Blake Delaney Tallant v. State of Tennessee ( 2014 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs April 23, 2014
BLAKE DELANEY TALLANT v. STATE OF TENNESSEE
Appeal from the Criminal Court for Knox County
No. 89946 Mary Beth Leibowitz, Judge
No. E2013-01827-CCA-R3-PC - Filed July 15, 2014
The petitioner, Blake Delaney Tallant, appeals the denial of his petition for post-conviction
relief, arguing that he was denied the effective assistance of trial and appellate counsel due
to counsel’s failure to properly educate him on the importance of testifying in his own
defense, to press the issue of the bill of particulars in the trial court or to raise it as an issue
on direct appeal, and to include the jury questionnaires in the record on direct appeal.
Following our review, we affirm the denial of the petition.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
A LAN E. G LENN, J., delivered the opinion of the Court, in which T HOMAS T. W OODALL and
R OGER A. P AGE, JJ., joined.
Leslie M. Jeffress, Knoxville, Tennessee, for the appellant, Blake Delaney Tallant.
Robert E. Cooper, Jr., Attorney General and Reporter; Andrew C. Coulam, Assistant
Attorney General; Randall E. Nichols, District Attorney General; and Steven C. Garrett,
Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
FACTS
The petitioner was convicted by a Knox County Criminal Court jury of two counts of
first degree felony murder, one count of second degree murder, and two counts of aggravated
child abuse, a Class A felony. The trial court dismissed the second degree murder
conviction, merged the two felony murder convictions, and sentenced the petitioner to life
plus twenty-five years in the Department of Correction. State v. Blake Delaney Tallant, No.
E2006-02273-CCA-R3-CD, 2008 WL 115818, at *1 (Tenn. Crim. App. Jan. 14, 2008), perm.
app. denied (Tenn. June 30, 2008).
This court affirmed the convictions on direct appeal but remanded to the trial court
with instructions to merge the two aggravated child abuse convictions and to hold a new
sentencing hearing regarding consecutive sentencing. Our supreme court subsequently
denied the petitioner’s application for permission to appeal. See id.
Our direct appeal opinion reveals that the petitioner’s convictions stemmed from the
death of his three-and-a-half-month-old son, whose autopsy revealed at least twenty-five
separate bone fractures in varying stages of healing, multiple bruises and scratches, and other
injuries indicative of child abuse. Id. at *1-16. The first witnesses at the defendant’s trial
were the Knoxville police officers who responded to the petitioner’s wife’s 911 call that the
victim was not breathing, police investigators who interviewed the petitioner that same night,
and agents from the Tennessee Bureau of Investigation who conducted analyses of the
petitioner’s and the victim’s blood and of the substance found in the petitioner’s pocket on
the night of the 911 call. According to the testimony of these various witnesses, the
petitioner appeared “spacey” and nonchalant when the first officers arrived in response to the
911 call. The petitioner also appeared emotionless when later informed that the victim had
died. A search of the petitioner uncovered methamphetamine in his pocket, and the
petitioner’s blood tested positive for methamphetamine and his urine positive for marijuana.
The victim’s blood also tested positive for methamphetamine. Id. at *1-3. Our direct appeal
opinion contains the following summary of the other testimony at the petitioner’s trial:
Dr. Murray Marks, a forensic anthropologist with the University of
Tennessee, testified that he examined both x-rays of the victim and bones from
the victim’s body to evaluate bone trauma suffered by the victim. Dr. Marks
testified that his investigation revealed that the victim suffered nine
antemortem fractures of his left-side ribs and nine antemortem fractures of his
right-side ribs. Dr. Marks explained that antemortem fractures were those that
featured bone calluses, which meant that the bone had healed and the fracture
occurred prior to death. Dr. Marks said that the victim also suffered two
perimortem fractures of his right-side ribs and three perimortem fractures of
his left-side ribs, which included one rib being broken in two places. Dr.
Marks explained that perimortem fractures were those that were “fresh” and
had no signs of healing. Dr. Marks also noted that the victim suffered an
antemortem fracture of his femur, or thigh bone. Dr. Marks noted that this
break had a particularly large callus, which indicated that the bone “was
broken and was never set.” Dr. Marks also testified that the victim suffered
an antemortem fracture of his right humerus, his upper arm bone.
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On cross-examination, Dr. Marks testified that the bones of a child the
victim’s age tended to heal more quickly than those of an adult, which led him
to conclude that the perimortem fractures occurred anywhere between the
child’s death and ten to fourteen days of his death. Dr. Marks said that he
could not testify as to whether the victim’s broken leg was a spiral fracture,
and he also said that he had never heard of an instance where massaging a
child’s leg could lead to a spiral fracture. On redirect, Dr. Marks testified that
although he stated that the victim’s perimortem fractures could have occurred
up to two weeks before his death, it was unlikely that the breaks were that old
because the bones of a child the victim’s age tended to heal quickly. Thus, the
perimortem fractures were likely no more than ten days old.
Sarah Tallant, the [petitioner’s] wife and the victim’s mother, testified
that she was originally indicted as a co-defendant in this case, but she reached
a plea agreement with the Knox County District Attorney General’s office.
Pursuant this agreement, she agreed to testify against her husband; in exchange
for her testimony, she would receive a twenty-year sentence with a release
eligibility date of 30%.
Ms. Tallant testified that she met the [petitioner] in 1995 and married
him in 1997. The couple originally lived in Arkansas before moving to
Tennessee in March 1999. Ms. Tallant testified that she began using
methamphetamine when she was eighteen and used the drug daily until she
moved to Tennessee. She also said that the [petitioner] used drugs daily
during the early part of their relationship and marriage. She testified that she
and her husband moved to Tennessee in an attempt to create a “fresh start” and
escape from the drugs. She testified that both she and her husband stayed off
methamphetamine until their first son was born in June 2000. Shortly after
their first son was born, both the [petitioner] and Ms. Tallant resumed using
methamphetamine on a daily basis. Ms. Tallant testified that the couple’s daily
methamphetamine use continued until the victim died.
Ms. Tallant testified that when the couple first moved to Tennessee,
both she and her husband held jobs. However, once the couple’s first son was
born, she quit work to focus on raising her son while the [petitioner] continued
to work. Ms. Tallant testified that the [petitioner] worked eight to ten hours
per day, five days a week, with an irrigation business. Ms. Tallant testified
that her husband held this job for a “good while” but he had either quit or was
laid off once the couple’s second son, Arson, the victim in this case, was born
on April 27, 2002. Ms. Tallant testified that the [petitioner], who was not
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employed after the victim was born, took care of the child eighty to eighty-five
percent of the time. Ms. Tallant explained that she and the [petitioner] agreed
upon this arrangement because Ms. Tallant had been the primary caregiver for
the couple’s older son. Ms. Tallant testified that while the [petitioner] was the
victim’s primary caregiver, she did take the victim to the doctor’s office for
routine visits “about five times.”
