Rachel L. Calhoun v. State of Tennessee

02/28/2017
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs December 20, 2016
RACHEL L. CALHOUN v. STATE OF TENNESSEE
Appeal from the Criminal Court for Sullivan County
No. C64920 R. Jerry Beck, Judge
___________________________________
No. E2016-00858-CCA-R3-PC
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The Petitioner, Rachel L. Calhoun, appeals the denial of her petition for post-conviction
relief in which she challenged her guilty pleas to two counts of first degree murder, one
count of especially aggravated robbery, one count of identity theft, and one count of
fraudulent use of a credit card and her effective life sentence. On appeal, the Petitioner
contends that she was denied her right to the effective assistance of counsel, arguing that
trial counsel should have independently tested palm print evidence used against her. She
also argues that her pleas were unknowing and involuntary. We affirm the post-
conviction court’s denial of relief.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which THOMAS T.
WOODALL, P.J., and JAMES CURWOOD WITT, JR., J., joined.
David S. Barnette Jr., Kingsport, Tennessee, for the appellant, Rachel L. Calhoun.
Herbert H. Slatery III, Attorney General and Reporter; Courtney N. Orr, Assistant
Attorney General; Barry P. Staubus, District Attorney General; and Joshua D. Parsons,
Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
FACTUAL AND PROCEDURAL HISTORY
The Petitioner pled guilty to first degree premeditated murder, felony murder
during the perpetration of a robbery, especially aggravated robbery, identity theft, and
fraudulent use of a credit card. Pursuant to the guilty plea agreement, the trial court
sentenced the Petitioner to life in prison for each murder conviction, twenty-five years for
the especially aggravated robbery conviction, two years for the identity theft conviction,
and eleven months and twenty-nine days for the fraudulent use of a credit card
conviction. The trial court merged the murder convictions and ordered all the sentences
to be served concurrently for an effective sentence of life imprisonment.
Guilty Plea Submission Hearing
The relevant facts underlying the Petitioner’s guilty plea were stipulated to at the
guilty plea submission hearing as follows:
On February the 6th, 2011, Sullivan County Sheriff’s Department
responded to the address of 1092 Reedy Creek Road, Bristol, Sullivan
County, Tennessee. A 9-1-1 call had come in that a gentleman later to be
identified as Johnny Shankel was in his residence and was possibly dead.
Once law enforcement were able to get into the home, they were
able to confirm that there was a deceased individual in the home.
The body was sent to the Quillen College of Medicine, Forensic
Center, to have an autopsy completed. The result of that autopsy listed
manner of death as homicide, and the cause of death to be ligature
strangulation, marks around the neck, and multiple impacts of blunt force
trauma.
During the course of the investigation law enforcement began to
develop Rachel Lynn Calhoun as a possible suspect, as she and her co-
defendant, Willie Mack Coleman, were neighbors.
….
Multiple statements were taken from Ms. Calhoun and Mr. Coleman
over the course of essentially a two-day period from February the 6th,
2011, to the early morning hours of February the 8th, 2011. During the
course of that investigation they were able to determine by way of
statement that Ms. Calhoun had gone to the residence of Mr. Shankel; that
she had hit him with a stick or wooden object of some kind multiple times;
and had also strangled him with a piece of -- of cord or wiring that would
be used as a dog lead, which was confirmed in the report from the Quillen
College of Medicine that we have.
2
Also how Ms. Calhoun was developed as a suspect was that the
credit card or a credit card belonging to Mr. Shankel was attempted to be
used at Bristol Regional Medical Center, which is also in a location here in
Sullivan County, Tennessee, to attempt to get money out of the ATM
through his account.
In speaking with representatives from the BB&T Bank where the
account was located, Ms. Calhoun was not a registered user on that
account, and that she would have done so at the time without the
permission of Mr. Shankel, without his permission to use his specific
identifying information.
I’ve passed up as an exhibit to these facts, as collective Exhibit 1, the
various statements in order, as well as the Miranda waivers that Ms.
