Jonathan Tears v. State of Tennessee ( 2013 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
April 16, 2013 Session
JONATHAN TEARS v. STATE OF TENNESSEE
Appeal from the Circuit Court for Marshall County
No. 11-CR-76 Robert Crigler, Judge
No. M2012-01080-CCA-R3-PC - Filed December 6, 2013
Petitioner, Jonathan Tears, appeals from the trial court’s denial of his petition for post-
conviction relief following an evidentiary hearing. On appeal, Petitioner contends that the
trial court erred in denying the petition because the State violated his constitutional rights by
withholding material exculpatory information, and trial counsel rendered ineffective
assistance of counsel. More specifically, Petitioner contends that the State (1) failed to
disclose a statement made by the victim; (2) failed to disclose the statement of Ashton Davis;
(3) failed to disclose the statement of Felice O’Neal; (4) failed to disclose the statement of
Tangelia Alexander; and (5) failed to disclose payment from the Criminal Injuries
Compensation Fund. Petitioner argues that trial counsel rendered ineffective assistance of
counsel by (1) failing to “investigate, interview, subpoena, and call to the stand” Shelby
Harris, Darron Little, Alexander Harris, Jarrod Robinson, Zeldra Swaggerty, and Adriana
Cross; (2) failing to request Jenck’s material and cross-examine the victim concerning his
statement to Detective Oliver; (3) failing to request a ballistics expert to testify at trial; and
(4) failing to investigate and assert the defense of self-defense. Petitioner also argues that
trial counsel was ineffective on direct appeal for failing to raise Brady issues. Following our
review of the record, we reverse the judgment of the trial court denying post-conviction relief
and remand this cause for a new trial.
Tenn. R. App. P. 3 Appeal as of Right;
Judgment of the Circuit Court Reversed and Remanded for a New Trial
T HOMAS T. W OODALL, J., delivered the opinion of the court, in which J AMES C URWOOD
W ITT, Jr. and R OBERT W. W EDEMEYER, JJ., joined.
Robert Dalton, Lewisburg, Tennessee, for the appellant, Jonathan Tears.
Robert E. Cooper, Jr., Attorney General and Reporter; Clark B. Thornton, Assistant Attorney
General; Robert Carter, District Attorney General; and Weakley E. Barnard, Assistant
District Attorney General, for the appellee, the State of Tennessee.
OPINION
I. Background
Following a jury trial, and after the trial court’s mergers of guilty verdicts, Petitioner
was ultimately convicted of attempted second degree murder and employment of a firearm
during the commission of a felony. The facts underlying Petitioner’s convictions as recited
by this court on direct appeal are as follows, wherein Petitioner is referred to as “the
Defendant:”
Gary DeJuan O’Neal, the victim, testified that the Defendant dated his cousin,
Danielle O’Neal and that the Defendant and Ms. O’Neal had two children
together. A few weeks before the altercation, the Defendant and the victim
argued. The victim testified that on the night of May 10, 2008, he drank two
or three 12ounce beers before arriving at the Soul Train Bar and Grill in
Lewisburg, Tennessee with his girlfriend, Tikeya Johnson. Once he arrived
at the bar, he drank two mixed drinks of “gin and juice.” He consumed these
drinks within 10 or 15 minutes. At approximately midnight, the victim went
outside, where he saw the Defendant. The victim walked up to the Defendant
and said, “[We need to] stay away from each other because I don’t like you
and you don’t like me.” In response, the Defendant “pushed” or “mugged” the
victim’s head, and the two started fighting. When the victim, who was
winning the fight, stepped back, the Defendant retrieved a “semi-automatic
pistol-type weapon” from his waistband area and “loaded a bullet into the
chamber.” The Defendant then looked at the victim and shot him one time in
the neck before running away. The victim walked toward Ms. Johnson but
“slightly stumbled” before Ms. Johnson and Ashton Davis were able to help
him to his car. Ms. Johnson drove him to the hospital.
The victim testified that when he arrived at the hospital, he was in
“excruciating pain” until he was given medication. He said that the pain
medication did not relieve all of his pain and that he stayed in the hospital for
13 days. The victim testified that his pain did not fully go away until a month
or two later. The victim stated that the bullet collapsed his lung and that
doctors had to “repump” his lung. He stated that he was unable to eat solid
foods because of the pain resulting from the collapsed lung.
-2-
Ms. Johnson testified that she drank a shot of Calvert before she left for the bar
and that she drank a “hunch punch” when she arrived at the bar. She stated
that she was outside when the victim was talking to the Defendant. She heard
the victim when he said, “I don’t like you, and you don’t like me. Don’t
disrespect me, and I won’t disrespect you.” Ms. Johnson did not see the victim
and the Defendant fighting because she had walked to her car. She thought
“they were just going to squash everything” until she heard two gunshots.
When she ran back to the victim, she saw the victim taking his shirt off to
examine himself. She stated that she also saw the Defendant and a man named
Shelby Harris running along the right side of the building away from the
victim. She testified that she went inside the bar and told Ms. O’Neal that “her
baby’s daddy had shot [the victim].” After talking to Ms. O’Neal, Ms.
Johnson drove the victim to the Marshall County Medical Center.
Ms. Davis testified that she was also outside of the Soul Train Bar and Grill
when the victim and the Defendant were fighting. She testified that she saw
the Defendant smack the victim in the face. She said that after the Defendant
smacked the victim, the victim hit the Defendant. Ms. Davis testified that the
Defendant was losing the fight and that the victim was still hitting the
Defendant when the Defendant pulled out his gun and shot the victim. She
said that she did not see what happened next because “she took off running on
the side of the building when [she] heard the gunshot.” When she returned,
she saw that the victim was bleeding “somewhere in the chest area.”
Dr. Jose Diaz, a general surgeon and associate professor in the trauma, critical
care, and surgery division at Vanderbilt University, treated the victim at
Vanderbilt Hospital. Dr. Diaz testified that the victim was shot “just above his
sternal notch” and that the victim was also injured in the “right posterior
axillary area,” which is “just underneath the armpit area.” This second injury
was inflicted when the bullet exited the body. Dr. Diaz stated that the bullet
went through the “right thoracic cavity in the lung” and that as a result, the
victim “had bleeding into the thoracic cavity or chest wall cavity.” He stated
that the injury to the lung also resulted in “pneumothorax, which is air trapped
within the thoracic cavity” and that the air in the thoracic cavity escaped into
“the chest wall area.” He testified that he placed a chest tube into the thoracic
cavity in order to “drain the blood and the air” and “reexpand the lung.” He
stated that the victim also fractured two of his ribs and that the victim had to
take Fentanyl, a “very powerful narcotic medication” for his pain. Dr. Diaz
testified that the victim stayed at Vanderbilt Hospital for approximately five
-3-
days. He said that [the] victim’s injuries were life-threatening and that the
victim was in extreme physical pain until he was given medication.
Amanda Newcomb of the Lewisburg Police Department testified that she was
dispatched to the Soul Train Bar and Grill sometime between 1:00 and 2:00
a.m. on the morning of May 11, 2008. When she arrived, she attempted to talk
to the 10 or 12 people that were standing outside; however, everybody told her
that they did not see anything. In her investigation with Sergeant Anthony
McLean, who arrived approximately one minute after she arrived, they noticed
blood on a car that was parked near the front door. They found blood on the
sidewalk near the front door and a shell casing that was a “[c]ouple of inches”
from the blood. They also found a trail of blood along the right side of the
building. Sergeant McLean testified that the gray vehicle with the blood on
the hood was approximately two feet from the front door of the bar and that the
shell casing was found “within a foot” of the “passenger side of the front tire.”
Officer Jason Lee of the Cornersville Police Department testified that on May
14, 2008, he saw an object “on top of the old factory directly behind the Soul
Train” Bar and Grill. Because he believed that this object might be the
Defendant’s gun, he contacted Detective Sergeant Jimmy Oliver, who was the
lead detective handling the Defendant’s case. When Detective Sergeant Oliver
arrived, he went onto the roof and found what was believed to be the
Defendant’s gun. Officer Lee then identified photographs of the gun and the
location in which it was found. Officer Lee testified that a “[s]wirl mark” on
top of the building near the gun indicated that the gun had been thrown onto
the roof and then slid across the top of the building. He stated that there was
a bullet in the chamber of the semiautomatic weapon and that there was also
a magazine inside of the weapon.
Detective Sergeant Oliver of the Lewisburg City Police Department testified
that he was notified about the altercation at the Soul Train Bar and Grill and
that he arrived after Officer Newcomb and Sergeant McLean arrived. He
identified several photographs that he took in the Soul Train Bar and Grill
parking lot and a 9 millimeter shell casing that he recovered from the crime
scene. He stated that he did not find the bullet at the scene but that he noticed
a dent in a nearby car that was likely caused by the bullet. He said that he
found blood on the hood of the dented vehicle. He also found blood in several
places on the ground. He found blood toward the front of the Soul Train
building and to the left of the dented vehicle, in the alleyway to the right of the
building, and in various spots on the sidewalk in front of the building. He
-4-
stated that with the help of Officer Lee, he located a 9 millimeter semi-
automatic weapon on top of the building behind the Soul Train Bar and Grill.
Detective Sergeant Oliver then identified the 9 millimeter weapon, the 9
millimeter round that was found in the weapon, and the magazine that was
found in the weapon.
Detective Sergeant Oliver testified that the Defendant was found in Memphis
on May 27, 2008. On cross-examination, Detective Sergeant Oliver testified
that the Defendant had “an older scar” above his eye when he was found in
Memphis and that the blood found along the side of the Soul Train Bar and
Grill likely belonged to the Defendant because the victim did not go in that
area after he was shot.
Suzanne Lafferty of the Tennessee Bureau of Investigation (TBI) crime
laboratory in Nashville testified that she did not find any fingerprints on the
cartridge from the magazine found in the weapon or on the cartridge found in
the chamber of the weapon.
Alex Brodhag of the TBI forensic services division testified that through his
examination of the weapon involved in this case, he was able to determine that
the cartridge that was found in the weapon had been chambered and extracted
from the pistol but not fired from the pistol. He testified that he also examined
the shell casing that was recovered from the crime scene and that he believed,
in his expert opinion, that the shell casing was fired from the 9 millimeter
weapon that was found on top of the building next to the Soul Train Bar and
Grill.
Jenise Nelson of the Marshall County Circuit Court Clerk’s Office testified
that the Defendant was convicted of possession of cocaine with intent to sell
and possession of cocaine with intent to deliver on March 11, 2002. The
judgments reflect that the trial court merged these two convictions and
sentenced the Defendant to 12 years.
Dr. Jeffery Jordan, an optometrist of the Advanced Eye Care Clinic, testified
for the defense. Dr. Jordan stated that he examined the Defendant in August
2008 because the Defendant complained of “flashes of light in his vision and
black spots in his vision.” He stated that black spots in patients’ eyes are
generally caused by what he calls “floaters” and that flashing lights in patients’
eyes are generally caused by jelly in the eye that moves back and forth, pulls
the retina, and fires the photo receptors, causing the patient to receive an
-5-
“electrical stimulation of a flashing light.” He stated that the Defendant’s
condition would be normal for someone in their 60s or 70s because the “jelly”
in the eye tends to “shrink up with time” and “pull[ ] off of the retina” as it
shrinks, which causes the flashing lights. Dr. Jordan testified that if a young
patient is experiencing these kinds of symptoms, then the condition is
generally trauma-related. Dr. Jordan stated that the Defendant told him that
he had been struck in the left eye. Dr. Jordan testified that “blunt trauma
would most likely have caused the floaters and the syneresis, which is the jelly
that coagulates in such a young patient.” On cross-examination, Dr. Jordan
admitted that the Defendant’s injury did not impact his vision but stated that
the Defendant’s condition would never improve.
State v. Jonathan Doran Tears, No.M2009-01559-CCA-R3-CD, 2010 WL 4674264, at *1-2
(Tenn. Crim. App. Oct. 26, 2010).
Post-Conviction Hearing
Petitioner testified that he was represented by two members of the public defender’s
office who will be referred to as trial counsel and co-counsel. He also spoke with the Public
Defender a couple of times. Petitioner denied talking with any investigators from the public
defender’s office. Petitioner claimed that he brought the issue of self-defense to the
attention of his attorneys, and they briefly discussed it. He said, “But it was like everything
that I brought to their attention, they somewhat shot down, like it was irrelevant.” Petitioner
testified his attorneys said that they would check into the issue, but they were “just
nonchalant” about it.
Petitioner testified that he later received paperwork from “a friend of [his] on the
streets” which showed the “parameters you have to cover to prove self-defense in a case.”
He gave the paperwork to trial counsel, but they never discussed it. Petitioner testified that
trial counsel and co-counsel indicated that they were having trouble locating witnesses and
that self-defense would be hard to prove. Petitioner testified that he brought up self-defense
every time that he spoke with his attorneys. He said that they did not review the elements of
self-defense with him. Petitioner testified that he discussed with trial counsel and co-counsel
whether Petitioner landed the first blow to the victim, and Petitioner told them that he did
not. However, he admitted that Ashton Davis testified that Petitioner pushed the victim
“upside” the head. Petitioner did not consider that a blow. Petitioner testified that trial
counsel and co-counsel said that it would be hard to show self-defense because Petitioner
touched the victim first.
