Michelle Tipton v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs Sept. 22, 2009
MICHELLE TIPTON v. STATE OF TENNESSEE
Direct Appeal from the Circuit Court of Sevier County
No. 11896-11 Richard R. Vance, Judge
No. E2009-00236-CCA-R3-PC - Filed Janaury 6, 2010
A Sevier County jury convicted the Petitioner, Michelle Tipton, of felony murder, robbery, and
second-degree murder, and the trial court imposed a life sentence. On direct appeal, this Court
reversed the second-degree murder conviction, merged the robbery conviction with the felony
murder conviction, and affirmed the life sentence. The Petitioner filed a petition for post-conviction
relief claiming she received the ineffective assistance of counsel. The post-conviction court denied
relief after a hearing, and the Petitioner now appeals. After a thorough review of the record and
applicable law, we affirm the judgment of the post-conviction court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
ROBERT W. WEDEMEYER , J., delivered the opinion of the court, in which JAMES CURWOOD WITT ,
JR., and D. KELLY THOMAS, JR., JJ., joined.
Michael T. Cabage, Knoxville, Tennessee, for the Petitioner, Michelle Tipton.
Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Rachel
West Harmon, Assistant Attorney General; James B. Dunn, District Attorney General; and Steven
R. Hawkins, Assistant District Attorney General, for the Appellee, State of Tennessee.
OPINION
I. Facts
A. Background
On direct appeal, this Court set forth the following summary of the facts underlying this
appeal:
At approximately 5:00 a.m. on October 4, 2000, David Reynolds, Jr. called
to check on Pamela Hale who was employed as a clerk at Family Inns East in Pigeon
Forge but was unable to get a response. Reynolds, who held a supervisory position
with a local hotel chain, which included Family Inns East, had previously spoken
with Hale three times on the night of October 3 regarding an auditing problem.
Because Hale had been sick the previous evening, Reynolds asked an employee of
another hotel to check on Hale. Arriving at Family Inns East, the employee informed
Reynolds that a Pigeon Forge police officer was at the motel. Reynolds arrived at the
scene around 6:00 a.m. and found Hale lying behind her desk in a pool of blood.
Wayne Knight, an evidence technician with the Pigeon Forge Police
Department, arrived at Family Inns East in the early morning hours of October 4,
2000, and found the motel’s office in a state of disarray. Coins were lying on the
floor, cash drawers and computer monitors were turned over on the check-out
counter, and a phone had been knocked off a desk to the right of the check-in
counter. The victim was lying face down on the floor behind the desk. In the course
of his investigation, Knight determined that some of the cash drawers were missing.
Later that afternoon, the missing drawers were discovered on the banks of the Little
Pigeon River.
Elizabeth Reid, a forensic scientist with the Tennessee Bureau of
Investigation’s crime lab, testified that she examined the cash drawers and dusted
them for fingerprints. Finding latent prints on the drawers, she compared them with
the fingerprints of Brandon Tipton and identified a match. She also received the
Appellant’s fingerprint card but did not identify her prints on the drawers. Detective
Tim Trentham with the Pigeon Forge Police Department testified that on July 13,
2001, Brandon Tipton was interviewed as result of his fingerprints on the cash boxes.
Later that day, Brandon Tipton gave a statement to the police implicating himself and
the Appellant in the homicide and robbery
[Footnote 1] On the date of the murder, the Appellant and Brandon
Tipton were single and shared a residence in Pigeon Forge. The two
were married on October 5, 2000, the day following the murder.
The same day [the Petitioner] gave a statement to Special Agent A.R. McCall with
the Tennessee Bureau of Investigation and Jake Stinnett of the Pigeon Forge Police
Department that she was not with Brandon Tipton on the night of October 3, 2000;
however, she confirmed that she did return to their residence around 7:00 a.m. the
next morning. Later that evening Barbara Ward, CID Lieutenant with the Pigeon
Forge Police, received a phone call from the Appellant stating that she had lied in her
earlier statement and that she was in fact at the residence on the night of October 3,
2000.