Calhoun gave over the course of a two-day period or two-and-a-half day
period of this investigation, which were also the subject of a suppression
hearing which we held before Your Honor earlier this year. I included only
those statements that were not suppressed at the conclusion of that
statement. And as Your Honor will note and as the record will note, Ms.
Calhoun did admit to striking Mr. Calhoun multiple -- or Mr. Shankel
multiple times.
….
I want to refer specifically to the last statement in order, in which Ms.
Calhoun stated to Detective Bright,
I hit Johnny … with a big stick. I pushed Johnny. I hit
him with a stick. I meant to hit him. I used the dog cable to
choke Johnny.
Johnny started grabbing at me. I pushed him first. I
pushed him down. I hit him with a stick about five or six
times. I wanted to hit Johnny.
After I hit -- after I hit, Johnny was calling me a bitch.
I then grabbed the dog cable and wrapped it around his neck
until he stopped breathing. I then took Johnny’s money out
of his wallet. It was around $20. After I took Johnny’s
money and credit card, I tossed the wallet out in the yard.
3
I wanted to kill Johnny for what he did to me.
I went back to the next -- to check on Johnny and call
the police because no one needs to lay on the floor and rot.
I’m sorry that I did it.
Some of the money that I took from Johnny, I spent it
at CVS and Walmart. I told Willie that after I knocked out
Johnny, I took the money and credit cards out of Johnny’s
wallet.
I think I got $400 out of the ATM at Food City. …
Took the credit cards ‘cause I wanted to pay off all my bills
and get my own place. When Willie found out I was using
the cards, Willie told me that I needed to cut the cards up
before I got in trouble.
We would also reference other statements as listed as a part of the
stipulation of fact.
In short, that Ms. Calhoun took Mr. Shankel’s life with
premeditation; did so with the intent to take money from him to pay off
bills; used his identifying information without his permission; used his
credit card without his permission; and used a deadly weapon, in this case a
dog cable and a stick, on him during the commission of the robbery; and
also did cause serious bodily injury. In this case that serious bodily injury
was Mr. Shankel’s death. And that would be the State’s submission of
facts in this case.
At the plea hearing, the Petitioner affirmed to the court that the stipulated facts
were accurate and true; that she expected to plead guilty to first degree premeditated
murder and felony murder during the perpetration of a robbery, to be merged; that she
was not required to plead guilty; that she wanted to plead guilty pursuant to the
agreement; that she did not “have any complaints against” trial counsel; that she was
unaware of anything trial counsel should have done further to prepare in his
representation; that she did, in fact, sign and understand the waiver of rights and plea
agreement; that although she could not read due to poor eyesight, trial counsel read the
waiver of rights and plea agreement to her; and that she did not have any questions about
the waiver or agreement for the court. Accordingly, the trial court accepted the
Petitioner’s guilty plea.
4
Post-Conviction Hearing
The Petitioner’s petition for post-conviction relief alleged that her “[c]onviction
was based on [an] unlawfully induced guilty plea or [a] guilty plea involuntarily entered
without understanding of the nature and consequences of the plea” and that she was
denied the “effective assistance of counsel.” She asserted the following factual basis for
her petition:
Petitioner avers that counsel did not fully explain that the plea
agreement. Petitioner avers that she was advised that she had to give a
statement or she would face harsh consequences. Petitioner avers that she
was advised by police detectives that she would be able to go home if she
confessed. Petitioner avers that she was under the influence of several
prescription medications such as Neurotin, Diylantin, Vistaril and Amb[ie]n
along with recently smoking marijuana prior to being questioned. Petitioner
avers that she takes several medications due to the fact that she suffers from
seizures. Petitioner avers that she does not remember being read her
Miranda rights. Petitioner avers that she requested presence of attorney but
was not given one. Petitioner avers that only one of her statements was
suppressed and the other four were not. Petitioner avers that she did receive
a competency hearing that deemed that she was fit to stand trial however
Petitioner avers that counsel did not seek a second opinion to this decision.
