Nelson Troglin v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs August 30, 2011

NELSON TROGLIN v. STATE OF TENNESSEE

Appeal from the Circuit Court for Bledsoe County

No. 64-2007 Thomas W. Graham, Judge

No. E2010-01838-CCA-R3-PC - Filed October 11, 2011

The petitioner, Nelson Troglin, appeals the post-conviction court’s denial of his petition for

post-conviction relief from his attempted first degree murder conviction, arguing that he

received the ineffective assistance of counsel at trial, at the motion for new trial, and on

appeal. After review, we affirm the denial of the petition.

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

A LAN E. G LENN, J., delivered the opinion of the Court, in which T HOMAS T. W OODALL and

J OHN E VERETT W ILLIAMS, JJ., joined.

Samuel F. Hudson, Dunlap, Tennessee, for the appellant, Nelson Troglin.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney

General; James Michael Taylor, District Attorney General; and James W. Pope, III, Assistant

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

OPINION

FACTS

The petitioner was convicted of attempted first degree murder by a Bledsoe County

Circuit Court jury and was sentenced to twenty-four years in the Department of Correction.

On direct appeal, this court affirmed the judgment of the trial court and the Tennessee

Supreme Court denied his application for permission to appeal. See State v. Nelson Troglin,

No. E2005-02015-CCA-R3-CD, 2006 WL 2633107 (Tenn. Crim. App. Sept. 14, 2006),

perm. to appeal denied (Tenn. Jan. 29, 2007). The underlying facts of the case were recited

by this court on direct appeal as follows:

This case arises from the attempted murder of the victim, Mike

Stafford. At the [petitioner]’s trial, the State and the [petitioner] stipulated to

the following:

If Jamey Roberson, the Circuit Court Clerk, was called

to testify, Your Honor, he would testify that his occupation, he

is the Circuit Court Clerk; that it[’s] his duty to file pleadings in

court cases, such as indictments and so forth; that he would

testify that [the petitioner] was indicted for the homicide of

Ralph Wilkey on July 27, 1998, by the Bledsoe Grand Jury.

He would also testify that that case on March 16, 1999,

was set for trial for September 21, 1999. He would also testify

that [the victim, Mike Stafford,] did testify at that trial against

[the petitioner]. That will be the proof in that case-I mean, if

Mr. Roberson was called to testify.

Howard Upchurch testified that he represented the [petitioner] for the

charges brought against the [petitioner] for the homicide of Ralph Wilkey. He

said that, at the end of April of 1999, he provided the [petitioner] with a list

of witnesses that the State intended to call at the Wilkey trial and that Mike

Stafford’s name was on that list. Upchurch further testified that Stafford

testified against the [petitioner] during the [petitioner]’s trial for Wilkey’s

homicide. On cross-examination, Upchurch explained that as a criminal

defense lawyer he routinely receives a list of State witnesses and that he shares

such lists with his clients.

Joe Johnson testified that he has known both the [petitioner] and the

victim, Stafford, all of his life. He said that, on the Thursday before the victim

was shot, the [petitioner] told him that Stafford was on the [petitioner]’s “list.”

Johnson explained that the [petitioner] often joked about different people, so

he did not tell the victim or the police what the [petitioner] had said. On

cross-examination, Johnson testified that Stafford is his first cousin. He

acknowledged that he did not know exactly what the [petitioner] meant when

he made the statement about the victim being on his “list.”

Elizabeth Summers testified that she grew up with the [petitioner], that

she has known Stafford for years, and that she has known a man named

Dennis Cagle throughout his entire life. She testified that, at 10:30 p.m. on

May 2, 1999, she went to her job at Nyla’s Place, a gas station and

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convenience store. During her shift, which lasted from 11:00 p.m. on May 2,

1999, until 7:00 a.m. on May 3, 1999, neither the [petitioner] nor Cagle came

to her store. Stafford, however, entered the store alone at around 11:40 p.m.

on May 2, 1999, and purchased a twelve-pack of beer and two packs of

cigarettes. Willie Mae Pendergrass and Eddie Tollett were present when the

victim entered the store. Summers testified that, about twenty minutes after

Stafford came to Nyla’s Place, she heard, via a police scanner, that Stafford

had been shot. On cross-examination, Summers testified that Stafford’s

purchase of beer and cigarettes from Nyla’s Place was not an unusual event,

and, at the time of his purchase, he did not look afraid or upset.

Willie Mae Pendergrass testified that her sister owns Nyla’s Place, and

Pendergrass was at the store from 7:00 or 7:30 p.m. on May 2, 1999, until

3:00 or 4:00 a.m. on May 3, 1999. She said that, during this time, she did not

see the [petitioner], whom she has known for fifteen years, but she did see

Stafford at the store on May 2 at around 11:30 or 11:45 p.m. Pendergrass

testified that, while she was still at Nyla’s Place at around 12:00 a.m., she

heard that Stafford had been shot. On cross-examination, Pendergrass

testified that she had not seen Stafford in the store during late night hours

before and that Stafford rushed in and out of the store.

Dennis R. Cagle testified that he has known the [petitioner] for most

of his life and that the [petitioner] is his friend. He said that, in May of 1999,

he lived with Victoria Dodson on Brockdale Mountain, and, on May 2, 1999,

at around 9:30 or 10:00 p.m., the [petitioner] drove to his house and asked

him to drive the [petitioner] to get something to eat. Cagle noted that the

[petitioner] had been drinking alcohol, and Cagle agreed to drive the

[petitioner] into town. He testified that they went to the McDonald’s in town,

which is a thirty to thirty-five minute drive, they drove around for a while, and

then they went to Nyla’s Place to get some beer. He could not recall exactly

when they arrived at Nyla’s Place and agreed that they may have arrived there

after 11:00 p.m. He said that the [petitioner] got out of the vehicle, but he did

not actually see the [petitioner] go into the store. When the [petitioner]

returned to the vehicle, he said that the store would not sell him beer. Cagle

testified that the [petitioner] told him that Stafford could purchase beer from

the store.

