Brandon Mobley v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

March 29, 2011 Session

BRANDON MOBLEY v. STATE OF TENNESSEE

Appeal from the Criminal Court for Knox County

No. 89072 Bob R. McGee, Judge

No. E2010-00379-CCA-R3-PC - Filed August 18, 2011

The petitioner, Brandon Mobley, appeals from the Knox County Criminal Court’s denial of

his petition for post-conviction relief challenging his 2005 convictions of two counts of

premeditated first degree murder, especially aggravated robbery, and setting fire to personal

property for which he is now serving two consecutive life sentences plus 19 years in the

custody of the Department of Correction. On appeal, the petitioner contends that the post-

conviction court erred by denying his petition for post-conviction relief based upon

allegations that he was denied the effective assistance of counsel and other constitutional

deprivations. Because we determine that the petitioner is entitled to relief on the issue of the

ineffective assistance of counsel concerning the use of expert testimony, we reverse the

judgment of the post-conviction court.

Tenn. R. App. P. 3; Judgment of the Criminal Court Reversed

J AMES C URWOOD W ITT, J R., J., delivered the opinion of the Court, in which J.C. M CL IN, J.,

joined. J ERRY L. S MITH, J., filed a separate opinion, concurring in part and dissenting in part.

Wade V. Davies, Knoxville, Tennessee, for the appellant, Brandon Mobley.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney

General; Randall E. Nichols, District Attorney General; and TaKisha Fitzgerald, Assistant

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

OPINION

The petitioner was convicted of especially aggravated robbery, setting fire to

personal property, and two counts of premeditated first degree murder involving the victims,

Joshua Nance and Oshalique Hoffman.1 The trial court sentenced the petitioner to two

consecutive life sentences for the first degree murder convictions and to an effective sentence

of 22 years for the remaining felony offenses, to be served consecutively to the life sentences.

The evidence adduced at trial established that the petitioner shot the victims inside Ms.

Hoffman’s car on May 26, 2003. See State v. Brandon Mobley, No. E2006-00469-CCA-R3-

CD, slip op. at 1-8 (Tenn. Crim. App., Knoxville, June 11, 2007), perm. app. denied (Tenn.

Sept. 24, 2007). He then dumped Ms. Hoffman’s body in the street before driving to a

wooded area behind a church to dump Mr. Nance’s body. See id. at 4. Afterwards, the

petitioner went to the home of an ex-girlfriend, where he procured products to clean the

interior of the car and enlisted the help of his ex-girlfriend’s younger sister to complete the

task. See id. at 3. The petitioner told friends he had killed the victims after Mr. Nance

threatened him with a gun, telling them “that he planned on getting dope from the two

victims, but Mr. Nance told him that if [he] did not ‘pay up’ the money he owed, his mother

could pick him up at the morgue. Mr. Nance laid a gun on his lap, so the [petitioner] reacted

and shot both victims.” Id. at 4.

The petitioner sought the testimony of Doctor Pamela Auble, who “was

prepared to offer her opinion that, due to the [petitioner’s] mental illnesses, he would have

been unable to premeditate at the time of the killings.” Id. at 6. The State objected, arguing

that the testimony would invade the province of the jury, that it was “irrelevant and

immaterial,” and that it related to “diminished capacity . . . which is not allowed in

Tennessee.” Id. Ultimately, the trial court agreed with the State and deemed Doctor Auble’s

testimony “‘invasive and not allowable.’” Id.

Following the trial court’s ruling, the petitioner took the stand and testified that

he supported himself by selling drugs that he purchased from Mr. Nance and sold at a profit.

Id. According to the petitioner, on the night before the murders, Mr. Nance telephoned him

at his mother’s residence to call in a $2,000 debt the petitioner owed him for cocaine Mr.

Nance had “fronted” to the petitioner. Id. The petitioner said that Mr. Nance threatened him,

and he agreed to meet Mr. Nance on the following day. He admitted arming himself before

going to meet Mr. Nance because he knew Mr. Nance to be in the habit of going armed. See

id. The petitioner walked to the appointed meeting place, and “about five minutes” later Mr.

Nance and Ms. Hoffman arrived in Ms. Hoffman’s car. Id. The petitioner testified that he

was initially hesitant to get into the car but ultimately complied with Mr. Nance’s demands

that he get into the back seat. See id. The petitioner claimed that he intended to return the

cocaine to Mr. Nance because he could not afford to pay the money he owed. The petitioner

1

The transcripts of the post-conviction evidentiary hearing reflect the victim’s name as “Haufman.”

The indictment and direct appeal record reflect the spelling as “Hoffman.” As is the practice of this court,

we will employ the spelling contained in the indictment.

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explained that Mr. Nance insisted that he wanted the money and that if the petitioner did not

provide it “his mother would be identifying him at the morgue.” Id. at 7. At that point, the

petitioner claimed, Mr. Nance displayed a firearm, and the petitioner shot Mr. Nance in

reaction. See id. The petitioner testified that Ms. Hoffman ducked, and he shot her because

he thought she was reaching for a weapon. See id. “Then, the [petitioner] panicked and laid

Hoffman’s body on the parking lot.” Id. The petitioner then drove to a church, where he

disposed of Mr. Nance’s body by pushing it down a hill. See id.

The petitioner then drove to his ex-girlfriend’s residence, where he cleaned up

the car and met with friends. The friends then followed the petitioner to a location on Tipton

Station Road, where he burned the car. See id. “The [petitioner] claimed he threw [Mr.]

Nance’s gun out the window as he was going across a bridge.” Id. The petitioner had his

friends drive him to a motel on Lovell Road, and he was arrested outside the motel a short

time later. See id. The petitioner acknowledged telephone records showing that a call had

been placed from his mother’s cellular telephone to Mr. Nance on the day of the murders, but

he denied making the calls, saying that the calls must have come from his mother’s

boyfriend, who was also buying drugs from Mr. Nance. See id.

Following the petitioner’s testimony, the State reversed its position on Doctor

Auble’s testimony, and the trial court permitted her to testify as an expert. Doctor Auble

testified that she interviewed the petitioner and performed a number of tests designed to

assess the petitioner’s mental health. See id. Her testing established that the petitioner had

an intelligence quotient of 78, placing him in the “‘borderline range of functioning.’” Id.

The testing also established “that the [petitioner] had difficulties with attention and

concentration” and that “his spelling, reading, and math skills were poor.” Id. at 8.

Personality tests showed the petitioner to be “very depressed” with a “bleak” self-view and

“trouble controlling [his] emotions.” Id. Doctor Auble testified that her review of the

petitioner’s medical and psychological records revealed “a chaotic life as a child,” including

a history of being molested by one of his mother’s boyfriends. Id. Doctor Auble testified

that her testing established that the petitioner was not malingering. See id.

Specifically addressing events that led up to Memorial Day,

2003, [Doctor] Auble stated that the [petitioner] was expelled

from school after an altercation, he impregnated his girlfriend,

he was in a car accident, and possibly made a suicide attempt.