On July 14, 2001, the Appellant appeared at the Pigeon Forge Police
2
Department to inquire about her husband’s status. Detective Trentham advised the
Appellant of her Miranda rights, which she signed, and he handed the Appellant her
husband’s statement. Trentham testified that the Appellant “read the first page of the
confession, flipped to the second page and began reading it and at some point, I don’t
know how far she read into the second page, she laid it down and said, that’s true,
that’s what happened.” Trentham then interviewed the Appellant and prepared a
written statement which she read, made changes to, and signed. The Appellant’s
statement reads:
After midnight me and Brandon went to Gatlinburg. Brandon
was going to burglarize TCYB [sic] on Airport Road. When we got
there a police officer was parked nearby and we couldn’t do it. Later
that night we drove to Pigeon Forge. We saw the lights on in Family
Inns East and the clerk inside. I parked near the office and Brandon
and I went in and ask [sic] about a room. We got a key from the lady
desk clerk and looked at a room. We returned to the office. Brandon
walked to the brochure rack to the left of the desk where the clerk was
standing. Without warning, Brandon hit the desk clerk in the head
with bolt cutters. The clerk grabbed her head and Brandon hit her a
couple more times. Brandon grabbed the cash drawers and we ran to
my car. We left the motel and drove to our apartment at 522 1/2
Oldham Street. We took the cash boxes inside and Brandon got them
open. There was approximately $500-$600 inside. We loaded the
cash boxes back in the car and drove south through Pigeon Forge and
onto the Spur. We turned at the first bridge and down north toward
Pigeon Forge. I stopped at the first pull off just before Pigeon Forge.
Brandon threw the cash boxes in the river. We then drove to Iron
Mountain Road and Brandon threw the bolt cutters into the woods.
Based on this information, Trentham located the bolt cutters. He later spoke
with the Appellant at the Sevier County Jail where the Appellant drew a diagram of
Family Inns East. She also asked whether her fingerprints were obtained from the
crime scene and stated that she was careful not to leave any fingerprints at the office
pulling her sweater over her hands. She also stated that when pulling out of the
parking lot of Family Inns East she had accidently hit Brandon’s leg.
Nichole Frierson Nutting testified that while incarcerated at the Sevier County
Jail on misdemeanor convictions, she came in contact with the Appellant. The
Appellant told Nutting that she and her husband had planned to rob Family Inns East;
however, the victim had recognized them as employees of the Log Cabin Pancake
House. The Appellant told her that she and Brandon used bolt cutters to kill the
victim and that they took cash boxes from the motel, discarded them on the Spur
between Pigeon Forge and Gatlinburg, and used part of the money to get married the
3
next day. The State introduced a marriage certificate showing the Appellant and
Brandon Tipton were married on October 5, 2000. Yvonne King, manager of the
dining room of the Log Cabin Pancake House in Pigeon Forge, testified that the
Appellant worked at the restaurant as a waitress from March until May of 2000 and
that Brandon Tipton was employed as a busboy until May of 2000.
At trial, the Appellant testified that on the day of the crime, Brandon Tipton
gave her Klonopin pills which made her memory “blotchy.” After midnight, she and
Brandon Tipton drove to Gatlinburg to burglarize TCBY. The Appellant had
previously worked at the store and knew that it had a cash box and a small padlock
on the door. Their plans were thwarted when they discovered a police officer at the
end of the street near TCBY, so they headed back home. En route, Brandon told the
Appellant to pull into Microtel in Pigeon Forge. The couple walked in, asked the
price of a room, and walked out. She testified that on the way to Sevierville,
Brandon told her to stop at Family Inns East, which was located less than a mile from
the couple’s home. Brandon asked the clerk if he could see a room, and the clerk
handed him a key. They inspected a room and returned to the office where the
Appellant suddenly saw Brandon swinging bolt cutters at the victim’s head. The
Appellant testified that at this point she ran out the front door to her car. As she
began to back out, Brandon opened the passenger door and she hit him with the car.
When they arrived at the apartment, the Appellant ran upstairs, and Brandon sat in
the livingroom opening the cash boxes. He then directed the Appellant to drive back
into Pigeon Forge where he threw the cash boxes out the window.
Dr. Cleland Blake, who was the Assistant State Chief Medical Examiner in
October of 2000, performed an autopsy on the victim. He stated that the victim had
one blunt traumatic injury to the high center of her forehead. Additionally, he
testified that the victim had around fourteen blunt trauma injuries to the top of her
head which tore the scalp at several points and crushed the skull bone into the brain.
Dr. Blake opined that the cause of death resulted from “damage” and “hemorrhage
into the brain.”
