Bruce D. Mendenhall v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs September 20, 2016 at Knoxville
BRUCE D. MENDENHALL v. STATE OF TENNESSEE
Appeal from the Criminal Court for Davidson County
No. 2007-D-2738 Steve R. Dozier, Judge
No. M2015-02091-CCA-R3-PC – January 25, 2017
The petitioner, Bruce D. Mendenhall, was convicted in 2007 of first degree premeditated
murder and sentenced to life imprisonment. His conviction was affirmed on direct
appeal, and his application for permission to appeal was denied. Subsequently, he filed a
petition for habeas corpus relief, which the court treated as a petition for post-conviction
relief, alleging that trial counsel had been ineffective. Following an evidentiary hearing,
the post-conviction court concluded that the petitioner‟s claims were without merit. The
record on appeal supports this determination. Accordingly, the order of the post-
conviction court denying relief is affirmed.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
ALAN E. GLENN, J., delivered the opinion of the court, in which THOMAS T. WOODALL,
P.J., and ROBERT H. MONTGOMERY, JR., J., joined.
Nathan D. Cate, Nashville, Tennessee, for the appellant, Bruce D. Mendenhall.
Herbert H. Slatery III, Attorney General and Reporter; M. Todd Ridley, Assistant
Attorney General; Glenn R. Funk, District Attorney General; and Pamela Anderson,
Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
FACTS
The facts upon which the petitioner‟s conviction was based are set out in the
opinion of this court on the direct appeal:
[The petitioner‟s] trial began on May 10, 2010. The victim‟s sister
Roxanna Wayman testified that Ms. Hulbert [the victim] had a history of
drug and alcohol addiction, and Ms. Wayman was aware that Ms. Hubert
[sic] was engaging in prostitution at the time of her death.
Nicholas Turner, the head of security at the Travel Centers of
America truck stop in Nashville, testified that he discovered the victim‟s
body in the early morning hours on June 26, 2007. Mr. Turner found the
body at approximately 12:50 a.m. He checked to see if the victim was
breathing and “didn‟t see anything so [he] called 911.” He estimated that
the first police officer arrived approximately thirty seconds to one minute
after he made the emergency call. On cross-examination, Mr. Turner
testified that he was training another security officer that night. The officer,
Robert Nelson, left at approximately 12:15 a.m. Mr. Turner “had him
basically tail [him] on [his] duties. . . .” While walking with Mr. Nelson
around the truck stop, Mr. Turner showed Mr. Nelson a hole in a fence near
where the body was found. Mr. Turner testified that prostitutes and drug
dealers would enter the property through the hole in the fence. Mr. Turner
testified that he had last checked the area where the victim‟s body was
found at approximately 12:15 or 12:20 a.m., and he had not seen the body
there.
Sgt. Robert Durbin was patrolling the area of downtown Nashville
on June 26, 2007. At approximately 1:00 a.m., he was dispatched to the
Truck Stops of America in response to a dead body. When he arrived, he
met with private security officer Nicholas Turner, who took Sgt. Durbin to
the area where the body was discovered behind some parked trailers. Sgt.
Durbin testified that “it was plainly apparent to [him] that [Ms. Hulbert]
was deceased.” She was naked and had “blood all over her head.” She was
lying on her back and her feet were positioned with the soles together and
her knees spread apart. Her left hand was stretched out beside her with her
wrist turned up. She was wearing an ID bracelet, and the name on it was
clearly visible.
Sgt. Stephen Beck of the Metro police department arrived at the
crime scene after Sgt. Durbin. Sgt. Beck noticed “some blood droplets” on
the ground between two trailers. He also saw a “muddy area outside of the
trailer going towards the area [where the body was found] and there was a
footprint in there. . . .” Sgt. Beck testified that the footprint “seemed out of
place as there were no other footprints in and around the area.”
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Officer Tim Matthews looked in several trash barrels around the
truck stop, searching for weapons, women‟s clothing, anything with blood
on it, or any plastic similar to the plastic found under the victim‟s head, but
he did not find anything. He also searched under the trailers.
Lt. Frank Regans was the supervisor of the crime scene. He worked
in the identification unit. Lt. Regans took two castings of two different
shoe prints found in the area of the victim‟s body.
Officer Charles Linville testified that the victim‟s face and head
were bloody. There was also blood on the victim‟s feet. She also had
scratches and bruises. He collected swabs from the victim‟s chest area,
thigh area, and stomach.