Then, in April 2003 the [petitioner] was robbed, which made

him even more distrustful and paranoid. [Doctor] Auble

diagnosed the [petitioner] as having major depression, attention

deficit hyperactivity disorder, oppositional defiant disorder, and

low intellectual functioning. Additionally, there were a number

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of psychosocial stresses from his life experiences. In response

to questioning about how the [petitioner] would have reacted to

perceived threats, [Doctor] Auble further testified that the

[petitioner] would be quick to perceive people as hostile. He

would respond impulsively, without thinking, and this all would

have affected his mental state at the time of the killings.

Id. Doctor Auble conceded that, during his narrative of the offenses, the petitioner told her

that he shot Ms. Hoffman first because she had brandished a handgun. See id.

Further evidence presented at trial showed that Knoxville Police Department

officers discovered Mr. Nance’s body behind a church in the early morning hours on the day

after Memorial Day. The police found the defendant’s fingerprints on a revolver found near

Ms. Hoffman’s body. Forensic examination confirmed that the bullets removed from Ms.

Hoffman and shell casings found at Ms. Byrge’s home were fired from the revolver. The

petitioner was arrested while attempting to flee a motel. Id. at 4-5.

Doctor Sandra Elkins, Knox County Medical Examiner, testified that both

victims died from gunshot wounds to their heads. She further testified that the trajectories

of the wounds were consistent with both victims being shot by someone seated in the

backseat of the car. Although Ms. Hoffman died instantly, Mr. Nance may have survived up

to four hours after being shot. Id. at 5.

On direct appeal, the petitioner challenged the sufficiency of the evidence to

support his convictions, the trial court’s initial exclusion of the expert testimony of Doctor

Auble, and the trial court’s imposition of sentences. Concluding that the evidence was

sufficient and that no reversible error had occurred regarding Doctor Auble’s testimony, this

court affirmed the petitioner’s convictions but modified the defendant’s total effective

sentence to two consecutive life sentences plus 19 years’ incarceration. See id. at 1.

Post-Conviction Proceedings

On April 24, 2008, the petitioner filed a timely pro se post-conviction petition

alleging that his convictions were the result of the ineffective assistance of counsel,

prosecutorial misconduct, and other constitutional deprivations committed by the trial court.

Following the appointment of counsel, the petitioner filed an amended petition alleging that

his transfer from juvenile court to adult court based upon judicial fact-finding violated

Apprendi v. New. Jersey, 530 U.S. 466 (2000), and its progeny; that his total effective

sentence violated the Eighth Amendment’s prohibition against cruel and unusual punishment;

that his convictions were the result of multiple specific instances of ineffective assistance of

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counsel; that the trial court committed constitutional error concerning the breakdown of the

attorney-client relationship; that he was denied his right to present a defense related to Doctor

Auble’s expert testimony; that the State withheld evidence of threats of prosecution made to

one of its witnesses; and that this court applied an erroneous standard of review on direct

appeal concerning the harmlessness of the exclusion of expert testimony. Subsequently, the

petitioner filed a second amendment to his petition alleging several issues related to the trial

court’s forcing him to wear a shock belt during trial, which he contends violated his right to

a fair trial.

At the November 25, 2009 evidentiary hearing, trial counsel testified

concerning his representation of the petitioner. Trial counsel recalled that the petitioner did

not want to “dress out” on the day of trial. After conferring with counsel, the petitioner did

come to court, although he was fearful about going to trial. Trial counsel acknowledged that

in the weeks leading up to trial, the petitioner had expressed his desire not to “go forward”

with counsel and asked him to withdraw, but trial counsel did not file a motion to withdraw.

He said that in subsequent pretrial meetings there were “no problems” and described the

meetings as “productive.”

Concerning the petitioner’s decision to testify at trial, trial counsel said that he

advised the petitioner that the petitioner was the only person who could tell what happened

on the day of the offenses but that it was completely the petitioner’s decision whether to

testify. Trial counsel acknowledged that he did not prepare the petitioner for testifying by

any sort of mock examination or outline because the “facts [of the case] were so cut and dry.”

Trial counsel testified that he met with the petitioner over 20 times.

Trial counsel did not recall consenting to the petitioner’s wearing a shock belt,

but he stated that if the transcript reflected that he had consented, then he must have done so.

He said that he did not discuss the shock belt with the petitioner and that the trial court did

not hold a hearing concerning the shock belt. He recalled that although the petitioner was

fearful the day of trial, he was not disruptive. Trial counsel stated that he “didn’t think [the

shock belt] made a difference” because the device could not be seen by the jury.

Trial counsel testified that he “went over the [tele]phone records” with the

petitioner and never told the petitioner that the records were inadmissible. He said that the

testimony concerning the petitioner’s attempt to telephone a tire store surprised him, but he

found the testimony insignificant in light of the petitioner’s making no attempt to sell parts

from a victim’s car and his setting fire to the stolen vehicle. Because the car was burned with

the tire rims still on, trial counsel did not think the reference to the tire store had any

relevance.

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Concerning forensic evidence, trial counsel admitted that he neither

interviewed any laboratory technicians nor objected to the admission of their testimony. He

opined that there was no basis to object to either the serology evidence or the ballistics

evidence.

Trial counsel recalled that the petitioner had “very little, if no[]” family

support. He noted that the petitioner’s family history was characterized by “[a] lot of history

of drug abuse and everything else . . . it was bad. His living conditions were bad.”

Trial counsel’s strategy at trial was to convey to the jury the petitioner’s version

of the events, which included his claim of self-defense, as well as to convey to the jury that

the petitioner’s mental state precluded him from forming the requisite mens rea for the

offenses. To that end, trial counsel intended to utilize the testimony of Doctor Auble, whose

report contained details of the petitioner’s family and mental health histories as well as his

version of the events leading to the offenses. When the trial court sustained the State’s

objection to the admission of Doctor Auble’s testimony, trial counsel said that he “was pretty

well taken aback by both the objection and by [the trial court]’s initial agreement.” Trial

counsel explained that he had researched the admissibility of such testimony and utilized it

similarly in other trials prior to the petitioner’s trial. Trial counsel recalled discussing State

v. Hall, 958 S.W.2d 679 (Tenn. 1997) (holding that evidence negating a defendant’s ability

to form the culpable mental state is generally admissible) with the trial court to no avail,

stating that “it didn’t seem to make any difference” to the trial court.

Trial counsel recalled that the initial ruling concerning Doctor Auble affected

the petitioner’s decision to testify. Trial counsel believed that without Doctor Auble’s

testimony, the State had shown sufficient evidence of premeditation and that the petitioner

had no choice but to testify to present proof of self-defense. Trial counsel recalled that the

petitioner testified that he routinely carried a handgun for protection because he had been

robbed recently. Trial counsel recalled that the petitioner testified that Mr. Nance brandished

a pistol first and that then the petitioner panicked and shot both victims.

Trial counsel testified that the State withdrew its objection to Doctor Auble’s

testimony after the petitioner testified. Trial counsel said that “ultimately [Doctor Auble]

was able to testify” about the petitioner’s inability to premeditate. According to trial counsel,

he asked Doctor Auble whether the petitioner’s mental state precluded the petitioner from

premeditating the offenses. He further recalled that Doctor Auble testified that the petitioner

was unable to premeditate. Trial counsel acknowledged that Doctor Auble reported that the

petitioner had told her that Ms. Hoffman was the person who pulled the gun, causing the

petitioner to panic and shoot both victims. He claimed, however, that Doctor Auble also

testified that such “small discrepancies” in the petitioner’s account of the offenses would not

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have changed her diagnosis concerning his ability to premeditate. Trial counsel ultimately

admitted that the discrepancy concerning which victim pulled the gun was significant to the

petitioner’s claim of self-defense and that the petitioner most likely would not have testified

had the trial court properly admitted Doctor Auble’s testimony on counsel’s first attempt.

