Frankie E. Casteel v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

April 28, 2009 Session

FRANKIE E. CASTEEL v. STATE OF TENNESSEE

Appeal from the Criminal Court for Hamilton County

No. 257015 Jerry Scott, Senior Judge, Sitting by Designation

No. E2008-01526-CCA-R3-PC - Filed March 15, 2010

The Petitioner, Frankie E. Casteel, appeals the Hamilton County Criminal Court’s denial of

his petition for post-conviction relief from his convictions for three counts of first degree

murder. In this appeal, the Petitioner contends that the trial court erred in finding that he

received the effective assistance of counsel. 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 N ORMA M CG EE O GLE

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

Ruth H. Delange, Chattanooga, Tennessee, for the appellant, Frankie E. Casteel.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Senior Counsel;

William H. Cox, II, District Attorney General; M. Neal Pinkston, Assistant District Attorney

General, for the appellee, State of Tennessee.

OPINION

The Petitioner was convicted of the murders of Richard Mason, Kenneth Griffith, and

Earl Smock. His convictions were reversed, and he was granted a new trial. State v. Frankie

E. Casteel, No. E1999-00076-CCA-R3-CD, Hamilton County (Tenn. Crim. App. Apr. 4,

2001), app. denied (Tenn. Sept. 17, 2001). The Petitioner was again tried and convicted, and

his case was affirmed on appeal. State v. Frankie E. Casteel, No. E2001-01563-CCA-R3-

CD, Hamilton County (Tenn. Crim. App. Sept. 24, 2004), app. denied (Tenn. Dec. 28, 2004).

This court’s opinion on direct appeal states the facts of the Petitioner’s convictions:

Earl Smock and Kenneth Griffith were members of the

same Air Force Squadron and were stationed at Ft. Walton

Beach, Florida. The men, along with Mr. Griffith’s wife, Paula

Griffith, now Paula Kirby, drove to Hamilton County to visit

their families for a few days. On Saturday afternoon, July 9,

1988, Richard Mason, Mr. Griffith’s father-in-law, Mr. Griffith,

and Mr. Smock set out from Mr. Mason’s house on three all

terrain vehicles (“ATVs”). Mr. Smock had brought his red, blue

and white ATV with him from Florida, and Mr. Mason

borrowed a red Honda ATV from his neighbor, Stanley Nixon,

for Mr. Griffith to ride. Mr. Mason also owned a red Honda

ATV. The men packed a cooler with drinks, and Mr. Mason

wrapped a pistol in a towel and placed the pistol in the tool box

beneath the Honda’s seat. Mr. Griffith and Mr. Smock were not

armed. Mr. Smock and Mr. Griffith had brought only shorts with

them on the trip, so the two men put on green flight suits for the

ride in the woods. The three men never returned.

Paula Kirby, Mr. Griffith’s widow, testified that she did

not become concerned about the men’s absence until dusk. Ms.

Kirby said that her husband was over six feet tall, and he

weighed around two hundred pounds. Mr. Smock was heavier

than her husband and two to four inches taller. Ms. Kirby said

that she had lived on Signal Mountain since she was six, and her

father was very familiar with the woods surrounding their

property.

Mr. Nixon said that he had lived on the mountain for

sixty years and often hunted with Mr. Mason. Mr. Nixon said

that he did not know that Mr. Mason had borrowed his ATV

until Ms. Mason called him on Sunday morning, July 10, to tell

him that her husband had not come home the previous night.

Mr. Nixon said, however, that it was not unusual for the two

men to use each other’s ATV. Mr. Nixon said that his ATV was

basically the same type of ATV as Mr. Mason’s.

After Ms. Mason’s telephone call that Sunday morning,

Mr. Nixon borrowed an ATV and began searching through the

woods for the three men, but his efforts were unsuccessful. Mr.

Nixon spotted tracks on the dirt trails near Mr. Mason’s house

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that appeared to have been made by ATVs. He followed the

tracks around Jake’s Campground and on the trail leading to

Helican Road. He lost the tracks when he reached Vandergriff

Road because that road was paved.

On Monday morning, Mr. Nixon joined one of the search

teams along Helican Road which was a dirt road leading to a

popular swimming hole known as the “blue hole.” When the

search team approached the gate that blocked Helican Road, Mr.

Nixon said that about a seventy-five foot strip of the road had

been “manicured.” Mr. Nixon explained that it looked like

someone had swept the dirt road with a pine branch. He also

noticed two places where the grass was matted down. The

search team later found blood and brain tissue in that area.

On cross-examination, Mr. Nixon clarified that the swept

area of road was in front of the gate. The matted grass spots

were about sixty or seventy-five feet from the Helican Road, and

Mr. Griffith’s knife was found about 200 yards in front of the

gate. Mr. Nixon confirmed that nobody in the search party was

wearing gloves.

Mr. Nixon said that he saw some other people camping

in the woods when he first searched for the victims on Sunday,

July 10. The family was camping near Chickamauga Creek

where it crosses Vandergriff Road. Mr. Nixon said that a man

was sitting on a blanket cleaning a gun while his family swam.

Mr. Nixon said that he did not ask the man for his name.

Mr. Nixon also described an altercation he and Mr.

Mason had previously had with Cecil Hickman about eight

months prior to Mr. Mason’s death. Mr. Hickman was the

caretaker of the property belonging to Cartter [sic] Patten. On

the day of that incident, Mr. Nixon and Mr. Mason were hunting

on what they thought was property belonging to Mr. Ault. The

two men had separated when Mr. Nixon ran into Mr. Hickman

and his two sons, all of whom were armed. Mr. Hickman told

Mr. Nixon to get off the property. Mr. Nixon told Mr. Hickman

that he did not know where Mr. Mason was and then left to

retrieve his ATV. Mr. Nixon heard Mr. Hickman yell that he had

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spotted Mr. Mason in the woods, and then Mr. Hickman

discharged his pistol three times in the air.

In a separate incident, Mr. Nixon and Mr. Mason spotted

Mr. Hickman by the side of the road, and Mr. Mason swerved

his car toward him. Mr. Hickman shook his pistol at the two

men as they drove away. Mr. Nixon, however, denied that there

were any hard feelings between the three men. On redirect, Mr.

Nixon said that the first incident did not occur anywhere near

Helican Road. Mr. Nixon said that Mr. Hickman was in

Kentucky during the weekend of July 9, 1988.

Lee Griffith said that his brother, Kenneth Griffith, went

up Signal Mountain on Saturday, July 9, around 3:00 p.m. Mr.

Griffith later heard on a television newscast that his brother was

missing, and he went over to the Masons’ house. While he was

at Mr. Mason’s house, Mr. Griffith said that the police received

a call that three ATVs had been discovered in an illegal dump

on Roberts Mill Road. Mr. Griffith followed the police to the

dump site and then started home to tell his mother the latest

news. The engine of his truck died, however, on the way up

Roberts Mill Road, and Mr. Griffith flagged down a Jeep

Scrambler driven by Defendant. According to the photograph of

Defendant’s Jeep that was introduced at trial, the vehicle’s front

end resembled a standard Jeep Wrangler, and the rear was open

like a pick-up truck. Defendant gave Mr. Griffith a ride back to

Mr. Mason’s house. Mr. Griffith stood behind Defendant as they

drove, and he noticed that the wood slats in the Jeep’s bed were

wet. Mr. Griffith said that he thought that was odd at the time

because it had not recently rained.

On Monday, Lee Griffith joined the search party on

Helican Road. He said that the group took a rest break near the

gate on Helican Road. A member of the team spotted some

blood drops on a leaf near the gate. Helican Road was a dirt

road, and Mr. Griffith said that the area around the gate was

smooth so that they could not tell whether anyone had walked or

driven an ATV through the gate. Mr. Griffith identified a knife

found by one of the search team as belonging to his missing

brother, Kenneth Griffith.

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On cross-examination, Lee Griffith admitted that the

police were not there when he first arrived at the dump site on

Roberts Mill Road. After he got to the dump site, some people

climbed up from the spot where the three ATVs lay.

Larry Sneed, a detective with the Hamilton County

Sheriff’s Department, responded to the call on July 10 that three

ATVs had been found on Roberts Mill Road. The side of the hill

leading to the dump site sloped down from the road at about a

forty-five degree angle. A red, white and blue ATV was found

approximately 200 feet below the road. One of the red ATVs

was discovered about 150 feet down the hillside, and the second

red ATV was found approximately 60 to 65 feet below the road.

There was blood on both of the red ATVs which was later

determined to be human blood. The blood on one of the red

ATVs ran from the seat onto the tank which indicated that the

ATV was parked when the injury causing the bleeding occurred.

No blood was found on the red, white and blue ATV. Detective

Sneed said that Defendant would have used Roberts Mill Road

to get from his house to his campground on Helican Road.

Detective Sneed said that the ATVs were operable when

they were tested. One of the red ATVs was running when it was

pushed over the bluff because the ignition was in the “on”

position, and the exhaust pipe had burned a section of the plastic

fender. One ATV at a time could fit into the back of

Defendant’s Jeep, but it took two men to lift the ATV into the

Jeep.

Detective Sneed said that they set up a command center

on Monday, July 11, about three miles from the dump site on

Roberts Mill Road. The police learned that shots had been heard

on Saturday evening in the Helican Road area. Detective Sneed

said that a search team walked from Vandergriff Road

approximately 2.2 miles down Helican Road until they reached

the gate. When the team stopped for a break, Detective Sneed

noticed a spot of blood on a leaf. He also observed drag marks

leading away from the road to the base of a tree. This spot was

covered with insects, and they discovered blood and what

appeared to be brain tissue in the vegetation surrounding the

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area. Detective Sneed said that it looked like someone had swept

the road around the gate with a broom.

At this point, a cadaver dog was unleashed. The dog

started digging beneath the gate, and a large pool of blood was

discovered. A second blood-stained area was later discovered.

Both areas had been covered with leaves. The bark of a tree near

the road showed either buckshot or shotgun blasts. The banks of

Helican Road were about one to two feet high, and a section of

the bank appeared to have been cut across by a vehicle’s bumper

or tailgate.

Defendant’s campground was approximately eight-tenths

of a mile from the gate on Helican Road. Detective Sneed said

that Defendant’s camp was very clean when they searched it.

Pieces of a blue tarp were visible in the fire pit. Detective Sneed

said that Defendant voluntarily gave him his logbook and his

gun, which had been recently cleaned.

