Michael A. Virga v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs November 6, 2012

MICHAEL A. VIRGA v. STATE OF TENNESSEE

Appeal from the Criminal Court for Putnam County

No. 05-0629 Leon C. Burns, Jr., Judge

No. M2012-00305-CCA-R3-PC - Filed January 25, 2013

The petitioner, Michael A. Virga, appeals from the post-conviction court’s denial of his

petition for post-conviction relief from his first degree felony murder and aggravated arson

convictions. On appeal, he argues that he received the ineffective assistance of counsel and

that he was denied the right to trial by a fair and impartial jury. After review, we affirm the

denial of post-conviction relief.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

A LAN E. G LENN, J., delivered the opinion of the Court, in which J ERRY L. S MITH and J OHN

E VERETT W ILLIAMS, JJ., joined.

Ricky L. Jenkins, Sparta, Tennessee, for the appellant, Michael A. Virga.

Robert E. Cooper, Jr., Attorney General and Reporter; Meredith Devault, Senior Counsel;

Randall A. York, District Attorney General; and Anthony J. Craighead, Assistant District

Attorney General, for the appellee, State of Tennessee.

OPINION

FACTS

The petitioner was convicted by a Putnam County Criminal Court jury of first degree

felony murder and aggravated arson based on his burning down the house trailer where he

resided, which resulted in the death of his girlfriend, Rochelle Hinrich. State v. Michael A.

Virga, No. M2008-00209-CCA-R3-CD, 2009 WL 537560, at *1, *5 (Tenn. Crim. App.

Mar. 3, 2009), perm. app. denied (Tenn. June 15, 2009). He was sentenced to concurrent

terms of life imprisonment and twenty years. Id. at *8. This court affirmed the petitioner’s

convictions on direct appeal, id. at *12, and the Tennessee Supreme Court denied his

application for permission to appeal.

The underlying facts of the petitioner’s case were recited by this court on direct

appeal as follows:

In the late night or early morning of August 7 and 8, 2005, firefighters

responding to a fire at a trailer in a neighborhood on Shag Rag Road in

Cookeville, Tennessee, discovered a female’s body in the bedroom of the

trailer. Agents from the Tennessee Bomb and Arson Section investigated the

scene. During the investigation, the [petitioner] and his roommate, Steve

Tracey, who lived at the trailer with the victim, were present at the scene. The

agents interviewed the [petitioner], who confessed to setting the trailer on fire.

On November 8, 2005, a Putnam County grand jury indicted the

[petitioner] on three counts. Count I alleged that the [petitioner] “did

unlawfully, intentionally and with premeditation kill Rochelle Hinrich in

violation of T.C.A. § 39-13-202,” Count II alleged that the [petitioner] killed

the victim “during the perpetration of or attempt to perpetrate arson in

violation of T.C.A. § 39-13-202,” and Count III alleged that the [petitioner]

committed aggravated arson by “unlawfully and knowingly damag[ing] a

structure with one person therein by means of a fire without the consent of all

persons who had possessory, proprietary or security interest therein in

violation of T.C.A. § 39-14-302.” Prior to trial, the State dismissed the

premeditated murder charge (Count I) and proceeded on the theories of

aggravated arson and felony murder resulting from aggravated arson (Counts

II and III).

Suppression Hearing

The [petitioner] filed a pretrial motion to suppress arguing that his

statements given to law enforcement agents were “unlawful because they were

involuntary due to the severe intoxication of the [petitioner],” because “[t]he

[petitioner] had not had any sleep and did not understand what was happening

at the time he gave the statement,” and because “[t]he statement was not

written by the [petitioner] and does not accurately reflect the oral statement

given by the [petitioner].” The statement at issue was given to Agents Scott

Greenwood and Greg Whittaker of the Tennessee Bomb and Arson Section.

The confession reads, in full,

On 8-8-2005 at [approximately] 12:00 [a.m.] I Michael

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A. Virga was asleep on the couch at my [m]obile [h]ome. I

woke-up, I had been very upset about my bills. I decided that

I was going to set the [h]ouse on fire. I went outside and got

the gas can that had [approximately] 1/4 gal[lons] of gas inside

it. I then went back into the house trailer and poured gas along

the front of the T.V. I then went over to the stove and got a ½

gallon of cooking oil and I poured the oil on the stove[,] the

refrigerator[,] and microwave and counter-tops. I then went

back over to the sink area and lit[ ] the oil. I then left and went

over to where that I had poured the gas out and lit[ ] it. When

I lit[ ] the gas it flashed up and my nose and hair caught on fire.

I reached and grabbed the gas jug and threw it down as I was

going out the front-door. I then ran around the [m]obile home

and turned left and went to the back door. When I got to the

back door I meet Steve, I ask him where Rochelle was, Steve

said that he thought that she was still inside. I then went inside

the back door and went into mine and Rochelle[’s] bed-room

and felt around on the bed trying to see if I could find Rochelle,

I couldn’t find her. I was having trouble bre[a]thing, I [was]

also having trouble seeing. I finally got outside the bedroom

door as I was leaving I burned my arm as I[ ] went [through] the

door-way. I got outside and stood away from the fire and

watched it burn. I was very upset and a police officer had to

physically restrained [sic]. This all being due to the fact that I

knew I had set the [m]obile home on fire.

Steve Tracey had no knowledge of the arson. I just woke

up and decided that if I could get rid of the [m]obile home that

me and [Rochelle] would not have no more worr[ie]s and we

would not be[ ] fighting anymore. I Michael A. Virga didn’t

[plan] this fire, I just woke-up from the couch and decided to do

it.

I give this statement of my own free will, no promises or

threats have been made. I fully understand my Miranda Rights.

The statement was signed by the [petitioner]. The document indicated

that it was “taken by” Agent Whittaker and “witness[ed]” by Agent

Greenwood.

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The trial court held a hearing on the motion to suppress, and defense

counsel argued that “the court should consider that [the petitioner] had been

severely intoxicated the night before, that he had been sleep deprived and did

not understand when he gave the statement that . . . the written statement did

not reflect his oral statement given to the officers.”

The State called Agent Scott Greenwood of the Tennessee Bomb and

Arson Section. Agent Greenwood testified that he had been assigned to

investigate the trailer fire and the death of the victim. He reported to the scene

at approximately 2:00 a.m. on August 8, 2005, but, when he first arrived, the

[petitioner] was being treated for burn wounds at the hospital. He testified

that on the “morning” of August 8, the [petitioner] returned to the scene;

however, Agent Greenwood did not speak with him during this time. At some

point, the [petitioner] left the scene with Mr. Tracey, his roommate, and he

returned about 30 minutes to an hour later with a 12-pack of beer. Agent

Greenwood instructed law enforcement personnel to prevent the [petitioner]

from consuming any of the beer because he wanted to speak with him later.

