Alina F. Sherlin v. State of Tennessee

07/13/2022
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
May 24, 2022 Session
ALINA F. SHERLIN v. STATE OF TENNESSEE
Appeal from the Criminal Court for Bradley County
No. 19-CR-522 Andrew M. Freiberg, Judge
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No. E2021-00770-CCA-R3-PC
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Alina F. Sherlin, Petitioner, was indicted for first degree murder in 2013. After a jury trial,
Petitioner was convicted of second degree murder and sentenced to 15 years in
incarceration. Her conviction and sentence were affirmed by this Court on appeal. State
v. Alina Frankie Sherlin, No E2017-01225-CCA-R3-CD, 2018 WL 3561728, at *1 (Tenn.
Crim. App. July 24, 2018), perm. app. denied (Tenn. Dec. 7, 2018). Petitioner sought post-
conviction relief on the basis of ineffective assistance of counsel and also challenged the
search and seizure of her property. After a hearing, the post-conviction court denied relief.
Petitioner appealed to this Court. After a review, we affirm the denial of post-conviction
relief.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
TIMOTHY L. EASTER, J., delivered the opinion of the court, in which JOHN EVERETT
WILLIAMS, P.J., and JILL BARTEE AYERS, J., joined.
Benjamin McGowan, Chattanooga, Tennessee (at hearing); and Brennan M. Wingerter,
Assistant Public Defender, Tennessee District Public Defenders Conference (on appeal),
Franklin, Tennessee, for the appellant, Alina F. Sherlin.
Herbert H. Slatery III, Attorney General and Reporter; Katherine C. Redding, Senior
Assistant Attorney General; Stephen D. Crump, District Attorney General, for the appellee,
State of Tennessee.
OPINION
In 2013, a Bradley County grand jury indicted Petitioner for first degree murder for
the shooting death of her boyfriend, Robert Julian. State v. Alina Frankie Sherlin, 2018
WL 3561728, at *1. Petitioner, a paralegal, had been dating the victim for about 18 months
prior to his death. Id. At trial, Petitioner relied on a theory of self-defense and argued that
she was the victim of domestic violence. The jury ultimately convicted Petitioner of second
degree murder. On direct appeal, Petitioner raised 12 issues, including multiple evidentiary
issues and a challenge to the sufficiency of the evidence. Id. This Court affirmed the
conviction on appeal and the supreme court denied permission to appeal. Id. at *14.
On December 9, 2019, Petitioner filed a petition for post-conviction relief. In that
petition, she set forth 12 different allegations of ineffective assistance of counsel and
complained that the search and seizure of her property was unconstitutional. The post-
conviction court determined that the petition was timely and that the petition presented a
colorable claim. Petitioner filed a supplement to the petition for post-conviction relief on
May 4, 2020, adding an additional allegation of ineffective assistance of counsel.
Specifically, with both the initial and supplemental petition, Petitioner complained that trial
counsel: (1) failed to challenge the illegal seizure of Petitioner’s property; (2) failed to fully
investigate defenses and evidence; (3) failed to seek suppression of Petitioner’s statements;
(4) failed to adequately meet with Petitioner; (5) failed to seek disqualification of the
district attorney; (6) failed to seek a continuance; (7) failed to make an offer of proof with
regard to testimony about gangs; (8) failed to object to statements made by the State during
opening statements; (9) failed to object to statements made by the State during closing
argument; (10) failed to object to hearsay and/or object to the admission of medical records;
(11) failed to object to the testimony of James Hybarger, an unavailable witness; (12) failed
to interview a mental health professional with regard to battered spouse syndrome; and
(13) failed to communicate a plea offer to Petitioner. Petitioner also alleged that the search
and seizure of her property was unconstitutional.
After several continuances and delays, the post-conviction court held an evidentiary
hearing on May 7, 2021. Petitioner testified at the hearing that she was last employed as a
paralegal at trial counsel’s firm. Petitioner was a paralegal for 28 years and was familiar
with the legal system. She retained trial counsel to represent her at trial.
