Martin Dean "Cub" Meeks v. State of Tennessee

08/14/2018
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs July 18, 2018
MARTIN DEAN “CUB” MEEKS v. STATE OF TENNESSEE
Appeal from the Circuit Court for Grundy County
Nos. 31CC1-2009-CR-2774, 4560 Thomas W. Graham, Judge
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No. M2017-01887-CCA-R3-PC
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The Petitioner, Martin Dean “Cub” Meeks, appeals the post-conviction court’s denial of
his petition seeking to overturn his conviction for first degree premeditated murder. The
Petitioner alleged that trial counsel was deficient in failing to obtain expert evidence, but
he did not present any expert testimony at the post-conviction hearing. Because the
Petitioner has not shown that he received ineffective assistance of counsel, we affirm the
denial of post-conviction relief.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
JOHN EVERETT WILLIAMS, P.J., delivered the opinion of the court, in which JAMES
CURWOOD WITT, JR., and ROBERT H. MONTGOMERY, JR., JJ., joined.
Alice W. Wyatt, Dunlap, Tennessee, for the appellant, Martin Dean “Cub” Meeks.
Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Senior Counsel;
Mike Taylor, District Attorney General; and Steve Strain and David O. McGovern,
Assistant District Attorneys General, for the appellee, State of Tennessee.
OPINION
FACTUAL AND PROCEDURAL HISTORY
Trial
During the course of a confrontation, the Petitioner shot and killed the victim, who
lived in a mobile home on property owned by the Petitioner’s family. The Petitioner,
who knew the victim to be habitually armed, maintained that he shot in self-defense when
he saw the victim digging in his pocket as though reaching for a revolver. A black-
handled revolver was discovered under the hip of the deceased victim, who had fallen on
his side. The defense argued at trial that the reasonable inference was that the victim was
attempting to shoot the Petitioner, whereas the State argued that a cigarette and cigarette
lighter found near the victim’s hands precluded the idea that he was also holding a gun.
The proof at trial showed that the Petitioner’s parents had invited the victim to
move his trailer onto their property twenty-five to thirty years prior to the shooting and
that the victim had continued to live there in the interval without paying rent. The
Petitioner’s father was deceased, but his mother resided in a home on the property. Both
the Petitioner and his mother had a friendly relationship with the victim.
A number of months prior to the shooting, the Petitioner moved in with his aging
mother to help care for her. The area near the victim’s mobile home had become
overgrown and neglected, and it contained several dilapidated outbuildings. The
Petitioner, with his mother’s permission, told Ms. Renee Brown Stephens and Mr. Glen
Stephens that they could move their horses and a mobile home onto the property if they
would help clear out the land.
The victim proved reluctant to share the property, and during the month that the
Petitioner and his friends worked at clearing the property, the victim continually cursed at
and harassed them. A few days prior to the shooting, the victim told one of his relatives
that the Petitioner’s friends would be working on the property that weekend and that he
was “going to shoot in the middle of them.” The Petitioner likewise testified that the
victim had threatened to kill him.
On the day of the shooting, the Petitioner, Ms. Stephens, Mr. Stephens, Mr.
Kenneth Clay, Mr. Brian Meeks, and Mr. Stephens’s teenage son were working to clear
out the land and were burning a building which was in danger of collapse. All but Mr.
Meeks testified at trial. The witnesses testified that the victim arrived at the property
irate that the fire was near his home and began to curse the workers. The Petitioner told
police in his statement that the victim threatened to kill him. After a period of argument,
the Petitioner walked to his mother’s home approximately 100 to 150 yards away to
retrieve a shotgun and five shells. According to the Petitioner’s testimony, he checked
the gun outside his mother’s home, discovered it was already loaded, and put the extra
shells into his pocket. He walked back to the area of the victim’s mobile home. The
Petitioner acknowledged to police that he was very angry at this time and that sometimes
he gets so angry that he “blacks out.”
