Angela M. Greene v. State of Tennessee ( 2019 )

03/07/2019
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs July 24, 2018
ANGELA M. GREENE v. STATE OF TENNESSEE
Appeal from the Criminal Court for McMinn County
No. 15-CR-316 Sandra Donaghy, Judge
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No. E2017-02257-CCA-R3-PC
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The Petitioner, Angela Greene, filed a post-conviction petition, seeking relief from her
convictions of first degree murder in the perpetration of a theft, aggravated assault, and
theft of property valued at $1,000 or more but less than $10,000 and the accompanying
life sentence. The Petitioner raised numerous allegations of ineffective assistance of trial
counsel, including insufficient trial preparation, failure to request a continuance when co-
counsel became ill, failure to raise objections during trial, failure to ask the Petitioner on
direct examination whether she killed the victim, and a conflict of interest due to his prior
representation of a State’s witness. Following the post-conviction court’s denial of relief,
the Petitioner appeals. Upon review, we affirm the judgment of the post-conviction
court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
NORMA MCGEE OGLE, J., delivered the opinion of the court, in which ROBERT L.
HOLLOWAY, JR., and J. ROSS DYER, JJ., joined.
Donald (Trey) Winder, III, Athens, Tennessee, for the Appellant, Angela M. Greene.
Herbert H. Slatery III, Attorney General and Reporter; Garrett D. Ward, Assistant
Attorney General; Stephen D. Crump, District Attorney General; and Clay Collins,
Assistant District Attorney General, for the Appellee, State of Tennessee.
OPINION
I. Factual Background
The Petitioner’s convictions stemmed from the circumstances surrounding the
death of the seventy-year-old victim, Robert Gravely, following an assault and the theft
of his vehicle. State v. Angela M. Greene, No. E2013-00475-CCA-R3-CD, 2014 WL
3384661, at *1, 11 (Tenn. Crim. App. at Knoxville, July 10, 2014). The proof at trial
revealed that at the time of the victim’s death, the Petitioner had been living with him
sporadically for approximately one year. Id. at *1, 13. On more than one occasion prior
to his death, the victim had reported to the police that the Petitioner had taken his car;
however, he withdrew the complaints after the car was returned. Id. at *1. On the
morning of Sunday, November 9, 2009, the victim was found lying in his front yard. Id.
He was cold, bruised, and bloody and was taken to the hospital for treatment. Id. at *1-2.
In the front yard, the police saw signs that an altercation had occurred, including a broken
concrete bench. Id. The Petitioner and her boyfriend, co-defendant Ricky Bryson, had
called 911 about the victim, and they were at the scene when the police arrived. Id. at *2.
The Petitioner and Bryson had blood on their clothes, Bryson had blood on his hands, and
they told the police that they had tried to help the victim. Id. While at the scene, the
police noticed a large dent in the hood of the victim’s car. Id. at *2, 3. Because the car
could be evidence relating to the crime, the police informed the Petitioner that she could
not take the car. Id. at *3. The Petitioner, who had been driving the car earlier that
morning, appeared angry, then she and Bryson walked away from the scene. Id. at *3,
11.
While in the hospital, the victim initially was reluctant to give a statement about
the incident. Id. at *3. However, when he realized he was dying, he gave a statement
reflecting that the Petitioner and Bryson wanted to take the victim’s car on Friday or
Saturday evening; the victim thought they wanted to get drugs. Id. at *4, 6, 7. The
victim further stated that when he refused to let them have the car, they beat him; the
beating began inside the house and ended outside in the front yard. Id. at *4, 6. The
victim said that during the altercation, Bryson poured something from a jar onto the
victim. Id. at *16. The victim said that the Petitioner and Bryson took the victim’s car
keys and left in his car. Id. at *4, 16. The victim said that he was unable to get up and
remained outside until he was found on Sunday morning. Id. at *4. The victim was
hospitalized for thirty-three days before he died from his injuries. Id. at *6. Two of the
State’s witnesses, Cynthia Lewis and Brandi Stiles, testified that the Petitioner made
statements incriminating herself in the attack on the victim. Id. at *14, 28-29.
The State medical examiner testified that the victim died as a result of “sepsis,
cold exposure, and assault” and that the victim’s death was a homicide. Id. at *12. She
determined that the victim’s injuries “were consistent with blunt force trauma and
frostbite.” Id. The medical examiner “thought she reviewed a video recorded statement
from the victim, but she was unsure.” Id. at *13.
