Ashley Bradshaw v. State of Tennessee ( 2017 )

04/27/2017
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs March 7, 2017
ASHLEY BRADSHAW v. STATE OF TENNESSEE
Appeal from the Criminal Court for Shelby County
No. 12-04854 J. Robert Carter, Jr., Judge
No. W2016-01692-CCA-R3-PC
The petitioner, Ashley Bradshaw, appeals the denial of post-conviction relief from her
2013 Shelby County Criminal Court jury convictions of aggravated child abuse,
aggravated child neglect, and aggravated child endangerment, for which she received a
sentence of 20 years. In this appeal, the petitioner contends only that she was denied the
effective assistance of counsel at trial. Discerning no error, we affirm.
Tenn. R. App. P. 3; Judgment of the Criminal Court Affirmed
JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which THOMAS T.
WOODALL, P.J., and ROBERT L. HOLLOWAY, JR., J., joined.
John R. Marek, Memphis, Tennessee, for the appellant, Ashley Bradshaw.
Herbert H. Slatery III, Attorney General and Reporter; Robert W. Wilson, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Carrie Shelton Bush,
Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
A Shelby County Criminal Court jury convicted the petitioner of three
counts each of aggravated child abuse, aggravated child neglect, and aggravated child
endangerment. The trial court merged all of the convictions into a single count of
aggravated child abuse and imposed a sentence of 20 years to be served at 100 percent by
operation of law. This court affirmed the convictions on direct appeal. See State v.
Ashley Bradshaw, No. W2014-00175-CCA-R3-CD (Tenn. Crim. App., Jackson, Feb. 9,
2015), perm. app. denied (Tenn. May 18, 2015).
In Ashley Bradshaw, this court stated the facts of the case as follows:
This case stems from the injuries received by S.B.[] on
April 26, 2012. A Shelby County grand jury indicted [the
petitioner], S.B.’s mother, for three counts of aggravated
child abuse, three counts of aggravated child neglect, and
three counts of aggravated child endangerment. The three
counts of each offense reflect three alternate theories for the
aggravating factor: that the victim received serious bodily
injury; that a deadly weapon was used; and that the act of
abuse/neglect was “especially heinous, atrocious or cruel, or
involved the infliction of torture to the victim.” [T.C.A.] §
39-15-402(a)(1)-(3).
At [the petitioner’s] September 2013 trial, Memphis
Police [Department (“MPD”)] Officer Gregory Turner
testified that he was dispatched to LeBonheur Children’s
Hospital on April 26, 2012, for a child abuse call. The
complainant was a social worker, Regina Morris, who
reported that the two- or three-year-old victim had blisters on
her vaginal area, leg, and buttocks and also had possible
burns. When Officer Turner arrived, the hospital staff had
already dressed the victim’s injuries. Officer Turner testified
that [the petitioner] was in the victim’s room, and he asked
her what happened. [The petitioner] told Officer Turner that
she had placed the victim “in the tub to take a bath” and that
she left the room for five minutes, returning when “she heard
a loud yelling and screaming from the tub.” [The petitioner]
told him that the victim “had turned on the hot water and
scalded herself.” [The petitioner] removed the victim from
the tub and took her to LeBonheur. Officer Turner testified
that [the petitioner] was initially calm but that when officers
asked her to leave the victim’s room, “she became kind of
irate and stat[ed] to officers that she didn’t want to talk
anymore and [they] need[ed] to leave her alone.”
On cross-examination, Officer Turner testified that he
also spoke to Kelvin Arnold, Jr., (later identified as [the
petitioner’s] boyfriend) while he was at LeBonheur and that
Mr. Arnold reported the same scenario as [the petitioner].
[MPD] Officer Jeffrey Alan Garey, a crime scene
investigator, testified that he was dispatched to LeBonheur on
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April 26, 2012, to take pictures in a possible child abuse case.
When he entered the victim’s room, she “was laying [sic] on
her back, appeared to be in distress[,] and she was heavily
bandaged and had a few tubes in her.” The bandages were
around her waist, genital area, and lower legs. Officer Garey
asked a nurse to remove the bandages so that he could
photograph the injuries. However, because the removal of the
bandages caused the victim pain and distress, the nurse
stopped the bandage removal. Officer Garey proceeded to
take photographs of the injuries he could see. Officer Garey
characterized the injuries as “severe water blisters.” He
testified that he also saw “welt marks” on the victim’s thighs,
which he photographed as well. The photographs he took of
S.B. were published to the jury.
