Drew David Kirkman v. State of Tennessee ( 2012 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs June 29, 2011
DREW DAVID KIRKMAN v. STATE OF TENNESSEE
Direct Appeal from the Criminal Court for Bradley County
No. 09-219 Carroll Ross, Judge
No. E2010-02296-CCA-R3-PC - Filed April 25, 2012
The petitioner, Drew David Kirkman, appeals the Bradley County Criminal Court’s denial
of his petition for post-conviction relief. The petitioner stands convicted of two counts of
first degree murder and one count of aggravated robbery and is currently serving an effective
sentence of life in prison plus twenty years. On appeal, the petitioner contends that the post-
conviction court erred in denying him relief because he was deprived of his right to the
effective assistance of counsel. Specifically, he contends that trial counsel was ineffective
by: (1) failing to adequately prepare for trial and communicate with the petitioner; (2)
arguing the motion to suppress on the day before trial which precluded proper review by the
trial court; (3) failing to strike two jurors from the panel; and (4) failing to perfect and
present a mental defense. Following review of the record, we find no error and affirm the
denial of the petition.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
J OHN E VERETT W ILLIAMS, J., delivered the opinion of the Court, in which J ERRY L. S MITH
and D. K ELLY T HOMAS, J R., JJ., joined.
David K. Calfee, Cleveland, Tennessee, for the appellant, Drew David Kirkman.
Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Senior Counsel;
Robert Steven Bebb, District Attorney General; and Drew Robinson, Assistant District
Attorney General, for the appellee, State of Tennessee.
OPINION
Procedural History
The relevant facts underlying the petitioner’s convictions, as summarized by this
court on direct appeal, are as follows:
According to a statement given by the [petitioner] to the police, the
[petitioner] was involved in a check cashing scheme with several other
individuals, including Elka Fallis, Jeff Cross, Daniel Goldston, and Candace
Tracy Clayton. The [petitioner] said that on the evening of Monday, January
28, 2002, Fallis became upset, claiming that Goldston and Clayton were
attempting to “screw over” the other members of the operation. Fallis then
suggested that she, the [petitioner], and Cross go over to the residence
Goldston and Clayton shared to “pop” them, meaning shoot them. The three
then went over to Goldston and Clayton’s residence, where a heated argument
occurred between Goldston and Fallis. The [petitioner] claims he calmed
down Fallis and Goldston before the argument escalated further.
The next morning, the [petitioner] reported to his parole officer, Nancy
Baker, for a general intake. At the motion to suppress hearing, Baker testified
that she gave the [petitioner] a drug test, and he tested postive for cocaine,
amphetamines, and THC. Baker testified that at the time of the intake, she told
the [petitioner] that she was not going to “violate him” that morning, but that
“he better be clean the next month.” However, on February 4, after the
[petitioner] had been arrested in the instant case, Baker filed a probation
violation warrant. Baker also testified that she did not request that the
[petitioner] be held without bond on the misdemeanor possession charge.
The [petitioner] told police that he, Fallis, and Cross returned to
Goldston and Clayton’s residence the evening of Tuesday, January 29. After
a brief discussion, Goldston began smoking crack cocaine before handing the
crack pipe to the [petitioner]. While the [petitioner] was smoking, Fallis began
shooting at Goldston and Clayton. The [petitioner] claimed that he stabbed
Goldston once in the back, breaking his knife, and that Cross may have
stabbed one of the victims. After the [petitioner] stabbed Goldston, he saw
Fallis hit Clayton with a table leg. The [petitioner] also stated that he hit
Goldston “quite a few times” with a club. The three then left the residence,
with the [petitioner] taking knives and $400 in cash from Goldston’s pocket
on the way out. After the [petitioner] returned to his apartment, he took
several bags containing items taken from the victims’ apartment to a dumpster.
The [petitioner] also gave someone, whom he did not identify, a typewriter
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used in the check cashing scheme and a gun. The [petitioner] told this person
to “get rid” of the gun in a creek.
The [petitioner] told police that Elvenia Franklin took him to work
Tuesday night. At trial, Monte Boring testified that he worked with the
[petitioner] that night at Advanced Photographic Solutions. According to
Boring, the [petitioner] said that he “took care of that n--r what was causing
us trouble.” Boring claimed that the [petitioner] then said, “[y]ou’ll read about
it in the papers,” and that the [petitioner] mentioned that he had gotten his
knife back, as well as something about a carpet being cleaned. Later, Boring
heard news reports about Goldston’s murder. In his first statement to police,
the [petitioner] denied making these statements to Boring. Rather, the
[petitioner], who said he was under the influence of drugs when he reported
to work that evening, claimed that he told Boring that he was “f-ed up as two
n-s.” In his first statement to police, the [petitioner] expressed concern that he
was being implicated in the crime by Boring, a known drug addict.