Ms. Tallant testified that her older son did not hurt the victim. She also
said that the couple had two pit bulls, but that the dogs did not hurt the baby
either. She testified that the victim was never left alone, and while one of the
[petitioner’s] cousins visited the house, this cousin never took care of the
victim.
Ms. Tallant testified that the [petitioner], who she described as a “very
hard person to read,” did not like being watched. Ms. Tallant said that if she
would watch him, the [petitioner] would ask her “why are you always
watching me?” She also said that if the victim would cry, the [petitioner]
“would always question me why I was always watching him and hovering over
him.”
Ms. Tallant recalled that the day the victim died, she spent most of the
day at home with her two children while the [petitioner] was out retrieving a
part for the couple’s car. She testified that the victim seemed fine, though he
seemed a little cold and did not eat much. Ms. Tallant recalled that around
6:00 that evening, the [petitioner] returned home. The [petitioner] asked her
if she would be taking the dogs for a walk; she replied that she would not
because she wanted to stay with her son, who was not feeling well. The
[petitioner] insisted that she take the dogs out because she had promised the
dogs that she would do so. At that point, Ms. Tallant said that she would walk
the dogs. She left the family’s residence around 7:30 p.m. and returned
between 8:30 and 9:00 p.m.
Upon her return, Ms. Tallant noticed that the [petitioner] held the victim
in his lap. Ms. Tallant told her husband that the baby looked blue and “kind
of cold.” The [petitioner] told her that he had just given the baby a bath and
that the baby was fine, though the baby had not eaten when he tried to feed
him. Ms. Tallant told the [petitioner] to refrain from feeding the victim if he
did not want to eat, and she then took her oldest son into the bathroom and
gave him a bath. She then took a bath herself, read to her oldest son for a
while before putting him to bed, and then went to the living room. Ms. Tallant
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noticed that the [petitioner] and the victim were in the couple’s bedroom with
the light off. She then went into the bedroom, where she noticed the
[petitioner] lying on his back on the bed, with the victim lying on top of the
[petitioner’s] chest. According to Ms. Tallant, the victim looked “lifeless.”
She asked her husband if anything was wrong and noted that the victim did not
appear to be breathing. The [petitioner] replied that everything was fine, and
Ms. Tallant exited the bedroom.
A short time later, Ms. Tallant re-entered the bedroom and turned on the
light. She looked at the victim, noticed that he “didn’t look right to me,” and
then told her husband that she would call 911. Ms. Tallant said that the
[petitioner], who was angry over this prospect, told her not to call 911 and said
that he would divorce her if she did call. Ms. Tallant called 911 anyway. The
tape of the 911 call was then played in open court. Although neither the
recording nor a transcript of the call appears in the record, the trial transcript
indicates that during the call, Ms. Tallant told the [petitioner], “I don’t give a
s--what you think. This is my son.” Ms. Tallant testified that she told this to
her husband because he was upset that she had called. She also testified that
during the call, she told her husband that she was serious; she explained that
she made this statement because the [petitioner] “laughs at everything.
Everything is funny to him.” During the call, Ms. Tallant testified that she told
the police to hurry to the home. After hanging up, Ms. Tallant went through
the house and attempted to hide some drugs that were in the house.
Ms. Tallant testified that she had seen the victim turn blue on one other
occasion, when he fell when he was about one month old. Ms. Tallant
explained that on this occasion, she returned home from taking her older son
to the doctor when the [petitioner] told her that the victim fell. According to
Ms. Tallant, the [petitioner] told her that he gave the victim a bottle, and the
victim found the bottle to be too hot. At that point, the victim jumped, kicked,
and fell from the couch to the floor, a distance of about one foot. Ms. Tallant
testified that the floor onto which the victim fell was wooden, with a carpet
covering part of it. Ms. Tallant testified that the side of her son’s face was
bruised, but several hours after she first noticed the bruising, it went away.
Ms. Tallant said that neither she nor the [petitioner] took the victim to the
doctor in connection with this incident.
Ms. Tallant testified that in the days immediately following this
incident, the victim would cry whenever she attempted to pick him up. She
then noticed that the victim’s right arm was swollen at the elbow. Ms. Tallant
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told her husband that the arm was swollen, and she wrapped the arm in a
bandage. Ms. Tallant also testified that the [petitioner] kept the baby in a car
seat for twenty-four consecutive hours so that the baby would not move his
arm. Ms. Tallant testified that she did not know at the time that the victim’s
arm was broken.
Ms. Tallant testified that once, after the child received an inoculation
in his left leg, she noticed that the leg was swollen. She then called the
doctor’s office and asked what to do. She testified that she was told to
massage the leg, give the baby some baby Tylenol, and give him a warm bath.
Ms. Tallant testified that she followed these instructions, but the baby’s leg
continued to swell. She also testified that when she massaged the leg, the
victim would cry as if he were in pain. Ms. Tallant testified that she did not
know at the time that the baby’s leg was broken, and she also noted that the
[petitioner] did not tell her anything about the baby’s leg.
Ms. Tallant testified that shortly after the victim’s arm became swollen,
the [petitioner] attempted to “x-ray” the victim’s arm by taking a lamp with a
500-watt bulb and holding it close to the baby’s arm. The [petitioner] told his
wife that while he held the lamp in one hand, he held a pillow over the baby’s
face to keep the light out of his eyes. Ms. Tallant said that the [petitioner] told
him that the pillow slipped, and when the baby attempted to grab it, the lamp
somehow came into contact with the baby, burning him on his right arm and
stomach. After the incident, the baby’s parents decided that when they took
the child in for his next check-up, they would tell the doctor that the baby had
suffered the burns when the lamp was accidentally knocked over and fell on
the baby. Ms. Tallant said that at the time she learned about the burns, she
believed that they had been accidentally inflicted.
Ms. Tallant acknowledged that some of the scratches that were seen
under the victim’s chin upon his death probably resulted from when the
[petitioner] would hold the victim’s mouth shut so that the victim would stop
crying. Ms. Tallant said that she saw the [petitioner] hold the baby’s mouth
shut a couple times. She also recalled that the [petitioner] would toss the
victim into the air in a playful manner. Ms. Tallant did not recall whether the
[petitioner] did this before or after she noticed the baby’s leg had become
swollen. She also recalled seeing the [petitioner] throw the victim onto a
beanbag chair on two occasions. Ms. Tallant also testified that on one
occasion, the [petitioner] placed a wet paper towel into the baby’s mouth in an
attempt to silence him.