Agent Greenwood testified that he then spoke with the [petitioner] at the

scene. He stood two or three feet from the [petitioner], who did not appear

intoxicated.

The [petitioner] was later transported to the Putnam County Sheriff’s

Department for further questioning about the suspected arson. Agent

Greenwood testified that, to his understanding, Agent Whittaker had

administered the [petitioner] his Miranda warnings. He said, “We actually

have a sheet that lists them all out,” and the [petitioner] signed the sheet. He

described the protocol that he followed during the interview, “We’ll talk to

them, get a statement from them, take notes from that and then write out the

statement, read the statement back to them, make sure that that is . . . their

word and then have them sign the bottom of the sheet.” According to Agent

Greenwood, at no time during the interview did the [petitioner] object to the

accuracy of the written statement. He testified that the [petitioner] signed and

dated the statement at 6:45 p.m., August 8, 2005. Agent Greenwood also

drew a diagram of the trailer and “had [the petitioner] point out on the

diagram . . . where he did everything and what order he did it in and then . .

. had him sign off on it.” Agent Greenwood testified that the [petitioner] did

not appear sleep-deprived or intoxicated during the interview.

On cross-examination, Agent Greenwood acknowledged that he was

not aware that, when the [petitioner] was admitted to the hospital earlier that

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morning, he had a .16 blood alcohol content.1 He testified that the [petitioner]

had “a burn on his nose and a burn on one of his arms.” Agent Greenwood

stated that the [petitioner] did not complain and did not appear to be suffering

from any pain during the interview. He also noted that the [petitioner] seemed

fairly calm during the interview.

Agent Whittaker’s testimony was substantially similar to that of Agent

Greenwood. Agent Whittaker interviewed the [petitioner] immediately before

he confessed. He said, “[T]he [petitioner] started out by saying he had

nothing to do with it, then he became emotional, started crying and said he did

it.” He testified that the [petitioner] did not appear “too intoxicated” or “too

sleep deprived” to “know what he was doing.” Agent Whittaker hand-wrote

the [petitioner]’s statement and, along with Agent Greenwood, reviewed the

accuracy of the statement with the [petitioner].

On cross-examination, Agent Whittaker noted that the [petitioner]

never fell asleep during the course of the interview. The [petitioner] only

complained that he needed an inhaler, and Agent Whittaker attempted to

arrange for an inhaler. He admitted that no video or audio recordings existed

of the interview.

The [petitioner] testified in the suppression hearing that, after the fire,

he was taken to the hospital for “[s]moke inhalation and . . . second degree

burns on [his] arm and on [his] face and [his] nose and [his] cheek” but that

he refused any medication from the hospital. He was released from the

hospital at approximately 6:05 a.m. He then returned to the scene of the fire.

He testified that he and his roommate, Mr. Tracey, left the scene for

approximately one and a half to two hours. During this time, the [petitioner]

testified that he purchased alcohol. He purchased a 40-ounce beer to “slam

down” to “calm [his] nerves,” then returned to the scene.

The [petitioner] testified that he had been drinking alcohol “[a]ll day”

on August 7 prior to the fire. He said, “I started drinking around 9:30 or

10:00 that morning, so I was pretty drunk.”

The [petitioner] estimated that he was taken to the Sheriff's Department

at 1:30 or 2:00 p.m. on August 8. He testified that he did not remember much

1

Although defense counsel asked this question, he never presented any evidence during the motion

hearing to establish that the [petitioner], in fact, had a .16 blood alcohol concentration at the hospital.

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of his interview with law enforcement officers. He said, “I don’t remember

really too much of anything from that night until the next morning when I

woke up or afternoon. I didn’t have no sleep for almost thirty six hours.” On

cross-examination, he clarified that he had slept from 12:00 or 1:00 a.m. until

6:30 or 7:00 a.m. on August 7, and he briefly slept from approximately 10:30

p.m. the night of August 7 until the fire woke him around 12:00 a.m. on

August 8. The [petitioner] testified that he only remembered discussing a gas

can during the interview. When asked why he could not remember, he

responded, “It was very little sleep, I mean . . . I slept with my girlfriend nine

years and everything. And I walked out with a pair of shorts. I tried to go

back and get her, I mean . . . being burned I in my mind was just kind of stuck

somewhere else.” He said that, during the interview with the agents, “[he]

wasn’t intoxicated, trashed intoxicated. But . . . [he] slammed that forty

[ounce beer] pretty quick.”

On cross-examination, the [petitioner] stated that he had not met or

encountered Agents Greenwood and Whittaker prior to August 8. He

explained that he worked as a painter and, on August 7, the day leading to the

fire, he had “a job” at 7:45 a.m. He stated that he would drink during his jobs.

He testified, “I usually brought a couple of beers with me and leave [the

victim] some. We’d usually leave around 11:00, 11:30, I’d bring up another

twelve-pack and bring it to her, sit there and have another couple of beers.”

He described himself as a “heavy drinker” of 14 years. The [petitioner]

explained that he could drink “a couple of beers and . . . have a buzz and hide

it, not be staggering around and slurring [his] words, but still be buzzed.” He

could drink a six-pack of beer and perform his job as a painter.

The [petitioner] stated that he did not eat breakfast or lunch on August

7, and he only “nibbled” at dinner. He said, “We went home around 11:00

[a.m.], brought our beer, I started drinking more . . ., we went back to the job,

. . . we sat there for about an hour drinking more beer, packing our tools up.

I didn’t even go back, I didn’t even work after that, I just went in and packed

up my tools and left [be]cause I had too much of a buzz.” He testified that he

fell asleep on the couch around 11:00 p.m. He maintained that he did not set

the fire.

The [petitioner] rode in a law enforcement vehicle to the Sheriff’s

Department for questioning. He stated that he did not feel he was “free to

leave,” and he explained, “[W]hen I first got there I asked if I could go out

and have a cigarette, they wouldn’t let me go out unless somebody went with

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me. I couldn’t go to the bathroom unless one of the detectives went with me.”

The [petitioner] testified that, although he had not been formally charged with

any crime, he thought he was under arrest at the time of the interview.

When confronted with the written statement of his confession, the

[petitioner] said, “It’s a statement but I’m not saying that’s what I said.” He

acknowledged that he signed the statement and the diagram of the trailer. The

[petitioner] testified that he was basically “blacked out” when he gave his

statement to the agents. He only remembered mentioning about a gas can

because “[he] had a gas can sitting out by the trailer, with no gas in it usually.

[Because] Steve used it, too. There was an RV the owner of the, the landlord

had, and Steve had a tendency of running over there and ciphoning [sic] gas

out of it.”