Petitioner testified that she was not “[t]o [her] knowledge” given information about
a plea offer from the State prior to trial. Petitioner knew that trial counsel “had attempted
to reach a plea offer” but trial counsel told Petitioner that the State was “unable to offer” a
deal “at the direction of” the district attorney. Petitioner acknowledged that she received a
letter from trial counsel dated September 18, 2018, after her conviction, in which trial
counsel expressed his regret about the outcome of the trial but that he “believed that a plea
to voluntary manslaughter was the best alternative for [Petitioner].” Petitioner was “taken
back” when she received the letter because she claimed she was unaware of an offer to plea
to voluntary manslaughter.
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With regard to other aspects of communication with trial counsel, Petitioner
complained that she “really didn’t have meetings” with trial counsel. She expected trial
counsel to explain how things would happen at trial and offer information about how to
testify. She expected “a lot of guidance” because of trial counsel’s extensive experience.
She recalled trial counsel admonished her to avoid emotion in her testimony but that trial
counsel did not explain why this was important. Petitioner assumed it was so that she did
not appear hard or cold to jurors.
Petitioner recalled a meeting during which she told trial counsel she was not ready
to testify because she was not prepared. Petitioner claimed that she did not know “what
was important to bring out” during her trial testimony and that trial counsel told her to “go
ahead and get it over with.” Petitioner stated that, if she had been more prepared for trial,
she would have given better answers to questions during her testimony. Petitioner blamed
her inability to control her emotions during her testimony on the lack of preparation for
trial. Petitioner also claimed that remaining emotionless made her look like she was “some
harsh person who didn’t have any remorse.” Petitioner testified that she “always” brought
up to trial counsel that she needed to be prepared, but he did nothing to resolve her concern.
With regard to Petitioner’s complaint that trial counsel failed to fully investigate
potential defenses by interviewing witnesses, Petitioner testified that trial counsel did not
fully explore the prior acts of violence the victim perpetrated against Petitioner. Petitioner
acknowledged that at least one instance of violence was introduced at trial but that the
testimony of Gina Strickland and her boyfriend would have added testimony at trial to
rebut the State’s theory that she fabricated her abuse. Petitioner provided their names and
contact information to trial counsel prior to trial, but trial counsel failed to call them to
testify at trial. Petitioner claimed that trial counsel did not want to use the witnesses
because he thought they were merely “drinking buddies.” Petitioner disagreed, explaining
that these two people were lifelong friends with good reputations who could have
substantiated her claims of abuse.
Petitioner complained that trial counsel was ineffective in failing to seek
disqualification of the district attorney. Petitioner explained that the district attorney
represented Petitioner in a divorce in the 1990s. After the divorce, Petitioner worked at a
law firm that also employed the district attorney. While at that firm, Petitioner worked
closely with a lawyer who was accused of improprieties. The lawyer ultimately left the
firm. Petitioner left around the same time. Petitioner tried to get a job with the district
attorney’s firm sometime afterward and was denied a position on the basis that she had
been associated with the lawyer who had left the firm on bad terms. Petitioner perceived
that the district attorney had some animosity toward her and did not think that he should
be associated with her prosecution. According to Petitioner, trial counsel disagreed, telling
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her that he would not file a motion because it was not a big deal. Petitioner testified that
trial counsel told her that the district attorney was not going to offer her a plea deal.
With regard to trial counsel’s failure to file a continuance, Petitioner complained
that trial counsel should have asked for a continuance because he was forced to call a
defense witness out of order, prior to the opening statements. Dr. Jerry Devane, the
emergency room physician who treated Defendant, had to testify out of order. Petitioner
claimed that she did not learn until the day of trial that the witness would testify prior to
opening statements. Petitioner felt that the jury was not “able to connect what his testimony
was even about” because they had no frame of reference for his testimony.
Petitioner complained that trial counsel did not object when the State referred to the
victim as her “husband” even though they weren’t married. Petitioner also complained that
trial counsel did not object when the district attorney referred to her as a “murderer”
throughout the trial.
