Stanley Blair Hill v. State of Tennessee

02/22/2021
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs April 28, 2020
STANLEY BLAIR HILL v. STATE OF TENNESSEE
Appeal from the Circuit Court for Blount County
No. C-22929 David Reed Duggan, Judge
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No. E2018-02080-CCA-R3-PC
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The Petitioner, Stanley Blair Hill, filed for post-conviction relief from his conviction of
first degree murder, alleging that his trial counsel were ineffective. The post-conviction
court denied relief, and the Petitioner appeals, contending that counsel were ineffective by
failing “to obtain adequate expert and investigative assistance and/or to present such
testimony at trial”; by failing “to object to the introduction of improper, irrelevant,
inflammatory and prejudicial evidence”; and by failing to adequately advise the Petitioner
whether to accept or reject the State’s plea offer. Upon review, we affirm the judgment of
the post-conviction court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
NORMA MCGEE OGLE, J., delivered the opinion of the court, in which TIMOTHY L. EASTER
and J. ROSS DYER, JJ., joined.
Randall E. Reagan and Douglas A. Trant, Knoxville, Tennessee, for the Appellant, Stanley
Blair Hill.
Herbert H. Slatery III, Attorney General and Reporter; Garrett D. Ward, Assistant Attorney
General; Michael L. Flynn, District Attorney General; and Tammy M. Harrington, Tracy
Jenkins, and Robert Headrick, Assistant District Attorneys General, for the Appellee, State
of Tennessee.
OPINION
I. Factual Background
The Petitioner was convicted by a Blount County Jury of committing the first degree
premeditated murder of his wife, Vickie Hill, on the morning of December 31, 2003, and
received a life sentence for the conviction. State v. Stanley B. Hill, No. E2012-00289-
CCA-R3-CD, 2013 WL 4715115, at *1 (Tenn. Crim. App. at Knoxville, Aug. 30, 2013).
This court summarized the facts adduced at trial as follows:
[T]he first officer who responded to the [Petitioner’s] 911 call
was met in the driveway by the [Petitioner], who informed him
that he had gotten up that morning, looked for the victim, and
found her in the garage, where she had hanged herself. The
[Petitioner] told the officer that the victim had attempted
suicide about a year earlier by taking an overdose of her anti-
depressant medication but that she had not mentioned suicide
recently. . . . The initial story the [Petitioner] gave of having
laid the victim on her back on the garage floor after cutting her
loose from the rope was inconsistent with the physical
evidence, which, among other things, included sawdust on the
front of the victim’s pants, dirt and debris on the front part of
her feet, a rectangular pattern impression on her stomach that
matched the pattern of a pile of flooring materials in the garage,
and two ligature marks on her neck. One of those two marks
was shallow and went up, consistent with the mark left on a
body that has been hanged, while the other one was deep and
went straight back, inconsistent with a hanging. Investigators,
therefore, ordered an autopsy on the victim and transported the
[Petitioner] to the sheriff’s department for questioning.
The [Petitioner] initially repeated his story of the
victim’s having committed suicide in the garage. He changed
his story, however, after the investigators informed him that
the autopsy showed that the victim was already dead at the time
her body was hanged. In his new version, the [Petitioner] said
that the victim wanted to commit suicide but was afraid that
she would botch the job if she tried alone, so she asked him to
help her prepare and execute the plan. He said she repeatedly
begged for his help before he finally relented and devised a
method for her to hang herself with a rope by rolling off the
double bed in the bedroom of her older son, who was away
from home at the time the victim ultimately chose to commit
suicide. The [Petitioner] stated that the victim told him she
would start “kicking and fighting” during the suicide and made
him promise not to let her get up. She also made him promise
to stage the scene in the garage because she was concerned
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about what would happen to their two-year-old son if the
[Petitioner] was implicated in her death. . . .
The [Petitioner] stated that the victim had
unsuccessfully attempted suicide at least twice in the past, that
she lived on a roller coaster of emotions, that her anti-
depressant medication had ceased working, and that she
became tired of the roller coaster and begged him to help her
end her life because she was convinced that she was making
everyone around her miserable. The [Petitioner] said that the
previous night the victim announced that it was time to execute
the suicide plan. He described what occurred:
She said that last night was the night. She said
that, uh, she didn’t want to go on anymore. She
didn’t want to make anybody else miserable.
She wanted me to set the rope up. All it was, was
a loop that went around the bottom of the bed.
And it had another loop and, uh, through that
loop, you could twine the rest of the rope to make
the noose. And then it had a long end on it. The
long end was tied up. And what she did, she just
rolled off the bed, which, uh, tightened the noose,
left her head about that far off the ground,
maybe. And, uh, when she started kicking and
screaming, I promised her that I would do it, and
I did.
