James Lackey v. State of Tennessee

02/19/2019
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs December 11, 2018
JAMES LACKEY v. STATE OF TENNESSEE
Appeal from the Criminal Court for White County
No. 2012-CR-5631 David A. Patterson, Judge
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No. M2018-00230-CCA-R3-PC
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The Petitioner, James Lackey, appeals from the denial of post-conviction relief, alleging
that (1) trial counsel provided ineffective assistance in failing to call his brother as a
defense witness at trial, and (2) the post-conviction court abused its discretion in failing
to consider his brother’s recorded interview as substantive evidence at the post-
conviction hearing.1 We affirm the judgment of the post-conviction court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which JAMES
CURWOOD WITT, JR. and J. ROSS DYER, JJ., joined.
Michael J. Rocco, Sparta, Tennessee, for the Petitioner, James Lackey.
Herbert H. Slatery III, Attorney General and Reporter; M. Todd Ridley, Assistant
Attorney General; Bryant C. Dunaway, District Attorney General; and Gary McKenzie
and Phillip Hatch, Assistant District Attorneys General, for the appellee, State of
Tennessee.
OPINION
Just after midnight on February 23, 2012, the Petitioner shot and killed the victim,
James Caldwell, in the victim’s trailer. State v. James Lackey, No. M2015-01508-CCA-
1
The Petitioner alleged several additional issues in his petitions for post-conviction relief, but
because the Petitioner did not argue these additional issues at his post-conviction hearing and did not raise
them in his appellate brief, we will not address them on appeal. While the Petitioner included an issue
regarding trial court’s request for a missing witness instruction for Tommy Lackey in his amended
petition, post-conviction counsel asserted that the Petitioner would not be pursuing that issue at the post-
conviction hearing and would instead be focusing on trial counsel’s failure to call Tommy Lackey as a
defense witness at trial. At the conclusion of the hearing, the post-conviction court characterized trial
counsel’s request for this missing witness instruction as a tactical decision and found that this stand-alone
issue was “not an issue that [wa]s before the court[.]”
R3-CD, 2016 WL 4055709, at *2 (Tenn. Crim. App. July 27, 2016), perm. app. denied
(Tenn. Oct. 20, 2016). Shortly after the shooting, the Petitioner called Deputy Steven
Daugherty of the Bedford County Sheriff’s Office and told the Deputy that “he had shot
someone and that he needed help contacting the Federal Bureau of Investigation[.]” Id. at
*1. The Petitioner later gave a statement to the Tennessee Bureau of Investigation (TBI),
wherein he said he shot the victim after the victim reached for a gun with his left hand.
Id. at *2. Around this time, the Petitioner’s brother, Tommy Lackey, also gave a
statement to the TBI regarding what he knew about the victim’s death. In this statement,
Tommy Lackey explained that he and the Petitioner were close with the victim because
the victim had helped raise them. However, he said that the victim believed he and the
Petitioner were responsible for a TBI drug raid against him and that the victim had talked
several times about how he was going to kill the Petitioner. Tommy Lackey told the TBI
that on the night of the victim’s death, the victim sent him on a bogus errand at a time
when he knew the Petitioner was planning to come by his property. Shortly thereafter,
the Petitioner called him to tell him that things had gone bad and not to come back to the
victim’s property. Despite this, Tommy Lackey returned to the victim’s property to try to
find out what happened. Tommy Lackey said that the victim had found a rifle he had
hidden on the victim’s property and that he believed the victim had tried to shoot the
Petitioner with this rifle because he saw a .22 caliber bullet, which was the ammunition
for this rifle, in a blanket near the victim’s dead body. He said that after discovering the
victim’s body, he saw this rifle in the victim’s trailer and grabbed it because he had
borrowed this rifle from another individual. On two different times in his statement to
the TBI, Tommy Lackey suggested that he believed the Petitioner had been forced to
shoot the victim in self-defense. On August 28, 2012, the Petitioner was indicted for first
degree premeditated murder. Id. at *1; see T.C.A. § 39-13-202.
