house they had shared. She called
Phillip and asked him if he had retrieved his weapons from their home. After
this conversation, Phillip went to the house to retrieve the guns and found that
only two guns remained in the safe. Accordingly, he filed a stolen guns report
with the police.
Phillip then identified a green gun bag police found in Eve’s closet, and
he said the bag belonged to him. In the bag, he found a rifle scope, two pairs
of eye protective glasses, a gun lock key, targets, .40 caliber Winchester Smith
& Wesson rounds, and two boxes of seven millimeter Magnum shells. Phillip
Barger said the last time he saw the bag it also contained a .32 Llama pistol,
which occasionally jammed upon firing. Barger had “traded” with a friend of
his for that particular pistol nine or ten years prior, and the gun came with
ammunition. Barger testified that a sergeant from the Sheriff’s Department in
Florida contacted him to ask him if he had any ammunition for his .32 Llama
pistol, which he did. He gave the ammunition to the sergeant. Sergeant
Michael Christiansen testified he collected the .32 ammunition from Phillip as
Phillip had testified.
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Jeffrey Gilley testified he met Eve Barger through the internet, after
which the two started dating. After meeting a couple of times, the two decided
Barger would move into his home, where the two resided for approximately
four months. During this time, Barger told him about a pistol that she had that
was jamming or would not “feed right on the shells.” Gilley offered to fix the
gun for her, and the two went to her home in Lewisburg and retrieved a .38
Special, a Llama .32 semi-automatic pistol, and a stainless steel .410 shotgun.
Gilley identified the green gun bag presented by the State and said that it was
the same bag they used to transport the weapons to his parents’ house, where
he was going to attempt to fix the gun. Gilley said he fired and cleaned a .32
Llama semi-automatic pistol, which had been cracked somehow on the
right-hand side and had a slide that had been welded on. Gilley did not notice
the gun jamming when he fired it, so he loaded it and returned the gun to the
green bag after he had cleaned it. Gilley said, when Barger moved out of his
home, she took with her the green bag and the guns.
Scotty Pace, a personal trainer and vending machine owner, testified he
had known Eve Barger for several years, and the two had met via the internet.
The two spoke online for a month or two before they met in person in Fort
Meyers, Florida, where Pace spent two or three nights with Barger, meeting
her friends and family. Pace described their relationship as platonic and said
the two remained friends at the time of trial. Pace said that, while he was in
Florida, he helped Barger, who was going through a divorce, move rifles from
the house she shared with her husband to her parents’ house. Pace said that,
after Barger moved to Tennessee, the two started a vending machine business
together, but Barger ceased her involvement with the venture because she had
other full-time employment and did not feel she had enough time to participate
in the vending machine business. Pace, therefore, took over the business.
Pace testified that, in December 2007, Barger called him from the
police department and asked him to come and get her. He did and took Barger
back to his house, where she called the police and told them she wanted to
retrieve some clothing from her house. Barger refused to tell Pace why she was
at the police department, and she appeared scared and nervous. Pace took
Barger to her house, where the police met her, and she got some of her
clothing and other necessities. She then spent the night at Pace’s house.
At 4:00 a.m. Barger, who was in “tears,” awoke Pace and told him that
she would tell him what happened but that she was scared. Barger told Pace
that she was dating a man who told her he had killed his “ex” and Pace
understood her to mean the man’s ex-wife or ex-girlfriend, with whom the man
-13-
had a child. Barger said she told the man that, if he was kidding she wanted
him to stop, and if he was serious she wanted him to leave. Barger told Pace
that the police were questioning her about the victim’s murder, but she told
them nothing because she was scared. Pace told Barger she needed to speak
with an attorney and then tell the police what she knew. Pace recommended
his attorney to her, and, after Barger spoke with the attorney, Pace took her to
the police department where Barger told police what she knew.
On cross-examination, Pace agreed that he had threatened to blow up
Barger’s car, but he said that he was “messing around” because she was like
a sister to him. Pace agreed that he had been to Barger’s house before and
that, the week leading up to the victim’s murder, he had spoken with Barger
on the phone.
Eve Barger testified that she lived in Lewisburg, Tennessee, and had
lived there since March 2007, when she moved to Tennessee from Fort Myers,
Florida, after separating from her husband. Barger, who was the customer
service team leader at a Publix Supermarket, said her parents, who resided in
Florida, owned the forty-eight acres upon which her home in Lewisburg sat,
and she lived at the house alone at the time of the victim’s murder. Barger
recalled meeting Scottie Pace, who later became her best friend, through the
eHarmony website, and she met Pace in person when he visited her while she
still lived in Florida. She confirmed that Pace helped her move some of her
husband’s guns from the home she shared with her husband to her parents’
home. Barger identified a photograph of her closet and identified in it the gun
bag that Pace helped her move while she lived in Florida. Also in the closet
were a .410 gun, other shotguns and rifles, and a crossbow.
Barger recalled that, after she moved to Tennessee, she met the
Defendant in September 2007 through the website eHarmony. The two chatted
online for a couple of weeks before meeting in person at an Exxon gas station,
after which the Defendant followed her to her house. Barger drove her Pontiac
Grand Prix GT, and the Defendant followed her in his Ford truck. The
Defendant began coming to her home “once or twice a week at first,”
sometimes staying with her overnight. One time, Barger went to the
Defendant’s house in Smyrna. Eventually, the Defendant brought both of his
sons, Tanner Long, who was seventeen years old, and Lucas, who was five
years old, to her home, where she met them both. Barger said both boys had
spent the night at her house twice.
-14-
Barger testified that, at some point, she learned that the Defendant had
gone to her house when she was not present. One morning after he spent the
night at her house, Barger left for work with the assumption that the Defendant
planned to leave her home to go to work. The Defendant in fact left her house,
but he later called her and said he was eating a sandwich at her home. She
asked him how he got back into her home, and he said he used a credit card.
The Defendant also told her when he went for hikes with his sons on her
property, and, when she returned after these occasions, she would find things
moved in her house, so she assumed he entered her home.
Recalling the events of the weekend of the victim’s murder, Barger
testified that, the Tuesday before that weekend, the Defendant called her and
said he wanted to take the boys for a hike on her property. He then told her
that his ex-girlfriend, the victim Atkin, whom he “hated,” had planned a
birthday party for Lucas, so he could not take the boys hiking because he had
to attend the party. The Defendant was upset that the victim had planned a
party for his weekend with Luke and said she should have waited until it was
her weekend. Barger, therefore, did not expect to see the Defendant that
weekend, but, on Friday, the Defendant called her and told her the party was
cancelled. She spoke with the Defendant at 11:30 a.m. on Saturday December
15, and he said he was going to her house to take the boys hiking and asked if
it would be okay if Long’s friend “Donovan” joined them. She spoke with him
again at 3:00 p.m., and the Defendant was outside with his boys hiking. She
called him back later and jokingly asked him to make dinner for her if he was
planning to be at her house when she arrived home. When she arrived home
at 8:00 p.m., the Defendant had dinner prepared for her, and Donovan was not
present. Barger gave Lucas a birthday present, a remote control helicopter, and
went to Wal–Mart in Lewisburg at around 9:00 p.m. to get batteries for the
helicopter. Barger also got pancake mix at Wal–Mart, so she could make
pancakes in the morning.
When Barger returned to her house, she retrieved some clothes from the
dryer, folded them, and then watched TV in the living room with the
Defendant, who was wearing boxers and a shirt, Long, and Luke, for about
forty-five minutes. At around 11:00 p.m., Barger told the Defendant and the
two boys that she was going to bed, and she went into her room, where she
changed into a nightgown and called her sister and also another man she had
begun dating, Shawn Ferguson. Barger assumed her guest would sleep in the
rooms that they slept in the first time they spent the night, Long in the spare
room and Lucas and the Defendant in the living room. Barger went to sleep
-15-
alone in her bedroom between 11:30 and 11:45 p.m. At some point thereafter,
the Defendant entered her room, gave her a kiss, and told her goodnight.
Barger recalled that, after she fell asleep, the Defendant came back into
her room and asked her to listen for Lucas, explaining that he was going to
take Long to a tree to look for a deer. Barger was awakened later by Lucas
crying, so she opened her door and saw Lucas, who asked her where his Daddy
was. Barger told Lucas that the Defendant would return shortly and asked him
if he would like to lay in bed with her, which he did. The two got some of
Lucas’s favorite toy dinosaurs and brought them to bed and played for awhile.
Barger tried twice to call the Defendant but her calls went to his voicemail.
The Defendant, wearing jeans and a black long sleeved shirt, returned at
around 5:00 or 5:30 a.m., while she and Lucas were still awake, and got into
the bed between she and Lucas. Barger said the following then occurred:
I was laying there and I had my back to him. And I could hear
him shifting around and he was sobbing like he was crying and
sniffling. And I rolled over and looked at him and I said, “Scott,
what’s wrong with you?” And he shook his head as to say
nothing. A couple of seconds later I asked him. I said, “Scott,
what is wrong with you?” And he looked at me and he said,
“You’re going to hate me.” And I said, “I will never hate you.”
