MICHAEL F. MARASCHIELLO v. STATE OF TENNESSEE ( 2020 )

12/04/2020
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
October 13, 2020 Session
MICHAEL F. MARASCHIELLO v. STATE OF TENNESSEE
Appeal from the Circuit Court for Montgomery County
No. 35643 Jill Bartee Ayers, Judge
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No. M2019-01287-CCA-R3-PC
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Petitioner, Michael F. Maraschiello, was convicted of first degree murder, arson,
possession of a shotgun with an altered serial number, and theft after a jury trial in 1997.
He was sentenced to life plus five years for the convictions. Petitioner appealed and this
Court affirmed the conviction. State v. Maraschiello, 88 S.W.3d 586, 590 (Tenn. Crim.
App. 2000). Over 19 years ago, Petitioner filed a petition for post-conviction relief
alleging various grounds for relief including ineffective assistance of counsel. Petitioner
sought funding for a medical and psychological expert in 2005, and the post-conviction
court denied the request. The post-conviction court granted Petitioner permission for an
interlocutory appeal. This Court denied the application for permission to appeal. State v.
Michael F. Maraschiello, M2007-01968-CCA-R9-CO, at *2 (Tenn. Crim. App. Sept. 26,
2007) (order). After multiple amended petitions that included dozens of claims, the post-
conviction court denied relief to Petitioner in 2019. On appeal, Petitioner argues that the
evidence weighs against the post-conviction’s court finding that Petitioner was not a
credible witness, that he has a constitutional or statutory right to state funded experts and
investigators, that the post-conviction court erred by denying Petitioner the ability to
prove his claims by refusing to allow Petitioner to call sixty-nine witnesses, that the post-
conviction court erred when it rejected Petitioner’s claim that he clearly accepted a plea
offer, and that trial counsel provided ineffective assistance of counsel by failing to call or
impeach witnesses. After a thorough review of the very lengthy record, we affirm the
decision of the post-conviction court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
TIMOTHY L. EASTER, J., delivered the opinion of the court, in which ROBERT L.
HOLLOWAY, J. and W. NEAL MCBRAYER, SP. J., joined.
James A. Simmons, Hendersonville, Tennessee, for the appellant, Michael F.
Maraschiello.
Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Senior
Assistant Attorney General; John W. Carney, Jr., District Attorney General; and Arthur
Beiber, Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
In April of 1995, the Montgomery County Grand Jury indicted Petitioner for first
degree murder, arson, possession of an explosive weapon, possession of a shotgun with
an altered serial number, and theft in conjunction with the death of his estranged wife.
Maraschiello, 88 S.W.3d at 590. After a jury trial in 1997, Petitioner was convicted as
charged. Petitioner received a life sentence for the first degree murder conviction, a two-
year sentence for the arson conviction, a two-year sentence for the possession of an
explosive weapon conviction, a six-month sentence for the possession of a shotgun with
an altered serial number conviction, and a six-month sentence for the theft conviction.
Each sentence was ordered to be served consecutively. Id.
On direct appeal, Petitioner challenged the trial court’s denial of his motion to
suppress his confession to police, the trial court’s grant of permission for Petitioner’s
accomplice, Timothy Winston, to testify as a witness for the State, the trial court’s
exclusion of testimony concerning Petitioner’s mental state and his ability to form the
intent necessary to commit first degree murder, and the trial court’s decision to impose
consecutive sentencing. Id. at 600-610. This Court affirmed the judgment of the trial
court. Id. at 611.
Trial
Petitioner’s convictions arose from his planned killing of his estranged wife, Roxie
Maraschiello, on February 16, 1995, at her home in Clarksville, Tennessee. Petitioner
has never denied his role in the killing of the victim. Petitioner served as a captain in the
United States Army, ultimately commanding a company during the Persian Gulf War.
Petitioner felt that the victim had a difficult time adjusting to life as a military officer’s
wife. Petitioner claimed that his relationship with the victim suffered because the victim
had psychological problems that stemmed from her being raped by her previous husband.
Petitioner stated that he married “someone who needed more care and help than I did or
had some major problems.” Id. at 590. Petitioner felt the victim was engaged in
behavior that “wasn’t acceptable in terms of a normal relationship.” Id.
Following the Persian Gulf War, Petitioner was assigned to Fort Campbell, where
he began to receive poor performance reviews. Id. at 591. Petitioner recounted that the
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victim increasingly neglected her family obligations to pursue a social life elsewhere. In
early 1993, the victim filed a complaint with the Fort Campbell Family Advocacy
Program. She alleged that Petitioner abused her both mentally and physically. The
victim, with Petitioner’s assistance, later drafted affidavits that recanted the abuse claims.
Id.
Following his honorable discharge from the Army in 1993, Petitioner continued to
serve in the United States Army Reserve. Petitioner obtained employment with the
Nashville Metropolitan Police Department. Id. Petitioner underwent a psychological
examination in connection with his police department employment. While nothing
significant stood out, the psychologists noted “a defensive gruffness that bordered on
anger” and “some adjustment problems and behavior traits which cause[d] [Petitioner]
difficulties in relating to others.” Id. While at the police academy, Petitioner was
subjected to several disciplinary actions. After his graduation from the police academy,
Petitioner’s training officers noted that Petitioner resisted orders and that Petitioner found
it difficult to draft objective incident reports. Petitioner was described as argumentative
and had definitive opinions about how things should be done. Petitioner would not
accept any criticism or supervision, and his employment with the police department was
terminated in 1994. Id.
The victim initiated divorce proceedings in October 1994. Petitioner filed a
petition for an order of protection that alleged the victim threatened to kill him and the
victim owned a pistol. In November 1994, Petitioner’s eldest daughter reported that
Petitioner sexually abused her. Due to insufficient evidence the sexual abuse
investigation was discontinued. Following the divorce filing and abuse allegations, the
victim moved to Clarksville with the children. Id. at 592. The victim refused to tell
Petitioner her address. In December 1994, the court issued a restraining order that
restrained both parties from harassing each other or making threats of violence. Because
there was insufficient evidence to support the sexual abuse claims, the court granted
Petitioner unsupervised visitation. At trial, Petitioner denied that he abused his children
and that he believed that the victim was abusing them. Petitioner believed the victim was
unfaithful to him during their marriage. These beliefs led to Petitioner’s decision to
murder the victim and “rescue the children.” Id.
In January 1995, Petitioner approached Timothy Winston and offered to pay him
$10,000 if he would assist Petitioner in the murder of the victim. Id. Mr. Winston
agreed; Petitioner paid him $5000, and they began to formulate their plan. Petitioner
purchased the 12 gauge that was used as the murder weapon. He removed the serial
number and shortened the barrel length. Petitioner stole the car that he used for
transportation during the commission of the murder. Petitioner prepared incendiary
devices to destroy the car after the murder. Id.
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 The night of February 16, 1995, Petitioner placed the shotgun, ammunition,
binoculars, a police scanner, and the incendiary devices into the stolen car. Petitioner
drove to the victim’s place of employment, and Mr. Winston followed Petitioner in
another car. Mr. Winston also had a police scanner and a change of clothes for
Petitioner. Petitioner observed the victim drive out of the parking lot, and he and Mr.
Winston began to follow her. Mr. Winston became separated, but Petitioner continued to
follow her successfully to her home. Id. at 593.
The victim’s roommate, Linda Hubenthal, and the victim’s boyfriend, Tommy
Piper, were inside the home. The victim’s daughters were asleep in a rear bedroom of the
home. Ms. Hubenthal and Mr. Piper heard the victim arrive home and attempt to open
the door but the security chain was fastened. Before Mr. Piper could unfasten the chain,
he heard the victim say, “[W]hat the hell do you want.” Id. Mr. Piper said he then heard
loud noises. Several pellets penetrated the front door. Mr. Piper heard the victim scream
for help. In a statement to police, Petitioner recalled that upon arrival to the victim’s
home, he got out of the car with the shotgun, followed the victim to the porch, aimed the
shotgun, and pulled the trigger. He missed on the first shot and hit the door. He then
shot three or four more times from a distance of about fifteen feet. The victim died as a
result of the shotgun wounds. Id.