Lee Meeks saw the victim in the evening on June 25, 2007. Mr.
Meeks, the victim, and a man named “Hollywood” were “just riding around
using drugs” in Hollywood‟s van. Hollywood stole “six to eight cases” of
beer and sold the beer. They used the money from selling beer to buy
“crack.” At approximately 10:20 to 10:30 p.m., they parked near the truck
stop. Approximately 45 minutes after they arrived, the victim left the van.
Mr. Meeks thought the victim was going to walk to White‟s Front Market
to meet “her old man Derrick.” The last time Mr. Meeks saw the victim
she walked between two parked trucks. The victim did not return to the
van. Mr. Meeks and Hollywood left at approximately 1:30 a.m. Mr. Meeks
testified that he did not contact the police when he learned that the victim
had been killed because he had a criminal record. He was interviewed by
the police while he was incarcerated for vandalism, and he agreed to submit
a DNA sample.
Joseph Uhlir, a retired truck driver, had parked for the night at the
truck stop in Nashville. He testified that he arrived “roughly maybe about
11:00 to the 12:00 midnight frame roughly.” He “backed [his] rig” into a
parking spot in the back where it was “kind of secluded.” He noticed
another truck park beside him. He testified that it drove in “faster in [his]
opinion than normal.” He also thought it was unusual that the truck parked
in the opposite direction as his truck. He testified that the truck was also
blocking another truck to its left. Mr. Uhlir radioed the truck beside him to
tell him that he was blocking another driver, and the driver stated that he
was “not going to be [t]here that long.” Mr. Uhlir finished working on his
logbook, listened to the radio “just for a little bit,” and “climbed in the back
and tr[ied] to get some rest.” He then heard the engine of the truck beside
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him. The engine got “louder and louder.” Mr. Uhlir looked out of his
window to make sure the truck did not collide with his truck while
reversing, and the headlights blinded him. Mr. Uhlir testified that he
“thought the tractor was white,” but that “it could have been a light yellow
color[,] too. . . .” He testified that the other truck was at the truck stop for
less than half an hour.
Medical examiner Feng Li performed an autopsy on the victim. The
victim was 25 years old at the time of her death. She died from a gunshot
wound on the back right side of her head. The projectile was still in the
victim‟s head, and based on the location of the bullet, Dr. Li determined
that the victim was shot from behind and at a downward trajectory. The
wound was consistent with a “close range gunshot wound” because there
was soot material around the entrance wound. Dr. Li testified that the
victim “would have died instantly” from the gunshot. The victim also had
an abrasion caused by some type of blunt object near the gunshot entrance
wound. Dr. Li testified that the victim had “multiple blunt force injuries”
and other cuts and abrasions. Dr. Li described the victim‟s other injuries.
She had bruises and contusions around her left eye, nose, and forehead and
around her neck and chest. She had superficial cuts on her hands. Dr. Li
testified that the victim‟s injuries could have been inflicted by a nightstick.
Dr. Li testified that the victim also had a laceration of the anus, which he
testified was inflicted at the time of death or after the victim‟s death. The
victim also had contusions around her genitalia. Dr. Li testified that those
injuries were caused by blunt force and could have been caused by an erect
penis. Dr. Li testified that the victim had a “large area of skin defect on the
right buttock area,” which Dr. Li testified could have been caused by a
razor. The wound was approximately two inches by two and a half inches
and was likely caused at the time of death or after death. Dr. Li collected a
rape kit and DNA swabs from the victim‟s body.
Sgt. Postiglione testified that he viewed the videotape recordings
obtained from the truck stop and two neighboring businesses and developed
a suspect vehicle. On July 12, 2007, he and Detective Lee Freeman went to
the truck stop to “locate some fuel tickets.” As he drove towards the truck
stop, Sgt. Postiglione observed a yellow tractor trailer similar to the truck
he had observed in the video drive past the truck stop. Sgt. Postiglione
followed the truck around the block and into the truck stop, where the truck
parked in the parking lot. Sgt. Postiglione approached the driver‟s side of
the truck and “banged on the door.” There was no response, and he noticed
the curtains had been pulled closed. He “banged on the door a second
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time[,]” and Sgt. Postiglione saw the curtain open and saw [the petitioner]
“looking down” at him. Sgt. Postiglione showed his identification and
asked to speak to [the petitioner], and [the petitioner] exited the truck. [The
petitioner‟s] shirt was “all the way opened[,]” and he was not wearing
shoes. Sgt. Postiglione testified that [the petitioner] “was making motions
like he had just woken up like he had been asleep.” Sgt. Postiglione
explained that he was looking for a vehicle similar in description to his, and
they “had a little brief discussion.” Sgt. Postiglione then asked [the
petitioner] if he would submit DNA samples, and [the petitioner]
consented. [The petitioner] also provided Sgt. Postiglione with his Illinois
driver‟s license. Detective Freeman took DNA samples from [the
petitioner].