Franklin testified that she took the [petitioner] home from work after his
shift ended Wednesday morning. At that point, the [petitioner] gave Franklin
a typewriter used in the check cashing scheme. A short while later, Franklin
followed the [petitioner] to Fallis’s house, where the [petitioner] gave Franklin
a small handgun.
Lieutenant John Dailey with the Cleveland Police [D]epartment
testified that he investigated the crime scene. Lieutenant Dailey stated that
Clayton had suffered a severe head injury, as well as other injuries to her torso.
He also noticed that a coffee table had two legs broken, with one missing and
one located next to Clayton’s body. Lieutenant Dailey testified that Goldston
had suffered visible head injuries, and additional examination revealed stab
wounds and gunshot wounds. Goldston also had a knife blade sticking out of
his back, with the handle broken off. Throughout the residence, Lieutenant
Dailey noted several shoe prints which appeared to be made by a K-Swiss
sneaker. He also saw a broken club lying next to Goldston, [which] contained
what appeared to be blood and human hair, though the officer did not indicate
the color of the hair or to whom it belonged. Tennessee Bureau of
Investigation (TBI) Special Agent Bradley Everett later performed tests on the
club that indicated the club contained blood from both victims.
Dr. Ronald Toolsie, who conducted the autopsies of both victims,
testified at trial that Clayton suffered massive blunt trauma injuries to her face
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and scalp. In his autopsy report, Dr. Toolsie ruled the death a homicide, with
the cause of death being “[m]assive craniocerebral injuries with skull fractures
due to multiple injuries to left face, left parietal scalp and left occipital scalp.”
Dr. Toolsie testified that Goldston suffered six stab wounds to the back and
two gunshot wounds, which Dr. Toolsie claimed were consistent with the
victim being shot while lying face-down. According to Dr. Toolsie, these
wounds were fatal. Goldston also suffered blunt force trauma to the back of
the head; according to Dr. Toolsie, “[Goldston] looked like he’d been struck
four times with a hard, hard-edged but blunt object that caused the skin of the
back of the scalp to split.”
Early on the morning of Thursday, January 31, Lieutenant Dailey
received a call at home ordered him back to work. According to Lieutenant
Dailey, he was told only “that someone had called in with a tip about [the
petitioner], and that they had gone over to get him and were bringing him
down.” Lieutenant Dailey later learned that Boring had called in the tip;
however, the record is devoid of any information regarding the contents of the
tip, the time at which Boring contacted police, or who took Boring’s initial
statement. Nobody who talked to Boring testified at trial, and Boring’s trial
testimony did not include information about his initial tip to police. Lieutenant
Dailey testified that he arrived at the police station at 1:30 a.m. and that the
[petitioner] was already present when he arrived. Lieutenant Dailey testified
that he took a statement from Boring as well as from the [petitioner].
At the suppression hearing, the [petitioner] testified that after arriving
at work late Tuesday night, several officers arrived at his workplace and
entered his work area. The [petitioner] claimed that he was under the
influence of drugs that evening, but he also claimed that he was doing nothing
wrong at the time the police confronted him. The [petitioner] claimed the
police grabbed him, made him stand up, and then placed his arms behind his
back and searched him. According to the [petitioner], the police took his
cigarettes and keys, and he had nothing else in his pockets at the time. Then,
the [petitioner] claimed the police handcuffed him and led him outside. The
[petitioner] asked the police why he was under arrest; according to the
[petitioner], one of the officers said “You’re not under arrest. You’re going
to tell us what we want to know.” The [petitioner] said that another officer
then approached him; this officer did not search the [petitioner], but he showed
the [petitioner] a bag of marijuana and stated that the [petitioner] was under
arrest for simple possession of marijuana. According to the [petitioner], the
police transported [him] to the Cleveland Police Department, where the
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officers left him shackled and handcuffed to a wooden bench. The [petitioner]
claimed he was chained to the bench leaning backward, so that he could not
lie down or get comfortable. The [petitioner] claimed he was in that position
for at least a couple hours before he spoke with Lieutenant Dailey.