Detective Sneed said that the victims’ bodies were found

four days after they were killed in another illegal dump site on

Big Fork Road in neighboring Marion County. Detective Sneed

said that the site was approximately thirteen miles from the gate

area on Helican Road and was accessible from Helican Road

without driving off of Signal Mountain. The bodies rested on the

ledge of a bluff approximately fifty to sixty feet below the

road’s surface. The bodies were stacked on top of each other

about five or ten feet from the edge of the bluff and covered

with brush and barbed wire. Detective Sneed said that the bodies

were visible from the road.

On cross-examination, Detective Sneed said a warranty

deed dated June 30, 1988, showed that Defendant owned

approximately 130 acres around Helican Road which had been

purchased from Cartter Patten. The property abutted the “blue

hole,” but Defendant did not own the pond. Detective Sneed

said that he understood that Defendant had permission to use the

property before title was actually transferred.

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Detective Sneed said that he found a pistol wrapped in a

towel in the tool box of one of the red ATVs but did not test the

pistol to see whether it had been fired. Detective Sneed

confirmed that there was only one drag mark leading from

Helican Road into the woods. He said that they had not found

any blood in the drag mark. None of the shotgun casings or

waddings found in the area around the gate were fired with

Defendant’s gun.

Detective Sneed said that Defendant initially arrived at

the command center on Roberts Mill Road in a neighbor’s car.

Detective Sneed drove Defendant back to the neighbor’s house

where his Jeep Scrambler was parked. Detective Sneed said that

Defendant voluntarily let the police officers examine his vehicle,

gun and log book. Detective Sneed said that the police did not

do a gunpowder residue test on Defendant’s clothes and were

unable to retrieve any soil samples from Defendant’s Jeep

because it had been recently washed. No blood was found on

the tarp remnants in Defendant’s fireplace, and no test was run

to determine if the material was actually from a tarp. Detective

Sneed said, however, that the fragment of cloth contained a

grommet and eyelet consistent with those generally found on a

tarp. Detective Sneed did not notice a tarp when he later

searched Defendant’s garage. Detective Sneed conceded that no

DNA tests were performed on the blood samples gathered from

the Helican gate area and the ATVs, and the blood samples were

subsequently destroyed. Detective Sneed said that one of the red

ATVs weighed 410.1 pounds and the second red ATV weighed

363.8 pounds. The red, white and blue ATV weighed 291.1

pounds.

Frank King, the Hamilton County medical examiner,

examined some of the bone fragments and tissue found at the

Helican gate before the victims’ bodies were discovered. He

said that the bone chips were consistent with the bones in a

human skull but could not identify the samples with one hundred

percent accuracy. Dr. King said, however, that the bone chip

had lead markings on the fractured edge which is typically found

when a bullet strikes a bone. Dr. King could only determine that

the tissue substance found at the scene was from either a human

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or an animal. Dr. King said that the path of the blood down one

of the ATVs was consistent with the victim sitting on the ATV

when he was shot.

Dr. King said that Mr. Griffith died from a gunshot injury

to the head. The bullet entered the left side of the victim’s head

just above and behind the left ear and exited the right side of the

victim’s head. Portions of the victim’s skull were not found with

the body. There was a slight downward trajectory from the entry

to the exit wound consistent with the shooter standing and the

victim sitting when the injury was inflicted. Mr. Griffith also

had postmortem abrasions to the chest area consistent with the

body being dragged over a rough area. Dr. King could not say

whether the bone fragments found at the scene came from Mr.

Griffith’s skull. The victim would have lost consciousness

immediately after the gunshot with death occurring within a few

seconds to one or two minutes later.

Dr. King said that Mr. Mason died of a shotgun wound

to the chest. The pellets entered the left side of his body and

traveled in a downward trajectory toward the victim’s back. The

path of the pellets was consistent with the shooter standing and

the victim sitting when the gun was fired. Shotgun pellets were

found in the back of Mr. Mason’s right chest and shoulder. The

shotgun pellets entered the victim’s body relatively close

together indicating that the victim was shot at close range. The

large wound would have bled considerably. Dr. King said that

the gunshot wound was fatal, but the victim would not have lost

consciousness for a minute or two.

Mr. Smock suffered two shotgun wounds. The first

wound, unlike Mr. Mason’s and Mr. Griffith’s, was caused by

small pellets, or “birdshot.” The pellets entered Mr. Smock’s

right shoulder and upper chest and traveled in a straight line.

Two pieces of shotgun wadding were found in the wound

indicating that the shotgun was fired at close range. The second

wound was in Mr. Smock’s lower left shoulder. The pellets were

larger than those found in the first wound and traveled upward

and to the right. Dr. King said the wound was consistent with

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the shooter standing over the victim when he fired the shotgun

the second time.

On cross-examination, Dr. King said that he could not tell

what type of gun was used. He also conceded that Mr. Smock

could have been shot by two different people or two different

guns. Dr. King confirmed that all three men weighed over two

hundred pounds at the time of their death.

Kelly Fite, a firearms examiner with the Georgia Bureau

of Investigation, examined Defendant’s 12-gauge, pump-action

shotgun on July 23, 1988. Mr. Fite said that Defendant’s gun

held seven rounds of ammunition and was capable of firing

seven shots in a row. The interior of Defendant’s gun, however,

had no imperfections which would mark the wadding. The

wadding found at the Helican gate also had no markings. On

cross-examination, Mr. Fite said that he fired Defendant’s gun

ten times, and there were no marks on the wadding to

distinguish one test from the other.

Vincent Dale Brown lived on Roberts Mill Road at the

time of the incident. On July 9, 1988, he was helping a friend

move off of Signal Mountain between 11:00 a.m. and 1:00 p.m.

When Roberts Mill Road narrowed to one lane, Mr. Brown

jumped out to stop traffic so the truck could get down the

mountain. One of the vehicles he stopped belonged to

Defendant. Defendant’s Jeep was covered with mud. Defendant

told Mr. Brown he and his wife were going up to his property to

camp. Mr. Brown said he went back to Signal Mountain after

the move was finished. Mr. Brown was standing in a friend’s

yard on Hixon Road between 6:00 p.m and 8:00 p.m, when he

heard six or seven shots from the direction of Helican Road. A

trail off of Hixon Road led to the gate area on Helican Road.

Mr. Brown said that he had heard that someone had

bought the property leading up to the “blue hole.” There were

“no trespassing” signs on the road, but he did not pay any

attention to them. One day, when he started down Helican Road,

Defendant approached him, carrying a shotgun. Defendant

appeared angry. Mr. Brown said that Defendant calmed down

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when he recognized Mr. Brown as the cousin of the man who

worked on his Jeep. Mr. Brown followed Defendant to his camp

site where Defendant recorded his name in a log book. Mr.

Brown said he noticed a blue tarp at Defendant’s campsite. On

cross-examination, Mr. Brown said that Defendant told him he

could hunt on the property if he called first. Mr. Brown did not

remember whether or not he testified about the blue tarp during

Defendant’s first trial.

Pam O’Neal was camping on her property near Jake’s

Campground on July 9, 1988. Around dinner time, she heard the

sound of more than one ATV traveling on her property. Later

that evening, she heard five or six gunshots. Ms. O’Neal left her

property around 2:00 a.m. As she drove home, Ms. O’Neal

noticed a Jeep Scrambler coming from the area of Taft Road on

Carroll Road.

William Wiggins lived near Boston Branch Lake on

Signal Mountain. Mr. Wiggins said that around 7:00 p.m. or

7:30 p.m. on July 9, 1988, he heard a rapid series of five to eight

shots coming from the direction of Helican Road. On

cross-examination, Mr. Wiggins agreed that, on previous

occasions, he had heard shots from that direction during hunting

season. Mr. Wiggins said that he had never been on Helican

Road.

Donna Anderson testified that she and her boyfriend were

on Signal Mountain during the early morning hours of July 10,

1988, looking for her boyfriend’s son who was supposed to be

camping. They were driving down Roberts Mill Road between

12:30 a.m. and 1:00 a.m. when Ms. Anderson saw a Jeep

coming in the opposite direction. Because Roberts Mill Road

narrowed down to one lane at that point, Ms. Anderson and her

boyfriend pulled over and stopped. The Jeep’s driver got out of

the Jeep for a minute and then got back in and drove up the road.

When he was even with Ms. Anderson’s vehicle, the Jeep’s

driver looked at her and said “sorry about that.” Ms. Anderson

said there was a cover over the back of the Jeep, and the Jeep’s

rear end was riding close to the ground. Ms. Anderson identified

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Defendant’s son, Donnie Casteel, as the driver of the Jeep

during a photographic lineup.

On cross-examination, Ms. Anderson said that the Jeep’s

headlights were not shining in her face but were shining upward.

The windows on both vehicles were rolled down, and Ms.

Anderson leaned forward so she could see the other driver’s

face. Ms. Anderson admitted that she initially described the Jeep

as a “regular” Jeep to the police. She denied that she said the

Jeep had a rag top in her original statement. Ms. Anderson said

she meant that there was a canvas pulled across the Jeep’s bed.

Janice Hall spent July 9, 1988 with a friend who lived on

Sawyer Road near Roberts Mill Road. Ms. Hall testified that she

was awakened in the early morning hours of July 10 by the

sound of a vehicle’s tires on the road. Ms. Hall said that the

vehicle made three or four trips back and forth on the road with

approximately twenty minutes betw een trips. O n

cross-examination, Ms. Hall admitted that Defendant’s Jeep

drove past her friend’s house the next morning, and that she did

not particularly notice any sound made by the Jeep’s tires as it

passed. Ms. Hall said that a woman was driving the Jeep on

Sunday morning.

Herschel Green’s testimony from Defendant’s first trial

was read in the record. Mr. Green said that he was on his front

porch around 5:00 a.m. on July 10, 1988, drinking coffee. Mr.

Green said that he heard Defendant’s Jeep go by. Mr. Green

admitted that he could not see the Jeep from his porch.

The State recalled Mr. Brown as a witness. Mr. Brown

testified that he warned Defendant that people would not like it

if he closed Helican Road so that people could not swim at the

“blue hole.” Mr. Brown said that Defendant replied that he

could take care of the trespassers.

James Walling testified that he was driving to work on

Roberts Mill Road around 6:00 a.m. on July 10, 1988. He saw

Defendant’s Jeep coming up the mountain above the dump site.

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Although it was dark in the woods at this time of the morning,

Defendant did not have his headlights on.