Petitioner avers that during six hours of her questioning she was in the
hospital and had been given a strong shot for pain management and was not
completely lucid. Petitioner avers that counsel did not try to have her bond
reduced even though nothing was said that she may or may not have been a
flight risk. Petitioner avers that she would not have been a flight risk.
Petitioner avers that her counsel knew the judge well on a personal level
and felt that this was a conflict of interest. Petitioner further avers that
attorney did not give any encouragement on this case and advised the
Petitioner that the State would give her the death penalty. Petitioner avers
that during the search of her home, her drains were taken apart and the only
blood that was identified was canine blood as her dogs were in labor.
Petitioner avers that police did not try to question anyone else only her.
Petitioner avers that she went to the store for the victim often. Petitioner
avers that a handprint that was located was tested and found to be
inconclusive.
Petitioner avers that her Fifth (5th) and Fourteenth (14th)
Amendments were violated as she did not receive due process and was not
protected from self incrimination.
5
Petitioner avers that her Sixth (6th) Amendment was violated as
attorney did not zealously defend the Petitioner to protect her rights.
In her amended petition for post-conviction relief, the Petitioner again argued that
her guilty plea was unknowing and involuntary. She alleged that she did not have the
sufficient intellectual capacity, she was unfamiliar with the criminal justice system, she
was not able to confer with trial counsel enough, “she did not understand the full
consequences of her plea,” and she thought the death penalty would be sought against
her, which led her to plead guilty. The Petitioner also argued that counsel was ineffective
by failing to obtain “additional independent expert” testing of the palm print evidence
used by the State to place the Petitioner at the scene of the crime.
At the post-conviction hearing, trial counsel testified that he served as the
Petitioner’s appointed counsel for about three years. He said he appeared in court
thirteen times, met with the Petitioner eleven times, and spoke on the telephone with the
Petitioner eighteen times in relation to her case. He stated that although he could not
recall specifically giving the Petitioner a copy of the discovery, he “always provided [his]
clients with discovery.” Trial counsel also stated that before the death penalty was taken
“off the table,” he informed the Petitioner that she could face the death penalty for the
charges against her. He testified that the Petitioner was in the courtroom when the State
announced that it would not seek the death penalty against the Petitioner.
Trial counsel testified that his initial trial strategy was to deny that the Petitioner
was ever at the crime scene but that his strategy changed upon the discovery of a palm
print that linked the Petitioner to the crime scene. Trial counsel stated that initially the
State only had an “unidentifiable palm print,” but then the State identified the palm print
as belonging to the Petitioner about twenty-one months later. Trial counsel received the
reports of the palm print findings from the Tennessee Bureau of Investigation. He stated
that the palm print evidence “knocked the wind out of our sails and left us basically with
an indefensible case….” Trial counsel testified that he consulted with an expert in palm
print evidence over the telephone but did not provide the written reports to the expert. He
stated that he asked the expert to serve as an expert witness for the Petitioner and “[the
expert] related to [him] that unless there was some evidence that the evidence was
collected improperly or tampered with, and unless [he] had something other than a hunch
or a suspicion, that [the expert] didn’t want to get involved and didn’t know anyone else
… that he could suggest.” Trial counsel testified that although he was skeptical of the
State’s ability to identify the palm print, he did not believe his “hunch” was enough to
support a request to the trial court to employ an expert witness in palm prints. He
6
confirmed that the palm print identification was the State’s only physical evidence that
tied the Petitioner to the crime scene.
Trial counsel testified that he learned that the Petitioner had Chiari-I
malformation, which according to trial counsel’s research “could impair a person’s ability
cognitively.” As a result, he sought, and the trial court approved, funding for two
medical experts: an otolaryngologist,1 Dr. David Francis Street, and a neuropsychologist,
Dr. James S. Walker. Trial counsel testified that the experts “quickly dispelled” the idea
that the Petitioner had a defense based upon her mental condition. He also testified that
the Petitioner’s medial history was “pretty extensive.” Trial counsel stated that although
the Petitioner “had two medical visitations to Holston Valley Hospital the day of her last
two statements,” he did not believe he brought that fact to the attention of the experts
who reviewed the Petitioner’s medical history. He admitted that he was aware that the
Petitioner was taking prescribed, narcotic medications. He stated that of the five
statements that the Petitioner gave to police, the last two statements were, in fact, the
“most probative” and “[d]amning statements.” Trial counsel characterized the
Petitioner’s I.Q. as “well above 70,” although he could not recall how he came to that
conclusion. In a Report of Trial Judge in First Degree Murder Cases, which was
admitted during trial counsel’s testimony, the trial judge found that the Petitioner’s I.Q.
was between 70 and 100 points.
