Raymon Haymon v. State of Tennessee ( 2006 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
April 11, 2006 Session
RAYMON HAYMON v. STATE OF TENNESSEE
Direct Appeal from the Circuit Court for Dyer County
No. C99-175A Lee Moore, Judge
No. W2005-01303-CCA-R3-PC - Filed July 20, 2006
The petitioner, Raymon Haymon, appeals from the denial of his petition for post-conviction relief.
On appeal, he raises thirteen issues regarding claims of ineffective assistance of counsel and the
violation of certain constitutional rights. Following our review of the record and the parties’ briefs,
including the petitioner’s reply brief, we affirm the judgment of the post-conviction court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
J.C. MCLIN , J., delivered the opinion of the court, in which NORMA MCGEE OGLE and ALAN E.
GLENN , JJ., joined.
W. Lewis Jenkins, Jr., Dyersburg, Tennessee, for the petitioner, Raymon Haymon.
Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney General;
C. Phillip Bivens, District Attorney General, for the appellee, State of Tennessee.
OPINION
BACKGROUND
The facts and procedural background of this case are set out in this court’s decision on direct
appeal as follows:
On July 19, 1997, the [petitioner] offered Wiled McMillin five hundred
dollars to help him kill Jody McPherson. According to McMillin, the [petitioner]
stated he wanted McPherson killed because “he didn’t wanna go back to prison.”
The [petitioner] and McPherson had previously been arrested for the aggravated
robbery of Pete’s Liquor Store. McMillin refused the offer, and the [petitioner]
stated he would get Terry Cork to help him. McMillin also testified that, later on that
evening, he saw the [petitioner], Terry Cork, and Jody McPherson riding in a red car
in the Middle City area.
Terry Cork testified that, on the evening of July 19th, he left work at 9:00
p.m. and went to his father’s house. Around 10:00 or 10:30 p.m., Cork walked to
Erline Warren’s house to watch television. During the evening, the [petitioner] drove
to Warren’s house and, thereafter, he and Cork left in a red vehicle driven by the
[petitioner]. The [petitioner] dropped Cork off at his aunt’s house and subsequently
returned with Jody McPherson in the car. The three men drove toward Middle City
under the pretext of “hang[ing] out and talk[ing] to some women.” Once en route,
the [petitioner] stated that he needed Cork and McPherson to help him look for a
discarded rifle in a field that would “take care of some business concerning the Pete’s
Liquor Store robbery.” Upon arrival at a field in Middle City, the men lit newspaper
torches and looked for the rifle. As they were searching, Cork observed the
[petitioner] shoot McPherson several times. Cork claimed that he began to run, but
the [petitioner] pulled a second gun on Cork and told him “that it was gonna be more
than one person out there dead if [Cork] didn’t listen to what [the petitioner] said.”
The [petitioner] then ordered Cork to also shoot McPherson. The [petitioner]
instructed Cork to wipe the guns off and “throw the guns off the side of a little bridge
that was out there, like a little creek.”
McPherson’s body was discovered the next morning with one visible wound
to the chest and two other wounds to the head and back. A cell phone was found at
the scene, which was linked to Cork. Cork and the [petitioner] were questioned by
the police, and both men denied any involvement in the murder. When the
[petitioner] was interviewed on July 20, 1997, he stated that he knew McPherson had
been shot three times, “one from the head, one from the chest, and one from the
back.” At this point, no details of the murder had been disclosed to the public. After
being taken into custody on a bank robbery charge in 1999, Cork confessed to his
involvement in McPherson’s death and helped the police recover one of the discarded
weapons used in the murder.
On June 14, 1999, a Dyer County grand jury indicted the [petitioner] for the
premeditated first degree murder of Jody McPherson. On March 9, 2001, after a trial
by jury, the [petitioner] was convicted as charged and was sentenced to life
imprisonment.
State v. Raymon Haymon, No. W2001-02797-CCA-R3-CD, 2003 WL 22080780, at *1-2 (Tenn.
Crim. App., at Jackson, Sept. 5, 2003). This court upheld the petitioner’s conviction on direct
appeal. Id. at *8. Thereafter, the petitioner filed a petition for writ of error coram nobis, alleging
that one of the witnesses at his trial had recanted his testimony. The trial court denied relief and this
court affirmed. Raymon Haymon v. State, No. W2003-02535-CCA-R3-CO, 2004 WL 1359024, at
*3-4 (Tenn. Crim. App., at Jackson, June 16, 2004). The petitioner then filed a timely petition for
post-conviction relief and later an amended petition. The post-conviction court conducted an
evidentiary hearing over the course of three days, during which the testimony of several witnesses
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was presented. We limit our recitation of the testimony to that which is relevant to the petitioner’s
allegations in this appeal.