Trial counsel recalled that the State’s closing argument referenced the discrepancy

concerning who had first pulled the gun.

On cross-examination, trial counsel conceded that there was an increased

concern for courtroom security at the petitioner’s trial because the victims’ families and the

petitioner’s family had had some verbal confrontations. Trial counsel also acknowledged

that the petitioner had told friends different versions of the shootings and that these friends

later testified as witnesses for the State. Trial counsel opined that there was never an issue

whether the petitioner had committed the offenses and that the only issue was whether the

offenses were committed in self-defense or without premeditation. Trial counsel said that

the State’s case was very strong and noted that the jury had acquitted the petitioner of two

counts of felony murder.

Jada Byrge testified that she was the petitioner’s girlfriend at the time of the

offenses. She said that her sister, Tabitha Robinson, who was ten-years-old at the time of the

offenses had helped the petitioner clean the victim’s car and had seen blood and brain matter

on the dashboard of the car. Ms. Byrge testified that she and her sister were hesitant to

testify at trial because they felt threatened by the petitioner’s siblings, some of whom

attended school with Ms. Bryge. Ms. Byrge recalled that the prosecutor visited her home and

told her that Tabitha could be charged as an accessory for her role in assisting the petitioner.

She said that she felt threatened by the prosecutor’s statement, but she also affirmed that she

testified truthfully at trial.

Appellate counsel testified that, despite the petitioner’s complaints concerning

trial counsel and the investigator, she did not disclose to the petitioner that her husband was

the investigator. She said that each time the petitioner expressed dissatisfaction with trial

counsel and the investigator, she simply explained that it was “not accepted practice” to raise

issues concerning counsel’s performance on direct appeal. She also acknowledged that trial

counsel had asked her to represent the petitioner on appeal and that she had offered a

favorable opinion of trial counsel’s performance to the petitioner. Appellate counsel

conceded that she had no interaction with the petitioner during trial. Furthermore, her

interaction with the petitioner during his appeal was limited to correspondence, and she never

personally spoke to the petitioner at any time during her representation of him. She opined

that it would have been deficient performance for her to raise an ineffective assistance of

counsel claim on direct appeal.

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Concerning the trial court’s use of a shock belt on the petitioner during trial,

Knox County Sheriff’s Office (KCSO) Assistant Chief of Corrections William Purvis

testified that he was unaware of any type of shock belt being available for use at the time of

the petitioner’s trial in May 2005, and he could not locate any record of one being used on

the petitioner. KCSO Lieutenant James Carson testified that he was supervisor of the court

service division at the time of the petitioner’s trial and that, as such, any use of a restraint

device required his approval after borrowing one from another division. He could not recall

borrowing any such device for use on the petitioner.

KCSO Assistant Chief Harold K. Hayes testified that jail visitation logs

contemporaneous to trial counsel’s representation of the petitioner were destroyed in

September 2009. He was not aware that a subpoena had been served on the agency in July

2009 concerning the records. He said that had he been aware of the subpoena, any records

pertinent to the petitioner would have been salvaged and provided.

The petitioner testified that trial counsel was appointed to represent him after

his case was transferred from juvenile court to adult court. He recalled that his first three

meetings with counsel consisted of only brief discussions concerning the petitioner’s desire

for a bond reduction hearing. The petitioner recalled that he waited months for trial counsel

to file a bond reduction motion and that none was ever filed. He said that each time he spoke

with trial counsel, counsel would tell him that the motion was ready but that he had been

“kind of busy.” The petitioner said that he began to feel that he was being “railroaded” by

trial counsel’s inattention to his case. At one meeting with trial counsel and the investigator,

petitioner “cursed [trial counsel] out” and instructed counsel to withdraw. Trial counsel,

however, did not withdraw from representation. The petitioner said that there was “[n]o way

possible” that trial counsel met with him 22 times as reflected in counsel’s time logs. The

petitioner claimed they had only met five or six times. At their last meeting before trial,

when the petitioner again expressed his dissatisfaction with counsel, he claimed that trial

counsel “would look at [him] like . . . [he] wouldn’t understand [the issues of the case], you

know basically, like [he was] ignorant.”

The petitioner testified that trial counsel did not discuss Doctor Auble’s report

with him before trial. He said that had they discussed the report, he would have noticed

Doctor Auble’s statement that the petitioner told her that Ms. Hoffman had pulled the gun.

The petitioner said that this was just a mistake and that it could have been corrected prior to

anyone testifying had trial counsel discussed the report with him.

The petitioner said that he never wanted to testify and that trial counsel did

nothing to prepare him to testify. He recalled that after Doctor Auble’s testimony was

excluded, he told trial counsel that he did not want to testify and that trial counsel told him

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that he would be “automatically . . . found guilty” if he did not testify.

Concerning the shock belt, the petitioner testified that he did not want to “dress

out” on the morning of trial because he wanted to inform the judge about the broken

relationship with trial counsel. An officer whom he had never met came into the holding cell

and placed the shock belt on his inner left thigh and said that “they didn’t want no disruptions

out of me.” The petitioner said that he never “acted up” in court and had only stated his

complaints concerning trial counsel to the judge. The petitioner said that the shock belt

remained on his thigh throughout the trial and was only removed after he testified.

On cross-examination, the petitioner admitted that he was testifying only from

his memory and that he had kept no notes of meetings with his defense team. He said that

he was unaware trial counsel had documented their meetings in time logs. He conceded that

Ms. Hoffman’s father may have “perceived” some of the petitioner’s eye contact or actions

in court as “antagonizing.” He also acknowledged that the State did not attempt to refute any

evidence presented that Mr. Nance was the petitioner’s drug dealer and that the petitioner

carried a gun because he had been recently robbed.

Kevin Hoffman, the victim’s father, testified in rebuttal for the State that the

petitioner “acted out” and was disrespectful in court. He recalled one instance when he

“blew the [petitioner] a kiss” when the petitioner tried to antagonize him during the trial.

Following the evidentiary hearing but prior to the post-conviction court’s

ruling, the parties stipulated to the affidavit of KCSO Officer Tylenia Miller, a court offficer

present in the trial court during the petitioner’s trial. Ms. Miller confirmed that a shock belt

had indeed been placed on the petitioner’s thigh throughout trial. The post-conviction court

stated that it had considered Ms. Miller’s affidavit in its findings and conclusions.

The post-conviction court denied the petitioner’s requested relief. The court

accredited the testimony of trial counsel concerning his meetings with the petitioner and the

pretrial preparation. The court also found that the use of the shock belt did not violate the

petitioner’s right to a fair trial because the shock belt was not visible to the jury and its use

was reasonable in light of the petitioner’s recalcitrant behavior in court. The court denied

all of the petitioner’s allegations of ineffective assistance of counsel, ruling that trial counsel

did not perform deficiently. Specifically concerning Doctor Auble’s testimony, the post-

conviction court ruled that trial counsel acted reasonably in his handling of Doctor Auble’s

testimony in consideration of the trial court’s initial ruling.