[Detective]: What did you do?
[Petitioner]: I just—I just held her down.
The [Petitioner] stated that he straddled the victim,
holding one hand on her chest and another on her side, to
prevent her from aborting her suicide. When asked how long
he had to hold her down before she died, he replied:
It seemed like forever. I don’t know. I
couldn’t—I don’t know whether it was a minute,
it was five minutes, one minute, three minutes.
It just seemed like forever. When she stopped . .
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. kicking and she was moving her arms, I kind of
let go and she was able to release herself and
some air come up. And it scared me, and I went
back down again. I held it for another minute
and I realized that was just the air escaping her.
It was already over. And she was finally at
peace. She was where she wanted to be.
....
The [Petitioner] stated that the victim had planned her
suicide for two months and that he had worked for three or four
weeks to devise the rope system that she used to execute it. He
stated that the victim wanted him to devise a system that she
could implement alone, but he was unable to do so. He said
that he did not tell the investigators the truth when they first
arrived at his house because he was afraid that if he did, it
would result in his separation from his two-year-old son, who
was “[his] life.”
The [Petitioner] informed the investigators that the rope
the victim used to commit suicide was behind the mattress still
tied to a leg of the victim’s son’s bed. Unknown to the
[Petitioner], investigators had already discovered a yellow rope
with loops and knots in it tied to the bed’s leg and in the
location described by the [Petitioner]. The investigators
bagged that piece of rope as evidence and asked the [Petitioner]
to partially reenact the alleged assisted suicide using a different
rope supplied by them and with a female officer playing the
role of the victim. The lengthy videotape of the reenactment,
which took place in the victim’s son’s bedroom, was played for
the jury at the [Petitioner’s] trial and admitted as an exhibit in
the case. After the reenactment, investigators took the
[Petitioner] back to the sheriff’s department where they
conducted a third interview. In the final interview, the
[Petitioner] denied that he ever hit the victim before her death.
He acknowledged that he and the victim had marital problems
and that she had threatened divorce after the birth of their son
but denied that she had mentioned divorce recently. He
acknowledged that the victim had repeatedly insulted him and
that he was angry and “fed up” with her behavior on the night
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of her suicide, which was one of the reasons he ultimately
agreed to help her:
I guess I was somewhat agitated at the way she
treated me that . . . last night. I don’t even know
what day it is. Night before last. She said that
that was the time and that it was going to happen.
And, uh, I was upset and I was angry, and I was
just tired of it, I guess. I—she had talked about
it for so long, I was tired of talking about it. I
mean, if you want something that bad and there’s
no talking you out of it—I mean, I guess I was
just fed up.
The [Petitioner’s] claim that the victim had not recently
threatened divorce was contradicted by testimony of the
victim’s mother, who said the victim told her in October 2003
that she wanted to get a divorce and that, after the victim’s
death, she had found in the [Petitioner’s] bathroom an undated
handwritten letter in which the victim told the [Petitioner] that
she no longer loved him and wanted a divorce. The victim’s
mother additionally testified that it would have been against
the victim’s religious beliefs to commit suicide, that the victim
had never been suicidal, and that the victim had appeared
normal and had been making plans for the future when she last
saw her the day before her death. Corroborating evidence of
the victim’s having made plans for the future included
evidence that she had purchased furniture on layaway on
December 26, 2003, and on November 1, 2003, had signed a
lease with an antique mall that did not expire until February
2004.
In addition to the above evidence, the jury heard
testimony from one of the investigators that the [Petitioner] had
disappeared from his parents’ home on November 20, 2005,
less than a month before his trial was originally scheduled to
begin, and been arrested in Los Angeles on July 3, 2006, in
possession of a book entitled How to Change Your Identity and
Erase Bad Credit, as well as two identification cards both
bearing the [Petitioner’s] photograph, one of the cards
supposedly from Louisiana in the name of Shawn Ashton
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Myers and the other from Missouri bearing the name James
Robert Reddy. Also, the [Petitioner] had social security cards
in the names of James Ronnie Kemp and Benjamin R. Doolittle
and a credit card in the name of Keith McKeyton.