-6-
Petitioner testified that he told trial counsel and co-counsel about witnesses for his
defense. He told them that he had learned from “mutual friends” that Shelby Harris was
present on the night of the offenses and that Mr. Harris and the victim had a verbal
confrontation before Petitioner arrived at the bar. Petitioner testified that he told the Public
Defender’s Office that Mr. Harris was a potential witness, and he made it clear to them what
Mr. Harris’ testimony would be. Petitioner said that he also informed trial counsel and co-
counsel about “Mr. Conger, Jr.” who was the “doorman” at the bar, and a bar employee
named “Tasha” who witnessed the victim being removed from the bar for being unruly with
other patrons. Petitioner testified that he told trial counsel and co-counsel about Daron Little
and Alex Harris, who had told Petitioner’s girlfriend that he was present at the time of the
offenses and that he was available to testify.
Petitioner testified that he initiated conversation with trial counsel and co-counsel
about the possibility of expert testimony. However, trial counsel said that the testimony
would not be relevant. He testified that the Public Defender also informed him that the public
defender’s office was going through a “budget crisis” and that the court would not pay for
an expert witness. Petitioner testified that he was also told to bring the issue up on post-
conviction. He said that no motion was filed requesting an expert witness, and he believed
that a ballistics expert could have proven that the victim was untruthful about the way the
shooting happened. Petitioner thought that proof about the trajectory of the bullet and the
victim’s wounds would have proved the victim was lying. He said that he asked about a
ballistics expert every time that he met with his attorneys. Petitioner testified that DNA
analysis could have been used to prove that blood found at the scene on the car belonged to
Petitioner where his eye had been cut rather than the victim.
Petitioner testified that the only witness to testify on his behalf at trial was “Dr.
Jordan,” who testified about Petitioner’s eye injury. He said that trial counsel and co-counsel
said that they could not find any other witnesses. Petitioner testified that from the beginning,
trial counsel and co-counsel told him that it would not be in his best interest to testify.
Although he thought that the jury should hear his side of the story, Petitioner agreed with trial
counsel’s position that his testimony “wasn’t worth the gamble” due to his criminal record.
He had prior convictions for simple possession, facilitation of a felony - aggravated robbery,
possession of a weapon, possession of cocaine for resale, and simple possession of a
Schedule VI drug.
Petitioner testified that Shelby Harris was present at trial because he had been
subpoenaed by the State. However, the State did not call Mr. Harris as a witness. Petitioner
claimed that he asked trial counsel to call Mr. Harris to the stand, but trial counsel refused
stating that he was not allowed to call Mr. Harris as a witness because he had been
subpoenaed by the State, and the State did not call him to the stand.
-7-
Petitioner testified that he never discussed the victim’s statement with trial counsel
and co-counsel and that he brought the victim’s statement to their attention. He said that he
first noticed the statement at the sentencing hearing and that the statement went against the
victim’s trial testimony. He said that neither trial counsel nor co-counsel requested the
victim’s statement after the victim testified at trial even though he asked them about getting
the statement. Petitioner testified that he also brought the victim’s testimony at the
preliminary hearing to counsel’s attention.
Petitioner testified that he never discussed Felice O’Neal’s statement or Tangelina
Alexander’s statement with trial counsel or co-counsel. They also did not discuss a payment
of $20,000 made to the victim. Petitioner testified that he wanted trial counsel and co-
counsel to see if they could get a toxicology report to show that the victim had been using
cocaine and alcohol heavily. However, trial counsel informed him that the report would be
impossible to obtain.
Petitioner testified that he wanted his attorneys to find out why the victim was allowed
to “com[e] back and forth to court” to testify against him when the victim was supposed to
be serving “county time” for non-payment of child support. He said that trial counsel and
co-counsel said that they could not ask the victim about the child support violation because
it was a “civil matter” and not relevant. Petitioner thought that “some kind of deal” had to
have been made “to keep him on the street[s].” However, he admitted that the victim served
six months in jail before Petitioner’s trial. Petitioner testified that the testimony of Ashton
Davis was different than that of the victim. He felt trial counsel should have brought out
those differences.
Petitioner testified that he did not meet with trial counsel or co-counsel after the
sentencing hearing, and he was again represented by the public defender’s office on appeal.
He said that no one discussed a basis for the appeal with him, and they just sent him the
“stuff” in the mail.
Shelby Harris testified that he was subpoenaed to court in Petitioner’s case, but he was
never called as a witness. He said that he was present for two days in a room downstairs in
the courthouse, and he never spoke with anyone from the Public Defender’s Office. Mr.
Harris later gave a statement to post-conviction counsel, which would have been his
testimony at trial. In the statement, Mr. Harris said that he saw Petitioner shoot the victim
while the victim was still beating Petitioner. However, in his statement to police, Mr. Harris
had said that he was inside the bar and did not see the fight or the shooting. Mr. Harris
claimed that he lied to police and that his statement to post-conviction counsel was truthful.
He admitted that he did not initially talk with police at the bar after the shooting. He later
gave a statement to Detective Jimmy Oliver.
-8-
Jared Robinson testified that he was present at the Soul Train Bar in 2008, and he saw
what happened during the shooting. He was never contacted by anyone and later provided
post-conviction counsel with a statement. In the statement, Mr. Robinson indicated that he
saw the victim and Petitioner fighting and that the victim had Petitioner “spread out on the
hood of a vehicle, punching him repeatedly in his face.” He further stated that when he heard
the gun shot, the victim was still on top of Petitioner beating him. On cross-examination, Mr.
Robinson testified that he did not wait for police on the night of the shooting and left the
area. He claimed that he did not want to get involved in anything. Mr. Robinson said that
he heard a gunshot but never saw a gun. He saw Petitioner run away after the shot was fired.
Mr. Robinson testified that four or five of Petitioner’s friends were outside the bar on the
night of the shooting. He thought that Petitioner would be seriously injured or killed, but he
never attempted to separate Petitioner and the victim.
Zeldra Swaggerty testified that she was also present during the shooting and was never
contacted by anyone. She gave a statement to post-conviction counsel. In the statement, Ms.
Swaggerty said that she saw the victim beating Petitioner and that he threw Petitioner on a
car. She said, “While on the ground fighting, the gun went off. It was close range during [a]
fight.” On cross-examination, Ms. Swaggerty testified that she left the bar before police
arrived because she was pregnant at the time. She later went to the hospital, and police were
also there. She never told them that she saw what happened. Ms. Swaggerty admitted that
she did not tell anyone what happened even after knowing that Defendant had been arrested.
She also did not tell Petitioner’s family that she was a witness. Ms. Swaggerty testified that
she never went inside the bar on the night of the shooting, and there were six or seven people
standing outside the bar at the time. Ms. Swaggerty testified that Adrianna Cross was with
her, and she parked in front of the bar and was standing beside her car at the time of the
shooting. She said that she was “not even a foot” from the shooting but, that she did not see
a gun or who pulled the trigger.
Adrianna Cross testified that the victim is her cousin, and she knew Petitioner very
well. She saw what happened during the shooting but was never contacted by anyone about
the case. Ms. Cross later gave a statement to post-conviction counsel. She testified that she
had previously been represented by the public defender’s office, and she knew where the
office was located. Ms. Cross testified that she was standing approximately five feet away
and saw the victim hit Petitioner with a bottle. She also noticed that the victim’s eyes were
“glazed.” She then saw Petitioner shoot the victim. Ms. Cross testified that she rode to the
hospital with Ms. Swaggerty after the shooting to check on the victim. She saw sheriff’s
deputies at the hospital, but she did not tell them that she witnessed the shooting. Ms. Cross
admitted that when she later learned that Petitioner had been arrested, she did not contact law
enforcement because it was not “her place” to do so.
-9-
Darron Little testified that he was present at the Soul Train Bar during the shooting.
He was with Shelby Harris and witnessed the victim causing trouble with Petitioner. Mr.
Little testified that the victim was drinking and snorting cocaine and was later removed from
the bar for trying to start fights. Mr. Little testified that he grew up with the victim and
Petitioner, and he was trying to help the victim stay out of trouble. He heard the victim say
that he did not like Petitioner. Mr. Little admitted that he did not see the victim approach
Petitioner nor did he see how the fight began. He was inside the bar when he heard the
gunshot. Mr. Little testified that after the shooting, he saw that Petitioner was injured, and
his eye was swollen shut.
Mr. Little testified that approximately ten people called him after the shooting to talk
about the incident. He said that the shooting was discussed among social circles at the bar.
From his discussions with other people, Mr. Little knew who was present at the bar at the
time of the shooting. Mr. Little testified that he was never contacted by anyone about the
case, and he never spoke with police. The first person he informed about his knowledge of
the events was post-conviction counsel.
On cross-examination, Mr. Little testified that there were many people in the bar at
the time of the shooting. He thought that Jerrod Robinson was probably outside the bar. Mr.
Little remembered seeing Ms. Swaggerty and Ms. Cross at the bar on the night of the
shooting, and he saw them inside the bar at some point and also outside of the bar. He did
not recall where Shelby Harris was located when the shooting occurred. Mr. Little testified
that he saw the victim using cocaine outside of the restroom “where everybody stands at. Me,
him, Mr. Harris, and probably some other ones that was doing it with him.” Mr. Little
testified that he did not use any cocaine, and he did not know who provided the substance.
He admitted that he had been drinking beer that night. Mr. Little testified that he was
incarcerated for the sale of a Schedule II drug at the time of the post-conviction hearing. He
had also been convicted of simple assault and aggravated assault, and he had other
convictions for the sale of Schedule II drugs.
Mr. Little testified that he was inside the Soul Train Bar when police arrived, and he
did not speak to them. He said that he had no reason to speak with them, and he went home.
Mr. Little testified that he did not attempt to contact Petitioner’s attorneys. He admitted that
he and Petitioner were housed in the same penitentiary.
Alexander Harris testified that he witnessed the events at the Soul Train Bar, and no
one contacted him about it. He first spoke with post-conviction counsel about it in 2011 and
gave a statement. He said that he would have testified in accordance with the statement if
he had been called to testify at Petitioner’s trial in 2009.
-10-
On cross-examination, Mr. Harris testified that he witnessed the shooting and saw the
gun that he described as a black pistol. He thought that Petitioner was on the hood of a car
and, that the victim was on top of petitioner hitting him when Petitioner retrieved the gun
from his back pocket. He did not recall how Petitioner held the gun when he shot it. Mr.
Harris admitted that he had three prior convictions for the sale of crack cocaine.
Mr. Harris testified that he had been sitting in the car with the victim approximately
thirty minutes before the shooting. He explained that he was only seventeen years old at the
time and could not go into the bar. Mr. Harris said that when Petitioner drove up, the victim
indicated that he was going to “whip” Petitioner. Mr. Harris said that the victim “jumped out
of the car and went down there and did what he said he was going to do.” He thought that
the victim had snorted a gram of powder cocaine while he was in the vehicle. Mr. Harris
testified that he did not use any cocaine while in the car and that he smoked a cigarette. He
said that he rode to the bar with Mr. Robinson who was inside at the time. Mr. Harris
testified that he saw Petitioner run away from the scene. Mr. Harris then ran across the street
to the “projects” and then walked home.
Mr. Harris testified that his statement indicated that Petitioner acted in self-defense.
He knew Petitioner was later arrested; however, he never attempted to tell Petitioner’s
attorneys what happened even though they were also representing Mr. Harris on other
charges. He said that he was worried about himself at that point. He also did not feel that
it was his “place” to tell police what he saw because it did not “involve” him. Mr. Harris
admitted that if someone from the public defender’s office had talked to him after the
shooting, he would not have told them anything. On redirect, Mr. Harris acknowledged that
he had told post-conviction counsel that he was not going to cooperate at the post-conviction
hearing.
Trial counsel testified that he and co-counsel filed for and received discovery in
Petitioner’s case, and they reviewed the materials with Petitioner. They also reviewed the
State’s witness list with him. Trial counsel testified that there were two investigators for the
public defender’s office that were assigned to assist in investigating and preparing
Petitioner’s case. The investigators were used to “try to track down witnesses in this case.”
Trial counsel testified that co-counsel handled the preliminary hearing in Petitioner’s
case, and trial counsel later discussed the hearing with him. The tape of the preliminary
hearing was also transcribed. Trial counsel and co-counsel met with Petitioner “numerous
times” during court appearances and at the jail for a minimum of eleven times. They
discussed the facts of the trial, strategy, punishment, settlement, trial, and potential defenses
numerous times. Trial counsel testified that self-defense was discussed “quite a bit” and that
-11-
it was their trial strategy. He said that Petitioner was not the only one who brought up the
discussions on self-defense.
Trial counsel was familiar with a statement by the victim that was later reproduced
in the presentence report in its entirety. When asked by the assistant district attorney general
if he was familiar with the statement before trial, trial counsel testified:
We were familiar with what was going on with it, because I had spoken to you
informally numerous times, and also Detective Oliver. I found out a lot of
informal discovery about the case.
And you had told me that Detective Oliver had went down to the hospital to
talk to [the victim] while he was still under the effects of medication. I believe
you also told me that he went back a couple of days after that, after he got out
of the hospital, which if I remember right, I don’t think he was in all that long.
Maybe two or three days, at the most.
Trial counsel said that the content of the statement did not “throw [him] for a loop or
anything like that.” He said that it was not unusual for him to be given open file discovery
from the district attorney general’s office in a case. Therefore, he was already acquainted
with the statement when it came out in the presentence report.
Concerning self-defense, trial counsel testified:
Self-defense was a problem for a number of reasons. We didn’t completely
rule it out. We probably were pessimistic with [Petitioner] about it.
Sometimes it did get contentious over that issue. But he had several problems
going in because he was the only one that was armed with a gun.
He had a felony record for sale of cocaine.
What it amounted to was, it started out as just a fistfight, and [Petitioner]
started the fight. So he had numerous things that were problematic.
