State of Tennessee v. Rodney Dean Porter

08/18/2022
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs July 27, 2022
RODNEY DEON PORTER v. STATE OF TENNESSEE
Appeal from the Criminal Court for Knox County
No. 99326 Kyle A. Hixson, Judge
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No. E2021-00915-CCA-R3-PC
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The petitioner, Rodney Deon Porter, appeals the denial of his post-conviction petition,
arguing the post-conviction court erred in finding he received effective assistance of
counsel on direct appeal. Following our review, we affirm the post-conviction court’s
denial of the petition.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
J. ROSS DYER, J., delivered the opinion of the court, in which ROBERT H. MONTGOMERY,
JR. and TIMOTHY L. EASTER, JJ., joined.
Gerald L. Gulley, Jr., Knoxville, Tennessee, for the appellant, Rodney Deon Porter.
Herbert H. Slatery III, Attorney General and Reporter; Ronald L. Coleman, Assistant
Attorney General; Charme P. Allen, District Attorney General; and Sarah Keith, Assistant
District Attorney General, for the appellee, State of Tennessee.
OPINION
Facts and Procedural History
The petitioner was convicted of felony murder in the perpetration of aggravated
child abuse and aggravated child abuse “relat[ing] to the beating death of his seven-week-
old daughter,” and he was sentenced to an effective term of life plus twenty-five years’
incarceration. State v. Rodney Porter, No. E2010-01014-CCA-R3-CD, 2011 WL 2766581,
at *1 (Tenn. Crim. App. July 18, 2011), perm. app. denied (Tenn. Nov. 17, 2011). This
Court affirmed his convictions and sentences on direct appeal, and the Tennessee Supreme
Court denied his application for permission to appeal. Id. The underlying facts of the case
were summarized by this Court on direct appeal, as follows:
The [petitioner]’s convictions in this case relate to the beating death
of his seven-week-old daughter, [the victim]. At trial, the victim’s mother,
Wendi Bowman, testified that the victim was born full-term and healthy on
November 3, 2006. At that time, Ms. Bowman was dating and cohabiting
with the [petitioner], the victim’s father. On Christmas Day 2006, Ms.
Bowman and the [petitioner] broke up, and the [petitioner] moved out of the
residence. Three days later, after getting off of work at 11:00 p.m., Ms.
Bowman became ill and asked the [petitioner] to take her to the hospital. The
[petitioner] arrived sometime later, and the pair left the victim in the care of
the [petitioner]’s mother, Wilma Cason, sometime between 3:00 a.m. and
4:00 a.m. on December 29, 2006.
...
Wilma Cason, the [petitioner]’s mother, testified that she agreed to
keep the victim on December 29, 2006, while the [petitioner] took Ms.
Bowman to the hospital. At approximately 8:00 a.m., the [petitioner] picked
up the victim from Ms. Cason’s place of employment. At some point during
the day, the [petitioner] telephoned Ms. Cason and asked her to babysit the
victim later that evening. She agreed, and the [petitioner] dropped the victim
off at Ms. Cason’s residence at approximately 6:45 p.m. The [petitioner] left
after approximately 10 minutes, and Ms. Cason went to get the baby out of
her car seat. Ms. Cason testified that at that time, the victim was pale and
did not appear to be reacting to her voice. She said she immediately
telephoned the [petitioner] and told him something was wrong with the
victim and that she needed to be seen by a doctor. Ms. Cason stated she then
telephoned her daughter, who advised her to call 9-1-1. The [petitioner]
came back a short time later and took the victim to the hospital. Ms. Cason
denied telling the [petitioner] that the victim was jaundiced.
Doctor Paul B. Schneider, the pediatrician who treated the victim
upon her arrival at ETCH on December 29, 2006, testified that the victim
“had a decreased level of consciousness. Her pupils were dilated. She was
not responsive at all. Her soft spot was bulging. She was very tachycardi[c].
So her heart rate was around 200. She was breathing very fast and erratically,
and she had bilateral retinal hemorrhages noted on microscopic
examination.” Doctor Schneider, who took a history from the [petitioner]
that included a denial of any trauma to the victim, stated that the victim’s
“presentation was very consistent with shaken baby [syndrome].” Doctor
Schneider ordered a computerized tomography (“CT”) scan of the victim’s
brain, and the scan revealed “diffuse cerebral edema and acute midline
-2-
subdural hematoma, bone fragments along the . . . right lamboid suture and
probable small frontal contusions versus hemorrhage.” Doctor Schneider
testified that the injuries revealed in the CT scan were consistent with his
initial diagnosis of shaken baby syndrome. Doctor Schneider said that the
victim’s condition upon her admission to the hospital was “[v]ery critical”
and that, once her airway was stabilized, she was transferred to the PICU
under a “very grim” prognosis. He said that at that point it “was not clear if
she was going to die or to survive and have minimal functioning capacity.”