On cross-examination, trial counsel testified that the Petitioner was in the
courtroom when the announcement was made to the trial court by the State that it would
not pursue the death penalty. He stated that he informed the Petitioner of the potential
punishments and lengths of sentences she faced, including life and life without parole.
He testified that after the announcement to not seek the death penalty, he never told nor
led the Petitioner to believe that she still faced the threat of a death sentence. Trial
counsel also testified that the Petitioner never indicated to him that she did not understand
the court system or the seriousness of the charges. He stated that he reviewed possible
defenses with the Petitioner in preparation of a possible trial, noting that there was no
possible defense after the palm print evidence surfaced. Trial counsel testified that he
“went over all the rights and information contained in” the waiver of rights that the
Petitioner signed. He also testified that the Petitioner never indicated “a concern that she
did not know what was going on [the day of the guilty plea submission hearing]” or any
“type of medical distress or situation in which she couldn’t go on with her plea.” Trial
counsel stated that he “physically review[ed]” the palm print evidence that the State
disclosed to the Petitioner. He also stated that based upon his review of the evidence,
there was no reason to believe that someone had tampered with the evidence.
1
Trial counsel also briefly refers to Dr. Street as a forensic psychiatrist.
7
On re-direct examination, trial counsel testified that after receiving a letter from
the Petitioner where she complained that trial counsel lacked faith in her case, did not
give her case adequate attention, and did not explain the nature and seriousness of the
charges against her, trial counsel visited with the Petitioner five times to prepare for trial,
noting that he “had plenty of faith in her case.” He stated that he did not believe that the
Petitioner was unaware of the severity of the charges against her, asserting that he
discussed them with her.
The Petitioner testified that she was “led to believe that [she] was going to get the
death penalty no matter what,” and that trial counsel confirmed her belief. She denied
knowing about the State’s announcement that it would not pursue the death penalty,
despite being in court at the time of the announcement. She stated that she received a
copy of her discovery and that trial counsel reviewed the information with her. She also
stated that although she discussed her statements with trial counsel, they did not go “into
detail about the trial.” The Petitioner testified that at their last meeting, they discussed
the newly revealed palm print match and she asked why the palm print did not match
earlier. She also testified that trial counsel informed her that he received a second
opinion regarding the palm print evidence.
The Petitioner stated that she graduated from high school, had not been previously
charged with a felony, and remained in jail for about three-and-a-half years before
accepting her plea. She acknowledged that she knew that she had the opportunity to go
to trial instead of accepting a plea. She testified that in discussing possible outcomes of a
guilty verdict at trial, trial counsel informed her that life without parole would be the only
sentence she could face and did not inform her of possible lesser-included offenses. She
also testified that she read over the guilty plea offer as “best [she] could” and that trial
counsel visited her to explain the offer to her. The Petitioner stated that trial counsel told
her “[t]hat the State could still seek the death penalty” and that she would have proceeded
to trial if she was aware that the State was not, in fact, seeking the death penalty.
The Petitioner denied knowing whether she went to the hospital on the night of a
suppression hearing, stating that she was too intoxicated on drugs to remember. She
testified that when she gave her first statements to police, she was on narcotics and
advised trial counsel and the medical experts that she was on narcotics. She also testified
that she suffers from bipolar disorder, post-traumatic stress disorder, seizures, high blood
pressure, and headaches that cause her to have memory issues.
