Evelyn Holly v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs April 14, 2009

EVELYN HOLLY v. STATE OF TENNESSEE

Direct Appeal from the Criminal Court for Shelby County

No. 00-07503 John T. Fowlkes, Jr., Judge

No. W2008-02703-CCA-R3-PC - Filed May 20, 2009

The petitioner, Evelyn Holly, appeals the post-conviction court’s denial of her petition for

post-conviction relief. On appeal, she argues that she received the ineffective assistance of counsel.

Specifically, she argues that her trial counsel was ineffective in failing to investigate the effects of

her mental condition and medication which precluded her from meaningful participation in her own

defense. Additionally, the petitioner asserts that trial counsel failed to hire an expert to contradict

the testimony of the medical examiner and failed to call a witness who would have exonerated her.

After a thorough review of the record and the parties’ briefs, the judgment of the post-conviction

court denying post-conviction relief is affirmed.

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

J.C. MCLIN , J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS and ALAN E.

GLENN , JJ., joined.

R. Andrew Hutchinson, Memphis, Tennessee, for the appellant, Evelyn Holly.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant Attorney

General; William L. Gibbons, District Attorney General; and Rachel Newton, Assistant District

Attorney General, for the appellee, State of Tennessee.

OPINION

BACKGROUND

Following a jury trial, the petitioner was convicted of second degree murder. Thereafter, she

was sentenced to twenty years in the Tennessee Department of Correction. On appeal, this court

affirmed the petitioner’s conviction and sentence. State v. Evelyn Holly, No.

W2002-01200-CCA-R3-CD, 2003 WL 22071446 (Tenn. Crim. App., at Jackson, Aug. 27, 2003),

perm. app. denied (Tenn. Jan. 26, 2004). The following is a recitation of the convicting evidence

set forth in this court’s opinion on direct appeal:

According to Defendant’s statement to the police, she and Mr. Kyles, the

victim, had lived together for approximately ten months although she was still

married to another individual. During their relationship, Defendant and Mr. Kyles

had several altercations. One disagreement in 1998 resulted in both Defendant’s and

Mr. Kyles’ arrest for aggravated assault, and a second confrontation in 1999 led to

the couple’s arrest for disorderly conduct.

On April 6, 2000, the couple first began arguing around noon when

Defendant’s husband telephoned her. Defendant and Mr. Kyles, however, “made up”

and went to the grocery store to buy supplies for grilling outside that night. They

made one more trip to the store that afternoon to buy beer. When they returned from

this shopping trip, a young man arrived at the apartment and asked to see

Defendant’s son. Mr. Kyles thought the young man had come to visit Defendant, and

this misunderstanding led to another argument which soon turned “physical.” Mr.

Kyles ran into the bathroom but left the door open a crack and told Defendant he was

going to kill himself by taking some pills. Defendant tried to enter the bathroom, but

Mr. Kyles held the door shut. Defendant then went into the bedroom and closed the

door. For some reason, her son’s girlfriend, Tina, brought Defendant a green-handled

steak knife with a three-inch serrated blade. After the girl handed Defendant the

knife, Mr. Kyles tried to get into the bedroom but Defendant leaned against the door

and managed to prevent him from opening it. Defendant sat down on the bed and

told Mr. Kyles she was going to leave him. About ten minutes later, Mr. Kyles came

into the bedroom and began arguing with Defendant again. Defendant went into the

bathroom, and Mr. Kyles followed. Defendant had her coat in her left hand and the

knife in her right hand. Mr. Kyles grabbed the coat from Defendant to prevent her

from leaving, then tried to wrestle the knife from her. Defendant jerked her hand

loose, and the knife struck Mr. Kyles in his chest.

Defendant pressed a towel to the wound, but did not know how to perform

CPR. She called out to her children to call an ambulance. Defendant continued to

hold the towel to Mr. Kyles’ chest until the emergency personnel arrived. After he

was transported to the hospital, Mr. Kyles underwent surgery but died shortly

thereafter.