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Ms. Tallant said that on some occasions, the [petitioner] would sit the
baby on his (the [petitioner’s]) knees and bounce the child up and down in an
attempt to burp him. Ms. Tallant recalled that when the [petitioner] did so, the
baby’s head would “kind of dangle because he was only a couple of months
old. He didn’t have enough strength to hold his own head up.” She also
testified that about one week before the baby died, she noticed an area of
redness on the baby’s bottom. Ms. Tallant asked the [petitioner] what was
wrong, and the [petitioner] replied that he had put baby powder on the child’s
bottom, which led to a rash. Ms. Tallant testified that she did nothing to that
part of the child’s body to hurt it. She said that when she took the baby’s
temperature, she did not use a rectal thermometer.
Ms. Tallant testified that approximately one week before the victim
died, she and the [petitioner] drove to Sweetwater, Tennessee, with their two
children to visit a friend. After arriving at the friend’s house, the friend
informed Ms. Tallant that the baby had quit breathing. Ms. Tallant gave the
baby to the [petitioner], who then blew into the baby’s mouth. According Ms.
Tallant, this action “brought [the baby] back.” Ms. Tallant testified that
neither she nor the [petitioner] sought medical attention for the child after this
incident because the [petitioner] told her that the baby would be okay. Ms.
Tallant testified that after the family returned to Knoxville, the [petitioner]
then went back to Sweetwater, where he spent to two three days making
methamphetamine.
Ms. Tallant testified that she was aware that methamphetamine was
found in the baby’s system at his death. She testified that she took
methamphetamine while she was pregnant with the victim, but that she never
put methamphetamine in the baby’s bottle. She also said she never put the
drug up the baby’s nose or injected the drug into the baby’s body.
On cross-examination, Ms. Tallant testified that the day after the victim
died, she gave a statement to police in which she said that neither she nor the
[petitioner] had done anything to hurt their child. Ms. Tallant stated that upon
returning to her home after giving that statement, investigators from the
Department of Children’s Services (DCS) arrived at the home and took the
couple’s older child into state custody. After the DCS visit, Ms. Tallant gave
a second statement to police, in which she again stated that neither she nor the
[petitioner] had done anything to hurt the victim. At the conclusion of this
second statement, Ms. Tallant and Detective Slagle, who took the statement,
got into an argument, which led the police to place Ms. Tallant into a police
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interrogation room. According to the statement, parts of which were read into
evidence, the police placed the [petitioner] and Ms. Tallant under arrest for
first degree murder at that point, but Ms. Tallant testified that she did not recall
being informed that she was under arrest. What Ms. Tallant did recall was that
after being placed in the interrogation room, she gave another statement to
another police investigator, Wallace Armstrong, in which she implicated her
husband in the baby’s death. Ms. Tallant testified that this statement was a
coerced statement which she made in an attempt to regain custody of her older
son. While she stated that this statement was coerced, she claimed that the
statement, like the ones she had given earlier, was true. Ms. Tallant testified
that at the time she gave her third statement, “I knew all of this stuff was going
on, but I didn’t think it consisted of death, to me, at the time.” Ms. Tallant said
that after giving this third statement to police, she was taken into custody,
where she remained at the time of this trial.
Ms. Tallant testified that she retained separate counsel, one who was
not an employee of the Public Defender’s office. She recalled that she, the
[petitioner], and counsel for both parties met monthly from August 2002 to
October 2004. During one of these meetings, the parties discussed Ms.
Tallant’s statements to police. At that time, she told her husband and the
involved attorneys that her statements to police were either lies or grossly
exaggerated. At trial, Ms. Tallant testified that she did exaggerate some of her
statements to police. However,
At the time that all this stuff had happened, I didn’t think
that it was--the way I told the cops was different--I put a
different spin on it, as to when I was at home and all this stuff
happened. Like on my statement, it sounded mean and evil, and
[the petitioner] did this . . . [the petitioner] did that. But at
home, I was not thinking that. I was thinking that everything
was fine. Even though a lot of things happened, I still thought
that everything was fine. But when I got to the police station, I
made it sound like I didn’t like none of the things he was doing
at the time.
Ms. Tallant stated that she made her statements in the manner she did
because the police “had told me I wasn’t going home if I didn’t blame it on the
[petitioner]. So I wanted to make it possible that I was going to go home.”
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During cross-examination, Ms. Tallant admitted that several particular
parts of her statement to police were untruthful. She said that her statement to
police that the [petitioner] had hit her frequently was a lie. Ms. Tallant said
that the [petitioner] never hit her during their marriage. She also admitted that
her statement that the [petitioner] would place the baby in a car seat and shake
it violently was a lie. Ms. Tallant admitted that the [petitioner] placed the baby
in a car seat only once, when the [petitioner] was attempting to keep the baby
from moving his injured arm. Ms. Tallant also admitted that she put the baby
in a car seat for brief periods while she was performing household chores. Ms.
Tallant also said that her statement that the baby would scream whenever the
[petitioner] came close to him was a lie. Finally, she admitted that her
statement to police that the [petitioner] kept her from seeing the baby was a lie.
She testified that the [petitioner] was the baby’s primary caretaker, but that
arrangement had been agreed upon by both parents.
Ms. Tallant also identified certain parts of her statements to police that
had been exaggerated. She said that her statement to police that the
[petitioner] would throw the baby into the air was an exaggeration. Rather, the
[petitioner] would hold the baby in the air and then drop his hands about six
inches. During that time, the [petitioner] would never lose contact with the
baby. Also, she admitted that her statement that the [petitioner] would throw
the baby into a beanbag chair was an exaggeration. Rather, the [petitioner]
would drop the baby onto the chair from a few inches above the chair.
On several occasions during cross-examination, Ms. Tallant said that
she never saw the [petitioner] do anything to intentionally hurt the victim.
Regarding the scratches under the baby’s chin, she noted that she saw them
during the three months the baby was alive, though she could not recall the
exact date on which she saw them. She also recalled seeing the [petitioner]
holding the baby’s mouth shut, but she did not recall the exact dates on which
the [petitioner] did this. Ms. Tallant admitted that in her meetings with the
[petitioner] and counsel, she had said that the first time she saw the scratches
was the day the victim died.
Ms. Tallant testified that she had no idea how methamphetamine was
introduced into her son’s system. Regarding her own drug use, she said that
she used methamphetamine every day during her pregnancy, and that her
methamphetamine use increased after the victim was born. She also said that
she smoked marijuana during her pregnancy, and that she smoked cigarettes
until her fifth or sixth month of pregnancy. Ms. Tallant admitted that she used
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methamphetamine when she woke up each morning and took a smaller amount
in the afternoon. She stated that she did not always wash her hands after using.
She also stated that she had previously told the [petitioner] and counsel that
she prepared all of the baby’s formula bottles.