Additional witnesses called by the State to refute the
[Petitioner’s] assisted suicide claim included the victim’s
primary care physician, the victim’s gynecologist, the victim’s
co-worker and friend, and the victim’s brother. The primary
care physician testified that he had treated the victim for
several years for chronic depression and prescribed various
antidepressants, but she never expressed any suicidal ideation
and reported on her last visit on December 10, 2003, that
“things were going great.” The victim’s gynecologist,
similarly, testified that the victim never appeared severely
depressed or suicidal to her, including during the last time that
she saw the victim, which was on December 16, 2003, two
weeks before the victim’s death. On that date, the victim, a
hairdresser, cut the gynecologist’s hair. The victim’s friend
and co-worker testified that the victim told her in October 2003
that she was contemplating divorce, that the victim told her
about a month before the victim’s death that she had written a
letter to the [Petitioner] telling him of her desire for a divorce,
and that the victim, in the weeks before her death, had begun
circling apartment advertisements in the newspaper. The
victim’s brother testified that approximately two weeks before
her death the victim asked him to be on the lookout for
affordable property for her to buy because she planned to leave
the [Petitioner]. He said that when he saw her on Christmas
Day, the victim reminded him of her request.
The State’s final witness was the Knox County medical
examiner who performed the autopsy of the victim’s body[, Dr.
Darinka Mileusnic]. She testified that the cause of death was
ligature strangulation, rather than hanging, and that the
victim’s lethal injuries could not have been inflicted by the
assisted suicide device as demonstrated by the [Petitioner] in
the reenactment videotape. The medical examiner also
testified about the victim’s various non-lethal injuries,
including premortem blunt force trauma to the head. Over the
objection of the [Petitioner], the medical examiner used a bed
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brought into the courtroom and the rope that had been found in
the [Petitioner’s] residence to demonstrate that the rope was
too short for the victim to have been hanged from the bed and
that the device would not have produced the lethal
strangulation ligature mark she found on the victim’s neck.
The [Petitioner] presented two witnesses in his defense:
a clinical psychologist and himself. The psychologist testified
that her research revealed that only fifteen to twenty-five
percent of the people who commit suicide in the United States
leave a suicide note and that men are more likely to leave a
note than women. In his testimony, the [Petitioner] essentially
repeated what he told the investigators about the victim’s
volatile emotional health, worsening depression, previous
unsuccessful suicide attempts, pleas with him to assist her with
her suicide, and his role in devising the rope system and
holding her down on the morning she chose to execute her plan.
He denied that he hit or assaulted her or that he and the victim
had any kind of physical or verbal fight on the day of her
suicide. He stated that he fled the jurisdiction before his
original trial was scheduled to begin because he was “scared
out of [his] mind,” and “felt totally helpless” because the
officers did not believe his account of what happened.
The [Petitioner] testified that the rope that the medical
examiner used to perform her courtroom demonstration was in
a different condition than it had been at the time of the victim’s
suicide because he had, after the victim’s death, cut the end of
it off and thrown it behind the basement ceiling tiles. He said
he did not reveal that detail to his counsel or anyone else until
during the trial, after watching the courtroom demonstration by
the medical examiner. When asked why he had cut off the end
of the rope and hidden it, he explained:
It went back to our plan. I mean, it was [to]
absolve me of any implications. When I took
[the victim] down there and after I couldn’t get
her up on the pulley, I left her laying and I went
back upstairs and I got the towels that were used.
I had a knife in my pocket and I used it and I cut
the end of it off, which I had used to untie that.
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That would have shown that I had been there.
And I took it downstairs and I threw—I had been
routing some wires for surround sound speakers
down in the basement. And I had pushed some
ceiling tiles back. When I got to the bottom of
the steps, I threw the rope up into that ceiling
where the ceiling was open. And I took the
towels to the laundry room and left them there.
And I was basically just trying to, number one,
at that time, it was my intention that she was to
hang in the garage, according to what we had
discussed. And it was to make the bedroom not
show what had happened, I guess.
On cross-examination, the [Petitioner] was unable to
say why he had not thrown the entire rope up into the ceiling
instead of just cutting off an end of it. He said he did not
understand why he had done a lot of things that he did, other
than that he was physically, mentally, and emotionally worn
out at the time and was not “thinking properly.” Finally, he
testified that he did not tell the detectives about the piece of
rope he had thrown into the ceiling because they gave him a
different rope for the reenactment and he did “not think about
the rope” that he had actually used for his wife’s assisted
suicide.
Prior to the [Petitioner’s] presentation of his proof,
defense counsel, to whom the [Petitioner] had just revealed that
he had cut off a piece of the rope and hidden it in the ceiling
tiles, received permission from the trial court to go to the
[Petitioner’s] former home to search for the piece of rope. At
the court’s direction, three law enforcement officers
accompanied one of defense counsel to the residence, obtained
consent from the current homeowner, and discovered a piece
of yellow rope in the basement ceiling in the location indicated
by the [Petitioner]. After the [Petitioner] concluded his
testimony, the State moved to exclude the evidence on the basis
that the [Petitioner] had not disclosed it as part of reciprocal
discovery. The trial court sustained the State’s motion but
allowed the [Petitioner] to put on an offer of proof, which
consisted of testimony by Detective Sergeant Shannon
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Carswell of the Blount Count Sheriff’s Department about her
discovery in the basement ceiling tiles of the home an
approximately four foot long length of yellow rope that was
similar in appearance to the rope that had been found in the
victim’s son’s bedroom.
