Richard Stanley Russell v. State ( 1999 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
JUNE 1998 SESSION
April 21, 1999
Cecil W. Crowson
RICHARD STANLEY RUSSELL, ) Appellate Court Clerk
)
Appellant, ) No. 01C01-9707-CR-00302
)
) Davidson County
v. )
) Honorable Seth Norman, Judge
)
STATE OF TENNESSEE, ) (Post-Conviction)
)
Appellee. )
For the Appellant: For the Appellee:
Thomas F. Bloom John Knox Walkup
500 Church Street Attorney General of Tennessee
Nashville, TN 37219 and
Karen M. Yacuzzo
Assistant Attorney General of Tennessee
425 Fifth Avenue North
Nashville, TN 37243-0493
Victor S. Johnson, III
District Attorney General
and
Kymberly Haas
Assistant District Attorney General
Washington Square, Suite 500
222 Second Avenue, North
Nashville, TN 37201
OPINION FILED:____________________
AFFIRMED
Joseph M. Tipton
Judge
OPINION
The petitioner, Richard Stanley Russell, appeals as of right from the
Davidson County Criminal Court's denial of post-conviction relief. The petitioner was
convicted of first degree murder and sentenced to life in the Tennessee Department of
Correction. His conviction was affirmed on direct appeal to this court. State v. Richard
Stanley Russell, Sr., No. 01C01-9409-CR-00308, Davidson County (Tenn. Crim. App.
Oct. 31, 1995), app. denied, (Tenn. Mar. 25, 1996). The petitioner contends that the
trial court erred in concluding that he received the effective assistance of counsel at his
trial. We disagree.
Although the record does not contain the details of the petitioner's
charges or trial, this court’s opinion in the direct appeal outlines the essential events.
On February 25, 1993, the police responded to a 9-1-1 call and found the petitioner's
wife stabbed to death. The petitioner was at the scene and had blood covering his
hands and clothes.
Testimony at the trial indicated that the petitioner and his wife had an
argument about her sexual preferences. The petitioner testified that after arguing, he
went into the kitchen and started writing a note describing the details of the argument.
The petitioner testified that after the argument resumed, he picked up a knife his wife
kept with her, pointed it at his stomach and told her that he might as well kill himself and
save her the trouble. He stated that he did not remember what happened after that, but
eventually he found himself in the kitchen with the note and a bloody knife. He said that
he then called his daughter and asked her to call 9-1-1. He said that before he opened
the door for the police, he hugged his wife's bloody body.
2
With this evidence, the petitioner was convicted of first degree murder.
On appeal, the petitioner claimed that the evidence was not sufficient and that the trial
court erred in allowing a reference to a higher power during voir dire and in excluding
evidence of the victim's character. This court determined that the evidence supporting
the jury's finding that the appellant was guilty of first degree murder beyond a
reasonable doubt was overwhelming and that the petitioner's claims were without merit.
The petitioner filed a pro se petition for post-conviction relief. Appointed
counsel filed an amended petition, alleging that the petitioner received the ineffective
assistance of trial counsel because his trial attorneys (1) failed to consult adequately
with the petitioner before trial regarding the case theory, the petitioner's charges, the
state's plea offer, and the strength of the state's case, (2) failed to object to the
introduction of the victim's bloody T-shirt, which was highly prejudicial and misleading,
(3) failed to conduct an adequate investigation and to interview the petitioner properly,
(4) failed to employ experts such as a forensic pathologist, a mental health expert, or a
handwriting expert, and (5) failed to use the 9-1-1 tape to discredit a police officer's
testimony.
At the post-conviction hearing, the petitioner's daughter testified that she
met with the petitioner's trial attorneys before trial. She testified that she knew that the
state had made a plea offer, and one of the attorneys discussed it with her just before
the trial. She stated that she was not aware that the petitioner was indicted for first
degree murder until the day of the trial, but she admitted on cross-examination that
during a meeting before trial, the attorneys discussed first degree murder as a potential
outcome of the trial. She testified that a psychiatric examination of her father was never
made, but she believed that he needed one for the trial.
3
The petitioner testified that he was appointed an attorney, Barbara Futter,
who met with him almost daily until he posted bond. He said that he met his second
attorney, David Siegel, about nine months later. The petitioner said that after that
meeting, he rarely met with his attorneys other than for court hearings. He testified that
the weekend before the trial he met with both attorneys for trial preparation.