The [petitioner] gave Cagle Stafford’s address, and they drove to

Stafford’s house where the [petitioner] exited the vehicle and knocked on

Stafford’s front door. Cagle testified that a female, whom he did not

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recognize, came to the front door and spoke with the [petitioner], and then a

few minutes later Stafford came to the door. He said that Stafford and the

[petitioner] appeared to be talking, and then they got into Cagle’s truck, they

all drove to Nyla’s Place, and Stafford entered the store. He testified that he

did not see the [petitioner] give Stafford any money for the beer, but Stafford

came back from the store with some beer and got into the truck. He testified

that they all drank and drove around.

Cagle testified that the three men went to the Veteran’s Club (“VFW”)

because the [petitioner] had to use the restroom. They parked in a dimly lit

area, and all three men exited the truck. Cagle said that he stood on the

driver’s side of the truck while the [petitioner] and Stafford stood on the

passenger’s side of the vehicle, talked for awhile, and then started walking

towards the back of the VFW. He testified that he did not know whose idea

it had been to go back to the VFW, and then he acknowledged that he had

previously told David Emiren, a former Tennessee Bureau of Investigation

(“TBI”) agent, that the [petitioner] asked Stafford to go to the back of the

VFW. Cagle said that he started to follow them, the [petitioner] told him to

go back to the truck, and Cagle went back and sat down in the truck. He said

that Stafford and the [petitioner] were gone behind the VFW for “a few

minutes,” and then he heard two shots. He then saw Stafford run from behind

the VFW towards Stafford’s house, and he heard Stafford make “some kind

of unintelligible statement,” which he described as “more or less a moan or a

groan.” He explained that, as he watched Stafford run, the [petitioner] got

back in the pickup truck.

Cagle testified that he never saw a weapon and that he did not see

anyone else at the VFW. Cagle asked the [petitioner] what had happened, and

the [petitioner] replied that he “shook him up a little.” Cagle testified that,

when asked, the [petitioner] denied shooting Stafford. The [petitioner] said,

“Let’s go home,” and they went back to Cagle’s house, which took about

thirty-five minutes, and the two did not speak as they drove. Cagle said that,

when they returned to his house, Dodson was there, and Cagle took a shower

while the [petitioner] sat on his couch and ate a hamburger. Cagle testified

that he did not know if the [petitioner] went to the [petitioner]’s vehicle before

he entered Cagle’s home.

Cagle said that, while he was in the shower, Dodson came to the

bathroom door and told him that Ed Wooden was at their home and wanted

to speak with him. Cagle went to the kitchen door and asked Wooden to come

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inside, and Wooden replied that he would wait on Cagle. Cagle thought that

Wooden could not see the [petitioner] inside Cagle’s house from where

Wooden was standing, so he assumed that Wooden did not know that the

[petitioner] was inside. Cagle left with Wooden and went to the jail to speak

with the police.

Cagle testified that, the day after Stafford was shot, he provided Agent

Emiren with a statement and denied saying anything untruthful. He explained

that, on the night of the crime, both he and the [petitioner] drank a lot of

alcohol and that he did not want to tell the agent anything more than

necessary. Cagle testified that he owned a forty-five caliber pistol and that,

on May 2nd or 3rd of 1999, the pistol was in Barney Nerrgaurd’s pickup

truck. He testified that, later, Agent Emiren returned and asked Cagle about

this forty-five pistol, both he and Agent Emiren shot his gun, and the agent

retrieved some hulls from the pistol. Cagle said that Agent Emiren returned

to Cagle’s house again and asked Cagle for his gun, and he told Agent Emiren

that he had traded his gun for a rifle at a gun store. Cagle identified a weapon

presented by the State and testified that it was the gun that he had owned

when the crime had occurred. Cagle denied loaning the weapon to the

[petitioner] at any time prior to the victim’s shooting and denied ever seeing

the [petitioner] in possession of this pistol.

On cross-examination, Cagle acknowledged that he had a dispute with

Stafford in the past but testified that this dispute was not a “big deal.” He

testified that, on the night of the crime, he had consumed “a couple of

six-packs” of beer prior to the [petitioner]’s arrival at his house. When the

[petitioner] arrived, he seemed like he was in a good mood and did not appear

to be hiding a weapon. Cagle further testified that they did not discuss

Stafford or the [petitioner]’s upcoming trial for Ralph Wilkey’s homicide.

Cagle said that no one threatened Stafford before he got into Cagle’s truck.

He acknowledged that he was intoxicated the first time that he provided Agent

Emiren with a statement. Cagle denied possessing a weapon on the night of

the crime but acknowledged that he had a pruning saw in his truck. Cagle

testified that the [petitioner] never expressed any intent to kill Stafford, and

he never said that he tried to kill Stafford.

On redirect examination, Cagle said that, at the time of the crime, he

also owned a twelve gauge shotgun and a thirty-eight revolver, and the

thirty-eight was kept inside Dodson’s purse. He said that he never saw the

[petitioner] with the thirty-eight revolver and that he did not think that the

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[petitioner] knew that Dodson had that gun. On recross-examination, Cagle

testified that it was pretty dark at the VFW and that he turned the headlights

off when the men were standing outside the truck.

Victoria Gossett Dodson testified that she has lived with and dated

Cagle for six years. She said that on Sunday, May 2, 1999, the [petitioner],

a friend whom she has known all her life, came to their home at around 9:30

or 9:45 p.m. She said that the [petitioner] had been drinking alcohol, but he

was not drunk, and he asked Cagle to take him to town to go to McDonald’s

and to get some more beer. She estimated that Cagle and the [petitioner] left

the house no later than 10:00 p.m. and that she saw the men again about two

or two and a half hours later. She said that the [petitioner] seemed more

intoxicated when the men returned and, while Cagle had consumed a few

beers before the men left her home, he did not appear drunk. She said that,

after the men returned to her house, Cagle took a shower, the [petitioner] sat

on her couch and ate a hamburger, and no one engaged in any conversation

about Stafford.

Dodson said that she heard someone pull into her driveway, so she

looked outside and saw Wooden and some men at her back porch. Wooden

asked her if Cagle was home, and she told him that Cagle was just getting out

of the shower and invited Wooden and the men who accompanied him to

come inside, but the men said that they would wait outside for him. Cagle

then went outside to speak with the men. Dodson testified that Wooden and

the men who accompanied him could not see the [petitioner] from where they

stood, that she did not tell these men that the [petitioner] was in her home, but

the men pulled in right behind the [petitioner]’s car. She said that the

[petitioner] remained in her home while Cagle left with Wooden to answer

some questions.