The petitioner filed a timely notice of appeal from the post-conviction court’s

denial of relief. On appeal, the petitioner claims entitlement to post-conviction relief on the

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basis of counsel’s numerous instances of deficient and prejudicial performance, the trial

court’s use of the shock belt, the State’s failure to disclose the threat of prosecution made to

Tabitha Robinson, the constitutional error attendant to the juvenile court transfer hearing

based upon judicial fact-finding, and the destruction of jail records which, he claims,

deprived him of a full and fair hearing. The State responds that the petitioner failed to prove

any allegations of ineffective assistance of counsel by clear and convincing evidence and that

all of the remaining allegations are waived due to the petitioner’s failure to raise them at a

previous hearing. In response to the waiver argument, the petitioner asks this court to review

those allegations via a claim of ineffective assistance of counsel.

General Principles of Law

Post-Conviction Proceedings

We view each of the petitioner’s claims with a few well-settled principles in

mind. Post-conviction relief is available only “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.” T.C.A. § 40–30–103 (2006). A post-conviction

petitioner bears the burden of proving his or her allegations by clear and convincing

evidence. Id. § 40–30–110(f). On appeal, the appellate court accords to the post-conviction

court’s findings of fact the weight of a jury verdict, and these findings are conclusive on

appeal unless the evidence preponderates against them. Henley v. State, 960 S.W.2d 572,

578–79 (Tenn. 1997); Bates v. State, 973 S.W.2d 615, 631 (Tenn. Crim. App. 1997). By

contrast, the post-conviction court’s conclusions of law receive no deference or presumption

of correctness on appeal. Fields v. State, 40 S.W.3d 450, 453 (Tenn. 2001).

Ineffective Assistance of Counsel

To establish entitlement to post-conviction relief via a claim of ineffective

assistance of counsel, the post-conviction petitioner must affirmatively establish first that

“the advice given, or the services rendered by the attorney, are [not] within the range of

competence demanded of attorneys in criminal cases,” see Baxter v. Rose, 523 S.W.2d 930,

936 (Tenn. 1975), and second that his counsel’s deficient performance “actually had an

adverse effect on the defense,” Strickland v. Washington, 466 U.S. 668, 693 (1984). In other

words, the petitioner “must show that there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.” Id. at 694.

Should the petitioner fail to establish either deficient performance or prejudice, he is not

entitled to relief. Id. at 697; Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996). Indeed, “[i]f

it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient

prejudice, . . . that course should be followed.” Strickland, 466 U.S. at 697.

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When reviewing a claim of ineffective assistance of counsel, we will not grant

the petitioner the benefit of hindsight, second-guess a reasonably based trial strategy, or

provide relief on the basis of a sound, but unsuccessful, tactical decision made during the

course of the proceedings. Adkins v. State, 911 S.W.2d 334, 347 (Tenn. Crim. App. 1994).

Such deference to the tactical decisions of counsel, however, applies only if the choices are

made after adequate preparation for the case. Cooper v. State, 847 S.W.2d 521, 528 (Tenn.

Crim. App. 1992).

Claims of ineffective assistance of counsel are regarded as mixed questions of

law and fact. State v. Honeycutt, 54 S.W.3d 762, 766–67 (Tenn. 2001); State v. Burns, 6

S.W.3d 453, 461 (Tenn. 1999). When reviewing the application of law to the post-conviction

court’s factual findings, our review is de novo, and the post-conviction court’s conclusions

of law are given no presumption of correctness. Fields, 40 S.W.3d at 457–58; see also State

v. England, 19 S.W.3d 762, 766 (Tenn. 2000).

The petitioner contends that his convictions are the product of trial counsel’s

ineffective assistance. Specifically, he argues that trial counsel failed to effectively

communicate with him throughout the representation, both pretrial and during trial. He

contends that trial counsel failed to develop an effective theory of defense by not preparing

him to testify at trial, by not arguing successfully the admissibility of Doctor Auble’s

testimony, by calling Doctor Auble as a witness following the petitioner’s testimony, and by

failing to ask Doctor Auble whether the petitioner’s mental state precluded him from forming

the requisite mens rea for the offenses. The petitioner also argues that trial counsel was

ineffective by failing to present lay witnesses at trial to testify concerning his mental state at

the time of the offenses, by consenting to the trial court’s use of the shock belt, and by not

withdrawing from representation when the petitioner requested that counsel do so. On

appeal, the State argues that the record supports the post-conviction court’s findings and

conclusions of law.

From our review of the record, we determine that the post-conviction court

correctly ruled that the petitioner failed to establish all of his claims of ineffective assistance

of counsel except those related to counsel’s handling of Doctor Auble’s testimony. Save that

allegation, we would agree that the petitioner failed to establish by clear and convincing

evidence that trial counsel did not maintain effective communication with the petitioner,

failed to present lay witnesses at trial, prejudicially consented to the use of the shock belt, or

deficiently ignored the petitioner’s requests to withdraw from representation. As we will

explain, however, we determine that the petitioner did show by clear and convincing

evidence that trial counsel’s representation surrounding Doctor Auble’s testimony fell below

a reasonable standard of performance to the prejudice of the petitioner’s case.

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I. The Use of Expert Testimony

In State v. Phipps, 883 S.W.2d 138 (Tenn. Crim. App. 1994), this court

permitted the introduction of evidence regarding the defendant’s mental condition for the

purposes of negating the requisite mental state for the offense charged. Phipps, 883 S.W.2d

at 149. As our supreme court later discussed in Hall, the use of such evidence is not a

defense to a crime, but is “‘merely a rule of evidence’” allowing proof of the defendant’s

mental condition to negate the requisite culpable mental state. Hall, 958 S.W.2d at 688-89

(quoting United States v. Pohlot, 827 F.2d 889, 897 (3rd Cir. 1987)); see also Phipps, 883

S.W.2d at 143. As reiterated by our supreme court in State v. Faulkner, 154 S.W.3d 48

(Tenn. 2005), “‘psychiatric evidence that the defendant lacks the capacity, because of mental

disease or defect, to form the requisite culpable mental state to commit the offense charged

is admissible under Tennessee law.’” Faulkner, 154 S.W.3d at 56-57 (quoting Hall, 958

S.W.2d at 689-90). Indeed, this court relied upon these propositions of law in ruling on

direct appeal in this case that the trial court’s initial exclusion of Doctor Auble’s entire

testimony was erroneous. See Brandon Mobley, slip op. at 14.

Regarding the presentation of Doctor Auble’s testimony, trial counsel testified

at the post-conviction evidentiary hearing that Doctor Auble’s evaluation and report included

a detailed account of the petitioner’s background and mental health history. Doctor Auble,

through her evaluation, had also concluded that the petitioner was unable to form the

requisite mens rea for the charged offenses due to his suffering from major depression. To

that end, trial counsel determined that her testimony would be the most valuable and effective

way to both convey the petitioner’s account of the offenses to the jury and to present

evidence showing the defendant’s inability to form the requisite mens rea. Trial counsel

testified that he was “taken aback” by the State’s objection to the testimony and the trial

court’s initial agreement with the State to exclude the testimony. He recalled that discussions

with the trial court concerning the holding in Hall were futile because trial counsel’s

argument “didn’t seem to make any difference” to the trial court.