Doctor Schneider testified that neither childbirth nor cardiopulmonary
resuscitation would have caused the victim’s retinal hemorrhaging, but a
serious fall had the potential to result in retinal hemorrhaging. He added,
however, that it was “very unlikely” that the victim’s injuries could have
been caused by the [petitioner]’s dropping the victim from his lap onto a
carpeted floor.
Doctor Matthew Hill, a Pediatric Intensive Care Specialist on call
when the victim was brought in, described the victim’s condition, “When she
first arrived in the hospital, she was having respiratory distress. She was
ashen and pale. She was having agonal respirations. . . . Her pupils, when
she arrived in the door, were fixed and dilated, meaning they did not respond
to light.”
...
Doctor Hill opined that the victim’s injuries were “non accidental
trauma. This was consistent with what we call ‘shaken baby syndrome.’”
He testified that evidence of the victim’s injuries would have appeared
“within an hour or two” and that the injuries could have been inflicted
“anywhere within two hours to 12 hours” of her arrival at the hospital. He
said that he had “not seen this compound of injuries, the type of injuries [.] .
. other than as a shaken baby without a significant history of trauma, like a
motor vehicle accident or something like that.” A fall from accidental
dropping or even a fall from bouncing off of a bed would not have caused
such severe injuries.
In gathering a history, he specifically asked whether the victim had
experienced any trauma, and the [petitioner] told him that she had not.
Doctor Hill then performed blood work and several scans to rule out various
causes for her symptoms as well as a spinal tap to rule out an infection. The
spinal tap revealed “a massive amount of protein in her [cerebral spinal
-3-
fluid], which [indicated] that she had significant loss of brain cell function,
and her brain [ ] . . . cells were dying at that time.” Doctor Hill described the
amount of protein present in the victim’s cerebral spinal fluid as “as high as
[he had] ever seen in a tap.” Doctor Hill said that at that point, there was
“not much” medical personnel could do other than supportive care because
they could not “reverse the injury that’s already happened to the brain.” He
testified that medical personnel tried a variety of interventions designed to
limit the extent of the injury to “preserve injured brain that’s still viable,” all
to no avail. He explained, “Based upon her presentation and the degree of
edema, . . . [her] prognosis was very, very poor. The only thing that was
keeping her alive at that time was the fact that she was seven weeks old, and
. . . the plates of her skull had not sutured together.” He elaborated that the
space between the plates of the victim’s skull allowed the pressure in her
brain to expand her head outward and relieve pressure on the brain stem,
which permitted some brain stem function. He said it was simply “too late”
to save the victim by the time she arrived at the hospital.
Doctor Hill testified that he told both the [petitioner] and Ms.
Bowman that the victim had “suffered a traumatic injury” and that she likely
would not survive. He said that Ms. Bowman “was hysterical” at the news
but could not recall the [petitioner]’s reaction. He recalled that he discussed
with Ms. Bowman “how far she wanted to go with [the victim’s] care and . .
. treatment” given her poor prognosis and the fact that “[s]he was going to be
severely, severely impaired if she survived.” “After four or five days,” it
became apparent to medical personnel that the victim “was going to survive
these injuries in a very bad neurologic state.”
...
Knoxville Police Department (“KPD”) Officer Bryan Davis testified
that he was called to ETCH on December 29, 2006, and informed by medical
staff that the victim had suffered “severe trauma to the head and a possible
brain injury.” Officer Davis said that he spoke with the [petitioner], who
initially denied that the victim had suffered any trauma. Later during the
initial interview, however, the [petitioner] told the officers present “that
during a diaper change the child was laying [sic] in his lap and that at some
point he reached to grab . . . some . . . item, and when he did, the child
accidentally fell off his lap onto the floor.” Officer Davis said that the
[petitioner] claimed that the victim cried a bit after the fall but that he was
able to console her eventually.
-4-
Officer Davis said that he related the [petitioner]’s version of events
to medical staff, who told him “that there was no way” that such a fall “could
have caused the injuries that the victim suffered.” At that point, Officer
Davis returned to the small waiting room where he had conducted the initial
interview with the [petitioner] and provided the [petitioner] with Miranda
warnings before questioning him a second time. During this second
interview, the [petitioner] maintained that he simply dropped the victim from
his lap onto the carpeted floor during a diaper change. At that point, the
officers left the room to consider their options. Following a brief discussion,
KPD Investigator Greg McKnight returned to the waiting room to speak to
the [petitioner] a third time unaccompanied by other officers.
