Lemar Brooks v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs July 19, 2011

LEMAR BROOKS v. STATE OF TENNESSEE

Appeal from the Circuit Court for Montgomery County

No. 40877 John H. Gasaway, III, Judge

No. M2010-02451-CCA-R3-PC - Filed January 11, 2012

The Petitioner, Lemar Brooks, appeals as of right from the Montgomery County Circuit

Court’s denial of his petition for post-conviction relief. The Petitioner contends that he

received the ineffective assistance of both trial and appellate counsel regarding his

convictions for two counts of premeditated first degree murder. Specifically, the Petitioner

argues that (1) trial counsel was ineffective for failing to investigate and call two potential

witnesses; (2) trial counsel was ineffective for failing to request a jury instruction regarding

voluntary intoxication; (3) trial counsel was ineffective for failing “to request a jury out

hearing” regarding the State’s cross-examination about a witness’ gang affiliation; (4) trial

counsel was ineffective for failing to object to prejudicial remarks made by the State during

closing arguments; (5) trial counsel was ineffective for failing to object “to the selective and

vindictive prosecution by the State”; (6) trial counsel was ineffective for failing to request

a jury instruction on the “physical facts” rule; (7) appellate counsel was ineffective for failing

to raise the voluntary intoxication jury instruction issue on appeal; (8) appellate counsel was

ineffective for failing to raise the issue of the State’s prejudicial remarks on appeal; (9)

appellate counsel was ineffective for failing to raise the issue of the State’s “selective and

vindictive prosecution” on appeal; (10) appellate counsel was ineffective for failing to

challenge the standard of review used by the trial court in denying the Petitioner’s petition

for writ of error coram nobis; (11) the cumulative effect of trial and appellate counsels’ errors

establishes that their performance was deficient and that the Petitioner was prejudiced by

their performance. Following our review, we affirm the judgment of the post-conviction

court.

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

D. K ELLY T HOMAS, J R., J., delivered the opinion of the Court, in which J AMES C URWOOD

W ITT, J R., and J OHN E VERETT W ILLIAMS, JJ., joined.

William F. Kroeger, Springfield, Tennessee, for the appellant, Lemar Brooks.

Robert E. Cooper, Jr., Attorney General and Reporter; Nicholas W. Spangler, Assistant

Attorney General; John Wesley Carney, Jr., District Attorney General; and Arthur F. Bieber,

Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

FACTUAL BACKGROUND

I. Trial

A full recitation of the facts at trial may be found in this court’s opinion on direct

appeal. See State v. Lemar N. Brooks, No. M2003-02304-CCA-R3-CD, 2006 WL 2738310

(Tenn. Crim. App. Sept. 26, 2006), perm. appeal denied (Tenn. Feb. 26, 2007). As pertinent

to our review, the record reflects that on May 29, 1999, the bodies of Lawrence Ream, Jr. and

Veronica Burnley were discovered in a motel room in Clarksville, Tennessee. Id. at *1.

Their bodies were found lying on the bed farthest from the door and with dried blood on both

of them. Id. Ms. Burnley was found with “one gunshot wound to the back of her head” and

“a second gunshot wound to the back of her right shoulder.” Id. at *4. Mr. Ream was found

with “a gunshot wound to the top left side of his head” and “a second gunshot wound to his

chest.” Id. Based on the nature of the wounds, the medical examiner, Dr. Bruce Levy,

opined that “the shooter had to have been standing somewhere near the middle of the side

of the bed when the shots were fired.” Id.

The motel room was registered for two nights under the name “Jimmie L. Carr” and

with two people listed as staying in the room. Brooks, 2006 WL 2738310, at *1. Inside the

motel room police officers recovered three small bags containing 2.6 grams of marijuana, a

large bag containing 4.7 grams of marijuana, and two rolls of cash totaling $159. Id. at *2,

7. Police officers also recovered “two lead projectiles” from the room. Id. at *2. Two more

projectiles were recovered from Ms. Burnley’s body and a projectile fragment was recovered

from Mr. Ream’s body. Id. However, the murder weapon was never recovered, and the lead

detective in the case admitted at trial that “there was no physical evidence linking the

[Petitioner] to the crime.” Id. at *6.

Key to the State’s case were two eyewitnesses, Samuel Vazquez and Sophia Ross.

Brooks, 2006 WL 2738310, at *1. Mr. Vazquez testified that on May 28, 1999, he met the

Petitioner around 7:00 or 8:00 p.m. and that they had spent the evening smoking marijuana.

Id. at *2. According to Mr. Vazquez, the two eventually picked up Ms. Ross and went to

purchase more marijuana from Mr. Ream. Id. Mr. Vazquez estimated that the three arrived

at Mr. Ream’s motel room at 12:30 or 1:00 a.m. on May 29, 1999. Id. at *3. Mr. Vazquez

testified that, at some point, Mr. Ream “took a gallon-sized plastic bag half-filed with

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marijuana out of the night stand.” Id. Mr. Vazquez estimated “that the bag contained a little

over a quarter pound of marijuana” and was worth “$300 or $400.” Id. Mr. Vazquez

testified that the group talked for a while and watched the movie “Aliens.” Id. Mr. Vazquez

eventually fell asleep on the bed closest to the door. Id.

According to Mr. Vazquez, later that morning he awoke to the sound of two gunshots.

Brooks, 2006 WL 2738310, at *3. Mr. Vazquez testified that he saw an unknown “figure

dressed in black standing with an outstretched arm at the foot of the victims’ bed” and that

he thought the figure was holding a handgun. Id. Mr. Vazquez testified that he then saw Ms.

Ross jump over her bed and run out of the motel room. Id. Mr. Vazquez followed her and

heard two more gunshots as he fled the room. Id. According to Mr. Vazquez, before he fled

the room, he noticed that it was 4:11 a.m. Id. Mr. Vazquez testified that he and Ms. Ross

ran behind the motel, and a few minutes later, they saw the Petitioner run to his vehicle. Id.

The Petitioner urged Mr. Vazquez and Ms. Ross to get into his SUV. Id. Mr. Vazquez

testified that once he got in the backseat, he asked the Petitioner if the victims were dead and

the Petitioner said, “[T]hey got to be, I shot them both in the head.” Id. The Petitioner then

drove Mr. Vazquez and Ms. Ross to Mr. Vazquez’s house where he instructed them to get

out of the vehicle. Id.

Mr. Vazquez testified that he did not remember seeing the Petitioner with a gun that

night. Brooks, 2006 WL 2738310, at *3. Mr. Vazquez admitted that in his first statement

to the police he did not mention that the Petitioner had “told him that he had shot both

victims in the head.” Id. at *4. Mr. Vazquez testified that he was extremely intoxicated and

frightened at the time of the shooting. Id. Mr. Vazquez “explained the numerous

inconsistencies in his testimony and his apparent inability to remember details of the incident

by stating that he had smoked ten or eleven blunts by the time of the shooting.” Id. Mr.