Dodson said that she asked the [petitioner], “What’s going on?” and

that he replied, “We shot [Stafford].” She asked the [petitioner] who shot

Stafford, and he said that he shot Stafford once and that Cagle shot him twice.

She said that the [petitioner] told her to call the hospital to see if Stafford was

dead, which she did and learned that Stafford had been transferred to another

hospital. The [petitioner] asked her to call that hospital to see if Stafford was

dead, which she did and learned that Stafford was going to have surgery to

repair the damage from his gunshot wounds. She told the [petitioner] what

she had learned, and the [petitioner] told her, “He needs to die and go on. He

needs to die and go on.” Dodson testified that she asked the [petitioner] why

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this had happened, and the [petitioner] did not respond and appeared to pass

out on the couch.

Dodson testified that the police later called her on the telephone and

said that they were coming back to her house to get the [petitioner], which

they did and arrested the [petitioner]. She thought that she showed Agent

Emiren her thirty-eight pistol. Dodson testified that Cagle owns a forty-five

pistol, but he did not have it with him on the night of the crime. She said that

she spoke with Agent Emiren the day after the crime had occurred, but she

was not completely truthful with him because she was scared that she might

get Cagle into trouble. She said that she did not tell the agent that the

[petitioner] had said that Stafford needed to die on the night of the crime

because she was trying to protect Cagle and the [petitioner]. She said that,

later, she told Agent Emiren what the [petitioner] had said.

On cross-examination, Dodson testified that she loved Cagle and that

she would hate to see him go to the penitentiary. She said that she and Cagle

rode on four-wheelers on the day of the crime and finished riding about ten

minutes before the [petitioner] came over to their house. She acknowledged

that two full years passed before she told Agent Emiren that, on the night of

the crime, the [petitioner] had said that Stafford needed to die. She testified

that she drank alcohol on the night of the crime, that she takes Xanax, and that

she should not mix alcohol with her prescriptions. She said that the

[petitioner] never threatened her or her family. She said that, after these

events had occurred, she searched her entire home for a pistol but could not

find one.

Virginia Wright Stafford testified that, at the time of trial, she was

married to Stafford, the victim, and that she has lived with him for the past

twelve years. She described her home’s location in relation to Nyla’s Place

and the VFW. She explained that one can get to the VFW from her house by

crossing through her neighbor’s yard and then going through a hayfield. She

testified that she has known the [petitioner] as an acquaintance since she first

started dating Stafford. She said that the [petitioner] came to her home

between 10:00 and 10:30 p.m. after she had gone to bed, Stafford answered

the door, and she heard the [petitioner] ask Stafford to leave the house. She

went to the door and saw the [petitioner] standing there, and Stafford left with

the [petitioner]. She did not recall at what hour Stafford returned to their

residence, but, when he returned, he told her to call 9-1-1 because the

[petitioner] had shot him. She said that Stafford was bent over, holding his

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side, and told her that he was dying. She called 9-1-1 and Gary Johnson, a

police officer with the Pikeville Police Department, arrived at her home and

took Stafford to the Bledsoe County Hospital. She said that he stayed at this

hospital for approximately two hours and that he was then transported to the

UT Hospital in Knoxville where he stayed for approximately twenty days. On

cross-examination, she denied knowing about any disagreements between

Stafford and Cagle. She acknowledged that Stafford drank and that he was

apparently able to buy beer on Sundays. She testified that, when she saw the

[petitioner] at the door, no one acted suspiciously, and she did not see any

weapons.

Steven Michael (“Mike”) Stafford, the victim, testified that he lives

with and is married to Virginia Wright Stafford. He said that he has known

the [petitioner] his entire life and that Ralph Wilkey was his brother-in-law.

Stafford testified that, after Wilkey’s death in 1998, he provided the police

with some information regarding the [petitioner] and that he served as a

witness for the State in a homicide case brought against the [petitioner].

Stafford said that, on Sunday, May 2, 1999, the [petitioner] came to his porch

door and asked him to take the [petitioner] to get some beer. He agreed, the

[petitioner] gave him twenty dollars, and he went to Nyla’s Place with Cagle

and the [petitioner] to buy the beer. Stafford saw Nyla’s sister, Willie Mae

Pendergrass, in the store, and he purchased the beer and went back to the

truck. He said that the [petitioner] asked him to ride around and drink a beer

and that he declined the invitation because he had to awake at 3:00 a.m. to

take his wife to work. He said that the [petitioner] said, “Well, can’t you ride

with us and just drink one beer?” He agreed to this proposition, and they went

to the VFW.

Stafford testified that he did not know why they went to the VFW and

that the VFW was closed, so they stood outside talking. Stafford explained

that the [petitioner] went behind the building to go to the bathroom and then

hollered at him, asking him to come around the building. Stafford testified

that he and Cagle started to go around the building, and the [petitioner] said,

“Not you, Denny, just Mike.” Stafford testified that Cagle stayed by the truck

in front of the building, and Stafford walked around the building. He said that

he stood about three feet from the [petitioner], and the [petitioner] asked him,

“[Y]ou think they’ll do anything to me about Ralph?,” and he replied, “I think

they . . .,” and then the [petitioner] shot him three times. Stafford testified that

he could not see the gun in the [petitioner]’s hand because of how the

[petitioner] was standing, but he could tell that the [petitioner] was aiming at

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him when the [petitioner] shot the gun. He testified that the first gunshot hit

him just below his right nipple and exited below his left shoulder blade.

Stafford described how he ran around the building, went across the parking

lot, went into some bushes, and then he had to sit down. He said that he was

in pain and felt like he had been shot more than once. He did not recall seeing

Cagle when he ran, and he was scared that the [petitioner] and Cagle were

working together.

Stafford said that he ran to his home and arrived at the first step of his

residence, and then he picked up an item and threw it against the wall to get

his wife’s attention. Stafford thought that he told his wife that the [petitioner]

had shot him and told her to call 9-1-1. He said that Officer Johnson arrived,

that his wife put him in the officer’s car, and the officer took him to a hospital.