At the post-conviction hearing, the petitioner’s trial counsel testified that he was unable to
recall many of the specific details of petitioner’s case. However, counsel recalled that he met with
the petitioner “a lot” in the preparation of his case and his overall impression was that the petitioner
was not guilty. Counsel stated that Terry Cork and Wiled McMillin’s testimony was critical to the
state’s case-in-chief. Counsel also remembered that the petitioner made a couple of statements when
he testified at trial “that didn’t set well with the jury.” Specifically, counsel recalled that the
petitioner said, “I was innocent until I was proven guilty,” during questioning regarding a prior
offense.
Counsel testified that he could not recall the exact amount of time he had to prepare for trial,
but he believed that he had an adequate amount of time to prepare. He said that another attorney,
a legal assistant, and himself were primarily involved in the petitioner’s case. Counsel stated he
believed he discussed with petitioner the possibility of testifying at trial because it was a big question
during the trial. Counsel stated he could not recall whether he requested a jury-out hearing to
confirm the petitioner’s desire to testify, but he remembered that at some point during the trial the
petitioner “came up with a strong insistent desire to testify.” Counsel said he and his staff prepared
the petitioner to testify, but they did not conduct a mock cross-examination. Counsel elaborated that
he could not have “dreamed up” the questions the prosecutor asked the petitioner which elicited the
response “I’m innocent until proven guilty.”
Counsel testified that he and his staff went through statements made by Cork and came up
with fifty-one inconsistencies. Counsel stated that he felt that he was able to point out Cork’s
inconsistencies during trial. Counsel explained that he made a visual aid to show Cork’s inconsistent
statements and thought the aid was used during closing argument. He said that he believed the way
he attacked Cork’s statements helped the petitioner.
In further discussing Cork, counsel specifically remembered that Cork made a statement to
Joel Cook where Cork said, “you’re looking at the person . . . that shot that n_gger,” referring to the
victim. When questioned about counsel’s interview with McMillin, counsel responded that although
he could not remember whether the petitioner was present during the interview, he was comfortable
with the interview. Counsel testified that he could not recall whether there was a tactical reason for
not cross-examining McMillin about his testimony regarding the petitioner’s request for help in
killing the victim. Counsel further testified he could not recall whether he knew that McMillin
suffered from schizophrenia, but acknowledged McMillin changed his story at trial.
On cross-examination, counsel reiterated that he and his staff met with the petitioner
numerous times in preparation of the case. Counsel recalled that he investigated Cork’s inconsistent
statements and believed he introduced all five of Cork’s pretrial statements into evidence at trial.
Counsel stated that Cork’s statements totaled ninety-four pages, making it difficult to select a
specific contradiction to impeach Cork during his testimony.
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Regarding McMillin, counsel admitted that he was aware of McMillin’s prior statement
implicating the petitioner. However, counsel said he believed McMillin was truthful when he said
his prior statement to police was untruthful and that the petitioner was actually innocent. Counsel
“vaguely remember[ed]” attempting to impeach McMillin when he reverted to his original story on
the witness stand. Counsel recalled that the petitioner presented an alibi defense that he was at the
Short Stop Market during the time in question. Counsel also remembered calling the petitioner’s
brothers, mother, and wife to help establish his alibi.
The petitioner testified that counsel represented him for the twenty months between
indictment and trial. The petitioner recalled that while he spent a lot of time at counsel’s office, he
spent more time with co-counsel. The petitioner remembered he took McMillin to counsel’s office
to make a statement during which McMillin informed counsel that he suffered from schizophrenia.
The petitioner stated that he went over all of Cork’s statements with counsel and co-counsel and
pointed out various inconsistencies. He recalled that counsel’s legal assistant prepared a list of
inconsistencies and was told it would be used as a demonstration to the jury. The petitioner said that
during the cross-examination of Cork, he “didn’t feel like it was going well” because counsel
“wasn’t catching him in those lies like it was on the paper.” The petitioner thought that Cork’s five
statements would only be used for impeachment purposes rather than as substantive evidence.
Regarding his decision to testify, the petitioner stated that counsel told him “the case was
gonna . . . boil down to [his] word against Terry Cork’s word . . . and that if [he] got up there that
he could show the jury that . . . he was living a different life.” The petitioner admitted that counsel
warned him that the state could bring up his past criminal record if he chose to testify. The petitioner
testified that he knew the state was going to argue that the petitioner’s motive for killing the victim
was to prevent the victim from testifying against him regarding a liquor store burglary. The
petitioner pointed out, however, that he took a plea on that charge in spring of 1998 and received two
years of probation.
