James Davis v. State of Tennessee ( 2007 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
September 11, 2007 Session
JAMES DAVIS v. STATE OF TENNESSEE
Direct Appeal from the Circuit Court for Tipton County
No. 4520 Joseph H. Walker, III, Judge
No. W2006-02708-CCA-R3-PC - Filed December 21, 2007
The petitioner, James Davis, was convicted by a Tipton County jury of felony murder and aggravated
robbery and received consecutive sentences of life without parole and twenty years. This court
affirmed the petitioner’s convictions on direct appeal. State v. James Robert Davis, No. W2003-
02362-CCA-R3-CD, 2005 WL 452569, at *1 (Tenn. Crim. App. Feb. 24, 2005), perm. to appeal
denied (Tenn. Aug. 22, 2005). In 2006, the petitioner filed a petition for post-conviction relief,
alleging that he received ineffective assistance of counsel at trial. Following an evidentiary hearing,
the post-conviction court dismissed the petition. After reviewing the record and finding no error,
we affirm that order.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
ALAN E. GLENN , J., delivered the opinion of the court, in which DAVID H. WELLES and JOHN
EVERETT WILLIAMS, JJ., joined.
Matthew Ian John, Memphis, Tennessee, for the appellant, James Davis.
Robert E. Cooper, Jr., Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; D.
Michael Dunavant, District Attorney General; and James Walter Freeland, Jr., Assistant District
Attorney General, for the appellee, State of Tennessee.
OPINION
FACTS
This court set out the relevant factual background in its opinion affirming the petitioner’s
convictions on direct appeal:
On Sunday, September 22, 2002, Kathryn Glass went to church while her
husband, eighty-five-year-old Edward Glass, the victim in this case, stayed at their
home in Atoka, Tennessee on Wilkinsville Road in Tipton County. Shortly before
noon, the [petitioner] and LaJune Smith pulled into the victim's driveway in a light
brown or champagne-colored extended cab pick-up truck. The victim was outside
of his home at the time and walked toward the truck to see what the appellant needed.
The [petitioner] got out of the driver's side of the truck and asked the victim for
change for a five dollar bill. As the victim removed his wallet, the [petitioner] hit
him in the face with his fist, knocking the victim to the ground. The [petitioner]
grabbed the victim's wallet and left in the truck. The wallet was found a short time
later on the side of the road near the victim's home.
Michael Lantrip, the victim's son-in-law, was mowing the lawn next door to
the victim's residence when he saw the truck pull into the driveway. Mr. Lantrip did
not see the [petitioner] strike the victim. Mr. Lantrip later saw the victim staggering
toward him, looking dazed. The victim was bleeding and had a large gash on the side
of his face. Mr. Lantrip took the victim inside his home and called 911. Mr. Lantrip
also notified several of the victim's children about the incident.
Deputy Robert Akers of the Tipton County Sheriff's Department responded
to the 911 call. When he arrived, medical personnel were already on the scene and
the victim's wife had arrived home from church. Deputy Akers interviewed the
victim, noting that he had a facial injury and blood on his coveralls. The victim
described the incident to Deputy Akers and gave a description of the assailant.
Because the victim could not read or write, his daughter, Jean Ballard, wrote out the
victim's responses to Deputy Akers' questions. Mrs. Glass also witnessed the
interview and transcription of the statement. Mrs. Glass signed her husband's name
to the written statement upon its completion.
The victim declined medical treatment at his residence. Shortly after the
ambulance left, the victim began to feel worse, complaining of a headache and
nausea. A second ambulance was called to the victim's residence and the victim was
taken to the hospital where he lost consciousness, slipped into a coma, and died three
days later. Dr. O.C. Smith performed an autopsy on the victim and determined that
the cause of death was blunt trauma to the head which caused an accumulation of
blood inside the skull as well as swelling of the brain.
On September 26, 2002, LaJune Smith, the [petitioner’s] girlfriend, was
arrested and charged with felony murder and aggravated robbery. She gave a
statement in which she implicated her boyfriend, the [petitioner]. The [petitioner]
was subsequently arrested and, at the time of his arrest, complained of an injury to
his hand.
