Marilyn Denise Avinger v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs at Knoxville January 25, 2011
MARILYN DENISE AVINGER v. STATE OF TENNESSEE
Appeal from the Criminal Court for Davidson County
No. 2005-B-1239 Steve R. Dozier, Judge
No. M2009-02577-CCA-R3-PC - Filed May 3, 2011
The Petitioner, Marilyn Denise Avinger, appeals the Davidson County Criminal Court’s
denial of post-conviction relief from her conviction of attempted second degree murder, for
which she received a nine-year sentence, with all but thirty days to be served on probation.
On appeal, she contends that trial counsel rendered ineffective assistance. We affirm the
judgment of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
J OSEPH M. T IPTON, P.J., delivered the opinion of the Court, in which J AMES C URWOOD W ITT,
J R., and N ORMA M CG EE O GLE, JJ., joined.
Ashley Preston, Nashville, Tennessee, for the appellant, Marilyn Denise Avinger.
Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney
General; Victor S. Johnson, III, District Attorney General; and Rachel Sombrero, Assistant
District Attorney General, for the appellee, State of Tennessee.
OPINION
The facts of the Petitioner’s conviction were stated by this court on direct appeal:
The victim, Sadie Mae Brooks, testified that she lived
with the defendant’s mother at her home in Nashville when she
was attacked by the defendant. The victim stated that the
defendant did not live in the home. The victim testified that on
the day of the attack, the defendant entered her room about
fifteen minutes after the victim returned home from work. The
defendant accused the victim of cheating on her brother, Charles
Avinger. The defendant confronted the victim about staying in
a hotel room with the defendant’s boyfriend. According to the
victim, the defendant then jumped on top of her and began
hitting and scratching her. The victim scratched the defendant
and pulled her hair to get the defendant to stop. The defendant
cried out for her mother at one point before ending her initial
attack.
The victim testified that after the defendant ceased her
initial attack, she left the room and went into the kitchen. The
victim walked to the doorway of her bedroom and saw the
defendant grab a knife from the kitchen counter. According to
the victim, the defendant charged at her with the knife yelling,
“Bitch, I’m going to kill you.” The victim attempted to shut the
door but the defendant blocked the door with her foot. The
defendant reached around the door with the knife and began
stabbing repeatedly at the victim. The defendant succeeded in
stabbing the victim on the left hand and wrist. The victim
recalled that after the defendant stabbed her hand, she bled
profusely and believed that she was going to pass out.
According to the victim, the defendant also succeeded in
stabbing her in the shoulders, once above the right breast, and
once on the left arm.
The victim testified that she was finally able to get the
door closed and locked. She dialed 9-1-1 on the telephone in the
bedroom. The cord for the phone went to a jack on the other
side of the door. The defendant unplugged the phone before the
victim could complete her call. The victim stated that she
waited in the room until the police and paramedics arrived and
transported her to the hospital. She testified that months after
the attack, she still had scars from the stabbing. She also
suffered a permanent injury to her finger which prevented her
from moving it.
On cross-examination, the victim testified that she had
lived at the defendant’s mother’s home for about six to seven
months prior to the attack and had been dating the defendant’s
brother for about nine months. She stated that prior to living
with the defendant’s mother, she had been homeless. After
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getting a job, she was able to pay the defendant’s mother rent
and pay for food. The victim stated that she had been the
defendant’s friend until the defendant got a new boyfriend. She
stated that after the defendant attacked her, she moved in with
a family member before moving back to her hometown.
On cross-examination, the victim testified that she was
sitting on her bed and working on paying her bills when the
defendant confronted her. According to the victim, the
defendant jumped on her as she sat on the bed. The victim
stated that the defendant’s mother and the defendant’s brother
were in the living room adjacent to the victim’s bedroom. She
stated that neither the defendant’s mother nor the defendant’s
brother came into the room during the attack.
The victim further testified that after the incident, the
defendant’s brother placed the knife the defendant used in the
kitchen sink. According to the victim, the defendant’s brother
did not call 9-1-1 for her. She stated that from the time she
dialed 9-1-1, it was approximately ten minutes before police and
paramedics arrived at the house. She stated that she was taken
to the emergency room and given stitches. The victim stated
that after she left the house, the defendant’s brother called her
and asked her to drop the charges against his sister. The victim
refused his request.
Charles Avinger testified that he was the defendant’s
brother and was dating the victim at the time. He stated that as
he was returning to his mother’s house, he encountered his
sister, the defendant, leaving the house to go to work. The
defendant informed him that the victim was having a
relationship with her boyfriend. Mr. Avinger entered the house
and saw the victim who was bleeding and had a towel wrapped
around her arm. His mother yelled at him to call the police.