Medical testimony concluded that the victim was shot in the abdomen from a
distance of ten or twenty feet and the victim’s chest from a distance of six feet or less.
The victim was also shot in the head. This wound appeared to be a “contact wound,”
inflicted when the muzzle of shotgun was in contact with the victim’s head. Id.
After the murder, Petitioner left the victim’s home in the stolen car. He
encountered Mr. Winston on the way out of the victim’s neighborhood. Mr. Winston
followed Petitioner to Frost Auto Alignment in Clarksville. Petitioner parked the stolen
car, placed the incendiary devices around it, and ignited one of the devices. Petitioner got
into Mr. Winston’s car and they drove towards Nashville. Petitioner changed into clean
clothes. The pair took a “circuitous” route from Clarksville to Nashville, and Petitioner
threw various incriminating items out the car window along the way. Id.
On their way to Nashville, Trooper Timothy Dover conducted a traffic stop of the
vehicle. Deputy Randall Anderson assisted in the stop. The Clarksville Police
Department had not issued a “BOLO” for Petitioner at this point. Accordingly, after he
checked Mr. Winston’s driver’s license and issued a traffic ticket, Trooper Dover allowed
Petitioner and Mr. Winston to depart. Id. After the stop, Petitioner and Mr. Winston
drove to the Sycamore Creek Bridge on Highway 49. At the bridge, Petitioner removed
the barrel from the shotgun, exited the car with the remaining shotgun components and
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threw them into the creek. Before Petitioner returned to the car, Deputy Anderson
approached the bridge, and Mr. Winston drove away. Id. at 594. Deputy Anderson
stopped his car on the bridge and asked Petitioner what he was doing. Petitioner told
Deputy Anderson that he needed to “relieve himself” and that Mr. Winston drove away
as a joke. Id. Petitioner asked Deputy Anderson to pursue Mr. Winston and ask him to
return to the bridge. Deputy Anderson pursued Mr. Winston, and at the same time,
Deputy Anderson radioed Trooper Dover and asked him to drive to the bridge and further
question Petitioner. Id.
Trooper Dover found Petitioner walking along the road about 300 feet from the
bridge. He stopped his car and requested Petitioner’s identification. Petitioner repeated
the same story he told Deputy Anderson. Meanwhile, Deputy Anderson detained Mr.
Winston. In contrast to Petitioner’s story, Mr. Winston claimed Petitioner was a
hitchhiker, and he left him at the bridge to “get rid of him.” Id. Ultimately, Mr. Winston
admitted that he knew Petitioner. Deputy Anderson again radioed Trooper Dover,
apprised him of Mr. Winston’s location, and Trooper Dover drove Petitioner to that
location. Trooper Dover and Deputy Anderson checked Mr. Winston’s and Petitioner’s
driver’s licenses with “NCIC.” The officers found nothing, and Mr. Winston and
Petitioner were allowed to depart. During the encounter, Deputy Anderson saw the barrel
of a shotgun in the backseat of Mr. Winston’s car. Id.
After a preliminary investigation into the victim’s murder, Detective Allan
Charvis of the Clarksville Police Department learned that Petitioner and the victim were
engaged in a “heated divorce.” Id. Detective Charvis also learned that the victim was
“hiding” from Petitioner. The Clarksville Police Department issued a “BOLO” for
Petitioner. Immediately after the “BOLO” issuance, Trooper Dover and Deputy
Anderson notified Detective Charvis that they had encountered Petitioner en route from
Clarksville to Nashville sometime after the murder. Detective Charvis relayed the
information to Detectives Mason and West of the Nashville Metropolitan Police
Department. Detective Charvis learned that Petitioner was previously employed by the
Nashville Metropolitan Police Department. Detectives Mason and West proceeded to
Petitioner’s home. Id. at 595. Detective Mason erroneously believed that a warrant was
being issued for Petitioner’s arrest. Id.
Petitioner denied police access to the house. He was arrested and given Miranda
rights. Id. Trooper Dover eventually arrived on the scene and identified Petitioner as one
of two men he encountered earlier. Petitioner admitted to police that he “killed her.” Id.
at 596. Detective Bernard observed that Petitioner exhibited no remorse during the
interview. Petitioner told police where he disposed of items used during the murder,
including the stolen car and the gun. Petitioner and Mr. Winston were taken to the
Clarksville Police Department, and Petitioner provided a written confession. On
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September 28, 1995, the State notified Petitioner of its intent to seek a sentence of life
imprisonment with parole.
At trial, the State relied heavily on Petitioner’s statements to the police. Petitioner
testified on his own behalf and admitted that he killed the victim. In his defense,
however, Petitioner put forth testimony to support the theory that he did not possess the
mental capacity or the requisite mental state for first degree murder. Kevin Wilkinson, a
pastor, captain in the Tennessee Army National Guard, and self-described amateur in the
field of psychology, testified that he visited with Petitioner on March 2, 1995. Id. at 596-
98. Mr. Wilkinson described Petitioner’s speech as “flighty.” He also said that Petitioner
“frequently departed from the stream of thought.” Additionally, Mr. Wilkinson believed
that Petitioner possessed a “very, very tenuous, a very fragile connection with reality.”
Id. at 598. Mr. Wilkinson concluded that Petitioner suffered from “residual effects of a
psychotic episode.” Id. He compared Petitioner’s condition to soldiers coming back
from war, otherwise known as “battle fatigue.” Id.
Dr. Pamela Auble, a clinical psychologist, also testified on Petitioner’s behalf.
She examined Petitioner on two separate occasions and reviewed Petitioner’s mental
health records from various places. According to Dr. Auble, Petitioner suffered from a
delusional disorder, post-traumatic stress disorder, and depression. She concluded that,
due to [Petitioner’s] delusional disorder, his intent to commit . . . [the
murder of his wife] was really on a false date base. He—what he believed
and what was true were two different things. So that [Petitioner] was like
living in a nightmare. He thought that he could see how evil this other
person was and nobody else could see it. [Petitioner] acted as if—he
believes that his beliefs were true. His beliefs were that this was someone
who was abusing and neglecting their children, sexually, physically, and
emotionally, and that she was in essence, a prostitute. So his actions were
based on his belief that all that was true.
Id. Dr. Auble conceded that Petitioner was not insane at the time of the offense. She
further concluded that Petitioner was competent to stand trial.
Dr. William Kenner, a psychiatrist, also testified on Petitioner’s behalf. He
interviewed Petitioner and reviewed numerous records, including Dr. Auble’s. He
concurred with Dr. Auble’s conclusions. Dr. Kenner opined that Petitioner’s delusional
disorder impacted the ability of Petitioner to “form intent in that his basis for his action
was defective[,] and he was operating not with a full deck.” Id. at 599.
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 In rebuttal, the State presented the testimony of Dr. Sam Craddock, a psychologist
employed by the Middle Tennessee Mental Health Institute (“MTMHI”). Petitioner was
admitted to MTMHI in July 1995 and was evaluated for approximately one month. As a
result, Dr. Craddock diagnosed Petitioner with a narcissistic personality disorder. Dr.
Craddock conceded that psychological testing did not support his diagnosis but noted that
Petitioner’s responses to testing were inconsistent with observations. Dr. Craddock
opined that Petitioner was not insane at the time of the offense and that he was competent
to stand trial. Dr. Craddock concluded that Petitioner was capable of forming the
requisite mental state for first degree murder, at the time of the murder. Id. Dr. Rokeya
Farooque, a psychiatrist, also employed MTMHI, concurred in Dr. Craddock’s opinion.
Id. at 600. Dr. Farooque also rejected Dr. Auble’s and Dr. Kenner’s diagnosis. She
explained that interviews with Petitioner’s friends and family had revealed that
Petitioner’s beliefs regarding his wife were based in reality. Id. at 600.
Post-Conviction
Petitioner filed a petition for post-conviction relief in November 2001. Post-
conviction counsel was appointed to represent Petitioner. Through a series of multiple
attorneys and pro se representation, Petitioner filed multiple amended petitions and made
dozens of claims, most of which alleged that Petitioner received ineffective assistance of
counsel. In 2005, Petitioner requested funds for experts to rebut proof presented at trial.