Investigator McKnight testified that he went into the waiting room to
speak with the [petitioner] “man to man” in an attempt to get the [petitioner]
to reveal the true origin of the victim’s injuries. Investigator McKnight said
that during this third interview, the [petitioner] “finally admitted what he had
done,” telling the officer “that the baby wouldn’t stop crying. He said he had
the baby in his arms, and he said he just lost it and threw the baby on the bed,
and the baby hit – from the bed, the baby hit on the floor, against the wall.”
The [petitioner] then provided the following statement written in his own
handwriting:
Amya Neveah Porter daughter of Rodney D. Porter. I love my
baby very true and deep and I am making this statement in hope
and belief that God will rescue my baby to[ ] live and see the
beginning of her life. When Amya started to cry after I
dropped her in the middle of a pamper change and I couldn’t
soothe her, I then became short in my parental patience and
took her to the bedroom and tossed her on the bed but she
bounced off and onto the floor where her head hit the wall. No
one reading this statement has to forgive me but my daughter[.]
I will care to be forgave by mostly. May God take this and
make me a great father to my only daughter/child.
Investigator McKnight adamantly denied telling the [petitioner] what details
to provide in his written statement.
Pediatric Opthamologist Doctor Gary Gitschlag examined the victim
on December 30, 2006, and testified that “she showed a significant amount
of hemorrhaging [that] more or less covered the inside of the retina.” He
stated that although there are “myriad” causes of retinal hemorrhage, in cases
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of child abuse, retinal hemorrhage occurs along with intercranial bleeding.
He testified that the “massive” amount of hemorrhaging present in the victim
was consistent with child abuse. He said the victim’s injuries were “strongly
suggestive of shaken baby syndrome” and were not likely caused by “a
simple fall from the bed or something.” He said that although “minor
hemorrhages” can be caused by falls, “even massive car injuries with crush”
do not cause “that sort of massive retinal hemorrhage in an infant this size.”
He emphasized, “[][M]assive subdural hemorrhages with multiple fractures
and mass retinal bleeding in a three month old dying of bleeding diathesis
would be indicative of a shaken baby syndrome. I can think of no other
pathology.”
Doctor Gitschlag last examined the victim in March 2006, and at that
time “she still showed significant vitreal retinal hemorrhage.” Doctor
Gitschlag said the victim needed surgery to “remove the blood from the
chamber, and if there’s a detached retina, try to reattach it.” He recalled that
the surgery was not performed “because of her prognosis as far as longevity
. . . the risks were not sufficiently outweighed by the benefits.”
Doctor Marymer Patricia Perales, a pediatrician with a specialty in
“child abuse pediatrics,” which she said “focuses in on the area of child
abuse,” testified that she became involved in the victim’s case after the victim
survived her first night in the PICU. At that time, the victim’s brain was
swollen and there was evidence that she had suffered a “hypoxic event,”
meaning that her brain had been deprived of oxygen. The victim also had
“diffuse retinal hemorrhages, meaning [hemorrhages were present]
everywhere you looked in her eye.” After examining the victim and her
medical records, Doctor Perales concluded that the victim had suffered
“inflicted head trauma,” meaning she had received a non-accidental injury.
Doctor Perales said that the force required to inflict such an injury was
“enough that if anyone witnessed the force that was being used they would
know that it was inappropriate force or excessive force.” She adamantly
maintained that an accidental fall could not have caused the victim’s injuries.
Once the victim was moved to the regular patient floor, Doctor Perales
was one of her treating physicians. She discharged the victim after the victim
passed a “barium swallow” test, but the victim was readmitted to the hospital
two days later “for gagging and choking.” At that point, the victim’s
prognosis was very grim. She explained, “We take care of children who have
brain injury a lot, and you know, again, they may recover and have a period
of doing better, but they will always continuously decline, and at some point
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their brain will say, I cannot do this anymore, and it will stop.” Doctor
Perales explained that the victim’s brief period of improvement was due to
the decrease in swelling but that later CT scans showed that the victim’s
“brain was no longer there. There were no brain cells there. There was no
myelin sheath there to myelinate. There was nothing there.”
Doctor Perales testified that upon the victim’s final readmission to the
hospital, it was clear that the victim’s death was imminent. Doctor Perales
testified that she was aware that the victim was prescribed morphine just
before her death, a medication that Doctor Perales felt was medically
necessary because the victim “was very spastic” and “was in pain for that
and other reasons.” Doctor Perales testified that she was not at all surprised
when the victim died because she was certain from the beginning that the
victim would eventually succumb to her injuries.
