Michael Jermaine Harris v. State of Tennessee ( 2013 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
June 26, 2013 Session
MICHAEL JERMAINE HARRIS v. STATE OF TENNESSEE
Appeal from the Criminal Court for Hamilton County
No. 281168 Don W. Poole, Judge
No. E2012-02226-CCA-R3-PC - Filed July 22, 2013
Petitioner, Michael Jermaine Harris, was convicted of aggravated arson in 2009 and was
sentenced to nineteen years. He unsuccessfully appealed his conviction and sentence. See
State v. Michael Jermaine Harris, No. E2009-01383-CCA-R3-CD, 2010 WL 3155196, at
*1 (Tenn. Crim. App. Aug. 10, 2010). Petitioner filed the instant petition for post-conviction
relief in which he alleged that he received ineffective assistance of counsel at trial.
Following an evidentiary hearing, the post-conviction court denied relief. On appeal,
petitioner argues that he received ineffective assistance of counsel when counsel failed to
prepare adequately for trial, failed to obtain an expert witness, failed to procure an alibi
witness, and failed to adequately cross-examine one of the police officers involved.
Following our review of the parties’ arguments, the record, and the applicable law, we affirm
the judgment of the post-conviction court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
R OGER A. P AGE, J., delivered the opinion of the court, in which J OHN E VERETT W ILLIAMS
and R OBERT W. W EDEMEYER, JJ., joined.
Kevin L. Loper (on appeal) and Andrew D. Watts (at post-conviction hearing), Chattanooga,
Tennessee, for the appellant, Michael Jermaine Harris.
Robert E. Cooper, Jr., Attorney General and Reporter; Deshea Dulany Faughn, Assistant
Attorney General; William H. Cox, III, District Attorney General; and Cameron Williams,
Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
I. Facts
A. Trial
This court summarized the facts presented at petitioner’s trial in our opinion
addressing petitioner’s direct appeal:
On December 24, 2005, a home . . . in Chattanooga was set on fire
while people remained inside the structure. On April 26, 2006, a Hamilton
County grand jury indicted [petitioner] for the aggravated arson of the
residence. After a trial on February 24, 2009, the jury convicted [petitioner]
as charged. The trial court held a sentencing hearing and sentenced
[petitioner] to 19 years’ incarceration at 100 percent service. [Petitioner] filed
a timely motion for new trial and notice of appeal.
At trial, Danny Westfield testified that in December 2005, he lived at
[the home] in Chattanooga. He explained that the home was a duplex and that
he lived on one side, Apartment A, with his girlfriend, Tina Watkins; her
brother, Fred Bowen; and his grandson, Demetrius Buchanan. He said that
Gail Lee lived in the other side of the duplex, Apartment B. Mr. Westfield
stated that he had lived in the duplex for 11 years.
Mr. Westfield testified that on December 24, 2005, he was visiting Ms.
Lee’s side of the duplex and that “a house full” of people were present to
celebrate Christmas. He said that his son, Danny, arrived at the duplex near
dusk and that [petitioner] arrived shortly thereafter. Mr. Westfield testified
that he knew [petitioner] “from the neighborhood.” He said that Danny and
[petitioner] began fighting shortly after arriving at Ms. Lee’s apartment.
Mr. Westfield testified that “the fight started on the inside[,] and [they]
took it on the outside.” He said that he did not know why the men were
fighting. He estimated that the fighting lasted for approximately five minutes.
He testified that he owned a pit bulldog that bit [petitioner] during the scuffle.
Mr. Westfield testified that he attempted to stop the fight and that he “ended
up shooting [petitioner].” He thought he shot [petitioner] in either the hip or
leg with his .32 revolver. He testified that the fighting then stopped and that
[petitioner] left.
-2-
Mr. Westfield and his son also fled from the residence after the fight.
He said that he did not contact the police about the incident. Mr. Westfield
pleaded guilty to one count of reckless endangerment for his shooting
[petitioner].
Mr. Westfield testified that he returned to his home on December 27,
2005, and observed that his side of the duplex had been burned. He testified
that he never gave [petitioner] permission to burn the home.