[MPD] Officer Sam Blue, a crime scene investigator,
testified that an investigating officer sent him to the residence
where the victim was injured to take measurements and
photographs. Officer Blue testified that the bathtub at the
residence measured five feet long, two and a half feet wide,
and eleven inches deep. He measured the water temperature
after running the water for thirty seconds and found that the
water was 100 degrees. He drained the tub and ran the water
for sixty seconds, after which the water was 118 degrees.
Officer Blue said he attempted to take a photograph of the
water heater’s gauge but because of the location of the water
heater, he could only photograph the gauge from its side and
could not determine with certainty the gauge’s setting.
Id., slip op. at 2-3. MPD Lieutenant Myron Lawrence spoke with the petitioner and Mr.
Arnold at LeBonheur, and the petitioner recited the same set of facts regarding the
victim’s injuries as she had to Officer Turner. Id., slip op. at 3. Lieutenant Lawrence
stated that the petitioner became extremely angry and cursed at the officers when she was
asked to leave the victim’s hospital room. Id. Lieutenant Lawrence viewed the victim’s
injuries and described them as “‘severe burns on her lower extremities[,] [g]enital area[],
[and] buttock area[].’” Id. Lieutenant Lawrence also observed what appeared to be
“‘belt loop mark[s]’” which had “‘healed up.’” Id. Lieutenant Lawrence spoke with the
petitioner again, and because of her high level of agitation, inquired whether the
petitioner had a history of mental problems. Id. The petitioner responded that she had
previously been diagnosed with depression, prompting Lieutenant Lawrence to request a
“Crisis Intervention Team” officer to speak with her. Id. That officer concluded that the
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petitioner “‘did not meet the criteria to be transported to a mental institution,’” and
Lieutenant Lawrence again attempted to speak with the petitioner. Id. Because the
petitioner was still “‘too irate’” to communicate with Lieutenant Lawrence, he requested
the intervention of the Department of Children’s Services (“DCS”). Id. At that point, a
DCS worker reported to the hospital and took custody of both the victim and her brother.
Id.
Latisha Garcia, the victim’s primary nurse during the victim’s time in the
emergency department, testified as follows:
[T]he victim had “severe burns to her lower extremities and
to her buttocks area and her vaginal area.” Ms. Garcia said
that she administered “a tremendous amount of pain
medication” to the victim but that “[i]t was extremely hard to
control her pain.” Ms. Garcia also gave the victim an
intravenous drip for fluids, dressed her injuries, covered her
in a blanket for warmth, and inserted a catheter. She
explained that the victim was able to verbalize that she
needed to urinate but would not urinate on her own, thus
requiring Ms. Garcia to catheterize her. When she inserted
the catheter, she discovered that the victim also had
“additional injuries . . . on the inside of the vaginal area.”
Ms. Garcia recalled that [the petitioner] was in the room and
that she encouraged [the petitioner] to “be with [the victim]
and touch her” and “talk to her,” but [the petitioner] did not
do so. Ms. Garcia testified that [the petitioner] told the victim
to be quiet on several occasions. Ms. Garcia told [the
petitioner] that the victim was in pain, but according to Ms.
Garcia, [the petitioner] did not appear distressed that her child
was in pain. Ms. Garcia testified that she was present when
police officers came to photograph the victim’s injuries. She
began removing the victim’s dressings, but “the skin started
to come off with the dressing.” They decided to stop taking
pictures because removing the dressings “hurt [the victim] so
much.” Ms. Garcia explained that her treatment of the victim
ceased after the victim was admitted into the hospital, but she
knew that the victim would receive a debridement treatment –
“[e]ssentially, a scrubbing of the skin” – each day. Ms.
Garcia testified that the debridement procedure was so painful
that patients had to be sedated. Ms. Garcia said that the
hospital’s social workers were always called in when a child
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came to the hospital with burns. The social workers were
responsible for contacting DCS if necessary.
On cross-examination, Ms. Garcia testified that when
she first encountered the victim, she noticed the victim’s
reddened skin; blisters had not yet formed. Ms. Garcia
agreed that the victim was brought to the hospital soon after
being burned but that because blisters form at different rates,
she could not give a specific time frame for the time between
the victim’s being burned and her arrival at the hospital. Ms.
Garcia said that she did not notice other marks on the victim
at that time. She only saw the victim one other time, the
following day, and no one else was with the victim at that
time.
