Lonnie Lee Owens v. State of Tennessee ( 2013 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
July 17, 2012 Session
LONNIE LEE OWENS v. STATE OF TENNESSEE
Appeal from the Circuit Court for Franklin County
No. 15356 Buddy D. Perry, Judge
No. M2011-02188-CCA-R3-PC - Filed April 4, 2013
The Petitioner, Lonnie Lee Owens, appeals the Franklin County Circuit Court’s denial of his
petition for post-conviction relief from his convictions for second degree murder, abuse of
a corpse, and theft over $10,000 and his effective twenty-four-year sentence. On appeal, he
contends that (1) counsel was ineffective by failing to object to an erroneous statement
contained in the presentence report and by failing to include the trial transcript in the
appellate record, (2) counsel was ineffective in cross-examining the medical examiner, (3)
counsel was ineffective by attempting to negotiate a plea agreement in the jury’s presence,
(4) counsel was ineffective by failing to request a jury instruction on lesser included
offenses, (5) counsel was ineffective by failing to interview a witness before the trial, (6)
counsel was ineffective by failing to request a change of venue, (7) counsel was ineffective
by failing to file a motion for a new trial and by failing to appeal his conviction, (8) the
cumulative effect of counsel’s errors deprived him of the effective assistance of counsel, and
(9) he is entitled to a delayed appeal. We affirm the judgment of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
J OSEPH M. T IPTON, P.J., delivered the opinion of the court, in which N ORMA M CG EE O GLE
and D. K ELLY T HOMAS, J R., JJ., joined.
M. Keith Davis, Dunlap, Tennessee, for the appellant, Lonnie Lee Owens.
Robert E. Cooper, Jr., Attorney General and Reporter; Clark B. Thornton, Assistant Attorney
General; James Michael Taylor, District Attorney General; and Steven M. Blount, Assistant
District Attorney General, for the appellee, State of Tennessee.
OPINION
Although the Petitioner did not appeal his conviction, he sought appellate relief from
his sentence, but the trial transcript was not included in the appellate record. This court
summarized the facts of the case based on the sentencing hearing transcript and presentence
report. The court stated:
The Defendant killed his estranged wife, Heather Owens, in May 2003 when
she came to his house to pick up their two young children. The Defendant
struck the victim and then bound her with duct tape. The Defendant wrapped
duct tape over the victim’s mouth and nose, such that she suffocated to death.
The couple’s children were in the house at the time of the homicide. The
Defendant subsequently buried the victim’s body and disposed of her pick-up
truck. The Defendant’s girlfriend assisted in the disposal of the victim’s truck.
State v. Lonnie Lee Owens, No. M2005-00362-CCA-R3-CD, slip op. at 1-2 (Tenn. Crim.
App. Oct. 18, 2005).
At the post-conviction hearing, the Petitioner testified that trial counsel did not file
a motion for a new trial, that counsel knew the motion was required before he could appeal
his convictions, and that he did not know counsel did not file the motion. He denied signing
a waiver of his right to appeal his convictions and said he wanted to appeal his second degree
murder conviction. He said that counsel did not file a petition for a writ of error coram nobis
and that he learned of the writ when he began conducting his own legal research. He said
that he wrote letters to counsel after he was convicted but that he did not make any
statements that might have led counsel to believe he did not want to appeal his conviction.
He said he did not know counsel failed to prepare a trial transcript until he received this
court’s opinion. He said he received a copy of the opinion from counsel several months after
it was filed.
The Petitioner testified that he received a copy of the appellate brief filed by trial
counsel and that he was “shocked” counsel did not appeal his conviction. He said he wrote
numerous letters to counsel but did not know the extent to which he discussed counsel’s
failure to appeal his convictions. With regard to counsel’s opening statement during the trial,
the Petitioner stated that he objected to counsel’s pleading for the jury to convict him of
voluntary manslaughter. He denied knowing counsel was going to ask the jury to convict
him of manslaughter and said he thought the theory was self defense. He denied signing a
waiver to exclude certain trial strategies. He stated that his meetings with trial counsel lasted
approximately ten to fifteen minutes and that two or three months elapsed between meetings.
He said strategy was never discussed during those meetings. He said counsel only told him
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that he would be “convicted of something.” He understood that the theory was self defense.
The Petitioner testified that after he was convicted, he learned that Dr. Charles Harlan,
the medical examiner who performed the victim’s autopsy, was permanently prohibited from
practicing medicine on May 4, 2005. A copy of the order revoking Dr. Harlan’s medical
license was received as an exhibit. The order shows numerous instances of inadequate
medical examinations and documentation and erroneous medical findings by Dr. Harlan. The
order also shows erratic and unprofessional conduct by Dr. Harlan. The Petitioner said he
learned this information on his own, not through counsel. The Petitioner identified a letter
he wrote to counsel stamped filed May 12, 2005. He said that in his letter he asked counsel
if he planned to raise Dr. Harlan’s losing his license on appeal. The letter identified the
article discussing Dr. Harlan.
The Petitioner testified that before the trial, he became concerned about his receiving
a fair and impartial jury in Franklin County and that he discussed this with trial counsel. He
said that he was told counsel was going to file a motion for a change of venue but that
counsel never filed it. He said many of the jurors had previous knowledge about his case,
knew the police officers involved, and discussed the case with those officers.
The Petitioner testified that he chose to testify at the trial and that he attempted to
cooperate with trial counsel in preparing for the trial. He said he and counsel discussed the
victim’s affairs and the threats and extortion demands he received from her family, but
counsel did not mention these points at the trial. The Petitioner identified letters he wrote
to counsel, which stated that his pastor could testify that the Petitioner took a Smith &
Wesson .357 home for protection because he received threats after hiring a private
investigator. Another letter stated that his pastor could testify that the Petitioner parked
behind his church to prevent trouble with the victim and Don and Sandy Griffin.
The Petitioner testified that Barry Rhoads,1 the Petitioner’s pastor, testified at the trial
and that trial counsel did not ask Mr. Rhoads about the threats and extortion demands the
Petitioner received from multiple people who were members at his church. He said Mr.
Rhoads knew about the victim’s affairs. He said that the victim and Sheriff’s Deputy George
Dyer pointed a gun at him and told him to forget about the victim, their house, and their
children. He said that they told him to leave the area and that he would begin to have legal
troubles if he did not leave. He denied knowing the victim obtained an order of protection
until church members told him about the order and denied ever being served. He denied
knowing his marriage was in trouble. He said the victim and Deputy Dyer were distant
1
We note that the witness’s name is spelled “Rhodes” in the post-conviction hearing transcript and
“Rhoads” in the trial transcript. We use the spelling the witness gave in his trial testimony.
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cousins by marriage. He said he filed for divorce and was served with an order of protection
by Deputy Dyer. He said the victim displayed “erratic behavior” and had an affair with
Sheriff’s Deputy Brian Brewer. He said that he told counsel about these events before the
trial but that they were not discussed at the trial.
The Petitioner testified that he stopped attending his church because of threats from
the victim and her family and that he began attending Mr. Rhoads’s church. He said the
victim and her family told him to stop attending Mr. Rhoads’s church, too, because they did
not like Mr. Rhoads. He said he parked his car behind Mr. Rhoads’s church to avoid
problems with the victim and her family.
The Petitioner testified that the night of the victim’s death, he was inside his home
with his children, that someone approached him from behind, that the person said, “F--- you,”
and that he reacted by “throwing a punch without realizing” it was the victim. He said that
after one year of the tension, he was under duress and feared for his and his children’s safety.
He said he told trial counsel his version of events. He understood his actions were self
defense. He agreed that he testified at the trial that he checked for a pulse but that the victim
was dead. He said he did not call 9-1-1 because he knew about the victim’s and her family’s
connections with the police and feared getting “a raw deal” and what would happen to his
children. He said he knew the victim’s family would attempt to obtain custody of his
children.
The Petitioner identified letters he wrote trial counsel identifying potential witnesses.
He said none of these potential witnesses testified at the trial, and he did not know if counsel
interviewed them. He denied counsel’s informing him of the potential witnesses they
interviewed and denied counsel gave him a copy of the State’s discovery package. He did
not know if the State made counsel aware of any problems with Dr. Harlan.
The Petitioner testified that the presentence report stated that Dr. Harlan concluded
that there were traces of duct tape in the victim’s lungs and that the Petitioner did not know
of any evidence supporting Dr. Harlan’s conclusion. He said his attorney did not object to
the conclusion being in the presentence report.
On cross-examination, the Petitioner identified a letter dated February 5, 2005, from
trial counsel to the circuit court clerk stating that a motion for a new trial would not be filed
and that the sentence was the only issue to be appealed. He agreed the letter showed that a
copy was sent to the Petitioner but said he never received the letter. He said he believed the
letter was intentionally withheld, although he did not know if it was withheld by counsel or
by the correctional officers.
