Jim Hudgins v. State of Tennessee ( 2020 )

12/22/2020
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs July 29, 2020
JIM HUDGINS v. STATE OF TENNESSEE
Appeal from the Criminal Court for Knox County
No. 111382 Bobby R. McGee, Judge
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No. E2019-02173-CCA-R3-PC
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The Petitioner, Jim Hudgins, appeals the Knox County Criminal Court’s denial of his
petition for post-conviction relief, seeking relief from his conviction of first degree
premediated murder and resulting life sentence. On appeal, the Petitioner contends that he
received the ineffective assistance of counsel because trial counsel failed to present
evidence that he was too intoxicated to form the requisite intent for premeditation. Based
upon the record and the parties’ briefs, we affirm the judgment of the post-conviction court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
NORMA MCGEE OGLE, J., delivered the opinion of the court, in which JAMES CURWOOD
WITT, JR., and D. KELLY THOMAS, JR., JJ., joined.
Gerald L. Gulley, Jr., Knoxville, Tennessee, for the appellant, Jim Hudgins.
Herbert H. Slatery III, Attorney General and Reporter; Renee W. Turner, Senior Assistant
Attorney General; Charme P. Allen, District Attorney General; and Takisha Fitzgerald,
Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
I. Factual Background
On October 16, 2013, the Petitioner shot and killed the victim, Larry Turner. In
August 2014, a Knox County jury convicted the Petitioner of first degree premeditated
murder.
The Petitioner appealed his conviction to this court, and we have summarized the
facts from this court’s opinion as follows: The Petitioner and Laura Swaggerty were in a
relationship sixteen years before the shooting and had a daughter (hereinafter “the
daughter”). State v. James K. Hudgins, No. E2015-01363-CCA-R3-CD, 2016 WL
4413281, at *1 (Tenn. Crim. App. at Knoxville, Aug. 18, 2016), perm. app. denied, (Tenn.
Oct. 19, 2016). Ms. Swaggerty ended her relationship with the Petitioner three months
after the daughter was born, and Ms. Swaggerty began dating the victim in December 2011.
Id. At the time of the shooting, the victim, Ms. Swaggerty, the daughter, and the victim’s
son lived in a home on Churchwell Avenue. Id. The daughter testified at trial that she
eventually came to regard the victim as a second father, and Ms. Swaggerty testified that
the Petitioner and the victim “had always interacted peacefully and civilly” prior to the
shooting. Id.On the evening of the shooting, the Petitioner got into a confrontation with the
victim outside of Ms. Swaggerty’s mother home. See id. at *1-2. Ms. Swaggerty and the
daughter, who also were outside, testified that the Petitioner appeared to be intoxicated.
Id. at *1. Some of the Petitioner’s friends pulled him away from the confrontation. Id. at
*2. The Petitioner and a female companion drove away from the scene, and the Petitioner
returned to his own home. Id.
The Petitioner telephoned the victim, and Ms. Swaggerty heard the victim say,
“‘Hmm, you’re going to kill me. Okay. You know where I’m at.’” Id. During the call,
the victim handed his telephone to the daughter and asked if he had ever molested her. Id.
The daughter told the Petitioner that the victim had never molested her. Id. Ms. Swaggerty
testified that prior to that night, she had never heard the Petitioner allege that the victim
had molested the daughter. Id. The daughter testified that the victim had never touched
her inappropriately. Id.
The Petitioner’s son and mother arrived at the Petitioner’s home while the Petitioner
was on the telephone with the victim. Id. The Petitioner’s son testified that he heard the
Petitioner speaking with someone. Id. The Petitioner “‘looked angry’” and said into the
telephone that he “‘was going to kill [the person].’” Id. After the call, the Petitioner asked
his mother to drive him to the daughter’s house and said he was “‘going to shoot the bastard
that molested [his] daughter.’” Id. The Petitioner’s mother began driving the Petitioner
and the Petitioner’s son to the daughter’s house. Id. The Petitioner’s mother said she
needed to use the restroom, stopped at a Kroger grocery store, and went inside and called
the police. Id. The Petitioner and his son remained outside in the vehicle. Id. While they
were waiting for the Petitioner’s mother to return, the Petitioner told his son that the
Petitioner was “‘probably going to die with’” the victim and that the Petitioner was going
to give the victim “‘a one-way ticket to heaven.’” Id.