John Lines was Chief of the Walden Rescue Unit at the

time of the killings. On Sunday, July 10, 1988, he was driving

to the fire hall on Taft Highway on Signal Mountain when he

stopped to wash his car. A woman was in the next stall washing

a Jeep. Mr. Lines noticed the vehicle because he saw blood in

the back of the Jeep when he drove in. The woman told Mr.

Lines that she had taken a pig to the slaughterhouse. Mr. Lines

received a call about the three missing men while he was at the

carwash. He jotted down the license tag number of the Jeep on

a piece of paper. Mr. Lines said that he saw Defendant driving

a Jeep with the same license tag number two days later. Mr.

Lines said that he lost the piece of paper with the Jeep’s license

tag number.

On cross-examination, Mr. Lines said that his

conversation with the woman driving the Jeep lasted

approximately twenty seconds, but admitted that he could not

identify either her or Defendant from photographs during the

first trial. Mr. Lines denied that he did not mention seeing the

woman at the car wash until Defendant’s second trial. Mr. Lines

believed that he told several officers about the incident. Mr.

Lines admitted that he first said that the vehicle at the car wash

was a pick-up truck, but he was now positive that the vehicle

was a Jeep Scrambler. He admitted that he said during

Defendant’s first trial that he saw the vehicle again on Monday,

not Tuesday.

Terry Mills and Jeff Mann went to the “blue hole” on

Saturday afternoon, July 9, 1988. Mr. Mills said that Helican

Road was frequently traveled by people who were going

swimming at the “blue hole.” Mr. Mann said he had been going

to the swimming hole since he was ten or eleven. Mr. Mann said

that he thought that Helican Road was a public road.

Mr. Mills described Helican Road as a dirt road crossed

by streams and filled with mud holes that only a four-wheel

drive vehicle or an ATV could navigate. Mr. Mills said that

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when he was on the road on July 9, he and his friend had to

remove some barbed wire that was strung across the gate on

Helican Road and some branches which lay across the road. Mr.

Mills said that he drove through the gate. When he reached the

TVA power lines that lay beyond the gate between 3:00 p.m.

and 3:30 p.m, Defendant walked up to his truck. Defendant’s

face was red, and he appeared angry. Defendant held up his

shotgun and told the two men not to come any closer. Mr. Mills

got out of his vehicle and held his arms in the air to show

Defendant he was not armed. Defendant told them he was going

to keep people off his property, “no matter what [he had] to do.”

Both men said they were scared. Defendant made them sign

their names, a description of the vehicle, and the vehicle’s

license tag number in a log book. Mr. Mills and Mr. Mann were

the last people to sign Defendant’s book.

Mr. Mills said that Defendant had a small camp under the

power lines with a makeshift tent made from a tarp, some chairs,

a table and a lantern. A Jeep Scrambler was parked at the

campsite. Mr. Mills denied that he told the police that he did not

know whether or not there was a tarp at the campsite. Mr. Mann

admitted that Defendant never actually pointed his shotgun

directly at them.

Portia McDowell and her husband owned a nursery on

Big Fork Road. Ms. McDowell took daily walks down the road

which led past the illegal dump site. On Friday, July 8, 1988,

Ms. McDowell walked past the dump site and did not notice

anything unusual. On Monday, July 11, 1988, she noticed a foul

odor emanating from the dump and a lot of insects swarming the

area. Ms. McDowell said that the dump site appeared to have

been swept, and the trash had been moved to one big pile.

Mark Sively owned property on Sively Trail. Helican

Road was approximately one hundred yards from the back of his

property. Mr. Sively found Mr. Griffith’s knife in the middle of

Helican Road during the search on Monday, July 11, 1988. Mr.

Sively said that he and Defendant discussed Defendant closing

Helican Road to the public on the Saturday before the killings.

Defendant showed Mr. Sively his log book at that time and told

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him as long as he had his gun, Defendant would not have any

trouble.

Defendant also stopped David Mosteller and Derek Belk

on Helican Road when they attempted to drive to the “blue hole”

in June. Defendant rested his shotgun against the truck’s door

frame and told the two men if they did not leave, he would

shoot. Defendant recorded their names in his log book and

allowed them to turn around at Defendant’s campsite. Mr. Belk

said that he noticed a tent made from a blue or green tarp at the

campsite but conceded that he did not mention the tarp at

Defendant’s first trial.

On June 11, 1988, Defendant stopped Delores Kennedy

and Michael Killingsworth after they had driven through the

gate on Helican Road. Defendant cocked his shotgun and stuck

it through the truck’s window, with the barrel pointed at the

dashboard. Defendant told them they were in trouble for

trespassing. Defendant allowed the couple to leave after

recording their names in the log book.

Judith and Milton Lowery, along with their children and

some other friends, were swimming in the “blue hole” on June

18, 1988 when Defendant appeared at the pond with a 12-gauge

shotgun. He told Ms. Lowery to tell the men to come down from

the cliffs. When her husband came down to the pond area,

Defendant stuck the gun in Mr. Lowery’s face and told him he

was lucky there were women and children present. Ms. Lowery

said Defendant’s finger was on the trigger of his gun, and the

gun was pointed toward her husband. Ms. Lowery said that

Defendant marched the family up the hill, women and children

first, followed by the men. Defendant walked behind the group

with his gun pointed at Mr. Lowery’s back.

James Perry, Gary McDowell, Jonathan Ewton, Michael

Dantzler, and Paul Meeks had similar encounters with

Defendant between April 1988 and July 1, 1988. All of them

testified that Defendant appeared suddenly as they drove up to

the gate on Helican Road and demanded that they leave.

Defendant was armed during the encounters and appeared angry.

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Defendant told Mr. McDowell that he was having trouble with

trespassers and specifically mentioned Richard Mason’s name.

On the other hand, Defendant permitted Steve Craig and

his friends to swim at the “blue hole” because they volunteered

to pick up trash around the site. Mr. Craig said he later called

Defendant and made a second date to return to the swimming

hole on July 7, 1988. He and his friends spent the day swimming

without incident. Defendant told Mr. Craig that he did not have

as much trouble with the pick-up trucks because the drivers

usually turned around when they saw the “no trespassing” signs.

Mr. Craig said that Defendant said it was the four-wheelers that

were a problem and that he was going to kill one of them one

day. Defendant became angry when he talked about the ATVs

that used Helican Road. Mr. Craig said that Defendant was

carrying a gun when he met him.

Sharon Marie Hill began dating Defendant in August

1996, even though she knew Defendant was married. Ms. Hill

said she had heard about the killings but did not know

Defendant’s connection with the incident. In September 1996,

Ms. Hill received an anonymous letter with newspaper clippings

about the murders. Defendant told her to ignore the letter and

said that other people had received similar letters. In a second

letter, the writer said that “[w]e were up there camping, and

these men came up on the three-wheelers and he shot them

because they were disturbing him, and he sent me home.” The

letter was signed “Boozie.” Defendant told her the letter was

“bogus.” A third letter was sent to Ms. Hill’s neighbors

informing them that Ms. Hill was dating a murderer and putting

their lives in danger. The first and third letters were unsigned.

Ms. Hill gave Defendant the correspondence.

Ms. Hill agreed to assist the police in their investigation

after she received the second letter. Susie Casteel, Defendant’s

wife, came over to Ms. Hill’s house around 2:30 a.m. the next

morning while Defendant was visiting. During a taped five-hour

conversation, Ms. Casteel said to Defendant that she was “drug

down to the police station and fingerprinted because of what you

-15-

[had] done.” Ms. Hill said that Defendant did not respond to Ms.

Casteel’s comment.

Later that day, Defendant returned to Ms. Hill’s house,

and Ms. Hill asked him to return the letters about the murders.

Defendant initially gave her the letters, but while Ms. Hill was

momentarily out of the room, Defendant substituted a blank

piece of paper for the letter signed “Boozie.” When Ms. Hill

later confronted Defendant about the substitution, Defendant

admitted that he had burned the letter because it “could be

harmful to him.” Ms. Hill later found out that Ms. Casteel’s

nickname was “Boozie.”

Ms. Casteel testified on Defendant’s behalf. She said

that she was still married to Defendant at the time of his second

trial. The Casteels first considered purchasing the Patten

property in March 1988. Mr. Patten told them they could use the

property until the purchase was completed in June 1988. Ms.

Casteel said that she and Defendant went to the campsite on the

property frequently during this period of time. They put up “no

trespassing” signs with their telephone number, and began to

stop people traveling Helican Road to tell them the land was

privately owned. The sheriff’s department suggested they keep

a record of everyone who tried to pass through the gate on

Helican Road so that they could swear out an arrest warrant if

necessary. Ms. Casteel said that she never saw Defendant point

a gun at anyone.

The Casteels’ wedding anniversary was July 9, 1988.

Ms. Casteel said that she and her husband planned to spend the

weekend camping on their property. After they arrived at the

camp site near the TVA power lines, Ms. Casteel went

swimming in the “blue hole,” and she and Defendant later

cooked some hot dogs. Ms. Casteel said that she did not hear

any gunshots that night but said that the noise of the rushing

creek near the pond was loud. She and Defendant left the

swimming hole after it was dark and returned to the campsite.

Ms. Casteel said that she had received a blue tarp that day

as an anniversary present and denied burning the tarp in the fire

-16-

pit. Ms. Casteel said that the tarp was in their garage when the

police later searched her home.

The Casteels’ collie got sick during the night. Early the

next morning, July 10, 1988, Ms. Casteel and Defendant left the

campsite to take the dog home. They had to turn around,

however, because Ms. Casteel had left her pocketbook at the

campsite. Ms. Casteel dropped Defendant off at the beginning

of Helican Road and then drove home to attend to the dog. Ms.

Casteel said that she gave the dog some medicine and headed

back to Signal Mountain in about fifteen to twenty minutes. Ms.

Casteel said that she did not wash the Jeep that morning.

Ms. Casteel’s brother and sister-in-law, Ronnie and

Brenda Lewis, were at the campsite when Ms. Casteel returned

around 9:00 a.m. to 9:30 a.m. The two couples left the property

between 1:00 p.m. and 2:00 p.m. Defendant returned to the

swimming hole later that afternoon with his daughter and her

friend while Ms. Casteel stayed in town. Ms. Casteel said that

her son, Donnie, spent the entire weekend with his grandparents.