Trial counsel recalled that once the petitioner testified, the State withdrew the

objection to Doctor Auble’s testimony, presumably because of the discrepancy between the

petitioner’s testimony and his account of the offenses contained in Doctor Auble’s report.

Trial counsel nevertheless called Doctor Auble to testify to present the evidence negating

mens rea. Trial counsel testified that Doctor Auble “ultimately was able to testify” about the

petitioner’s ability to form mens rea. Trial counsel recalled asking Doctor Auble whether the

petitioner was capable of premeditating due to his mental health at the time of the offenses.

The trial record, however, contradicts counsel’s recollection of Doctor Auble’s

testimony. In fact, the transcript of the argument surrounding the trial court’s initial

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exclusion of the testimony reveals that trial counsel stated

I’m not going to ask [Doctor Auble] to state to this jury that

anyone is . . . incapable of premeditation. What his mental state

was at the time . . . is relevant. . . . I do not intend to have

[Doctor Auble] give an opinion on that ultimate issue.

The trial court then incorrectly ruled that any testimony concerning the petitioner’s ability

to form intent would “invade the province of the jury.” See Brandon Mobley, slip. op. at 14

(ruling that trial court improperly excluded Doctor Auble’s testimony that petitioner’s

suffering from major depression prevented him from premeditating the shooting); see also

Faulkner, 154 S.W.3d at 56-57; Hall, 958 S.W.2d at 689-90.

Following the petitioner’s testimony at trial, the State withdrew its objection

to Doctor’s Auble’s testimony, subject to her not testifying about the petitioner’s ability to

premeditate, and the trial court permitted her testimony with the limitation that Doctor Auble

not testify concerning the petitioner’s ability to premeditate. During direct examination,

Doctor Auble testified extensively regarding the petitioner’s social background, childhood,

and mental health history. When asked by trial counsel whether Doctor Auble had “an

opinion as to how his mental state would have been affected by what he perceived as

threats,” Doctor Auble replied generally that the petitioner is “someone who’s impulsive,

who reacts, who doesn’t think . . . he responded [on the day of the offenses] without thinking

through what he was doing.” At no time during Doctor Auble’s testimony did trial counsel

specifically ask whether the petitioner’s mental health precluded him from forming the

premeditation required to commit the offenses. As such, Doctor Auble did not testify that

the petitioner’s mental state on the date of the offenses prevented him from premeditating the

shootings, despite having opined as much in her report.

We note that on direct appeal this court ruled that the trial court’s erroneous

initial ruling was rendered harmless because Doctor Auble did eventually testify at trial. See

Brandon Mobley, slip op. at 14. For this reason, we have considered whether the law of the

case doctrine precludes our finding prejudice in the context of ineffective assistance of

counsel flowing from counsel’s deficient performance concerning the presentation of Doctor

Auble’s testimony. Our supreme court addressed the law of the case doctrine in great detail

in Memphis Publishing Company v. Tennessee Petroleum Underground Storage Tank Board,

975 S.W.2d 303 (Tenn. 1998), and it stated:

The phrase “law of the case” refers to a legal doctrine

which generally prohibits reconsideration of issues that have

already been decided in a prior appeal of the same case. In other

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words, under the law of the case doctrine, an appellate court’s

decision on an issue of law is binding in later trials and appeals

of the same case if the facts on the second trial or appeal are

substantially the same as the facts in the first trial or appeal.

The doctrine applies to issues that were actually before the

appellate court in the first appeal and to issues that were

necessarily decided by implication. The doctrine does not apply

to dicta.

The law of the case doctrine is not a constitutional

mandate nor a limitation on the power of a court. Rather, it is a

longstanding discretionary rule of judicial practice which is

based on the common sense recognition that issues previously

litigated and decided by a court of competent jurisdiction

ordinarily need not be revisited. This rule promotes the finality

and efficiency of the judicial process, avoids indefinite

relitigation of the same issue, fosters consistent results in the

same litigation, and assures the obedience of lower courts to the

decisions of appellate courts.

Therefore, when an initial appeal results in a remand to

the trial court, the decision of the appellate court establishes the

law of the case which generally must be followed upon remand

by the trial court, and by an appellate court if a second appeal is

taken from the judgment of the trial court entered after remand.

There are limited circumstances which may justify

reconsideration of an issue which was issue decided in a prior

appeal: (1) the evidence offered at a trial or hearing after remand

was substantially different from the evidence in the initial

proceeding; (2) the prior ruling was clearly erroneous and would

result in a manifest injustice if allowed to stand; or (3) the prior

decision is contrary to a change in the controlling law which has

occurred between the first and second appeal.

Id. at 306 (citations omitted).

On direct appeal this court reviewed the propriety of the initial exclusion in toto

of Doctor Auble’s testimony only, and counsel did not raise any allegation of error

concerning the subsequent limitation of testimony that occurred once the State withdrew the

objection to her testifying. Thus, the issue presented in the post-conviction action did not

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“appl[y] to issues that were actually before the appellate court in the first appeal and to issues

that were necessarily decided by implication.” Id. Accordingly, we conclude that the law

of the case does not preclude our finding prejudice from counsel’s deficient performance.

Therefore, we are able to assess fully the petitioner’s ineffective assistance of counsel claim.

Turning to trial counsel’s performance surrounding Doctor Auble’s testimony,

trial counsel stated during initial discussions of the admissibility of her testimony that he “did

not intend to have [Doctor Auble] give an opinion on that ultimate issue.” Furthermore, the

record reveals that when the State withdrew the objection to Doctor Auble’s testifying, the

State asked the trial court “to instruct [trial counsel] not to ask the ultimate question”

concerning the petitioner’s ability to premeditate. Trial counsel sat silently and raised no

objection as the trial court ruled that Doctor Auble could not be asked whether the petitioner

could form the requisite intent. At no time during Doctor Auble’s testimony did trial counsel

specifically ask whether the petitioner’s mental health precluded him from forming the

required intent to commit the offenses. Under these circumstances, we conclude that the

errors of counsel in arguing the issue at both the trial court and appellate court levels, in

conjunction with trial counsel’s failure to inquire or even understand his duty to inquire about

the petitioner’s ability to premeditate, amounted to deficient performance. When viewed in

the context of counsel’s deficient performance, we further conclude that there is a reasonable

probability that had trial counsel not committed these errors, the result of the proceeding

would have been different. Accordingly, the petitioner is entitled to relief based upon his

allegation of ineffective assistance of counsel stemming from trial counsel’s preparation,

presentation, and argument concerning Doctor Auble’s testimony.

II. Use of a Shock Belt

The petitioner claims that the trial court’s failure to conduct a hearing

concerning the placement of a shock belt on him during trial violated his right to due process.

The State contends that this allegation is waived because the petitioner failed to present it at

trial or on direct appeal. Furthermore, the State argues that the petitioner has failed to show

any prejudice stemming from the use of the shock belt.