On cross-examination, the petitioner testified that he took notes during Cork’s testimony and
pointed out some of the inconsistencies to his counsel while Cork was testifying. According to the
petitioner, counsel never questioned Cork about those inconsistencies.
Co-counsel testified that she talked to witnesses, met with the petitioner, and looked through
the prosecutor’s file on at least two occasions. She admitted that the petitioner’s trial was her first
murder trial. Co-counsel remembered that the defense theory at trial was that someone else had
committed the murder. She recalled that they had the tape of a conversation between Joel Cook and
Cork in which Cork admitted to committing the murder. However, the petitioner would not pay to
have Cook brought in from federal custody in New York for trial, so the parties stipulated as to what
Cook would have testified by entering a statement into evidence.
Co-counsel stated that she remembered they had a blown-up list of the inconsistencies in
Cork’s statements, but she did not know why counsel did not use the aid at trial. Co-counsel recalled
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that counsel did question Cork about the “different lies he had told” and she believed counsel kept
up with the inconsistencies as he questioned Cork. Co-counsel recollected that Reginald King gave
a statement to officers, but Cork entered the room during King’s statement and tried to convince
King that the gun King sold him was a different type than King had remembered. Co-counsel denied
telling the petitioner that he should make a claim of ineffective assistance of counsel.
On cross-examination, co-counsel testified that she and counsel discussed with the petitioner
the pros and cons of testifying at trial and explained the types of questions he was likely to receive.
Co-counsel remembered that she and counsel consulted with the petitioner as the trial progressed
about questions to ask the witnesses or any other evidence that needed to be brought out. Co-counsel
also recalled that she spent a tremendous amount of time attempting to get Cook transported from
New York to testify about his conversation with Cork.
Tennessee Bureau of Investigation Agent Brent Booth testified that there was a cigarette butt
found near the victim’s body and the DNA on it did not match Cork, the victim, or several other
individuals. However, Booth did not recall whether the petitioner’s DNA was ever compared to the
DNA on the cigarette butt. On cross-examination, Booth pointed out that testing the petitioner’s
DNA would not have necessarily excluded him as a suspect. Booth also testified that counsel
requested his assistance in attempting to locate Cook.
Dyer County criminal investigators Terry McCreight and Calvin Johnson testified that they
conducted a pretrial interview with King and Cork. Neither investigator could recall whether anyone
from counsel’s office contacted them regarding the circumstances of that interview.
Appellate counsel testified that he and another attorney were hired to take over the
petitioner’s case during the motion for new trial and appeal. They handled the motion for new trial,
but the petitioner discharged them during the preparation for the appeal. Appellate counsel recalled
that he identified numerous issues to raise in the motion for new trial and on appeal.
Wiled McMillin testified that he was diagnosed with schizophrenia prior to 1999 and was
taking medication for it. McMillin recalled that he was interviewed by counsel and was never
questioned about whether he was schizophrenic. On cross-examination, McMillin admitted that he
did not remember ever telling his public defender or the prosecutor that he suffered from
schizophrenia. However, McMillin maintained that he informed the petitioner, but he could not
recall whether the petitioner advised counsel of his illness.
The petitioner testified in rebuttal that he informed counsel prior to trial that McMillin
suffered from schizophrenia. According to the petitioner, counsel told him if McMillin’s illness
could be treated with medication it would not be useful in impeaching McMillin’s testimony. On
cross-examination, the petitioner testified that counsel and counsel’s legal assistant were in the room
when McMillin said that he was schizophrenic.
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Counsel’s legal assistant testified in rebuttal for the state that she was present throughout
McMillin’s entire statement and did not hear any mention of McMillin’s illness. On cross-
examination, the legal assistant admitted that she was not present during a subsequent meeting
between counsel and McMillin that took place at the jail.
The parties stipulated that Janie Jeffries was one of the African-American members of the
jury and that she could not read.
In denying the petitioner’s request for post-conviction relief, the post-conviction court found
as follows:
From the testimony in the post-conviction trial, it is obvious that lead counsel
and second chair along with their assistants spent many hours in trial preparation.