The petitioner testified that he told Ms. Futter about the events leading up
to his arrest for the murder of his wife. He said that he told his attorney that he argued
with his wife about her plan for him to help her kidnap her daughter. He said that he
told his wife that he did not want to hear any of it. He testified that he went to the
kitchen and started writing a note. He said that the victim called him into the living
room, and they started arguing again. He testified that there was a knife on the
footstool and that he picked it up and told the victim that she would not have to kill him,
that he would do it himself. He said that he remembered her coming toward him, but he
did not remember anything after that until he found himself in the kitchen continuing his
note. The petitioner testified that as he was writing the note, he saw the bloody knife.
He said that he then called his daughter and told her to call 9-1-1. He said that he held
his wife before he opened the door for the police.
The petitioner testified that he was trained in security and that the state’s
contention that he stabbed the victim three times in the chest and three times in the
back could not be true. He said that he did not agree with an autopsy report that the
victim was stabbed six times. The petitioner said that he believed that an autopsy was
not performed.
The petitioner testified that he thought his attorneys should have more
thoroughly investigated the victim's plan to kidnap her daughter. The petitioner did not
know of any accomplices to the kidnapping scheme, but he said that three others were
4
supposed to be involved. The petitioner testified that he was not aware of his attorneys
contacting anyone involved in the alleged scheme. He said that he was unaware of his
attorneys contacting any of the victim's friends or anyone the victim knew while in
prison.
The petitioner testified that his attorneys did not show him any
photographs of the crime scene before the trial started. He said that if they had, he
would have been able to analyze them and testify during trial that the photographs were
not accurate. He stated that one photograph showed a blanket wrapped around the
victim's legs as if the victim were helpless at the time of the offense. He testified that
the blanket was not in the house at the time of the offense and that it had to have been
brought in by either the police or the medical examiner. He further stated that the
photograph showed that the blanket had not been on the victim long because the
blanket had only spots of blood on it and was not soaked with blood.
The petitioner testified that the note introduced as evidence at trial was
not the original note that he was writing before and after the offense. He said that the
copy of the note that was entered into evidence was written on notebook paper, but the
note he wrote was written on a legal pad. He also said that the original note had a
bloodstain on it. The petitioner testified that although he had a cut on his hand, his
hands were not bloody when he returned to continue writing the note after he blacked
out. He said that it was not until he hugged the victim that he got blood on his hands
and clothes.
The petitioner testified that he did not have any psychological or
psychiatric evaluations. He said that at the time he was released from jail, his attorney
suggested that he see a doctor, but he thought that she was recommending this
because he was having a lot of trouble accepting what had happened. Additionally, the
5
petitioner stated he thought that a handwriting expert should have examined the note.
He said an expert would have identified two different writing styles indicating that the
note was written at two different times while he was in two very different emotional
states.
The petitioner testified that he thought an expert should have examined
the murder weapon, a kitchen knife. He said that even though he blacked out during
the offense, he knew that if he did strike the victim, he would have struck out with his
full force because he was afraid of her. He testified that the full length of the blade
would have penetrated the victim and caused an entry wound in her chest and an exit
wound in her back. He said that he did not stab the victim in the back and that an
expert examination of the knife would have shown blood and tissue up to the knife’s hilt.
He testified that the photographs show that the knife went all the way through the victim
because the photographs show the blood pooling underneath the victim as she lay on
her back and little blood on her chest.
The petitioner testified that the 9-1-1 tape made when his daughter called
the police should have been used to discredit the testimony of the responding police
officer. He said that the tape would have established the time of the call and that this
would have shown that the victim was dead when the police responded to the call. He
said that the officer testified that he saw blood bubbles coming out of the victim's nose
and mouth when he arrived, indicating that the victim was still alive and breathing. The
petitioner said that testimony at the trial showed that the victim would have died within
two to four minutes after being stabbed. He testified that the tapes would prove that
sufficient time had elapsed for the victim to die before the testifying officer made his
observation.
6
The petitioner testified that his attorneys discussed the penalties for first
degree murder, second degree murder, and manslaughter with him, but they did not
discuss the elements of these offenses. He said that he was given a copy of his
indictment after he was indicted.