Sgt. Postiglione noticed what “appeared to be blood drops on the
driver‟s door, several blood drops.” He asked to search [the petitioner‟s]
truck, and [the petitioner] consented. Sgt. Postiglione stepped into the truck
and “sat on the back mattress.” He noticed a bag between the driver‟s seat
and the bed, and he looked inside. He saw what appeared to be bloody
clothing. He asked [the petitioner] if he could explain the contents of the
bag, and [the petitioner] told him that he had cut his leg getting in and out
of his truck and that he would “wipe the blood and then place it in the bag.”
Sgt. Postiglione asked [the petitioner] to show him the cut. [The petitioner]
pulled up his pants leg, but Sgt. Postiglione testified that he saw no cuts,
scabs, or scars on [the petitioner‟s] leg. He testified, “[The petitioner]
couldn‟t explain it any further.”
Inside the truck, Sgt. Postiglione also saw a pair of black shoes. He
picked them up and noticed that the tread pattern was similar to the tread
pattern of a footprint found near the victim‟s body. He showed Detective
Freeman the shoes and asked if he thought it looked similar, and Detective
Freeman agreed that it did. Sgt. Postiglione testified that, prior to getting in
the truck, he asked [the petitioner] if he had a weapon in the truck, which
[the petitioner] denied. Sgt. Postiglione testified that he asked [the
petitioner], “is this the truck [they]‟ve been looking for[,]” and [the
petitioner] “shrugged his shoulders. . . .” Sgt. Postiglione testified that he
asked again if it was “the truck [they]‟ve been looking for[,]” and [the
petitioner] shrugged his shoulders again. Sgt. Postiglione then asked [the
petitioner] if he was “the person [they‟d] been looking for[,]” and [the
petitioner] “just looked at [him] and he shrugged his shoulders.” [The
petitioner] then responded, “[I]f you say so.” Sgt. Postiglione then asked
[the petitioner] again if there was a weapon inside the truck, and [the
5
petitioner] admitted that he had a .22 caliber gun inside. Sgt. Postiglione
testified that he knew that the victim was killed with a .22 caliber gun. Sgt.
Postiglione placed [the petitioner] under arrest, and [the petitioner] was
taken to General Hospital to be examined and then taken to police
headquarters. At the headquarters, Sgt. Postiglione advised [the petitioner]
of his Miranda rights, and [the petitioner] agreed to give a statement.
In a videotaped statement, [the petitioner] is seated across the table
from Sgt. Postiglione and Detective Freeman in a small interview room.
Sgt. Postiglione read [the petitioner‟s] rights to him, and [the petitioner]
answered affirmatively that he understood his rights. [The petitioner] then
stated that he had stopped at the Pilot truck stop and “fueled up” when
David Powell and Richie Keim approached him. [The petitioner] stated
that “they walked up” and asked, “Where‟re you going now?” [The
petitioner] told the men that it was “none of [their] business,” and the men
stated that it was “[their] business now.” [The petitioner] stated that David
rode with him in his truck to the TA truck stop, and Richie followed in
another vehicle. [The petitioner] thought there was a third person in the
vehicle. [The petitioner] went inside the TA to get something to eat. When
he returned to his truck, the victim “was sprawled out in the back.” The
men told [the petitioner], “It‟s your problem, not ours,” and left. [The
petitioner] then “proceeded to clean the mess up.” [The petitioner] stated
that the victim was not wearing any clothes, and there were “bags over her
head.” He stated that “there was blood everywhere.” [The petitioner] told
detectives that he had a .22 caliber rifle in his truck and that he believed the
victim was shot with his rifle. He stated that the men “meet [him]
everywhere.” He did not know how the men knew where he was. He
“dumped her body” behind the truck trailers at the truck stop. He stated
that he displayed her body “in plain view.” He stated that the men “were
laughing about” having had sex with the victim. When Sgt. Postiglione
asked [the petitioner] if the victim had been cut, [the petitioner] stated that
the men had told him that “she had a good tattoo.” Sgt. Postiglione had not
mentioned that the victim had a tattoo. [The petitioner‟s] demeanor while
giving the statement appeared calm.