Following a jury trial, the Petitioner was convicted of the lesser included offense
of second degree murder, for which he received a sentence of twenty-two years’
imprisonment. Id.; see T.C.A. § 39-13-210. On January 16, 2015, the Petitioner filed a
pro se petition for post-conviction relief, which was stayed by the court on July 24, 2015,
while the Petitioner appealed his conviction to this court. Thereafter, this court affirmed
the Petitioner’s conviction, and the Tennessee Supreme Court denied him permission to
appeal. Id. at *1-10. Pursuant to agreed extensions from both parties, the Petitioner’s
post-conviction counsel filed an amended petition for post-conviction relief on March 22,
2017.2
2
Although the Petitioner’s pro se petition for post-conviction relief is included in the record on
appeal, his amended petition is not. However, the record clearly shows that an amended petition for post-
conviction relief was filed and that this amended petition included the issues on appeal. Because the post-
conviction court had access to and considered the issues raised in the amended petition when conducting
the post-conviction hearing and entering its written order denying post-conviction relief, we will review
the issues raised on appeal.
-2-
Post-Conviction Hearing. The following facts, relevant to this appeal, were
provided at the January 4, 2018 post-conviction hearing. Trial counsel testified that he
was the Petitioner’s “second or third” attorney and had taken over the case from the
Public Defender’s Office. He said he met with the Petitioner nine or ten times before
trial, reviewed two “very voluminous . . . banker boxes of files” for this case, and “went
through every folder in the file” with the Petitioner.
Trial counsel said he and the Petitioner discussed potential witnesses, including
Tommy Lackey, the Petitioner’s brother; Wanda Lackey, the Petitioner’s mother; and
Angela Lackey Garcia, the Petitioner’s sister. However, trial counsel asserted that the
Petitioner “didn’t have anybody that was going to help him that would have made any
difference” and that the potential witnesses they discussed did not have “anything to
add.” He explained, “I’m dealing with a client who confessed, full confession, turned
over the murder weapon. And so the strategy at trial was, okay, yes, you did it, why did
you do it. And so the most key witness in this whole thing was [the Petitioner].” Trial
counsel clarified that in light of the Petitioner’s confession to the crime, the “defense was
either murder by mistake or self[-]defense.” Consequently, he said the Petitioner
understood that he was the key witness in this case and that it would be beneficial for him
to testify in his own behalf. Trial counsel added that the week prior to trial, he spent an
entire evening with the Petitioner reviewing the Petitioner’s testimony, his confession,
and everything that had been said about Petitioner in this case. He said the Petitioner was
well aware that his testimony at trial was necessary because if he had not testified, he
would have been convicted of first degree murder, rather than second degree murder.
Trial counsel stated that he and his investigator searched for Tommy Lackey in
several different states and that neither he nor the State was successful in locating him.
He noted that he made several attempts to find Tommy Lackey at different points during
his representation of the Petitioner, including approximately thirty days prior to trial, but
all of these attempts were unsuccessful. Nevertheless, trial counsel maintained that
Tommy Lackey’s potential testimony was unreliable and “didn’t help us at all,”
explaining,
Tommy Lackey . . . allegedly gave a statement, whether it’s true or not I
don’t know, that he had gone up [to the victim’s trailer] at some point in
time after the murder and taken out a rifle. Nobody ever sa[id] a rifle,
nobody has ever seen a rifle, I don’t even think that was true, I don’t even
think that he went to the murder scene. . . . [T]hat just didn’t make any
[sense], you know to have somebody try to clean up a crime scene, . . .
that’s what it sounded like, [and] I wasn’t going to put that in front of a
jury, that would be crazy.
-3-
Trial counsel said that because Tommy Lackey’s potential testimony was not going to be
helpful and because neither he nor the State could find him to clarify his testimony, he
informed the Petitioner that he did not intend to call Tommy Lackey at trial. Although
trial counsel knew that Tommy Lackey had also spoken with the public defender’s
investigator, he claimed that the statement did not contain anything helpful to the
Petitioner. Trial counsel said he never asked for a continuance for the purpose of finding
Tommy Lackey because he did not believe that he was a necessary witness at trial.
Although trial counsel chose not to subpoena Tommy Lackey, the State
subpoenaed him. When Tommy Lackey failed to appear at trial, the State made a motion
in limine to prevent the defense from eliciting hearsay evidence from statements made by
Tommy Lackey, and trial counsel immediately requested a missing witness instruction,
stating, “I didn’t think [Tommy Lackey] had anything positive to say, but you know, you
want to put that question to the jury[. T]he [S]tate didn’t bring him[,] and they
subpoenaed him[,] and you argue that. Good trial strategy.” When arguing for the
missing witness instruction, trial counsel asserted that Tommy Lackey was a potentially
exculpatory witness even though trial counsel “had no idea what [Tommy Lackey] was
going to say” and “could have said anything.” He said Tommy Lackey’s “only statement
was he went and took a rifle . . . off the crime scene,” but the Petitioner “never said that
he saw a rifle.” Instead, the Petitioner said he “thought [the victim] had a pistol in his
hand” when the victim “in fact . . . had a cell phone in his hand [at the time he was shot].”