From there, he went to another hospital in Knoxville, had surgery, and he

stayed there for about two weeks. Stafford acknowledged that he had

previously received a ticket for presenting a false identification, and that, in

1995, he pled no contest to improper influence of a jury.

On cross-examination, Stafford acknowledged that Cagle had accused

him of raiding Cagle’s marijuana patch. He said that, on the night of the

crime, he was not surprised when Cagle arrived at his house because Cagle

was with the [petitioner]. He said that the [petitioner] never threatened him

over the course of the evening, and the [petitioner] did not seem to be hiding

a weapon. Stafford testified that he did not see what kind of gun the

[petitioner] used to shoot him. He said that, before the [petitioner] called him

to walk around the building, the [petitioner] had not asked him about the

Wilkey case. When asked if he told Officer Johnson that the [petitioner] and

Cagle shot him, he testified that he could not recall because he was weak and

“out of it.”

Officer Gary Johnson testified that he was employed with the Pikeville

Police Department on Sunday, May 2, 1999, and that the sheriff’s department

received a call about a shooting during the early morning hours of May 3,

1999. He said that he went to the victim’s residence, and, when he arrived,

he saw Stafford bent over on his steps. Stafford told Officer Johnson that he

was going to die and that the [petitioner] had shot him, and the officer took

Stafford to the hospital and could see blood coming from Stafford’s back. On

cross-examination, Officer Johnson testified that he never interviewed Cagle

about the incident. He acknowledged that Stafford said that both the

[petitioner] and Cagle shot him. He testified that he did not know if anyone

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ever performed a gunshot residue test on the [petitioner] or Cagle.

David Emiren, a former agent with the TBI, testified that he

investigated the victim’s shooting and that he went to the VFW on May 3rd,

at around 5:30 a.m., where he took photographs of the area and found a

forty-five caliber hull that had been expended from a weapon and landed

behind the VFW. He testified that he was unable to find a weapon or the

bullet that went through the victim. The agent testified that he went to

Cagle’s residence to find out about Cagle’s guns and that Cagle said that he

owned a forty-five pistol but that gun was located elsewhere. Agent Emiren

explained that, later, he found the weapon in a store that Cagle had traded

firearms with and that he took some test shots with this weapon. He testified

that this weapon expended forty-five hulls and that he retrieved the hulls from

this gun, and they were compared against the hull that was found at the crime

scene. The agent testified that he was the officer that investigated Ralph

Wilkey’s death, that Stafford was a witness for the State, and that Stafford

testified against the [petitioner]. He acknowledged that the [petitioner]’s car

was at Cagle’s residence, that he searched the [petitioner]’s car, and that he

did not find a weapon inside.

On cross-examination, Agent Emiren acknowledged that Stafford was

not the only individual on the State’s witness list in the Wilkey case and that

he and about a dozen other people were on the list. He testified that he did not

perform a gunshot residue test on Cagle. The agent acknowledged that he

knew that Cagle was at the crime scene when he conducted his investigation,

and he explained that, according to his understanding, Cagle was not the

alleged shooter. He acknowledged that almost two years had passed before

he tested Cagle’s forty-five to see if it produced a hull that matched the one

discovered at the crime scene. He explained that, when he conducted his

investigation, Cagle said that the weapon that ejected the forty-five hull was

in Barney Neergaurd’s truck. Agent Emiren testified that he searched the

[petitioner]’s vehicle and that he could not find a weapon inside. He did not

recall if he found a witness list inside the [petitioner]’s vehicle. On redirect

examination, Agent Emiren testified that Stafford was an important witness

for the State in the trial for the charges brought against the [petitioner] for

Wilkey’s murder.

Dinnah Caluag, a TBI firearms examiner, testified that she examined

a forty-five pistol that Agent Emiren had submitted to the lab. She explained

that this weapon uses forty-five caliber cartridges, and she explained how the

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gun operates and that it ejects cartridge cases that are also referred to as hulls.

She identified a cartridge case that was submitted to the lab and collected from

the crime scene, and two other cartridge cases that Agent Emiren gave to her.

She explained that a gun makes certain markings on a hull when it is fired and

that she compared the hull taken from the crime scene with the other two hulls

that Agent Emiren had given to her. She testified that the hull from the crime

scene could have been fired from the forty-five pistol Agent Emiren

submitted, but the other hulls did not have sufficient markings to determine

from what weapon they had been fired.

Richie Dykes and Teresa Smith testified that, on the day the victim was

shot, Cagle had fired a pistol, possibly a forty-five, two or three times over the

top of Jeremy Davis’s truck. Smith testified that the [petitioner] is her uncle

and that she went to Dykes’s residence to look for hulls because she thought

that the [petitioner] had been set up. Smith acknowledged that she testified

as a witness for the [petitioner] in the Wilkey trial.

The [petitioner] testified that he is friendly with both Cagle and the

victim, but he had heard that Cagle and Stafford had problems with each other

in the past. He testified that, on the day of the crime, he went to his brother

Buck’s house, drank some beer, and then went to Cagle’s house. He testified

that he had loaned Cagle one hundred dollars, and he went to Cagle’s house

to collect the money. He said that, when he arrived at Cagle’s house, Cagle

asked him to go with Cagle to Dunlap to get some hamburgers and beer, and

the [petitioner] agreed. The [petitioner] testified that Cagle drove to the

McDonald’s, but it was closed, so they went to the Golden Gallon to get some

beer. The [petitioner] testified that Cagle’s girlfriend, Dodson, was in the

kitchen when they returned to Cagle’s house, and Cagle went into another

room and said, “I’ll be back” and was gone for about an hour and a half. The

[petitioner] thought that Cagle was going to his father’s house because

Cagle’s father was sick and lived next door. The [petitioner] said that he sat

down on Cagle’s living room chair, and when Cagle finally returned, Cagle

had showered but, he did not appear to need a shower.

The [petitioner] denied seeing Stafford on the night of the crime and

said that he did not leave Cagle’s house until the police took him into custody.

The [petitioner] testified that he had seen the gun that was entered into

evidence several times before at Cagle’s residence. He testified that he did not

own a gun like the one that had been entered into evidence, that he does not

own a forty-five, and that he did not own a forty-five on the day of the crime.