The best thing we had going for us was the fact that Dr. Jordan was willing - -
well, “willing” may be a strong word. We subpoenaed Dr. Jordan to get him
up here, and he was going to relate that the - - I guess the term is cobwebbing
or lines that [Petitioner] sees out of his left eye; and also, the auras or lights
surrounding things, that that is consistent with being hit by a lot of blunt-force
trauma.
-12-
Trial counsel testified that Petitioner gave him and co-counsel the names of Bill
Conger, Jr., Bill Conger, Sr., Petitioner’s ex-girlfriend Ms. O’Neal, Telia Alexander, Andrea
Locke, and Ashton Davis as potential witnesses. Trial counsel testified that his office then
attempted to contact the individuals. He said that an investigator spoke with Bill Conger, Jr.,
and he was “more problematic than helpful.” Mr. Conger, Jr. said that the victim was told
to leave the bar and “cool down,” but he was not “kicked out” of the establishment.
However, he said that Petitioner had been told the night before not to come back. Trial
counsel did not recall anything of “substantial assistance” from Bill Conger, Sr. Trial counsel
remembered seeing Shelby Harris’ name on the witness list, but Petitioner did not say
anything about Mr. Harris. Concerning Ashton Davis, trial counsel testified: “Ashton Davis
was not forthcoming with us. The information she told us was not consistent with that she
said at trial.” However, when called as a witness, Ms. Davis’ testimony “helped us quite a
bit.” Trial counsel testified that Petitioner did not provide the names of Alexander Harris,
Darron Little, Jarrod Robinson, Zeldra Swaggerty, or Adrianna Cross. Trial counsel did not
recall any of Petitioner’s family members contacting him with information about the
witnesses in the case.
Trial counsel testified that he was sure that he and co-counsel went over the elements
of self-defense, but he did not recall seeing any paperwork from Petitioner on the subject.
He noted that discussions with Petitioner about self-defense “ranged from tense to very
contentious at times.” Trial counsel testified:
He didn’t like what we had to say about self-defense because we had to point
out the problems that we had with it. He didn’t like what I had to say about the
problems with trying to get an expert regarding ballistic trajectory.
It wasn’t that I said we couldn’t get the funding for it. It is the fact that the
trajectory expert wouldn’t have helped because it was in contention about
where the people were standing.
They have to have fixed positions and know a lot about the scene in order to
be able to accurately say what is going on when it comes to trajectory.
Trial counsel denied telling Petitioner that money was the issue concerning a ballistics expert
rather than the facts. He said, “We probably told him that the judge would not give us one
on the basis that we didn’t have anything solid to go on, as far as the trajectory expert would
be. And the AOC doesn’t like to hand out experts for no reason.” Trial counsel did not
recall Petitioner telling him that other funds were available for an expert, and he “would
never tell him that it would be unethical for us to get an expert from our clients.”
-13-
Trial counsel testified that he would never have told Petitioner that he could not call
Shelby Harris as a witness. He said, “At that point in the trial, I definitely did not want to
call Shelby Harris because I would not have known what Mr. Harris was going to say. Trial
counsel also felt that he and co-counsel did a good job of painting the victim as intoxicated
at the time of the shooting. Trial counsel got the victim to admit to drinking a minimum of
five or six shots, and he admitted to drinking two 12-ounce gin and juices.
Trial counsel testified that all he argued at trial was self-defense in both opening and
closing statements, and through his examination of witnesses he tried to establish self-
defense. A self-defense instruction was also given by the trial court. Trial counsel said that
Petitioner was “irritated” because trial counsel thought that Petitioner would have been better
off to take the State’s fourteen-year offer rather than gambling on self-defense. Trial counsel
testified:
We had some good medical evidence from Dr. Jordan. But at the same time,
you had someone that the jury was going to hear was a felon, because of the
charges that were involved related to the handgun. And if he testified, they
would hear about, at the very minimum, his sale of Schedule II. And he was
going to a bar with a gun in his pocket.
He started the fight by what they call mugging the other guy, by smacking him
or hitting him in the face.
Trial counsel testified that there was nothing in the medical records to indicate that the victim
had been using cocaine. He checked with Vanderbilt Medical Center and could not find
anything indicating that there was a “tox screening or [the victim] being on any sort of
drugs.” Trial counsel testified that he spoke with Detective Oliver about the allegation that
the victim hit Petitioner with a bottle. There was no evidence of a bottle found at the scene.
Trial counsel testified that he got the victim to admit that he was beating Petitioner “pretty
badly before he was shot.”
Trial counsel testified that the victim was awarded $20,000 from the Criminal Injuries
Compensation Fund to cover some of his medical bills. The money was not to “pay off” a
witness. Trial counsel knew that the money was going toward medical bills.
Trial counsel testified that a brief was prepared in Petitioner’s case and a copy was sent to
him. He did not recall receiving any communications from Petitioner about the appeal.
Concerning statements by Felice O’Neal and Tangelia Alexander, trial counsel
testified:
-14-
We, at the very least, attempted to speak to Tangelia Alexander. I am pretty
certain they got [in touch with] her. And she didn’t know - - when I say “they”
I mean [Investigators] Marshall Campbell and Fred Holloway.
She didn’t really know anything about the incident. She didn’t see it happen.
Ms. O’Neal, which I believe was either [Petitioner’s] ex-girlfriend or girlfriend
at the time, he could tell us himself that she didn’t see anything because she
was actually in the club, so she didn’t really know anything, either.
Trial counsel admitted that Ms. O’Neal’s and Ms. Alexander’s statements referred to
communications after the shooting. In Ms. O’Neal’s statement there was mentioned a picture
of Petitioner’s eye where the victim had hit him. This photograph was retrieved from Ms.
O’Neal’s cell phone. Trial counsel testified that the information was provided through
discovery.
Concerning the statements, trial counsel testified:
We couldn’t really use them because anything that was told to Tangelia
Alexander was hearsay because she didn’t actually see what happened. I think
she spoke to [Petitioner] after the fact, but she didn’t see anything, so she had
no firsthand knowledge.
Trial counsel testified that Ms. O’Neal’s statement was also hearsay because she was inside
the bar at the time of the shooting. He said, “The only thing pertinent that she provided was
the picture of [Petitioner’s] eye.”
Concerning Petitioner’s appeal, trial counsel testified:
We keep our clients informed by showing them everything that is filed. But
appeals are strictly legal arguments, so it is up to the attorney to determine
what the valid legal arguments would be, which in this case, it was sufficiency
of the evidence and sentencing, and that was it. I didn’t see any other issues.
Trial counsel noted that in addition to being sent a copy of everything that was filed,
Petitioner would have been sent a copy of “[a]nything that comes through,” including the
opinion. Trial counsel did not recall receiving any complaints from Petitioner about the
issues that were raised.
-15-
On cross-examination, trial counsel testified that the first time he saw the victim’s
statement word for word was in the presentence report. However, he knew what the victim
was going to say from talking to Detective Oliver and the prosecutor about the case. There
had also been a preliminary hearing. Trial counsel testified that he found out what the victim
had said through “informal discovery.” He noted that the victim had given two different
statements. “One was when he was under the effects of the medication. Then he have
another one, which placed him closer to the car.” Trial counsel testified that he first saw the
statement by the victim which read, “We were scuffling up against a car, and I heard like a
pow noise and I let off of John-John,” printed in the presentence report. However, he was
“generally” told about the statement. Trial counsel acknowledged that at trial, the victim
testified that when he was shot, he had already let go of Petitioner and had stepped back from
Petitioner. The following exchange then took place concerning the victim’s testimony:
[Post-conviction Counsel]: - - prior to being shot?
Now, in the Court of Criminal Appeals’
opinion on this case - - have you had an
opportunity to review that opinion?
[Trial Counsel]: Yes. It has been a while, but I have read
over it.
[Post-conviction Counsel]: Do you recall in that opinion of the Court
of C riminal A ppeals specifically
mentioning this step back as a factor into
their opinion?
[Trial Counsel]: They are going to look at things in the
light most favorable to the State on appeal
because they are not going to reexamine
the witnesses and decide who is lying and
who is telling the truth.
[Post-conviction Counsel]: Now, in the statement of [the victim] that
I previously provided to you, I believe it is,
I think, the second or third sentence there,
could you read me what that statement
actually says with respect to their physical
proximity at the time of the gunshot?
-16-
[Trial Counsel]: “The next thing I know, we were scuffling
up against a car, and I heard a, like a pow
noise, and I let off of [Petitioner] and
grabbed my throat. There was a crowd of
people yelling for me to get down, and I
remember taking my shirt off and going to
the ground.”
[Post-conviction Counsel]: That statement there, does that seem to you
to be consistent with him letting off prior
to the shot, the fight being over, and him
taking a step back?
[Trial Counsel]: No, it is not, but it is consistent with what
Ashton Davis said on the stand.
[Post-conviction Counsel]: It is consistent with what Ms. Davis said,
but not what [the victim] said?
[Trial Counsel]: Yes, sir.
[Post-conviction Counsel]: After [the victim] testified to these things,
did you then request that the State give you
a copy of his statement, this statement
right here, prior to cross-examining him?
[Trial Counsel]: I don’t remember if I asked for Jencks
material on him or not.
Trial counsel testified that he referred to the transcript of the preliminary hearing during his
cross-examination of the victim.
Trial counsel did not recall the victim denying alcohol consumption. He noted that
at trial, the victim “admitted to drinking two 12-ounce gin and juices.” The victim further
admitted that he drank multiple shots of liquor, “maybe as many as five per 12-ounce, which
would put in easily over six, probably closer to ten shots, in about 20 minutes before this
scuffle happened, this shooting.” Trial counsel agreed that the victim’s statement in the
presentence report, that he could not recall what occurred because he was too drunk, to a
certain degree comported with his trial testimony because the victim admitted to drinking
-17-
“quite a bit of alcohol.” Trial counsel acknowledged that in his statement to police, the
victim said due to his alcohol consumption, he did not recall why he went to talk to
Petitioner. At trial, the victim testified that he went to talk to Petitioner because they had
argued in the past. The victim also remembered the exact details of why he approached
Petitioner. Trial counsel admitted that the victim’s testimony was inconsistent with his
statement to police; however, trial counsel testified: “Yes, but that doesn’t really help any
because, once again, we are in a situation where we had a guy that was unarmed that was
shot.” Trial counsel felt that the differences between the statement and the victim’s trial
testimony was a “very minor ding on his credibility, at best.”
Trial counsel testified that he and co-counsel had worked out a plea offer for
Petitioner to aggravated assault and a felony weapons charge with a sentence of fourteen
years instead of attempted second-degree murder. However, Petitioner did not want to accept
the plea and was “belligerent about that.” Trial counsel felt that the trial could have gone
either way. He argued to the jury that Petitioner suffered serious bodily injury by the victim
and that Petitioner’s actions involved reasonable force. However, trial counsel noted that
Petitioner had a criminal history, went into a bar, and started a fight. Trial counsel testified
that although some of the witnesses at the post-conviction hearing indicated that the victim
started the fight by hitting Petitioner with a bottle, there was no evidence of a bottle found
at the scene. Trial counsel testified that his major concern with Petitioner’s case was that he
was in the middle of a fight with someone, pulled out a gun, and shot him.
Trial counsel testified that he did not recall Petitioner giving him a phone number for
Shelby Harris. He first became aware that Mr. Harris was a potential witness when he
received discovery. When asked what efforts were made to contact Mr. Harris, trial counsel
testified:
I don’t recall specifically what efforts we went through. I assume that the
investigators - - I probably told the investigators to look for him. But
[Petitioner] never really focused on Shelby Harris at all. He focused on
Andrea Locke, Tangelia Alexander, Ms. O’Neal, but not even her so much as
those two, plus Aston Davis. Those were really the three that he focused on:
Davis, Alexander and Andrea Locke, and Conger. Sorry.
Trial counsel noted that if Petitioner had told them that Mr. Harris was outside and witnessed
the fight, they would have tried to “track him down.” He said that were “plenty” of people
on the State’s witness list who had “major and minor roles.” They tried to focus on the
witnesses that Petitioner told them were present and knew something about the case.
-18-
Trial counsel testified that he knew Mr. Harris was present during the trial. When it
became obvious that the State was not going to call Mr. Harris as a witness, trial counsel
testified that he and Petitioner may have had a conversation about calling Mr. Harris to
testify. However, trial counsel said: “[I] was not going to call a witness that I didn’t know
what he was going to say when things were going pretty well, based upon Ashton Davis’
testimony; and also on Mr. O’Neal’s testimony about admitting to being highly intoxicated
and also saying that they had problems in the past. That was really a gamble.”
Trial counsel noted that Ashton Davis was a “very reluctant witness.” Trial counsel
testified:
She did not admit to what she admitted to on the stand. I recall that. She did
not say anything about actually seeing what occurred and that [the victim] had
him down on the car, which she did say at trial.
Trial counsel testified that the defense did not call any eyewitnesses at trial. He noted that
they “relied on the ones that the State called and cross-examined them.” They did not know
about any of the witnesses who testified at the post-conviction hearing.
Concerning Alexander Harris, trial counsel testified that if Mr. Harris had told them
that he saw the victim consume cocaine immediately before Petitioner approached and
attacked him, it could have helped Petitioner’s case. However, trial counsel noted that Mr.
Alexander, whom they were also representing at the time, did not come forward with any
knowledge of the case. Trial counsel testified: “I didn’t know Alexander Harris knew
anything about this.”
Trial counsel testified that the payment to the victim from the Criminal Injuries
Compensation Fund was a nonissue to him. He said:
People that are victims of crimes get money from the compensation fund. That
money is going to go to pay hospital bills. In my opinion, it would be
unethical for me to try to paint it as he is being bribed by the State because that
it not what it is.