Defendant said that during the incident her two sons and mother were in the

living room and her daughter was in her bedroom. None of these persons, however,

witnessed the killing. Defendant said she did not know Tina’s last name or why Tina

brought her a knife. While Defendant was in her bedroom, Tina stood by the kitchen

door holding a brown-handled serrated knife in her hand. When asked what she

thought Tina was going to do with the knife, Defendant replied that she guessed Tina

was going to try and use it on Mr. Kyles. Defendant did not know what happened

to the green-handled knife nor why a mop and bucket were in the bathroom.

Defendant denied telling anyone to clean up the blood.

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At trial, Michael Sinnock, a Memphis police officer, responded to the call

about the incident at 10:45 p.m. When he arrived at the scene, one of the apartment’s

security guards and Defendant were leaning over the victim, and the security guard

was performing CPR. Mr. Kyles, however was unresponsive. A one or one and

one-half inch cut was located on Mr. Kyles’ upper chest area. Defendant told Officer

Sinnock that Mr. Kyles had rushed into the apartment with the stab wound and

collapsed in the bedroom. Officer Sinnock smelled a strong odor of bleach or other

type of cleaning supply in the bedroom. Officer Sinnock left the apartment to flag

down the ambulance and then transported Defendant to the police station. During the

ride, Officer Sinnock said that he did not speak with Defendant and did not

remember if she asked him to take her to the hospital.

In April 2000, Bryant Jennings worked for the Memphis Police Department’s

crime response unit. When he arrived at Defendant’s apartment, Mr. Kyles had

already been taken to the hospital. Officer Jennings found the back bedroom in

disarray with bloody towels and sheets strewn about the room. A bucket was in the

bathtub in the bathroom. After photographing the scene, Officer Jennings discovered

a green-handled steak knife wrapped in a brown paper bag in the dumpster that

serviced the apartment complex. Officer Jennings did not know whether the knife

was tested for fingerprints or blood evidence.

Dr. O’Brian Smith, the Shelby County Medical Examiner, performed an

autopsy on Mr. Kyles the morning after his death. Although Mr. Kyles had

undergone surgery, the stab wound was still visible. Based on the results of the

autopsy, Dr. Smith testified that the knife blade entered Mr. Kyles’ body between his

ribs, injured his left lung and then penetrated his heart. The depth of the penetration

was four and one/third inches. Mr. Kyles also had fresh scratches on his forehead

and temple with old scratches already in the process of healing on his hands. An

examination of the rib cartilage showed that the knife used in the attack was serrated

and that the blade was turned as it was withdrawn. Dr. Smith testified that the

characteristics of the cutting edge of the steak knife found in the dumpster were

reflected in the surface of Mr. Kyles’ rib cartilage. Dr. Smith also testified that a

three-inch knife blade could penetrate four or more inches as a result of the

compaction of the soft body tissues caused by the insertion of the knife. Another

possibility explaining why the depth of penetration exceeded the length of the blade

was the fact that the heart deflates after the large vessels are no longer filled with

blood. As a result, the heart’s position at the time of an autopsy may be further from

the chest than at the time of the stabbing.

Dr. Smith said that the wound was a stab wound, not an incised wound. An

incised wound is caused by a slicing motion of the knife, and the wound is generally

longer than it is deep. A stab wound, however, is made by driving the point of the

blade straight into the body leaving a deep wound with only a small cut on the skin's

surface. Based on the depth of the knife’s penetration, Dr. Smith said that the user

held the knife in a firm grip with a fixed wrist.

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Sergeant Sharon Mabon with the Memphis Police Department’s felony

response unit interviewed Defendant following the incident. The interview began at

approximately three o’clock in the morning and ended approximately two hours later.

Sergeant Mabon explained Defendant’s rights to her, and Defendant agreed to make

a statement. At the conclusion of the interview, Defendant read over her statement,

then initialed each page and signed at the bottom of the last page of the statement.

The substance of the statement is summarized above. Sergeant Mabon said that

Defendant became physically ill before the interview began, and she brought

Defendant some crackers and a soda.

On cross-examination, Sergeant Mabon said that she did not inquire into

whether Defendant had trouble reading and writing. She did ask Defendant,

however, whether she could read and write without glasses and Defendant responded

affirmatively. Sergeant Mabon did not ask Defendant whether she had difficulties

in school or whether she had been placed in special education classes. Defendant

appeared alert and calm to Sergeant Mabon although she cried periodically during

the interview.

