Robert Allen Crawford v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs June 29, 2010

ROBERT ALLEN CRAWFORD v. STATE OF TENNESSEE

Appeal from the Criminal Court for Washington County

No. 31826 R. Jerry Beck, Judge

No. E2009-01441-CCA-R3-PC - Filed September 14, 2010

The petitioner, Robert Allen Crawford, appeals the Washington County Criminal Court’s

denial of post-conviction relief and claims that his convictions of first degree murder,

criminally negligent homicide, aggravated burglary, aggravated assault, and reckless

endangerment were the results of the ineffective assistance of trial counsel. Following an

evidentiary hearing on the petitioner’s timely petition for post-conviction relief, the criminal

court denied relief. Upon our review of the record and the parties’ briefs, we affirm the order

of the criminal court.

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

J AMES C URWOOD W ITT, J R., J., delivered the opinion of the Court, in which N ORMA M CG EE

O GLE and D. K ELLY T HOMAS, J R., JJ., joined.

Robert Allen Crawford, Tiptonville, Tennessee, pro se.

Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Assistant Attorney

General; Anthony Wade Clark, District Attorney General; and Dennis Brooks, Assistant

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

OPINION

This court affirmed the petitioner’s convictions, and our supreme court denied

permission to appeal. See State v. Robert Allen Crawford, No. E2003-00627-CCA-R3-CD

(Tenn. Crim. App., Knoxville, Mar. 9, 2004), perm. app. denied (Tenn. 2004). The facts

underlying the petitioner’s convictions were summarized in Robert Allen Crawford as

follows:

On the afternoon of June 22, 1999, the [petitioner],

Robert Allen Crawford, whose estranged girlfriend, Diana

Hatley, had appeared in court earlier that day on a domestic

abuse charge against him, fired two shotgun blasts through the

door of the trailer home that Hatley’s father, Billy Ricker, shared

with his longtime companion, Linda Leopold, and their disabled

daughter, Georgia Ricker. At the time of the incident, Hatley,

who was Ricker’s daughter from a previous marriage, was also

in the home. The [petitioner]’s first shot went through the

doorknob. The second shot went through the door and into

Ricker’s abdomen, causing his death.

Unable to gain entry through the front door, the

[petitioner] broke a window, entered the house with his shotgun

in hand, smashed furniture in the front room, and began beating

Hatley and threatening to kill her, Leopold, and Georgia Ricker.

Hatley fought back, struggling with the [petitioner] over the gun

and eventually managing to wrest it from his grasp and run out

the front door. Upon seeing sheriff’s deputies outside, the

[petitioner] fled through the back door and into a nearby field,

where he was captured.

Id., slip op. at 1-2. Ms. Leopold testified at the petitioner’s trial that “[e]arly on the morning

of the shooting, the defendant came to Ricker’s home and pushed his way into Hatley’s

bedroom.” Id., slip op. at 2. Ricker ordered him to leave, and the defendant complied. Ms.

Leopold described the petitioner’s return to the home while Ricker and Hatley were attending

court “on a domestic abuse charge that Hatley had filed” against the petitioner. Id. The

petitioner entered through the back door, and Ms. Leopold instructed him to leave. She

testified that the petitioner pulled a shotgun shell from his pocket and said, “Well, I got this

for her. If I can’t have her, nobody else can.” Ms. Leopold testified that she did not “smell

any alcohol” on the petitioner. Id., slip op. at 2.

Upon Ricker’s and Hatley’s return to the home, they discovered that the

telephone wire had been cut. Id., slip op. at 3. Later, the petitioner came onto the front porch

with a shotgun, and Ms. Leopold and Ricker went out to meet him. Ms. Leopold testified

that, when Ricker could not persuade the petitioner to put down the shotgun, she and Ricker

retreated inside and locked the front door. Id. “The first shot went through the doorknob and

burned her hand. Ricker pushed her aside, and the second shot struck him.” Id. Ms.

Leopold testified that the petitioner broke out a window, entered the home through the

window, and “‘started busting up everything in the front room.’” Id. As Hatley confronted

the petitioner and the two struggled for control of the shotgun, the petitioner beat Hatley, said

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that “she had made him kill her father,” and threatened to make her watch him kill Ms.

Leopold and Georgia Ricker before he killed her as well. Id. Eventually the women fled the

house and called the police. Id.

The responding law enforcement officers testified about apprehending the

petitioner as he attempted to flee the residence. The petitioner was not armed, but an officer

found a 16-gauge shotgun shell in the petitioner’s front pocket. Id., slip op. at 4. Officers

found a shotgun at the scene that “was loaded, cocked, and ready to fire.” Id. One officer

testified that the petitioner smelled strongly of an alcoholic beverage. Id. A neighbor

testified that after he heard the shots at Ricker’s home, he found a whiskey bottle and

cigarette butts near an area of “‘mashed down’” vegetation around the house that was next

to Ricker’s home. Id.