Trial counsel did not believe that payment of the money would go to the credibility of the
witness. Trial counsel further testified:
Now, if it was $20,000 in cash that was going into [the victim’s] pocket, then
I could see that being compounding a crime, which is a crime itself, but that
is not what is going on here. That is going to pay medical bills.
-19-
Assistant Attorney General Weakley Barnard testified that he was assigned to
prosecute Petitioner’s case. Concerning the victim’s statement, Mr. Barnard testified:
My recollection of what happened in that statement is as follows:
With the Public Defender’s office, they file a letter of discovery, which had
been approved by the Court and agreed to by our office many years ago.
Then the State filed a written response to that discovery. And typically, here
in Marshall County - - I don’t know how it is done in the other three counties
of our district; it’s just sort of the way I have done it - - the Public Defender’s
office, unlike many private practitioners, has a good portion of our caseload.
We have 100 percent. My speculation is they have a good 75 percent of the
100.
It has been my policy to file the written discovery and to also have a semi open
file discovery with them. Also, if there is a situation that I think they need to
be made aware of, then I specifically point out situations with them.
As an example, the last trial we had, I let them look at our file. I let them look
at our witness list. I let them know what order of proof. I probably did that in
this case. It is typically what I do with them because I know they are under the
same pressures that we are.
In this particular case - - we were - - early on in the investigation when I
became aware of the case, we had, at the time, I think one witness who had
actually come forward and named the defendant as the shooter.
We pretty much - - “we,” being law enforcement, me working with them - -
they pretty much knew and had told me that they had figured out that
[Petitioner] was the shooter in the case.
But I was still concerned about having as many witnesses as we could possibly
have to put the gun in his hand and make him the shooter, for trial purposes,
if we got there.
As this point in time, I did not know and could not find out, because we have
the same problem with Vanderbilt that defense counsel suggested that he had
when he tried to call them - - we cannot call up there and find out the condition
of a patient, even if he is a victim. They are claiming that comes under the
-20-
federal legislation. I have always disagreed with them during - - about an
investigation. I point out the legislation to them. But they - - I can’t get them
off of dead center.
I cannot call up there, nor could the detectives call up there and find out [the
victim’s] condition.
I sent Detective Jimmy Oliver, at my request, to go up there and communicate
with [the victim] for one specific fact - - well, actually two - - to find out
whether he was going to live or die, because at the time we didn’t know.
Two, if he was available to answer a question, to determine whether or not he
could identify his shooter, because I did not have - - I had absolutely no
interviews with him the night of the shooting, no statements from him.
Detective Oliver went up there on May 13 and spoke to [the victim].
Mr. Oliver came back and told me that he was highly sedated, but he brings
back the statement - - I can’t remember what - - the exhibit number, but the
statement that was taken on - - excuse me. It’s Exhibit Number 16.
He obtained that statement at that time and brought it back to me.
I looked at the statement. He named the shooter. And I put that aside until he
got out of the hospital, which was a few days later.
The defendant - - or excuse me.
The victim and his mother, without invitation, didn’t know they were coming,
came by my office. And he had a lot of concerns about the statement that he
gave to Detective Oliver.
He pointed out that he was under sedation, pain medication, whatever, and he
really didn’t know what he told Detective Oliver.
I handed him a copy of his statement, which is what I had, not the original.
And he told me that the statement was incorrect. He pointed out that - - he
didn’t deny he had been drinking. He didn’t deny he went outside. He didn’t
deny that he and [Petitioner] had words.
-21-
But when it says, “I can’t remember because I had been drinking,” he denied
that. He said, I do remember. He explained to me how he remembered.
Then it says, “The next thing he knew, we were scuffling up against the car
and I heard a pow noise.”
He told me at the time that was true, but that he had backed up. Now, we are
not talking about 20 foot. He just let go of him is what it amounted to.
He said, “I let off of [Petitioner] and grabbed my throat.” He said that wasn’t
in the correct order.
He said there was a crowd of people yelling for me to get down. He admitted
that that was factual.
“I remember taking my shirt off.” I don’t remember what he said about that
because I wasn’t - - that wasn’t that important to me.
Then he said, “After that, I remember feeling my mother’s breath on me and
her saying, You have been shot and saying I was going to be okay and her and
Tonja putting me in Tonja’s car, and they took me to the ER.”
Well both witnesses, the victim and his mother, said that it was not true. She
wasn’t there. She didn’t see him until he got to the ER.
He said - - he was explaining to me, “When I was talking to Detective Oliver,
I was out of it. I was under serious pain medication.” He was still in the
hospital when this statement was given.
“The next thing I remember, I woke up and [they] told me I was at
Vanderbilt.” Then it goes on to say the statement was written by Detective
Oliver. I think he told me that was correct.
But we had a conversation. He told me there were - - that he disagreed with
what was in this statement.
When it came time for discovery, I didn’t feel the statement was exculpatory.
However, I did feel it was a possibility, depending upon how the trial went, if
we have to have a trial, that hay could be made out of it.
-22-
I answered discovery. We discussed the case. We made an offer. And once
I saw that an offer was not going to be accepted in this case, but before it was
set for trial, my memory of this is that I spoke to the representatives of the
Public Defender’s office.
I showed them this statement. I explained the conversation that was had in my
office with the witness, [the victim], and explained to them, if they used it - -
and I am not talking about in a threatening way. I didn’t explain it to them in
a threatening way. I just explained to them what the explanation was going to
be.
To my memory, they seemed to understand that.
The reason I was explaining the explanation to them, I didn’t want to set them
up by handing them a statement and not giving any explanation because I don’t
do the Public Defender’s office that way.
And that is basically it about that. It is my memory that they did see the
statement. They did read the statement. And I gave them the explanation of
the meeting that would have taken place.
Mr. Barnard testified that the $20,000 paid from the Criminal Injuries Compensation
Fund was not exculpatory, and it all went to Vanderbilt Medical Center for the payment of
medical bills rather than to the victim. Mr. Barnard testified that the prosecutors never know
anything about payments from the Criminal Injuries Compensation Fund. He said:
It goes directly to our victim witness coordinator. She handles all of the
paperwork. It is handled out of the Marshall County office, but it is something
I am basically unaware of.
The district attorney, not an assistant, but the district attorney has to sign off
on the request.
Maybe in the 20 something years I have been down here since the Victim’s
Compensation Act has been going, I may have been asked about a case twice
by the district attorney before he signed. I was not asked about this case. So
I had no idea that any moneys had been given or anything else. So I was
unaware of it.
-23-
Mr. Barnard testified that since he had no knowledge that a payment was made from the
Criminal Injuries Compensation Fund, he did not use it as “some kind of hold over people,
to say, you know, if you don’t help us, we are going to get that money back.”
On cross-examination, Mr. Barnard testified that he recalled showing the victim’s
statement to trial counsel before trial even though trial counsel testified that he was not
shown the statement. Mr. Barnard said: “His memory is different than mine.” He said that
he did not believe the victim’s statement could have been used to impeach his credibility with
the explanation that he was sedated at the time he gave it.
With respect to the Criminal Injuries Compensation Fund, Mr. Barnard testified that
he was not asked whether he thought the victim in this case should get the money. Mr.
Barnard testified that the victim had to apply for the funds. He was not aware that the form
to apply for the funds warned the victim that he must cooperate with law enforcement. Mr.
Barnard testified that he learned that the victim had received the funds when Mr. Barnard
saw it in the presentence report. He said that the victim-witness coordinator would have been
aware of the application immediately. Mr. Barnard did not feel that money being paid on the
victim’s debt affected his credibility.
Co-counsel testified that he and trial counsel spent a substantial amount of time
preparing for Petitioner’s case. The focus of the defense was self-defense, which he and trial
counsel discussed. Co-counsel testified that he handled the preliminary hearing, and a
transcript of the hearing was prepared. He and trial counsel discussed his impressions of the
state’s witnesses. Co-counsel testified that other than Shelby Harris, he and trial counsel
were not given the names of any of the witnesses who testified at the post-conviction hearing.
None of them contacted the public defender’s office indicating that they had any information.
Co-counsel testified that the public defender’s office did not have the resources to “conduct
a door-to-door canvassing of a neighborhood, looking for people that might know
information about something.”
Co-counsel testified that he and trial counsel asked the investigators to try and locate
witnesses on the State’s witness list and speak to them. He said that they spoke with some
of the witnesses, which probably would have been mostly law enforcement officers. Co-
counsel noted that he and trial counsel typically spoke to the law enforcement officers who
were typically in court, and the investigators spoke with the “out-of-court witnesses.” Co-
counsel testified that there were no surprises at trial, and they “knew what the witnesses were
going to testify to.”
Co-counsel testified that he was present at the sentencing hearing. After the
sentencing hearing, he was aware of the victim’s statement. He said: “It was similar to what
-24-
he had testified to, but different in the fact that he was - - he said he was still on top of
[Petitioner].” Co-counsel could not say that he was surprised by the statement. Co-counsel
testified that he was not aware of the $20,000 payment from the Criminal Injuries
Compensation Fund until after the sentencing hearing. He did not consider the payment to
be exculpatory information. Co-counsel did not feel that anything should have been handled
differently in Petitioner’s case. He said: “We felt we were very prepared for this trial.”
The Public Defender testified that she was aware of Petitioner’s case, and she
participated in discussions about the case. She said:
This was a fairly serious case. I was familiar with [Petitioner] from years way
back. And I had reviewed the file. I kept up with [trial counsel’s] and [co-
counsel’s] discussion. In fact, they came to me on several occasions, at one
point because they felt they weren’t making much headway with [Petitioner].
They had believed that there was some tenseness going on, and they didn’t feel
[Petitioner] was listening to them, and [Petitioner], from what they told me,
didn’t believe that they were listening to him.
But we had reviewed the case, gone over it in-depth. And at one point, they
came to me, [trial counsel] and [co-counsel], and asked me to go speak to
[Petitioner] at the jail with them.
An offer had been made. I reviewed that offer. I did feel that it was, actually
coming from you [assistant district attorney], a very good offer, not one that
we normally got. And I wanted to make sure that [Petitioner] understood what
the offer was; that [Petitioner] understood what our belief in the case was.
And I just merely wanted to make sure that there was full understanding before
he turned down an offer of that sort.
* * *
We did talk about the self-defense issues. Frankly, it was pretty much the only
defense that we could go on, but it was a weak defense, at best. There were
problems with it, one being the mere fact that [Petitioner] - - the information
we had was that he was not supposed to be there.
The other is that he brought a gun. And if my memory is correct, [Petitioner]
was on parole, and he would have been a felon in possession of a weapon, and
the fact that he brought a gun to this club, when he wasn’t even supposed to
be at the club.
-25-
The other was [Petitioner] himself admitted, not per se starting the argument,
but the altercation, the physical altercation. In fact, up here on the stand he
admitted to that, as far as what he calls a mugging. To me, that is more of a
shoving or a push, but he did the initial hands on, put his hands on [the victim].
There was also the issue of flight. Flight can - - you can have a flight
instruction that can go to guilt.
We went over those issues with [Petitioner]. Like I said, I have had
[Petitioner] on many occasions, probably going back as far as 1995.
The Public Defender testified that she never spoke with Petitioner about obtaining an
expert witness. She knew that Petitioner spoke with either trial counsel or co-counsel about
the matter. The Public Defender noted that funds for an expert did not come out of her office
budget. Instead, the funds were provided by the Administrative Office of the Courts. The
Public Defender testified that her conversation with Petitioner became more tense when she
suggested that he should seriously consider the plea offer. She did not tell him to take up any
matters on post-conviction.
On cross-examination, the Public Defender testified that it was believed that there
probably were several witnesses to the shooting at the Soul Train Bar. However, it was her
experience that most witnesses do not want to get involved or come forward. The Public
Defender testified that it is sometimes impossible to get witnesses to testify, and that she
could not “make them testify as to what I think they truly saw, no.” She noted that her office
did not have the resources to “go out in the city of Lewisburg or Marshall County and do a
canvas of, hey, did you happen to be at the Soul Train this date.” The Public Defender
testified that if law enforcement could not find the witnesses, “it is not realistic that we are
going to find them because most witnesses, even if we find them, don’t want to speak.” She
also noted that the two investigators from the public defender’s office would not be asked
to go out and find any witnesses who may have been at the Soul Train bar on the night of the
shooting. She said: “That is not realistic, and I will not spend my resources that way.”
The Public Defender believed the best way to find witnesses would have been for
Petitioner to have given them some names. She said, “Then other witnesses that we do [sic]
may find, we hope that they will tell us witnesses. I mean, it’s sort of like a domino effect.
In this case, we did not have this.”
Mickey Campbell, an investigator with the public defender’s office, testified that he
interviewed the Congers, a father and son who owned the Soul Train bar, on separate
occasions. He also attempted to talk with the doctors at Vanderbilt Medical Center, but they
-26-
refused to discuss the case without a waiver from the victim. Mr. Campbell testified that Mr.
Conger, Sr., told him that Petitioner had been asked to leave the bar the night before the
shooting, and further was told not to return. Mr. Conger, Sr., indicated that the incident had
something to do with Petitioner’s sister, her boyfriends, and some individuals from
Columbia. Mr. Holloway testified that on the night of the shooting, Mr. Conger, Jr., stopped
Petitioner at the door of the bar and would not allow him in. Mr. Conger, Sr., indicated that
he did not see any conflict between the victim and Petitioner or the shooting. Mr. Conger,
Sr., did not know the names of any other witnesses because he was inside the bar the entire
time.
Mr. Campbell testified that Mr. Conger, Jr., told him that he stopped Petitioner from
coming inside the bar on the night of the shooting. He did not see the altercation or shooting.