In the trial transcript, [counsel] states during opening statement, “You will see
in the proof a little later that during the course of giving not one, but five different
statements to law officers, Mr. Cork told fifty-one lies.” The trial transcript also
reveals that [counsel] conducted a very rigid cross-examination of witness, Terry
Cork. All of the prior Cork statements were introduced into evidence. [Counsel]
was not allowed by the Court to use the blow-ups because they were paraphrases and
not actual excerpts from the statements. [Counsel] went over each of the prior pre-
trial statements given by Terry Cork and the inconsistencies of these statements from
his trial testimony. He questioned Mr. Cork about various inconsistencies including,
but not limited to denying ever being at the scene of the shooting; admitting being
present at the time of the shooting; denying knowing where the guns involved were
located; telling officers where the guns were located; pointing out that there were no
admissions by Terry Cork until after he was arrested on a bank robbery charge;
[counsel] adequately pointed out that he received a sentence for second degree
murder involving Jody McPherson that ran concurrently with his bank robbery charge
[and] stated as follows: “So, you get two for the price of one, don’t you?” Mr. Cork
then stated, “Yes, sir.” He cross-examined Mr. Cork about not seeing Wiled
McMill[i]n on the night of the murder. He also questioned him about the latex
gloves that were found at the scene. At the end of his cross-examination of Terry
Cork, [counsel] conferred with [the petitioner] and then questioned Cork about gang
affiliations. Gang affiliations of Cork and McPherson were significant in attempting
to point out a motive for Cork to have committed the murder.
It is also significant to note from the trial transcript that [counsel] in his
closing arguments argued burden of proof, reasonable doubt and the requirement of
the jury to make a decision that would not be based on speculation. He argued the
conflict between Cork’s testimony of the murder and the timing of the murder along
with a video from Shortstop Convenient Store supposedly giving [the petitioner] an
alibi. He set up columns on the black board for [the petitioner], Cork and
McMill[i]n, although the transcript does not show how those columns were used. He
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argued discrepancies in Cork’s testimony about the positioning of the McPherson
body. He argued the different theories of possible guilt of Fred Cole, and
inconsistencies of the McMill[i]n testimony and prior pre-trial statements. He
referred to various statements of Terry Cork and [the] deal that Terry Cork received
from the State for his testimony. He argued the accomplice rule and lack of
corroboration. He argued other motives for the murder of Mr. McPherson including
gang affiliation motives. He referred to his blow up of the fifty-one discrepancies
and advised the jury that if they would take a look at the pre-trial statements of Cork
they could see these contradictions. He asked the jury during their deliberations to
review the statements instead of reviewing the boards showing the blow-ups. He
summarized the testimony of [the petitioner’s] family members.
The Court finds, therefore, that petitioner has failed to carry his burden of
proof in showing that his attorney’s performance was deficient or resulted in any
prejudice so as to deprive him of a fair trial. The Court finds that the performance
of [counsel] and [co-counsel] was well within the range of competence demanded of
attorneys in criminal cases. The proof is clear and convincing that trial counsel spent
many hours in pre-trial preparation. The Court also finds that the opening statement
and closing arguments were effective and well within the wide range of acceptable
professional assistance. Trial counsel effectively engaged witnesses, Terry Cork and
Wiled McMill[i]n, in rigid cross-examination pointing out the various contradictions
in their pre-trial statements and their trial testimony. Any failure on the part of trial
counsel to cover credibility issues on closing argument would be in the form of trial
strategy rather than ineffective assistance of counsel.
The statement of Terry Cork taken by informant, Joel Cook, wherein Mr.
Cork states that Cork killed McPherson was introduced and available to the jury
during their formal deliberations.
It also appears to the Court that trial counsel made an effective attempt or
effort to undermine the State’s motive for the murder of Jody McPherson. Petitioner
simply fails to carry his burden of proof in showing ineffective assistance of counsel
by his trial counsel. There also is no showing of any prejudice even if ineffective
assistance had been shown.
[Counsel] does not recall ever having been advised that Wiled McMill[i]n
suffered from schizophrenia. [The petitioner] states that he advised [counsel] that
Wiled McMill[i]n suffered from schizophrenia. [Counsel’s legal assistant] denies
that they were ever advised that McMill[i]n suffered from schizophrenia. Even if
McMill[i]n was suffering from schizophrenia there is no showing by the petitioner
that there was any prejudice to his case based on this finding. There is no showing
that the pre-trial statement of Wiled McMill[i]n was coerced by law enforcement
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officers. McMill[i]n was carefully cross-examined by trial counsel. The Court finds
no deficiency in trial counsel’s efforts to attack the credibility of McMill[i]n.
The Court finds that adequate discussion and advice regarding [the
petitioner’s] right to testify or to refuse to testify was given both prior to trial and
during trial. [The petitioner] made the decision to testify knowing his fifth
amendment rights. He simply failed to hold up well on cross-examination.
[Appellate counsel] prepared and filed a Motion for New Trial and an
Amended Motion for New Trial after [trial counsel] had been discharged by [the
petitioner]. The Court finds that the efforts of [appellate counsel] were well within
the range of competence demanded of attorneys in criminal cases. Petitioner fails to
show any deficient performance on the part of [appellate counsel] or any prejudice.