Mike Kelley, a former coworker of the [petitioner’s], testified that he
was working with the [petitioner] the morning [the petitioner] was taken to the
police station. Kelley stated that “eight or nine” officers arrived and took the
[petitioner] away. Kelley stated that the [petitioner] did not appear to be under
the influence of drugs at the time he left the store. Kelley stated that he did not
witness the police search the [petitioner] and did not remember hearing any
officer saying anything about the [petitioner] possessing any marijuana.
According to Lieutenant Dailey, he interviewed the [petitioner] in his
office at the Cleveland Police Department. The transcript of the interview
indicates that it began at 2:33 a.m. and ended at 3:33 a.m. During the
interview, the [petitioner] denied involvement in the victims’ murder. The
[petitioner] named several person with whom he associated and did drugs,
including a woman named Robin Fiveash. Lieutenant Dailey testified that the
[petitioner] signed a Miranda waiver before the interview, and that during the
interview the [petitioner] did not appear to be under the influence of drugs or
alcohol, appeared to understand the questions asked of him, did not say that he
did not wish to speak to police, and did not ask to speak to an attorney.
Later in the interview, Lieutenant Dailey asked the [petitioner] about
what type of shoes the [petitioner] wore. The [petitioner] responded that he
owned a pair of K-Swiss shoes. The officer asked if he could go to the
[petitioner’s] apartment and take an impression of the shoes. The [petitioner]
replied that the officer could do so. According to Lieutenant Dailey, he and
the [petitioner] then went to the [petitioner’s] apartment, where Lieutenant
Dailey located the shoes in a tied garbage bag located next to a garbage can.
Lieutenant Dailey then asked the [petitioner] if he could take the shoes; the
[petitioner] replied that the officer could take them. Lieutenant Dailey then
took the shoes and the other contents of the bag, some of which contained
blood, into custody. TBI Agent Everett’s tests confirmed that the shoes
contained Candace Clayton’s blood. However, TBI Special Agent Linda
Littlejohn testified that although the [petitioner’s] shoes were consistent with
prints left at the crime scene, no unique identifying marks could lead her to
conclusively state that the [petitioner’s] shoes made the prints left at the crime
scene.
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At 7:00 a.m. on January 31, a search warrant was issued for the
[petitioner’s] residence. However, Lieutenant Dailey testified that nothing of
evidentiary value was obtained from the search conducted pursuant to the
warrant.
According to the [petitioner], he was transported from the Cleveland
Police Department to the Bradley County Justice Center at 9:30 a.m. on
January 31. The [petitioner] said he was held shackled in the “drunk tank”
until his hearing before the magistrate at 1:30 that afternoon. The [petitioner]
claimed that at the probable cause hearing, he was unable to ask for bond
because Shari Tayloe, an Assistant District Attorney, “stood up and said that
she was going to try to get a violation on me, that she believed I was on
probation.” The [petitioner] claimed that after the hearing at which the
[petitioner] was charged with possession of marijuana and apparently denied
bond, he was held for a while in the Justice Center before being transported
back to the Cleveland Police Department. The [petitioner] claimed that he
asked for a phone call and asked to speak to a lawyer, but these requests were
denied.
At trial, Elvenia Franklin testified that at some point on January 31, the
[petitioner] did call her. Franklin said that the [petitioner] asked her to bring
the typewriter and gun he had given her to Lieutenant Dailey “so he could
prove he wasn’t the only one involved.” Franklin said that she brought the
typewriter to police but that she threw the gun into a creek. Franklin
eventually pointed police to the creek where she deposited the gun, and the
gun was recovered. TBI Special Agent Don Carman testified that his tests
confirmed that the gun, a .22 caliber pistol, was used during the offense.
At some point on the afternoon of January 31, Robin Fiveash, one of the
persons mentioned in the [petitioner’s] initial statement, was contacted by
police. According to Lieutenant Dailey, Fiveash gave a statement “in
confidence” to Detective Robert Harbison because “she didn’t want Mrs. Fallis
to know what she was saying.” Fiveash told Detective Harbison that she saw
the [petitioner] place several items into a dumpster located at the Superior
Cash Mart, located next door to his apartment. After gaining permission from
a worker at the market, Dailey and other Cleveland Police officers searched the
dumpster, retrieving a coffee table leg that appeared to be from the victims’
apartment, several knives, a knife handle that was missing its blade, victim
Clayton’s pocketbook, Post-It notes addressed to “Drew,” and some bloody
gloves. TBI Agent Everett testified that his tests confirmed that the victims’
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blood was on the gloves. Agent Everett testified that a broken knife blade
retrieved from the dumpster tested positive for victim Goldston’s blood, as did
a knife handle retrieved from the dumpster. Agent Everett’s report indicated
that the table leg retrieved from the dumpster tested positive for Goldston’s
blood, and although Clayton’s blood did not appear on the table leg, Dr.