And I said, “What is wrong?” And he looked at me and he said,
“I just killed [the victim].”
Barger said she asked the Defendant, “What?” and “Why?,” and the
Defendant said he did not know and that he just could not take “it” anymore.
She said she asked him if he was being serious, and he said, “Yes,” and then
asked her what he should do. Barger said:
I said, “You need to turn yourself in.” And he said, “I can’t do
that.” He looked at me again and asked me, he said, “Promise
me something.” And I said, “Yes, anything.” And he said,
“Promise you’ll always be my friend.” And I said, “I will.” I
started to ask him how he did it and I stopped myself and told
him, I said, “Make me a promise.” And he said, “Anything.”
And I said, “Promise if I ever ask that question again you won’t
tell me.” And he said okay.
That concluded her conversation with the Defendant. Barger laid in bed
awake until Lucas awoke, and she then made him pancakes and bacon. She
-16-
saw Long still in the spare bedroom. The Defendant awoke fifteen or twenty
minutes later, and the four of them ate breakfast together and then watched
football.
Barger testified that, at this time, she still was unsure whether she
believed the Defendant. She spent the day with him, Long, and Luke, and,
when there was a break in the rain, they would fly Lucas’s helicopter. Barger
left the house only one time that Sunday and that was to go to an ATM to
retrieve gas money for the Defendant.
Barger described burning some trash with the Defendant, saying that
she had asked the Defendant on Saturday to help her burn some of her trash,
and he said he would do so on Sunday. She reminded him of this on Sunday,
and she and the Defendant went to her barn on her property to look for
something to burn her trash in and found a barrel. They brought the barrel
back to her house and placed it in her driveway where she usually burned
trash. She placed two bags of her trash in the barrel along with the box Luke’s
helicopter had arrived in and then went back inside to cook dinner. She left
the Defendant, who still wore jeans and a black shirt, outside near the barrel.
Barger placed three or four other bags of trash in her carport, so the Defendant
could burn them, which he did. Barger denied that she owned a denim purse
or that such a purse was in the trash that she burned. She said that she would
give away her old clothing rather than burn it.
Barger said that, after dinner, she gave the Defendant gas money and
then helped him jump start the battery in his truck. The Defendant left in his
truck with his two boys at around 7:30 p.m. When the Defendant left he was
no longer wearing his jeans and dark shirt but had changed into a polo and
khaki pants that were at Barger’s house from when she had laundered some of
his clothing.
At around 8:45 p.m. that evening, the Defendant called Barger and said
his friend Brandon McKinney had called him and told him that they had found
the victim dead. Barger said she acted like “it was the first time I had heard
it” because she was “in shock.” Barger testified that, while she was not scared
of the Defendant, she was scared that she knew what he had done. The
Defendant told her he was going to try to find “the karate instructor” and see
if he knew anything. At around 10:45 p.m. the Defendant called her back, and
she asked him if he had found out anything, and the Defendant responded
negatively.
-17-
Barger said she did not call the police because she was scared to get
involved in the “whole situation.” The next day Barger saw on the 12:00 p.m.
news that the victim had been murdered, and she became scared. After
speaking with the Defendant briefly a few times during the day, Barger
received a phone call from the Defendant at 9:30 p.m., and he told her he was
going to the Sheriff’s Department. He then called her while he was there and
asked if she could keep Lucas for a couple of days until the Defendant was
cleared, and she agreed. She was, however, unable to watch Lucas
twenty-four hours a day because she had to work, so the child custody worker
in charge of Lucas would not release him into her care.
Barger recalled that Detective Troy Hooker called her and left her a
voicemail message while she was at work on Tuesday and that she called him
back the same day. She said she drove to the Sheriff’s Department, where she
met with Detective Hooker for approximately three hours before taking him
to her house to look at the firearms located in her home. Barger said she did
not tell the detective the entire truth at this point because she was attempting
to protect the Defendant, whom she loved. At her house, the detective looked
in her closet, where she kept her guns, and in the gun bag located in her closet.
Barger looked into the bag with the detective, and she noticed that two guns
were missing, a semiautomatic pistol and the revolver she had placed on her
night stand Monday morning after she saw the news that the victim had been
murdered. She told Detective Hooker that the semi-automatic weapon was
missing, as well as the extra clip belonging to the weapon, and, on Wednesday,
police came and retrieved the bag from her. Barger gave the police permission
to search her home for the missing weapon and to search her car. Barger
agreed the police found two bullets in her car, which she denied having placed
in her car.
Because she did not have a means of transpor[t]ation, Barger called her
friend, Scottie Pace, to pick her up from the Sheriff’s Department. She told
Pace that the Defendant told her he had killed the victim and that she had not
yet told the police. Pace contacted his attorney, encouraged Barger to speak
with the attorney, and then took Barger to the Sheriff’s Department, where she
told the police Detectives Mayercik and Hooker the truth.
Barger said the Defendant knew that she kept firearms in her closet
because he retrieved a rifle she stored in her closet every time he hiked on her
property. Barger said she normally kept her car keys in her purse, which she
kept in the dining room. Barger said that she did not burn any clothes on the
day that the Defendant burned trash at her home and that she had never burned
-18-
any clothes in that barrel. Barger said she took old clothes to Goodwill rather
than burn them.
Barger testified Detective Mayercik asked her to record her
conversations with the Defendant, and she agreed. Those tapes were played
for the jury. In the first recorded telephone conversation, Barger said she was
calling to see how the Defendant was doing. She said she was getting scared
and needed to talk to him about a couple of things. The Defendant said he
could not tell Barger where he was because he knew that there was something
going on because she had her telephone off and would not answer it. She said
that “they,” referring to the police, were calling her all the time. He asked to
talk to Barger on another phone line because Barger’s phone may be tapped.
Barger said “I told you I didn’t want to know anything, but I need to know.”
The Defendant did not respond. The Defendant told her that both he and Long
had a warrant out for their arrest, but the Defendant wanted to wait until after
Christmas to turn himself in. The Defendant asked Barger if she was trying
to set him up in any way. She said “I just wish you had never told me . . .
because it’s killing me,” and the Defendant did not respond. She said, “I don’t
hate you . . . I am just scared.” The Defendant again did not respond. The
Defendant told Barger that his truck was impounded because someone told the
police that his truck was the last to leave the victim’s house on the Saturday
she was killed. The Defendant told Barger that she knew that was not true.
Barger said, “Did you take my car?” and the Defendant responded, “No. I
need to talk to you and I need it to be in a secure place where it is just you and
I. I need to be able to trust you.” The Defendant said, “I’m scared that the
cops have gotten a hold of you and are using you to get me to come in.” The
Defendant opined that the police did not have “anything great” on him. Barger
said, “If you did use my gun or whatever that could come back on me.” She
added, “I told you I didn’t want to know details.” The Defendant said “I don’t
know. I don’t know what to do,” and then, “I want to trust you so bad but I am
scared.” The Defendant said “You tell the truth. You tell them you went to
bed and you woke up at 4:30 [a.m.].”
Barger told the Defendant she did not know why he could not just talk
to her and why it had “got that far.” The Defendant said “I’m afraid this
sounds off.” The Defendant told her that the police had Barger’s phone tapped
and that the police could hear everything that they were saying. The
Defendant said, “[Y]ou have nothing to worry about you were sleeping the
whole time. I am the one who had something to worry about.” She asked,
“[W]hy didn’t you tell me I could have changed your mind,” and the
Defendant did not respond. The Defendant said, “I really miss you and I am
-19-
really sorry for everything but I really need to get off of here. Can I trust you?”
Barger responded, “Yes.”
The Defendant said, “If I turn myself in I am going to jail and I’m never
seeing [Lucas] again.” Barger said, “I know.” The Defendant told her “we are
going to get through this . . . . Talk to me before you do anything else.”
Barger told the Defendant she would always be his friend, but she wanted him
to do the right thing and be honest.
In the second recorded phone conversation, Barger told him that “they”
took her phone today. He asked her whether “she ever washed the mud off her
floor board.” She asked him where the mud was from and he said he had just
gotten mud in there, and he wanted to know if she ever washed it out. The
Defendant said he was going to say “bye” to everybody and then come back
and turn himself in. Barger asked, “[A]re you going to tell them?” The
Defendant said he was just going to go to the police and tell them that he knew
they had a warrant for him. The Defendant said he was “sorry for involving
her in this in any way.” Barger said, “I don’t want to get in trouble for
something I didn’t do and something I didn’t know anything about.” The
Defendant said, “[Y]ou’re not.” The Defendant said he was going tell the
police the “truth” when he turned himself in. The Defendant said “I know you
didn’t know any better but I wish you hadn’t mentioned that a gun was
missing. They would have left you alone.” He said, “Eve you know I can’t
talk on this phone.”