In November of 2002, the [petitioner] was indicted by the Tipton County
Grand Jury on one count of felony murder and one count of aggravated robbery. The
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[petitioner] was held at the Tipton County Correctional Facility prior to trial. While
incarcerated, the [petitioner] made several phone calls to his mother during which he
made incriminating statements about the incident. The telephone calls were
monitored and recorded pursuant to the Sheriff's Department's policy. All prisoners
are notified of the policy prior to each telephone call by a recorded message.
After a jury trial, the [petitioner] was convicted of felony murder and
aggravated robbery. He was sentenced by the jury to life without the possibility of
parole on the felony murder conviction and by the trial court to a twenty-year
sentence on the aggravated robbery conviction, to be served consecutively to the life
sentence.
James Robert Davis, 2005 WL 452569, at *1-2.
The petitioner challenges the effectiveness of his trial counsel’s assistance. We derive his
allegations directly from his amended petition for post-conviction relief:
1. Petitioner alleges the counsel failed to conduct a proper metal [sic] evaluation to
determine his competency to stand trial. In doing so, counsel disregarded the
Petitioner’s significant and well documented substance-abuse problem which may
have rendered him incompetent [to stand trial].
2. Petitioner alleges that he was denied his rights under the Constitution of the State
of Tennessee and the United States Constitution to effective assistance of counsel
during the stages of his trial. Petitioner alleges that trial defense counsel’s assistance
was ineffective because he did not inform the Petitioner of any of the possible
defenses he may have used at trial.
3. Petitioner further alleges that he was denied his right to effective assistance of
counsel on information and belief that his court-appointed trial counsel may not have
investigated the facts properly by not interviewing any potential witnesses on behalf
of the petitioner and failed to properly cross-examine certain witnesses called by the
State.
4. Petitioner also alleges trial counsel had knowledge of damaging taped
conversations as early as three months before the trial and never filed pre-trial
motions to suppress the extremely prejudicial taped phone conversations. Counsel
was aware of how prejudicial these tapes were and failed to file the proper
Interlocutory Appeals. Petitioner also alleges that counsel also allowed the state to
play the detrimental conversations during the trial to the jury. The Trial Counsel did
not properly object to these prejudicial tactics used by the State. These tapes were
only used to prejudice the defendant and influence the jury.
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5. The Petitioner alleges that counsel allowed the State to make transcripts of the
taped conversations without properly reviewing them or allowing the Petitioner to
review them. Counsel also failed to prepare a separate set of transcripts for the
Defense before the transcripts were read during the trial.
6. Petitioner further alleges that counsel conducted a poor investigation of the
victim’s medical records by questioning none of the inconsistencies that existed.
Petitioner also asserts that trial counsel made ineffective use of the medical doctor
who was to review the autopsy and medical reports of the victim.
7. Petitioner alleges that he was denied his rights under the Constitution of the State
of Tennessee and the United States Constitution to effective assistance of counsel
during the stages of his trial because the Petitioner alleges that Trial defense counsel
never informed him of the range of sentencing and to whether or not he would be
eligible for a parole release date.
8. Petitioner further alleges that he was denied his right to effective assistance of
counsel on information and belief that his court-appointed trial counsel may not have
investigated the facts of the case thoroughly.
9. Petitioner also alleges counsel failed to investigate or review the criminal histories
of any witnesses called by the State thereby leaving their credibility in question.
10. The Plaintiff [sic] further alleges that his court-appointed trial counsel failed to
keep him informed as to the developments of his case. The Plaintiff [sic] contends
that contact was limited and left him without a clear understanding of the
proceedings and an inability [sic] to assist in his own defense.
The petitioner and his trial counsel, who were the only witnesses to testify at the evidentiary
hearing, disagreed in most aspects of their testimony. The majority of the petitioner’s testimony was
a recitation of various actions he wanted trial counsel to take, which he did not, these complaints
accompanied by the petitioner’s claims that, had counsel taken the desired actions, the outcome of
the trial might have been different. While expressing his beliefs in this regard, the petitioner
presented no proof to support them, neither calling to the hearing any of the witnesses whom he
believes should have testified for him at the trial nor introducing any records which counsel might
have utilized at the trial. The post-conviction court concluded that the petitioner had failed to show
either that counsel was ineffective or that he was prejudiced by counsel’s actions; and, as we will
explain, we agree.