According to Mr. Avinger, he dialed 9-1-1 before asking the
victim what happened.
Mr. Avinger testified that he never saw the fight between
the victim and the defendant. He stated that he never touched
the knife used in the attack. Mr. Avinger admitted that he and
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his mother had consumed about four or five beers during the
course of the day but maintained that he was not drunk. After
paramedics arrived and took the victim to the hospital, he
remained at the house with his mother. Mr. Avinger noted that
there was quite a bit of blood on the door to the victim’s
bedroom, as well as on the rug and on clothes left on the
bedroom floor.
On cross-examination, Mr. Avinger testified that when he
encountered his sister outside the house, she was walking, not
running. He noticed that she had scratches and her shirt was
torn and had blood on it. Mr. Avinger identified a photograph
of the maroon rug and the carpet underneath it from the floor of
the bedroom he shared with the victim. He stated that the
maroon rug and the carpet had brown stains on them prior to the
attack. However, he admitted that there was blood all over the
rug and the carpet after the attack. He acknowledged that the
rug and carpet did not have any blood on them when he left the
house earlier that day.
The defendant testified that she went to the house shared
by the victim, her brother and her mother after work to check on
her mother. When she arrived at the house, the first person she
saw was the victim. She told the victim that she knew that her
boyfriend and the victim had engaged in a sexual relationship
behind her back. She informed the victim that she had a bank
statement proving that her boyfriend and the victim had been
together in a hotel. The defendant stated that she was upset
because she had allowed the victim access to her house, and she
believed that the victim had been sleeping with her boyfriend
while the defendant was at work.
The defendant testified that she told the victim that she
was going to tell her brother about the victim’s relationship with
the defendant’s boyfriend. According to the defendant, the
victim jumped up from where she was sitting on the bed and the
two began to fight. The two scratched and pulled each other’s
hair as they fell onto the bed and rolled around, fighting.
According to the defendant “from somewhere-I don’t know
where-a knife come up.” The two women struggled over the
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knife. At one point, the knife penetrated the victim’s hand. The
defendant stated that she did not have a knife that day when she
went over to the house. She denied ever going to the kitchen to
retrieve a knife.
The defendant testified that the victim tore a large clump
of hair from her head and was pulling on her hair when the
defendant called out to her mother to tell the victim to release
her. According to the defendant, her mother came in and told
the two women to quit fighting. The defendant heard her
mother run out of the room and yell for her brother. The
defendant identified a photograph taken of her after the incident
and pointed out injuries and scars she received as a result of her
struggle with the victim.
On cross-examination, the defendant testified that the
knife that was used in the fight was no bigger than a steak knife
or a paring knife. She stated that as she left the house and
encountered her brother, she told him “he was right.”
According to the defendant, this comment was related to a
message Mr. Avinger left the defendant on her answering
machine about his suspicion that the defendant’s boyfriend and
the victim were having a relationship. The defendant admitted
that when she came to her mother’s house, she brought her
boyfriend’s bank statement with her in order to confront the
victim.
The defendant further testified that she did not know how
the victim came to be stabbed in each shoulder during the
struggle on the bed. The defendant admitted that she only called
out to her mother to get the victim to stop pulling her hair. She
also admitted that she did not call out to her mother during the
time the victim had the knife, or at any point during the fight
when the victim was stabbed. The defendant stated that all of
the cutting occurred while the two women were “tussling” on
the bed. The defendant admitted that she left her mother alone
in the house with the victim and the knife when she left. She
also admitted that she did not warn her brother about the victim
before he entered the house.
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The jury found the defendant guilty of attempted
second-degree murder.
State v. Marilyn Denise Avinger, No. M2007-00706-CCA-R3-CD, Davidson County (Tenn.
Crim. App. Sept. 4, 2008), app. denied (Tenn. Mar. 2, 2009). On direct appeal, this court
affirmed the conviction, holding that the evidence was sufficient to support the conviction
and that the trial court did not err by admitting a photograph of blood in the bedroom where
the attack took place to rebut the testimony of a defense witness. Id.
Seven days after the supreme court denied the Petitioner’s application for
discretionary appeal, she filed a pro se post-conviction petition alleging that the attorney who
represented her at trial and the attorney who represented her in the sentencing hearing and
on direct appeal rendered ineffective assistance of counsel. Counsel was appointed and filed
an amended petition. The amended petition alleged that trial counsel and appellate counsel
failed to file motions and request hearings in order to preserve issues for the appeal; that trial
counsel failed to investigate the case and use investigative services; that trial counsel and
appellate counsel failed to communicate with the Petitioner; that trial counsel did not
adequately advise the Petitioner about the defense strategy; that trial counsel failed to consult
with the Petitioner during hearings and the trial; that trial counsel performed deficiently at
the trial in cross-examination, direct examination of the Petitioner, and failing to raise
objections; that trial counsel failed to present favorable evidence; that trial counsel opened
the door for prejudicial impeachment evidence through cross-examination of a witness; that
trial counsel failed to give an effective closing argument; and that appellate counsel failed
to raise all of the issues in the motion for new trial.