Sgt. Postiglione subsequently located and interviewed Mr. Keim,
Mr. Powell, and Mr. Sanders and obtained their fingerprints and DNA
samples. Sgt. Postiglione testified “[t]here was no[t]--one shred of
evidence suggesting any of these individuals were involved.”
6
Detective Freeman testified that he reviewed the video recordings
obtained from the truck stop and neighboring businesses and developed a
suspect vehicle. That truck drove to the back area of the truck stop and
parked during the relevant time frame. The truck left “within a certain
amount of time without doing anything else, going to the gas pumps or
anything else.” Detective Freeman also corroborated Sgt. Postiglione‟s
testimony about the detectives‟ initial encounter with [the petitioner].
Lori Young, who is Richie Keim‟s mother, testified that Mr. Keim
has Asperger‟s disease and schizophrenia. She testified that Mr. Keim is
“wholly disabled” and cannot testify, enter into legal agreements, or drive a
vehicle. In June, 2007, Mr. Keim was living with Ms. Young in Franklin,
Kentucky. She testified that he was not able to leave without her
supervision. Ms. Young testified that it was not possible that Mr. Keim left
Kentucky and went to Tennessee without her knowledge. When officers
investigating the case came to talk to her, she allowed them to take a
statement and DNA from Mr. Keim.
Ms. Young testified that she met [the petitioner] in 2002 when her
truck broke down in Maryland, and she “received a ride from a truck driver
or two” until she got to her home in Arizona. She testified that she rode in
[the petitioner‟s] truck for “[t]wo, maybe three” days. [The petitioner]
offered to rent a house to Ms. Young, and she lived in that house for “[t]wo
and a half to three months” before she moved out. She saw [the petitioner]
“[m]aybe once at the bowling alley but [she] didn‟t speak to him[,]” and
that was the last time she saw [the petitioner].
Terry Wayne Sanders, II, testified that he lived in Elwood, Indiana.
He testified that he had spoken to [the petitioner] on two separate occasions
in 2001. The first time he spoke to [the petitioner] was after Mr. Sanders
and some friends had “vandalized his house” by wrapping toilet paper and
plastic wrap around [the petitioner‟s] trees and front porch. Mr. Sanders
was 15 years old at the time. [The petitioner] confronted Mr. Sanders. Mr.
Sanders later dated [the petitioner‟s] niece and talked to [the petitioner] one
other time in the fall of 2001. Mr. Sanders was in Albuquerque, New
Mexico, on June 25, 2007, because his mother had been involved in a car
accident. Mr. Sanders‟ niece and grandmother were killed in the accident.
Mr. Sanders arrived in Albuquerque on June 22, 2007, and returned to
Indiana on July 2, 2007.
7
Danny Davis was [the petitioner‟s] employer through his small
trucking firm at the time of [the petitioner‟s] arrest. Mr. Davis testified that
[the petitioner] had worked for him for approximately one year at the time
of [the petitioner‟s] arrest. Mr. Davis recalled a conversation between [the
petitioner], [the petitioner‟s] wife, Mr. Davis, and Mr. Davis‟s wife, in
which Mr. Davis asked [the petitioner] “why he liked these big truck stops.
. . .” Mr. Davis stated that “them lot lizards will be crawling all over your
vehicle in the big truck stops.” Mr. Davis testified that “lot lizards” is a
slang term for prostitutes. [The petitioner‟s] wife “smacked him on the
shoulder and said, „[Y]ou better not be messing with any lot lizard.‟” [The
petitioner] turned to Mr. Davis and said, “I just shoot them.” Mr. Davis
“took it, you know, as a joke . . . and kind of laughed it off. . . .” Mr. Davis
testified that company policy and the law prohibited drivers from having
weapons inside their trucks. Mr. Davis testified that [the petitioner‟s] fuel
receipts showed that [the petitioner] purchased fuel at a Pilot station in
Nashville at 12:33 p.m. on June 25, 2007.
After being recalled to the witness stand, Sgt. Postiglione testified
that he interviewed Lucas McLaughlin, a fellow inmate of [the petitioner].
McLaughlin agreed to wear a wire and record his conversations with [the
petitioner]. Sgt. Postiglione instructed McLaughlin not to speak to [the
petitioner] about the homicide, but only the “solicitation case.”