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He denied going to his car when they returned to Cagle’s house. He said that,

when the deputies arrived at Cagle’s residence, they said who they were, and

they asked to speak with Cagle. He acknowledged that, once the deputies left

with Cagle, he could have left Cagle’s residence. The [petitioner] testified

that he did not leave and that the police officers later took him into custody.

He testified that he is right-handed and that he can shoot a pistol with his right

hand.

On cross-examination, the [petitioner] acknowledged that his thumb

and his index finger are his only working right-hand fingers and that his

pinkie finger and ring finger are his bad fingers. The [petitioner] explained

that, if he had problems using his right hand, then he could not have worked

at his job. The [petitioner] said that, on the day of the crime, he spoke with

his brother and Dennis Johnson. He said that he saw these people during the

day and that he went to Cagle’s residence at around 9:00 or 9:30 p.m. He said

that Cagle had owed him money for a couple of months, and he did not know

why he chose to retrieve his money from Cagle on that particular day. The

[petitioner] testified that he sat and watched television when Cagle left his

home at around 11:30 p.m. after they returned from their trip to town.

The [petitioner] said that Cagle called the Sheriff when he returned, at

around 12:30 a.m., and asked who had gotten shot in Bledsoe County. Cagle

told him that Cagle heard about the shooting on a scanner, but he did not have

a scanner. The [petitioner] acknowledged that he knows Wooden personally

and that he did not go to talk to Wooden when the police officers arrived at

Cagle’s residence. The [petitioner] said that he figured that the police officers

would come and speak with him if they wanted to talk to him. He testified

that he had no reason to speak with the officers even though he had heard that

somebody had been shot. The [petitioner] acknowledged that he stayed at

Cagle’s house after Cagle left with the police even though he did not know if

Cagle would return. He denied telling Dodson that he shot Stafford and that

Stafford needed to die. The [petitioner] said that Dodson did not use the

phone while he was at Cagle’s house.

The [petitioner] acknowledged that Upchurch represented him in the

Ralph Wilkey case and that he received a list of State witnesses in the mail,

and he went over the list with Upchurch. He acknowledged that he knew that

Stafford was on this witness list, but he did not recall telling Joe Johnson that

Stafford was on his “list.” He further testified that he did not say that Stafford

was on his list and that Johnson’s statements are incorrect. The [petitioner]

-12-

testified that Virginia Wright Stafford was mistaken when she said that she

saw the [petitioner] knocking at her door. He also testified that the victim’s

testimony that the [petitioner] shot him is incorrect and that he did not tell

Dodson that he shot the victim.

State v. Nelson Troglin, No. E2005-02015-CCA-R3-CD, 2006 WL 2633107, at *1-9 (Tenn.

Crim. App. Sept. 14, 2006), perm. to appeal denied (Tenn. Jan. 29, 2007).

On October 22, 2007, the petitioner filed a pro se petition for post-conviction relief,

and, following the appointment of counsel, an amended petition was filed. In the petitions,

the petitioner raised, among other things, numerous allegations of ineffective assistance of

counsel. The post-conviction court conducted an evidentiary hearing, at which the

petitioner’s trial counsel testified that he represented the petitioner in his attempted first

degree murder case. At that time, the petitioner had recently been convicted in another

homicide case. Even so, counsel said that it never crossed his mind that there was not much

he could do since the petitioner was going to be serving a long sentence regardless of the

outcome in the present case.

Counsel testified that at the time of his representation, he had conducted “[o]ver a

hundred” trials and was very familiar with the need to thoroughly investigate a case and call

witnesses. Counsel said that he met with the petitioner two or three times in preparation for

trial. During their meetings, counsel and the petitioner discussed the facts of the case, range

of punishment, and the possible testimony of, and the petitioner’s opinions concerning, the

potential witnesses, including Teresa Smith, Richie Dykes, Victoria Dodson, and Denny

Cagle. According to counsel, the petitioner “did not mince words” when talking about the

witnesses. In particular, the petitioner said that Denny Cagle had killed two people in the

past and that Dodson took medication for mental health issues.

Counsel testified that the petitioner expressed his desire for a continuance at least

twice and initially wanted a change of venue as well. However, the petitioner later changed

his mind and wanted to be tried in Bledsoe County. The petitioner also expressed his desire

for counsel to withdraw from the case. Counsel stated that he and the petitioner discussed

the need for a mental evaluation, and the petitioner agreed to get one.

Counsel testified that they discussed the petitioner’s first trial and talked about how

the petitioner thought the victim was a violent person. The petitioner asserted to counsel

that he had “been had” in his first trial because the judge “rushed the jury for the 4th of

July.” The petitioner told counsel that Richard Wooden was the most damaging witness in

the first trial and “if he was going to shot somebody, he’d have shot [Wooden].”

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Counsel explained to the petitioner his right to testify and possible impeachment, and

the petitioner decided that he did not want to testify. Counsel stated that he discussed trial

preparations with the petitioner and noted that he had hired an investigator. They discussed

self-defense and accident as possible defenses, but the petitioner claimed an alibi defense.

The petitioner’s alibi was that he stayed at Denny Cagle and Victoria Dodson’s house while

Cagle left; however, “there was no one else that could back that up.” Counsel could not

recall whether he interviewed Dodson before trial but said that he usually tried to interview

every witness he could find.

Counsel said that he interviewed Denny Cagle and Elizabeth Summers, and he read

the petitioner memos from those interviews. Counsel testified that the victim initially

refused to talk to him, but counsel was able to successfully interview him within a week of

the trial. Counsel said that he conducted a phone interview of Teresa Smith and called for

Richie Dykes but was unable to speak to him.

Asked if he cross-examined Victoria Dodson about whether the petitioner remained

at her house while Cagle left for a time, counsel said that nine years had elapsed and he

could not remember. However, he asserted that the record would reflect the nature of his

questioning and that his line of questioning would have depended on how Dodson testified

on direct examination. He acknowledged that it would have been important to know

Dodson’s version of the facts prior to trial from either an interview or through the discovery

from the State. Counsel said that he did not think that anyone who was not on the witness

list was interviewed regarding there being “bad blood” between the victim and Cagle.

Counsel testified that there was an issue right before trial where a friend or relative

of the petitioner indicated that one of the jurors was overheard saying, in front of other

people, something along the lines of “just hanging [the petitioner] and getting on with it[.]”