Mr. Campbell also asked Mr. Conger, Jr., about any potential witnesses. Mr. Conger, Jr.,
mentioned that his sister was a bartender, but he said that she was inside the bar the entire
time. Mr. Conger, Jr., noted that the victim had been asked to “go outside because of an
incident, nothing violent, just some hurt feelings, maybe.” Mr. Conger, Jr., did not give the
names of any other witnesses.
Fred Holloway, another investigator with the public defender’s office, testified that
he spoke with Dr. Jordan regarding the blunt force trauma to Petitioner’s eye. He noted that
Dr. Jordan saw Petitioner on two occasions, in August of 2008 and in January of 2009. Mr.
Holloway said:
My only question of that was, if the incident at the Soul Train happened in
May, then why was there such a time period before [Petitioner] was examined
by the doctor, which I felt would not be very good to the case.
He noted that Dr. Jordan could not say what caused the injury other than it was from blunt
force trauma.
Mr. Holloway testified that he spoke with Tangelia Alexander on April 13, 2009, and
learned that she was at the Soul Train bar at the time of the shooting. She had gone to the
bar with Petitioner. She said that Petitioner was not allowed in the bar, and she went inside
and bought him a Sundrop. Mr. Holloway testified that Ms. Alexander told him:
Then some man, who she didn’t know, said, You need to check on [Petitioner].
About that time she got outside, apparently the shooting had already taken
place.
-27-
She heard [the victim] say, I am going to be okay. And then shortly after, she
heard him say, “Take me to the hospital.”
She said she tried to find [Petitioner], but she never saw him. And then she
tried calling him several times on his cell, but he never answered.
Then she left by herself in the car. And she wasn’t sure, but she thought the
next day was when she finally heard from [Petitioner]. And according to her,
he told her on the phone that he feared for his life, and that was the only way
to get [the victim] off of him. But he never went into any details of what
happened.
Mr. Holloway did not recall whether he questioned Ms. Alexander about a photograph of
Petitioner that was transmitted by cell phone.
Mr. Holloway testified that he also spoke with Ashton Davis. He said:
She told me, on September 24th of ‘08, said that she was outside of the Soul
Train in Lewisburg when a fight broke out between [Petitioner] and [the
victim]. She wasn’t a whole lot of help. She said she didn’t know who started
the fight, not did she know anything about [Petitioner] being hit with a bottle;
...
The next thing she knows, she heard some bullets being fired, and she ran to
the door of the club, and that is all she knew.
She did, however, tell me of another lady who I knew nothing about until I
talked to her, and her name was Andrea Locke, who I also spoke with.
Mr. Holloway testified that he interviewed Ms. Locke who said that she was coming out of
the Soul Train bar when Ms. Davis ran up to her and said that Petitioner had shot the victim.
He noted that Ms. Locke did not see the fight or the shooting; however, she accompanied Ms.
Davis to the police department where Ms. Davis gave a statement to police. Mr. Holloway
testified that he was not given the names of any other witnesses.
II. Standard of Review
On appeal, Petitioner asserts that the State (1) failed to disclose a statement made by
the victim; (2) failed to disclose the statement of Ashton Davis; (3) failed to disclose the
statement of Felice O’Neal; (4) failed to disclose the statement of Tangelia Alexander; and
-28-
(5) failed to disclose payment from the Criminal Injuries Compensation Fund. Petitioner
argues that trial counsel and co-counsel rendered ineffective assistance of counsel by (1)
failing to “investigate, interview, subpoena, and call to the stand” Shelby Harris, Darron
Little, Alexander Harris, Jared Robinson, Zeldra Swaggerty, and Adriana Cross; (2) failing
to request Jenck’s material and cross-examine the victim concerning his statement to
Detective Oliver; (3) failing to request a ballistics expert to testify at trial; and (4) failing to
investigate and assert the defense of self-defense. Petitioner also argues that trial counsel
was ineffective on direct appeal for failing to raise Brady issues. Petitioner also raises a
procedural issue - he asserts that the trial court failed to address “each ground for relief as
presented in the petition.”
In a claim for post-conviction relief, the petitioner must show that his or her
conviction or sentence is void or voidable because of the abridgment of a constitutional right.
Tenn. Code Ann. § 40-30-103. Petitioner bears the burden of proving factual allegations by
clear and convincing evidence. Tenn.Code Ann. § 40-30-110(f); Grindstaff v. State, 297
S.W.3d 208, 216 (Tenn. 2009). The post-conviction court’s factual findings “are conclusive
on appeal unless the evidence preponderates against those findings.” Jaco v. State, 120
S.W.3d 828, 830 (Tenn. 2003). Upon review, this court will not reweigh or reevaluate the
evidence below, and all questions concerning the credibility of witnesses, the weight and
value to be given their testimony, and the factual issues raised by the evidence are to be
resolved by the trial court, not this court. Momon v. State, 18 S.W.3d 152,156 (Tenn. 1999).
On appeal, the post-conviction court’s findings of fact are entitled to substantial
deference and are given the weight of a jury verdict. They are conclusive unless the evidence
preponderates against them. See Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997); Alley
v. State, 958 S.W.2d 138, 147 (Tenn. Crim. App. 1997). A post-conviction court’s
conclusions of law are subject to a de novo review with no presumption of correctness.
Fields v. State, 40 S.W.3d 450, 457 (Tenn. 2001). Our supreme court has “determined that
the issues of deficient performance by counsel and possible prejudice to the defense are
mixed questions of law and fact, . . . thus, [appellate] review of [these issues] is de novo”
with no presumption of correctness. State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999).
When a petitioner seeks post-conviction relief based on the alleged ineffective
assistance of counsel, the petitioner bears the burden of showing that (a) the services
rendered by trial counsel were deficient, and (b) that the deficient performance was
prejudicial. See Powers v. State, 942 S.W.2d 551, 558 (Tenn. Crim. App. 1996). In order
to demonstrate deficient performance, the petitioner must show that the services rendered or
the advice given was below “the range of competence demanded of attorneys in criminal
cases.” Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). In order to demonstrate
prejudice, the petitioner must show that there is a reasonable probability that, but for
-29-
counsel’s deficient performance, the result would have been different. See Strickland v.
Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). “Because a
petitioner must establish both prongs of the test to prevail on a claim of ineffective assistance
of counsel, failure to prove either deficient performance or resulting prejudice provides a
sufficient basis to deny relief on the claim.” Henley v. State, 960 S.W.2d 572, 580 (Tenn.
1997).
On claims of ineffective assistance of counsel, the petitioner is not entitled to the
benefit of hindsight. See Adkins v. State, 911 S.W.2d 334, 347 (Tenn. 1994). This Court
may not second-guess a reasonably-based trial strategy, and we cannot grant relief based on
a sound, but unsuccessful, tactical decision made during the course of the proceedings. See
id. However, such deference to the tactical decisions of counsel applies only if counsel
makes those decisions after adequate preparation for the case. See Cooper v. State, 847
S.W.2d 521, 528 (Tenn. Crim. App. 1992).
Initially, we address Petitioner’s claim that the trial court did not address “each ground
for relief presented in the petition.” “Upon the final disposition of every petition, the court
shall enter a final order, and . . . shall set forth in the order or a written memorandum of the
case all grounds presented, and shall state the findings of fact and conclusions of law with
regard to each such ground.” Tenn. Code Ann. § 40-30-111(b); see also Tenn. Sup. Ct. R.
28 § 9(A). Petitioner contends that the trial court failed to address whether trial counsel and
co-counsel failed to obtain “via motion” the victim’s statement and that trial counsel did not
effectively cross-examine the victim at trial. Although the trial court did not specifically
address these issues in the manner raised by Petitioner, the trial court held that the victim’s
statement was exculpatory evidence “in that it could have been used to impeach the victim’s
testimony during cross examination.” The trial court further accredited the prosecutor’s
testimony that the State provided the information to trial counsel and co-counsel.
Petitioner contends that the trial court failed to address trial counsel’s failure to
effectively cross-examine Ashton Davis. Although this issue was raised in the post-
conviction petition, Petitioner did not specifically raise this issue on appeal. He mentioned
Ms. Davis’ testimony in an issue concerning trial counsel and co-counsel’s failure to
investigate and argue self-defense, an issue that was addressed by the trial court. Therefore,
if there was any error in the trial court’s failure to adequately address this issue, it was clearly
harmless. Petitioner next argues that the trial court failed to address trial counsel and co-
counsel’s failure to “investigate, interview, subpoena, and call to the stand” Jared Robinson,
Zeldra Swaggerty, and Adriana Cross. Although the trial court did not specifically mention
these witnesses by name in the order denying the post-conviction petition, the trial court held:
-30-
Officer Amanda Newcomb testified that she left the police station when the
911 call of the shooting was received and drove the approximate distance on
one block tot he crime scene. (TT. P. 65-67). Officer Newcomb further
testified there were maybe ten to twelve people there who told her “I didn’t see
anything.” In Officer Newcomb’s words “Nobody would tell me anything.”
(TT. P. 67). Sergeant Anthony McLean’s attempt to interview witnesses met
with the same results as Officer Newcomb. (TT. P. 78). The court finds that
the defendant has not proven by clear and convincing evidence that he
received ineffective assistance of counsel by failing to discover witnesses. It
is not the fault of the Public Defender’s Office that these witnesses chose to
remain anonymous and to “not get involved” until the post-conviction
proceedings.
Later on the trial court addressed the credibility of the witnesses, who were called by post-
conviction counsel at the post-conviction hearing but not questioned by post-conviction
counsel about those statements. At the hearing, the statements were simply admitted as
evidence by post-conviction counsel. Concerning this issue, the trial court specifically held:
It is not possible to accurately assess the credibility of witnesses called by the
defendant at the post-conviction hearing as to what happened but introduced
prepared written statements instead. This procedure denied the Court an
opportunity to assess these witnesses’ appearance and demeanor while
testifying about the crux of the case.
Therefore, this issue was adequately addressed by the trial court.
Petitioner argues that trial court failed to address trial counsel and co-counsel’s failure
to “investigate, discover, and use information concerning the State’s payment of money to
Dejuan Oneal.” Although the trial court did not specifically address trial counsel and co-
counsel’s failure to investigate, discover, and use the information, the trial court pointed out
that the State did not violate Brady by not disclosing the information and noted that Petitioner
could have obtained the information on his own. However, the Court also said that the
payment from the Criminal Injuries Compensation Fund on behalf of the victim to cover his
medical expenses was not “obviously exculpatory.” The trial court agreed that the victim
could have been “cross-examined about applying for criminal injuries compensation and thus
it is exculpatory, it does not agree that the subject is obviously exculpatory. The court does
not recall in its professional experience any cross over criminal injuries compensation.”
Therefore, the trial court adequately addressed this issue.
-31-
Petitioner next contends that the trial court did not address the following issues
concerning appellate counsel: (1) failure to preserve and raise on appeal the State’s failure
to disclose the victim’s statement; (2) failure to preserve and raise on appeal the State’s
failure to disclose the statement of Ashton Davis; (3) failure to preserve and raise on appeal
the issue of the State’s failure to disclose the statement of Felice O’Neal; (4) failure to
preserve and raise on appeal the State’s failure to disclose the statement of Tangelia
Alexander; (5) failure to preserve and raise on appeal the State’s failure to disclose a payment
to the victim from the Criminal Injuries Compensation Fund; and (6) the cumulative effect
of the deficient performance of appellate counsel.
However, these specific ineffective assistance of appellate counsel issues were not
raised in the post-conviction petition or at the post-conviction hearing. We note that trial
counsel also represented Petitioner on appeal. In Petitioner’s amended post-conviction
petition, he generally asserts that he was “deprived of the right of effective assistance of
appellate counsel.” More specifically, he states:
In the direct appeal of this case, trial counsel took on the role of appellate
counsel. State v. Tears, No. M2009-01559-CCA-R3-CD, *1 (Tenn. Crim.
App. Oct. 26, 2010). In this direct appeal, counsel raised only two issues: (1)
that the evidence was insufficient to support Petitioner’s convictions of
attempted second degree murder and possession and employment of a firearm
during the commission of a felony and (2) that the trial court erred in
sentencing the Petitioner. Id.
The failure to raise any and all of the items in Issue I [ of the post-conviction
petition] on direct appeal constituted deficient performance on the part of
appellate counsel and prejudiced the fair disposition of Petitioner’s case.
At the post-conviction hearing, the only testimony presented by Petitioner pertaining to
appellate representation consisted of the following:
[Post-conviction Counsel]: After the trial, then you proceeded on appeal.
Who represented you on appeal in this case?
[Petitioner]: The Public Defender’s Office.
[Post-conviction Counsel]: Did they discuss with you the basis for the
appeal?
-32-
[Petitioner]: No. We never talked any more after that because
right after that, I never really even seen them
much. They just sent me stuff in the mail. When
they filed it, they sent me the paperwork, showing
me that it was filed. When I got it, they sent me
a brief, and that was it.
[Post-conviction Counsel]: After the sentencing hearing in this case, did you
meet with the Public Defender’s office again
during your appeal?
[Petitioner]: No, sir.
[Post-conviction Counsel]: Did you have any - - aside from them sending you
stuff, sending you filings, did you have any
correspondence betw een you tw o,
communication?
[Petitioner]: No, sir.
Trial counsel testified that “appeals are strictly legal arguments, so it is up to the
attorney to determine what the valid legal arguments would be, which in this case, it was
sufficiency of the evidence and sentencing, and that was it. I didn’t see any other issues.”
Trial counsel testified that Petitioner was kept informed on the appeal, and he was sent copies
of the briefs and everything that was filed.