The post-conviction court denied Petitioner’s request but stated that “[h]ad [Tennessee
Supreme Court] Rule 13 provided for an exception to the blanket denial where the
petitioner is indigent, the [c]ourt finds this case warrant[ed] the approval of funding.”
However, the post-conviction court found no such exception in Rule 13. The post-
conviction court granted Petitioner permission to appeal the ruling. This Court denied the
application for appeal. Michael F. Maraschiello, M2007-01968-CCA-R9-CO, at *2
(Tenn. Crim. App. Sept. 26, 2007) (order).
The initial post-conviction judge retired, and the matter was taken up by another
post-conviction judge. The first evidentiary hearing was held on May 9, 2018. Assistant
District Attorney Art Beiber testified that all files related to Petitioner’s trial were housed
in the county courthouse and were likely destroyed in a tornado in 1999. Mr. Beiber
stated that it was common practice to plea bargain with defendants but no offer was
accepted in this case.
Charles Bloodworth, Petitioner’s first appointed counsel, testified that he was
assigned to Petitioner’s case in April 1995. Mr. Bloodworth gave Petitioner’s file to the
successor attorney, Ed DeWerff, and Mr. Bloodworth retained nothing from it. Petitioner
was arrested in February 1995, and his case was bound over to the grand jury by General
Sessions Court. Mr. Bloodworth recalled that he met with Petitioner on several
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occasions, but he did not recall meeting with Petitioner in February 1995. Mr.
Bloodworth recalled that he met with Petitioner on several occasions. Mr. Bloodworth
was aware of Petitioner’s military service but did not request his military records. Mr.
Bloodworth was aware that Petitioner was a former police officer in Nashville. Mr.
Bloodworth’s request that Petitioner be evaluated at MTMHI was granted. MTMHI
required a thirty-day minimum residential stay for their evaluation. Mr. Bloodworth did
not recall meeting with Petitioner at MTMHI. He recalled that he met with only two
clients at MTMHI during his entire career. Mr. Bloodworth recalled that it was a matter
of general practice to tell Petitioner that many cases are often resolved by plea
agreements. Mr. Bloodworth did not recall any specific plea agreement discussion with
Petitioner. He was Petitioner’s attorney during the initial stages only and kept Petitioner
apprised of any developments. Mr. Bloodworth recalled that he told Petitioner that he
had been indicted by the grand jury, that Petitioner needed a psychiatric exam, and that
they would “need to wait until the discovery comes in, then we can see whether or not a
plea negotiation would result in something favorable to you.”
Mr. DeWerff began representing Petitioner after Mr. Bloodworth was relieved.
He did not recall if he represented Petitioner at a suppression hearing regarding
Petitioner’s statement to police. Mr. DeWerff did not recall if he requested funds for a
mental health expert. Mr. DeWerff recalled that he presented a plea offer of fifty-five
years at forty-five percent to Petitioner in writing. Petitioner refused the offer and
refused to sign the document. Mr. DeWerff turned his files over to Debra Wall when he
was relieved from Petitioner’s case and Ms. Wall was appointed. On cross-examination,
Mr. DeWerff recalled that he filed a motion to suppress Petitioner’s confession.
Petitioner testified about his educational background and his time spent in the
military. Petitioner testified that he was honorably discharged in October 1993.
Petitioner recalled that he first met Mr. Bloodworth at the Montgomery County Jail on
February 19, 1995. Petitioner stated that he next met with Mr. Bloodworth on April 27,
1995. Petitioner recalled that Mr. Bloodworth “laid the file out in front of me and he
went over it and recommended to me the State’s plea.” Mr. Bloodworth stated that the
plea agreement was for “second degree [murder], twenty-five years at thirty percent.”
Petitioner claimed that Mr. Bloodworth had a plea document with him but Petitioner did
not review it. Petitioner told Mr. Bloodworth that he would think about the offer for a
day or two. Petitioner claimed he sent a letter to Mr. Bloodworth the following day
accepting the plea offer. Petitioner testified that he did not receive a response from Mr.
Bloodworth. Petitioner filed a pro se “Motion to Formalize Preliminary Plea Motion” on
June 1, 1995. In the sworn but un-notarized affidavit attached to the motion, Petitioner
outlined the plea agreement he stated that Mr. Bloodworth conveyed to him. Petitioner
claimed that he never rejected the offer. Petitioner recalled that Mr. Bloodworth met with
him at MTMHI on July 7, 1995. Mr. Bloodworth conveyed to Petitioner that the State
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was not seeking the death penalty but they were seeking a sentence of life without parole.
Petitioner recalled that he asked Mr. Bloodworth about the plea agreement they discussed
on April 27. Petitioner testified that Mr. Bloodworth “said we [were] not going to
discuss that today.” Petitioner never met with Mr. Bloodworth again and subsequently
wrote a letter to the Tennessee Board of Professional Responsibility. Mr. Bloodworth
was relieved as Petitioner’s first appointed counsel, and Mr. DeWerff was appointed.
Petitioner rejected the plea offer of fifty-five years that Mr. DeWerff presented to him.
Petitioner went to trial and received a life sentence with the possibility of parole.
Petitioner insisted that he was prejudiced by the failure of Mr. Bloodworth to
communicate his acceptance of the initial plea offer to the State.
Orest Logusz testified that he met Petitioner when they both served in the military
in 1984. Mr. Logusz did not hear from Petitioner for several months in early 1995, so he
placed a call to Petitioner’s mother in New York just before Easter. Mr. Logusz gave her
his contact information. Petitioner wrote Mr. Logusz a letter. Mr. Logusz received the
letter on April 18 that was dated April 14. Mr. Logusz called the Clarksville “legal aid”
office and was given Mr. Bloodworth’s name and phone number. Mr. Logusz called Mr.
Bloodworth’s office and spoke with a paralegal on April 21. Mr. Logusz testified that the
paralegal mentioned “a plea [was] in the works.” Mr. Logusz wrote Petitioner a letter
and told him that a plea agreement was in the works and to accept the offer. Mr. Logusz
recalled that he spoke to Mr. Bloodworth toward the end of April. Mr. Bloodworth
requested that he send a “character letter.” Mr. Logusz mailed a letter dated May 29.
Petitioner told Mr. Logusz that he was willing to take the plea offer. Petitioner
subsequently voiced his frustration to Mr. Logusz about Mr. Bloodworth’s lack of
communication. On cross-examination, Mr. Logusz stated that he knew what had
happened but did not know what the exact charge was.
At a motions hearing on October 2, 2018, Petitioner again raised the issue of funds
to hire expert witnesses. The post-conviction court again denied Petitioner’s motion for
funds. Petitioner also filed a motion to subpoena out-of-state witnesses. Petitioner
requested that he be allowed to call seventy-one witnesses. Post-conviction counsel went
down a list of names and stated what each witness would testify about if called at the
post-conviction hearing. Petitioner stated that he had more detailed information about
each proposed witness. The post-conviction court agreed that the information could be
filed with the court. The post-conviction court stated “I would suggest to prepare for the
[November] 7th hearing, so it’s not a bust, to go ahead and, you know, work on those
witnesses who are local.”
At the November 7, 2018 evidentiary hearing, Clifford McGown testified that he
represented Petitioner during his direct appeal. Mr. McGown did not have independent
recollection of a letter he wrote to Petitioner about Petitioner’s pre-sentence report. The
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letter was entered into evidence and stated that “the way your pre-sentence report was
handled is, to put it mildly, unfortunate. . . . Your attorney should have taken steps to
ensure the report was accurate as well. Obviously that was not done in your case.”
Mr. Bloodworth testified again that he represented Petitioner for about five months
in 1995. Mr. Bloodworth agreed that no one from his office went to Petitioner’s home to
obtain documents or evidence. He again reiterated that he did not visit Petitioner at
MTMHI. Mr. Bloodworth did not retain any files that related to Petitioner’s case but sent
them all to Mr. DeWerff.
