Gary v. Bullard v. State of Tennessee ( 2012 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
January 18, 2012 Session
GARY V. BULLARD v. STATE OF TENNESSEE
Appeal from the Circuit Court for Rutherford County
No. F-64551 David Bragg, Judge
No. M2011-00215-CCA-R3-PC - Filed April 30, 2012
The Petitioner, Gary V. Bullard, appeals from the Rutherford County Circuit Court’s denial
of his petition for post-conviction relief. After trial, a jury convicted him of attempted
aggravated rape, a Class B felony, and aggravated assault, a Class C felony. In this appeal,
Bullard argues that he received the ineffective assistance of counsel based on a failure to (1)
sufficiently cross-examine the investigating police officer, (2) cross-examine the victim, and
(3) offer any proof in defense.1 Upon review, we affirm the judgment of the post-conviction
court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
C AMILLE R. M CM ULLEN, J., delivered the opinion of the court, in which J AMES C URWOOD
W ITT, J R., J., joined and J ERRY L. S MITH, J., (not participating).
John R. Rucker, III, Murfreesboro, Tennessee, for the Petitioner-Appellant, Gary V. Bullard.
Robert E. Cooper, Jr., Attorney General and Reporter; Clark B. Thornton, Assistant Attorney
General; William C. Whitesell, Jr., District Attorney General and Trevor Lynch, Assistant
District Attorney General, for the Appellee, State of Tennessee.
OPINION
Background. Bullard’s convictions for attempted aggravated rape and aggravated
assault stem from his attack on the victim in which he choked her, tore her hair out, punched
her face, slammed her head into a wall and a linoleum floor, dumped liquid laundry detergent
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As stated in his brief, Bullard’s issue presented is “whether trial counsel’s defense strategy and
tactics were so incompetent that Appellant was denied effective assistance of counsel as guaranteed under
the United States and Tennessee Constitutions.” From the argument section of his brief, we have gleaned
the following grounds supporting his ineffective assistance of counsel claim.
on her, and urinated on her. State v. Gary V. Bullard, No. M2008-01148-CCA-R3-CD, 2009
WL 1812420, at *1-2 (Tenn. Crim. App., at Nashville, June 25, 2009). Bullard then disrobed
and ordered the victim to take her clothes off and get in the shower with him. Id. at *2.
Bullard appealed his convictions, which were affirmed by this court. Id. at *1. He filed a
pro se petition for post-conviction relief. The trial court appointed counsel and granted a
hearing on the matter.
At the evidentiary hearing, trial counsel and Bullard were the only witnesses to testify.
Trial counsel, a veteran attorney, explained that he billed sixty-one hours for his trial
representation of Bullard. Before trial, he met with Bullard and had many conversations
about the facts surrounding the offenses with some of Bullard’s friends. Counsel testified
that the only possible eyewitnesses were the victim’s roommate and the victim, and he was
unable to locate the roommate or meet with the victim. Counsel interviewed other potential
witnesses, including Bullard’s father and girlfriend, Carolyn Harper.
Counsel testified that the proof on the aggravated assault was clear, and that his
strategy was to require “the [p]rosecution [to] put enough proof on to satisfy the elements of
the [attempted aggravated rape].” He anticipated that the trial court would dismiss the
offense because the prosecution would be unable to meet its burden. Counsel also
acknowledged that, as part of his strategy, he declined to cross-examine the victim “because
[he] felt that the . . . testimony she gave was insufficient to support a conviction for attempted
aggravated rape.” Counsel explained:
I felt like if I cross[-]examined her, then she would be able to change her story
or offer more evidence. And that would open the door for the District
Attorney again to have redirect examination and to cure any deficiencies in her
original examination that I may have exposed.
Counsel conceded that Bullard repeatedly said before trial that he wanted counsel to
impeach the victim’s testimony so that Bullard could then “tell his side of the story and sway
the jury.” Counsel did not recall what questions he asked during the cross-examination of
the police officer who investigated these offenses. At the close of the State’s proof, counsel
moved for a judgment of acquittal, arguing that the State had offered insufficient proof of
attempted aggravated rape. Counsel testified that the trial court took the motion under
advisement.