The Petitioner testified that she took care of the victim and often drove his car
with his permission, usually to run errands for the victim. Id. at *18. On Friday night
before the victim was found in his front yard, the Petitioner woke with a headache, left
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the victim’s house, went to her mother’s house to get medicine, and met Bryson at her
mother’s house. Id. at *18-19. The Petitioner and Bryson were together from Friday
night until Sunday morning. Id. at *18-20. On Saturday, the Petitioner spoke with the
victim a couple of times by telephone; their last conversation occurred sometime after
noon. Id. at *19. On Sunday morning, the Petitioner became concerned after the victim
repeatedly failed to answer her calls. Id. at *21. The Petitioner and Bryson returned to
the victim’s house and found the victim lying unconscious on the ground in the front
yard. Id. The Petitioner called 911. Id.
The Petitioner maintained that she had been upset at the scene because she was
cold, had to sit in a car for forty-five minutes, was treated like a criminal, and had to walk
home. Id. The Petitioner denied making incriminating statements to anyone. Id. at *22,
24. She also denied that she harmed the victim or that Bryson poured anything from a jar
onto the victim. Id. at *24.
The defense’s expert witness, Dr. Ronald Wright, disputed the findings of the
State’s medical examiner, stating that the victim’s injuries were most likely the result of
hypothermia and that hypothermia was the primary cause of the victim’s death. Id. at
*25. Dr. Wright acknowledged that some of the victim’s injuries could have been caused
by blunt force trauma. Id. Dr. Wright concluded that the victim’s manner of death was
“undetermined because it could have been homicide, accidental, or natural disease.” Id.
A jury convicted the Petitioner of felony murder, aggravated assault, and theft of
property more than $1,000 but less than $10,000. Id. at *30. The trial court sentenced
the Petitioner to life for the felony murder conviction, six years for the aggravated assault
conviction, and four years for the theft conviction. Id. at *1. The trial court ordered that
the sentences for aggravated assault and theft be served consecutively to each other but
concurrently with the life sentence for felony murder. Id. On direct appeal, this court
affirmed the Petitioner’s convictions and sentences. Id.
Thereafter, the Petitioner filed for post-conviction relief, alleging that her trial
counsel was ineffective. In pertinent part, she contended that trial counsel failed to have
sufficient meetings with her; failed to call the Petitioner’s sister to testify regarding
Lewis’ reluctance to testify; failed to prepare the Petitioner to testify and made the
decision for the Petitioner to testify at the last minute; failed to specifically ask the
Petitioner on direct examination whether she killed the victim; and failed to confront the
medical examiner about her claim that she watched a video recording of the victim’s
statement when the recording did not exist. The Petitioner also contended that trial
counsel had a conflict of interest because he previously represented some of the State’s
witnesses.
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At the post-conviction hearing, the Petitioner testified that a public defender was
appointed to represent her on the day of her arraignment. The next time she saw her
attorney, he waived her preliminary hearing, and her case was bound over to the grand
jury. The Petitioner stated that her attorney told her that the police had a video recording
of an “exchange” with the victim and that it would be presented to the grand jury;
therefore, a preliminary hearing had not been necessary. The Petitioner said that her
attorney was removed from her case due to a conflict of interest; thereafter, trial counsel
and co-counsel began representing her. The Petitioner said that she learned at trial that
the police did not have a video recording of the victim’s statement.
The Petitioner stated that she was arrested in 2009 and that she remained in
custody until her trial in 2012. While she was in custody, she met with trial counsel four
or five times and once with co-counsel. Each meeting lasted approximately one hour or
one and one-half hours. During the meetings, trial counsel and the Petitioner discussed
trial strategy. Trial counsel told the Petitioner that he thought securing a conviction of a
lesser offense “would be a win.” The Petitioner told him that she disagreed and thought
the only “win” would be an acquittal because she was innocent. The Petitioner recalled
that the State offered to allow her to plead guilty to aggravated assault in exchange for the
dismissal of all other charges against her. The Petitioner refused the plea offer,
maintaining that she was innocent.
The Petitioner said that prior to trial, the State provided the defense with a list of
prospective witnesses, which included Wendy Millsaps, Cynthia Lewis, and Brandi
Stiles. Trial counsel told the Petitioner that he had represented Millsaps. The Petitioner
thought trial counsel had also represented Lewis, and she knew that Stiles was facing
some misdemeanor charges. The Petitioner asked trial counsel about representing all
three women, and trial counsel responded that he did not have a conflict that would
negatively impact his representation of the Petitioner.
The Petitioner recalled that Lewis testified against her at trial. The Petitioner said
that her sister knew Lewis “from the streets.” During trial, Lewis approached the
Petitioner’s sister in the court hallway and asked her to convey her apologies to the
Petitioner. Lewis explained to the Petitioner’s sister that she was told she would have to
serve “[her] time” if she did not testify against the Petitioner. The Petitioner’s sister told
counsel and the Petitioner about her exchange with Lewis. The Petitioner said that she
and her sister encouraged counsel to call the sister to testify regarding Lewis’ remarks;
however, counsel did not think Lewis’ comments would have any impact on the
Petitioner’s trial. Trial counsel was not concerned about Lewis’ testimony; nonetheless,
on cross-examination, he asked if anyone had threatened to make her serve her sentence
if she did not testify against the Petitioner. Lewis denied that she was coerced.