A presentment was returned by a Sevier County grand jury charging the
Appellant with first degree premeditated murder and first degree felony murder. The
Appellant’s trial commenced on July 29, 2003, with the jury returning a guilty verdict
for second degree murder and first degree felony murder on July 31. The jury fixed
the Appellant’s sentence at life imprisonment, and the trial court merged the
Appellant’s conviction for second degree murder into her conviction for first degree
felony murder.
State v. Michelle Tipton, No. E2004-01278-CCA-R3-CD, 2005 WL 2008178, *1-3 (Tenn. Crim.
App., at Knoxville, Mar. 22, 2005), perm. app. denied (Tenn. Jan. 30, 2006). On direct appeal, this
Court reversed the Petitioner’s second degree murder conviction, merged her robbery conviction
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with her conviction for felony murder and affirmed her life sentence. Id.
B. Post-Conviction Hearing
The Petitioner filed a timely petition for post-conviction relief, counsel was appointed for the
Petitioner, and the Petitioner amended her petition to claim that she received the ineffective
assistance of counsel. The post-conviction court held a hearing wherein the Petitioner and her trial
counsel (“Counsel”) testified. The Petitioner testified Counsel made damaging statements in
opening and closing arguments and failed to object to improper testimony.1
The Petitioner testified that she did not believe Counsel defended her adequately, especially
because Counsel stated in front of the jury that she was “guilty.” She also testified she had never met
Nicole Frierson, the woman whom the State presented as the jail mate to whom the Petitioner
disclosed her involvement in the killing. The Petitioner insisted that Frierson could only have known
about her trial through the publicity her trial generated.
On cross-examination, the Petitioner acknowledged that Counsel objected to Frierson’s
testimony, but the trial court overruled Counsel’s objection. She also acknowledged that she sent
numerous letters to her husband, even after he had been convicted of the murder in this case. She
acknowledged that she drove her husband to and from the killing. She acknowledged that she “never
expected the jury to just turn [her] loose” and that she hoped the jury would find her guilty of a
lesser-included offense of first degree murder. She also acknowledged that Counsel repeatedly told
the jury that she was not guilty of first degree, premeditated murder, though she disagreed that his
strategy of arguing that she was guilty of a lesser-included offense was “the best strategy.” The
Petitioner concluded her testimony by insisting that Counsel failed to zealously defend her.
Counsel acknowledged that during the opening arguments of the Petitioner’s trial he said the
Petitioner knew her co-defendant worked at the hotel where the murder occurred and that he “might
be checking it out.” He also acknowledged saying she was “guilty” of being present when he carried
out the murder. Counsel explained that, while he referred to the Petitioner’s general awareness of
her co-defendant’s criminal propensity, he also impressed upon the jury the Petitioner’s ignorance
of her co-defendant’s plan to kill the victim, explaining his strategy as follows:
[The Petitioner] had been with [the co-defendant] continuously. They got
married the [day after the murder], so it was kind [of] a theme of mine that she was
guilty [of] being with him, but I repeatedly say she is not guilty of murder. Any type
of accessory after the fact, anything like that would have been a victory. I just didn’t
want her to get the felony murder charge. I thought we could beat the first degree
murder charge because I didn’t see any premeditation, but the felony murder charge
1
W e have omitted from these facts the testimony presented pertaining to allegations not pursued by the
Petitioner on appeal. Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Melson, 772 S.W .2d 417, 419
(Tenn. 1989).
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scared me and I was just trying to mitigate it, her appearance there and some of the
things she had done. That was my trial strategy.
....
. . . . I think she was stunned that it happened. She didn’t know it was going
to happen. I think you can sense something might happen, but if you are not sure,
you are not held to that standard.
Counsel recalled that during closing arguments he told the jury the Petitioner drove her co-
defendant to Gatlinburg in order for him to rob a store but she did not know he would hurt anyone.
He explained that, in making this statement, he was not implying that she had knowledge of her co-
defendant’s intent to commit the robbery in this case, which occurred in Pigeon Forge. He was
arguing instead that, because her co-defendant never carried out the Gatlinburg robbery, and the pair
returned to Pigeon Forge, the Petitioner no longer had any reason to know that her co-defendant
would rob the Gatlinburg hotel. Counsel then argued that, ignorant of her co-defendant’s intent to
rob the hotel, the Petitioner could not have committed felony murder or first degree murder.