We agree with the State that any free-standing claim concerning the shock belt

is waived because it was not presented to the trial court or on direct appeal. See T.C.A. § 40-

30-106(g). Accordingly, we will address this allegation only via the petitioner’s ineffective

assistance claim with the previously mentioned applicable principles in mind.

The concept of due process imbedded in our state and federal constitutions

guarantees every criminal defendant a fair and impartial trial. Included in the presumption

of innocence is the defendant’s right to the “physical indicia of innocence.” Willocks v.

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State, 546 S.W.2d 819, 820 (Tenn. Crim. App. 1976) (citing Kennedy v. Cardwell, 487 F.2d

101, 104 (6th Cir. 1973), cert. denied sub nom. Kennedy v. Gray, 416 U.S. 959 (1974)). The

rule that a prisoner brought into court for trial is entitled to appear free from all bonds or

shackles is an important component of a fair and impartial trial, and shackles should never

be permitted except to prevent the escape of the accused, to protect everyone in the

courtroom, or to maintain order during trial. Kennedy, 487 F.2d at 105 (citing Woodards v.

Cardwell, 430 F.2d 978, 982 (6th Cir. 1970)). In holding that in-court shackling is inherently

prejudicial, this court has agreed that “there should be a legal presumption against the

necessity of in-court restraint, with the burden falling on the state ‘to show the necessity of

any extreme physical measures .’” Willocks, 546 S.W.2d at 821 (quoting Kennedy, 487 F.2d

at 107).

Although Tennessee courts have not addressed the specific use of shock belts

to restrain a defendant at trial, the federal courts of appeals have noted that the fundamental

issues implicated by the use of shock belts are essentially the same as those involved in

shackling. See, e.g., United States v. Durham, 287 F.3d 1297, 1306 (11th Cir. 2002) (noting

that “stun belts plainly pose many of the same constitutional concerns as do other physical

restraints, though in somewhat different ways.”). Focusing specifically on the use of shock

belts, at least one federal court of appeals has ruled that the impact on fundamental rights

attendant to their use is more significant and includes the defendant’s right to participate in

his own defense. See Gonzalez v. Pliler, 341 F.3d 897 (9th Cir. 2003).

Later, in Deck v. Missouri, the Supreme Court prohibited the use of shackles

absent an essential state interest. Deck v. Missouri, 544 U.S. 622, 623 (2005). The Court,

concluded, however, that the petitioner must show that he was prejudiced in some way by

the trial court’s action in order to establish a due process violation. Deck, 544 U.S. at 636.

Our own supreme court has noted that

[g]enerally, the trial court, which has presided over the

proceedings, is in the best position to make determinations

regarding how to achieve [the] primary purpose [of ensuring a

fair trial], and absent some abuse of the trial court’s discretion

in marshaling the trial, an appellate court should not redetermine

in retrospect and on a cold record how the case should have

been better tried.

State v. Franklin, 714 S.W.2d 252, 258 (Tenn. 1986).

In the present case, the petitioner does not allege that he was prejudiced by the

jury’s viewing of the shock restraint. Rather, he alleges that the trial court’s failure to

-16-

conduct any hearing concerning the propriety of the restraint and trial counsel’s consent to

the restraint despite the petitioner’s opposition violated his due process rights at trial. Citing

Gonzalez v. Pliler, he further argues that the presence of the shock belt served to inhibit his

testimony at trial, thereby denying him his right to a fair trial.

The record reflects that the petitioner refused to “dress out” on the morning of

the first day of his trial because of his dissatisfaction with trial counsel’s preparation and in

furtherance of his desire to voice opposition to counsel’s continued representation.

Consequently, the trial court allowed the petitioner to state his complaints concerning

counsel. Following the petitioner’s statements, the trial court then, sua sponte, questioned

the defense investigator concerning the attorney-client relationship. The trial court ruled that

there was “no disintegration of communication between the [petitioner] and the attorney” and

denied the petitioner’s request to remove counsel.

What appears on the record next is an informal discussion between the trial

court and the attorneys concerning whether the petitioner should be tried in absentia or be

forced to “dress out.” Apparent from this discussion is the trial court’s characterization of

the petitioner’s refusal to “dress out” as an “attempt on [the petitioner’s] part to disturb the

proceedings of [the] court.” At the conclusion of the trial court’s admonishment to the

petitioner, the court advised the petitioner that he could either “dress out” for trial or remove

himself from participation in the trial by spending the duration of the trial in his jail cell.

Through counsel, the petitioner initially indicated that he had elected to remain in his jail cell

and not participate in the trial. Based upon concerns in trying the petitioner in absentia, the

prosecutor remarked, “I think the more we can do to force him to sit in the courtroom and

listen to his trial the better off we all are.” During a bench conference that included a court

officer, the following discussion occurred:

COURT OFFICER: Of course, he’ll probably come out here.

If I tell him he needs to come out here to put this stuff on the

record, he’ll come out for that because that’s how I got him the

last time, telling him that if he was going to try to fire his

attorney it had to be on the record, and he was agreeable to that.

But then once it reaches the other point, he’s just going to turn

and walk out, I’m afraid. Okay? Now my suggestion is that we

can put the shock belt on him, and then that way he’ll know if he

starts acting up –

THE COURT: That’s all right.

[TRIAL COUNSEL]: That’s not a bad idea, I mean, at this

point.

-17-

Following further discussions, the trial court questioned the petitioner

regarding his desire to be tried in absentia. The following exchange took place:

THE COURT: . . . And I want to ask you sincerely, do you feel

that you could allow the trial to go forward without your

presence?

[THE PETITIONER]: No, sir. That’s why I’m ready to get my

– my street clothes on –

THE COURT: All right.

[THE PETITIONER]: – get these cuffs and everything on and

get this thing on the road –

THE COURT: All right. That’s fine.

[THE PETITIONER]: – before we waste any more of the

Court’s time.

THE COURT: Okay. All right. . . . you understand what I said

earlier about any probable or possible disturbance in the

courtroom –

[THE PETITIONER]: Yes, sir. I do.

At the post-conviction evidentiary hearing, the petitioner testified that the

presence of the shock belt affected his testimony at trial. He failed to specify, however, in

what way his testimony would have been different had the shock belt not been implemented.

The post-conviction court ruled that the use of the shock belt was appropriate in light of the

petitioner’s recalcitrance on the morning of trial and that trial counsel did not perform

deficiently. The record, however, belies this conclusion and establishes instead that the trial

court failed to establish any “‘necessity of any extreme physical measures.’” See Willocks,

546 S.W.2d at 821 (quoting Kennedy, 487 F.2d at 107). Moreover, the record supports a

conclusion that trial counsel performed deficiently by not only agreeing to the use of the

shock belt but also actively suggesting its use despite no showing of necessity. Because the

evidence presented at the evidentiary hearing failed to show any prejudice stemming from

the use of the shock belt or from trial counsel’s representation concerning its use, however,

we conclude that the petitioner failed to prove that counsel was ineffective relative to this

issue.