Toolsie testified that the table leg “could very well have” inflicted the bruising
patterns discovered on her body.
Following her initial, unrecorded statement to police, Fiveash gave a
statement to police the afternoon of January 31. In that statement, Fiveash did
not mention the dumpster. Fiveash did not mention the [petitioner] placing
items in the dumpster in a formal, recorded statement to police until Friday,
February 1, after the police had actually retrieved the items from the dumpster.
At 7:02 p.m. on Thursday, January 31, the [petitioner] gave a second
statement to Lieutenant Dailey. According to the officer, the [petitioner]
voluntarily signed an admonition and waiver form. Lieutenant Dailey stated
that shortly after signing the waiver, the [petitioner] asked to take a break and
smoke a cigarette. Lieutenant Dailey granted the [petitioner’s] requests, after
which the [petitioner’s] statement resumed. According to Lieutenant Dailey,
the [petitioner] did not appear to be under the influence of drugs and appeared
to understand the questions he was asked. The officer also said that the
[petitioner] did not state that he wished to speak to an attorney and did not ask
to end the discussion. According to Lieutenant Dailey, the only issue the
[petitioner] raised with him was that the [petitioner] “felt like that I told him
he could make bond and then he didn’t get to. And then I advised him, ‘I set
a bond on it. I can’t help what happened once you got in front of the Judge.’”
The [petitioner] then gave an account of the events that led to the victims’
deaths.
At the suppression hearing, the [petitioner] claimed that he did not
signed the admonition and waiver form. When shown the admonition and
waiver form, the [petitioner] claimed that the signature that appeared on the
“signature” line did not match his signature. The [petitioner] claimed that he
asked for a lawyer before making the second statement, but defense counsel
ultimately admitted that no mention of the [petitioner] asking for a lawyer
actually appears in the transcript of the interview. The [petitioner] also
claimed that the police knew about his history of mental illness and treatment
for that illness. At the preliminary hearing, Lieutenant Dailey admitted that the
[petitioner’s] criminal history was run “an hour or so after the first interview,”
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and upon seeing the [petitioner’s] criminal history, he discovered that the
[petitioner] had been found not guilty in a previous homicide case by reason
of insanity.
State v. Drew David Kirkman, No. E2006-01152-CCA-R3-CD (Tenn. Crim. App., at
Knoxville, Oct. 10, 2007). As a result of these actions, the petitioner was convicted by a
Bradley County jury of two counts of first degree premeditated murder, two counts of felony
murder, and two counts of aggravated robbery. Following merger of the premeditated and
felony murder convictions, the petitioner was sentenced to an effective sentence of life in
prison plus twenty years. The petitioner filed a direct appeal to this court. One issue raised
on appeal was the denial of the motion to suppress various statements made by the petitioner.
Id. This court concluded that the trial court erred in denying the motion to suppress the
petitioner’s first statement based upon an illegal arrest. This court also concluded that the
petitioner’s shoes were illegally seized and, thus, improperly admitted at trial. However, this
court found that the petitioner’s second statement, in which incriminated himself, was validly
admitted because there were sufficient intervening circumstances to purge the taint of the
illegal arrest. Id. Finding that the improper admissions constituted harmless error, this court
affirmed the convictions. Id.
Thereafter, the petitioner filed a timely pro se petition for post-conviction relief
alleging, among other grounds, ineffective assistance of counsel. Following the appointment
of counsel, an amended petition was filed. A hearing was subsequently held, at which trial
counsel, a friend of the petitioner, the petitioner, and two doctors offered testimony. Trial
counsel was the first witness called and testified that he was appointed to represent the
petitioner in this case following the preliminary hearing and continued to represent him
through the appellate phase. He testified that he met with the petitioner approximately four
or five times at the jail, as well as during court proceedings. Trial counsel stated that he
spent “an inordinate amount of time” working on the case, talking to witnesses, meeting with
people, and investigating. Trial counsel acknowledged that he did not have that many
meetings with the petitioner, but he stated that he felt it was more than an adequate amount
of time to prepare for the case and, further, that his time was better spent investigating. In
the meetings which did occur with the petitioner, trial counsel testified that they discussed
the charges, sentencing ranges, trial strategy, and relevant defenses.