Counsel said that he brought the allegation to the court’s attention but did not move for a

mistrial because “without some proof that there had been tainting, it’s not going to be

granted.”

Counsel testified that he received a list of the members of the jury pool prior to trial,

but he did not recall whether he went through the list with the petitioner, and his notes were

silent on the matter. He said that he “might very well have” made a notation in his notes had

he gone over the list with the petitioner and had the petitioner indicated a problem with any

of the potential jurors. Counsel acknowledged that “[i]t can be” a usual trial preparation to

discuss the jury pool with one’s client. However, counsel, not being from Bledsoe County,

met with a local attorney, who went through the list of potential jurors with him. He and the

local attorney discussed the potential jurors’ backgrounds and any problems they may have

had. Counsel filed a motion for individual sequestered voir dire so he could question the

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potential jurors individually in the jury room.

Counsel testified that the petitioner was not tried in prison clothes because he

remembered the trial being delayed due to the petitioner’s being brought from the jail in his

prison clothes and having to wait for the petitioner’s family to bring his civilian clothes.

Counsel said that he did not request a charge of voluntary intoxication because the petitioner

had been insistent that he was not present during the crime and he “could [not] play it both

ways with the jury.” Counsel could not recall whether he mentioned the alibi defense in his

opening statement but said that, if he did not, it was a strategy “in case any of the state

witnesses backed up on their stories.”

Counsel testified that if he did not cross-examine Cagle, Dodson, and the victim

regarding the petitioner’s alibi defense, it was because they all testified that the petitioner

was present at the scene of the crime and counsel had to focus on attacking their credibility.

Specifically, counsel asked Dodson about her use of Xanax and alcohol; he “went more on

attacking their perceptions.”

Counsel testified that the petitioner thought that all of the witnesses were “liars” and

if counsel had “known how to prove that they were lying [he] would have done it.” Counsel

noted that he did a criminal history check of the victim. Counsel recalled that there were

questions concerning Cagle’s involvement in the shooting, but he did not interview people

in the community regarding why Cagle would have been involved in a shooting of the

victim.

Counsel testified that he withdrew as the petitioner’s attorney prior to the hearing on

the motion for new trial. He acknowledged that he and the petitioner had issues with each

other and “exchanged words a lot of times.” Counsel noted that the day he arrived to argue

the motion for new trial, he discovered that the petitioner had filed a civil suit against him

for monetary damages, which bothered counsel because he had worked very hard on the

petitioner’s case. Counsel said that the petitioner was “the most difficult client” he had ever

represented, and the petitioner had a bad inmate advisor. Counsel recalled that he would

send informative letters to the petitioner throughout the process, and every letter “would be

turned around . . . [and] used against [him].” The petitioner wrote to the Board of

Professional Responsibility with complaints against counsel.

Counsel testified that, as a result of his difficulties with the petitioner, he attempted

to withdraw, pretrial, on a couple of occasions. After he successfully withdrew following

the trial, counsel and appellate counsel had some communications with one another at the

courthouse but did not have a sit-down interview. Counsel did not testify at the motion for

new trial hearing. Counsel sent the case file to the petitioner and “probably” told appellate

-15-

counsel that the file was the property of the petitioner and he could refer to it as necessary.

On cross-examination, counsel testified that another attorney, “first counsel,”

represented the petitioner in the petitioner’s other case that resulted in a second degree

murder conviction. The petitioner also asserted an alibi defense in that case. Counsel said

that, in the present case, he knew from reviewing the Jencks material and his interviews that

the witnesses were going to completely contradict the petitioner’s alibi defense. Further, the

only witnesses the petitioner provided were ones who would say that Denny Cagle owned

a .45 caliber gun and had shot it recently. However, the .45 caliber gun presumably

belonging to Cagle was tested by the TBI and determined not to be the murder weapon.

Counsel testified that the petitioner was not always forthcoming with counsel, and

counsel would “ha[ve] to keep trying to drag stuff out of him.” Counsel said that the

petitioner was present during voir dire and consulted during the process. In particular,

counsel’s notes reflected that the petitioner wanted a certain potential juror on the jury but

then later claimed that “we should not have kept [the juror] on there[.]” Regarding his not

mentioning the alibi defense in his opening statement, counsel agreed that divulging things

to the State in opening statement could hamper the trial. Counsel said that the petitioner

“waffled” on whether he wanted to testify, which was also a reason to not address in

opening statement what the petitioner would or would not say. Counsel stated that he was

not surprised by anything said by the witnesses, and he did not know of anything he could

have done differently that would have affected the outcome of the case. Moreover, counsel

did not think that any further consultation or conversations with the petitioner would have

been helpful because “nothing new came out any time that [they] spoke . . . after the first

time.”

Appellate counsel testified that he represented the petitioner at the motion for new

trial hearing and on appeal. Prior to conducting the motion for new trial hearing, appellate

counsel met with trial counsel “a time or two” at the courthouse and retrieved the file from

him. Appellate counsel was aware that the petitioner had filed a complaint against trial

counsel with the Board of Professional Responsibility. One of the grounds alleged for relief

was the acrimonious relationship between the petitioner and trial counsel. Appellate counsel

recalled that it was the petitioner and his inmate advisor’s idea to include ineffective

assistance of counsel as a ground for relief in the motion for new trial, and appellate counsel

was against it. The petitioner was strongly advised not to pursue ineffective assistance of

counsel in his motion for new trial or on direct appeal. However, at the petitioner’s

insistence, appellate counsel “put on what proof was suggested,” framing the issue around

the “bad relationship” between the petitioner and trial counsel. Appellate counsel did not

call trial counsel as a witness at the motion for new trial hearing because trial counsel never

indicated that the poor relationship prevented him from being effective. Appellate counsel

-16-

felt that to have trial counsel testify would be counter-productive, so he “figured that was

our best advantage . . . to frame it from [the petitioner]’s standpoint and leave [trial counsel]

off the stand saying, [‘]oh, I still did my best and I didn’t have any problem.[’]”

Appellate counsel testified that he received no indication from the petitioner that he

wanted a witness called to testify that was not called. Appellate counsel acknowledged that

the petitioner’s inmate advisor sent him a letter asking that he subpoena trial counsel to

testify at the motion for new trial hearing. However, he explained that the letter was written

close to a year before the motion for new trial was filed, and he tried to convince, and hoped,

during the interim “that they would give up on this idea of pursuing ineffective assistance

of counsel [on] direct appeal.”