Pediatric Neurologist Doctor Anna Kosentka testified that when she
first examined the victim, the victim was “comatose, responsive only to
major painful stimulation . . . and her pupils were sluggishly reactive.” After
obtaining a full history, Doctor Kosentka concluded that the victim “was
involved in some traumatic event.” Doctor Kosentka testified that she
continued to consult in the victim’s treatment during her initial hospital stay.
During that time, she performed “three or four” electroencephalograms
(“EEG”) on the victim, each of which showed abnormal brain activity and
“confirmed abnormal findings on [the victim’s] CT.”
Doctor Kosentka also treated the victim following her initial discharge
in January 2007 and during her subsequent hospitalizations and last saw the
victim at the end of May 2007. She testified that the victim’s prognosis from
the beginning was “extremely poor,” which Doctor Kosentka explained to
mean that “based on several tests, [magnetic resonance imaging] of the brain,
a consultation with the neurosurgeon, several EEGs, and her clinical
presentation suggested that her life expectation [was] short, and she did not
have any . . . signs for recovery from this injury.”
Doctor Kosentka stated that despite some initial slight improvement
in her symptoms, the victim’s “brain function did not improve clinically”
and, in fact, continued to decline until her “brain activity was minimal.” The
victim continued to have seizures, described “as arching back and episode of
muscle stiffening” and “occasionally some jerking movements with the face,
sometimes with the legs.” Doctor Kosentka prescribed both clonazepam and
phenobarbital for the seizure activity. During the victim’s final
-7-
hospitalization, the victim “presented with episodes of pain” manifested in
“extreme irritability, episodes of screaming, crying,” leading Doctor
Kosentka to prescribe morphine “[t]o control her pain and to provide some
comfort” for the victim. Doctor Kosentka testified that when she prescribed
the morphine, she specifically told Ms. Bowman to discontinue giving the
victim hydrocodone for pain.
Karen Sharp, a nurse at ETCH, testified that she was assigned to
provide home health assistance to the victim as part of the “interval program”
to help the family “through the process” of the victim’s terminal illness. She
stated that she showed the victim’s family how to operate the g-tube and also
provided some “compassionate care,” which she described as “like a
[h]ospice for children.” Ms. Sharp said that in June 2007, the victim had
more bad days than good days, was unable to tolerate her feedings, and was
“staying irritable all the time and crying.” On the day that she died, the
victim experienced several episodes where she stopped breathing for a few
seconds or minutes and then would take “a big gasp and start breathing
again.” Ms. Sharp testified that such behavior was a normal part of the dying
process. On that day, the victim was being given morphine for irritability at
the level prescribed by Doctor Kosentka. Ms. Sharp said that she could not
recall whether she or Ms. Bowman administered the final dose of morphine
to the victim but that she did not generally administer the victim’s
medications.
Knox County Chief Medical Examiner Doctor Darinka Mileusnic-
Polchan, who performed part of the victim’s “complex” two-part autopsy,
testified that evidence of bruising remained on the victim’s brain even at the
time of the autopsy, indicating a “severe impact” injury. Doctor Mileusnic-
Polchan stated that because of the injury and the “tremendous swelling of the
brain,” the victim’s “sutures” or soft-spots never came together. Further
examination revealed a healing subdural hemorrhage that was an “indication
there was a severe head trauma.” Doctor Mileusnic-Polchan explained that
the brain “should be nice, healthy looking gray, tan, oval sort of organ that
has a lot of gyri, like a little nubbins, and a sulci, the little crevices that
separate them.” The victim’s brain, by contrast, was “essentially, an empty
sack. There’s no normal brain tissue left.” She said, “The only structure that
really has some normal appearance would be the . . . distal brain stem, the
lower brain stem and the spinal cord itself, and even there we have . . . some
shrinking.” She explained that the “disappearance of the brain substance was
a gradual process.” She said that the victim’s injury was irreparable and
-8-
irreversible and that the fact that she lived as long as she did “would indicate
really good care.”
Doctor Mileusnic-Polchan testified that in addition to the injuries that
indicated a lack of oxygen to the brain, there was an area of bruising that
indicated a direct impact “in the area of the forehead.” She said that toward
the end of her life, the victim “had no brain control whatsoever, that the brain
was not there. The only thing that really maintained her life was some vital
centers that remained in the brain stem for a while, but even that would
disappear over time.” She said that the victim “could feel the pain, but she
could not process the pain the way we consciously process the pain.”
Doctor Mileusnic-Polchan testified that examination of the victim’s
eyes confirmed the presence of retinal hemorrhaging and “tremendous
scarring, tremendous change, that was clearly indicative the child was blind.
