Dennis Burnett v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs November 15, 2011

DENNIS BURNETT v. STATE OF TENNESSEE

Direct Appeal from the Criminal Court for Monroe County

No. 10143 Carroll L. Ross, Judge

No. E2011-00406-CCA-R3-PC-FILED-MAY 1, 2012

The petitioner, Dennis Burnett, appeals the Monroe County Criminal Court’s denial of post-

conviction relief from his second degree murder conviction. He argues that trial counsel was

ineffective in (1) failing to admit at trial a statement of an alleged witness who invoked the

Fifth Amendment upon being subpoenaed to testify; (2) advising the jury during voir dire that

he, trial counsel, had been previously indicted; (3) failing to respond to a judgment of

conviction belonging to Burnett’s co-defendant found in the jurors’ bathroom during trial;

(4) failing to adequately prepare Burnett to testify; (5) failing to investigate and call Michael

Gibson as a trial witness; and (6) failing to preserve issues in a motion for new trial thereby

securing review on direct appeal. Upon review, we affirm the judgment of the post-

conviction court.

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

C AMILLE R. M CM ULLEN, J., delivered the opinion of the court, in which J AMES C URWOOD

W ITT, J R., and D. K ELLY T HOMAS, J R., JJ., joined.

Richard Hughes, District Public Defender, Madisonville, Tennessee, for the Petitioner-

Appellant, Dennis Burnett.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Senior Counsel,

Assistant Attorney General; Robert Steven Bebb, District Attorney General; and James H.

Stutts, Assistant District Attorney General, for the Appellee, State of Tennessee.

OPINION

Background. Burnett and his co-defendant, Spencer Coon, accused the victim,

Thomas Ratti, also known as “Yankee,” of stealing from them. A physical confrontation

arose regarding the alleged theft which led to the victim’s death. The victim died primarily

as a result of blunt force injuries to the body and asphyxia. The victim’s mouth had been

tightly gagged with duct tape which caused the asphyxia, and his other injuries were inflicted

by either a baseball bat or the barrel or handle of a gun. The defendants were indicted and

tried together. Each defendant accused the other of killing the victim. Burnett was convicted

of second degree murder, and Coon was acquitted. See State v. Dennis Burnett, No. E2007-

02258-CCA-MR3-CD, 2009 WL 2503448, at *1-6 (Tenn. Crim. App., at Knoxville, Aug.

14, 2009), perm. app. denied (Tenn. Mar. 1, 2010).

The proof at trial showed that Burnett and Coon provided statements to law

enforcement with differing accounts of what happened after the fight with the victim. In

Coon’s statement, Coon admitted that he and Burnett hit the victim. However, Coon

explained that after the fight, Burnett hit the victim “‘right between the eyes with a pistol.’”

Id. at 2. Coon described it as “‘a pretty good blow. [The victim’s] head busted open and

started bleeding[.]” Coon told Burnett where to “dump the body” but insisted that the victim

was still alive at that time. Coon testified at trial consistently with the above statement and

further explained that after the fight, he had “no idea that Burnett would do anything else to

the victim.” Coon further claimed that Burnett later told him that he, Burnett, had killed the

victim.

In Burnett’s first statement to authorities, he affirmed that he knew the victim, referred

to the incident explained by Coon above as the “‘red truck incident[,]’”and said that he saw

the victim at a Walmart a few days after the incident. In Burnett’s second statement,

provided to authorities two days after the first, Burnett said that he saw Coon and the victim

inside of Coon’s truck. Burnett said that when he confronted the victim about the theft, Coon

began to fight the victim. Burnett told agents that Coon said “if [Burnett] told anyone what

happened that day, he would duct tape him, Burnett, to a tree, make him watch as he burned

his family up in their house.” Burnett told agents that he then saw Coon “‘taking a tarp or

carpet or blue duct tape out of [Coon’s] red pickup truck.” At this point, Burnett believed

the victim was dead. Burnett said that some time later, Coon gave him some knives that the

victim had supposedly stolen from Burnett’s home. Burnett also reported that Coon said that

“‘he had put the body in a septic tank or a tank of some type at a place where a house used

to be and that no one would find [the body].”

Burnett testified consistently with his second statement at trial. He added that while

Coon was beating the victim, the victim asked for help which Burnett declined to provide.

Burnett further stated that Coon eventually began to beat the victim with a baseball bat and

after several blows Coon “‘jumped up in the air, [and] came down on [the victim’s chest]

with his knees” or “stomped on [the victim’s] throat.” Burnett said Coon told him to tell the

victim’s girlfriend that the victim had left town. Coon also reportedly told Burnett to tell

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someone who owed the victim money, that “his troubles are over. His debts are paid.

Whatever [the victim had] done to him, it’s clear.”

The following proof is also pertinent to this appeal:

Ronnie Walden testified that he, Burnett, and Coon were inmates at the

Monroe County Jail in October 2003. Walden gave a statement to Agent

Brakebill, which was read into the record, recalling how he overheard Coon

tell another inmate “a story about what really happened during the murder of

[the victim].” According to Walden, before the victim’s death Coon gave

Burnett an ultimatum: confront the victim about a stolen ring, “or [Coon] was

going to believe that [Burnett] had stole[n] a diamond ring from [Coon].”

