Marilyn Denise Avinger v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs at Knoxville January 25, 2011

MARILYN DENISE AVINGER v. STATE OF TENNESSEE

Appeal from the Criminal Court for Davidson County

No. 2005-B-1239 Steve R. Dozier, Judge

No. M2009-02577-CCA-R3-PC - Filed May 3, 2011

The Petitioner, Marilyn Denise Avinger, appeals the Davidson County Criminal Court’s

denial of post-conviction relief from her conviction of attempted second degree murder, for

which she received a nine-year sentence, with all but thirty days to be served on probation.

On appeal, she contends that trial counsel rendered ineffective assistance. We affirm the

judgment of the trial court.

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

J OSEPH M. T IPTON, P.J., delivered the opinion of the Court, in which J AMES C URWOOD W ITT,

J R., and N ORMA M CG EE O GLE, JJ., joined.

Ashley Preston, Nashville, Tennessee, for the appellant, Marilyn Denise Avinger.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney

General; Victor S. Johnson, III, District Attorney General; and Rachel Sombrero, Assistant

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

OPINION

The facts of the Petitioner’s conviction were stated by this court on direct appeal:

The victim, Sadie Mae Brooks, testified that she lived

with the defendant’s mother at her home in Nashville when she

was attacked by the defendant. The victim stated that the

defendant did not live in the home. The victim testified that on

the day of the attack, the defendant entered her room about

fifteen minutes after the victim returned home from work. The

defendant accused the victim of cheating on her brother, Charles

Avinger. The defendant confronted the victim about staying in

a hotel room with the defendant’s boyfriend. According to the

victim, the defendant then jumped on top of her and began

hitting and scratching her. The victim scratched the defendant

and pulled her hair to get the defendant to stop. The defendant

cried out for her mother at one point before ending her initial

attack.

The victim testified that after the defendant ceased her

initial attack, she left the room and went into the kitchen. The

victim walked to the doorway of her bedroom and saw the

defendant grab a knife from the kitchen counter. According to

the victim, the defendant charged at her with the knife yelling,

“Bitch, I’m going to kill you.” The victim attempted to shut the

door but the defendant blocked the door with her foot. The

defendant reached around the door with the knife and began

stabbing repeatedly at the victim. The defendant succeeded in

stabbing the victim on the left hand and wrist. The victim

recalled that after the defendant stabbed her hand, she bled

profusely and believed that she was going to pass out.

According to the victim, the defendant also succeeded in

stabbing her in the shoulders, once above the right breast, and

once on the left arm.

The victim testified that she was finally able to get the

door closed and locked. She dialed 9-1-1 on the telephone in the

bedroom. The cord for the phone went to a jack on the other

side of the door. The defendant unplugged the phone before the

victim could complete her call. The victim stated that she

waited in the room until the police and paramedics arrived and

transported her to the hospital. She testified that months after

the attack, she still had scars from the stabbing. She also

suffered a permanent injury to her finger which prevented her

from moving it.

On cross-examination, the victim testified that she had

lived at the defendant’s mother’s home for about six to seven

months prior to the attack and had been dating the defendant’s

brother for about nine months. She stated that prior to living

with the defendant’s mother, she had been homeless. After

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getting a job, she was able to pay the defendant’s mother rent

and pay for food. The victim stated that she had been the

defendant’s friend until the defendant got a new boyfriend. She

stated that after the defendant attacked her, she moved in with

a family member before moving back to her hometown.

On cross-examination, the victim testified that she was

sitting on her bed and working on paying her bills when the

defendant confronted her. According to the victim, the

defendant jumped on her as she sat on the bed. The victim

stated that the defendant’s mother and the defendant’s brother

were in the living room adjacent to the victim’s bedroom. She

stated that neither the defendant’s mother nor the defendant’s

brother came into the room during the attack.

The victim further testified that after the incident, the

defendant’s brother placed the knife the defendant used in the

kitchen sink. According to the victim, the defendant’s brother

did not call 9-1-1 for her. She stated that from the time she

dialed 9-1-1, it was approximately ten minutes before police and

paramedics arrived at the house. She stated that she was taken

to the emergency room and given stitches. The victim stated

that after she left the house, the defendant’s brother called her

and asked her to drop the charges against his sister. The victim

refused his request.

Charles Avinger testified that he was the defendant’s

brother and was dating the victim at the time. He stated that as

he was returning to his mother’s house, he encountered his

sister, the defendant, leaving the house to go to work. The

defendant informed him that the victim was having a

relationship with her boyfriend. Mr. Avinger entered the house

and saw the victim who was bleeding and had a towel wrapped

around her arm. His mother yelled at him to call the police.