Ms. Casteel said that she wrote the letters to Ms. Hill

because she was upset and angry over Ms. Hill’s relationship

with Defendant. Ms. Casteel said that she wanted to scare Ms.

Hill so that she would break up with Defendant. Ms. Casteel

said that when she told Defendant she was upset about being

fingerprinted, she just meant that she was upset over the

investigation in general and people’s reaction to the killings. Ms.

Casteel said that Defendant did not kill the three men, and she

did not see or hear anything on either July 9 or July 10, 1988.

On cross-examination, Ms. Casteel admitted that she had

sent the three letters to Ms. Hill. Ms. Casteel reiterated that she

just wanted to scare Ms. Hill and said that she did not even

know the police had her letters until after Defendant was

arrested. She admitted that she did not tell the police why she

wrote the letters. Ms. Casteel said that Defendant was at the

camp site with her brother and sister-in-law when she returned.

Ms. Casteel admitted that the Jeep was equipped with a winch

for towing but explained that the winch was located in the front

-17-

of the vehicle and that the Jeep would be damaged if the winch

was used to tow something behind the vehicle.

Donnie Casteel testified that he worked from 2:30 p.m.

to 11:30 p.m. on July 9, 1988. He went to his grandparent’s

house after he got off work and slept until about 10:30 the next

morning. Donnie Casteel’s [grandparents’] confirmed that he

was at their home on July 9 and July 10, 1988.

Ronnie Lewis said he arrived at Defendant’s campsite on

July 10, 1988, around 8:45 a.m. but found it deserted. Mr. Lewis

said that the only thing different about the property on this visit

was the barbed wire that was strung across the gate. Mr. Lewis

said that there was a tarp pulled across a wire between two trees

at the camp site. Defendant arrived at the camp about five

minutes after Mr. Lewis and his wife. Defendant told Mr. Lewis

that he had been up all night with his dog, and Mr. Lewis said

that Defendant looked fatigued. Ms. Casteel arrived about

forty-five minutes later. Mr. Lewis said that he did not see any

blood on Defendant or anywhere in the camp.

On cross-examination, Mr. Lewis conceded that he

noticed a few odd things about the camp when he first arrived.

Defendant had left his shotgun leaning against a tree, a fire was

smoldering in the fire pit, there was one walkie talkie in the

camp, and no vehicles. Mr. Lewis said that he did not see

Defendant on Helican Road when he drove in even though

Defendant approached the camp from that direction. Mr. Lewis

said that Defendant was out-of-breath as if he had been running,

and Mr. Lewis assumed Defendant had tried to catch up with

him. Mr. Lewis did not remember seeing a pocketbook at the

camp site. Mr. Lewis said that Ms. Casteel did not enter the

camp from Helican Road but approached the camp from a point

above the power lines which was a longer route. Mr. Lewis said

that Ms. Casteel appeared frustrated.

Raymond Harden testified that he lived at the bottom of

Roberts Mill Road. On July 9, 1988, Mr. Harden was returning

home around 7:30 p.m. A car was blocking the road at the top

of the hill, and Mr. Harden had to ask Sandy Smith to move her

-18-

car so he could pass. As he passed the dump site, Mr. Harden

saw a black pick-up truck backed up to the dump. One of the

Hickman brothers was standing in the back of the truck, and the

other brother was standing next to the truck. Mr. Harden said the

Hickmans were pushing two red ATVs out of the back of the

truck. The vehicles had blood on the seat and gas tank. Mr.

Harden asked them what they were doing, and one of the

brothers told him he needed to leave, so Mr. Harden left. Mr.

Harden said that he never told anyone this story because he was

afraid the Hickman brothers would harm his wife and children.

On cross-examination, Mr. Harden admitted that he never

saw either one of the Hickman brothers after July 9, 1988.

State v. Frankie E. Casteel, No. E2003-01563-CCA-R3-CD, Hamilton County, slip op. at 1-

12 (Tenn. Crim. App. Sept. 24, 2004), app. denied (Tenn. Dec. 28, 2004).

At the post-conviction hearing, the Petitioner testified that he suffered a back injury

in 1977 or 1978 and was limited to lifting no more than fifty pounds. He said that he was

first interviewed by the authorities, without the benefit of Miranda warnings, on July 11 or

12, 1988. He said he assumed from the tenor of the questioning that he was a suspect. He

said he was not told his privacy rights extended to his gun or his Jeep. He said he did not

recall defense counsel ever filing a motion to suppress the tape of his interview or the items

taken from him. He said that counsel never requested that bond be set, despite the twenty to

twenty-two months he was in jail between the appellate court’s remand of his case for a new

trial and the completion of the second trial. He said that during his second trial, he was

restrained by a leg brace that was visible to the jury and that two officers were stationed at

his sides. He said that due to the close stationing of the officers, he was unable to have

discussions with his attorney.

The Petitioner testified that he did not think counsel adequately impeached the State’s

witnesses relative to differences in their testimony at the first and second trials. He also

complained in general terms that counsel did not give him all of the evidence used in the first

trial, failed to file a discovery motion, and failed to object to the search of his Georgia home

and to the seizure of property that was not covered by a warrant. He said he did not recall

counsel questioning witnesses about being armed when on the Petitioner’s property. He said

that counsel never questioned the witnesses about the reputation of one of the victims,

Richard Mason, and that counsel told him he did not want to be perceived as attacking the

victims or their families. He said that despite some indication one of the victims may have

had a high-powered handgun, there was no evidence of this presented at trial. He said that

-19-

despite his lack of a criminal record, counsel advised him that there was “no need” for his

testimony, that the defense could be shown in other ways, and that it was the State’s burden

to prove its case. He complained that counsel failed to order a video transcript, which he said

was necessary because there were physical actions and projected exhibits which were not

adequately conveyed by the record.

The Petitioner testified that although witnesses testified that he stopped them outside

his property near a gate, this testimony was false. He said he believed these witnesses were

coached and that counsel failed to question them adequately about whether they had been

coached. He also complained that counsel failed to request that the jury view the Helican

Road area and stated his belief that the evidence at trial did not adequately represent the area

and was misleading. He said the State characterized the road as a public access road, but the

Tennessee Valley Authority (TVA) characterized it as “an eight-foot jeep track” that was

rutted and rocky. He said that neither the prosecutor nor his attorney did a good job of

accurately eliciting evidence about the distances and property boundaries of the area. He said

he thought the State deliberately obscured distinctions between two locations. He said that

although there was evidence he fired a .357 handgun, he had never done so, and that defense

counsel did not challenge the evidence. He said two shotguns were seized by the authorities,

one of which was never returned.

The Petitioner testified that when he surrendered his Jeep to Officer Sneed, it was not

muddy. He said, however, a photograph of the Jeep in a muddy condition was entered at trial

and that counsel did not object to it. He also complained that there was a photograph of the

Jeep next to an ATV with a flat tire to which counsel failed to object. He acknowledged that

the flat tire was not obvious in the photograph. The Petitioner also complained that counsel

failed to challenge the testimony of witnesses Kennedy and Killingsworth that they had to

back their vehicles out of the Petitioner’s property because the Petitioner would not allow

them to turn around. The Petitioner said the witnesses’ statements would have shown that

there was an area where they could turn around. He also complained that although Janice

Hall testified in the first trial that she saw a Jeep with a collie in it and heard loud tire sounds

all night that were not from the Petitioner’s Jeep, defense counsel did not gain the full value

of this exculpatory evidence in the second trial because he did not elicit the information about

the dog.

The Petitioner testified that in his opinion, counsel failed to offer a defense theory in

his opening statement. He said defense counsel supported the State’s theory by conceding

that human remains were collected by the authorities. He said he did not recall counsel’s

saying anything about the State having destroyed evidence.

-20-

The Petitioner testified that counsel failed to request expert assistance to counter

incorrect testimony given by the State’s firearms and ballistics witness or to counter the

State’s theory that the Petitioner would have heard shots fired if present at the scene. He also

complained that counsel failed to challenge the State’s reliance on the testimony of Mr.

Wiggins as being very experienced with shotguns. He said that counsel failed to request a

jury instruction that physical presence did not equate with guilt.

The Petitioner testified that he was dissatisfied with counsel’s appellate advocacy.

He stated his belief that counsel should have challenged the proof in the record that there was

human tissue and bone found at the crime scene. He said that the State’s appellate brief

stated that Mills and Mann entered his property on ATVs, and he claimed that this assertion

was untrue and misleading. He said the State’s brief also unfairly characterized the “blue

hole” as being public domain and him as trying to take over the “blue hole.” He complained,

as well, that the State’s brief represented that waddings connected with his shotgun were

found at the Helican gate, even though no waddings found at that location were tested. The

Petitioner said that counsel failed to notice that the State’s brief erroneously represented

Donna Anderson’s testimony about the location where she observed relevant facts.

The Petitioner testified that counsel did not raise an issue regarding improper closing

argument at trial or on appeal.

The Petitioner testified that he raised additional issues in his pro se petition. He stated

that he did not want to waive any of those issues. He specified the following additional

issues:

(1) That Wiggins’ initial report to the authorities that he “was

not real positive of the shots’ directions” had not been fully

explored;

(2) A detective supplied the words “blue hole” and “power

line” to Wiggins, which was not explored at trial;

(3) Defense counsel failed to call an expert to testify about

sound shadow and other sound phenomena;

(4) In his opening statement, defense counsel stated that

“human tissue was recovered from the area where the [victims]

were killed” although this statement supporting the State’s

theory would not be supported by the proof;

-21-

(5) The State failed to preserve and test evidence to show

whether any bone or substance was human, despite the fact this

would have provided exculpatory evidence to the Petitioner;

(6) Trial counsel failed to present “vital proof” to the jury

consisting of Lines’s previous sworn testimony and information

from a legible copy of Walling’s statement;

(7) Trial counsel failed to decline appointment to the

Petitioner’s case despite the fact he had a conflict of interests

because he worked with the special prosecutor, Mr. Davis, as

co-counsel on a murder case against a defendant named Billings

during the proceedings against the Petitioner;

(8) Trial counsel failed to bring the matter before the court

when the Petitioner was released from the Department of

Correction on a “no holds” status, only to be held at the county

jail on a detective’s authorization;

(9) Counsel failed to address the prejudicial effect of the

Petitioner being shackled and guards standing on either side of

him in front of the jury despite the fact the Petitioner had not

engaged in any “indication of untoward action”;

(10) Trial counsel failed to request a jury viewing of the area

in issue;