At the close of the hearing, defense counsel argued, “The entire facts

taken together . . . indicates under the law that the statement that he gave was

not voluntary and should be suppressed.” The trial court noted that “factors

that the court is to consider [are] the characteristics of the [petitioner], his age,

intelligence, mental condition, physical condition, criminal experience,

background, the length of interrogation. . . . And the court in this case has

looked at and considered all these factors.” The trial court credited the agents’

testimony about the [petitioner]’s sobriety and demeanor and noted that the

statement at issue was “very detailed . . . about what happened.” The trial

court also found the [petitioner]’s testimony not credible, and it denied the

[petitioner]’s motion to suppress. In a written order, the trial court found that

“[petitioner]’s statement given to the investigators on August 7, 2005[,] was

given knowingly, voluntarily, and intelligently, and is therefore admissible.”

Trial

At trial, the State first called Beulah Jean Thompson, the victim’s

mother. She testified that the victim was 32 years old at the time of her death.

She stated that the victim had dated the [petitioner] for nine years, and they

had lived at trailer “number C” at Shag Rag Road for four or five months

before the victim’s death. She last spoke with the victim at 9:58 p.m. on

August 7, 2005. She testified, “I was supposed to go over and pick [the

victim] up the next day after work, at 11:00, to take her over to my place,

because she was leaving [the petitioner].” However, she received notice that

her daughter had died at 2:00 a.m. that morning.

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Kenneth Winningham was a neighbor of the [petitioner] and the victim.

He testified that he was in his bedroom with a toothache when he “[saw] this

big flash and hear[d] a big racket.” He stuck his head out his window and saw

the trailer on fire. He said, “On the front side of it, it was really blazing really

bad,” describing the living room area of the trailer. Mr. Winningham then ran

outside toward the burning trailer. He saw the [petitioner] in the back yard,

and he saw Mr. Tracey across the road on “a little graveled road that goes into

the trailer park.” Mr. Winningham “asked [the petitioner] where [the victim]

was at, and he said his baby was gone. But the fire was blazing so high, . . .

if she was up in that part of the house, she was gone.”

Mr. Winningham then ran to the front yard of the trailer, and when he

returned, Mr. Winningham’s roommate, Anthony Moon, was speaking with

the [petitioner]. Mr. Winningham testified that the [petitioner] said to Mr.

Moon, “Why did I do it?” Mr. Winningham did not see the [petitioner]

attempt to run back into the trailer, although he asked the [petitioner] about

saving the victim several times. After the fire department arrived, he did not

see the [petitioner] again that evening, but he thought “the arresting officers

took [the petitioner] out of there.”

The following morning, the [petitioner] stopped by Mr. Winningham’s

trailer and asked to leave a bag of clothes at his trailer. Mr. Winningham

testified that the [petitioner]’s demeanor was “[j]ust calm.” He testified,

“[The petitioner] said that, if a shorted wire or something or another, burned

the trailer, he was going to sue the trailer park, or something or another, like

in that coloration.”

On cross-examination, Mr. Winningham stated that he was not on any

medication for his toothache that evening and that he had not been drinking

alcohol. He clarified that he stayed at the scene of the fire until the fire

department arrived.

Michael Keith testified that he had worked as a firefighter for 22 years,

and he was employed with the Murfreesboro Fire Department and volunteered

with the Putnam County Fire Department. When he first got to the scene at

Shag Rag Road, he saw a single-wide mobile home, “approximately

three-quarters involved in fire, with fire coming from the remainder of the

other quarter, which was pretty much involved also.” Mr. Keith described the

trailer as “free burning” – the “worst” stage of a fire. From the outside of the

trailer, he could see the victim’s body in what he assumed was a bedroom.

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The victim’s body was found “where the least amount of fire was.” He

encountered the [petitioner] at the scene, who informed him that his girlfriend

was in the trailer. On cross-examination, Mr. Keith stated that the [petitioner]

had to be restrained by Sheriff’s deputies to prevent him from running back

into the trailer.

William Smith testified that he owned the trailer at Shag Rag Road that

burned down in August 2005. He owned the trailer park, which was named

“Woodland Trailer Park.” He testified that the victim had rented the trailer

from him on April 2, 2005, and that she paid rent for the trailer. Mr. Smith

testified that he did not give the [petitioner], nor anyone else, permission to

burn his trailer on Shag Rag Road.

Scott Greenwood testified at the trial. By the trial date, Agent

Greenwood had left the Tennessee Bomb and Arson Section and joined CSX

Transportation as a railroad detective. Agent Greenwood’s testimony

consisted largely of the same testimony given at the suppression hearing.

Agent Greenwood also testified about his examination of the crime

scene after the fire had been put out. He found the victim lying on the floor.

He said, “I believe her head was at about the foot of the bed . . . or next to the

bed, and her feet were towards the head of the bed. . . . [The body] was

burned pretty badly. You . . . could still tell it was a body, but a lot of hair was

burned off. It was in pretty bad condition.” Agent Greenwood observed

“pour pattern[s]” both on the trailer’s living room floor and the kitchen

cabinets. He examined the residence for any accidental causes of fire, such

as electrical wiring, however “[a]ll of the fire patterns led [him] right back

into the floor.” Agent Greenwood found holes burned through the floor,

which indicated that a liquid accelerant had been poured and ignited in the

area. He also observed a “rainbow” in a puddle of water on the burnt floor,

which also indicated the use of an accelerant. He took a sample from the floor

to send to the Tennessee Bureau of Investigation (“TBI”) crime laboratory for

analysis. In the kitchen, he found evidence that cooking oil had been poured

as an accelerant. Agent Greenwood also found an empty gas can outside the

trailer’s front door, and he testified that the [petitioner] indicated that he used

that gas can to start the fire. He testified that he called Special Agent Robert

Watson from Knoxville to examine the scene with his trained dog.

Agent Greenwood testified that he went to the Sheriff’s Department

after his investigation of the scene. He interviewed Mr. Tracey for

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approximately four hours, then Agent Whittaker interrupted this interview to

inform him that the [petitioner] had confessed. Agent Greenwood testified

that the [petitioner] said that he was upset with his financial situation and

burned down the trailer. The [petitioner] said that he “was sitting on the

couch and took a lighter, leaned over in the floor and struck the lighter, and

when he did, the flames flashed up on him and burned his arm and burned him

on the nose.” Agent Greenwood posited that the [petitioner]’s confession was

consistent with the burn patterns that he observed.

On cross-examination, Agent Greenwood stated that he was aware that

the [petitioner] had stated to another agent that he did not start the fire. He

described the [petitioner]’s demeanor during the interview as “just kind of .

. . he seemed calm. He didn’t . . . seem real upset about . . . what he was

telling me.” He admitted that he was aware that the [petitioner] had been

awake for “quite a period of time” but maintained that the [petitioner] never

indicated that he was tired. He also stated that he was aware that the

[petitioner] worked as a painter and kept paint thinner – which can be used as

an accelerant – in the trailer.