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The Petitioner stated that prior to trial, she and counsel had brief discussions about
whether she should testify. Trial counsel hesitated to have the Petitioner testify because
he anticipated that she would be “attacked” by the State on cross-examination. Trial
counsel said that he would prepare the Petitioner to testify by asking her sample direct
examination and cross-examination questions; however, such preparations never
occurred. The Petitioner said that the final decision regarding whether she would testify
was made immediately prior to her testimony. Counsel advised her that she needed to
testify so the jury could see her concern for the victim. The Petitioner acknowledged that
she chose to testify but maintained that she did not feel prepared to testify. The Petitioner
said that she and counsel did not discuss her defense strategy or how her testimony would
further that strategy.
The Petitioner said that her trial testimony lasted approximately two days. Trial
counsel asked the Petitioner 414 questions during direct examination but never directly
asked if she killed the victim. The Petitioner acknowledged that on direct examination,
trial counsel asked if she had poured a chemical substance on the victim, if she had a
scuffle with the victim at a concrete bench, if she had thrown an orange soda at the
victim, if she had ever been physical with the victim, or if she had ever threatened the
victim with harm and that she denied each allegation. Nevertheless, she opined that the
jury never heard her declare her innocence.
The Petitioner stated that trial counsel did not make any objections during the
State’s lengthy cross-examination of her even though the trial court asked trial counsel on
several occasions if he wanted to object. Additionally, the Petitioner recalled that on one
occasion co-counsel told trial counsel that he should have raised an objection, but trial
counsel said “it was harmless.”
The Petitioner said that the victim had a “bookie.” The bookie collected cash for
bets from the victim’s mailbox and left any winnings inside the victim’s mailbox. The
Petitioner told trial counsel that the victim could have been attacked by someone trying to
get cash from the victim or his mailbox. However, trial counsel dismissed that theory
and did not investigate it.
The Petitioner acknowledged that she may not have been aware of all of counsel’s
trial preparations. The Petitioner said that co-counsel became sick during trial, was
hospitalized, and was unable to continue representing the Petitioner at trial. Trial counsel
did not request a continuance or indicate whether he would make any adjustments to the
trial strategy based upon the absence of co-counsel. The Petitioner told trial counsel that
she was concerned that he had too much “on his plate” to continue representing her
without co-counsel. She thought that trial counsel agreed with her assessment but that he
did not want to admit being unable to do his job alone. The Petitioner acknowledged that
she did not know how involved co-counsel was in the preparation of her defense.
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The Petitioner testified that during trial, the State adduced proof that the victim’s
answering machine contained numerous messages, several of which were left by the
Petitioner in the two-day period before the victim was discovered in his front yard. At
trial, the State played some, but not all, of the Petitioner’s messages and asked her about
those messages. During her trial testimony, the Petitioner mentioned other messages she
had left for the victim, noting that she had checked on the victim’s welfare and sang
nursery rhymes to him. The Petitioner asked trial counsel to play all of the messages she
had left for the victim but did not recall trial counsel responding to her request.
The Petitioner said that at trial, the State emphasized that the Petitioner became
upset when the police would not allow her to leave with the victim’s car. She wanted to
counter the State’s allegations that she was “a money grubber” who only wanted the
victim’s car and made her “look like a real bad girl, a real bad one.” At the post-
conviction hearing, the Petitioner asserted that she had been the victim’s friend and
caretaker for three years, that she was upset because she had found the victim lying on
the ground, and that the victim’s car was her only means of transportation to visit the
victim at the hospital. The Petitioner thought the jury should have heard her explanation
of why she was upset the police made her leave the scene without the victim’s car.
The Petitioner said that Bryson’s trial occurred several months after hers and that
she did not know whether trial counsel attended Bryson’s trial. At his trial, Bryson was
found not guilty. Afterward, trial counsel sent the Petitioner a letter stating that Bryson’s
acquittal signaled that “surely there was something that we could do to get [her] another
trial.” In another letter, trial counsel said that the victim had never identified Bryson as
one of his attackers, which was incorrect. The Petitioner thought the victim had accused
both of them and that the State’s theory was the same in both trials. Trial counsel never
told the Petitioner that the medical examiner’s testimony at Bryson’s trial was not
consistent with her testimony at the Petitioner’s trial, and trial counsel did not raise an
issue about the inconsistencies in the Petitioner’s motion for new trial or on appeal.
The Petitioner said that the victim was elderly and suffered from health issues.