Counsel also acknowledged that during closing arguments he said, “She is guilty and she is
responsible” and, “She told you she needs to be punished.” Counsel explained he followed these
comments by insisting that the Petitioner was not guilty of murder but only of being an accessory
after the fact or of facilitating the murder. He explained that, although the Petitioner’s statement that
she was “guilty” and deserved to be “punished” was admitted, her fingerprints were not on anything
in the hotel. Given the lack of evidence linking her to the murder scene, he planned to argue that she
was not present during the crime and, at most, helped him flee the state after the murder.
Although Counsel acknowledged saying that the Petitioner knew her co-defendant “was up
to no good,” he recalled that he then said, “but she didn’t have specific intent and she can’t be
punished for these crimes. She is not guilty. She didn’t want a burglary or a robbery to happen and
she didn’t help with that robbery. She didn’t carry the boxes out. She didn’t break into the boxes,
[her co-defendant] did. She didn’t hit anyone.”
Counsel acknowledged that one of the State’s witnesses, Detective Trentham, testified that
a change in the Petitioner’s facial expression during the interview she gave to police indicated to
Trentham that the Petitioner “knew she had been caught.” The detective testified, “Her whole
expression changed. Her whole face, you know, her expression was on her face. The way she acted,
you could tell she knew she had been caught and it was over at that point. That is the way I felt.”
Counsel testified that he objected twice, both times without success, to this testimony before the
Petitioner’s trial. He said that he simply forgot to object at trial when the testimony was introduced,
but that he should have objected when it was introduced. He recalled, however, that the detective
followed his recollection of the Petitioner’s facial expression with an account of the confession the
Petitioner then immediately made. Counsel explained that he tried to minimize the damage of the
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confession by explaining that the Petitioner, in her “confession,” did not accurately report her
involvement but rather copied the account her co-defendant had given in his confession. He
explained that the Petitioner did this in order to deflect blame and punishment from her co-
defendant, to whom she was married.
Regarding the testimony to which the Petitioner objects, Counsel recalled that two witnesses,
a fellow jail inmate and a detective, testified about the Petitioner’s lack of remorse. He recalled that
Nicole Frierson, a jail mate of the Petitioner during the time of her trial, testified that the Petitioner
never displayed any “sadness” in the jail cell on the evenings following her trial. She recounted that
the only time the Petitioner displayed emotion was when the Petitioner cried the evening following
the trial session in which she learned the State was seeking the death penalty against her. Counsel
recalled he filed a written objection to Frierson’s testimony before trial based on his belief that
Frierson would receive a reduced sentence for her testimony, but the motion was denied. He
conceded that he did not object to her testimony about the Petitioner displaying no remorse, and he
acknowledged that the testimony may have influenced the jury’s perception of the Petitioner’s guilt.
Counsel agreed that Detective Trentham also testified about the Petitioner’s lack of remorse,
and he agreed that this testimony might have influenced the jury.
On cross-examination, Counsel testified that he had worked as a criminal defense attorney
in Tennessee for approximately twenty years, the last ten of which he had worked as a public
defender in Sevier County, defending several murder cases. He recalled that the charges against the
Petitioner were commenced when she came into the police station with her husband, the co-
defendant, after police summoned him to question him about his involvement in the victim’s death.
The Petitioner initially denied knowing anything about the killing, but, after her husband made a full
confession, she confirmed that his confession was accurate, and she acknowledged driving him to
and from the scene of the robbery and killing. He also recalled that the Petitioner’s jail mate also
testified that the Petitioner disclosed to her that she and her husband had killed the victim after
robbing the hotel because her husband realized the victim recognized him. Counsel confirmed that
the Petitioner married her co-defendant the day after the killing and agreed that this also cast doubt
on her assertion that she did not know or approve of her co-defendant’s intention to kill the victim.
Counsel agreed that the Petitioner’s affirmation of her co-defendant’s account of the killing as well
as her jail mate’s testimony made the State’s case for felony murder against the Petitioner very strong
and his task as a defense lawyer “very difficult.”
Recalling again the detective’s testimony about the Petitioner’s “changed” facial expression,
Counsel testified that although he initially believed the testimony was inadmissible, he now believed
the testimony may have been admissible.