Mr. DeWerff testified again that he briefly represented Petitioner. He had no
independent recollection of conducting a suppression hearing but agreed that if the record
showed that he did it was probably correct. Mr. DeWerff did not recall if he conducted
any investigation. Mr. DeWerff did not obtain any experts with regard to Petitioner’s
mental capacity. Mr. DeWerff did not recall that he received Petitioner’s divorce file but
did not dispute that he did. When asked about Petitioner’s file, Mr. DeWerff stated that
his “normal practice is to give the entire . . . file to whoever the next attorney is.” He
acknowledged that he did not have any files from Petitioner’s case in his possession at
the time of the post-conviction evidentiary hearing. On cross-examination, Mr. DeWerff
confirmed that he would not dispute testimony that he recommended mental health
experts or an investigator to Ms. Wall. On redirect-examination, Mr. DeWerff stated that
“[Petitioner] was very difficult for me to get along with. I had a hard time
communicating with him. But I don’t recall exactly whether I had some sort of lay
person’s opinion as to his competency or sanity.”
Petitioner again testified about his education and military background. Petitioner
testified that he met the victim at a house party. Petitioner stated that when he returned
from the Gulf War, he started to have physical problems. In 1992, Petitioner was
diagnosed with “a chemical imbalance in the brain[,] and I had to have a rhinoplasty
operation.” He stated that he was exposed to toxic chemicals in the Gulf War. Petitioner
was employed as a police officer with the Nashville Metropolitan Police Department.
Petitioner was unaware, until after his conviction, that he failed multiple psychological
tests administered by the Nashville Metropolitan Police Department and the Louisville,
Kentucky Police Department. Each test showed that Petitioner was psychologically unfit
to be a police officer. Petitioner recalled the demise of his relationship with the victim,
explaining that the couple had two children and that the victim filed for divorce in
October 1994. When the victim filed for divorce, she moved to Clarksville with the
children. In 1990, there was an investigation into suspected sexual abuse of one of
Petitioner’s daughters, but no evidence was found. Petitioner filed an order of protection
against the victim because “she was a - - a rape victim with - - PTSD,” and she was in
possession of a gun and threatened to shoot Petitioner. In November 1994, Petitioner’s
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oldest daughter alleged that she was sexually abused. Petitioner cooperated with the
investigation. Detective Steven Cleek with the Metropolitan Nashville Police
Department investigated the allegations. The allegations could not be proved, and
Petitioner was awarded unsupervised visitation with his children. During one visitation,
Petitioner testified that his youngest daughter pulled up her shirt and showed him whip
marks on her back from her babysitter. Petitioner stated that one of his daughters told
him that a couple at her mother’s home had sex in front of her. Petitioner stated that his
daughters’ school grades suffered and that his youngest daughter had reverted back to
sucking her thumb. Petitioner stated that his oldest daughter begged him to take them
away from the victim.
Petitioner testified that he lived in Nashville at the time of the murder. He
communicated with his daughters by phone. Petitioner stated that, to his knowledge, that
no attorney or investigator obtained his phone records. Petitioner testified that he went to
the Detective Cleek to ask for help in getting his children away from the victim.
Detective Cleek told Petitioner that more evidence was needed.
Petitioner then testified as to what happened the night of the murder. He testified
that no attorney showed him photos of the crime scene or autopsy. Petitioner stated that
the initial medical examiner stated that the victim was shot in the back and indicated no
head wound. Petitioner learned later that there was an open casket funeral, “so there’s no
way the brains could have been blown out, or the head blown off, or a contact wound” as
Dr. Charles Harlan’s report had indicated at trial.
Petitioner stated that his statement to police the night of his arrest was coerced.
Petitioner claimed that he had substantial assets at the time and that on the advice of his
attorney, he assigned all assets to his children’s grandparents. After assigning over his
assets, Petitioner was indigent.
Petitioner testified that he was at MTMHI for approximately 28 to 30 days.
During that time, Mr. Bloodworth visited with him. Mr. Bloodworth gave him a
document that said the State was seeking a sentence of life without parole. Petitioner
asked about the earlier plea offer, and claimed that Mr. Bloodworth said “We’re not
going to talk about that today.” Petitioner stated that no one investigated his military
records, and to his knowledge, no one spoke to his family. The front page of MTMHI’s
report on Petitioner stated that “[a] substantial portion of information [Petitioner] gave
the evaluation team members was not checked of its accuracy.” Petitioner testified that
he gave MTMHI a list of military personnel with whom he served. To Petitioner’s
knowledge, MTMHI did not interview any of them, although one of them visited him
twice while he was at MTMHI.
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Petitioner testified that Mr. DeWerff represented him at his suppression hearing.
Mr. DeWerff did not obtain the services of any mental health expert. After the
suppression hearing, Ms. Wall was assigned to Petitioner’s case. Petitioner had no reason
to believe that Ms. Wall did not receive all of his files from Mr. DeWerff. Petitioner
relayed all information about his illnesses and military experience to Ms. Wall.
Petitioner requested that Ms. Wall “at least investigate and get experts in these areas.”
Petitioner testified that he was consulting with Joyce Riley, a nurse, and Steve Welch
about his Gulf War Syndrome. Petitioner stated that Ms. Riley was an expert in the signs
and symptoms of the syndrome. Ms. Riley requested a blood draw. Dr. Garth Nicholson
drew Petitioner’s blood which tested positive for “mycoplasma incognitus,” a “known
chemical and it’s a tuberculosis that Saddam’s chemicals that he had over there would
produce.” Petitioner stated that he was then quarantined for twenty-eight days in
Nashville. Ms. Riley contacted Dr. Nicholson and told him to expect a phone call from
Ms. Wall. Ultimately, Dr. Nicholson was not called to testify at trial.
Petitioner cooperated with Dr. Auble and Dr. Kenner’s examinations. Petitioner
was never examined by a medical doctor in preparation for trial. Petitioner testified that
Dr. Kenner’s report stated
based upon . . . the very recent medical literature available, it is my opinion
that [Petitioner] must be evaluated for G[u]lf War Syndrome, to determine
if there exists a biological basis for his behavior and actions, rather than a
purely functional one.
Dr. Auble’s report stated that Petitioner’s “behavior might have been influenced by [Gulf
War] biological syndrome, rather than being solely due to psychological causes.” No
additional biological exams were conducted in conjunction with the recommendations.
Petitioner was aware that an ex parte motion was filed that sought additional funds for
payment of psychiatrist and psychologist regarding a Gulf War Syndrome expert and
false accusations of child sexual abuse, but nothing was filed in support of the motion.
To Petitioner’s knowledge, no hearing was held, and he never signed anything that
excused his presence from such a hearing. Petitioner requested a motion be filed for a
medical exam, and claimed this motion was never filed. Ms. Wall sent a letter to
Petitioner that stated “[t]he court denied both the motion for G[u]lf War Syndrome and
the motion for an expert on the effects of false accusations of child sexual abuse.” To
Petitioner’s knowledge, no proof was submitted as to either motion.
Petitioner testified that Steven Haggey, the victim’s ex-husband, wrote a letter to
Petitioner’s divorce attorney regarding the victim. The letter described the victim’s
“symptoms, and character, and behavior, that she displayed for the entire [ten] years that
I was married to her.” Petitioner testified that Ms. Wall had a copy of the letter but Mr.
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Haggey was not called to testify at trial. Petitioner stated that Ms. Wall never gave him
copies of crime scene photos or the crime scene diagram.
Petitioner presented a copy of the Department of Veterans Affairs’ (VA) rating for
his service related Post-Traumatic Stress Disorder and the compensation he received.
Petitioner presented copies of letters that were sent to his divorce attorney. One such
letter, from Petitioner’s brother, recalled that the victim wanted to have an affair with him
and went in to further detail about possible child sexual abuse allegations. Petitioner
submitted other letters as well, none of which were used at trial, and none of the writers
were called to testify.
Petitioner felt he was disadvantaged as a service member during jury selection and
requested a jury question asking if any enlisted soldiers were in the jury pool. The
question was not asked to the panel, although two active duty enlisted men were
ultimately seated on the jury. Petitioner felt it was highly prejudicial that Ms. Wall
referred to him as a Yankee during voir dire because the victim was a southerner.