At the post-conviction hearing, the Petitioner testified that she could not afford to
retain the attorney who represented her at the preliminary hearing for her trial and that trial
counsel was appointed after she was released on bond. She said she met with trial counsel
three times in twenty-three months of representation. She said he seemed disinterested in her
case.
The Petitioner testified that although she informed trial counsel that her mother was
dying of cancer, he did not speak to her mother before her death. She said that her mother
was present during the offense and that her mother would have provided information that
contradicted the victim’s account of the crime.
The Petitioner testified that the crime occurred because she and the victim were
fighting over the Petitioner’s boyfriend. She said that even though the victim was dating the
Petitioner’s brother, the victim was having an affair with the Petitioner’s boyfriend. She said
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that trial counsel did not subpoena the boyfriend and that counsel told her not to mention him
at the trial. She said that she wanted to introduce evidence of a hotel bill and telephone bills
showing the victim’s involvement with her boyfriend but that counsel did not use them at the
trial. The Petitioner introduced as an exhibit a cell phone bill that she said showed contact
between the victim and her boyfriend. She said that her boyfriend admitted dating both
women but that the victim denied involvement with him. She said trial counsel should have
used the evidence of an affair to impeach the victim’s credibility.
The Petitioner testified that trial counsel failed to investigate the 9-1-1 call that the
victim claimed to have made. She said the victim “had her phone hooked up some kind of
way where . . . if you called her, it would ring, but it would show up as a day care.” She said
this evidence would have impeached the victim’s claim that the Petitioner pulled the phone
cord from the wall because emergency personnel would have gone to the day care, rather
than to the crime scene, had there been a hang-up call to 9-1-1. She said this would have
shown that the victim made the call from the Petitioner’s mother’s phone, which was in a
different room than the victim claimed she was in after the fight. She said trial counsel could
have asked her mother whether the telephone cord had been ripped from the wall. She
acknowledged that by the time trial counsel was appointed, the scene was not the same as it
was on the day of the crime.
The Petitioner testified that she gave photographs of the scene to trial counsel. She
said three of the photographs demonstrated the impossibility of the victim’s claim that she
stood in a doorway and saw the Petitioner retrieve a knife from the kitchen counter. She said
trial counsel did not use the evidence at the trial.
The Petitioner testified that trial counsel did not discuss trial strategy with her. She
acknowledged that he showed her photographs from the State. She said trial counsel told her
not to talk about her boyfriend. She said that he told her to smile at the jurors and that she
thought this was inappropriate because it would show that she had no remorse or enjoyed
fighting.
The Petitioner testified that trial counsel wanted her to accept a plea agreement. She
said, however, that he never communicated any offers to her from the State. She said that
every time he mentioned a plea agreement, she interrupted him to say she did not want to
accept a plea agreement because she was not guilty.
The Petitioner testified that trial counsel “barely” consulted with her during breaks in
the trial and when the jury was not in the courtroom. She said that she gave him a list of
questions she wanted him to ask the victim but that he said “later” and did not use them. She
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said that with respect to some of the questions, trial counsel told her they were not going to
talk about the Petitioner’s boyfriend.
The Petitioner testified that she was dissatisfied with trial counsel’s performance
relative to pictures of the scene. She said that when she left her mother’s home after the
fight, the only place there was blood was on the bed where the struggle took place. She said
the photographs showed blood in other locations. She said these photographs should have
been used to show that the victim, not she, introduced the knife into the fight. She admitted
that the victim received knife wounds during the fight. She said the photographs showed that
the victim staged the scene afterwards. She said the photographs demonstrated that blood
was not on the door in the locations expected if the crime occurred as the victim claimed.
She said trial counsel should have requested admission of all photographs showing a bloody
crime scene to demonstrate that the victim fabricated her story.
The Petitioner also testified that trial counsel failed to use a photograph of a bag of
ice, a bucket of water, and blood that appeared to be mixed with water on the cradle of a
telephone. She said this photograph would have contradicted the victim’s testimony that she
did not leave the room where the crime occurred until after the police arrived because it
showed that the victim left the room to retrieve ice and water. She said trial counsel should
have had the photograph examined to determine whether the blood on the telephone was
mixed with water.
The Petitioner testified that she wanted trial counsel to subpoena the victim’s nephew.