On cross-examination, the Petitioner conceded that on the day of the guilty plea
submission hearing, the trial judge informed her that she would be sentenced to life in
prison. She also conceded that she told the trial judge that she expected to be sentenced
to life in prison. She testified that the trial judge informed her of the possible sentences
8
resulting from a guilty verdict at trial. She also testified that she did not understand that
her sentence would be a life sentence and admitted that she did not inform the trial judge
that she did not understand what her sentence would be. The Petitioner conceded that she
told the trial judge that she did not have any questions or complaints regarding her plea or
sentence. She testified that despite her medical condition, she understood what was
“going on” at her suppression hearing and guilty plea submission hearing, explaining that
she “wasn’t under the influence of drugs then.” She admitted that prior to the day that
she pled guilty, she had “been through the criminal justice system in Ohio” and was
aware of the roles of judges and attorneys. The Petitioner acknowledged that she had
completed two years of college education. Although the Petitioner stated that she was
present when the State announced that it would not pursue the death penalty, she “was
still under the assumption they were going to seek the death penalty.” She testified that
she was “scared to tell the [trial court] that [she] had concerns” with trial counsel’s
representation.
In its order denying the petition for post-conviction relief, the post-conviction
court found that the Petitioner’s statements and confessions to the police “were freely
given,” stating that “the officers saw no sign of intoxication or that the [Petitioner] was
under stress.” The post-conviction court also found that the Petitioner failed to “describe
any prejudice she suffered due to lack of visitations” by trial counsel, noting that trial
counsel “met with her in jail eleven times, had eighteen phone conversations with her
from the jail and met with her in the context of thirteen court appearances.” In regard to
trial counsel’s communication with the Petitioner, the post-conviction court found that
the Petitioner gave conflicting statements on the matter and that trial counsel asserted that
he was diligent about reviewing discovery with clients. In regard to a potential mental
capacity defense, the post-conviction court found that trial counsel obtained experts who
“could not develop a mental defense,” that the Petitioner had an I.Q. between 70 and 100,
and that she had two years of college education.2 The post-conviction court also found
that trial counsel sought an expert in the field of latent palm prints identification who
refused to testify on behalf of the Petitioner.
The post-conviction court also found that although the Petitioner claimed she
thought she would face the death penalty at trial, the record revealed that the Petitioner
was on notice of the State’s decision to not pursue the death penalty and to instead seek a
sentence of life without parole. Similarly, the post-conviction court found that although
2
We note that the record does not support the post-conviction court’s statement in its denial of the mental
capacity issue that the Petitioner’s I.Q. was between 50 and 100. We assume that this statement was a
typographical error because the post-conviction court’s factual findings state that her I.Q. was between 70
and 100, trial counsel testified that her I.Q. was “well above 70,” and the report supplied to the trial court
stated that her I.Q. was between 70 and 100.
9
the Petitioner claimed she did not comprehend her guilty plea agreement, the record
revealed that the Petitioner testified at the plea colloquy that she understood the
agreement and that the trial court properly conducted the plea colloquy. The post-
conviction court also found that although the petitioner could not recall whether trial
counsel discussed lesser-included offenses with her, trial counsel testified that he did, in
fact, discuss the matter of lesser-included offenses with the Petitioner. Ultimately, the
post-conviction court found the Petitioner’s testimony to not be credible and trial counsel
to be credible, concluding that the Petitioner failed to meet her burden in establishing that
she is entitled to post-conviction relief.
ANALYSIS
On appeal, the Petitioner argues that because she received the ineffective
assistance of counsel, her plea was unknowingly and involuntarily entered. The
Petitioner contends that trial counsel failed to properly advise her that she could not be
sentenced to death if she proceeded to trial and that trial counsel should have obtained
independent testing of the incriminating palm print evidence. The State argues that trial
counsel’s representation of the Petitioner was effective and that her guilty plea was, in
fact, knowing and voluntary.
To obtain post-conviction relief, a petitioner must prove that his or her conviction
or sentence is void or voidable because of the abridgement of a right guaranteed by the
United States Constitution or the Tennessee Constitution. T.C.A. § 40-30-103; Howell v.
