Hubert Glenn Sexton, Jr. v. State of Tennessee

11/25/2019
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs June 25, 2019
HUBERT GLENN SEXTON, JR. v. STATE OF TENNESSEE
Appeal from the Criminal Court for Scott County
No. 10272 E. Shayne Sexton, Judge
___________________________________
No. E2018-01864-CCA-R3-PC
___________________________________
The petitioner, Hubert Glenn Sexton, Jr., appeals the denial of his post-conviction
petition, in which the petitioner challenged his conviction for two counts of first degree
murder, arguing the post-conviction court erred in finding he received the effective
assistance of counsel at trial and on appeal. After our review of the record, briefs, and
applicable law, we conclude the petitioner was denied his constitutional right to a fair and
impartial jury and received the ineffective assistance of counsel. Accordingly, we reverse
the judgment of the post-conviction court, vacate the petitioner’s convictions, and remand
the case to the trial court for a new trial.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Reversed;
Case Remanded
J. ROSS DYER, J., delivered the opinion of the court, in which NORMA MCGEE OGLE and
ROBERT H. MONTGOMERY, JR., JJ., joined.
Hubert Glenn Sexton, Jr., Mountain City, Tennessee, Pro Se.
Herbert H. Slatery III, Attorney General and Reporter; Katherine C. Redding, Assistant
Attorney General; Jared R. Effler, District Attorney General; and David Pollard, Jr.,
Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
Facts and Procedural History
On direct appeal, the Tennessee Supreme Court summarized the facts surrounding
the petitioner’s convictions, as follows:
On the night of May 20, 2000, a Saturday, Stanley Goodman and his
wife, Terry Sue Goodman, were shot to death as they slept in their bed at
their residence in Scott County. Their bodies were discovered the next
morning by Mr. Goodman’s minor daughter, E.G., who resided in their
home.1 The murders took place four days after another of Mr. Goodman’s
minor daughters, B.G., reported to authorities that she had been sexually
abused by her stepfather, [the petitioner]. At the time, the [petitioner] and
his wife, Sherry Sexton, lived in Bradley County with the [petitioner’s]
daughter, B.S., and E.G.’s younger sister, B.G., and brother, Br.G., both of
whom were Ms. Sexton’s children by her marriage to Mr. Goodman.
Within days of the crimes, the [petitioner] was arrested and charged
with two counts of first degree murder. See Tenn. Code Ann. § 39-13-202
(1997). On July 18, 2000, the district attorney general filed a notice
seeking the death penalty for each of the murders. See Tenn. R. Crim. P.
12.3(b). The aggravating circumstance relied upon by the State for each of
the two offenses was that “[t]he murder was committed for the purpose of
avoiding, interfering with, or preventing a lawful arrest or prosecution of
the defendant or another.” Tenn. Code Ann. § 39-13-204(i)(6) (1997 &
Supp. 1999); see also Tenn. R. Crim. P. 12.3(b)(2).
Guilt Phase of the Trial
Hope Tharp, who served as the Child Protective Services Team
Leader for the Department of Children’s Services (“DCS”) for Bradley
County and several of its surrounding counties, first interviewed B.G. and
Ms. Sexton in Bradley County on March 17, 2000, at the request of the
Scott County DCS, as part of an investigation of possible child sexual
abuse by the [petitioner]. The [petitioner] and Ms. Sexton had lived at the
Goodman residence before moving to Bradley County. No charges resulted
from the complaint.
Two months later, on May 16, 2000, Ms. Tharp received a report
from authorities at Black Fox Elementary School in Cleveland that B.G.,
age 8, had made an allegation of sexual abuse by the [petitioner]. Based
upon B.G.’s statement that the sexual abuse had occurred on the previous
night, Ms. Tharp immediately notified Ms. Sexton and scheduled a meeting
with the Sextons at 4:00 p.m. that afternoon. When the [petitioner] and the
Sextons’ daughter B.S. failed to arrive at her office at the time of the
1
It is the policy of this Court to refer to minors by initials only.
-2-
meeting, Ms. Tharp sought the assistance of the Bradley County Sheriff’s
Department. After being notified that officers had found the [petitioner] at
his residence, Ms. Tharp traveled there to meet with him and to explain the
basis for DCS taking custody of the three children in the Sexton household.
Three officers were present. The [petitioner], after being warned that he
could be arrested for custodial interference, provided information as to
B.S.’s whereabouts. Ms. Tharp, who by that time had interviewed the three
children living in the Sexton home, all of whose statements were identical,
then explained to the [petitioner] that he would have to come to her office
for questioning. Over objection by the [petitioner], Ms. Tharp testified that
she informed him that B.G. had claimed that she had been required to
“close her eyes and open her mouth,” to “put her mouth on his penis and
suck it,” and that “if she told she would never see her dad again.”
According to Ms. Tharp, the [petitioner], upon hearing the accusation,
stood from his chair, denied the truth of the allegations, and responded,
“Well, she is getting this information from her sister, [E.G.], and her
father.” He insisted that B.G. had made up the story and that Mr. Goodman
had “put her up to it.” He also claimed that Mr. Goodman had telephoned
him some three months earlier and played an audiotape recording of Mr.
Goodman coaching B.G. to say “things.” When Ms. Tharp advised the
[petitioner] that his statement was inconsistent with that of B.G. and the
other two children and that if he “did these things,” he should confess and
get treatment, he remarked, “Well, I can go over and sign papers saying I
did it and serve two or three years in jail and we can be a family again.”
Ms. Tharp then explained, “That’s not the way it works . . . . [I]f you go
over and say you did it, and you go to jail for this . . . , you can’t just come
out of jail and be a family again.”
Bradley County Sheriff’s Deputy Jerry Kyle Millsaps, who went to
the Sexton residence to assist DCS, overheard the [petitioner] complain to
Ms. Sexton about “her family causing them problems” and say, “they think
I’m guilty here already.” He also overheard the [petitioner] proclaiming his
innocence of child sex abuse and stating that he “was not going to jail for . .
. a child abuse charge [and that i]f I go to jail for anything, it would be for
murder.” When questioned by the State at trial, Officer Millsaps also made
reference to a possible polygraph examination for the [petitioner], who
initially consented to the test. On re-direct examination, and over objection
by the [petitioner], the State was permitted to ask, “Are you aware that
when Mr. Sexton . . . was later given the opportunity to take the polygraph
test, [he] wouldn’t?” The officer responded in the negative.
-3-
On the same date DCS received the sex abuse complaint, Detective
Tony Alvarez of the Bradley County Sheriff’s Department became
involved in the investigation. After driving to the school and speaking with
B.G., Detective Alvarez provided the [petitioner] with Miranda warnings
and then questioned him. The [petitioner] contended that Mr. Goodman
was responsible for the charge made by B.G. and had persuaded “the
children to trump up some false allegations.” He claimed that Mr.
Goodman was motivated by his displeasure with the Sextons’ decision to
move out of the Goodman home in Scott County to a residence in Bradley
County, taking two of the three Goodman children with them.
Later in the week, Mr. Goodman, having been apprised of the
investigation, contacted Detective Alvarez, informing him that he intended
to file a petition in Bradley County on the following Monday seeking
custody of the children. Afterward, the detective informed the [petitioner]
of Mr. Goodman’s plan. When, during this conversation, Detective
Alvarez asked the [petitioner] about taking a polygraph examination
regarding the sex abuse allegation, the [petitioner] declined, explaining that
Special Agent Skip Elrod had informed him that polygraphs could be
“fixed.”
In the week before the murders, the [petitioner] informed Preston
Adams, a co-worker, of the child abuse charge, told him that Mr. Goodman
was responsible, and asked where he might acquire a .22 or .25 caliber
handgun so that he could “try to take care of the matter before it could
escalate.” On Saturday, May 20, the [petitioner] worked in construction
with Adams from 8:00 a.m. to 12:30 p.m. During that time, he told Adams
he had not “had any sexual contact with the children.” As the two men left
the job site, the [petitioner] informed Adams that he “was not going to let
[Mr. Goodman] come down [to Bradley County] before he took care of
that.”
At approximately 6:00 p.m., the [petitioner] drove to the Maxi
Muffler shop where he visited with Clinton Daniel Mason, whom he had
known for three or four years and saw as often as two or three times a
week. While there, the [petitioner] asked Mason to return his .22 caliber
rifle, which had been stored at Mason’s residence, explaining that he had to
“take care of some business in Scott County.” Mason traveled to his
mother’s residence, where he obtained the weapon for the [petitioner].
-4-
Vella Strunk, the sister of Stanley Goodman, lived in Scott County
near the Goodman home. On Saturday nights, Ms. Strunk and her family
regularly attended the races in Scott County and were typically joined by
E.G. Because races usually lasted into the early morning hours, E.G. most
often returned to her family residence at 2:00 or 2:30 a.m. According to
Ms. Strunk, the [petitioner] knew that E.G. routinely attended the races and
that the Goodmans would leave their door unlocked for her. On the night
of May 20, E.G. joined the Strunk family for an evening at the racetrack.
Because of rainy weather, however, they returned to the Strunk residence.
At 8:30 p.m., Ms. Strunk called Mr. Goodman to let him know that E.G.
planned to stay for a while. Although E.G. recalled being returned to the
Goodman residence as early as 9:30 or 10:00 p.m., Ms. Strunk estimated
the time to be 11:00 p.m. She testified that no lights were on at that time.
Because Ms. Strunk had asked to borrow a bag of coffee, she did not leave
until E.G. returned with the coffee. E.G. did not see the Goodmans before
going to bed. Shortly before noon on the following day, Ms. Strunk called
the Goodman residence but got no answer. About ten minutes later, E.G.
telephoned Ms. Strunk, tearfully informing her that her father and
stepmother were still in bed and had blood on them. Ms. Strunk drove to
the residence, discovered the bodies of Mr. and Ms. Goodman, and
contacted the police.
At approximately 3:30 a.m. on Sunday, May 21, several hours
before the bodies were discovered, Mason drove to the [petitioner’s]
residence. At trial, Mason recalled that Ms. Sexton appeared to be upset
and that the [petitioner] appeared to be “drunk or something.” At 8:30 on
the same morning, the [petitioner] drove to Mason’s residence and took
Mason and his girlfriend to a Denny’s Restaurant for breakfast. When the
[petitioner] admitted to Mason that he had killed Mr. Goodman, Mason
stopped him from providing any of the details. The [petitioner] later
acquired two tires for his 1989 Oldsmobile at Mason’s place of
employment.