(11) The State presented false and intentionally ambiguous

evidence about the distances and locations involved, including

that Killingsworth and Kennedy trespassed on the Petitioner’s

property at an area referred to as “the gate,” despite the fact

these individuals admitted they were at “the power line

opening,” which was eight tenths of a mile away;

(12) Counsel failed to object to the State’s actions with

respect to the location of the Killingsworth and Kennedy

trespass;

-22-

(13) Counsel did not protect the Petitioner’s rights by

objecting to the news media having cameras and sound

recording devices in the courtroom;

(14) Counsel failed to ensure enforcement of the rule of

sequestration of witnesses from the courtroom and from each

other;

(15) Counsel failed to insist that the State’s “assisting

witness” testify first;

(16) Counsel failed to rebut witness Green’s claim of

recognizing the sound of the Petitioner’s four-cylinder Scout,

despite the fact that the Petitioner had no such vehicle and at

least one witness for the State did;

(17) Counsel failed to request a video transcript in order to

preserve in the record the visual materials and physical

indications presented to the jury;

(18) Counsel failed to challenge the general nature and

validity of the search warrant and attendant search of the

Petitioner’s Georgia home and the failure of law enforcement to

return seized items to the Petitioner;

(19) Counsel failed to bring forward evidence that the

weapons brought onto the Petitioner’s property were powerful

firearms and not recreational in nature;

(20) Counsel failed to correct or refute Gary McDowell’s

testimony that “the [Petitioner’s] campsite was right at the post,”

which led to the jury incorrectly perceiving that the killings took

place near a gate, when the witness was referring to a power line

tower;

(21) Neither counsel nor the State adequately informed the

jury that mere presence at the time the crimes were committed

did not constitute guilt of the offenses;

-23-

(22) Counsel failed to insist on a jury from a similar

geographic area and instead agreed with the State on jurors from

another locale that did not share geographic or lifestyle

characteristics with the venue;

(23) Counsel failed to challenge the site of jury selection;

(24) Counsel failed to raise an issue seeking to require the

State to comply with all laws regarding wiretapping,

surveillance, and mail opening;

(25) Counsel failed to present proof that a detective suggested

answers to O’Neal about the Petitioner’s Jeep and to Mills and

Mann about a gun;

(26) Counsel failed to challenge the admission through

witness Hill of letters allegedly received by neighbors;

(27) Counsel failed to give a “clear synopsis of multiple

shots,” which would have supported a self-defense theory

involving an exchange of gunfire, despite the fact the Petitioner

denied such action;

(28) Counsel failed to challenge Sneed’s claim that the

integrity of a secured area of the crime scene was preserved by

using the police report to demonstrate that there were wheel

tracks and boot prints in the area, and he failed to require

production of photographs taken of this area;

(29) Counsel failed to present evidence that a jug of blood

brought to the crime scene by a dog handler was spilled at the

gate;

(30) Counsel failed to challenge the appellate court’s

characterization of the facts about the testimony of Nixon;

(31) Counsel failed to challenge the State’s characterization

of Helican Road as a public right-of-way, rather than a private

trail owned by the Petitioner;

-24-

(32) The State failed to preserve “debris evidence,” and

counsel failed to have the evidence preserved and tested;

(33) Counsel failed to object to the State’s characterization of

the Petitioner as acting aggressively toward persons driving

ATVs;

(34) The State misstated facts to the appellate court that Mills

and Mann drove away on ATVs, rather than trucks that could

haul both ATVs and bodies and that Kennedy and her

companions were approaching the gate when pertinent events

occurred;

(35) Counsel failed to rebut the State’s characterization of the

Petitioner’s physical condition through a “caving log” last dated

1980;

(36) Counsel failed to challenge the State’s failure to prove

venue;

(37) Counsel failed to raise an issue relative to a television

station having aired a documentary-type program implicating the

Petitioner in the crimes, which tainted the jury pool;

(38) The court allowed constructive amendment of the

indictment by requiring the Petitioner “to answer charges which

had not been presented by a grand jury,” and the indictment

contained a fatal variance because it alleged crimes which took

place at a different location than demonstrated by the State’s

proof;

(39) The investigation of the crimes was inadequate and

geared toward proving the Petitioner as the perpetrator;

(40) The State made improper closing argument that was

unsupported with the proof, by presenting evidence in a

misleading manner to support its theory, and by presenting

evidence in the second trial that was at odds with the evidence

in the first trial;

-25-

(41) Counsel failed to discover and use photographs which

would have shown the condition of the crime scene.

On cross-examination, the Petitioner acknowledged that he had extensive discussions

with counsel and wrote him “copious letters.” The Petitioner stated that he testified at his

first trial and that had he testified at the second trial, his testimony would have been

consistent with the testimony he gave at the first trial. He said that he wanted to testify at the

second trial but that he did not do so on counsel’s advice.

Trial counsel testified that he represented the Petitioner at the second trial. He said

he did not request an expert witness to rebut Georgia Bureau of Investigation (GBI) Agent

Fite’s testimony because Agent Fite’s testimony was inconclusive at best. He said Agent Fite

was not able to testify that the shotgun he examined was used to kill the victims. He

acknowledged that it did not occur to him to ask TBI Agent Best at the second trial why the

agent sent forensic evidence for testing with the GBI, rather than the TBI. Trial counsel

testified that he did not think the testimony of the State’s witness Wiggins, who testified

about having heard shots, was in the nature of expert testimony. He said he did not challenge

Agent Fite’s qualifications as an expert because he believed the witness was qualified.

Counsel acknowledged that he did not retain an acoustics engineer to challenge the

testimony of the witnesses who said they heard shots or to show that someone at the “blue

hole” could not have heard shots because the State conceded this point through its own

evidence. He said he did, however, investigate these witnesses. He said that the defense

conducted its own experiment, in which a person in the “blue hole” was able to hear a

shotgun fired from the campsite to the gate. He said that in light of the results of the defense

experiment, presenting a defense expert was inviting the expert to contradict the State’s

proof.

Upon questioning by the court, counsel testified that in preparation for the post-

conviction hearing, he reviewed the transcript of the second trial but not the first. He said

his performance was challenged only with respect to the second trial. The court admonished

counsel not to be “flip” in his testimony. Counsel stated that he wore a hearing aid and had

been having difficulty hearing post-conviction counsel’s questions.

Trial counsel then testified that he did not have the five shotgun shells found near the

gate and sent to Agent Fite admitted as evidence at the second trial. He said that the State’s

expert was unable to match the shells to the Petitioner’s gun and that he considered this to

be innocuous evidence. He said that before the second trial, he reviewed the former

testimony of TBI Agent Margaret Bash and may have spoken with her in person or by phone

regarding soil and blood evidence. He said that based upon his investigation, he had no

-26-

reason to believe she would have testified differently at the second trial and did not call her

as a witness. He acknowledged that her test results were submitted by stipulation at the

second trial and that the results revealed the blood to be human.

Counsel testified that he was aware when he was preparing for the second trial that

Roy Parham was unavailable as a State’s witness. He said he paid careful attention to

whether there was any evidence that was admissible solely through Parham in order to

challenge the evidence if an issue arose. He said, however, that another witness had firsthand

knowledge of all such evidence. He said that when a witness is vague, he would object only

if it made a “big difference.”

Counsel testified that his cross-examination of Mr. Cox made Cox’s testimony about

guns less credible. He said that he did not ask Mr. Fite about his testimony given the lack

of shotgun shells to test because Fite’s testimony was about wadding, not shells, and there

were no shotgun shells to test.

Counsel testified that he developed evidence at trial that either two or four “stout

officers” had to lift one of the three-wheelers onto the Jeep to remove it from where it was

found. He said the tires also had to be deflated but that when the three-wheeler was

discovered off the side of a road, its tires were inflated. He said this evidence was a crucial

part of the defense strategy.

Counsel testified that he did not recall evidence being introduced about a “drug party”

taking place at the crime scene. He said, however, he investigated this information.

Counsel testified that he did not elicit testimony from Janice Hall about hearing “loud

tires all night” and seeing a woman driving a Jeep with a Collie in the back because he did

not think this was exculpatory. He said he considered this evidence inculpatory because the

Petitioner’s wife testified that she took the Collie home during the night.

Counsel testified that Mr. Lines was the least credible witness he had ever

encountered. He said that Mr. Lines said the woman he saw at a car wash was not the same

person as the Petitioner’s wife, to whom Mr. Lines had pointed at trial. He said Mr. Lines

had been involved in the search of the area and that he thought Lines “was some guy [who]

was just looking for his 15 minutes of fame[.]” He said he was able to demonstrate that Lines

testified differently in the second trial about a date Lines claimed to have been in a certain

location than he had in the first trial. He said that he raised an issue about Mr. Lines’s

testimony in the second trial.

-27-

Trial counsel also testified that at the second trial, he had a trial notebook which

contained some of the State’s witnesses’ statements to law enforcement and their testimony

from the first trial. He said the prosecutor allowed him to be present when the prosecutor

prepared these witnesses for trial, and he had his notes from that, as well. He said he was

able to cross-examine Mr. Dantzler at the second trial about his testimony that the Petitioner

pointed a gun at him a month after the crimes by demonstrating that Mr. Dantzler had not

mentioned a gun being pointed at him when he gave an earlier statement or in his testimony

at the first trial. He said he also used the information in his trial notebook to impeach Mr.

Lines.

Counsel testified that despite the Petitioner’s contention in the petition that counsel

did not introduce evidence in the second trial that Ms. Hill believed the Petitioner did not

commit the crimes, he presented this proof. He said that she testified that she accepted his

explanation and that she probably would not have continued dating him had she believed he

was a triple murderer. He said the appellate court had ruled that the Petitioner’s failure to

respond to the Petitioner’s wife’s statement, “I’ve had myself drug down to the police station

and fingerprinted for what you’ve done,” was an adoptive admission. Therefore, it was

necessary for the jury to know that Ms. Hill and the Petitioner were having an affair in order

for the defense to demonstrate that the Petitioner failed to respond at a time when he was

being accused of adultery, not when he was being accused of murder. He said the appellate

court had also ruled that letters that called the Petitioner a “murderer,” which the Petitioner’s

wife wrote, were admissible and that the defense strategy was to demonstrate that the

Petitioner’s wife wrote the letters to scare Ms. Hill away from her husband, rather than

because the Petitioner was actually a murderer. He said he did not request a limiting

instruction because no legal basis for one existed.