State, 151 S.W.3d 450, 460 (Tenn. 2004). A post-conviction petitioner must prove
allegations of fact by clear and convincing evidence. T.C.A. § 40-30-110(f); Tenn. Sup.
Ct. R. 28, § 8(D)(1); Dellinger v. State, 279 S.W.3d 282, 293-94 (Tenn. 2009).
“‘Evidence is clear and convincing when there is no serious or substantial doubt about the
correctness of the conclusions drawn from the evidence.’” Grindstaff v. State, 297
S.W.3d 208, 216 (Tenn. 2009) (quoting Hicks v. State, 983 S.W.2d 240, 245 (Tenn.
Crim. App. 1998)). In an appeal of a court’s decision resolving a petition for post-
conviction relief, the court’s findings of fact “will not be disturbed unless the evidence
contained in the record preponderates against them.” Frazier v. State, 303 S.W.3d 674,
679 (Tenn. 2010).
I. Ineffective Assistance of Counsel
A criminal petitioner has a right to “reasonably effective” assistance of counsel
under both the Sixth Amendment to the United States Constitution and article I, section 9,
of the Tennessee Constitution. State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). The
right to effective assistance of counsel is inherent in these provisions. Strickland v.
Washington, 466 U.S. 668, 685-86 (1984); Dellinger, 279 S.W.3d at 293. To prove
10
ineffective assistance of counsel, a petitioner must prove both deficient performance and
prejudice to the defense. Strickland, 466 U.S. at 687. Failure to satisfy either prong
results in the denial of relief. Id. at 697.
For deficient performance, the petitioner must show that “counsel’s representation
fell below an objective standard of reasonableness” under prevailing professional norms,
despite a “strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance.” Id. at 688-89. “In other words, the services rendered
or the advice given must have been below ‘the range of competence demanded of
attorneys in criminal cases.’” Grindstaff, 297 S.W.3d at 216 (quoting Baxter v. Rose, 523
S.W.2d 930, 936 (Tenn. 1975)). The petitioner must prove that counsel made errors so
serious that counsel was not functioning as the “counsel” guaranteed by the Sixth
Amendment. Strickland, 466 U.S. at 687. When reviewing trial counsel’s performance
for deficiency, this court has held that a “petitioner is not entitled to the benefit of
hindsight, may not second-guess a reasonably based trial strategy by his counsel, and
cannot criticize a sound, but unsuccessful, tactical decision made during the course of the
proceedings.” Adkins v. State, 911 S.W.2d 334, 347 (Tenn. Crim. App. 1994). The
reviewing court “must make every effort to eliminate the distorting effects of hindsight,
to reconstruct the circumstances of counsel’s conduct, and to evaluate the conduct from
the perspective of counsel at that time.” Howell v. State, 185 S.W.3d 319, 326 (Tenn.
2006) (citing Strickland, 466 U.S. at 689). However, “deference to tactical choices only
applies if the choices are informed ones based upon adequate preparation.” Cooper v.
State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992).
“‘[C]ounsel has a duty to make reasonable investigations or to make a reasonable
decision that makes particular investigations unnecessary. In any ineffectiveness case, a
particular decision not to investigate must be directly assessed for reasonableness in all
the circumstances, applying a heavy measure of deference to counsel’s judgments.’”
Burns, 6 S.W.3d at 462 (quoting Strickland, 466 U.S. at 691). “[W]hen a petitioner has
given counsel reason to believe that pursuing certain investigations would be fruitless or
even harmful, counsel’s failure to pursue those investigations may not later be challenged
as unreasonable.” Strickland, 466 U.S. at 691. “Counsel must conduct appropriate
investigations, both factual and legal, to determine what matters of defense can be
developed.” Baxter, 523 S.W.2d at 933.
Prejudice requires proof of “a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.”
Strickland, 466 U.S. at 694. In Strickland, the Supreme Court noted that “[a]n error by
counsel, even if professionally unreasonable, does not warrant setting aside the judgment
of a criminal proceeding if the error had no effect on the judgment.” Id. at 691. The
Court clarified that prejudice “requires showing that counsel’s errors were so serious as
11
to deprive the petitioner of a fair trial, a trial whose result is reliable.” Id. at 687. “A
reasonable probability is a probability sufficient to undermine confidence in the
outcome.” Id. at 694.