A deputy sheriff testified to taking the following statement from the petitioner:

On 6/22/99 I went to Billy Ricker’s house on L.C.

McKee Road. It was about 3 p.m. I backed my truck up a

driveway that is just before Billy’s house. It is for sale. I sat in

the driveway for a while and drank Jack Daniels. I got out of

the truck. I had a shotgun and shells that I took with me. I went

across the road into the field that is next to Billy’s house. I went

thru [sic] the field and crossed the fence. I took some wire

pliers and cut the phone lines. I went around the front and went

up on the porch. I knocked on the door and told them I wanted

to talk to Diana. They would not let me in. I tried to open the

door but it was locked. I shot the door. I tried to shoot the door

handle. I unloaded the gun and put in a new shell, out of my

front pocket. I busted the window out and went in. Billy

grabbed the shotgun and we fell over the table. We fought in

the living room and kitchen. Billy got the gun away and threw

it. Diana picked it up and said, “I’ll kill you – you son of a

bitch.” I threw her a new shell, because it had went off when

Billy and I was fighting. Diana got the shell, loaded the gun and

fired. Billy went down. Linda hollered, “You all have killed

Billy.” I don’t remember what all happened after that. I

remember trying to get out. I don’t remember getting out and I

don’t remember any law. They must not have had their lights

on. I would remember that. I don’t remember leaving the

trailer. I remember my eyes burning and remember someone

saying, “Why did you run?”

-3-

The shotgun was Billy’s but I had it in my truck for a

while. I had stopped yesterday at the gun shop on 11-E next to

Bottoms Up, just outside of Jonesborough. I stopped there on

my way to Billy’s and bought the shells. There were some

shells in my truck but those are 12-gauge. I had to buy a box of

16-gauge.

I didn’t mean to shoot Billy. I went to Diana’s to talk to

her. I took the shotgun to Billy’s – not to hurt anyone but to hurt

myself. If I was going to hurt anyone, Diana would have been

the first one.

Id., slip op. at 5-6. The officer acknowledged on cross-examination that the petitioner

smelled of alcohol at the inception of the interview, when he began his first statement, and

the reason they terminated the interview at that time was because they feared he was

intoxicated. The State presented proof that the petitioner bought 16-gauge shotgun shells

approximately two hours before the shooting. Id., slip op. at 6.

Ms. Hatley testified and essentially reiterated Ms. Leopold’s description of the

petitioner’s assaultive conduct. Id. During her struggle with the petitioner for the shotgun,

the petitioner said, “‘Linda has to die, Georgia Ann has to die, and then you’re going to die.’”

Id. Ms. Hatley recounted that Ricker was pleading for help and that the petitioner stomped

on the victim’s head until he stopped trying to get up. At one point while the petitioner was

distracted, Ms. Hatley took the shotgun and fled the house. Id., slip op. at 7.

A forensic pathologist who performed the autopsy on the victim’s body

testified that the victim bled to death from a shotgun wound to his abdomen and pelvis. The

wound contained insulation material that appeared identical to fibers from the trailer’s front

door. Id.

The petitioner’s former girlfriend testified on his behalf that he was a “good-

hearted person” whom she had never known to be violent. Id. She also testified that the

petitioner had difficulty hearing. The petitioner’s mother testified that he had learning

disabilities, was hard of hearing, and that his grandfather and father had both committed

suicide. Id. She testified that the petitioner had been depressed before the shooting and had

mentioned suicide. She opined that the petitioner had always gotten along well with Ricker.

Id.

In Robert Allen Crawford, this court narrated the petitioner’s trial testimony

as follows:

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The [petitioner] testified he had had learning problems all

of his life and had difficulty hearing. He said he had known

Ricker eight years and had always gotten along well with him.

He stated that he met Hatley in 1998 and fell in love with her

within the first week of their acquaintance. He said Hatley

drank every day, “took quite a few pills,” and occasionally

smoked marijuana. Although they got along well when sober,

they argued whenever they drank.

On the night before the shooting, the [petitioner] was

riding with his mother in her car when he saw Hatley speed past

him driving his black Ford pickup truck. The [petitioner] said

he was concerned because Hatley was driving drunk in his truck

without insurance. After following Hatley for awhile and then

losing her, he and his mother drove to Ricker’s house, where he

retrieved his truck and had a conversation with both Ricker and

Hatley. The [petitioner] testified Ricker told him Hatley was an

alcoholic and he should leave her alone because she would

always cause him problems. The [petitioner] said, however, that

he was not ready to give Hatley up.