Ms. Lee testified that she lived in Apartment B at the duplex . . . . She
testified that in December 2005, she had lived there for approximately three
years. She said that on Christmas Eve[,] she was in her kitchen making
chicken and dressing and that her grandson and daughter were in her living
room. She said that Mr. Westfield and Mr. Bowen were also present. Ms. Lee
testified that she heard “a lot of motion up front,” that she witnessed
[petitioner] and Danny fighting, and that the two turned over her coffee table.
She said that the two also knocked over her unlit kerosene heater and spilled
kerosene on the floor. She testified that she knew [petitioner] and that she did
not invite him to her home that evening.
Ms. Lee testified that the fight moved outside and that Danny ran into
his father’s apartment on the other side of the duplex. Ms. Lee then observed
[petitioner] use his foot to try to break the windshield of Mr. Westfield’s
vehicle. She said that [petitioner] then tried to enter Apartment A but that Mr.
Westfield pushed him back. She then saw a dog run outside and chase
[petitioner]. Ms. Lee stated that she then ran into the house to call 9-1-1 and
that she heard three gunshots. Ms. Lee said when she ran back outside a group
of unidentified males had taken [petitioner] and “then went on up the street.”
She said that Mr. Westfie[l]d and Danny remained in the front yard. Ms. Lee
said that the police arrived and that she spoke with them.
She testified that, after the police departed, [petitioner] and a group of
males returned. She said that [petitioner] told her to “set [her] stuff out”
because he was going to burn down the house. Ms. Lee told [petitioner] to go
to the hospital because of his gunshot wound, but [petitioner] was “just
cussing” about how Mr. Westfield had shot him.
Ms. Lee said that [petitioner] then returned with a larger group of men
and that he knocked on Apartment A’s door, but nobody answered. Ms. Lee
was inside her apartment when she heard the group of men talk about
“shooting up” the house, and she again went outside. While outside, she saw
-3-
Ms. Watkins open her door. [Petitioner] exclaimed that Mr. Westfield had
shot him three times and then showed her the wound on his leg. After
[petitioner] left, Ms. Lee discussed with Ms. Watkins whether [petitioner]
would actually burn the house. They decided he would not do such a thing and
entered their respective apartments.
Ms. Lee said [petitioner] again came to the home. She said, “So him
[sic] and some boys were going up the street[,] and he stopped a car[,] and he
asked him to take him to the Conoco to get some kerosene, not kerosene,
gasoline, because he fixing [sic] to burn the house down.” She testified that
[petitioner] returned 10 to 15 minutes later with a clear “milk jug or
something” with something “pinkish” inside it. She testified that she ran to
Apartment A to tell Ms. Watkins to call the police.
Ms. Lee testified that she told [petitioner], “I know you ain’t fixing to
do what I think you’re fixing to do.” She said that [petitioner] replied, “Well,
I told you to set your stuff out.” She then heard [petitioner] shout, “My sister
dead, my sister dead, I don’t care nothing about nothing no more.” She said
that [petitioner] picked up the jug and “dashed it on the side real quick” of
Apartment A. She again said, “I know you ain’t fixing to set this house on
fire,” and [petitioner] responded, “Yes, I am too.” She testified that he then
threw a cigarette lighter to ignite a fire at Apartment A and that “the whole
door looked like it just blowed off.” Ms. Lee stated that Ms. Watkins and Mr.
Bowen were both in the home when [petitioner] ignited the fire. She said that
[petitioner] then ran into an alley.
She testified that, when she saw police officers, she ran to them and told
them to call the fire department. She saw Ms. Watkins exit her home
“hollering and screaming and stuff.” Ms. Lee testified that she also gave a
statement to fire department personnel that evening. Ms. Lee said that as a
result of the fire, she had to stay with relatives for three weeks; however, she
said that nothing in her home was damaged and that she eventually returned
to living there.
On cross-examination, Ms. Lee stated that [petitioner] had worn an
orange jumpsuit on the night of the burning and that he had worn it all day.