Knoxville Police Department Officer Jeremy Moses arrived at the Kroger at 9:12
p.m., approached the vehicle, and spoke with the Petitioner. Id. at *3. Officer Moses told
the Petitioner that he had received a call that a person in the vehicle was behaving
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suspiciously. Id. Officer Moses said that the Petitioner appeared “quite intoxicated” and
that he asked the Petitioner how much the Petitioner had had to drink. Id. The Petitioner
never provided a specific amount and did not say the daughter was being molested. Id.
Another officer went into the Kroger and returned with the Petitioner’s mother. Id. At that
point, the officers learned about allegations that the daughter was being molested and
learned the daughter’s address. Id. The officers left the Kroger parking lot at 9:35 p.m.
and went to a home on Churchwell. Id. They knocked on the doors and windows but did
not receive a response. Id. Meanwhile, the Petitioner’s mother drove the Petitioner and
his son back to the Petitioner’s residence. Id. The Petitioner and his son went inside, and
the Petitioner’s mother left. Id.
The Petitioner’s son testified that the Petitioner was “‘just pacing’” in the living
room, that he did not speak to the Petitioner because he did not want to upset the Petitioner,
and that he knew the Petitioner was “emotionally fragile.” Id. The Petitioner told his son,
who had a learner’s permit, that they should “‘go riding’”; handed his son the keys; and
suggested that they drive by the daughter’s house to see if anyone was home. Id. at *3.
The Petitioner’s son drove the Petitioner to the daughter’s residence, and the Petitioner
attempted to telephone her. Id. at *4. The victim answered the telephone and told the
Petitioner that the Petitioner could not speak with the daughter because she was sleeping.
Id. The Petitioner’s son said that the Petitioner went onto the front porch and that the
Petitioner was “‘obviously mad.’” Id. Ms. Swaggerty heard the Petitioner “‘banging’” on
the door, heard the victim argue with the Petitioner, and heard the Petitioner accuse the
victim of molesting the daughter. Id. The daughter testified that she heard the Petitioner’s
voice and that he did not sound intoxicated. Id. Ms. Swaggerty, the daughter, and the
Petitioner’s son heard gunshots. Id. The Petitioner’s son testified that he heard “‘five
pops.’”
Ms. Swaggerty and the daughter ran outside to check on the victim, and the daughter
saw the Petitioner “‘walking away.’” Id. Several neighbors also heard the gunshots and
attempted to help the victim, who appeared to have been shot at least twice in the chest.
Id. One of the neighbors applied towels to the victim’s wounds to stop the bleeding, but
the blood stopped flowing and the victim stopped breathing several minutes later. Id.
The Petitioner’s son drove him from the scene, and the Petitioner said he needed to
go to Walmart to buy a new charger for his telephone. Id. After buying the charger, the
Petitioner had his son drive him to the home of friends Dennis and Diane Graves. Id. The
Petitioner’s son testified that the Petitioner was not intoxicated at that time and that he
would have known if the Petitioner was “drunk.” Id.
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The Petitioner arrived at the Graves home about 1:00 a.m. and told them that he
“‘did something bad.’” Id. at *5. The Petitioner began crying, and Mr. and Mrs. Graves
convinced him to turn himself in to the police. Id.
The medical examiner who performed the victim’s autopsy testified that the victim
was shot five times and that several shots were fired at close range. Id. A forensic scientist
for the Tennessee Bureau of Investigation testified about four .40-caliber casings recovered
from the scene.1 Id. All of the .40-caliber casings were fired from the same handgun, most
likely a Glock or Smith & Wesson Sigma. Id.
Dennis Graves and the Petitioner testified for the defense. Id. Mr. Graves testified
that he talked with the Petitioner twice on the day of the shooting. Id. Mr. Graves said that
he first spoke with the Petitioner in the afternoon, that the Petitioner sounded “‘[s]mashed’”
and “‘[d]runk,’” and that the Petitioner “could barely speak and had slurred speech.” Id.