III. Momon Error

The petitioner next is aggrieved of the trial court’s failure to make the

necessary inquiries under Momon v. State, 18 S.W.3d 152 (Tenn. 1999), regarding the

petitioner’s waiver of his right to testify at trial. The State contends that the trial court’s

failure to conduct an adequate Momon hearing is waived because the petitioner failed to

-18-

present it at trial or on direct appeal. The petitioner also claims that counsel rendered

ineffective assistance by failing to ensure that the trial court conducted an adequate Momon

hearing. The State asserts that the petitioner is not entitled to relief because the record

sufficiently establishes that the petitioner personally chose to testify.

We agree with the State that any free-standing claim under Momon is waived

because it was not presented to the trial court or on direct appeal. See T.C.A. § 40-30-106(g).

Accordingly, we will address only the petitioner’s ineffective assistance claim with the

previously mentioned principles applicable to ineffective assistance of counsel claims in

mind.

In Momon, our supreme court held that “a criminal defendant’s right to testify

is a fundamental constitutional right guaranteed both by [a]rticle I, section 9 of the Tennessee

Constitution and by the Fifth and Fourteenth Amendments to the United States Constitution.

As such, the right must be personally waived by the criminal defendant.” Momon, at 161.

The court then established a “prophylactic” procedure “to ensure that defense attorneys in

future criminal cases do not unilaterally deprive criminal defendants of the fundamental right

to testify.” Id. at 162. The court described the procedure to be followed in all cases where

the accused does not testify:

At any time before conclusion of the proof, defense counsel

shall request a hearing, out of the presence of the jury, to inquire

of the defendant whether the defendant has made a knowing,

voluntary, and intelligent waiver of the right to testify. This

hearing shall be placed on the record and shall be in the

presence of the trial judge. Defense counsel is not required to

engage in any particular litany, but counsel must show at a

minimum that the defendant knows and understands that:

(1) the defendant has the right not to testify, and if the defendant

does not testify, then the jury (or court) may not draw any

inferences from the defendant’s failure to testify;

(2) the defendant has the right to testify and that if the defendant

wishes to exercise that right, no one can prevent the defendant

from testifying;

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(3) the defendant has consulted with his or her counsel in

making the decision whether or not to testify; that the defendant

has been advised of the advantages and disadvantages of

testifying; and that the defendant has voluntarily and personally

waived the right to testify.

Id. The court noted that the colloquy should generally be conducted by trial counsel and that

“[u]nder normal circumstances . . . the trial judge should play no role in this procedure.” Id.

Although the Momon court addressed these concerns in the context of ensuring that a

defendant who ultimately chooses not to testify is adequately advised concerning his rights,

we can see no reason why the Momon principles and procedures would not apply even

though the defendant opted to testify, as did the petitioner in this case. Even though the

petitioner in this case did testify, we will examine his allegation filtered through his claim

of ineffective assistance of counsel.

In this case, the following colloquy occurred following the trial court’s initial

exclusion of Doctor Auble’s expert testimony:

[TRIAL COUNSEL]: We will call the [petitioner].

THE COURT: Okay. And we might as well go through a

Momon hearing now. Have you discussed this case with the

[petitioner], and he knows that he does not have to testify if he

doesn’t want to. Have you explained that to him?

[TRIAL COUNSEL]: I have, Your Honor.

THE COURT: And you see this Momon case is a little strange

because the Court cannot talk to the defendant directly because

there is some possibility of influence. All right. He –

understands that?

[TRIAL COUNSEL]: He does, Judge.

THE COURT: And that if he wants to, no one can keep him

from testifying; or if he doesn’t want to, no one can force him to

testify. You understand that?

[TRIAL COUNSEL]: Are you – are you asking him?

THE COURT: No, I’m asking you.

[TRIAL COUNSEL]: Judge, he does understand that.

-20-

THE COURT: And I think the Supreme Court short-circuited

the trial courts, and he – he does this on his own free will?

[TRIAL COUNSEL]: We’ve discussed it at length, Judge, and

he understands it.

THE COURT: All right. All right. As long as he understands.

This exchange clearly falls short of the Momon requirements because the

petitioner was not advised on the record by trial counsel concerning any of the specific rights

attendant to his decision to testify, and more importantly, the record is devoid of any

evidence that the petitioner personally chose to testify. Although the trial court stated that

no one could force the petitioner to testify or not to testify, at no time during the colloquy was

the petitioner personally addressed by counsel as contemplated by Momon. Likewise, the

petitioner never stated anything on the record regarding his decision to testify. In summary,

the procedure employed in this case did not fulfill any of the requirements of Momon to

ensure that the petitioner made an informed decision concerning testifying.

Turning now to the issue of how this failure relates to the petitioner’s allegation

of ineffective assistance, the petitioner testified at the evidentiary hearing that had he been

properly admonished concerning his right to testify he would have chosen not to testify. He

also said that he never intended to testify because he was not prepared and had “no real

understanding” of what to expect at trial. The petitioner recalled that he told trial counsel

that he did not want to testify, but counsel told him that he would “automatically be found

guilty” if he did not testify. He said that he did not know about the inconsistency in Doctor

Auble’s report concerning who pulled a gun because trial counsel did not review the report

with him prior to trial or prior to his testimony. He testified that he would have made sure

the report was corrected had he known about the discrepancy.

Trial counsel testified that after Doctor Auble’s testimony was excluded by the

trial court, he felt that the only way to convey the petitioner’s version of events to the jury

would be for the petitioner to testify. Counsel could not recall the trial court’s conducting

the Momon colloquy and speaking only to counsel, not to the petitioner. Both the petitioner

and trial counsel agreed, and the trial record reflects, that the brief discussion concerning the

petitioner’s testifying occurred at counsel table and without the trial court’s taking a recess.

The post-conviction court did not make any findings specific to the petitioner’s

Momon allegation. Instead, the court generally ruled that the petitioner did not suffer from

any deficient performance via trial counsel’s preparation of the petitioner to testify. Clearly,

-21-

however, counsel’s performance was deficient in regard to the Momon issue. Counsel failed

to object to the way in which the trial court conducted the hearing, and he failed to elicit from

the petitioner on the record a statement that the petitioner had made a personal and voluntary

decision to testify. The uncontroverted testimony of the petitioner establishes that the

petitioner did not want to testify and had not been prepared by trial counsel to take the stand.

The record establishes, via the testimony of both the petitioner and trial counsel, that the

petitioner only testified after the trial court erroneously excluded Doctor Auble’s testimony.

In our view, trial counsel’s inadequate handling of Doctor Auble’s testimony and his failure

to protect the petitioner’s rights via a properly conducted Momon hearing led to the

petitioner’s testifying against his will.

That being said, the petitioner has failed to establish that he was prejudiced by

counsel’s deficient performance. The petitioner’s testimony was consistent with the version

of the facts he reported to friends on the day of the murder and, with only one minor

discrepancy, was consistent with the version of events he provided to Doctor Auble. Because

he has failed to establish prejudice, he is not entitled to relief on this issue.

IV. Threat of Prosecution to State Witness

The petitioner argues that his due process rights were violated by the State’s

failure to disclose the threat of prosecution of Tabitha Robinson made to her sister, Jada

Byrge, in exchange for Ms. Byrge’s testimony at trial. The State contends that the petitioner

has failed to show that he is entitled to relief.

“Evidence favorable to an accused includes that which may be used to impeach

the prosecution’s witnesses.” State v. Copeland, 983 S.W.2d 703, 706 (Tenn. Crim. App.