Burnett and Coon then confronted the victim, with Burnett asking the victim

questions about the supposed theft, but before the victim could respond, Coon

began hitting the victim. Coon then asked for duct tape and a baseball bat.

According to Walden, Coon said that he hit the victim “several times” with the

bat and told the victim that “this was his last chance to give it up.” Coon then

duct taped the victim and asked “somebody,” not necessarily Burnett, to search

the victim for the ring. “Somebody” found the ring on the victim, and then

Coon “just went off and came down on [the victim’s] chest with his knees.”

According to Walden, Coon then said that he “blacked out and didn’t

remember much after that ... the next thing he remember[ed][was] that he was

wrapping the body in the tarp.” Walden told Agent Brakebill that Coon

dumped the victim’s body.

James Walker acknowledged that he gave a statement to a TBI agent

recounting conversations he and Coon had while they were inmates in the

Blount County Jail. In the statement, Walker said that Coon had told him that

while Coon “was on the run because of some meth charges, he and a guy

named Burnett were involved in beating a TBI [a]gent to death. I’m not sure

if Burnett took part in the beating or not.” According to Walker, Coon said

that both he and Burnett dumped the agent’s body in a cistern. Coon told

Walker that “Burnett was going around town bragging to people that they had

killed an agent, and that [Coon] was going to kill Burnett too for talking.”

Walker also said that Coon “was concerned about a second body, but they

moved him before I could talk to him more about that.”

Id. at *4.

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Following Burnett’s conviction for second degree murder, he filed a timely motion

for new trial, which was denied. In his direct appeal, Burnett raised several issues that were

not explicitly preserved by his motion for new trial. The trial record showed that the new

trial motion was timely filed; however, it contained no issues whatsoever. This court deemed

Burnett’s issues waived for purposes of the direct appeal. Id. at *6. Nevertheless, upon

review of Burnett’s claims for plain error, we discerned no error and affirmed the judgment

of the trial court. Id. at *14.

Burnett filed a pro se petition for post-conviction relief. The post-conviction court

appointed counsel and held an evidentiary hearing on the matter.1 At the beginning of the

evidentiary hearing, the State objected to matters not specifically addressed in the petitioner’s

pro se petition because it had not received an amended petition or notice from post-

conviction counsel that there would not be an amended petition. The post-conviction court

proceeded with the hearing, noting that no new issues were mentioned in defense counsel’s

opening remarks.

At the hearing, Burnett testified that he was released on bail before trial and received

various papers from counsel regarding this case. Although Burnett met with counsel on

several occasions before trial, Burnett said they did not discuss his case. Burnett claimed that

he did not receive all the discovery in his case before trial, and that he and counsel never

reviewed the discovery together. The night before trial, however, Burnett reviewed his trial

testimony with counsel for approximately nine hours. Burnett acknowledged that he had

given a statement to Tennessee Bureau of Investigation (TBI) Agent Barry Brakebill, and he

reviewed the statement with counsel before trial. Burnett also recalled talking with Detective

Mack Williams of the Monroe County Sheriff’s Department and providing a recorded

statement. Finally, Burnett recalled talking with TBI Agent Malcolm Elrod after Elrod

administered a polygraph test, but he did not realize it was a “statement.” Before trial,

Burnett did not see a written version of the statement he gave Elrod.

Burnett testified that he asked counsel to speak with a number of witnesses before

trial, including Michael Gibson and Randall Bledsoe. Burnett believed Gibson witnessed

1

Tenn. Sup. Ct. R. 28 requires appointed or retained counsel “to review the pro se petition, file an

amended petition asserting other claims which petitioner arguably has or a written notice that no amended

petition will be filed, interview relevant witnesses, including petitioner and prior counsel, and diligently

investigate and present all reasonable claims. Section 6(C)(2) of the rule further requires counsel to file a

certification indicating that he or she has thoroughly investigated the possible constitutional violations, has

discussed the possible constitutional violations with the petitioner, and has raised all non-frivolous

constitutional grounds warranted by existing law or a good fair argument for the extension, modification, or

reversal of existing law. The record does not include an amended petition or certification of review of the

constitutional violations in this case.

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Coon beating the victim with a bat. Counsel told Burnett that he “went by [Gibson’s] house

two or three times and couldn’t find him at home.” Burnett testified that he and counsel

spoke with Bledsoe in the jail during a break on the first day of trial. They discussed a

statement that Bledsoe gave Agent Brakebill in which Bledsoe said he, Bledsoe, helped Coon

remove the victim’s body. Counsel subpoenaed Bledsoe as a trial witness for Burnett, but

Bledsoe asserted his Fifth Amendment privilege and did not testify at trial.

Burnett testified that during trial, two pieces of paper were discovered in the jurors’

restroom. The juror who found the papers did not read them. Counsel’s son brought the

papers to counsel during trial, took them into the bathroom, and later left the courthouse. The

papers were later determined to be portions of Coon’s certified copy of a federal conviction

from a prior case. Burnett recalled that counsel was concerned about his son getting in

trouble with the court and did not move either for a mistrial or for the replacement of the

juror who found the papers.