At the evidentiary hearing, the petitioner testified that trial counsel gave him a copy of the
victim’s statements, the autopsy report, and an audiotaped recording of a conversation between the
petitioner and his mother that took place while the petitioner was in jail awaiting trial. The petitioner
said that trial counsel played the audiotape for him, and it was difficult to understand. The petitioner
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testified that trial counsel met with him briefly to discuss the autopsy report and told him that he
planned to petition the trial court for funds to hire a pathologist to independently evaluate the
victim’s cause of death. According to the petitioner, counsel never showed him any written
conclusions or reports of the pathologist but later explained that the pathologist would not be helpful
to his defense. The petitioner said he asked trial counsel for police reports and additional
information from the medical personnel who assisted the victim, but did not receive those materials
in time to use them to prepare his defense. However, he admitted that he did not ask for the police
reports until shortly before trial. None of these records were put into evidence at the evidentiary
hearing.
The petitioner said that he promptly informed trial counsel that he had a substance abuse
problem and had been diagnosed with psychological disorders. He signed a medical waiver allowing
counsel to investigate his medical history. To the petitioner’s knowledge, trial counsel never spoke
with any of the psychologists, psychiatrists, or physicians who had treated him.
The petitioner testified that he did discuss defenses and trial strategies with counsel. He said
that counsel told him he was going to hire a private investigator to help explore some leads, but that
to his knowledge an investigator was never hired. The petitioner testified that trial counsel never
discussed with him sentencing options or potential witnesses to be called at the sentencing hearing.
He said that he never approved counsel’s decision not to put on proof at sentencing and that he
would have chosen to present proof if consulted. However, the petitioner did not present at the
hearing any witnesses or other proof which, in his view, would have benefitted him at sentencing.
Trial counsel testified that he did not ask for an evaluation of the petitioner’s competency to
stand trial because the petitioner was quite active in his defense and appeared to be competent.
Although he was aware of the petitioner’s substance abuse problem, trial counsel did not believe this
warranted a mental evaluation.
Trial counsel agreed that he discussed potential defenses with the petitioner and said he
employed every possible defense of which he was aware. Trial counsel’s strategy was to challenge
whether the petitioner’s actions were the criminally proximate cause of the victim’s death, and to
attempt to suppress damaging statements made by the victim and the petitioner. Counsel
remembered discussing potential alibi defenses with the petitioner but said he could not present such
a defense in light of the jailhouse audiotapes on which the petitioner admits his presence at the scene.
He was sure that he advised the petitioner of his sentencing range and whether he would be eligible
for parole. At the evidentiary hearing, the petitioner did not identify specific defenses he believes
counsel should have discussed with him.
Counsel acknowledged that he did not question every potential witness. He reasoned that
because many of the witnesses in this case were family members of the victim, it was better to
question them for the first time under oath, so they would not have a chance to think about the
questions being asked and reformulate their responses.
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Trial counsel testified that he was aware of the jailhouse audiotapes well in advance of trial
and that he listened to the audiotapes with the petitioner. He said he filed pretrial motions to
suppress the tapes but did not consider taking an interlocutory appeal from the trial court’s denial
of those motions. He thought that the first time he saw the State’s transcript of the tapes was when
the State presented it at trial. Counsel did not prepare his own transcript because the tapes were
difficult to understand in certain areas, and he believed that clarifying them would only increase their
inculpatory effect. On redirect examination, he said he did not remember the petitioner’s ever
claiming that it was not his voice on the audiotapes. The petitioner presented neither the tapes nor
the transcripts at the hearing, nor proof that he had not, as he claimed in his testimony, been in the
cell block from which the telephone calls originated.
Regarding the allegation of ineffective use of the pathologist hired to examine the medical
records and the autopsy report, trial counsel said that he decided against using the pathologist’s
testimony after learning that he agreed with the autopsy report. He thought this would only bolster
the State’s case against the petitioner. He did not remember seeing anything in the medical records
that appeared inconsistent with the State’s theory of the case. At the hearing, the petitioner presented
neither records nor witnesses to support his claims regarding the pathologist.