Vazquez denied that he had gone to the motel to rob the victims and denied that he had been

the one to kill and rob the victims. Id.

Ms. Ross testified that she was at the home of Monique Harrison on the evening of

May 28, 1999, when the Petitioner and Mr. Vazquez showed up. Brooks, 2006 WL 2738310,

at *5. According to Ms. Ross, she collected $40 from her friends and left with the Petitioner

and Mr. Vazquez to purchase some marijuana from Mr. Ream. Id. Ms. Ross testified that

she purchased $40 worth of marijuana from Mr. Ream, which the group then smoked while

they talked and watched the movie “Aliens.” Id. According to Ms. Ross, the victims were

lying together on one bed, she was leaning against the headboard of the bed closest to the

door, Mr. Vazqeuz was lying across the foot of her bed, and the Petitioner was sitting in a

chair. Id. Ms. Ross testified that at some point, the Petitioner got up from his chair, walked

to “about halfway along the side of the victims’ bed,” and started shooting. Id. Unlike Mr.

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Vazquez, Ms. Ross testified that she heard only two shots and that she and Mr. Vazquez ran

across the highway to a “clump of woods” where they hid from the Petitioner. Id.

According to Ms. Ross, the Petitioner eventually found her and Mr. Vazquez, “pointed

his gun at them, and threatened to kill them if they did not get in his vehicle.” Brooks, 2006

WL 2738310, at *5. Ms. Ross testified that the Petitioner drove them back to Mr. Vazquez’s

house, keeping his gun pointed at them the whole time and repeatedly stating that “he should

kill them both right then.” Id. At Mr. Vazquez’s house, the Petitioner forced them out of the

car at gunpoint and “threatened to kill them if they reported what had just transpired.” Id.

Ms. Ross testified that it was daybreak when Mr. Vazquez drove her back to Ms. Harrison’s

home. Id. Ms. Ross also testified that when she arrived at Ms. Harrison’s house, she

immediately woke Ms. Harrison and Ms. Harrison’s mother to tell them what had happened.

Id. Both women wanted Ms. Ross to call the police but “she was too frightened to do so.”

Id. at *6. Instead, she left that afternoon on a preplanned trip to Flint, Michigan. Id.

On cross-examination, Ms. Ross admitted that in her first statement to the police she

told them that she ran all the way back to Ms. Harrison’s house. Brooks, 2006 WL 2738310,

at *6. Ms. Ross testified that she had “exaggerated” when she told the police this because

“she was still shaken from her experiences at the time she made the statement.” Id. Ms.

Ross also reiterated on cross-examination that she immediately woke up Ms. Harrison and

Ms. Harrison’s mother when she arrived at Ms. Harrison’s house and that she thought she

reached the house around 5:00 a.m. Id. However, the lead detective testified that Ms.

Harrison told him that it was 11:00 a.m. or 12:00 p.m. on May 29, 1999, before Ms. Ross told

her about the murders. Id.

In addition to challenging the testimony of Ms. Ross and Mr. Vazquez, the Petitioner

presented an alibi defense at trial. Troy Pruitt testified that he saw the Petitioner walking

down Judy Lynn Drive in Clarksville at approximately 3:00 a.m. on May 29, 1999. Brooks,

2006 WL 2738310, at *7. Mr. Pruitt estimated that the murder scene was a 5-minute drive

or a 45-minute walk from where he saw the Petitioner. Id. On cross-examination Mr. Pruitt

admitted that he was a member of a gang and that he had committed an aggravated robbery

for the gang. Geremie Richard Ebert testified that sometime in May 1999, he was babysitting

children in Cadiz, Kentucky, when the Petitioner arrived at the home around 4:00 a.m. and

stayed until after daybreak. Id. However, Mr. Ebert admitted that he was unsure if the

Petitioner was actually the man that he saw that morning and that he “was unable to recall

the number of children he babysat, their names, or their ages.” Id. Lisa Cunningham

testified that Mr. Ebert was babysitting her child on May 29, 1999. Id. According to Ms.

Cunningham, she returned home around 5:30 a.m. to find the Petitioner waiting on her. Id.

Ms. Cunningham initially told the police that the Petitioner had told her “that, should anyone

ask, he had been in the home all evening.” Id. However, at trial Ms. Cunningham testified

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that the Petitioner never made that statement and that “she merely told the police officers

what she thought they wanted to hear.” Id.

Based upon the foregoing evidence, the jury convicted the Petitioner of two counts

of premeditated first degree murder. Brooks, 2006 WL 2738310, at *1. The Petitioner was

sentenced to consecutive terms of life imprisonment. Id.

II. Error Coram Nobis Hearing

The Petitioner filed a petition for writ of error coram nobis with the trial court while

his direct appeal was pending in this court. Brooks, 2006 WL 2738310, at *1. At the

subsequent hearing, Judge Justin Saunders testified that “sometime before the defendant’s

trial he was at a party when [Ms.] Ross shouted ‘out of the blue’ that she had shot [Mr.

Ream] in the head.” Id. at *8. Mr. Saunders admitted that he did not tell the police about

Ms. Ross’s alleged statement “because he was engaging in illegal activity at the time.” Id.

Mr. Saunders also speculated that there were other people at the party who should have heard

Ms. Ross’s statement, but they “were too frightened to come forward.” Id. Mr. Saunders

denied being a gang member and denied knowing that the Petitioner was a self-pronounced

gang member. Id. The State presented testimony from a police officer that Mr. Saunders had

previously stated he was a gang member. Id. The trial court found that Mr. Saunders’

testimony “was not credible and likely would not have been believed by the jury” and

concluded that “the evidence would not have changed the outcome of the trial.” Id. The

Petitioner appealed the trial court’s decision and both his direct appeal and the error coram

nobis appeal were consolidated for this court’s review. Id. at *1.

III. Direct Appeal

On direct appeal, the Petitioner raised the following issues:

(1) whether the trial court erred by not instructing the jury that the State’s key

witnesses were accomplices as a mater of law, whose testimony had to be

corroborated by independent evidence; (2) whether the evidence was sufficient

to show premeditation; and (3) whether the trial court erred by denying the

[Petitioner’s] petition for writ of error coram nobis . . . .

Brooks, 2006 WL 2738310, at *1. With respect to the issue of the accomplice jury

instruction, this court concluded that “the proof would not have justified an instruction that

the witnesses were accomplices as a matter of law.” Id. at *9. This court also concluded that

the evidence was sufficient for the jury to find that the Petitioner acted with premeditation.