When the Petitioner returned, the argument escalated. In his statement to police,
the Petitioner stated that he was angry and that he told the victim to “get [his] damn
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trailer and leave.” State v. Martin Dean “Cub” Meeks, No. M2012-02200-CCA-R3-CD,
2013 WL 3968195, at *4 (Tenn. Crim. App. Aug. 1, 2013), no perm. app. filed. When
asked what he planned to do when he returned with his gun, the Petitioner told police, “If
he tried to shoot me, I’d sh[o]ot him.” Id. at *5. Mr. Stephens and his son testified that
they could see the victim and the Petitioner during the second phase of the argument and
that the Petitioner did not have the gun pointed at the victim. Mr. Stephens, his son, and
Ms. Stephens testified that they heard the Petitioner say something similar to, “Please,
don’t,” to the victim immediately prior to the shooting. Ms. Stephens, however,
acknowledged that in a prior statement, she had told law enforcement she was the one
who spoke the phrase to the Petitioner. Mr. Stephens recalled seeing the victim digging
in his pocket immediately prior to the shooting and saw a black object in the victim’s
hand. When misinformed by the police that no gun was found, Mr. Stephens
acknowledged to police that the object in the victim’s hand could have been a cigarette
case.
The Petitioner shot the victim in the chest with a slug, and the victim died shortly
thereafter from blood loss. The Petitioner placed the gun and extra shells on a nearby
“smoker,” and he asked his guests to leave. Ms. Stephens remained with the Petitioner
and assisted him in calling for help because he was too upset to be able to communicate
with the 911 operator. He maintained throughout the investigation that he only shot
because he believed the victim was preparing to shoot him.
A black revolver was found under the victim’s hip, and a red lighter and a
cigarette, which had burned down to the filter, were near the victim’s hands. A shell
casing was discovered around the corner of an outbuilding. A firearms expert testified
that he tested the Petitioner’s shotgun, that it automatically ejected casings six to eight
feet after firing, and that a casing could subsequently roll on the ground. Sheriff Brent
Myers testified that he believed from the location of the casing that the Petitioner was at
the corner of the outbuilding and could have been standing beside a tree at the corner.
Agent Larry Davis likewise testified that based on the location of the casing, he believed
the Petitioner was either at the corner of the building or just past the tree, but he also
testified that he believed the shotgun ejected casings only four to six feet. The Petitioner
testified that he walked approximately four to five feet from the corner of the building
and was facing the victim in the open prior to firing the shot. Approximately five hours
after the shooting, the Petitioner’s blood alcohol level was determined to be 0.07 percent,
and his blood also showed the presence of diazepam, commonly known as Valium, and a
metabolite of diazepam.
During deliberations, the jury sent out a written question asking about the presence
of “punts,” which the parties speculated was a misspelling of “prints,” on the victim’s
gun, and they also submitted a written question asking if the Petitioner had a prescription
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for Valium. The trial court informed the jury that no further proof would be presented in
the case. The jury convicted the Petitioner of first degree premeditated murder, and he
received a life sentence. On appeal, the Petitioner argued that the trial court failed to act
as thirteenth juror, that the evidence was insufficient to support premeditation, and that it
was error to refuse to instruct on voluntary intoxication. Id. at *1. This court affirmed
the conviction and sentence. Id.
Post-Conviction
The Petitioner filed a timely post-conviction petition which was subsequently
amended by post-conviction counsel. Among the issues raised were trial counsel’s
failure to obtain a mental health evaluation for the Petitioner and trial counsel’s failure to
obtain a crime scene reconstruction expert.
Trial counsel testified that at the time of trial, he was the District Public Defender,
a post he had held since 1989. Trial counsel had handled numerous homicide cases in his
career. He and another attorney from the Public Defender’s Office represented the
Petitioner at trial, and he met with the Petitioner frequently. The defense theory was that
the homicide had either been committed in self-defense or that the presence of adequate
provocation reduced the crime to voluntary manslaughter.
Trial counsel was aware that he could apply for funding for expert witnesses on
behalf of an indigent client. He testified that he generally evaluated a client’s ability to
communicate and comprehend in deciding whether to engage a mental health expert but
that he would not necessarily engage one based on physical disability or the client’s use
of pain medication. He likewise stated that he would evaluate a client’s ability to
communicate in deciding whether low intelligence, a learning disability, or the client’s
use of psychiatric medication would warrant obtaining a mental health expert. Trial
counsel testified that his conversations with the Petitioner never caused him to have any
concern that the Petitioner had a mental health issue. The Petitioner was able to
communicate with trial counsel and understand the issues at trial, and he was
“forthcoming” with information.