Trial counsel acknowledged that he did not investigate the criminal backgrounds of many of
the State’s witnesses. He did not do so because he felt he would be unable to use their criminal
records at trial, since many of the witnesses were neighbors or relatives of the victim. He was
concerned that the jury would construe any inquiry into the criminal history of such witnesses as an
unjust attack on one who had recently experienced a tragedy. At the hearing, the petitioner did not
present proof of what the results would have been had counsel investigated the records of the
witnesses.
Counsel believed that he kept the petitioner informed of the developments of his case. His
records showed that he met with the petitioner prior to trial between eight and twelve times, and sent
him several letters. He remembered giving the petitioner some discovery materials and made his
best effort to forward such materials as he received them. He denied the petitioner’s allegation that,
prior to trial, they had met for a total of only fifteen minutes.
On cross-examination, trial counsel testified that he learned that the petitioner previously had
been treated at the Memphis Mental Health Hospital and the Professional Counseling Center in
Covington. He remembered requesting permission from the petitioner to investigate his medical
records but did not recall actually reviewing the records. Counsel did not introduce the petitioner’s
substance abuse problem at trial or sentencing because, in his words, “being a crack head has never
helped anybody’s defense.”
Trial counsel agreed that he presented no proof at the sentencing hearing but could not recall
whether he discussed this decision with the petitioner. He did not call the petitioner to the stand
because he believed the petitioner would not have been a good witness. He said he advised the
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petitioner not to present proof at sentencing, but that the ultimate decision on that issue was the
petitioner’s.
Trial counsel could not remember whether he attempted to obtain information from the
medical personnel who treated the victim at the scene of the crime. He did not remember talking to
them or getting statements from them and did not call any of them as witnesses. He could not recall
obtaining medical records from Methodist Hospital–North, where the victim was treated. At the
evidentiary hearing, the petitioner did not present any of these records or call to testify medical
personnel who had assisted the victim.
After reviewing in detail and making findings as to the petitioner’s individual complaints,
the post-conviction court dismissed the petition, concluding that the petitioner had failed to show
either that counsel had been deficient or that he had been prejudiced by counsel’s actions:
The Court finds that petitioner has failed to establish the factual allegations
contained in his petition by clear and convincing evidence. Tenn. Code Ann. § 40-
30-110. The petitioner has not shown that (a) the services rendered by trial counsel
were deficient and (b) the deficient performance was prejudicial. The petitioner has
not shown that the services rendered or the advice given was below the range of
competence demanded of attorneys in criminal cases. The petitioner has not shown
that there is a reasonable probability that, but for counsel’s deficient performance, the
result of the proceeding would have been different.
ANALYSIS
On appeal, the petitioner renews each claim of ineffective assistance of counsel set forth in
his amended petition for post-conviction relief. The State responds that the petitioner has waived
several claims by failing to support them with appropriate citations and argument and that the record
and the law do not support his remaining claims.
Post-conviction relief “shall be granted when the conviction or sentence is void or voidable
because of the abridgment of any right guaranteed by the Constitution of Tennessee or the
Constitution of the United States.” Tenn. Code Ann. § 40-30-103 (2006). The petitioner bears the
burden of proving factual allegations by clear and convincing evidence. Tenn. Code Ann. §
40-30-110(f). When an evidentiary hearing is 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
Wiley v. State, 183 S.W.3d 317, 325 (Tenn. 2006). When reviewing factual issues, the appellate
court will not reweigh the evidence and will instead defer to the trial court's findings as to the
credibility of witnesses or the weight of their testimony. Id. 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 issues of deficient performance of counsel and
possible prejudice to the defense are mixed questions of law and fact and, thus, subject to de novo
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review by the appellate court. See Wiley, 183 S.W.3d at 325; State v. Burns, 6 S.W.3d 453, 461
(Tenn. 1999).