The Petitioner telephoned Mr. Graves later that evening and sounded “even more
intoxicated than he did during the first phone call.” Id. Mr. Graves stated that when the
Petitioner arrived at his home after the shooting, the Petitioner “appeared upset and
frustrated.” Id. The Petitioner began crying and told Mr. Graves, “‘I’ve done the most
horrible thing I could. God will never forgive me. . . . I’ve shot a man and I think he’s
dead.’” Id. Mr. Graves said the Petitioner had overheard a conversation between the
daughter and two of her friends in which the daughter claimed the victim was molesting
her. Id.
The Petitioner testified that on day of the shooting, he went to Applebee’s for lunch
and consumed six double vodkas. Id. About 2:00 or 3:00 p.m., the Petitioner drove home
“drunk.” Id. The Petitioner then went to a bar with a female friend and consumed seven
or eight drinks. Id. The Petitioner testified that he was “‘really drunk’” and that he did not
remember making his second telephone call to Mr. Graves. Id.
The Petitioner testified that he and his female friend ended up at a home across the
street from the daughter’s grandmother’s house and that he continued to consume alcohol.
Id. at *6. The Petitioner went across the street to ask the daughter, who was outside with
the victim and Ms. Swaggerty, if she was going to spend time with him during the
upcoming weekend. Id. The Petitioner testified that “‘[she] said that she had plans, but
when she did she got this kind of smirk on her face, and she glanced over at [the victim],
and he’s looking back at her, and they kind of pass this look. It was weird. It just wasn’t
right.’” Id. The Petitioner thought that something was “very ‘wrong’” and thought that
1
According to this court’s opinion, five casings were “recovered from the scene”: One Winchester
.380 casing and four .40-caliber casings. Id. However, our review of the trial transcript shows that the .380
casing was actually found in the victim’s pocket during the victim’s autopsy.
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the daughter was having sex with the victim. Id. The Petitioner accused the victim of
being “‘nothing but a child molester,’” and the victim did not respond to the Petitioner’s
statement. Id. The Petitioner’s friends led him away from the scene, and the Petitioner’s
female friend drove him home because he was too “drunk” to drive. Id.
The Petitioner testified that he continued drinking alcohol at his home and that he
telephoned the daughter. Id. The victim answered but would not let the Petitioner speak
with her. Id. The Petitioner said that the victim did not hand the telephone to the daughter
and that the daughter never told the Petitioner that the victim was not molesting her. Id.
The Petitioner’s mother and son arrived at his home, and the Petitioner remembered telling
the victim that he was going to kill the victim. Id.
The Petitioner testified that he asked his mother to drive him to the daughter’s home
and that they left in his mother’s van. Id. The Petitioner testified about stopping at Kroger
and said he never told his son that he was going to give the victim “‘a one-way ticket to
heaven.’” Id. The Petitioner talked with police officers in the Kroger parking lot. Id. He
told them that he thought the daughter was being molested and that the victim threatened
him. Id. The Petitioner acknowledged that the daughter never told him that the victim was
molesting her. Id.
After leaving Kroger, the Petitioner’s mother dropped him off at home, and he
resumed consuming alcohol. Id. Later that night, the Petitioner had his son drive him to
the victim’s house so that he could remove the daughter from the victim’s home. Id.
According to this court’s opinion, the Petitioner “recalled the precise route that they took
to get to the residence, identifying all of the streets on which they traveled.” Id. The
Petitioner approached the victim’s house about 11:00 p.m. and had his Glock .40-caliber
pistol in a holster on his hip. Id. The Petitioner said that he only went to the home to get
the daughter and that he had his gun “because the victim was much larger than he was.”
Id.
The Petitioner testified that he “‘pounded’” on the door. Id. at *7. The Petitioner
told the victim that he knew what was “‘going on,’” and the victim responded, “‘What if I
am? . . . Prove it.’” Id. The Petitioner removed his gun from its holster, pointed the gun at
the victim, and pulled the trigger. Id. The Petitioner said that after the shooting, he realized
he had “‘just made a terrible mistake’” and that he was so traumatized he could not think
clearly. Id. Nevertheless, he “agreed that he had been able to explain and recall the events
and conversations that preceded the killing and that he was able to point out portions of the
son’s, Ms. Swaggerty’s, and the daughter’s testimony that he believed were inaccurate.”