Agent Whittaker also testified to facts substantially similar to those he

presented during the suppression hearing. He explained that he was assigned

to assist Agent Greenwood with the investigation and that he was speaking

with the [petitioner] when he confessed. He said, “Basically we sat down and

started talking about the fire, and [the petitioner] broke down and started

explaining that he had set the fire.” He stated that the [petitioner] “became

emotional.” Agent Whittaker had spoken with the [petitioner] for five to ten

minutes when he “broke down,” and, at that point, Agent Whittaker stopped

the [petitioner] and found Agent Greenwood. The State introduced the

[petitioner]’s written statement into evidence through Agent Whittaker’s

testimony and presented it to the jury.

Agent Robert Watson of the Bomb and Arson Section testified that he

was a certified fire investigator and handler of a hydrocarbon-detection dog.

He testified that he had been with his dog since 2000, and he had taken her to

“hundreds” of fire scenes. He “works” his dog 365 days a year, and he said,

“There are 2730 some odd distractors that she had been checked off on.”

Agent Watson testified that he arrived at the scene per Agent Greenwood’s

request. His dog “alerted in two different areas, indicating . . . that there was

an ignitable liquid in the floor area.” He cut samples from the floor where the

dog alerted for later analysis by the TBI. On cross-examination, Agent

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Watson clarified that his dog was not trained to alert on “accelerants,” but she

was trained to alert on “hydrocarbon,” which is a component of an ignitable

and/or combustible liquid.

Agent Randall Kirk Nelson of the microanalysis unit of the TBI crime

laboratory analyzed the fire debris to identify the presence of any ignitable

liquids. He stated that the sample provided by Agent Greenwood “revealed

the presence of turpenes, which are present in turpentine and occur naturally

in some wood products.” However, he found that the samples from Agent

Watson “revealed the presence of an evaporating gasoline-range product.

Products in this range include all brands and grades of automotive fuels,

including gasohol.” He explained that this “evaporating gasoline-range

product” could not be paint thinner, because, although an accelerant, paint

thinner is a wholly different classification.

Doctor Amy R. McMaster testified that she was an employee of

Forensic Medical, the company hired to perform the autopsy on the victim.

Doctor Wayne Kurz, a training physician, performed the autopsy under Doctor

McMaster’s supervision. She stated, “The cause of death is officially listed

as smoke inhalation and thermal injuries.” She testified that Doctor Kurz

“estimated . . . about 90 percent of [the victim’s] total body surface area was

burned.” The victim had “[f]ull thickness burns” that were located “down the

entire depth of the skin and sometimes even deeper.” Doctor McMaster

testified that “soot” was found in the victim’s airway, “which is evidence of

smoke inhalation.” She explained that the victim “was alive and breathing at

the time the fire was going.” A test of the victim’s blood showed a 94 percent

carbon monoxide level. Doctor McMaster testified that the average healthy

adult maintains a carbon monoxide level of less than five percent and that the

victim’s elevated carbon monoxide level indicated significant soot or smoke

inhalation.

Doctor McMaster also testified that the victim had a .28 percent blood

alcohol concentration. The victim also had tetrahydrocannabinol (THC) and

carboxy THC in her blood. Other drugs in the victim’s system included

promethazine (used for nausea, vomiting, and as a sedative), olanzapine (used

as an antipsychotic drug for bipolar and schizophrenia), and noratriptyline, a

metabolite of amitriptyline (used as an antidepressant). She stated that these

drugs did not contribute to the victim’s death. On cross-examination, she

stated that all of the legal drugs found in the victim’s blood, except the

olanzapine, were “within the therapeutic range.”

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The sole defense witness was Sandra Garza, who lived at trailer “J” in

the trailer park. She testified that, on the night of the fire, she “had been out

kind of late.” She stated, “When I got back in, ten, or maybe even less than

ten minutes, [the petitioner] came to my door and knocked on it. I didn’t want

to open because it was late, and it scared me, because he knocked really hard

on the door. And I asked who it was, and he said, ‘It’s your neighbor.’ . . . I

went ahead and opened the door.” She stated that the [petitioner]’s “hair . .

. was kind of wild, and he was dirty.” The [petitioner] asked her for a fire

extinguisher, but she did not have one. Ms. Garza testified that the

[petitioner] was “really desperate” and that “he left running.” She “looked at

his trailer, and [she] saw that flames were coming out of the door and

window.” She testified that the [petitioner] ran toward the front of the

burning trailer. Ms. Garza stated that “all” of the neighbors were outside.

Before the fire department arrived, she saw the [petitioner] “was trying to get

back in, and he was shouting . . . his wife was inside” while the neighbors

held him back. Ms. Garza testified that the police never approached her to

speak about the events of that night.

Id. at *1-8.

The petitioner filed a pro se petition for post-conviction relief on May 21, 2010, and,

after the appointment of counsel, an amended petition was filed. In his petitions, the

petitioner raised numerous allegations of ineffective assistance of counsel, as well as a free-

standing constitutional claim that he was denied the right to trial by a fair and impartial jury.

The post-conviction court conducted an evidentiary hearing, at which Cynthia Sullivan, a

custodian of records for Cookeville Regional Medical Center, presented the petitioner’s

hospital medical records from August 8, 2005. Likewise, Tommy Copeland of the Putnam

County Emergency Medical Services (“EMS”) presented the petitioner’s EMS records from

August 8, 2005.

Dr. James William Mullen testified that he treated the petitioner in the emergency

room (“ER”) of Cookeville Regional Medical Center on August 8, 2005. Dr. Mullen said

that the petitioner arrived around 2:10 a.m. and was discharged at 6:15 a.m. The petitioner

was brought to the hospital due to “difficulty in breathing and exposure to smoke and

flame.” The petitioner had a blood alcohol level of .16 when he arrived. The petitioner was

hyperventilating, for which he was given a breathing treatment in the ER, in addition to two

treatments he received before arriving at the hospital. He was prescribed an inhaler and

antibiotics at discharge. Dr. Mullen recalled that he was able to communicate with the

petitioner about his condition and treatment, and the petitioner appeared to have no problem

understanding the doctor or following his directions.

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Jason Sparks, a paramedic with Putnam County EMS, testified that he responded to

the burning house trailer around 1:00 a.m. on August 8, 2005. Sparks stated that he noted

in his report that the petitioner tried to re-enter the trailer to get the victim, who was still

inside. He also noted in his report that the petitioner “was very upset and had to be

restrained with handcuffs.” Sparks said that he did not recall an odor of gasoline on the

petitioner. He recalled that the petitioner initially refused treatment and transport to the

hospital but eventually agreed to both.

Randy Brown of the Putnam County Sheriff’s Department testified that he responded

to the scene of the fire but did not recall much of what occurred. After reviewing his report,

Brown recalled that he had to restrain the petitioner at some point from trying to go back

into the burning trailer.