Trial counsel stated he was not aware that the Petitioner received disability
income, and he did not recall seeing the Petitioner’s affidavit of indigency, which
reflected that he received disability income. Trial counsel noted that many of his clients
received income from disability but did not suffer from mental illness. He acknowledged
that he would have been concerned if he had seen a note indicating that the Petitioner had
attempted to commit suicide. Post-conviction counsel introduced notes from the Public
Defender’s file which documented that the Petitioner read slowly and may have been
dyslexic, that the Petitioner had attempted suicide, and that the Petitioner was taking
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“psych meds” and “pain shots.” Trial counsel could not identify the notes and speculated
that they may have been written by the assistant public defender who represented the
Petitioner at the preliminary hearing. Trial counsel testified that the assistant public
defender who handled the preliminary hearing was particularly concerned with the
mental health of his clients and would have noticed if the Petitioner had been suffering
from mental illness.
Trial counsel identified his own notes documenting a meeting with the Petitioner.
The notes recount that the Petitioner asked about a plea offer for six years of
incarceration which he believed that trial counsel had conveyed to him by telephone. It is
apparent from the notes that while trial counsel did not recall communicating with the
Petitioner about such an offer, he did not entirely discount the possibility that such
communication had occurred. The notes reflect that trial counsel attempted to contact the
prosecutor from the jail in order to establish whether an offer had been made, and the
notes conclude, “hopefully there is a memo in my files to document that I at least had that
conversation with [the prosecutor].” The notes also reflect that the Petitioner may have
believed there was a plea offer due to a conversation that the Petitioner had with the
sheriff. Trial counsel testified at the post-conviction hearing that the Petitioner’s
reference to a nonexistent plea offer did not cause him concern for the Petitioner’s mental
health because inmates would sometimes get misinformation from other inmates or from
persons in positions of authority regarding the possibility of a plea offer.
Post-conviction counsel also introduced handwritten notes which documented that
the Petitioner had told trial counsel that even a six-year sentence would essentially
amount to a life sentence because the Petitioner believed he had a brain tumor. Trial
counsel testified that the Petitioner’s ability to communicate with trial counsel and
comprehend information did not appear negatively affected by any tumor. Trial counsel
acknowledged that his office sent the Petitioner a letter which the Petitioner claimed
never to have received.
Post-conviction counsel introduced the Petitioner’s medical records, which
reflected that he had attempted to commit suicide on May 18, 2008; that he had been
hospitalized for dizziness on November 3, 2008; that he was hospitalized for fainting on
December 25, 2008; and that he was again hospitalized for fainting on July 12, 2010.
The Petitioner’s medical records indicated that he did not remember in 2010 that he had
previously had a fainting episode, and a CT scan revealed an arachnoid cyst, which
medical records described as “probably old,” in his brain.
Trial counsel interviewed the Petitioner’s mother but did not ask her about the
Petitioner’s mental health. He identified a document directing the Petitioner’s mother to
permit preliminary hearing counsel to review the Petitioner’s records, and trial counsel
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agreed that during his representation of the Petitioner, he would have had access to the
document granting access to the records. Trial counsel did not recall the jury’s sending a
question during deliberations regarding the Petitioner’s prescription for Valium.
Trial counsel interviewed law enforcement officers and all of the witnesses who
had been on the property at the time of the shooting. He testified that he investigated and
photographed the scene of the crime. He agreed that the crime scene had changed
considerably by the time he visited it, noting that a trailer had burned down. He relied on
the photographs and sketches submitted by the State, and the State’s photographs were
taken within two hours of the shooting. He agreed that a crime scene sketch produced at
the scene did not include the victim’s gun and that it was not to scale. Post-conviction
counsel noted that although the sheriff claimed to have produced the sketch, a Tennessee
Bureau of Investigation report reflected that it was produced by an investigator. Post-
conviction counsel also introduced subsequent handmade sketches produced by the
sheriff during witness interviews.
Trial counsel did not consider attempting to obtain a crime scene expert. He noted
that none of the State’s witnesses were qualified as crime scene experts and that he had
never seen a crime scene expert used in the district. He agreed that pictures presented at
the post-conviction hearing showed that the victim’s body had been moved. Emergency
services records showed that a call was made at 17:48 on the day of the crime, that
medical personnel arrived at 18:05, and that police arrived at 18:11. Trial counsel did not
recall inquiring into whether the victim had any cigarettes on his person or why he would
be looking for a lighter for a lit cigarette. Trial counsel interviewed patrons of a service
station that the victim frequented, and they told him that “about everybody around here
carries a weapon” but did not specifically state that the victim carried one. Trial counsel
presented the testimony of a relative of the victim, who stated that the victim had
threatened to shoot the Petitioner and his guests. He did not call a police officer who
encountered the victim the morning of the shooting and was told by the victim that “the
Sheriff’s Department had better do something [about the Petitioner’s horses] or he
would.” Trial counsel testified that the “bugaboo question” with respect to the crime
scene was whether the victim’s gun had been drawn from his pocket when he was shot.