Between 8:00 and 9:00 a.m. on Monday, May 22, the [petitioner]
and Ms. Sexton visited Adams and his girlfriend at their room at a Budget
Inn. While Ms. Sexton talked with Adams’s girlfriend, the [petitioner]
admitted to Adams that he killed the Goodmans as they slept in their
bedroom, explaining that he had bought a hood, sweats, and gloves at a
Dollar Store and, after “dispos[ing] of all hair follicles off of his body,” had
shot the Goodmans in the bedroom, burned his own clothes and the stock of
his rifle, and buried what remained of the rifle. The [petitioner] informed
-5-
Adams that he had purchased oversized shoes so that it would appear that
someone else had committed the crimes. He also informed him that he had
changed the tires on his vehicle.
On Sunday, May 21, shortly after the discovery of the bodies of the
Goodmans, Detective Alvarez received a telephone call informing him of
the crimes and of the involvement of the Tennessee Bureau of Investigation
(“TBI”). Later in the day, he spoke with the Sextons. Three days later, on
May 24, Detective Alvarez learned that Sherry Sexton had tried to reach
him by telephone. He recorded his return calls to Ms. Sexton, whom he
described as sounding desperate, and arranged a meeting with her at the
south precinct. At 11:00 p.m. on the same night, Detective Alvarez and
TBI Special Agent Barry Brakebill met with Ms. Sexton, who was
apparently prepared to make a statement. About thirty minutes later, the
[petitioner] arrived, insisting that he be allowed to talk with Ms. Sexton and
attempting to force his way into the interview room. Detective Alvarez left
the room to confront the [petitioner], who claimed that Ms. Sexton was
upset and did not know what she was talking about. In the meantime,
Agent Brakebill moved Ms. Sexton to another location in order to complete
the interview and, afterward, transported her to a safehouse in McMinn
County. The [petitioner] was arrested for the murders on the following day.
TBI Agent Charles Scott, who searched the [petitioner’s] residence
after obtaining consent, found a .22 caliber rifle, which was inoperable
because there was no trigger assembly. Although not the weapon the
[petitioner] acquired from Mason or submitted as the weapon used in the
murders, the trial court admitted the rifle as an exhibit. Agent Scott also
testified that it would take between two and two and one-half hours to
travel the 125 miles from Huntsville in Scott County to Bradley County by
interstate. He stated that an alternate route through Harriman could involve
even less travel time.
During the course of the murder investigations, it was determined
that Christy Swallows, who resided in the same trailer park as the Sextons
and had babysat for the children living in their home, had been involved in
an affair with the [petitioner]. At trial, she stated that the [petitioner] had
informed her about the child sex abuse allegations on or about May 14, and
that he blamed “[t]hat bastard in Scott County” for his predicament,
declaring that “he would kill him for this.” On the day after the murders,
the [petitioner] came to her residence and beat on her doors and windows to
awaken her. She described the [petitioner] as “frantic” and “in a panic.”
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He informed her that his wife had left him and her car was at the police
station. When Ms. Swallows asked the [petitioner] whether he had
committed the crimes, he initially said “no,” but ultimately admitted to
committing both murders, “blow[ing] them son of a bitches full of holes.”
He explained that he had acquired the gun from “Danny.” Ms. Swallows
reported this information to Agents Brakebill and Scott on May 25.
During trial, the transcribed preliminary hearing testimony of Tinnie
Chumley2, an employee at the Dollar Store in Cleveland, was presented as
evidence. She reported that on Saturday, May 20, she sold a black
sweatshirt and black sweat pants to a white male. Ms. Chumley was unable
to identify the [petitioner] from a photographic lineup. TBI Agent David
Guy, who interviewed Ms. Chumley, presented a cash register journal that
established 2:37 p.m. as the time of a purchase in the amount of $10.83 for
a fleece shirt and pants. Payment was with a twenty dollar bill. On May
21, the same day the bodies were discovered, officers found a Dollar Store
receipt for a fleece shirt and pants in the same amount in the [petitioner’s]
car. The receipt confirmed that the purchase was made in cash.
Shera Crowley, who had prepared the [petitioner’s] tax return early
in 2000, testified that when she pointed out that he had omitted his own
daughter, B.S., as a dependent, but added E.G., the daughter living with the
Goodmans, the [petitioner] remarked, “If the son of a bitch ever tried to
claim her or take her, he would blow his . . . brains out.” Ms. Crowley
testified that she later warned Ms. Goodman of the threat, but that Ms.
Goodman did not appear to be concerned.
Detective Wade Chambers of the Scott County Sheriff’s Department
investigated the crime scene. He found no weapons, fingerprints, tire
prints, or signs of forced entry at the Goodman residence. Initially, he
discovered six shell casings in the residence. Later, after receiving the
autopsy report, he returned to the scene and discovered three more shell
casings, explaining that the casings were difficult to find during his first
visit because of sawdust on the floor. Dinah Culag, a TBI Forensic
Scientist, determined that all the shell casings had been fired from the same
firearm. Although she could not identify the type of weapon, it was her
opinion that a semi-automatic was used, rather than a revolver, because a
cartridge from a revolver had to be manually ejected.
2
Ms. Chumley is also referred to as Tinnie Crumley and Tiny Crumley
throughout the record.
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Dr. Sandra Elkins, the Knox County Medical Examiner, performed
the autopsies at the University of Tennessee Medical Center. She
determined that Mr. Goodman had been shot four times, “all in the right
facial region.” One of the four shots “totally destroyed the right eye” and
another severed his spinal cord. A fifth shot wounded his right arm. Dr.
Elkins concluded that Ms. Goodman also died from multiple gunshot
wounds, three to her face and one in front of her right ear, causing “massive
skull fractures and extensive damage to the brain.” The seven fragments
taken from the two bodies were consistent with a .22 bullet. Because one
of the shots passed through Mr. Goodman’s body and another passed
through that of Ms. Goodman, Dr. Elkins was unable to examine those
bullets.
Randall Boston, a law student working for defense counsel, was the
only witness appearing on behalf of the [petitioner]. He testified that he
had traveled by interstate from the muffler shop in Cleveland to Athens and
by State Routes 58, 70, 29, and 27 to the Goodman residence in Huntsville,
a distance of 126.8 miles, and that the travel time was two and one-half
hours driving at or less than the speed limit. On cross-examination by the
State, which attempted to establish that the distance could be driven in less
time, Boston answered “no” when asked whether he was aware that the
[petitioner] had been charged with driving ninety-seven miles per hour
along the same route two days after the murders.
After a short period of deliberation, the jury returned verdicts of
guilt on each of the two counts of first degree murder.
Penalty Phase of the Trial
During the penalty phase of the trial, the State offered victim impact
evidence from Lamance Bryant -- the brother of Ms. Goodman and a
school teacher in Scott County -- E.G., and Ms. Strunk, the sister of Mr.
Goodman. Bryant, who described Ms. Goodman as “a very friendly,
outgoing person,” with “a sweet spirit,” testified that she was also survived
by her mother, Magdalene Lawson, and two sisters, Sharon Jeffers and
Jaretta Claxton. He recalled that Ms. Goodman had been seriously injured
in a 1985 automobile accident, which had resulted in a complete inability to
work. He stated that she had endured several months of physical therapy
and years in a wheelchair and later had to use a walker. He state[d] that she
had to re-learn to talk as a result of the accident and had been able to walk
-8-
on her own for a period of only six to eight months prior to her murder.
Bryant described her death as particularly devastating to their mother.
E.G., who testified that she was particularly close to her father,
stated that she had a good relationship with her step-mother, Ms. Goodman.
Since the murders, she had experienced nightmares, feared being alone, and
partially blamed herself because the door at her residence had been left
open for her return from the races. When asked where her home was at the
time of the trial, she answered, “I really don’t feel like I have one.”
Ms. Strunk confirmed that E.G. had experienced nightmares, did not
sleep well, and was afraid to be by herself. Because of Ms. Strunk’s close
relationship with her brother, she believed that her own life would “never
be like it was before.”
In an effort to establish mitigating circumstances as to punishment,
the [petitioner] called three witnesses: Lynn Sexton, the wife of the
[petitioner’s] first cousin; Karen Cooper, who had known the [petitioner]
since he was three or four years old; and Dr. William D. Kenner, a
physician with specialized training in psychiatry, child psychiatry, and
psychoanalysis.
Lynn Sexton, who is also a first cousin to Sherry Sexton, testified
that the [petitioner], Ms. Sexton, and their three children lived with her for
approximately six months before they moved first to a trailer park in Scott
County and later to a trailer park in Bradley County. Lynn Sexton recalled
that during the six months that the [petitioner] lived at her home, he did not
cause any difficulty with any member of her family, including her thirteen-
year-old son and sixteen-year-old daughter. She stated that the [petitioner]
worked everyday, did not drink to excess, and did not use illegal drugs.
She testified that she often left her daughter and son in the care of the
[petitioner] at her residence.
Karen Cooper remembered that the [petitioner’s] parents were
divorced when he was six and, thereafter, that he did not live with either
parent. Recalling that he had once stepped off of a school bus only to find
that his residential family had moved, she estimated that the [petitioner] had
lived with between six and eight families before age eighteen and that no
one other than her sister-in-law kept him for more than just a few months.
Ms. Cooper stated that the [petitioner’s] mother rarely communicated with
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him and that his father, who was in poor health and living in Dalton,
Georgia, only saw him slightly more than his mother.
Dr. Kenner, formerly a member of the faculty in adult psychiatry at
Vanderbilt University and in private practice since the mid-1970’s,
examined the [petitioner] in preparation for the trial. During the course of
his examination, he learned that the [petitioner] had lived in twenty-six
different residences before he reached the age of eighteen and that he was
of average intelligence, but that he did not stay long enough in any place to
develop friendships or role models, such as older relatives, teachers, or
ministers. Dr. Kenner reported that the [petitioner’s] father had spent six
months in an Army psychiatric hospital and later developed heart disease
and chronic lung disease, which prevented him from keeping his family
together after the [petitioner’s] mother left his father for another man and
took the [petitioner’s] younger brother with her. Dr. Kenner described the
[petitioner] as traumatized by the loss and as having suffered from
significant emotional deprivation during his youth because of the lack of a
consistent caretaker. Dr. Kenner explained that the [petitioner] felt
particularly vulnerable after the sex abuse allegations because of his fear of
losing the children in his residence, particularly his daughter B.S. It was
Dr. Kenner’s view that the [petitioner] had the capacity to “actually do
better in prison . . . because one of the things that prison provides is, it’s
like family . . . contained . . . consistent.” He further testified that if the
[petitioner] “lives and spends the rest of his life in prison, then at least his
children will not feel as though they are responsible for his execution.” On
cross-examination by the State, Dr. Kenner acknowledged that the
[petitioner] was not insane, in that he knew of his wrongful acts, but he
described the [petitioner] as having a personality disorder, which qualified
as a mental disease or defect.