On re-direct examination, Ms. Garcia testified that
while she did not see any marks on the victim when she first
saw her, she later saw “loop marks” that followed a “[v]ery
distinct pattern,” which she associated with a beating. She
said that the hospital staff “see[s] loop marks all the time.”
Id., slip op. at 4-5.
DCS Special Investigator Kisa Johnson testified that when she spoke with
the petitioner, the petitioner stated that “the victim had turned on the hot water by
herself.” Id., slip op. at 5. Ms. Johnson noticed that the petitioner was “upset with the
police officers but exhibited no other emotion.” Id.
Mr. Arnold’s mother, Sheila Renice Arnold, testified that the petitioner and
her children had been staying at her house when the burning incident occurred. Id. Mrs.
Arnold described the victim as “‘an average little two[-]year-old. Hyper and happy.’”
Id. Mrs. Arnold also stated that the victim was in the process of toilet-training. Id. Mrs.
Arnold testified that she had never experienced any difficulty adjusting the water in the
bathtub and that she had not “had any work done on the water heater either before or after
the victim was injured.” Id. On cross-examination, Mrs. Arnold “agreed that the water
became hot very fast in her bathtub” and that Mr. Arnold “occasionally bathed [the
petitioner’s] children.” Id.
Doctor Karen Lakin, Assistant Professor of Pediatrics at the University of
Tennessee and Medical Director of LeBonheur’s Child Advocacy Resource and
Evaluation Services program, testified as an expert in the area of pediatrics with a
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specialty in child abuse pediatrics. Id., slip op. at 6. Doctor Lakin first visited the victim
on April 27 prior to the victim’s initial debridement treatment. Id. Doctor Lakin
described the victim’s injuries as “‘very, very obvious burns to [] her lower extremities
and to . . . the perineal area, which is the genital area, and her buttocks area,’” in addition
to “‘bruising in the form of . . . very linear loop marks on her thighs.’” Id. With respect
to the burns, Doctor Lakin classified them as “‘partial thickness burns,’ also known as
‘second degree burns where blisters or bullous start to form.’” Id. Doctor Lakin testified
that the victim experienced more serious burns on her right leg and that the “burns
‘completely encircle[d]’ the victim’s feet, ankles, and lower part of her legs.” Id.
Photographs of the victim’s injuries were published to the jury. Id.
When Doctor Lakin first encountered the victim, her condition was critical
because the two-year-old had received burns over approximately 20 percent of her body,
which Doctor Lakin explained was particularly dangerous in young children due to the
risk of infection. Id. “Illustrative of the dangers of infection, [Doctor] Lakin said that the
victim became septic during her hospitalization and had to be transferred to the intensive
care unit.” Id. Doctor Lakin testified that the victim was forced to undergo skin grafts on
her right leg and had to wear compression garments to assist the skin as it healed. Id.
[Doctor] Lakin opined that based on the severity of the
victim’s burns, it “would be unlikely to have occurred by a
two[-]year-old independently on her own.” She said that the
history of the injuries as documented by the emergency room
physicians was not consistent with the pattern of burning.
[Doctor] Lakin highlighted the fact that the victim had deep
burns on both legs. She opined that “a child her age would
have been able to get out if she was beginning to be burned
unless . . . there was something preventing her from getting
out and getting away.” She explained that a child who is
burned accidentally would generally only be burned on one
side rather than both. In addition, the depth of the victim’s
burns [was] significant because the depth of the burns was
“related to the length of time that [the] tissue is exposed.”
[Doctor] Lakin testified that the victim “had very, very deep,
extensive burns.” [Doctor] Lakin opined, based on the burn
pattern, that the victim’s feet and perineum were in the water
but that her knees were drawn up. She further opined that “if
[the victim] [were] trying to move or trying to squirm, then
that could explain how more of one side is going to get
burned than the other.” [Doctor] Lakin noted that the burn
pattern did not match the history given to the emergency
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department – that the victim “was in the tub with water
running and she was facing the water, the faucet” – because
children burned “by water pouring down the front of them”
would have injuries to the “anterior portion of the thighs[,]
the perineal area[,] . . . [and] [t]he stomach, chin[], and
shoulder.”
Id., slip op at 6-7.