The petitioner testified that he received an offer to plead guilty to second
degree murder with a fifteen-year sentence at thirty percent. He said that this plea offer
was made just after he was released on bond. He testified that after he rejected this
offer, his attorneys said nothing more about a plea bargain. He said that just before
trial, he asked his attorneys to ask if the state would accept a plea of manslaughter with
a six-year sentence, but they did not. The petitioner testified that he would have
considered the plea offer more seriously if he had known that the state was going to
claim that the victim was stabbed three times in the chest and three times in the back
and that the photographs and the victim's bloody T-shirt were going to be used as
evidence.
David Siegel testified that he was assigned to assist in the defense of the
petitioner because he was charged with handling the more complex, difficult, or serious
cases in the public defender’s office. He testified that he met and had telephone
conversations with the petitioner several times before trial.
Mr. Siegel testified that one theory of the case was that the petitioner
acted in self-defense. He said that the victim's history of violence was investigated,
including her institutional record from the Department of Correction. He said that he
was unsuccessful in getting everything that he wanted introduced into evidence during
trial. He testified that the other theory of the case was that the crime was one of
passion because the petitioner was overcome by the victim's admission of marital
infidelity.
7
Mr. Siegel testified that he discussed the theory of the case with
the petitioner on several occasions. He said that the petitioner's explanation of the
events surrounding his wife's murder remained consistent during the course of
representation and trial. He testified that he discussed with the petitioner the possibility
of a mental evaluation but that the petitioner was not receptive to the idea at the time.
He testified that he did not press the issue because he did not see any signs that the
petitioner was mentally disturbed, other than the petitioner's extreme attraction to the
victim. He said that it was not unusual for a defendant to say that he does not
remember what happened.
Mr. Siegel testified that he and the petitioner discussed the note that the
petitioner wrote. He said that he thought certain statements in the note could be used
to show either premeditation or a motive to kill the victim. He said that the petitioner
never questioned the authenticity of the note during consultation or during the trial.
Mr. Siegel testified that he thought the timing of when the petitioner wrote
the note was significant. He said that he questioned the petitioner at length about the
note. He said that the petitioner told him that the note was written before the offense.
On cross-examination, he testified that the petitioner maintained that the note was
written before the stabbing despite vigorous questioning. He testified that the physical
evidence suggested that the note was written before the offense because it had an
insignificant amount of blood on it.
Mr. Siegel testified that he showed many photographs to the petitioner.
He said that when he showed the more graphic photographs of the victim to the
petitioner, the petitioner became extremely upset and emotional. He said that in order
to continue working with the petitioner, he and Ms. Futter decided not to show the
petitioner the graphic photographs, but they described their contents to him.
8
Mr. Siegel testified that he spoke with the petitioner about the state's plea
offer. He said that he remembered explaining the possible outcomes of the trial to the
petitioner. He testified that he explained what the state would have to prove and the
consequences of each possible outcome to the petitioner. He stated that he and Ms.
Futter strongly encouraged the petitioner to accept the plea but that the petitioner would
not agree to any charge of murder. He said that he felt that the state was offering the
lowest level of punishment for what he and Ms. Futter thought would be the most likely
result of the trial.
Mr. Siegel testified that he examined the physical evidence before trial.
He said that he was unaware of an objection that could have prevented the introduction
of the victim's bloody T-shirt. He testified that the evidence supported the state's
contention that the victim was stabbed six times. He said that the petitioner's claim that
the petitioner stabbed the victim only three times, with the knife entering her chest and
extending through her back, would not have been a productive issue to raise during
trial.
Mr. Siegel testified that he and Ms. Futter obtained the 9-1-1 tape, even
though the trial court denied their motion requesting the state to produce it. He said
that the tape’s only value was to show that the petitioner's daughter, who made the
9-1-1 call, thought that the petitioner might have been suicidal. He testified that he did
not need the tape because other evidence showed that the petitioner was on a suicide
watch at the time of the murder.
Mr. Siegel testified that he did not remember interviewing any of the police
officers about the murder. He said that he did speak to the victim's mother to
corroborate the petitioner's claim of a kidnapping scheme and that he remembered
contacting the prison chaplain.
9
Barbara Futter testified that she represented the petitioner and that she
met with him the day after the murder and continued to meet with him almost daily while
he was in jail. She said that she saw him numerous times between the time he was
released and the trial.