Early in his representation of the petitioner, trial counsel learned that the petitioner
had been charged, as a juvenile, with the murder of his father. He also learned that the
petitioner had been found not guilty of the crime by reason of insanity. Trial counsel testified
that he investigated this earlier case to see if it provided any possible information which
could aid in the instant defense. He indicated that he contacted Dr. Kathleen Heide, who had
assisted in the petitioner’s earlier defense in Florida, two to three times and read a book
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which she had written about the petitioner. Although he did request the records from Dr.
Heide, trial counsel testified that she did not perform an evaluation of the petitioner in this
case.
However, in order to further explore the possibility of an insanity defense in this case,
trial counsel testified that he requested, and was granted, funds to have a mental evaluation
of the petitioner conducted. He contacted Dr. Diana McCoy to conduct the evaluation, and
she furnished him with a report, which indicated that insanity was not a viable defense in the
instant case. Following that information, trial counsel felt the only viable defense to pursue,
based upon the facts of circumstances of the case, was that the murders had not been
premeditated but rather “a disagreement gone bad.”
Trial counsel also testified regarding the motion to suppress which he filed in the case.
He stated that he felt very strongly that there were irregularities in the arrest of the petitioner
and raised this issue in the motion. He also included a motion to suppress all evidence based
upon the way the petitioner was treated in the General Sessions Court. However, the trial
court denied the motion. On appeal, trial counsel testified that he again vigorously argued
for suppression. This court, while finding that certain aspects were improper, found any
improprieties to be harmless error.
With regard to co-defendant Jeffery Cross, trial counsel testified that he tried very
hard to locate Mr. Cross in order to conduct an interview with him prior to the trial.
However, Mr. Cross could not be located in spite of all the efforts exerted. Trial counsel also
testified that he did not call some witnesses which he had conducted interviews with to
testify, either because they would not support the petitioner’s defense or because they would
not have made good witnesses in his opinion. Trial counsel specifically testified that he did
not call the petitioner’s mother to testify because he did not believe that she would make a
good witness and because she could possibly implicate herself in the check-kiting scheme.
According to trial counsel, this was decision was made after discussion with the petitioner.
The next witness called was Jeffrey Cross, who was currently incarcerated in a
separate matter. At the time of the murders, Cross related that he was interviewed by the
police and gave a statement. He further testified that he did not speak with trial counsel
because he knew that the State wanted him to testify against the petitioner and he did not
want to do so. As a result, he left the area and went to Orlando in order to avoid the
subpoena.
Dr. McCoy, a clinical psychologist, was then called to the stand. She indicated that
she had been contacted by trial counsel to conduct an evaluation of the petitioner. She stated
that trial counsel gave her the background information, including his prior acquittal based
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upon insanity. Dr. McCoy indicated, however, that she was not sure that she ever received
all of the petitioner’s medical records. Following her evaluation of the petitioner, she
concluded that the petitioner did not have a psychological defense in this case. The main
reason for her conclusion was that she had difficulty reconciling what the petitioner told her
had happened at the crime scene with his second statement to police. Dr. McCoy indicated
that she did not anticipate testifying at trial because she did not have an opinion favorable to
the petitioner and because she had issues with his credibility. As a result, Dr. McCoy sent
all of her records back to trial counsel. Thereafter, in what she believed was the middle of
trial, trial counsel called her and asked her to come testify the following day. Dr. McCoy was
unavailable to do so. While testifying, she reiterated her opinion that the petitioner did not
have a defense based upon insanity.
Dr. Heide, a professor and a licensed mental health counselor, also testified at the
hearing. She indicated that she first met the petitioner in 1987 after he was charged with
killing his father. He was referred to her because she specialized in dealing with juveniles
who had killed their parents. Based upon her evaluation and findings, as well as those of
other experts, the petitioner was found not guilty by reason of temporary insanity. During
this evaluation of the petitioner, Dr. Heide identified a certain family dynamic in the
petitioner’s family. She detailed a history of verbal and physical abuse directed towards both
the petitioner and his mother. Dr. Heide also indicated that the petitioner’s mother had come
to essentially look to the petitioner for protection and emotional support, a relationship more
typically fulfilled by a spouse.
After learning of the petitioner’s instant crimes, Dr. Heide was contacted by trial
counsel and eventually received a release allowing her to share her records with Dr. McCoy.