She also said that she spoke to the police prior to the arson and estimated that
the burning occurred at 11:00 or 11:30 p.m.
Ms. Watkins testified that she lived in Apartment A with her brother,
Mr. Bowen; her boyfriend, Mr. Westfield; and Mr. Westfield’s grandson, Mr.
-4-
Buchanon. She explained that her brother, Mr. Bowen, had only one leg and
walked by use of a wooden leg.
Ms. Watkins testified that she was sleeping on December 24, 2005, and
was unaware of any altercation next door in Apartment B. She stated that she
was asleep in the living room when she awoke to her neighbor’s telling her to
call the police because somebody threatened to burn down her house. She
testified that she was on the telephone with the police when the fire started.
She said that the front door “blew up” and that she then ran to the back of the
apartment, collected her dog, and called for her brother, who was in the back
room. She said that she and her brother left through the back door.
Ms. Watkins said that the fire department quickly extinguished the fire
but that everything in the home was ruined. She testified that she knew
[petitioner] and that she never gave him permission to burn the house.
Christian Lorenzen of the Chattanooga Police Department testified that
he was patrolling the area when he observed a home on fire at approximately
10:00 or 10:30 p.m. He drove toward the fire and observed an individual
throwing some sort of liquid on the fire that increased its intensity. He
watched the fire “rolling up the house.” Officer Lorenzen exited his vehicle
and chased the individual; however, the man ran out of sight. He identified the
individual as [petitioner]. Officer Lorenzen testified that he then attended to
the burning home and that after ascertaining that Ms. Watkins and Mr. Bowen
were outside the duplex, he focused on controlling the crowd that had formed
around the duplex.
Officer Lorenzen testified that he received a call from Park Ridge
Hospital that a man had arrived who had a gunshot wound and smelled of
kerosene. Based upon what he had learned during his interviews at the scene,
he went to the hospital. He identified the man at the hospital as [petitioner],
the same man he had chased earlier that evening. He estimated that he visited
the hospital at approximately 12:00 a.m.
On cross-examination, Officer Lorenzen described the man that he
observed at the fire as a black male with short dreadlocks, dark colored jeans,
and a sweatshirt. He could not recall the color of the sweatshirt. He said that
he identified the suspect at the hospital by the color of his jeans, his hair, and
the smell of a flammable liquid that he believed was kerosene. He testified
that the hospital treated a gunshot wound in the victim’s thigh. He said that
[petitioner] had a weapon on him at the hospital.
-5-
Officer Lorenzen maintained that he did not question [petitioner] at the
hospital; however, he testified that he asked [petitioner], “Why’d you run from
me?” and that [petitioner] responded, “Oh man.”
Lieutenant Henry McElvain of the Chattanooga Fire Department
testified that he investigated the December 24, 2005 fire. He testified that the
incident was reported to the fire department at 10:38 p.m. He arrived at the
scene and noted that Apartment A of the duplex had been damaged. He first
interviewed Ms. Lee, who told him that [petitioner] had been in a fight at the
residence earlier and that he had set the fire.
Lieutenant McElvain testified that most of the fire damage was in the
front doorway of Apartment A. He described a “V pattern” going up and out
the building. He said that the fire burned the front door and spread to the
interior of the home, blackening the ceiling. He determined that the origin of
the fire was the front porch area.
Lieutenant McElvain collected debris samples for later examination by
the Tennessee Bureau of Investigation (“TBI”). He testified that another
member of the fire department went to the hospital and collected clothing from
[petitioner] for later examination by the TBI.
Randall Kirk Nelson of the TBI crime laboratory in Nashville testified
that he performed an analysis of the debris and clothing collected by the
Chattanooga Fire Department. The trial court accepted Agent Nelson as an
expert in micro analysis. Agent Nelson’s testing of the debris from Apartment
A indicated the presence of an evaporated gasoline product. He also examined
[petitioner]’s shoes and clothing, which indicated the presence of an
evaporated heavy petroleum distillate. He said such distillates include
kerosene, diesel fuel, and some charcoal starters.