The [petitioner] testified he had a job interview the

morning of the shooting at a place Hatley had put in an

application as well. He said Hatley told him during their

conversation the previous evening that she wanted to accompany

him on his interview. However, when he stopped by Ricker’s

home that morning to pick her up, “she was totally a different

person” and told him she no longer wanted to be with him. The

[petitioner] said he was so hurt and depressed that he went home

and started drinking, ignoring his job interview. At about 10:45

a.m., he left home and went to the courthouse in Johnson City,

where a woman told him he was not supposed to be in court

until 1:30 p.m. He got back in his truck “and started drinking

and went down on the river.”

The [petitioner] testified he did not remember buying the

shotgun shells. He said he had no intention of killing anyone,

and there was no significance to the number of shells the box

contained. He remembered backing his truck into the driveway

of the vacant home but only “bits and pieces” of what else

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occurred. He did not remember going to the house and talking

to Leopold, cutting the telephone wires, or later walking onto

the porch of the residence and confronting Ricker and Leopold

with the shotgun. He also did not remember firing the shotgun

through the door but said it was possible he had. He was

confident, however, that he would not have done so in an

attempt to get inside the house. The [petitioner] testified he

could have entered through the back door because he knew from

previous visits to the home that the lock on that door was broken

and the door could be secured only by placing a broom handle

in the trough. He offered the following explanation for firing

his shotgun at the front door:

If I’d have shot – the only thing that I

could think of would be the reason I’d have shot

the door was just to get Diana to come out to talk

to me to where we could see if we could work our

relationship out, maybe to kill myself in front of

her, to hurt her like she had hurt me, to – far as I

know that was all I could know the reason I could

have fired the shotgun.

The [petitioner] said he had no memory of breaking the

window with the shotgun, and the only thing he remembered

while inside the house was sitting at the kitchen table and

talking with Hatley.

The [petitioner] reiterated on cross-examination that he

had no memory of having shot the door. He also testified he did

not remember Ricker screaming at him to put the gun down but

said if Ricker had, he might not have heard Ricker because of

his hearing deficit. He denied it was possible to see through the

glass window in the door that someone was standing behind the

door.

Id., slip op. at 7-8.

In Robert Allen Crawford, this court explained that

[t]he trial court merged the conviction for criminally negligent

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homicide with the conviction for first degree murder, and the

defendant received concurrent sentences of life for the first

degree murder conviction, four years for the aggravated burglary

conviction, three years for the aggravated assault conviction,

and one year for the reckless endangerment conviction.

Id., slip op. at 1.

In the petitioner’s petition for post-conviction relief, he claimed that his trial

counsel had been ineffective in failing to develop a “psychological” defense based upon the

petitioner’s low intelligence quotient (“IQ”) and his use of alcohol at the time of the offense.

He also claimed that trial counsel failed to present a defense of diminished capacity to form

the requisite intent to commit the crimes of which he was convicted, communicated with the

petitioner inadequately prior to trial, failed to investigate the case, failed to cooperate or

interact with co-counsel, and failed to take steps to enable the petitioner to hear properly

during trial preparations and trial.

In the February 22, 2008 post-conviction hearing, one of the petitioner’s trial

attorneys, who we will refer to as associate counsel, testified that she was appointed to assist

lead counsel because of her familiarity “with clients that had communication problems.” She

testified that she made several calls to lead counsel to arrange a meeting with him but that

he did not return her calls. She also testified that she went to lead counsel’s office once and

left a message with his receptionist to have him call associate counsel. She recounted, “I had

a very difficult time communicating with him. Not with our client, with [lead counsel].” She

testified that when she would contact lead counsel, he would typically say, “I’ll get back with

you,” which he never did.

Associate counsel testified that she copied the court file on the petitioner’s case

and reviewed and copied the district attorney general’s file. She went to and photographed

the crime scene. She testified that she interviewed the petitioner in the jail on at least three

occasions. She described the interviews as lengthy.

Associate counsel testified that, on one occasion, she located lead counsel in

a bar and grill near his office and spoke with him “maybe three minutes about the case.”

Lead counsel declined her request to return to his office to discuss the case. She testified that

she told lead counsel that the petitioner’s mental evaluation was “very relevant to the case

and needed to be pursued.” She testified that she never met lead counsel at his office. She

located him at the same bar and grill on two other occasions. In the first of those meetings,

lasting five to eight minutes, they discussed “in-depth” the petitioner’s hearing problem, and

associate counsel told lead counsel that the petitioner needed hearing aids. She testified that

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lead counsel filed a motion requesting that the petitioner be furnished with hearing aids. She

said that the trial court granted the motion. In the last encounter at the bar and grill, associate

counsel conversed with lead counsel about 15 minutes about the hearing aids that were being

provided. She testified that lead counsel told her that the audiologist involved was a friend

of his and that he would take care of arranging for the petitioner’s being fitted for the hearing

aids. She further testified that she told lead counsel at that time that she was looking for a

truck driver who may have seen the petitioner on the day of the shooting.