Of course, she was blind because of the head and brain trauma, but even if
that hadn’t been the case, the eyes could not see any more.” Doctor
Mileusnic-Polchan said that the victim’s constellation of injuries could not
have resulted from a typical household fall and necessarily resulted from
blunt force trauma to the head.
Doctor Mileusnic-Polchan testified that the victim had an “extremely
high amount” of morphine in her system at the time of her death, enough to
“kill any individual, adult, let alone the child.” She said that the official cause
of death was “the morphine intoxication due [to] global hemispheric microsis
due to blunt head trauma which is the cause. It was of child abuse. So, yes,
the morphine was listed as the final kind of mechanism that pushes her over
the edge.” She attributed the high level of morphine to “some sort of error
in dosing.” Nevertheless, she concluded that even without the morphine, the
victim would “most likely” have died “relatively soon because she was
developing pneumonia.” She said that, in any event, the victim would
“certainly” have died from the brain injury.
Following Doctor Mileusnic-Polchan’s testimony, the State rested,
and the [petitioner] took the stand. He testified that after taking Ms. Bowman
to the hospital, he picked the victim up from Ms. Cason’s house and took her
with him to his Aunt Minnie Ruth’s house. He said he left the victim with
his aunt and did not return to pick her up until after midnight. He then took
the victim to Ms. Bowman’s apartment, where he changed her diaper and put
her to bed. The [petitioner] said that the victim awoke at 3:00 a.m., and he
“fed her a little bit.” He testified that both he and the victim went back to
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sleep and slept until 9:30 a.m. At that time, he gave the victim a bath. The
[petitioner] testified that while he was getting the victim out of the bath, he
“accidentally dropped her” and “she fell head first” onto the floor of the
bathroom. He said that the baby cried for 10-15 minutes but eventually
calmed down.
The [petitioner] testified that after the victim calmed down, he dressed
her and returned to his Aunt Minnie Ruth’s house. There he lay the sleeping
victim on one couch while he went to take a nap on the other couch. The
[petitioner] said that he woke up at approximately 2:00 p.m. and asked his
aunt to watch the baby while he and his cousin went to visit a mutual friend.
He stated that the baby was asleep when he left and was still asleep when he
returned to pick her up a couple of hours later. From his Aunt Minnie Ruth’s,
the [petitioner] took the victim to Ms. Cason’s so that she could watch the
baby while he went out. He said that he did not take the victim out of her car
seat before leaving Ms. Cason’s residence. Shortly after he left, Ms. Cason
called and told him that he needed to take the victim to the hospital because
“she’s yellow, look like she got jaundice or something.”
The [petitioner] testified that he took the victim to ETCH, and she was
immediately taken into a “small examination room” where they remained for
approximately 30 minutes while the doctor examined the victim. He claimed
that doctors never told him the victim was in dire condition and that he never
suspected “anything [was] wrong with her but what [his] mama said.” At
some point, doctors took the victim away for testing but did not tell him that
she was gravely ill. The [petitioner] claimed that a woman that he did not
know came into the room, told him that he should not leave the room, and
then remained there with him and his sister. He said that the woman
eventually directed him and his sister to a waiting area just outside the
entrance to the PICU and that he remained there for approximately half an
hour before he was taken into another room.
The [petitioner] said that while he waited in this smaller room, officers
arrived and questioned him about the injuries. He testified that they told him
that the victim had various fractured bones and asked him how she had come
to be injured. He claimed that he eventually told them the story about
throwing the victim onto the bed because he felt “like [he] had to give these
people some kind of answer to something.” He said he “felt responsible” for
the victim’s condition even though he had not himself inflicted any injury
and that Officer McKnight had provided him with the “story” of his throwing
the victim onto the bed. The [petitioner] stated that the story was his attempt
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to protect his aunt or cousin in the event that they had injured the baby. He
maintained that he had never purposely injured the victim and that any harm
“was an accident.”
During cross-examination, the [petitioner] described dropping the
victim from a height of 44 inches onto the bathroom floor and admitted that
he never told anyone that he had dropped the victim in the bathroom. The
[petitioner] could not explain why he would willingly provide a false story
that he dropped the victim while changing her diaper but would not tell
authorities or medical personnel that he had actually dropped her in the bath.
The [petitioner] testified that despite their testimony to the contrary,
neither Doctor Hill nor Doctor Schneider communicated to him the victim’s
condition or her dire prognosis. He claimed that he continued to believe the
victim was suffering from jaundice until he was questioned by police. He
also said that despite her testimony to the contrary, he never told Ms.
Bowman to come with him because the doctor wanted to talk with them about
the victim. The [petitioner] said that when he realized the victim was
seriously injured, he “figured that something had to take place while she
wasn’t in [his] care.”
Id. at *1-*9.