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The Petitioner testified that he did not meet with trial counsel after he was sentenced
and that he wanted counsel to appeal his conviction and sentence. He denied his twenty-
four-year sentence was a “pretty good” outcome. He admitted that he met with counsel at
his home to prepare his trial testimony briefly and that he met with counsel to discuss trial
strategy. He denied, though, that counsel told him there would be an admission to
manslaughter and said that he thought the strategy was self defense.
The Petitioner testified that during his trial testimony, he discussed the contested
divorce and his and the victim’s problems. He said he did not know the victim was in his
house when he punched her. He denied knowing that counsel knew about Dr. Harlan’s
issues with the state medical board. He recalled counsel’s cross-examining Dr. Harlan about
his conclusion that the victim died as a result of suffocation and the lack of petechial
hemorrhaging. He said that many subjects, though, were not covered during cross-
examination, including the medical board’s investigation.
The Petitioner testified that he was present for jury selection and that the trial court
asked the potential jurors questions about their prior knowledge of the Petitioner’s case.
Although he recalled potential jurors who said they knew about the Petitioner’s case, he
could not recall whether any of those potential jurors were on the panel. He recalled that
potential jurors who stated they could not be impartial and had already reached a conclusion
about the Petitioner’s guilt were excused from service.
The Petitioner testified that the victim had an affair but denied that he had an affair.
He said he began dating someone after he filed for divorce. He said that Mr. Rhoads’s
testimony was “jumbled up and mixed up and was not brought out accurately.” He said
counsel should have been prepared and talked to Mr. Rhoads before the trial. He said that
the manner in which counsel asked Mr. Rhoads questions misrepresented the facts, but he
agreed Mr. Rhoads testified truthfully.
The Petitioner testified that the victim and her family attempted to control and
manipulate him. He acknowledged his trial testimony that he did not call 9-1-1 because he
panicked. He said he did not testify that he feared he would get “a raw deal” because he
feared retaliation from Deputies Dyer and Brewer and the victim’s family. He denied lying
during his trial testimony and said he withheld some of the facts.
The Petitioner testified that the potential witnesses he provided trial counsel would
have been character and fact witnesses and that he only provided general information. A list
of questions the Petitioner prepared for each of the twenty-four people he wanted counsel to
call as witnesses was received as an exhibit.
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The Petitioner testified that the trial court did not mention the particles found in the
victim’s lungs during the sentencing hearing and agreed that this court affirmed his sentence
on grounds unrelated to the particles in the victim’s lungs. He agreed this court concluded
that the Defendant bound the victim’s hands and feet and covered her face with duct tape.
He said, though, that without the trial transcript, this court only had the “misguidance of the
contradicting reports.” He agreed he bound the victim’s hands and feet with duct tape and
bound her face “all the way up her forehead.” He agreed the children were in the home
sleeping when the victim was killed. He agreed he testified that he buried the victim’s body
in a shallow grave on an island in the Tims Ford Lake area and that he later had sex with his
girlfriend. He said his girlfriend clarified at the trial that they did not have sex later that
night. He could not recall if information about the duct tape particles inside the victim’s
lungs was presented at the trial. He said, though, that this court noted the discrepancies
between the presentence report and the autopsy reports.
On redirect examination, the Petitioner testified that he and the victim did not live
together at the time of the victim’s death and that they had been separated for almost one
year. He said that although he and the victim agreed that they would not enter each other’s
home, the victim and her mother violated that agreement several times. He said he
understood that this court enhanced his sentence based upon a finding that the victim was
treated with exceptional cruelty. He agreed this court concluded that the victim struggled to
breathe, suffocated to death, and suffered while she fought to survive and that the victim’s
death was the result of the method he used to kill the victim. He said that Dr. Harlan did not
testify that the victim struggled and agreed that Dr. Harlan gave no opinion with regard to
whether the victim was conscious. He noted that the victim suffered serious injuries from
a car accident, including a broken leg, before she died and that Dr. Harlan did not mention
those previous injuries.
Barry Rhoads testified that he was a bi-vocational pastor and an engineer, that he
ministered to the Petitioner and the victim, and that he testified at the trial on the Petitioner’s
behalf. He said trial counsel did not interview him before the trial. He said he spoke to the
Petitioner as his pastor twice between the time the victim disappeared and the time her body
was found. He said that during those conversations, the Petitioner told him about the threats
he received and that he listened to one threat that was recorded on the Petitioner’s answering
machine. He said it was a male voice telling the Petitioner to “stop this, stop that, and if he
didn’t there was going to be consequences.” He said it was not a friendly message and
considered it to be a threat. He said the Petitioner told him there had been other messages,
too. He said the Petitioner told him that he was followed on at least two occasions, that
someone damaged his home, and that someone broke into his home through the back door.
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Mr. Rhoads testified that before the victim’s death, the Petitioner brought his guns to
Mr. Rhoads’s home for safekeeping. He said the Petitioner feared that the victim would take
and sell the guns. He said that before the victim’s death, the Petitioner requested one of the
handguns because the Petitioner feared for his life. He recalled the Petitioner’s parking
behind the church and said the Petitioner told him that he parked there to prevent the victim’s
seeing him and “causing a scene.” He recalled the Petitioner’s telling him about the
Petitioner’s tires being slashed before the victim’s death. He said the Petitioner believed it
was an act of vandalism because it was on the sidewall of the tire and looked like a knife or
a sharp objected was used to puncture the tire. He said counsel did not ask about these
events.
Mr. Rhoads testified that the Petitioner’s trial was a “hot topic of conversation” in
Franklin County and that he was concerned whether the Petitioner could receive a fair trial.
He agreed the victim’s parents were well known.
On cross-examination, Mr. Rhoads testified that counsel told him they wanted to call
him as a witness at the trial but that counsel did not discuss pastoral privileges with him. He
said that he testified truthfully at the Petitioner’s trial and that the information he knew came
from the Petitioner. He said he knew the victim and her family through the church
community. He said they were well known outside the church community.
Trial counsel testified that he had practiced law for about thirty years and had handled
several criminal appeals. He said he did not find in his case file any documentation showing
that the Petitioner waived his right to appeal his conviction and did not recall receiving a
waiver from the Petitioner. He said co-counsel was a former member of his law firm and no
longer practiced law with him. He said that he and co-counsel divided the work in preparing
for the trial and that they each had their respective responsibilities. He said they worked
together on the case. He said co-counsel took responsibility for the sentencing hearing and
the appeal.
Trial counsel testified that he did not have a copy of the trial transcript in his case file
and that he did not think he ever received a copy. He said that he thought he and co-counsel
believed it was in the Petitioner’s best interest not to include the trial transcript in the
appellate record. With regard to the presentence report, counsel recalled that the report
included a statement that Dr. Harlan found traces of duct tape in the victim’s lungs and that
he did not recall if that was the first mention of traces of duct tape being found there. He
agreed no objections were made to the statement.
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Trial counsel testified that the Petitioner was actively involved in his defense and that
he provided names of witnesses to testify at the trial on his behalf. He said he, co-counsel,
and co-counsel’s assistant interviewed everyone on the list who “had anything positive” that
might have helped the case. He said he did not recall speaking with any of the pastors
included in the list and did not find any memorandum in the case file showing he talked to
them. He said that if someone provided relevant information, a memorandum would have
been prepared for the file and that a memorandum might not have been prepared if someone
did not have relevant information.
Trial counsel identified a letter from the Petitioner about Mr. Rhoads’s testifying at
the trial and said that he and co-counsel reviewed the Petitioner’s letters. He recalled a
discussion about the Petitioner’s receiving threats before the victim disappeared and said he
and co-counsel reviewed the Petitioner’s divorce file with his divorce attorney and used the
relevant information. He said that self defense was “not really consistent” with the facts of
how the Petitioner said the killing occurred. He said the Petitioner stated that
somebody came up behind him in his house. He knew that his wife was
coming, because she had called him, and said she was coming by the house,
and he knew she was coming. Someone came in the house. He turned around
and hit this person multiple times, knocking them out, then realized it was [the
victim]. . . .
He said the Petitioner thought the victim was dead and “for some reason” placed duct tape
around her face, nose, and mouth, and hid the body in the shed. He agreed that if the jury
believed those facts, it might have convicted the Petitioner of reckless or negligent homicide.
He said, though, the problem was the Defendant’s placing duct tape on the victim after she
was dead, which prevented arguing self defense or negligent homicide.
Trial counsel testified that co-counsel interviewed Dr. Harlan before the trial. He
identified co-counsel’s notes from the interview. He agreed co-counsel’s notes stated that
Dr. Harlan said less than ten of the 20,000 autopsies he had performed involved the use of
duct tape and that the victim was already dead in “most of those cases.” He agreed that the
notes stated that Dr. Harlan “seem[ed] to suggest that the [d]uct tape [was] the only evidence
of . . . asphyxiation.” Counsel did not recall if Dr. Harlan was asked whether the victims in
the ten cases involving duct tape were dead before or after the tape was applied. He did not
recall if Dr. Harlan testified that he did not find any petechial hemorrhaging in the lungs,
eyes, neck, and face.