After the final argument by counsel and the instructions by the trial
court, the jury imposed the death penalty for each of the two first degree
murder convictions. The jury concluded that the State had established
beyond a reasonable doubt that each of the murders “was committed for the
purpose of avoiding, interfering with, or preventing a lawful arrest or
prosecution of the defendant or another,” the applicable statutory
aggravating circumstance. Tenn. Code Ann. § 39-13-204(i)(6).
State v. Sexton, 368 S.W.3d 371, 377-84 (Tenn. 2012).
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On direct appeal, the Tennessee Supreme Court affirmed the petitioner’s
convictions but vacated the death penalty, finding (1) the trial court improperly excluded
prospective jurors based solely on their jury questionnaires, (2) the trial court erred in
allowing a DCS worker to testify as to child sexual abuse allegations against the
petitioner, (3) the trial court erred in allowing a police officer to testify regarding the
petitioner’s refusal to take a polygraph examination, and (4) the trial court erred in
allowing the prosecutor to refer to the marital confidential communication privilege
during opening arguments. Id. at 431. Prior to the petitioner’s re-sentencing hearing, the
State withdrew its intent to seek the death penalty, and the petitioner was sentenced to
consecutive life sentences.
Following the re-sentencing hearing, the petitioner filed a timely pro se petition
for post-conviction relief and two amended petitions. During the next four years, five
attorneys withdrew from representing the petitioner on his post-conviction claims.
Following the withdrawal of the petitioner’s fifth appointed attorney, the petitioner
waived his right to counsel and filed a third amended petition for post-conviction relief,
arguing, in part, Jurors Jeanne Jo Jeffers and Angela Lawson Bunch misrepresented their
histories of domestic violence; an unidentified juror told other jurors the petitioner was
guilty prior to deliberations; Juror Roger Davis was threatened in the courthouse during
trial; a bailiff told Jurors Jeffers and Bunch that a juror had been threatened; the State
maliciously presented their case; and the trial court failed to ensure the peremptory
challenges and the jury questionnaires were part of the technical record on direct appeal.
The petitioner also argued trial counsel was ineffective for failing to investigate a probate
issue involving the victims; investigate a cigarette butt and light fixtures collected from
the crime scene; properly voir dire prospective jurors regarding pretrial publicity; ensure
the peremptory challenges were part of the technical record; investigate the illegal search
of the petitioner’s vehicle; prepare for the “404(b) hearing;” properly cross-examine
Preston Adams; object to the pathologist’s testimony regarding the caliber of bullet used
during the murders; inquire into the jury’s relocation; provide competent advice
regarding a stipulation entered at trial; and for abandoning the petitioner during trial. He
also argued appellate counsel was ineffective for failing to ensure the peremptory
challenges were part of the technical record; failing to raise the issues of jury tampering
and extraneous prejudicial information; and failing to object to the State’s improper
argument during the re-sentencing hearing.
At the March 13-14, 2017 post-conviction hearing, Jeanne Jo Jeffers3 testified she
was a member of the jury during the petitioner’s trial. Prior to jury selection, Juror
Jeffers indicated on the jury questionnaire that she had read articles about the murders in
3
Juror Jeffers is also referred to as Jennie Jeffers throughout the record.
- 11 -
the local newspaper. However, Juror Jeffers agreed trial counsel did not inquire into the
extent of her knowledge during individual voir dire.
Juror Jeffers did not recall whether the jury questionnaire asked if she had been the
victim of a crime, and she was not asked this question during voir dire. However, she
acknowledged she was the victim of domestic violence at the hands of her ex-husband
and “wondered if they would have picked [her] if they knew.” She testified she “made an
honest mistake” in answering that she had not been the victim of a crime and reasoned
that she either did not “see[] that question” or “flew through [the questionnaire].” Juror
Jeffers also admitted to discussing her prior experiences with domestic violence during
jury deliberations, telling her fellow jurors that she had been the victim of abuse and
“knew what a woman [would] do” in that situation. She told the jury that “[y]ou can
even spot a woman that’s been abused” because “[t]hey are different because of it.”
On cross-examination, Juror Jeffers testified she answered all questions during
voir dire honestly and told the trial court she could be fair and impartial. She also agreed
her past experiences with domestic violence did not influence her verdict of guilty.
Regarding the jury’s relocation from one hotel to another during trial, Juror Jeffers
testified Bailiff Phyllis Griffith informed her the jury was being moved for security
reasons because “one of the jurors had been threatened,” and they wanted the jury to stay
at a more secure hotel. Juror Jeffers also testified an unidentified juror stated the
petitioner was guilty prior to hearing any of the evidence. However, Juror Jeffers “didn’t
pay any attention to him.”
Roger Davis, a juror during the petitioner’s trial, testified the jury was leaving the
courthouse following the first day of testimony when a man approached him in the
hallway and stated, “I know where you live.” Although Juror Davis did not know the
man, he assumed it was a member of the petitioner’s family. Juror Davis informed
Sheriff Jim Carson of the threat but did not tell the other jurors. That evening, the jury
was moved to a new hotel. However, Juror Davis did not believe the relocation was
related to the threat. On cross-examination, Juror Davis testified the threat did not
influence his deliberations.
Angela Lawson Bunch, a juror during the petitioner’s trial, testified she could not
recall her answer to the question in the jury questionnaire asking if she had ever been the
victim of a crime but stated she “would probably say no.” Juror Bunch did not “consider
what happened to [her] a crime” because no one was arrested. However, she admitted
she was the victim of domestic violence and was in “a verbally abusive relationship.”
Although she described the abuse as verbal, Juror Bunch testified “it could have gotten
much worse, so yes, domestic violence does stay with me to some extent.” On cross-
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examination, Juror Bunch agreed the petitioner was found guilty based on the evidence
presented at trial and not her past experiences.
Juror Bunch also testified the jurors were given several reasons for the relocation
during trial, including “threats” and “security reasons.” She recalled Bailiff Griffith
telling her the relocation was needed because one of the petitioner’s attorneys was
staying at the same hotel.
N. S.4 testified she was a juror during the petitioner’s trial. When asked in the jury
questionnaire whether she had been the victim of a crime, N. S. answered she and her
sister were raped as children by their step-father and she had been the victim of domestic
violence. However, N. S. agreed none of the attorneys questioned her about her response
to this question during voir dire.
Sherry Farmer, the petitioner’s ex-wife, testified she could not recall TBI Agents
searching her home following the petitioner’s arrest or whether she consented to a search.
Co-counsel testified he was appointed to represent the petitioner prior to the
petitioner’s preliminary hearing in June 2000.5 Lead counsel, who was appointed after
the petitioner’s case was transferred to criminal court, “took the lead” while co-counsel
felt his role was “to assist [lead counsel] and work with [the petitioner].”
Co-counsel testified he and lead counsel reviewed the jury questionnaires prior to
individual voir dire and used the questionnaires to determine which questions to ask the
prospective jurors. Co-counsel was unsure why only one prospective juror was asked
about the exposure to pretrial publicity. However, if prospective jurors indicated the
media coverage would not have an impact on their judgment, co-counsel did not believe
it was necessary to ask the prospective jurors what pretrial publicity they had seen or
read. In addition, co-counsel could not recall Nancy Smith’s answer on the jury
questionnaire. He stated trial counsel may not have asked her about being the victim of
child rape if “there were other things in her questionnaire that made us think that we
didn’t need to ask her that question.” Because he did not have N. S. questionnaire in
front of him, co-counsel was unable to specify what those reasons might have been. On
cross-examination, co-counsel agreed N. S. may have been chosen for the petitioner’s
jury because she knew co-counsel’s mother.
4
It is the policy of this Court to refer to victims of sexual abuse by their initials only. No
disrespect is intended.
5
The petitioner was represented at trial by two attorneys. For clarity, we will refer to them
individually as “lead counsel” or “co-counsel” and collectively as “trial counsel.”
- 13 -
Regarding the jury’s relocation during trial, co-counsel recalled the jury was
relocated because lead counsel was staying at the same hotel. He did not believe trial
counsel should have questioned the jury about their relocation because the jurors were
already questioned by the trial court and gave “satisfactory answers about what had
happened.” In addition, co-counsel was not aware of any threats made to individual
jurors, but he would have “explored” the issue if he had any reason to think a juror had
been threatened.
Co-counsel testified he and lead counsel worked together to prepare for the 404(b)
hearing regarding the child sex abuse allegations. Co-counsel did not remember
interviewing any witnesses for the hearing. Instead, they planned to argue the merits of
why the allegations should not be admitted. Specifically, trial counsel argued the
allegations were “grossly prejudicial,” and any probative value was outweighed by their
prejudicial effect.
Regarding trial strategy, co-counsel testified the defense’s strategy was to “attack
the validity of the evidence.” Specifically, trial counsel wanted to attack how the
physical evidence was recovered by law enforcement and any discrepancies in the
witnesses’ statements. To combat the motive being offered by the State, trial counsel
discovered a possible probate issue involving the victims and other family members.
Although co-counsel could not recall the specifics of the probate issue or how it was
developed, he believed he investigated it prior to trial.
Co-counsel agreed “it could be argued” the search of the petitioner’s vehicle
without consent was illegal, and he did not know why it was not addressed at trial.
Additionally, co-counsel did not recall the stipulation entered at trial of the Dollar Store
employee’s testimony, which was used to link the receipt found in the petitioner’s vehicle
to items purchased on the day of the murders. However, if the agreed stipulation did not
match what was entered at trial, co-counsel would have objected.
On cross-examination, co-counsel acknowledged, at a potential suppression
hearing, either the petitioner or his ex-wife, Ms. Farmer, would have had to testify they
did not give consent to search the petitioner’s vehicle, and the petitioner was “not
enthusiastic” about testifying. Although the testimony of Tinnie Chumley, the Dollar
Store employee, was introduced through a stipulation because she had health problems,
co-counsel acknowledged the stipulation also prevented a courtroom identification of the
petitioner. “[I]t was a way for us to control exactly what her testimony would be.”
Co-counsel agreed Dr. Sandra Elkins, the forensic pathologist who performed
autopsies on the victims, was not qualified as a ballistics expert at trial. However, co-
counsel did not believe her testimony stating the bullet fragments found in the victims
- 14 -
“were consistent with a .22 bullet” warranted an objection because “[s]he is probably
qualified to testify” to those findings. On cross-examination, co-counsel further
explained he did not object to Dr. Elkins’ testimony because it was “within her area of
expertise based on what [co-counsel] knew and understood it to be.”
Co-counsel vaguely remembered the testimony of Mr. Adams. Co-counsel
remembered him as “a person who could [not] be believed” but did not recall any specific
information the defense had to impeach him. He also could not recall lead counsel’s
misplacing a file containing impeachment information during Mr. Adams’ cross-
examination.