Ms. Futter testified that she and David Siegel investigated the kidnapping
scheme but could not find any credible information to support it. Ms. Futter testified that
she discussed the theory of the case with the petitioner. She said that the theory of the
case was a mixture of self-defense and passion and that neither one, by itself, was
very strong.
Ms. Futter testified that she discussed the state's plea offer with the
petitioner before Mr. Siegel became involved with the case. She did not remember the
specific details of that conversation with the petitioner, but she said that it was her habit
to discuss the offense charged, the lesser offenses, and what the sentence would be,
including parole, good and honor time, and other sentence reductions. She testified
that the petitioner stated that he did not murder his wife and that he would not plead to
murder. She testified that before the trial, she attempted to get the prosecutor to
consider a lesser plea but had no success.
The trial court found that the petitioner failed to prove any grounds for
relief. It noted that all of the petitioner's issues related to the ineffective assistance of
counsel claim, but it found that none of the attorneys’ conduct prejudiced the petitioner.
I. INEFFECTIVE ASSISTANCE OF COUNSEL
The petitioner contends that he received the ineffective assistance of trial
counsel because of trial counsel’s (1) failure to investigate adequately the petitioner's
mental health to establish the absence of the requisite mens rea for first degree murder,
10
(2) failure to investigate adequately the facts of the case, (3) failure to obtain necessary
experts, (4) failure to obtain information withheld by the state, (5) failure to call two
witnesses, (6) failure to communicate properly with the petitioner regarding the plea
negotiations, (7) failure to provide the petitioner with sufficient information to make an
informed decision on the plea offer, (8) failure to confer with the petitioner about the
evidence, (9) failure to conduct a reasonable investigation, (10) failure to object to the
admission of the victim's bloody T-shirt, and (11) failure to suppress the petitioner's
confession and admissions. Claims (4), (5), (7), (9), (10), and (11) were made by the
petitioner in a pro se supplemental brief included as an appendix to the petitioner's
brief. The petitioner asserts that the individual and the cumulative effect of trial
counsel’s failures caused him to receive the ineffective assistance of counsel.
The state initially notes that the petitioner failed to cite to the record in the
argument portion of his brief. The argument portion of an appellant's brief must set
forth the contentions with respect to the issues presented on appeal with appropriate
references to the record. T.R.A.P. 27(a)(7). Pursuant to Rule 10(b), Tenn. Ct. Crim.
App. R., the petitioner's failure to cite to the record in support of his argument
constitutes a waiver of the issue. However, despite this inadequacy, we will consider
the merits of the petitioner's issues.
Under the Sixth Amendment, when a claim of ineffective assistance of
counsel is made, the burden is upon the petitioner to show (1) that counsel's
performance was deficient and (2) that the deficiency was prejudicial in terms of
rendering a reasonable probability that the result of the trial was unreliable or the
proceedings fundamentally unfair. Strickland v. Washington, 466 U.S. 668, 687, 104 S.
Ct. 2052, 2064 (1984); see Lockhart v. Fretwell, 506 U.S. 364, 368-72, 113 S. Ct. 838,
842-44 (1993). The Strickland standard has been applied, as well, to the right to
11
counsel under Article I, Section 9 of the Tennessee Constitution. State v. Melson, 772
S.W.2d 417, 419 n.2 (Tenn. 1989).
In Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975), our supreme court
decided that attorneys should be held to the general standard of whether the services
rendered were within the range of competence demanded of attorneys in criminal
cases. Further, the court stated that the range of competence was to be measured by
the duties and criteria set forth in Beasley v. United States, 491 F.2d 687, 696 (6th Cir.
1974) and United States v. DeCoster, 487 F.2d 1197, 1202-04 (D.C. Cir. 1973). In
reviewing counsel's conduct, a "fair assessment of attorney performance requires that
every effort be made to eliminate the distorting effects of hindsight, to reconstruct the
circumstances of counsel's challenged conduct, and to evaluate the conduct from
counsel's perspective at the time." Strickland, 466 U.S. at 689, 104 S. Ct. at 2065; see
Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982) (counsel's conduct will not be measured
by "20-20 hindsight"). Thus, the fact that a particular strategy or tactic failed or even
hurt the defense does not, alone, support a claim of ineffective assistance. Deference
is made to trial strategy or tactical choices if they are informed ones based upon
adequate preparation. See Hellard, 629 S.W.2d at 9; DeCoster, 487 F.2d at 1201.