According to Mr. Avinger, he dialed 9-1-1 before asking the

victim what happened.

Mr. Avinger testified that he never saw the fight between

the victim and the defendant. He stated that he never touched

the knife used in the attack. Mr. Avinger admitted that he and

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his mother had consumed about four or five beers during the

course of the day but maintained that he was not drunk. After

paramedics arrived and took the victim to the hospital, he

remained at the house with his mother. Mr. Avinger noted that

there was quite a bit of blood on the door to the victim’s

bedroom, as well as on the rug and on clothes left on the

bedroom floor.

On cross-examination, Mr. Avinger testified that when he

encountered his sister outside the house, she was walking, not

running. He noticed that she had scratches and her shirt was

torn and had blood on it. Mr. Avinger identified a photograph

of the maroon rug and the carpet underneath it from the floor of

the bedroom he shared with the victim. He stated that the

maroon rug and the carpet had brown stains on them prior to the

attack. However, he admitted that there was blood all over the

rug and the carpet after the attack. He acknowledged that the

rug and carpet did not have any blood on them when he left the

house earlier that day.

The defendant testified that she went to the house shared

by the victim, her brother and her mother after work to check on

her mother. When she arrived at the house, the first person she

saw was the victim. She told the victim that she knew that her

boyfriend and the victim had engaged in a sexual relationship

behind her back. She informed the victim that she had a bank

statement proving that her boyfriend and the victim had been

together in a hotel. The defendant stated that she was upset

because she had allowed the victim access to her house, and she

believed that the victim had been sleeping with her boyfriend

while the defendant was at work.

The defendant testified that she told the victim that she

was going to tell her brother about the victim’s relationship with

the defendant’s boyfriend. According to the defendant, the

victim jumped up from where she was sitting on the bed and the

two began to fight. The two scratched and pulled each other’s

hair as they fell onto the bed and rolled around, fighting.

According to the defendant “from somewhere-I don’t know

where-a knife come up.” The two women struggled over the

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knife. At one point, the knife penetrated the victim’s hand. The

defendant stated that she did not have a knife that day when she

went over to the house. She denied ever going to the kitchen to

retrieve a knife.

The defendant testified that the victim tore a large clump

of hair from her head and was pulling on her hair when the

defendant called out to her mother to tell the victim to release

her. According to the defendant, her mother came in and told

the two women to quit fighting. The defendant heard her

mother run out of the room and yell for her brother. The

defendant identified a photograph taken of her after the incident

and pointed out injuries and scars she received as a result of her

struggle with the victim.

On cross-examination, the defendant testified that the

knife that was used in the fight was no bigger than a steak knife

or a paring knife. She stated that as she left the house and

encountered her brother, she told him “he was right.”

According to the defendant, this comment was related to a

message Mr. Avinger left the defendant on her answering

machine about his suspicion that the defendant’s boyfriend and

the victim were having a relationship. The defendant admitted

that when she came to her mother’s house, she brought her

boyfriend’s bank statement with her in order to confront the

victim.

The defendant further testified that she did not know how

the victim came to be stabbed in each shoulder during the

struggle on the bed. The defendant admitted that she only called

out to her mother to get the victim to stop pulling her hair. She

also admitted that she did not call out to her mother during the

time the victim had the knife, or at any point during the fight

when the victim was stabbed. The defendant stated that all of

the cutting occurred while the two women were “tussling” on

the bed. The defendant admitted that she left her mother alone

in the house with the victim and the knife when she left. She

also admitted that she did not warn her brother about the victim

before he entered the house.

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The jury found the defendant guilty of attempted

second-degree murder.

State v. Marilyn Denise Avinger, No. M2007-00706-CCA-R3-CD, Davidson County (Tenn.

Crim. App. Sept. 4, 2008), app. denied (Tenn. Mar. 2, 2009). On direct appeal, this court

affirmed the conviction, holding that the evidence was sufficient to support the conviction

and that the trial court did not err by admitting a photograph of blood in the bedroom where

the attack took place to rebut the testimony of a defense witness. Id.

Seven days after the supreme court denied the Petitioner’s application for

discretionary appeal, she filed a pro se post-conviction petition alleging that the attorney who

represented her at trial and the attorney who represented her in the sentencing hearing and

on direct appeal rendered ineffective assistance of counsel. Counsel was appointed and filed

an amended petition. The amended petition alleged that trial counsel and appellate counsel

failed to file motions and request hearings in order to preserve issues for the appeal; that trial

counsel failed to investigate the case and use investigative services; that trial counsel and

appellate counsel failed to communicate with the Petitioner; that trial counsel did not

adequately advise the Petitioner about the defense strategy; that trial counsel failed to consult

with the Petitioner during hearings and the trial; that trial counsel performed deficiently at

the trial in cross-examination, direct examination of the Petitioner, and failing to raise

objections; that trial counsel failed to present favorable evidence; that trial counsel opened

the door for prejudicial impeachment evidence through cross-examination of a witness; that

trial counsel failed to give an effective closing argument; and that appellate counsel failed

to raise all of the issues in the motion for new trial.