Ms. Tallant admitted that from August 2002 to October 2004, she
frequently wrote letters to her husband. She stated that in those letters, she
told her husband that she believed he was innocent, and she told the
[petitioner] that she had implicated him in the victim’s death so that she could
be set free. Ms. Tallant stated that at the time she wrote the letters, she did not
believe that her husband did anything to intentionally hurt the victim, and that
she still felt the same way at trial.
Ms. Tallant testified that in October 2004, she gave a “statement” to the
District Attorney General. Defense counsel asked Ms. Tallant several
questions about this statement, actually a deposition, to assess the deposition’s
validity. Ms. Tallant said that in her deposition, she told the district attorney
that she did not know that the victim had suffered any broken bones and had
no explanation as to how the victim could have suffered those injuries. She
stated that this statement was consisted with her testimony at trial. She also
told the district attorney that she was unaware that the child had pneumonia,
and that she did not see any evidence of injury to the victim’s rectum. She also
recalled telling the district attorney that she had never seen a bruise on the
child’s body except shortly after the [petitioner] told her that the baby had
fallen from the sofa. She also noted that she told the district attorney that the
only external injuries that she had ever seen on the victim were this bruise and
the burns to the baby’s stomach and hand.
Ms. Tallant testified that the evening her son died, she may have
returned home at 8:15, rather than 8:30 or 9:00 as indicated on direct
examination. She admitted that if she did arrive home at 8:15 and the 911 call
was not made until 10:40, some two hours passed between her returning home
and calling 911. She stated that she “knew” her husband was under the
influence of some drug when she returned home, yet she believed her husband
when he said that the victim was fine. She said that she believed her husband
because when their older son was younger, she was “always” thinking
something was wrong with the boy, and the [petitioner], despite being “high”
believed that the boy was okay, and the [petitioner] turned out to be right.
Ms. Tallant testified that during her meetings with the [petitioner] and
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counsel, she had said that her husband left for Sweetwater to make
methamphetamine on the Thursday before the victim died. She said that the
[petitioner] remained gone until Monday or Tuesday, and that he was gone
most of the day on Wednesday, the day the victim died. At trial, though, Ms.
Tallant said that the [petitioner] did not go to Sweetwater by himself until the
Saturday or Sunday before the victim died, and that he returned on Monday,
two days before the victim died.
Ms. Tallant testified that she changed the victim’s diaper several times
a day, and in the course of changing the diaper, she never saw any trauma to
the child’s rectum. She also testified that she never saw any cuts to the
victim’s groin, though she did notice that the baby had diaper rash. Regarding
the broken bones, Ms. Tallant admitted that during her previous meetings with
the [petitioner] and counsel, she had stated that she believed that the victim’s
ribs, arm, and leg were broken in June 2002, when the baby fell. When asked
if she still believed this to be true, Ms. Tallant replied, “I guess. Yeah. I don’t
know if it’s true or not.”
On redirect, Ms. Tallant said that the police did not tell her to lie to
them in an attempt to implicate the [petitioner]. She also testified that her
deposition in connection with this case was truthful, and that she was being
truthful in her testimony at trial. She also reiterated that her husband did not
have regular employment during the victim’s life. Ms. Tallant said that the
[petitioner] “might have worked one day or a couple of days with a friend of
his . . . [installing] central heat and air, but he didn’t have a job.”
On recross, Ms. Tallant admitted that in addition to massaging the
victim’s swollen leg, she did some “bicycle type” exercises with the leg in an
attempt to ease the pain in the baby’s leg and lessen swelling. The court then
had the witness answer questions from the jury. When asked why she was “not
as protective” of the victim as she had been of her older son, Ms. Tallant
replied that she had frequently thought something was wrong with her older
son when in fact the child was fine.
Dr. Darinka Mileusnic-Polchan, a forensic pathologist, testified that she
performed the autopsy on the victim, who was three and a half months old at
his death. Dr. Mileusnic-Polchan first testified as to the thirty-one external
injuries she noted on the victim. The first three injuries she noted were on the
left side of the baby’s face. She identified abrasions on the victim’s left lower
eyelid, as well as abrasions on the outer corner of the victim’s left eye. She
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also noted a bruise on the victim’s nasolabial groove, which she identified as
the fold of skin between the nostril and the outer corner of the mouth. Dr.
Mileusnic-Polchan testified that each injury, by itself, would not be cause for
concern, but the injuries taken together did concern her.
The first injury that particularly concerned Dr. Mileusnic-Polchan was
a group of ten “irregular abrasions” under the victim’s chin. She noted that the
injuries were in “different stages of healing, meaning some [were] fresh, some
[were] old.” Some of the abrasions were deeper than others, with some of the
injuries reaching down to the subcutaneous tissue. Dr. Mileusnic-Polchan
noted that there was also bruising around the abrasions. Dr.
Mileusnic-Polchan opined that “10 of them in this area, with a lot of bruising,
this is . . . a red flag. This is very, very concerning.” She also stated that an
injury in this area should “never happen. This is something that you don’t
inflict upon a baby with the regular care and not even with regular
roughhousing. This is something that is inflicted . . . . it’s evidence of foul
play in addition to some other evidence of injury.”
Dr. Mileusnic-Polchan then noted the external injuries present on the
back of the victim’s head. She noted bulging in the fontanelle, which is the
membrane connecting the bones of the scalp before the bones ossify and fuse
together. She noted that this injury by itself was insignificant and was not truly
an injury, but rather was indicative of swelling within the brain. She also
noted a 0.4 inch abrasion on the back of the victim’s head, near the top of the
head. Dr. Mileusnic-Polchan noted that the injury by itself was not
concerning, as this type of injury was often sustained during resuscitation
efforts, but the injury was concerning in light of the other injuries.
Dr. Mileusnic-Polchan testified that the victim suffered “multiple
horizontal irregular stretch abrasions” on his neck. She noted that babies often
have some form of skin irritation in this area, as milk or other liquid can
become lodged in skin folds, but these abrasions were not indicative of this
activity. Rather, Dr. Mileusnic-Polchan noted that these abrasions were
indicative of the skin being stretched “suddenly and extensively,” and that
these injuries were often common in motor vehicle accidents. Dr.
Mileusnic-Polchan also noted the presence of a 0.7 inch abrasion on the left
side of the victim’s neck. Like many of the other injuries, she noted that this
injury by itself was insignificant but worrisome in light of the other injuries.
Dr. Mileusnic-Polchan noted that the victim experienced tearing in both
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frenula, the membranes connecting his lips to his gums. She noted that these
injuries constituted “child abuse until proven otherwise.” She noted that this
injury is not caused by regular resuscitation. Rather, the injury is caused by
something being “forcefully pushed in the baby’s mouth, frequently a bottle,
forceful feeding or some sort of other object.” Dr. Mileusnic-Polchan testified
that these injuries were showing signs of healing, meaning that the victim had
suffered them several days before he died.