Counsel was reluctant for Bullard to testify and contradict the victim’s testimony for
various reasons. Counsel viewed Bullard as not “very credible” because Bullard had
provided “different versions” of the offense prior to trial. Counsel believed Bullard would
have been impeached by the prosecution and found to be less credible than the victim.
Counsel additionally testified that Bullard had difficulty controlling his anger and stated that,
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“if he took the witness stand, the District Attorney would be able to exploit that and use it
against him[.]” Counsel also believed that the jury was already angry with Bullard because
he “had snickered or shaken his head or made some gestures that drew the attention of the
jurors” during the victim’s testimony. Counsel advised Bullard not to testify.
Counsel chose to present no proof on Bullard’s behalf. After speaking with Bullard’s
father, counsel believed that he would not be a favorable witness for Bullard. After “many
conversations” with Bullard’s girlfriend, counsel believed that she could not offer any helpful
testimony regarding whether the events occurred. He could not remember further specific
reasons he chose not to call either of these potential witnesses, but counsel stated that he
would have weighed any beneficial information they could have offered against any
damaging testimony the State could have elicited from them.
On cross-examination by the State, counsel described the different accounts of the
offense that Bullard had provided:
[H]e told me [he] only hit her once. And on some occasions he told me that
he admitted what he had done and felt sorry for doing it. On other occasions,
he told me that [the victim] deserved what she got. And if he had the chance,
he would do it again.
Counsel was concerned because, had Bullard testified, counsel may have been ethically
required to withdraw from the case. Although he advised Bullard not to testify, he also told
Bullard that he would ask “all the questions [Bullard] wanted” if Bullard chose to testify.
Bullard decided not to testify at trial.
Bullard testified at the post-conviction hearing that he met with counsel before trial
for ten to fifteen minutes on three occasions. He mailed counsel approximately fifteen
letters, and counsel responded by letter once or twice. They discussed trial strategy, and
Bullard understood that the strategy “was to plead temporary insanity.” Counsel explained
to Bullard that the State could prove he committed aggravated assault.
Bullard requested that counsel talk with several potential witnesses, primarily
regarding the victim’s methamphetamine use and associated problems, including a
manipulative tendency. He provided the names of his father, his girlfriend, his roommate,
and the victim’s roommate. Bullard said that these witnesses could testify to the victim’s
character.
Bullard testified that he wanted counsel to cross-examine the victim. He said, “There
was no doubt about it, I wanted him to get up there and ask her this and ask her that, and
know that the fact that half of what she said was nothing but a lie.” According to Bullard,
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counsel acted as though he was indifferent to how the trial might go for Bullard. Bullard
testified that counsel “never did [any] investigation at all.”
After the evidentiary hearing, the post-conviction court denied Bullard’s petition for
post-conviction relief. This timely appeal followed.
ANALYSIS
Standard of Review. Post-conviction relief is only warranted when a petitioner
establishes that his or her conviction is void or voidable because of an abridgement of a
constitutional right. T.C.A. § 40-30-103 (2006). The Tennessee Supreme Court has held:
A post-conviction court’s findings of fact are conclusive on appeal unless the
evidence preponderates otherwise. When reviewing factual issues, the
appellate court will not re-weigh or re-evaluate the evidence; moreover, factual
questions involving the credibility of witnesses or the weight of their testimony
are matters for the trial court to resolve. The appellate court’s review of a
legal issue, or of a mixed question of law or fact such as a claim of ineffective
assistance of counsel, is de novo with no presumption of correctness.
Vaughn v. State, 202 S.W.3d 106, 115 (Tenn. 2006) (internal quotation and citations
omitted). “The petitioner bears the burden of proving factual allegations in the petition for
post-conviction relief by clear and convincing evidence.” Id. (citing T.C.A. § 40-30-110(f);
Wiley v. State, 183 S.W.3d 317, 325 (Tenn. 2006)). Evidence is considered clear and
convincing when there is no serious or substantial doubt about the accuracy of the
conclusions drawn from it. Hicks v. State, 983 S.W.2d 240, 245 (Tenn. Crim. App. 1998)
(citing Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 n.3 (Tenn. 1992)).