At the post-conviction hearing, the Petitioner testified that she could not afford to

retain the attorney who represented her at the preliminary hearing for her trial and that trial

counsel was appointed after she was released on bond. She said she met with trial counsel

three times in twenty-three months of representation. She said he seemed disinterested in her

case.

The Petitioner testified that although she informed trial counsel that her mother was

dying of cancer, he did not speak to her mother before her death. She said that her mother

was present during the offense and that her mother would have provided information that

contradicted the victim’s account of the crime.

The Petitioner testified that the crime occurred because she and the victim were

fighting over the Petitioner’s boyfriend. She said that even though the victim was dating the

Petitioner’s brother, the victim was having an affair with the Petitioner’s boyfriend. She said

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that trial counsel did not subpoena the boyfriend and that counsel told her not to mention him

at the trial. She said that she wanted to introduce evidence of a hotel bill and telephone bills

showing the victim’s involvement with her boyfriend but that counsel did not use them at the

trial. The Petitioner introduced as an exhibit a cell phone bill that she said showed contact

between the victim and her boyfriend. She said that her boyfriend admitted dating both

women but that the victim denied involvement with him. She said trial counsel should have

used the evidence of an affair to impeach the victim’s credibility.

The Petitioner testified that trial counsel failed to investigate the 9-1-1 call that the

victim claimed to have made. She said the victim “had her phone hooked up some kind of

way where . . . if you called her, it would ring, but it would show up as a day care.” She said

this evidence would have impeached the victim’s claim that the Petitioner pulled the phone

cord from the wall because emergency personnel would have gone to the day care, rather

than to the crime scene, had there been a hang-up call to 9-1-1. She said this would have

shown that the victim made the call from the Petitioner’s mother’s phone, which was in a

different room than the victim claimed she was in after the fight. She said trial counsel could

have asked her mother whether the telephone cord had been ripped from the wall. She

acknowledged that by the time trial counsel was appointed, the scene was not the same as it

was on the day of the crime.

The Petitioner testified that she gave photographs of the scene to trial counsel. She

said three of the photographs demonstrated the impossibility of the victim’s claim that she

stood in a doorway and saw the Petitioner retrieve a knife from the kitchen counter. She said

trial counsel did not use the evidence at the trial.

The Petitioner testified that trial counsel did not discuss trial strategy with her. She

acknowledged that he showed her photographs from the State. She said trial counsel told her

not to talk about her boyfriend. She said that he told her to smile at the jurors and that she

thought this was inappropriate because it would show that she had no remorse or enjoyed

fighting.

The Petitioner testified that trial counsel wanted her to accept a plea agreement. She

said, however, that he never communicated any offers to her from the State. She said that

every time he mentioned a plea agreement, she interrupted him to say she did not want to

accept a plea agreement because she was not guilty.

The Petitioner testified that trial counsel “barely” consulted with her during breaks in

the trial and when the jury was not in the courtroom. She said that she gave him a list of

questions she wanted him to ask the victim but that he said “later” and did not use them. She

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said that with respect to some of the questions, trial counsel told her they were not going to

talk about the Petitioner’s boyfriend.

The Petitioner testified that she was dissatisfied with trial counsel’s performance

relative to pictures of the scene. She said that when she left her mother’s home after the

fight, the only place there was blood was on the bed where the struggle took place. She said

the photographs showed blood in other locations. She said these photographs should have

been used to show that the victim, not she, introduced the knife into the fight. She admitted

that the victim received knife wounds during the fight. She said the photographs showed that

the victim staged the scene afterwards. She said the photographs demonstrated that blood

was not on the door in the locations expected if the crime occurred as the victim claimed.

She said trial counsel should have requested admission of all photographs showing a bloody

crime scene to demonstrate that the victim fabricated her story.

The Petitioner also testified that trial counsel failed to use a photograph of a bag of

ice, a bucket of water, and blood that appeared to be mixed with water on the cradle of a

telephone. She said this photograph would have contradicted the victim’s testimony that she

did not leave the room where the crime occurred until after the police arrived because it

showed that the victim left the room to retrieve ice and water. She said trial counsel should

have had the photograph examined to determine whether the blood on the telephone was

mixed with water.