Doctor Lakin also opined that “it would take more than a minute in 118-
degree water for a partial thickness burn to result.” Id., slip op. at 7. Doctor Lakin stated
that, in her opinion, the victim’s injuries were not accidental, basing that opinion on “the
loop marks ‘caused by a looped cord being struck on the skin’”; the extent of the burning
to the victim’s perineum; the “circumferential nature of the burns that indicated ‘an
immersion’”; the “bilateral nature of the burning”; and the amount of time it would have
taken for burns to form “when immersed in the hypothetical 118-degree water.” Id.
Doctor Lakin testified that one of the victim’s family members had reported to her that
the victim “had had a bowel movement after she had taken a bath and then was being
cleaned up,” which was significant to Doctor Lakin because she often looked “‘for a
stressful event that may have precipitated an abusive event.’” Id.
On cross-examination, Doctor Lakin stated that she learned of the bowel
movement from “either the victim’s aunt or grandmother,” neither of whom were present
when the victim was burned. Id., slip op. at 7-8. At the conclusion of Doctor Lakin’s
testimony, the State “brought the victim before the jury to display her burns, essentially
as demonstrative evidence.” Id., slip op. at 8. The petitioner did not testify and presented
no evidence on her own behalf. Id.
On March 9, 2016, the petitioner filed, pro se, a timely petition for post-
conviction relief, alleging, inter alia, that she was deprived of the effective assistance of
counsel. Following the appointment of counsel and the amendment of the petition, the
post-conviction court conducted an evidentiary hearing on June 23, 2016.
At the evidentiary hearing, the petitioner testified that trial counsel was
ineffective by failing to call Mr. Arnold as a witness at trial and by effectively convincing
her not to testify in her own defense. With respect to Mr. Arnold, the petitioner stated
that she and trial counsel had discussed using him as a witness but that, prior to trial,
counsel informed her that “his job was to defend” the petitioner and that if Mr. Arnold
testified, then “he would end up in jail incarcerated because he already ha[d] a violent
record.” The petitioner believed that Mr. Arnold was a “key witness” because he “was
the one who put [the victim] in the tub and ran the water.” The petitioner insisted that
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she never told anyone that she had placed the victim in the bathtub on the day in question.
The petitioner testified that she was “shocked” that trial counsel presented no proof at her
trial and stated that she would have testified had she known that counsel did not intend to
offer any proof.
With respect to plea offers, the petitioner recalled that trial counsel had
relayed to her an offer of “fifteen years at thirty percent” if she would agree to plea as a
Range II offender. The petitioner explained that she rejected the offer because she “felt
like [she] had good grounds” and knew that she “was innocent.” If she had known,
however, that counsel would present no proof at her trial, then she “absolutely” would
have accepted that offer.
The petitioner also stated that, at some point prior to trial, she “wrote
letters” to the court requesting a new attorney and that, when those efforts failed, she
sought to represent herself. According to the petitioner, the trial judge inquired whether
the petitioner “really want[ed] to represent [her]self,” and the petitioner responded in the
affirmative, but she surmised that the court “took it as a joke” because she “was never
able to represent” herself.
On cross-examination, the petitioner conceded that she had two prior
convictions for theft and “[m]aybe trespassing.” The petitioner acknowledged that, at
trial, a witness for the State testified that the petitioner told an emergency room physician
that she had placed the victim in the bathtub, but the petitioner denied telling her mother
that she had placed the victim in the bathtub “because she had defecated on herself.”
The petitioner agreed that, sometime prior to the victim’s injuries, she had
voluntarily committed herself to a mental health facility due to depression, but she denied
that the reason for the commitment was due to her fear that she “was going to hurt [her]
kids,” despite the indications to the contrary in the facility’s records. The petitioner
adamantly denied that she had ever hurt her children but conceded that she did not have
custody of her children at the time of the victim’s injuries. The petitioner insisted that a
friend “who was keeping [the victim] at the time” had inflicted the loop mark injuries;
that the friend’s first name was Darvalyn; and that she did not know Darvalyn’s last
name.
When asked if Mr. Arnold was responsible for the victim’s burns, the
petitioner responded thusly:
I’m not saying – I’m not going to say he was the one
who burned her but he was the one who placed her in the tub
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and ran the water to give her a bath. But he’s not the one who
burned her accidentally, I wouldn’t say that.
The petitioner agreed that she had taken the stand at the close of the State’s
proof at trial and had informed the trial court that she did not wish to testify. She
explained that she was following the advice of trial counsel, who had told her that “it
would be best if [she] didn’t testify.” The petitioner also agreed that trial counsel had
discussed the “pros and cons of people testifying” on her behalf and that counsel had
informed her that it would be a “[b]ad idea” for her witnesses to testify due to credibility
issues.