Vaughn further repeated well-settled principles applicable to claims of ineffective
assistance of counsel:
The right of a person accused of a crime to representation by counsel
is guaranteed by both the Sixth Amendment to the United States Constitution
and article I, section 9, of the Tennessee Constitution. Both the United States
Supreme Court and this Court have recognized that this right to representation
encompasses the right to reasonably effective assistance, that is, within the
range of competence demanded of attorneys in criminal cases.
Vaughn, 202 S.W.3d at 116 (internal quotations and citations omitted).
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In order to prevail on an ineffective assistance of counsel claim, the petitioner must
establish that (1) his lawyer’s performance was deficient and (2) the deficient performance
prejudiced the defense. Id. (citing Strickland v. Washington, 466 U.S. 668, 687 (1984);
Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)). “[A] failure to prove either deficiency
or prejudice provides a sufficient basis to deny relief on the ineffective assistance claim.
Indeed, a court need not address the components in any particular order or even address both
if the [petitioner] makes an insufficient showing of one component.” Goad v. State, 938
S.W.2d 363, 370 (Tenn. 1996) (citing Strickland, 466 U.S. at 697).
A petitioner successfully demonstrates deficient performance when the clear and
convincing evidence proves that his attorney’s conduct fell below “an objective standard of
reasonableness under prevailing professional norms.” Id. at 369 (citing Strickland, 466 U.S.
at 688; Baxter, 523 S.W.2d at 936). Prejudice arising therefrom is demonstrated once the
petitioner establishes “a reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different.” Id. at 370. “‘A reasonable
probability is a probability sufficient to undermine confidence in the outcome.’” Id. (quoting
Strickland, 466 U.S. at 694).
We note that “[i]n evaluating an attorney’s performance, a reviewing court must be
highly deferential and should indulge a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance.” State v. Burns, 6 S.W.3d 453,
462 (Tenn. 1999) (citing Strickland, 466 U.S. at 689). A court will defer to counsel’s tactical
or strategic choices as long as they are informed by adequate preparation. Hellard v. State,
629 S.W.2d 4, 9 (Tenn. 1982). Moreover, “[n]o particular set of detailed rules for counsel’s
conduct can satisfactorily take account of the variety of circumstances faced by defense
counsel or the range of legitimate decisions regarding how best to represent a criminal
defendant.” Strickland, 466 U.S. at 688-89.
I. Failure to Sufficiently Cross-Examine Police Officer. Bullard argues that
counsel rendered ineffective assistance because he did not ask the investigating police officer
about the officer’s failure to charge Bullard with attempted aggravated rape. The State does
not respond to this argument. We conclude that Bullard has failed to prove either deficient
performance or prejudice by clear and convincing evidence.
The extent of the proof offered at the post-conviction hearing supporting this issue
was counsel’s testimony that he did not recall what he asked the officer during cross-
examination. However, “proof of deficient representation by omission requires more than
a speculative showing of a lost potential benefit.” Owens v. State, 13 S.W.3d 742, 756
(Tenn. 1999). In short, Bullard offered no proof regarding the officer’s reasons for not
charging attempted aggravated rape, including what the officer’s testimony would have been
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had counsel asked the questions that Bullard now wishes he had asked. Without such proof,
we can only speculate as to any prejudicial effect on Bullard’s defense. Bullard, therefore,
has not offered clear and convincing evidence that counsel rendered ineffective assistance,
and he is not entitled to relief.
II. Failure to Cross-Examine Victim. Bullard argues that counsel was ineffective
for failing to cross-examine the victim. He asserts that counsel’s failure “left the jury with
only the victim’s unchallenged testimony with which to make their decision.” The State
responds that Bullard failed to prove ineffectiveness in this regard by clear and convincing
evidence and that “counsel’s strategic decision to forego cross-examination was made after
the exercise of his professional judgment of the risks and benefits.” We agree with the State.