Id. The Petitioner also agreed “that despite his heavy drinking, he was able to clearly recall
details that preceded the killing.” Id.
-5-
The Petitioner testified that he went to Walmart to buy a new telephone charger so
that he could report the killing to the police. Id. After purchasing the charger, the Petitioner
made several telephone calls, including a call to his mother. Id. He disassembled his gun,
had his son pull over, and threw the gun into a lake. Id. The Petitioner recalled going to
the Graves home but said he did not tell Mr. Graves that he overheard the daughter tell her
friends that the victim was molesting her. Id. The Petitioner said the victim was the first
person he ever accused of molesting the daughter. Id.
Kellie Martin testified on rebuttal for the State that she worked at Applebee’s, that
she served the Petitioner on the day of the shooting, and that the Petitioner did not appear
to be “drunk.” Id. Ms. Swaggerty testified on rebuttal that when the daughter was four or
five months old, the Petitioner “would call the police and do welfare checks saying [the
daughter] was being molested.” Id. Finally, the daughter testified on rebuttal that she did
not have a conversation with her friends about the victim molesting her and that “she did
not give the victim a look as if she [were] having sexual intercourse with him.” Id. at *8.
After the jury convicted the Petitioner of first degree premeditated murder, the trial
court sentenced him to life in confinement. On appeal of his conviction to this court, the
Petitioner claimed that the evidence was insufficient to support the conviction, that the trial
court erred by admitting jailhouse telephone calls between the Petitioner and his mother
into evidence, and that the trial court erred by permitting testimony that the Petitioner
previously had accused someone of molesting the daughter. Id. This court affirmed the
Petitioner’s conviction. Id. at *12. In finding the evidence sufficient, this court explained,
in pertinent part, as follows:
The defendant argues that he was so intoxicated that he was incapable
of premeditation and that he should have been convicted of voluntary
manslaughter. While voluntary “intoxication itself is not a defense to
prosecution for an offense,” it “is admissible in evidence, if it is relevant to
negate a culpable mental state.” [Tenn. Code Ann.] § 39-11-503(a). Whether
the defendant’s intoxication negated his ability to premeditate and form the
intent to kill were questions for the jury to consider and resolve. State v.
Vaughn, 279 S.W.3d 584, 602 (Tenn. Crim. App. 2008). Similarly, whether
a “killing resulted from ‘a state of passion produced by adequate provocation
sufficient to lead a reasonable person to act in an irrational manner’ is a jury
question.” State v. Williams, 38 S.W.3d 532, 539 (Tenn. 2001) (quoting
[Tenn. Code Ann.] § 39-13-211(a)).
Here, the jury resolved both of these questions against the defendant.
He contends that the jury unreasonably rejected evidence of the copious
amount of alcohol that the defendant consumed on the day of the shooting,
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including the testimony of several of the State’s witnesses. While the
defendant testified that on the day of the shooting, he had been drinking all
day, and while the daughter and Ms. Swaggerty testified that he appeared
drunk during the confrontation in front of Ms. Swaggerty’s mother’s home,
there was also evidence to show that the defendant was not so intoxicated
that he was incapable of premeditation. The son testified that the defendant
did not appear drunk at the time of the shooting or after the shooting, and he
testified that he would know if the defendant was drunk. Similarly, the
daughter testified that the defendant did not sound drunk when he was
arguing with the victim just before the shooting. Further, the defendant was
able to recall the events that led up to and followed the shooting in great
detail, even identifying portions of the testimony that he believed were
inconsistent with his recollection of the night of the killing. The jury found
that the defendant’s intoxication did not negate his ability to premeditate and
form the intent to kill, and the evidence is sufficient to support that finding.
Similarly, the jury heard evidence that the defendant believed that the victim
was molesting the daughter. By their verdict of guilty to the charge of first
degree (premeditated) murder, the jury necessarily rejected the claim that the
defendant acted in “a state of passion produced by adequate provocation
sufficient to lead a reasonable person to act in an irrational manner.” [Tenn.
Code Ann.] § 39-13-211(a). This question was in the province of the jury,
and we conclude that the evidence is sufficient to support the defendant’s
conviction. He is not entitled to any relief.
Id. at *10.