Trial counsel said that although the Petitioner told him that the victim “had a
terrible temper,” he did not recall Tommy Lackey’s telling officers that Jim Caldwell had
a terrible temper. In addition, trial counsel did not recall Tommy Lackey’s telling
officers that the victim sent him on an errand the night he was killed, that the victim
waited for the Petitioner the night of the victim’s death, or that the victim hated the
Petitioner. Trial counsel acknowledged that if Tommy Lackey had said those things to
officers, those statements could have been somewhat helpful when making a potential
self-defense argument at trial. Nevertheless, trial counsel emphasized that “you’ve got to
get [Tommy Lackey] here, you’ve got to find him.”
Trial counsel said that he had prepared a subpoena for Tommy Lackey and would
have filed it if he had been able to obtain an address for him. He noted that because the
State had filed a subpoena for Tommy Lackey, he made a tactical decision to argue for
the missing witness instruction at trial, even though the trial court declined to give it.
When asked why he did not make an offer of proof regarding his efforts to find Tommy
Lackey, trial counsel said that he recalled telling the court that he had looked for Tommy
Lackey but was unable to find him.
-4-
Trial counsel noted that although he characterized Tommy Lackey as a
“potentially exculpatory” witness when arguing for the missing witness instruction, he
“didn’t trust that [Tommy Lackey’s] testimony actually would really help us.” He said
he made the “tactical decision” not to call Tommy Lackey, regardless of his
unavailability, because he “wasn’t a hundred percent sure he was actually exculpatory.”
He added that he only made the argument that Tommy Lackey was a potentially
exculpatory witness with the hope that he would receive a missing witness instruction at
the Petitioner’s trial.
On cross-examination, trial counsel said that his discussions with the Petitioner
made it clear that the Petitioner had shot the victim, that the Petitioner had provided the
murder weapon to the police, and that the Petitioner had been the only person at the
victim’s residence at the time of the shooting. He said he discussed the Petitioner’s trial
testimony with him “[m]ultiple times[,]” that the Petitioner voluntarily chose to testify,
and that the Petitioner was not “pressured” to testify due to Tommy Lackey’s
unavailability. The Petitioner’s Right to Testify at Trial form was admitted into evidence
without objection.
Although his conversations with the Petitioner made clear that Tommy Lackey
was not present during the shooting, trial counsel said the Petitioner still “wanted to
blame Tommy Lackey for the murder or [claim] that maybe Tommy Lackey had done it,
but there was no proof, there was no hint, there was no evidence that would lead that
direction.” Trial counsel said he and the Petitioner discussed the fact that, if he could be
located, Tommy Lackey’s testimony might be detrimental to the Petitioner’s case. They
specifically discussed the fact that Tommy Lackey’s original statement to the TBI was
“that Tommy Lackey traveled to [the victim]’s camper after [the Petitioner] murdered
[the victim] and when he got back to the trailer, there was no gun close to [the victim], no
handgun close to [the victim], only a rifle wrapped in cloth in the corner of that trailer[.]”
Trial counsel stated that Tommy Lackey’s statement to the TBI made it difficult for the
Petitioner to take the stand and assert that the victim had a pistol in his hand when he shot
him. Trial counsel also noted that when law enforcement officers searched the victim’s
trailer, they did not find a pistol but did find a cell phone on the victim’s person. Trial
counsel explained,
[Y]ou can mistake a cell phone for a pistol perhaps in the dark, gloomy,
scar[y] place. You can’t mistake a cell phone for a rifle. And so having a
rifle in [the victim’s trailer] . . . surely didn’t help [the Petitioner]. And
that’s my thinking and my strategy . . . who cares if there was a rifle, I’m
glad there’s no testimony there was a rifle in the room. It makes more
sense in our defense that [the Petitioner] made a mistake [in thinking that
the victim’s cell phone was a pistol].
-5-
Trial counsel said that he made the strategic decision not to call Tommy Lackey as a
witness at trial because he believed that Lackey’s testimony might be “detrimental” to the
Petitioner’s case. He also mentioned that because the State’s resources were better than
his, if the State was unable to find Tommy Lackey, then he would have been unable to
locate him.