Two recorded conversations between McLaughlin and [the
petitioner] on May 2, 2008, and May 16, 2008, were played for the jury. In
the first recording, [the petitioner] told McLaughlin that he needed
someone to be an alibi witness and testify that [the petitioner] refused
consent for Sgt. Pos[tig]lione to search his truck. McLaughlin asked [the
petitioner] for Lori Young‟s address. [The petitioner] told McLaughlin, “I
would owe you dramatically[,]” and McLaughlin said, “Right, well my
thing is, Lori goes away, you know[,]” to which [the petitioner] replied,
“[Y]eah.” [The petitioner] and McLaughlin discussed where to find Ms.
Young, and McLaughlin said, “I‟ll blow the whole f[ ]ing house up. It‟s a
gas leak.” [The petitioner] replied, “[w]hatever. You know that‟s your,
that‟s your thing.” McLaughlin stated that after [the petitioner‟s] trial, they
could “settle up.” McLaughlin suggested that [the petitioner] work for his
uncle‟s trucking company and pay McLaughlin ten percent of his earnings,
and [the petitioner] agreed.
In the May 16, 2008, conversation between [the petitioner] and
McLaughlin, McLaughlin asked [the petitioner] who “David” was and
8
stated, “[I]f I‟m gonna pop his ass, I need to know why.” [The petitioner]
told McLaughlin that he was a friend of Richie and Lori. McLaughlin told
[the petitioner], “I thought about it, and I‟m just gonna do it how I‟m gonna
do it. It‟s a gas leak in the trailer, and everybody blows up. I‟m happy.
You‟re happy.” McLaughlin stated that he wanted to know “who the David
guy was and if, if he was that big of a threat [because] one thing I don‟t like
doing is innocent bystanders.” McLaughlin then asked, “[w]hat‟s one more
explosion?” and [the petitioner] replied, “Yep.” McLaughlin asked [the
petitioner] if they were “still on” and whether [the petitioner] would “pay
[him] back.” [The petitioner] again replied, “Yep.” McLaughlin said, “I‟m
thinking like roughly fifteen, fifteen thousand. And that‟s for the whole
thing, everybody. And you go about your merry day. No witnesses show
up for you.” McLaughlin told [the petitioner] that he would not contact
him, and [the petitioner] said, “[n]o connections . . . . [j]ust the number to
your uncle‟s trucking company.” McLaughlin told [the petitioner], “I ain‟t
gonna do this, then you gonna wind up having remorse, or a guilty
conscience or whatever.” [The petitioner] told McLaughlin to “do [his]
thing” and stated, “I don‟t want to know.” [The petitioner] stated, “[t]he
less I know, the better it is for you.”
McLaughlin told [the petitioner], “if I blow up the trailer, and take
out Lori and her son, I don't know his name,” and [the petitioner] stated,
“Richie.” McLaughlin then asked, “does David live there too?” [The
petitioner] answered “[n]ope” and told McLaughlin where David lived with
his daughter. McLaughlin asked, “[d]oes she need to go?” and [the
petitioner] replied, “[n]ot really, no.” McLaughlin asked [the petitioner] if
David, Lori, and Richie were “the only three that can hurt [the petitioner],”
and [the petitioner] replied, “[y]ep.” The following exchange then
occurred:
McLaughlin: Fifteen grand, I kill all three. After that, you
don‟t know me until you come out, then you just call that
phone number, talk to my uncle. My uncle will get you in
touch with me. But other than that, we don‟t know each
other.
[The petitioner]: Alright.
McLaughlin: Is that a deal?
[The petitioner]: Yeah.
9
TBI Agent Steve Scott was qualified by the trial court as an expert in
forensic firearms testing and ammunition testing. Agent Scott identified
the rifle that was found inside [the petitioner‟s] truck as a .22 caliber rifle.
A .22 caliber cartridge was found in the top drawer of a storage
compartment behind the driver‟s seat in [the petitioner‟s] truck. Another
.22 caliber cartridge case was found on the floor behind the passenger seat
in the truck. A third shell casing was collected when the truck was
processed for evidence, and a fourth shell casing was found on the floor of
the passenger side of the truck.