The petitioner testified that counsel did not introduce his medical records or call any

medical personnel at the suppression hearing to testify that the petitioner had a .16 blood

alcohol concentration although he discussed it with counsel “numerous times.” Counsel

never told the petitioner how he was going to proceed and, instead, kept focusing on the

statement the petitioner had given to police. The petitioner wanted counsel to put on

evidence of his intoxication, injuries, and sleep-deprived state in support of suppression of

his statement. Counsel also did not put on any evidence at trial about the petitioner having

to be restrained from going back into the burning trailer. Counsel did not offer any evidence

at trial to show the jury that the petitioner’s statement should not be believed.

The petitioner stated that he gave three other statements after he left the hospital in

which he denied setting the fire. He talked to counsel about putting those other statements

into proof, but counsel never did so. The petitioner discussed with counsel obtaining an

expert to determine the cause of the fire or help him prepare for cross-examination of the

State’s witnesses, but counsel told him that getting an expert “would be a waste of time

because of the statement.” The petitioner said that counsel was deficient in his cross-

examination of one of the State’s witnesses about the use of an accelerant, “pour patterns,”

and “char.” Counsel also did not question another witness concerning why two samples

from the fire scene were not taken to the Tennessee Bureau of Investigation (“TBI”) crime

laboratory for testing until almost three weeks later.

The petitioner testified that, after he was released from the hospital at 6:15 a.m., he

took a taxi back to the trailer park. He gave statements to three different people at the trailer

park, denying that he had set the fire in each of them. He left the scene that afternoon

around 1:00 p.m. to have his prescriptions filled, and he drank a 40-ounce beer while he was

out at approximately 1:15 or 1:30. He was then taken to the criminal justice center around

2:00 or 2:30. He had not slept all day and was tired. Later, he gave a statement to Agent

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Whittaker.

The petitioner testified that counsel questioned Agent Whittaker at trial about the

petitioner’s lack of sleep and demeanor, but he did not “push[] the fact that” the petitioner

was not given his inhaler or bring up exactly how long the petitioner had gone without sleep.

Counsel did not question Agent Whittaker at trial concerning Whittaker’s testimony at the

suppression hearing that the petitioner “was very emotional and . . . told him [he] needed

[his] inhaler.”

The petitioner testified that counsel’s closing argument at trial was against his interest

because counsel “was more worried about pointing out the fact that [the petitioner] didn’t

intend to hurt [the victim] or kill her than trying to disprove the arson,” and intent to kill the

victim was irrelevant to a felony murder charge. Counsel failed to argue to the jury in

closing or at the motion to suppress the voluntariness of the petitioner’s statement and that

he had given other statements prior to drinking the 40-ounce beer.

The petitioner testified that counsel, in a very short opening statement, did not

mention that the petitioner’s statement to police was not voluntary, that there was a delay in

the lab results, or mention the issues concerning testimony about the use of an accelerant.

He stated that counsel did not think that one juror needed to be removed from the jury after

the juror’s acquaintance with the victim’s brother was brought out, even though the

petitioner felt otherwise. The petitioner said that counsel did not question any of the

witnesses about whether the petitioner had an odor of gasoline about him.

On cross-examination, the petitioner acknowledged that he testified at the suppression

hearing concerning his state when he gave the statement and that an officer testified

concerning the petitioner’s blood alcohol concentration at the hospital. He admitted that he

had no problem communicating with the doctor at the hospital and understanding his

instructions and that the only thing that occurred between that time and his later statement

to police was his drinking a 40-ounce beer. He acknowledged that one of his neighbors

testified on his behalf at trial that he was distraught and upset at the time of the fire. The

petitioner acknowledged that the trial judge made the final decision to not remove the juror,

having determined that the juror could be fair.

Counsel testified that proof of the petitioner’s intoxication came in through testimony

of one of the police officers. In addition, the petitioner said in his statements that he was not

drunk so counsel was not going to “put somebody on the stand that says he’s intoxicated

when he’s saying all during the hearing he’s not drunk[.]” Counsel said that he did not

subpoena anyone to testify that the petitioner tried to go back into the burning trailer because

he “found no evidence of that[.]” He did not think that any report from Officer Brown

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saying that the petitioner was handcuffed to keep him from entering the burning trailer “was

necessary to show to a jury as part of the trial tactics.” Counsel denied that the petitioner

asked him to subpoena any doctors, nurses, EMS workers, or reporting officers.

Asked about his arguing in closing that the petitioner did not intend to kill the victim,

counsel explained that he “argue[d] plain old common sense . . . that [the petitioner] didn’t

intend to do anything . . . that night as it relates to killing her.” Counsel testified that he did

not recall the petitioner’s asking him to obtain an expert witness on the cause of the fire, nor

did he recall contacting any experts to help him with the arson reports. He acknowledged

that an expert would be helpful to assist in cross-examining the State’s witnesses where there

is an issue of what caused the fire, but he “wouldn’t say that [he] couldn’t properly cross-

examine them[.]” He did not see anything that he could take to the judge to say they needed

an expert because there was not an issue about whether it was an arson.

With regard to the juror issue, counsel testified that it would have been a “problem”

to have a juror who had played golf with the victim’s brother, but it was for the court to

decide. Counsel said that he prepared a witness list, which he discussed with the petitioner.

Counsel stated that it was a trial tactic to not bring up that the petitioner gave earlier

statements saying that he did not set the fire because bringing up the contradictory

statements would make it look to the jury like “you’re not telling the truth[.]” Counsel said

that he was relying on the petitioner’s being intoxicated for suppression of the statement, but

the petitioner got “on the stand[] and he said he wasn’t intoxicated. So . . . he kind of shot

himself in the foot there[.]”

Counsel testified that he was “certain” he would have investigated whether anyone

smelled gasoline on the petitioner that night but, noting that the petitioner was a painter by

trade and would have been around paint thinner and other products, “[y]ou might get an

answer you really didn’t want to get in that situation.” Counsel said that sleep deprivation

could have been an issue in whether the petitioner’s statement was voluntary, but he “felt

like alcoholism was more important[.]”

On cross-examination, counsel testified that he and the petitioner went over the list

of potential witnesses, and he attempted to locate all those witnesses but was only

successfully able to locate Ms. Garza, who testified that the petitioner was trying to get back

into the burning house trailer. Counsel said that, even after hearing Dr. Mullen’s testimony

at the evidentiary hearing, he did not believe it would have helped in any way at trial and

actually thought it could have hurt to emphasize the petitioner’s intoxication to such a great

extent. He also thought that Dr. Mullen’s testimony concerning the injuries the petitioner

suffered would have been consistent with injuries of someone who had just set a fire.