Trial counsel said he and the Petitioner discussed his concerns about calling
Tommy Lackey as a witness at trial, which included: “I can’t find [Tommy Lackey], I
don’t know what he’s going to say, there’s no guarantee that he doesn’t come in and
throw you under the bus. . . . [S]hort of coming in and confessing he was the murderer,
I’m not sure what [Tommy Lackey] could have offered that would have really helped.”
Trial counsel reiterated that he made a tactical decision not to call Tommy Lackey and
said that the Petitioner himself had reservations about calling Tommy Lackey as a
witness at trial. He also remembered the Petitioner’s saying that he did not want his
brother, Tommy Lackey, involved in the case because “he was wanting to protect him to
some degree” and did not want him to get in trouble for perhaps “tamper[ing] with the
crime scene or something like that.”
Tommy Lackey, the Petitioner’s brother, testified at the post-conviction hearing
that he had been friends with the victim for ten years at the time of the victim’s death and
had lived on the victim’s property in 2013. He recalled speaking with TBI officers but
could not remember what he said to them. He did not recall telling the TBI that the
victim had a dark side and could “flip out” sometimes. Portions of Tommy Lackey’s
recorded TBI interview were played during his testimony at the post-conviction hearing
to refresh his recollection. At first, Tommy Lackey refused to confirm that it was his
voice on the recording. Although he initially asserted that this recording could have been
“edited [or] manipulated[,]” he eventually admitted that it was his voice on the recording.
Tommy Lackey recalled telling the TBI officers that the victim thought that the
Petitioner was responsible for “an earlier [drug] raid on him[,]” which caused “some
conflict . . . between the two of them.” He also remembered telling the officers that he
did not feel safe on the victim’s property. The night of the shooting, the victim asked
Tommy Lackey to run an errand to pick someone up, which Tommy Lackey
characterized as “a little odd . . . [b]ecause there wasn’t nobody there when I got there.”
He said he told the officers that the victim waited for the Petitioner to arrive while he was
gone on this errand.
Tommy Lackey confirmed that he turned over a rifle, not a handgun, into the TBI
at the time of his interview. He asserted that this rifle remained in the trunk of his car and
was “[n]ot taken from the residence of [the victim]” on the night the victim was shot. He
added that “the only time [this rifle] was on [the victim’s] property was [when it was] in
-6-
my possession” and said that he did not recall telling the TBI officers that he had hidden
this rifle on the victim’s property. While he admitted telling the TBI officers that he had
removed a rifle from the murder scene, Tommy Lackey asserted at the post-conviction
hearing that he never removed a rifle from the victim’s trailer and did not recall telling
the police that he found a rifle there.
On cross-examination, Tommy Lackey confirmed that the Petitioner knew that the
victim was alone when he entered the victim’s trailer the night of the shooting. He said
that after leaving the victim’s trailer to run the errand, he talked to the Petitioner and
discussed the fact that he was no longer on the victim’s property and that the victim was
alone in his trailer. Tommy Lackey said that before he returned to the victim’s property,
he received a call from the Petitioner, during which the Petitioner told him “things had
went bad[.]” Tommy Lackey confirmed that he had no personal knowledge of what
happened between the Petitioner and the victim at the trailer that night. He also
confirmed that he did not return to the victim’s trailer that night. Tommy Lackey
acknowledged that the Petitioner and the victim had been having problems with one
another and that the Petitioner had previously made statements that the victim could run
but could not hide.
During redirect examination, post-conviction counsel asked for Tommy Lackey’s
recorded TBI interview to be admitted into evidence, given that Lackey had identified
those statements as his own, and the State objected on the basis of hearsay. Ultimately,
the trial court admitted the recording but asserted that it was only going to consider
Tommy Lackey’s testimony at the post-conviction hearing as substantive evidence in
determining whether to grant post-conviction relief:
I’m going to allow it in. I’m going to take the testimony that Mr.
Tommy Lackey has given today as the testimony that the court is going to
consider as it considers this post[-]conviction hearing.
Mr. Tommy Lackey is under oath to testify truthfully today. He may
have been under oath at the time that he was giving statements to the TBI.
And the court understands that also. What’s clear today is what his
testimony has been. He did not go back to the trailer. He had not had in his
possession a pistol, that he had a rifle, that it was in his trunk, and a number
of other things which I have documented here and tried to keep up with as
we’ve done this.