Although his condition was “hinted at” during trial, the Petitioner thought trial counsel
should have provided more information to the jury about the victim’s breathing problems,
which could explain his failure to get up and go inside his house. The Petitioner
acknowledged that trial counsel had subpoenaed the victim’s medical records but asserted
that trial counsel did not use the records at trial. The Petitioner recalled that the victim
had been hospitalized for two or three weeks and had been released only one week before
he was found in his front yard. She did not know the reason he was hospitalized and
noted that he was “very weak” when he came home. She told trial counsel that the
bruises on the victim’s stomach were caused by shots he had been given in the hospital,
not from blunt force trauma. Trial counsel did not bring up the issue at trial.
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The Petitioner said that trial counsel repeatedly told her that they “were not
prepared to go to trial” and that he “insinuated” they had not spent sufficient time
together due to his caseload. The Petitioner said that she did not feel prepared for trial,
especially after counsel failed to prepare her to testify. The Petitioner believed counsel’s
failure to prepare her to testify had a detrimental effect on her case.
On cross-examination, the Petitioner said she had a total of five or six meetings
with trial counsel; during the meetings, they discussed her case, he advised her that she
might need to testify, and he cautioned that the State’s cross-examination would be
difficult. The Petitioner acknowledged that she had wanted to testify but said that she
needed to be prepared for her testimony. She conceded that trial counsel had not acted
unreasonably by waiting until the conclusion of the State’s proof to require the Petitioner
to decide whether to testify. The Petitioner said that she was not able to tell her story or
convey her innocence to the jury during direct examination.
The Petitioner acknowledged that during direct examination, she denied that she
physically assaulted the victim, scuffled with the victim, threatened the victim, or was in
the victim’s yard prior to discovering the victim. The Petitioner acknowledged that trial
counsel did not need to ask additional questions after she denied “every single thing
leading up to [the victim’s] death.” She did not know of any objections trial counsel
could have made that would have changed the outcome of trial. The Petitioner stated that
trial counsel should have played all of the messages she left for the victim to show the
jury that she cared for him “like . . . a child” and would not have harmed him. The
Petitioner said the last thing she told the victim was that she would see him at the
hospital.
The Petitioner acknowledged that Dr. Wright testified as an expert in her defense
and that he must have examined the victim’s medical records prior to testifying. She did
not recall whether Dr. Wright testified that the victim had kidney or lung disease but did
recall Dr. Wright’s testimony that the victim had brain and heart disease. She recalled
that Dr. Wright testified that the bruising on the victim was caused by hypothermia, not
by an assault. The Petitioner acknowledged that evidence that the victim received shots
in his abdomen probably would not have changed anything about her trial. The Petitioner
acknowledged that Dr. Wright testified that the victim’s injuries were not caused by any
assault and that he presented all of the medical proof she wanted presented at trial. She
further acknowledged that she would not have changed anything from a “medical
perspective.”
On redirect examination, the Petitioner said that she did not think the jury’s verdict
was based on any one issue but that all of the issues had a cumulative effect on the
“overall defense.” She maintained that she did not get the defense she wanted and that
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she wanted to tell the jury that she was not guilty “of any of the crimes.” Her concerns
about trial counsel’s failure to raise objections made her concerned about his “overall
preparedness” for trial, maintaining that trial counsel “pretty much” let the State “do what
they wanted to do.”
Trial counsel said that he and co-counsel1 met with the Petitioner “numerous”
times. Trial counsel had a “fine” relationship with the Petitioner and “found her to be at
least of average intelligence.” Trial counsel said the Petitioner never deviated from her
version of events. Initially, co-counsel was to be lead counsel; however, co-counsel had
no prior experience trying a murder case so trial counsel decided to take the lead and
have co-counsel assist him.
Trial counsel testified that before the victim’s death, the Petitioner was charged
with aggravated assault. Trial counsel advised the Petitioner that the State made an offer
wherein the Petitioner would plead guilty to aggravated assault and receive a six-year
sentence. Trial counsel further advised the Petitioner that he did not think she should
accept the offer, even though the State warned the charge would be increased to homicide
if the victim died.
Trial counsel said that while the victim was hospitalized, the prosecutor asked the
police to record a statement from the victim because the victim was very ill and was
expected to die. The police took the statement, but the recording was not made due to
technical difficulties. Several weeks later, the victim died, and the Petitioner was charged
with felony murder in a superseding indictment.
Trial counsel said that on at least two occasions, the victim had pressed charges
against the Petitioner for taking his vehicle. One or two of the charges were dismissed,
but the Petitioner pled guilty to one charge in general sessions court. Because of the prior
charges, the Petitioner was immediately a suspect in the victim’s murder.