The petitioner filed a timely pro se petition for post-conviction relief in 2012 in
which he alleged multiple grounds of ineffective assistance of counsel. After a nine-year
delay for reasons not entirely clear in the record, an amended petition was filed by
appointed counsel in April 2021. Relevant to this appeal, the petitioner claimed he received
ineffective assistance of counsel on direct appeal because appellate counsel did not
challenge the inclusion of jury instructions related to causation contained in Tennessee
Pattern Jury Instruction 42.14.
The post-conviction court conducted an evidentiary hearing, at which the petitioner
testified concerning his various complaints with trial and appellate counsels’ performance.1
The petitioner stated he did not talk to appellate counsel about his appeal, and he “didn’t
even know he was my lawyer until [appellate counsel] wrote and told me that he’d already
put in an appeal.” The petitioner said that had appellate counsel discussed the issues he
wanted to raise beforehand, the petitioner would have had counsel raise an issue about the
1
We limit our recitation of the testimony at the evidentiary hearing to that relevant to the petitioner’s issue
on appeal.
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jury instructions because he “d[id]n’t think that maybe the jury was listening so much as
to the . . . defense side. . . . [a]s they were . . . to the district attorney[.]”
Appellate counsel testified that he represented the petitioner on direct appeal more
than a decade earlier. At the time, he had practiced criminal law for approximately twelve
years and had worked on numerous appeals prior to the petitioner’s. Due to the length of
time that had passed and his no longer having the petitioner’s case file, appellate counsel
could not specifically recall what communications he had with the petitioner but said he
would have had some degree of communication. Therefore, he explained his normal
procedure when undertaking representation on appeal:
I’ll try to contact them usually by letter and let them know what the process
is; that the appeal is pending and that I’m going to be reviewing the record
and looking at the different issues to try to file and let them know if they have
any questions they can write to me[.]
Appellate counsel explained he would not know a lot about the case early on and
had to get access to the record and transcripts, which he would read to determine what
disputed issues, facts, and legal arguments arose at trial. He usually spoke with counsel
from trial, which he believed he did in this case. From his review, appellate counsel
determined what issues “could be supported or potentially reversible error on direct
appeal.”
With regard to the petitioner’s claim concerning the jury instructions, appellate
counsel could not recall what jury instructions were disputed at trial, if any. However, had
there been a dispute at trial, counsel “would have researched the question to see what
instructions were appropriate, whether the instructions given in this case were appropriate,
. . . if the attorney had raised that issue, if there’d been argument about it at trial.”
Therefore, he surmised that he must have “determined that [he] didn’t see any particular
problem with the jury instructions that were given in this case such that I could argue that
there was any issue that would cause reversible error.” Appellate counsel recalled “the
main issue that needed to be reviewed was sufficiency of the evidence.”
On cross-examination, appellate counsel did not have “specific recollection of
whether [he] met or talked to [the petitioner] in-person.” He said that in the majority of
cases, he did not have telephone conversations with his clients, but instead, usually
communicated through letters. However, he could not recall how many letters he sent the
petitioner regarding the appeal. Appellate counsel said it was his custom to send a letter to
his client outlining the issues he intended to raise on appeal once he identified the issues.
Appellate counsel did not typically send a draft version of the appellate brief to his client
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in order to receive feedback because “there’s not a lot of time for that[]” due to the
deadlines in the appellate process.
Following the conclusion of the hearing, the post-conviction court entered a written
order denying relief. The post-conviction court noted the pattern jury instruction at issue
pertaining to proximate cause of death in homicide cases was specifically suggested by the
Tennessee Supreme Court in State v. Farner, 66 S.W.3d 188, 206 n.18 (Tenn. 2001), and
the trial court’s “inclusion of the instruction would have been given deference on appeal
due to the explicit suggestion of this language by the Farner court.” The post-conviction
court observed appellate counsel’s omission of the issue on direct appeal was not
“‘significant and obvious’ given the state of the law at the time” of the direct appeal and
“[i]ndeed, the paragraphs of the instruction challenged by the petitioner were absolutely
essential given the facts of this case.” Accordingly, the post-conviction court concluded
appellate counsel was not deficient for omitting the issue, nor would inclusion of the issue
have changed the outcome of the direct appeal.
Analysis
On appeal, the petitioner challenges the post-conviction court’s finding that the
petitioner received effective assistance of counsel on direct appeal. He asserts appellate
counsel rendered ineffective assistance by failing to argue that the trial court gave
erroneous instructions to the jury. The State contends that only did the post-conviction
court correctly determine there was no deficiency in counsel’s representation, but also that
the “petitioner cannot meet his burden of establishing prejudice, as the outcome of his
appeal would not have changed even if appellate counsel had raised the jury instruction for
review.” Upon our review of the record and the applicable law, we agree with the State.