Counsel testified that the defense was that the Petitioner did not commit the crimes.

He said that he focused on “pok[ing] as many holes as we could and call[ing] into question

as much of the State’s evidence [as] pointed guilt to [the Petitioner].” He said that despite

the appellate court’s having ruled that some alternative perpetrator evidence was not

admissible, he was able to develop new evidence for the second trial.

Counsel testified that he did not question the numerous witnesses who testified about

being confronted by the Petitioner when they were trespassers on his property about their

status as trespassers as a means to impeach their credibility. He said that many of these

witnesses “were damagingly credible” and testified “like they were feeling the fright that they

had at the time[.]” He said he did not ask them about being trespassers because the State’s

theory was that the Petitioner killed the victims because they were trespassing. He said that

he thought the best course was to approach cross-examination of these witnesses carefully

and that he attempted to cross-examine the witnesses to the extent that he thought their

-28-

testimony was inconsistent with any earlier statements or if he thought they were

embellishing about their encounters with the Petitioner.

When asked why he repeated the State’s forecast of its evidence in his opening

statement, trial counsel testified that he knew how the State’s witnesses would testify. He

said his strategy was to emphasize throughout the trial and in closing argument that even with

the thorough investigation, the State had no direct evidence that inculpated the Petitioner.

Counsel testified that he did not request a jury instruction that physical presence did

not equate with guilt. He said that the defense theory was that the Petitioner was two miles

away from the crime scene.

Counsel testified that he did not advise the Petitioner that he should or should not

testify at the second trial. He said he was prepared to discuss the matter with the Petitioner,

although he did not because the Petitioner was adamant he did not want to testify again. He

said that had the Petitioner wanted to testify, he would have cooperated, although he would

have advised the Petitioner that he did not think doing so was in the Petitioner’s best

interests. Counsel said the Petitioner’s desire not to testify relieved him because he believed

the Petitioner’s testimony at the first trial was “awful.” He said he spoke with the

Petitioner’s lead attorney from the first trial, who advised him that counsel from the first trial

had been opposed to the Petitioner’s taking the stand. He cited as an example of the

Petitioner’s poor testimony at the first trial that the Petitioner had denied confronting the

many witnesses who testified he did so when they were trespassing on his property.

Trial counsel testified that he did not think having the Petitioner’s wife, Susie Casteel,

testify was prejudicial, despite the fact she was the victim of the Petitioner’s alleged

extramarital affair. He said that the appellate court ruled the letters Mrs. Casteel wrote to

Marie Hill were admissible and that the defense needed Mrs. Casteel to testify that the reason

she wrote the letters was to scare Ms. Hill away from her husband, rather than because she

believed the Petitioner was a murderer. He said that in addition, in light of the Petitioner’s

decision not to testify, there were facts that were admissible only through Mrs. Casteel’s

testimony. Counsel said he did not request a limiting instruction about the content of the

letters because he presented proof to explain the reason they were written.

Counsel testified that he attempted to portray Cecil Hickman or his family members

as the perpetrator or perpetrators of the crimes. He said he was able to introduce proof of

Cecil Hickman and his two sons’ being armed and Mr. Hickman confronting Mr. Nixon

when Mr. Nixon and Richard Mason were hunting on Mr. Alt’s property. He described Mr.

Nixon’s testimony about Mr. Hickman shooting into the air during this encounter, which had

taken place a few months before the crime and about two miles from the crime scene. He

-29-

said he elicted other testimony from Mr. Nixon about an incident in which Mr. Hickman

drove by Mr. Nixon and Mr. Mason as if he were going to hit them. He said he cross-

examined the witnesses who alleged they had encounters with the Petitioner in a manner to

demonstrate that their claims were exaggerated. He said that he noticed the witnesses’

recounting of events from their statements became worse for the Petitioner over time.

Counsel testified that he did not raise an issue whether all the weapons belonging to

the victims of the crimes had been accounted for. He said he did not think raising a self-

defense theory was proper because the defense was that the Petitioner did not commit the

crimes. He said he also thought it would be counterproductive to attack the character of the

victims. He said that he did not think it was sound strategy to raise a defense that the

Petitioner was guilty of lesser-included offenses because this was inconsistent with the theory

that the Petitioner did not commit the crimes. He said that in his opinion, a self-defense

theory would have been unsuccessful due to the evidence that someone disposed of the

bodies several miles from the crime scene and disposed of the ATVs several miles from the

crime scene in the opposite direction from the bodies. He said the proof showed that one of

the victims had been chased through the woods and shot when he was on the ground, which

he said was also inconsistent with a self-defense theory. Counsel said he did not cross-

examine the State’s witness who testified about the number of shots fired because he had

relied on a similar strategy in another case in which the defendant claimed to know nothing

about the crime.

Counsel testified that although Detective Sneed testified at the first trial that a luminol

test was positive for the presence of blood on a blue tarpaulin and testified at the second trial

that no blood was found on the tarp, counsel did not cross-examine Detective Sneed about

the inconsistency. Counsel said he thought the fact that there was no blood found on the tarp

was more beneficial to the Petitioner than any credibility challenge he could have raised

based upon the inconsistent testimony. He said that in addition, there was proof that the blue

tarp was found and photographed in the Petitioner’s home, which negated the State’s theory

that the tarp was used to drag the victims’ bodies to the place where they were dumped and

that the tarpaulin had been burned.

Counsel testified that the criminal records of many of the witnesses could not be used

for impeachment. He said the records were more than ten years old and inadmissible under

the Rules of Evidence. With respect to Mr. Silvey, he said he thought it was

counterproductive to impeach his testimony because he thought his testimony was helpful

in demonstrating his theory of a sloppy police investigation.

Counsel testified that not letting the jury know that the Petitioner had a prior trial was

a “ticklish issue.” He said he tried to ask witnesses about “prior testimony” but

-30-

acknowledged that John Lines made a comment about testifying at the “first trial.” He said

he did not object to the witness’s response and request a curative instruction because he

wanted to avoid drawing attention to it.

Counsel testified that he did not believe in “a shotgun appeal.” He said that he

preferred to raise the two or three best arguments and that he was mindful of the standard

whether the issue would have made a material difference in the outcome of the trial.

Trial counsel testified that he did not request appointment of co-counsel because he

did not think co-counsel was needed. He said that some of the other attorneys in his firm

worked on the case and that he had an investigator and a paralegal. He said that he had the

transcript of the first trial to prepare him for the Petitioner’s retrial and that he had a good

amount of time to prepare for the retrial.

Trial counsel testified that he did not have a conflict of interests when he accepted

appointment in a death penalty case in which Lee Davis, the prosecutor in the Petitioner’s

case, was lead defense counsel. He said he did not accept this case until after the Petitioner’s

trial was over. He denied that he made sacrifices of the Petitioner’s case in favor of this

other case.

Counsel testified that he did not request bond be set for the Petitioner. He said he did

not think there would be a chance that bond would be set at an amount the Petitioner could

pay. He noted that Petitioner had already been through one trial and had appointed counsel.

Counsel testified that he assumed the Petitioner was shackled at jury selection because

he had been determined to be a risk. He said he was unsure whether the Petitioner had been

“paraded” in front of the jurors with officers on either side of him. He said jury selection

took place in Nashville in a “converted warehouse,” which he said he did not recall being

cramped. He said he would not have requested a transcript of the jury voir dire when there

was no appellate issue about jury selection. He said that he asked the prospective jurors

whether they had seen media reports about the case but that he might not have asked them

about case information on the Internet.

Counsel testified that he did not recall any infraction of Tennessee Rule of Evidence

615, the witness sequestration rule, taking place. He said, however, that he might not have

been aware of witnesses coming into the courtroom behind him and that he had to rely on the

judge, the court officers, and other attorneys to enforce the rule.

Counsel testified that he never considered a jury view of the area of the crime. He

said the area around Helican Road had changed considerably by the time of the trial. He said

-31-

that in addition, he thought it was not a good idea to give the jury a “much more real” image

of the murder scene. He said there were photographs to clarify the distinction between the

gate and the power lines mentioned in the testimony. He said that he had gone to the murder

scene and that it had given him the “creeps bad.” He said he recalled the jury being taken

to see the Jeep and the ATVs in the first trial but that this was not done in the second trial.

He acknowledged that the Petitioner’s son still had the Petitioner’s Jeep.

Trial counsel testified that he did not request a video-recorded transcript. He said that

his practice was to ask the witness questions to clarify any references to exhibits about which

they testified.

Trial counsel testified that he did not file a motion to suppress the log book, the gun,

or the Jeep. He said these items were provided voluntarily to law enforcement. He said part

of the defense theory was to argue that the Petitioner’s cooperation with the authorities was

evidence of his innocence.

Trial counsel testified that he raised issues as best he could about Marie Hill’s

testimony. He said the appellate court had ruled that the letters Ms. Hill received were

admissible and that he had to consider that ruling in raising any issues about Ms. Hill. He

said he did raise a motion in limine and argue an appellate issue about Ms. Hill’s testimony.

Counsel testified that he did not have much choice about the county from which the

jury was selected. He said that the lawyers who tried the first case told him the rural jury had

been a “disaster.” He said the demographics of Chattanooga were similar to Nashville, and

for that reason, he did not know whether he could have objected successfully. He said he

wanted a sophisticated, educated jury.

Counsel testified that there was nothing he could do about the State’s misstatement

of facts in its appellate brief. He said that he asked the supreme court to take the case after

the court of criminal appeals’ opinion was filed but that it declined to do so. He said he

thought the jury correctly understood the facts.

Counsel testified that he learned during the trial that a witness, Mr. Harden, claimed

to have seen the ATVs being dumped down the side of the mountain. He said Mr. Harden

saw Cecil Hickman’s sons in a truck where the ATVs were later recovered. He said that Mr.

Harden claimed that one of the Hickman sons told him to leave and threatened him with a

gun. He said that Mr. Harden was able to describe the ATVs accurately and that he did not

think Mr. Harden had seen photographs of them. He said that he called this witness despite

having some reservations because Mr. Harden was homeless and had some “weird theories”

about the case.

-32-

Counsel testified that he filed a motion to recuse the district attorney general’s office.

He said the basis of the motion was that Chris Poole, an assistant district attorney general at

the time of the Petitioner’s second trial, had worked on the Petitioner’s case for Poole’s

father, Don Poole, who was one of the Petitioner’s attorneys at the first trial.