She testified that she had no other contact with trial counsel despite her offer to evaluate the
petitioner on a pro bono basis. However, after the petitioner’s conviction, Dr. Heide met
with him on two occasions. Based upon the petitioner’s statement that the victims in this
case had involved his mother in the check-kiting scheme, Dr. Heide testified to possible
parallels to the Florida case, specifically that the petitioner’s actions were based, at least in
part, on a desire to protect his mother. However, Dr. Heide conceded that she had not been
afforded access to all the pertinent records in this case, so her conclusions were based strictly
upon her prior knowledge and the petitioner’s comments. She maintained that there was a
provocation aspect to this case which was not fully explored.
The final witness called was the petitioner himself. He indicated that he only met with
trial counsel five times and that trial counsel did not adequately discuss the case with him.
The petitioner stated that he believed that trial counsel should have contacted Dr. Heide to
perform an evaluation, as well as other professionals with whom he had sought counseling.
He indicated that Dr. Heide would have presented “the mental state and the mind frame that
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could have been looked at at the time, due to the, you know, the, the provocation of the
[victims] . . . .” He also faulted trial counsel for failing to sufficiently raise the issue that the
petitioner had been diagnosed and suffered from post-traumatic stress disorder. The
petitioner also indicated that, in his opinion, trial counsel had never made an attempt to locate
witnesses, particularly Jeffrey Cross, or other exculpatory evidence.
According to the petitioner, he believed until the day of trial that they would be
proceeding with an insanity defense. He stated that this should make clear that trial counsel
did not fully inform him or discuss trial strategies during the representation. The petitioner
also complained regarding trial counsel’s handling of the motion to suppress. He specifically
faulted trial counsel for failing to raise the issue of the latex gloves containing the co-
defendant’s DNA and that the motion should have been heard prior to the day before trial to
give the court more time to consider the issues raised.
The petitioner also complained about two jurors which were included on the panel.
The first, Marcella Romine, worked with the petitioner and was aware of his involvement in
a check-kiting scheme at United Knitting. Ms. Romine did indicate during voir dire that she
was familiar with the petitioner. According to the petitioner, when he informed trial counsel
of this, trial counsel told him, “Let’s see how it plays out.” The petitioner also testified that
he felt he was also prejudiced by the presence of Juror Duggan, who indicated that he had
some knowledge of previous events concerning the petitioner. The petitioner felt that trial
counsel should have at least filed a motion to change venue in order to have more of a
selection of jurors who had not heard of his case or were familiar with the parties. The
petitioner also testified that trial counsel should have hired a drug expert because he was
under the influence when he was questioned by the police. Finally, he indicated that trial
counsel should have brought up the issue of his mother’s involvement in the check-kiting
scheme as a possible ground to support provocation.
After hearing the evidence presented, the post-conviction court determined that the
petitioner had failed to establish his entitlement to relief and denied the petition. This appeal
followed.
Analysis
On appeal, the petitioner contends that the trial court erred in denying his petition for
relief because he was denied his right to the effective assistance of counsel. The burden in
a post-conviction proceeding is on the petitioner to prove the factual allegations to support
his grounds for relief by clear and convincing evidence. T.C.A. § 40-30-110(f) (2010); see
also Dellinger v. State, 279 S.W.3d 282, 293-94 (Tenn. 2009). If the petitioner proves his
grounds by clear and convincing evidence, the trial court must then determine whether trial
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counsel was ineffective according to Strickland v. Washington, 466 U.S. 668, 687 (1984);
Dellinger, 279 S.W.3d at 293-94. On appeal, this court is bound by the post-conviction
court’s findings of fact unless it concludes that the evidence in the record preponderates
against those findings. Fields v. State, 40 S.W.3d 450, 456 (Tenn. 2001). Because they
relate to mixed questions of law and fact, this court must review the post-conviction court’s
conclusions as to whether counsel’s performance was deficient and whether that deficiency
was prejudicial under a de novo standard with no presumption of correctness. Id. at 458.
Under the Sixth Amendment to the United States Constitution, when a claim of
ineffective assistance of counsel is made, the burden is on the petitioner to show: (1) that
counsel’s performance was deficient; and (2) that the deficiency was prejudicial. Strickland,
466 U.S. at 687. Failure to satisfy either prong results in the denial of relief. Id. at 697. In
other words, a showing that counsel’s performance falls below a reasonable standard is not
enough; rather, the petitioner must also show “that there is a reasonable probability that, but
for” the substandard performance, “the result of the proceeding would have been different.”