Regarding the untested cigarette butts and light fixtures, co-counsel agreed the
evidence could potentially be exculpatory if the items did not contain the petitioner’s
fingerprints or DNA. Additionally, because the petitioner denied being in the victims’
home on the night of the murders, co-counsel testified there was no strategic reason for
not testing the evidence. However, co-counsel later testified, if testing showed the
petitioner’s fingerprints or DNA on the items, trial counsel would be forced to disclose
that information to the State.
Ronnie Gunter, a bailiff during the petitioner’s trial, testified he could not recall
specifically why the jury had to be relocated, but he believed someone was
uncomfortable at the hotel where the jury was originally housed. He also did not recall
being informed of a threat to Juror Davis during the trial.
Lead counsel testified he tried four capital cases, including the petitioner’s, during
his legal career. Lead counsel’s trial strategy was to prove that it was impossible for the
petitioner to have travelled from Bradley County to Scott County on the night of the
murders. However, lead counsel acknowledged he used the petitioner’s time frame and
not the one established at trial by the State.
Lead counsel agreed the jury questionnaires were tools used to assist in selecting
the jury. He also agreed there was no reason why N. S. should not have been excused
after she disclosed on her questionnaire that she had been raped as a child by her step-
father, and prospective jurors should have been asked about the extent of their exposure
to pretrial publicity. On cross-examination, lead counsel acknowledged N. S.’s
experience as a victim of a crime was a “factor” to consider but was not the “whole
picture.” He also agreed it was possible that bringing up the details of the crime to the
prospective jurors could have a prejudicial effect.
Regarding the relocation of the jury, lead counsel testified he was told someone on
the jury was uncomfortable staying at the same hotel as lead counsel. Although lead
- 15 -
counsel was not made aware of any threats to the jury, he agreed polling the jury could
have brought that issue to the court’s attention. On cross-examination, lead counsel
testified he would have brought a jury threat to the trial court’s attention if he were made
aware of it.
Lead counsel was unable to recall the details of the probate issue involving the
victims or who may have investigated that issue. Lead counsel also could not recall the
cigarette butts and light fixtures collected from the victims’ home. However, he agreed
that if they had that evidence, it should have been tested for fingerprints and DNA. When
asked about the 404(b) hearing, lead counsel was unable to recall the motion or the child
sex abuse allegations against the petitioner. Lead counsel also could not recall Preston
Adams’ testimony or whether lead counsel left the courtroom during the testimony of
Agent Guy.
Regarding the search of the petitioner’s vehicle and the Dollar Store receipt, lead
counsel did not recall the petitioner telling him the police did not have consent to search
his vehicle. However, he agreed they should have challenged the search as a Fourth
Amendment violation. Lead counsel also did not recall the stipulation that was entered
into evidence at trial concerning the Dollar Store receipt. On cross-examination, lead
counsel agreed it would be impossible to exclude the receipt if neither the petitioner nor
his wife were willing to testify they did not consent to the search.
Lead counsel agreed Dr. Elkins was not qualified as an expert in ballistics. He
also agreed forensic pathologists can make mistakes when calculating a bullet’s size from
smaller fragments and did not know why he did not object to her testimony.
Appellate counsel testified he represented the petitioner at the motion for new trial
hearing and on direct appeal, exclusively handling the jury issues on direct appeal.
Appellate counsel recalled telling the trial court during the motion for new trial hearing
that the jury questionnaires were pertinent to the petitioner’s issues, and he asked the trial
court to make the questionnaires part of the record. Although appellate counsel did not
recall telling the trial court he would make copies of the questionnaires and submit them
to the court, appellate counsel testified he did submit the questionnaires to the trial court
“to the best of [his] recollection.” Additionally, when the Tennessee Supreme Court
ordered appellate counsel to supplement the record with the missing questionnaires,
appellate counsel “assum[ed]” he complied with their order. On cross-examination,
appellate counsel agreed the burden is on the petitioner, not the State, to ensure the
appellate record is complete.
Appellate counsel agreed the petitioner would need to exhaust all of his
peremptory challenges to preserve a jury issue on direct appeal. In preparing the
- 16 -
appellate brief, appellate counsel was unable to determine who made which peremptory
challenge based on the record. Appellate counsel agreed it “was a problem,” and he was
unable to “c[o]me up with a solution.”
Regarding the issues raised on direct appeal, appellate counsel testified he and the
petitioner disagreed as to which issues should be raised on direct appeal and which issues
would be more appropriate for a collateral proceeding. Although the petitioner wanted to
raise the issue of the threatened juror on direct appeal, appellate counsel, after consulting
other attorneys and based on his experience and training, chose not to raise the issue
because “issues outside of the record should be preserved for raising them on a collateral
post-conviction proceeding.”
During the re-sentencing hearing, appellate counsel recalled the State arguing the
child sex abuse allegations were an aggravating factor in determining whether the
petitioner’s sentences should run consecutively. Although he agreed an objection should
have been made, appellate counsel did not object to this argument. On cross-
examination, appellate counsel agreed the State’s mention of the child sex abuse
allegations was not the sole reason for the petitioner’s consecutive sentences.
Re-sentencing counsel testified he reviewed the Tennessee Supreme Court’s
decision prior to the petitioner’s re-sentencing hearing. However, he did not agree an
objection was needed to the State’s argument was that the sexual abuse allegations were
an aggravating factor. Instead, because the trial court was determining whether the
petitioner’s sentences were consecutive or concurrent, re-sentencing counsel believed the
trial court was “in the best position to decide whether or not [the child sex abuse
allegations were] a factor that the [trial court] should consider or not consider.” Although
re-sentencing counsel did not believe it was a “conscientious strategic decision” not to
object, he testified it is his practice to object only when necessary.
After its review of the evidence presented, the post-conviction court denied relief
in an oral ruling on April 2, 2018. The petitioner filed a notice of appeal on April 9,
2018, and the post-conviction court entered its written order denying relief on May 4,
2018. On October 19, 2018, this Court granted the petitioner’s motion to late-file his
notice of appeal.
Analysis
On appeal, the petitioner asserts (1) the State committed a Brady violation by
losing or destroying four jury questionnaires; (2) Juror Jeffers failed to disclose her
history of domestic violence and discussed her experiences during deliberations; (3) Juror
Bunch failed to disclose her history of domestic violence; (4) an unidentified juror
- 17 -
discussed the petitioner’s case prior to the start of deliberations; (5) Juror Davis was
threatened by an unknown person during trial; (6) Jurors Jeffers and Bunch received
extraneous information from a bailiff regarding the threat to Juror Davis; (7) trial counsel
was ineffective during the guilt and penalty phases of the trial; (8) appellate counsel was
ineffective during the direct appeal and re-sentencing hearing; (9) re-sentencing counsel
was ineffective during the re-sentencing hearing; (10) the prosecution engaged in
misconduct by fabricating overly prejudicial evidence; (11) the State failed to inform the
defense of the threat to Juror Davis; (12) the trial court erred in violating Tenn. R. Crim.
P. 24(d)(5); (13) the trial court failed to properly rule on the issues presented at the post-
conviction hearing; and (14) cumulative error warrants a new trial.
I. Post-Conviction Court’s Findings
We must first address the petitioner’s assertion that the post-conviction court
failed to make specific findings of fact regarding several issues addressed at the post-
conviction hearing. Tennessee Code Annotated section 40-30-111(b) provides as
follows:
(b) Upon the final disposition of every petition, the court shall enter a final
order, and except where proceedings for delayed appeal are allowed, shall
set forth in the order or a written memorandum of the case all grounds
presented, and shall state the findings of fact and conclusions of law with
regard to each such ground.
Although this requirement is mandatory, “the failure of the trial judge to abide by the
requirement does not always mandate a reversal of the trial court’s judgment.” State v.
Swanson, 680 S.W.2d 487, 489 (Tenn. Crim. App. 1984) (citing Brown v. State, 445
S.W.2d 669 (Tenn. Crim. App. 1969)). The purpose of the statute is to facilitate
appellate review of the post-conviction court’s decision. Therefore, a remand is not
required when the record is otherwise adequate for review, even if the trial court failed to
comply with the rule. Id.
In this case, the post-conviction court made an oral ruling denying the petition for
post-conviction relief, which was later reduced to a written order. However, the post-
conviction court failed to make specific findings of fact regarding several of the
petitioner’s jury issues and claims of ineffective assistance of counsel. The record before
this Court contains the transcripts of the evidentiary hearing, the complete record of the
petitioner’s trial, and the post-conviction court’s findings. Therefore, we conclude the
record is adequate for our review of the substantive issues.
- 18 -
II. Brady Violation
The petitioner contends the State committed a Brady violation by losing or
destroying several jury questionnaires. Prior to the post-conviction hearing, the petitioner
requested the jury questionnaires for Jurors Jeffers, Bunch, Davis, and Smith. However,
the State and the court clerk were unable to locate the requested questionnaires. The
State contends the petitioner has failed to show any exculpatory evidence was lost or
destroyed.
Suppression of evidence favorable to the defendant is a due process violation
where the evidence is material to guilt or punishment. Brady v. Maryland, 373 U.S. 83,
87 (1963). The duty to disclose extends to all “favorable information” regardless of
whether the evidence is admissible at trial. Johnson v. State, 38 S.W.3d 52, 56 (Tenn.
Crim. App. 2012). In order to establish a violation based on the withholding of favorable
evidence, the defendant must demonstrate that: (1) the defendant requested the
information or that it was obviously exculpatory; (2) the State suppressed evidence in its
possession; (3) the information was favorable to the accused; and (4) the information was
material. State v. Jackson, 444 S.W.3d 554, 594 (Tenn. 2014). Evidence is material if
there is a reasonable probability the result of the proceeding would have been different
had the evidence been disclosed. State v. Cureton, 38 S.W.3d 64, 77 (Tenn. Crim. App.
2000).
In addition, “the prosecutor is responsible for ‘any favorable evidence known to
the others acting on the government’s behalf in the case, including the police.’” Strickler
v. Greene, 527 U.S. 263, 275 n.12 (1999) (citing Kyles v. Whitley, 514 U.S. 419, 437
(1995)). However, the prosecution is not required to disclose information that the
defendant either possesses or is able to obtain. Johnson, 38 S.W.3d at 56.
Here, the petitioner has failed to establish the State committed a Brady violation.
The jury questionnaires do not constitute Brady material as they can never exculpate a
defendant. Per Brady, the State has a duty to turn over “evidence favorable to an accused
. . . where the evidence is material either to guilt or punishment . . . .” Brady, 373 U.S. at
87. Evidence is favorable to an accused where it exculpates the accused, mitigates the
punishment, or impeaches the prosecution’s witnesses. See Johnson v. State, 38 S.W.3d
52, 55-56 (Tenn. 2001). While knowing if a certain juror might have preconceived ideas
about a case could be helpful to a defendant in selecting jurors, such does not constitute
exculpatory or mitigating evidence as it does not relate to guilt or punishment. Thus, it
does not amount to Brady material. Accordingly, the petitioner is not entitled to relief.