Petitioner may have been prejudiced on appeal because appeal was pursued on a pro
se basis. The Court, however, feels the petitioner was the author of his own injury,
if any, on appeal as the proof was quite clear that he voluntarily terminated and
discharged [appellate counsel] prior to the time that the appellate brief was filed. The
Court of Criminal Appeals allowed [appellate counsel] to withdraw from the case
because of the terminations.
The Court is concerned that the charge read by the Court as shown on Page
1014 of the trial transcript at Line 3, reads that the petitioner “should be found
guilty.” After reading the charge in its entirety, however, it is clear that this was an
error and the jury was adequately charged about finding the [petitioner] either guilty
or not guilty based on the evidence and the law as charged by the Court. Based on
the foregoing, the Court denies the petition . . . for post-conviction relief.
STANDARD OF REVIEW
In order for a petitioner to succeed on a post-conviction claim, the petitioner must prove the
allegations set forth in his petition by clear and convincing evidence. Tenn. Code Ann. §
40-30-110(f). On appeal, this court is required to affirm the post-conviction court’s findings unless
the petitioner proves that the evidence preponderates against those findings. State v. Burns, 6
S.W.3d 453, 461 (Tenn. 1999). Our review of the post-conviction court’s factual findings is de novo
with a presumption that the findings are correct. Fields v. State, 40 S.W.3d 450, 457-58 (Tenn.
2001). Our review of the post-conviction court’s legal conclusions and application of law to facts
is de novo without a presumption of correctness. Id.
To establish ineffective assistance of counsel, the petitioner must show that (1) counsel’s
performance was deficient and (2) the deficient performance prejudiced the defense rendering the
outcome unreliable or fundamentally unfair. Strickland v. Washington, 466 U.S. 668, 687 (1984);
see also Arnold v. State, 143 S.W.3d 784, 787 (Tenn. 2004). Deficient performance is shown if
counsel’s conduct fell below an objective standard of reasonableness under prevailing professional
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standards. Strickland, 466 U.S. at 688; see also Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)
(establishing that representation should be within the range of competence demanded of attorneys
in criminal cases). Prejudice is shown if, but for counsel’s unprofessional errors, there is a
reasonable probability that the outcome of the proceeding would have been different. Strickland,
466 U.S. at 694. If either element of ineffective assistance of counsel has not been established, a
court need not address the other element. Id. at 697; see also Goad v. State, 938 S.W.2d 363, 370
(Tenn. 1996). Also, a fair assessment of counsel’s performance, “requires that every effort be made
to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s
challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.” Strickland,
466 U.S. at 689; see also Nichols v. State, 90 S.W.3d 576, 587 (Tenn. 2002). The fact that a
particular strategy or tactical decision failed does not by itself establish ineffective assistance of
counsel. Goad, 938 S.W.2d at 369. However, deference is given to strategy and tactical decisions
only if the decisions are informed ones based upon adequate preparation. Id. (citations omitted).
ANALYSIS
On appeal, the petitioner presents thirteen issues for our review, including a number of one-
paragraph blanket contentions. We will address the petitioner’s issues as follows:
I. Trial counsel was ineffective for telling the jury during his opening statement that Cork, the
co-defendant and key state witness, told “fifty-one lies” but failed to demonstrate fifty-one
inconsistencies to the jury.
II. Trial counsel was ineffective for failing to thoroughly cross-examine Cork regarding the
numerous inconsistencies found in his five pretrial statements and trial testimony.
III. Trial counsel was ineffective for failing to discover that a member of the jury could not read
before urging the jury to “see the contradictions for themselves.”
IV. Trial counsel was ineffective for failing to discover that McMillin, a key state witness,
suffered from schizophrenia.
V. Trial counsel was ineffective for failing to request that Cork’s pretrial statements only be
admitted for impeachment purposes.
VI. Trial counsel was ineffective for failing to have Cook’s statement regarding Cork’s
incriminating admission read aloud.
VII. Trial counsel was ineffective for failing to pursue an alternate theory that Cork committed
the crime alone.
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VIII. Trial counsel was ineffective and his constitutional right against self-incrimination was
violated when counsel failed to adequately prepare him to testify at trial and did not request
a jury-out Momon hearing prior to him testifying.
IX. Trial counsel was ineffective for failing to object to the trial court’s misstatement in the jury
instruction.
X. He received the ineffective assistance of appellate counsel.
XI. He received the ineffective assistance of counsel based on the cumulative error.
XII. His due process rights were violated because a juror who could not read was asked to
consider significant documentary evidence during deliberation.
XIII. His due process rights were violated by the trial court’s misstatement in the jury instruction.
I.