The right to effective assistance of counsel is safeguarded by the Constitutions of both the
United States and the State of Tennessee. See U.S. Const. Amend. VI; Tenn. Const. Art. I, § 9. In
order to determine the competence of counsel, Tennessee courts have applied standards developed
in federal case law. See State v. Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App. 1997) (noting that
the same standard for determining ineffective assistance of counsel that is applied in federal cases
also applies in Tennessee). The United States Supreme Court articulated the standard in Strickland
v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984), which is widely accepted as the appropriate
standard for all claims of a convicted petitioner that counsel’s assistance was defective. The standard
is firmly grounded in the belief that counsel plays a role that is “critical to the ability of the
adversarial system to produce just results.” Id. at 685, 104 S. Ct. at 2063. 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.
Id. at 687, 104 S. Ct. at 2064. The Strickland Court further explained the meaning of “deficient
performance” in the first prong of the test in the following way:
In any case presenting an ineffectiveness claim, the performance inquiry must be
whether counsel’s assistance was reasonable considering all the circumstances. . . .
No particular set of detailed rules for counsel’s conduct can satisfactorily take
account of the variety of circumstances faced by defense counsel or the range of
legitimate decisions regarding how best to represent a criminal defendant.
Id. at 688-89, 104 S. Ct. at 2065. The petitioner must establish “that counsel’s representation fell
below an objective standard of reasonableness under prevailing professional norms.” House v. State,
44 S.W.3d 508, 515 (Tenn. 2001) (citing Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996)).
As for the prejudice prong of the test, the Strickland Court stated: “The defendant must
show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different. A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” 466 U.S. at 694, 104 S. Ct. at 2068; see also Overton v.
State, 874 S.W.2d 6, 11 (Tenn. 1994) (concluding that petitioner failed to establish that “there is a
reasonable probability that, but for counsel’s errors, the outcome of the proceedings would have been
different”). To satisfy the prejudice requirement of Strickland when alleging that counsel was
ineffective for failing to offer testimony from a favorable witness, the post-conviction petitioner must
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“(1) produce the witness at his post-conviction hearing; (2) show that through reasonable
investigation, trial counsel could have located the witness; and (3) elicit both favorable and material
testimony from the witness.” Denton v. State, 945 S.W.2d 793, 802-03 (Tenn. Crim. App. 1996)
(citing Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990)).
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, 104 S. Ct.
at 2066, 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 fact that a strategy or tactic failed or hurt the defense does not alone support
the claim of ineffective assistance of counsel. See Thompson v. State, 958 S.W.2d 156, 165 (Tenn.
Crim. App. 1997). Finally, a person charged with a criminal offense is not entitled to perfect
representation. See Denton v. State, 945 S.W.2d 793, 796 (Tenn. Crim. App. 1996). As explained
in Burns, 6 S.W.3d at 462, “[c]onduct that is unreasonable under the facts of one case may be
perfectly reasonable under the facts of another.”
I. Ineffective Assistance of Counsel
A. Mental Evaluation/Substance Abuse
The petitioner argues that “[c]ounsel . . . failed his legal obligation to his client to conduct
said mental evaluation as upheld in United States v. DeCoster, 487 F.2d 1197 (D.C. Cir. 1973[)].”
DeCoster set forth standards for evaluating the effectiveness of the assistance of counsel which were
later cited with approval by our supreme court in Baxter v. Rose, 523 S.W.2d 930 (Tenn. 1975). The
petitioner apparently relies on DeCoster’s statement that “[c]ounsel should also be concerned with
the accused’s right to be released from custody pending trial, and be prepared, where appropriate,
to make motions for a pre-trial psychiatric examination or for the suppression of evidence.” Baxter,
523 S.W.2d at 933 (quoting DeCoster, 487 F.2d. at 1203-04) (emphasis added).
In support of this allegation, the petitioner offers the conclusory statement that “had it not
been for said Counsel’s ineffectiveness, the Petitioner would have had a different result (verdict),
and may have been deemed incompetent to stand trial.” However, he did not present any evidence
at the post-conviction evidentiary hearing to suggest that a mental evaluation was warranted or what
the results of such an examination would have been. Rather, trial counsel testified that the petitioner
was very active in his defense, and counsel saw no reason to question the petitioner’s competence
to stand trial. As to this claim, the post-conviction court found that “[trial] [c]ounsel testified that
petitioner could assist in his defense, and he saw no need to have him evaluated. Petitioner admits
he was able to confer with counsel. Petitioner has failed to show prejudice in this regard.” The
record supports this determination of the post-conviction court.