After our supreme court denied the Petitioner’s application for permission to appeal,
he filed a timely petition for post-conviction relief, claiming that he received the ineffective
assistance of counsel because trial counsel failed to cross-examine witnesses effectively,
failed to present evidence that would have “countered” the State’s witnesses, failed to
object to “obviously perjured” testimony, and “did not present any kind of defense at all.”
The post-conviction court appointed counsel, and post-conviction counsel did not file an
amended petition.
At the evidentiary hearing, the Petitioner testified that trial counsel died about two
months after his trial and that another attorney represented him on direct appeal of his
conviction. The Petitioner said that trial counsel met with him three or four times before
trial and that their discussions were “mostly” about trial counsel telling the Petitioner “what
a great lawyer he was in the Eric McLean case.” The Petitioner told trial counsel he had
receipts which showed that the Petitioner had been drinking alcohol on the day of the
shooting. The Petitioner told trial counsel to obtain his bank records, but trial counsel
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“didn’t bother doing that.” The Petitioner said that he consumed alcohol at Applebee’s,
Preservation Pub, and Latitude 35 prior to the shooting and that his bank statements would
have shown that he spent almost one hundred dollars for alcohol at Preservation Pub and
Latitude 35. Post-conviction counsel asked the Petitioner, “Do you have those [bank
records] with you?” The Petitioner said yes, and post-conviction counsel asked to see the
records. However, post-conviction counsel did not introduce the records into evidence.
The Petitioner testified that at the time of the shooting, he had been prescribed three
Opana pills and two hydrocodone pills per day. Moreover, after the Petitioner’s trial, he
learned that his mother had “drugged” him on the night of shooting by putting “a handful
of Xanax” into his drink. The Petitioner did not tell trial counsel about being drugged
because he did not know about it at the time of trial.
The Petitioner testified that the State offered to let him plead guilty to second degree
murder. However, trial counsel told the Petitioner, “‘I’m not going to let you take that. . .
. I can get that at trial just based on your intoxication. . . . We’re going for manslaughter.’”
The Petitioner asked trial counsel how much “time” he could receive for second degree
murder, and trial counsel responded, “Well, that doesn’t matter. . . . [W]e’re not taking it.”
The Petitioner wanted to accept the State’s plea offer because the range of punishment for
second degree murder was fifteen to twenty-five years, but trial counsel would not let the
Petitioner accept the offer.
The Petitioner testified that trial counsel failed to cross-examine “most” of the
witnesses at trial effectively. For example, Kellie Martin testified that she served the
Petitioner “six doubles in two hours” at Applebee’s but that he was not intoxicated. Trial
counsel should have cross-examined Martin about her “server’s license” and how to “spot”
the effects of alcohol on an intoxicated person. Trial counsel also did not effectively cross-
examine the State’s ballistics expert, who testified that the Petitioner used hollow point
bullets to shoot the victim. The Petitioner said he actually used “controlled expansion”
bullets. The Petitioner explained that hollow point bullets caused “maximum damage and
death” whereas controlled expansion bullets were designed to “knock down” a victim, not
kill the victim. The Petitioner said his use of controlled expansion bullets supported his
testimony that he did not intend to kill the victim.
The Petitioner testified that the victim was shot five times but that only four .40-
caliber casings were found at the scene. The Petitioner told trial counsel that the State’s
facts were not “lining up,” but trial counsel “just dismissed it.” The Petitioner said that he
did not fire the fifth bullet and that the fifth bullet could have been the bullet that killed the
victim. Trial counsel never cross-examined the State’s witness about the fact that only four
bullets were fired from the Petitioner’s gun. Trial counsel also did not argue that fact
during his closing argument. The “only real argument” trial counsel made during closing
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was that the Petitioner was intoxicated at the time of the shooting. However, trial counsel
failed to obtain the Petitioner’s bank statements or introduce his prescriptions into evidence
in order to prove his intoxication.
The Petitioner testified that trial counsel seemed “quite impaired” during the trial,
that trial counsel was “nodding out,” and that the Petitioner kept having to “nudge” trial
counsel in order to get trial counsel to pay attention. The Petitioner said trial counsel
“wasn’t on his A game” and “seemed to completely drop the ball” in the Petitioner’s case.