No one had been able to determine whether the gun fell out of the victim’s pocket or was
dropped from his hand.
The post-conviction court found that trial counsel had no difficulty communicating
with the Petitioner and had no reason to doubt the Petitioner’s competency at the time of
the crime. Accordingly, it found that the failure to evaluate the Petitioner’s mental health
was not deficient. Likewise, the post-conviction court found that once the crime scene
had been altered, there was no way to accurately reproduce it and that lack of better crime
scene evidence could not be attributed to any deficiency on the part of trial counsel.
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Addressing prejudice, the post-conviction court found that the proof at the hearing was
speculative and that the Petitioner had not demonstrated prejudice. The Petitioner
appeals the denial of the petition.
ANALYSIS
The Petitioner asserts that he is entitled to post-conviction relief. The Post-
Conviction Procedure Act provides for relief when a petitioner’s conviction or sentence is
void or voidable due to the abridgment of a right guaranteed by the United States
Constitution or by the Tennessee Constitution. T.C.A. § 40-30-103. The Petitioner here
claims that his sentence is voidable because he received ineffective assistance from his
trial counsel, and a claim of ineffective assistance of counsel is a mixed question of law
and fact. Moore v. State, 485 S.W.3d 411, 419 (Tenn. 2016). An appellate court reviews
de novo with no presumption of correctness the post-conviction court’s conclusions of
law, its determinations of mixed questions of law and fact, and its application of law to
factual findings. Kendrick v. State, 454 S.W.3d 450, 457 (Tenn. 2015). The post-
conviction court’s factual findings are conclusive on appeal unless the record
preponderates otherwise. Nesbit v. State, 452 S.W.3d 779, 786 (Tenn. 2014). An
appellate court does not reweigh or reevaluate the evidence or substitute its own
inferences for those of the fact-finder. Kendrick, 454 S.W.3d at 457. On appeal, we
defer to the post-conviction court’s findings regarding witness credibility, the weight and
value of witness testimony, and the resolution of factual issues presented by the evidence.
Id. The petitioner bears the burden of demonstrating the allegations of fact entitling him
to relief by clear and convincing evidence. T.C.A. § 40-30-110(f).
A person accused of a crime is entitled to the assistance of counsel in criminal
proceedings under the Sixth Amendment to the United States Constitution and under
article I, section 9 of the Tennessee Constitution. These provisions guarantee the
reasonably effective assistance of counsel. Nesbit, 452 S.W.3d at 786. The deprivation
of this right is a cognizable claim under the Post-Conviction Procedure Act. Moore, 485
S.W.3d at 418. To prevail on a claim, the petitioner must show that trial counsel’s
representation “‘so undermined the proper functioning of the adversarial process that the
trial cannot be relied on as having produced a just result.’” Felts v. State, 354 S.W.3d
266, 276 (Tenn. 2011) (quoting Strickland v. Washington, 466 U.S. 668, 686 (1984)).
In order to demonstrate that he received ineffective assistance of counsel, a
petitioner must show both that trial counsel performed deficiently and that the deficient
performance prejudiced the defense. Nesbit, 452 S.W.3d at 786 (citing Strickland, 466
U.S. at 687). Failure to prove either deficiency or prejudice precludes relief, and the
court need not address both components if the petitioner has failed to make a showing on
one. Calvert v. State, 342 S.W.3d 477, 486 (Tenn. 2011).
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To show deficient performance, a petitioner must demonstrate that “‘counsel’s
representation fell below an objective standard of reasonableness’ guided by
‘professional norms’ prevailing at the time of trial.” Felts, 354 S.W.3d at 276 (Tenn.
2011) (quoting Strickland, 466 U.S. at 688). In other words, the petitioner must
demonstrate that counsel’s errors were “‘so serious that counsel was not functioning as
the “counsel” guaranteed the defendant by the Sixth Amendment.’” Id. (quoting
Strickland, 466 U.S. at 687). Counsel’s performance is not measured by “‘20-20
hindsight.’” Id. at 277 (quoting Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982)). Instead,
the court applies a strong presumption that counsel’s performance was within the bounds
of reasonable professional assistance. Dellinger v. State, 279 S.W.3d 282, 293 (Tenn.