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B. Possible Trial Defenses
In his appellate brief, the petitioner argues that trial counsel was ineffective in not informing
him of any possible defenses to be used at trial. Additionally, he alleges that trial counsel did not
properly inform him of all case proceedings and met with him for a total of only fifteen minutes in
preparation for trial. As we have noted previously, the petitioner did not identify at the evidentiary
hearing the defenses he believed would have benefitted him at trial or explain why this would have
been the case.
We conclude that the petitioner has waived this argument by failing to support it with
argument or appropriate references to the record. See Tenn. Ct. Crim. App. R. 10(b) (“Issues which
are not supported by argument, citation to authorities, or appropriate references to the record will be
treated as waived in this court.”). The petitioner has not made sufficient arguments or supplied
citations or references to the record to support these claims.
C. Inadequate Investigation and Cross-Examination
The petitioner avers that trial counsel “may not have investigated the facts of the case
properly by failing to interview any potential witnesses on behalf of petitioner and failing to properly
cross-examine certain witnesses called by the State[.]” He claims that he provided trial counsel with
the names of witnesses who were never contacted and subpoenaed, resulting in a weak defense.
According to the petitioner, there is a “strong indication” that the outcome of the trial would have
been different if these witnesses had been properly employed in his defense.
At the evidentiary hearing, the petitioner produced none of the favorable witnesses whom
counsel purportedly ignored and did not explain what was improper about trial counsel’s cross-
examination of the State’s witnesses or even identify those witnesses who, in his view, should have
been cross-examined more effectively. The record supports the determination of the post-conviction
court that the petitioner failed in his proof as to this claim.
D. Jailhouse Audiotapes
At trial, the State introduced audio recordings of a jailhouse phone call between the petitioner
and his mother. While claiming at the evidentiary hearing that his was not one of the voices heard
in the telephone calls, the petitioner did not opine, as we understand, whether one of the voices on
the tape was that of his mother and did not call her to testify at the hearing in this regard. Further,
the petitioner did not explain what his legal theory would have been to suppress the tapes since,
accepting his explanation, the tapes were of conversations to which he was not a party. As we
understand it, the petitioner also argues that counsel was ineffective because he “allowed the [S]tate
to play the detrimental conversations during the trial to the jury” but does not explain what additional
actions counsel could have taken to prevent this from occurring.
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At the hearing, the petitioner acknowledged that counsel, in fact, had filed a pretrial motion
to suppress the tapes:
[THE STATE]: Okay. He [the petitioner] also indicates that you never filed pretrial
motions to suppress [the jailhouse audiotapes], but that’s not true, is it?
[TRIAL COUNSEL]: Yes, we filed motions to suppress those tapes --
[POST-CONVICTION COUNSEL]: Your Honor, we would agree that that can be
stricken from the petition, after further research. I don’t know if that was changed
in the amended petition, but that is not true. We would stipulate that motions were
filed, pretrial motions and motions to suppress were filed.
The petitioner’s brief claims only that “[c]ounsel neglected to file Interlocutory Appeals, and
thus damaging statements were allowed in the State’s case.” He does not evaluate the likelihood that
an interlocutory appeal would have been successful, nor does he explain how the “damaging
statements” prejudiced his defense. Accordingly, we agree with the State that the petitioner has
waived this claim by failing to support it with argument or appropriate citations to authority. Tenn.
Ct. Crim. App. R. 10(b).
E. Transcripts of Jailhouse Audiotapes
The petitioner asserts that counsel allowed the State to make transcripts of the jailhouse tapes
without properly reviewing them or allowing the petitioner to review them and asks whether counsel
was ineffective in failing to prepare his own transcript of the tapes. As to this, he claims that
“[a]llowing the prosecution to present a projection of what they transcribed the tapes to be was
enormously prejudicial to Petitioner’s outcome.” However, he does not allege that the State’s
transcription is inaccurate. He also “submits that had his Counsel investigated the log handbook at
the facility Petitioner was housed at, it would have revealed that he was actually in D pod, not C pod
where the purported call was made from.” Yet, he stops short of claiming that the voice on the
audiotapes is not his. Absent even a bare allegation that the State’s transcript is inaccurate, or that
the voice on the tape is not his, we conclude that the record supports the post-conviction court’s
determination in this regard.