The papers left in the bathroom during trial were admitted as exhibit three to the post-

conviction hearing. The exhibit consists of two sheets of paper, which appear to be standard

forms with a number of check boxes and blank sections to be filled. Both identify Spencer

Coon as a defendant and are labeled as criminal judgments near the top of the page. The first

page bears the heading “Criminal Monetary Penalties” and states that a penalty of $400 is

assessed. The second page is entitled “Schedule of Payments” and requires that the money

be paid in a lump sum. Additionally on the second page, a box is checked denoting that three

firearms must be forfeited.

Burnett testified that trial counsel did not consult with him while counsel was

preparing his appeal and that additional legal issues should have been included in the appeal.

Burnett was also aware that counsel had been indicted prior to trial. On cross-examination,

Burnett acknowledged that he testified at trial. He additionally acknowledged that the papers

found in the jurors’ bathroom did not pertain to him or any legal proceedings in which he was

involved.

Counsel, a veteran criminal defense attorney, testified that he represented Burnett at

trial and on direct appeal. He received and reviewed the discovery in this case before trial.

Although counsel received the statements that Burnett gave law enforcement officers, he

could not recall reviewing Burnett’s first statement to law enforcement with Burnett before

trial. Counsel saw a transcript of Burnett’s statement to Detective Williams and received

Burnett’s second statement in discovery. Counsel testified that his usual practice was to

review all of a client’s statements before trial, but he “strongly suspect[ed]” that he did not

review the statements with Burnett.

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Although counsel attempted to interview Michael Gibson while Gibson was in the

hospital, Gibson’s mother refused to allow it. Counsel recalled that shortly before trial he

received a statement that Randall Bledsoe had provided to Agent Brakebill. In the statement,

Bledsoe “repeatedly recanted different fractions of his statements.” Bledsoe said that Coon

beat the victim to death and that Bledsoe helped dispose of the body. As a result, counsel

subpoenaed Bledsoe as a trial witness. Counsel confirmed that he interviewed Bledsoe, a

federal prisoner at the time, the morning before trial began, and Bledsoe “gave strongly

exonerating information.” Before counsel called Bledsoe to testify at trial, however, Bledsoe

asserted his Fifth Amendment privilege not to testify. Counsel testified that he did not

attempt to introduce the statement under an exception to the hearsay rule. He said, “I should

have done that, and I was wrong not to. And I . . . I should have had the wit to think of it

quickly.” Counsel also acknowledged that he did not proffer any proof concerning what

Bledsoe’s testimony would have been.

A copy of Bledsoe’s handwritten statement to law enforcement officers and a

typewritten transcript of the statement were admitted as exhibit five to the post-conviction

hearing. In the statement, Bledsoe described the events surrounding the homicide and the

disposal of the body. The handwritten statement is marked with notations indicating that

portions of the statement are not true, accompanied by the initials “RB.” The typewritten

transcript is interrupted on two occasions by a note from the law enforcement officer stating,

“Randall Bledsoe advised this agent that some parts of this statement were not truthful. This

agent advised Randall Bledsoe that we could start over. Randall Bledsoe then gave the

following statement.” After each of these interjections by the agent, Bledsoe began anew,

providing another account.

In the first account, Bledsoe went to Dwight Bright’s house to “make some dope.”

Bright offered Bledsoe drugs in exchange for cleaning blood off the floor and walls of

Bright’s garage, the result of a fight between Coon and the victim. Bledsoe cleaned the

garage. When he later encountered Coon, Coon told him that he had “pistol whipped [the

victim] to death” and that the victim’s body was in the trunk of Coon’s car.

In the second account, Bledsoe was present in Bright’s garage when Coon beat the

victim. Bright said that “Coon was taking care of a snitch for him.” Bledsoe cleaned the

garage, and Coon loaded the victim’s body in the back of a car. Bledsoe left, and Coon

returned to the house where Bledsoe was located. Coon requested Bledsoe’s help in

disposing of the body, but Bledsoe refused. Bledsoe heard the victim “banging in the car.”

Coon departed and then returned around 3:00 a.m., “bragging that he dumped the body in a

s--t house on some old farm.” Coon told Bledsoe that someone was with him, but Bledsoe

did not know who.

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In the third account, Bledsoe admitted to assisting Coon dispose of the body. He said

that he cleaned the garage while others put the body in a car. Coon forced Bledsoe, who

“was the littlest one there,” to help him. As Coon and Bledsoe drove toward the farm where

they disposed of the body, Bledsoe heard “kicking and scratching” in the back of the car. At

the farm, they “threw [the victim] down the hole in the sh-t house.” Coon then dropped

Bledsoe off. Bledsoe burned the clothes he had been wearing.