Trial counsel said the case against the Petitioner was based on circumstantial
evidence. The Petitioner maintained that she was the victim’s caretaker, while the State’s
witnesses alleged that the Petitioner was manipulating the victim and using him for his
money and his vehicle. Trial counsel recalled that the victim had health problems, and he
subpoeanaed the victim’s medical records. After reviewing the records, trial counsel
hired Dr. Wright as a forensic specialist.
Regarding the Petitioner’s claim that trial counsel had represented Stiles, Greene,
and Millsaps, trial counsel said that he did not recall ever personally representing Stiles,
but he knew from her criminal background that she had no significant convictions that
1
Co-counsel was deceased at the time of the post-conviction hearing.
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could be used to impeach her testimony. Trial counsel did not recall the public
defender’s office representing Lewis while the Petitioner’s case was pending or while the
trial was ongoing. Trial counsel acknowledged that a “significant period of time” before
the Petitioner was charged, he had represented Millsaps, and her case was resolved by a
plea agreement. Trial counsel and the Petitioner discussed whether his prior
representation created a conflict of interest. Trial counsel thought that any potential
conflict would have been with Millsaps and him, not with the Petitioner and him. Trial
counsel stated that Millsaps’ testimony did not hurt the Petitioner’s defense and that he
was not concerned about her testimony; instead, he was concerned about the testimony of
witnesses who testified that the Petitioner made incriminating statements.
Trial counsel recalled that the Petitioner wanted him to question Lewis as to
whether she was testifying for the State to avoid serving three years for a probation
violation. Trial counsel thought he cross-examined Lewis on that issue.
Trial counsel stated that the defense’s theory was that the victim, who was in ill
health, went outside, fell, and was unable to return to the house. In support of that theory,
trial counsel retained a forensic expert who stated that the victim’s injuries were the result
of hypothermia, not blunt force trauma.
Trial counsel acknowledged that the victim made a “dying declaration”
implicating the Petitioner as one of his assailants. Trial counsel argued to the jury that
because of the victim’s ill health and his injuries, he was not “a reliable witness as to
what happened to him . . . [and] was not competent to give a reliable, credible statement.”
Trial counsel said that he normally prepared his clients to testify by conducting a
“mock direct examination” and “mock cross examination,” and he thought he had
followed this practice when preparing the Petitioner to testify. The final decision
regarding whether the Petitioner would testify was made after the State concluded its
case-in-chief. Trial counsel knew the Petitioner had some prior convictions that could be
used for impeachment; however, she had always been adamant and consistent about what
happened, and after hearing the State’s proof trial counsel thought it was important for
the Petitioner to testify to convey her version of events to the jury. Trial counsel said that
he would not have had a client in a felony murder case testify without preparing the client
for the questions he intended to ask. Trial counsel acknowledged that he “did not think
[the Petitioner] made a particularly good witness” and asserted that she blamed him for
her failure as a witness. Trial counsel acknowledged that he was surprised to learn that
he had not asked the Petitioner “the ultimate question” of whether she killed the victim.
He noted, however, that he knew such a question had “been objected to in the past.”
Trial counsel said that his questioning of the Petitioner was designed to directly discredit
the victim’s statements. Trial counsel acknowledged that he did not make any objections
during the State’s cross-examination of the Petitioner but said that was not unusual.
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Trial counsel stated that he chose not to introduce all of the messages the
Petitioner left on the victim’s answering machine because he thought the “little birdy”
nursery rhyme the Petitioner sang mentioned falling, and the message “appeared to be
staged.” Trial counsel tried to show the jury that the Petitioner and the victim had a
“mutually beneficial relationship.” Notably, the victim was a lonely, elderly man who
had health problems and lived in an isolated part of the county. The Petitioner was his
friend and assisted him.
Trial counsel did not recall having discussions with the Petitioner about any
possible suspects who might want to hurt the victim or steal from him. Trial counsel did
not recall having much discussion with the Petitioner about the victim’s bookie or
gambling problem, and the victim’s gambling was not part of the defense theory of the
case. Additionally, because the police found no evidence that anything had been taken
from the victim’s house, the main issue was “what happened to him? How did he end up
in the yard?”
Trial counsel stated he was not “overly concerned” when co-counsel’s health
forced him to leave during trial, and trial counsel never considered requesting a
continuance. Trial counsel noted that co-counsel did not have a lot of trial experience
and had no prior experience trying a homicide case; nevertheless, co-counsel was “[v]ery
capable,” and trial counsel wanted him involved in a homicide case. Trial counsel said
that he was prepared to question the critical witnesses and that co-counsel had questioned
all of the witnesses he was to examine before he got sick.