Following deliberations, the jury convicted the
[Petitioner] of the premeditated first degree murder of the
victim, and the trial court sentenced him to life imprisonment.
Id. at *1-6.
Thereafter, the Petitioner filed for post-conviction relief, alleging that his trial
counsel were ineffective by failing to obtain expert and investigative assistance; failing to
object to improper, irrelevant, inflammatory, and prejudicial testimony; and failing to
properly advise the Petitioner regarding whether he should accept or reject the State’s plea
offer. The Petitioner testified at the post-conviction hearing that he originally was
represented by two retained attorneys, pretrial counsel and co-counsel. They met with the
Petitioner and his family and advised him that the State had made an offer to allow the
Petitioner to plead guilty to second degree murder with a sentence of twenty years and
release eligibility after serving eighty-five percent of the sentence in confinement.
According to the Petitioner, pretrial counsel gave no advice to the Petitioner regarding
whether he should accept the offer and left the decision completely up to the Petitioner.
The Petitioner told pretrial counsel that he would accept a plea to manslaughter with a
sentence of fifteen years with release eligibility after serving thirty percent of the sentence
in confinement. The Petitioner did not recall whether pretrial counsel told him about the
State’s response to the counter-offer, and the Petitioner had no further plea discussions with
pretrial counsel.
The Petitioner and pretrial counsel discussed the possibility of hiring expert
witnesses, including Dr. Cleland Blake, a forensic anthropologist, and Dr. Diana McCoy,
a clinical psychologist. They never discussed the possibility of hiring a crime scene
reconstructionist.
The Petitioner agreed that after he was released on bond, he left the jurisdiction and
“stayed gone for some period of time.”1 While he was gone, pretrial counsel passed away.
After the Petitioner’s return, pretrial counsel’s son began representing the Petitioner. The
Petitioner did not see trial counsel much at first, but as the trial date drew closer, they met
1
The record reflects that the Petitioner disappeared on November 20, 2005, and was arrested in
Los Angeles on July 7, 2006.
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almost nightly. The Petitioner did not ask trial counsel to negotiate a plea because the
Petitioner thought “it was just not an option at the time.” Co-counsel also continued to
represent the Petitioner, but the Petitioner did not see him except at trial.
The Petitioner said that shortly after the victim’s death, the police recorded an
interview with him. At the beginning of the interview, the police were “extremely nice,”
but “at the end they were extremely rude and yelling in [the Petitioner’s] face.” The
Petitioner could not remember specifically what the police had said. The Petitioner said
that trial counsel and co-counsel told the Petitioner that they did not want the entire
“twelve-plus hours” of the recording to be played at trial because they feared the jury would
get bored. The Petitioner acknowledged that part of the recording was played for the jury
but complained that “they skipped a lot of the parts where I was just sitting there for hours.”
The Petitioner said that his counsel discussed “which parts of the tape to try to redact versus
what to play,” but the Petitioner was not “privy” to those discussions and made no decisions
regarding which parts of the recording should be used at trial.
The Petitioner said the State did not disclose to the defense attorneys that Dr.
Mileusnic, the medical examiner, would stage a reenactment until it occurred during trial.
Counsel had interviewed Dr. Mileusnic prior to trial, but they did not tell the Petitioner that
she had tested the rope the police had found at the residence. The Petitioner said that if the
State had made another plea offer “[a]t the point of the trial,” he would have accepted it.
The Petitioner said that appellate counsel represented him at the motion for new trial
hearing and on appeal. The Petitioner met with appellate counsel three times while
preparing for the appeal, and they discussed the issues to be raised.
On cross-examination, the Petitioner said that he fled the jurisdiction after learning
that pretrial counsel was critically ill and “things did not look like the way [he] thought
they should have worked out.” The Petitioner’s father had posted a property bond to get
the Petitioner out of jail, and the Petitioner left the jurisdiction. The Petitioner was later
taken into custody in Los Angeles, California. The Petitioner did not say how long he was
gone. The Petitioner said that after his return, he and trial counsel met nightly while the
Petitioner was in custody.
The Petitioner said that he was in custody the first time he was interviewed by Dr.
McCoy. After he was released on bond, he met with her again before he fled to California.