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Counsel stated that he was not aware of any expert opinion that would have helped

him in this case because the petitioner’s admission to starting the fire was consistent with

the testimony of the State’s witnesses. Counsel said that he cross-examined the witnesses

from the fire marshal’s office and, although he could not recall, was sure he would have

challenged the fire dog’s qualifications.

Agent Greg Whittaker, with the State of Tennessee Bomb and Arson Unit, testified

that he helped investigate the fire in this case. When he arrived to the scene, the fire had

already been extinguished. Asked if the home was destroyed, he stated that, from “an

investigator’s view, . . . the home was in pretty good shape.” He did not personally take any

samples or investigate the electrical system. Later that afternoon, Agent Whittaker, along

with Detective Burgess, interviewed the petitioner at the justice center. Agent Whittaker

acknowledged that, at trial, he testified that the petitioner’s demeanor was “‘Good’” during

the interview but had testified at the suppression hearing that the petitioner became

emotional and started crying. Agent Whittaker recalled that the petitioner became emotional

after he admitted to waking up and setting the fire, but he did not recall him crying.

Agent Whittaker stated that part of his job was to take samples from fires and that it

took anywhere from three days to two weeks to deliver the samples to the TBI crime lab.

He explained that, during the interim, the samples would be secured in an evidence locker

in the rear of his vehicle and that there would be no danger of contamination or evaporation

with the method of storage they used. He said that all of the other arson investigators

followed the same guidelines. He stated that he observed Agent Watson take the samples

in this case, but he did not specifically know where Agent Watson stored them.

Agent Whittaker testified that the electrical fixtures did not appear to be demolished

in the trailer, and he recalled another agent “working in the electrical from the area of origin

to the end of the home that was in the best condition, and there was no beading or any faulty

wiring found.” He explained that they determined the point of origin by looking at the area

that was most consumed when the fire department arrived on the scene. He acknowledged

that a fire could originate in an area other than the area of heaviest damage due to air drafts

or ventilation but said that, in this case, “it was evident that the fire had started on the

opposite end of the house from where the victim was found.” Asked whether he agreed with

the National Fire Association treatise concerning use of the phrase “pour pattern,” Agent

Whittaker said that he did not agree that the phrase “pour pattern” should be avoided.

Agent Scott Greenwood testified that he was the lead investigator in this case. He

recalled that the petitioner returned to the scene after he left the hospital and that some beer

had to be taken away from him. He said that the sample he took from the fire scene would

have been locked in the back of his car prior to transport to the crime lab. Agent Greenwood

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had no knowledge of what Agent Watson did with the samples he took at the same time or

why they were turned in to the lab so much later than Agent Greenwood’s. Agent

Greenwood said that the area of heaviest damage is generally where the fire originated, but

that is not always the case. He also said that the term “pour pattern” should not necessarily

be avoided and “was right on target” in this case. Agent Greenwood stated that he examined

the stove and the wiring in the entire house. He said that the petitioner confessed to pouring

gasoline on the living room floor, and “the fire pattern supported a fire starting in the living

room floor.”

Randall Nelson, a forensic scientist with the TBI crime lab, testified that he received

three samples in this case. He received the first sample from Agent Greenwood on August

10, 2005, and testing of it did not reveal any gasoline range product. The other two samples

were received from Agent Watson on August 29, 2005, even though they were listed as

having been taken on August 8, 2005. He had no knowledge of where the samples were

stored before they were brought to the lab. However, he said that the samples could be

stored for a significant period of time without damage if they were properly collected and

placed in an appropriate container. Moreover, he did not observe any damage to the air-tight

containers in which the samples were brought to him.

Nelson testified that analysis of both of the samples “revealed the presence of an

evaporated gasoline range product,” which included “all brands and grades of automotive

fuels, including gasohol.” Nelson said that it was not uncommon for one sample to be

negative and one sample to be positive even if they were taken from the same approximate

area. He also explained that Agent Watson’s samples were taken with the use of a scent-

dog, and dogs “have the ability to sniff out . . . those vapors really well.” He stated that it

did not concern him that samples two and three arrived twenty-one days after the first sample

because “these guys work out of different places, and . . . they don’t always come to

Nashville every day, and so it wouldn’t be unusual for someone to . . . bring their samples

in when they . . . have business in town.”

After the conclusion of the hearing, the post-conviction court entered a written order

in which it denied the petition on grounds that there was no showing that counsel’s

representation was constitutionally deficient or that there was a reasonable probability that

the result of the proceeding would have been different.

ANALYSIS

The petitioner argues he received the ineffective assistance of counsel, specifically

asserting that counsel rendered ineffective assistance by: (1) failing to request that a juror

be removed from the jury; (2) failing to present certain proof at the motion to suppress; (3)

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failing to present certain proof at trial; (4) failing to obtain an expert to aid in the cross-

examination of the State’s experts and failing to properly cross-examine said experts; (5)

failing to make a sufficient opening statement; and (6) failing to make a sufficient closing

argument and including an irrelevant statement concerning his lack of intent to kill in his

closing argument. He asserts that, if none of the above bases for relief entitle him to a new

trial, he is nevertheless entitled to a new trial due to the cumulative effect of counsel’s errors.

As an independent issue, the petitioner argues that he was denied his right to a trial by a fair

and impartial jury due to one juror’s remaining on the jury.

Post-conviction relief is available to a petitioner who establishes that his or her

conviction or sentence is void or voidable because of an abridgement of a constitutional

right. Tenn. Code Ann. § 40-30-103. The post-conviction petitioner bears the burden of

proving his allegations by clear and convincing evidence. Id. § 40-30-110(f). When an

evidentiary hearing is held in the post-conviction setting, the findings of fact made by the

post-conviction court “are entitled to substantial deference on appeal unless the evidence

preponderates against those findings.” Fields v. State, 40 S.W.3d 450, 456 (Tenn. 2001); see

also Tidwell v. State, 922 S.W.2d 497, 500 (Tenn. 1996). Where appellate review is of

purely factual issues, the appellate court should not reweigh or reevaluate the evidence. See

Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997). However, review of a post-conviction

court’s application of the law to the facts of the case 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, which presents mixed questions of fact and law, is reviewed de novo,

with a presumption of correctness given only to the post-conviction court’s findings of fact.

See Fields, 40 S.W.3d at 458; Burns v. State, 6 S.W.3d 453, 461 (Tenn. 1999).

I. Ineffective Assistance of Counsel

The right to effective assistance of counsel is safeguarded by the Constitutions of both

the United States and the State of Tennessee. See U.S. Const. Amend. VI; Tenn. Const. art.

I, § 9. Ordinarily, to establish that he was denied the effective assistance of counsel, the

petitioner has the burden to show both that trial counsel’s performance was deficient and that

counsel’s deficient performance prejudiced the outcome of the proceeding. Strickland v.

Washington, 466 U.S. 668, 687 (1984); see State v. Taylor, 968 S.W.2d 900, 905 (Tenn.