During the course of his testimony, the witness has been asked if it
would refresh his memory as to those things that were said on the tape and
he said whatever the record is is what the record is. He indicates also that
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he may, that may be his voice. He doesn’t know if it’s been changed. And
so the court is taking the testimony that he gives today.
The Petitioner also testified at the post-conviction hearing. He asserted that he
only met with trial counsel three or four times, for about fifteen minutes each, prior to
trial. He also said trial counsel spent only five minutes talking to him about his case at
each of his pre-trial hearing dates and spent no more than two hours talking to him about
his case shortly before trial. The Petitioner said that during these meetings, trial counsel
never discussed trial strategy.
The Petitioner said trial counsel discussed potential witnesses with him and told
him that his brother, Tommy Lackey, and his sister, Angela Garcia, would be called as
witnesses at trial. The Petitioner said he believed that Tommy Lackey’s testimony was
helpful to his defense.
The Petitioner did not remember trial counsel’s having any problems locating
Tommy Lackey. He was not aware that trial counsel had hired an investigator in his case
and asserted that he had never met with an investigator. He asked trial counsel to hire the
public defender’s investigator because she had taken a statement from Tommy Lackey,
but trial counsel refused.
The Petitioner said he first realized that Tommy Lackey and Angela Garcia would
not be testifying for the defense when he arrived at trial. Previously, trial counsel had
told him he had issued a subpoena to Tommy Lackey. However, when he arrived at trial,
trial counsel told him that the State had subpoenaed Tommy Lackey and that Tommy had
failed to appear. He said trial counsel claimed that Tommy Lackey’s failure to appear at
trial would not be detrimental because they could make the Petitioner’s case without him.
The Petitioner asserted that he was not prepared to testify. He said, “[Trial
counsel and I] never discussed me testifying until maybe five minutes before I was
swor[n] in and . . . signed that right to testify.” The Petitioner said trial counsel never
reviewed the right to testify form with him and never discussed the questions he would be
asked” Although he admitted to signing the right to testify form, the Petitioner claimed
he never read the form. The Petitioner said he did not know he could inform the court of
his lack of understanding regarding the right to testify and “felt [he] was forced to
testify[.]” He claimed that if he had known that he would be precluded from testifying
about what Tommy Lackey told him, he would never have testified at trial.
On cross-examination, the Petitioner denied discussing the problems with Tommy
Lackey’s testimony with trial counsel. Instead, he claimed that Tommy Lackey’s
testimony, in light of the statement he gave to the TBI, would have helped his case.
-8-
The Petitioner also denied reviewing the right to testify form with trial counsel.
Although he told the court he had read and understood this form, he claimed he had not
actually read it and instead “agreed [to] whatever it t[ook] for [him] to testify[.]” The
Petitioner acknowledged that the trial transcript reflected his statements that trial counsel
had prepared him to testify at trial and that they had discussed the potential benefits and
consequences of testifying.
The Petitioner acknowledged that he shot the victim and that it was never a part of
his defense strategy to contend otherwise. However, he said he lied at trial about firing
the second shot at the victim and told this lie only because he was precluded from
testifying about his brother’s involvement in the offense. The Petitioner claimed that he
testified in his own behalf only because trial counsel told him to testify and that if it had
been his choice, he never would have testified.
On redirect examination, the Petitioner said that although trial counsel did not
review Tommy Lackey’s recorded interview with him, he listened to it when he was
represented by the public defender’s office and later discussed this recorded interview
with trial counsel. He stated that while he and trial counsel discussed the witness list for
the defense, they never discussed the possibility of the Petitioner’s testifying at trial.
Regarding the mistake of fact defense, the Petitioner said,
I was not familiar with it. The whole cell phone thing was all made up by
[trial counsel] and I had never even heard this defense until he brought it up
at trial. It’s the first time I had heard anything about . . . say[ing] that I . . .
mistaked [sic] [the victim’s cell phone] for a gun. So what he was saying
and what he was going to bring in front of the jury, I had never even heard
anything about it and had no idea what he was going to do.
The Petitioner said he felt forced to testify at trial because no other witnesses testified on
his behalf.