Dr. McCoy asked him a “wide variety” of questions dealing with his mental health. The
Petitioner never met Dr. Blake.
The Petitioner said that neither he nor counsel were expecting the State to conduct
a reenactment at trial. During Dr. Mileusnic’s reenactment, the Petitioner told counsel he
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had cut off a piece of the rope used in the suicide and tossed it into the ceiling. He did not
tell the police or counsel about the piece of the rope because it “didn’t even cross my mind.
They had a thorough investigation at that house.” The Petitioner said that the piece of rope
he threw into the ceiling was the part he touched when he removed the victim’s body from
the strangulation device in her son’s bedroom and that “you watch TV shows and things,
talking about DNA and all this. That was where my involvement was.”
The Petitioner said that he learned during a visit from appellate counsel that
appellate counsel had failed to file his appeal to the Tennessee Supreme Court on time.
Appellate counsel explained that he was sick and “was in Cincinnati or somewhere at a
hospital.” As a result, the Petitioner was unable to appeal his case to the supreme court.
On redirect examination, the Petitioner said that Dr. Blake died before the
Petitioner’s trial and that he and trial counsel did not discuss obtaining another forensic
pathologist. The Petitioner thought that pretrial counsel had contacted Dr. Blake and that
“the direction kind of changed” after pretrial counsel’s death.
Christopher Robinson testified that he was a forensic consultant. Regarding his
qualifications to testify as an expert, Robinson said that he had specific training in the use
of ropes in strangulation as part of a five-week training session at the Henry Lee Institute.
During the course, different methods of strangulation were discussed, including pulleys
and how to determine by the suspension of the rope if the death was a suicide. Robinson
also testified as an expert in crime scene reconstruction.
Robinson said that he was retained by the Petitioner as part of the post-conviction
case. Robinson said that he looked at photographs of the crime scene but that he never
visited the crime scene. Robinson examined the police reports, trial testimony,
photographs, and trial exhibits, including a video reenactment by the police department.
As part of his review, Robinson “examined the rope itself, the pulley. I measured the length
of rope, the additional piece of rope that was recovered.” Robinson said that the rope used
during the State’s reenactment at trial “was a black rope” and that the rope used to hang
the victim “[w]as a yellow rope.”
Robinson said that the type of rope used during the State’s reenactment was a
“diamond-braid, heavy-duty polypropylene rope” with a synthetic core. The rope used in
the victim’s death was a hollow-braid polypropylene rope. Robinson said that the State
should have used the exact same type of rope that was used by the Petitioner. Robinson
further said that the black rope used during the State’s reenactment was sixteen inches
shorter than the rope the Petitioner used.
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Robinson said that if he had been retained by counsel prior to trial, he would have
visited the crime scene and reviewed the materials he looked at in preparation for the post-
conviction hearing. Robinson stated that he would have preferred to do his own
reenactment using the same type of rope allegedly used during the offense and “using
different lengths of rope, the 97 or then the additional 52 inches added.” Robinson said
that he would have reported his findings to counsel prior to trial.
Robinson said that the fifty-two-inch piece of rope found in the ceiling and the
ninety-seven-inch rope initially found by the police “exhibit[ed] strong similarities to each
other.” He acknowledged that he examined the two pieces of rope with a magnifying glass,
not a microscope. He said that if he had been employed for trial, he would have examined
the ropes under a microscope.
On cross-examination, Robinson acknowledged that he did not know “definitively”
that the ninety-seven-inch rope, if used in the pulley system, would have been sufficient to
strangle the victim. Robinson further acknowledged that the Petitioner did not tell anyone
about the piece of rope prior to trial and that a crime scene reconstructionist would not have
known to factor the length of that piece of rope into the reenactment.
On redirect examination, Robinson said that if he had been hired for trial, he could
have watched the trial and advised counsel about the problems with the State’s
reenactment.
Trial counsel testified that his father, pretrial counsel, originally was lead counsel
on the Petitioner’s case. Pretrial counsel died a few days after the Petitioner was located
in Los Angeles and extradited back to Blount County. Thereafter, trial counsel assumed
pretrial counsel’s role in the Petitioner’s case.
Trial counsel said that by the time he became involved in the Petitioner’s case, Dr.
Blake had become incapacitated by a medical condition, and trial counsel was unable to
speak with him. Trial counsel spoke with Dr. McCoy on one occasion. Dr. McCoy had
been retained by pretrial counsel and co-counsel. Trial counsel said that he understood that
Dr. McCoy had indicated to pretrial counsel and co-counsel that her discussions with the
Petitioner would impact her “ability to testify without incriminating him in some capacity.”