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Id. at *11. Finally, this court concluded that the trial court did not abuse its discretion in

denying the Petitioner’s petition for writ of error coram nobis. Id. at *12.

IV. Post-Conviction Hearing

On February 1, 2008, the Petitioner timely filed a pro se petition for post-conviction

relief. Counsel was appointed and amended petitions were filed on April 13 and May 19,

2010. The post-conviction court held a hearing on the petition on May 19 and August 19,

2010. On October 7, 2010, the post-conviction court entered a detailed order denying post-

conviction relief. The Petitioner timely filed a notice of appeal on October 18, 2010.

A. Petitioner’s Proof

At the hearing, the Petitioner called Montgomery County Sheriff’s Deputy Erin

William Kellett. Deputy Kellett testified that as part of the investigation of this case, he took

a statement from James Rogers Taylor, II. The Petitioner introduced Mr. Taylor’s statement

at the hearing. According to the statement, the morning after the murders Mr. Taylor, Jimmie

Carr, and Rod Crouch stopped by the house where Ms. Ross was staying. Mr. Taylor told

Deputy Kellett that Ms. Ross asked if they could “take her to the mall so she could get some

shoes.” The group dropped Mr. Carr off and went to the mall and then took Ms. Ross back

to the house where she was staying. The Petitioner also introduced a statement given by Mr.

Carr in which he told the police that the morning after the murders the group “talked to” Ms.

Ross. Deputy Kellett testified that he did not interview Mr. Carr. The detective who

interviewed Mr. Carr was not called as a witness at the post-conviction hearing. Neither Mr.

Taylor nor Mr. Carr testified at the post-conviction hearing.

At the hearing, the Petitioner testified that he asked trial counsel to subpoena Mr.

Taylor and Mr. Carr, but that trial counsel failed to call them as witnesses. The Petitioner

said that he wanted Mr. Taylor to testify because his statement called into question Ms.

Ross’s credibility. The Petitioner reasoned that if Ms. Ross had gone to the mall as Mr.

Taylor had told Deputy Kellett, then this would call into question her timeline of events the

morning after the murders. The Petitioner also concluded that Mr. Taylor’s statement refuted

Ms. Ross’s testimony that she was extremely frightened after the shootings. The Petitioner

pointed out that if Ms. Ross had money to buy shoes the morning after the murders, then

there was no need for her to borrow money from her friend to purchase marijuana from Mr.

Ream the night before. The Petitioner concluded that Mr. Taylor’s testimony would have

been important because it would have shown that Ms. Ross “was lying.” The Petitioner also

stated that he wanted Mr. Carr to testify because he could corroborate Mr. Taylor’s

statement.

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The Petitioner testified that he believed trial counsel was ineffective because he failed

to request a jury instruction on voluntary intoxication. The Petitioner cited to numerous

instances in the trial record where Mr. Vazquez and Ms. Ross testified that the Petitioner

smoked marijuana with them. The Petitioner also pointed out that Mr. Vazquez described

himself as being “very high” at the time of the murders. Additionally, the Petitioner cited the

State’s closing argument in which it described Mr. Vazquez and Ms. Ross as being “really

high” at the time of the shootings. The Petitioner reasoned that if Mr. Vazquez and Ms. Ross

were intoxicated at the time of the shootings, then he had to be intoxicated as well. The

Petitioner concluded that Mr. Vazquez and Ms. Ross’s testimony proved that he could not

form the requisite premeditation necessary for his first degree murder conviction and that the

jury instruction on voluntary intoxication was warranted in his case.

The Petitioner also testified that he believed trial counsel was ineffective because he

failed to object strenuously enough to the State’s cross-examination of Mr. Pruitt. According

to the Petitioner, the State was implying that the Petitioner was a gang member when it asked

Mr. Pruitt about his gang membership. The Petitioner also stated that he was prejudiced by

the State’s cross-examination of Mr. Pruitt because “as far as the jury is concerned, they are

all like well, this guy is a gang member, he’s testifying for his buddy. There’s no way that

we are going to believe him . . . .” The Petitioner concluded that trial counsel should have

objected earlier and requested a jury-out hearing before any cross-examination regarding Mr.

Pruitt’s gang affiliation could occur.

The Petitioner further testified that trial counsel had abandoned “a sound trial

strategy” by failing to request a jury instruction on the “physical facts” rule. The Petitioner

contended that trial counsel should have done more during the course of the trial to show that

Dr. Levy’s testimony about the distance from which the shots were fired did not match Mr.

Vazquez and Ms. Ross’s testimony about where the shooter was standing. The Petitioner

described his understanding of the physical facts rule as being “an instruction given to the

jury . . . that . . . if testimony and physical evidence conflict with one another, then the

undisputed physical facts or the physical evidence, it will always override and negate any

testimony.” The Petitioner opined that if an instruction on the physical facts rule had been

requested, then Mr. Vazquez and Ms. Ross’s testimony would have been disregarded and the

jury could have “see[n] for themselves” that the two witnesses were lying.

The Petitioner also faulted trial counsel for not objecting to what he considered to be

several instances of prosecutorial misconduct during the State’s closing argument. The

Petitioner testified that he believed the prosecutor committed misconduct by (1) misstating

the evidence presented at trial by theorizing that Mr. Ream had kept a gun in the motel

dresser and suggesting the victims were robbed; (2) vouching for the credibility of the State’s

witnesses and calling the Petitioner’s witnesses liars; (3) intentionally inflaming the

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prejudices of the jury by referring to the criminal backgrounds of some of the Petitioner’s

witnesses; (4) arguing issues greater than the Petitioner’s guilt or innocence by urging the

jury not to vent their frustrations with the poor quality of the police investigation by returning

a not guilty verdict; and (5) arguing facts outside the record. The Petitioner also faulted trial

counsel for not objecting “to the selective and vindictive prosecution” of a witness he

presented at his motion for new trial hearing. The Petitioner contended that the State’s

questioning of the witness about his gang affiliation amounted to “selective and vindictive

prosecution.”

The Petitioner testified that he believed appellate counsel was ineffective because he

failed to raise the issue of the voluntary intoxication jury instruction on appeal. The

Petitioner also faulted appellate counsel for failing to raise the issues of the alleged

prosecutorial misconduct and the State’s “selective and vindictive prosecution” on appeal.

Additionally, the Petitioner alleged that appellate counsel was ineffective for failing to

challenge on appeal the standard of review used by the trial court in the error coram nobis

proceeding.