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Trial counsel testified that the Petitioner’s case was well publicized and that he did
not recall discussing a change of venue with the Petitioner. He did not recall the prospective
jurors stating that they were familiar with the Petitioner’s case and said a jury was picked
from the people called for jury duty. He agreed the trial transcript showed that a discussion
was held about “virtually every juror [who] . . . raised their hands that they’d had some
exposure” to the Petitioner’s case. He denied being concerned about the Petitioner’s ability
to receive a fair trial in Franklin County. He did not recall that one of the jurors said he heard
the case involved a “heinous crime.” He recalled one juror was the victim’s co-worker and
said counsel had a previous connection with the juror, although he could not recall how he
knew the juror. He said he and co-counsel were “comfortable” with the jury.
Trial counsel testified that he knew Dr. Harlan was no longer the medical examiner
and that he had been disciplined by the medical board. He said co-counsel learned of Dr.
Harlan’s problems before the trial and recalled discussing “articles . . . about some problems
. . . or allegations.” He said that he understood there were allegations against Dr. Harlan but
that the medical board had not made a final determination. He agreed that it would be
“beneficial to impeach witnesses who have previously been adjudicated to have made false
statements, false representations, and engaged in conduct constituting fraud and deceit.” He
said, though, that co-counsel believed Dr. Harlan would provide some beneficial testimony
and that Dr. Harlan provided beneficial information. He said that impeaching a witness who
gave favorable information was a judgment call. He agreed the sole medical expert was Dr.
Harlan. He said co-counsel talked to Dr. Harlan more than once before the trial.
On cross-examination, trial counsel testified that he participated in many meetings
with the Petitioner. He said that during opening statements, co-counsel told the jury that the
Petitioner was guilty of manslaughter, that the statement was part of their strategy, and that
he and co-counsel discussed with other attorneys in their firm whether to make such a
statement. He said the discussions occurred long before the trial. He agreed the strategy was
successfully used by another member in their firm. He said that the strategy was discussed
with the Petitioner and that the Petitioner agreed with it. He said asking the jury for a
manslaughter conviction was consistent with the Petitioner’s disposing and burying the
victim’s body in a remote location.
Trial counsel testified that although co-counsel worked on the appeal, he and co-
counsel discussed what might be appealed. He said they agreed that the best opportunity for
appellate relief was to appeal the sentence. He agreed this court reversed the trial court’s
ordering consecutive sentences and ordered concurrent sentences. He said the Petitioner’s
sentence was reduced from thirty to twenty-four years.
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Trial counsel testified that there were no communication problems with the Petitioner.
With regard to the list of witnesses the Petitioner provided counsel before the trial, counsel
said that his office investigated the witnesses but that none of the witnesses knew anything
about the victim’s murder. He said that during jury selection he raised the issue of a fair trial
with the trial court because he feared the jurors were familiar with the Petitioner’s case. He
said that he wanted the court to allow individual questioning of the jurors and that the court
granted his request. He said individually questioning jurors was the standard procedure when
pretrial exposure was an issue. He said he had never been successful in arguing for a change
of venue.
Trial counsel testified that he did not think Mr. Rhoads’s testimony conflicted with
the Petitioner’s testimony at the trial. With regard to counsel’s failure to highlight the
problems in the divorce case, he said that he did not want to open the door to the divorce
because there were facts in the divorce file that would have been unfavorable to the
Petitioner.
On redirect examination, trial counsel testified that with regard to self defense, jurors
were instructed to look at the facts from the defendant’s subjective point of view. He
recalled discussing the Petitioner’s belief that he had been threatened. He did not recall the
Petitioner’s telling him about “lamps being trashed” inside his home. He agreed that a
previous threat along with someone, whom he did not know, coming up behind him inside
his home might cause someone to fear imminent bodily injury. He said, though, that based
on the Petitioner’s covering up the victim’s death and the Petitioner’s behavior following the
killing, he believed the jury would have had a difficult time believing the Petitioner acted in
self defense.
Trial counsel testified that before he told the jury the Petitioner was guilty of
manslaughter, he and co-counsel advised the Petitioner of his constitutional right requiring
the State to prove beyond a reasonable doubt each element of manslaughter. He denied that
the Petitioner signed a written waiver. He said he and co-counsel believed that was the
Petitioner’s “best shot” of avoiding a first degree murder conviction.
Trial counsel testified that Mr. Rhoads’s testimony about how the killing occurred was
different from the Petitioner’s version. He agreed Mr. Rhoads testified that the Petitioner
said the victim was “suddenly there in his face yelling.” He said he and co-counsel spoke to
Mr. Rhoads “extensively” before the trial. He said that he expected Mr. Rhoads’s testimony
to be more consistent with the Petitioner’s version.
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Trial counsel testified that co-counsel’s license to practice law was suspended. He
denied that co-counsel’s suspension was based on the failure to include the transcripts of the
trial in the appellate record.
On recross-examination, trial counsel testified that people sometimes remembered
things differently. He said he and co-counsel did not want a new trial on appeal because they
did not want the Petitioner to face the possibility of a first degree murder conviction in a
second trial. He believed there was a “substantial likelihood” that the Petitioner would be
convicted of first degree murder during a second trial. He denied that co-counsel appeared
to be under the influence of alcohol or other intoxicants during the trial or appellate process.
On further redirect examination, counsel stated that he thought the Petitioner received the
best possible outcome during the first trial.
Co-counsel testified that he worked on the Petitioner’s appeal, that the Petitioner’s
sentence was the only issue raised on appeal, and that the strategy was discussed with the
Petitioner before the trial and before the deadline to file a motion for a new trial. He said that
all the pretrial issues were settled before the trial, that six objections were made during the
four-day trial, and that he did not find any appellate issues with the trial, jury deliberations,
or verdict. He stated that he and the Petitioner discussed appealing only the sentence and that
the Petitioner did not say he wanted his conviction appealed. He agreed the appeal was
successful in lowering the Petitioner’s sentence by six years. He said he never included a
trial transcript in the appellate record when the sentence was the only issue.
Co-counsel testified that although Dr. Harlan did not testify that particles were found
in the victim’s lungs, the presentence report stated particles were found in her lungs. He said
he should have caught the error. He said that he did a lot of research regarding sentencing
and that his primary focus was having this court reverse the trial court’s ordering consecutive
sentencing.
Co-counsel testified that he discussed with trial counsel and other attorneys in his firm
the strategy to tell the jury the Petitioner was guilty of manslaughter. He said he used the
strategy before when he worked in the Judge Advocate General’s Office in the Navy
Department. He said the State had a “great” case based upon circumstantial evidence and
presented approximately forty witnesses. He said he thought the circumstantial evidence was
going to “bury” the Petitioner. He believed the Petitioner had to testify at the trial to prevent
his being convicted of first degree murder. He said he and trial counsel believed that
admitting to voluntary manslaughter was the only way to prevent a first degree murder
conviction. He said he and the Petitioner discussed the strategy “about twenty-five times”
in the year before the trial. He said the Petitioner never stated that he did not want counsel
to use this strategy. He stated that with regard to the Petitioner’s duct taping the victim’s
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hands, feet, and face, placing the victim’s body in the shed, and later placing the victim’s
body in a boat and burying her on an island, he argued the Petitioner’s “incompetent[]”
behavior showed a lack of premeditation.
Co-counsel testified that before the trial, he knew generally about Dr. Harlan’s
problems with the medical board, although he denied knowing any specifics. He said he and
an associate met with Dr. Harlan three or four months before the trial for about five or six
hours. He said he did not cross-examine Dr. Harlan about his pending prosecution with the
medical board because Dr. Harlan gave counsel exactly what they wanted. He said he spent
much of his cross-examination discrediting Dr. Harlan’s conclusion that the victim
suffocated, including highlighting the lack of petechial hemorrhages. He said Dr. Harlan had
not lost his medical license at the time of the trial.
Co-counsel testified that he did not ask for a change of venue because he did not think
the trial court would grant the request. He said they addressed their concern by individually
questioning potential jurors in an anteroom. He thought that any potential jurors who were
affected by the pretrial publicity were excused from the panel and that they had the jury they
wanted.
Co-counsel testified that he did not ask Mr. Rhoads to testify about the threats the
Petitioner received from the victim’s family months before the killing because he made a
tactical decision that the threats were self-serving evidence and because the evidence was
inadmissible hearsay. He said he thought some evidence of the threats was going to be
presented during the testimony of some of the State’s witnesses. He said that the Petitioner
and Mr. Rhoads were close and that the Petitioner wanted Mr. Rhoads to testify.