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III. Juror Bias
Every criminal defendant enjoys the right to a trial “by an impartial jury.” U.S.
Const. amend. VI; Tenn. Const. art. I, § 9. “Jurors must render their verdict based only
upon the evidence introduced at trial, weighing the evidence in light of their own
experience and knowledge.” State v. Adams, 405 S.W.3d 641, 650 (Tenn. 2013) (citing
Caldararo ex rel. Caldararo v. Vanderbilt Univ., 794 S.W.2d 738, 743 (Tenn. Ct. App.
1990)). Challenges to juror qualifications can be (1) propter defectum, “on account of
defect,” or (2) propter affectum, “on account of prejudice.” See State v. Akins, 867
S.W.2d 350, 355 (Tenn. Crim. App. 1993). Propter defectum disqualifications include
those based on alienage, family relations, or other statutory mandate and must be
challenged before the return of a jury verdict. Id. Propter affectum disqualifications are
based upon bias, prejudice, or impartiality and may be made after the jury verdict. Id.
Therefore, a claim of juror bias or impartiality may be asserted in a petition of post-
conviction relief. See Robert Faulkner v. State, No. W2012-00612-CCA-R3-PD, 2014
WL 4267460, at *76 (Tenn. Crim. App. Aug. 29, 2014), no perm. app. filed.
The Tennessee Constitution guarantees every defendant “‘a trial by a jury free of .
. . disqualification on account of some bias or partiality toward one side or the other of
the litigation.’” Akins, 867 S.W.2d at 354 (quoting Toombs v. State, 270 S.W.2d 649,
650 (Tenn. 1954)). “Jurors who have prejudged certain issues or who have had life
experiences or associations which have swayed them in response to those natural and
human instincts common to mankind interfere with the underpinnings of our justice
system.” Id. During voir dire, jurors are obligated to make “full and truthful answers . . .
neither falsely stating any fact nor concealing any material matter.” Id.
To prevail on a claim of juror bias, the defendant must establish a prima facie case
of bias or partiality. Id. “When a juror willfully conceals (or fails to disclose)
information on voir dire which reflects on the juror’s lack of impartiality, a presumption
of prejudice arises.” Id. Additionally, “failure to disclose information in the face of a
material question reasonably calculated to produce the answer or false disclosures give
rise to a presumption of bias and partiality.” Id. at 356. The intent of the juror is not
dispositive of the issue of bias. Id. at n. 15.
There is a presumption of bias “when a juror’s response to relevant, direct voir
dire questioning, whether put to that juror in particular or to the venire in general, does
not fully and fairly inform counsel of the matters which reflect on a potential juror’s
possible bias.” Id. at 357. However, the presumption may be rebutted by the absence of
“actual prejudice,” with the court viewing the totality of the circumstances, and not only
“the juror’s self[-]serving claim of lack of partiality.” Id. Actual prejudice is established
when the presumed bias is confirmed by the juror’s conduct during jury deliberations
- 20 -
giving rise to the possibility that improper extraneous information was provided to the
jury. Id. “Although jurors may be asked about extraneous information imparted, the may
not be asked about the effect of that information on the juror’s mental process or the
jury’s deliberations.” Carruthers v. State, 145 S.W.3d 85, 95 (Tenn. Crim. App. 2003)
(internal quotation marks and citations omitted); see Tenn. R. Evid. 606(b).
A. Juror Jeffers
The petitioner argues that Juror Jeffers failed to disclose her relevant past history
of domestic violence and that her presence on the jury violated his right to a fair and
impartial jury. The State contends the petitioner failed to establish a prima facie case of
bias.
At the post-conviction hearing, Juror Jeffers did not recall a question on her jury
questionnaire asking whether she had been the victim of a crime. However, she later
testified she made “an honest mistake” and either did not “see[] that question” or “flew
through it.” She also testified she was not asked during her individual voir dire whether
she had been the victim of a crime, which “surprised” her, and she acknowledged she was
the victim of domestic violence by her ex-husband. She also “wondered if [the attorneys]
would have picked [her] if they knew.”
Juror Jeffers admitted to discussing her past experiences with domestic violence
with other jurors. She told other jurors she was the victim of domestic violence and
“knew what a woman [would] do” in that situation, referring to the petitioner’s wife. She
also told the jury “[y]ou can even spot a woman that’s been abused” because “[t]hey are
different because of it.”
The Tennessee Supreme Court recognized that “potential bias arises if a juror has
been involved in a crime or incident similar to the one on trial.” Smith v. State, 357
S.W.3d 322, 347 (Tenn. 2011). Similarly, this Court has previously determined the
failure of a prospective juror to disclose she was a victim of domestic violence in a
capital murder trial involving domestic violence “is not insignificant.” Robert Faulkner,
2014 WL 4267460 at *78. In Smith, our supreme court held “the failure to ask the
prospective jurors about their past experiences as victims or associates of victims is
objectively unreasonable.” Smith, 357 S.W.3d at 347.
Here, although Juror Jeffers first testified she could not recall the victim-of-a-
crime question on the jury questionnaire, she later testified she made “an honest mistake”
when completing the questionnaire. She also testified she was “surprised” that she was
not asked during voir dire whether she had been the victim of a crime and admitted she
was the victim of domestic violence. In addition, even though Juror Jeffers “wondered”
- 21 -
if she would have been chosen if the attorneys knew about her past experiences with
domestic violence, she failed to disclose this information twice during voir dire when
given the opportunity. See id. (“[p]otential bias arises if a juror has been involved in a
crime or incident similar to the one on trial.”)
[PROSECUTOR]: Can you think of anything that maybe we wouldn’t
know to ask you about that you think would trouble you about being a juror
in this case? Anything that we have not asked you about?
[JUROR JEFFERS]:I can’t think of a thing.
...
[LEAD COUNSEL]: So you can’t think of [anything] that hadn’t
been asked in the last few days, I’d say, between this questionnaire and
between us questioning you, can you?
[JUROR JEFFERS]:I can’t.
Accordingly, a presumption of bias arises. The presumption of bias may be overcome by
an absence of “actual prejudice.” Akins, 867 S.W.2d at 357. Actual prejudice is
established when the presumed bias is confirmed by the juror’s conduct during jury
deliberations giving rise to the possibility that improper extraneous information was
provided to the jury. Id.
After failing to disclose her history of domestic violence during voir dire, Juror
Jeffers told other jurors about her past experiences. While discussing the petitioner’s
wife, Juror Jeffers told other jurors she “knew what a[n] [abused] woman [would] do.”
She also told the jury “[y]ou can spot a woman that’s been abused” because “[t]hey are
different because of it.”
Although the State attempted to elicit testimony from Juror Jeffers indicating she
did not let her past experiences with domestic violence influence her verdict, this
testimony was inadmissible under Tennessee Rule of Evidence 606(b), which states:
Upon an inquiry into the validity of a verdict or indictment, a juror may not
testify as to any matter or statement occurring during the course of the
jury’s deliberations or to the effect of anything upon any juror’s mind or
emotions as influencing that juror to assent to or dissent from the verdict or
indictment or concerning the juror’s mental processes, except that a juror
may testify on the question of whether extraneous prejudicial information
- 22 -
was improperly brought to the jury’s attention, whether any outside
influence was improperly brought to bear upon any juror, or whether the
jurors agreed in advance to be bound by a quotient or gambling verdict
without further discussion; nor may a juror’s affidavit or evidence of any
statement by the juror concerning a matter about which the juror would be
precluded from testifying be received for these purposes.
Here, during voir dire, Juror Jeffers testified generally that she could be fair and
impartial. However, she did not disclose her relevant history of domestic abuse and
misrepresented her history as a victim of domestic violence on the jury questionnaire.
Her testimony at the post-conviction hearing that she did not let her past experiences with
domestic violence influence her verdict was inadmissible. Because of her false
representation on her questionnaire, neither the defense nor the trial court was able to
question her regarding her prior experiences. During deliberations, Juror Jeffers
discussed her experiences as the victim of domestic violence and compared herself to the
petitioner’s wife. Therefore, we conclude the State failed to rebut the presumption that
Juror Jeffers was biased or prejudiced and could not serve as a fair and impartial juror,
and the petitioner was denied the right to a jury that was fair and impartial.
The denial of the right to an impartial jury is a structural constitutional error that
compromises the integrity of the judicial process and cannot be treated as harmless error.
State v. Odom, 336 S.W.3d 541, 556 (Tenn. 2011); State v. Rodriguez, 254 S.W.3d 361,
371 (Tenn. 2008). Structural errors “necessarily render a criminal trial fundamentally
unfair or an unreliable vehicle for determining guilt or innocence.” Neder v. United
States, 527 U.S. 1, 9 (1999). Because structural errors deprive a defendant of a right to a
fair trial, they are subject to automatic reversal. Rodriguez, 254 S.W.3d at 361.
Accordingly, we reverse the post-conviction court’s denial of post-conviction
relief, vacate the petitioner’s convictions, and remand the case to the trial court for a new
trial. In light of the possibility of further appellate review, we will address the
petitioner’s remaining issues.
B. Juror Bunch
The petitioner argues that Juror Bunch failed to disclose her relevant past history
of domestic violence and that her presence on the jury violated his right to a fair and
impartial jury. The State contends the petitioner failed to establish a prima facie case of
bias. Upon our review of Juror Bunch’s testimony and the applicable law, we conclude
that the petitioner has failed to make a showing of actual prejudice and is, therefore, not
entitled to relief.
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At the post-conviction hearing, Juror Bunch could not recall her answer to the
question on the jury questionnaire asking whether she had ever been the victim of a
crime, but she reasoned she “would probably say no because [she] wouldn’t consider
what happened to [her] a crime.” However, she also testified she had been the victim of
domestic violence and was once in “a verbally abusive relationship.” When describing
the abuse, Juror Bunch testified “it could have gotten much worse, so yes, domestic
violence does stay with me to some extent.” Additionally, Juror Bunch was asked during
individual voir dire if she had ever been the victim of a crime and answered “no.”
While at first blush it appears Juror Bunch’s answers and history might create a
claim of juror bias, such is not the case when viewed more closely. As previously noted,
a presumption of bias arises when a juror “willfully conceals . . . information . . . which
reflects on the juror’s lack of impartiality . . . .” Akins, 867 S.W.2d at 354. Juror Bunch
made it clear that she did not equate being in a verbally abusive relationship to domestic
violence or a crime. Thus, while she may have a history one might be concerned would
reflect on Juror Bunch’s ability to be impartial, she did not willfully withhold information
or intentionally mislead the parties. Rather, Juror Bunch answered the question honestly
because she did not believe she had been the victim of a crime.