At the conclusion of the hearing, the post-conviction court noted that the Petitioner
was convicted at trial of “second degree, not first degree murder,” which the court
believed was the result of “good lawyering” on behalf of trial counsel. On January 29,
2018, the court entered a written order denying the Petitioner’s request for post-
conviction relief. In it, the trial court found that “[b]ecause the Petitioner readily admits
that he lied during his trial testimony, the Court regards as untrustworthy the testimony of
the Petitioner during [the post-conviction] hearing.” However, it found that “[t]he other
witnesses[, namely trial counsel and Tommy Lackey,] presented by the Petitioner, are
accepted by the Court as credible, and their testimony is accepted as true.” As to the
Petitioner’s specific claim that trial counsel provided ineffective assistance in failing to
-9-
present the testimony of Tommy Lackey at trial, the post-conviction court made the
following findings of fact and conclusions of law:
The Petitioner has failed to demonstrate ineffective assistance of trial
counsel because of the failure to present the testimony of Tommy Lackey.
Tommy Lackey was not found prior to trial, though Petitioner’s attorney
and investigator made [an] effort to locate him.
At the Petitioner’s request, the Court allowed the introduction of
Tommy Lackey’s recorded statement given to investigators. However, its
contents are not accepted as substantive proof. Tommy Lackey’s testimony
during this hearing is considered as substantive proof of what would have
been his trial testimony. As such, Tommy Lackey’s testimony would not
have supported a defense, but could have been detrimental to the Petitioner
had he testified at trial.
The post-conviction court ultimately held that “neither the testimony of the witnesses nor
the exhibits introduced by the Petitioner demonstrate . . . deficient performance on the
part of the Petitioner’s trial attorney” or “give this Court reason to question the jury’s
finding of guilt beyond a reasonable doubt.” It is from this order that the Petitioner now
appeals.
ANALYSIS
The Petitioner argues that trial counsel provided ineffective assistance in failing to
call his brother as a defense witness and that the post-conviction court erred in failing to
consider his brother’s recorded TBI interview as substantive evidence. The State
responds that the Petitioner failed to prove that he received ineffective assistance of
counsel and that the post-conviction court properly relied on his brother’s sworn
testimony at the post-conviction hearing when denying relief. We agree with the State.
In reaching this conclusion, we are guided by the following well-established law
pertaining to post-conviction relief. Post-conviction relief is only warranted when a
petitioner establishes that his or her conviction or sentence is void or voidable because of
an abridgment of a constitutional right. T.C.A. § 40-30-103. The Tennessee Supreme
Court has held:
A post-conviction court’s findings of fact are conclusive on appeal
unless the evidence preponderates otherwise. When reviewing factual
issues, the appellate court will not re-weigh or re-evaluate the evidence;
moreover, factual questions involving the credibility of witnesses or the
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weight of their testimony are matters for the trial court to resolve. The
appellate court’s review of a legal issue, or of a mixed question of law or
fact such as a claim of ineffective assistance of counsel, is de novo with no
presumption of correctness.
Vaughn v. State, 202 S.W.3d 106, 115 (Tenn. 2006) (internal citations and quotation
marks omitted); see Felts v. State, 354 S.W.3d 266, 276 (Tenn. 2011); Frazier v. State,
303 S.W.3d 674, 679 (Tenn. 2010). A post-conviction petitioner has the burden of
proving the factual allegations 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 considered clear and convincing when there is no serious or
substantial doubt about the accuracy of the conclusions drawn from it. Lane v. State, 316
S.W.3d 555, 562 (Tenn. 2010); Grindstaff v. State, 297 S.W.3d 208, 216 (Tenn. 2009);
Hicks v. State, 983 S.W.2d 240, 245 (Tenn. Crim. App. 1998).
I. Ineffective Assistance of Counsel. The Petitioner argues that trial counsel
provided ineffective assistance in failing to call Tommy Lackey to testify at trial.
Specifically, he asserts that because trial counsel described Lackey’s potential trial
testimony as “exculpatory” during his request for a missing witness instruction, trial
counsel could not then claim at the post-conviction hearing that he made a tactical
decision not to call him to testify at trial. The State counters that the Petitioner has failed
to show that trial counsel was deficient in failing to present Lackey’s testimony at trial or
that he was prejudiced by this alleged deficiency. We agree with the State.
In order to prevail on an ineffective assistance of counsel claim, the petitioner
must establish that (1) his lawyer’s performance was deficient and (2) the deficient
performance prejudiced the defense. Vaughn, 202 S.W.3d at 116 (citing Strickland v.
Washington, 466 U.S. 668, 687 (1984); Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn.