Petitioner asked that his oldest daughter testify. Ms. Wall refused and told Petitioner that
“she was not going to be the attorney to tell the jury [through the daughter’s testimony]
about [the victim] being a monster and her character contributing to her death.”
Petitioner stated that he still speaks to his oldest daughter and that she “talks about the
abuse suffered at the hands of her mother[,] and she knows that I’ve been wronged.”
Prior to the final evidentiary hearing, the post-conviction court issued an order
denying Petitioner’s motion to subpoena sixty-nine of the seventy-one proposed
witnesses. The post-conviction court found that Petitioner could subpoena Charles
Wheeler and Rockelle Daniels. The post-conviction court found that their testimony may
be relevant. As to the remaining proposed witnesses the post-conviction court found
“that all other potential witnesses listed by [Petitioner] shall not be called as witnesses in
the post-conviction proceedings as their testimony would be irrelevant or cumulative.”
The post-conviction court further found that the status of Petitioner’s mental health was
litigated at trial and that Petitioner did not have the right to have it relitigated.
At the final evidentiary hearing on November 29, 2018, Ms. Wall testified that she
received Petitioner’s files from Mr. DeWerff. Ms. Wall and Mr. DeWerff spoke at length
about the suppression hearing that Mr. DeWerff conducted. Mr. DeWerff chose an
investigator, Mr. Wheeler, and Ms. Wall continued to work with him on Petitioner’s case.
Mr. DeWerff started conversations with Dr. Auble and Dr. Kenner as well. Ms. Wall
testified that Petitioner provided “lists and lists of witnesses that he thought were very
germane to the case.” Ms. Wall and Mr. Wheeler spent hours trying to decide which
witnesses to interview. It was Mr. Wheeler’s job to find the witnesses, talk with them,
and then if the witness was germane, Ms. Wall would speak with them. Ms. Wall
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testified that Petitioner wanted her to track down and interview “well over a hundred”
witnesses. Ms. Wall agreed that the witnesses she interviewed did not have information
that she felt was relevant or helpful in light of Petitioner’s confession. Ms. Wall stated
that Mr. Wheeler found many witnesses that knew relevant information but the
information was not helpful to Petitioner. Ms. Wall believed the only relevant witnesses
that testified were the “mental health folks.” Ms. Wall explained
First of all, we [had] a confession and [Petitioner] had admitted
killing his wife. [Petitioner] made it very clear for me from day one, this
was his trial and he would take the stand[,] and he was going to tell the jury
why he killed his wife, so there was not a guilt/innocence issue. It was - -
we had to explain why he killed his wife and using the mental health
experts to do that was his best shot.
Ms. Wall testified that the defense was hoping to show diminished capacity in order to
have a second degree murder conviction instead of a first degree murder conviction. Ms.
Wall recalled Petitioner’s blood test and stated that the next step would be for Petitioner
to be evaluated at the VA. Ms. Wall set up two exams for Petitioner at the VA.
Petitioner refused to be transported to the first exam because he was not shackled in a
certain way. The exam was rescheduled, and the jail forgot to transport Petitioner to the
VA. The second exam was scheduled, and Ms. Wall received a phone call the day before
the exam and was told that Petitioner, through a friend, cancelled the exam. Petitioner
told Ms. Wall that he cancelled the exam because “it would always be an issue for his
appeal.” Ms. Wall explained to Petitioner and Ms. Riley that a nurse was not allowed to
testify in Tennessee as to a diagnosis or causation. Ms. Wall called Ms. Riley to testify,
but the trial court declined to allow Ms. Riley’s testimony. On cross-examination, Ms.
Wall did not recall if she spoke with Dr. Nicholson. Ms. Wall recalled an ex parte
meeting with the trial court. She did not recall whether Petitioner asked that his presence
be excused or whether he made a written waiver. Ms. Wall recalled that at the time when
the trial court had an ex parte meeting it was in chambers. Ms. Wall did not recall if she
visited the crime scene. Ms. Wall did not recall if Petitioner received a physical
examination. Ms. Wall indicated that things were done much differently in the 1990’s.
The trial court had an open door policy, and she would go ask questions. Ms. Wall
recalled that the trial court “would not grant a Gulf War expert until I showed him some
evidence that [Petitioner] had it[,] and I couldn’t get that evidence from [Petitioner].”
Ms. Wall testified that she received funds for three experts. Ms. Wall testified that the
reason Petitioner was to be examined at the VA was because of Dr. Kenner’s report. Ms.
Wall was aware of the psychological tests from the Nashville and Louisville police
departments. Ms. Wall recalled that she filed suit to obtain the Nashville results but
could not recall if she was successful. Ms. Wall did not request a pathologist to examine
Dr. Harlan’s work. Ms. Wall recalled that there were problems with Dr. Harlan’s work
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as a pathologist at the time. She did not request funds for an additional pathologist
because Petitioner admitted that he shot and killed the victim. There was no issue as to
what killed the victim.
On July 15, 2019, the post-conviction court entered an encyclopedic, and yet
cogently written, 72-page order denying the petition for post-conviction relief. The post-
conviction court found that it was bound by the Tennessee Supreme Court’s “orders,
rule[s], and precedents” and concluded that Petitioner was not entitled to relief in regards
to additional funding for expert witnesses. The post-conviction court found that sixty-
nine of seventy-one witnesses’ testimony would be irrelevant or cumulative. The post-
conviction court found that Petitioner was not a credible witness and specifically found
that each of Petitioner’s previous attorneys were credible. The post-conviction court
aptly addressed each issue raised by Petitioner and found that Petitioner failed to
establish that he received ineffective assistance of counsel. The post-conviction went on
to find that Petitioner waived several issues from his petition for post-conviction relief
because the issues were either not raised on direct appeal, previously decided, or no proof
was presented at the post-conviction evidentiary hearing. It is from that denial that
Petitioner now appeals.
Analysis
On appeal, Petitioner presents six issues for review. He argues: (1) that the
preponderance of the evidence weighs against the post-conviction court’s determination
that Petitioner was not a credible witness; (2) that Petitioner was entitled to state funded
experts and investigators on post-conviction; (3) that Petitioner’s right to compulsory
process was violated by the post-conviction court’s failure to allow Petitioner to call
witnesses at the post-conviction hearing; (4) that the post-conviction court improperly
determined that Petitioner did not accept a plea offer; (5) that the post-conviction court
erred in finding Petitioner was not a credible witness; and (6) that trial counsel was
ineffective for failing to call witnesses at trial to support a crime of passion defense. In
our view, many of these issues are interrelated. Therefore, we will address the issues as
presented irrespective of Petitioner’s numbering.
Standard of Review
Post-conviction relief is available for any conviction or sentence that is “void or
voidable because of the abridgment of any right guaranteed by the Constitution of
Tennessee or the Constitution of the United States.” T.C.A. § 40-30-103. In order to
prevail in a claim for post-conviction relief, a petitioner must prove his factual allegations
by clear and convincing evidence. T.C.A. § 40-30-110(f); Momon v. State, 18 S.W.3d
152, 156 (Tenn. 1999). “Evidence is clear and convincing when there is no serious or
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substantial doubt about the correctness of the conclusions drawn from the evidence.”
Hicks v. State, 983 S.W.2d 240, 245 (Tenn. Crim. App. 1998). On appeal, a post-
conviction court’s findings of fact are conclusive unless the evidence preponderates
otherwise. Vaughn v. State, 202 S.W.3d 106, 115 (Tenn. 2006). Accordingly, questions
concerning witness credibility, the weight and value to be given to testimony, and the
factual issues raised by the evidence are to be resolved by the post-conviction court, and
an appellate court may not substitute its own inferences for those drawn by the post-
conviction court. State v. Honeycutt, 54 S.W.3d 762, 766-67 (Tenn. 2001). However,
the post-conviction court’s conclusions of law and application of the law to the facts are
reviewed under a purely de novo standard, with no presumption of correctness. Fields v.