Id. at 694. “A reasonable probability is a probability sufficient to undermine confidence in
the outcome.” Id. The Strickland standard has been applied to the right to counsel under
article I, section 9 of the Tennessee Constitution. State v. Melson, 772 S.W.2d 417, 419 n.2
(Tenn. 1989).
In determining whether trial counsel’s performance was deficient, this court has held
that a “petitioner is not entitled to the benefit of hindsight, may not second-guess a
reasonably based trial strategy by his counsel, and cannot criticize a sound, but unsuccessful,
tactical decision made during the course of the proceedings.” Adkins v. State, 911 S.W.2d
334, 347 (Tenn. Crim. App. 1994). “[D]eference 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).
On appeal, the petitioner contends that he was “consistently denied effective
assistance of counsel,” stating that the denial “plagued the original proceedings,” and arguing
that the record “paints a picture of inadequate preparation . . . and ineffective communication
between counsel and client.” The petitioner bases his claim on trial counsel’s failure to meet
with him enough to sufficiently discuss the case and develop trial strategy, failure to argue
the motion to suppress before one day prior to the trial thereby depriving the trial court of
adequate time to consider the motion, and failing to strike or challenge two jurors who knew
the petitioner or were familiar with the facts of the case. While raising these alleged
deficiencies, the petitioner’s main contention appears to be that trial counsel failed to
adequately prepare and present a defense based upon the petitioner’s mental condition at the
times the crimes were committed. He acknowledges that trial counsel attempted to explore
this option, but contends that he went about it “in a disorganized and ineffective manner.”
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The petitioner finds fault with the timing of hiring Dr. McCoy and the failure to utilize the
services of Dr. Heide, as well as other health service professionals whom the petitioner had
met with over the years.
In its written order denying relief, the post-conviction court made the following
findings:
The petitioner complains, among other things, that his trial counsel did
not call one Jeff Cross as a witness, that he did not challenge one of the jurors,
that he did not adequately discuss the case with him or involve him in planning
strategy of the trial, and, more significantly, that he did not present an insanity
defense for him at trial.
Trial counsel testified that Jeff Cross was an early suspect as a potential
codefendant to the murder, and that he had made every effort to locate him and
use him as a witness at trial. Counsel further testified that Cross simply could
not be found to be served a subpoena as a potential witness at trial.
While he was unable to be served a subpoena to testify at the original
trial, Jeff Cross was available and testified at the Post Conviction hearing in
this cause. His testimony revealed that he was, at the time of his testimony in
this hearing, back in custody in the Bradley County jail.
Cross also testified that, when these killings occurred, he was on parole,
and that he fled to Florida, where he remained until picked up and extradited
to Tennessee. He specifically testified that he left Tennessee so he wouldn’t
have to testify in the original trial.
His testimony revealed that he knew both [the petitioner] and his
codefendant . . . prior to these killings, and that they had both discussed the
possibility of going to the apartment of the deceased victims and killing them.
Cross also said that he had on an earlier occasion actually talked [the
petitioner] out of going to the apartment and killing the victims.
Trial counsel was in no way deficient in his representation of petitioner
by not using Cross as a witness. Cross was unavailable and his unavailability
at the trial in this cause was of his own choosing. The court also finds that the
testimony of Cross would not only not have been helpful but also that his
testimony would have been detrimental to any defense proposed by petitioner
at trial.
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This issue is without merit and presents no ground on which post
conviction relief can be granted.
Petitioner further complains that trial counsel did not challenge one of
the jurors who remained on the case. Trial counsel testified that he did not
remember the particular juror involved. Petitioner, however, failed to put on
any proof that this in any way affected the verdict of the jury. Again, proof
that the defendant was involved in the killing of the two victims was
overwhelming, and, absent any showing that the failure to exercise a
preemptory challenge for the particular juror in question in any way affected
the jury verdict, this issue is without merit and presents no grounds on which
post conviction relief can be granted.
Petitioner further complains that trial counsel did not adequately discuss
the case with him or involve him in planning strategy of the trial of that case.
Counsel testified that he met with petitioner on several occasions. Counsel
further testified that he had tried many criminal cases for his career and had
found that, while meeting with a defendant for hours on end might make a
defendant feel better, it often does nothing but take away valuable time to
prepare for the case.
This issue is without merit and presents no grounds on which post
conviction relief can be granted.
Petitioner further alleges that trial counsel was deficient in that he did
not present an insanity defense for him at trial. The proof, however, is that
Hiwassee Mental Health Center found, after an evaluation, that an insanity
defense could not be supported.