Agent Scott also identified a nightstick that was found in a wooden
drawer under the bed in [the petitioner‟s] truck. He identified two pairs of
shoes and two sets of handcuffs that were found in the truck. Black
electrical tape was found in an outer storage compartment on the outside of
the truck on the passenger side. A second roll of electrical tape was in a
storage compartment above the dashboard. A yellow notepad found in the
truck had notes that read, “go back TA” and “4-sex okay.” A logbook
indicated that [the petitioner] was in Nashville on the afternoon of June 25,
2007. A box of cling wrap was found near the lower bunk in the sleeper
portion of the truck.
Agent Scott examined a bullet recovered by the medical examiner
from the victim‟s head and compared it to [the petitioner‟s] rifle. He
concluded that the bullet was fired from [the petitioner‟s] rifle. Agent Scott
also concluded that three of the four cartridge casings found inside [the
petitioner‟s] truck were fired from [the petitioner‟s] rifle. The fourth casing
did not have enough individual characteristics for Agent Scott to
conclusively identify it, but he could not exclude the casing from having
been fired by the rifle. Agent Scott observed what appeared to be “blood
staining in some of the cracks and crevices” of [the petitioner‟s] rifle, but
he did not test the stains to determine whether they were blood. He took
swabs of the stains.
TBI Agent Linda Littlejohn was qualified by the trial court as an
expert in the field of forensic testing of shoes and shoe prints. She testified
that she compared a pair of [the petitioner‟s] shoes with casts of two
different shoe prints made at the crime scene. With respect to the cast of
one of the shoe prints at the crime scene, [the petitioner‟s] shoes “were
consistent with size, shape and tread design so therefore they could have
10
made that cast or another shoe just like it could have made that
impression.”
TBI Agent Kendra Fleenor was qualified by the trial court as an
expert in the field of latent print comparison. She processed [the
petitioner‟s] truck and lifted latent fingerprints. She compared the
fingerprints from the truck with those of Terry Sanders, David Powell,
Richard Keim, the victim, and [the petitioner]. None of the victim‟s prints
were in [the petitioner‟s] truck. The prints in the truck did not match Mr.
Keim‟s, Mr. Powell‟s, or Mr. Sanders‟ prints. 25 of the prints taken from
the truck matched [the petitioner‟s] prints. [The petitioner‟s] prints were
found on a garbage bag and the .22 caliber rifle.
Agent Patrick Ihrie, of the DNA and serology unit, testified that
semen was present in the victim‟s mouth, anus, and vagina, but the semen
did not match [the petitioner‟s] DNA profile. The semen also did not
match the DNA profiles of Lee Meeks, Wayman “Hollywood” Henderson,
or the victim‟s other previous boyfriends. The semen also did not match
the DNA profiles of Richie Keim, David Powell, or Terry Sanders. Agent
Ihrie was unable to obtain a DNA profile from semen found on the victim‟s
thigh.
Agent Ihrie testified that he removed and processed several items
from [the petitioner‟s] truck. A utility knife with a removable razor blade
and a “leather pouch to go with it” were recovered from the driver‟s side
storage area. A second knife was found in “drawer number 3.” “Sex toys”
were also found in “drawer number 3.” Agent Ihrie conducted DNA
analysis from different areas of the sex toys. The DNA on the “tan device”
that had what looked to be a “blood pressure inflating bulb on one end” was
a mixture of male and female genetic material and did not match any
samples from the known individuals. The DNA profile from the “red
device” was also a mixture of male and female genetic material, and the
“major contributor” was consistent with [the petitioner].
Agent Ihrie identified a knife found in the center console of [the
petitioner‟s] truck. He testified that the knife was tested, and it was
determined that blood was present on the blade edge. Agent Ihrie obtained
a DNA sample, but the profile was “very small,” and it indicated only that
the DNA came from a female. Agent Ihrie also identified [the petitioner‟s]
DNA on the handle of the knife.
11
Two sets of metal handcuffs were processed for DNA, and the test
indicated the presence of human DNA, but the sample contained a small
amount of DNA, and a profile was not obtained. A penis pump was found
in the lower bunk area of [the petitioner‟s] truck. Plastic wrap was found in
the cubby area behind the driver‟s seat and in the back floorboard.
Agent Ihrie tested and confirmed that several “reddish brown stains”
in [the petitioner‟s] truck were blood. Blood found on the door jamb area
of the truck matched the victim‟s DNA profile. Two of the 13 genetic loci
were inconclusive. However, the report concluded that the chance that the
blood on the door jamb belonged to a person other than the victim was only
one out of 23 trillion. A blood sample taken from inside the driver‟s side of
the truck also matched the victim‟s DNA profile. Four genetic markers
were inconclusive, but only one in 85 billion Caucasian people would have
the same profile. Another blood sample was taken from the back of the
driver‟s seat and tested. 13 out of 13 loci matched the victim‟s DNA
profile, and the probability of an unrelated individual having the same
profile was one out of 15 quadrillion people.