F. Inadequate Investigation--Medical Records
The petitioner claims that trial counsel’s investigation of the victim’s medical records was
insufficient and challenges counsel’s use of the pathologist hired to independently examine those
records. He argues that although the pathologist agreed with the autopsy report that blunt force
trauma was the cause of death, further investigation was warranted because the pathologist noted that
the autopsy did not specify the nature of the blunt force trauma. As we understand, the petitioner
argues that trial counsel should have called the pathologist to testify at trial and used his uncertainty
about the nature of the trauma to develop some alternative theory of defense. The petitioner also
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claims that counsel should have investigated more extensively the records of the medical personnel
who treated the victim at the scene of the attack. The State responds that the petitioner’s failure to
offer medical proof to corroborate his claim is fatal.
As we previously have set out, the petitioner did not present the autopsy report or other
medical records of the victim at the evidentiary hearing, nor did he call the pathologist to testify;
thus, he is not entitled to relief on this issue. See generally, Denton, 945 S.W.2d at 802-03 (failure
to call favorable witness); Floyd “Butch” Webb v. State, No. E2006-02352-CCA-R3-PC, 2007 WL
2570201, at *14 (Tenn. Crim. App. Sept. 7, 2007) (failure to introduce medical records). The post-
conviction court found that the petitioner failed to show that he was prejudiced by counsel’s failure
to provide the pathologist with additional records. The record supports this determination.
G. Inadequate Communication – Sentencing
The petitioner argues briefly and without any amplification that trial counsel never informed
him of the range of sentencing to which he would be subjected, or whether he would be eligible for
parole. He contends that counsel did not discuss plea options with him or explain the lesser-included
offenses, the consequences of going to trial, or the punishments that a conviction would carry. He
neither explained nor presented any proof at the hearing as to how he would have benefitted had
counsel taken these actions. The State argues that the petitioner has waived this issue for failing to
cite to authority or the record. Tenn. Ct. Crim. App. R. 10(b). We concur.
H. Inadequate Investigation – Criminal Histories of State’s Witnesses
The petitioner asserts trial counsel did not investigate adequately the criminal histories of the
State’s witnesses for purposes of impeaching their credibility. He also appears to argue that counsel
failed to investigate or subpoena favorable defense witnesses provided to him by the petitioner. The
State contends that the petitioner is not entitled to relief because he failed to prove the criminal
history of any of the State’s witnesses or demonstrate that counsel’s refusal to investigate these
histories prejudiced his defense.
Both of the petitioner’s arguments in this regard are foreclosed by Denton and Black. At the
evidentiary hearing, the petitioner introduced neither proof of the criminal history of any State
witness nor favorable testimony of any witness whom trial counsel failed to call at trial. The post-
conviction court correctly held that the petitioner did not establish that counsel’s allegedly
inadequate investigation prejudiced his defense.
I. Inadequate Communication
Finally, the petitioner alleges that trial counsel did not keep him adequately apprised of
important developments in his case. He claims that counsel only met with him for a total of fifteen
minutes and that he had no clear understanding of the proceedings and could not assist in his own
defense. The State argues that the petitioner has waived this argument; we agree.
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The petitioner cites no authority in support of this claim and makes no reference to the trial
record. In fact, the record belies the petitioner’s allegation. Trial counsel testified that he spent over
eighty hours on the petitioner’s case, including approximately 5.3 hours meeting with the petitioner.
Trial counsel’s time sheets for the case as an exhibit to the record. The post-conviction court held
that the petitioner did not establish that counsel failed to adequately communicate or confer with
him, and the record supports this determination.
CONCLUSION
For the foregoing reasons, the order of the post-conviction court is affirmed.
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ALAN E. GLENN, JUDGE
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