Dr. Mileusnic-Polchan noted several abrasions and areas of abrasions
and discoloration on the victim’s chest and abdomen. Like many of the
injuries, she noted that each of these injuries by itself was “meaningless,” but
“[t]aken together, they’re very, very worrisome. The babies that age don’t
present with so many injuries in that area. And now taking into account the
head and neck region, that’s extremely, extremely troublesome.”
Dr. Mileusnic-Polchan then testified regarding the injuries on back side
of the victim’s body. She noted that the victim had a 0.3 inch abrasion on the
back of his neck. She opined that the injury had been there about a week. She
then identified a “U-shaped” injury on the victim’s back, consisting of two
parallel abrasions, one 0.6 inches in length and the other 1.1 inches long. She
also identified bruising around the abrasion. Dr. Mileusnic-Polchan testified
that this injury was “really well-defined . . . meaning that some sort of object
that was shaped, U-shaped or maybe square-shaped” came into contact with
the victim’s back. As to the cause of the injury, Dr. Mileusnic-Polchan
testified that “[e]ither the baby was hit with something or was thrown on the
ground that had some U-shaped object on the ground.” Dr. Mileusnic-Polchan
said that she could not identify the exact cause of the injury, but noted that it
was indicative of blunt-force trauma.
Dr. Mileusnic-Polchan noted that the victim had a 0.2 inch abrasion on
his left buttock. She also identified an area of abrasions, bruising, and skin
tears near the child’s anus. Dr. Mileusnic-Polchan noted that some of the skin
tears were deep, reaching to the subcutaneous tissue. She also noted the
presence of a hematoma. Dr. Mileusnic-Polchan examined skin samples from
the anal area under a microscope; when she did so, she noted “extensive”
hemorrhaging but little accompanying inflammatory reaction. Dr.
Mileusnic-Polchan testified that this meant that the injury occurred within a
day of the victim’s death. Dr. Mileusnic-Polchan opined that these injuries
were caused by blunt-force trauma, though she could not identify what object
actually caused the injury.
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Dr. Mileusnic-Polchan testified that the victim had some evidence of
diaper rash. She also noted a series of abrasions in [his] groin. Some of these
abrasions were of the “normal” variety, while some were stretch abrasions
similar to the ones that were evident on the victim’s neck. Dr.
Mileusnic-Polchan noted that this type of abrasion could only be caused by
“the forceful acceleration/deceleration of injury and bending of the skin.” She
noted that it was unusual to discover this kind of injury except in child abuse
cases and motor vehicle accidents.
Dr. Mileusnic-Polchan noted bruising on each of the victim’s elbows.
She noted that these injuries were troubling because “[t]he elbows are very
rare areas for a baby that age to be injured. They’re not mobile. They don’t
move by themselves, and to fall on the elbow or explain elbow region by
accident, that’s really extremely rare, even if possible.”
Dr. Mileusnic-Polchan noted that the child’s left thigh was “very
swollen, very deformed,” and the bruising around the thigh was evident of a
“combination of recent and old injury.” She later noted that her internal exam
of the area surrounding the leg produced “evidence of hemorrhage, fresh and
healing, meaning that the leg was reinjured” and that the “additional injury
could have [occurred] . . . nonintentionally as opposed to the injury that caused
it originally.” She also identified two burns, one on the child’s abdomen, and
the other on the victim’s right hand.
Dr. Mileusnic-Polchan then testified regarding the child’s internal
injuries. She first identified several broken ribs, some which had healed, and
others which had not. Regarding the level of pain accompanying these
injuries, Dr. Mileusnic-Polchan testified that bone fractures are among “the
most painful pediatric emergencies.”
She also identified an area of hemorrhaging and abscess formation on
the left side of the victim’s chest. Dr. Mileusnic-Polchan noted that “some of
those [rib] fractures . . . injured surrounding vessels and muscle [and] induced
or produced abscess, meaning infection, meaning pus collection.” Dr.
Mileusnic-Polchan noted that her microscopic review of these chest injuries
led her to conclude that the injuries occurred within a day of the victim’s
death.
Dr. Mileusnic-Polchan noted that the victim suffered a deep
intramuscular hemorrhage in his left upper back. Dr. Mileusnic-Polchan
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performed a microscopic exam of this hemorrhage, during which she found
evidence of “recent hemorrhage with no surrounding inflammatory reaction,
suggesting a very recent” injury. She testified that some of the back injuries
occurred within a day of the victim’s death. Dr. Mileusnic-Polchan also noted
that the victim suffered hemorrhaging in his diaphragm. After performing a
microscopic review of this injury, Dr. Mileusnic-Polchan concluded that these
injuries had occurred three to five days before the victim died.
She also noted a “rusty brown discoloration” around the spinal cord,
indicating a hemorrhage that had occurred five to seven days before the victim
died. Dr. Mileusnic-Polchan noted that the victim’s brain was significantly
swollen, which led to hemorrhages in the fontanelle outlined above.
Dr. Mileusnic-Polchan testified that when she examined the victim’s
lungs, she discovered that the child had been suffering from “infection of the
lungs . . . pneumonia, and also pleurities or infection inside the chest cavity.”
Regarding the infection to the child’s lungs, she noted:
His right lung was completely obliterated with infectious
process, and there was no left alveolar space or any area of the
lung that he would actually use--could use for breathing, and
the--in the left lung, the infection was a slightly lesser degree,
but still there was presence of . . . developing infection. . . .
[There was] also even focal abscess formation in the lung tissue
itself. So the ultimate mechanism of [the victim’s] death would
be severe pneumonia, inability to breath[e]. However, this
pneumonia was brought on by his extensive injuries, particularly
the rib fractures.
When asked if these injuries were accidental, Dr. Mileusnic-Polchan
noted:
There was no way that some of the injuries would ever be
an accident in a baby three and a half months old, and the
multiplicity, the distribution, and severity of some of the injuries
completely takes it out of [the] realm of any sort of accident and
makes it a homicide and child abuse.
On cross-examination, Dr. Mileusnic-Polchan testified that the injuries
under the victim’s chin were likely caused by a fingernail. She also testified
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that she had no way of knowing the exact manner in which the
methamphetamine found in the victim’s system was ingested, but that it could
have been ingested through a formula bottle administered close to the victim’s
death. Dr. Mileusnic-Polchan also reiterated that some of the external injuries
occurred within a day of the victim’s death, but some occurred between five
and seven days before the victim died.
The [petitioner] presented several witnesses from the Knox County
Health Department who interacted with the victim and his parents to varying
degrees. Two registered nurses, Joyce McGinley, and Sarah Croley, each
testified that they met with the victim once, with McGinley meeting with the
victim and both parents on June 10, 2002, and Croley meeting with the victim
and his mother on July 31, 2002. Each nurse testified that her meeting
consisted of talked to the baby’s parent or parents about the victim’s general
progress. McGinley did not recall whether she physically examined the victim,
but she noted that administering physical exams was generally not in her job
description. She noted that based on her review of the “crib card” that had
been compiled at the time of the child’s birth, the victim’s health and growth
appeared to be normal. Croley testified that the victim did not appear to be in
any distress during her meeting with the victim and his mother, but that she did
not physically examine the child during the meeting.