Trial counsel said that the medical examiner’s testimony was a problem for the
defense. The medical examiner concluded that the victim’s injuries resulted from blunt
force trauma, not frostbite. Trial counsel said that the medical examiner’s testimony was
not entirely inconsistent with the defense theory of frostbite.
Trial counsel acknowledged that during the Petitioner’s trial, the medical examiner
said that she had seen a recording of the victim’s statement prior to rendering her medical
opinion. However, no such recording existed. Trial counsel did not think that testimony
would justify a new trial because her medical opinion was based on more than the
recording. Moreover, trial counsel thought he adequately cross-examined the medical
examiner and managed to show the jury that she had confused the Petitioner’s case with
another case. Trial counsel did not attend Bryson’s trial and did not know whether the
medical examiner’s testimony was consistent with her testimony at the Petitioner’s trial.
On cross-examination, trial counsel said that he had been a public defender for
approximately thirty years and had tried dozens of homicide cases. He talked with the
Petitioner about the case on multiple occasions, provided her a copy of discovery,
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explained the State’s theory of the case, and discussed a possible plea agreement. Trial
counsel and the Petitioner agreed that the victim must have fallen accidentally and died as
a result of exposure. Trial counsel did not recall having any disagreements with the
Petitioner regarding how to try the case.
Trial counsel said that the Petitioner was a good client and that she adamantly
maintained her innocence. Even though the evidence against the Petitioner was not
strong, trial counsel was concerned about the victim’s dying declaration and the
witnesses who testified about the Petitioner’s incriminating statements. Trial counsel
said that the Petitioner needed to testify to counter the victim’s dying declaration. Trial
counsel asserted that he prepared the Petitioner to testify and discussed the questions that
might be asked.
Trial counsel stated that the jury’s dissatisfaction with the Petitioner’s testimony
may not have concerned what she said but how she said it. Trial counsel did not recall
the prosecutor “just running over” the Petitioner or asking many questions that were not
anticipated. Trial counsel thought he made appropriate objections at trial and noted that
making “hyper-technical” or insignificant objections could have been detrimental.
Trial counsel said that he had never represented Lewis. He had represented
Millsaps, and he disclosed that to the Petitioner. Trial counsel thought that if any conflict
existed, it had to be waived by Millsaps, not the Petitioner. He noted that Millsaps’ prior
charges were not related to the Petitioner’s charges. Moreover, he opined that Millsaps’
testimony was not significant.
Trial counsel said that he did not know whether the medical examiner’s testimony
that she had seen a recording of the victim’s statement had any impact on the Petitioner’s
trial. Although trial counsel did not attend Bryson’s trial, trial counsel “was informed”
that the medical examiner acknowledged during Bryson’s trial that no recording of the
victim’s statement existed. Nevertheless, the case against Bryson was weaker than the
case against the Petitioner because the Petitioner had a relationship with the victim, and
the victim identified her as an assailant in his dying declaration. Trial counsel stated,
“The focus always was on [the Petitioner], in my opinion, looking at the proof and not
this other person that supposedly was there.”
Trial counsel said that his medical expert, Dr. Ronald Wright, disputed the
medical examiner’s findings and testified that he did not see evidence of assault or blunt
force trauma on the victim’s body. He attributed the discoloration on the victim’s body
to frostbite or “other explanations . . . other than assaultive behavior.”
Trial counsel said that the Petitioner’s case was “not the strongest homicide case”
he had seen “but [that] there was strong evidence.” In his view, the State’s strongest
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evidence against the Petitioner was the victim’s dying declaration, followed by the
medical examiner’s testimony that the victim’s injuries were the result of blunt force
trauma. Trial counsel noted also that the Petitioner had a relationship with the victim, she
was at the scene in the victim’s vehicle, and State’s witnesses had testified about
incriminating statements the Petitioner had made. Trial counsel conceded, “I’m not so
arrogant to think I couldn’t have tried a better case. It was a hard case. I can’t attribute
the result on [the Petitioner’s] not being prepared. I thought she adequately answered the
questions from both me and the State. It’s just obviously, the Jury didn’t believe her.”
Trial counsel said that he made a strategic decision to introduce all of the victim’s
statements to show that the victim had made other statements that were not consistent
with his dying declaration. Trial counsel asserted that, even in hindsight, he would not
change the defense theory.
On redirect examination, trial counsel said that juries decide cases based not only
on a witness’s testimony but also the witness’s attitude, demeanor, and dress. He said
that his practice was to prepare, not “coach,” his clients. He thought that the Petitioner
was an “okay” witness but that the jury did not find her or the defense theory believable.
Trial counsel had not “worried about [the Petitioner’s] testimony. [He] was worried
about other evidence more.”
The post-conviction court found that the Petitioner failed to prove that trial
counsel was ineffective and denied the petition for post-conviction relief. On appeal, the
Petitioner challenges the post-conviction court’s ruling.