Barger said “at this point they are saying everything is being linked to
me.” The Defendant said, “[T]here’s no way. There’s no possible way those
casings could match.” The Defendant told her that the police were trying to
get her to “tell on” him. The Defendant said he told a friend of the family that
there was something about a gun “going on” and the friend told him not to
worry because the victim was not shot. The Defendant said that the police
were trying to get Barger to say something, but, if she did not know anything,
she could not tell the police anything.
The Defendant said, “I just have to make inner peace with that if they
convict me then I’m spending the rest of my life in prison. I just need a day or
two to do that.” I want to go say my goodbyes because “I am never going to
see anyone again if they convict me. . . . I am going to be on death row. I am
never going to see [Lucas] again.” The Defendant said Barger was not going
to come see him after “everything he had put her through.” He said, “I’ve put
you through a lot.”
-20-
The Defendant said, “If the [police] say we think it’s her, I will tell
them the whole truth. Okay. And let’s just leave it at that because we both
know the whole truth. . . . Don’t worry.” He then said, “They are trying to get
you to say something that you know nothing about.”
Barger said, “Why didn’t you talk to me things could have been so
much different,” to which the Defendant responded, “I know.” Barger said,
“you’re a good person you just make awful decisions.” The Defendant said,
“I have my whole life.” The Defendant said, “I would be better off dead,”
indicating that, if he were dead, Barger would not be in trouble, Long would
not be in trouble, and he would not be a disgrace to his family.
In the third series of phone conversations, Barger told the Defendant
that the police told her that they were going to arrest her, and she said that the
police had not given her back her car yet. The Defendant said he would be
back the next morning and he was going to turn himself in then. Barger said
she was scared, and the Defendant asked why she was scared when she had
done nothing wrong. Barger said the fact of her innocence meant nothing
because police did not believe her. The Defendant said, “[T]hey will know
once they talk to me.” The Defendant said, in case anything happened to him
between “here and there,” he was writing “all this down on paper . . . what
happened.”
Barger told the Defendant that, if he told the truth, he would still be able
to see Lucas. The Defendant, crying, said, “I’ve already f* * *ed this whole
life up.” Barger told the Defendant to tell the truth because “of how much
better [he would] feel,” instructing him to “think about how much more you
won’t have to carry around.” The Defendant responded, “that would mean the
rest of my life, Eve.” The Defendant said, “even as much as I was seeing
[Lucas] that wasn’t enough for me. . . . I just wanted to be his parent.” The
Defendant said Lucas would have to grow up without both his parents. Barger
said, “[C]hildren go everyday to see their parents in jail,” to which the
Defendant responded emphatically, “Not for killing their mother!” The
Defendant said, “I can’t live with this.”
The Defendant said the police were worried about “this f* * *ing gun
and the gun . . . has no relevance.” The Defendant said he had calmed down
a lot and had talked to some people. The Defendant said again, “[T]he gun has
no relevance. They’re telling you s* * * to try to get you to talk about
something. You don’t know anything.” The Defendant said his friend who
was an investigator for the Texas Rangers said that, if the police had anything
-21-
“on” him, they would not be waiting for Barger to come in and talk to them but
would be “coming” for him. The Defendant said that, when he told the
investigator he wanted to just sign a full confession so the police would leave
everyone else alone, the investigator discouraged him from doing so. The
Defendant said he spoke with an attorney who told him not to talk to the police
and not to tell the police something just to get other people out of trouble. The
Defendant said the police could not take Barger to jail because the police had
no evidence. Barger told him that the police advised her not to go to her house
because they were still searching out there, and the Defendant said, “They can
search all they want because there’s nothing out there.”
After the tapes were played, Barger resumed her testimony and said she
called Detective Mayercik shortly before Christmas and told him she was out
of tape with which to record the Defendant, and he told her not to worry. She
asked if she should still answer the Defendant’s calls, and the detective said
yes. The following Wednesday, the Defendant called her, and, after a lengthy
conversation during which she was crying, she told the Defendant she had told
the police that the Defendant said he killed the victim. The Defendant said, “I
want you to know that if [the police] put you in a room with me I’m going to
look at you and tell them you’re a liar.”
Barger said she had never seen the Defendant with a gun, and he had
never spoken to her about guns. Barger was online friends with Long, who
had multiple pictures of himself in camouflage on his page. Long’s MySpace
page also indicated he liked hunting.
Barger testified that, when the Defendant returned from, as he told her
at the time, taking Long to look for deer, he was wearing the same clothes he
wore when he told her he was taking Long to look for deer. She said he
seemed relaxed as he got into bed with Lucas and her. She said that, after
Lucas fell asleep, the Defendant told her he killed the victim. The Defendant
was “sobbing” and hugged her intermittently for the next four hours, until she
got out of bed at 9:30 a.m. The rest of that day was “normal,” and the
Defendant did not act differently.
Barger agreed that the driveway to her house ran alongside her bedroom
window and that it was a long driveway. She said her driveway was gravel
and that, therefore, she could hear a car coming from a distance. She did not
hear, however, the Defendant leave or return in a car on Saturday night or
Sunday morning, December 14th and 15 th .
-22-
Barger said the gun that was missing from her gun bag, the gun police
suspected was involved in the murder, was an older gun that jammed. Barger
said that, after the Defendant began burning trash, she saw the Defendant come
inside and roll up his clothes on her bed. That was the last time she saw the
Defendant’s clothes he had worn the night before.
Answering questions from the jury, Barger testified she did not know
when Long returned from deer hunting because he was in his bed when she
awoke on Sunday morning. Barger said the Defendant changed his clothes
after he started burning her trash, and, while burning the trash, he was wearing
jeans and a long-sleeved, dark shirt.
In further redirect examination, Barger said the Defendant changed his
clothes while she was at the bank retrieving money from the ATM. Because
she was not at the house, she did not know what he did with the clothes he
changed out of.
James Phillip Martin, with the Rutherford County Sheriff’s Department,
testified he examined the contents of a “burn barrel” that had been gathered
from Eve Barger’s house. In the barrel, which was a fifty-five gallon drum,
Martin found aluminum cans, green beans, metal bands, oval pieces, a small
burned box, what appeared to be some gloves, the tab from the back of a pair
of Wrangler jeans, and copper rivets that appeared to be from Wrangler jeans.
The Defendant was wearing Wrangler jeans at the time of his arrest. On
cross-examination, Martin testified that the material he gathered that appeared
to be gloves also could have been a hat. Martin said he was unaware of
whether Barger was cleaning out her house around the time of the murder.
Martin also agreed that no zipper to any jeans or pants was found in the barrel.
Linda Littlejohn, with the TBI, testified that she compared a print from
the Defendant’s boots with the partial shoe prints found in the victim’s home
and found that the two were not consistent. Agent Littlejohn also examined
the cable ties that bound the victim’s hands and found them inconsistent with
a container of cable ties found at the Defendant’s home.
The State rested, and the Defendant called to testify the lead
investigator in this case, Detective Ralph Mayercik. The detective said that,
at the start of the investigation, the police had several suspects, including the
Defendant; a man named “Kenny” with whom the victim communicated via
MySpace; Todd Burfield, the last person to see the victim at Wal–Mart the
night of her death; and a firefighter whom the victim was dating at the time of
-23-
her death. The officer said that the Defendant became a suspect early in the
investigation despite the fact police initially had no information that he had
ever previously harmed the victim.
Detective Mayercik testified he went to the Defendant’s house more
than thirty-six hours after this murder with a search warrant. The detective
explained that the delay was caused by the “exceptional amount” of work
required to process the crime scene. The Defendant, who was bathing his
child at the time, answered the door, did not attempt to avoid him, and,
obviating the need for a search warrant, consented to a search of his home,
garage, and truck. The Defendant agreed to go to the police station to give a
statement, even though he was not “in custody” at that time.
The detective believed the victim was shot from a gun in close
proximity to her head and said police did not believe that anything was used
to muffle the sound of the gun. None of the victim’s neighbors, however,
heard any gunshots. From his investigation, it appeared that the person who
had entered the victim’s home had climbed over her back fence and entered
her house through her sliding glass door.
Detective Mayercik testified the police eventually seized and searched
the Defendant’s truck, and they found nothing in it to connect the Defendant
to the victim’s murder.
The detective said that another officer investigated a “suspicious”
vehicle in the area of the victim’s home on the day of her murder and also a
“suspicious” man in the same area. Both, he learned, were in the area before
the victim returned home from Wal–Mart. The detective agreed that there was
a carjacking, possibly involving a gun, in the area of the victim’s home on the
night of her murder.
On cross-examination, Detective Mayercik testified he timed the trip
from Barger’s house to the victim’s house and reported the fifty-mile trip took
him fifty-one minutes. He said that, during his investigation, he was unable
to find any other suspect who had any other motive to kill the victim.