Petitioner did not present evidence at the post-conviction hearing pertaining to the
precise alleged examples of ineffective assistance of appellate counsel. Consequently, there
is no error by the trial court in not addressing those assertions in its ruling. Moreover, we
note that in the trial court’s order denying the post-conviction petition, the trial court did not
find any Brady violations and held that the payment from the Criminal Injuries Compensation
Fund was not exculpatory evidence.
Finally, Petitioner contends that the trial court erred in not addressing the “cumulative
effect of the failures of the State, trial counsel, and appellate counsel.” Again, any error by
the trial court in not addressing this specific issue would be harmless. In its order denying
post-conviction relief, the trial court did not find any violation of Brady by the State or that
trial counsel’s performance was deficient. Petitioner is not entitled to relief on this issue.
Brady Violations
-33-
Petitioner contends that the State knowingly withheld exculpatory evidence in
violation of Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196-97, 10 L. Ed. 2d 215
(1963). He contends that the State failed to disclose statements made by the victim, Ashton
Davis, Felice O’Neal, and Tangelia Alexander. Petitioner further contends that the State
failed to disclose that the victim was paid $20,000 from the Criminal Injuries Compensation
Fund which covered medical expenses.
To prove a Brady violation, a defendant must demonstrate that 1) he requested the
information (unless the evidence is obviously exculpatory, in which case the state is bound
to release the information whether requested or not); 2) that the state suppressed the
information; 3) that the information was favorable to the defendant; and 4) that the
information was material. Johnson v. State, 38 S.W.3d 52, 56 (Tenn.2001). The evidence is
deemed material if “there is a reasonable probability that, had the evidence been disclosed
to the defense, the result of the proceeding would have been different.” United States v.
Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375, 3383, 87 L. Ed. 2d 481 (1985). A Brady claim in
a post-conviction proceeding is “governed by the same prejudice standard as an ineffective
assistance of counsel claim.” Cauthern v. State, 145 S.W.3d 571, 599 (Tenn. Crim. App.
2004). “[A] defendant must show that there is a reasonable probability that the result of the
proceedings would have been different.” Id. at 598-99.
As to the statement of the victim, Dejuan O’Neal, the record shows that there was no
Brady violation. Concerning this issue, the post-conviction court found as follows: “The
court finds that the May 13th , 2008, statement that the victim, Gary DeJuan O’Neal gave to
Detective Jimmy Oliver is exculpatory evidence in that it could have been used to impeach
the victim’s testimony during cross examination. The court further accredits General
Barnard’s testimony and finds that he did, in fact, provide this information to defense
counsel.”
Although the post-conviction court found the victim’s statement to be exculpatory,
there is no showing that the State suppressed the evidence. Trial counsel was familiar with
a statement by the victim that was later reproduced in the presentence report in its entirety.
When asked if he was familiar with the statement before trial, trial counsel testified that he
was familiar with what was going on because he had spoken to the State numerous times
informally and also to Detective Oliver. Trial counsel indicated that the prosecutor told him
that Detective Oliver had gone to the hospital to talk to the victim while the victim was still
under the effects of medication. The victim also talked with the State a couple of days after
he was released from the hospital. Trial counsel said that the content of the statement did not
“throw [him] for a loop or anything like that.” He said that it was not unusual for him to be
given open file discovery from the district attorney general’s office in a case. Therefore, he
was already acquainted with the statement when it came out in the presentence report.
-34-
On cross-examination, trial counsel testified that he knew what the victim was going
to say from talking to Detective Oliver and the prosecutor about the case. There had also
been a preliminary hearing. Trial counsel testified that he found out what the victim had said
through “informal discovery.” He noted that the victim had given two different statements.
“One was when he was under the effects of the medication. Then he gave another one,
which placed him closer to the car.” Trial counsel testified that he first saw the statement by
the victim which read, “We were scuffling up against a car, and I heard like a pow noise and
I let off of [Petitioner],” printed in the presentence report. However, he was “generally” told
about the statement. Trial counsel acknowledged that at trial, the victim testified that when
he was shot, he had already let go of Petitioner and had stepped back from Petitioner.
The prosecutor testified that when it came time for discovery, he did not feel that the
statement was exculpatory. However, he felt that if the case went to trial, “hay” could be
made out of the statement. The prosecutor testified:
I answered discovery. We discussed the case. We made an offer. And once
I saw that an offer was not going to be accepted in this case, but before it was
set for trial, my memory of this is that I spoke with representatives of the
Public Defender’s Office.
I showed them this statement. I explained the conversation that was had in my
office with the witness, [the victim], and explained to them, if they used it - -
and I am not talking about in a threatening way. I didn’t explain it to them in
a threatening way. I just explained to them what the explanation was going to
be.
To my memory, they seemed to understand that.
The reason I was explaining the explanation to them, I didn’t want to set them
up by handing them a statement and not giving any explanation because I don’t
do the Public Defender’s office that way.
And that is basically it about that. It is my memory that they did see the
statement. They did read the statement. And I gave them the explanation of
the meeting that would have taken place.
The post-conviction court accredited the prosecutor’s testimony that he showed the
victim’s statement to trial counsel and co-counsel. Furthermore, trial counsel admitted that
he was familiar with the contents of the statement and it did not surprise him. “No Brady
violation exits where a defendant knew or should have known the essential facts permitting
-35-
him to take advantage of any exculpatory information, or where the evidence is available
from another source.” Byrd v. Collins, 209 F.3d 486, 517 (6 th Cir. 2000)(citations omitted).
Next, Petitioner contends that the State violated Brady by failing to disclose a
statement by Ashton Davis to police. Concerning this issue, the post-conviction court found:
The court finds that Ashton Davis’ statement to Detective Jimmy Oliver is
exculpatory. The court also finds that the failure to provide her statement to
the Public Defender’s Office does not put the whole case in such a different
light as to undermine the confidence of the verdict.
In order to establish that exculpatory evidence is “material,” a defendant must
show that “the favorable evidence could reasonably be taken to put the whole
case in such a different light as to undermine the confidence in the verdict.”
Kyles v. Whitley, 514 U.S. 419, 435 (1995); see also Edgin, 902 S.W.2d at
390. There must be a “reasonable probability that, had the evidence been
disclosed to the defense, the result of the proceeding would have been
different.” Edgin, 902 S.W.2d at 390 (quoting Kyles, 514 U.S. at 435).
The defendant acknowledges in his Additional Grounds (for post-conviction
relief) Introduction, page 3: “Ashton Davis testified at trial to essentially the
same information she gave Detective Oliver the day of the shooting.”
On May 11, 2008, the date of the shooting, Ashton Davis gave Detective
Jimmy Oliver the following relevant statement: “Dejuane [Mr. O’Neal] had
John John [Mr. Tears] up against John John’s car and was hitting him then I
saw John John pull a black pistol from his right side and I heard 2 or 3 shots.”
She in relevant part at trial testified that the victim was on top of Mr. Tears
when Mr. Tears pulled the gun out and shot the victim.
Barnard: . . . so they were both passing blows?
Davis: Yes.
Barnard: Both of the men?
Davis: Yes.
Barnard: Okay. Then after the fight stopped, or was the fight still going on, or
do you know?
-36-
Davis: It was still going on.
On cross, [trial counsel] elicited more detail from Ashton Davis.
Q: And [Petitioner] pulled out his gun while the fight was going on?
A: Yes.
Q: What happened?
A: I heard gunshots, and I left.
Q: So when [the victim] is sitting there punching [Petitioner], [Petitioner] then
pulled out the gun while [the victim] was still on him?
A: Yes.
Q: You saw this?
A: Yes.
Q: Before the gun went off, did you ever see [the victim] try to back off at all?
A: No.
Q: Did you ever see [Petitioner] laying on a car?
A: Yes.
Q: Was that while [the victim] was punching him?
A: Yes.
Q: At any point, did it look like [Petitioner] was not able to fight back.
A: At some point, yes.
Q: At some point, he wasn’t able to fight back?
A: Yes.
-37-
Q: Then after that, [Petitioner] pulled out the gun?
A: Yes.
[trial counsel]: No further questions, Your Honor.
For the same reasons the court does not find that the failure to request Jencks
material after her testimony affected the outcome of the trial.
The record does not preponderate against the trial court’s findings. Concerning
Ashton Davis, trial counsel testified: “Ashton Davis was not forthcoming with us. The
information she told us was not consistent with that she said at trial.” However, when called
as a witness, Ms. Davis’ testimony “helped us quite a bit.” Petitioner has not demonstrated
any prejudice by the State’s alleged failure to provide information on Ms. Davis’ statement
to police. Petitioner has not shown that there was a “reasonable probability that, had the
evidence been disclosed to the defense, the result of the proceeding would have been
different.” State v. Edgin, 902 S.W.2d 387, 390 (quoting Kyles v. Whitley, 514 U.S. 419,
435).
Petitioner next contends that the State violated Brady by failing to disclose statements
to police by Felice O’Neal and Tangelia Alexander. Concerning this issue, the post-
conviction court found:
The defendant’s pleading contends that Ms. Felice Danielle O’Neal’s
statement indicated that she made photographs of injuries the defendant
sustained before shooting the victim but the relevant passage from her
statement is actually “He sent me a picture of his eye where (sic) Dejuan had
hit him through the cell phone.” Exhibit 15. Since she did not testify at the
post-conviction hearing and no such photographs were introduced, the
defendant failed to meet his burden of proof regarding this allegation.
Furthermore, at trial the Public Defender’s Office called optometrist, Jeffrey
Jordan, who testified that he agreed with the history of blunt trauma provided
him by the defendant and that this most likely caused his floaters and
syneresis, TT. P. 227. More importantly, it was clear at trial that the defendant
was bleeding because his blood marked the route he took as he fled the scene
after he shot the victim, TT p. 168-171; p. 193-195. She also said in her
statement “. . . he kept saying he was sorry for what he did to Dejuan.[”]
Based on the foregoing analysis, the court does not find ineffective assistance
of counsel in the failure to call Felice Danielle O’Neal as a defense witness.
-38-
The court further finds that since Ms. Felice O’Neal did not testify at trial, the
Public Defender’s Office did not have an opportunity to request Jencks
material regarding her testimony
In their statements to police both Ms. O’Neal and Ms. Alexander said that they were
inside the Soul Train Bar when the shooting occurred. Ms. Alexander said that she went to
the bar with Petitioner; however, he was not allowed inside. She said that she spoke with
Petitioner after the shooting, and he told her that he and the victim had gotten into a fight and
“that he tried to avoid it but he [the victim] kept coming after him and he [the victim] was
beating him up pretty bad and he had to do what he had to do to get him off him.” Ms.
Alexander told Detective Oliver that Petitioner sent her pictures of “his face where [the
victim] had beat him up and his eye was swollen shut and he had a cut on it.” Ms.
Alexander further said that she had talked to Petitioner several times but had not seen him.
She also said that they had not talked about what happened at the bar.
Ms. O’Neal told Detective Oliver that she and Petitioner had two children together.
She was inside the bar when the shooting occurred. Ms. O’Neal told Detective Oliver that
Petitioner later called her. She said:
I talked to [Petitioner] on the phone and asked him what happened and he said
[the victim] walked up on him wanting to fight and [Petitioner] told him he
was too f[- -]cked up to fight and he wasn’t going to fight that he would talk
to him in the morning. He said [the victim] wouldn’t take no for an answer
and [the victim] hit him with a beer bottle across the face and [the victim] had
him in a head lock hitting him in the eye. [Petitioner] said he pulled the gun
out and shot him to get him off of him.
Ms. O’Neal testified that Petitioner also sent her a picture by cell phone of his eye where he
said that the victim hit him. She said that Petitioner asked about the victim and indicated that
he was sorry for what he had done to the victim.
Petitioner has not demonstrated that the State suppressed this evidence nor has he
shown that it was material to the case or that he was prejudiced by any alleged failure to
disclose the statements. Neither Ms. O’Neal nor Ms. Alexander testified at trial. Concerning
the two statements, trial counsel testified that he was “pretty certain” that the investigators
spoke with Ms. Alexander and that she did not “really know anything about the incident”
because she did not see it happen. He also noted that Ms. O’Neal, Petitioner’s girlfriend or
ex-girlfriend did not see anything either because she was inside the bar. Trial counsel
testified that the two statements referred to communications that occurred after the shooting.
He also noted that in Ms. O’Neal’s statement, there was a picture of Petitioner’s eye that was
-39-
retrieved from her cell phone. Trial counsel testified that the information was provided in
discovery.
Trial counsel further testified that they could not use the statements “because anything
that was told to Tangelia Alexander was hearsay because she didn’t actually see what
happened.” He acknowledged that she spoke with Petitioner after the fact, but she had no
“firsthand knowledge.” Trial counsel felt that Ms. O’Neal’s statement was also hearsay, and
he said: “They only thing pertinent that she provided was the picture of [Petitioner’s] eye.”
Investigator Fred Holloway testified that he spoke with Ms. Alexander and learned that
she had accompanied Petitioner to the Soul Train bar on the night of the shooting. She told
Mr. Holloway that Petitioner was not allowed inside the bar and that she went inside and
purchased him a Sundrop. Ms. Alexander told Mr. Holloway that when she got outside the
shooting had already occurred. She then left the bar alone and spoke with Petitioner the
following day. Ms. Alexander told Mr. Holloway that Petitioner told her that he feared for
his life, and “that was the only way to get [the victim] off of him.” She said that Petitioner
did not go into any details about what happened. Petitioner is not entitled to relief on this
claim.
Finally, Petitioner alleges that the State violated Brady by failing to disclose that the
victim received a $20,000 payment from the Criminal Injuries Compensation Fund.