Co-counsel testified that self defense was not supported by the facts. He said the
victim only weighed about 105 pounds. He said the Petitioner told him that the victim had
a “bad temper” but denied the Petitioner’s telling him that the victim was “out to get him, or
. . . that he was seriously threatened by it.” He did not recall the Petitioner’s discussing
anything that rose to the level of serious bodily injury or death. He recalled, though, that the
Petitioner thought people entered his home and slashed his tires. He said he spoke to
someone at the sheriff’s department and expressed the Petitioner’s concerns. Co-counsel
stated that he thought the Franklin County Sheriff’s Department did a professional job in the
Petitioner’s case. He said an investigator was hired but did not find evidence that any of the
deputies threatened, extorted, or intimidated the Petitioner.
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Co-counsel testified that he did not file a petition for a writ of error coram nobis when
he learned that Dr. Harlan’s medical license was suspended. He said that Dr. Harlan’s
credibility was not a “serious issue” and that there was no new evidence related to the
victim’s autopsy.
On cross-examination, co-counsel testified that his law license was suspended for
fourteen months because of a substance abuse problem and that he received a censure for his
failure to include the trial transcript in the Petitioner’s appeal. He agreed he pleaded guilty
to theft over $10,000 as a result of misappropriation of law firm money.
Co-counsel testified that he was primarily responsible for the sentencing hearing and
the appeal. He said that he did not object to the statement in the presentence report that duct
tape particles were found in the victim’s lungs. He agreed that Dr. Harlan never made such
a finding in his reports or testimony. He agreed this court concluded in the appeal of the
Petitioner’s sentence that the trial court did not err in finding that the victim was subjected
to cruelty and torture and in enhancing the Petitioner’s sentence. He agreed this court
concluded that the victim tried to continue breathing and suffocated.
Co-counsel testified that he heard rumors about Dr. Harlan’s bizarre behavior before
the trial and denied that he heard Dr. Harlan falsified records. He denied knowing that Dr.
Harlan was accused of not performing a skeletal survey during a 2001 autopsy and said if he
and trial counsel would have known this information, they would have “exploited it” at the
trial. He believed the allegation arose after the trial. He said that he asked Dr. Harlan’s
attorney about the problems with the medical board.
Co-Counsel testified that Dr. Harlan could not testify to a reasonable degree of
medical certainty that the victim struggled before her death. He agreed that Dr. Harlan told
him before the trial that he had performed ten autopsies in which a victim had been duct
taped and that most of the victims were killed before the duct tape was applied. He agreed
he did not cross-examine Dr. Harlan about these statements. He agreed Dr. Harlan testified
that the duct tape was the only evidence of suffocation.
Co-counsel testified that at the trial, he did not ask Mr. Rhoads about the threats
because Mr. Rhoads was the last witness and he thought the evidence was self-serving. He
said the evidence of the threats was admitted through other witnesses. After reviewing the
trial transcript, he agreed that there were two witnesses after Mr. Rhoads, that one of those
witnesses was Carla Zajac, the Petitioner’s sister, and that she testified about the threats. He
denied that a jury might credit the testimony of the Petitioner’s sister over that of a pastor.
He agreed the Petitioner’s letters stated that Mr. Rhoads could testify about the Petitioner’s
taking a handgun for protection because of the threats he received and his parking behind Mr.
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Rhoads’s church to avoid any problems with the victim and her family. He said the
Petitioner told him about his tires being slashed and people breaking into his home.
Co-counsel testified that he admitted during opening statements that the Petitioner was
guilty of manslaughter, although he knew the Petitioner had the right to have the State prove
each element of an offense beyond a reasonable doubt. He denied the Petitioner signed a
waiver of his constitutional right to have the state prove each element of the offense. He
denied the Petitioner signed a waiver to appeal his convictions.
Co-counsel testified that by not filing a notice of appeal, he waived the right to raise
sufficiency of the evidence on appeal. He said that from the time the Petitioner retained him
to about six months after the trial, the Petitioner’s version of events did not change. He said
he and trial counsel thought self defense and criminally negligent homicide theories were not
believable and would sacrifice credibility with the jury. He said the Petitioner told him that
he expected the victim to come to the Petitioner’s home after work to pick up their children.
Co-counsel testified that he did not order a trial transcript, although he knew the trial
court was required to look at the evidence presented at the trial and the sentencing hearing
and the information contained in the presentence report when determining the proper
sentence. He said that although he did not include a transcript of the trial in the appellate
record, he and trial counsel believed all the relevant information and evidence was contained
in the sentencing hearing transcript. He denied receiving letters from the Petitioner stating
that he did or did not want to waive his right to appeal his convictions.
Co-counsel testified that during jury selection, almost all the potential jurors said they
had heard something about the Petitioner’s case and that ten of the twelve jurors had some
form of pretrial publicity exposure. He agreed one of the jurors said during jury selection
that he thought it was a “heinous crime.” He agreed another juror said he discussed this case
with a friend who worked with the county rescue squad and agreed a third juror worked at
the same place as the victim.
Co-counsel testified that he interviewed Mr. Rhoads many times before the trial and
that Mr. Rhoads’s testimony was consistent with his previous interviews. He said he thought
Mr. Rhoads’s testimony that the Petitioner told him the victim was “in his face yelling” was
somewhat consistent with the statements made during the interviews. He said Mr. Rhoads’s
testimony was consistent enough with the Petitioner’s version of events.
On redirect examination, co-counsel testified that he did not have a substance abuse
problem during his representation of the Petitioner. He said his substance abuse stemmed
from a spring 2007 car accident, which was after the supreme court denied the Petitioner’s
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application for permission to appeal. He agreed this court relied on factors other than the
statement in the presentence report that Dr. Harlan found particles of duct tape in the victim’s
lungs.
The trial court denied relief. Regarding trial counsel failing to appeal the Petitioner’s
convictions, the court concluded that counsel were not ineffective. The court credited
counsel’s testimony. It found that trial counsel and co-counsel discussed the appeal and
concluded that there “were no legitimate issues to appeal, other than sentencing issues.”
Counsel agreed that the acquittal of first degree murder was a success. The court noted
counsel’s success on appeal and the sentence reduction from thirty to twenty-four years. The
court found that the Petitioner failed to present evidence showing that a reasonable
probability existed that an appeal of his convictions would have been successful.
With regard to counsel’s admitting the Petitioner was guilty of voluntary manslaughter
during opening statements, the trial court concluded that the strategy was “reasonably based”
and that it would not “second-guess the well thought-out tactical defense decision.” The
court credited counsel’s testimony and concluded that counsel were not deficient. It found
that counsel discussed this strategy with each other and other attorneys in their firm. The
court found that they were “ethically locked into a certain set of facts . . . based on the
Petitioner’s admissions” to counsel “before the victim’s body was found.” The court credited
counsel’s testimony that self defense would have been difficult to establish because of the
Petitioner’s “elaborate ‘cover-up’” in concealing the victim’s body. The court found that the
strategy of admitting the Petitioner’s guilt to manslaughter was discussed with the Petitioner
before the trial and that the Petitioner agreed to the strategy. Counsel told the Petitioner that
he would be convicted of some level of homicide but that the goal was to avoid a first degree
murder conviction. The court stated that the strategy was “perhaps brilliant” and that given
the amount of evidence against the Petitioner, “the strategy likely played a role in avoiding
a first-degree murder conviction.”
With regard to counsel’s failure to investigate Dr. Harlan’s problems with the state
medical board and their failure to cross-examine Dr. Harlan adequately, the trial court found
that counsel were not deficient. The court found that co-counsel discussed with Dr. Harlan
the autopsy findings before the trial. The court found that although co-counsel was aware
of the allegations against Dr. Harlan, his medical license was not permanently revoked until
six months after the Petitioner’s trial. It found that co-counsel chose not to question Dr.
Harlan about the medical board proceedings because Dr. Harlan provided favorable
testimony about the cause of death and lack of petechial hemorrhaging in the victim’s eyes.
The court found that co-counsel’s cross-examination was “within the range of competence
demanded of attorneys in criminal cases” and that his failure to question Dr. Harlan about
the medical board proceedings was a “reasonable tactic.”
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With regard to the erroneous statement in the presentence report regarding duct tape
particles in the victim’s lungs, the trial court found that co-counsel admitted he should have
seen the error and objected. The court concluded that co-counsel was deficient by failing to
object. With regard to counsel’s failure to include a trial transcript in the appellate record,
the court found that counsel were not deficient. The court found that because co-counsel
only appealed the Petitioner’s sentence, he did not believe a transcript was necessary for the
relief sought and that the evidence contained in the transcript might have prevented appellate
relief. The court found that co-counsel and trial counsel discussed whether to include the
transcript and agreed a transcript was not required or beneficial to the sentencing issues. It
noted that although this court “included the incorrect ‘duct tape in the lung’ comment when
it discussed the exceptional cruelty as a sentencing factor,” this court included other factors
supporting the enhancement factor. The court concluded that the Petitioner failed to establish
that this court would have ruled differently had counsel included the trial transcript on
appeal.