2009). “‘[S]trategic choices made after thorough investigation of law and facts relevant
to plausible options are virtually unchallengeable; and strategic choices made after less
than complete investigation are reasonable precisely to the extent that reasonable
professional judgments support the limitations on investigation.’” Kendrick, 454 S.W.3d
at 458 (quoting Strickland, 466 U.S. at 690-91).
To show prejudice, a petitioner must establish that there is “‘a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a probability sufficient to
undermine confidence in the outcome.’” Felts, 354 S.W.3d at 277 (quoting Strickland,
466 U.S. at 694). The question at its core is “‘whether counsel’s deficient performance
renders the result of the trial unreliable or the proceeding fundamentally unfair.’”
Kendrick, 454 S.W.3d at 458 (quoting Lockhart v. Fretwell, 506 U.S. 364, 372, (1993)).
When a claim of ineffective assistance of counsel is premised on counsel’s failure
to interview or call witnesses, the witnesses must be presented at the post-conviction
hearing. Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990). “‘As a general
rule, this is the only way the petitioner can establish that ... the failure to have a known
witness present or call the witness to the stand resulted in the denial of critical evidence
which inured to the prejudice of the petitioner.’” Pylant v. State, 263 S.W.3d 854, 869
(Tenn. 2008) (quoting Black, 794 S.W.2d at 757). This is because the court cannot
speculate as to what a witness’s testimony might have been. Black, 794 S.W.2d at 757.
Presenting the witness allows the post-conviction court to determine whether that
witness’s testimony would have been credible, material, and admissible. Pylant, 263
S.W.3d at 869-70.
A. Failure to Obtain Mental Health Evaluation
The Petitioner argues that trial counsel was deficient in not seeking to have the
Petitioner’s mental health evaluated prior to trial. The Petitioner notes that trial counsel
was on notice that the Petitioner was disabled; that the Petitioner believed he had a brain
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tumor; that he had attempted suicide; that he was possibly dyslexic; that he was taking
psychiatric medication; that he would sometimes forget events that occurred when he was
very angry; that he claimed to have had a conversation with trial counsel which trial
counsel believed never took place; that he claimed not to have received one of trial
counsel’s letters; and that the toxicology report indicated he was taking diazepam at the
time of the crime.
The Petitioner notes that despite these indications of a possible mental health
issue, trial counsel did not interview the Petitioner or his family about his medical and
mental health history and did not obtain the Petitioner’s medical records, which indicated
a prior suicide attempt, fainting, and an arachnoid cyst in his brain. The post-conviction
court credited trial counsel’s testimony that the Petitioner had no difficulty
communicating with him or understanding the proceedings and that he accordingly did
not believe that a mental health evaluation was necessary. At trial, the defense attempted
to show that the Petitioner had acted in self-defense by shooting the armed victim, who
had threatened to kill the Petitioner. The defense also asserted that the act of retrieving
the shotgun was not indicative of premeditation because the Petitioner did not intend to
harm the victim but only wanted to be able to protect himself should the victim follow
through with his threats. To that end, the defense presented numerous witnesses,
including the Petitioner, who testified regarding the victim’s hostile behavior and the
Petitioner’s reasonable belief that the victim was attempting to retrieve a weapon from
his pocket. The Petitioner testified lucidly at trial.
At the post-conviction hearing, the Petitioner established that he had attempted
suicide, suffered episodes of fainting, had an arachnoid cyst in his brain, and was taking
diazepam, but there was no testimony from a mental health expert regarding what effect,
if any, these mental health issues would have had on the Petitioner’s competency to stand
trial or ability to act in a premeditated fashion. The Petitioner has not shown that the
omitted mental health evaluation affected the results of the proceeding. See Williamson
v. State, 476 S.W.3d 405, 422-23 (Tenn. Crim. App. 2015) (concluding that although trial
counsel was deficient in failing to obtain a mental health evaluation of the petitioner, the
expert’s testimony would not have been admissible unless it reached the “ultimate issue
of the Petitioner’s capacity to form the required mens rea”). Accordingly, the Petitioner
has not shown prejudice.
The Petitioner notes that there is no public funding available to obtain a mental
health expert for post-conviction relief. See Tenn. Sup. Ct. R. 13, § 5(a)(2); Davis v.