Counsel testified that he also filed a motion in limine with respect to destroyed

evidence but that the motion was denied. He said the destroyed items were depicted at trial

in photographs or reports.

Counsel testified that he did not think he objected to the photograph of the mud-

covered Jeep or the photograph of the ATV with flat tires in the Jeep. He said he thought the

mud “might cut a different way” depending on the timing of when Mr. Lines claimed he saw

someone washing the Jeep. He also said he probably did not want to object to the pictures

of the ATV with flat tires to avoid revealing his theory but that he used this in closing

argument.

Counsel testified that he did not object to the proof of phone calls between Ms. Hill

and the Petitioner having been taped. He said the conversations were not recorded illegally.

Counsel testified that there was a hearing after a juror saw “he did it” or “he’s guilty”

written in a restroom and that he had an opportunity to question the jurors. He said that after

the hearing, he did not move for a mistrial but that he discussed the matter with the

Petitioner. He said he did not think the motion would have been granted.

Counsel testified that he very rarely objected to an opposing party’s closing argument.

He said he would do so only if there were something “really egregious.”

Trial counsel testified that he had practiced law for twenty-six years and that he had

conducted thirty to fifty jury trials in criminal cases. He said he had also tried numerous civil

cases. He said that his time records reflected over 300 hours of work on the case and that

some of his time was not reflected because of a change in his billing system during his

representation of the Petitioner.

Counsel testified that although the Petitioner complained that counsel had not given

him copies of all the photographs, the Petitioner had seen all the photographs. He said they

had discussed them, as well.

Counsel testified that he investigated the Petitioner’s theory that someone spilled

blood on the crime scene. He said he spoke with the cadaver dog handlers, who denied that

this had taken place.

-33-

Brian Hackett testified that he was appointed as a defense investigator. He said he no

longer had his case file, but he recalled having concerns about the State’s investigation. He

said he was never convinced the crime scene identified by the State was where the murders

occurred. He said he was concerned that a video tape was never obtained which would verify

or disprove the claim that the Petitioner’s wife had gone to a convenience store. He said he

identified at least three people who said they had been confronted when trespassing by

someone whose description did not match the Petitioner’s.

Mr. Hackett testified that he determined from his investigation that the Petitioner had

antagonized the residents of Signal Mountain because he was a newcomer who stopped

people from going to the “blue hole” or told them they had to pick up their trash if they went

there. He said the Petitioner was different from the long-time residents of the mountain and

was perceived as a “jerk.” He said he determined that, in contrast to the Petitioner, the

Hickman family members “were an institution on the mountain” who would not bother

people who did not bother them. He said that by the time he became involved in the case,

the elder Hickman male was in the late stages of Alzheimer’s or dementia and that the

Hickman sons refused to speak with him. He said he did not think the Hickman sons had

been questioned by the authorities in 1988. He said he determined that Mr. Mason and the

elder Mr. Hickman did not get along. He said his investigation also revealed that Mr.

Hickman “played cat and mouse” with Mr. Walling and that Mr. Hickman “would pull guns

on everyone that was up there.”

Mr. Hackett testified that he did not recall doing background checks on the witnesses.

He said, however, this is something he would have done.

Mr. Hackett testified that he located a homeless person, Mr. Harden, who was living

in a burned-out house who identified someone other than the Petitioner as having dumped

the ATVs. He said he took this person to the courthouse for the trial but did not know

whether he testified.

Mr. Hackett testified that he located three people who said they had been confronted

by the Hickman sons. He said that only one of these three people was willing to testify. He

said he found witnesses who said they had seen low-flying airplanes in the area that were

picking up and dropping off drugs. He said he never saw any low-flying planes during his

investigation.

Mr. Hackett testified that he located all of the witnesses and spoke with them in

person and then found the witnesses a second time for counsel to meet with them before trial.

He said he and trial counsel went to the “blue hole.” He said that he spent many hours with

-34-

counsel in counsel’s office. He said he also spent considerable time with the Petitioner and

provided him with written and verbal updates.

Mr. Hackett testified that his investigation was thorough and that trial counsel had

accompanied him during many parts of it. He said that based upon investigation, he did not

believe the Petitioner had committed the crime. He said that if his life were on the line, he

would call upon the Petitioner’s counsel to defend him.

Leland Davis testified that he was a member of the prosecution team at both of the

Petitioner’s trials and that he presented the case to the grand jury. He said he did not know

whether the grand jury was screened. He said that despite the case having received extensive

media coverage, he believed the grand jury could be impartial because “most jurors don’t pay

attention to the particular facts of a high profile case the way the attorneys do, and they often

confuse one case with another[.]” He said that Marie Hill did not testify before the grand jury

but that Detective Sneed did.

Mr. Davis testified that the Petitioner’s second trial was in May 2003 and that he was

not appointed to serve as lead counsel with the Petitioner’s trial counsel as co-counsel in the

Billington capital case until August 28, 2003. He said he and the Petitioner’s trial counsel

never discussed the Petitioner’s case during their work together on the Billington case.

Mr. Davis testified that he did not know the victims’ families before he was asked by

Detective Sneed to review the case. He acknowledged that he became friends with some of

the victims’ family members in the years the case was pending. He said that at the time he

began working on the prosecution of the Petitioner for the murders, he was unaware he had

previously prosecuted the Petitioner for shooting a neighbor’s light. He said that during the

course of the murder case, he discovered information in his file and remembered the previous

prosecution.

Mr. Davis testified that the State was interested in developing DNA evidence from

soil collected at the crime scene. He said that a sample had been tested which revealed the

possible presence of human blood but that further classification was not possible from the

sample. He said the testing was to see whether the soil collected at the gate could be tied to

the victims and would not have exonerated the Petitioner. He said that he seemed to

remember that a report was not generated because of the speculative nature of the conclusion.

He said some of the samples were destroyed by the TBI in the years between 1988 and 1996.

He said that the State was forthcoming with the Petitioner’s attorneys at the first trial about

the trace evidence, which also included the Petitioner’s wife’s DNA on the anonymous

letters.

-35-

Jerry Summers testified that he was an experienced trial attorney and that he had

reviewed the portions of the transcripts of both of the Petitioner’s trials that contained GBI

Agent Kelly Fite’s testimony. He said that his concern was not with Agent Fite’s

qualifications as an expert witness but with the lack of a hearing on the admissibility of his

testimony given the methodology employed, under the legal principles of McDaniel v. CSX

Transportation, 955 S.W.2d 257 (Tenn. 1997), and Daubert v. Merrell Dow Pharmaceuticals,

509 U.S. 579 (1993), as they existed at the time of the first trial. He said he thought that

although Agent Fite’s testimony did not eliminate the shotgun as the murder weapon, the

testimony “created a strong inference . . . that [the witness] excluded the other guns that

might have had similar findings.” He said that had counsel objected, the question of unfair

prejudice could have been considered under Tennessee Rule of Evidence 403. He said that

according to the transcript, Agent Fite based his opinion about the markings on the shotgun

wadding on one study conducted in the 1970s and the agent’s own experience.

Mr. Summers testified that the Petitioner’s family consulted with him after the first

trial and although he did not assume representation of the Petitioner, he was concerned at that

time about the admissibility of the statements of the Petitioner’s wife and girlfriend under

Tennessee Rule of Evidence 403. He said that in his opinion, the Petitioner’s testimony

denying that he had threatened “very reputable people” was the critical factor in the first trial.

He said that if the Petitioner made the decision to testify, “he’s got what he deserves as far

as what happened to the verdict[.]”

District Attorney Bill Cox testified that he thought Detective Sneed testified

adequately about the photographs and reports. He said he made all evidence available to the

defense for both trials. He testified that he handled the shotgun and cocked it in front of the

jury. He said he did not think this was improper. He said he thought the State’s witnesses

testified truthfully. He said it was typical for variances to occur in multiple statements and

testimony given by witnesses.

Larry Sneed testified that he was the lead detective in the Petitioner’s case. He said

he was no longer with the Hamilton County Sheriff’s Department, having become the chief

of the Red Bank Police Department. He said that on July 10, 1988, they learned of three

ATVs with blood on them and knew that the victims were missing. He said that the next day,

they established a command post and investigated the area not knowing whether the victims

could be recovered safely. He said that they found blood at the Helican Gate and in three

pools on either side of the road and that cadaver dogs assisted in locating some of the blood.

He said that when they found blood at the gate, they also noticed drag marks leading to the

side of the road, blood, insects, and what appeared to be brain material covered by leaves

near the base of a tree. He said that someone had taken a long time to conceal their discovery.

-36-

He said they found eyelets with blue material melted around them in a fire pit eight-tenths

of a mile away on the Petitioner’s property.

Chief Sneed testified that officers at the command post learned from individuals they

interviewed that they had heard shots on the night of July 9. These individuals also warned

the officers to be careful because if they went onto the Petitioner’s property, he would hold

a shotgun on them. He said that some of these witnesses were able to identify the Petitioner

by name but that others were not. He said this was the first time he heard the Petitioner’s

name. He said the authorities met with the owners of property near the Helican Gate. He

said that despite the Walden family claiming ownership of the gate area and witnesses stating

that the Petitioner was the only person who posted “no trespassing” signs in the area, the

confrontations the witnesses alleged having with the Petitioner had taken place at the Helican

Gate.

Chief Sneed testified that the Petitioner appeared as requested, although late, for a

meeting at the command post. He said that this was after the physical evidence had been

discovered but that the Petitioner was not yet a suspect. Chief Sneed testified that he did not

recall whether he testified at the first trial that there was blood on the blue material recovered

from the fire pit. He acknowledged his testimony at the second trial that the material tested

negative for blood. He stated they investigated multiple suspects and that they received many

reports. He said reports about all of this were provided to the district attorney.

Chief Sneed testified that there was a shell from a handgun found at the location

where the bodies were recovered. He said he learned that the area was a dump site for trash

and that people also went to the area to fire weapons. He said the victims’ wounds were all

from shotgun blasts.

Chief Sneed testified that the ATVs were stored for a long period of time and that the

tires deflated. He said two of the ATVs were eventually returned to their owners.

After receiving the evidence, the trial court issued a lengthy written order which

addressed all of the allegations raised in the Petitioner’s several petitions and denied relief

on each. This appeal followed.

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

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

-37-

was prejudicial under a de novo standard with no presumption of correctness. Id. at 457.

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.