Counsel testified that at the time Burnett retained him, counsel had been indicted,

but the State later entered a nolle prosequi in January 2005. Counsel informed the jury

during voir dire that he had been indicted and that the charges were later dismissed. He

explained:

A jury trial . . . is a matter of impressions; how people assess what is and isn’t

true, because that’s what a jury is. It’s the finder of fact. If they – and that’s

why I brought that up and did so deliberately, because I knew that in the local

press, although the charges had been dismissed, my name had been . . . sullied.

. . . I don’t know the context of [the discussion of the charges during voir dire]

because I don’t remember, but the context probably was that an indictment is

read to a jury, and just because the State alleges something to be true doesn’t

make it true.

Counsel acknowledged that he did not ask during voir dire whether any of the prospective

jurors knew anything about counsel as an individual or about his indictment. He also did not

ask whether they had formed an opinion about him. Counsel testified that he could have

requested individual voir dire of anyone who indicated a previous knowledge of his situation.

Counsel testified that his son was responsible for leaving the documents found by the

juror in the bathroom. Counsel had requested that his son retrieve a certified copy of Coon’s

federal criminal conviction, and a portion of those documents was found in the bathroom.

Counsel’s son, when questioned by the trial court, said that he accidentally left the papers

there after he used the restroom. He was unaware that the bathroom was reserved for jurors.

Counsel was concerned at the time that the jury might believe the documents were a result

of counsel’s attempt to influence the jury. He did not, however, move for a mistrial or

request that the juror who found the documents be replaced.

On cross-examination, counsel testified that he “spent an appropriate and large

amount of time” preparing for trial, reviewing discovery materials, and consulting with

Burnett. Counsel acknowledged that the documents found in the bathroom did not relate to

Burnett.

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Following the evidentiary hearing, the post-conviction court filed a written order

denying Burnett’s petition. Burnett now appeals the court’s denial of post-conviction relief.

ANALYSIS

Standard of Review. Post-conviction relief is only warranted when a petitioner

establishes that his or her conviction is void or voidable because of an abridgement of a

constitutional right. T.C.A. § 40-30-103 (2006). The Tennessee Supreme Court has held:

A post-conviction court’s findings of fact are conclusive on appeal unless the

evidence preponderates otherwise. When reviewing factual issues, the

appellate court will not re-weigh or re-evaluate the evidence; moreover, factual

questions involving the credibility of witnesses or the weight of their testimony

are matters for the trial court to resolve. The appellate court’s review of a

legal issue, or of a mixed question of law or fact such as a claim of ineffective

assistance of counsel, is de novo with no presumption of correctness.

Vaughn v. State, 202 S.W.3d 106, 115 (Tenn. 2006) (internal quotation and citations

omitted). “The petitioner bears the burden of proving factual allegations in the petition for

post-conviction relief by clear and convincing evidence.” Id. (citing T.C.A. § 40-30-110(f);

Wiley v. State, 183 S.W.3d 317, 325 (Tenn. 2006)). Evidence is considered clear and

convincing when there is no serious or substantial doubt about the accuracy of the

conclusions drawn from it. Hicks v. State, 983 S.W.2d 240, 245 (Tenn. Crim. App. 1998)

(citing Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 n.3 (Tenn. 1992)).

Vaughn further repeated well-settled principles applicable to claims of ineffective

assistance of counsel:

The right of a person accused of a crime to representation by counsel

is guaranteed by both the Sixth Amendment to the United States Constitution

and article I, section 9, of the Tennessee Constitution. Both the United States

Supreme Court and this Court have recognized that this right to representation

encompasses the right to reasonably effective assistance, that is, within the

range of competence demanded of attorneys in criminal cases.

Vaughn, 202 S.W.3d at 116 (internal quotations and citations omitted).

In order to prevail on an ineffective assistance of counsel claim, the petitioner must

establish that (1) his lawyer’s performance was deficient and (2) the deficient performance

prejudiced the defense. Id. (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct.

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2052, 2064 (1984); Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)). “[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 v. State, 938 S.W.2d 363, 370 (Tenn. 1996) (citing Strickland, 466 U.S.

at 697, 104 S. Ct. at 2069).

A petitioner successfully demonstrates deficient performance when the clear and

convincing evidence proves that his attorney’s conduct fell below “an objective standard of

reasonableness under prevailing professional norms.” Id. at 369 (citing Strickland, 466 U.S.

at 688, 104 S. Ct. at 2065; Baxter, 523 S.W.2d at 936). Prejudice arising therefrom is

demonstrated once the petitioner establishes “a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.” Id. at 370.

“‘A reasonable probability is a probability sufficient to undermine confidence in the

outcome.’” Id. (quoting Strickland, 466 U.S. at 694, 104 S. Ct. at 2068).

We note that “[i]n evaluating an attorney’s performance, a reviewing court must be

highly deferential and should indulge a strong presumption that counsel’s conduct falls

within the wide range of reasonable professional assistance.” State v. Burns, 6 S.W.3d 453,

462 (Tenn. 1999) (citing Strickland, 466 U.S. at 689, 104 S. Ct. 2065). A court will defer

to counsel’s tactical or strategic choices as long as they are informed by adequate

preparation. Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982). Moreover, “[n]o particular set

of detailed rules for counsel’s conduct can satisfactorily take account of the variety of

circumstances faced by defense counsel or the range of legitimate decisions regarding how

best to represent a criminal defendant.” Strickland, 466 U.S. at 688-89, 104 S. Ct. at 2065.