With regard to counsel’s failure to request jury instructions on lesser included
offenses, the trial court concluded that counsel were not deficient. The court found that
counsel’s sound and reasonable trial strategy of admitting guilt to voluntary manslaughter
prevented the court’s giving instructions on reckless and criminally negligent homicide.
With regard to counsel’s failure to request a change of venue after the Petitioner’s
case received pretrial publicity, the trial court found that counsel were not deficient. The
court credited counsel’s testimony that counsel believed a motion for a change of venue
would be denied and that any concerns related to the Petitioner’s ability to obtain a fair trial
were addressed through individual voir dire. The court found that the Petitioner failed to
present any evidence that the jurors were “wrongly influenced by pretrial publicity or
notoriety.”
With regard to trial counsel’s failure to interview Barry Rhoads adequately before the
trial, the trial court found that trial counsel and co-counsel interviewed Mr. Rhoads before
the trial and that they thought Mr. Rhoads’s testimony would be consistent with the
Petitioner’s testimony at the trial. The court stated that the trial transcript supported
counsel’s testimony.
The trial court discredited the Petitioner’s testimony. It found that the Petitioner’s
testimony that he fabricated his version of events because of threats and extortion was
“totally unbelievable.” It found that the Petitioner’s allegations that he was threatened and
extorted by two sheriff’s deputies was “totally unsupported by any evidence, credible or
otherwise.” This appeal followed.
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The burden in a post-conviction proceeding is on the petitioner to prove his grounds
for relief by clear and convincing evidence. T.C.A. § 40-30-110(f) (2012). On appeal, we
are bound by the trial court’s findings of fact unless we conclude that the evidence in the
record preponderates against those findings. Fields v. State, 40 S.W.3d 450, 456-57 (Tenn.
2001). Because they relate to mixed questions of law and fact, we review the trial court’s
conclusions as to whether counsel’s performance was deficient and whether that deficiency
was prejudicial under a de novo standard with no presumption of correctness. Id. at 457.
Post-conviction relief may only be given if a conviction or sentence is void or voidable
because of a violation of a constitutional right. T.C.A. § 40-30-103 (2012).
Under the Sixth Amendment, 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 v. Washington, 466 U.S. 668, 687
(1984); see Lockhart v. Fretwell, 506 U.S. 364, 368-72 (1993). In other words, a showing
that counsel’s performance fell below a reasonable standard is not enough because the
Petitioner must also show that but for the substandard performance, a reasonable probability
exists that “the result of the proceeding would have been different.” Strickland, 466 U.S. at
694. 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).
A petitioner will only prevail on a claim of ineffective assistance of counsel after
satisfying both prongs of the Strickland test. Henley v. State, 960 S.W.2d 572, 580 (Tenn.
1997). The performance prong requires a petitioner raising a claim of ineffectiveness to
show that counsel’s representation fell below an objective standard of reasonableness or
“outside the wide range of professionally competent assistance.” Strickland, 466 U.S. at 690.
The prejudice prong requires a petitioner to demonstrate that “there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding would
have been different.” Id. at 694. A reasonable probability means a “probability sufficient
to undermine confidence in the outcome.” Id.
In Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975), our supreme court decided that
attorneys should be held to the general standard of whether the services rendered were within
the range of competence demanded of attorneys in criminal cases. Further, the court stated
that the range of competence was to be measured by the duties and criteria set forth in
Beasley v. United States, 491 F.2d 687, 696 (6th Cir. 1974), and United States v. DeCoster,
487 F.2d 1197, 1202-04 (D.C. Cir. 1973). See Baxter, 523 S.W.2d at 936. Also, in
reviewing counsel’s conduct, a “fair assessment of attorney performance requires that every
effort be made to eliminate the distorting effects of hindsight, to reconstruct the
circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s
perspective at the time.” Strickland, 466 U.S. at 689. “Thus, the fact that a particular
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strategy or tactic failed or even hurt the defense does not, alone, support a claim of
ineffective assistance.” Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992).
Deference is made to trial strategy or tactical choices if they are informed ones based upon
adequate preparation. Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982); see DeCoster, 487
F.2d at 1201.
I
The Petitioner contends that co-counsel was ineffective by failing to object to the
erroneous statement in the presentence report that duct tape particles were found in the
victim’s lungs and by failing to include the trial transcript in the appellate record. He argues
that the failure to object to the erroneous statement was compounded by the failure to include
the transcript in the appellate record in order for this court to consider the appropriate
sentence. The State responds that the Petitioner was not prejudiced by counsel’s failure to
object to the statement contained in the presentence report or counsel’s failure to include the
transcript. We agree with the State.
We conclude that co-counsel was deficient by failing to object to the erroneous
statement included in the presentence report. Co-counsel admitted his deficiency at the post-
conviction hearing and said Dr. Harlan did not testify at the trial about duct tape particles
found in the victim’s lungs. Co-counsel also admitted that the autopsy report did not include
such a finding. In addressing the trial court’s enhancement of the Petitioner’s sentence based
on his treating the victim with exceptional cruelty, this court looked to factors other than the
presence of duct tape particles in the victim’s lungs. This court concluded that the
enhancement factor was properly applied because the Petitioner bound the victim’s hands and
feet, covered her mouth and nose with duct tape, and killed the victim while their children
were sleeping upstairs. See Lonnie Lee Owens, slip op. at 6. Although this court included
the improper statement in its reasoning for upholding the trial court’s sentence enhancement,
there were other factors upon which the court relied.
At the trial, Dr. Harlan testified that the victim’s wrists, ankles, and head were duct
taped, that the wrists were taped behind the victim’s back, and that the tape around the head
was wrapped in a circular pattern and covered the nose, mouth, and the upper portion of the
chin. Dr. Harlan concluded that the cause of death was suffocation because the duct tape
blocked the victim’s nose and mouth. He stated that had the victim been struck in the head
with enough force to cause her death, he would have expected to find bleeding beneath the
outer membrane surrounding the brain, bruising to the brain, fractures to the skull or face,
or tearing of the skin. He found no evidence of these injuries and excluded blunt force
trauma as the victim’s cause of death. Dr. Harlan did not find evidence of petechial
hemorrhaging in the victim’s eyes but stated that petechia was not always present after
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suffocation and that the condition of the victim’s eyes were poor because of exposure. We
cannot conclude that a reasonable probability exists that the sentencing outcome would have
been different had counsel objected to the statement in the presentence report.
With regard to trial counsel’s failure to include a trial transcript in the appellate record
because he thought the transcript would prevent this court’s granting sentencing relief, his
decision would have the opposite effect. “[T]here is a duty to prepare a record which
conveys a fair, accurate and complete account of what transpired with respect to the issues
forming the basis of the appeal.” State v. Ballard, 855 S.W.2d 557, 560 (Tenn. 1993) (citing
State v. Bunch, 646 S.W.2d 158, 160 (Tenn. 1983)). Although counsel only appealed the
Petitioner’s sentence, the trial proceedings were relevant to the issue of enhancing the
petitioner’s sentence. See T.C.A. § 40-35-210(b)(1) (2010) (requiring a trial court to
consider evidence presented at the trial in making its sentencing determinations). Counsel’s
failure constituted deficient performance. Although the presentence report refers to Dr.
Harlan’s conclusion on the victim’s cause of death, the trial transcript would have
highlighted the inaccurate statement in the presentence report regarding the duct tape
particles being found in the victim’s lungs. The discrepancy went unnoticed because counsel
failed to include the trial transcript in the appellate record. We agree, though, that the victim
was treated with exceptional cruelty and cannot conclude that a reasonable probability exists
that but for counsel’s deficient performance, the result of the proceeding would have been
different. The Petitioner has failed to establish prejudice.
II
The Petitioner contends that co-counsel was ineffective by cross-examining Dr.
Charles Harlan inadequately. He argues that co-counsel failed to elicit favorable testimony
about the victim’s cause of death and failed to question Dr. Harlan about the pending
proceedings to revoke his medical license. The State responds that co-counsel’s cross-
examination was professionally reasonable and did not prejudice the Petitioner. We agree
with the State.
Dr. Charles Harlan testified at the trial that the victim’s cause of death was suffocation
because he found no diseases or injuries consistent with blunt force trauma and because the
victim’s airway was blocked by duct tape. During co-counsel’s cross-examination, Dr.
Harlan testified that of the many thousands of autopsies he had performed, less than ten
involved suffocation by duct tape. He said that although he concluded the cause of death was
suffocation, he did not find any evidence supporting his conclusion other than the duct tape
over the victim’s mouth and nose. Dr. Harlan could not state with a reasonable degree of
medical certainty that the victim was conscious before the duct tape was applied. He stated
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that a person could receive a “blow” that caused unconsciousness but did not “leave a mark.
. . .” He agreed that someone who was unconscious might look dead.
Dr. Harlan testified that petechial hemorrhaging was caused when the smallest blood
vessels in the body ruptured and that it could be seen in the eyes as a result of suffocation.