She testified that she later “located a driver of a dump truck . . . [who] could

testify as to the state of mind that [the petitioner] was in at [the] time [of the shooting] and

the level of intoxication, at least by his actions.” She attempted to pass this information to

lead counsel but only had “access” to him on four occasions despite her “numerous calls and

attempts to meet him to discuss the case.” She testified that she had no further

communication with lead counsel between the third encounter at the bar and grill and the first

day of trial. They did not discuss division of labor, trial strategy, or the preparation of

witnesses, including the petitioner should he elect to testify. She testified that the petitioner

told her that lead counsel was not communicating with him during this time.

Associate counsel testified that she came to court on the first day of trial after

only learning of the trial date through the newspaper at 7:00 that morning. When she arrived,

she discovered that the petitioner “did not have the hearing devices that had been approved.”

She testified that lead counsel told her the devices “were not important.” She agreed with

post-conviction counsel that, in her opinion, the petitioner had a serious hearing deficit, one

that required her to “make eye contact with him and speak slowly with him.”

Associate counsel agreed with post-conviction counsel that the petitioner’s

mental evaluation indicated the petitioner had a “tremendous mental deficit.” She exhibited

the 2000 mental evaluation report of Doctor Eric S. Engum to her testimony.

Associate counsel opined that the defense was not ready for trial when the trial

date arrived, and she testified that she told lead counsel as much. She said that lead counsel

introduced her to “a very nice young lady” who “was looking at going to law school and

wanted to see what a case would be like.” Lead counsel told associate counsel that the young

woman was the daughter of a local attorney and “was going to sit at the counsel table with

us.” Associate counsel testified that the young woman “would have been nice to look at . .

. she was a very attractive young woman.” Associate counsel advised the trial judge that, in

her opinion, the defense was not ready for trial and that she “would not go forward.” She

said that if “the case was going to go forward, [she] needed to be allowed to withdraw.”

After lead counsel assured the trial judge that he was ready for trial, the judge allowed

associate counsel to withdraw.

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On cross-examination, associate counsel agreed that, at the time she

represented the petitioner, she had participated in no criminal trials – felonies or

misdemeanors – as lead counsel, but she stated that she had been “second chair” in one or

two homicide cases. She agreed that, in recent years, she had ceased practicing criminal law.

She testified that she left her trial notebook at the court when she withdrew

from the case and did not recall the name of the truck driver she had interviewed. She

testified that the truck driver had told her that he had seen the petitioner near the scene of the

crime and that the petitioner was intoxicated. She stated that she did not subpoena the truck

driver as a witness because she did not learn of the trial date until the “morning of trial in –

when [she] looked in the newspaper.” She said she learned of the commencement of trial at

about 7:00 a.m. on the first day of trial. She testified that she had made no attempt to get

information about the trial date because she was “depending on [lead counsel] to inform

[her], since [she] was co-counsel.”

Associate counsel testified that her work on the petitioner’s case was pro bono

and that she did not file any claim for attorney fees. She agreed that she did not know the

extent of lead counsel’s preparation in the case. She further agreed that because she left the

court immediately after being allowed to withdraw, she had no knowledge of lead counsel’s

performance at trial.

At this point, the post-conviction court interrupted the February 22, 2008

evidentiary hearing to express concern that the petitioner was attending court without the

benefit of a hearing aid or listening device. Based upon his concern that the petitioner could

not fully participate in the proceeding due to his hearing impairment, the judge adjourned

further proceedings until the petitioner’s hearing problems could be addressed. The

evidentiary hearing did not resume until January 8, 2009.

On this date, associate counsel again took the stand and was questioned by

post-conviction counsel. She testified that she had experienced a stroke in September 2008

and struggled to remember some things. Associate counsel’s January 8, 2009 testimony

reiterated much of her earlier testimony. On January 8, 2009, she stressed that, as of the

morning of trial, she and lead counsel had engaged in “[a]bsolutely” no discussion about

whether the petitioner would testify at trial. She referred to the truck driver witness she

interviewed concerning the petitioner’s state of intoxication on the day of the shooting and

to two other possible witnesses who may have had similar information. She opined that “in

[her] professional opinion, the [petitioner] could not have received a fair trial, an adequate

defense, without those witnesses being interviewed and without our client having the hearing

device he was entitled to have so he could participate.”