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

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

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

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

(1993). 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. “A reasonable probability is a probability sufficient to

undermine confidence in the outcome.” Id. Failure to satisfy either prong results in the

denial of relief. Id. at 697.

In Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975), our supreme court decided 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. 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). 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.

All of the Petitioner’s appellate issues involve allegations of ineffective assistance of

counsel. We will address each in turn.

-38-

I

The Petitioner contends that trial counsel’s strategy was so deficient that he received

the ineffective assistance of counsel. The State argues that the Petitioner failed to prove

either prong of the Strickland test and is not entitled to relief.

The Petitioner attacks trial counsel’s decision to pursue an alternative perpetrator

theory, rather than raising challenges to every aspect of the State’s theory. He attacks

numerous individual decisions made by trial counsel that were part of the overall defense

strategy. These include trial counsel’s decision not to challenge the State’s theory regarding

where the crimes took place, the circumstantial nature of the evidence, the missing witnesses,

the lack of police reports introduced as part of the State’s case, the State’s timeline, the lack

of impeachment of Officer Sneed’s testimony and credibility, the lack of objection to the

State’s closing argument, the decision to use the Petitioner’s wife’s testimony, the failure to

raise the issue of bias of the trespasser witnesses, the decision not to request a mistrial after

a juror saw “he did it” on a bathroom mirror, and the failure to request special jury

instructions about the letters from the Petitioner’s wife to Ms. Hill.

The record reflects that trial counsel conducted a thorough investigation of the case

and had the benefit of the transcript of the Petitioner’s first trial and that he chose the

alternative perpetrator theory as the best course available. Counsel testified that he chose not

to challenge certain weaknesses in the State’s proof because pursuing a self-defense theory

would have been inconsistent with the primary defense theory and would have been ill-

advised. The trial court accredited counsel’s testimony about the diligent work he performed

in the course of representing the Petitioner and his choice of strategy based upon his

preparation. The court found:

It is clear that the advice given and the services rendered to the

Petitioner in this case . . . were clearly within the range of

competence demanded of attorneys in criminal cases. Indeed,

it is clear that [trial counsel] worked very hard, kept his focus on

the Petitioner’s defense that he was not the killer of the men.

We hold that the evidence does not preponderate against the trial court’s findings. Thus, the

Petitioner is not entitled to relief on the basis that counsel’s strategy amounted to deficient

performance.

-39-

II

Second, the Petitioner alleges that counsel was deficient in failing to object to GBI

Agent Kelly Fite’s expert testimony and in failing to request a hearing to determine the

admissibility of the evidence pursuant to the principles of McDaniel v. CSX Transportation,

Inc., 955 S.W.2d 257, 263-64 (Tenn. 1997). The Petitioner does not challenge Agent Fite’s

qualifications as an expert. Rather, he contends that the relevance of the prejudicial effect

of the testimony and the methodolgy used by the expert are in question. The State responds

that counsel was not ineffective because counsel believed the witness to be qualified.

Rules 702 and 703 of the Tennessee Rules of Evidence address the admissibility of

opinion testimony of expert witnesses. Rule 702 states in pertinent part: “If scientific,

technical, or other specialized knowledge will substantially assist the trier of fact to

understand the evidence or to determine a fact in issue, a witness qualified as an expert by

knowledge, skill, experience, training, or education may testify in the form of an opinion or

otherwise.” Tennessee Rule of Evidence 703 requires the expert’s opinion to be supported

by trustworthy facts or data “of a type reasonably relied upon by experts in the particular field

in forming opinions or inferences upon the subject.” The determining factor is “whether the

witness’s qualifications authorize him or her to give an informed opinion on the subject at

issue.” State v. Stevens, 78 S.W.3d 817, 834 (Tenn. 2002). Evidence constitutes “‘scientific,

technical, or other specialized knowledge,’ if it concerns a matter that ‘the average juror

would not know, as a matter of course.’” State v. Murphy, 953 S.W.2d 200, 203 (Tenn.

1997) (quoting State v. Bolin, 922 S.W.2d 870, 874 (Tenn. 1996)). Questions regarding the

admissibility, qualifications, relevancy, and competency of expert testimony are left to the

discretion of the trial court. McDaniel, 955 S.W.2d at 263-64.

The Petitioner claims the evidence should have been excluded because it was

substantially more prejudicial than it was relevant or probative. See T.R.E. 403. He claims

that Agent Fite’s testimony helped the jury conclude that it was his shotgun that was used to

kill the victims. However, he argues, Agent Fite was not able to match the gun with

markings, and Agent Fite based his opinion evidence that the Petitioner’s gun was capable

of firing without leaving markings on the wadding on a single study the witness conducted

in the 1970s. Additionally, he argues, shotgun ballistic testing was not done in Tennessee

at the time.

The Petitioner seeks to equate Agent Fite’s opinion testimony that the waddings did

not have markings and that the Petitioner’s gun did not leave markings when fired with the

type of advancing scientific knowledge that must be subject to the threshhold admissibility

requirements of McDaniel. First, it is significant that Agent Fite did not testify that in his

opinion, the Petitioner’s weapon fired the wadding that killed the victims. Rather, he said

-40-

the Petitioner’s weapon was capable of doing so because neither the fatal wadding nor the

wadding he test fired had markings. Agent Fite was a firearms examiner, and his

qualifications in that field were well known to trial counsel, who was familiar with Agent

Fite from other cases. Counsel believed the witness was qualified to testify on the subject

and did not request a McDaniel hearing. The Petitioner is not entitled to relief on this basis.

III

Next, the Petitioner argues that trial counsel was ineffective for failing to obtain a

defense expert witness in the areas of acoustics engineering and ballistics. The State

responds that the trial court’s findings were proper.

A. Acoustics Engineer

With respect to the allegations that counsel should have obtained a defense acoustics

engineer, the trial court found:

[T]he Petitioner faulted his counsel for not employing an expert

regarding the ability to hear shots fired. The ability to hear shots

or anything else varies from individual to individual, depending

on their aural acumen, their age and numerous other factors. It

is inconceivable that an expert could testify what another person

could or could not hear from a particular distance.

At the post-conviction hearing, trial counsel testified that he investigated the witnesses

who claimed they heard shots coming from the “blue hole.” He said there was no need for

a defense expert to show that a person could not have heard the shots claimed by the

witnesses because the State conceded as much at trial. He also testified that the defense team

conducted its own experiment, which resulted in a person at the “blue hole” being able to

hear a shotgun fired from the campsite to the gate. He said that given the results of the

defense experiment, presenting a defense expert was inviting the expert to contradict the

State’s proof.

This court has reviewed the record of the Petitioner’s direct appeal from the second

trial. The record reflects that counsel elicited testimony during his cross-examination of

Detective Sneed that the authorities fired a shotgun at the gate and were not able to hear the

blast at the “blue hole.” In addition, counsel raised this issue in his appellate brief as part of

his challenge to the sufficiency of the evidence.

-41-

The Petitioner contends that an acoustics expert could have shown “he could have

been nearby at the blue hole and heard nothing, as well as challenged the State’s witnesses

regarding what they said they heard, and where they said it was coming from.” However,

he offered no expert proof at the post-conviction hearing which, had it been offered at trial,

would have been favorable for the defense. Before his trial, the defense conducted its own

experiment, in which a person at the “blue hole” was able to hear a shotgun fired from the

Helican Road gate. Knowing this, counsel exercised informed discretion in not pursuing an

acoustics expert and instead in eliciting Detective Sneed’s concession that the State’s

experiment failed to show that a gunshot fired from the gate could be heard at the “blue

hole.” The Petitioner had the burden of proving his claims by clear and convincing evidence.

The trial court correctly denied relief on this claim.

B. Ballistics Expert

The Petitioner also argues that counsel was ineffective for not obtaining a defense

ballistics expert. The trial court’s pertinent findings are as follows:

The Petitioner faulted his defense counsel for not employing

expert witnesses to counter the [GBI] ballistic expert’s

testimony. The only ballistic testimony at the second trial came

from Mr. Fite of the Georgia Bureau of Investigation. He

testified that the wad material had no identifiable marks to

match with the Petitioner’s shotgun and that his shotgun was

capable of firing wad material without identifiable marking. He

simply could not conclude that the Petitioner’s shotgun had fired

the wad material he analyzed. The shotgun shells were not sent

to the GBI for analysis, so there was no proof presented about

the shells. In short, there was simply nothing to refute.

Upon review, we hold that the evidence does not preponderate against these findings. The

State’s expert was not able to conclude that the Petitioner’s shotgun fired the fatal shots. A

defense expert who testified to that fact, as well, would not have made an acquittal more

likely, and counsel’s performance was not deficient for his choosing not to pursue such

redundant proof. Additionally, the Petitioner failed to present any expert proof at the post-

conviction hearing of ballistics evidence that would have been favorable to the defense at

trial. Jerry Summers’ testimony that the issue should have been raised and might have

resulted in a different evidentiary ruling is no more than speculation in the absence of

evidentiary ballistics proof that would have been favorable to the Petitioner. The trial court

did not err in denying relief.

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IV

The Petitioner next argues that trial counsel was ineffective for failing to object to the

State’s closing argument at trial and to raise an issue about it on appeal. The Petitioner has

recited various specific statements made by the district attorney during closing argument

which he contends were objectionable, but he has not explained how any of these specific

arguments were legally improper. The State argues that the Petitioner has waived this issue

by failing to cite to the record where this issue was raised in the post-conviction petition.

In its order denying relief, the post-conviction court found:

[T]he Petitioner claims that the State’s argument was

improper and his counsel did not object. The State is entitled to

hit hard licks in closing argument. Of course, the licks must be

based on the evidence. The Petitioner has not set forth what part

of the closing argument he believes was erroneous and subject

to objection.

The Petitioner has failed to explain any legal basis upon which counsel should have objected

to the closing argument. He has likewise failed to explain how he was prejudiced by the lack

of objection. The trial court did not err in denying post-conviction relief.

V

Finally, we note that the Petitioner raised numerous additional issues of ineffective

assistance of counsel in his post-conviction petition and in the amendments to the petition.

He had a lengthy hearing and was afforded the opportunity to present proof. The trial court

addressed each allegation individually, finding that the Petitioner failed to sustain his burden

of proof with respect to each. The Petitioner has listed twenty-six additional allegations of

ineffective assistance of counsel in his brief, all of which were determined to be without

merit by the trial court. He has not provided any argument why the trial court erred with

respect to these issues, and none is apparent.

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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