She said his testimony could have been used to contradict the victim’s claim that she rented
a hotel room for him. She said this would have demonstrated the victim’s lack of credibility.
The Petitioner testified that trial counsel failed to cross-examine the victim
adequately. She complained that he never cross-examined the victim about her testimony
that the Petitioner retrieved a knife, ran to the victim, and said, “B----, I’m going to kill you.”
She said the victim never made this claim in any of her pretrial statements. She said trial
counsel failed to address this testimony in his closing argument. She said trial counsel also
failed to cross-examine the victim about her claim that she struggled with a door knob during
the altercation, even though a photograph showed underwear hanging on the doorknob. She
said the underwear would not have remained on the doorknob had the victim’s testimony
been accurate. She said trial counsel only cross-examined the victim about some of the
inconsistencies between the victim’s testimony at the trial and the preliminary hearing. She
noted that the victim testified at the preliminary hearing about a cut on her face but that this
injury was not documented in the police report. She said trial counsel also failed to introduce
the victim’s medical records to show where the victim was cut.
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The Petitioner testified that trial counsel did not adequately question her during direct
examination. She said that she was not on the stand for a long time and that he did not ask
questions she thought were important. She said that trial counsel never asked her whether
she said, “B----, I’m going to kill you,” and that the jury believed she said it even though she
did not make the statement.
The Petitioner testified that trial counsel’s closing argument did not mention several
inaccurate statements in the victim’s testimony. She specified that trial counsel did not argue
against the victim’s claim that the Petitioner threatened to kill her, that he did not address the
State’s proof that the crime occurred behind a door and not on a bed, that he did not talk
about the photographs, and that he did not address the victim’s claim that the Petitioner
yanked the telephone cord from the wall.
The Petitioner testified that she was dissatisfied with trial counsel and that she
retained appellate counsel to represent her at the sentencing hearing and on appeal. She said
she had a disagreement with appellate counsel because counsel did not want to represent the
Petitioner in a drug case. She said that appellate counsel was upset because the court denied
her motion to withdraw in the drug case and that she thought this affected appellate counsel’s
representation in the present case. With respect to her dissatisfaction with appellate counsel,
the Petitioner claimed that she asked appellate counsel about the status of the appeal several
times and that counsel always said she “had not heard anything.” She stated that appellate
counsel claimed to have filed a brief but that the Petitioner was told otherwise by a court
clerk. She said that when she contacted appellate counsel about the information from the
clerk, appellate counsel claimed that her assistant was working on the brief.
On cross-examination, the Petitioner testified that the victim’s hands were on the knife
and that the victim “got stuck during the struggle.” She said that although the defense theory
was self-defense, trial counsel never said anything about the Petitioner’s being injured during
the fight. She said she had a bite mark, scrapes on her hands and arm, and patches of her
microbraids pulled out. She claimed she was not afraid of the victim before the knife
appeared in the fight but said she was afraid once the victim pulled the knife. She said that
she was not afraid for her mother’s safety when she left the house after the fight and that the
victim had no dispute with the Petitioner’s mother.
The Petitioner acknowledged that the hotel receipt was mentioned in the proof, but
she said trial counsel was not the person who introduced it. She admitted that a police officer
testified about a hang-up call to 9-1-1 placed from the scene. She said she thought the
photograph to be introduced showed blood on the floor, blood on the phone, ice, and water.
She said that the photographs were mixed up at trial and that with respect to this photograph,
“they put them in and they put them out. . . . [W]hen they did put it back in, then they ruled
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it out, I didn’t get a chance to use this picture. . . . When it came down to me to say this
picture, they ruled it back out.” She said counsel could have had the victim’s doctor testify
and introduce the victim’s medical records to show the location of the victim’s injuries. She
said trial counsel told her the court ruled that the medical records were not admissible
because they contained the victim’s admission that she smoked marijuana. She admitted that
the victim showed scars to the jury that the victim claimed were from her stab injuries. She
acknowledged that her mother was in the house but not in the room when the fight occurred.
The Petitioner acknowledged that appellate counsel filed a timely brief but said that
appellate counsel did not review the evidence or present all of the issues. The Petitioner said
she “found all this stuff that was messed up” in the brief. She said that appellate counsel
stated that her assistant prepared the brief, but the Petitioner said that counsel’s assistant
knew nothing about her case.