II. Analysis
To be successful in a claim for post-conviction relief, a petitioner must prove the
factual allegations contained in the post-conviction petition by clear and convincing
evidence. See Tenn. Code Ann. § 40-30-110(f). “‘Clear and convincing evidence means
evidence in which there is no serious or substantial doubt about the correctness of the
conclusions drawn from the evidence.’” State v. Holder, 15 S.W.3d 905, 911 (Tenn.
Crim. App. 1999) (quoting Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 n.3 (Tenn.
1992)). Issues regarding the credibility of witnesses, the weight and value to be accorded
their testimony, and the factual questions raised by the evidence adduced at trial are to be
resolved by the post-conviction court as the trier of fact. See Henley v. State, 960
S.W.2d 572, 579 (Tenn. 1997). Therefore, the post-conviction court’s findings of fact are
entitled to substantial deference on appeal unless the evidence preponderates against
those findings. See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001).
A claim of ineffective assistance of counsel is a mixed question of law and fact.
See State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). We will review the post-conviction
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court’s findings of fact de novo with a presumption that those findings are correct. See
Fields, 40 S.W.3d at 458. However, we will review the post-conviction court’s
conclusions of law purely de novo. Id.When a petitioner seeks post-conviction relief on the basis of ineffective
assistance of counsel, “the petitioner bears the burden of proving both that counsel’s
performance was deficient and that the deficiency prejudiced the defense.” Goad v.
State, 938 S.W.2d 363, 369 (Tenn. 1996) (citing Strickland v. Washington, 466 U.S. 668,
687 (1984)). To establish deficient performance, the petitioner must show that counsel’s
performance was below “the range of competence demanded of attorneys in criminal
cases.” Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). To establish prejudice, the
petitioner must show that “there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine confidence in the
outcome.” Strickland, 466 U.S. at 694. Moreover,
[b]ecause a petitioner must establish both prongs of the test, a
failure to prove either deficiency or prejudice provides a
sufficient basis to deny relief on the ineffective assistance
claim. Indeed, a court need not address the components in
any particular order or even address both if the [Petitioner]
makes an insufficient showing of one component.
Goad, 938 S.W.2d at 370 (citing Strickland, 466 U.S. at 697).
On appeal, the Petitioner contends that her trial counsel was ineffective in multiple
ways. We will address each in turn.
The Petitioner contends that trial counsel failed to request a continuance after co-
counsel’s illness rendered him unable to continue with trial. The post-conviction court
found that trial counsel was more experienced than co-counsel and that he was prepared
to handle the Petitioner’s trial without co-counsel’s assistance. The post-conviction court
found that, accordingly, the Petitioner was not prejudiced by trial counsel’s failure to
request a continuance after co-counsel became ill. The evidence does not preponderate
against this finding. The Petitioner is not entitled to relief in this regard.
The Petitioner contends that trial counsel should have asked her about why she
was upset the police would not let her keep the victim’s car. The post-conviction court
found that although the Petitioner’s motives for wanting to keep the victim’s car were not
explored at trial, she had testified that her last words to the victim were a promise to visit
him in the hospital. Therefore, the post-conviction court found that the Petitioner
suffered no prejudice by trial counsel’s failure to explore this issue further. The evidence
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does not preponderate against this finding. The Petitioner is not entitled to relief in this
regard.
Next, the Petitioner contends that she had an inadequate number of meetings with
trial counsel and that her “limited interaction” with trial counsel “rendered her a mere
bystander rather than an active participant in her own defense.” The post-conviction
court accredited trial counsel’s testimony that he met with the Petitioner for “significant
periods of time on at least five occasions during the pendency of [the] Petitioner’s case.”
The post-conviction court also found that trial counsel had a “strong understanding” of
the facts of the Petitioner’s case and that he “spent a good amount of time over and above
his meetings with [her] learning about the facts and interviewing and preparing both for
cross examination of the State’s witnesses and for [the defense’s] witnesses.” The
evidence does not preponderate against these findings. The Petitioner is not entitled to
relief in this regard.
The Petitioner complains that trial counsel or the public defender’s office had
represented “several of the potential witnesses against her” and that he had a conflict of
interest that impacted her case. This court previously has explained:
Prejudice is presumed in cases in which a petitioner can
establish that trial counsel “‘actively represented conflicting
interests' and that ‘an actual conflict of interest adversely
affected [counsel’s] performance.’” Strickland, 466 U.S. at
692 (quoting Cuyler v. Sullivan, 446 U.S. 335, 348, 100 S.
Ct. 1708, 64 L. Ed. 2d 333 (1980)). “[A]n actual conflict of
interest includes any circumstances in which an attorney
cannot exercise his or her independent professional judgment
free from compromising interests and loyalties.” State v.