Trial counsel said that he “reached out to her after [he] got involved and just to put it bluntly
she pretty much shut the door in [his] face, would not really even discuss the case with
[him].” Trial counsel said that co-counsel and pretrial counsel met with Dr. Mileusnic
before trial counsel became involved in the case. Based on his discussions with co-counsel,
trial counsel formed the opinion that consultations with other pathologists or forensic
experts was “probably not something we needed to focus on.”
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Trial counsel had limited conversations with the Petitioner about the possibility of
a guilty plea. Trial counsel’s understanding was that the State had offered a plea of second
degree murder to pretrial counsel and co-counsel. Trial counsel said that the discussions
“involve[d] a plea either up in the range or to a higher range and that [the Petitioner] was
not interested in that.” By the time trial counsel got involved in the case, the Petitioner’s
circumstances “had changed dramatically.” Trial counsel reinitiated plea discussions with
the prosecutor. The prosecutor spoke with the victim’s family and learned they were not
comfortable with any plea offer. Accordingly, plea negotiations ceased, and the case was
set for trial.
Trial counsel said that the defense was surprised by the State’s reenactment of the
victim’s suicide. He noted that the Petitioner had given a videotaped statement to the police
that was approximately nine to ten hours long. The Petitioner took the police to the
residence and showed the officers how he had assisted the victim in committing suicide.
The defense theory was that it was not a murder, but it was an assisted suicide, and the
defense showed that the victim had issues with depression.
Trial counsel said that Dr. Pamela Jones testified that the victim did not leave a
suicide note and that notes were not found in the majority of suicides. Trial counsel said
that he spent “countless evenings” at the jail with the Petitioner, preparing for the trial.
Trial counsel explained that they had a lot of videotape to review. Additionally, trial
counsel wanted to prepare the Petitioner because trial counsel thought the Petitioner wanted
to testify and thought the Petitioner needed to testify. Trial counsel discussed with the
Petitioner the “pros and cons” of testifying and not testifying.
Trial counsel said that the Petitioner explained how he “came up with” the device
that assisted the victim with her suicide. Trial counsel thought the mechanism was “pretty
complicated.” Trial counsel did not think the length of the rope used during the victim’s
suicide was mentioned during his discussions with the Petitioner, and the Petitioner never
mentioned a cut rope existed. Trial counsel said, “That was the surprise in this.” Trial
counsel stated that knowing about the piece of rope would have been helpful.
On cross-examination, trial counsel said that Dr. McCoy’s role was essentially to
perform a “psychological autopsy” of the victim, which required Dr. McCoy to examine
the victim’s medical records, pharmaceutical records, and any information about the
victim’s personality, so she could potentially testify about the victim’s inclination toward
suicide. Trial counsel said that testimony by an expert that the victim was inclined to
commit suicide could have been important. However, Dr. McCoy decided not to
participate in the case. Trial counsel said that co-counsel was primarily responsible for
securing defense witnesses, and trial counsel did not know which experts co-counsel
contacted.
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Trial counsel thought that Dr. Blake had examined the autopsy report and the
Petitioner’s version of the victim’s death and that Dr. Blake’s testimony would have been
that the Petitioner’s version of events was not inconsistent with how the victim died. Trial
counsel acknowledged that such testimony could have been helpful to the defense. Trial
counsel thought the defense tried to secure another expert who would give the same
testimony as Dr. Blake, but they were not successful.
Trial counsel said that the defense did not try to employ a crime scene
reconstructionist. Trial counsel explained that the video of the Petitioner’s reenactment,
although it included the use of a different rope, was an “exact duplication” of the offense.
Trial counsel acknowledged that the yellow rope used in the State’s reenactment was a
“kind of nylon ski rope” and that Dr. Mileusnic said it was too short to have caused the
victim’s death in the manner described by the Petitioner. Trial counsel said that Dr.
Mileusnic’s testimony “was the most damaging” to the Petitioner’s case, that the defense
had no advance warning of her testimony, and that “it was one of the main points of
contention on appeal.” Trial counsel said that if the defense had been given advance notice
of Dr. Mileusnic’s testimony, they could have employed a crime scene reconstructionist to
independently test her opinion that the rope was too short.
Trial counsel said that whether the piece of rope found in the ceiling was cut from
the rope the police found when the victim died was never determined. Trial counsel stated
that the police found the yellow rope on the day of the victim’s death, that the piece cut off
of the rope was found in the ceiling where the Petitioner said it would be found, and that
the piece in the ceiling was also yellow.