Glenn Rogers, an officer with the Smyrna Police Department, testified
he responded to the call reporting the dispute between the Defendant and the
victim at the karate studio. When he arrived, the Defendant told him that he
had come to the studio to tell Lucas why Lucas could not spend the night with
him. The officer noted that, while he spoke with the victim, he did not notice
-24-
any marks on her body. The officer did not make an arrest, which he testified
he would have done had he suspected that there had been an assault. On
cross-examination, Officer Rogers testified he asked the Defendant to leave
the property.
Wendy Pritchett testified she knew the Defendant because her children
attended karate with Lucas. Pritchett worked at Auto Zone with a girl named
“Christy,” who was dating a member of the Atkin family. Christy told
Pritchett that the victim had been killed and how she suspected the victim had
been killed. After learning of the victim’s death, Pritchett spent time with the
Defendant whom she “trusted.” On this occasion, Pritchett told the Defendant
how Christy said the victim had been killed. On cross-examination, Pritchett
said that, because the Defendant told her he wanted to speak with the Atkins,
she went to the Atkins’ house shortly after the victim’s murder and asked them
to speak with Defendant.
Brandon McKinney, Pritchett’s husband, testified he knew the
Defendant and the victim from the karate studio. He said he and the
Defendant were “fairly close friends,” and he was the one who informed the
Defendant that the victim had been murdered. McKinney met the Defendant
at the karate studio after he told him about the murder, and he saw the
Defendant bent over and throwing up. McKinney described the Defendant as
“upset.” McKinney drove the Defendant from the karate studio to the
Defendant’s house. At the Defendant’s house, the Defendant seemed “tore
up,” wandering around and saying he did not know how he was going to tell
his son. The following Monday, McKinney drove the Defendant to the bus
station because the Defendant wanted to go to Texas. The Defendant assured
McKinney that he had not committed this murder.
On cross-examination, McKinney testified that, on the Wednesday after
the murder, the Defendant called him and told him that his truck was broken
down, so McKinney went to pick up the Defendant. He later learned that the
Defendant’s truck actually had been seized by the police. McKinney testified
the Defendant used McKinney’s cell phone several times to call Eve Barger
after the murder, despite the fact that the Defendant had his own cell phone.
The Defendant told him that he knew that the police were listening to his
conversations.
Tanner Long, the Defendant’s son, testified he was eighteen and had
recently graduated from high school. Long recalled going to Barger’s house
with his father the weekend of December 14, 2007. He said he and the
-25-
Defendant had planned this trip for a couple of weeks because Long planned
to go to Texas for Christmas, and the Defendant wanted Long and Lucas to
have “bonding” time before Long left. Long recalled they left Smyrna for
Barger’s house at around 1:00 p.m. on Saturday, and he and his friend
“Donovan” were in a car following the Defendant, who was driving Lucas.
They arrived at around 2:00 p.m., had lunch, and started hiking, carrying with
them a shotgun and a rifle from Barger’s closet. Long testified that the only
gun remaining in Barger’s ammunition bag was a revolver.
Long testified that everything was fine during the hike and that no one
seemed mad. On their hike, the men noticed a tree stand used for deer hunting
and, by it, a deer bed, which made Long want to go hunting the following
morning. The men went back to Barger’s house where his father prepared
dinner. Barger returned at around 8:30 p.m., and they ate dinner. Long said he
sensed no tension from anyone before Barger went to bed at 11:00 or 11:30
p.m. Long said he watched a movie that started at 12:00 a.m. and that he heard
the Defendant asleep and snoring on the couch until at least 1:45 a.m. Long
said he got up and used the computer to talk to his friend from 1:45 a.m. until
2:45 a.m., and the Defendant slept on the couch the whole time. Long testified
that he fell asleep around 3:00 a.m. The next thing he recalled was the
Defendant’s alarm going off at 4:00 a .m., and the alarm woke him up, so he
turned it off before the Defendant did. He and the Defendant got up, and the
Defendant walked him to the tree stand. Long stayed in the tree stand until
8:00 a.m., when he returned to the house and had breakfast with Lucas. Long
said everything seemed “like a normal day” when he returned. They watched
football and played games with Lucas.
Long testified that Brandon McKinney called the Defendant while he
and the Defendant were on their way home and informed the Defendant that
the victim had been found dead. The Defendant began to cry and asked how
he was going to tell Lucas. He asked Long to drop him off at the karate studio
and to take Lucas home.
On cross-examination, Long testified he did not wear any orange the
day he went deer hunting and said he did not have a valid Tennessee hunting
license. Long identified pictures posted on his MySpace page that were taken
on December 22 of himself, the Defendant, and other family members. One of
him and his father had a caption that read, “You mess with me and you mess
with him.” Long testified that his father likely had on Wrangler jeans when
they went hiking the day before the victim’s death, saying that Wrangler and
Levi jeans were all his father wore.
-26-
Long said that, when the Defendant dropped him off near the tree stand
the morning of December 16th, he told Long that he would come back out if
he heard a gunshot. The Defendant then went back to the house. Long said he
stayed in the stand for two-and-a-half to three hours. When Long returned to
Barger’s house, he tried to go to bed, but Lucas came in and jumped on him,
so they got up and ate breakfast.
Long agreed that, after the Defendant learned about this murder, the
Defendant asked Wendy Pritchett to go to the victim’s parents’ house. Long
did not know why the Defendant himself did not go to the victim’s parents’
house, which was on the same street as the Defendant’s house.
The Defendant testified that he met the victim in 1996 while the two
were both working out at a fitness club. The first couple of years of their
relationship went “really well,” and, while the couple had “rocky” times and
gradually grew apart, they never yelled or argued with great frequency. After
having grown apart for some time, the Defendant moved out of the victim’s
home in May of 2006 and into a rental house, which she helped him find, near
her parents’ home. For six or seven months after the Defendant moved out of
the victim’s home, the two maintained an intimate relationship, which ceased
in December of 2006.
The Defendant said that, when he and the victim first separated, he had
Lucas Tuesday and Thursday nights and every other weekend. Lucas stayed
with the victim’s parents on Tuesdays and Thursdays during the day and was
in daycare on Monday, Wednesday, and Friday. In July of 2007, the
Defendant, who had fallen upon hard times financially, spoke with the victim
about pulling Lucas out of daycare, which the Defendant was paying for at the
time. The Defendant suggested that Long, who was out of school for the
summer, could watch Lucas during the summer in order to save two months’
daycare tuition. The victim, however, wanted Lucas to stay in daycare until
he started school, and the Defendant told her he could not afford the daycare’s
tuition.
The Defendant said, shortly after this conversation, he was “shock[ed]”
when he was served with papers showing that the victim had initiated court
proceedings. He approached Austin, from the karate studio, and asked him to
act as a mediator to assist him and the victim to work out a custody agreement.
He obtained a copy of the victim’s parenting plan and gave it to Austin, who
would alternately speak with the Defendant and the victim. According to the
-27-
Defendant, the victim wanted attorneys to work out the agreement, so she
refused to work with Austin to mediate a custody agreement.
In part because the mediation with Austin was unsuccessful, the
Defendant retained an attorney, Laurie Young, to represent him in the custody
dispute over Lucas. He conceded that he had never paid child support but said
he had never attempted to avoid paying child support. Further, he paid $400
per month for Lucas’s daycare. He said, in November 2007, he received a set
of interrogatories that he did not complete before they were due thirty days
later. He explained that many of the questions related to his income and
required him to obtain multiple tax records, which took “some time.”
The Defendant explained his version of the events that led to Austin
calling the police at the karate studio. He said Lucas was at work with the
victim that day, and he picked Lucas up and took him to lunch. When he did
so, the victim informed him that he could no longer watch Lucas at the karate
studio because Austin did not want the Defendant there. The Defendant called
Austin, who confirmed he did not want the Defendant at the studio. Despite
this, the Defendant went to the karate studio, wanting to inform his son why
he could not be there. Austin came out to the car and said he was going to call
the police if the Defendant did not leave. The Defendant refused to leave, and
Austin called the police, who arrived a short time later. The Defendant said
he just wanted to see his son.
The Defendant said the following August, he and the victim had a court
hearing on the custody case. As a result of that hearing, he lost some of his
days of custody with Lucas. One point of contention between the Defendant
and the victim was the Defendant’s perpetual failure to return Lucas to her at
the karate studio by 8:00 p.m. as scheduled, which resulted in the victim being
unable to have enough time to take Lucas home, bathe him, and put him to
bed. The Defendant said, even when he brought Lucas to the studio at 8:00
p.m., the victim did not leave the studio until later. To prove his point, he
borrowed a car and watched how late she stayed at the studio. The Defendant
denied ever following the victim’s lawyer, Shannon, or ever saying that he
knew where Shannon lived. The Defendant said he did not know where
Shannon’s office was located or what kind of car he drove. The Defendant
acknowledged that he sometimes called the victim frequently, leaving angry
messages, but he explained that he just wanted to see his son.
The Defendant said he learned from Austin on December 4th or 6th that
the victim had planned a birthday party for Lucas on a Saturday in December.