Appellate counsel testified that she was licensed after the first 2006 bar examination
and that the Petitioner retained her later that year for the motion for new trial and appeal. She
acknowledged that her motion to substitute counsel was dated October 24, 2006. She
thought she reviewed the transcripts of the preliminary hearing and the trial. She said she
spoke with trial counsel a couple of times but did not meet formally with him. She said she
had several meetings of at least one hour each with the Petitioner before the sentencing
hearing. She said her first priority when she was retained was the sentencing hearing. She
said that after the hearing, she prepared a motion for new trial and met with the Petitioner
several more times. She said she discussed the issues to be raised in the motion with the
Petitioner. She said that the Petitioner wanted to raise an issue of whether trial counsel
provided ineffective assistance but that she advised the Petitioner this claim should be raised
in a post-conviction action. She said she explained an ineffective assistance claim to the
Petitioner. She said she raised all the issues she thought were proper for the motion for new
trial.
Appellate counsel did not recall whether she met with the Petitioner between the
denial of the motion for new trial and filing the direct appeal, but she said that the Petitioner
made unscheduled visits to her office and that she spoke with the Petitioner on these
occasions. She did not remember the number of occasions this happened but said it was
“more than a few.” She said that she had an employee who worked on the brief but that she
approved his work before she signed it. She said she raised all the issues on appeal that she
thought had a legal basis.
Appellate counsel testified that in the fall of 2006, her caseload involved over ninety
percent criminal cases. She said that she had not done appellate work for her own clients
before the Petitioner’s appeal but that she “had clerked in D.C.”
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On cross-examination, appellate counsel testified that she argued mitigating factors
at the sentencing hearing, although she did not file a notice before the hearing of the factors
upon which the Petitioner would rely. She said that in addition to her many meetings with
the Petitioner, she spoke with her by telephone once or twice a week. She said that after the
appellate court affirmed the Petitioner’s conviction, she saw the Petitioner in court without
counsel and tried to help her. She said this proceeding was related to the Petitioner’s failure
to turn herself in to serve her jail sentence for the attempted murder.
With respect to the Petitioner’s new charge for the drug offense, appellate counsel
testified that the Petitioner claimed that trial counsel was representing her but that she wanted
appellate counsel to do so. Appellate counsel said that she “arraigned her” but that the
Petitioner thought mistakenly that appellate counsel would represent her in the drug case
without additional payment. She said that the Petitioner stated she would get a public
defender for the case but that when appellate counsel filed a motion to withdraw, the trial
court appointed her to represent the Petitioner. She said that other than the issue of the
additional fee, she had no problem with accepting the representation when the Petitioner
asked her to do so.
Appellate counsel testified that she thought the result of the sentencing hearing “was
pretty good.” She did not recall whether she considered raising an issue in the motion for
new trial regarding the sentence but said she thought the sentence was fair.
Trial counsel testified that he was appointed to represent the Petitioner in 2005. He
said that he had been licensed for ten years and that his caseload involved over ninety-five
percent criminal cases. He said that he litigated five or six jury trials before he was
appointed to the Petitioner’s case and that some of them involved Class A and B felonies.
Trial counsel testified that the trial court approved his motion for investigative fees.
He said that he and the investigator met with the Petitioner several times in addition to court
dates. He said the investigator also met with the Petitioner on other occasions to obtain
names of possible witnesses. He said the investigator provided him with reports about the
investigation.
Trial counsel testified that he met with the Petitioner more than three times. He said
he met with her on court dates at least four or five times. He said he also communicated with
her by telephone and at a couple of meetings. He said that if his fee claim form represented
twenty-four meetings and telephone calls with the Petitioner, it was accurate. With respect
to communication during the trial, counsel said there were many times when he told the
Petitioner to be quiet and wait to discuss something during the break. He said that he did this
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because he was trying to pay attention to the proceedings but that he communicated with her
during breaks and recesses.
Trial counsel testified that the telephone records the Petitioner wanted to introduce
did not provide a defense to the attempted murder charge. He said that in his professional
opinion, he did not think they were a relevant part of the trial strategy. He said the
information about the Petitioner’s jealousy over the victim’s relationship with the Petitioner’s
boyfriend would have furthered the State’s case. He said he wanted some of the exhibits
excluded. He said photographs of pools of blood were “horrific” and prejudicial to the
Petitioner. He said he filed a motion to exclude the victim’s medical records because he
thought they supported the State’s theory.
On cross-examination, trial counsel testified that he did not recall whether he and the
Petitioner discussed the photographs she took. He could not recall whether she gave him the
photographs and said she might have given them to the investigator. He said that if she gave
them to the investigator, he would have seen them.
Trial counsel admitted he did not recall whether the Petitioner told him that her
mother was terminally ill. He said the Petitioner told him during preparations for the trial
that her mother was in the living room when the offense occurred in the bedroom. He denied
that the Petitioner told him that her mother stuck her head in the bedroom during the fight.