Recalling again the detective and Frierson’s testimony about the Petitioner’s lack of remorse,
Counsel agreed that the Petitioner’s lack of remorse damaged the credibility of her account of the
killing in which she insisted that she did not know a homicide would occur.
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At the conclusion of the hearing, the post-conviction court found that Counsel was not
ineffective in opening and closing arguments and that his failure to obtain the exclusion of Detective
Trentham and Frierson’s testimony did not constitute ineffective assistance of counsel. Accordingly,
the post-conviction court denied relief. It is from this judgment that the Petitioner now appeals.
II. Analysis
On appeal, the Petitioner contends Counsel failed to provide effective assistance, arguing that
Counsel: (1) made improper statements during opening and closing arguments; (2) failed to object
to a detective’s testimony about the Defendant’s facial expression; and (3) failed to object to
testimony about the Petitioner’s lack of remorse. The State responds first that, because Counsel’s
statements during opening and closing argument were the result of a strategic decision to limit the
Defendant’s criminal liability, Counsel was not ineffective in opening and closing arguments.
Second, the State responds that Counsel did object, though unsuccessfully, to the investigator’s
statements, and that, in any case, the statements’ admission did not prejudice the Petitioner given the
weight of the evidence of her guilt. The State argues that Counsel’s failure to object to testimony
about the Petitioner’s lack of remorse likewise did not prejudice the Petitioner given the weight of
the evidence of the Petitioner’s guilt.
In order to obtain post-conviction relief, a petitioner must show that his or her conviction or
sentence is void or voidable because of the abridgment of a constitutional right. T.C.A. § 40-30-103
(2006). The petitioner bears the burden of proving factual allegations in the petition for
post-conviction relief by clear and convincing evidence. T.C.A. § 40-30-110(f) (2006). Upon
review, this Court will not re-weigh or re-evaluate the evidence below; all questions concerning the
credibility of witnesses, the weight and value to be given their testimony and the factual issues raised
by the evidence are to be resolved by the trial judge, not the appellate courts. Momon v. State, 18
S.W.3d 152, 156 (Tenn. 1999); Henley v. State, 960 S.W.2d 572, 578-79 (Tenn. 1997). A
post-conviction court's factual findings are subject to a de novo review by this Court; however, we
must accord these factual findings a presumption of correctness, which can be overcome only when
a preponderance of the evidence is contrary to the post-conviction court’s factual findings. Fields
v. State, 40 S.W.3d 450, 456-57 (Tenn. 2001). A post-conviction court’s conclusions of law are
subject to a purely de novo review by this Court, with no presumption of correctness. Id. at 457.
The right of a criminally accused to representation is guaranteed by both the Sixth
Amendment to the United States Constitution and article I, section 9, of the Tennessee Constitution.
State v. White, 114 S.W.3d 469, 475 (Tenn. 2003); State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999);
Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). The following two-prong test directs a court’s
evaluation of a claim for ineffectiveness:
First, the [petitioner] must show that counsel’s performance was deficient. This
requires showing that counsel made errors so serious that counsel was not
functioning as the “counsel” guaranteed the [petitioner] by the Sixth Amendment.
Second, the [petitioner] must show that the deficient performance prejudiced the
8
defense. This requires showing that counsel’s errors were so serious as to deprive the
[petitioner] of a fair trial, a trial whose result is reliable. Unless a [petitioner] makes
both showings, it cannot be said that the conviction or death sentence resulted from
a breakdown in the adversary process that renders the result unreliable.
Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Melson, 772 S.W.2d 417, 419 (Tenn.
1989).
In reviewing a claim of ineffective assistance of counsel, this Court must determine whether
the advice given or services rendered by the attorney are within the range of competence demanded
of attorneys in criminal cases. Baxter, 523 S.W.2d at 936. To prevail on a claim of ineffective
assistance of counsel, a petitioner must show that “counsel’s representation fell below an objective
standard of reasonableness.” House v. State, 44 S.W.3d 508, 515 (Tenn. 2001) (citing Strickland,
466 U.S. at 688).
When evaluating an ineffective assistance of counsel claim, the reviewing court should judge
the attorney's performance within the context of the case as a whole, taking into account all relevant
circumstances. Strickland, 466 U.S. at 690; State v. Mitchell, 753 S.W.2d 148, 149 (Tenn. Crim.