State, 40 S.W.3d 450, 458 (Tenn. 2001).
Denial of Expert Funding
Petitioner complains that he was denied the constitutional right to a “full and fair
post-conviction hearing” because the post-conviction court denied expert funding. While
acknowledging that indigent, non-capital post-conviction petitioners are not
constitutionally entitled to expert support services at the expense of the State, Petitioner
argues that the current law in Tennessee is “fundamentally flawed” and should be
reviewed in light of the United States Supreme Court decision in Martinez v. Ryan, 566
U.S. 1 (2012). The State, on the other hand, cites Davis v. State, 912 S.W.2d 689 (Tenn.
1995), and argues that Petitioner was not entitled to expert services in a post-conviction
proceeding.
Tennessee Code Annotated section 40-14-207(b) entitled “Compensation and
salaries; necessary services” provides in pertinent part as follows:
(b) In capital cases where the defendant has been found to be indigent by
the court of record having jurisdiction of the case, the court in an ex parte
hearing may, in its discretion, determine that investigative or expert
services or other similar services are necessary to ensure that the
constitutional rights of the defendant are properly protected. If that
determination is made, the court may grant prior authorization for these
necessary services in a reasonable amount to be determined by the court.
The authorization shall be evidenced by a signed order of the court. The
order shall provide for the reimbursement of reasonable and necessary
expenses by the administrative director of the courts as authorized by this
part and rules promulgated thereunder by the supreme court.
In Owens v. State, our supreme court held that Tennessee Code Annotated section
40-14-207(b) applies to post-conviction capital cases. 908 S.W.2d 923, 927-28 (Tenn.
- 16 -
1995). That same year, in Davis v. State, our supreme court noted that “[i]n Tennessee
there is no rule or statute that entitles a non-capital post-conviction petitioner to state
funded expert assistance.” 912 S.W.2d 689, 695 (Tenn. 1995) (citing T.C.A. § 40-14-
207(b)). After examining applicable cases decided by the Supreme Court of the United
States, as well as the Tennessee Constitution, our supreme court held that “the state is not
required to provide expert assistance to indigent non-capital post-conviction petitioners.”
Id. at 696-97.
In Martinez, the United States Supreme Court held that
[w]here, under state law, claims of ineffective assistance of trial counsel
must be raised in an initial-review collateral proceeding, a procedural
default will not bar a federal habeas court from hearing a substantial claim
of ineffective assistance at trial if, in the initial-review collateral
proceeding, there was no counsel or counsel in that proceeding was
ineffective.
Martinez, 566 U.S. at 17. This Court has recognized that the supreme court’s holding in
Martinez was specifically limited to establishing an equitable exception to federal rules of
procedural default in the context of a federal habeas proceeding. See Ruben Pimentel v.
State, No. M2011-01309-CCA-R3-PC, 2013 WL 4505402, at *3 (Tenn. Crim. App. Aug.
21, 2013), no perm. app. filed.
Here, Petitioner has not presented any reason for this Court to reverse prior
precedent and establish a new rule of law allowing a petitioner in a non-capital case to
receive state funding for an expert at the post-conviction stage. Petitioner has presented
this issue to this Court before in an interlocutory appeal, and it was rejected. State v.
Michael F. Maraschiello, M2007-01968-CCA-R9-CO, at *2 (Tenn. Crim. App. Sept. 26,
2007) (order). Moreover, we do not see how Martinez applies to Petitioner’s non-capital
case on the issue of expert funding at the post-conviction stage. Therefore, the post-
conviction court properly denied Petitioner’s request for funding for a mental health
expert witness at the post-conviction stage. See Henry Lee Burrell v. State, No. M2015-
02115-CCA-R3-PC, 2017 WL 943363, at * (Tenn. Crim. App. Mar. 9, 2017)
(determining that the petitioner, who pled guilty to six counts of first degree murder, was
not entitled to a mental health expert at the expense of the state during post-conviction
proceedings), no perm. app. filed; Wesley Jones v. State, No. W2015-01481-CCA-R3-
PC, 2016 WL 4357422, at *22 (Tenn. Crim. App. Aug. 11, 2016) (determining the post-
conviction court did not err in finding petitioner who was convicted of first degree
murder was not entitled to assistance from a DNA expert at the post-conviction hearing),
perm. app. denied (Tenn. Oct. 21, 2016); Klein Adlei Rawlins v. State, No. M2010-
02105-CCA-R3-PC, 2012 WL 4470650, at *14 (Tenn. Crim. App. Sept. 27, 2012)
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(finding that the post-conviction court did not err in determining that the petitioner, who
was convicted of first degree felony murder and aggravated child abuse or neglect in a
non-capital case, was not entitled to assistance from an expert at the post-conviction
hearing), perm. app. denied (Tenn. Feb. 25, 2013); Sammie Lee Taylor v. State, No.
W1999-00977-CCA-R3-PC, 2000 WL 714387, at *5-6 (Tenn. Crim. App. May 26, 2000)
(finding that the post-conviction court did not err in refusing to grant the petitioner
assistance from an expert at the post-conviction hearing where the petitioner, who was
convicted of felony murder, especially aggravated kidnapping, especially aggravated
robbery, and aggravated sexual battery and received a sentence of life without parole plus
sixty-two years), perm. app. denied (Tenn. Dec. 4, 2000). Petitioner is not entitled to
relief on this issue.
Cumulative Witnesses
Next, Petitioner takes issue with the post-conviction court’s determination that
many of his proposed witnesses were either cumulative or irrelevant. Petitioner insists
that the post-conviction court’s determination that the witnesses could not testify at the
hearing violated his right to compulsory process under the Sixth Amendment of the
United States Constitution and Article I, Section 9 of the Tennessee Constitution.
Petitioner argues that the witnesses were necessary to establish that his trial counsel was
ineffective for failing to develop proof at trial to support his theory of defense that the
crime was committed in the heat of passion and therefore affected his ability to form the
intent to commit murder. The State counters that the post-conviction court properly
determined that most of the proposed witnesses were either cumulative or irrelevant.
Prior to the post-conviction hearing, Petitioner filed a motion for “Pre-Trial
Determination.” This motion listed a total of 71 possible witnesses whom Petitioner
wished to call at the hearing. Petitioner then filed an additional motion with
“Supplemental Information” for the motion, this time listing 76 witnesses. This motion
was filed pro se. As part of this motion, Petitioner included a detailed explanation as to
the anticipated testimony of each of the proposed witnesses.
The post-conviction court approved subpoenas for two witnesses, including Ms.
Daniels, the Public Defender’s investigator, and Mr. Wheeler, the investigator for Ms.
Wall, Petitioner’s former lawyer. The post-conviction court determined that:
[A]ll other potential witnesses listed by [P]etitioner shall not be called as
witnesses in the post-conviction proceedings as their testimony would be
irrelevant or cumulative. The attorneys who represented [P]etitioner have,
and can testify regarding their attempts to contact witnesses to testify at
trial and defense strategies. The status of [P]etitioner’s mental health was
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litigated at trial, and thus [P]etitioner does not have the right to relitigate the
same in the post-conviction proceedings. Likewise, his character and
military record were litigated at trial. Many of the witnesses listed testified
at trial.
The post-conviction court mentioned that if the majority of these proposed witnesses
testified similarly to how Petitioner explained their proposed testimony, the testimony
“would have been cumulative to the testimony offered at trial and by [P]etitioner on post-
conviction.” The post-conviction court also determined that there was no proof presented
that any of Petitioner’s counsels were either on notice of these witnesses prior to trial or
whether trial counsel had even interviewed them. Petitioner did not present the testimony
of Ms. Daniels or Mr. Wheeler at the post-conviction hearing. However, Mr. Logusz
testified at the hearing without being subpoenaed.
Under both our state and federal constitutions, a defendant has the right to
compulsory process for obtaining witnesses in their favor. See U.S. Const. amend VI;
Tenn. Const. art. I, § 9; T.C.A. § 4-17-105. The United States Supreme Court discussed
the implications of this right as follows:
The right to offer the testimony of witnesses, and to compel their
attendance, if necessary, is in plain terms the right to present a defense, the
right to present the defendant’s version of the facts as well as the
prosecution’s to the jury so it may decide where the truth lies. Just as an
accused has the right to confront the prosecution’s witnesses for the
purpose of challenging their testimony, he has the right to present his own
witnesses to establish a defense. This right is a fundamental element of due
process of law.