B. State’s Proof

Trial counsel testified that the Petitioner’s primary defense at trial was that the

Petitioner was not present and did not commit the murders. Trial counsel also attempted to

emphasize that there was no forensic evidence to connect the Petitioner to the murder scene

and to challenge the credibility of the State’s two eyewitnesses. Trial counsel admitted that

if Mr. Taylor had testified to the facts in his statement, it could have impeached Ms. Ross and

“[t]hat sounds like something that would matter and I overlooked it.” Trial counsel further

admitted that having someone to testify about Ms. Ross’s demeanor after the shooting could

have been important. However, trial counsel also testified that he had reviewed Mr. Taylor’s

statement prior to trial, that it did not bring “anything to the proceedings in terms of alibi,”

and that it did not have “any useful information at all.” Trial counsel also reviewed Mr.

Carr’s statement and did not think that it had any useful information either, although he did

have his investigator attempt to contact Mr. Carr.

With regards to the voluntary intoxication jury instruction, trial counsel testified that

he did not request it because he did not like using “alternative defenses.” Trial counsel

explained that the Petitioner’s “primary defense was I wasn’t there, I didn’t do it.” Trial

counsel felt that requesting an instruction on voluntary intoxication on top of the alibi

defense “sound[ed] like you are admitting something that you just denied” and that “juries

find that confusing and suspicious.” Trial counsel did admit that voluntary intoxication was

probably a viable defense. Trial counsel also admitted that he had pursued an alternative

defense by arguing that Ms. Ross and Mr. Vazquez were accomplices and that their

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testimony required corroboration. However, trial counsel testified that he “didn’t want to

place too much emphasis on it” because he felt alternative defenses were confusing to the

jury.

Trial counsel testified that he did not object to Mr. Pruitt having been asked about his

gang affiliation because “the State was not during these questions, implying [that the

Petitioner] was a gang member. The State was implying that the witness [Mr.] Pruitt was a

gang member.” Trial counsel said that he also thought that it was better not to object because

“sometimes that just calls more attention to it and it is better to let it slide.” Trial counsel

further hoped that the jury would consider that perhaps the murders had been gang related

because there had been some evidence that Mr. Ream was a gang member. Trial counsel did

admit that one reason for the State to question Mr. Pruitt about his gang affiliation would

have been to imply that the Petitioner was also a gang member.

Trial counsel testified that he did not challenge Dr. Levy’s conclusions about where

the shooter had been standing because he did not “think it was quite relevant” given the

Petitioner’s alibi defense. Trial counsel felt that Dr. Levy’s conclusions impeached one of

the witnesses but actually corroborated the other eyewitness. Trial counsel was not asked

about why he did not object to the alleged prosecutorial misconduct during the State’s closing

argument or the State’s alleged “selective and vindictive prosecution” of one of the

Petitioner’s witnesses.

Appellate counsel testified that he did not raise the voluntary intoxication issue on

appeal because trial counsel had not requested the instruction, had not objected to the jury

instructions “as they were given,” and did not raise the issue in the motion for new trial.

Appellate counsel felt that the issue had been waived and would have been analyzed on

appeal under the plain error standard. Appellate counsel testified that plain error was “a

fairly substantial hurdle to overcome and it was [his] opinion that [he] could not overcome

that hurdle.” Appellate counsel also felt that the voluntary intoxication defense was

“inconsistent with the main thrust of the defense.” Appellate counsel also testified that he

did not challenge on appeal the State’s closing argument because “[i]t just didn’t strike [him]

as something that needed to be raised.”

Appellate counsel testified that he felt the trial court used the wrong standard of

review in denying the Petitioner’s petition for writ of error coram nobis. However, appellate

counsel testified that he did not specifically challenge the standard used by the trial court on

direct appeal. Instead, appellate counsel “highlight[ed] what the standard was and revisit[ed]

what the testimony was and argue[d] to [the appellate court] that the writ should have been

granted.”

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C. Post-Conviction Court’s Order

Following the hearing, the post-conviction court took the matter under advisement and

issued a written order denying the petition on October 7, 2010. With regard to the

Petitioner’s claim that counsel was ineffective by failing to call Mr. Taylor and Mr. Carr as

witnesses, the post-conviction court noted that while their statements had been introduced,

“little other evidence concerning the statements was introduced at the hearing.” The post-

conviction court concluded that “there was no evidence presented at the evidentiary hearing

by which the court could assess the veracity of the statements or the potential credibility of

Mr. Taylor and Mr. Carr as witnesses” and that absent such evidence the Petitioner could not

establish ineffective assistance of counsel.

The post-conviction court next addressed the Petitioner’s contention that both trial and

appellate counsel were ineffective for failing to address the voluntary intoxication issue. The

post-conviction court stated that the Petitioner’s argument was essentially that because Mr.

Vazquez and Ms. Ross were intoxicated at the time of the shooting, “the [P]etitioner

necessarily was as well.” The post-conviction court noted that there was ample evidence that

the Petitioner had smoked marijuana prior to the shootings, but “there was no evidence in the

record that the [P]etitioner’s smoking marijuana rendered him so intoxicated that he could

not form the requisite mental state to commit the premeditated and intentional act of first

degree murder.” Therefore, the post-conviction court declined to reach the same conclusion

as the Petitioner, “absent any evidence at trial or in the instant proceedings to support the

[P]etitioner’s assertion.” The post-conviction court concluded that a jury instruction on

voluntary intoxication was not warranted, and trial and appellate counsel were not ineffective

regarding this issue.

With regard to the State’s cross-examination of Mr. Pruitt, the post-conviction court

concluded that while “the exchange . . . would have been more proper for a jury-out

hearing[,]” the Petitioner was not prejudiced by trial counsel’s failure to request a jury-out

hearing. The post-conviction court noted Mr. Pruitt never stated that the Petitioner was a

gang member and was asked whether being in a gang required him to testify for other

“people” accused of crimes rather than other gang members. Mr. Pruitt also denied that his

gang affiliation required him to testify “on behalf of persons accused of a crime.”

Additionally, the post-conviction court noted that trial counsel testified that he did not object

vigorously to the State’s cross-examination because he did not want to over emphasize it and

because he hoped that the jury would come to the conclusion that the murders were gang

related. The post-conviction court concluded that these “tactics seem reasoned trial strategy,

which this court will not second-guess on post-conviction.”

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With regard to trial and appellate counsel’s failure to address the State’s alleged

prejudicial remarks made during closing arguments, the post-conviction court noted that trial

counsel had not been asked about the State’s closing argument during the hearing. Because

trial counsel had not testified about the issue, the post-conviction court could “only speculate

as to why [he] did not object during the State’s closing argument.” As for appellate counsel,

the post-conviction court concluded that his decision not to raise the issue on appeal was “a

reasonable strategy” which could not be second-guessed on post-conviction review.

With regard to the issue of the State’s alleged “selective and vindictive prosecution,”

the post-conviction court stated that, based upon the Petitioner’s testimony, this issue arose

out of the State’s cross-examination of a witness during the motion for new trial hearing.