He said, though, that petechia was not required to diagnose suffocation. He said petechia
supported such a conclusion but was not necessary. Dr. Harlan did not see petechia in the
victim’s eyes, face, lungs, or neck.
The Petitioner argues that co-counsel should have questioned Dr. Harlan about the ten
cases in which he performed autopsies involving duct tape and his conclusions that most of
the victims were dead before the tape was applied. The Petitioner also argues that co-counsel
should have questioned Dr. Harlan about his failure to find evidence that the victim
“thrash[ed] around” when Dr. Harlan told co-counsel before the trial that individuals who
die as a result of suffocation “thrash around.” We cannot conclude that co-counsel was
deficient by failing to ask Dr. Harlan these questions. Co-counsel highlighted during cross-
examination that although Dr. Harlan concluded the victim suffocated, there was no evidence
supporting his conclusion other than the duct tape. Dr. Harlan could not determine if the
victim was conscious or unconscious when the duct tape was applied to the victim’s hands,
feet, and face. He agreed it was possible for a victim to receive a blow that caused
unconsciousness but left no evidence of an internal or external wound. Dr. Harlan found no
evidence of petechia but concluded suffocation did not always result in petechial
hemorrhaging. Co-counsel presented evidence that it was possible the victim’s cause of
death was not suffocation as Dr. Harlan concluded and that she was rendered unconscious
by a blunt force trauma, preventing the victim’s struggling.
With regard to co-counsel’s failure to impeach Dr. Harlan with the pending
proceeding to revoke Dr. Harlan’s medical license, we cannot conclude that co-counsel
provided deficient performance. The Petitioner’s trial was held in November 2004, and Dr.
Harlan’s medical license was permanently revoked in May 2005. Although co-counsel knew
about the pending proceedings, he denied knowing the substance of the allegations and said
he contacted Dr. Harlan’s attorney before the trial to investigate the pending proceedings.
In any event, co-counsel elicited favorable testimony about whether the victim
suffocated and whether the victim was conscious at the time the duct tape was applied. Co-
counsel made the tactical decision not to question Dr. Harlan about the pending medical
board proceeding because Dr. Harlan gave counsel exactly what counsel wanted. Because
co-counsel made an informed tactical decision, we cannot conclude that co-counsel provided
deficient performance. See Hellard, 629 S.W.2d at 9.
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III
The Petitioner contends that trial counsel was ineffective by “attempting to negotiate
a plea agreement in the jury’s presence.” He argues that he did not waive his right requiring
the State to prove that he acted with the required mens rea and intent for voluntary
manslaughter. The State responds that counsel’s decision to acknowledge voluntary
manslaughter in the jury’s presence was a tactical and strategic decision and did not
constitute deficient performance. We agree with the State.
After the indictment was read, co-counsel attempted to enter a plea to voluntary
manslaughter. The trial court rejected the plea and submitted the case to the jury. During
co-counsel’s opening statement, counsel discussed the elements of first and second degree
murder and told the jurors that the Petitioner accepted responsibility for voluntary
manslaughter, a killing in the heat of passion with adequate provocation.
Although the Petitioner did not sign a written waiver allowing trial counsel to argue
before the jury that he was guilty of voluntary manslaughter, counsel’s credited testimony
was that the Petitioner consented to the trial strategy. Co-counsel stated that this strategy was
discussed with the Petitioner “about twenty-five times” in the year before the trial. He said
the Petitioner never stated that he did not want counsel to use this strategy. Trial counsel said
his attempting to plead guilty to voluntary manslaughter and asking the jury for a
manslaughter conviction during opening statements was part of their strategy. Counsel
discussed the strategy with other attorneys in their firm long before the trial. Trial counsel
stated that the strategy was discussed with the Petitioner and that the Petitioner agreed the
strategy might be successful. Counsel advised the Petitioner of his constitutional right
requiring the State to prove beyond a reasonable doubt each element of manslaughter.
Counsel believed that this strategy was the Petitioner’s “best shot” of avoiding a first degree
murder conviction and that manslaughter was consistent with the Petitioner’s burying the
victim’s body in a remote location. We cannot conclude that the evidence preponderates
against the trial court’s conclusion that the strategy was reasonable given the facts of the
case.
IV
The Petitioner contends that trial counsel provided ineffective assistance by failing
to request jury instructions on the lesser included offenses of criminally negligent and
reckless homicide. He argues that although the trial court stated that it would not instruct the
jury on any lesser included offenses of voluntary manslaughter based on counsel’s statements
during opening statements and closing arguments, counsel should have objected to the
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court’s refusal. The State responds that counsel were not ineffective. We agree that the
Petitioner is not entitled to relief.
In criminal cases, the trial court has the duty to charge the jury on all the law that
applies to the facts of the case. See State v. Harris, 839 S.W.2d 54, 73 (Tenn. 1992) (citing
State v. Thompson, 519 S.W.2d 789, 792 (Tenn. 1975)). The Defendant also “has a right to
have every issue of fact raised by the evidence and material to his defense submitted to the
jury upon proper instructions by the judge.” Thompson, 519 S.W.2d at 792; see T.C.A. § 39-
11-203(c) (2010) (entitling a defendant to have the issue of the existence of a defense
submitted to the jury when it is fairly raised by the proof). An erroneous jury instruction may
deprive the defendant of the constitutional right to a jury trial. See State v. Garrison, 40
S.W.3d 426, 433-34 (Tenn. 2000). A jury instruction must be reviewed in its entirety and
read as a whole rather than in isolation. State v. Leach, 148 S.W.3d 42, 58 (Tenn. 2004).
An instruction will be considered prejudicially erroneous only if it fails to submit the legal
issues fairly or misleads the jury as to the applicable law. State v. Faulkner, 154 S.W.3d 48,
58 (Tenn. 2005) (citing State v. Vann, 976 S.W.2d 93, 101 (Tenn. 1998)). A trial court
should give an “instruction if it is supported by the evidence, embodies a party’s theory, and
is a correct statement of the law.” State v. Phipps, 883 S.W.2d 138, 150 n.20 (Tenn. Crim.
App. 1994). Counsel may provide ineffective assistance by failing to request jury
instructions on applicable lesser included offenses. Jimmy Dale Hogan v. State, No. M2007-
02104-CCA-RM-CD, slip op. at 2-3 (Tenn. Crim. App. Aug. 12, 2008).
Trial counsel’s credited testimony shows that he believed the Petitioner’s duct taping
the victim’s hands, feet, and face, hiding the victim’s body in a shed, burying the victim’s
body on a remote lake island, and concealing the victim’s death made it difficult for counsel
to argue in favor of reckless homicide, negligent homicide, and self defense. Admitting guilt
to manslaughter was part of counsel’s strategy, and the Petitioner agreed to concede guilt.
The strategy was discussed with other attorneys in counsel’s firm and contemplated for about
one year before the trial. Counsel thought voluntary manslaughter was consistent with the
Petitioner’s disposing and burying the victim’s body in a remote location and was the best
strategy to avoid a first degree murder conviction. Co-counsel’s credited testimony shows
that he also thought the Petitioner’s only chance of avoiding a first degree murder conviction
was to admit guilt to voluntary manslaughter. The strategy was discussed with the Petitioner
numerous times in the year leading to the trial, and the Petitioner never told counsel that he
did not want to admit guilt to manslaughter.
The Petitioner testified at the trial that he was home with his children when he heard
the voice of someone he did not know behind him and that he reacted by hitting the person.
The Petitioner said that by the time he realized it was the victim, she was already dead and
that he panicked. We conclude that regardless of counsel’s admitting guilt to voluntary
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manslaughter, counsel should have requested jury instructions on reckless and criminally
negligent homicide because they were supported by the trial testimony and did not conflict
with the Petitioner’s theory of the case. Failure to request these instructions was deficient
performance. We also conclude that the trial court should have provided the instructions
regardless of counsel’s failure to request them. We conclude, though, that the Petitioner has
not established prejudice based on the jury’s finding the Petitioner guilty of second degree
murder. The jury rejected voluntary manslaughter. See State v. Williams, 977 S.W.2d 101,
104-07 (Tenn. 1998).
V
The Petitioner contends that trial counsel and co-counsel were ineffective by failing
to interview Barry Rhoads before the trial. Alternatively, he contends that if counsel
interviewed Mr. Rhoads before the trial, counsel were ineffective by failing to investigate
adequately the substance of Mr. Rhoads’s trial testimony. He argues that counsel should
have presented evidence that the Petitioner felt threatened and that counsel should not have
questioned Mr. Rhoads about the substance of the Petitioner’s confession because it
undermined the Petitioner’s claim of self defense. The State responds that Mr. Rhoads was
interviewed before the trial and that counsel were not deficient. We agree with the State.
Although counsel does not have an absolute duty to investigate particular facts or a
certain line of defense, counsel has a duty to make a reasonable investigation or to make a
reasonable decision that makes a particular investigation unnecessary. Strickland, 466 U.S.
at 691. Counsel is not required to interview every conceivable witness. See Hendricks v.