The Petitioner testified that she wanted trial counsel to subpoena the victim’s nephew.

She said his testimony could have been used to contradict the victim’s claim that she rented

a hotel room for him. She said this would have demonstrated the victim’s lack of credibility.

The Petitioner testified that trial counsel failed to cross-examine the victim

adequately. She complained that he never cross-examined the victim about her testimony

that the Petitioner retrieved a knife, ran to the victim, and said, “B----, I’m going to kill you.”

She said the victim never made this claim in any of her pretrial statements. She said trial

counsel failed to address this testimony in his closing argument. She said trial counsel also

failed to cross-examine the victim about her claim that she struggled with a door knob during

the altercation, even though a photograph showed underwear hanging on the doorknob. She

said the underwear would not have remained on the doorknob had the victim’s testimony

been accurate. She said trial counsel only cross-examined the victim about some of the

inconsistencies between the victim’s testimony at the trial and the preliminary hearing. She

noted that the victim testified at the preliminary hearing about a cut on her face but that this

injury was not documented in the police report. She said trial counsel also failed to introduce

the victim’s medical records to show where the victim was cut.

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The Petitioner testified that trial counsel did not adequately question her during direct

examination. She said that she was not on the stand for a long time and that he did not ask

questions she thought were important. She said that trial counsel never asked her whether

she said, “B----, I’m going to kill you,” and that the jury believed she said it even though she

did not make the statement.

The Petitioner testified that trial counsel’s closing argument did not mention several

inaccurate statements in the victim’s testimony. She specified that trial counsel did not argue

against the victim’s claim that the Petitioner threatened to kill her, that he did not address the

State’s proof that the crime occurred behind a door and not on a bed, that he did not talk

about the photographs, and that he did not address the victim’s claim that the Petitioner

yanked the telephone cord from the wall.

The Petitioner testified that she was dissatisfied with trial counsel and that she

retained appellate counsel to represent her at the sentencing hearing and on appeal. She said

she had a disagreement with appellate counsel because counsel did not want to represent the

Petitioner in a drug case. She said that appellate counsel was upset because the court denied

her motion to withdraw in the drug case and that she thought this affected appellate counsel’s

representation in the present case. With respect to her dissatisfaction with appellate counsel,

the Petitioner claimed that she asked appellate counsel about the status of the appeal several

times and that counsel always said she “had not heard anything.” She stated that appellate

counsel claimed to have filed a brief but that the Petitioner was told otherwise by a court

clerk. She said that when she contacted appellate counsel about the information from the

clerk, appellate counsel claimed that her assistant was working on the brief.

On cross-examination, the Petitioner testified that the victim’s hands were on the knife

and that the victim “got stuck during the struggle.” She said that although the defense theory

was self-defense, trial counsel never said anything about the Petitioner’s being injured during

the fight. She said she had a bite mark, scrapes on her hands and arm, and patches of her

microbraids pulled out. She claimed she was not afraid of the victim before the knife

appeared in the fight but said she was afraid once the victim pulled the knife. She said that

she was not afraid for her mother’s safety when she left the house after the fight and that the

victim had no dispute with the Petitioner’s mother.

The Petitioner acknowledged that the hotel receipt was mentioned in the proof, but

she said trial counsel was not the person who introduced it. She admitted that a police officer

testified about a hang-up call to 9-1-1 placed from the scene. She said she thought the

photograph to be introduced showed blood on the floor, blood on the phone, ice, and water.

She said that the photographs were mixed up at trial and that with respect to this photograph,

“they put them in and they put them out. . . . [W]hen they did put it back in, then they ruled

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it out, I didn’t get a chance to use this picture. . . . When it came down to me to say this

picture, they ruled it back out.” She said counsel could have had the victim’s doctor testify

and introduce the victim’s medical records to show the location of the victim’s injuries. She

said trial counsel told her the court ruled that the medical records were not admissible

because they contained the victim’s admission that she smoked marijuana. She admitted that

the victim showed scars to the jury that the victim claimed were from her stab injuries. She

acknowledged that her mother was in the house but not in the room when the fight occurred.

The Petitioner acknowledged that appellate counsel filed a timely brief but said that

appellate counsel did not review the evidence or present all of the issues. The Petitioner said

she “found all this stuff that was messed up” in the brief. She said that appellate counsel

stated that her assistant prepared the brief, but the Petitioner said that counsel’s assistant

knew nothing about her case.