Crim. App. 1997) (noting that same standard for determining ineffective assistance of

counsel that is applied in federal cases also applies 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

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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.

The deficient performance prong of the test is satisfied by showing that “counsel’s

acts or omissions were so serious as to fall below an objective standard of reasonableness

under prevailing professional norms.” Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996)

(citing Strickland, 466 U.S. at 688; Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)). The

reviewing court must indulge a strong presumption that the conduct of counsel falls within

the range of reasonable professional assistance, see Strickland, 466 U.S. at 690, and may not

second-guess the tactical and strategic choices made by trial counsel unless those choices

were uninformed because of inadequate preparation. See Hellard v. State, 629 S.W.2d 4, 9

(Tenn. 1982). “The benchmark for judging any claim of ineffectiveness must be whether

counsel’s conduct so undermined the proper functioning of the adversarial process that the

trial cannot be relied on as having produced a just result.” Strickland, 466 U.S. at 686.

The prejudice prong of the Strickland test is satisfied by showing a reasonable

probability, i.e., 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.

Courts need not approach the Strickland test in a specific order or even “address both

components of the inquiry if the defendant makes an insufficient showing on one.” 466 U.S.

at 697; see also Goad, 938 S.W.2d at 370 (stating that “failure to prove either deficiency or

prejudice provides a sufficient basis to deny relief on the ineffective assistance claim”).

A. Removal of Juror

The record shows that, prior to the court’s lunch recess during trial, the court

instructed the jury, among other things, that it was not to talk with anyone about the case or

have contact with anyone “who might have some interest in the case[.]” After the recess,

one juror informed the court that he had run into a “casual” acquaintance during the break

and discovered that the acquaintance was the brother of the victim. The juror explained to

the court that he was acquainted with the victim’s brother because they had a mutual friend

and had gone golfing together one time three or four years prior. In response to questioning

by the court, the juror said that he and the victim’s brother had no conversation about the

case and that their acquaintance would have no bearing on his ability to decide the case

fairly and impartially. Counsel followed up with questions to confirm the attenuated nature

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of the acquaintance and that it would not impact the juror’s decision in the case.

The petitioner argues that he received the ineffective assistance of counsel due to

counsel’s failure to request that the juror be removed from the jury. As to this issue, the

post-conviction court found that “[t]here is no proof of any prejudice to petitioner resulting

from trial counsel’s failure to ask that the juror be removed.” We agree. The juror’s

acquaintance with the victim’s brother was casual and not ongoing. It was for the court to

decide whether the juror should remain on the panel, and, after questioning, the court

determined that the juror would be fair and impartial. There has been no proof offered to

show that the juror was anything but fair and impartial. The record supports the post-

conviction court’s determination.

B. Proof at Motion to Suppress

The petitioner argues that he received the ineffective assistance of counsel due to

counsel’s failure “to produce witnesses and documents” at his motion to suppress to show

that his statement was involuntary. Specifically, he asserts that proof of his .16 blood

alcohol content, as well as his “difficulty breathing” and “exposure to smoke” should have

been offered through testimony from Dr. Mullen, the treating emergency room physician.

He also asserts that Jason Sparks, a paramedic, should have been called to testify that the

petitioner “had burns to his body and was so upset [he] had to be restrained with handcuffs

from going back inside the burning trailer.” As detailed above, the petitioner offered

testimony from both of these individuals at the evidentiary hearing.

With regard to this issue, the post-conviction court found that “[n]othing presented

in the medical proof through the emergency room physician and the EMS records would

suggest that petitioner[’]s condition some twelve (12) hours after discharge from the

emergency room would have prevented him from voluntarily and knowingly giving his

confession.” Thus, the court concluded that “failure to call these medical personnel for the

suppression hearing was of no consequence [as] [t]heir testimony would not likely have

changed the ruling of the court on allowing the confession to be admitted.”

The record supports the post-conviction court’s determination. Dr. Mullen testified

at the evidentiary hearing that the petitioner’s blood alcohol content was .16 when he arrived

around 2:00 a.m., and he was discharged four hours later. The doctor said that he was able

to communicate with the petitioner about his condition and treatment and that the petitioner

appeared to have no problem understanding him or following his directions. There is simply

no proof from Dr. Mullen’s testimony or the EMS records that would suggest the

petitioner’s condition more than twelve hours after discharge from the emergency room and

sixteen hours after his blood alcohol content was tested would have prevented him from

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knowingly and voluntarily giving his statement of confession. In addition, counsel testified

at the evidentiary hearing that the petitioner testified at the suppression hearing that he was

not intoxicated, even though intoxication was the basis they were using to seek suppression.

Therefore, the petitioner undermined his own case for getting his statement suppressed,

making it even less probable that Dr. Mullen’s testimony or the EMS records would have

changed the outcome of the hearing.

We turn next to the petitioner’s assertion that testimony from Jason Sparks should

have been offered at the suppression hearing to show that he had to be restrained from going

back inside the burning trailer. The petitioner has failed to prove how this testimony would

have possibly changed the court’s decision concerning the voluntariness of the petitioner’s

statement, given approximately eighteen hours after the interaction with Sparks, especially

in light of testimony from Agent Greenwood that the petitioner appeared calm at the time

of the statement. Thus, we discern no prejudice caused by counsel’s failure “to produce

witnesses and documents” at the motion to suppress.

C. Proof at Trial

The petitioner argues that he received the ineffective assistance of counsel due to

counsel’s failure “to produce witnesses and documents at trial for the jury to consider.” He

asserts that testimony and records concerning his blood alcohol content and injuries should

have been presented to the jury for it to “consider . . . in the weight [it] gave to the

[petitioner]’s statement[.]” He also asserts that testimony from Jason Sparks, the paramedic,

and Officer Randy Brown should have been offered to show that he had to be restrained

from trying to get back into the burning trailer and that he did not smell of gasoline, which

“would have been important in the jury’s decision as to whether [the petitioner] caused the

fire.”

With regard to evidence concerning the petitioner’s blood alcohol content and

injuries, as determined above with regard to the motion to suppress, we do not see how such

evidence would have had any impact on the “weight” the jury gave to the petitioner’s

statement, which was given more than twelve hours after he left the hospital. Thus, the

petitioner has failed to show prejudice. With regard to counsel’s failure to call Sparks and

Officer Brown to testify concerning the petitioner’s having to be restrained, we likewise

discern no prejudice because evidence of such was offered through other witnesses. On

cross-examination, Michael Keith, a firefighter with the Murfreesboro Fire Department and

volunteer with the Putnam County Fire Department, testified that the petitioner “had to be

restrained by Sheriff’s deputies to prevent him from running back into the trailer.” Virga,

2009 WL 537560, at *5. In addition, Sandra Garza, one of the petitioner’s neighbors,

testified that, on the night of the fire, the petitioner, who was highly upset, knocked hard on

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her door, asking for a fire extinguisher, and that she also saw him trying to get back into the

burning trailer. Id. at *8.