1998) (citing Giglio v. United States, 405 U.S. 150 (1972)). To be sure, if a witness has

received or been promised government-supplied benefits or some favorable consideration in

exchange for testifying against a defendant, that information is exculpatory in its tendency

to impeach the witness’ credibility and motive for testifying. Giglio, 405 U.S. at 154-155;

Hartman v. State, 896 S.W.2d 94, 101 (Tenn. 1995). Likewise, evidence that a witness has

testified under threat of prosecution of herself or a third party may also be exculpatory when

used as impeachment.

Ms. Byrge testified at the evidentiary hearing that she was reluctant to testify.

She recalled a conversation between herself and the prosecutor during which the prosecutor

indicated that Tabitha Robinson, Ms. Byrge’s 11-year-old sister, could be charged as an

accessory after the fact for her assistance to the petitioner in cleaning blood and brain matter

from Ms. Hoffman’s vehicle. Despite Ms. Bryge’s feeling threatened by the prosecutor’s

-22-

statements, she testified at the evidentiary hearing that she was truthful in her statements to

the police and in her testimony at the petitioner’s trial. Ms. Byrge indicated that she was also

reluctant to testify at trial because she felt threatened by the petitioner’s siblings. She stated

that she ultimately testified because her mother told her “it was the right thing” to do.

In our view, the prosecutor’s statement to Ms. Byrge qualifies as impeachment

evidence that was not disclosed to the petitioner at trial. However, we discern no prejudice

stemming from the failure to disclose given Ms. Byrge’s overall equivocal feelings

concerning her testimony which were driven by multiple influences, including the

petitioner’s siblings. Furthermore, Ms. Byrge’s testimony that she testified truthfully

undercuts any prejudice that might have stemmed from the State’s failure to disclose the

prosecutor’s statement.

V. Constitutionality of Juvenile Transfer Hearing

The petitioner argues that the procedure employed for transferring a case from

juvenile court to adult court violates the principles of Apprendi and its progeny, by permitting

his transfer from juvenile court to adult court based upon judicially-determined facts. The

State contends that any issue concerning the constitutionality of the juvenile court transfer

hearing is waived because the petitioner failed to present it at trial or on direct appeal.

We agree with the State that any free-standing claim concerning the juvenile

court transfer procedure is waived because it was not presented to the trial court or on direct

appeal. See T.C.A. § 40-30-106(g). Accordingly, we will address only the petitioner’s

ineffective assistance claim with the previously mentioned principles applicable to

ineffective assistance of counsel claims in mind.

In assessing whether trial counsel’s failure to raise an Apprendi challenge to

the petitioner’s juvenile court transfer proceedings amounts to ineffective assistance of

counsel, we note that counsel clearly could have mounted a challenge to the juvenile court

transfer procedure on the basis of Apprendi at the time of the petitioner’s transfer to adult

court in 2004. That being said, we also acknowledge that Tennessee courts have not

addressed the application of Apprendi to juvenile court transfer proceedings. Other

jurisdictions, however, have addressed Apprendi’s applicability with conflicting results but

with the majority of jurisdictions concluding that the judicial fact-finding attendant to

juvenile court transfer proceedings does not violate a defendant’s rights. See Gonzales v.

Tafoya, 515 F.3d 1097, 1110-13 (10th Cir. 2008) (detailing other jurisdictions’ analyses of

Apprendi’s applicability to juvenile court transfer proceedings). As such, we cannot

conclude that counsel was ineffective in failing to raise this claim at the trial or on direct

appeal.

-23-

VI. Destruction of Jail Records

The petitioner also argues that he was denied his right to a full and fair

evidentiary hearing by the KCSO’s destruction of jail visitation logs. The State argues that

there is no duty to preserve evidence for use in collateral proceedings.

The petitioner relies upon State v. Ferguson, 2 S.W.3d 912 (Tenn. 1999). In

Ferguson, officers videotaped the defendant’s performance on field sobriety tests

administered as part of a driving under the influence investigation; however, the taped tests

were inadvertently “taped over” before they were viewed by anyone. Id. at 914-15. Our

supreme court determined that, for purposes of applying the Tennessee Constitution’s “law

of the land” clause to issues of the State’s losing, damaging, or destroying potentially

exculpatory evidence, a balancing test should be utilized. First, as a threshold, the court

should “determine whether the State had a duty to preserve the evidence.” Id. at 916. If the

State failed to discharge a duty to preserve evidence, the court then determines

1. The degree of negligence involved;

2. The significance of the destroyed evidence, considered in

light of the probative value and reliability of secondary or

substitute evidence that remains available; and

3. The sufficiency of the other evidence used at trial to support

the conviction.

Id. at 917.

Our courts have not extended the application of Ferguson to post-conviction

proceedings. That being said, we also acknowledge Ferguson’s holding that “[g]enerally

speaking, the State has a duty to preserve all evidence subject to discovery and inspection

under Tenn[essee] R [ule] Crim[inal] P[rocedure] 16, or other applicable law,” Ferguson, 2

S.W.3d at 917, and that Tennessee Supreme Court Rule 28 section 6(C)(7) provides for

discovery in post-conviction proceedings “of all those items deemed discoverable under Rule

16 [of the] Tennessee Rules of Criminal Procedure.”

In this case, the petitioner filed a subpoena duces tecum in July 2009 requesting

copies of all relevant jail visitation logs concerning meetings between trial counsel and the

-24-

petitioner. Assistant Chief Hayes testified that the logs were destroyed per normal sheriff’s

department operating procedures in September 2009. He further testified that he was

unaware of the subpoena requesting the records. Notably, Assistant Chief Hayes stated that

the records should have been destroyed within three years of their making, sometime in 2007

to 2008 as relevant to the petitioner, but that there had been a delay in destroying some of the

records.

Even assuming the extension of Ferguson to post-conviction proceedings and

the State’s duty to preserve these records, we cannot conclude that the destruction of the

records by an act of simple negligence, as indicated by Assistant Chief Hayes’ ignorance of

the subpoena, resulted in a denial of the petitioner’s right to a full and fair hearing. Trial

counsel’s detailed time logs were admitted at the evidentiary hearing in support of testimony

that he met with the petitioner approximately 20 times in preparation for trial. The post-

conviction court accredited counsel’s testimony regarding these meetings. Under these

circumstances, we cannot conclude that the petitioner was denied a full and fair hearing.

VII. Cumulative Effect of Errors

Having considered each of the petitioner’s allegations for post-conviction relief

and concluded that counsel’s deficient representation concerning the admission of expert

testimony of the petitioner’s inability to form the requisite mens rea resulted in prejudice that

merits granting post-conviction relief, we need not consider the cumulative effect of the

errors.

CONCLUSION

We conclude that the petitioner established by clear and convincing evidence

that trial counsel performed deficiently concerning the use of expert testimony at the

petitioner’s trial. Furthermore, we conclude that there exists a reasonable probability of a

different result at trial had counsel not performed deficiently. Accordingly, the judgment of

the post-conviction court denying relief is reversed. On remand, the post-conviction court

is directed to grant the petitioner a new trial.

_________________________________

JAMES CURWOOD WITT, JR., JUDGE

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