At the post-conviction hearing, counsel testified that he recognized that the victim had
made inconsistent statements and that, by counsel’s assessment, she had offered insufficient
proof on the charge of attempted aggravated rape. However, counsel strategically decided
not to cross-examine the victim because he feared that it would provide the victim and the
State, on redirect, an opportunity to offer additional proof and cure the deficiencies. Counsel
decided that the chances of successfully challenging the charge of attempted aggravated rape
were good if the State offered no additional proof, and that these prospects outweighed the
chances of success if counsel pursued the alternative strategy of cross-examining the victim
and then calling Bullard to testify to contradict the victim’s testimony.
The post-conviction court found that Bullard failed to offer clear and convincing
evidence that counsel’s decisions in this regard constituted ineffective assistance. The court
stated:
At the evidentiary hearing, Petitioner made unsupported statements that the
victim was manipulative and untrustworthy, but presented no evidence of the
victim’s criminal record and no specific evidence that might impeach her
credibility. At trial, [counsel] weighed the risks and benefits of cross-
examination and made the strategic choice not to cross-examine the victim.
Petitioner failed to present any clear and convincing evidence to cause the
Court to question [counsel]’s professional judgment on this issue.
This court has previously held that “cross-examination is a strategic and tactical
decision of trial counsel, which is not to be measured by hindsight.” State v. Kerley, 820
S.W.2d 753, 756 (Tenn. Crim. App. 1991). “Allegations of ineffective assistance of counsel
relating to matters of trial strategy or tactics do not provide a basis for post-conviction relief.”
Taylor v. State, 814 S.W.2d 374, 378 (Tenn. Crim. App. 1991). Counsel did not cross-
examine the victim because he believed it would have provided the State with an opportunity
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to strengthen its case and to elicit further proof against Bullard. The record reflects that trial
counsel’s strategic decisions regarding cross-examination were informed by adequate
preparation and were well within the range of competent representation to which Bullard was
constitutionally entitled. The soundness of counsel’s decision to challenge the sufficiency
of the evidence on attempted aggravated rape is buttressed, as the State notes, by the fact that
both the trial court and this court on direct appeal considered it a close question. See Gary
V. Bullard, 2009 WL 1812420, at *7 (noting that “the evidence of [Bullard]’s specific intent
[to commit aggravated rape] is not overwhelming”). The post-conviction court’s findings,
therefore, are supported by the record, and Bullard has failed to demonstrate deficient
performance or prejudice. His claim merits no relief.
III. Failure to Offer Proof. Bullard argues that he received the ineffective
assistance of counsel based on a failure to offer any proof on Bullard’s behalf. He argues
that “if trial counsel makes the decision not to challenge the State’s proof in any way,
competent counsel would, at a minimum, offer some evidence on behalf of [Bullard].” The
State responds that Bullard failed to offer clear and convincing evidence on this claim. We
agree with the State.
Counsel testified at the post-conviction hearing that he interviewed potential
witnesses, including Bullard’s father and girlfriend. He concluded that neither could offer
any testimony beneficial to Bullard’s case. Counsel also testified that in deciding not to call
them at trial, he weighed their possible testimony on direct against the negative information
the State could elicit from them on cross-examination.
Upon our review of the record, we conclude that Bullard has not produced clear and
convincing evidence that trial counsel was ineffective based on a failure to offer proof in
Bullard’s defense. Importantly, Bullard did not offer at the post-conviction hearing the
testimony of any witnesses he believes trial counsel should have called on his behalf. Such
testimony is generally required for a court to determine that “the failure to . . . call the
witness to the stand resulted in the denial of critical evidence which inured to the prejudice
of the petitioner.” Black v. State, 764 S.W.2d 752, 757 (Tenn. Crim. App. 1990). In
addition, Bullard has made no showing that counsel’s decision not to call Bullard’s father or
girlfriend was deficient. Counsel testified that he made this decision after interviewing each
potential witness and determining that they could offer no beneficial testimony. Counsel also
believed that any advantage of calling them to testify was outweighed by the risk that they
would provide damaging information on cross-examination. We decline to second-guess
counsel’s informed decision in this regard. Consequently, Bullard is not entitled to relief.
CONCLUSION
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Upon review, we affirm the judgment of the post-conviction court.
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CAMILLE R. McMULLEN, JUDGE
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