-28-
Austin did not give him the date but merely asked if the Defendant and the
victim could be in the same room together and both attend the party. He said
it was not until December 11th that he learned the victim had planned the party
for December 15, which was his weekend with Lucas. He planned to take both
his boys hiking at Barger’s house for the weekend. The Defendant recalled
that Long was leaving to spend Christmas in Texas, and he wanted Long and
Lucas to spend time together before Long left. The Defendant said Lucas
loved to spend time with Long.
The Defendant said, despite his plans, he told Austin that the party
could go ahead as scheduled. The victim called him on Wednesday, however,
and told him she had cancelled the party. On Thursday, Austin called the
victim and the Defendant into his office to discuss the situation. As a result
of this conversation, the Defendant agreed to have Lucas to karate by 8:15
p.m. and not to wait in the parking lot to see what time she left the karate
studio. The two also agreed to communicate better for Lucas’s sake.
On that Friday, December 14, 2007, the Defendant picked up Lucas
from the victim’s parents’ house. Shortly before 5:00 p.m., he took Lucas to
the karate studio so that Lucas could take the test for his next karate belt. At
the studio, the victim met him outside and gave him a pair of Lucas’s pajamas
that Lucas wanted to wear to the pajama party at school on the following
Monday. The Defendant agreed to put Lucas in these pajamas before he took
him to school on Monday. He said he and the victim did not exchange any
angry words or looks. After the karate test, he and Lucas went back to his
house and spent the night. The next morning, he and Lucas got up and waited
for Long to awaken. Then, the three of them joined Donovan and went to
Barger’s house, stopping once for gas.
When they arrived at Barger’s house, they ate sandwiches and went for
a hike. Long brought with him one of the guns that Barger kept in her closet
because Long and Donovan wanted to shoot the gun. The Defendant knew
that Barger had a gun bag that she kept in her closet, because she had offered
Long a gun on a previous occasion when Long saw a ground hog he wanted
to attempt to shoot. This occasion was the first he learned that Barger had any
guns, and he did not recall any other conversations with her about the guns she
kept in her closet. The weekend of the 14th, however, he looked in the gun
bag when Long brought the bag out to look for bullets. Long was looking for
more .410 shells, and the Defendant saw quite a few .40 caliber bullets lying
in the bottom of the bag. He and Lucas put those shells into an empty box.
The Defendant said he saw the .38 revolver in the gun bag, as well as the other
-29-
guns. He never saw any semi-automatic gun in the gun bag, and he told
Barger this when she asked him about it the following Monday or Tuesday.
The Defendant recalled that, while hiking with the three boys, Lucas,
Long, and Donovan, they saw the tree stand. Close to the stand, the grass was
“laid down,” and it looked like deer had been bedding there at nighttime. He
and Long talked about Long going the next day to the tree stand to hunt. The
men returned from hiking, Long and Donovan got more bullets to go shoot the
.410, and he and Lucas stayed in the house playing and watching television.
Long and Donovan returned, and Donovan left at 7:00 p.m., after which the
Defendant cooked dinner for the boys and Barger, who returned from work
between 8:00 and 8:30 p.m. The Defendant confirmed that Barger gave Lucas
a birthday present, a remote controlled helicopter, and then left to go to
Wal–Mart to get batteries for the helicopter.
Later that evening, Barger asked him to help her burn her trash, and he
agreed. Everyone was in the den watching television or on the computer until
Barger went to bed at 11:00 p.m. The Defendant went into her room to tell her
goodnight. The Defendant said that, when he was at Barger’s house alone, he
slept with Barger. When his boys accompanied him, however, he slept on the
couch with them. The Defendant said he did not know where Barger kept her
purse or her car keys, and he had never gone into her purse to get out her car
keys. The Defendant said, after he said goodnight to Barger, he went back to
the den, got on the couch with Lucas, and fell asleep. Long was still using the
computer at this time. Before falling asleep, the Defendant agreed to wake
Long at 4:00 a.m. so Long could go hunting.
Sunday morning the alarm went off at 4:00 a.m., Long woke him up,
and he went and asked Barger to listen for Lucas while he took Long to the
tree stand. The Defendant said he got back at around 5:00 a.m., and he noticed
that the television was on in Barger’s bedroom. Lucas was in the bed with
Barger. The Defendant said he was wearing his clothes from the day before,
and he got into bed with Barger and Lucas. Lucas asked the Defendant where
he had been, and the Defendant told him that he had taken Long to the tree
stand. Lucas asked why the Defendant had not awakened him so he could join
them, and the Defendant said because Lucas was sleeping. Barger said she had
tried to call the Defendant twice when Lucas woke up around 4:30 a.m. The
Defendant explained he turned off his phone so as not to frighten the deer.
The Defendant said he woke the next morning, ate pancakes, and
watched football. The Defendant acknowledged that he burned some trash for
-30-
Barger but denied he burned his clothes with the trash. He testified he did not
go to the victim’s house the weekend of her murder and had not been there in
over a year. The Defendant said he and the boys left Barger’s house at around
7:30 p.m., and it was not until after this that he learned of the victim’s death
from Brandon McKinney.
The Defendant described how he then went to the karate studio and
threw up in the parking lot because he was so upset about learning of the
victim’s passing. The Defendant said he went home and attempted to call the
victim’s family and the victim’s neighbor to find out what had happened.
Detective Mayercik came to his house the next day and asked to search it, and
the Defendant consented to a search of his home and truck. The Defendant
went with the officer that night to answer questions and give him a statement.
The Defendant explained that, after the victim’s death, he was cautious
during his phone conversations with Barger because he consulted with an
attorney who told him that his phones were likely tapped. He said the reason
he told Barger he wished she had not told police one of her guns was missing
was he was concerned the police were gathering evidence to implicate Long
and Barger in this crime. The Defendant explained that he asked Barger if she
had vacuumed out her car because he knew that the police would have wanted
the vacuum bag if they were looking for evidence. The Defendant said he had
never had any shells in Barger’s car and that the only time he was in her car
that weekend was when they went to get a barrel to use to burn trash.
The Defendant said he went to Texas for Christmas because he knew
that he could not see Lucas, so he wanted to be with Long and the Defendant’s
grandmother for Christmas. The Defendant said he received a telephone
message from the Department of Children’s Services reminding him he had a
custody hearing for Lucas at 2:00 p.m. on December 26. He, therefore,
returned from Texas earlier than he had planned. He willingly spoke with the
detective after his return.
On cross-examination, the Defendant conceded that he described his
relationship with the victim as being one based upon sexual attraction. He
agreed he “almost” hated the victim at the time of her death. The Defendant
said he called the victim multiple times a day because he wanted to see his son,
and she was keeping his son from him.
The Defendant acknowledged that Long had testified that the Defendant
was unable to carry a gun. The Defendant explained that he had previously
-31-
been stopped by the police, and he gave them a false name. That led to a
conviction, which prohibited him from carrying a gun.
The Defendant described one altercation between himself and the
victim that became physical. He said the two were living in Texas with
two-year-old Lucas when she hit the Defendant. In response, the Defendant
pushed her and said if she ever hit him again she could go back to Tennessee
without Lucas or himself.
The Defendant said he never had a key to the victim’s house, and, while
he lived there, she left the side door unlocked. The only time she locked the
door was when she was going out of town for some period of time. He agreed
that, while he lived with the victim, there were times when he left the victim’s
house and then returned after he knew that she had left for work. He explained
that he sometimes did not have enough work for the day or sometimes he had
to bid on a job.
The Defendant explained that part of the reason he did not want to
respond to the interrogatories was because he had not filed tax returns for his
work at his cabinet shop. He was working with a company in Brentwood to
prepare the past six years of his tax returns in order to properly respond to the
interrogatories.
The Defendant testified he changed clothes after burning Barger’s trash
because he had gotten something on the clothes he had been wearing. He said
he threw the clothes he had taken off into the backseat of his truck and then
gathered Lucas and Long to take them back to his house.
The Defendant agreed that he attempted to gather information about
what had happened. That included seeking the advice of a Nashville attorney,
who told him he should not know more than what the detectives had told him
about how the victim had died and that he should not use his phone to discuss
anything about the case because it was likely tapped. Further, he sought
information about DNA and asked a friend if his DNA could be transferred to
the victim or to the victim’s house by Lucas, if he had touched Lucas. The
Defendant agreed that, at some point after this murder, he attempted to avoid
the police because he thought that they had a warrant out for his arrest.
When presented copies of text messages that he sent to another woman
on the Saturday this murder occurred, he agreed that the messages included
some explicit comments and that he had a “romantic interest” in that woman.
-32-
The two texted back and forth until approximately midnight, after which the
Defendant said he went to sleep.
Id. at *1-25.
At the post-conviction hearing, the Petitioner testified that he had two attorneys at trial
but that one attorney was the lead counsel (“trial counsel”) in the case. The Petitioner was
introduced to trial counsel through his attorney representing him in a custody matter
(“custody attorney”). At the time that he retained trial counsel, he had no knowledge of an
existing relationship between trial counsel and his custody attorney. However, he learned
soon into trial counsel’s representation that these two attorneys had a personal relationship.