App. 1988). The reviewing court must evaluate the questionable conduct from the attorney’s
perspective at the time. Strickland, 466 U.S. at 690; Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982).
In doing so, the 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.” Burns, 6
S.W.3d at 462. Finally, we note that a defendant in a criminal case is not entitled to perfect
representation, only constitutionally adequate representation. Denton v. State, 945 S.W.2d 793, 796
(Tenn. Crim. App. 1996). In other words, “in considering claims of ineffective assistance of counsel,
‘we address not what is prudent or appropriate, but only what is constitutionally compelled.’”
Burger v. Kemp, 483 U.S. 776, 794 (1987) (quoting United States v. Cronic, 466 U.S. 648, 665 n.
38 (1984)). Counsel should not be deemed to have been ineffective merely because a different
procedure or strategy might have produced a different result. Williams v. State, 599 S.W.2d 276,
279-80 (Tenn. Crim. App. 1980). The fact that a particular strategy or tactic failed or hurt the
defense does not, standing alone, establish unreasonable representation. House, 44 S.W.3d at 515
(citing Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996)). However, deference to matters of strategy
and tactical choices applies only if the choices are informed ones based upon adequate preparation.
House, 44 S.W.3d at 515.
If the petitioner shows that counsel’s representation fell below a reasonable standard, then
the petitioner must satisfy the prejudice prong of the Strickland test by demonstrating that “there is
a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Strickland, 466 U.S. at 694; Nichols v. State, 90 S.W.3d 576, 587 (Tenn.
2002). This reasonable probability must be “sufficient to undermine confidence in the outcome.”
Strickland, 466 U.S. at 694; Harris v. State, 875 S.W.2d 662, 665 (Tenn. 1994).
In the case under submission, the post-conviction court concluded at the end of the post-
9
conviction hearing that Counsel was not deficient in any regard. The court reasoned:
[Counsel] was an able counsel. He has represented defendants in criminal
cases for over 20 years, ten of which were as a primary assistant public defender here
in this county. He has extensive experience in murder trials. He is well-experienced
counsel.
The Court has considered the [P]etitioner, the testimony of [Counsel], the
testimony of [the Petitioner], the statements and arguments of counsel, the transcripts
of the testimony and arguments upon which the points have been raised and
determined in light of the cases that determine the competency of counsel beginning
with Baxter v. Rose and the whole succession of cases afterwards, but it boils down
to whether or not [Counsel], by his conduct was ineffective in representing [the
Petitioner].
....
The proof in this case was powerful, overwhelmingly showed [the
Petitioner’s] guilt of a crime for which she was convicted by statements she gave, by
the statement of Brandon Tipton that she adopted as hers, . . . by her testimony, by
her conduct as testified to by a jail inmate, by the recovery of bolt cutters which she
made available to the officers. Because of the overwhelming evidence [of] her
conduct throughout the time before the homicide and afterwards, her conduct was
inextricably bound with the co-defendant, Brandon Tipton, whom she married the
day after the murder, continued while they were both in custody with letters written
back and forth.
. . . . [Counsel] took the only approach he could take in trying to get the jury
to find [the Petitioner] only guilty of some lesser offense than the felony murder.
You can’t take the lines referred to–the words referred to out of context to the entire
argument and thrust of [Counsel’s] arguments that he made. You have to look at the
entire argument and it shows clearly that he took the evidence and the facts that were
handed to him and made the very best out of them that any attorney could.
Oftentimes it is a matter–it is a subjective analysis of whether or not his
strategy was effective or not. And, again, you can’t measure whether it was effective
as a matter of law as to whether or not the jury agreed with him. In looking back
over the trial and the evidence, it was really the only strategy he had. He could not
argue and deny she wasn’t there. He could not argue and deny that she was involved
with [the co-defendant] on this night. They had made other, I won’t say attempts,
but considered robbing or stealing from other places even before they came to this
one, so the Court must find that [Counsel’s] strategy and arguments were consistent
with the evidence he had to deal with and made the best arguments possible in view
10
of the facts and circumstances of this case, and, therefore, was in the best light of a
counsel’s duty.