D. Expert Witnesses

The petitioner argues that he received the ineffective assistance of counsel due to

counsel’s failure to properly cross-examine the State’s expert witnesses and failure to obtain

an expert to aid in cross-examination of the State’s expert witnesses. He asserts that counsel

needed guidance from a fire or arson expert in order to properly cross-examine the State’s

fire experts. Along the same lines, he asserts that several areas of the State’s fire experts’

testimony should have been questioned; namely, the delay in sending two of the samples

from the fire to the TBI for testing, other possibilities for the point of origin, when the

samples were taken in relation to the removal of ash and debris, use of the term “pour

pattern,” and indicators that an accelerant was used.

As to this issue, the post-conviction court found that the “petitioner did not present

any evidence which would call into question [the State’s experts’] findings and conclusions.

Again[,] counsel could have possibly asked more aggressive questions or presented an

expert to explain an opposing point of view, but this court does not believe failure to do so

was ineffective.”

At the evidentiary hearing, the petitioner questioned the State’s experts using

information from a National Fire Association publication about use of the term “pour

pattern” and indicators that an accelerant was used. The witnesses did not agree with post-

conviction counsel that the publication was authoritative, deeming it only an opinion, and

they explained why they believed an accelerant was used and why the term “pour pattern”

was on-point in this case. They also explained how the point of origin was determined. In

addition, the TBI scientist explained that it was not unusual for samples to arrive at the lab

some time after being taken from a scene. We simply cannot conclude that the petitioner has

established a reasonable probability that the outcome of the trial would have been different

had counsel conducted a more thorough cross-examination or hired an expert to assist him

in cross-examination. The State’s experts testified as to what caused the fire and their

reasons for reaching that conclusion, and the petitioner’s statement was consistent with the

experts’ findings. He has not presented a witness in the post-conviction proceeding to rebut

the State’s experts’ testimony.

E. Opening Statement

The petitioner argues that he received the ineffective assistance of counsel due to

counsel’s failure to make a sufficient opening statement to the jury. He asserts that, in

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addition to being very short, the opening statement was defective in that counsel did not

prepare the jury for it to consider reasonable doubt, did not “impress the jury with the

testimony that . . . could have been presented concerning the [petitioner]’s condition and

what [he] had been through prior to his statement,” did not suggest that the statement was

involuntary, referred to the statement as a confession, and did not “prepare the jury to

consider flaws in the State’s expert witnesses’ testimonies.” In support of his argument, the

petitioner relies on State v. Zimmerman, 823 S.W.2d 220 (Tenn. Crim. App. 1991).

We initially note that Zimmerman is distinguishable from the present case because

Zimmerman presented a situation where counsel promised the jury that the defendant would

testify in support of a certain defense, but the defendant did not testify and counsel

essentially abandoned a defense mid-trial. Id. at 225-26. Here, counsel’s opening statement

touched on the petitioner’s being awake for a long period of time prior to giving his

confession and his attempting to go back in the burning trailer to rescue the victim,

indicating his lack of an intent to kill the victim. Counsel’s opening statement, albeit short

and direct, was consistent with his theory of defense and informed the jury of evidence he

could prove. In addition, counsel’s referring to the petitioner’s statement as a “confession”

could reasonably be viewed as a trial tactic to lessen its impact on the jury. We cannot

conclude that counsel’s opening statement fell below an objective standard of

reasonableness or that there is a reasonable probability that the outcome of the trial would

have been different had a longer or more detailed opening statement been given.

F. Closing Argument

The petitioner argues that he received the ineffective assistance of counsel due to

counsel’s “failing to make a sufficient closing argument to the jury” and including an

irrelevant statement that the petitioner did not intend to kill the victim. The petitioner asserts

that counsel should have pointed out that there could have been another cause for the fire,

should have discussed the delay in the delivery of two of the samples to the TBI lab, and

should have talked about the petitioner’s condition at the time of his statement and why the

statement should not be given credibility. The petitioner also asserts that counsel argued

irrelevantly in closing that the petitioner did not intend to kill the victim, which had no

bearing on a felony murder charge.

We have reviewed the closing argument given by counsel and cannot determine that

the petitioner received the ineffective assistance of counsel in this regard. Although the

closing argument was perhaps not as thorough as the petitioner, in hindsight, would have

liked, counsel appealed to the jurors’ “common sense and humanity,” while also positing

another possible cause for the fire (that the victim may have started it while under the

influence and taking prescription medication) and reiterating how the petitioner tried to go

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back into the burning trailer. All of the evidence the petitioner wishes counsel had reiterated

during closing was before the jury, and we cannot conclude that a more extensive closing

argument would have changed the outcome of the proceeding.

We also cannot conclude that counsel rendered ineffective assistance with regard to

his closing argument concerning the petitioner’s intent. Counsel testified at the evidentiary

hearing that he “argue[d] plain old common sense . . . that [the petitioner] didn’t intend to

do anything . . . that night as it relates to killing her.” It appears that counsel’s strategy in

arguing such was to minimize the petitioner’s culpability in the minds of the jurors. In any

event, we cannot conclude that counsel’s closing argument negatively affected the outcome

of the trial. The jury heard proof at trial of the evidence of arson and that the petitioner

confessed to starting the fire. In light of such proof, we see no reasonable probability that

the outcome of the trial would have been different had counsel argued differently.

G. Cumulative Errors

The petitioner argues that he was denied the effective assistance of counsel due to the

cumulative effect of counsel’s errors. The petitioner is merely resubmitting the issues he has

already presented, and we respectfully disagree with his assertion that he is entitled to a new

trial based on cumulative error.

II. Trial by a Fair and Impartial Jury

The petitioner argues that he was denied the right to a fair and impartial jury because

of one juror’s remaining on the panel. He cites Hyatt v. State, 430 S.W.2d 129 (Tenn.

1967), in support of his assertion that he “was entitled to a jury that was free of even a

suspicion of bias and prejudice.” Hyatt involved a situation where a juror had past personal

experience with the defendant, which included the juror’s “‘procur[ing] a search warrant’”

against the defendant because the juror suspected the defendant was supplying the juror’s

son-in-law with whiskey. Id. at 129-130. The circumstances concerning the juror in the

present case differ drastically from those in Hyatt. Upon review, we fail to see the remotest

suggestion of a suspicion of bias and prejudice in the juror’s past, attenuated acquaintance

with the victim’s brother. The petitioner has not proven, by clear and convincing evidence,

that he was denied the right to a fair and impartial jury.

CONCLUSION

Based on the foregoing authorities and reasoning, we affirm the denial of the

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petitioner’s petition for post-conviction relief.

_________________________________

ALAN E. GLENN, JUDGE

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