The post-conviction court concluded that there was no evidence that this witness “was ever

‘prosecuted’ for anything related to this case” and even if he had been, the Petitioner would

not have had standing to challenge the issue. Accordingly, the post-conviction court

concluded that this issue was without merit.

Regarding trial counsel’s failure to request a jury instruction on the physical facts rule,

the post-conviction court concluded that trial counsel’s performance was not ineffective. The

post-conviction court noted that had the physical facts rule applied to this case, the proper

procedure would have been for the trial court to rule that the testimony was inadmissible as

a matter of law instead of issuing a jury instruction. However, the post-conviction court

concluded that the physical facts rule was not applicable to this case. Instead, any conflict

between Dr. Levy’s opinion about where the shots had been fired and the eyewitness’

testimony was an issue of credibility for the jury to decide.

As for the Petitioner’s issue regarding appellate counsel’s failure to challenge the

standard of review used by the trial court in his error coram nobis proceeding, the post-

conviction court concluded that appellate counsel was not ineffective. The post-conviction

court noted that “a defendant is not entitled to counsel on collateral review of his convictions

or sentence.” An error coram nobis proceeding is a collateral review of a defendant’s

conviction or sentence. The post-conviction court also noted that in “those instances where

a defendant has no constitutionally guaranteed right to counsel, there can be no deprivation

of effective assistance of counsel.” Accordingly, the post-conviction court concluded that

this issue had no merit.

Finally, the post-conviction court concluded that because “the court has found that

none of the [P]etitioner’s previously-listed issues entitle him to relief, the court also finds that

the [P]etitioner is not entitled to relief based upon cumulative error.” After the post-

conviction court entered its order denying the petition, the Petitioner filed a timely notice of

appeal. This appeal followed.

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ANALYSIS

I. Alleged Ineffective Assistance of Trial Counsel

The burden in a post-conviction proceeding is on the petitioner to prove his

allegations of fact supporting his grounds for relief by clear and convincing evidence. Tenn.

Code Ann. § 40-30-110(f); see Dellinger v. State, 279 S.W.3d 282, 293-94 (Tenn. 2009).

On appeal, we are bound by the post-conviction court’s findings of fact unless we conclude

that the evidence in the record preponderates against those findings. Fields v. State, 40

S.W.3d 450, 456 (Tenn. 2001). Because they relate to mixed questions of law and fact, we

review the post-conviction court’s conclusions as to whether counsel’s performance was

deficient and whether that deficiency was prejudicial under a de novo standard with no

presumption of correctness. Id. at 457.

Under the Sixth Amendment to the United States Constitution, when a claim of

ineffective assistance of counsel is made, the burden is on the petitioner to show (1) that

counsel’s performance was deficient and (2) that the deficiency was prejudicial. Strickland

v. Washington, 466 U.S. 668, 687 (1984); see Lockhart v. Fretwell, 506 U.S. 364, 368-72

(1993). In other words, a showing that counsel’s performance falls below a reasonable

standard is not enough; rather, the petitioner must also show that but for the substandard

performance, “the result of the proceeding would have been different.” Strickland, 466 U.S.

at 694. The Strickland standard has been applied to the right to counsel under article I,

section 9 of the Tennessee Constitution. State v. Melson, 772 S.W.2d 417, 419 n.2 (Tenn.

1989).

A. Mr. Taylor and Mr. Carr’s Statements

The Petitioner contends that trial counsel was ineffective for failing to call Mr. Taylor

and Mr. Carr at trial. The Petitioner argues that Mr. Taylor and Mr. Carr’s statements were

critical evidence that could have been used to impeach Ms. Ross’s credibility. The Petitioner

also argues that the statements, coupled with evidence from the error coram nobis hearing,

could have been used to establish Ms. Ross as an accomplice. The Petitioner admits that he

did not subpoena Mr. Taylor or Mr. Carr to testify at the post-conviction hearing. However,

the Petitioner, citing Pylant v. State, 263 S.W.3d 854 (Tenn. 2008), contends that he did not

need Mr. Taylor and Mr. Carr to testify at the post-conviction hearing because their

statements to the police were admitted into evidence and the statements provided the post-

conviction court “with the information [needed] to determine whether the testimony would

have been admissible and material.” The State responds that this case is distinguishable from

Pylant and that the Petitioner has waived the issue by failing to call Mr. Taylor and Mr. Carr

to testify at the post-conviction hearing.

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This court has long held that “[w]hen a petitioner contends that trial counsel failed to

discover, interview, or present witnesses in support of his defense, these witnesses should be

presented by the petitioner at the evidentiary hearing.” Black v. State, 794 S.W.2d 752, 757

(Tenn. Crim. App. 1990); see also Pylant, 263 S.W.3d at 869. Generally, “this is the only

way the petitioner can establish that . . . the failure to have a known witness present or call

the witness to the stand resulted in the denial of critical evidence which inured to the

prejudice of the petitioner.” Black, 794 S.W.2d at 757. Live testimony from the witness is

usually necessary for the post-conviction court to evaluate whether the testimony is

admissible, material, and credible. Pylant, 263 S.W.3d at 869-70. We cannot speculate as

to what a witness may have said if presented or how the witness may have responded to a

rigorous cross-examination. Black, 794 S.W.2d at 757.

In Pylant, the petitioner argued that his trial counsel was ineffective for failing to put

on proof that someone else killed the victim. 263 S.W.3d at 869. At the post-conviction

hearing, the petitioner did not have this alleged perpetrator testify. Id. Instead, the petitioner

presented several witnesses who testified about inculpatory statements they heard the alleged

perpetrator make. Id. On appeal, the State argued that the petitioner’s claim should have

been denied because he failed to call the alleged perpetrator at the post-conviction hearing.

Id. at 872. Our supreme court concluded that Black did not bar the petitioner’s claim because

the petitioner had “presented the ‘critical evidence’ of [the alleged perpetrator’s] alleged

inculpatory statements through other witnesses–an acceptable alternative strategy under the

unique circumstances of this case given the very real possibility that [the alleged perpetrator]

would refuse to testify to any such admissions and/or her alleged culpability in the victim’s

death.” Id. at 872-73 (emphasis added). However, our supreme court also emphasized “that

post-conviction counsel generally risks the denial of a post-conviction claim if he or she fails

to call at the post-conviction hearing all witnesses who they claim should have been called

at trial.” Id. at 873.

The unique circumstances of Pylant are not present in this case. The Petitioner only

presented the statements Mr. Taylor and Mr. Carr gave to the police and some very basic

background information from Deputy Kellett. There was nothing about the statements that

would suggest that Mr. Taylor or Mr. Carr would refuse to testify at the post-conviction

hearing. Therefore, the alternative strategy used in Pylant was not necessary in this case.