It was further argued that he failed to object to certain testimony regarding
[the Petitioner’s] facial expressions and the officers’ own conclusions about, “She
knew she was caught,” or words to that effect. While an objection could have been
made and sustained and the jury instructed to disregard, the Court finds that in view
of the overwhelming, overpowering evidence, that the effect of that comment, if any,
on the jury’s determination of guilt or innocence would have been minuscule. The
same is true for the comments by the jail inmate of Ms. Frierson . . ., who testified
concerning her observations of [the Petitioner]. Again, if objectionable, its impact
was minimal in view of the overwhelming nature of the other evidence in the case.
....
So, considering all of these matters, the Court must find that [the Petitioner]
has failed to carry the burden of proof. The Court finds by compelling evidence that
[Counsel’s] conduct, his counsel in representing her in this most serious case was not
only effective but to the highest standards of the legal profession that he represented
her ably and that he presented the best defense he could possibly present given the
facts and circumstances he had to work with. So let the petition be denied.
A. Statements Made During Opening and Closing Arguments
The Petitioner argues first that Counsel was ineffective for telling the jury during opening
and closing arguments that the Petitioner was “guilty.” The post-conviction court in this case found
that Counsel’s words were part of his effort to obtain a conviction for any lesser included offense
of first degree premeditated murder, for which the Petitioner could receive the death penalty. Indeed,
the State introduced a great deal of evidence against the Petitioner; the Petitioner’s own confession,
the evidentiary corroboration of her confession, her jail mate’s recollection of the Petitioner’s
disclosures about the killing, and the relationship the Petitioner maintained with her co-defendant
after the killing. This evidence strongly supported the Petitioner’s presence during the killing and
cast doubt upon her ignorance of her co-defendant’s intention to kill the victim. Also, testifying that
she did not expect the jury “to just turn [her] loose,” the Petitioner herself conceded that she did not
expect to be acquitted of all charges but rather hoped to be convicted of something less than first
degree premeditated murder. Also, the trial transcript, as referenced during the post-conviction
hearing, indicates Counsel made reasonable efforts to minimize the Petitioner’s involvement in the
killing, asserting that the Petitioner’s greatest error was associating herself with her co-defendant.
We agree with the post-conviction court that Counsel’s statements in opening and closing arguments
were part of a reasonable strategy Counsel employed to limit the Petitioner’s criminal liability. See
House, 44 S.W.3d at 515. As such, the Petitioner is not entitled to relief on this issue.
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B. Failure to Object to Investigator Trentham’s Testimony
The Petitioner next objects to Counsel’s failure to object to Investigator Trentham’s
testimony about the facial expressions the Petitioner made while she gave statements to police.
Counsel testified that he unsuccessfully objected to the detective’s testimony about the Petitioner’s
facial expression at a preliminary hearing. At trial, Detective Trentham testified that, when the
Petitioner learned her co-defendant confessed to killing the victim, the Petitioner’s facial expression
changed such that he could tell she “knew she had been caught.” After recalling this, the detective
described the confession the Petitioner gave immediately after her facial expression changed.
Counsel failed to object at trial when the detective gave this testimony. Given the strength of the
evidence against the Petitioner, including the detective’s recollection of the Petitioner’s confession,
we conclude that the Petitioner has failed to demonstrate prejudice from the testimony about her
facial expression. See Strickland, 466 U.S. at 694. The Petitioner is not entitled to relief on this
issue.
C. Failure to Object to Testimony about the Petitioner’s Remorse
The Petitioner’s final objection pertains to Counsel’s failure to object to testimony about the
Petitioner’s lack of remorse. Indeed, the Petitioner’s jail mate, Nicole Frierson, testified that only
when the Petitioner learned the State might seek the death penalty did the Petitioner display emotion
on the evenings separating the days of her trial. Whether or not the trial court properly admitted
Frierson’s testimony, Counsel’s failure to successfully object to its admission is not a basis for relief
for the Petitioner. As we have concluded with respect to each of the Petitioner’s preceding
objections, the weight of the evidence against the Petitioner minimized the effect of Frierson’s
testimony. Therefore, the Petitioner fails to demonstrate prejudice from Counsel’s failure to gain
suppression of the excluded testimony. See Strickland, 466 U.S. at 694. She is not entitled to relief
on this issue.
III. Conclusion
After a thorough review of the facts and relevant authorities, we conclude the Petitioner
received the effective assistance of counsel. Accordingly, we affirm the post-conviction court’s
judgment.
_____________________________________
ROBERT W. WEDEMEYER, JUDGE
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