Trial counsel testified that he had practiced law for 12 to 13 years and that
he spent “in excess of a year or maybe even longer” representing the petitioner. Trial
counsel spoke with Mr. Arnold at the conclusion of the petitioner’s arraignment and
obtained Mr. Arnold’s contact information, continuing to speak with him “periodically”
until closer to the trial date. Initially, Mr. Arnold indicated that “he was the individual
giving the bath to” the victim when she was injured and that “the water got extremely
hot.” Trial counsel stated that photographs of the bathtub showed a “spindle knob”
which would have been simple for a child to turn, supporting the case theory that the
burning was accidental. As the trial date approached, trial counsel found it increasingly
difficult to contact Mr. Arnold, and counsel eventually served a subpoena on Mr. Arnold
at his probation office. A few days before trial, Mr. Arnold contacted trial counsel and
arranged a meeting, at which time he told trial counsel “some things that [he] didn’t think
would help [the petitioner] at trial.” Trial counsel later expounded on this statement,
agreeing that Mr. Arnold had, “[i]n so many words,” told trial counsel that the petitioner
had injured the victim by stating that “he wasn’t” in the bathroom and that the petitioner
“was around.” Trial counsel decided not to call Mr. Arnold as a witness because his
testimony would have directly implicated the petitioner, giving her “an opportunity to do
it, the motive to do it[,] and the means.” When asked if he had informed the petitioner of
the decision not to call Mr. Arnold as a witness, trial counsel responded in the
affirmative.
Trial counsel testified that, after he received the records from the
petitioner’s time at the mental health facility, he “was shocked at first at what they had
stated” and was concerned about “how to approach a defense of them.” Trial counsel
argued successfully to prevent the State from introducing those records at trial, but he
was concerned that “a tricky response” from the petitioner on the witness stand “could
open a door” to the admission of the records. Trial counsel also discussed the petitioner’s
past criminal record with her in conjunction with her decision to testify. Ultimately, the
petitioner’s decision not to testify was “made with [trial counsel’s] co-counsel and [the
petitioner] over numerous conferences.”
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Although he could not recall the specifics, trial counsel testified that the
State had made an offer to the petitioner that he believed was “fifteen years at a hundred
percent.”
Trial counsel and his two co-counsel visited the petitioner at the jail “on
numerous occasions” to interview her and prepare her for trial. Counsel stated that the
petitioner was “involved intimately” in preparing for trial, reviewing all evidence, and
selecting the jury. Trial counsel did not recall the petitioner’s request for a new attorney
or her expression of a desire to represent herself.
With this evidence, the post-conviction court denied relief, finding no clear
and convincing evidence that trial counsel’s performance was deficient or prejudicial,
noting that the petitioner had failed to provide the testimony of Mr. Arnold and that the
court could not simply “speculate on what that witness’s testimony would have been.”
The post-conviction court found that the record of the petitioner’s trial “clearly
demonstrate[d]” that the petitioner did not wish to testify and that the “defense pursued a
reasonable trial strategy (the injury was an accident) that ultimately was unsuccessful”
through no fault of trial counsel.
In this appeal, the petitioner reiterates her claim of ineffective assistance of
counsel, claiming that trial counsel performed deficiently by failing to present the
testimony of Mr. Arnold at trial, by failing to offer proof that the victim’s injuries were
accidental, by failing to communicate appropriately with the petitioner such that she
could make an informed decision about whether to testify, and by failing to assist the
petitioner in her quest to either procure new counsel or represent herself. The State
contends that the court did not err by denying relief.
We view the petitioner’s claim with a few well-settled principles in mind.
Post-conviction relief is available only “when the conviction or sentence is void or
voidable because of the abridgment of any right guaranteed by the Constitution of
Tennessee or the Constitution of the United States.” T.C.A. § 40-30-103. A post-
conviction petitioner bears the burden of proving his or her factual allegations by clear
and convincing evidence. Id. § 40-30-110(f). On appeal, the appellate court accords to
the post-conviction court’s findings of fact the weight of a jury verdict, and these findings
are conclusive on appeal unless the evidence preponderates against them. Henley v.
State, 960 S.W.2d 572, 578-79 (Tenn. 1997); Bates v. State, 973 S.W.2d 615, 631 (Tenn.