Two Women, Infants and Children (WIC) program nutrition educators
with the Knox County Health Department, Nina Garton and Autumn
McElhaney, testified that they each met the victim once--Garton met with the
victim and both parents in either May or June 2002, and McElhaney met with
the victim and his mother on July 31, 2002. Both nutrition educators testified
that during these meetings, the nutrition educator had general discussions
regarding the baby’s health with the parent or parents present. Both Garton
and McElhaney testified that their notes from these meetings indicated no
abnormalities or signs of distress regarding the victim, but both women
testified that they had little recollection concerning their visits with the victim.
Karen Goodrick, a nurse practitioner, testified that she was employed
by the Knox County Health Department when Sarah Tallant brought the child
in for three well-child exams between May and July 2002. During the
examinations, Goodrick did not notice any problems with the victim that
would have suggested that he was being physically abused. She said that the
child did not experience any distressed breathing and did not appear to be in
pain during the visits. During the last exam, which took place on July 10,
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Goodrick performed a test on the victim’s legs to check his hip placement.
The test involved pushing the child’s legs up, out, and back, and although
Goodrick said that this exam was “relatively stressful” for most children, the
victim did not encounter any pain during the test. Goodrick testified that Sarah
Tallant explained that the burns the victim suffered occurred when the
[petitioner] (who was not present at any of these three exams) and the victim’s
older brother were playing on the floor and knocked over a lamp, which fell
on the victim. Goodrick said that this answer seemed satisfactory at the time
and did not cause her concern. On cross-examination, Goodrick testified that
she had seen the autopsy photographs, and during her examinations of the
victim, she did not notice any of the external injuries evident in the
photographs. She also admitted that she did not see the victim between his
July 10 visit and his death on August 14.
Kathi Zechman, a licensed practical nurse, testified that she gave the
victim two rounds of immunizations during two visits to the Knox County
Health Department. On May 8, 2002, she administered a hepatitis B shot in
the victim’s thigh, and on July 10, 2002, she gave the child two shots in his left
leg and two shots in the right leg. Zechman testified that she did not notice
any swelling in the baby’s legs during the visit, and other than a burn on the
baby’s hand, which she discussed with Goodrick, she noticed no physical
problems with the child. Zechman testified that her administration of the
immunizations could not have caused the broken leg suffered by the victim,
nor could she have caused the rib fractures the victim suffered. She also noted
that if the baby were crying or “particularly fussy,” she would not have made
a note of it.
Jason Turnblazer testified that between April and August 2002, he
employed the [petitioner] at his irrigation and landscape lighting business.
Turnblazer insisted that although he had no employment or payroll records
regarding his now-defunct business, the [petitioner] attended work every day
and was a good employee. On cross-examination, Turnblazer admitted that he
mainly kept in contact with the foreman on each jobsite, rather than the
individual employees. Turnblazer also admitted that he did not recall the
[petitioner] informing him about the victim’s birth, and that he heard about the
victim’s death through media reports. Turnblazer also testified that the
[petitioner] was no longer working for him when he learned that the victim had
died.
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Glenn “Sonny” Gish, the [petitioner’s] stepfather, testified that he
interacted with the victim only once, during a two-day visit to the Tallant home
in July 2002. Gish testified that during the two days he and his wife visited
with the victim, his parents, and the victim’s older brother, he noticed no
problems with the victim. Gish testified that the victim did not appear to be
in pain during the visit. Gish testified that he saw burns on the victim’s hands
and stomach, and when he asked the [petitioner] and his wife about the burns,
they told him that the [petitioner] and his older son had been playing on the
floor when they knocked over a lamp, which fell on the victim. Gish testified
that this explanation did not distress him. On cross-examination, Gish testified
that the victim’s burns were bandaged and he did not see the victim’s skin
underneath the bandages. Gish also testified that the house was clean and he
did not see anyone in the house using drugs, but admitted that because he did
not use drugs, he would not have known whether the [petitioner] or his wife
were using drugs if in fact they were.
Bettye Tallant, the [petitioner’s] mother and Sonny Gish’s wife,
testified that she visited the [petitioner], his wife, and their children in July
2002. Like her husband, she also testified that there were no noticeable
problems concerning the victim during her visit. She said that the victim did
not cry any more than a normal child his age. Ms. Tallant did testify that one
of the victim’s arms appeared slightly swollen during the visit, and after she
saw the [petitioner] pull the child up by that arm, she told the [petitioner] not
to pull the child up by his arm, because the [petitioner] may pull the arm out
of its socket. Ms. Tallant testified that she did not seem too concerned by the
child’s swollen arm or the [petitioner’s] pulling the child’s arm. On
cross-examination, Ms. Tallant admitted that she was not aware that the
[petitioner] and his wife were regular methamphetamine users.
Id. at *3-15.
On September 3, 2008, the petitioner filed a pro se petition for post-conviction relief
in which he raised a number of claims, including ineffective assistance of trial and appellate
counsel. Among other things, he alleged that counsel was ineffective on appeal for failing
to include jury questionnaires in the record on direct appeal, which limited this court’s review
of whether the trial court erred in seating three jurors at his trial. Following the appointment
of post-conviction counsel, he filed an amended petition on June 13, 2013, in which he
alleged that counsel was ineffective at trial and on appeal for not allowing him to testify in
his own behalf, failing to present alternative theories relating to the victim’s injuries, failing
to retain expert assistance in determining the date and causation of the victim’s injuries, and
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for not raising as an issue on appeal the trial court’s denial of their motion for a bill of
particulars. On appeal, however, the petitioner confines himself to arguing that counsel was
ineffective for not properly advising him on the importance of testifying, for not “pressing
the matter” of the bill of particulars in the trial court or raising the issue on direct appeal, and
for not including the jury questionnaires in the record on direct appeal. We will, thus,
confine our summary of the evidentiary hearing to testimony that is relevant to those issues.
At the evidentiary hearing, the petitioner testified that he told all four of the attorneys
who were, at one time, on his defense team that he wanted to testify. He said that one of the
junior counsel told him that he would start preparing his testimony about three weeks before
the start of the trial, but he never did because he ran for judicial office a few months before
the petitioner’s trial. In the meantime, senior counsel kept trying “to manipulate [the
petitioner]” into saying that he did not want to testify. According to the petitioner, senior
counsel, reminding him of his history of manufacturing methamphetamine, told him that he
would be “hangin[g] [himself]” if he testified. He acknowledged that the trial court reviewed
his rights with him at the trial. He insisted, however, that the only reason he told the trial
court that he did not want to testify was because he had been manipulated by senior counsel.