The Petitioner discussed with trial counsel whether his custody attorney should testify
at trial regarding his parenting plan. At the time of his arrest for the offense related to this
case, he had visitation rights. Previously, “hostility” had existed between the Petitioner and
the victim, but at the time of the Petitioner’s arrest, he “was actually trying to work things
out with the victim.” However, despite the Petitioner’s urging with trial counsel, his custody
attorney did not testify at trial.
The Petitioner also discussed with trial counsel the fact that the trial court’s 1 wife
worked with the victim’s father and brother. To his knowledge, trial counsel never filed a
motion for the trial court to recuse itself. The post-conviction court, through questioning of
the Petitioner, clarified the fact that the Petitioner did not know at which office the trial
court’s wife worked or at which office(s) the victim’s father and brother worked. At that
time, post-conviction counsel objected to the post-conviction court’s questioning of the
Petitioner during the Petitioner’s testimony.
The Petitioner confirmed that, prior to his trial, trial counsel visited him in jail and
discussed “a little bit” of trial strategy. He stated, “If [trial counsel] had found out anything
he would bring me that information and then we’d pretty much just talk.” They discussed
the Petitioner’s videotaped interview with police, but trial counsel did not bring the video to
the Petitioner for him to view it. Although the Petitioner asked to view both his statement
and the video on several occasions, trial counsel never brought either of them to him. The
Petitioner also never was provided with statements from other witnesses included in
discovery. On cross-examination, he clarified that he received written statements from other
witnesses but never received video statements.
The Petitioner did not know how many video statements were available, but he knew
that “there [were] some.” He did not believe that trial counsel adequately prepared him to
1
The same judge presided over the trial and post-conviction hearing.
-33-
testify at trial. According to the Petitioner, another attorney who assisted trial counsel in the
case (“assistant trial counsel”) spent a short amount of time preparing him to testify, but trial
counsel never did so. He also felt that trial counsel was not prepared for trial and was
ineffective in his representation.
On cross-examination, the Petitioner agreed that assistant trial counsel also came to
visit him prior to trial. The Petitioner stated that “[o]nce or twice [assistant trial counsel]
came by himself. And he came once or twice with [trial counsel].” He could not remember
whether he wrote letters to trial counsel. However, the Petitioner identified the writing on
several documents as his own handwriting.
Patricia Salido, the Petitioner’s sister, testified that she discussed with the Petitioner
trial counsel’s representation of the Petitioner throughout his case. She also discussed with
the Petitioner the potential “connection” between the trial court’s wife and the victim’s
family. She stated that it was trial counsel who informed her of this connection and that trial
counsel stated that he had filed a motion to recuse, which was denied.
Trial counsel testified that his interaction with the Petitioner throughout his
representation was “[v]ery good.” He met with the Petitioner “on an extremely regular
basis.” Additionally, trial counsel “saw problems with the State’s case and . . . wanted to
work very hard to be able to get him out of this.”
Trial counsel filed a motion for discovery and “a motion to inspect items seized by the
TBI and by the sheriff’s department.” He stated,
In addition to that what the facts appeared to be was that on the weekend of
December the 14th – December the 14th, my understanding, was a Friday.
Lucas had testing for his brown belt or green belt, some particular belt. And
[the Petitioner] had him at the dojo that Friday. And then that Saturday and
Sunday [the Petitioner] had gone over to Ms. Barger’s home. And I can’t tell
you the town that’s in. It’s about 50 miles from here. And that’s where he had
spent the weekend. I went to Ms. Barger’s home and drove over there. Drove
back to the home on Grassland which is where [the victim] lived to get the
mileage down. I even drove up this long gravel driveway and went up around
behind the house. Nobody was there at that time. I got information that Ms.
Barger was over in some other area. It’s probably an hour from here. Ms.
Young and I went to that other place and we drove a gravel road probably a
quarter of a mile back off the road and then drove through a field because we
could see a trailer back there. And when we pulled up to the trailer Ms. Barger
and Mr. Pace were sitting on the front porch of that trailer. And I talked with
them and interviewed them there. On several occasions I met with the folks
-34-
around [the victim’s] home. There was some folks that lived out on Florence
Road maybe. . . . And there was a witness statement that talked about the
weekend this happened they was missing some items out of their freezer. . . .
I talked with [the victim’s] next door neighbor. I talked with another
gentleman that lives down the road from [the victim] that I think what his
statement was that he had driven by that night and thought she was hanging
some pictures on the wall. [The Petitioner] said I didn’t watch his video with
him. I simply do not agree with that. [Assistant trial counsel] went with me
several times to the jail, but I went a lot to the jail by myself. And whenever
I had videos to watch or when we were preparing [the Petitioner] for trial for
his testimony the jail would give us – there’s a little room right beside the
telephone in booking. . . . Not always, but for the videos they would let us go
in there. . . . Went through pictures with [the Petitioner]. . . . Anytime I would
come across something I would go out there to the jail and I would tell him
about it and talk with him about it. I worked very hard.
Trial counsel filed a motion to inspect the crime scene but never entered the home
because the house had new residents. He also filed a motion “regarding the extent of
questions allowed of Detective Mayercik.” He explained that the victim was in contact with
a lady named Karla Teutsch from Louisiana via a social-networking website. Trial counsel
considered her an “alternative suspect” because she had communicated with the victim as
recently as the day of the murder. Detective Mayercik had learned about this communication
through his investigation, and trial counsel wanted to learn the extent of Detective
Mayercik’s testimony. The State, however, ultimately did not call Detective Mayercik as a
witness.
Trial counsel filed a motion “to determine the photographs that would be admitted into
evidence.” He explained that the victim was shot in the back of the head three times and that
many pictures existed depicting the gruesome crime scene. He also filed a notice of alibi and
thoroughly investigated the Petitioner’s alibi that he was at Ms. Barger’s home.
With regard to expert testimony preparation, trial counsel considered the firearms
issue “significant” because the TBI report indicated that the victim was shot with a .32
caliber pistol. He wanted to request the opportunity to examine the composition of one of
the lead bullets because the State had attested that the bullets must have been very old.
However, trial counsel abandoned this theory because of the possibility that the results would
be “very damaging evidence.”
Trial counsel denied that the State introduced any evidence at trial of which he was
unaware before the trial. He was familiar with all of the State’s witnesses, and as far as his
-35-
preparation, he testified, “And for every witness . . . I had a folder on that witness. I have
their statement that they made to the police. If there was a video I have gone through and
outlined that by the time and different elements in there. . . . And I also prepare questions
for those particular witnesses.”
He agreed that his wife,2 the custody attorney, had represented the Petitioner in an
unrelated matter prior to his representation of the Petitioner. At the time, he believed it best
not to call her as a witness because, although she considered the Petitioner a “very nice man,”
she also would be asked about the number of times the Petitioner called the victim and the
fact that he brought her discovery after the victim died without informing her of the victim’s
death. Trial counsel further explained that he has a rule in which he provides as much
information as possible and then allows his clients to make the ultimate decisions.
Accordingly, regarding the decision to call the Petitioner’s custody attorney as a witness, “the
Petitioner would have been the one to make the decision, not [trial counsel].”
The State asked trial counsel when he first learned that the Petitioner was not satisfied
with his representation. Trial counsel responded that it was after he had exhausted the state’s
appeals process. During the time that trial counsel was filing a writ of certiorari to the United
States Supreme Court, the Petitioner told him “something to the effect of, ‘I know you did
everything you could for me . . . . But now it’s time I’m going to have to start looking at my
post conviction.’” He noted that the Petitioner also stated that trial counsel had “gone above
and beyond what [he] had to do. Judge tied [his] hands.”
Before trial counsel heard whether the United States Supreme Court granted certiorari,
he received a letter from the Petitioner “that his sister had hired a lawyer and that the lawyer
said it would go against the strategy that he was going to use against me on post conviction
if I proceeded forward before the U.S. Supreme Court.” Trial counsel responded by letter
and affidavit to verify that the Petitioner wished to withdraw his petition for certiorari.
Trial counsel did not remember the issue arising regarding the potential conflict with
the trial court until after trial. The State admitted into evidence several letters from the
Petitioner expressing his thanks to trial counsel for his representation. Trial counsel stated
that he met with every witness of which the Petitioner would make him aware. Prior to trial,
trial counsel conducted a mock direct and cross-examination with the Petitioner in order to
prepare him for trial.
2
Although it is unclear from the record, it appears that, at some point between the trial and post-
conviction hearing, trial counsel and the custody attorney were married.
-36-
Responding to the Petitioner’s allegation that trial counsel did not review with him
the video statements of witnesses, trial counsel stated, “We went through all of the discovery
in this particular case.”
On cross-examination, trial counsel denied that he should have appealed the
Petitioner’s case to a United States District Court before filing a writ of certiorari before the
United States Supreme Court. Trial counsel maintained that the Petitioner did not wish to
have his custody attorney testify because of her potentially negative testimony.