Appellate counsel testified that he was concerned that if they only raised one ground

of ineffective assistance of counsel, the other grounds would be waived. Counsel said that

“all [he] knew to do was try to explain it as thoroughly and as clearly as [he] could to [his]

client, if [the petitioner] rejected [his] theory, then [he] put in there what [the petitioner]

requested[.]” Even though appellate counsel raised ineffective assistance of counsel on

direct appeal, he did not include it as a ground in his application for permission to appeal to

the Tennessee Supreme Court because he “didn’t think it was a good issue to take up to the

supreme court” as he did not think it was a good issue to have been raised in the first place.

Appellate counsel stated that, even though he did not think ineffective assistance of counsel

was a strong claim to raise on direct appeal, that did not negatively impact the effort he put

into proving the claim because it tied in with the animosity between the petitioner and trial

counsel and how the court erred in not granting trial counsel’s motion to withdraw.

The petitioner testified that trial counsel met with him two times prior to trial, and the

visits were not very long. The petitioner did not believe that counsel was interested in his

case at all. The petitioner said that he explained to counsel that the victim and Denny Cagle

“had been into it for a number of years over drugs,” but he did not know whether counsel

ever investigated that relationship or any of the other witnesses. The petitioner stated that

he and counsel had a bad relationship because counsel “just didn’t do his job,” and counsel

had represented the victim and one of the witnesses in other matters. Asked what counsel

should have done differently, the petitioner said that counsel “should have come off [his]

case,” should have met with and communicated with him more often, and should have talked

to him before the motion for new trial.

The petitioner testified that he and trial counsel never sat down prior to trial and

discussed the list of potential jurors and, had they gone over the list, the petitioner would

have been able to provide information that would have avoided the juror problems that

occurred in the trial. The petitioner stated that he tried to talk to counsel about who he

-17-

wanted counsel to interview and how he wanted to be defended, but counsel “didn’t listen

to [him]” and “didn’t represent [him] the way it ought to be represented in court.” The

petitioner said that he did not “trust [trial counsel] in no way.”

With regard to appellate counsel’s representation, the petitioner testified that he did

not tell appellate counsel, or have his inmate advisor tell appellate counsel, to raise the issue

of ineffective assistance of counsel on direct appeal. The petitioner said that he cannot read

and write so he depends on what his inmate advisor communicates for him. The petitioner

said that he never had a conversation with appellate counsel regarding raising the issue of

ineffective assistance of counsel on direct appeal, but then later said that he actually told

appellate counsel that ineffective assistance of counsel was an issue that should not be

pursued on a direct appeal.

On cross-examination, the petitioner admitted that the two witnesses he claimed he

wanted trial counsel to talk to were Dennis Cagle and Victoria Dodson, both of whom were

either interviewed or procured a statement from prior to trial. He did not know of any other

witness names he gave trial counsel to interview. With regard to the selection of the jury,

the petitioner acknowledged that he was sitting beside counsel throughout the process but

said that counsel did not ask his opinion on every juror. The petitioner said that he did not

tell trial counsel that he specifically wanted to keep the one particular juror with whom he

later alleged a conflict. He stated that he was drunk the night of the offense and that was

why he wanted counsel to get a voluntary intoxication charge even though he maintained

that he was not present during the offense. With regard to appellate counsel’s testimony

regarding raising the issue of ineffective assistance of counsel, the petitioner said that

appellate counsel lied in his testimony. He also said that appellate counsel “misrepresented

[him] in court by not calling [his] witnesses . . . on the motion for new trial.”

In denying the petition, after reviewing the standard of review, the post-conviction

court found that neither attorney performed in such a way to “breach the standard of care,

but even if there were something that breached the standard of care, . . . [none] of these

alleged errors were such that . . . the verdict in the trial would have been otherwise.” The

court further commented that the petitioner’s “credibility is suspect” and explicitly resolved

any conflicts in the testimony in favor of trial counsel and appellate counsel.

ANALYSIS

On appeal, the petitioner argues the post-conviction court erred in finding that he

received effective assistance of counsel. Post-conviction relief “shall be granted when the

conviction or sentence is void or voidable because of the abridgment of any right guaranteed

by the Constitution of Tennessee or the Constitution of the United States.” Tenn. Code Ann.

-18-

§ 40-30-103 (2006). The petitioner bears the burden of proving factual allegations by clear

and convincing evidence. Id. § 40-30-110(f). When an evidentiary hearing is held in the

post-conviction setting, the findings of fact made by the court are conclusive on appeal

unless the evidence preponderates against them. See Wiley v. State, 183 S.W.3d 317, 325

(Tenn. 2006). When reviewing factual issues, the appellate court will not reweigh the

evidence and will instead defer to the trial court’s findings as to the credibility of witnesses

or the weight of their testimony. Id. However, review of a trial court’s application of the

law to the facts of the case is de novo, with no presumption of correctness. See Ruff v.

State, 978 S.W.2d 95, 96 (Tenn. 1998). The issue of ineffective assistance of counsel,

which presents mixed questions of fact and law, is reviewed de novo, with a presumption

of correctness given only to the post-conviction court’s findings of fact. See Fields v. State,

40 S.W.3d 450, 458 (Tenn. 2001); Burns v. State, 6 S.W.3d 453, 461 (Tenn. 1999).

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

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

Const. art. I, § 9. To establish a claim of ineffective assistance of counsel, the petitioner has

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

deficient performance prejudiced the outcome of the proceeding. Strickland v. Washington,

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

1997) (noting that same standard for determining ineffective assistance of counsel that is

applied in federal cases also applies in Tennessee). The Strickland standard is a two-prong

test:

First, the [petitioner] must show that counsel’s performance was deficient.

This requires showing that counsel made errors so serious that counsel was

not functioning as the “counsel” guaranteed the [petitioner] by the Sixth

Amendment. Second, the [petitioner] must show that the deficient

performance prejudiced the defense. This requires showing that counsel’s

errors were so serious as to deprive the [petitioner] of a fair trial, a trial whose

result is reliable.