Trial counsel failed to call any investigators to testify. When the Petitioner expressed
concern about no investigators testifying, trial counsel told the Petitioner, “‘I know what
I’m doing. I’ve done 35 murder trials.’” The Petitioner said that if trial counsel had “put
on investigators,” the defense could have presented evidence that vindicated the Petitioner
“at least in the eyes of some of the jurors.”
The Petitioner testified that he never received a psychological examination because
trial counsel said the Petitioner did not need one. The Petitioner thought he needed an
examination, explaining, “I don’t know how you can say you’re in the heat of passion or
you’re, you know, basically temporarily gone insane if you don’t have a professional there
who can either collaborate or not collaborate.” The Petitioner said he did not intend to kill
the victim. He said he went to the victim’s house that night because he just wanted to take
the daughter to the police department so that she could be interviewed in a controlled
setting without being influenced by the victim or Ms. Swaggerty.
On cross-examination, the Petitioner testified that on the night of the shooting, he
went onto the victim’s front porch and yelled through the door that he wanted to see the
daughter. At some point, the Petitioner called the victim “a child molester.” The Petitioner
said that he was “holding [onto] the wall” and that his gun was on his hip. The victim came
outside, and the Petitioner demanded to see the daughter. The victim told the Petitioner
no, so the Petitioner asked to speak with Ms. Swaggerty. The victim again told the
Petitioner no. The Petitioner said that “this [went] back and forth” and that he became
“completely frustrated.” The Petitioner told the victim that he knew the victim was a child
molester, and the victim responded, “‘Well, what if I am? What are you going to do about
it?’” The Petitioner shot the victim.
The Petitioner acknowledged that he testified at trial about the liquor he consumed
before the shooting. The Petitioner’s mother and son told Ray and Melissa Green about
the level of the Petitioner’s intoxication, and the Greens could have testified at trial about
what the Petitioner’s mother and son told them. Ray Green was the “arresting officer” in
the Petitioner’s case. On redirect examination, the Petitioner testified that his mother was
unable to testify at the evidentiary hearing because she was deceased. On recross-
examination, the Petitioner acknowledged that his mother was present during his trial.
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The parties chose to forego closing arguments, and the post-conviction court
announced its ruling. The post-conviction court said that “[t]his Court tried this case” and
that “there was certainly nothing to indicate that [trial counsel] was impaired in any way.
The Court would have intervened had that occurred.” The post-conviction court stated that
trial counsel’s defense strategy was to show that the Petitioner was too intoxicated to
premeditate killing the victim, which was “about the only strategy available.” The post-
conviction court noted that the Petitioner’s son testified at trial that the Petitioner “was able
to walk okay” and was not intoxicated and that the Petitioner’s daughter also testified that
he did not sound intoxicated before the shooting. The post-conviction court found that trial
counsel “tried a defense and it didn’t work” and denied the petition for post-conviction
relief.
After the post-conviction court announced its ruling, post-conviction counsel
advised the post-conviction court that the court needed to address the issue regarding trial
counsel’s refusal to allow the Petitioner to accept the State’s plea offer. The State noted
that the Petitioner did not introduce any emails or letters about the alleged offer into
evidence and asserted that the Petitioner’s testimony about the alleged offer was
“questionable.” The State advised the post-conviction court that the State never made a
plea offer to the Petitioner, noting that this court could not consider that statement as
evidence. The post-conviction court found that the Petitioner failed to establish by clear
and convincing evidence that the State ever made a plea offer to the Petitioner.
II. Analysis
On appeal, the Petitioner claims that trial counsel was ineffective because, given the
defense’s strategy, it was “imperative” that trial counsel present all proof available to show
that the Petitioner was too intoxicated to premeditate the killing.2 The Petitioner contends
that trial counsel should have obtained the Petitioner’s bank records to show that the
Petitioner spent almost one hundred dollars on alcoholic beverages prior to the shooting
and that the bank records would have bolstered the Petitioner’s credibility. The Petitioner
also contends that trial counsel should have presented proof that the Petitioner had been
prescribed three Opana pills and two hydrocodone pills daily due to a severe back
deformity and that trial counsel should have presented proof that his “late” mother told
several people she “drugged” him with Xanax on the night of the shooting. The State
argues that the trial court properly denied the petition for post-conviction relief. We agree
with the State.