Agent Nelson admitted that the incendiary agent found from the debris
was wholly different than that found on [petitioner]’s clothing. He further
testified that nothing indicated that a mixture of a gasoline product and a heavy
petroleum distillate was used.
The State rested, and the defense presented Lela McFarrin, the director
of medical records at Park Ridge Medical Center. She explained that she
gathered records and processed them for the hospital. She received a request
to locate the medical records of [petitioner], Michael Harris, for a December
24 or 25, 2005 visit. She testified that she initially could not find [petitioner]’s
-6-
hospital records but that, upon learning additional information about his visit,
she identified records for “Michael Blunt.” She also noted that the date of
birth and social security number written for “Michael Blunt” matched that of
[petitioner]. She also explained that the registration form originally stated
“Michael Harris” but “Harris” had been crossed through and “Blunt” written
instead.
On cross-examination, Ms. McFarrin stated that she did not know who
filled out the registration form, so she was unaware of who crossed through
[petitioner]’s last name. She also acknowledged several inconsistencies in the
hospital records. She noted that the time of 10:30 p.m. was hand-written as the
arrival time; however, other records indicated an arrival time of 11:20 p.m., a
“triage time” of 11:20 p.m., and an “admission time” of 11:41 p.m. Ms.
McFarrin admitted that the reported admission times were inconsistent and that
human error could occur in the record-making process.
Paula Burgess, a registered nurse, testified that she was working at Park
Ridge Medical Center’s emergency room on December 24, 2005. She testified
that she treated [petitioner]’s gunshot wound on that evening, but she said that
she mainly recalled the treatment through her records. She recalled that
[petitioner] arrived via private vehicle, and she testified that generally when
a patient arrived with a gunshot wound, he was immediately treated. She
testified that the person who arrived at the hospital with [petitioner] likely
filled out the registration form reflecting “Michael Blunt.”
Ms. Burgess addressed the medical forms noting the treatment received
by [petitioner]. She testified that she had crossed out the time of 11:20 p.m.
and replaced it with 10:30 p.m. written in her handwriting. She testified that
when several nurses treat one patient, it is common for inconsistent and
inaccurate times to be reported. She acknowledged that the “Time to TX
Room” entry originally said 10:30 p.m. in her handwriting but that someone
had crossed it out and written 11:30 p.m. Ms. Burgess testified that her
records reflected that she started intravenous therapy on [petitioner] at 10:38
p.m. and that laboratory assistants arrived to draw blood at 10:40 p.m. She
testified that she had written that the police were notified of the gunshot injury
at 10:50 p.m.
Ms. Burgess explained that she had “a habit of writing on napkins and
transferring that” to the hospital records. She said that she developed this habit
because, in an emergency treatment situation, she did not have time to make
official documentation while tending to the patient. She testified that, after she
-7-
entered her “scrap” notes into the official records, she disposed of the loose
notes.
On cross-examination, Ms. Burgess again acknowledged that the triage
time and arrival time stated 11:20 p.m. and that, because of the type of wound,
these times would be identical because treatment would start immediately upon
arrival. She explained that the computer program used for entering medical
records automatically entered the time. She said that, because she generally
makes her records after the treatment, the automatically-displayed time is
generally much later than the actual procedures and that she has to change it.
Ms. Burgess also testified that she heard [petitioner] say “they poured gasoline
all over me.”
Chris Gaynor testified that he maintained recordings and records for the
9-1-1 center and the computer aided dispatch system (“CAD”). He explained
that the CAD entries recorded the calls to and from the police involving
reported incidents. He testified that on December 24, 2005, the police were
contacted regarding Mr. Westfield’s shooting [petitioner] at 9:28 p.m. and that
they were contacted regarding the arson at 10:37 p.m. The CAD entries
reported that someone with an orange shirt threw something in the house and
set it on fire. He said the records reflected a police officer was on foot at the
scene at 10:40 p.m. The CAD entries noted that [petitioner] was at Parkridge
Hospital at 11:21 p.m., that he was identified at 11:22 p.m., and that an officer
observed [petitioner] at the hospital at 11:58 p.m. On cross-examination, Mr.