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Following cross-examination by the State, associate counsel responded to

questions from the post-conviction court about her appointment as co-counsel on the

petitioner’s case. She testified, “The [trial] judge felt like there was a need for someone that

could communicate with our client, and he felt I was the appropriate person to do that.”

Novella Black, the petitioner’s mother, testified that in preparation for her trial

testimony, lead counsel had only asked her about whether the petitioner had a proclivity to

violence. She testified that lead counsel neither consulted with her about the petitioner’s

background nor about his drinking habits. She said that lead counsel spoke with her for

about 15 minutes when he first took the case and did not speak with her again until the day

of trial. She testified that lead counsel did not prepare her to be cross-examined. She stated

that she furnished the name of a witness, Frankie Carter, who had seen the petitioner

intoxicated on the day of the shooting and that Ms. Hatley told the petitioner’s grandmother

that Ms. Hatley was going to “put a black spider in Ricker’s coffee sometime to – to collect

his insurance.” She testified that lead counsel said, “I’ll check into it.”

She agreed that the petitioner wore headphones during the trial but claimed that

they were “them little old things that they’d bought at the Walmart.”

The petitioner testified that, following the February 22, 2008 portion of the

post-conviction hearing, he had been furnished hearing aids at state expense and agreed that

he could hear the voices in the courtroom. He testified that he had a hearing problem at the

time of trial, that he was fitted for hearing aids prior to trial, and that he did not receive any

hearing aids to use at trial. He agreed that he had been furnished a small amplifying box with

earphones. He testified, “I couldn’t hear or understand all of what they was saying.” He said

he could hear the judge and counsel but had difficulty hearing the testimony from the witness

stand.

The petitioner testified that he stayed in jail until his trial and that lead counsel

only visited him once when he was first appointed in the case and once “right before the

trial.” He testified that each meeting lasted 15 or 20 minutes. He agreed that he and lead

counsel discussed in the second meeting whether the petitioner would testify. He testified

that he told counsel that he did not want to testify and that counsel responded that he did not

have to. He said that he assumed after the meeting that he would not testify and that it

surprised him when he was called to the stand. He stated that he had not been prepared for

testimony and was sent to the stand with only the last-minute instruction, “Just answer the

best you can and look at the jury.”

On cross-examination, the petitioner testified that lead counsel never asked

what had happened on the day of the shooting. He testified that counsel “more or less told

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me what happened.” He agreed that he did speak to lead counsel on those occasions when

he appeared in court for pretrial proceedings. He maintained that he did not want to testify

at trial and that he did not know until after the trial that he could have refused to testify.

He testified that whenever he told lead counsel that he was having difficulty

understanding what was being said during trial, counsel “would say, ‘That don’t matter.

Don’t worry about it. I’ll tell you later.’”

The petitioner testified that lead counsel did not discuss with him a possible

mental health defense. He did recall being evaluated by a mental health professional.

Steven Robert Finney testified for the State that he had practiced law since

1989, had worked as an assistant district attorney general for 13 and one half years, had

engaged in a private criminal practice since 2005, and had participated in 80 to 100 jury

trials. The State tendered Mr. Finney as an expert in the field of criminal law. The post-

conviction court declined to rule that Mr. Finney was generally an expert in the entire field

of criminal law but agreed that if the State laid groundwork to ask Mr. Finney to render

opinions on specific issues, it would rule upon the admissibility of the opinions.

Mr. Finney testified that he was the lead prosecutor in the petitioner’s homicide

case. He recalled that either the petitioner’s lead counsel or that counsel’s predecessor1 in

the case filed a number of motions and that the petitioner was sent for a mental evaluation.

He recalled going to the scene of the crime with his investigator and both lead and associate

defense attorneys. Mr. Finney recalled that it was a “tough case” for the petitioner and that

“[i]t was a good case for the State based on the facts and the law.” He opined that lead

counsel “did as good as anyone could have done under the circumstances.” Mr. Finney

testified that the jury deliberated for a day and a half because, he believed, lead counsel

“gave them some stuff to think about.”

Mr. Finney testified that he was surprised that the jury deliberated that long

because the petitioner was charged both with felony and premeditated first degree murder,

and Mr. Finney thought that the decision to convict of one or the other would be easy. He

stated that the jury “hung” on a count “where [the petitioner’s] girlfriend was the victim.”

Mr. Finney testified that lead counsel tried to show that had the girlfriend “not have . . . led

[the petitioner] on and done these things, that her father wouldn’t be deceased.” Mr. Finney

said he thought “that was a really good – I mean, I really to this day think that was a good

defense.” Mr. Finney pointed out that on the premeditated murder count, the jury convicted

1

Mr. Finney testified that the public defender had initially been appointed to represent the petitioner

but had been relieved due to a conflict. Lead counsel was then appointed.