2
We note that the Petitioner did not raise the issue regarding the plea offer in his appellate brief.
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To be successful in a claim for post-conviction relief, a petitioner must prove the
factual allegations contained in the post-conviction petition by clear and convincing
evidence. See Tenn. Code Ann. § 40-30-110(f). “‘Clear and convincing evidence means
evidence in which there is no serious or substantial doubt about the correctness of the
conclusions drawn from the evidence.’” State v. Holder, 15 S.W.3d 905, 911 (Tenn. Crim.
App. 1999) (quoting Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 n.3 (Tenn. 1992)).
Issues regarding the credibility of witnesses, the weight and value to be accorded their
testimony, and the factual questions raised by the evidence adduced at trial are to be
resolved by the post-conviction court as the trier of fact. See Henley v. State, 960 S.W.2d
572, 579 (Tenn. 1997). Therefore, the post-conviction court’s findings of fact are entitled
to substantial deference on appeal unless the evidence preponderates against those findings.
See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001).
A claim of ineffective assistance of counsel is a mixed question of law and fact. See
State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). We will review the post-conviction
court’s findings of fact de novo with a presumption that those findings are correct. See
Fields, 40 S.W.3d at 458. However, we will review the post-conviction court’s conclusions
of law purely de novo. Id.When a petitioner seeks post-conviction relief on the basis of ineffective assistance
of counsel, “the petitioner bears the burden of proving both that counsel’s performance was
deficient and that the deficiency prejudiced the defense.” Goad v. State, 938 S.W.2d 363,
369 (Tenn. 1996) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). To
establish deficient performance, the petitioner must show that counsel’s performance was
below “the range of competence demanded of attorneys in criminal cases.” Baxter v. Rose,
523 S.W.2d 930, 936 (Tenn. 1975). To establish prejudice, the petitioner 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.” Strickland, 466 U.S. at 694. Further,
[b]ecause a petitioner must establish both prongs of the test, a failure to prove
either deficiency or prejudice provides a sufficient basis to deny relief on the
ineffective assistance claim. Indeed, a court need not address the
components in any particular order or even address both if the [petitioner]
makes an insufficient showing of one component.
Goad, 938 S.W.2d at 370 (citing Strickland, 466 U.S. at 697).
Turning to the instant case, the Petitioner claims that trial counsel should have
introduced the Petitioner’s bank records and prescriptions into evidence at trial. However,
the Petitioner failed to introduce the bank records or prescriptions into evidence at the
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evidentiary hearing. We note that the Petitioner brought the bank records to the evidentiary
hearing but that post-conviction counsel did not introduce the records into evidence. The
Petitioner also did not have any witnesses testify at the hearing about his mother’s drugging
him with Xanax on the night of the shooting. This court may not speculate as to the content
of a witness’s testimony. See Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App.
1990). Therefore, the Petitioner has failed to show that trial counsel was deficient for
failing to present the evidence at trial.
Regardless, several of the State’s witnesses at trial, including the Petitioner’s
daughter, testified that the Petitioner was intoxicated at some point on the day of the
shooting. Mr. Graves also testified for the Petitioner that the Petitioner was intoxicated.
The proof showed, though, that in the hours leading up to the victim’s death, the Petitioner
made several declarations of intent to kill the victim. Even the Petitioner’s own son
testified that the Petitioner said he was going to kill the victim. Moreover, the Petitioner’s
son said that the Petitioner was angry but not intoxicated at the time of the shooting. On
direct appeal of the Petitioner’s convictions, this court noted that the Petitioner was able to
recall at trial the “precise” route that he and his son took to get to the victim’s residence.
Likewise, we note that although the shooting occurred more than six years before the
evidentiary hearing, the Petitioner was able to recall what occurred on the victim’s front
porch prior to the shooting. Therefore, we also conclude that the Petitioner has failed to
demonstrate that he was prejudiced by any deficiencies by trial counsel. Accordingly, the
post-conviction court properly denied the petition for post-conviction relief.
III. Conclusion
Based upon the record and the parties’ briefs, we affirm the judgment of the post-
conviction court.
_________________________________
NORMA MCGEE OGLE, JUDGE
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