The defendant first argues that trial counsel was ineffective for telling the jury during his
opening statement that he would demonstrate Cork told “fifty-one lies” but “failed utterly to
accomplish that.” In support of his argument, the petitioner relies on State v. Zimmerman, 823
S.W.2d 220 (Tenn. Crim. App. 1991), where a panel of this court determined that trial counsel was
ineffective based on cumulative error, which included counsel’s making a promise to the jury during
opening statement then changing strategy in the middle of the trial without a sound reason. Id. at
226-28.
Initially, we note that Zimmerman is distinguishable from the case at hand. In Zimmerman,
counsel promised the jury they would hear proof about a battered-wife syndrome defense; yet no
proof was presented. Whereas, in this case, counsel did not abandon a defense mid-trial, but instead,
counsel did not perfectly achieve the development of his defense strategy.
Our review of the record reveals that counsel’s cross-examination of Cork consumes over
seventy pages of trial transcript. The record further shows that counsel moved Cork’s statements
into evidence and went through portions of each statement and questioned Cork about a number of
inconsistencies between the statements. While we caution that making promises during opening
statements is a dangerous practice, it is our view that counsel’s failure to point out exactly fifty-one
inconsistencies does not mean his representation fell below the objective standard of reasonableness
demanded of an attorney in a criminal case. The idea behind counsel’s opening statement was to
attack Cork’s credibility, and counsel diligently worked to fulfill that endeavor. A defendant is not
entitled to perfect representation, only constitutionally adequate representation. See Denton v. State,
945 S.W.2d 793, 796 (Tenn. Crim. App. 1996). Accordingly, the petitioner has failed to show by
clear and convincing evidence that counsel’s performance was deficient in this regard.
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II.
The petitioner argues that trial counsel was ineffective in failing to thoroughly cross-examine
Cork and not utilizing visual aids during Cork’s cross-examination. The specific areas the petitioner
argues deficiency are: (1) Cork’s statements concerning how he came into possession of a gun on
July 20, 1997; (2) Cork’s statements about the details of the shooting; (3) the number of times Cork
claimed he pulled the trigger; (4) Cork’s statements about a rifle found in Middle City; and (5)
Cork’s statements about leaving the scene of the shooting and going to Dyersburg. The crux of the
petitioner’s argument is that counsel was deficient in his cross-examination of Cork because counsel
was not prepared.
First, the record reflects that counsel was prepared to conduct his cross-examination of Cork.
Testimony from the post-conviction hearing indicated that counsel spent a tremendous amount of
time over a twenty-month time period preparing for trial. Counsel and his staff poured over Cork’s
five statements and discussed the inconsistencies in the statements with the petitioner.
Second, counsel’s cross-examination of Cork was vigorous. While counsel may have failed
to touch upon the five specific inconsistencies listed by the petitioner, counsel did capitalize on
numerous inconsistencies in an effort to undermine Cork’s credibility. The fact that counsel failed
to impeach Cork on every inconsistency does not demonstrate deficient performance of counsel.
Additionally, counsel’s failure to utilize visual aids does not demonstrate deficient
performance and in fact the petitioner offers no authority for this theory. In our view, the
inconsistencies in Cork’s five statements were brought out during cross-examination and were
reviewable after the statements were entered into evidence. Counsel should not be deemed to have
been ineffective merely because he failed to employ additional modes of impeachment which may
or may not have produced a different result. See Williams v. State, 599 S.W.2d 276, 279-80 (Tenn.
Crim. App. 1980). Again, a defendant is only entitled to constitutionally adequate representation,
not perfect or error-free representation. See Denton, 945 S.W.2d at 796. Thus, the petitioner has
failed to show by clear and convincing evidence that counsel was deficient in his cross-examination
of Cork.
III.
The petitioner argues that trial counsel was ineffective for failing to determine whether a
juror could read before urging the jury to “see the contradictions [in Cork’s statements] for
themselves.” First, the petitioner has failed to show exactly how counsel’s performance was
deficient for failing to uncover this fact. Defense counsel is not required to be omniscient.
Therefore, we are hesitant to find that an attorney is deficient for failing to question potential jurors
about their literacy during the voir dire process.
Second, we note that the Tennessee Supreme Court was asked to determine a similar issue
in Kirkendoll v. State, 281 S.W.2d 243 (Tenn. 1955). In Kirkendoll, our supreme court examined
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the issue of whether it was error to have a written jury charge when a member of the jury could not
read. The court observed that “other jurors if necessary could read . . . to that juror who could not
read while in the jury room.” Id. at 255. The court concluded that there was no error as long as the
written material was in the jury room and other members of the jury could read. See id. We find the
reasoning in Kirkendoll applicable to this case.