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the petitioner of the lesser included offense of criminally negligent homicide. Mr. Finney

opined that lead counsel was prepared to defend the petitioner.

On cross-examination, Mr. Finney agreed that it is important to interact with

co-counsel to get the benefit of another viewpoint.2

Lead counsel testified that he was licensed to practice law in 1998 and

participated in his first jury trial in a criminal case in 1999. Prior to 2002, 90 to 95 percent

of his practice was in criminal law. He testified that by 2002 he had participated in

approximately 10 jury trials although the petitioner’s case was his first murder case.

Counsel testified that in the petitioner’s case he first went to the jail to

interview his client. He testified that he went back to see him once or twice more. He

obtained discovery materials from the district attorney general’s office and reviewed them.

He testified that the petitioner was evaluated at Lakeshore Mental Health Institute in

Knoxville and stayed there about 30 days. He testified that he reviewed the voluminous

medical reports emanating from the evaluation. He testified that he visited the homicide

scene with associate counsel and talked to Ricker’s neighbor. He said he prepared a trial

notebook that included questions for direct and cross-examinations. He testified that he “was

ready.”

Counsel testified that he paid particular attention to the petitioner’s mental

ability and the issue of a diminished capacity defense. He testified that, in addition to going

through the medical records, he discussed the defense with the members of the public

defender’s staff who had worked on the case previously. He said, “I just decided we didn’t

have a defense there. There wasn’t any evidence in the record to – to support that kind of

defense.” He opined that, although he knew the petitioner’s IQ was 70, the petitioner

“seemed intelligent. He carried on a conversation without any problems. . . . He had ideas

about things.”

Counsel testified that a major point of concern for him was whether the

2

During the cross-examination of Mr. Finney, counsel for both sides and the judge discussed the use

of the trial record by the post-conviction court. Preferring not to review a “2,000 page transcript,” the post-

conviction judge, who was not the trial judge, agreed to allow counsel to submit specific citations to the

record that they respectively wished the court to review. At times during the post-conviction hearing, counsel

and the judge specifically referred to this court’s rendition of facts in Robert Allen Crawford. At the end of

the hearing, the post-conviction judge clarified with counsel that they were going to submit and stipulate any

excerpts from the trial record that they separately deemed relevant. At one point, the petitioner’s counsel

stated, “I think I’ve got a copy of [the trial transcript].” Counsel stated that he would lend the copy to the

prosecutor.

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petitioner understood the felony murder rule. He stated that the petitioner kept maintaining

that he did not mean to kill Ricker and that this position influenced the petitioner not to

plead. He testified that second degree murder was the best offer the State made and that the

petitioner rejected the offer because he did not intend to kill Ricker. Counsel believed that,

eventually, the petitioner understood that “they had alleged aggravated burglary as their

underlying felony for the felony murder rule, that he was going to get convicted, whether he

meant to kill [Ricker] or not. And he understood that.” Counsel stated that the petitioner

“wanted to roll the dice.”

Upon reviewing some of the petitioner’s mental health records, counsel

recalled that none of the evaluators discerned any basis for his pursuing a diminished

capacity defense although they did confirm the petitioner’s mental retardation. The assistant

district attorney general read into the post-conviction hearing record a portion of Exhibit 3,

a letter dated September 6, 2001, from “Middle Tennessee Mental Health.” In pertinent part,

the letter stated not only that “the defense of insanity cannot be supported” but also that the

petitioner’s “mental condition was not so impaired that he . . . would be unable to

premeditate or to act with intent.” Counsel opined that a mental health defense “just wasn’t

there.” Also, counsel testified that he discussed the possibility of such a defense with the

petitioner, and the petitioner “did not want to use that as a defense.”

Counsel testified that he was aware of the petitioner’s hearing deficiency but

that he “didn’t have any trouble communicating with [the petitioner].” Counsel recalled that,

although arrangements had been made to obtain hearing aids for the petitioner, the petitioner

“never got transported from the jail to the audiologist, so he didn’t get his hearing aids.” He

testified that either he or his secretary bought

a portable amplifier that had earphones attached to it. And when

we came down to trial I had that. And we put it on the table

there. And we even switched tables with the prosecution so he

could be right in front of the witness stand just in case there was

any problem. But he wore these earphones. . . . I remember

very distinctly on the record Judge Cupp was very thorough

about questioning him, and whether this – this amplifier helped

him hear, and whether he understood what was going on. And

he was fine. He could hear everything.

Counsel testified that the petitioner expressed “[n]ot a word” to him during the trial about

being unable to hear.