466 U.S. at 687.

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

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

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

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

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

within the range of reasonable professional assistance, see Strickland, 466 U.S. at 690, and

may not second-guess the tactical and strategic choices made by trial counsel unless those

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choices were uninformed because of inadequate preparation. See Hellard v. State, 629

S.W.2d 4, 9 (Tenn. 1982). The prejudice prong of the test is satisfied by showing a

reasonable probability, i.e., a “probability sufficient to undermine confidence in the

outcome,” that “but for counsel’s unprofessional errors, the result of the proceeding would

have been different.” Strickland, 466 U.S. at 694. The same principles apply in determining

the effectiveness of trial and appellate counsel. Campbell v. State, 904 S.W.2d 594, 596

(Tenn. 1995).

Allegations Against Trial Counsel

The petitioner argues that trial counsel rendered ineffective assistance by failing to

“adequately meet with [him] to adequately prepare the case for trial” and not listening to him

at their meetings. He asserts that, had counsel met with him more often and “actually

listened to him,” trial counsel would have reviewed the list of potential jurors and also

learned background information on the State’s witnesses that could be used for

impeachment. The petitioner also asserts that trial counsel was ineffective for failing to

interview Victoria Dodson prior to trial and for not “effectively pursu[ing] the defense

strategy of [the petitioner]’s alibi.”

The Post-Conviction Procedure Act provides in pertinent part:

(f) Upon receipt of a petition in proper form, or upon receipt of an

amended petition, the court shall examine the allegations of fact in the

petition. If the facts alleged, taken as true, fail to show that the petitioner is

entitled to relief or fail to show that the claims for relief have not been waived

or previously determined, the petition shall be dismissed. The order of

dismissal shall set forth the court’s conclusions of law.

....

(h) A ground for relief is previously determined if a court of competent

jurisdiction has ruled on the merits after a full and fair hearing. A full and fair

hearing has occurred where the petitioner is afforded the opportunity to call

witnesses and otherwise present evidence, regardless of whether the petitioner

actually introduced any evidence.

Tenn. Code Ann. § 40-30-106(f), (h) (2006).

We initially note that the petitioner’s claim of ineffective assistance of trial counsel

was previously determined by this court on direct appeal and cannot be relitigated in a

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post-conviction proceeding, even though the petitioner may not have made the same

allegations on direct appeal that he now makes in his post-conviction petition. See Ronald

Yates v. State, No. W2008-02067-CCA-R3-PC, 2009 WL 4505436, at *3 (Tenn. Crim.

App. Dec. 3, 2009); Jay Homer Chambers v. State, No. E2004-01862-CCA-R3-PC, 2005

WL 2346974, at *2 (Tenn. Crim. App. Sept. 26, 2005); John Earl Scales v. State, No.

M2003-01753-CCA-R3-PC, 2004 WL 1562542, at *6-7 (Tenn. Crim. App. July 13, 2004),

perm. to appeal denied (Tenn. Nov. 8, 2004); Russell Lane Overby v. State, No.

W2001-01247-CCA-R3-PC, 2002 WL 818250, at *2 (Tenn. Crim. App. Apr. 26, 2002),

perm. to appeal denied (Tenn. Sept. 9, 2002). This court has previously noted that raising

a claim of ineffective assistance of counsel on direct appeal is “fraught with peril.”

Thompson v. State, 958 S.W.2d 156, 161 (Tenn. Crim. App. 1997). Ineffective assistance

of counsel is “a single ground for relief” under the post-conviction statute, even though the

violation may be established by multiple acts or omissions. Id. (citations omitted).

In any event, trial counsel testified to his preparations for the petitioner’s case,

including his interactions with the petitioner, interviewing the witnesses, and his utilization

of the petitioner’s requested alibi defense. The post-conviction court accredited the

testimony of counsel over that of the petitioner’s “suspect” testimony. From our review, we

fail to see any deficiency in counsel’s performance or, moreover, how any alleged deficiency

would have changed the outcome of the case.

Allegations Against Appellate Counsel

The petitioner argues that appellate counsel rendered ineffective assistance for failing

to call trial counsel as a witness at the motion for new trial hearing. In addition, he asserts

that, if this court finds that his various allegations of ineffective assistance of trial counsel

are waived due to appellate counsel’s raising ineffective assistance on direct appeal, then

appellate counsel was also ineffective for raising one allegation of ineffective assistance

without raising the other possible allegations of ineffective assistance.

With regard to appellate counsel’s failure to call trial counsel as a witness at the

motion for new trial hearing, appellate counsel testified that he strategically decided to not

call trial counsel as a witness at the motion for new trial hearing because trial counsel never

indicated that his poor relationship with the petitioner prevented him from being effective,

and appellate counsel felt that to have trial counsel testify would be counter-productive.

Appellate counsel explained that he thought it would be to the petitioner’s advantage to

present the issue solely from the petitioner’s viewpoint. Based on our review, we cannot

conclude that this strategic decision on the part of appellate counsel constituted deficient

performance, nor do we see how the outcome would have been different if trial counsel had

testified to the apparent poor relationship between him and the petitioner.

-21-

As to the petitioner’s allegation that appellate counsel was ineffective in raising the

issue of ineffective assistance of counsel, appellate counsel testified that he was afraid that

the petitioner would waive all grounds of ineffective assistance of counsel by raising one

ground on direct appeal, and both appellate counsel and the district public defender strongly

advised the petitioner to not pursue the issue. However, the petitioner insisted, so counsel

raised the issue as framed by the petitioner. As explained by appellate counsel: “My concern

was you raise one issue, you’ve raised them all. But all I knew to do was try to explain it as

thoroughly and as clearly as I could to my client, if he rejected my theory, then I put in there

what he requested I put in there.” Again, the post-conviction court accredited appellate

counsel’s testimony. Therefore, we discern no deficiency on the part of counsel. Moreover,

as indicated above, even if the petitioner’s other allegations of ineffective assistance of trial

counsel were not deemed previously determined, we conclude that he would not be entitled

to relief. Thus, there was also no prejudice caused by appellate counsel’s actions.

CONCLUSION

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

_________________________________

ALAN E. GLENN, JUDGE

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