The Post Conviction Procedures Act provides the specific requirements for all

petitions for post-conviction relief. See T. C. A. § 40-30-101, et. seq. Tennessee Code

Annotated section 40-30-106(d) states:

The petition must contain a clear and specific statement of all

grounds upon which relief is sought, including full disclosure of

the factual basis of those grounds. A bare allegation that a

constitutional right has been violated and mere conclusions of

law shall not be sufficient to warrant any further proceedings.

Failure to state a factual basis for the grounds alleged shall

result in immediate dismissal of the petition. If, however, the

petition was filed pro se, the judge may enter an order stating

that the petitioner must file an amended petition that complies

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with this section within fifteen (15) days or the petition will be

dismissed.

At the outset of this case, we are compelled to note that Burnett filed his petition for

post-conviction relief on the standard form provided by the State of Tennessee. This form

contains a list of several specific claims for relief, which is preceded by the following

instructions:

Specify every ground on which you claim that you are being

held unlawfully, by placing a check mark on the appropriate

line(s) below and providing the required information or by

attaching separate pages.

INCLUDE ALL FACTS WHICH SUPPORT THE GROUNDS

YOU CLAIM.

Following the list of possible grounds for relief, the form further sets forth the

following information:

THE LIST ABOVE DOES NOT INCLUDE A COMPLETE

LIST OF ALL CONSTITUTIONAL VIOLATIONS. YOU

MAY ADD ANY OTHERS YOU DEEM APPROPRIATE.

ATTACH A SEPARATE SHEET OF PAPER LISTING EACH

CONSTITUTIONAL VIOLATION THAT YOU CLAIM, LIST

EACH AND EVERY FACT YOU FEEL SUPPORTS THIS

GROUND. EXPLAIN IN DETAIL HOW YOU ARE

PREJUDICED BY THE VIOLATION AND WHY YOU ARE

ENTITLED TO RELIEF. BE SPECIFIC. . . .

On the petition form, Burnett marked “yes” for “the denial of effective assistance of

counsel” and “other grounds.” However, Burnett did not include any facts in support of any

of these grounds. There was also no amendment to the petition. Ordinarily, under these

circumstances, the petition should have been dismissed because Burnett failed to comply

with the rules of the Post Conviction Act. Id. § 40-30-106(d). Nevertheless, in the interest

of justice, we will review the issues presented.

I. Failure to Admit Statement. Burnett argues that counsel was ineffective for

failing to admit a statement given by Bledsoe to law enforcement officers under Tennessee

Rule of Evidence 804(b)(3) as a statement against interest. He asserts that Bledsoe’s

statement was exculpatory for Burnett and, as a result, counsel’s failure to admit it was

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deficient and caused Burnett prejudice at trial. The State responds that Burnett has failed to

demonstrate by clear and convincing evidence that counsel was ineffective. We agree with

the State.

Counsel testified at the evidentiary hearing that he subpoenaed Bledsoe to testify at

trial. However, Bledsoe asserted his Fifth Amendment privilege not to testify. Counsel said

that he did not attempt to offer Bledsoe’s statement into evidence, but counsel said that he

should have done so. He also did not make a proffer of proof. Bledsoe’s statement,

introduced as an exhibit to the post-conviction hearing, demonstrated that he admitted lying

a number of times in giving the statement and provided three accounts of his involvement

in the homicide.

The post-conviction court, after reviewing Bledsoe’s statement, determined that the

statement would not have been admissible under the hearsay exception for a statement

against interest, and that counsel was not ineffective for failing to move to admit it. The

court considered the provisions of Tennessee Rule of Evidence 804(b)(3), which permits the

use at trial of a statement that “at the time of its making . . . so far tended to subject the

declarant to civil or criminal liability . . . , that a reasonable person in the declarant’s position

would not have made the statement unless believing it to be true.” Tenn. R. Evid. 804(b)(3).

The post-conviction court noted the several recantations in Bledsoe’s statement and reasoned:

It seems axiomatic to the court that the threshold requirements of the

hearsay exception provisions of Tenn. R. Evid. 804(b)(3) presuppose that an

element of truthfulness is apparent on the face of the statement itself.

This court can think of nothing that so readily negates the “apparent

truthfulness” of a statement than a repeated assertion by the declarant in the

statement itself that what he has just said is a “lie.” It can hardly be said that

the requirement that “a reasonable person in the declarant’s position would not

have made the statement unless believing it to be true” is applicable to this

particular example when, in fact, the declarant repeatedly indicates that what

he has just said is, in fact, not true.

Because the statement was inadmissible, according to the court, counsel was not ineffective

for “not exert[ing] greater efforts to have it admitted at trial.”