Appellate counsel testified that she was licensed after the first 2006 bar examination

and that the Petitioner retained her later that year for the motion for new trial and appeal. She

acknowledged that her motion to substitute counsel was dated October 24, 2006. She

thought she reviewed the transcripts of the preliminary hearing and the trial. She said she

spoke with trial counsel a couple of times but did not meet formally with him. She said she

had several meetings of at least one hour each with the Petitioner before the sentencing

hearing. She said her first priority when she was retained was the sentencing hearing. She

said that after the hearing, she prepared a motion for new trial and met with the Petitioner

several more times. She said she discussed the issues to be raised in the motion with the

Petitioner. She said that the Petitioner wanted to raise an issue of whether trial counsel

provided ineffective assistance but that she advised the Petitioner this claim should be raised

in a post-conviction action. She said she explained an ineffective assistance claim to the

Petitioner. She said she raised all the issues she thought were proper for the motion for new

trial.

Appellate counsel did not recall whether she met with the Petitioner between the

denial of the motion for new trial and filing the direct appeal, but she said that the Petitioner

made unscheduled visits to her office and that she spoke with the Petitioner on these

occasions. She did not remember the number of occasions this happened but said it was

“more than a few.” She said that she had an employee who worked on the brief but that she

approved his work before she signed it. She said she raised all the issues on appeal that she

thought had a legal basis.

Appellate counsel testified that in the fall of 2006, her caseload involved over ninety

percent criminal cases. She said that she had not done appellate work for her own clients

before the Petitioner’s appeal but that she “had clerked in D.C.”

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On cross-examination, appellate counsel testified that she argued mitigating factors

at the sentencing hearing, although she did not file a notice before the hearing of the factors

upon which the Petitioner would rely. She said that in addition to her many meetings with

the Petitioner, she spoke with her by telephone once or twice a week. She said that after the

appellate court affirmed the Petitioner’s conviction, she saw the Petitioner in court without

counsel and tried to help her. She said this proceeding was related to the Petitioner’s failure

to turn herself in to serve her jail sentence for the attempted murder.

With respect to the Petitioner’s new charge for the drug offense, appellate counsel

testified that the Petitioner claimed that trial counsel was representing her but that she wanted

appellate counsel to do so. Appellate counsel said that she “arraigned her” but that the

Petitioner thought mistakenly that appellate counsel would represent her in the drug case

without additional payment. She said that the Petitioner stated she would get a public

defender for the case but that when appellate counsel filed a motion to withdraw, the trial

court appointed her to represent the Petitioner. She said that other than the issue of the

additional fee, she had no problem with accepting the representation when the Petitioner

asked her to do so.

Appellate counsel testified that she thought the result of the sentencing hearing “was

pretty good.” She did not recall whether she considered raising an issue in the motion for

new trial regarding the sentence but said she thought the sentence was fair.

Trial counsel testified that he was appointed to represent the Petitioner in 2005. He

said that he had been licensed for ten years and that his caseload involved over ninety-five

percent criminal cases. He said that he litigated five or six jury trials before he was

appointed to the Petitioner’s case and that some of them involved Class A and B felonies.

Trial counsel testified that the trial court approved his motion for investigative fees.

He said that he and the investigator met with the Petitioner several times in addition to court

dates. He said the investigator also met with the Petitioner on other occasions to obtain

names of possible witnesses. He said the investigator provided him with reports about the

investigation.

Trial counsel testified that he met with the Petitioner more than three times. He said

he met with her on court dates at least four or five times. He said he also communicated with

her by telephone and at a couple of meetings. He said that if his fee claim form represented

twenty-four meetings and telephone calls with the Petitioner, it was accurate. With respect

to communication during the trial, counsel said there were many times when he told the

Petitioner to be quiet and wait to discuss something during the break. He said that he did this

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because he was trying to pay attention to the proceedings but that he communicated with her

during breaks and recesses.

Trial counsel testified that the telephone records the Petitioner wanted to introduce

did not provide a defense to the attempted murder charge. He said that in his professional

opinion, he did not think they were a relevant part of the trial strategy. He said the

information about the Petitioner’s jealousy over the victim’s relationship with the Petitioner’s

boyfriend would have furthered the State’s case. He said he wanted some of the exhibits

excluded. He said photographs of pools of blood were “horrific” and prejudicial to the

Petitioner. He said he filed a motion to exclude the victim’s medical records because he

thought they supported the State’s theory.

On cross-examination, trial counsel testified that he did not recall whether he and the

Petitioner discussed the photographs she took. He could not recall whether she gave him the

photographs and said she might have given them to the investigator. He said that if she gave

them to the investigator, he would have seen them.