We note, as well, that the claim of ineffective assistance of counsel can be defeated by
the failure to make the required showing of either deficient performance or sufficient
prejudice. Strickland, 466 U.S. at 697, 104 S. Ct. at 2069.
The burden is on the petitioner to prove his allegations by clear and
convincing evidence. T.C.A. § 40-30-210(f). On appeal, we are bound by the trial
court's findings unless we conclude that the evidence preponderates against those
findings. Black v. State, 794 S.W.2d 752, 755 (Tenn. Crim. App. 1990). The petitioner
has the burden of illustrating how the evidence preponderates against the judgment
entered. Id.
12
A.
We will consider the petitioner's first five claims together because they are
all resolved by the same analysis. In his first claim, the petitioner contends that he
received the ineffective assistance of counsel because his attorneys failed to
investigate adequately the petitioner's mental health to establish the absence of the
requisite mens rea for first degree murder. The petitioner argues that his attorneys
gave no credible explanation as to why a mental health expert was not retained to
examine the petitioner's obsession with the victim. The state responds that the
petitioner's attorneys testified that the petitioner had no history of mental illness, that he
was resistant to undergoing an examination, and that they had no reason to believe a
mental evaluation was necessary. The state further contends that the petitioner has not
presented any evidence regarding what a mental evaluation would have revealed. The
state argues that without such evidence, the petitioner cannot show that he was
prejudiced by the lack of an evaluation.
In his second claim, the petitioner contends that he received the
ineffective assistance of counsel when his attorneys failed to investigate adequately the
facts of the case. The petitioner argues that his attorneys only made a cursory
investigation of the victim’s kidnapping scheme. The state responds that the
petitioner's attorneys met with the petitioner on numerous occasions and interviewed
several others, including the investigating officer, the medical examiner, the prison
chaplain, and the victim's mother, grandmother and parole officer. The state further
contends that one of the petitioner's attorneys did investigate the claim of a kidnapping
scheme but could not find any evidence to support it. The state argues that the
petitioner has not demonstrated how this investigation could have been more thorough
or what more his attorneys could have done.
13
In his third claim, the petitioner contends that he received the ineffective
assistance of counsel because his attorneys failed to obtain necessary experts. The
petitioner argues that his attorneys should have had a forensic examination of the
bloodstain on the note. He also argues that a handwriting expert’s examination of the
note would have supported his claim that the murder was not premeditated. The
petitioner contends that portions of the note were written after the stabbing. The state
responds that before the trial, the petitioner maintained that the entire note was written
before the stabbing and that his attorneys therefore had no reason to have the note
examined. The state argues that because the petitioner did not have the note
examined or present any expert testimony at the post-conviction hearing, the petitioner
has not shown how he was prejudiced.
In his fourth claim, the petitioner contends that he received the ineffective
assistance of counsel because his attorneys failed to obtain information withheld by the
state. The petitioner argues that the 9-1-1 tape was withheld from his attorneys, and
the state used information on the tape to encourage perjury by the state's witnesses.
He argues that his attorneys could have used the tape to show his state of mind after
the stabbing and to show that he was writing the note when he called his daughter. The
state responds that testimony during the post-conviction hearing revealed that the trial
court denied the motion to provide the 9-1-1 tape but that the petitioner's attorneys did
obtain the tape. The state argues that the claim of perjured testimony based on the 9-
1-1 tape was not raised at the post-conviction hearing and is waived.
In his fifth claim, the petitioner contends that he received the ineffective
assistance of counsel because his attorneys failed to call the victim's parole officer and
the petitioner's ex-wife to testify. The petitioner asserts that he requested that the
victim's parole officer testify because she could testify to the victim's character. He
asserts that he requested that his ex-wife testify because she would testify as to his
14
good character. The state responds that this claim is waived because it was not raised
at the post-conviction hearing. The state also argues that the petitioner did not call
these two witnesses at the post-conviction hearing and without evidence of their
testimony, the petitioner cannot show prejudice.
We note that the approach to the issue of the ineffective assistance of
counsel does not have to start with an analysis of an attorney's conduct. If prejudice is
not shown, we need not seek to determine the validity of the allegations about deficient
performance. Strickland, 466 U.S. at 697, 104 S. Ct. at 2069.