In addition to the fact that Juror Bunch did not willfully withhold information, the
record is void of any proof that she shared her experience with the other jurors or
considered her personal history during deliberation. Therefore, even if we were to
conclude Juror Bunch’s history created a presumption of bias, the presumption may be
rebutted by the absence of “actual prejudice,” with the court viewing the totality of the
circumstances, and not only “the juror’s self[-]serving claim of lack of partiality.” Id.
Actual prejudice is established when the presumed bias is confirmed by the juror’s
conduct during jury deliberations giving rise to the possibility that improper extraneous
information was provided to the jury. Id. Again, there is no proof in the record that
Juror Bunch shared her history with the other jurors or that she considered it herself. As
a matter of fact, Juror Bunch testified that the petitioner was found guilty based on the
evidence presented at trial and not her past experiences.
Based on the foregoing, we conclude the petitioner has failed to establish juror
bias and, therefore, cannot show he was denied his constitutional right to a fair and
impartial trial based on Juror Bunch’s presence on the jury. Thus, the petitioner is not
entitled to relief.
IV. Extraneous Prejudicial Information or Improper Outside Influence
The validity of a jury verdict will be considered questionable “[w]hen a jury has
been subjected to either extraneous prejudicial information or an improper outside
- 24 -
influence.” Adams, 405 S.W.3d at 650 (citing State v. Blackwell, 664 S.W.2d 686, 688
(Tenn. 1984)). Extraneous prejudicial information includes “information in the form of
either fact or opinion that was not admitted into evidence but nevertheless bears on a fact
at issue in the case.” Id. (internal citations omitted). Improper outside influence is “any
unauthorized private communication, contact, or tampering directly or indirectly, with a
juror during a trial about the matter pending before the jury.” Id. at 650-51 (quoting
Remmer v. United States, 347 U.S. 227, 229 (1954)).
The challenging party “must produce admissible evidence to make an initial
showing that the jury was exposed to extraneous prejudicial information or subjected to
an improper outside influence.” Id. at 651 (citing Caldararo, 794 S.W.2d at 740-41). If
successful, “a rebuttable presumption of prejudice arises and the burden shifts to the State
to introduce admissible evidence to explain the conduct or demonstrate that it was
harmless.” Id. (citing Walsh v. State, 166 S.W.3d 641, 647 (Tenn. 2005)). However,
“something more than a bare showing of a mingling with the general public is required
where the jury is not sequestered to shift the burden of proof to the State of showing no
prejudice.” Blackwell, 664 S.W.2d at 689. A violation of the constitutional right to an
impartial jury presents a mixed question of law and fact which this Court reviews de
novo, affording a presumption of correctness only to the trial court’s findings of fact.
Adams, 405 S.W.3d at 656 (citing Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001)).
A. Unidentified Juror
The petitioner argues an unidentified juror prejudiced the verdict by discussing the
case with other jurors prior to deliberations. The State contends any statement about the
petitioner’s guilt by the unidentified juror constituted premature jury deliberation.
At the evidentiary hearing, Juror Jeffers testified that, prior to the end of the
petitioner’s trial, a male juror stated he knew the petitioner was guilty. However, Juror
Jeffers “didn’t pay any attention to him,” and she was unable to identify which juror
made the statement.
This Court has previously held post-verdict inquiries into premature deliberations
by the jury are barred because such deliberations do not involve extraneous prejudicial
information or outside influence. See State v. Tavarus Detterio Griffin, No. W2014-
02114-CCA-R3-CD, 2015 WL 7833205 at *11 (Tenn. Crim. App. Dec. 3, 2015) (holding
a juror’s statement that he “knew the defendant was guilty” was analogous to a claim that
the juror prematurely deliberated), perm. app. denied (Tenn. Mar. 23, 2016); State v.
Frazier, 683 S.W.2d 346, 353 (Tenn. Crim. App. 1984). The petitioner is not entitled to
relief on this issue.
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B. Juror Davis
The petitioner argues Juror Davis was accosted in the hallway of the courthouse
during the trial and threatened by an unidentified man. The State failed to respond to this
claim in its brief.
At the post-conviction hearing, Juror Davis testified he was approached by an
unidentified man as the jury was leaving the courthouse during the trial. The man walked
up to Juror Davis and stated, “I know where you live.” At the time, Juror Davis believed
the man was a member of the petitioner’s family and reported the incident to Sheriff Jim
Carson. That evening, the jury was relocated to a new hotel.
When a juror has been exposed to outside influences, a rebuttable presumption of
prejudice arises. Adams, 405 S.W.3d at 651. Because the petitioner has made the
requisite initial showing that Juror Davis was subjected to an improper outside influence
by an unknown person, the burden now shifts to the State to either explain the conduct or
prove the exposure was harmless. Id.
During cross-examination, Juror Davis testified he did not believe the relocation
was a result of the threat. He further testified the threat did not influence his
deliberations. However, as discussed above, testimony of the effect of the threat on Juror
Davis’s deliberations was inadmissible under Tennessee Rule of Evidence 606(b), and
the trial court erred in allowing the State to elicit this testimony over the petitioner’s
objection. Beyond the inadmissible testimony of Juror Davis’s thoughts during
deliberations, the State offered no further proof regarding the threat against Juror Davis.
Therefore, we conclude the State failed to explain the communication or to show the
communication was harmless to rebut the presumption, and the petitioner is entitled to
relief.
C. Extraneous Information from Bailiff
The petitioner argues Bailiff Phyllis Griffith told Jurors Jeffers and Bunch
information regarding the threat to Juror Davis. The State contends any exposure to
improper outside influence by Bailiff Griffith was harmless.
At the post-conviction hearing, Juror Jeffers testified Bailiff Griffith told her the
jury was being relocated for security reasons because “one of the jurors had been
threatened” and because the jury needed to be at a more secure hotel. Juror Bunch
testified she was given several different reasons for the jury’s relocation, including
“threats” and “security reasons.” She recalled Bailiff Griffith telling her the jury was
being moved because lead counsel was staying in the same hotel. Bailiff Ronnie Gunter
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testified he believed the jury was relocated because one of the jurors was uncomfortable
at the original hotel, although he could not recall the exact reason. He also did not recall
being informed of a threat to Juror Davis during the trial. Bailiff Griffith was not called
to testify about these events.
Based on the foregoing testimony, we conclude an improper communication was
made to Juror Jeffers by Bailiff Griffith when she told Juror Jeffers about the threat to
Juror Davis. Because the petitioner has made the requisite initial showing that Juror
Jeffers was subjected to an improper outside influence by Bailiff Griffith, the burden now
shifts to the State to either explain the conduct or prove the exposure was harmless.
Adams, 405 S.W.3d at 651.
The State, however, has provided no evidence to rebut this presumption. The
State could have called Bailiff Griffith to testify as to whether she actually made the
statement, or the other jurors who testified at the post-conviction hearing were not asked
whether they heard Bailiff Griffith make the statement to Juror Jeffers. Although Juror
Bunch testified as to what Bailiff Griffith told her about the relocation, she was not asked
if she heard Bailiff Griffith’s conversation with Juror Jeffers. Because no other proof
was presented by the State at the post-conviction hearing on this issue, we conclude the
State failed to sufficiently explain the communication or show the communication was
harmless to the petitioner, and the petitioner is entitled to relief.
V. Ineffective Assistance of Counsel
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, 40 S.W.3d at 458. 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).
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 that the
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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 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)).
A. Trial Counsel
i. Failure to Investigate Probate Issue
The petitioner argues trial counsel was ineffective for failing to investigate a
potential probate issue involving the victims and their family. The petitioner contends
trial counsel failed to adequately research the issue prior to trial. The State contends the
petitioner failed to prove trial counsel was deficient.
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At the post-conviction hearing, lead counsel was unable to recall the probate issue.
Co-counsel also had trouble recalling the specifics of the probate issue. However, he
believed he investigated it prior to trial. The post-conviction court found trial counsel
“gave adequate responses to their preparation, their planning.” Implicit in the post-
conviction court’s order denying relief is an accreditation of trial counsel’s testimony and
nothing in the record preponderates against the post-conviction court’s factual findings.
See Tidwell, 922 S.W.2d at 500. Furthermore, the petitioner has failed to provide any
evidence demonstrating how he was prejudiced by trial counsel’s failure to investigate
the probate issue. Accordingly, the petitioner is not entitled to relief on this issue.
ii. Failure to Investigate Evidence from Crime Scene
The petitioner argues trial counsel was ineffective for failing to investigate
cigarette butts and light fixtures collected from the crime scene. Specifically, the
petitioner contends trial counsel should have tested the items for fingerprints and DNA.
The State contends the petitioner failed to meet his burden.
At the post-conviction hearing, co-counsel initially testified there was no strategic
reason for not testing the evidence. However, co-counsel later testified that if the
evidence tested positive for the petitioner’s fingerprints or DNA, they would be forced to
disclose that information to the State which “would have ended this case.” Lead counsel
was unable to recall the cigarette butts and light fixtures collected from the crime scene.
As discussed above, the post-conviction court accredited trial counsel’s testimony, and
nothing in the record preponderates against its factual findings. See Tidwell, 922 S.W.2d
at 500. Furthermore, the petitioner failed to present the results of any such testing and,
therefore, cannot establish prejudice. See Black v. State, 794 S.W.2d 752, 757-58 (Tenn.
Crim. App. 1990). The petitioner is not entitled to relief on this issue.
iii. Failure to Properly Question Juror N. S. during Voir Dire
The petitioner argues trial counsel was ineffective for failing to properly question
Juror N. S. during voir dire. Specifically, the petitioner contends trial counsel failed to
question Juror N. S. about her disclosure on the jury questionnaire that she and her sister
were raped by their stepfather and that she was the victim of domestic violence. The
State contends the petitioner failed to establish prejudice.
At the post-conviction hearing, Juror N. S. testified she answered on her
questionnaire that she had been the victim of a crime. More specifically, she stated that
she and her sister were raped by their stepfather, and she had also been the victim of
domestic violence. However, during her individual voir dire, Juror N. S. was not
questioned about this response. Co-counsel testified he did not recall Juror N. S.’s
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responses on the jury questionnaire. He stated they may not have asked her about being
the victim of child rape if “there were other things in her questionnaire that made us think
that we didn’t need to ask her that question,” but he was unable to specify what those
“other things” may have been. On cross-examination, co-counsel agreed Juror N. S. may
have been chosen because she knew co-counsel’s mother. Lead counsel testified there
was no explanation why Juror N. S. was not excused after disclosing she was raped by
her stepfather. However, on cross-examination, lead counsel acknowledged Juror N. S.’s
disclosure would be a “factor” to consider instead of the “whole picture.”