After thorough review of the record, we conclude that Burnett failed to produce clear

and convincing evidence that counsel was ineffective based on a failure to admit Bledsoe’s

statement at trial. In the context of such claims of ineffective assistance of counsel, a court

determines deficient performance by considering whether the evidence that was not

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introduced at trial was both admissible and material. See Pylant v. State, 263 S.W.3d 854,

869, 871-73 (Tenn. 2008) (considering whether trial counsel was ineffective in failing to call

at trial the alleged true culprit or others who witnessed her inculpatory statements). Deficient

performance in this regard must also result in prejudice. Id. at 874-75.

Here, the post-conviction court determined, and we agree, that Burnett failed to

demonstrate counsel’s deficient performance because Bledsoe’s statement was inadmissible.

According to Rule 801(c), hearsay is “a statement, other than one made by the declarant

while testifying at the trial or hearing, offered in evidence to prove the truth of the matter

asserted.” Tenn. R. Evid. 801(c). Rule 802 states that “hearsay is not admissible except as

provided by these rules or otherwise by law.” Tenn. R. Evid. 802. As the Tennessee

Supreme Court has noted, because “‘the rule against hearsay is considered to be a rule of

reliability,’” exceptions allow for the admissibility of hearsay “[w]here sufficient indicia of

reliability are present.” State v. Kiser, 284 S.W.3d 227, 264 (Tenn. 2009) (quoting State v.

Brown, 29 S.W.3d 427, 431 (Tenn. 2000)). Statements against interest are admissible under

Rule 804(b)(3) because “the actual fear of punishment reasonably held by a confessing

perpetrator is assumed to be overridden by some other concern of such magnitude that it

renders the confession reliable.” Id. at 265. Where, as here, the statement against interest

indicates that the declarant repeatedly lied in the process of giving the statement and

disavowed significant portions of the statement, namely the extent of his own involvement,

we conclude that the statement lacks the indicia of reliability contemplated by Rule

804(b)(3). See State v. Charles E. Lakins, No. 03C01-9703-CR-00085, 1998 WL 128842

*3-4, (Tenn. Crim. App., at Knoxville, March 24, 1998) (holding that statement of witness

deemed “unavailable” due to invocation of Fifth Amendment not admissible under Rule

804(b)(3) because it was inconsistent, fabricated, and unreliable). Bledsoe’s statement was

not admissible as a statement against his penal interest.2 Consequently, we conclude that

counsel was not ineffective for failing to introduce the statement as evidence at trial.

Even if the statement were admissible, Burnett has failed to demonstrate that he was

prejudiced by counsel’s failure to introduce it at trial. As an initial matter, Burnett does not

state how he was prejudiced by the exclusion of Bledsoe’s statement, forcing us to presume

its significance to this case. With this said, the portions of the statement that were not

designated as “a lie” revealed, among other things, that Coon told Bledsoe that he “pistol

whipped the victim to death.” Bledsoe said that Coon showed him a 9 millimeter or 45

2

Nor were the statements attributed to Coon contained within Bledsoe’s statement admissible.

Bledsoe’s statement contained statements that Coon told someone other than Bledsoe and that person later

told Bledsoe. In addition to the rationale for exclusion expressed above, the Bledsoe statement, as triple

hearsay, is also inadmissible.

-12-

caliber pistol with blood on it. Bledsoe further said that Coon told him the victim was an

undercover agent and that “Coon was taking care of a snitch” for someone else. Bledsoe also

said he was scared of Coon and helped Coon dispose of the body. Significantly, the

statement did not mention or implicate Burnett.

In our view, two other witness statements were admitted at trial that established

essentially the same evidence as Bledsoe’s statement; namely, that Burnet was not involved

in the killing. James Walker recounted conversations he and Coon had while inmates

together. Walker said that Coon “and a guy named Burnett were involved in beating a TBI

[a]gent to death. [He was] not sure if Burnett took part in the beating or not.” Ronnie

Walden also stated that Coon told him that he, Coon, beat the victim with a baseball bat and

that “‘somebody’ not necessarily Burnett searched the victim for the ring.” Walden further

stated that Coon dumped the victim’s body. The admission of these statements at trial served

the same purpose as Bledsoe’s statement had it been admitted at trial, and as noted, Bledsoe’s

statement was plagued with credibility problems. In spite of hearing this proof, the jury

convicted Burnett as charged. Accordingly, Burnett has failed to demonstrate a reasonable

probability that the outcome of the trial would have been different. See Goad, 938 S.W.2d

at 370 (quoting Strickland, 466 U.S. at 694, 104 S. Ct. at 2068). Burnett is not entitled to

relief on this issue.

II. Comment During Voir Dire. Burnett argues that the combined effect of

counsel’s comment during voir dire regarding counsel’s own indictment and counsel’s

involvement with the papers found in the bathroom created a conflict of interest, which

resulted in ineffective assistance of counsel per se. Burnett asserts that counsel feared

contempt charges or other disciplinary action and therefore could not possibly render

effective assistance of counsel. The State responds that Burnett waived this claim for failure

to assert it before the post-conviction court. We agree with the State.

As previously discussed, Burnett did not allege this ground for post-conviction relief

in his petition. He also failed to orally raise it before the post-conviction court. In addition,

the post-conviction court order denying relief did not address this issue. “Issues not

addressed in the post-conviction court will generally not be addressed on appeal.” Walsh v.