Furthermore, we agree with the post-conviction court’s assessment that “there was no

evidence presented at the evidentiary hearing by which the court could assess the veracity of

the statements or the potential credibility of Mr. Taylor and Mr. Carr as witnesses.”

Accordingly, we conclude that the post-conviction court did not err in denying the

Petitioner’s claim that trial counsel was ineffective for failing to call Mr. Taylor and Mr. Carr

as witnesses at trial.

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B. Jury Instruction on Voluntary Intoxication

The Petitioner contends that trial counsel was ineffective by failing to request a jury

instruction on voluntary intoxication. The Petitioner cites to several instances where Mr.

Vazquez and Ms. Ross testified at trial that they were “high” at the time of the shooting. The

Petitioner reasons that because Mr. Vazquez and Ms. Ross were intoxicated and there was

evidence that the Petitioner had smoked marijuana that day as well, a jury instruction on

voluntary intoxication was warranted. The State responds that while there was evidence that

the Petitioner smoked marijuana prior to the shootings, there was no evidence presented at

trial establishing that the Petitioner was intoxicated. The State further responds, that even

if a jury instruction on voluntary intoxication was warranted based upon the evidence at trial,

trial counsel’s decision not to request one was based upon sound professional judgment and

should not be second-guessed.

Voluntary intoxication is not in itself a defense to prosecution, but it “is admissible

in evidence, if it is relevant to negate a culpable mental state.” Tenn. Code Ann. § 39-11-

503(a). In Harrell v. State, this court set forth the rule as to when the proof requires a

voluntary intoxication instruction:

Proof of intoxication alone is not a defense to a charge of committing a

specific intent crime nor does it entitle the accused to jury instructions . . .;

there must be evidence that the intoxication deprived the accused of the mental

capacity to form specific intent . . . . The determinative question is not

whether the accused was intoxicated, but what was his mental capacity.

The burden is on the defendant to produce sufficient proof of intoxication to warrant a jury

instruction. Hicks v. State, 533 S.W.2d 330, 331-32 (Tenn. Crim. App. 1975) (holding that

the “mere fact that there was some evidence that the defendant had been drinking, without

more, is not sufficient to raise the issue of voluntary intoxication”). However, when the

evidence establishes that a defendant was “highly intoxicated” a jury instruction will be

warranted even without a special request. Brown v. State, 553 S.W.2d 94, 95-96 (Tenn.

Crim. App. 1977).

We agree with the post-conviction court that there was no evidence presented

demonstrating that the Petitioner was so intoxicated he could not form the requisite mental

state to commit a premeditated first degree murder. The evidence at trial established that the

Petitioner smoked marijuana prior to the shootings, but there was no evidence presented

regarding how intoxicated the Petitioner was at the time of the shootings. Despite the

Petitioner’s arguments to the contrary, evidence regarding how intoxicated Mr. Vazquez and

Ms. Ross were cannot be imputed to the Petitioner. Furthermore, trial counsel testified that

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requesting a jury instruction on voluntary intoxication would undermine his trial strategy of

attempting to establish an alibi for the Petitioner. We decline to second-guess trial counsel’s

strategic decision. See Ben Mills v. State, No. W2005-00480-CCA-R3-PC, 2006 WL 44381,

at *8-9 (Tenn. Crim. App. Jan. 5, 2006), perm. appeal denied (Tenn. May 1, 2006).

Accordingly, we conclude that trial counsel was not ineffective in failing to request a jury

instruction on voluntary intoxication.

C. Testimony Regarding Mr. Pruitt’s Gang Affiliation

The Petitioner contends that trial counsel was ineffective for failing to request a jury-

out hearing regarding the State’s “gang related questioning” of Mr. Pruitt on cross-

examination. The Petitioner argues that the State’s questioning regarding Mr. Pruitt’s gang

affiliation “insinuated to the jury that the [Petitioner] was a gang member and that [Mr.

Pruitt] was there to testify for his fellow gangster.” The Petitioner contends that the evidence

was inadmissible under Tennessee Rule of Evidence 404(b) and that trial counsel should

have requested a jury-out hearing as provided in Rule 404(b). The State responds that trial

counsel’s decision not to object more strenuously to the cross-examination was reasoned trial

strategy that should not be second-guessed here.

Mr. Pruitt testified at trial in his prison uniform and admitted that he had been

convicted of robbery and had two pending burglary charges. On cross-examination, the State

asked Mr. Pruitt if he was familiar with “the GTC.” Mr. Pruitt admitted that he was,

explained that the GTC was a gang, and admitted that he “used to be” involved with the

GTC. The State asked Mr. Pruitt what his “position” was in the gang and Mr. Pruitt

responded that he was “like a foot soldier.” When asked what kind of things a foot solider

did for the gang, Mr. Pruitt responded that foot soldiers committed crimes, and he testified

that the robbery he was convicted of was an example of “some of the things [he] did” for the

gang. Mr. Pruitt denied that he ever hurt anyone who “broke gang discipline.”

Mr. Pruitt was later asked if there was “a rule in the GTC about testifying against

people who get charged with crimes.” Trial counsel objected to the question as being

irrelevant, and the State responded that he was attempting to establish bias. The trial court

overruled the objection and gave the prosecutor “some latitude.” When asked again, Mr.

Pruitt responded that it was not a rule, that it was “nothing, [he had] never heard of it.” Mr.

Pruitt was then asked if “in prison don’t they have a rule against not testifying against people

charged with crimes too.” Mr. Pruitt responded that it was “not a rule, but most people don’t

do it.” The State then asked Mr. Pruitt if “people [were] encouraged in the gang and in the

prison to testify for people charged with crimes.” At this point, the trial court ordered the

State and trial counsel to approach the bench. The trial court inquired if the State had a good

faith basis that the Petitioner was in the same gang as Mr. Pruitt. The State responded that

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it did not. The trial court ordered the State “to move on” and instructed the jury to disregard

the State’s last question. At no time was Mr. Pruitt asked if the Petitioner was in a gang.

Tennessee Rule of Evidence 404(b) provides that evidence of other wrongs or bad acts

is “not admissible to prove the character of a person in order to show action in conformity

with the character trait.” However, Rule 404(b) only applies to acts which reflect upon the

character of the criminal accused. See State v. Stevens,78 S.W.3d 817, 837 (Tenn. 2002).

Mr. Pruitt was never asked if the Petitioner was a member of a gang. Mr. Pruitt was asked

if the tenants of gang membership or prison life required him not to testify against “people

charged with crimes.” The questions focused on Mr. Pruitt’s gang affiliation and whether

that created some sort of bias on the Defendant’s behalf. Rule 404(b) was not applicable

because the acts at issue reflected upon the character of Mr. Pruitt and not the character of

the Petitioner. Accordingly, trial counsel could not have been ineffective for failing to raise

a Rule 404(b) objection when Rule 404(b) did not apply in the first place.