Id. at *1-3.

On February 20, 2004, the petitioner timely filed a petition for post-conviction relief.

Thereafter, post-conviction counsel was appointed, an amended petition was filed and an evidentiary

hearing was held. At the hearing, the petitioner testified that trial counsel did not hire a forensic or

medical expert to testify on her behalf at trial. The petitioner stated that at the time of the stabbing,

her children, Marvin Scott, Larry Payne, and Teresa Payne, along with Marvin Scott’s girlfriend,

Tina, were at the apartment. The petitioner recalled that she and Mr. Kyles had been arguing and

that during the argument, Tina bought her a kitchen knife with a green handle. The petitioner also

remembered that, at some point, she saw Tina holding a different knife. The petitioner stated that

counsel told her that she tried to locate and obtain statements from witnesses identified, however,

the petitioner was not certain of the results of any investigation. According to the petitioner, she was

not able to assist in preparing her case for trial and could not answer counsel’s questions regarding

the incident. The petitioner stated that at the time that counsel was preparing for the trial, she “was

going through a lot of emotional problems.” The petitioner stated that she was taking a “psych

med,” “Trisyndon” [sic], which had been prescribed “[b]ecause [she] was telling them that [she]

wanted to commit suicide[.]” According to the petitioner, the medication did not make her memory

worse, however it made her sleep a lot. The petitioner testified that she went through the eighth

grade in school, attending special education classes. She agreed that her IQ had been reported to be

74 and that before trial, counsel arranged to have a mental evaluation performed.

Larry Payne testified that at the time of the incident, he was at the petitioner’s apartment and

claimed to remember the event “like it was yesterday.” He stated that a security guard at the

apartment complex had obtained a restraining order preventing him from coming to the complex.

However, he came to the apartment because the petitioner invited him to a barbecue. Also at the

apartment on the night of the stabbing were “Ronald Kyles [called ‘Twin’], his grandmother, his

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sister and her boyfriend, along with [his] niece Tina and Marvin Scott and [his] friend, Frank.” Mr.

Payne stated that the petitioner and Mr. Kyles began arguing in the bedroom. The petitioner had a

knife because she had been cutting some meat and told Mr. Payne to “come and get this knife[,]”

which he did. Mr. Payne heard Mr. Kyles tell the petitioner to ask Tina to stop flirting with him.

As Mr. Payne came out of the petitioner’s bedroom, he saw Tina standing in his sister’s bedroom

with a knife in her hand. Mr. Payne asked Tina what she was going to do with the knife and she

replied, “I’m going to stab Twin,” meaning Mr. Kyles. Mr. Payne went to get something to eat, but

then heard a loud noise from the bathroom. He went to investigate the noise and saw a hole in the

bathroom wall. He then noticed Tina standing in the petitioner’s bedroom, still holding a knife. As

Mr. Payne and Mr. Scott were looking at the hole in the bathroom wall, they heard a scream and Mr.

Kyles came running into the bathroom with a deep cut in his chest. The petitioner then came into

the bathroom and stated, “Twin, I did not mean to push you.” Mr. Payne testified that the petitioner

told him that she pushed Mr. Kyles, and then saw Tina “holding a knife in her hand with blood on

it.” Mr. Payne stated that, at the time of the trial, he was available to testify and would have testified

to these facts had he been called as a witness. He claimed that before the trial, he was interviewed

by the petitioner’s trial counsel, but was not called to testify at the petitioner’s trial.

On cross-examination, Mr. Payne denied he told trial counsel that the petitioner told him that

she stabbed Mr. Kyles. Mr. Payne stated that he was at the apartment when the police came,

however, he denied that he gave the police a statement. According to Mr. Payne, a security guard

came to the apartment and recognized him. The petitioner told Mr. Payne to leave because she did

not want him to be arrested for a violation of the restraining order.

Trial counsel testified that in preparing the petitioner’s case for trial, she had an investigator

interview all of the witnesses who were at the apartment at the time of the stabbing. After speaking

with the petitioner, counsel determined the best defense strategy was not to call anyone who had

given a statement to testify at trial because “their testimony would have been in direct conflict with

what [the petitioner] said.”