Petitioner called Gina Strickland to testify at the post-conviction hearing. Ms.
Strickland testified that she knew Petitioner both personally and professionally. They met
in 1996 when Petitioner was working at a law firm. When Petitioner started dating the
victim, Petitioner and the victim hung out together with Ms. Strickland and her “domestic
partner” Mike Newman, until Ms. Strickland and Mr. Newman decided they did not like
the atmosphere around the couple. Specifically, Ms. Strickland recalled that the victim
referred to Petitioner as property. When she addressed the concern with Petitioner, she
“felt like [Petitioner] was withholding” information and took up for the victim. Ms.
Strickland thought that Petitioner’s “whole personality and demeanor was changing”
during her relationship with the victim. Ms. Strickland recalled one particular event that
was concerning. At Ms. Strickland’s mother’s birthday dinner, about one month prior to
the victim’s death, Ms. Strickland noticed bruises on Petitioner’s arm. One of the bruises
“looked like a hand print.” Petitioner told Ms. Strickland she did not want to talk about it,
that it was “nothing.” Ms. Strickland was never contacted by trial counsel or anyone else
about the case.
Trial counsel testified that he began practicing law in December of 1970. His office
staff estimated that he had been involved as trial counsel in over 170 homicide cases. His
practice area varied, but at the time of the hearing he was involved in representing
defendants in two first degree murder cases. Trial counsel testified that the Administrative
Office of the Courts authorized him to be qualified as an expert on at least five occasions,
at least one time with regard to ineffective assistance of counsel.
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Trial counsel could recall at least two prior cases in which he was accused of being
ineffective in addition to Petitioner’s case. Trial counsel represented Petitioner after she
was arrested up through the filing of the motion for new trial, but not on appeal.
Trial counsel explained that he has “different initial procedures” based on how
articulate his client is in each case. He usually begins with an in-depth examination of the
facts before looking at the legal issues. Trial counsel found Petitioner to be “very bright”
and “responsive” and “obviously very, very . . . distraught.” Trial counsel thought that
Petitioner “was an abused person” but that there were “significant issues regarding . . . the
reliability of her statements because of the degree of intoxication. . . .” Despite trial
counsel’s concerns, he “sincerely” believed that Petitioner was a victim and that there was
a good argument for self-defense.
Trial counsel recalled that Petitioner’s version of the events was “very consistent
with her testimony” and “supported by many of the photographs.” Trial counsel recalled
“intense discussion” about the case “over an extended period of time” beginning on “day
one until the date of the trial and during the course of the trial.” During trial, trial counsel
recalled Petitioner became “greatly troubled as the case progressed.”
Trial counsel felt that Petitioner was involved in the trial and made “a substantially,
significant decision” when she decided “whether or not to accept or reject the disposition
which the State had offered.” Trial counsel recalled a plea offer to “plead guilty to
voluntary manslaughter, with a [ ] to 10 years,” waiving the Range I sentence and a
“potential alternative sentence,” with the manner of service to be determined by the trial
court. Trial counsel did not recall specifically how or when the offer was communicated
to Petitioner but thought that the offer was extended in writing. Trial counsel testified that
the offer was “extended [to] and was discussed with” Petitioner by both him and another
lawyer who was assisting trial counsel on the case before Petitioner rejected the offer. Trial
counsel recollected that they “talked about [the offer] on almost, well, a fairly regular basis
for many months, several months.” Trial counsel described Petitioner as “firm in her
refusal to consider” the offer but did not recall if the State withdrew the offer. On cross-
examination, trial counsel confirmed that the “firm” offer from the State was
communicated to Petitioner in writing. Trial counsel was concerned that Petitioner was
rejecting the offer because of the evidence that was likely to be presented at trial showing
that Petitioner waited to call the police after she killed the victim. Trial counsel testified
on cross-examination that both he and his law partner discussed the offer with Petitioner.
Trial counsel was “not surprise[d]” that there was nothing in the file to reflect that the State
made an offer. Trial counsel recalled that they were “trying to obtain a three to six offer”
but came back with a “[t]hree to ten range.”