Concerning this issue, the trial court held:
The court does not find that the monetary award from the criminal injuries
compensation fund to pay the victim’s medical expenses to be obviously
exculpatory. While the court agrees with the defendant that a victim could be
cross-examined about applying for criminal injuries compensation and thus is
exculpatory, it does not agree that the subject is obviously exculpatory. The
court does not recall in its professional experience any cross[-examination] over
criminal injuries compensation. Further, there is no proof that the defendant’s
trial counsel requested this information or that the State suppressed it.
The “prosecution is not required to disclose information that the accused
already possesses or is able to obtain.” State v. Marshall, 845 S.W.[2d] 228,
233 (Tenn. Crim. App. 1992). The record does not show that the defendant was
unable to obtain this information on its own.
The court accredits General Barnard’s testimony that he was unaware of the
victim’s claim. Applying T.P.I. 108, that the finder of fact “should consider all
of the evidence in light of you own observations and experiences in life”, the
-40-
court notes that its prior experience as a prosecutor coincides with General
Barnard’s testimony in that in the 17th Judicial District, assistant district
attorneys were very rarely consulted by the District Attorney for input as to
approving or denying a criminal injuries compensation claim. The court finds
that the defendant received a fair trial after considering all the defendant’s
alleged Brady violation, Kyles, 514 U.S. at 434.
The record does not show that the State suppressed this information nor that it was
material to Petitioner’s case. Trial counsel testified that the victim was awarded $20,000 from
the Criminal Injuries Compensation Fund to cover some of his medical bills, and the payment
was a nonissue to him. Trial counsel said that he knew the money was going toward the
victim’s medical bills. He said:
People that are victims of crimes get money from the compensation fund. That
money is going to go to pay hospital bills. In my opinion, it would be unethical
for me to try to paint it as he is being bribed by the State because that it not
what it is.
Trial counsel thought that the money went to pay bills from Vanderbilt Medical Center. He
did not believe that payment of the money would go to the credibility of the witness. Trial
counsel testified:
Now, if it was $20,000 in cash that was going into [the victim’s] pocket, then
I could see that being compounding a crime, which is a crime itself, but that is
not what is going on here. That is going to pay medical bills.
Assistant Attorney General Weakley Barnard testified that the $20,000 paid from the
Criminal Injuries Compensation Fund was not exculpatory, and it all went to Vanderbilt
Medical Center for the payment of medical bills rather than to the victim. Mr. Barnard
testified that the assistant district attorneys general never know anything about payments from
the Criminal Injuries Compensation Fund. He said:
It goes directly to our victim witness coordinator. She handles all of the
paperwork. It is handled out of the Marshall County office, but it is something
I am basically unaware of.
The district attorney, not an assistant, but the district attorney has to sign off on
the request.
-41-
Maybe in the 20 something years I have been down here since the Victim’s
Compensation Act has been going, I may have been asked about a case twice
by the district attorney before he signed. I was not asked about this case. So
I had no idea that any moneys had been given or anything else. So I was
unaware of it.
Mr. Barnard testified that since he had no knowledge that a payment was made from the
Criminal Injuries Compensation Fund, he did not use it as “some kind of hold over people,
to say, you know, if you don’t help us, we are going to get that money back.” Mr. Barnard
did not feel that the money paid on the victim’s debt affected his credibility.
Petitioner had not shown that there is a reasonable probability that the result of his
proceedings would have been different if the jury had known about the payment from the
Criminal Injuries Compensation Fund. Petitioner is not entitled to relief on this issue.
Ineffective Assistance of Trial Counsel
First, Petitioner contends that trial counsel and co-counsel were ineffective for failing
to request Jencks material concerning the victim’s statement to Detective Oliver and to use
that statement to cross-examine and impeach the victim’s testimony at trial. We agree.
Initially, we point out that the State did not address this issue in its brief. Furthermore, in a
reply brief, Petitioner pointed out the State’s failure to address this issue. Even after the
omission was pointed out in the reply brief, the State did not move to amend its brief or to file
a supplemental brief. Therefore, no argument in opposition to Petitioner’s assertions on this
issue has been presented to this Court by the State.
Trial counsel testified that he was aware of the victim’s statement prior to trial, and he
knew that the victim had indicated that the fight was still going on when Petitioner shot him.
In his statement to Detective Oliver, the victim said:
On 5/11/08 I was at Soul Train Bar and Grill with my girlfriend Taquia
Johnson. I had been drinking and I remember going outside and me and
[Petitioner] had words but I can’t remember why because I had been drinking.
The next thing I know we were scuffling up against a car and I heard like a pow
noise and I let off of [Petitioner] and grabbed my throat and there was a crowd
of people yelling for me to get down and I remember taking my shirt off and
going to the ground. After that I remember feeling my mothers breath on me
and her saying you’ve been shot and saying I was going to be o.k. and her and
Taquia put me in Taquia’s car and they took me to the E.R. The next thing I
remember I woke up and they told me I was in Vanderbilt.
-42-
The prosecutor noted that the victim was sedated at the hospital when he gave the
statement to Detective Oliver. He said that a few days after the victim was released from the
hospital, the victim and his mother arrived at the prosecutor’s office unannounced and
indicated that the victim had concerns about his statement to Detective Oliver. He pointed
out that he was under sedation and “really didn’t know what he told Detective Oliver.” The
victim did not deny that he had been drinking or that he went outside and had words with
Petitioner. The prosecutor testified that the victim indicated that the statement was incorrect
where the victim said that he could not recall what happened because he had been drinking.
The victim said that he did remember what happened. The victim clarified that he had backed
up before the shooting and had already let go of Petitioner when he was shot.
At trial, the victim testified that he and Petitioner were fighting, and he hit Petitioner
in the “head area” several times with his fist. The victim testified that he then let Petitioner
go, and Petitioner stepped back, reached for a gun, cocked it, and shot the victim. The victim
further testified that he had “backed off” Petitioner before Petitioner shot him.
Trial counsel admitted that he was familiar prior to trial with the contents of the
victim’s statement to Detective Oliver. The prosecutor also testified that he had shown a copy
of the statement to trial counsel and co-counsel. We find that the statement could have been
used on cross-examination to impeach the credibility of the victim whose testimony belied
Petitioner’s claim of self-defense. The information in the victim’s initial statement also
matched the testimony of Ashton Davis who testified that the victim was still on top of
Petitioner and hitting him when Petitioner pulled the gun out and shot the victim. We further
point out that on direct appeal, a panel of this court held that the evidence was sufficient to
support Petitioner’s conviction for attempted second degree murder. In considering the issue,
this court stated in part:
Viewing the evidence in the light most favorable to the State, the trial evidence
indicates that the Defendant initiated a physical altercation with the victim. The
evidence also indicated that the victim, who was unarmed, was winning the
fight and inflicting injuries upon the Defendant. However, the victim had
stepped back and let the Defendant go when the Defendant looked at the victim
and then shot him in the neck.
Importantly, the post-conviction court specifically stated that the statement that the
victim gave to Detective Oliver was exculpatory evidence in that it could have been used to
impeach the victim’s testimony during cross-examination. This statement could have raised
questions in the minds of the jurors concerning the victim’s credibility, specifically as to
whether Petitioner shot the victim in self-defense. We find that Petitioner has demonstrated
that there was a reasonable probability that absent the deficiency of trial counsel and co-
-43-
counsel concerning this issue, the outcome of the trial would have been different. Therefore,
we reverse the judgment of the trial court denying post-conviction relief, vacate Petitioner’s
conviction for attempted second degree murder and employing a handgun during the
commission of a dangerous felony and remand this cause for a new trial.
Next, Petitioner contends that trial counsel and co-counsel were ineffective for failing
to discover that the victim had received $20,000 from the Criminal Injuries Compensation
Fund. We disagree. As previously discussed, trial counsel testified that he considered the
payment a nonissue because the money went to pay the victim’s medical bills. He did not
believe that payment of the money would go to the credibility of the witness. Trial counsel
noted that if the $20,000 was in cash paid directly to the victim, then he “could see that being
compounding a crime, which is a crime itself, but that is not what is going on here.” The
prosecutor did not feel that the $20,000 paid from the Criminal Injuries Compensation Fund
was exculpatory. He further did not feel that the money paid on the victim’s debt affected
his credibility.
Even if trial counsel and co-counsel’s performance in this area was deficient, Petitioner
has not demonstrated any prejudice. There is absolutely no showing that the failure to
discover and disclose to the jury that the victim received payment from the Criminal Injuries
Compensation Fund to cover his medical expenses affected the outcome of the trial.
Petitioner is not entitled to relief on this issue.
Third, Petitioner argues that trial counsel and co-counsel were ineffective for failing
to “[i]nvestigate, interview, subpoena, and call to the stand the following necessary witnesses:
Shelby Harris, Darron Little, Alexander Harris, Jarrod Robinson, Zeldra Swaggerty, and
Adriana Cross.” We disagree.
Concerning this issue, the post-conviction court found:
The defendant complains that the Pubic Defender’s Office failed to investigate,
interview and/or call Darren L[i]ttle as a witness at trial. Darren L[i]ttle
acknowledged a prior record for five or six felonies including aggravated
assault. He said he’d had “a lot of Bud Light to drink that night” and that he’d
done some coke inside the club with Shelby Harris and the victim before the
shooting. As the post-conviction hearing L[i]ttle testified that he was inside the
club when he heard the shot, and that he was inside when the police arrived.
He said he went home without speaking to the police because he had no reason
to speak to them. He testified that he saw the defendant’s eye swollen shut
which the court does not find credible because the defendant fled immediately
after shooting the victim and went to Memphis. If Darren L[i]ttle was inside
-44-
the club at the time of the shooting and also inside when police were there and
the defendant fled immediately, as by all accounts he did, then L[i]ttle would
have had no opportunity to observe the defendant after the shooting.
Officer Amanda Newcomb testified that she left the police station when the 911
call of the shooting was received and drove the approximate distance of one
block to the crime scene. (TT.P. 65-67). Officer Newcomb further testified
there were maybe ten to twelve people there who told her “I didn’t see
anything.” In Officer Newcomb’s words, “Nobody would tell me anything.”
(TT.P. 67). Sergeant Anthony McLean’s attempt to interview witnesses met
with the same results as Officer Newcomb. (TT.P. 78). The court finds that the
defendant has not proven by clear and convincing evidence that he received
ineffective assistance of counsel by failing to discover witnesses. It is not the
fault of the Public Defender’s Office that these witnesses chose to remain
anonymous and to “not get involved” until the post-conviction proceedings.
For instance, Alex Harris , who acknowledged a prior record of three felony
drug sales, testified at the post-conviction hearing that after he saw the
defendant run he ran away as well. He added that it was “not my place to tell
anybody” and “I wouldn’t have told them anything.”
The court accredits [trial counsel’s] testimony that at the close of the State’s
case he made a strategy [sic] decision not to call Alex Harris [Shelby Harris]
because he felt the State’s case did not refute self-defense. Also, [trial counsel]
logically deduced that calling numerous witnesses who were both convicted
felons and friends with the defendant might bias the jury against the
defendant’s claim of self-defense.
As for Shelby Harris, trial counsel testified that he saw Mr. Harris’ name on the State’s
witness list, but Petitioner did not say anything about Mr. Harris. He noted that he would
have never told Petitioner that since Mr. Harris was listed as the State’s witness, they could
not call him to testify. However, trial counsel said: “At that point in trial, I definitely did not
want to call Shelby Harris because I would not have known what Mr. Harris was going to
say.”
On cross-examination, trial counsel did not recall Petitioner giving him a phone
number for Mr. Harris. He first became aware that Mr. Harris was a potential witness when
he received discovery. Concerning efforts to contact Mr. Harris, trial counsel testified:
I don’t recall specifically what efforts we went through. I assume that the
investigators - - I probably told the investigators to look for him. But
-45-
[Petitioner] never really focused on Shelby Harris at all. He focused on Andrea
Locke, Tangelia Alexander, Ms. O’Neal, but not even her so much as those
two, plus Ashton Davis. Those were really the three that he focused on: Davis,
Alexander and Andrea Locke, and Conger, Sorry.
Trial counsel also noted that if Petitioner had told him that Mr. Harris was outside and
witnessed the fight, they would have tried to “track him down.” Trial counsel knew that Mr.
Harris was present during trial, and when it became obvious that the State was not going to
call Mr. Harris as a witness, trial counsel testified that he and Petitioner may have had a
conversation about calling Mr. Harris to testify. However, trial counsel reiterated that he “was
not going to call a witness that [he] didn’t know what he was going to say when things were
going pretty well, based upon Ashton Davis’ testimony; and also on [the victim’s] testimony
about admitting to being highly intoxicated and also saying that they had problems in the past.
That was really a gamble.”
Although Mr. Harris testified at the post-conviction hearing that he saw Petitioner
shoot the victim while the victim was still beating Petitioner, he had previously told police
that he was inside the bar and did not see the fight or the shooting. He also admitted that he
did not talk to police immediately after the shooting.
We conclude that trial counsel and co-counsel made a sound, strategic decision not to
call Mr. Harris as a witness at trial. As noted above, this Court may not second-guess a
reasonably-based trial strategy, and we cannot grant relief based on a sound, but unsuccessful,
tactical decision made during the course of the proceedings. Adkins v. State, 911 S.W.2d 334,
347 (Tenn. 1994).
Concerning Darron Little, Alexander Harris, Jared Robinson, Zeldra Swaggerty, and
Adriana Cross, trial counsel testified that Petitioner never provided any of their names as
potential witnesses. Trial counsel also did not recall Petitioner’s family contacting him with
information about any witnesses in the case. Trial counsel testified that if Alexander Harris
had told them that he saw the victim consume cocaine immediately before Petitioner
approached the victim and attacked him, it might have helped Petitioner’s case. However,
trial counsel noted that he and co-counsel were also representing Mr. Harris at the time on
unrelated charges, and he did not come forward with any information. Trial counsel
specifically testified: “I didn’t know Alexander Harris knew anything about this.”