Calderon, 70 F.3d 1032, 1040 (9th Cir. 1995). Furthermore,
no particular set of detailed rules for counsel’s conduct can satisfactorily take
account of the variety of circumstances faced by defense counsel. Rather,
courts must judge the reasonableness of counsel’s challenged conduct on the
facts of the particular case, viewed as of the time of counsel’s conduct, and
judicial scrutiny of counsel’s performance must be highly deferential.
Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000) (internal citations and quotations omitted).
A reasonable investigation does not require counsel to “leave no stone unturned.”
Perry Anthony Cribbs v. State, No. W2006-01381-CCA-R3-PD, slip op. at 57 (Tenn. Crim.
App. July 1, 2009), perm. app. denied (Tenn. Dec. 21, 2009). Rather,“[r]easonableness
should be guided by the circumstances of the case, including information provided by the
defendant, conversations with the defendant, and consideration of readily available
resources.” Id. The United States Supreme Court has said, “inquiry into counsel’s
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conversations with the defendant may be critical to a proper assessment of counsel’s
investigation decisions, just as it may be critical to a proper assessment of counsel’s other
litigation decisions.” Strickland, 466 U.S. at 691.
Counsel interviewed Mr. Rhoads “extensively.” Counsel were aware of the threats
the Petitioner claimed to have received and reviewed the Petitioner’s divorce attorney’s file.
Counsel concluded that although the threats could have supported a self defense theory, the
facts of how the Petitioner said the killing occurred were inconsistent with self defense.
Although the evidence could have been used to show the Petitioner’s state of mind at the
time of the killing, counsel decided not to question Mr. Rhoads about the threats. Counsel
did not highlight the threats and the Petitioner’s divorce because they did not want to open
the door to the State’s asking Mr. Rhoads questions about the divorce. Trial counsel
concluded that the divorce case involved facts that were unfavorable to the Petitioner’s first
degree murder trial.
We note that the divorce file is not included in the appellate record and that counsel
did not testify at the post-conviction hearing about the substance of the divorce file or the
unfavorable facts they feared coming into evidence. Likewise, the record does not contain
evidence supporting counsel’s conclusion that the information contained in the divorce file
would have been admissible at the trial. As a result, we cannot conclude that counsel made
a reasonable, tactical decision without proof of the information counsel feared would be
admitted at the trial and thought would damage the Petitioner’s case. In any event, evidence
of the threats was presented during the testimony of the Petitioner’s sister, Carla Zajac.
Counsel thought Mr. Rhoads’s testimony would be consistent with the Petitioner’s trial
testimony, although Mr. Rhoads testified that before the killing the Petitioner said the victim
was “in his face yelling.” We conclude that without evidence about the information in the
divorce file that concerned counsel, we cannot disagree with the trial court’s crediting
counsel’s decision not to question Mr. Rhoads about the threats.
VI
The Petitioner contends that counsel were ineffective by failing to request a change
of venue. He argues that counsel should have requested a change of venue because of the
pretrial publicity. The State responds that counsel provided the effective assistance of
counsel. We agree that the Petitioner is not entitled to relief.
A change of venue may be granted when it appears that because of “undue excitement
against the defendant in the county where the offense was committed or any other cause, a
fair trial probably could not be had.” Tenn. R. Crim. P. 21(a). The decision to grant a
motion for a change of venue is within the sound discretion of the trial court and will only
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be reversed upon an abuse of discretion. State v. Howell, 868 S.W.2d 238, 249 (Tenn. 1993).
A change of venue is not warranted merely because jurors have been exposed to pretrial
publicity. State v. Mann, 959 S.W.2d 503, 531-32 (Tenn. 1997). Jurors “can have
knowledge of the facts surrounding the crime and still be qualified to sit on the jury.” State
v. Crenshaw, 64 S.W.3d 374, 386 (Tenn. Crim. App. 2001). “The test is ‘whether the jurors
who actually sat and rendered verdicts were prejudiced by the pretrial publicity.’” Id.
(quoting State v. Kyger, 787 S.W.2d 13, 18-19 (Tenn. Crim. App. 1989)).
With regard to whether counsel should have requested a change of venue, counsel did
not think a change of venue would be granted. Trial counsel had never successfully argued
for a change of venue. Co-counsel said that although a change of venue was not requested,
any concerns about the pretrial publicity were addressed during voir dire. We cannot
conclude that the Petitioner was prejudiced by counsel’s failure to request a change of venue.
Counsel raised their concern about the impact of the pretrial publicity, and the trial
court allowed counsel and the prosecutor to voir dire in chambers each potential juror who
indicated knowing about the Petitioner’s case. The jurors who were prejudiced against the
Petitioner because of the pretrial media exposure were excused from service. Counsel were
satisfied with the jury empaneled to decide the case.
During voir dire, many of the potential jurors indicated that they had been exposed to
various forms of pretrial publicity. Of the jurors who were questioned in chambers, two
indicated that they had formed an opinion about the Petitioner’s guilt based on the pretrial
publicity and were excused from service. The information reported by the jurors included
hearing that “the body was dumped,” that the Petitioner was suspected of killing his wife,
that the victim’s body was found on a lake island, and that the victim was missing for a
period of time.
One juror admitted working at the same company where the Petitioner worked but
denied knowing the Petitioner. Another juror stated that a friend, who worked for the rescue
squad, told him that he was part of the group that found the victim’s body. He denied
hearing any statements about who killed the victim and having formed an opinion about the
Petitioner’s guilt. Another juror stated that her adult children told her about the victim’s
being missing and that she heard about the case on the radio. She said her children went to
school with someone whose last name was Owens but did not know if that person was related
to the victim. She denied forming an opinion about the Petitioner’s guilt.
Although the Petitioner raises issue with jury selection generally, he addresses the
individual voir dire of juror Wayne Signs. Mr. Signs stated that he heard about the
Petitioner’s case in the newspapers and by talking to people in the community. He denied
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talking to anyone who claimed to be a witness in the case or remembering the substance of
the newspaper articles. He said that he probably formed an opinion about the case when the
victim’s death was initially reported in the news but that he had no opinion of the case at the
time of voir dire. He said his initial opinion was that this was a “heinous crime” but denied
forming an opinion about whether the Petitioner was innocent or guilty. He said he could
evaluate the case based solely on the evidence and the trial court’s instructions.
Although the jurors were exposed to pretrial publicity, the record shows that the jurors
empaneled had not formed an opinion about the case or the Petitioner’s innocence or guilt
and were capable of evaluating the case based on the evidence presented and the trial court’s
instructions. We conclude that the Petitioner has failed to establish that the jurors were
wrongly influenced by pretrial publicity. The Petitioner is not entitled to relief.
VII
The Petitioner contends that counsel were ineffective by failing to file a motion for
a new trial and by failing to appeal his conviction. He argues that counsel’s failure to file the
motion for a new trial and to appeal his convictions prevented appellate review of the
sufficiency of the evidence and that the evidence is insufficient. He also argues that James
Koski’s testimony at the trial about a statement the Petitioner made five years before the
victim’s death violated Tennessee Rule of Evidence 403 and that counsel waived the issue
by failing to file the motion and to appeal his convictions. The State responds that the
Petitioner was not denied his right to appeal his conviction. We agree that the Petitioner is
not entitled to relief.
The record shows that counsel and the Petitioner discussed whether to appeal the
Petitioner’s convictions and that they agreed the best opportunity for appellate relief was to
appeal the sentence. Although trial counsel testified that he feared the Petitioner would be
tried again for first degree murder if this court granted relief from the conviction, a wholly
unfounded fear given double jeopardy protections, co-counsel denied this was a factor in
determining whether to appeal the conviction. Co-counsel, who worked on the Petitioner’s
appeal, did not think there were any meritorious issues regarding the conviction. The
Petitioner argues counsel should have raised sufficiency of the evidence and an evidentiary
issue on appeal. We cannot conclude that the Petitioner was prejudiced.
With regard to the sufficiency of the evidence, we conclude that the evidence was
sufficient to sustain the Petitioner’s conviction for second degree murder. See T.C.A. § 39-
13-210 (2010) (stating that second degree murder is the knowing killing of another); see also
T.C.A. §39-11-106(20) (2010) (stating that “[a] person acts knowingly with respect to a
result of the person’s conduct when the person is aware that the conduct is reasonably certain
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to cause the result”). The evidence showed that the Petitioner admitted striking the victim
in the head, duct taping her hands and feet, duct taping her face from her nose to her chin,
concealing her body, transporting her body to an island on Tim’s Ford Lake, and burying the
victim’s body in a shallow grave. Various witnesses testified about the Defendant and the
victim’s pending divorce, inability to get along around the time of the victim’s
disappearance, and fighting over their two children.