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Trial counsel testified that Petitioner identified people she thought could be
witnesses at trial and that there was at least one witness that trial counsel could not get to
appear. Trial counsel remembered that this witness was not “of substantial significance.”
Trial counsel did not specifically recall being told about witnesses Gina Strickland or Mike
Newman. Trial counsel testified that if a witness was identified, his typical practice was
to locate the witness and interview the witness to discern what their testimony would be at
trial. Trial counsel explained that he made the choice to call a witness based on the
evidence and the potential for the witness to be helpful.
Trial counsel testified that he reviewed all aspects of the case with Petitioner,
including her version of the events and areas of cross-examination that were possible. Trial
counsel testified that “[i]t was almost a daily, if not two or three times a day, in which
[they] would pause and go over something that [Petitioner] had reviewed from the
discovery and how that would impact her case.” Trial counsel was literally “steps away”
from Petitioner at the office. Trial counsel testified on cross-examination that it would be
“absolutely, horribly inaccurate” if his billing records reflected that he only talked to
Petitioner for about three hours about the case. Trial counsel stated that they “talked almost
on a daily basis” about the case.
Trial counsel did not recall Petitioner asking him to seek recusal of the district
attorney. Trial counsel was aware that Petitioner knew the district attorney but did not
recall Petitioner ever asking about recusal. In fact, trial counsel “never saw a legal,
justifiable, ethical reason” to seek recusal of the district attorney. Additionally, trial
counsel did not recall Petitioner requesting that he seek a continuance because she was not
prepared for trial. In fact, trial counsel testified that he “spent literally hours and hours and
hours, probably more time involved in discussions with a client than any other case [he
had] ever had.”
Trial counsel recalled that one of the witnesses, Dr. Jerry Devane, was “unable to
be present” for part of trial and that his testimony was favorable to Petitioner so it was
important for the jury to hear his testimony. Trial counsel felt that it was a tactical decision
to call Dr. Devane prior to opening statements and felt it would be to Petitioner’s advantage
because the jury would probably remember what he had to say.
Trial counsel testified that he did not object when the State referred to the victim as
“husband” during opening statements because he “knew that it was coming out in
evidence.” Similarly, trial counsel did not recall statements made by the State in closing
about certainty as to the evidence.
When asked by the post-conviction court, trial counsel admitted that there were
“some things” he wished he would have done differently at Petitioner’s trial. Trial counsel
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thought he should have “[a]ctually obtained an evaluation” to see if Petitioner qualified as
a battered spouse. Additionally, trial counsel wondered whether an accident
reconstructionist would have been beneficial.
On cross-examination, trial counsel acknowledged that the State made certain
statements during cross-examination that were not objected to at trial. Trial counsel did
not recall making a specific “strategic decision” not to object. Trial counsel noted that his
lack of objection did not prohibit the issue from being raised on appeal “under all
circumstances” but acknowledged the failure to object definitely sets a “higher bar” for
success on appeal.
Trial counsel was asked about a witness excluded from testifying at trial about
gangs. Trial counsel admitted that he “perhaps should have” made an offer of proof after
the witness was excluded but acknowledged that “the [victim’s] gang affiliation was
absolutely testified to fully in the evidence.” In fact, the victim’s Limited Few gang vest
was even introduced as an exhibit at trial because he was wearing it at the time of his death.
Trial counsel was also asked on cross-examination why he did not seek suppression
of evidence with regard to the search warrant and trespass issue. Trial counsel testified
that his research revealed that the motions would have either been frivolous or
unsuccessful.
Petitioner called Dan Ripper as a rebuttal witness. Mr. Ripper testified that he was
a lawyer in Tennessee and Georgia, practicing about 50% criminal law. He testified as an
expert in criminal trial practice. Mr. Ripper was “surprised” to see Dr. Devane testify out
of order, “before anything.” In his opinion “you lose the value of the witness by putting
the witness on out of order, without appropriate context and background.”