Although trial counsel did have an issue with the testimony at trial regarding the way
the victim was shot, he did not seek out an expert as to “blood spatter.” Trial counsel
confirmed that he filed a motion to prevent jurors from asking questions of witnesses but that
it was denied. He objected to the jurors’ asking questions at some point before or during the
trial. He did not agree that he failed to include this issue in the Petitioner’s motion for new
trial.
Post-conviction counsel called the Petitioner to testify again. The Petitioner insisted
that he wanted trial counsel to call his custody attorney as a witness and never told trial
counsel otherwise. He also reiterated that trial counsel brought his laptop to the jail to show
the Petitioner photographs but never any videos. He agreed that assistant trial counsel
completed a mock direct and cross-examination with him but denied that trial counsel was
present. On cross-examination, the Petitioner could not identify portions of his trial
testimony he would have changed had he received more preparation. The Petitioner testified,
You know, I’m going to say this. It might hurt me. . . . But I like [trial
counsel]. [Trial counsel] did step out and go above and beyond after my trial.
And he helped me with my son. And I can’t give him enough thanks. I’ve got
nothing but respect for [trial counsel] for what he did. But, you know, I
believe that there is things [sic] that he could have done differently at my trial.
He told me he had 40 pages of questions for the detective. And when we get
up there the detective, every answer he had was I’m not an expert in that field.
And the general got up and said, look, he should have asked the right person
the right question. Well, the whole time he never asked the right person the
right question. He saved all these questions for the detective and he was never
allowed to ask the questions that he had on the paper.
The Petitioner stated that trial counsel informed him that trial counsel interned for the
trial court and that the trial court’s wife worked at Bob Parks Realty. Given that “the victim
worked at a title company where she did closings for Bob Parks Realty,” the Petitioner asked
trial counsel to request that the trial court recuse itself.
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At the conclusion of the hearing, the post-conviction court took the matter under
advisement and subsequently issued a written order denying relief. In its order, the post-
conviction court first addressed several of the Petitioner’s arguments “that trial counsel failed
to adequately conduct any meaningful pre-trial investigation, failed to communicate with the
Petitioner in preparation for trial, and failed to prepare Petitioner to testify at trial.” The
court accredited trial counsel’s testimony regarding “the investigative steps he took and the
pre-trial motions he filed in this case,” trial counsel’s assertion that “he met with the
Petitioner on a regular basis at the jail and [that] his interaction with the Petitioner at those
meetings was very good,” and trial counsel’s testimony that both he and assistant trial
counsel prepared the Petitioner for his direct and cross-examination. Moreover, the post-
conviction court found the Petitioner lacking credibility regarding these allegations. Thus,
the post-conviction court determined that “the Petitioner failed to prove the factual
allegations by clear and convincing evidence.”
The post-conviction court next addressed the Petitioner’s contentions that trial counsel
failed to interview potential witnesses and failed to call his custody attorney as a witness at
trial. Regarding the failure to interview potential witnesses, the court found that “the
Petitioner failed to establish any witness whom [trial counsel] failed to interview that would
have been favorable to the defense.” The post-conviction court accredited trial counsel’s
testimony that he interviewed every witness of which the Petitioner made him aware.
Regarding trial counsel’s failure to call the Petitioner’s custody attorney as a witness, the
court accredited trial counsel’s testimony that such a decision ultimately rested with the
Petitioner. Moreover, the post-conviction court found that the Petitioner failed to “subpoena
[his custody attorney] to testify at the evidentiary hearing, . . . [to] establish how her
testimony would have been favorable, nor did he present any actual proof regarding what
[her] testimony would have entailed.” Accordingly, the court denied relief as to these
allegations.
Regarding the Petitioner’s contentions that trial counsel failed to show the Petitioner
his video statement or the video statements of other witnesses, the post-conviction court
found the Petitioner’s testimony lacking credibility. Conversely, the court accredited trial
counsel’s testimony that he remembered the room in which he showed the Petitioner his
video statement and that he provided all discovery to the Petitioner.
The post-conviction court next addressed the Petitioner’s argument that trial counsel
failed to request that the trial court recuse itself. The court found that the Petitioner failed
to present proof establishing that “the victim’s brother and victim’s husband work for Bob
Park[]s Realty” and failed “to establish which Bob Park[]s Realty office these individuals
work at, when they worked for this company, what job they perform, [or] what county they
work in.” The post-conviction court held that the Petitioner failed to establish deficient
performance or show resulting prejudice in this regard.
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Finally, the post-conviction court found that the Petitioner failed to properly raise as
grounds for post-conviction relief that trial counsel failed to object to juror questioning,
failed to include the issue of juror sequestration in the Petitioner’s motion for new trial, and
failed to request a special jury charge regarding circumstantial evidence. Accordingly,
because these grounds were not raised in his petition for relief, the court deemed these issues
waived. Alternatively, the post-conviction court found that the Petitioner “failed to present
any proof to substantiate these alleged errors.”
Thus, the post-conviction court denied relief. The Petitioner timely appealed, arguing
that the post-conviction court failed to make “sufficient findings of fact to allow meaningful
appellate review” and that it “erred in questioning the Petitioner and in making other
comments.” The Petitioner also contends that he received ineffective assistance on the
following grounds: that trial counsel failed to prepare the Petitioner adequately for trial or
allow the Petitioner to review his video statement; that trial counsel failed to call the
Petitioner’s custody counsel as a witness at trial; and that trial counsel failed to file a motion
to recuse the trial judge in this case.
Analysis
Standard of Review
Relief pursuant to a post-conviction proceeding is available only when the petitioner
demonstrates that his or her “conviction or sentence is void or voidable because of the
abridgment of any right guaranteed by the Constitution of Tennessee or the Constitution of
the United States.” Tenn. Code Ann. § 40-30-103 (2006). To prevail on a post-conviction
claim of a constitutional violation, the petitioner must prove his or her allegations of fact by
“clear and convincing evidence.” Tenn. Code Ann. § 40-30-110(f) (2006). See Momon v.
State, 18 S.W.3d 152, 156 (Tenn. 1999). This Court will not overturn a post-conviction
court’s findings of fact unless the preponderance of the evidence is otherwise. Pylant v.
State, 263 S.W.3d 854, 867 (Tenn. 2008); Sexton v. State, 151 S.W.3d 525, 531 (Tenn. Crim.
App. 2004). We will defer to the post-conviction court’s findings with respect to the
witnesses’ credibility, the weight and value of their testimony, and the resolution of factual
issues presented by the evidence. Momon, 18 S.W.3d at 156. With respect to issues raising
mixed questions of law and fact, however, including claims of ineffective assistance of
counsel, our review is de novo with no presumption of correctness. See Pylant, 263 S.W.3d
at 867-68; Sexton, 151 S.W.3d at 531.
Adequacy of the Post-Conviction Court’s Order
The Petitioner first contends that the post-conviction court failed to make “sufficient
findings of fact to allow meaningful appellate review.” He alleges that “the Findings of Fact
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consist merely of an introduction and recitation of the allegations in the Petition.”
Accordingly, he asks this Court to remand this case for re-entry of an order by the post-
conviction court.
The Petitioner cites Bates v. State, 973 S.W.2d 615 (Tenn. Crim. App. 1997) to assert
that this Court “must make a determination as to whether to view the Trial Court’s Findings
of Fact as conclusive.” However, this Court in Bates stated that “the findings of fact made
by the trial court are conclusive and will not be disturbed unless the evidence contained in
the record preponderates against them.” Id. at 631 (emphasis added) (citing Rhoden v. State,
816 S.W.2d 56, 60 (Tenn. Crim. App. 1991); Brooks v. State, 756 S.W.2d 288, 289 (Tenn.
Crim. App.1988)).
The post-conviction court thoroughly addressed each contention raised by the
Petitioner, as well as the supporting testimony presented at the hearing. Accordingly, the
findings set forth by the post-conviction court are more than adequate to allow meaningful
appellate review. This issue is without merit.
Post-Conviction Court’s Questioning of Petitioner
The Petitioner’s next assertion is that the post-conviction court “erred in questioning
the Petitioner and in making other comments.” The basis of the Petitioner’s complaint stems
from his assertion that the post-conviction court made “improper” comments relating to his
wife’s employment during the testimony regarding trial counsel’s failure to file a motion to
recuse. Further, the Petitioner contends that the post-conviction court’s questions and
comments amounted to the post-conviction court becoming “a participant in the hearing.”
Accordingly, the Petitioner requests that we remand this case for a new post-conviction
hearing in which a different judge would preside. The State responds that the post-
conviction court’s actions were proper as the trier of fact in this proceeding.