Trial counsel testified that he discussed the trial strategy with the Petitioner. He said
the Petitioner’s brother “was going to shed some light . . . on what transpired . . . and . . . the
whole jealousy motive.” He did not recall any specific discussions about the 9-1-1 call or
the telephone cord, but he was sure they discussed this evidence. He said they reviewed
everything, including the risks and possible benefits of going to trial.
Trial counsel testified that he did not think he was overworked when he represented
the Petitioner and that he thought he gave her case adequate attention. He said he relied on
the investigator because doing the investigative work himself in addition to the trial
preparation for serious cases “would have been . . . stretching it too thin.” He said he
typically submitted a petition for approval of expert services to the trial court within a week
of a defendant’s arraignment.
Trial counsel testified that the majority of his conversations with the Petitioner about
trial preparation would be reflected on his fee claim form. He said that because the Petitioner
was on bond, it was easier to talk to her.
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Trial counsel testified that he did not think the Petitioner’s disagreement with the
victim over the Petitioner’s boyfriend was relevant to the defense. He thought that proof of
jealousy would further the State’s case. He said he advised the Petitioner of his opinion. He
stated that he probably told her not to mention her boyfriend at the trial, although he did not
recall such a conversation.
Trial counsel could not recall whether the photograph of the bloody bed was admitted.
He said he thought the photographs showing blood were not helpful. He said the photograph
of the bed supported the Petitioner’s claim that the fight took place on the bed, not behind
the door, but the photograph did not negate the fact that someone had been stabbed.
Trial counsel testified that he gave the Petitioner copies of all the motions he filed.
He said that he discussed with her the reasons he sought to exclude evidence and that she
seemed to understand at the time. He noted that the medical records contained diagrams
detailing the victim’s injuries and supported the State’s case.
Trial counsel testified that he reviewed a transcript of the preliminary hearing. He
disagreed that there were numerous inconsistencies between the victim’s testimony at the
hearing and at the trial. He said there were no inconsistencies that he considered major. He
could not recall whether the preliminary hearing transcript reflected that the victim testified
the Petitioner said, “B----, I’m going to kill you.” He said that this was an important
statement for the State’s case and that it would have been significant if the victim never made
the claim before the trial.
With respect to his closing argument, trial counsel testified that he relied on a theory
noting the credibility of the witnesses. He said he thought he mentioned all of the
inconsistent statements.
On redirect-examination, trial counsel testified that the photographs the Petitioner
wanted to use supported the State’s theory. He could not recall whether the court excluded
some of the photographs.
The Petitioner offered a recording of the preliminary hearing as evidence and asked
the court to review the testimony of the victim for inconsistencies. The court filed an order
in which it found that the Petitioner failed to prove her allegations by clear and convincing
evidence. The trial court’s order recited the testimony and made the following findings of
fact and conclusions of law:
First, the petitioner claims that counsel failed to file
proper notices and motions and failed to protect the petitioner’s
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Constitutional rights on appeal. The Court does not agree with
this finding. Both trial counsel and appellate counsel filed
proper motions and the petitioner’s case was appealed all the
way to the State Supreme Court; however, the Court declined to
hear her case.
Next, the petitioner claims that counsel failed to properly
investigate the petitioner’s case. The Court finds no merit in
this argument either. [Trial counsel] hired a private investigator
per [Tennessee Supreme Court] Rule 13, and had a legitimate
trial strategy and developed it as best as possible. Therefore, the
Court will deny this argument.
Next, the petitioner claims that counsel failed to
adequately meet with the petitioner throughout the trial and
appeals process. Again, this argument is without merit. [Trial
counsel] supplied documentation showing that he met with the
petitioner on nineteen (19) separate occasions and discussed all
of the issues of the case with the petitioner. The argument is
therefore denied.
Next, petitioner argues that trial counsel failed to
adequately advise her on defense strategies. This argument is
without merit as well. The petitioner herself testified that [trial
counsel] advised her on certain topics to discuss while on the
stand and other topics to stay away from. Tactical decisions
made by counsel ordinarily are not grounds for Post-Conviction
Relief, if reasonable. There were tactical reasons to make the
decisions trial counsel made. Therefore, this issue is without
merit.
Next, petitioner argues that trial counsel failed to
properly investigate witnesses. Again, this issue is without
merit. Trial counsel utilized the services of a private
investigator. Therefore, this issue is without merit.
Next, the petitioner argues counsel failed to properly
object during cross-examination of a witness or when
photographs were excluded that would have strengthened the
petitioner’s case. Some of the petitioner’s testimony was
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confusing in that she wanted certain photos introduced that
counsel tried to keep out; regardless, the jury saw photos
relevant to present all evidence for both sides. These issues, and
the remainder of the petitioner’s claims, are trial strategy and
therefore without merit.