While there is no requirement trial counsel ask specific questions during voir dire,
this Court has recognized that potential bias arises if a juror has been involved in a crime
or incident similar to the one on trial. See Ricketts v. Carter, 918 S.W.2d 419, 422 (Ten.
1996); Durham v. State, 188 S.W.2d 555, 558 (Tenn. 1945). Therefore, “absent a
showing that counsel had a strategic reason for not asking the question, the failure to ask
the prospective jurors about their past experiences as victims or associates of victims is
objectively unreasonable.” Smith, 357 S.W.3d at 347.
There is nothing in the record demonstrating trial counsel had a strategic reason
not to question Juror N. S. about her disclosure. Therefore, we conclude trial counsel’s
failure to question Juror N. S. about her experiences as a victim of a crime was
objectively unreasonable and resulted in deficient performance. Id. Additionally,
because juror bias has already been established, we conclude the petitioner has
demonstrated the requisite prejudice. Because he has proven both deficient performance
and prejudice, the petitioner has established he was denied his constitutional right to the
effective assistance of counsel. Accordingly, the petitioner is entitled to a new trial.
iv. Failure to Properly Question Prospective Jurors Regarding Pretrial Publicity
The petitioner argues trial counsel was ineffective for failing to properly inquire
into prospective jurors’ exposure to pretrial publicity. The petitioner contends nine of the
twelve jurors disclosed they had been exposed to pretrial publicity. However, only one of
these jurors was asked the extent of the exposure. The State contends the petitioner failed
to establish prejudice.
At the post-conviction hearing, Juror Jeffers testified she was not asked during
voir dire the extent of her exposure to pretrial publicity, and a review of the record shows,
although nine of the jurors who sat on the petitioner’s jury indicated they had been
exposed to pretrial publicity, only one juror was asked specifically what he had read
about the case. Co-counsel testified he was unsure why only one juror was asked to
elaborate as to what pretrial publicity he had been exposed. However, he reasoned if the
juror indicated the media coverage would not have an impact on their judgment, it was
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not necessary to ask each prospective juror about media exposure and/or pretrial
publicity. Lead counsel agreed prospective jurors should have been asked about the
extent of their pretrial publicity exposure.
This Court has held “[a] prospective juror’s mere exposure to pretrial publicity is
not constitutional error.” State v. Gray, 960 S.W.2d 598, 608 (Tenn. Crim. App. 1997).
Prospective jurors who have been exposed to pretrial publicity may sit on a panel if they
can demonstrate to the trial court that they can disregard what they have heard and decide
the case on the evidence presented at trial. Id. Similarly, prejudice will not be presumed
merely by a showing of extensive pretrial publicity. State v. Stapleton, 638 S.W.2d 850,
856 (Tenn. Crim. App. 1982).
Here, the petitioner has failed to provide any proof he was prejudiced by the
jurors’ exposure to pretrial publicity or by trial counsel’s failure to question prospective
jurors about their exposure. Additionally, on direct appeal, our supreme court found that
“[w]hile several of the jurors acknowledged that they had some exposure to information
appearing in the local newspaper, all promised to serve in an impartial manner and to
heed the instructions of the trial court.” Sexton, 368 S.W.3d at 396. The petitioner is not
entitled to relief on this issue.
v. Failure to Preserve Appellate Record
The petitioner argues trial counsel was ineffective for failing to include the
peremptory challenges in the appellate record. Specifically, the petitioner contends the
absence of the peremptory challenges deprived him of a full and fair review of his jury
claim on direct appeal. The State contends the petitioner has failed to meet his burden.
The petitioner asserts he was deprived of a full review of his jury claim on direct
appeal due to the fact the peremptory challenges were not part of the appellate record.
However, a review of the record shows, although the supreme court noted the petitioner
failed to prove he exhausted all of his peremptory challenges, the court ultimately denied
relief on the petitioner’s jury claim based on the merits of the claim. Because the
supreme court reviewed the petitioner’s claim on the merits, the petitioner cannot prove
he was prejudiced by trial counsel’s failure to include the peremptory challenges in the
appellate record. The petitioner is not entitled to relief on this issue.
vi. Failure to Challenge Search of the Petitioner’s Vehicle
The petitioner argues trial counsel was ineffective for failing to file a motion to
suppress the Dollar Store receipt found in the petitioner’s vehicle. The petitioner
contends the search of his vehicle was conducted without a search warrant or consent,
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and the receipt was, therefore, inadmissible. The State contends the petitioner has failed
to prove trial counsel was deficient for failing to file a motion to suppress.
At the post-conviction hearing, co-counsel testified “it could be argued” the search
of the petitioner’s vehicle was illegal if neither the petitioner nor his ex-wife consented,
and he did not know why the search was not addressed at trial. However, on cross-
examination, co-counsel testified either the petitioner or his ex-wife would have been
required to testify at a suppression hearing to establish a lack of consent, and co-counsel
agreed the petitioner was “not enthusiastic” about testifying. Lead counsel testified he
could not recall the petitioner’s informing him that the vehicle search was performed
without consent, and he agreed trial counsel should have challenged the search as a
violation of the Fourth Amendment. On cross-examination, lead counsel agreed it would
be impossible to exclude the receipt if neither the petitioner nor his ex-wife were willing
to testify at the suppression hearing. Ms. Farmer, the petitioner’s ex-wife, testified she
could not recall whether she gave officers permission to search the home, and she was not
asked whether she consented to a search of the vehicle.
To prove prejudice on a claim that trial counsel was ineffective for failing to file a
motion to suppress, a petitioner must show “(1) a motion to suppress would have been
granted and (2) there was a reasonable probability that the proceedings would have
concluded differently if counsel had performed as suggested.” Terrance Cecil v. State,
No. M2009-00671-CCA-R3-PC, 2011 WL 4012436 at *8 (Tenn. Crim. App. Sept. 12,
2011), no perm. app. filed (citing Vaughn v. State, 202 S.W.3d 103, 120 (Tenn. 2006)).
Therefore, “[i]f a petitioner alleges that trial counsel rendered ineffective assistance of
counsel by failing to . . . file a motion to suppress . . . the petitioner is generally obliged to
present . . . the [evidence supporting the claim] at the post-conviction hearing in order to
satisfy the Strickland prejudice prong.” Demarcus Sanders v. State, No. W2012-01685-
CCA-R3-PC, 2013 WL 6021415 at *4 (Tenn. Crim. App. Nov. 8, 2013), perm. app.
denied (Tenn. Mar. 17, 2014).
Here, the petitioner provided no proof to support his assertion that a motion to
suppress the Dollar Store receipt would have been granted. The trial transcript, submitted
as evidence at the post-conviction hearing, shows the petitioner’s vehicle was searched
following consent from the petitioner. Ms. Farmer testified she could not recall whether
she gave consent to search the home, and the petitioner failed to ask her whether she
consented to a search of the vehicle. Furthermore, the petitioner did not testify at the
hearing. Accordingly, the petitioner cannot establish prejudice and, therefore, is not
entitled to relief on this issue.
vii. Failure to Prepare for 404(b) Hearing
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The petitioner argues trial counsel was ineffective for failing to investigate and
prepare for a 404(b) hearing concerning the admission of the child sex abuse allegations
against the petitioner. Specifically, the petitioner contends trial counsel failed to
interview the alleged victim, prepare a response to the State’s brief, cross-examine Hope
Tharp, the DCS worker who testified regarding the sexual abuse allegations against the
petitioner, and introduce medical reports and inconsistent statements. The State contends
the petitioner failed to establish prejudice.
At the post-conviction hearing, co-counsel testified he and lead counsel worked
together to prepare for the 404(b) hearing. However, co-counsel did not recall
interviewing any witnesses in preparation for the hearing. Instead, their strategy was to
argue the evidence was “grossly prejudicial” and, therefore, inadmissible. Lead counsel
was unable to recall the 404(b) hearing or the child sex abuse allegations against the
petitioner.
Our review of the record shows trial counsel argued vigorously during the hearing
that the allegations were extremely prejudicial and suggested the State instead establish
motive by referencing the child custody issues existing between the petitioner and the
victims. Additionally, trial counsel repeatedly requested a full 404(b) hearing. However,
the trial court denied trial counsel’s request and issued a ruling, based solely on the
State’s brief and the arguments of counsel, holding the testimony of Ms. Tharp was
admissible to establish motive. On direct appeal, the Tennessee Supreme Court held the
probative value of Ms. Tharp’s testimony was not essential to the State’s case due to its
cumulative nature, and therefore, the prejudicial effect of the allegations outweighed their
probative value.
As noted above, co-counsel’s testimony indicates they prepared for the 404(b)
hearing, and they decided to argue the prejudicial effect of the allegations outweighed
any probative value. The post-conviction court accredited the testimony of trial counsel,
and nothing in the record preponderates against the findings of the post-conviction court.
See Tidwell, 922 S.W.2d at 500. In addition, the fact that a trial strategy or tactic failed
or was detrimental to the defense does not, alone, support a claim for ineffective
assistance of counsel. Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992).
Deference is given to sound tactical decisions made after adequate preparation for the
case. Id.
Furthermore, although the petitioner argues trial counsel should have interviewed
witnesses or introduced evidence, such as medical records or inconsistent statements, the
petitioner failed to present the witnesses or evidence at the post-conviction hearing and,
therefore, cannot establish prejudice. See Black, 794 S.W.2d at 757-58. The petitioner is
not entitled to relief on this issue.
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viii. Failure to Cross-Examine Preston Adams
The petitioner argues trial counsel was ineffective for failing to properly cross-
examine Preston Adams, who testified at trial that the petitioner confessed to the
murders. The petitioner contends lead counsel stopped in the middle of his cross-
examination and asked the trial court for permission to recall Mr. Adams at a later time.
However, lead counsel failed to recall Mr. Adams.
The petitioner failed to cite to any authority for this claim, and, therefore, it is
waived. Tenn. R. App. P. 27(a)(7); Tenn. Ct. Crim. App. R. 10 (“Issues which are not
supported by argument, citation to authorities, or appropriate references to the record will
be treated as waived in this court.”). Additionally, the petitioner offered no proof as to
how he was prejudiced by lead counsel’s decision not to recall Mr. Adams. Thus, the
petitioner is not entitled to relief on the merits of his claim.
ix. Failure to Object to Testimony Concerning Ballistics
The petitioner argues trial counsel was ineffective for failing to object to the
pathologist’s testimony concerning ballistics. Specifically, the petitioner contends Dr.