First, to address the questioning of the Petitioner during the post-conviction hearing,
we note that the Tennessee Rules of Evidence allow for the questioning of witnesses by the
trial court. See Tenn. R. Evid. 614(b) (“The Court may interrogate witnesses.”). Thus, we
turn to the post-conviction court’s comments made during this proceeding related to his
wife’s association with the victim’s family. Although “[t]he Tennessee Constitution
prohibits judges from making any comment ‘with respect to matters of fact,’” this Court has
held that “[t]he aim of this rule is to avoid giving ‘the jury any impression as to [the judge’s]
feelings or to make any statement which might sway the jury.’” State v. Schiefelbein, 230
S.W.3d 88, 117 (Tenn. Crim. App. 2007) (quoting Tenn. Const. art. VI, § 9; State v. Suttles,
767 S.W.2d 403, 406-07 (Tenn. 1989)) (other citation omitted). Moreover, as in many cases
involving issues of recusal, facts particularly within the province of the trial or post-
conviction court only may be presented through the court itself. Finally, the post-conviction
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court’s order does not rely on any of the facts discussed solely by the post-conviction court
at the hearing. Rather, the court’s holding on the recusal issue relied on the lack of proof
provided by the Petitioner that the court’s wife worked with the victim’s family or that trial
counsel was deficient in not filing the motion to recuse. The post-conviction court’s
determination also relied on the Petitioner’s failure to show any prejudice. Accordingly, the
Petitioner is entitled to no relief on this issue.
Ineffective Assistance of Counsel
Lastly, the Petitioner argues that he was denied effective assistance of counsel. The
Sixth Amendment to the United States Constitution and article I, section 9 of the Tennessee
Constitution guarantee a criminal defendant the right to representation by counsel at trial.3
Both the United States Supreme Court and the Tennessee Supreme Court have recognized
that this right is to “reasonably effective” assistance, which is assistance that falls “within the
range of competence demanded of attorneys in criminal cases.” Strickland v. Washington,
466 U.S. 668, 687 (1984); see also Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). The
deprivation of effective assistance of counsel at trial presents a claim cognizable under
Tennessee’s Post-Conviction Procedure Act. See Tenn. Code Ann. § 40-30-103; Pylant, 263
S.W.3d at 868.
In order to prevail on a claim of ineffective assistance of counsel, the petitioner must
establish two prongs: (1) that counsel’s performance was deficient; and (2) that the deficient
performance prejudiced the defense. See Strickland, 466 U.S. at 687; Goad v. State, 938
S.W.2d 363, 370 (Tenn. 1996). The petitioner’s failure to establish either prong is fatal to
his or her claim of ineffective assistance of counsel. Goad, 938 S.W.2d at 370. Accordingly,
if we determine that either prong is not satisfied, we need not consider the other prong. Id.
To establish the first prong of deficient performance, the petitioner must demonstrate
that his lawyer’s “acts or omissions were so serious as to fall below an objective standard of
‘reasonableness under prevailing professional norms.’” Vaughn v. State, 202 S.W.3d 106,
116 (Tenn. 2006) (quoting Strickland, 466 U.S. at 688)). Our supreme court has explained
that:
[T]he assistance of counsel required under the Sixth Amendment is counsel
reasonably likely to render and rendering reasonably effective assistance. It
is a violation of this standard for defense counsel to deprive a criminal
defendant of a substantial defense by his own ineffectiveness or incompetence.
3
The Sixth Amendment right to counsel is applicable to the States through the Fourteenth
Amendment to the United States Constitution. See Gideon v. Wainwright, 372 U.S. 335, 342 (1963); State
v. Howell, 868 S.W.2d 238, 251 (Tenn. 1993).
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Defense counsel must perform at least as well as a lawyer with ordinary
training and skill in the criminal law and must conscientiously protect his
client’s interest, undeflected by conflicting considerations.
Baxter, 523 S.W.2d at 934-35 (quoting Beasley v. United States, 491 F.2d 687, 696 (6th Cir.
1974)). 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).
Additionally, a reviewing court “must be highly deferential and ‘must indulge a strong
presumption that counsel’s conduct falls within the wide range of reasonable professional
assistance.’” State v. Honeycutt, 54 S.W.3d 762, 767 (Tenn. 2001) (quoting 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, 816 S.W.2d at
60. 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 errors the result of the proceeding would have been different.” Vaughn,
202 S.W.3d at 116 (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, 263 S.W.3d at 869 (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.
Preparation for Trial
The Petitioner first asserts that trial counsel failed to prepare the Petitioner adequately
for trial and failed to give the Petitioner an opportunity to review his video statement. In its
order denying relief, the post-conviction court accredited trial counsel’s testimony regarding
“the investigative steps he took and the pre-trial motions he filed in this case,” trial counsel’s
assertion that “he met with the Petitioner on a regular basis at the jail and [that] his
interaction with the Petitioner at those meetings was very good,” and trial counsel’s
testimony that both he and assistant trial counsel prepared the Petitioner for his direct and
cross-examination. Additionally, the court accredited trial counsel’s testimony that he
remembered the room in which he showed the Petitioner his video statement and that he
provided all discovery to the Petitioner. Conversely, the post-conviction court expressly
found the Petitioner lacking credibility regarding these allegations.
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The evidence does not preponderate against the post-conviction court’s findings. Trial
counsel testified regarding his extensive preparation for trial, including a mock direct and
cross-examination with the Petitioner. He also specifically remembered the room in which
he showed the Petitioner his video statement. Although the Petitioner’s testimony conflicts
with that of trial counsel, we defer to the post-conviction court’s credibility findings in these
matters. See Momon, 18 S.W.3d at 156. The Petitioner has failed to establish deficient
performance on the part of trial counsel in this regard. Thus, we do not need to address the
prejudice prong. See Goad, 938 S.W.2d at 370. Accordingly, the Petitioner is entitled to no
relief on this basis.
Calling Custody Counsel as a Witness at Trial
Additionally, the Petitioner claims that trial counsel failed to call his custody counsel
as a witness at trial. Looking first to the deficiency prong, the post-conviction court
accredited trial counsel’s testimony that such a decision ultimately rested with the Petitioner.
At the post-conviction hearing, trial counsel testified that, at the time, he believed it best not
to call custody counsel as a witness because, although she considered the Petitioner a “very
nice man,” she also would be asked about the number of times the Petitioner called the victim
and the fact that he brought her discovery after the victim died without informing her of the
victim’s death. Trial counsel further explained that he has a rule in which he provides as
much information as possible and then allows his clients to make the ultimate decisions.
Accordingly, regarding the decision to call the Petitioner’s custody attorney as a witness, “the
Petitioner would have been the one to make the decision, not [trial counsel].” Therefore, we
need not address the prejudice prong. See Goad, 938 S.W.2d at 370.
Furthermore, the Petitioner never called his custody counsel to testify at the post-
conviction hearing. The post-conviction court found that the Petitioner failed to “subpoena
[his custody attorney] to testify at the evidentiary hearing, . . . [to] establish how her
testimony would have been favorable, nor did he present any actual proof regarding what
[her] testimony would have entailed.” This Court has made clear that a claim of ineffective
assistance of counsel arising from the failure to call a witness must be supported by
testimony from the witness at the post-conviction hearing. See, e.g., Denton v. State, 945
S.W.2d 793, 802-03 (Tenn. Crim. App. 1996); Wade v. State, 914 S.W.2d 97, 102 (Tenn.
Crim. App. 1995); Black v. State, 794 S.W.2d 752, 757-58 (Tenn. Crim. App. 1990); see also
Pylant, 263 S.W.2d at 869. Without the alleged witness’s testimony, there is no way for the
post-conviction court (or this Court) to evaluate whether the absence of the testimony from
trial had a prejudicial effect on the outcome. Accordingly, the Petitioner is entitled to no
relief on this issue.
Motion to Recuse
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Finally, the Petitioner contends that trial counsel failed to file a motion to recuse the
trial judge in this case. Turning first to the prejudice prong, the post-conviction court found
that the Petitioner failed to present proof establishing that “the victim’s brother and victim’s
husband work for Bob Park[]s Realty” and failed “to establish which Bob Park[]s Realty
office these individuals work at, when they worked for this company, what job they perform,
[or] what county they work in.” The court also determined that the Petitioner failed to
establish deficiency on the part of trial counsel in not filing the motion prior to trial.
Once again, the evidence does not preponderate against the post-conviction court’s
findings. The Petitioner was unable to tell the post-conviction court at which office the
victim’s family members worked and whether it was the same office as where the court’s
wife worked and produced no other evidence addressing these points. Therefore, the
Petitioner has failed to establish that “he was denied his right to a fair trial before an
impartial tribunal.” Smith v. State, 357 S.W.3d 322, 345 (Tenn. 2011). Although we need
not address the deficiency prong, see Goad, 938 S.W.2d at 370, we note that trial counsel
testified at the post-conviction hearing that he did not remember this issue arising until after
the trial was completed. Accordingly, the Petitioner is entitled to no relief on his ineffective
assistance of counsel claim.
CONCLUSION
For the foregoing reasons, the Petitioner has failed to establish that he is entitled to
post-conviction relief. Therefore, we affirm the judgment of the post-conviction court
denying relief.
______________________________
JEFFREY S. BIVINS, JUDGE
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