State, 166 S.W.3d 641, 645-46 (Tenn. 2005) (citing Rickman v. State, 972 S.W.2d 687, 691

(Tenn. Crim. App. 1997)). We are therefore precluded from review because this claim has

been waived.

III. Papers Found in Jurors’ Bathroom. Burnett argues that trial counsel was

ineffective based on a failure to move for either a mistrial or the removal of the juror who

found the documents in the jurors’ bathroom. Because counsel did not do so, according to

Burnett, he was denied his right to trial by an impartial jury. The State contends that Burnett

-13-

has failed to prove either deficient performance or prejudice by clear and convincing

evidence. We agree with the State.

At the post-conviction hearing, counsel testified that his son had obtained a copy of

Coon’s federal conviction. Counsel’s son inadvertently left two pages of Coon’s conviction

document in the jurors’ bathroom. Burnett testified that the juror informed the court that she

did not read the papers she found. The two pages, admitted as an exhibit at the hearing,

indicated a monetary penalty of $400 and a requirement to forfeit three firearms. Counsel

testified that he was concerned about the effect this incident may have had on the jury.

The post-conviction court found that Burnett failed to prove that he received the

ineffective assistance of counsel based on the documents found in the bathroom. The court

stated:

Upon examination of the papers found by the juror, it was evident that the

pages said very little about Spencer Coon and nothing about Dennis Burnett.

. . . [T]he court did not find that there was any malicious intent or motive on

the part of the son in leaving these pages in the sink. . . . All of these issues

were discussed outside the hearing of the jury, and the court could not find

then, and cannot find now, that the papers would in any way have an influence

on the jurors. This issue is without merit and cannot be used as grounds for

Post Conviction Relief based on ineffective assistance of counsel.

Upon our review of the record, we agree with the post-conviction court and conclude

that Burnett has not produced clear and convincing evidence that counsel was ineffective in

failing to move for a mistrial or for the juror’s removal. Burnett has not produced evidence

of any likelihood that the outcome at trial would have been different had counsel responded

to the incident differently. He has not made any showing that the papers or their discovery

in the bathroom swayed the jury or that counsel’s actions prejudiced him as a result. Burnett

is not entitled to relief on this issue.

IV. Failure to Prepare Burnett’s Trial Testimony. Burnett asserts that counsel

was ineffective based on a failure to review with Burnett before trial two of his statements

to law enforcement officers. He maintains that he was inadequately prepared to testify in his

own defense and was thereby prejudiced. The State responds that Burnett has failed to

demonstrate deficient performance. We agree with the State.

Burnett testified at the hearing that he reviewed his statement to Agent Brakebill with

counsel before trial. He said that he did not review his other two statements with counsel.

He remembered talking with both Detective Williams and Agent Elrod, but he did not know

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that he gave a “statement” to Agent Elrod. Burnett remembered meeting with counsel the

day before trial from approximately 1 p.m. to 10:30 or 11 p.m. Counsel testified that he

received all of Burnett’s statements to law enforcement officers before trial and that he

shared discovery with Burnett as he received it. Counsel’s usual practice was to review such

statements with his clients, but counsel suspected that he did not do so with Burnett.

Upon review of the record, we conclude that Burnett has not proven by clear and

convincing evidence that counsel was ineffective in failing to prepare him to testify at trial.

Although Burnett adduced evidence that counsel may not have reviewed the statements with

Burnett before trial, the record reflects that counsel provided all of the statements to Burnett

before trial. Additionally, counsel and Burnett spent approximately ten hours preparing

together the day before trial began. Even if we were to conclude that counsel was deficient

in failing to review the statements with Burnett, Burnett has failed to show any resulting

prejudice. As a result, Burnett is not entitled to relief on this issue.

V. Failure to Investigate and Call Gibson. Burnett argues that counsel was

ineffective in failing to investigate and call as a trial witness Michael Gibson. The State

responds that Burnett did not call Gibson to testify at the post-conviction hearing and cannot

prove that counsel was ineffective in this regard. We agree with the State.

Burnett testified at the post-conviction hearing that he believed Gibson witnessed

Coon beating the victim. Counsel testified that he attempted to interview Gibson while

Gibson was at the hospital. Counsel was unable, however, because Gibson’s mother

prevented him from speaking with Gibson. The post-conviction court determined, and we

agree, that counsel was not ineffective in failing to interview or call Gibson at trial based on

counsel’s unsuccessful efforts to question him before trial. Furthermore, as the State asserts,

Burnett’s failure to call Gibson at the post-conviction hearing precludes a finding of

prejudice. See Black v. State, 794 S.W.2d 752, 757-58 (Tenn. Crim. App. 1990) (holding

that a petitioner fails to establish prejudice “unless he can produce a material witness who

(a) could have been found by a reasonable investigation and (b) would have testified

favorably in support of his defense if called”). Burnett is not entitled to relief on this issue.