The petitioner testified that the trial court denied counsel’s request for a bill of
particulars. Although he had not understood its importance at that time, he had since
researched the issue and believed that it would have greatly helped his case for the State to
have been required “to categorize all the injuries to dates and times.” He explained that he
believed that, with a bill of particulars, defense counsel could have separated the victim’s
various injuries into those that occurred on the date of his death and those that occurred when
the petitioner was not present in the home. He said that counsel did not include the trial
court’s denial of the bill of particulars as an issue on direct appeal.
The petitioner testified that senior counsel raised an issue on direct appeal about the
seating of three jurors, but did not include the jury questionnaires in the record, which
resulted in the Court of Criminal Appeals stating in its direct appeal opinion that it was
unable to fully review the issue.
On cross-examination, the petitioner acknowledged that his defense team had weekly
meetings with him at the jail. He further acknowledged that his counsel argued on more than
one occasion for the bill of particulars but that the trial court ultimately ruled in favor of the
State. On redirect, he said that, had he testified at trial, he would have been able to explain
that he was away from home from the Friday through the Monday night prior to the victim’s
death.
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Senior trial counsel, the District Public Defender for Sixth Judicial District, testified
that he had been licensed to practice law for thirty-three years and had been the public
defender for the past twenty-three years. His office began representing the petitioner in
2002, with the case culminating in the petitioner’s trial in April 2006. At the beginning there
was some talk about the State filing a death notice, so the Administrative Office of the Courts
allowed him to associate an outside counsel. In addition, two of the attorneys in his office
also worked on the case. Although each of those other three lawyers left over time, there
were four lawyers working on the petitioner’s defense team “for the most part.” Other
people on the defense team included an investigator, a mitigation specialist, and “an
administrative person.” Senior trial counsel testified that he and his team met weekly with
the petitioner at the jail, holding over 70 joint defense meetings with Ms. Tallant and her
defense team and approximately 120 separate meetings with the petitioner alone. He
explored several defense options, including the possibility that the victim suffered from
osteogenesis imperfecta, or “brittle bone” disease. To that end, he consulted with an expert
in the field and obtained permission from the court to have the victim’s blood sent to Tulane
for genetic testing, the results of which were that the victim did not suffer from that disease.
Counsel testified that he also obtained permission and funding to hire an expert in pediatric
forensic pathology, who reviewed the findings of the State’s medical experts and agreed with
their conclusions that the victim’s injuries were indicative of child abuse.
Senior trial counsel testified that he had “multiple conversations” with the petitioner
about whether he would testify. He said the petitioner believed that counsel could simply
“stand up and tell the jury” his version of events without the petitioner’s taking the stand and
expressed great frustration when he explained that was not the way it worked. Counsel stated
that as their representation was ongoing, the petitioner “was giving [them] indications that
he was not going to testify.” He stated there were things that Ms. Tallant said that the
petitioner wanted to tell the jury were not accurate, but the petitioner also described the
thought of testifying as “a scary thing.” Counsel stated that he told the petitioner that the
district attorney would likely cross-examine him about each of the victim’s injuries, which
would mean that the petitioner would have “to take one of three positions generally: (a) I did
it and it was an accident; (b) I didn’t do it; I don’t know who did; and I never noticed the
injuries to my child; or (3 [sic]) I didn’t do it; I noticed it; but I didn’t do anything about it.”
According to his notes, he talked to the petitioner again about testifying on March 23, 2006,
asking if he wanted to reconsider his decision. The petitioner, however, confirmed that he
did not want to testify. Counsel said he made it clear that the decision was the petitioner’s
alone. The petitioner was adamant about his decision, telling counsel at one point, according
to counsel’s notes, “Make no doubt about it; I ain’t testifyin’.”
Senior trial counsel testified that the defense theory they developed involved
attempting to convince the jury that the State could not show that the petitioner was either
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responsible for the victim’s first two “clusters” of injuries, or negligent for not noticing them,
given that a trained nurse who saw the victim after the date of those injuries also failed to
notice them. As for the third cluster of injuries, they attempted to show that the petitioner
was not present for most of the time frame in which those injuries occurred. The jury,
however, rejected their theory.
On cross-examination, senior trial counsel testified that he could not recall the
petitioner’s level of education or IQ but that he was “smarter than most clients,” always
asked questions, did a lot of independent research, and “was engaged.” He said he never
thought the petitioner’s testimony would be helpful to his case. He did not recall having
discussions with the petitioner in which he recommended that he either testify or not testify
because the petitioner “was driving that train” and “knew what he wanted to do.” Instead,
he challenged him by inquiring whether he was sure not testifying was what he wanted to do.
He also had “lots of discussions” with the petitioner about what he would say if he decided
to testify and how his testimony would open the door for the State to inquire into “a lot of
other stuff.”
Senior trial counsel testified that they filed and argued for the bill of particulars but
were denied by the trial court. He said he did not recall whether they raised the denial of the
bill of particulars as an issue on direct appeal and said that, if they did not, he could not say
why. However, he thought they were successful in categorizing the victim’s injuries into
three separate “clusters” that occurred over three different time frames.
Senior trial counsel testified that the trial judge “was extremely possessive” of the jury
questionnaires, which he kept in his office and required counsel to turn back in after the jury
was selected. He conceded, however, that it was “an error on [his] part” not to make the
questionnaires part of the record on appeal.
On July 24, 2013, the post-conviction court entered an order denying the petition for
post-conviction relief. Among other things, the court found that the petitioner did not
demonstrate either deficiency or prejudice with respect to his allegation that counsel was
ineffective at trial for failing to allow him to testify in his own behalf and did not
demonstrate prejudice with respect to his allegations that counsel was ineffective on appeal
for failing to raise the denial of the bill of particulars as an issue and for not including the
jury questionnaires in the record. Thereafter, the petitioner filed a timely appeal to this court.
ANALYSIS
The post-conviction petitioner bears the burden of proving his allegations by clear and
convincing evidence. See Tenn. Code Ann. § 40-30-110(f). When an evidentiary hearing is
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held in the post-conviction setting, the findings of fact made by the court are conclusive on
appeal unless the evidence preponderates against them. See Tidwell v. State, 922 S.W.2d
497, 500 (Tenn. 1996). Where appellate review involves purely factual issues, the appellate
court should not reweigh or reevaluate the evidence. See Henley v. State, 960 S.W.2d 572,
578 (Tenn. 1997). However, review of a trial court’s application of the law to the facts of
the case is de novo, with no presumption of correctness. See Ruff v. State, 978 S.W.2d 95,
96 (Tenn. 1998). The issue of ineffective assistance of counsel, which presents mixed
questions of fact and law, is reviewed de novo, with a presumption of correctness given only
to the post-conviction court’s findings of fact. See Fields v. State, 40 S.W.3d 450, 458
(Tenn. 2001); Burns v. State, 6 S.W.3d 453, 461 (Tenn. 1999).