State, 912 S.W.2d 689, 696-97 (Tenn. 1995) (“[T]he state is not required to provide
expert assistance to indigent non-capital post-conviction petitioners.”). He argues that
trial counsel’s failure to avail himself of funding is accordingly prejudicial because it
permanently deprived the Petitioner of the opportunity to obtain any evidence regarding
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mental illness or defect which could have rebutted premeditation or otherwise assisted the
defense. This argument in essence asks us to impose a new standard for prejudice, one
that analyzes whether any alleged deficiency has resulted in the loss of the opportunity to
obtain or generate evidence. We decline to do so. Instead, our prejudice inquiry focuses
on whether there is a reasonable probability that the outcome of the trial would have been
different were it not for any deficiency on the part of trial counsel. Here, there is no
evidence to suggest that a mental health evaluation would have shown that the Petitioner
was not competent to stand trial, that he was incapable of performing a premeditated act,
or that the discovery of a mental health issue would otherwise have affected the result of
the proceeding. See Pylant, 263 S.W.3d at 869; Black, 794 S.W.2d at 757; see also
Joseph Cordell Brewer, III, v. State, No. W2016-02106-CCA-R3-PC, 2018 WL 446686,
at *4 (Tenn. Crim. App. Jan. 16, 2018), perm. app. denied (Tenn. May 17, 2018)
(concluding that the petitioner could not show prejudice without presenting an expert and
noting that the petitioner did not raise the argument that his inability to present expert
testimony violated his due process rights). The Petitioner has not demonstrated that the
absence of an evaluation by a mental health expert had any effect on the outcome of the
proceeding, and he is not entitled to relief.
B. Failure to Obtain a Crime Scene Expert
The Petitioner also faults trial counsel for failing to procure an expert to dispute
the crime scene evidence. He asserts that the testimony of Sheriff Myers and Agent
Davis tended to suggest that the Petitioner had ambushed the victim, that the evidence
demonstrated that the victim’s body had been moved by law enforcement and possibly
medical personnel, and that the crime scene drawings submitted by the State were
inaccurate. The State responds that the decision to rely on crime scene evidence gathered
by the State was reasonable and that the Petitioner has not established prejudice. The
post-conviction court found that lack of better crime scene evidence could not be
attributed to any deficiency on the part of trial counsel and that the Petitioner had not
shown prejudice.
At the post-conviction hearing, trial counsel testified that the “bugaboo question”
at trial was whether the victim was in the process of drawing his weapon when the
Petitioner fired. Trial counsel stated that he was not aware of any expert testimony that
could have assisted the defense on that issue. The proof at trial was that, after retrieving
the shotgun, the Petitioner came around the corner of an outbuilding, continued the
argument with the victim, and ultimately fired at the victim. While a police report
reflects that police initially suspected the Petitioner of “ambush[ing]” the victim, the
State’s witnesses at trial testified only that the Petitioner was near the corner of a
building, and none of the State’s witnesses testified as experts in crime scene
reconstruction. Instead, the jury was essentially tasked with determining whether the
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Petitioner had acted in self-defense and, if not, whether the Petitioner’s act of retrieving
the shotgun and then shooting the victim was premeditated. Trial counsel extensively
cross-examined the witnesses about inaccuracies in the crime scene drawings and about
the placement of the victim.
The Petitioner makes no allegations regarding what testimony an expert could
have given to support the defense theory that the victim was in the process of drawing his
gun or how an expert would have otherwise supported the Petitioner’s version of events.
Trial counsel thoroughly cross-examined the State’s witnesses regarding the crime scene,
and he introduced witnesses who supported the Petitioner’s testimony that he confronted
the victim and that the victim appeared to be drawing a weapon. We cannot conclude
that trial counsel was deficient in failing to obtain a hypothetical crime scene expert.
Neither did the Petitioner present the testimony of any crime scene expert at the
post-conviction hearing to demonstrate that expert testimony would have shown that the
crime scene supported the defense’s theory of the events. Without such an expert, the
Petitioner cannot show that there is a reasonable probability that trial counsel’s failure to
obtain expert evidence affected the outcome of the trial. See Pylant, 263 S.W.3d at 869;
Black, 794 S.W.2d at 757. We conclude that the Petitioner has not demonstrated any
prejudice.
CONCLUSION
Based on the foregoing reasoning, we affirm the judgment of the post-conviction
court.
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JOHN EVERETT WILLIAMS, PRESIDING JUDGE
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