The petitioner bears the burden of proving his post-conviction factual allegations by
clear and convincing evidence. Tenn. Code Ann. § 40-30-110(f). The findings of fact
established at a post-conviction evidentiary hearing are conclusive on appeal unless the
evidence preponderates against them. Tidwell v. State, 922 S.W.2d 497, 500 (Tenn. 1996).
This Court will not reweigh or reevaluate evidence of purely factual issues. Henley v.
State, 960 S.W.2d 572, 578 (Tenn. 1997). However, appellate review of a trial court’s
application of the law to the facts is de novo, with no presumption of correctness. See Ruff
v. State, 978 S.W.2d 95, 96 (Tenn. 1998). The issue of ineffective assistance of counsel
presents mixed questions of fact and law. Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001).
Thus, this Court reviews the petitioner’s post-conviction allegations de novo, affording a
presumption of correctness only to the post-conviction court’s findings of fact. Id.; Burns
v. State, 6 S.W.3d 453, 461 (Tenn. 1999).
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To establish a claim of ineffective assistance of counsel, the petitioner must show
both that counsel’s performance was deficient and that counsel’s deficient performance
prejudiced the outcome of the proceedings. Strickland v. Washington, 466 U.S. 668, 687
(1984); State v. Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App. 1997) (noting the standard
for determining ineffective assistance of counsel applied in federal cases is also applied in
Tennessee). The Strickland standard is a two-prong test:
First, the defendant 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 defendant by the Sixth
Amendment. Second, the defendant must show that the deficient
performance prejudiced the defense. This requires showing that counsel’s
errors were so serious as to deprive the defendant of a fair trial, a trial whose
result is reliable.
466 U.S. at 687. In order for a post-conviction petitioner to succeed, both prongs of the
Strickland test must be satisfied. Id. Thus, courts are not required to even “address both
components of the inquiry if the defendant makes an insufficient showing on one.” Id.; see
also Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996) (stating that “a failure to prove
either deficiency or prejudice provides a sufficient basis to deny relief on the ineffective
assistance claim.”).
A petitioner proves a deficiency by showing “counsel’s acts or omissions were so
serious as to fall below an objective standard of reasonableness under prevailing
professional norms.” Goad, 938 S.W.2d at 369 (citing Strickland, 466 U.S. at 688; Baxter
v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)). The prejudice prong of the Strickland test is
satisfied when the petitioner shows there is a reasonable probability, or “a probability
sufficient to undermine confidence in the outcome,” that “but for counsel’s unprofessional
errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at
694. However, “[b]ecause of the difficulties inherent in making the evaluation, a court
must indulge a strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance; that is, the defendant must overcome the presumption
that, under the circumstances, the challenged action ‘might be considered sound trial
strategy.’” Id. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)).
The test used to determine whether appellate counsel was constitutionally effective
is the same test applied to claims of ineffective assistance of counsel at the trial level.
Carpenter v. State, 126 S.W.3d 879, 886 (Tenn. 2004). To establish a claim of ineffective
assistance of counsel, the petitioner must show that: 1) counsel’s performance was
deficient; and 2) counsel’s deficient performance prejudiced the outcome of the
proceedings. Strickland, 466 U.S. at 687; see Carpenter, 126 S.W.3d at 886.
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“Appellate counsel is not constitutionally required to raise every conceivable issue
on appeal.” Carpenter, 126 S.W.3d at 887 (citing King v. State, 989 S.W.2d 319, 334
(Tenn. 1999)). Generally, appellate counsel has the discretion to determine which issues
to raise on appeal and which issues to leave out. Id. Thus, courts should give considerable
deference to appellate counsel’s professional judgment with regard to which issues will
best serve the petitioner on appeal. Id. Appellate counsel is only afforded this deference,
however, “if such choices are within the range of competence required of attorneys in
criminal cases.” Id.When a claim of ineffective assistance of counsel is based on the failure of appellate
counsel to raise a specific issue on appeal, the reviewing court must determine the merits
of the issue. Id. “If an issue has no merit or is weak, then appellate counsel’s performance
will not be deficient if counsel fails to raise it.” Id. Similarly, if the omitted issue has no
merit then the petitioner suffers no prejudice from counsel’s decision not to raise it. Id. If
the issue omitted is without merit, the petitioner cannot succeed in his ineffective assistance
claim. Id.The record in the underlying case reveals several discussions during the petitioner’s
trial concerning the inclusion of Tennessee Pattern Jury Instruction 42.14 pertaining to
proximate cause of death in the jury charge. The petitioner contested portions of the pattern
instruction, but the trial court ultimately decided the entire pattern charge was proper and
charged the jury as follows:
Before the defendant can be convicted of any degree of homicide, the
State must have proven beyond a reasonable doubt that the death of the
deceased was proximately caused by the criminal conduct of the defendant.