Co-counsel also testified that Petitioner did not give the names of Mr. Little, Mr.
Harris, Mr. Robinson, Ms. Swaggerty, or Ms. Cross as potential witnesses. He said that
Petitioner did not give them any names, and no one contacted the public defender’s office
indicating that they had any information. Co-counsel testified that the public defender’s office
-46-
did not have the resources to “conduct a door-to-door canvassing of a neighborhood, looking
for people that might know information about something.” Co-counsel testified that he and
trial counsel asked the investigators to try and locate witnesses on the State’s witness list and
speak to them. He said that they spoke with some of the witnesses, which probably would
have been mostly law enforcement officers.
The Public Defender testified that it was believed that there were several witnesses to
the shooting at the Soul Train Bar; however, it was her experience that most witnesses do not
want to get involved or come forward. She further noted that it was sometimes impossible
to get witnesses to testify, and she could not “make them testify as to what I think they truly
saw. . .” The Public Defender testified that her office did not have the resources to “go out
into the City of Lewisburg or Marshall County and do a canvas of, hey, did you happen to be
at the Soul Train this date.” She noted that the best way to find witnesses would have been
for Petitioner to have given them names. She said, “Then other witnesses that we do [sic] may
find, we hope that they will tell us witnesses. I mean, it’s sort of like a domino effect. In this
case, we did not have this.”
We do not find that trial counsel or co-counsel’s performance in this area was deficient.
Mr. Little, Mr. Harris, Mr. Robinson, Ms. Swaggerty, and Ms. Cross all admitted at the post-
conviction hearing that they did not tell anyone what they knew about the shooting. Mr.
Robinson testified that he left the scene after the shooting and did not want to get involved
in anything. Ms. Swaggerty and Ms. Cross both testified that they went to the hospital after
the shooting and saw police there, but they did not tell them that they saw anything. Ms.
Cross testified that even after learning that Petitioner had been arrested, she did not contact
law enforcement because it was not “her place” to do so. Mr. Little admitted at the post-
conviction hearing that he did not tell police anything when they arrived at the bar and that
he went home. Mr. Harris testified at the post-conviction hearing that even if he had been
contacted by someone from the public defender’s office about the shooting, he would not have
told them anything. He indicated that he was only worried about himself at that point and that
he did not feel it was his “place” to tell police what he saw because it did not “involve” him.
The record does not preponderate against the trial court’s finding that Petitioner failed
to prove ineffective assistance counsel on this ground by clear and convincing evidence.
Petitioner is not entitled to relief on this issue.
Petitioner contends that trial counsel and co-counsel were ineffective for failing to call
a ballistics expert at trial to determine the “physical location and position” of the victim and
Petitioner during the shooting. However, to succeed on a claim of ineffective assistance of
counsel for failure to call a witness at trial, a petitioner should present that witness at the post-
conviction hearing. Pylant v. State, 263 S.W.3d 856, 869 (Tenn. 2008). “As a general rule,
-47-
this is the only way the petitioner can establish that . . . the failure to have a known witness
present or call the witness to the stand resulted in the denial of critical evidence which inured
to the prejudice of the petitioner.” Id. (quoting Black v. State, 794 S.W.2d 752, 757 (Tenn.
Crim. App. 1990)). Petitioner did not call a ballistics expert to testify at the post-conviction
hearing. Therefore, he is not entitled to relief on this issue.
Finally, Petitioner argues that trial counsel and co-counsel were ineffective for
investigate and assert self-defense. More specifically, he contends that on cross-examination
of Ashton Davis, trial counsel failed to ask her if she believed that Petitioner shot the victim
in self-defense. Concerning the self-defense issue, the trial court found as follows:
The defendant’s conclusion that by giving the self-defense instruction, the court
found the victim to be the first aggressor is not accurate. Certainly the evidence
at trial merited a self-defense instruction. This instruction is multi-faceted and
requires the finder of fact to consider the totality of the circumstances. In the
court’s opinion, the victim showed poor judgment in initially approaching the
defendant but his actions and words did not merit the defendant hitting the
victim in the face. While this is a close case, the court concludes that this blow
by the defendant provoked the victim’s use of unlawful force.
The [threat] or use of force against the deceased or alleged victim would not
have been justified if the defendant provoked the deceased’s or alleged victim’s
use or attempted used of unlawful force, unless the defendant abandoned the
encounter or clearly communicated to the deceased or alleged victim the intent
to do so, and the deceased or alleged victim nevertheless continued or
attempted to use unlawful force against the defendant.
If a defendant was not engaged in unlawful activity and was in a place where
he or she had a right to be, he or she would have no duty to retreat before
threatening or using force against the deceased or alleged victim when and to
the degree the defendant reasonably believed the force was immediately
necessary to protect against the alleged victim’s use or attempted use of
unlawful force. T.P.I. 40.06(b).
Thus, the jury could have reasonably rejected self-defense because the
defendant was engaged in unlawful activity; to wit: carrying a weapon for the
purpose of going armed. Had Mr. Conger, Sr. or Mr. Conger, Jr. testified the
jury would have learned that the defendant was banned from Soul Train for his
behavior the night before. The jury might then have concluded that self-
-48-
defense did not apply because the defendant was in a place, Soul Train, where
he had no right to be.
Also, the jury could have decided that the defendant’s use of a deadly weapon
was not immediately necessary to protect against the victim’s use of unlawful
force as the victim was unarmed and the defendant[‘s] shot was perfectly aimed
to kill.
Collective Exhibit Four shows that the Public Defender’s Office did, in fact,
argue self-defense. Perhaps, they were not as verbose as some attorneys but
sometimes less is more. This is a matter of style not substance. Just as there
are many genres of music; classical, rock, jazz, country, etc., there are many
approaches a[n] attorney can use in handling a case. The court also does not
find them ineffective for arguing for a lesser included offense in addition to
self-defense. While some attorneys feel that it is necessary to pursue only a
single theory of defense there is no consensus of opinion. The court certainly
does not find that it is ineffective assistance of counsel to pursue divergent
avenues of defense particularly in this case, the facts of which raise both
alternatives in defending the case.
Trial counsel testified that all he argued at trial was self-defense in both opening and
closing statements, and through his examination of witnesses tried to establish self-defense.
He pointed out that, as noted in the order denying post-conviction relief, that a self-defense
instruction was also given by the trial court. Co-counsel testified that he and trial counsel
spent a substantial amount of time preparing for Petitioner’s case. The focus of the defense
was self-defense, which he and trial counsel discussed. The Public Defender testified that she
was aware of Petitioner’s case and participated in discussions with trial counsel and co-
counsel about the case. She testified that they discussed self-defense issues. The Public
Defender testified: “Frankly, it was pretty much the only defense that we could go on, but it
was a weak defense, at best. There were problems with it, one being the mere fact that
[Petitioner] - - the information we had was that he was not supposed to be there.”
Petitioner has not demonstrated that there was a complete lack of investigation and
failure to assert self-defense by trial counsel and co-counsel. Even though trial counsel did
not specifically ask Ashton Davis on cross-examination if she believed Petitioner was acting
in self-defense when he shot the victim, the Petitioner acknowledges that her testimony
“implicated self-defense.” Trial counsel testified that when called as a witness, Ms. Davis’
testimony “helped us quite a bit.” As pointed out by the State: “Cross-examination is a
strategic and tactical decision . . . which is not to be measured by hindsight.” State v. Kerley,
-49-
820 S.W.2d 753, 756 (Tenn. Crim. App. 1991). Petitioner is not entitled to relief on this
issue.
Petitioner contends that the “cumulative effect of the deficient performance of trial
counsel abridged the constitutional rights of appellant.” Under the cumulative error doctrine
“multiple errors committed in the trial proceedings, each of which in isolation constitutes
mere harmless error, but which when aggregated have a cumulative effect on the proceedings
so great as to require a reversal in order to preserve a defendant’s right to a fair trial.” State
v. Hester, 324 S.W.3d 1, 76-77 (Tenn. 2010)(internal citations omitted). “To warrant
assessment under the cumulative error doctrine, there must have been more than one actual
error committed in the trial proceedings.” Id. (internal citations omitted).
In this case, we have granted relief on the only issue requiring reversal. Petitioner is
not entitled to relief on any other issue that he raises in the post-conviction petition.
Ineffective Assistance of Appellate Counsel
Petitioner contends that appellate counsel rendered deficient performance by failing
to raise Brady claims on appeal. The principles for determining the effectiveness of counsel
at trial and on appeal are the same in a post-conviction proceeding. See Campbell v. State,
904 S.W.2d 594, 596 (Tenn. 1995). A petitioner alleging ineffective assistance of appellate
counsel must prove both that 1) appellate counsel was objectively unreasonable in failing to
raise a particular issue on appeal, and 2) absent counsel’s deficient performance, there was
a reasonable probability that the petitioner’s appeal would have been successful before the
state’s highest court. See Smith v. Robbins, 528 U.S. 259, 285 (2000). In Carpenter v. State,
126 S.W.3d 879 (Tenn. 2004), our supreme court stated the following regarding review of
allegations of ineffective assistance by appellate counsel.
Appellate counsel are not constitutionally required to raise every
conceivable issue on appeal. King v. State, 989 S.W.2d 319, 334 (Tenn.
1999); Campbell v. State, 904 S.W.2d 594, 596-97 (Tenn. 1995). Indeed,
“experienced advocates have long ‘emphasized the importance of
winnowing out weaker arguments on appeal and focusing on one central
issue if possible, or at most a few key issues.’” Cooper v. State, 849
S.W.2d 744, 747 (Tenn. 1993) (quoting Jones v. Barnes, 463 U.S. 745, 751,
103 S. Ct. 3308, 77 L. Ed. 2d 987 (1983)); see also Smith v. Robbins, 528
U.S. 259, 288, 120 S. Ct. 746, 145 L. Ed. 2d 756 (2000). The determination
of which issues to raise on appeal is generally within appellate counsel’s
sound discretion. Jones, 463 U.S. at 751, 103 S. Ct. 3308; King, 989 S.W.2d
at 334; Cooper, 849 S.W.2d at 747. Therefore, appellate counsel’s
-50-
professional judgment with regard to which issues will best serve the
appellant on appeal should be given considerable deference. See Campbell,
904 S.W.2d at 597; see also Strickland, 466 U.S. at 689, 104 S. Ct. 2052.
We should not second-guess such decisions, and every effort must be made
to eliminate the distorting effects of hindsight. See Campbell, 904 S.W.2d
at 597; see also Strickland, 466 U.S. at 689, 104 S. Ct. 2052; Hellard v.
State, 629 S.W.2d 4, 9 (Tenn. 1982). Deference to counsel’s tactical
choices, however, applies only if such choices are within the range of
competence required of attorneys in criminal cases. Campbell, 904 S.W.2d
at 597.
If a claim of ineffective assistance of counsel is based on the failure
to raise a particular issue, as it is in this case, then the reviewing court must
determine the merits of the issue. See, e.g., Kimmelman v. Morrison, 477
U.S. 365, 375, 106 S. Ct. 2574, 91 L. Ed. 2d 305 (1986). Obviously, if an
issue has no merit or is weak, then appellate counsel’s performance will not
be deficient if counsel fails to raise it. Likewise, unless the omitted issue
has some merit, the petitioner suffers no prejudice from appellate counsel’s
failure to raise the issue on appeal. When an omitted issue is without merit,
the petitioner cannot prevail on an ineffective assistance of counsel claim.
See United States v. Dixon, 1 F.3d 1080, 1083 (10th Cir. 1993).
Carpenter, 126 S.W.3d at 887.
Trial counsel, who also represented Petitioner on appeal, testified that he raised
sufficiency of the evidence and sentencing. He said, “I didn’t see any other issues.” No
further evidence was elicited from trial counsel as to why he did not raise other evidentiary
issues on appeal.
As quoted from Carpenter, “If a claim of ineffective assistance of counsel is based on
the failure to raise a particular issue, as it is in this case, then the reviewing court must
determine the merits of the issue. See, e.g., Kimmelman v. Morrison, 477 U.S. 365[ ] (1986).”
Carpenter, 126 S.W.3d at 887 (emphasis added).
In order for the reviewing court to determine the merits of the omitted issue, a
petitioner should present the previously omitted issue in the same form and with the same
legal argument(s), that is, applying law to the facts of the case, which petitioner asserts
appellate counsel should have done. It is not enough to simply state that appellate counsel
should have raised certain issues on appeal and to argue that these issues could have resulted
in relief being granted to the petitioner. In the case sub judice, Petitioner has argued in his
-51-
brief that “[t]he failure to raise any and all of the State’s Brady violations on direct appeal
constituted deficient performance on the part of appellate counsel.” He further states: “That
appellate counsel only raised two very weak issues on direct appeal would be understandable
had there been no more effective issues to raise.” He notes that there were “five independent
pieces of evidence that demonstrated constitutional-level error on behalf of the State for
neglecting to provide these items to Appellant and his defense team prior to trial.” We have
carefully reviewed the arguments set forth in Petitioner’s brief, mindful of the requirement
in Carpenter that we must determine whether the omitted issues had merit. We are not
persuaded that the omitted issues had any merit. Accordingly, Petitioner is not entitled to
relief on this issue.
In conclusion, we reverse the judgment of the trial court denying post-conviction relief
and vacate Petitioner’s conviction for attempted second degree murder and employing a
handgun during the commission of a dangerous felony. The cause is remanded for a new trial.
___________________________________
THOMAS T. WOODALL, JUDGE
-52-