The post-conviction court denied relief. In an extensive order, the post-conviction
court detailed the procedural history, noting that the resolution of Petitioner’s claim was
delayed by the global pandemic. The post-conviction court held that “[m]any claims made
by Petitioner delve into the minute details of evidentiary admissibility and are not proper
for post-conviction consideration.” The post-conviction court acknowledged Petitioner’s
concession that she attempted “to couch substantive evidentiary issues raised by pleading
in the light of how trial counsel acted, or failed to act, in furtherance of her claim that she
was deprived the effective assistance of counsel.” As a result, the post-conviction court
dismissed “all issues raised” that “do not involve the abridgment of a constitutional right.”
The post-conviction court determined that Petitioner’s complaints with regard to the
legality of the search warrant were waived for failure to litigate because none of the proof
at the hearing or argument from counsel raised this issue beyond the ineffective assistance
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of counsel claim. Moreover, the post-conviction court noted that officers were likely
entitled to intrude onto Petitioner’s property due to exigent circumstances and that the
search warrant complied with “established law.”
As to Petitioner’s claims of ineffective assistance of counsel, the post-conviction
court determined that all witnesses were credible with the exception of Petitioner. In fact,
the post-conviction court deemed Petitioner’s testimony “patently unreasonable” because
she was “motivated to testify in a manner to bolster her post-conviction claims” which
revealed “bias.” The post-conviction court “disregarded” all of Petitioner’s “testimonial
evidence unless corroborated by other witnesses or other proof.”
The post-conviction court took notice of Petitioner’s 28-year career as a paralegal,
finding it “not credible to believe she was not actively involved and immersed in her own
case” when she actually was “employed and working full time at her trial counsel’s office
during the pendency of her case,” giving her unfettered access to her trial counsel, “well
beyond the access most clients have to their lawyers.” The post-conviction court noted
multiple instances where Petitioner contradicted her own testimony, considering each one
in turn. The post-conviction court determined Petitioner contradicted her own testimony
on whether she met with and discussed trial testimony with counsel, prepared for trial with
counsel, discussed trial strategy with counsel, discussed potential witnesses with trial
counsel, and informed anyone about her alleged domestic abuse.
The post-conviction court did not find credible Petitioner’s insistence that she asked
trial counsel to seek recusal of the district attorney. Instead, the post-conviction court
determined that trial counsel’s testimony, that recusal was never discussed, was credible.
The post-conviction court found no bias on the part of the district attorney against
Petitioner despite her testimony to the contrary, determining that Petitioner’s allegations
were “unreasonable” and “unsupported by even a single negative interaction or negative
conversation between the two.”
The post-conviction court specifically determined that trial counsel conveyed and
discussed the plea offer with Petitioner prior to trial, noting that the best practice would
have been for trial counsel to memorialize Petitioner’s rejection of the offer in writing.
However, the post-conviction court discussed trial counsel’s September 2018 letter, sent to
Petitioner after conviction, in which trial counsel felt that the settlement offer was
Petitioner’s best option.
The post-conviction court concluded that trial counsel was “not deficient in any
regard.” Trial counsel met with Petitioner on multiple occasions, was extremely qualified,
attempted to pursue evidence related to the victim’s gang membership, obtained discovery,
secured a plea offer, considered and filed multiple pretrial motions, “aggressively and
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vigorously sought to exclude the video recording of Petitioner being extremely belligerent
and hostile during medical treatment at the scene,” attempted to use a scheduling conflict
of Dr. Devane to Petitioner’s advantage, effectively cross-examined witnesses, and
established a self-defense theory.
The post-conviction court determined that trial counsel was not ineffective for
failing to seek suppression of the search warrant and being unsuccessful in the attempt to
suppress Petitioner’s recorded statements. The post-conviction court found that trial
counsel’s tactical decision that attempting to suppress the search warrant was “fruitless”
was reasonable and that trial counsel “aggressively” sought suppression of Petitioner’s
statement. In other words, trial counsel was “adequately informed” and prepared “well
beyond that expected of a reasonably competent and constitutionally effective criminal
defense attorney.”