Trial counsel further retained the services of Dr. Dian[a] McCoy for
further mental examination of the [petitioner]. Her opinion concurred with the
earlier opinion of Hiwassee Mental Health Center, and she did not feel that an
insanity defense could be supported.
It goes without saying that any insanity defense must concede that the
crime occurred, but that the defendant, because of his mental condition, did not
appreciate the seriousness of the crime or could not, because of mental
reasons, form the requisite culpable mental state. Trial counsel testified that,
because of these reports, he did not think that an insanity defense would work
in this case and further thought that the risk he would run in trying to use such
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a defense was not worth the risk in giving up the other available defenses.
....
This issue is without merit and presents no grounds on which post
conviction relief can be granted.
There was no evidence to show that counsel was in any way ineffective
in his defense of the petitioner. All claims for Post Conviction Relief set forth
in his petition pertaining to this issue are hereby dismissed.
Following review of the record, we conclude nothing preponderates against the
findings of the post-conviction court. With regard to the number of meetings and discussion
of the case, trial counsel, an experienced lawyer, testified that he believed he had met with
and discussed the case sufficiently with the petitioner. He further stated that, although it
might have made the petitioner feel better, any additional meetings might in fact have
hampered his preparation of the defense. The only evidence presented by the petitioner in
regard to this allegation was his own testimony that he felt more meetings and discussions
would have changed the outcome of the trial. Based upon its findings, the post-conviction
court clearly accredited trial counsel’s testimony. On appeal, it is not the province of this
court to re-evaluate credibility determinations made. Black v. State, 794 S.W.2d 752, 755
(Tenn. Crim. App. 1990).
With regard to the two jurors who remained on the panel during trial, the post-
conviction court also correctly ruled that the petitioner had simply failed to put forth any
proof with regard to how their knowledge affected the verdict. While the petitioner did
testify that he had a negative relationship with the co-employee, nothing else in the record
substantiates this claim. The only evidence admitted by the petitioner in this regard
establishes that they were co-workers at the time of the murders. That relationship or the
second juror’s “prior knowledge” of a separate incident does not in and of itself establish that
the verdict was affected. The petitioner asks this court to employ supposition and grant relief
on what “could” have affected the verdict. The petitioner failed to produce any witness at
the post-conviction hearing who offered concrete testimony on how these factors weighed
in reaching the verdict. As such, he has failed to meet his burden of entitlement to relief.
See Id. at 757.
For the same reason, the petitioner’s claim regarding the timing of the motion to
suppress hearing must fail. Nothing in the record establishes that if the hearing had been
earlier, the decision of the trial court would have been different. The issues raised in the
motion to suppress were litigated at motion hearing and also heard on appeal to this court,
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who concluded no reversible error existed. The petitioner has failed to carry his burden in
this aspect.
Lastly, with regard to the failure to pursue a possible mental defense more extensively,
we also conclude that nothing preponderates against the post-conviction court’s finding. It
is clear that trial counsel was aware of the petitioner’s prior history with regard to the finding
of not guilty by reason of insanity. Indeed, trial counsel testified that he considered that a
possible alternative for the petitioner at trial and pursued research into that defense. He had
the petitioner evaluated and then, further, engaged the services of a qualified psychologist
to evaluate the petitioner as well. Dr. McCoy had issues with the petitioner’s credibility
about certain facts and found nothing helpful with regards to this type of mental defense.
When Dr. McCoy performed this evaluation she was also aware of the petitioner’s prior
history and had spoken with Dr. Heide.
Dr. Heide acknowledged that she had no opinion as to the petitioner’s mental state at
the time of the murders. Any interviews or evaluations she conducted in this case were after
the petitioner had been convicted. Moreover, she acknowledged she was given no records
in the case and her conclusions were strictly based upon information received directly from
the petitioner. While she expressed her opinion that her information could have affected the
jury’s verdict with regard to the provocation issue because of the petitioner’s history of
abuse, that it not sufficient to establish either deficiency or prejudice. Trial counsel made a
strategic decision not to utilize the services of Dr. Heide and cannot be faulted for that
decision. While, in retrospect, her testimony might have affected the verdict, trial counsel
was in no way deficient for pursuing the strategy he chose after adequate preparation. See
Cooper, 847 S.W.2d at 528. This issue is without merit.
CONCLUSION
Based upon the foregoing, the denial of post-conviction relief is affirmed.
_________________________________
JOHN EVERETT WILLIAMS, JUDGE
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