The potential experts and witnesses were not called to testify, and the
9-1-1 tape was not offered as evidence at the post-conviction evidentiary hearing. It is
imperative that the witnesses testify and the petitioner offer evidence at the evidentiary
hearing in order for the trial court to determine the potential merit of the evidence. See
Black, 794 S.W.2d at 755. Thus, even if the attorneys' failure to seek a mental
evaluation, investigate the kidnapping scheme further, call forensic and handwriting
experts, present the 9-1-1 tape and call certain character witnesses was deficient
performance, the petitioner has failed to show that he was prejudiced from such
deficiency.
B.
In his sixth claim, the petitioner contends that he received the ineffective
assistance of counsel when his attorneys failed to communicate properly with him
regarding the plea negotiations. The petitioner argues that if his attorneys had shared
the state's evidence with him, he would have accepted the second degree murder plea
offer. The state responds that the petitioner's attorneys had extensive settlement
discussions with the state and strongly encouraged the petitioner to accept the offer.
15
In his seventh claim, the petitioner contends that he received the
ineffective assistance of counsel when his attorneys failed to provide him with sufficient
information to make an informed decision on the plea offer. He contends that his
attorneys withheld evidence from him, failed to discuss potential defense strategies,
failed to conduct an appropriate investigation, and failed to advise him of the state's
plea offer. The petitioner asserts that with sufficient information, he could have
rebutted testimony that the victim was alive when police officers arrived, that there was
no struggle, that the wounds on the victim's hands were defensive wounds, and the
state's depiction of the crime scene.
In his eighth claim, the petitioner contends that he received the ineffective
assistance of counsel when his attorneys failed to confer with him about the evidence.
The petitioner argues that his attorneys consulted minimally with him and that they
withheld certain information from him because of their concern for his fragile mental
condition. The state responds that the petitioner's attorneys met with him frequently
and that his attorneys testified that they discussed every aspect of the case with the
petitioner. The state admits that some photographs were not shown to the petitioner,
but it notes that this occurred only when he became so emotional that he was unable to
aid in his defense because of them. The state argues that the petitioner has presented
no evidence other than his own testimony to show that he was prejudiced.
The petitioner, his daughter, and his trial attorneys were the only
witnesses to testify at the evidentiary hearing. The petitioner's daughter testified that
the trial attorneys discussed the case and the state's plea offer with her. Ms. Futter
testified that she met with the petitioner frequently, discussed the plea offer with the
petitioner when she first received it and again when Mr. Seigel became associated with
the case, and investigated the petitioner's claims but could not find any credible
information to support them. Mr. Seigel testified that he discussed the plea offer with
16
the petitioner when he started the case and again just before trial. He testified that the
weekend before the trial, both attorneys met extensively with the petitioner to prepare
him for trial.
In Lofton v. State, 898 S.W.2d 246 (Tenn. Crim. App. 1994), the petitioner
complained that his trial counsel was ineffective because counsel failed to explain the
elements of the crime to him and deprived him of his right to accept a guilty plea offer.
Id. at 248. However, the record showed that trial counsel discussed the case with both
the petitioner and his mother and discussed the state's plea offer with the petitioner. Id.
This court held that even though trial counsel did not take a position as to whether the
petitioner should have accepted the plea offer, trial counsel's conduct did not rise to the
level of ineffective assistance as set forth in Strickland and in Baxter. Id. at 249.
As in Lofton, the petitioner in this case refused to accept the plea offer
and "gambled and lost at trial." Id. His bald assertion that he would have accepted the
plea offer if he had full and complete information is insufficient to mandate post-
conviction relief. The petitioner has not shown by a preponderance of the evidence that
counsel's performance was deficient and that the deficiency was prejudicial.
C.
In his ninth claim, the petitioner contends that he received the ineffective
assistance of counsel because his attorneys failed to conduct a reasonable
investigation. The petitioner argues in his supplemental brief that if his attorneys had
properly investigated the case, they would have been able to impeach the police
officer's testimony about the petitioner’s note. The state responds that the petitioner's
attorneys thoroughly investigated the case and that nothing in the record indicates that
the officer perjured himself.
17
In the petitioner's supplemental brief, he complains that Exhibit 8, which
was used by the state at trial, was not authentic. Exhibit 8 is a two-page reproduction of
the note that the petitioner wrote on the night of the stabbing. At the evidentiary
hearing, the petitioner was shown Exhibit 8 and a photograph of the note taken at the
scene after the stabbing. He testified that Exhibit 8 was written on notebook paper, and
the note in the photograph was written on a legal pad. The petitioner testified that he
used only legal pads. He testified that the photograph of the note showed a blood spot
on the upper left corner. He testified that Exhibit 8 only had what appeared to be an
outline of a stain.