Trial counsel recalled that the ligature marks found on the victim’s neck were
horizontal. In his original statement to the authorities, the Petitioner said that he found the
victim “in the garage basement hanging up and that he had let her down.” Trial counsel
thought the autopsy report revealed that the ligature marks “were more horizontal, not
completely vertical, if you know what I’m saying, but conducive with someone hanging
vertically from a rope or a noose.” Trial counsel agreed that testimony from a medical
expert such as Dr. Blake could have been important to establish how the victim received
the ligature marks.
Trial counsel agreed that the State’s reenactment influenced the jury and that expert
testimony rebutting the reenactment could have made a difference. Trial counsel thought
that the video of the Petitioner’s statement to the police was redacted to remove the parts
where “nothing was happening.”
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Trial counsel agreed that the ability to negotiate a plea was diminished after the
Petitioner absconded. Trial counsel talked with the Petitioner about the consequences of
his flight and the potential for a flight instruction at trial. Additionally, trial counsel filed
a motion in limine to keep some of the details of the Petitioner’s flight from the jury. Trial
counsel agreed that he discussed the possibility of pleading guilty with the Petitioner and
advised him “that because of the fact that he had fled that he was in some trouble and he
might want to think about offering second degree.” The Petitioner never gave any
indication that he was interested in pleading guilty to second degree murder. Trial counsel
further agreed that the State discussed the possibility of a guilty plea with the victim’s
family and learned that the victim’s family was not comfortable with a plea agreement.
Trial counsel thought the only possible option was for the Petitioner to plead guilty to the
charged offense of first degree murder.
On redirect examination, trial counsel said that in its demonstration, “the State
utilized the actual rope that was in evidence to demonstrate that it wasn’t of sufficient
length to accomplish what he had said.” Trial counsel explained that “the gist of what [Dr.
Mileusnic] was demonstrating is this rope is not long enough to do what [the Petitioner]
demonstrated. And that’s when [the Petitioner] revealed to us . . . there’s another piece
that’s not here.” Trial counsel explained that the black rope was used in the Petitioner’s
reenactment.
The post-conviction court found that the Petitioner failed to establish a claim for
relief. On appeal, the Petitioner contends that trial counsel was ineffective by failing “to
obtain adequate expert and investigative assistance and/or to present such testimony at
trial”; by failing “to object to the introduction of improper, irrelevant, inflammatory and
prejudicial evidence”; and by failing to adequately advise the Petitioner whether to accept
or reject the State’s plea offer.
II. Analysis
To be successful in a claim for post-conviction relief, the Petitioner must prove the
factual allegations contained in the post-conviction petition by clear and convincing
evidence. See Tenn. Code Ann. § 40-30-110(f). “‘Clear and convincing evidence means
evidence in which there is no serious or substantial doubt about the correctness of the
conclusions drawn from the evidence.’” State v. Holder, 15 S.W.3d 905, 911 (Tenn. Crim.
App. 1999) (quoting Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 n.3 (Tenn. 1992)).
Issues regarding the credibility of witnesses, the weight and value to be accorded their
testimony, and the factual questions raised by the evidence adduced at trial are to be
resolved by the post-conviction court as the trier of fact. See Henley v. State, 960 S.W.2d
572, 579 (Tenn. 1997). Therefore, the post-conviction court’s findings of fact are entitled
to substantial deference on appeal unless the evidence preponderates against those findings.
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See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001).
A claim of ineffective assistance of counsel is a mixed question of law and fact. See
State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). We will review the post-conviction
court’s findings of fact de novo with a presumption that those findings are correct. See
Fields, 40 S.W.3d at 458. However, we will review the post-conviction court’s conclusions
of law purely de novo. Id.
When the Petitioner seeks post-conviction relief on the basis of ineffective
assistance of counsel, “the [P]etitioner bears the burden of proving both that counsel’s
performance was deficient and that the deficiency prejudiced the defense.” Goad v. State,
938 S.W.2d 363, 369 (Tenn. 1996) (citing Strickland v. Washington, 466 U.S. 668, 687
(1984)). To establish deficient performance, the Petitioner must show that counsel’s
performance was below “the range of competence demanded of attorneys in criminal
cases.” Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). To establish prejudice, the
Petitioner must show that “there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine confidence in the outcome.” Strickland,
466 U.S. at 694. Moreover,
[b]ecause [the P]etitioner must establish both prongs of the
test, a failure to prove either deficiency or prejudice provides a
sufficient basis to deny relief on the ineffective assistance
claim. Indeed, a court need not address the components in any
particular order or even address both if the [Petitioner] makes
an insufficient showing of one component.
Goad, 938 S.W.2d at 370 (citing Strickland, 466 U.S. at 697).