Washington v. Texas, 388 U.S. 14, 19 (1976). “Although an accused in a criminal trial
has a constitutional right to the compulsory attendance of witnesses under the Sixth
Amendment of the United States Constitution, and Article I, Section 9, of the
Constitution of Tennessee, the right to compulsory process is not unlimited.” State v.
Smith, 639 S.W.2d 677, 680 (Tenn. Crim. App. 1982). The court continued:
“A court is not required to issue compulsory process for anyone whom
accused may designate as a witness; the constitutional right to compulsory
process requires such process for, and only for, competent, material, and
resident witnesses whose expected testimony will be admissible. Within
these limitations[,] accused may obtain the attendance of any witnesses he
cares to use.”
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Id. (quoting Bacon v. State, 385 S.W.2d 107, 109 (1964)). Consistent with this right,
Tennessee statutes generally direct the clerks of courts in which criminal cases are
pending to issue subpoenas “at any time, to any part of the state, for such witnesses as
either the district attorney general or the defendant may require.” T.C.A. § 40-17-107(a);
see Tenn. R. Crim. P. 17(a).
However, a criminal defendant’s right to compulsory process is not absolute. The
United States Constitution only prohibits a state from denying a defendant the ability to
present testimony that is “‘relevant and material, and . . . vital to the defense.’” United
States v. Valenzuela Bernal, 458 U.S. 858, 867 (1982) (quoting Washington, 388 U.S. at
16). Therefore, “a court has the power and the duty to prevent abuse of its process by
abating subpoenas for witnesses whose testimony would be immaterial.” State v.
Womack, 591 S.W.2d 437, 443 (Tenn. Crim. App. 1979). In reviewing whether a trial
court abused its exercise of power and duty to prevent abuse of its process, we apply an
abuse of discretion standard. State v. Connie Easterly, No. M2000-00077-CCA-R10-CO,
2001 WL 208514, at *7 (Tenn. Crim. App. Mar. 1, 2001), no perm. app. filed.
During the lengthy post-conviction proceedings, stretching over a number of years
and taking place during several different hearings, Petitioner never set forth any proof as
to whether any of the proposed witnesses were interviewed by counsel prior to trial. In
fact, there was only proof presented that counsel had knowledge of one witness on the list
apart from those witnesses who testified at the trial−Dr. Garth Nicholson. On appeal,
Petitioner argues that many of the witnesses would have testified regarding Petitioner’s
mental problems and/or the victim’s mental problems. As evidenced by our recitation of
the testimony and proof at trial above, proof on both of these issues was presented to the
jury. At trial, Dr. Farooque testified about the victim’s mental problems as a rebuttal
witness for the State explaining that “interviews with [Petitioner’s] friends and family
had revealed that [Petitioner’s] beliefs concerning his wife, as described by [Petitioner] to
the doctor, were based in reality.” See Maraschiello, 88 S.W.3d at 600. Additionally,
Petitioner put forth proof of his own diminished capacity at trial through Mr. Wilkinson,
Dr. Auble, and Dr. Kenner. There was proof presented at trial that Petitioner was not
entirely connected with reality and suffered from “delusional disorder, post-traumatic
stress disorder, and depression.” The post-conviction court did not abuse its discretion.
Petitioner is not entitled to relief on this issue.
Ineffective Assistance of Counsel
Petitioner filed an initial petition alleging ineffective assistance of counsel.
Throughout the many years that this case has been pending, Petitioner filed several
amended petitions, both through counsel and pro se. In those petitions, he raised various
allegations of ineffective assistance of counsel. As noted by the post-conviction court in
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its order denying relief, Petitioner abandoned some of these issues by failing to raise
them at the hearing on the post-conviction petition. The post-conviction court
painstakingly combed through each of Petitioner’s amended petitions, determining which
issues were abandoned at the hearing. We agree with this assessment. Any issues not
raised in the petition and not raised in the post-conviction court are considered
abandoned. Likewise, any issues that were raised in the post-conviction court that have
not been pursued on appeal are deemed abandoned. See Ronnie Jackson, Jr. v. State, No.
W2008-02280-CCA-R3-PC, 2009 WL 3430151, at *6 n.2 (Tenn. Crim. App. Oct. 26,
2009) (“While the Petitioner raised additional issues in his petition for post-conviction
relief, he has abandoned those issues on appeal.”), perm. app. denied (Tenn. Apr. 16,
2010).
Both the Sixth Amendment to the Constitution of the United States and article I,
section 9 of the Tennessee Constitution guarantee the right of an accused to the effective
assistance of counsel. See Davidson v. State, 453 S.W.3d 386, 392-93 (Tenn. 2014). In
order to sustain a claim of ineffective assistance of counsel, a petitioner must demonstrate
that counsel’s representation fell below the range of competence demanded of attorneys
in criminal cases. Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). Under the two-
prong test established by Strickland v. Washington, 466 U.S. 668, 687 (1984), a petitioner
must prove that counsel’s performance was deficient and that the deficiency prejudiced
the defense. 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 applied in federal
cases also applies in Tennessee). Because a petitioner must establish both elements in
order to prevail on a claim of ineffective assistance of counsel, “failure to prove either
deficient performance or resulting prejudice provides a sufficient basis to deny relief on
the claim.” Henley v. State, 960 S.W.2d 572, 580 (Tenn. 1997). “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 v. State, 938 S.W.2d 363, 370
(Tenn. 1996) (citing Strickland, 466 U.S. at 697). The test for deficient performance is
whether counsel’s acts or omissions fell below an objective standard of reasonableness
under prevailing professional norms. Strickland, 466 U.S. at 688; Henley, 960 S.W.2d at
579. This Court must evaluate the questionable conduct from the attorney’s perspective
at the time, Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982), and “should indulge a strong
presumption that counsel’s conduct falls within the wide range of reasonable professional
assistance,” State v. Burns, 6 S.W.3d 453, 462 (Tenn. 1999). This Court will not use
hindsight to second-guess a reasonable trial strategy, even if a different procedure or
strategy might have produced a different result. See Adkins v. State, 911 S.W.2d 334,
347 (Tenn. Crim. App. 1994); Williams v. State, 599 S.W.2d 276, 279-80 (Tenn. Crim.
App. 1980). However, this deference to the tactical decisions of trial counsel is
dependent upon a showing that the decisions were made after adequate preparation.
Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992).
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Even if a petitioner shows that counsel’s representation was deficient, the
petitioner must also satisfy the prejudice prong of the Strickland test in order to obtain
relief. The question is “whether counsel’s deficient performance renders the result of the
trial unreliable or the proceeding fundamentally unfair.” Lockhart v. Fretwell, 506 U.S.
364, 372 (1993). A petitioner must show that there is a reasonable probability “sufficient
to undermine confidence in the outcome” that, “but for counsel’s unprofessional errors,
the result of the proceeding would have been different.” Burns, 6 S.W.3d at 463 (quoting
Strickland, 466 U.S. at 694).
I. Trial Counsel’s Failure to Present Witnesses to Support Heat of Passion Defense
To the extent that Petitioner argues trial counsel was ineffective for failing to
pursue a “heat of passion” defense by calling witnesses Ms. Wall possibly did not even
know about, we note that this defense is antipodean to the diminished capacity defense
advanced by trial counsel at trial. Trial counsel is never required to “pursue inconsistent
defense theories [in order] to provide constitutionally effective representation.” Felts v.
State, 354 S.W.3d 266, 280 (Tenn. 2011) (determining trial counsel was not ineffective
for failing to pursue self-defense and voluntary manslaughter defenses). Though Ms.