Crim. App. 1997). By contrast, the post-conviction court’s conclusions of law receive no
deference or presumption of correctness on appeal. Fields v. State, 40 S.W.3d 450, 453
(Tenn. 2001).
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Before a petitioner will be granted post-conviction relief based upon a
claim of ineffective assistance of counsel, the record must affirmatively establish, via
facts clearly and convincingly established by the petitioner, that “the advice given, or the
services rendered by the attorney, are [not] within the range of competence demanded of
attorneys in criminal cases,” see Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975), and
that counsel’s deficient performance “actually had an adverse effect on the defense,”
Strickland v. Washington, 466 U.S. 668, 693 (1984). In other words, the petitioner “must
show that there is a reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at
694. Should the petitioner fail to establish either deficient performance or prejudice, he is
not entitled to relief. Id. at 697; Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996).
Indeed, “[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of
sufficient prejudice, . . . that course should be followed.” Strickland, 466 U.S. at 697.
When considering a claim of ineffective assistance of counsel, a reviewing
court “begins with the strong presumption that counsel provided adequate assistance and
used reasonable professional judgment to make all significant decisions,” Kendrick v.
State, 454 S.W.3d 450, 458 (Tenn. 2015) (citing Strickland, 466 U.S. at 689), and “[t]he
petitioner bears the burden of overcoming this presumption,” id. (citations omitted). We
will not grant the petitioner the benefit of hindsight, second-guess a reasonably based trial
strategy, or provide relief on the basis of 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). Such deference to the tactical decisions of counsel, however, applies
only if the choices are made after adequate preparation for the case. Cooper v. State, 847
S.W.2d 521, 528 (Tenn. Crim. App. 1992).
A claim of ineffective assistance of counsel is a mixed question of law and
fact. Kendrick, 454 S.W.3d at 457; Lane v. State, 316 S.W.3d 555, 562 (Tenn. 2010);
State v. Honeycutt, 54 S.W.3d 762, 766-67 (Tenn. 2001); State v. Burns, 6 S.W.3d 453,
461 (Tenn. 1999). When reviewing the application of law to the post-conviction court’s
factual findings, our review is de novo, and the post-conviction court’s conclusions of
law are given no presumption of correctness. Kendrick, 454 S.W.3d at 457; Fields, 40
S.W.3d at 457-58; see also State v. England, 19 S.W.3d 762, 766 (Tenn. 2000).
In our view, the record overwhelmingly supports the ruling of the post-
conviction court. The petitioner’s three-sentence arguments regarding her wish for new
counsel or the opportunity to represent herself, along with her contention that trial
counsel failed to show that the injuries were accidental, are not supported by argument,
citation to authorities, or citation to the record; thus, both issues have been waived. See
Tenn. Ct. Crim. App. R. 10(b) (“Issues which are not supported by argument, citation to
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authorities, or appropriate references to the record will be treated as waived in this
court.”). In any event, trial counsel testified that he did not recall the petitioner’s having
requested new counsel or the opportunity to proceed pro se, and the post-conviction court
implicitly accredited that testimony. Furthermore, the post-conviction court explicitly
accredited trial counsel’s reasonable defense strategy of an accidental burning, and we
will not “second-guess a reasonably based trial strategy.” Adkins, 911 S.W.2d at 347.
Regarding the testimony of Mr. Arnold, the petitioner failed to present him
as a witness at the evidentiary hearing. As such, we cannot speculate how he might have
testified at trial. See Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990)
(“When a petitioner contends that trial counsel failed to discover, interview, or present
witnesses in support of his defense, these witnesses should be presented by the petitioner
at the evidentiary hearing.”). Finally, with respect to the petitioner’s claim that she was
not adequately informed about the decision of whether she should testify, the post-
conviction court found that the record of the petitioner’s trial “clearly demonstrated” that
she did not wish to testify, and the petitioner has failed to provide this court with a
transcript of her Momon colloquy. In the absence of a complete record of what transpired
in the lower court, we must presume that the post-conviction court’s rulings are supported
by sufficient evidence and affirm that court’s judgment. See State v. Oody, 823 S.W.2d
554, 559 (Tenn. Crim. App. 1991). As such, we hold the petitioner has failed to prove by
clear and convincing evidence any facts that demonstrate that trial counsel’s
representation was deficient or prejudicial.
The petitioner failed to establish that she was denied the effective assistance
of counsel at trial. Accordingly, the judgment of the post-conviction court is affirmed.
_________________________________
JAMES CURWOOD WITT, JR., JUDGE
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