The petitioner asserts that if his trial attorneys had sufficiently investigated
his case, they would have been able to impeach the officer when he authenticated the
note during the trial. The petitioner contends that Exhibit 8 is not a copy of the note that
he wrote. However, Mr. Seigel testified that the petitioner never questioned the
authenticity of the note before or during the trial.
We note that neither Exhibit 8 nor the photograph were a part of the
record provided to this court. According to the petitioner's post-conviction attorney, the
photograph was never entered into evidence at the evidentiary hearing. As to this
claim, the petitioner has not offered evidence that preponderates against the trial
court's conclusion that the petitioner's trial counsel effectively represented the
petitioner.
D.
In his tenth claim, the petitioner contends that he received the ineffective
assistance of counsel because his attorneys failed to object to the admission of the
victim's bloody T-shirt. The petitioner argues that the introduction of the T-shirt was
unfairly prejudicial and that his attorneys should have objected to its admission. See
18
Tenn. R. Evid. 403. The state responds that the shirt was probative because it showed
the location of the knife holes and helped the jury to determine where the victim was
stabbed. The state argues that the fact that the petitioner found the T-shirt personally
upsetting does not render the evidence inadmissible.
During the evidentiary hearing, the petitioner testified that all the blood on
the T-shirt was not there when the police arrived the night of the stabbing. He also
testified that he would have pled guilty in order to prevent the prosecutor from using the
bloody T-shirt during the trial. Mr. Seigel testified that he did not know of any objection
that he could have made when the T-shirt was introduced.
Evidence is relevant if it has "any tendency to make the existence of any
fact that is of consequence to the determination of the action more probable or less
probable than it would be without the evidence." Tenn. R. Evid. 401. Relevant
evidence is admissible unless provided otherwise by constitution, evidentiary rule, or
other Tennessee rule or law. Tenn. R. Evid. 402. Relevant evidence, however, "may
be excluded if its probative value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury, or by considerations of undue
delay, waste of time, or needless presentation of cumulative evidence." Tenn. R. Evid.
403.
As the state claims, the T-shirt is probative because it shows the number
and placement of the holes made by the knife. Furthermore, the probative value is not
outweighed by the danger of unfair prejudice. See State v. Cribbs, 967 S.W.2d 773,
793-94 (Tenn. 1998) (holding that admission of a videotape showing "victim's brain
matter separated from her skull and scattered across the kitchen floor" and "the
shattered face and skull of the victim," was proper under Rule 403); State v. Cazes, 875
S.W.2d 253, 263 (Tenn. 1994) (holding that the victim's cleaned and reconstructed skull
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was admissible pursuant to Rule 403). The record does not preponderate against the
trial court's conclusion that the petitioner's trial counsel effectively represented the
petitioner relative to this claim.
E.
In his eleventh claim, the petitioner contends that he received the
ineffective assistance of counsel because his attorneys failed to suppress his
confession and admissions. The petitioner argues that his “confession” was
inadmissible and that trial counsel did not prevent its admission or try to defend against
it. The petitioner asserts that he confessed when he responded to the officer's
question, "Did you kill your wife?" by saying, "I was the only one in the house." The
petitioner further asserts that a police officer's testimony of statements made by the
petitioner at the scene were fabricated and that his attorneys did not properly impeach
this testimony.
The state responds that these issues were not raised at the post-
conviction hearing and have been waived. We agree. In any event, we note that his
statements were admissible as admissions by a party opponent. Tenn. R. Evid.
803(1.2)(A).
II. CUMULATIVE ERROR
The petitioner asserts that the cumulative effect of all constitutional errors
at trial and on appeal warrant him relief. Because we have concluded that no individual
constitutional error exists, there is no improper cumulative impact upon the petitioner.
This issue is without merit.
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In consideration of the foregoing and the record as a whole, we conclude
that the evidence does not preponderate against the trial court's denial of post-
conviction relief. The judgment of the trial court is affirmed.
____________________________
Joseph M. Tipton, Judge
CONCUR:
_______________________________
John H. Peay, Judge
_______________________________
David G. Hayes, Judge
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