1975)). “[A] failure to prove either deficiency or prejudice provides a sufficient basis to
deny relief on the ineffective assistance claim. Indeed, a court need not address the
components in any particular order or even address both if the [petitioner] makes an
insufficient showing of one component.” Goad v. State, 938 S.W.3d 363, 370 (Tenn.
1996) (citing Strickland, 466 U.S. at 697).
A petitioner successfully demonstrates deficient performance when the clear and
convincing evidence proves that his attorney’s conduct fell “below an objective standard
of reasonableness under prevailing professional norms.” Id. at 369 (citing Strickland,
466 U.S. at 688; Baxter, 523 S.W.2d at 936). Prejudice arising therefrom is demonstrated
once the petitioner establishes “‘a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different. A
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reasonable probability is a probability sufficient to undermine confidence in the
outcome.’” Id. at 370 (quoting Strickland, 466 U.S. at 694).
We note that “[i]n evaluating an attorney’s performance, a reviewing court must
be highly deferential 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) (citing Strickland, 466 U.S. at 689). Moreover, “[n]o particular
set of detailed rules for counsel’s conduct can satisfactorily take account of the variety of
circumstances faced by defense counsel or the range of legitimate decisions regarding
how best to represent a criminal defendant.” Strickland, 466 U.S. at 688-89. However,
we note that this “‘deference to matters of strategy and tactical choices applies only if the
choices are informed ones based upon adequate preparation.’” House v. State, 44 S.W.3d
508, 515 (Tenn. 2001) (quoting Goad, 938 S.W.2d at 369).
Here, the record shows that trial counsel made adequate efforts to contact and
locate Tommy Lackey, to no avail. Trial counsel testified at the post-conviction hearing
that he made several attempts to locate Tommy Lackey in multiple states but that neither
he nor the State could find him. Trial counsel also said that when he characterized
Tommy Lackey’s potential testimony as “exculpatory” when arguing for the missing
witness instruction at trial, he did not know the substance of Tommy Lackey’s testimony,
was just “throwing things against the wall just to see what sticks[,]” and did not believe
this testimony would have proven beneficial to the Petitioner’s defense.
At the conclusion of the hearing, the post-conviction court noted that the Petitioner
failed to show how Tommy Lackey’s testifying at trial “would have changed the outcome
of this case.” Moreover, in its order denying relief, the post-conviction court concluded
that Tommy Lackey’s testimony “would not have supported a defense” and “could have
been detrimental to the Petitioner had he testified at trial.” Although the Petitioner
characterizes Tommy Lackey’s potential trial testimony as “exculpatory,” the Petitioner
has failed to show what specific testimony Tommy Lackey would have provided that
would have exculpated the Petitioner and changed the outcome at trial. Moreover, when
considering whether trial counsel’s failure to call Tommy Lackey prejudiced the
Petitioner, we recognize that the Petitioner was convicted not of first degree murder as
charged, but of the lesser included offense of second degree murder. For all of these
reasons, we agree with the post-conviction court that the Petitioner failed to establish that
trial counsel’s performance was deficient or that he was prejudiced by any alleged
deficiency. Accordingly, the Petitioner is not entitled to relief on this issue.
II. Admission of Recorded Interview as Substantive Evidence. The Petitioner
also argues that the post-conviction court “abused its discretion” when it failed to
consider Tommy Lackey’s recorded interview with the TBI as substantive evidence.
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Specifically, the Petitioner claims that the post-conviction court erred in failing to
consider Tommy Lackey’s recorded interview when assessing the materiality of this
proffered testimony, especially after Tommy Lackey admitted several times on direct
examination that his recorded interview spoke for itself. See Pylant v. State, 263 S.W.3d
854, 869 (Tenn. 2008) (concluding that “[w]hen a petitioner presents at the post-
conviction hearing a witness he claims should have been called at trial, the post-
conviction court must determine whether the testimony would have been (1) admissible
at trial and (2) material to the defense”). The State responds that Tommy Lackey’s
recorded interview was only admitted for the purpose of refreshing his recollection and
that the post-conviction court properly considered Tommy Lackey’s post-conviction
testimony, rather than his recorded TBI interview, in deciding whether to grant or deny
relief. Alternatively, the State asserts that even if the recorded interview had been
admitted as substantive evidence, the Petitioner still failed to show that he was entitled to
post-conviction relief. We conclude that the post-conviction court properly denied the
request to admit the recorded interview as substantive evidence.
Hearsay is “a statement, other than one made by the declarant while testifying at
the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Tenn.