Wall testified that she and Mr. Wheeler had a list of over 100 names of potential
witnesses that they investigated prior to trial, with the exception of Dr. Nicholson,
Petitioner failed to show that Ms. Wall was even aware of the existence of the witnesses
on the list that he proposed to testify at the post-conviction hearing save those that were
called to testify at trial. “[W]ithout information about these potential witnesses, defense
counsel could not be expected to contact them” and therefore could not be deemed
ineffective for failing to do so. Jerry Wayne Lankford v. State, No. E2010-00510-CCA-
R3-PC, 2011 WL 1118494, at *6 (Tenn. Crim. App. Mar. 28, 2011), no perm. app. filed.
Moreover, the proof at trial overwhelmingly established premeditation, so it would have
been both irrational and unreasonable for trial counsel to pursue a theory that the murder
was voluntary manslaughter. See Maraschiello, 88 S.W.3d at 592. Petitioner has failed
to show prejudice as a result of trial counsel’s failure to call witnesses at trial to support a
“heat of passion” defense.
II. Communication/Existence of Plea Agreement
Petitioner complains that trial counsel was ineffective for failing to communicate
to the State his acceptance of an alleged 25-year plea offer to the crime of second-degree
murder. Petitioner insists that his testimony on the matter was “clear” and that the facts
about the plea agreement are “documented” and that the post-conviction court erred by
making the determination that he was not a credible witness.
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The right to effective assistance of counsel extends to critical pre-trial stages,
including plea bargaining. Missouri v. Frye, 566 U.S. 134, 140 (2012) (citing Hill v.
Lockhart, 474 U.S. 52, 58-59 (1985)); see also Lafler v. Cooper, 566 U.S. 156, 162
(2012). During plea negotiations, trial counsel has the duty to promptly communicate
and explain any plea offers extended by the State. Nesbit v. State, 452 S.W.3d 779, 800
(Tenn. 2014); see also Frye, 566 U.S. at 145 (“[A]s a general rule, defense counsel has
the duty to communicate formal offers from the prosecution to accept a plea on terms and
conditions that may be favorable to the accused.”). Trial counsel must provide the
defendant “with competent and fully informed advice, including an analysis of the risks
that the [defendant] would face in proceeding to trial.” Nesbit, 452 S.W.3d at 800
(quoting Burt v. Titlow, 571 U.S. 12, 25 (2013) (Sotomayor, J., concurring)). An
evaluation of counsel’s performance in advising a defendant whether to accept or reject a
plea offer “depends as an initial matter, not on whether a court would retrospectively
consider counsel’s advice to be right or wrong, but on whether that advice was within the
range of competence demanded of attorneys in criminal cases.” McMann v. Richardson,
397 U.S. 759, 771 (1970). As other appellate courts have recognized, “a defense
attorney’s simple misjudgment as to the strength of the prosecution’s case, the chances of
acquittal, or the sentence a defendant is likely to receive upon conviction, among other
matters involving the exercise of counsel’s judgment, will not, without more, give rise to
a claim of ineffective assistance of counsel.” Com. v. Mahar, 809 N.E.2d 989, 994
(Mass. 2004) (quoting In re Alvernaz, 830 P.2d 747, 755 (Cal. 1992)). “[S]trategic
choices made after thorough investigation of law and facts relevant to plausible options
are virtually unchallengeable; and strategic choices made after less than complete
investigation are reasonable precisely to the extent that reasonable professional
judgments support the limitations on investigation.” Felts v. State, 354 S.W.3d 266, 277
(Tenn. 2011) (quoting Strickland, 466 U.S. at 690-91).
In order to establish prejudice, a petitioner must show that there is a reasonable
probability “sufficient to undermine confidence in the outcome” that, “but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” Burns, 6
S.W.3d at 463 (quoting Strickland, 466 U.S. at 694). “In the context of pleas, a
defendant must show the outcome of the plea process would have been different with
competent advice.” Lafler, 566 U.S. at 163. “Even if the trial itself is free from
constitutional flaw, the defendant who goes to trial instead of taking a more favorable
plea may be prejudiced from either a conviction on more serious counts or the imposition
of a more severe sentence.” Id. at 166. The Tennessee Supreme Court has adopted the
following test for determining prejudice in this context:
[A] defendant claiming that trial counsel’s performance was deficient in the
plea negotiations process has the burden to show by a reasonable
probability that, but for counsel’s deficient representation, (1) the defendant
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would have accepted the plea, (2) the prosecution would not have
withdrawn the offer, and (3) the trial court would have accepted the terms
of the offer, such that the penalty under its terms would have been less
severe than the penalty actually imposed.
Nesbit, 452 S.W.3d at 800-01 (citing Lafler, 566 U.S. at 164).
In this case, the post-conviction court repeatedly determined that Petitioner was
not a credible witness. With regard to the plea agreement, the post-conviction court
determined that there is “little credible evidence that the State actually made an offer for
[Mr. Bloodworth] to communicate.” The record includes a pro se motion to “effectuate
the offer [Petitioner] insists the State made, but the only person who has presented proof
supporting [Petitioner’s] contention is [Petitioner].” The post-conviction court continued:
No additional pleadings, order, or hearings regarding the supposed offer
appear in the trial court record, and during the post-conviction hearing
[Petitioner] was the only person who testified regarding the existence of the
25-year plea deal. This Court does not find Petitioner’s testimony credible.
Mr. Bloodworth testified he did not remember if any specific plea offers
were made in this case, but at the time counsel represented [Petitioner]—
which occurred very early in Petitioner’s Circuit Court case—the State was
likely still determining whether the State would seek the death penalty.
The Court finds Mr. Bloodworth’s testimony credible, and based on the
tenor of Mr. Bloodworth’s testimony, the Court finds it likely that if Mr.
Bloodworth had been presented the offer Petitioner insists the State made,
counsel would have discussed the deal with Petitioner.
The Court has no reason to doubt Mr. Logusz discussed the possibility of
Petitioner’s pleading guilty with the Petitioner and Mr. Bloodworth, but no
evidence was presented regarding the exact nature of the plea offer Mr.
Logusz claimed he discussed with Petitioner and his then-attorney. Mr.
Logusz did not state the exact terms of the plea, and neither Mr.
Bloodworth nor [Petitioner] was asked about their discussions with Mr.
Logusz. Thus, his testimony is unavailing to Petitioner.
The only proof of a plea offer, apart from Petitioner’s testimony, was
presented by Mr. DeWerff, who memorialized a 55-year plea deal offered
by the State around the time of the suppression hearing. Both Mr. DeWerff
and [Petitioner] testified that counsel presented this offer to Petitioner, who
rejected the proposed deal.
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In sum, Petitioner has failed to present credible evidence that the State
actually made an offer for the Petitioner to plead guilty to second degree
murder and receive a 25-year sentence.
Clearly the post-conviction court determined that Petitioner failed to prove that
trial counsel’s performance was deficient because Petitioner failed to prove the existence
of the 25-year plea offer. An attorney’s performance cannot be deficient for failing to
convey an offer that never existed.
The post-conviction court found Petitioner failed to prove by clear and convincing
evidence the existence of a 25-year plea offer from the State. The evidence in the record
does not preponderate against this finding. See Vaughn, 202 S.W.3d at 115. The post-
conviction court did not accredit Petitioner’s testimony regarding this offer, and we will
not second-guess such credibility determinations on appeal. See Honeycutt, 54 S.W.3d at
766-67. The record does not support a finding that this offer was ever made. Apart from
Petitioner’s testimony, there was a copy of a letter from Petitioner to counsel outlining
the plea deal and indicating his acceptance of the deal and an un-notarized affidavit from
Petitioner in the record. There was no proof given as to when this letter was sent or
whether Mr. Bloodworth received it. Petitioner also failed to show that the State would
not have withdrawn the offer and failed to show that the trial court would have accepted
the plea agreement. Frye, 566 U.S. at 146. Petitioner claims that the offer was made less
than a month after indictment. Because Petitioner failed to establish prejudice under the
test set forth by our supreme court in Nesbit, he is not entitled to post-conviction relief for
ineffective assistance of counsel on this issue.
Conclusion
For the foregoing reasons, the judgment of the post-conviction court is affirmed.
____________________________________
TIMOTHY L. EASTER, JUDGE
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