Gaynor stated that the call from the hospital about the reported gunshot
occurred at 10:55 p.m.
Michael Jermaine Harris, 2010 WL 3155196, at *1-6.
Petitioner filed his petition for post-conviction relief on August 9, 2011. The post-
conviction court appointed counsel for the petitioner, and an evidentiary hearing was held
on August 6, 2012.
Petitioner testified that he had been convicted of aggravated arson in 2009. He had
been released on bond for the majority of the time leading up to his trial. Petitioner testified
that he met with trial counsel three times prior to trial. One meeting was by telephone.
Another meeting was to sign papers. The third meeting was the day before trial, and trial
counsel asked him whether he would testify and what witnesses he had. Petitioner testified
that he told trial counsel about three potential witnesses approximately two months prior to
trial. Those witnesses were Courtney Hinton, Amanda Burney, and Allen Burney. Petitioner
said that he had Mr. Hinton’s telephone number but did not have contact information for the
-8-
other two potential witnesses. He testified that he told trial counsel that these witnesses
would be very helpful to his case, but she made no effort to locate them. Petitioner testified
that he never received a plea offer in his case. He said that he recalled discussing accelerants
with trial counsel and asked her to procure an expert on accelerants. To his knowledge, trial
counsel never contacted an expert. Petitioner testified that trial counsel did not cross-
examine the State’s witnesses beyond asking “a couple of questions.” In particular, he said
that trial counsel should have asked witnesses about his clothing because the witnesses’
testimony about what the arsonist was wearing did not match what petitioner was wearing
at the hospital. He also said that trial counsel should have asked Gail Lee about her alcohol
usage, but he admitted on cross-examination that he did not tell trial counsel about that until
after the trial was over.
Allen Burney testified that neither trial counsel nor anyone from her staff tried to
contact him regarding petitioner’s trial. He recalled that petitioner told him someone should
be calling him about being a witness, but no one did. He said that he lived in Chattanooga
the entire time between petitioner’s arrest and his trial.
On cross-examination, Mr. Burney testified that he drove petitioner to the hospital on
December 24, 2005. Mr. Burney said that he could not recall the exact time he took
petitioner to the hospital, but it was dark and might have been around 8:00 p.m. Mr. Burney
testified that petitioner was in pain. He did not notice anything unusual about petitioner’s
clothing or that petitioner smelled like gasoline or kerosene.
Trial counsel testified that she had been licensed to practice law in Tennessee since
1983 and that she was the district public defender for Hamilton County. She was appointed
to represent petitioner in criminal court, but she did not represent him in general sessions
court. Trial counsel testified that she met with petitioner more than two times at her office,
but she did not have documentation of the exact number of meetings. Trial counsel testified
that she came to represent petitioner because of staff shortages in her office. She agreed that
she might have been able to meet with petitioner more frequently absent those shortages, but
she did not believe that the staffing problems impacted her representation of petitioner.
Trial counsel testified that she spoke with the Tennessee Bureau of Investigation agent
who wrote the report on the accelerant used in the arson and the accelerant found on
petitioner’s clothing. She recalled that the agent found that the accelerant used in the arson
was not the same accelerant found on petitioner’s clothing. Trial counsel said that she would
have needed to present to the court a particularized need for funds to hire a defense expert
on accelerants,1 and at the time, she did not believe she would be able to show that
1
See Tenn. Sup. Ct. R. 13, § 5(c).
-9-
particularized need because the State’s expert “was saying what I wanted [him] to say.” Trial
counsel testified that having a defense expert to testify about the accelerants might have been
more beneficial for petitioner because the jury might have taken an expert’s opinion
differently than her argument alone, but she also said that the State’s expert testified clearly
that the accelerant used in the arson was not the same accelerant found on petitioner’s
clothing.