Petitioner’s complaint about trial counsel’s failure to object to portions of
unavailable witness Mr. Hybarger’s prior recorded testimony were not supported by which
individual statements were objectionable or how they would have impacted the outcome
of trial. As such, the post-conviction court deemed those issues waived.
The post-conviction court found that Petitioner’s complaint about trial counsel’s
failure to obtain a mental health expert were not supported by proof to show how any such
expert testimony would have benefitted Petitioner. Moreover, Petitioner failed to present
any proof or witnesses with regard to this issue at the post-conviction hearing. Similarly,
Petitioner’s allegation that trial counsel was deficient for not making an offer of proof on
gang testimony at trial was not supported by any witness testimony at the post-conviction
hearing.
With regard to Petitioner’s major issue with trial counsel’s calling Dr. Devane out
of order, the post-conviction court noted that Petitioner called Mr. Ripper to testify as an
expert at the post-conviction hearing. While the post-conviction court accredited Mr.
Ripper’s testimony disagreeing with trial counsel’s decision, the post-conviction court
noted that it was a matter of trial strategy on behalf of trial counsel that did not amount to
deficient performance.
The post-conviction court discerned that the majority of Petitioner’s complaints
about the district attorney were the result of his method of prosecuting the case.
Specifically, the post-conviction court found that references to Petitioner and the victim
being married was a “mistake of fact and not some concentrated effort to manipulate the
jury” because all the evidence at trial pointed only to the fact that Petitioner and the victim
were dating.
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The post-conviction court determined that the district attorney’s repetitive labeling
of Petitioner as a “murderer” could possibly “rise to the level of objectionable or prejudicial
conduct” but acknowledged that Petitioner was, in fact, on trial for first degree murder and
there was no dispute that Petitioner fired the gunshot that caused the death of the victim.
The post-conviction court determined that specific references to Petitioner as a murderer
were permissible within the context of the trial. To the extent Petitioner argued that trial
counsel was ineffective for failing to object to statements made by the district attorney
during trial, the post-conviction court determined that trial counsel was not ineffective.
The post-conviction court deemed the actions of trial counsel reasonable trial strategy and
noted that the jury was instructed to disregard statements of counsel not supported by the
evidence.
Regarding the testimony of Ms. Strickland, the post-conviction court determined
that nothing of “probative value” in her testimony established prejudice to Petitioner. The
post-conviction court questioned whether Ms. Strickland’s testimony, that she saw
evidence of abuse on Petitioner’s body prior to the homicide, would have even been
relevant because it “amounted to mere suspicion of abuse rather than fact” and was not
“material to Petitioner’s defense.”
As a result of the post-conviction court’s findings, the petition was denied.
Petitioner appealed.
Analysis
On appeal, Petitioner raises four issues.1 Petitioner argues: (1) trial counsel was
ineffective for calling Dr. Devane to testify prior to opening statements; (2) trial counsel
was ineffective for failing to interview Ms. Strickland prior to trial and calling her at trial;
(3) trial counsel was ineffective by failing to have Petitioner evaluated by a mental health
expert and presenting evidence on battered spouse syndrome; and (4) trial counsel’s
“multiple deficiencies” resulted in prejudice to Petitioner. The State insists that the post-
conviction court properly denied relief.
Post-conviction relief is available for any conviction or sentence that is “void or
voidable because of the abridgment of any right guaranteed by the Constitution of
Tennessee or the Constitution of the United States.” T.C.A. § 40-30-103. In order to
prevail in a claim for post-conviction relief, a petitioner must prove his factual allegations
1
To the extent that Petitioner raised issues in her petition or at the post-conviction hearing that she
does not raise on appeal, those issues are waived. Ronnie Jackson, Jr. v. State, No. W2008–02280–CCA–
R3–PC, 2009 WL 3430151, at *6 n.2 (Tenn. Crim. App. Oct. 26, 2009) (“While the [p]etitioner raised
additional issues in his petition for post-conviction relief, he has abandoned those issues on appeal.”), perm.
app. denied (Tenn. Apr. 16, 2010).