A claim of ineffective assistance of counsel raises a mixed question of law and
fact. Burns, 6 S.W.3d at 461; Grindstaff, 297 S.W.3d at 216. Consequently, this court
reviews the trial court’s factual findings de novo with a presumption of correctness,
unless the evidence preponderates against the trial court’s factual findings. Grindstaff,
297 S.W.3d at 216. However, the trial court’s conclusions of law on the claim are
reviewed under a purely de novo standard with no presumption of correctness. Fields v.
State, 40 S.W.3d 450, 458 (Tenn. 2001).
The Petitioner argues that trial counsel was deficient for not obtaining independent
testing of the incriminating palm print evidence. She argues that because the palm print
testing was initially inconclusive, trial counsel should have concluded that the subsequent
palm print match warranted an independent investigation. After the palm print match
was discovered, trial counsel consulted with a palm print expert who informed him that
trial counsel would need more than just a “suspicion or hunch” for the expert or any other
expert to be willing to question the veracity of the palm print evidence provided by the
Tennessee Bureau of Investigation. Trial counsel testified that he did not have more than
a suspicion that something could be wrong with the match. “The Constitution does not
require attorneys to ‘shop around’ for more favorable expert testimony.” Jon Hall v.
State, No. W2003-00669-CCA-R3-PD, 2005 WL 22951, at *34 (Tenn. Crim. App. Jan.
5, 2005) (quoting Poyner v. Murray, 964 F.2d 1404, 1419 (4th Cir.1992)). Accordingly,
we hold that trial counsel was not deficient for failing to obtain independent testing of the
palm print match.
Further, even if trial counsel was deficient, the Petitioner has failed to carry her
burden to establish prejudice. In the context of a guilty plea, to satisfy the second prong
of Strickland, the petitioner must show that “there is a reasonable probability that, but for
counsel’s errors, [she] would not have pleaded guilty and would have insisted on going to
trial.” Hill, 474 U.S. at 59; see also Walton v. State, 966 S.W.2d 54, 55 (Tenn. Crim.
App. 1997). The Petitioner did not introduce any evidence that showed what independent
testing would have revealed and, thus, failed to show how that evidence would have
changed her decision to plea guilty.
The Petitioner also argues that trial counsel was ineffective for failing to inform
her that she could not be sentenced to death if convicted at trial. She contends that if she
knew that she could not be sentenced to death, she would not have pled guilty. Here, the
post-conviction court found that the Petitioner was on notice of the State’s decision to not
pursue the death penalty. The post-conviction court also credited the testimony of trial
12
counsel who testified that he never led the Petitioner to believe she could be sentenced to
death after the State announced that it would not seek the death penalty. Accordingly, we
hold that trial counsel was not deficient because he informed the Petitioner that she could
not be sentenced to death. We, therefore, need not reach the issue of prejudice on this
issue.
II. Voluntariness of the Guilty Plea
In evaluating the knowing and voluntary nature of a guilty plea, the United States
Supreme Court has held that “[t]he standard was and remains whether the plea represents
a voluntary and intelligent choice among the alternative courses of action open to the
defendant.” Alford, 400 U.S. at 31 (citations omitted). In making this determination, the
reviewing court must look to the totality of the circumstances. State v. Turner, 919
S.W.2d 346, 353 (Tenn. Crim. App. 1995); see Chamberlain v. State, 815 S.W.2d 534,
542 (Tenn. Crim. App. 1990). Indeed,
a court charged with determining whether ... pleas were “voluntary” and
“intelligent” must look to various circumstantial factors, such as the relative
intelligence of the defendant; the degree of his familiarity with criminal
proceedings; whether he was represented by competent counsel and had the
opportunity to confer with counsel about the options available to him; the
extent of advice from counsel and the court concerning the charges against
him; and the reasons for his decision to plead guilty, including a desire to
avoid a greater penalty that might result from a jury trial.