On appeal, the Petitioner argues that his right to effective assistance of counsel was
“violated by trial counsel’s failure to obtain adequate expert and investigative assistance
and/or to present such testimony at trial.” Specifically, the Petitioner contends that counsel
should have secured the services of a crime scene reconstructionist for consultation prior
to trial and possibly to testify at trial. The Petitioner maintains that Robinson’s testimony
at the post-conviction hearing demonstrated that counsel’s failure to hire a crime scene
reconstructionist to counteract Dr. Mileusnic’s testimony at trial “was a crucial failure in
presenting an adequate defense.” The State asserts that Robinson’s “conclusions are based
factual conclusions rebutted by the record and partially rely on a piece of evidence the trial
judge ruled inadmissible. Thus, he could not have offered helpful testimony at trial like he
did at the evidentiary hearing.”
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The Petitioner also contends that counsel should have retained a forensic pathologist
to replace Dr. Blake and to combat Dr. Mileusnic’s testimony. In his brief, the Petitioner
acknowledges that trial counsel testified “that Dr. Blake’s findings were that the autopsy
results were consistent with [the Petitioner’s] reenactment during the interrogation.” The
State notes that Dr. Blake died and that the defense was unable to secure a witness willing
to give testimony similar to that which would have been offered by Dr. Blake.
The post-conviction court discredited the Petitioner’s claims that counsel was
deficient by failing to hire a crime scene reconstructionist or a forensic pathologist to aid
in cross-examining Dr. Mileusnic. The post-conviction court noted that counsel hired Dr.
Blake, Dr. McCoy, and Dr. Jones, who opined that not leaving a note was not uncommon
for people who commit suicide. Dr. McCoy performed a psychological autopsy on the
victim, but counsel decided not to use Dr. McCoy as a witness because her testimony
incriminated the Petitioner. The post-conviction court noted trial counsel’s explanations
regarding his decision not to use the experts and found that trial counsel was not deficient.
The record does not preponderate against the post-conviction court’s findings.
The Petitioner contends that trial counsel should have objected to “the introduction
of improper, irrelevant, inflammatory and prejudicial evidence.” Specifically, the
Petitioner alleges that during Detective Danny Wilburn’s testimony at trial, he said that
when he spoke to the Petitioner at the scene, the Petitioner “acted like he was crying, but
there was no tears or anything like that,” that the Petitioner “tried to break down
emotionally and it just never did happen,” and that Detective Wilburn and Deputy Porter
agreed the Petitioner “was trying to cry, was our impression, and he never did cry.” The
Petitioner maintains that in the recording of his statement, which was introduced through
Detective Wilburn’s testimony, Detective “Wilburn and other officers involved in
questioning ma[d]e hearsay statements, statements about the autopsy that they were not
qualified to make, and highly prejudicial and irrelevant statements about [the Petitioner].”
We note that the Petitioner did not raise this issue in his original or amended petitions or
at the hearing; however, he raised the issue in his post-hearing brief in support of his
petition for post-conviction relief.
In the written order, the post-conviction court found that detectives’ testimony that
the Petitioner “‘seemed to be trying to muster a showing of emotion about the death of his
wife but was unable to do so’” was relevant to whether the Petitioner was telling the truth
about assisting the victim in committing suicide or whether he murdered her. The post-
conviction court found that the evidence was admissible and that trial counsel’s failure to
object was not ineffective. The record does not preponderate against the post-conviction
court’s findings.
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The Petitioner contends that counsel failed to “competently and adequately advise”
the Petitioner whether to accept or reject the State’s plea offer. The Petitioner maintains
that pretrial counsel was ineffective when he failed to advise the Petitioner whether he
should accept the State’s plea offer of twenty years, especially given the strength of the
State’s case against the Petitioner. The Petitioner further complains that the pretrial
counsel was also ineffective by failing to convey to the State the Petitioner’s willingness
to plead guilty in exchange for a fifteen-year sentence.
In its order, the post-conviction court rejected the Petitioner’s claims that counsel
failed to communicate all offers of settlement and failed to advise him whether to accept a
plea offer or proceed to trial. The post-conviction court found that pretrial counsel advised
the Petitioner of the State’s offer of second degree murder with a twenty-year sentence and
release eligibility after serving eighty-five percent of the sentence in confinement. The
post-conviction court found that pretrial counsel properly advised the Petitioner that it was
the Petitioner’s decision whether to accept or reject the offer and that the Petitioner rejected
the offer and said he would only accept a plea to manslaughter. The record does not
preponderate against the findings of the trial court.
III. Conclusion
Upon review, we affirm the judgment of the post-conviction court.
_________________________________
NORMA MCGEE OGLE, JUDGE
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