The Court finds that the petitioner’s issues are without
merit and that the petitioner failed to meet her burden by clear
and convincing evidence. Therefore, the petition for post-
conviction relief is hereby denied.
On appeal, the Petitioner argues that the trial court erred in denying relief. The State
argues that the trial court’s ruling was proper. We hold that the Petitioner has not shown that
she is entitled to relief.
The burden in a post-conviction proceeding is on the Petitioner to prove her
allegations of fact by clear and convincing evidence. T.C.A. § 40-30-110(f) (2006);
Dellinger v. State, 279 S.W.3d 282, 294 (Tenn. 2009). Post-conviction relief may only be
given if a conviction or sentence is void or voidable because of a violation of a constitutional
right. T.C.A. § 40-30-103 (2006). On appeal, we are bound by the trial court’s findings of
fact unless we conclude that the evidence in the record preponderates against those findings.
Fields v. State, 40 S.W.3d 450, 456-57 (Tenn. 2001). Because they relate to mixed questions
of law and fact, we review the trial court’s conclusions as to whether counsel’s performance
was deficient and whether that deficiency was prejudicial under a de novo standard with no
presumption of correctness. Id. at 457.
Under the Sixth Amendment to the United States Constitution, when a claim of
ineffective assistance of counsel is made, the burden is on the petitioner to show (1) that
counsel’s performance was deficient and (2) that the deficiency was prejudicial. Strickland
v. Washington, 466 U.S. at 668, 687 (1984); see Lockhart v. Fretwell, 506 U.S. 364, 368-72
(1993). A petitioner will only prevail on a claim of ineffective assistance of counsel after
satisfying both prongs of the Strickland test. See Henley v. State, 960 S.W.2d 572, 579
(Tenn. 1997). The performance prong requires a petitioner raising a claim of ineffectiveness
to show that the counsel’s representation fell below an objective standard of reasonableness
or “outside the wide range of professionally competent assistance.” Strickland, 466 U.S. at
690. The prejudice prong requires a petitioner to demonstrate that “there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding would
have been different.” Id. at 694. In the context of a guilty plea, in order to prove prejudice,
a petitioner “‘must show that there is a reasonable probability that, but for counsel’s error,
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he would not have pleaded guilty and would have insisted on going to trial.’” House v. State,
44 S.W.3d 508, 516 (Tenn. 2001) (quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985)).
Our supreme court has held that attorneys should be held to the general standard of
whether the services rendered were within the range of competence demanded of attorneys
in criminal cases. Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). Further, the court
stated that the range of competence was to be measured by the duties and criteria set forth
in Beasley v. United States, 491 F.2d 687, 696 (6th Cir. 1974), and United States v.
DeCoster, 487 F.2d 1197, 1202-04 (D.C. Cir. 1973). See id. Also, in reviewing counsel’s
conduct, a “fair assessment of attorney performance requires that every effort be made to
eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s
challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.”
Strickland, 466 U.S. at 689. “Thus, the fact that a particular strategy or tactic failed or even
hurt the defense does not, alone, support a claim of ineffective assistance.” Cooper v. State,
847 S.W.2d 521, 528 (Tenn. Crim. App. 1992). Deference is made to trial strategy or tactical
choices if they are informed ones based upon adequate preparation. Hellard v. State, 629
S.W.2d 4, 9 (Tenn. 1982); see DeCoster, 487 F.2d at 1201.
The Petitioner raises several challenges to the trial court’s ruling in her brief. All of
the Petitioner’s contentions are based upon the trial court’s accreditation of the proof
presented at the hearing. As noted above, we are bound by the trial court’s factual findings
unless the evidence preponderates against them. Fields, 40 S.W.3d at 456-57.
The Petitioner contends that trial counsel was deficient for failing to speak with her
mother before her mother’s death. She claims her mother was a crucial defense witness.
Trial counsel did not recall whether he spoke with the Petitioner’s mother, but he testified
that the Petitioner told him before the trial that her mother was in the living room and did not
see what occurred between the Petitioner and the victim. He denied that the Petitioner told
him her mother saw part of the altercation. At the post-conviction hearing, the Petitioner was
adamant that she wanted evidence presented to show that the struggle took place on the bed,
that the victim left the bedroom before the police arrived, and that the victim staged the scene
to fit her version of events. The record reflects, however, that trial counsel knew the
Petitioner’s wishes that the evidence to dispute the victim’s account of the crime be
presented. He advised her that in his professional opinion, offering evidence of this nature
would further the State’s case. The trial court found that trial counsel made decisions based
upon trial strategy and that trial counsel made reasonable tactical decisions. The record
supports the trial court’s rejection of this portion of the Petitioner’s ineffective assistance
claim.