Blankenship v. State, 858 S.W.2d 897, 904 (Tenn. 1993) (citation omitted).
The Petitioner argues that upon examination of the Blankenship factors, the trial
court should not have found that she had knowingly and intelligently entered her guilty
plea. Id. The Petitioner states that the first Blankenship factor, the relative intelligence of
the petitioner, is “neutral in probabtive value.” The post-conviction court, however,
found that trial counsel was unable to obtain experts to support a mental health defense.
Trial counsel had the Petitioner evaluated by two medical experts, neither of whom were
able to conclude that a mental health defense could be available at trial. The post-
conviction court also found in its summary of the testimony that the Petitioner had an I.Q.
between 70 and 100, had a high school education, and obtained two years of college
education. We hold that this factor weighs against the Petitioner.
Second, the Petitioner argues that the “Petitioner had little to no experience with
serious criminal matter proceedings and that factor should weigh in her favor.” The
Petitioner testified, however, that she was familiar with the roles of lawyers and judges
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because she had been involved as a defendant in the criminal justice system of another
state. We hold that this factor weighs against the Petitioner.
Third, the Petitioner contends that she was was not “represented by competent
counsel” and did not have “the opportunity to confer with counsel about the options
available to [her].” Blankenship, 858 S.W.2d at 904. While charges were pending
against her, the Petitioner wrote a letter to trial counsel alleging that she was confused
about the charges against her, was unable to reach trial counsel, and did not feel confident
in trial counsel’s representation. The post-conviction court, however, found that trial
counsel “met with her in jail eleven times, had eighteen phone conversations with her
from the jail and met with her in the context of thirteen court appearances.” Further, trial
counsel testified that he diligently reviews discovery with each of his clients. We hold
that this factor weighs against the Petitioner.
The fourth Blankenship factor, “the extent of advice from counsel and the court
concerning the charges against [her],” also does not weigh in the Petitioner’s favor. Id.
Although the Petitioner testified that she did not fully comprehend the guilty plea
agreement, trial counsel testified that he explained to the Petitioner the charges against
her, the possible lesser-included convictions she could face, and the State’s decision to
drop the death penalty. Further, the trial court discussed the nature of the charges against
her during its plea colloquy. We hold that this factor weighs against the Petitioner.
Finally, we must examine “the reasons for [her] decision to plead guilty, including
a desire to avoid a greater penalty that might result from a jury trial.” Id. The
Petitioner’s guilty plea agreement called for a life sentence. Although the Petitioner
testified that she does not remember, the Petitioner was present for the hearing when the
State announced to the trial court that it would not seek the death penalty against the
Petitioner. The State also filed a “Notice of State’s Intention to Seek Punishment of Life
Without the Possibility of Parole,” which the Petitioner received. Trial counsel testified
that after the State’s decision to drop the death penalty, he never did anything to lead the
Petitioner to believe that she could be sentenced to death following a jury trial conviction.
She now argues that if she had known that the State did not wish to pursue the death
penalty, she would not have pled guilty. The Petitioner faced a strong incentive to
proffer her guilty plea because she was facing a sentence of a life without the possibility
of parole sentence if she were convicted at trial. We hold that this factor weighs against
the Petitioner.
The Petitioner also argues that “she was afraid to speak up about [her]
reservations” regarding trial counsel’s representation. We note, however, that the post-
conviction court ultimately found the Petitioner’s claims to not be credible, while finding
that trial counsel provided effective assistance of counsel.
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The Petitioner was present at the hearing where the State announced it would not
seek the death penalty, she received notice that the State would seek life without the
possibility of parole, and trial counsel and the trial court fully informed her of the
sentences she would face if she proceeded to trial. Accordingly, we hold that the
Petitioner’s guilty plea was knowingly and intelligently entered.
CONCLUSION
Based on the foregoing analysis, we affirm the judgment of the post-conviction
court.
____________________________________
JOHN EVERETT WILLIAMS, JUDGE
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