White, 114 S.W.3d 469, 476 (Tenn. 2003) (citations omitted).
“The proper focus is solely upon whether counsel’s conflict
affected counsel’s actions.” Netters v. State, 957 S.W.2d 844,
848 (Tenn. Crim. App. 1997).
James Patrick Stout v. State, No. W2011-00277-CCA-R3-PD, 2012 WL 3612530, at *57
(Tenn. Crim. App. at Jackson, Aug. 23, 2012). “[U]nless the Petitioner proves that trial
counsel was burdened by an actual conflict of interest, [s]he must establish that trial
counsel’s performance was deficient and that [s]he was prejudiced by this deficiency.”
Richard Frank D’Antonio v. State, No. M2011-01378-CCA-R3-PC, 2012 WL 2411871,
at *15 (Tenn. Crim. App. at Nashville, June 27, 2012).
The post-conviction court accredited trial counsel’s testimony that the only
potential conflict of interest existed with Millsaps, that trial counsel’s representation of
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Millsaps occurred “a significant period of time from when [trial counsel] represented [the
Petitioner]” in a case unrelated to the Petitioner’s case, and that trial counsel had
discussed the representation with the Petitioner. The post-conviction court found that
“that this conflict only prejudiced Millsaps,” and that the potential conflict did not affect
trial counsel’s representation of the Petitioner. The post-conviction court also found that
Millsaps’ testimony was “helpful . . . in that she [provided] a time line”; therefore, the
Petitioner suffered no prejudice. We agree. The Petitioner is not entitled to relief.
The Petitioner asserts that trial counsel should have had her sister testify regarding
Lewis’ reluctance to testify. The record reveals that although Lewis’ sister attended the
post-conviction hearing, post-conviction counsel informed the court that he did not intend
to call her as a witness. Generally, “[w]hen a petitioner contends that trial counsel failed
to . . . present witnesses in support of his defense, these witnesses should be presented by
the petitioner at the evidentiary hearing.” Black v. State, 794 S.W.2d 752, 757 (Tenn.
Crim. App. 1990). We may not speculate on what benefit this witness might have offered
to the Petitioner’s case. Id. Accordingly, the Petitioner has failed to demonstrate
prejudice in this regard.
The Petitioner contends that trial counsel failed to prepare her to testify and
complains that the decision for her to testify was made at the “last minute.” Trial counsel
explained that after hearing the State’s proof, he thought the Petitioner needed to testify
so the jury could hear how much she cared about the victim. Trial counsel also explained
that it was not unusual to wait until the State’s proof was concluded to make the decision
whether the accused should testify.
The Petitioner also contends that trial counsel should have asked whether she
killed the victim. The post-conviction court accredited trial counsel’s testimony that the
Petitioner was prepared to testify at trial. The post-conviction court found that even
though trial counsel did not ask the Petitioner the “ultimate question” of whether she
killed the victim, “the only conclusion that can be drawn from all of [the Petitioner’s]
testimony is, that [the Petitioner] did not kill that man.” The post-conviction court also
found that the Petitioner was given an opportunity to tell the jury her “side of the case.”
The post-conviction court noted “that [the] Petitioner’s complaint that she did not do as
well on cross-examination as she had hoped is a grievance shared by countless
defendants over the years, and one that doubtlessly has more to do with the abilities of a
talented prosecutor than the deficiencies of [trial] counsel.” The evidence does not
preponderate against the findings of the post-conviction court. The Petitioner is not
entitled to relief.
The Petitioner also asserts that trial counsel should have objected during the
State’s cross-examination of her. The post-conviction court noted that the Petitioner did
not state specifically anything to which trial counsel should have objected. See Michael
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Webster v. State, No. M2014-02019-CCA-R3-PC, 2015 WL 9412755, at *7 (Tenn. Crim.
App. at Nashville, Dec. 22, 2015). The post-conviction court also agreed with trial
counsel’s testimony “that sometimes Attorneys choose not to object so as not to alienate a
Jury with too many [objections].” The Petitioner is not entitled to relief.
Finally, the Petitioner contends that trial counsel failed to confront the medical
examiner about her testimony that she had watched a video that did not exist. As the
post-conviction court noted, the medical examiner testified that she thought she looked at
the recording but was not certain. Additionally, the post-conviction court found that the
jury had ample evidence that the medical examiner’s medical opinion was based upon her
examination of the victim, her review of the victim’s medical records, and her
discussions with the police. The post-conviction court found that trial counsel was not
deficient and that, regardless, the Petitioner suffered no prejudice. We agree. The
Petitioner is not entitled to relief.
III. Conclusion
The judgment of the post-conviction court is affirmed.
_________________________________
NORMA MCGEE OGLE, JUDGE
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