The victim was last seen leaving work at 3:11 p.m. the day she disappeared. Greg
Arp, the victim’s coworker and boyfriend, and the victim discussed their evening plans
during their lunch break. The victim called the Petitioner’s home to speak with her children
during lunch, but the Petitioner did not allow her to speak with them. Mr. Arp said that after
work, the victim was supposed to pick up her children at the Petitioner’s home, bring the
children to Mr. Arp’s home, and go to dinner together. Mr. Arp called the victim’s cell and
home phones around 3:30 or 4:00 p.m. because the victim had not arrived at his home with
her children. He said that he was unable to reach her and that the victim did not return his
calls.
Kara Matthews, the Petitioner’s girlfriend at the time of the killing, said she arrived
at the Petitioner’s home around 4:30 or 5:00 p.m. the day the victim disappeared and that the
Petitioner was pacing the kitchen floor, was sweating, and was nervous. The Petitioner told
her a story about some of his friends suggesting that they steal the victim’s truck. The
Petitioner told her that he believed they were joking but that someone arrived at his home
with the victim’s keys thirty minutes before she arrived. The Petitioner said his friends left
the truck in Kroger’s parking lot. Ms. Matthews said the Petitioner requested that she drive
him to the parking lot to find the victim’s truck. She said that the truck was in the Advanced
Auto Parts’ parking lot, which was in the same strip mall as Kroger. She stated that the
Petitioner got into the truck, that he told her he was going to take the truck back to his friend,
and that she followed him. She said the Petitioner drove the truck to “Smokehouse and
hotel” and wiped the steering wheel and the door with a cloth. He left the keys inside the
truck. She said they went to buy fast food. She said the Petitioner acted “normal” after they
left the truck. She stated that after they returned home, the Petitioner asked her to watch his
children for a while.
The Petitioner told Mr. Rhoads that he killed the victim. According to Mr. Rhoads’s
testimony, the Petitioner said he had just put the children down for their naps when the victim
appeared in the kitchen. The Petitioner stated that the victim was yelling at him and that
before he knew what happened, he hit the victim, who fell to the floor. The cause of death,
though, was suffocation. The medical examiner concluded the victim suffocated from the
duct tape obstructing her airway. The autopsy did not show evidence of blunt force trauma
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to the victim’s head, contradicting the Petitioner’s version of events. We conclude the
evidence was sufficient.
With regard to the evidentiary issue, James Koski testified about his and the
Petitioner’s familiarity with Tim’s Ford Lake, their fishing the area, and their discussing
camping in the area where the victim’s body was found. He stated that in 1999, about four
or five years before the killing, the Petitioner told him about his marital problems. He said
the Petitioner told him that the victim could leave but that the Petitioner would kill her if she
attempted to take his children. He agreed he did not think the Petitioner was serious about
killing the victim. Counsel objected to the testimony as being too remote in time in relation
to the killing. The court overruled the objection.
Tennessee Rule of Evidence 403 states that “[a]lthough relevant, evidence may be
excluded if its probative value is substantially outweighed by the danger of unfair prejudice
. . . .” We conclude that although the statement was made four or five years before the
victim’s death, the trial court did not err by admitting the statement. See State v. Wilson, 164
S.W.3d 355 (Tenn. Crim. App. 2003) (concluding that the trial court did not err by admitting
evidence of a five-year-old protective order awarding the victim custody of the defendant’s
son because the order was relevant to the issue of motive to commit murder). Other
witnesses testified about the marital difficulties between the Petitioner and the victim,
including the Petitioner’s desire to maintain custody of his children. The Petitioner is not
entitled to relief.
VIII
The Petitioner contends that the cumulative effect of counsel’s errors deprived him
of the effective assistance of counsel. The State responds that the cumulative error doctrine
does not apply. We agree that the Petitioner is not entitled to relief.
Our supreme court has stated that “‘the combination of multiple errors may necessitate
the reversal . . . even if individual errors do not require relief.’” State v. Jordan, 325 S.W.3d
1, 79 (Tenn. 2010) (quoting State v. Cribbs, 967 S.W.2d 773, 789 (Tenn. 1998)). This court
has stated, “when an attorney has made a series of errors that prevents the proper presentation
of a defense, it is appropriate to consider the cumulative impact of the errors in assessing
prejudice.” Timothy Terell McKinney v. State, W2006-02132-CCA-R3-PD, slip op. at 37
(Tenn. Crim. App. Mar. 9, 2010) (citing Harris ex rel Ramseyer v. Wood, 64 F.3d 1432, 1438
(9th Cir. 1995), cert. denied, 490 U.S. 1075 (1989)), perm. app. denied (Tenn. Aug. 25,
2010). “The reviewing court does not ask as to whether the defendant is innocent of the
crime. The question remains whether the defendant was deprived of a reasonable chance of
acquittal due to his counsel’s performance.” Id.
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We have concluded that counsel were deficient by failing to object to the erroneous
statement contained in the presentence report, by failing to include the trial transcript in the
appellate record, by failing to request jury instructions on reckless and criminally negligent
homicide, by failing to file a motion for a new trial and to appeal the second degree murder
conviction, and by failing to request a change of venue. We have also concluded that the
Petitioner failed to establish prejudice on each of these grounds. We cannot conclude,
though, that there was cumulative error, that the Petitioner was deprived of the effective
assistance of counsel, or that he was deprived of a reasonable chance of acquittal.
IX
The Petitioner contends that he is entitled to a delayed appeal. He argues that counsel
failed to comply with Tennessee Rule of Criminal Procedure 37(d)(2) and that counsel failed
to withdraw as counsel of record, preventing the Petitioner from appealing his conviction pro
se. The State responds that the Defendant is not entitled to a delayed appeal. We agree with
the State.
Tennessee Rule of Criminal Procedure 37(d)(2) states that
[b]efore a judgment on the guilty verdict becomes final the following shall be
done: If a[] . . . defendant who has the right to appeal a conviction chooses to
waive the appeal, counsel for the defendant shall file with the clerk, during the
time within which the notice of appeal could have been filed, a written waiver
of appeal, which must
(A) clearly reflect that the defendant is aware of the right to appeal and
voluntarily waives it;
(B) be signed by the defendant and the defendant’s counsel of record.
The evidence shows that counsel failed to obtain a written waiver from the Petitioner
showing his intent to waive an appeal of his conviction for second degree murder. We
cannot conclude, though, that the Petitioner is entitled to a delayed appeal.
A petitioner is entitled to a delayed appeal under the Post-Conviction Procedure Act
when the petitioner has been “denied the right to an appeal from the original conviction.”
T.C.A. § 40-30-113(a) (2012); see State v. Evans, 108 S.W.3d 231, 235-36 (Tenn. 2003).
A delayed appeal may be granted when the petitioner has been denied the effective assistance
of counsel in violation of the Sixth Amendment to the United States Constitution and Article
I, section 9 of the Tennessee Constitution. Wallace v. State, 121 S.W.3d 653, 656 (Tenn.
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2003). Appellate courts determine whether there has been a denial of the effective assistance
of counsel by applying the two-pronged test established in Strickland v. Washington.
Although counsel failed to comply with Rule 37(d), counsel sought appellate relief
with regard to the Petitioner’s sentence and informed the Petitioner of his right to appeal his
conviction. Counsel and the Petitioner agreed the best course of action was to appeal only
his sentence. Co-counsel stated that the Petitioner never expressed a desire to appeal his
conviction.
Counsel discussed with another attorney in their firm and the Petitioner whether to
appeal the Petitioner’s conviction and decided the best opportunity for appellate relief was
to appeal his sentence and agreed there were no other meritorious issues to raise on appeal.
Counsel discussed the strategy with the Petitioner before the trial and before the deadline to
file the motion for a new trial. Counsel noted that six objections were made during the trial
and that he did not believe they were worthy of appellate relief. Although trial counsel
incorrectly feared that the Petitioner could be tried for first degree murder if an appeal of his
conviction were successful, trial counsel was not responsible for the appeal. Co-counsel
denied this was the reason he did not appeal the Petitioner’s conviction. Co-counsel believed
that given the evidence of the Petitioner’s duct taping the victim’s hands, feet, and face,
hiding her body, burying her body in a shallow grave on a lake island, and the witness
testimony prevented a successful appeal of his conviction. We previously concluded that
counsel were deficient by failing to include the trial transcript in the appellate record and that
the evidence was sufficient to sustain the Petitioner’s conviction for second degree murder.
We note that a trial court is required to consider the evidence presented at the trial in making
its sentencing determination, making the trial transcript relevant for appellate relief of
sentencing. See T.C.A. § 40-35-210(b)(1) (2010). The Petitioner failed to present any
evidence at the post-conviction hearing showing there was a reasonable probability that an
appeal of his conviction would have been successful. The Petitioner is not entitled to relief.
In consideration of the foregoing and the record as a whole, the judgment of the
trial court is affirmed.
___________________________________
JOSEPH M. TIPTON, PRESIDING JUDGE
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