Counsel denied that he ever heard anything about a truck driver who had

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observed the petitioner in an intoxicated state on the day of the shooting. Nevertheless,

counsel minimized the effect of such a witness because his theory of defense was that the

petitioner, in entering Ricker’s home, intended only to talk to Ms. Hatley and did not intend

to commit any felony. As such, counsel maintained, the felony murder charge was undercut

by the absence of a predicate felony.

Counsel testified that he met with the petitioner at the jail a day or two before

trial and discussed whether the petitioner would testify. He stated that the petitioner

recounted the events preceding the shooting but that, when the petitioner testified, he

surprised counsel by stating that he did not remember those events. Counsel opined that the

defense had made headway with the jury until the petitioner claimed he did not remember

what happened. Counsel testified that the petitioner understood his constitutional rights

regarding his decision to testify and that they discussed the advantages and disadvantages.

Counsel stated, “[I]f he had told the jury the same thing that he told me in the same manner,

I think he would have come out better. But he, for whatever reason, decided not to do that.”

Counsel did agree, however, that had he had it to do over, he might have filed “some kind

of motion for . . . an independent expert to – to examine [the petitioner].” At the time,

however, he thought there was no point in doing so.

Counsel testified that he had conversations with the petitioner’s mother but that

he did not recall her telling him about any witnesses to investigate. Counsel agreed that he

used the petitioner’s mother to introduce evidence of the petitioner’s background, but he

stated that he had to be careful because the petitioner “had done this before. . . . [H]e had

been rejected by a woman before and he had gone out to his truck and pulled out a shotgun

and fired the – fired a round into her house,” resulting in an aggravated assault guilty plea.

Counsel stated also that, approximately six months before the shooting of Ricker, the

petitioner “stuck a shotgun to Ms. Hatley’s head over when they were living in North

Carolina,” resulting in a domestic assault charge. Counsel testified that he tried to “build

sympathy” and had “to be careful about a lot of this stuff because [he] didn’t want the jury

hearing about that.”

The State introduced into evidence lead counsel’s fee petition, and he agreed

that it reflected meeting with the petitioner on “multiple occasions,” that he met with the

petitioner’s mother for 1.3 hours, and that he spent a considerable amount of time preparing

for trial, including interviewing all of the State’s witnesses except for Ms. Hatley. He

testified that part of his strategy was “to put as much of the blame on – for this killing on

[Ms. Hatley] as [he] could, because she wasn’t a very sympathetic figure. . . . She . . . used

a lot of drugs. . . . [S]he took advantage of [the petitioner] emotionally.”

On cross-examination, lead counsel denied that he had any problem working

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with associate counsel and commented, “She just didn’t do anything.” He testified that

“early on we had a couple of conversations about [the case], and she said she was going to

do things, and she didn’t follow up.” Lead counsel testified that he began not “pay[ing]

much attention to her when we went down to the crime scene.” Counsel claimed that, at the

scene – where Ms. Leopold lived, associate counsel was “abrasive and impolite” to Ms.

Leopold. Lead counsel testified that he realized that if associate counsel “acts like that in

front of a jury we’re dead before we start.” After that, the two lawyers did not contact each

other, but lead counsel maintained nevertheless that he was prepared for trial.

Lead counsel testified that he did not remember associate counsel’s making

arrangements for the petitioner’s hearing aids. He testified that she had mentioned getting

hearing aids for the petitioner “and then didn’t follow through with it.” Lead counsel denied

that he had ever known anyone “in the audiology business.”

Counsel testified that he had voluntarily relinquished his license to practice law

after not responding to complaints filed with the Board of Professional Responsibility. He

testified that he agreed to a five-year disbarment.

On June 15, 2009, the post-conviction court entered its order denying post-

conviction relief and containing its written findings and conclusions of law. The court made

“general finding[s]” including that it accredited the testimony of lead counsel over that of the

petitioner. We will review the particular factual findings and conclusions of law as we

address the petitioner’s issues presented for appellate review.

The post-conviction petitioner bears the burden of proving his or her

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

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

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

“the advice given, or the services rendered by the attorney, are within the range of

competence demanded of attorneys in criminal cases,” 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

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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.

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).

On appeal, the petitioner raises four issues of ineffective assistance of counsel.

I. Failure to Request a Jury Instruction on Voluntary Intoxication

This issue as framed by the petitioner to address jury instructions on voluntary

intoxication was not presented in the amended post-conviction petition, was not raised in the

post-conviction hearing, and was not ruled on per se by the post-conviction court. Thus, the

issue of whether trial counsel was ineffective for failing to request a jury instruction on

voluntary intoxication is not before the court. See Walsh v. State, 166 S.W.3d 641, 645

(Tenn. 2005) (“Issues not addressed in the post-conviction court will generally not be

addressed on appeal.”); State v. Adkisson, 899 S.W.2d 626, 635 (Tenn. Crim. App. 1994)

(“[A] party will not be permitted to assert an issue for the first time in the appellate court.”).