Agent Ihrie also examined reddish brown stains on [the petitioner‟s]
rifle. A blood stain on the “rear sight” matched the victim‟s DNA profile.
Blood from the barrel where the “wooden part of the forearm and the barrel
meet” also matched the victim‟s DNA profile, and Agent Ihrie testified
there was a one in 1.4 trillion chance that it was someone other than the
victim‟s DNA. Blood from “[n]ear the end of the barrel” also matched the
victim‟s profile.
For the defense, TBI Agent Sandra Poltorak, an expert in the field of
tire track comparison, testified that [the petitioner‟s] tire tracks did not
match any of the tire tracks found at the scene where the victim‟s body was
found. She also testified that the “stance measurement” between the tire
tracks found at the scene was inconsistent with the “stance,” or distance
between the two front tires, of [the petitioner‟s] truck.
State v. Bruce D. Mendenhall, No. M2010-02080-CCA-R3-CD, 2013 WL 430329, at *5-
13 (Tenn. Crim. App. Feb. 4, 2013), perm. app. denied (Tenn. June 12, 2013).
We will review the complaints of the petitioner, as best we understand them.
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ANALYSIS
Initially, we note that the petitioner‟s appellate brief does not include any
references to the thirteen volumes of the trial transcript or the transcript of the evidentiary
hearing on his petition. Rather, it sets out as the “Statement of Facts” only claims
advanced by the petitioner at the evidentiary hearing but without page references to the
transcripts. We found the petitioner‟s testimony difficult to follow and, in some cases, to
understand exactly what his complaint was. While making our determinations regarding
this appeal, we have reviewed the evidentiary hearing transcript but decline to search
through the multi-volume trial transcript to locate testimony, if any, relevant to this
appeal.
The post-conviction petitioner bears the burden of proving his allegations by clear
and convincing evidence. See Tenn. Code Ann. § 40-30-110(f). When an evidentiary
hearing is held in the post-conviction setting, the findings of fact made by the court are
conclusive on appeal unless the evidence preponderates against them. See Tidwell v.
State, 922 S.W.2d 497, 500 (Tenn. 1996). Where appellate review involves purely
factual issues, the appellate court should not reweigh or reevaluate the evidence. See
Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997). However, our review of a post-
conviction court‟s application of the law to the facts of the case is de novo, with no
presumption of correctness. See Ruff v. State, 978 S.W.2d 95, 96 (Tenn. 1998). The
issue of ineffective assistance of counsel, which presents mixed questions of fact and law,
is reviewed de novo, with a presumption of correctness given only to the post-conviction
court‟s findings of fact. See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001); Burns v.
State, 6 S.W.3d 453, 461 (Tenn. 1999).
To establish a claim of ineffective assistance of counsel, the petitioner has the
burden to show both that trial counsel‟s performance was deficient and that counsel‟s
deficient performance prejudiced the outcome of the proceeding. Strickland v.
Washington, 466 U.S. 668, 687 (1984); see State v. Taylor, 968 S.W.2d 900, 905 (Tenn.
Crim. App. 1997) (noting that same standard for determining ineffective assistance of
counsel that is applied in federal cases also applies in Tennessee). The Strickland
standard is a two-prong test:
First, the defendant must show that counsel‟s performance was deficient.
This requires showing that counsel made errors so serious that counsel was
not functioning as the “counsel” guaranteed the defendant by the Sixth
Amendment. Second, the defendant must show that the deficient
performance prejudiced the defense. This requires showing that counsel‟s
errors were so serious as to deprive the defendant of a fair trial, a trial
whose result is reliable.
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466 U.S. at 687.
The deficient performance prong of the test is satisfied by showing that “counsel‟s
acts or omissions were so serious as to fall below an objective standard of reasonableness
under prevailing professional norms.” Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996)
(citing Strickland, 466 U.S. at 688; Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)).
The prejudice prong of the test is satisfied by showing a reasonable probability, i.e., a
“probability sufficient to undermine confidence in the outcome,” that “but for counsel‟s
unprofessional errors, the result of the proceeding would have been different.”