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by clear and convincing evidence. T.C.A. § 40-30-110(f); Momon v. State, 18 S.W.3d 152,
156 (Tenn. 1999). “Evidence is clear and convincing when there is no serious or substantial
doubt about the correctness of the conclusions drawn from the evidence.” Hicks v. State,
983 S.W.2d 240, 245 (Tenn. Crim. App. 1998). On appeal, a post-conviction court’s
findings of fact are conclusive unless the evidence preponderates otherwise. Vaughn v.
State, 202 S.W.3d 106, 115 (Tenn. 2006). Accordingly, questions concerning witness
credibility, the weight and value to be given to testimony, and the factual issues raised by
the evidence are to be resolved by the post-conviction court, and an appellate court may
not substitute its own inferences for those drawn by the post-conviction court. State v.
Honeycutt, 54 S.W.3d 762, 766-67 (Tenn. 2001). However, the post-conviction court’s
conclusions of law and application of the law to the facts are reviewed under a purely de
novo standard, with no presumption of correctness. Fields v. State, 40 S.W.3d 450, 458
(Tenn. 2001).
Both the Sixth Amendment to the Constitution of the United States and article I,
section 9 of the Tennessee Constitution guarantee the right of an accused to the effective
assistance of counsel. See Davidson v. State, 453 S.W.3d 386, 392-93 (Tenn. 2014). In
order to sustain a claim of ineffective assistance of counsel, a petitioner must demonstrate
that counsel’s representation fell below the range of competence demanded of attorneys in
criminal cases. Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). Under the two-prong
test established by Strickland v. Washington, 466 U.S. 668, 687 (1984), a petitioner must
prove that counsel’s performance was deficient and that the deficiency prejudiced the
defense. See State v. Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App. 1997) (noting that
the same standard for determining ineffective assistance of counsel applied in federal cases
also applies in Tennessee). Because a petitioner must establish both elements in order to
prevail on a claim of ineffective assistance of counsel, “failure to prove either deficient
performance or resulting prejudice provides a sufficient basis to deny relief on the claim.”
Henley v. State, 960 S.W.2d 572, 580 (Tenn. 1997). “Indeed, a court need not address the
components in any particular order or even address both if the [petitioner] makes an
insufficient showing of one component.” Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996)
(citing Strickland, 466 U.S. at 697).
The test for deficient performance is whether counsel’s acts or omissions fell below
an objective standard of reasonableness under prevailing professional norms. Strickland,
466 U.S. at 688; Henley, 960 S.W.2d at 579. This Court must evaluate the questionable
conduct from the attorney’s perspective at the time, Hellard v. State, 629 S.W.2d 4, 9
(Tenn. 1982), and “should indulge a strong presumption that counsel’s conduct falls within
the wide range of reasonable professional assistance,” State v. Burns, 6 S.W.3d 453, 462
(Tenn. 1999).
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Even if a petitioner shows that counsel’s representation was deficient, the petitioner
must also satisfy the prejudice prong of the Strickland test in order to obtain relief. The
question is “whether counsel’s deficient performance renders the result of the trial
unreliable or the proceeding fundamentally unfair.” Lockhart v. Fretwell, 506 U.S. 364,
372 (1993). A petitioner must show that there is a reasonable probability “sufficient to
undermine confidence in the outcome” that, “but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” Burns, 6 S.W.3d at 463 (quoting
Strickland, 466 U.S. at 694).
Pre-trial Testimony
First, Petitioner complains that trial counsel was ineffective for presenting Dr.
DeVane’s testimony prior to opening statements. Specifically, Petitioner argues that the
jury was deprived of “any context to understand the importance of this testimony for the
defense.” Petitioner complains that there was no tactical advantage gained by putting the
witness on the stand prior to the opening statements and the defense was prejudiced
because the State’s most damaging evidence, the video of Petitioner’s transport from the
scene, was unrebutted because Dr. Devane testified prior to any of the proof. The State
argues that Petitioner failed to prove prejudice in counsel’s strategic decision to present the
testimony out of order and that the post-conviction court properly determined that trial
counsel’s representation was not ineffective solely because his trial strategy was
unsuccessful.