Trial counsel testified that she was able to present an alibi defense based upon
petitioner’s hospital records from the night of the arson. She knew that Amanda Burney was
a potential alibi witness, and she recalled meeting with Ms. Burney. Trial counsel testified
that while Ms. Burney had been at the hospital with petitioner, she did not know anything
about the events leading up to his hospitalization other than what he had told her. Trial
counsel was not aware of other potential alibi witnesses until after the trial, when petitioner
told a member of trial counsel’s staff about witnesses who could testify about events from
the day of the arson, one of whom was Courtney Hinton. Trial counsel recalled that either
she or a member of her staff communicated with Mr. Hinton, and he led them to Allen
Burney. Trial counsel’s investigator tried to contact Mr. Burney. She explained that she
argued in petitioner’s motion for new trial that petitioner’s witnesses had not come forward
before trial and that the trial court should consider their testimony as newly discovered
evidence. She was able to obtain an affidavit from Mr. Hinton, but her staff was unable to
contact Mr. Burney.
Trial counsel testified that the State made a plea offer to petitioner for him to plead
to a Class B felony and serve eight years. She originally communicated the offer to
petitioner by letter, but the letter was returned to her undelivered. She relayed the offer to
petitioner and his mother in person prior to the trial. Trial counsel recalled that when she
talked to petitioner and his mother about the State’s plea offer, petitioner’s mother asked
whether he had any witnesses. Petitioner responded that he did not have any witnesses.
Trial counsel agreed that one of the State’s primary means of proving petitioner’s
identity as the arsonist was through the testimony of Officer Christian Lorenzen. Regarding
her cross-examination of Officer Lorenzen, trial counsel testified that she wanted Officer
Lorenzen to be very specific about what he saw the suspect doing, such as running and
jumping, so that she could rebut his testimony with records from the hospital about
petitioner’s injuries and the time of his treatment. Her theory was that petitioner was at the
hospital being treated while Officer Lorenzen was chasing a suspect.
Following the hearing, the post-conviction court dismissed the petition by written
order. With regard to trial counsel’s preparation for trial, the post-conviction court found that
she prepared for trial by formulating an alibi defense based upon medical records and that
petitioner did not give her the names of any potential alibi witnesses other than Amanda
-10-
Burney until after the trial. As for those alibi witnesses, trial counsel spoke with Ms. Burney
prior to trial. According to trial counsel, Ms. Burney was with petitioner at the hospital but
not earlier in the evening. Because Ms. Burney did not testify at the post-conviction hearing,
the post-conviction court found that there was no evidence that she could have placed
petitioner at the hospital prior to the arson. The post-conviction court found Allen Burney’s
post-conviction testimony to be inconsistent with petitioner’s medical records and post-trial
affidavit. The post-conviction court also found that Courtney Hinton’s post-trial affidavit
was indefinite with respect to time and was outweighed by the more definite trial testimony.
The post-conviction court concluded that trial counsel was not ineffective with regard to the
alibi witnesses.
The post-conviction court found that trial counsel’s performance was not deficient for
failure to request an expert to testify regarding accelerants. The post-conviction court found
that the State’s expert provided clear testimony. Regarding trial counsel’s cross-examination
of Officer Lorenzen, the post-conviction court found that her performance was neither
deficient nor prejudicial because she chose to focus on medical records that indicated Officer
Lorenzen was mistaken as to the time he saw the suspect.
II. Analysis
Petitioner argues that his trial counsel provided ineffective assistance by (1) failing
to adequately prepare for trial; (2) failing to obtain an expert in accelerants; (3) failing to
present alibi witnesses at trial; and (4) failing to adequately cross-examine prosecution
witnesses, especially Officer Lorenzen. The State responds that the post-conviction court
properly dismissed the petition for post-conviction relief.
To obtain relief in a post-conviction proceeding, a petitioner must demonstrate that
his or her “conviction or sentence is void or voidable because of the abridgement of any right
guaranteed by the Constitution of Tennessee or the Constitution of the United States.” Tenn.
Code Ann. § 40-30-103 (2012). A post-conviction petitioner bears the burden of proving his
or her factual allegations by clear and convincing evidence. Tenn. Code Ann. § 40-30-110(f)
(2012). “‘Evidence is clear and convincing when there is no serious or substantial doubt
about the correctness of the conclusions drawn from the evidence.’” Lane v. State, 316
S.W.3d 555, 562 (Tenn. 2010) (quoting Grindstaff v. State, 297 S.W.3d 208, 216 (Tenn.