Tennessee Rule of Evidence 608(b) governs the impeachment of a witness for prior

bad acts and specifically provides for a jury-out hearing “upon request.” However, the State

was not seeking to introduce evidence of Mr. Pruitt’s gang affiliation to impeach his

character for truthfulness. Instead, the State sought to introduce the evidence to show bias

pursuant to Rule 616. Rule 616, unlike Rules 404(b) and 608(b), does not require the trial

court to hold a jury-out hearing regarding the evidence upon a party’s request. Accordingly,

we conclude that trial counsel was not ineffective in failing to request a jury-out hearing

regarding Mr. Pruitt’s gang affiliation. Furthermore, trial counsel testified at the post-

conviction hearing that he did not object more strenuously because he did not want to over

emphasize the evidence and because he hoped that the jury would come to the conclusion

that the murders were gang related. We agree with the post-conviction court that these

“tactics seem reasoned trial strategy, which this court will not second-guess on post-

conviction.”

D. State’s Closing Argument

The Petitioner contends that trial counsel was ineffective for failing to object to

allegedly prejudicial statements made during the State’s closing argument. The Petitioner

argues that during closing arguments, the prosecutor repeatedly characterized the Petitioner’s

alibi witnesses as being unbelievable and liars. The Petitioner also argues that the prosecutor

improperly bolstered the credibility of Mr. Vazquez and Ms. Ross. The State responds that

the issue is without merit because trial counsel was not questioned about the issue at the post-

conviction hearing.

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This court has previously considered “whether the failure to object during a closing

argument is generally sufficient for a showing of ineffective assistance of counsel.” Derek

T. Payne v. State, No. W2008-02784-CCA-R3-PC, 2010 WL 161493, at *15 (Tenn. Crim.

App. Jan. 15, 2010), perm. appeal denied (Tenn. May 11, 2010). “The decisions of a trial

attorney as to whether to object to opposing counsel’s arguments are often primarily tactical

decisions.” Id. Trial counsel could decide not to object for several valid tactical reasons,

including not wanting to emphasize unfavorable evidence. Id. (quoting Gregory Paul Lance

v. State, No. M2005-01675-CCA-R3-PC, 2006 WL 2380619, at *6 (Tenn. Crim. App. Aug.

16, 2006), perm. appeal denied (Dec. 18, 2006)). Because of this, testimony from trial

counsel as to why he or she did not object to the allegedly prejudicial remarks is essential to

determine whether trial counsel was ineffective. This court has previously held that

“[w]ithout testimony from trial counsel or some evidence indicating that his decision was not

a tactical one, we cannot determine that trial counsel provided anything other than effective

assistance of counsel.” State v. Leroy Sexton, No. M2004-03076-CCA-R3-CD, 2007 WL

92352, at *5 (Tenn. Crim. App. Jan. 12, 2007). The Petitioner did not present any evidence

at the post-conviction hearing to suggest that trial counsel’s failure object to the prosecutor’s

remarks was anything other than a tactical decision. Furthermore, trial counsel was not asked

at the hearing about why he did not object to the prosecutor’s remarks. Accordingly, we

must conclude that trial counsel provided effective assistance of counsel in this regard.

E. Selective and Vindictive Prosecution

The Petitioner contends that he received ineffective assistance of trial counsel by trial

counsel’s failure to object “to the selective and vindictive prosecution by the State.”

However, in his brief, the Petitioner failed to include any argument on this issue, cite to any

evidence that the State engaged in “selective and vindictive prosecution,” make any citations

to authorities on the issue, or make any appropriate references to the record. “Issues which

are not supported by argument, citation to authorities, or appropriate references to the record

will be treated as waived in this court.” Tenn. Ct. Crim. App. R. 10(b); see also State v.

Sanders, 842 S.W.2d 257, 260-61 (Tenn. Crim. App. 1992). Accordingly, we conclude that

the Petitioner has waived this issue.

F. “Physical Facts” Rule

The Petitioner contends that “the [p]hysical [f]acts jury instruction should have been

given” and that trial counsel was ineffective for failing to request it and failing “to advance

the theory that it was physically impossible for the fatal shots to have been fired in the

manner described by the State’s two eye witnesses [sic].” The Petitioner argues that Dr.

Levy’s testimony contradicts the testimony provided by the two eyewitnesses and establishes

that it was impossible for the shootings to have occurred as the eyewitnesses described them.

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The State responds that the physical facts rule is not applicable to this case because while

there was a conflict between Dr. Levy and Mr. Vazquez’s testimony, that did not

“demonstrate a contradiction with any well-established and universally recognized physical

fact.”

Our supreme court has described the physical facts rule as “the accepted proposition

that in cases where the testimony of a witness is entirely irreconcilable with the physical

evidence, the testimony can be disregarded.” State v. Allen, 259 S.W.3d 671, 679 (Tenn.

2008) (quoting State v. Hornsby, 858 S.W.2d 892, 894 (Tenn. 1993)). When a witness’s

testimony “cannot possibly be true, is inherently unbelievalbe, or is opposed to natural laws,

courts can declare the testimony incredible as a matter of law and decline to consider it.” Id.

(quotation marks omitted). For the physical facts rule to apply, the testimony “must be

unbelievable on its face, i.e., testimony as to facts or events that the witness physically could

not have possibly observed or events that could not have occurred under the laws of nature.”

Id. at 680. For example, testimony that a witness “saw the sun set in the east” could be

disregarded. Id.

However, the physical facts rule is a power “that should be used sparingly.” Hornsby,

858 S.W.2d at 895. Our supreme court has cautioned that when “the testimony is capable

of different interpretations, the matter should be left for the jury to decide as the sole arbiter

of credibility.” Id. After all, “[d]eciding whether there are inconsistencies in testimony,

reconciling conflicts in testimony, and how this might affect a witness’s credibility, are all

within the province of the jury.” Id. Put another way, “the improbability of the truth of the

testimony, which justifies rejection under the physical facts rule, cannot rest upon any theory

involving the consideration of the comparative credibility of the witnesses.” Id. (quoting

Smith v. Steele, 313 S.W.2d 495, 508 (Tenn. Ct. App. 1956)) (quotation marks and brackets

omitted). Furthermore, the physical facts rule may not be invoked “where its application

depends upon assumptions or calculations based upon estimates as to speed, distance, time,

and other such uncertain matters in the movement of objects.” Allen, 259 S.W.3d at 680

(quotation marks and brackets omitted).

The physical facts rule was not applicable in this case. Dr. Levy opined that the

shooter was standing near the middle of the side of the bed. Ms. Ross testified that she saw

the Petitioner get up and walk to the side of the bed where he began firing at the victims. Mr.