Trial counsel admitted he did not recall whether the Petitioner told him that her

mother was terminally ill. He said the Petitioner told him during preparations for the trial

that her mother was in the living room when the offense occurred in the bedroom. He denied

that the Petitioner told him that her mother stuck her head in the bedroom during the fight.

Trial counsel testified that he discussed the trial strategy with the Petitioner. He said

the Petitioner’s brother “was going to shed some light . . . on what transpired . . . and . . . the

whole jealousy motive.” He did not recall any specific discussions about the 9-1-1 call or

the telephone cord, but he was sure they discussed this evidence. He said they reviewed

everything, including the risks and possible benefits of going to trial.

Trial counsel testified that he did not think he was overworked when he represented

the Petitioner and that he thought he gave her case adequate attention. He said he relied on

the investigator because doing the investigative work himself in addition to the trial

preparation for serious cases “would have been . . . stretching it too thin.” He said he

typically submitted a petition for approval of expert services to the trial court within a week

of a defendant’s arraignment.

Trial counsel testified that the majority of his conversations with the Petitioner about

trial preparation would be reflected on his fee claim form. He said that because the Petitioner

was on bond, it was easier to talk to her.

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Trial counsel testified that he did not think the Petitioner’s disagreement with the

victim over the Petitioner’s boyfriend was relevant to the defense. He thought that proof of

jealousy would further the State’s case. He said he advised the Petitioner of his opinion. He

stated that he probably told her not to mention her boyfriend at the trial, although he did not

recall such a conversation.

Trial counsel could not recall whether the photograph of the bloody bed was admitted.

He said he thought the photographs showing blood were not helpful. He said the photograph

of the bed supported the Petitioner’s claim that the fight took place on the bed, not behind

the door, but the photograph did not negate the fact that someone had been stabbed.

Trial counsel testified that he gave the Petitioner copies of all the motions he filed.

He said that he discussed with her the reasons he sought to exclude evidence and that she

seemed to understand at the time. He noted that the medical records contained diagrams

detailing the victim’s injuries and supported the State’s case.

Trial counsel testified that he reviewed a transcript of the preliminary hearing. He

disagreed that there were numerous inconsistencies between the victim’s testimony at the

hearing and at the trial. He said there were no inconsistencies that he considered major. He

could not recall whether the preliminary hearing transcript reflected that the victim testified

the Petitioner said, “B----, I’m going to kill you.” He said that this was an important

statement for the State’s case and that it would have been significant if the victim never made

the claim before the trial.

With respect to his closing argument, trial counsel testified that he relied on a theory

noting the credibility of the witnesses. He said he thought he mentioned all of the

inconsistent statements.

On redirect-examination, trial counsel testified that the photographs the Petitioner

wanted to use supported the State’s theory. He could not recall whether the court excluded

some of the photographs.

The Petitioner offered a recording of the preliminary hearing as evidence and asked

the court to review the testimony of the victim for inconsistencies. The court filed an order

in which it found that the Petitioner failed to prove her allegations by clear and convincing

evidence. The trial court’s order recited the testimony and made the following findings of

fact and conclusions of law:

First, the petitioner claims that counsel failed to file

proper notices and motions and failed to protect the petitioner’s

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Constitutional rights on appeal. The Court does not agree with

this finding. Both trial counsel and appellate counsel filed

proper motions and the petitioner’s case was appealed all the

way to the State Supreme Court; however, the Court declined to

hear her case.

Next, the petitioner claims that counsel failed to properly

investigate the petitioner’s case. The Court finds no merit in

this argument either. [Trial counsel] hired a private investigator

per [Tennessee Supreme Court] Rule 13, and had a legitimate

trial strategy and developed it as best as possible. Therefore, the

Court will deny this argument.

Next, the petitioner claims that counsel failed to

adequately meet with the petitioner throughout the trial and

appeals process. Again, this argument is without merit. [Trial

counsel] supplied documentation showing that he met with the

petitioner on nineteen (19) separate occasions and discussed all

of the issues of the case with the petitioner. The argument is

therefore denied.

Next, petitioner argues that trial counsel failed to

adequately advise her on defense strategies. This argument is

without merit as well. The petitioner herself testified that [trial

counsel] advised her on certain topics to discuss while on the

stand and other topics to stay away from. Tactical decisions

made by counsel ordinarily are not grounds for Post-Conviction

Relief, if reasonable. There were tactical reasons to make the

decisions trial counsel made. Therefore, this issue is without

merit.

Next, petitioner argues that trial counsel failed to

properly investigate witnesses. Again, this issue is without

merit. Trial counsel utilized the services of a private

investigator. Therefore, this issue is without merit.