VI. Failure to Preserve and Present Issues for Direct Appeal. Interspersed

throughout Burnett’s brief are arguments that trial counsel failed to preserve all the above

issues for direct appeal by not challenging them at trial and that counsel failed to present the

same issues on direct appeal.3 He asserts that the failures to preserve the issues and to

3

The heading for each of Burnett’s issues in his brief includes the sentence, “In the alternative, trial

counsel erred in failing to present this issue for appeal, which caused the issue to be waived and resulting

(continued...)

-15-

present them on direct appeal were presumptively prejudicial. The State provides a limited

response to this argument and asserts that because Burnett cannot prove prejudice at trial, he

cannot prove that counsel’s actions resulted in prejudice on appeal. We conclude that

Burnett is not entitled to relief on this issue.

We initially observe that aside from a bare assertion that such conduct by counsel

constitutes ineffective assistance, Burnett has failed to argue this issue. He does no more

than repeatedly cite Wallace v. State for the proposition that prejudice is presumed when

counsel fails to file a timely motion for a new trial. 121 S.W.3d 652, 658 (Tenn. 2003)

(presuming prejudice when counsel failed to file a timely motion for a new trial because

“[c]ounsel’s abandonment of his client at such a critical stage of the proceedings resulted in

the failure to preserve and pursue the available post-trial remedies and the complete failure

to subject the State to the adversarial appellate process” (citing United States v. Cronic, 466

U.S. 648, 659 (1984)). To be clear, unlike Wallace, the record clearly shows that trial

counsel filed a motion for new trial within the required thirty- day time period. However, the

new trial motion did not specify any issues for review, and counsel did not file an amended

motion for new trial. The trial record further shows that a hearing was held by the trial court

which addressed issues orally raised by the filing of the motion for new trial. Because these

issues were not included within the new trial motion, this court deemed them waived on

direct appeal. Significantly, this court reviewed the issues which were included on direct

appeal, and discerned no plain error.

Review of this issue is further complicated because none of the issues which the

Petitioner contends should have been raised on direct appeal were specifically raised in his

pro se petition for post-conviction relief. The extent of the petitioner’s claim is shown in

response to questions 14 and 15 within his pro se petition for post-conviction relief:

14. If you did not raise the grounds you raised here in your original

prosecution and on your appeal from that prosecution, explain why your claim

in this case has not been waived for failure to raise it on appeal. [Trial

Counsel] failed to raise.

15. If you have previously filed a petition, application, or motion with respect

to the judgment(s) in any court, explain why your claim in this case has not

been waived for failure to raise it in that prior proceeding. If the claim was

3

(...continued)

in prejudice to the appellant.” However, the body of his arguments passingly discusses both presenting the

issues on appeal and preserving them at trial for appeal.

-16-

raised, explain why your claim is not previously determined. [Trial Counsel]

said he could not remember to raise any issues needed.

At the beginning of the post-conviction hearing, counsel orally stated to the court that

trial counsel was ineffective “by his failure to raise certain specific grounds in the motion for

new trial that should have been contained in the motion for new trial. So, therefore, because

they were not raised in the motion for new trial, they were waived when [the petitioner’s]

case was reviewed by the Court of Criminal Appeals.” Unfortunately, counsel never

identified the “certain specific grounds” that should have been included in the new trial

motion. In fact, as much as we can glean from the record, the issues that counsel argued

should have been included during the post-conviction hearing were different than the issues

raised in the Petitioner’s direct appeal.

In any event, inasmuch as Burnett contends that the issues addressed in the direct

appeal serve as grounds for ineffective assistance, we disagree. This court previously

determined in the Petitioner’s direct appeal that those issues did not constitute plain error.

Douglas Marshall Mathis v. State, No. M2006-02525-CCA-R3-PC, 2008 WL 1850800, at

*10-11 (Tenn. Crim. App. 2008), perm. app. denied (Tenn. Oct. 27, 2008); see also Owens

v. State, No. M2009-00558-CCA-R3-PC, 2010 WL 1462529 *6 (Tenn. Crim. App. 2010),

perm. app. denied (Tenn. Sept. 22, 2010)(concluding that ground supporting ineffective

assistance claim that was reviewed for plain error on direct appeal was subject to “essentially

the same standard” in post-conviction proceedings). To the extent that Burnett claims that

trial counsel was ineffective for failing to pursue any other issue on direct appeal, the record

shows that Burnett failed to identify, develop, or offer evidence of prejudice regarding this

issue at the evidentiary hearing. He further failed to argue or demonstrate that the claims that

allegedly should have been presented on appeal would have succeeded, as required to prove

deficient performance and prejudice for such a claim. Carpenter v. State, 126 S.W.3d 879,

887-88 (Tenn. 2004).

Accordingly, we conclude that Burnett has not proven by clear and convincing

evidence that counsel was ineffective in failing to preserve or present issues for direct appeal.

Additionally, we have already determined that counsel’s alleged errors at trial, acts which if

counsel had done would have preserved the issues for appeal, did not inure to Burnett’s

prejudice. Burnett is not entitled to relief.

___________________________

CAMILLE R. McMULLEN, JUDGE

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