Strickland, 466 U.S. at 694.
Courts need not approach the Strickland test in a specific order or even “address
both components of the inquiry if the defendant makes an insufficient showing on one.”
466 U.S. at 697; see also Goad, 938 S.W.2d at 370 (stating that “failure to prove either
deficiency or prejudice provides a sufficient basis to deny relief on the ineffective
assistance claim”).
Testifying at the evidentiary hearing were the petitioner and one of his trial
counsel. Counsel said he had been licensed since 2002 and had handled “more than a
thousand” criminal cases, including those charging first degree murder.
The petitioner complained first that trial counsel had a time-dated and stamped
photograph showing that thirteen minutes before the petitioner was interviewed by Metro
Nashville police officers in civilian clothes, he was dressed in an orange jumpsuit and
leaving a “police lab” building. He did not ask trial counsel that the photograph be
entered into evidence and shown to the jury but “figured” counsel would do so. He did
not produce this photograph at the hearing or explain why it was of significance, other
than to say he “would have liked for [the photograph] to have been shown.” As to this
claim, counsel testified he recalled some sort of “inconsistency” in the photograph, but he
saw no way such a claim would have assisted in the motion to suppress the petitioner‟s
later statement to police officers. The petitioner maintained that he was not the person
being interviewed during a videotaped interview, although counsel testified he believed
that it was the petitioner who was shown in the video giving a statement to officers.
Counsel consulted an expert in this regard but was unable to develop proof that the
person in the video was not the petitioner.
The petitioner next asserted that, after reading the opinion of this court on direct
appeal, he realized, as best we can understand, that trial counsel should have proved
when “that curtain went closed.” He provided no explanation as to how this could have
been proven, how it was relevant, or if, in fact, such additional proof even was available.
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Counsel was not questioned regarding this. The post-conviction court did not make a
specific finding as to this claim, which we, likely as did the trial court, simply do not
understand.
Regarding jury selection, the petitioner complained that trial counsel did not “get
rid of a lot [of prospective jurors] I thought should have went.” As to this claim, the post-
conviction court accredited trial counsel‟s testimony that he did not recall the petitioner‟s
asking for jurors to be stricken and that such determinations were strategic choices based
upon counsel‟s experience. We agree with the post-conviction court that the petitioner
failed to show that he was prejudiced by the fact that these jurors were not stricken from
the jury.
Further, the petitioner said that trial counsel “could have showed evidence.” He
explained that when he arrived in Wilson County, apparently still in custody, he obtained
a list of seven possible suspects for, as we understand, the homicide which was the basis
for the conviction he now questions. He said he had sent the list to his children but did
not have a copy for the court at the evidentiary hearing. As best we can understand, he
did not give a copy to trial counsel.
The petitioner said that he wanted more DNA testing done, apparently on
additional samples taken from the victim‟s body, but had “no idea” whether this had been
done. As to this claim, the post-conviction court noted that expert testimony at the trial
showed that the DNA samples taken from the victim could not be matched to any person
in the DNA database. Further, the petitioner failed to show how any further testing
would have benefitted his defense. Thus, as did the post-conviction court, we conclude
that the petitioner failed to show that counsel was ineffective or that the petitioner was
prejudiced thereby.
As to the claim of insufficient meetings with the petitioner, counsel said that he
met with him more than any other client he had ever represented. On cross-examination,
counsel said that, at any time, two or three attorneys were working on the petitioner‟s
case. As to this claim, the post-conviction court concluded that the petitioner failed to
show that trial counsel had been ineffective or that he had been prejudiced thereby. The
record supports this determination.
Concluding his testimony, the petitioner said exculpatory evidence existed which
would have helped him, including “[w]hose tire tracks were there,” “[w]hose other shoe
was that imprinted out there,” and “whose gray hairs w[ere] found on her?” While the
petitioner presupposes that counsel was ineffective for failing to identify the donor of the
hairs found on the victim or to match tire tracks found at the scene, he has not explained
how his counsel could have performed this function. Rather, a DNA expert, testifying for
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the State, said he was unable to match the DNA to any in the database. Accordingly, we
agree with the post-conviction court that, as to this claim, the petitioner also has failed to
show that trial counsel was ineffective or that the petitioner was prejudiced thereby.
CONCLUSION
Based upon the foregoing authorities and reasoning, the judgment of the post-
conviction court is affirmed.
_________________________________
ALAN E. GLENN, JUDGE
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