The proximate cause of death is that cause which, in natural and continuous
sequence, unbroken by any independent intervening cause, produces the
death and without which the death would not have occurred.
The defendant’s conduct need not be the sole or immediate cause of
death. The acts of two or more persons may work concurrently to
proximately cause the death, and in such a case, each of the participating acts
is regarded as a proximate cause. It is not a defense that the negligent conduct
of the deceased may also have been a proximate cause of the death.
However, it is a defense to homicide if the proof shows that the death
was caused by an independent intervening act of the deceased or another
which the defendant, in the exercise of ordinary care, could not reasonably
have anticipated as likely to happen. However, if, in the exercise of ordinary
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care, the defendant should reasonably have anticipated the intervening cause,
that cause does not supersede the defendant’s original conduct, and the
defendant’s conduct is considered the proximate cause of death. It is not
necessary that the sequence of events or the particular injury is foreseeable.
It is only necessary that the death fall within the general field of danger which
the [petitioner] should have reasonably anticipated.
If some other circumstance caused the victim’s death, unrelated to the
defendant’s actions, that would be a defense to homicide unless the
circumstance was the natural result of the defendant’s act.
There is evidence in this case that the deceased required medical
attention as a result of injuries that may have been unlawfully inflicted by the
defendant, and that such treatment itself may have contributed to the death
of the deceased. If you find this evidence to be true, then you must determine
whether the medical treatment is of such a character as to relieve the
defendant of the responsibility for the death. One who unlawfully and
seriously injures another to the extent that medical attention is required bears
the risk that improper treatment may result in the death of the injured person.
If the defendant unlawfully and seriously injured the deceased, he is not
relieved of responsibility unless the treatment was performed in a grossly
negligent and unskillful manner and unless it was the sole cause of the death.
If you find that the defendant’s acts, if any, did not unlawfully cause
or contribute to the death of the deceased, or if you have a reasonable doubt
as to this proposition, then you must find him not guilty.
At trial, the petitioner specifically contested the inclusion of the paragraphs
concerning his conduct needing not to be the sole or immediate cause of death, and about
the deceased requiring medical attention and such medical attention possibly contributing
to the death. He asserted the instruction would impair his ability to argue the victim died
due to “intentional euthanasia by morphine overdose” and not from physical trauma
inflicted by him.
Again, on appeal, the petitioner argues he received ineffective assistance of counsel
on direct appeal because appellate counsel failed to challenge the inclusion of the
aforementioned instructions. However, the petitioner has failed to prove appellate counsel
rendered deficient performance or that he suffered any prejudice.
At the evidentiary hearing, appellate counsel testified that due to the long lapse of
time he could not specifically recall if any jury instructions were disputed at trial.
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However, counsel stated that had there been a dispute, he “would have researched the
question to see what instructions were appropriate, whether the instructions given in this
case were appropriate, . . . if the attorney had raised that issue, if there’d been argument
about it at trial.” Therefore, he surmised that he must have “determined that [he] didn’t
see any particular problem with the jury instructions that were given in this case such that
[he] could argue that there was any issue that would cause reversible error.” Moreover,
counsel explained that the “only contested issue” was whether the State proved the
petitioner’s “culpability for the injuries that happened to the child.” Therefore, counsel
stated that “the main issue that needed to be reviewed was sufficiency of the evidence.”
Also, as noted by the State, our supreme court has held that in cases in which “causation
[is] seriously and forcefully disputed” the causation instruction must be given. Farner, 66
S.W3d at 204-05.
Based on the foregoing, the post-conviction court correctly determined appellate
counsel was not deficient in his representation of the petitioner on appeal. Appellate
counsel reviewed the record and determined the only contested issue was culpability. Thus,
the trial courts inclusion of the challenged instruction on causation was proper. Counsel
cannot be held to have rendered deficient performance for choosing not to raise an
unmeritorious claim. Moreover, in light of precedent and the overwhelming proof of
causation as outlined by this Court on direct appeal, the petitioner cannot establish
prejudice as it is likely this Court would have rejected any argument challenging the
inclusion of the causation instruction, and therefore, the petitioner’s appeal would not have
been different. Accordingly, the ruling of the post-conviction court is affirmed.
Conclusion
Based upon the foregoing authorities and reasoning, the judgment of the post-
conviction court is affirmed.
____________________________________
J. ROSS DYER, JUDGE
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