To establish a claim of ineffective assistance of counsel, the petitioner has the burden
to show both that trial counsel’s performance was deficient and that counsel’s deficient
performance prejudiced the outcome of the proceeding. Strickland v. Washington, 466 U.S.
668, 687(1984); see State v. Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App.1997) (noting
that same standard for determining ineffective assistance of counsel that is applied in federal
cases also applies in Tennessee). The Strickland standard is a two-prong test:
First, the defendant must show that counsel’s performance was deficient. This
requires showing that counsel made errors so serious that counsel was not
functioning as the “counsel” guaranteed the defendant by the Sixth
Amendment. Second, the defendant must show that the deficient performance
prejudiced the defense. This requires showing that counsel’s errors were so
serious as to deprive the defendant of a fair trial, a trial whose result is reliable.
466 U.S. at 687.
The deficient performance prong of the test is satisfied by showing that “counsel’s acts
or omissions were so serious as to fall below an objective standard of reasonableness under
prevailing professional norms.” Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996) (citing
Strickland, 466 U.S. at 688; Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)). Moreover,
the reviewing court must indulge a strong presumption that the conduct of counsel falls within
the range of reasonable professional assistance, see Strickland, 466 U.S. at 690, and may not
second-guess the tactical and strategic choices made by trial counsel unless those choices were
uninformed because of inadequate preparation. See Hellard v. State, 629 S.W.2d 4, 9 (Tenn.
1982). The prejudice prong of the test is satisfied by showing a reasonable probability, i.e.,
a “probability sufficient to undermine confidence in the outcome,” that “but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” Strickland,
466 U.S. at 694. The same principles apply in determining the effectiveness of trial and
appellate counsel. Campbell v. State, 904 S.W.2d 594, 596 (Tenn. 1995).
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Courts need not approach the Strickland test in a specific order or even “address both
components of the inquiry if the defendant makes an insufficient showing on one.” 466 U.S.
at 697; see also Goad, 938 S.W.2d at 370 (stating that “failure to prove either deficiency or
prejudice provides a sufficient basis to deny relief on the ineffective assistance claim”).
The petitioner argues on appeal that counsel was ineffective at trial for failing to advise
him of the importance of testifying in his own defense and for not “pressing the matter” of the
bill of particulars with the trial court. He also argues that counsel was ineffective on appeal
for not raising the denial of the bill of particulars and for not including the jury questionnaires
in the record.
In denying the petition, the court, among other things, accredited the testimony of trial
counsel about the numerous discussions he had with the petitioner with respect to testifying.
The court found that the petitioner had not met his burden of demonstrating either a deficiency
in counsel’s performance or a prejudice to his case based on his allegation that counsel was
ineffective with respect to the petitioner’s decision about testifying. The court further found
that the petitioner failed to show any prejudice with respect to his allegations that counsel did
not sufficiently press the issue of the bill of particulars, raise the denial of the bill of
particulars as an issue on appeal, or include the jury questionnaires in the record on appeal.
The record fully supports the findings and conclusions of the post-conviction court.
We note, first, counsel’s testimony at the evidentiary hearing was that he never thought that
the petitioner’s testimony would be helpful to his defense. As such, counsel cannot be found
deficient in his representation for not advising the petitioner to testify. Trial counsel testified
that he had numerous conversations with the petitioner about his decision with respect to
testifying, discussing with him, among other things, what he thought he would offer to the
case in his testimony and the cross-examination he would face if he took the stand. He said
that the petitioner was intelligent, engaged, and actively involved in the process and made it
clear that his decision was not to testify. The petitioner has not, therefore, shown that counsel
provided ineffective assistance with respect to his decision about testifying.
The petitioner has also not shown that counsel provided ineffective assistance by not
pressing the matter of the bill of particulars with the trial court or raising it as an issue on
direct appeal. At the evidentiary hearing, the petitioner acknowledged that counsel argued for
the bill of particulars, but was denied by the trial court. Trial counsel also testified that he
filed for and argued strenuously for the bill of particulars, but the trial court denied his
motion. We, therefore, fail to see how counsel failed “to press the matter” in the trial court.
As for counsel’s failure to raise the trial court’s denial of his motion as an issue on direct
appeal, we note that “[t]he determination of which issues to raise on appeal is generally within
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appellate counsel’s sound discretion.” Carpenter v. State, 126 S.W.3d 879, 887 (Tenn. 2004).
Trial counsel testified that he could not say why he had not raised the issue on appeal, but he
believed he was successful at trial in separating the victim’s injuries into three different
“clusters” and showing how the petitioner was absent from the home during much of the time
in which the third cluster of injuries occurred. “[I]neffectiveness is very rarely found in cases
where a defendant asserts that appellate counsel failed to raise an issue on direct appeal,
primarily because the decision of what issues to raise is one of the most important strategic
decisions to be made by appellate counsel.” Kennath Henderson v. State, No.
W2003-01545-CCA-R3-PD, 2005 WL 1541855, at *44 (Tenn. Crim. App. June 28, 2005),
perm. app. denied (Tenn. Dec. 5, 2005). The petitioner has not, therefore, shown that he was
denied the effective assistance of counsel based on counsel’s actions or inactions with respect
to the bill of particulars.
As for counsel’s failure to include the jury questionnaires in the record, counsel
acknowledged he was at fault for not doing so and the post-conviction court found him
deficient in this regard. The court further found, however, that the petitioner was unable to
show that the outcome of his case was prejudiced as a result. We agree. Although we noted
in our direct appeal opinion that our ability to review whether the trial court abused its
discretion in seating three jurors that the petitioner challenged for cause – a man who was a
former Child Protective Services investigator, a woman who disclosed on her questionnaire
that she had been sexually abused as a child, and a woman who on her questionnaire
expressed her unhappiness at the thought of her tax dollars paying for a public defender or
court-appointed lawyer – was “limited” due to the fact that he did not include the jury
questionnaires in the appellate record, we went on to review the issue at some length before
concluding that the trial court acted within its discretion in allowing the jurors to remain on
the jury. Blake Delaney Tallant, 2008 WL 115818, at *18. The petitioner has not, therefore,
shown that he was denied the effective assistance of counsel based on counsel’s failure to
include the jury questionnaires in the record on direct appeal.
CONCLUSION
Based on our review, we conclude that the petitioner has not met his burden of
showing that he was denied the effective assistance of counsel at trial or on appeal.
Accordingly, we affirm the denial of the petition for post-conviction relief.
_________________________________
ALAN E. GLENN, JUDGE
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