2009)).
Appellate courts do not reassess the trial court’s determination of the credibility of
witnesses. Dellinger v. State, 279 S.W.3d 282, 292 (Tenn. 2009) (citing R.D.S. v. State, 245
S.W.3d 356, 362 (Tenn. 2008)). Assessing the credibility of witnesses is a matter entrusted
to the trial judge as the trier of fact. R.D.S., 245 S.W.3d at 362 (quoting State v. Odom, 928
S.W.2d 18, 23 (Tenn. 1996)). The post-conviction court’s findings of fact are conclusive on
-11-
appeal unless the preponderance of the evidence is otherwise. Berry v. State, 366 S.W.3d
160, 169 (Tenn. Crim. App. 2011) (citing Henley v. State, 960 S.W.2d 572, 578-79 (Tenn.
1997); Bates v. State, 973 S.W.2d 615, 631 (Tenn. Crim. App.1997)). However, conclusions
of law receive no presumption of correctness on appeal. Id. (citing Fields v. State, 40 S.W.3d
450, 453 (Tenn. 2001)). As a mixed question of law and fact, this court’s review of
petitioner’s ineffective assistance of counsel claims is de novo with no presumption of
correctness. Felts v. State, 354 S.W.3d 266, 276 (Tenn. 2011) (citations omitted).
The Sixth Amendment to the United States Constitution, made applicable to the states
through the Fourteenth Amendment, and article I, section 9 of the Tennessee Constitution
require that a criminal defendant receive effective assistance of counsel. Cauthern v. State,
145 S.W.3d 571, 598 (Tenn. Crim. App. 2004) (citing Baxter v. Rose, 523 S.W.2d 930(Tenn. 1975)). When a petitioner claims that he received ineffective assistance of counsel,
he must demonstrate both that his lawyer’s performance was deficient and that the deficiency
prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984); Finch v. State,
226 S.W.3d 307, 315 (Tenn. 2007) (citation omitted). It follows that if this court holds that
either prong is not met, we are not compelled to consider the other prong. Carpenter v. State,
126 S.W.3d 879, 886 (Tenn. 2004).
To prove that counsel’s performance was deficient, petitioner must establish that his
attorney’s conduct fell below an objective standard of “‘reasonableness under prevailing
professional norms.’” Finch, 226 S.W.3d at 315 (quoting Vaughn v. State, 202 S.W.3d 106,
116 (Tenn. 2006)). As our supreme court has previously held:
“[T]he assistance of counsel required under the Sixth Amendment is counsel
reasonably likely to render and rendering reasonably effective assistance. It is
a violation of this standard for defense counsel to deprive a criminal defendant
of a substantial defense by his own ineffectiveness or incompetence. . . .
Defense counsel must perform at least as well as a lawyer with ordinary
training and skill in the criminal law and must conscientiously protect his
client’s interest, undeflected by conflicting considerations.”
Id. at 315-16 (quoting Baxter, 523 S.W.2d at 934-35). On appellate review of trial counsel’s
performance, this court “must make every effort to eliminate the distorting effects of
hindsight, to reconstruct the circumstances of counsel’s conduct, and to evaluate the conduct
from the perspective of counsel at that time.” Howell v. State, 185 S.W.3d 319, 326 (Tenn.
2006) (citing Strickland, 466 U.S. at 689).
To prove that petitioner suffered prejudice as a result of counsel’s deficient
performance, he “must establish a reasonable probability that but for counsel’s errors the
result of the proceeding would have been different.” Vaughn, 202 S.W.3d at 116 (citing
-12-
Strickland, 466 U.S. at 694). “A ‘reasonable probability is a probability sufficient to
undermine confidence in the outcome.’” Id. (quoting Strickland, 466 U.S. at 694). As such,
petitioner must establish that his attorney’s deficient performance was of such magnitude that
he was deprived of a fair trial and that the reliability of the outcome was called into question.