At the post-conviction hearing, trial counsel testified that he made the tactical
decision to call Dr. Devane prior to the opening statements because the doctor was
unavailable to testify any other time. Trial counsel determined that it would be more
beneficial for the jury to hear the testimony in person rather than via a recorded deposition.
Counsel testified that it was a matter of “primacy,” that the jury would hear the testimony
of Dr. Devane first and would be more likely to remember the testimony. The post-
conviction court accredited trial counsel’s testimony that it was a tactical decision to call
Dr. Devane that was made after reflection and judgment. The post-conviction court
determined that Petitioner failed to show prejudice by trial counsel’s decision and we agree.
The jury was properly instructed by the trial court, the jury heard opening statements
immediately after Dr. Devane’s testimony and was able to put that testimony into context
prior to the proof, and the proof against Petitioner was overwhelming. Although a peculiar
trial procedure situation, given the forgoing discussion, Petitioner is not entitled to relief
on this issue.
Interviewing Witnesses
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Next, Petitioner insists trial counsel was ineffective for failing to interview and/or
present Ms. Strickland as a witness at trial and that the post-conviction court improperly
determined Ms. Strickland’s testimony would not have changed the outcome of trial.
Petitioner argues that failing to call Ms. Strickland could not be deemed a “strategic
decision” because trial counsel never interviewed the witness. The State disagrees, arguing
Petitioner failed to show prejudice.
At the post-conviction hearing, trial counsel could not recall if Petitioner told him
about Ms. Strickland. Petitioner claimed she not only told trial counsel about the witness,
who allegedly would have testified that Petitioner was the victim of abuse at the hands of
the victim, but that she suggested trial counsel call Ms. Strickland at trial. The post-
conviction court discredited Petitioner’s testimony and accredited the testimony of trial
counsel. Even though Ms. Strickland testified at the post-conviction hearing, the post-
conviction court deemed Ms. Strickland’s testimony possibly irrelevant and determined
that the testimony, even if admitted at trial, would not have changed the outcome of the
trial. The evidence does not preponderate against the judgment of the post-conviction
court. Ms. Strickland testified that her friendship with Petitioner changed after Petitioner
and the victim started dating. Ms. Strickland also testified that she disapproved of the
victim’s membership in the Limited Few and that she saw a bruise on Petitioner about one
month prior to the victim’s death. Ms. Strickland did not testify that the victim abused
Petitioner. We fail to see how Ms. Strickland’s testimony would have or could have
changed the outcome at trial as there was overwhelming evidence of Petitioner’s guilt and
other evidence to suggest domestic abuse, including the testimony of Dr. Devane.
Petitioner has not presented clear and convincing evidence of prejudice and is not entitled
to relief on this issue.
Expert Witness Testimony
Next, Petitioner complains that trial counsel was ineffective for failing to present
expert testimony about battered spouse syndrome. Petitioner also claims trial counsel was
ineffective because he failed to “have Petitioner evaluated by a mental health expert.”
First, any claim that trial counsel was ineffective for failing to secure a mental health
evaluation is waived. Petitioner does not support this claim with any argument. Tenn. R.
App. P. 27(a)(7)(A); Tenn. Ct. Crim. App. R. 10(b). Further, Petitioner did not present an
expert on battered spouse syndrome at the post-conviction hearing. “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) (citing Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990). Petitioner has
not met her burden of proof. Consequently, she is not entitled to relief on this issue.
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Cumulative Error
As a final argument, Petitioner argues that she is entitled to post-conviction relief
on the basis of the cumulative error doctrine. Because we have found no error at all,
Petitioner’s claim of cumulative error has no legs.
Conclusion
For the foregoing reasons, the judgment of the post-conviction court is affirmed.
______________________________
TIMOTHY L. EASTER, JUDGE
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