Moreover, the petitioner has not provided any evidence demonstrating how he was prejudiced
by a singe juror’s inability to read. Here, many of Cork’s inconsistent statements were brought to
the jury’s attention during cross-examination. Also, the petitioner provided no evidence that the
juror’s illiteracy influenced the deliberation process. See State v. Cauthern, 967 S.W.2d 726, 747-48
(Tenn. 1998) (Appendix) (applying the reasoning in Kirkendoll and stating that the defendant failed
to point to anything in the record demonstrating that he suffered prejudice as a result of a juror’s
illiteracy). Accordingly, the petitioner is not entitled to relief on this issue.
IV.
The petitioner argues that trial counsel was ineffective for failing to discover that McMillin,
the state’s key witness, suffered from schizophrenia. In making this argument, the petitioner
apparently asserts that McMillin’s testimony should have been impeached by addressing McMillin’s
schizophrenic behavior in making contradictory statements concerning the petitioner’s guilt. In
addressing this issue, we first note that although the petitioner avers that he informed counsel of
McMillin’s illness, neither counsel nor his legal assistant recalled being so informed. In fact,
McMillin stated that he never told his attorney or the prosecutor about his schizophrenia, and he
could not recall whether the petitioner told his counsel about the illness. Without some indication
on McMillin’s part that would have put counsel on notice that McMillin had a mental illness, we fail
to see how counsel’s cross-examination could be considered deficient. See Jimmy Rogers v. State,
No. W1999-1453-CCA-R3-PC, 2000 WL 1230249, at *2 (Tenn. Crim. App., at Jackson, Aug. 22,
2000), perm. app. denied (Tenn. Mar. 12, 2001) (holding that it was not ineffective assistance for
counsel to not request a mental evaluation when there was no indication that the defendant was
incompetent or suffering from a mental illness). The petitioner has failed to show that counsel knew
or should have known that McMillin was schizophrenic.
Furthermore, we do not see how the petitioner was prejudiced by any alleged deficiency.
McMillin testified that he took medicine to control his mental illness which lessened any potential
impeachment value, and counsel mounted an otherwise vigorous cross-examination of McMillin.
Accordingly, the petitioner has failed to prove by clear and convincing evidence that counsel was
ineffective for failing to discover that McMillin suffered from a mental illness or that such
ineffectiveness caused him prejudice.
V.
The petitioner argues that trial counsel was ineffective for failing to ask the court to admit
Cork’s pretrial statements only for impeachment purposes and not as substantive evidence. The
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petitioner failed to provide any argument as to how such alleged deficiency caused him prejudice.
Accordingly, the petitioner has failed to prove by clear and convincing evidence that counsel was
ineffective in this regard.
VI.
The petitioner argues that trial counsel was ineffective in his handling of informant Cook’s
conversation with Cork in which Cork admitted to shooting the victim. The petitioner contends that
counsel should have read the entire statement detailing this conversation aloud so the jury could see
“the full effect of the statement,” instead of referencing portions of the statement, then allowing the
jury to analyze the statement itself.
From our review, it appears that counsel thoroughly cross-examined Cork about his
conversation with Cook. Moreover, the statement was entered into evidence as an exhibit, allowing
the jury to fully explore the conversation. The petitioner argues that the failure to have the statement
read aloud was “very critical” because one juror was unable to read. However, as noted earlier, other
jurors could read and discuss the statement with that juror, and counsel’s extensive cross-
examination of Cork brought out much of the crucial substance of the conversation. Additionally,
we reiterate that counsel should not be deemed ineffective for employing a different strategy or tactic
than the petitioner now claims as preferable. Thus, the petitioner is not entitled to relief on this
issue.
VII.
The petitioner argues that trial counsel was ineffective for failing to fully pursue the theory
that Cork committed the murder alone. We do not see how counsel’s failure to pursue every possible
theory amounts to constitutionally deficient performance. To reiterate, counsel’s performance is
evaluated without “the distorting effects of hindsight.” Strickland, 466 U.S. at 689. Here, counsel
made an informed tactical decision to discredit Cork’s testimony regarding the petitioner’s
involvement in the murder. The fact that a particular strategy or tactical decision failed does not by
itself establish ineffective assistance of counsel. Goad, 938 S.W.2d at 369. Accordingly, the
petitioner is not entitled to relief on this issue.
VIII.
The petitioner argues that counsel was ineffective for failing to adequately prepare him to
testify at trial. The petitioner also argues that his constitutional right against self-incrimination was
violated because counsel did not request a Momon jury-out hearing prior to his testifying to
determine whether his waiver was knowing and voluntary.
First, we fail to see any deficiency on the part of counsel in preparing the petitioner to testify
at trial. At the post-conviction hearing, counsel testified that he prepared the petitioner to testify.