Next, the petitioner argues counsel failed to properly

object during cross-examination of a witness or when

photographs were excluded that would have strengthened the

petitioner’s case. Some of the petitioner’s testimony was

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confusing in that she wanted certain photos introduced that

counsel tried to keep out; regardless, the jury saw photos

relevant to present all evidence for both sides. These issues, and

the remainder of the petitioner’s claims, are trial strategy and

therefore without merit.

The Court finds that the petitioner’s issues are without

merit and that the petitioner failed to meet her burden by clear

and convincing evidence. Therefore, the petition for post-

conviction relief is hereby denied.

On appeal, the Petitioner argues that the trial court erred in denying relief. The State

argues that the trial court’s ruling was proper. We hold that the Petitioner has not shown that

she is entitled to relief.

The burden in a post-conviction proceeding is on the Petitioner to prove her

allegations of fact by clear and convincing evidence. T.C.A. § 40-30-110(f) (2006);

Dellinger v. State, 279 S.W.3d 282, 294 (Tenn. 2009). Post-conviction relief may only be

given if a conviction or sentence is void or voidable because of a violation of a constitutional

right. T.C.A. § 40-30-103 (2006). On appeal, we are bound by the trial court’s findings of

fact unless we conclude that the evidence in the record preponderates against those findings.

Fields v. State, 40 S.W.3d 450, 456-57 (Tenn. 2001). Because they relate to mixed questions

of law and fact, we review the trial court’s conclusions as to whether counsel’s performance

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

presumption of correctness. Id. at 457.

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

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

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

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

(1993). A petitioner will only prevail on a claim of ineffective assistance of counsel after

satisfying both prongs of the Strickland test. See Henley v. State, 960 S.W.2d 572, 579

(Tenn. 1997). The performance prong requires a petitioner raising a claim of ineffectiveness

to show that the counsel’s representation fell below an objective standard of reasonableness

or “outside the wide range of professionally competent assistance.” Strickland, 466 U.S. at

690. The prejudice prong requires a petitioner to demonstrate 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. In the context of a guilty plea, in order to prove prejudice,

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

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he would not have pleaded guilty and would have insisted on going to trial.’” House v. State,

44 S.W.3d 508, 516 (Tenn. 2001) (quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985)).

Our supreme court has held that attorneys should be held to the general standard of

whether the services rendered were within the range of competence demanded of attorneys

in criminal cases. Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). Further, the court

stated that the range of competence was to be measured by the duties and criteria set forth

in Beasley v. United States, 491 F.2d 687, 696 (6th Cir. 1974), and United States v.

DeCoster, 487 F.2d 1197, 1202-04 (D.C. Cir. 1973). See id. Also, in reviewing counsel’s

conduct, a “fair assessment of attorney performance requires that every effort be made to

eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s

challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.”

Strickland, 466 U.S. at 689. “Thus, the fact that a particular strategy or tactic failed or even

hurt the defense does not, alone, support a claim of ineffective assistance.” Cooper v. State,

847 S.W.2d 521, 528 (Tenn. Crim. App. 1992). Deference is made to trial strategy or tactical

choices if they are informed ones based upon adequate preparation. Hellard v. State, 629

S.W.2d 4, 9 (Tenn. 1982); see DeCoster, 487 F.2d at 1201.

The Petitioner raises several challenges to the trial court’s ruling in her brief. All of

the Petitioner’s contentions are based upon the trial court’s accreditation of the proof

presented at the hearing. As noted above, we are bound by the trial court’s factual findings

unless the evidence preponderates against them. Fields, 40 S.W.3d at 456-57.

The Petitioner contends that trial counsel was deficient for failing to speak with her

mother before her mother’s death. She claims her mother was a crucial defense witness.

Trial counsel did not recall whether he spoke with the Petitioner’s mother, but he testified

that the Petitioner told him before the trial that her mother was in the living room and did not

see what occurred between the Petitioner and the victim. He denied that the Petitioner told

him her mother saw part of the altercation. At the post-conviction hearing, the Petitioner was

adamant that she wanted evidence presented to show that the struggle took place on the bed,

that the victim left the bedroom before the police arrived, and that the victim staged the scene

to fit her version of events. The record reflects, however, that trial counsel knew the

Petitioner’s wishes that the evidence to dispute the victim’s account of the crime be

presented. He advised her that in his professional opinion, offering evidence of this nature

would further the State’s case. The trial court found that trial counsel made decisions based

upon trial strategy and that trial counsel made reasonable tactical decisions. The record

supports the trial court’s rejection of this portion of the Petitioner’s ineffective assistance

claim.