R. Evid. 801(c). Rule 802 states that “hearsay is not admissible except as provided by
these rules or otherwise by law.” Tenn. R. Evid. 802. As the Tennessee Supreme Court
recognized, “[t]he standard of review for rulings on hearsay evidence has multiple
layers.” Kendrick v. State, 454 S.W.3d 450, 479 (Tenn. 2015). The “factual and
credibility findings” made by the trial court when determining whether a statement is
hearsay “are binding on a reviewing court unless the evidence in the record preponderates
against them.” Id. (citing State v. Gilley, 297 S.W.3d 739, 759-61 (Tenn. Crim. App.
2008)). However, once the trial court has made its factual findings and credibility
determinations, “the next questions—whether the facts prove that the statement (1) was
hearsay and (2) fits under one the exceptions to the hearsay rule—are questions of law
subject to de novo review.” Id. (citing State v. Schiefelbein, 230 S.W.3d 88, 128 (Tenn.
Crim. App. 2007); Keisling v. Keisling, 196 S.W.3d 703, 721 (Tenn. Ct. App. 2005)).
Rule 612 of the Tennessee Rules of Evidence explains the procedures when a
witness uses a writing to refresh his or her memory:
If a witness uses a writing while testifying to refresh memory for the
purpose of testifying, an adverse party is entitled to inspect it, to cross-
examine the witness thereon, and to introduce in evidence those portions
which relate to the testimony of the witness. If it is claimed that the writing
contains matters not related to the subject matter of the testimony, the court
shall examine the writing in camera, excise any portions not so related, and
order delivery of the remainder to the party entitled thereto. Any portion
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withheld over objections shall be preserved and made available to the
appellate court in the event of appeal. If a writing is not produced or
delivered pursuant to order under this rule, the court shall make any order
justice requires; in criminal cases when the prosecution elects not to
comply, the order shall be one striking the testimony or, if the court in its
discretion determines that the interests of justice so require, declaring a
mistrial.
Tenn. R. Evid. 612 (emphasis added).
Additionally, Tennessee Rule of Evidence 803 explains the limited circumstances
under which the prior statement may be entered as an exhibit in a trial as recorded
recollection:
A memorandum or record concerning a matter about which a
witness once had knowledge but now has insufficient recollection to enable
the witness to testify fully and accurately, shown to have been made or
adopted by the witness when the matter was fresh in the witness’s memory
and to reflect that knowledge correctly. If admitted, the memorandum or
record may be read into evidence but may not itself be received as an
exhibit unless offered by an adverse party.
Tenn. R. Evid. 803(5) (emphasis added).
Having reviewed the applicable law, we conclude that the post-conviction court
properly admitted Tommy Lackey’s post-conviction testimony, rather than his recorded
TBI interview, as substantive evidence. The record shows that Tommy Lackey’s
recorded interview was repeatedly used on direct examination during the post-conviction
hearing to refresh his recollection. After the State concluded its cross-examination of
Tommy Lackey, post-conviction counsel asked that Lackey’s recorded interview be
admitted as substantive evidence. The State objected on the basis of hearsay. Thereafter,
the post-conviction court admitted the recorded interview, consistent with Rule 612, for
purposes of appellate review. The court stated that it would only consider Tommy
Lackey’s post-conviction testimony as substantive evidence, explaining, “Mr. Tommy
Lackey is under oath to testify truthfully today. . . . He did not go back to the trailer. He
[did not have] in his possession a pistol, that he had a rifle, [and] that it was in his
trunk[.]”
In making this ruling, the post-conviction court expressly accredited Tommy
Lackey’s post-conviction testimony over the statements he made in his recorded TBI
interview and implicitly held that Lackey’s recorded interview was inadmissible hearsay.
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The court also discredited the Petitioner’s post-conviction testimony, based on his
numerous admissions that he lied at trial, and accredited the trial counsel’s and Tommy
Lackey’s post-conviction testimony over the Petitioner’s testimony. The court then
concluded, after reviewing all the evidence presented at the post-conviction hearing, that
the Petitioner was not entitled to relief. Because the Petitioner has failed to show how the
post-conviction court erred in failing to consider Tommy Lackey’s recorded interview as
substantive evidence, he is not entitled to relief.
CONCLUSION
Based on the aforementioned authorities and reasoning, we affirm the judgment of
the post-conviction court.
____________________________________
CAMILLE R. MCMULLEN, JUDGE
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