Finch, 226 S.W.3d at 316 (citing State v. Burns, 6 S.W.3d 453, 463 (Tenn. 1999)).
The post-conviction court found that trial counsel adequately prepared for trial, and
the record supports this finding. The record reflects that trial counsel met with petitioner and
also met with his mother and his girlfriend. Trial counsel prepared an alibi defense based
upon time stamps on petitioner’s medical records, and she presented the medical records and
the testimonies of hospital employees at trial. Trial counsel interviewed the State’s expert
on accelerants prior to trial and was able to determine that his testimony was essentially
favorable to petitioner. Clearly, trial counsel’s preparation for trial was reasonable,
especially in light of the fact that petitioner did not give her the names of potential alibi
witnesses until they were preparing for sentencing.
Petitioner contends that trial counsel’s failure to procure a defense expert on
accelerants constituted deficient performance. Trial counsel testified at the post-conviction
hearing that she interviewed the State’s expert prior to trial and that the expert planned to
testify that the accelerant used in the fire was not the same accelerant found on petitioner’s
clothing. She further testified that at the time, she did not believe she would be able to show
that there was a particularized need for funds to hire an expert for the defense, as required
by Tennessee Supreme Court Rule 13, when the State’s expert would testify favorably for
petitioner. Based on the trial testimony and the post-conviction hearing testimony, we
conclude that trial counsel’s performance in this regard was not deficient.
Petitioner argues that trial counsel’s failure to present alibi witnesses at trial
constituted deficient performance, but in his brief, he “concedes that information was
provided late to trial counsel regarding witnesses.” The post-conviction court accredited trial
counsel’s testimony that petitioner did not provide her with names of potential alibi witnesses
prior to trial. However, petitioner contends that trial counsel would have discovered the
witnesses through other means if she had prepared adequately. The post-conviction court
found that even if trial counsel had managed to procure these potential alibi witnesses prior
to trial, despite petitioner’s own failure to tell her about the witnesses, their testimony would
not have changed the result of the proceedings. In particular, the post-conviction court noted
that trial counsel interviewed one of appellant’s potential alibi witnesses, Amanda Burney,
prior to trial. Trial counsel testified that she interviewed Ms. Burney because she was
appellant’s girlfriend at the time of the offense and was with him at the hospital, but she
determined that Ms. Burney did not have any personal knowledge of the events that led to
petitioner’s hospitalization. The post-conviction court did not accredit Allen Burney’s
testimony at the post-conviction hearing because it conflicted with the testimony and
-13-
documents presented at trial. The post-conviction court reviewed Courtney Hinton’s
affidavit, which had been presented with the motion for new trial as newly discovered
evidence, and found that the general statements made would not have impacted the outcome
of the trial. Based on this evidence, we conclude that trial counsel’s performance with regard
to presenting these potential alibi witnesses was neither deficient nor prejudicial.
Finally, petitioner argues that trial counsel provided ineffective assistance by failing
to adequately cross-examine the State’s witnesses, particularly Officer Lorenzen. The post-
conviction court found that trial counsel chose to rebut Officer Lorenzen’s testimony
regarding the timing of events by introducing petitioner’s hospital records. Her testimony
reflects that it was a tactical decision on her part to elicit certain testimony from Officer
Lorenzen and then show how he was mistaken through means other than cross-examination.
“The fact that a particular strategy or tactical decision failed does not by itself establish
deficiency.” Felts, 354 S.W.3d at 277. Petitioner has not shown that trial counsel’s
performance was deficient in this regard, nor has he presented any evidence to establish that
he was prejudiced by trial counsel’s performance. We conclude that the post-conviction
court properly dismissed the petition for post-conviction relief as petitioner has not
established that he received ineffective assistance of counsel. Therefore, he is without relief
in this matter.
CONCLUSION
Based on the parties’ arguments, the record, and the applicable law, we affirm the
judgment of the post-conviction court.
_________________________________
ROGER A. PAGE, JUDGE
-14-