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Similarly, the Petitioner argues that trial counsel was ineffective for seeking exclusion

of photographs that supported the Petitioner’s version of events. Trial counsel testified that

he thought the photographs of a bloody scene were “horrific” and prejudicial to the defense.

He also said the photographs did nothing to disprove the fact that a stabbing occurred. We

note that this court’s opinion on direct appeal reflects the Petitioner challenged the trial

court’s admission of a photograph showing blood in the room where the attack occurred to

impeach a defense witness. Marilyn Denise Avinger, slip op. at 4-6. This establishes that

despite the Petitioner’s post-conviction claim that trial counsel was ineffective for seeking

to have this evidence excluded, the jury saw a photograph depicting the blood in the

bedroom. The trial court found that the Petitioner’s testimony was confusing relative to this

claim and that in any event, the jury considered photographs that were relevant to present all

of the evidence for both the State and the defense. The Petitioner did not establish that

counsel failed to use photographs that would have furthered the defense. She is not entitled

to relief.

The Petitioner contends that trial counsel failed to impeach the victim’s testimony

adequately with her previous statements. She refers to trial counsel’s failure to point out that

the victim never claimed before the trial that the Petitioner swore at her and threatened to kill

her. Trial counsel did not recall whether the first time the victim made the claim was at the

trial, but he said he used the victim’s previous statements for impeachment, and he thought

he did an adequate job.

The Petitioner has not identified the precise testimony from the preliminary hearing

upon which she relies. Our review of the recording in the record includes the victim’s

account of the Petitioner’s statements: The Petitioner asked the victim whether the victim

was afraid to face her and “said something else,” the Petitioner hit the victim, and they began

fighting. The Petitioner went to the kitchen to get a knife and returned and stabbed her. On

cross-examination, the victim said “[the Petitioner] made a statement to [her],” and then hit

her. Defense counsel later asked, “So she wasn’t trying to kill you?” and the victim replied,

“Oh yes, she was.” On redirect examination, the victim testified that after the Petitioner

stabbed her, the Petitioner said to her mother, “I know the b---- is going to swear a warrant

on me. I’m going to turn around and swear a warrant on her.” She said the Petitioner also

told her mother to “get some bond money to get her out and to remember [the Petitioner] had

a knife.”

Although the victim did not specifically testify at the preliminary hearing that the

Petitioner swore at her and said she was going to kill her, the victim said that the Petitioner

made an unspecified statement to her before beginning the fight. The victim was not asked

at the preliminary hearing what that statement was. When cross-examined about whether the

Petitioner was going to kill her, she said, “Oh yes, she was.” Although this evidence might

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have impeached the victim for failing to reveal the nature of the Petitioner’s statement at the

preliminary hearing, it would not have shown that the victim never claimed the Petitioner

said something other than what the victim claimed at trial or that the Petitioner said nothing.

In any event, trial counsel testified that he impeached the victim’s credibility and argued

witness credibility in his closing argument. The Petitioner failed to demonstrate that

additional cross-examination would have added any benefit to the efforts counsel made to

challenge the victim’s credibility.

Regarding the performance of appellate counsel at the sentencing hearing, the

Petitioner argues that appellate counsel did not meet with the Petitioner enough before the

sentencing hearing, did not file a notice of any mitigating factors before the sentencing

hearing, did not meet with the Petitioner’s trial counsel before the hearing, and did not raise

an issue based upon the trial court’s failure to consider the mitigating and enhancement

factors. The record reflects that appellate counsel met with the Petitioner numerous times

and spoke with her by telephone before the sentencing hearing. The Petitioner acknowledges

in her brief that counsel had “several” meetings of “about an hour” with her before the

sentencing hearing. Appellate counsel said she spoke to trial counsel by telephone before

the sentencing hearing. She testified that she argued the mitigating factors that should apply

at the sentencing hearing. Appellate counsel testified that she raised all issues that she

thought had a legal basis in the motion for new trial and on appeal. The trial court found that

appellate counsel’s performance was not below the acceptable standard. The proof supports

the trial court’s finding that the Petitioner failed to establish her claim.

The Petitioner argues that the cumulative effect of “numerous significant errors and

omissions” in the pretrial, trial, and appellate process by both trial counsel and appellate

counsel deprived her of the right to the effective assistance of counsel. The trial court did

not make any findings that deficient performance occurred, and the Petitioner has not

demonstrated any error in the trial court’s determination that trial counsel and appellate

counsel’s performance were not ineffective. There are no errors to accumulate.

In consideration of the foregoing and the record as a whole, the judgment of the trial

court is affirmed.

_____________________________________

JOSEPH M. TIPTON, PRESIDING JUDGE

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