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Similarly, the Petitioner argues that trial counsel was ineffective for seeking exclusion
of photographs that supported the Petitioner’s version of events. Trial counsel testified that
he thought the photographs of a bloody scene were “horrific” and prejudicial to the defense.
He also said the photographs did nothing to disprove the fact that a stabbing occurred. We
note that this court’s opinion on direct appeal reflects the Petitioner challenged the trial
court’s admission of a photograph showing blood in the room where the attack occurred to
impeach a defense witness. Marilyn Denise Avinger, slip op. at 4-6. This establishes that
despite the Petitioner’s post-conviction claim that trial counsel was ineffective for seeking
to have this evidence excluded, the jury saw a photograph depicting the blood in the
bedroom. The trial court found that the Petitioner’s testimony was confusing relative to this
claim and that in any event, the jury considered photographs that were relevant to present all
of the evidence for both the State and the defense. The Petitioner did not establish that
counsel failed to use photographs that would have furthered the defense. She is not entitled
to relief.
The Petitioner contends that trial counsel failed to impeach the victim’s testimony
adequately with her previous statements. She refers to trial counsel’s failure to point out that
the victim never claimed before the trial that the Petitioner swore at her and threatened to kill
her. Trial counsel did not recall whether the first time the victim made the claim was at the
trial, but he said he used the victim’s previous statements for impeachment, and he thought
he did an adequate job.
The Petitioner has not identified the precise testimony from the preliminary hearing
upon which she relies. Our review of the recording in the record includes the victim’s
account of the Petitioner’s statements: The Petitioner asked the victim whether the victim
was afraid to face her and “said something else,” the Petitioner hit the victim, and they began
fighting. The Petitioner went to the kitchen to get a knife and returned and stabbed her. On
cross-examination, the victim said “[the Petitioner] made a statement to [her],” and then hit
her. Defense counsel later asked, “So she wasn’t trying to kill you?” and the victim replied,
“Oh yes, she was.” On redirect examination, the victim testified that after the Petitioner
stabbed her, the Petitioner said to her mother, “I know the b---- is going to swear a warrant
on me. I’m going to turn around and swear a warrant on her.” She said the Petitioner also
told her mother to “get some bond money to get her out and to remember [the Petitioner] had
a knife.”
Although the victim did not specifically testify at the preliminary hearing that the
Petitioner swore at her and said she was going to kill her, the victim said that the Petitioner
made an unspecified statement to her before beginning the fight. The victim was not asked
at the preliminary hearing what that statement was. When cross-examined about whether the
Petitioner was going to kill her, she said, “Oh yes, she was.” Although this evidence might
17
have impeached the victim for failing to reveal the nature of the Petitioner’s statement at the
preliminary hearing, it would not have shown that the victim never claimed the Petitioner
said something other than what the victim claimed at trial or that the Petitioner said nothing.
In any event, trial counsel testified that he impeached the victim’s credibility and argued
witness credibility in his closing argument. The Petitioner failed to demonstrate that
additional cross-examination would have added any benefit to the efforts counsel made to
challenge the victim’s credibility.
Regarding the performance of appellate counsel at the sentencing hearing, the
Petitioner argues that appellate counsel did not meet with the Petitioner enough before the
sentencing hearing, did not file a notice of any mitigating factors before the sentencing
hearing, did not meet with the Petitioner’s trial counsel before the hearing, and did not raise
an issue based upon the trial court’s failure to consider the mitigating and enhancement
factors. The record reflects that appellate counsel met with the Petitioner numerous times
and spoke with her by telephone before the sentencing hearing. The Petitioner acknowledges
in her brief that counsel had “several” meetings of “about an hour” with her before the
sentencing hearing. Appellate counsel said she spoke to trial counsel by telephone before
the sentencing hearing. She testified that she argued the mitigating factors that should apply
at the sentencing hearing. Appellate counsel testified that she raised all issues that she
thought had a legal basis in the motion for new trial and on appeal. The trial court found that
appellate counsel’s performance was not below the acceptable standard. The proof supports
the trial court’s finding that the Petitioner failed to establish her claim.
The Petitioner argues that the cumulative effect of “numerous significant errors and
omissions” in the pretrial, trial, and appellate process by both trial counsel and appellate
counsel deprived her of the right to the effective assistance of counsel. The trial court did
not make any findings that deficient performance occurred, and the Petitioner has not
demonstrated any error in the trial court’s determination that trial counsel and appellate
counsel’s performance were not ineffective. There are no errors to accumulate.
In consideration of the foregoing and the record as a whole, the judgment of the trial
court is affirmed.
_____________________________________
JOSEPH M. TIPTON, PRESIDING JUDGE
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