Co-counsel also testified that she recalled discussing the pros and cons of testifying with the
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petitioner as well as the types of questions he might be asked. The petitioner relies on the fact
counsel did not prepare him via a mock cross-examination. However, a mock cross-examination is
not the only method of preparing one’s client to testify.
Second, no Momon error exists because the petitioner chose to testify. Momon requires a
jury-out voir dire of a defendant to ensure that the defendant is voluntarily and knowingly waiving
his right to testify. See Momon v. State, 18 S.W.3d 152, 161-62 (Tenn. 1999). We do not read
Momon to require a jury-out voir dire prior to the defendant’s exercising his or her right to testify.
Indeed, the language in Momon itself, “in every trial where the defendant does not testify, the trial
court should allow, and indeed require, defense counsel to employ the following procedure,”
supports this reading. Id. at 162 (emphasis added). Moreover, the post-conviction court found that
the petitioner received adequate advice regarding his right to testify and made the decision to testify
knowing his Fifth Amendment rights. The evidence does not preponderate against that finding.
IX.
The petitioner argues that trial counsel was ineffective for failing to object to a jury
instruction that the petitioner “should be found guilty.” The petitioner, however, has failed to
provide any argument or authorities in support of this contention. “Issues which are not supported
by argument, citation to authorities, or appropriate references to the record will be treated as waived
in this court.” Tenn. Ct. Crim. App. R. 10(b); see also State v. Schaller, 975 S.W.2d 313, 318 (Tenn.
Crim. App. 1997).
X.
The petitioner argues that he received the ineffective assistance of appellate counsel.
However, the record reflects, and the post-conviction court found, that the petitioner voluntarily
discharged his appellate counsel prior to his brief being due. As noted by the post-conviction court,
the petitioner was the “author of his own injury.” Accordingly, the petitioner has failed to prove by
clear and convincing evidence that he received the ineffective assistance of appellate counsel.
XI.
The petitioner argues that he received the ineffective assistance of counsel based on the
cumulative error. In light of our previous determinations, this issue is without merit.
XII. AND XIII.
Lastly, the petitioner argues that his due process rights were violated because a juror who
could not read was asked to consider significant documentary evidence and because the trial court
gave a jury instruction that he “should be found guilty.” Initially, we note that the petitioner has
waived these issues for failing to raise them in a motion for new trial or on direct appeal. See Tenn.
Code Ann. § 40-30-106(g). Notwithstanding waiver, we conclude these issues have no merit.
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First, the petitioner has failed to demonstrate by clear and convincing evidence that he was
prejudiced by a single juror’s inability to read. As noted previously, it is not error per se to have a
member of the jury who cannot read. Kirkendoll, 281 S.W.2d at 524-25. The petitioner has not
presented proof of how the juror’s inability to read affected her deliberation and understanding of
the evidence. Instead, the petitioner broadly asserts that “it was impossible for her to read and
understand the mass of documentary evidence present.” As such, the petitioner has not demonstrated
any violation of his due process rights.
Regarding the jury instruction, the record indicates that the charge was not prejudicially
erroneous although it contained a misstatement.1 The trial court’s charge read in part:
The punishment for this offense is death, life imprisonment, or life
imprisonment without the possibility of parole. The State, however, is not seeking
the death penalty, and, therefore, you should return a verdict of guilty. After a
separate hearing, you will impose a sentence of life imprisonment without the
possibility of parole, or life in prison.
On the other hand, if you find the defendant not guilty of first degree murder,
or if you have a reasonable doubt thereof, then your verdict must be not guilty as to
this offense, and then you will proceed to determine his guilt or innocence of the
lesser included offense of second degree murder.
In reviewing a claimed error in the jury charge, this court reviews the charge in its entirety,
read as a whole. State v. Leach, 148 S.W.3d 42, 58 (Tenn. 2004). This court can find error only if,
when read as a whole, the charge fails to fairly submit the legal issues or misleads the jury as to the
applicable law. State v. Phipps, 883 S.W.2d 138, 142 (Tenn. Crim. App. 1994). Read as a whole,
it is our view that despite the misstatement, the charge clearly instructed the jury on its duty and did
not inform the jury that it should find the petitioner guilty. Accordingly, the petitioner is not entitled
to relief on either of these issues.
CONCLUSION
Upon our review of the record and the parties’ briefs, we conclude there is nothing in the
record that preponderates against the trial court’s finding that the petitioner received the effective
assistance of counsel. Furthermore, our review revealed no violation of the petitioner’s
constitutional rights. Therefore, we affirm the post-conviction court’s denial of post-conviction
relief.
1
W e note that the petitioner failed to include a written copy of the jury charge in the record on appeal.
Therefore, our analysis is based on the jury charge as reflected in the trial transcript.
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___________________________________
J.C. McLIN, JUDGE
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