Moreover, the transcript of the post-conviction hearing reveals that the parties,

through counsel, orally stipulated that the jury was instructed on voluntary intoxication, and

the post-conviction court seemed to include the stipulation in its findings. We have no record

before us that shows otherwise.

The petitioner has demonstrated no entitlement to relief upon the claim that his

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trial counsel did not request a voluntary intoxication jury instruction.

II. Failure to Cooperate with Associate Counsel and to Investigate and Present the

Testimonies of Three Witnesses Regarding the Petitioner’s Voluntary Intoxication

The post-conviction court determined that lead counsel was entrusted with

strategic and tactical decisions at trial and that essentially his failure to utilize the services

of associate counsel did not indicate per se that lead counsel’s performance was deficient.

The court further found that evidence of the petitioner’s intoxication at the time of the crimes

was well developed. The court determined that the testimony of other witnesses would have

been redundant on the issue of intoxication.

We glean from the post-conviction court’s conclusions that, as between the two

lawyers representing the petitioner pretrial, only lead counsel was in a position to know the

defense’s state of readiness for trial. The record, via lead counsel’s testimony, contained

evidence of lead counsel’s active preparation for trial. Typically, a client’s interests are

better served when his two attorneys cooperate and communicate with each other, but in the

present case, the petitioner failed to show that he was prejudiced by lead counsel’s

marginalizing of associate counsel.

The claim that lead counsel did not investigate witnesses to the petitioner’s

intoxication and did not call the truck driver to testify is equally unavailing. A post-

conviction petitioner generally fails to establish his claim that counsel did not properly

investigate or call a witness if he does not present the witness to the post-conviction court;

a post-conviction court may not speculate “on the question of . . . what a witness’s testimony

might have been if introduced” at trial. Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim.

App. 1990). The petitioner did not call the truck driver or any other putative trial witnesses

to testify in the post-conviction hearing. Accordingly, he failed to demonstrate, at a

minimum, that he was prejudiced by his counsel’s inaction on this issue.

III. Failure to Develop a Mental Health Defense

Concerning the petitioner’s claim that counsel failed to mount a mental health

defense, the post-conviction court relied upon the absence of any mental health expert

testimony in the evidentiary hearing and denied relief on this issue.

We discern from the record that the petitioner is limited intellectually; however,

the petitioner failed to prove by clear and convincing evidence the viability of any mental

impairment defense. He called no witnesses to establish the merits of any such defense, and

we cannot speculate about whether any expert testimony would have advanced such a

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defense at trial. See id. Consequently, the petitioner established no prejudice in counsel’s

failure to pursue a defense of mental impairment.

Additionally, lead counsel, whose testimony was accredited by the post-

conviction court, testified that he reviewed all of the evaluative reports and discussed a

possible diminished capacity defense with the petitioner’s former counsel. Based upon the

record, lead counsel informed himself about the petitioner’s mental limitations, articulated

reasons based upon his information for not pursuing a diminished capacity defense, and made

the strategic choice not to pursue such a defense. As mentioned above, we defer to tactical

or strategic decisions of counsel when the choices are made after adequate preparation.

Adkins, 911 S.W.2d at 347; Cooper, 847 S.W.2d at 528.

IV. Failure to Obtain a Hearing Device for the Petitioner Prior to Trial

In addressing this claim, the post-conviction found that no proper hearing aids

were purchased for the petitioner before trial; however, the trial court physically rearranged

the parties in the courtroom to afford the petitioner proximity to the witness stand. The post-

conviction court found that, once the trial began, the petitioner made no complaint that he

could not hear. On this basis, the court held that the petitioner failed to show that he was

prejudiced by any deficient performance of trial counsel.

The record supports the trial court’s conclusion in this regard. Although the

petitioner and his former associate counsel testified that his hearing was impaired, no clinical

evidence was offered to establish the extent of the impairment or the inefficacy of the

measures employed at trial to address the issue. Absent such evidence, the State’s evidence

that measures were taken at trial and that the petitioner did not complain that he could not

hear the proceedings, combined with the court’s accrediting this testimony, supports the

conclusion that the petitioner failed to carry his burden of showing by clear and convincing

evidence that counsel was ineffective in failing to take further action to address his hearing

problem.

V. Conclusion

Our conclusion is that the record supports the post-conviction court’s

determination that the petitioner failed to establish ineffective assistance of counsel by clear

and convincing evidence. Accordingly, that court’s order is affirmed.

_________________________________

JAMES CURWOOD WITT, JR., JUDGE

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