Vazquez testified that he saw an unidentified man standing at the foot of the bed when the

shooting occurred. Mr. Vazquez’s testimony is inconsistent with the medical examiner’s.

However, the medical examiner’s testimony was based upon “assumptions or calculations

based upon estimates as to speed [and] distance.” Accordingly, the physical facts rule would

not bar Mr. Vazquez testimony simply because it was inconsistent with Dr. Levy’s

conclusions. As this court has previously noted, “the fact that a witness testifies and that

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testimony ends up being inconsistent with other testimony raised at trial, . . . even if [it is]

scientific testimony, does not make it inadmissable testimony.” State v. Ivan Charles Graves,

No. E2009-00009-CCA-R3-CD, 2011 WL 398024, at *13 (Tenn. Crim. App. Feb. 8, 2011),

perm. appeal denied (Tenn. May 27, 2011). Here, the “evaluation of the evidence rests upon

consideration of the comparative credibility of the witnesses.” Id. (quotation marks and

citation omitted). Accordingly, we conclude that the physical facts rule was not applicable

at trial; therefore, this issue is without merit.

II. Alleged Ineffective Assistance of Appellate Counsel

In determining whether appellate counsel’s failure to raise an issue on appeal

constitutes ineffective assistance of counsel, our supreme court has held that “unless the

omitted issue has some merit, the petitioner suffers no prejudice from appellate counsel’s

failure to raise the issue on appeal. When an omitted issue is without merit, the petitioner

cannot prevail on an ineffective assistance of counsel claim.” Carpenter v. State, 126 S.W.3d

879, 887-88 (Tenn. 2004) (citing United States v. Dixon, 1 F.3d 1080, 1083 (10th Cir.

1993)). “Generally, the determination of which issues to present on appeal is a matter which

addresses itself to the professional judgment and sound discretion of appellate counsel” as

these are “tactical and strategic choices,” which should not be second-guessed. Cooper v.

State, 849 S.W.2d 744, 747 (Tenn. 1993).

A. Trial Issues

The Petitioner contends that appellate counsel was ineffective for failing to raise the

following issues on appeal: (1) lack of a voluntary intoxication jury instruction; (2) the

prosecutor’s allegedly prejudicial remarks made during closing arguments; and (3) the State’s

allegedly “selective and vindictive” prosecution. The State responds that appellate counsel

was not ineffective for failing to raise the voluntary intoxication issue on appeal because the

jury instruction was not warranted at trial and because appellate counsel made a sound

professional judgment not to pursue the issue. The State further responds that appellate

counsel also made sound professional judgments in choosing not to pursue the remaining

issues on appeal.

We agree with the State that appellate counsel made a sound professional judgment

in deciding not to raise the voluntary intoxication issue on appeal. Appellate counsel testified

that he did not raise the issue because he felt it had been waived. Trial counsel did not

request the jury instruction, had not objected to the jury instructions that were given to the

jury, and did not raise the issue in the motion for new trial. Appellate counsel testified that

because the issue had been waived it would have had to been analyzed using the plain error

standard, and that he did not feel he would have been successful under such a strict standard.

-19-

Appellate counsel made a sound professional judgment in deciding not to pursue this issue

and we will not second guess that judgment here.

Regarding the State’s allegedly prejudicial remarks made during closing arguments

and “selective and vindictive” prosecution, we note that the Petitioner in his brief has not

made any argument on these issues as they relate to appellate counsel’s performance.

Additionally, the Petitioner has not cited to authorities on these issues or made appropriate

references to the record. Accordingly, we conclude that these issues have been waived. See

Tenn. Ct. Crim. App. R. 10(b) (“Issues which are not supported by argument, citation to

authorities, or appropriate references to the record will be treated as waived in this court”).

B. Error Coram Nobis Issue

The Petitioner contends that appellate counsel was ineffective for failing to challenge

the standard of review used by the trial court in denying his petition for writ of error coram

nobis. The Petitioner argues that the trial court incorrectly analyzed the issue by deciding

whether the evidence “would have” affected the outcome of the trial instead of using the

proper “may have” standard. The Petitioner further contends that he was entitled to effective

assistance of counsel during his error coram nobis proceeding because the petition was filed

while his direct appeal was still pending. The State responds that an error coram nobis

proceeding is a collateral review of a conviction and that there is no constitutionally

guaranteed right to counsel during that proceeding; therefore, there can be no claim of

ineffective assistance of counsel.

The United States Supreme Court has previously held that there is “no constitutional

right to an attorney in state post-conviction proceedings” and that consequently, “a petitioner

cannot claim constitutionally ineffective assistance of counsel in such proceedings.”

Coleman v. Thompson, 501 U.S. 722, 752 (1991). By statute in this state appointment of

counsel in error coram nobis proceedings is left to the discretion of the trial court. Tenn.

Code Ann. § 40-14-204. Our supreme court has previously held that there “is no federal or

state constitutional right to counsel in a habeas corpus proceeding.” Summers v. State, 212

S.W.3d 251, 260 (Tenn. 2007) (also holding that “[a]ppointment of counsel in a state habeas

corpus proceeding is within the trial court’s discretion” and citing to Tennessee Code

Annotated section 40-14-204).

We conclude that because an error coram nobis proceeding is a collateral review of

a conviction there is no federal or state constitutional right to counsel. Additionally, we

agree with the post-conviction court that a petition for writ of error coram nobis is a collateral

attack of the petitioner’s conviction regardless of whether it is raised while the direct appeal

-20-

is still pending. Because there is no constitutional right to counsel in an error coram nobis

proceeding there can be no claim for ineffective assistance of counsel arising from the

proceeding. Accordingly, we conclude that this issue is without merit.

III. Cumulative Error

In an one-sentence argument, the Petitioner contends that “there were numerous errors

that had a cumulative effect that established that Petitioner’s counsel was deficient in his

performance and [that] Petitioner was prejudiced by counsel’s deficient performance.” The

State responds that neither trial nor appellate counsel were “deficient in any of the ways

attributed by the [P]etitioner,” and there can be no cumulative error in the absence of

individual error.

“Issues which are not supported by argument, citation to authorities, or appropriate

references to the record will be treated as waived in this court.” Tenn. Ct. Crim. App. R.

10(b); see also Sanders, 842 S.W.2d at 260-61. In his brief, the Petitioner dedicates only one

sentence to this argument and makes no citation to any authorities or any references to the

record. Accordingly, we conclude that the Petitioner has waived appellate review of this

issue.

CONCLUSION

Upon consideration of the foregoing and the record as a whole, the judgment of the

post-conviction court is affirmed.

_________________________________

D. KELLY THOMAS, JR., JUDGE

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