Elkins’ testimony that the fragments recovered from the victims were consistent with a
.22 caliber bullet was outside the scope of her expertise. The State contends the
petitioner failed to prove trial counsel was ineffective.
At the post-conviction hearing, co-counsel agreed Dr. Elkins was not qualified as a
ballistics expertise at trial. However, co-counsel did not think Dr. Elkins’ testimony
stating the fragments “were consistent with a .22 bullet” warranted an objection because
he believed she was “probably qualified to testify” to her opinions on that topic. On
cross-examination, co-counsel further explained the testimony was “within [Dr. Elkins’]
area of expertise based on what [co-counsel] knew and understood it to be.” Lead
counsel agreed Dr. Elkins was not qualified as an expert in ballistics and did not know
why he did not object to her testimony.
Although lead counsel could not recall why he did not object to Dr. Elkins’
testimony regarding the bullet fragments, co-counsel testified the decision not to object to
Dr. Elkins’ testimony was based on the belief that her testimony was within the scope of
her expertise. Though the petitioner claims Dr. Elkins testified outside of her area of
expertise, he failed to present any proof in support of his claim. Absent proof Dr. Elkins
could not have been qualified as a ballistics expert, the petitioner, while he might be able
to establish counsel was deficient for not challenging Dr. Elkins’ testimony, cannot show
Dr. Elkins would not have qualified as a ballistics exper or how he was prejudiced by
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counsel’s actions. Thus, the petitioner failed to establish both prongs of the Strickland
standard and is not entitled to relief on this issue.
x. Failure to Inquire into the Jury’s Relocation
The petitioner argues trial counsel was ineffective for failing to inquire as to why
the jury was moved to a different hotel. Specifically, the petitioner contends trial counsel
would have discovered the threat to Juror Davis and could have requested a mistrial. The
State contends the petitioner failed to prove trial counsel was deficient.
Our review of the record shows lead counsel approached the trial court at the start
of the second day of trial and requested the court place information of the jury’s
relocation the night before on the record. The trial court stated it “received
communications from the jury attendants that [the jury was] somewhat concerned with
the logistics” of their living situation, specifically that lead counsel was staying at the
same hotel. Because the jury was uncomfortable, they were relocated to a different hotel.
The trial court emphasized there were “[n]o communications,” and “[n]obody ever
attempted to talk to anyone.” Although the trial court told trial counsel they could “make
inquiry,” trial counsel declined.
At the post-conviction hearing, co-counsel testified the jury was relocated because
they were staying at the same hotel as lead counsel. He did not believe the jury should
have been questioned by trial counsel because they had already given “satisfactory
answers” to the trial court. Although he was not aware of any threats to the jury, co-
counsel would have “explored” the issue if it came up. Lead counsel testified he believed
the jury was uncomfortable because he and the jury were staying at the same hotel. He
was not aware of any threats to jurors and testified he would have brought a jury threat to
the trial court’s attention if he were made aware of it.
The petitioner has failed to prove trial counsel was deficient for failing to make
further inquiry into the jury’s relocation. Co-counsel did not ask to question the jury
because he felt the trial court had already been given “satisfactory answers.” Both co-
counsel and lead counsel believed the jury was moved because they were uncomfortable
staying at the same hotel as lead counsel and would have inquired further if they
suspected a juror had been threatened. As noted, the trial court informed the parties that
the jury was being moved because they were uncomfortable staying in the same hotel as
trial counsel. The trial court also informed the parties there was no communication with
the jury and no one had attempted to talk to the jury. Based on the information provided
by the trial court to the parties, trial counsel had no reason to question the veracity of the
information, and the petitioner has failed to show that the professional norms would
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require such of trial counsel Thus, the petitioner failed to establish deficient performance
and is not entitled to relief.
xi. Failure to Advise the Petitioner Concerning Stipulation
The petitioner argues trial counsel was ineffective for failing to correctly advise
him concerning the stipulation of Ms. Chumley. The petitioner contends trial counsel
redacted the wrong sentence in the stipulation prior to its admittance and failed to realize
the mistake when the stipulation was read to the jury.
The petitioner failed to cite to any authority for this claim, and, therefore, it is
waived. Tenn. R. App. P. 27(a)(7); Tenn. Ct. Crim. App. R. 10 (“Issues which are not
supported by argument, citation to authorities, or appropriate references to the record will
be treated as waived in this court.”).
Despite his waiver of this claim, the petitioner is not entitled to relief on the merits for
several reasons. Initially, the petitioner failed to present proof that the stipulation entered
at trial was improperly redacted. Thus, the petitioner failed to prove his factual allegation
by clear and convincing evidence. Additionally, lead counsel testified he made a
strategic decision to stipulate to the Dollar Store receipt. By stipulating to the
introduction of the receipt, lead counsel avoided having the petitioner identified in open
court and in front of the jury by the store employee. The fact that a trial strategy or tactic
failed or was detrimental to the defense does not, alone, support a claim for ineffective
assistance of counsel. Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992).
Deference is given to sound tactical decisions made after adequate preparation for the
case. Id. The petitioner is not entitled to relief on this issue.
xii. Abandoning the Petitioner During Trial
The petitioner argues trial counsel was ineffective for abandoning the petitioner
during trial. Specifically, the petitioner contends lead counsel left the courtroom during
the direct examination of Agent Guy and returned during the direct examination of the
following witness, Agent Brakebill. During his cross-examination of Agent Brakebill,
lead counsel mistakenly referred to Agent Brakebill as Agent Guy.
However, the petitioner failed to cite to any authority for this claim, and, therefore,
it is waived. Tenn. R. App. P. 27(a)(7); Tenn. Ct. Crim. App. R. 10 (“Issues which are
not supported by argument, citation to authorities, or appropriate references to the record
will be treated as waived in this court.”).
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In addition to waiver, the petitioner also failed to present any proof as to how he
was prejudiced by lead counsel’s leaving the courtroom. The record makes clear that the
petitioner was represented at trial by two attorneys. Therefore, while lead counsel may
have left the courtroom momentarily during trial, the petitioner was not left without
representation. Accordingly, the petitioner has failed to establish prejudice and is not
entitled to relief.
B. Appellate Counsel
i. Failure to Preserve Appellate Record
The petitioner argues appellate counsel was ineffective for failing to include the
peremptory challenges in the appellate record. Specifically, the petitioner contends
failing to include the peremptory challenges deprived him of a full and fair review of his
jury claim on direct appeal. The State contends the petitioner has failed to meet his
burden.
Although the petitioner asserts he was deprived of a full review of his jury claim
on direct appeal due to the lack of peremptory challenges in the appellate record, as
discussed above, our supreme court reviewed the petitioner’s jury claim on appeal and
denied relief based on the merits of the claim. Because the court reviewed the
petitioner’s claim on the merits, the petitioner cannot prove he was prejudiced by
appellate counsel’s failure to include the peremptory challenges in the appellate record
and, therefore, is not entitled to relief on this issue.
ii. Failure to Raise Issues
The petitioner asserts appellate counsel was ineffective for failing to raise two
issues on direct appeal. Specifically, the petitioner contends appellate counsel should
have raised the issues of the threat to Juror Davis and Bailiff Griffith’s providing
extraneous information to the jury.
However, the petitioner failed to cite to any authority for this claim, and, therefore,
it is waived. Tenn. R. App. P. 27(a)(7); Tenn. Ct. Crim. App. R. 10 (“Issues which are
not supported by argument, citation to authorities, or appropriate references to the record
will be treated as waived in this court.”). In addition to waiver, the petitioner failed to
offer any proof that appellate counsel was or should have been aware of the threat to
Juror Davis or that Bailiff Griffith shared extraneous information with the jury. Thus, the
petitioner failed to establish that appellate counsel’s performance fell below an objective
standard of reasonableness under prevailing professional norms. Pylant v. State, 263
S.W.3d 854, 868 (Tenn. 2008). The petitioner is, therefore, not entitled to relief.
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C. Appellate and Re-sentencing Counsel
i. Failure to Object to State’s Inappropriate Argument
The petitioner contends appellate and re-sentencing counsel were ineffective for
failing to object to the prosecutor’s inappropriate argument during the re-sentencing
hearing. The petitioner argues the prosecutor made several references to child sex abuse
allegations against the petitioner and called him a “child rapist.” However, the Tennessee
Supreme Court had previously held the child rape allegations were inadmissible.
The petitioner failed to cite to any authority for this claim, and, therefore, it is
waived. Tenn. R. App. P. 27(a)(7); Tenn. Ct. Crim. App. R. 10 (“Issues which are not
supported by argument, citation to authorities, or appropriate references to the record will
be treated as waived in this court.”).
VI. Prosecutorial Overreaching
The petitioner argues the prosecution deliberately and maliciously fabricated the
child rape allegations against the petitioner. The State contends the petitioner waived this
claim during the post-conviction hearing. We agree. At the conclusion of the post-
conviction hearing, the petitioner announced he was withdrawing his claim of
prosecutorial overreaching “in its entirety.” The petitioner is not entitled to relief on this
issue.
VII. Prosecutorial Misconduct
The petitioner argues the State committed prosecutorial misconduct by engaging
in a cover-up of the threat to Juror Davis. The petitioner contends it would be
“ludicrous” to believe the State was not aware of the threat to Juror Davis.
However, the petitioner failed to provide any proof the State was aware of the
threat to Juror Davis or that a cover-up existed to hide the threat from the defense.
Furthermore, the record before us contains no proof of a cover-up. The petitioner is not
entitled to relief on this issue.
VIII. Trial Court Error
The petitioner argues the trial court erred by violating Tenn. R. Crim. P. 24(d)(5).
Specifically, the petitioner contends the trial court failed to utilize a method of recording
peremptory challenges that would have ensured the challenges were part of the technical
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record. The State contends the petitioner waived this claim during the post-conviction
hearing. We agree. At the conclusion of the post-conviction hearing, the petitioner
announced he was withdrawing his claim of trial court error, “with the exception of the
juror questionnaires.” The petitioner is not entitled to relief on this issue.
IX. Cumulative Error
The petitioner asserts the cumulative effect of the errors rendered the guilt and
penalty phases of his trial fundamentally unfair. We have rejected the petitioner’s Brady
claim, claim of trial court error, and prosecutorial misconduct and overreaching claims.
We have also rejected all but one of the petitioner’s ineffective assistance of counsel
claims. We, however, conclude the petitioner received ineffective assistance of counsel
when trial counsel failed to voir dire N. S. regarding her history of sexual abuse, and the
petitioner was denied his right to a fair and impartial jury, requiring automatic reversal.
Conclusion
Based on the foregoing authorities and reasoning, the judgment of the post-
conviction court is reversed, the petitioner’s convictions are vacated, and the matter is
remanded to the trial court for a new trial.
____________________________________
J. ROSS DYER, JUDGE
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