Counsel stated that before the trial, the petitioner told her the stabbing was an accident and

claimed that immediately before the stabbing, she was holding her coat in one hand and a knife in

the other hand. The petitioner explained that when she jerked her coat, she accidently stabbed Mr.

Kyles. One of the petitioner’s sons claimed to have been in the room when the stabbing occurred

and said that Mr. Kyles tripped and fell on the knife. The medical examiner, Dr. Smith, met with

counsel and told her that the stabbing could not have been an accident. After speaking with Dr.

Smith, counsel again spoke with the petitioner who then stated that she had been advised by “a

church lady” to tell her attorney everything. The petitioner told counsel that during an argument

with Mr. Kyles, he put a hole in the wall of the bathroom and the petitioner became angry, chased

Mr. Kyles, and then stabbed him. Counsel agreed that she did not hire a medical expert to testify

on behalf of the petitioner, however, she stated that no issue was identified as questionable or in need

of expert review. Counsel stated that she had worked with Dr. Smith in the past on numerous cases

and trusted his opinion.

On cross-examination, counsel stated that she had been with the Public Defender’s Office

for over seventeen years. Counsel stated that unless a need for an expert was indicated, it was not

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standard practice for defense counsel to hire a medical expert in all cases. Counsel stated that in her

experience, Dr. Smith had been fair to both sides in reviewing the medical evidence. Counsel stated

that none of the witnesses interviewed stated that Tina stabbed Mr. Kyles. According to counsel,

the day of the post-conviction hearing was the first time she had heard anyone say that Tina had a

knife with blood on it.

The post-conviction court denied the petition for post-conviction relief by written order

entered November 7, 2008. The court found, inter alia, that the petitioner failed to establish the

factual allegations contained in her petition by clear and convincing evidence. The petitioner filed

a timely notice of appeal.

ANALYSIS

In order for a petitioner to succeed on a post-conviction claim, the petitioner must prove the

allegations of fact set forth in his petition by clear and convincing evidence. Tenn. Code Ann. §

40-30-110(f). On appeal, this court is required to affirm the post-conviction court’s findings unless

the petitioner proves that the evidence preponderates against those findings. State v. Burns, 6

S.W.3d 453, 461 (Tenn. 1999). Our review of the post-conviction court’s factual findings, such as

findings concerning the credibility of witnesses and the weight and value given their testimony, is

de novo with a presumption that the findings are correct. See id. Our review of the post-conviction

court’s legal conclusions and application of law to facts is de novo without a presumption of

correctness. Fields v. State, 40 S.W.3d 450, 457-58 (Tenn. 2001).

In order to establish the ineffective assistance of counsel, the petitioner bears the burden of

proving that (1) counsel’s performance was deficient and (2) the deficient performance prejudiced

the defense rendering the outcome unreliable or fundamentally unfair. Strickland v. Washington,

466 U.S. 668, 687 (1984); see also Arnold v. State, 143 S.W.3d 784, 787 (Tenn. 2004). Deficient

performance is shown if counsel’s conduct fell below an objective standard of reasonableness under

prevailing professional standards. Strickland, 466 U.S. at 688; see also Baxter v. Rose, 523 S.W.2d

930, 936 (Tenn. 1975) (establishing that representation should be within the range of competence

demanded of attorneys in criminal cases). A fair assessment of counsel’s 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; see also Nichols v. State, 90 S.W.3d 576, 587 (Tenn. 2002). 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). The fact that a particular strategy or

tactical decision failed does not by itself establish ineffective assistance of counsel. Goad v. State,

938 S.W.2d 363, 369 (Tenn. 1996). Once the petitioner proves that counsel’s representation fell

below a reasonable standard, the petitioner must also prove prejudice. Prejudice is shown if, but for

counsel’s unprofessional errors, there is a reasonable probability that the outcome of the proceeding

would have been different. Strickland, 466 U.S. at 694. Both deficient performance and prejudice

must be established to prove ineffective assistance of counsel. Id. at 697. If either element of

ineffective assistance of counsel has not been established, a court need not address the other element.

Id.

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The petitioner alleges that counsel was ineffective in failing “to inquire about [the

petitioner’s] medication” and asserts that “the outcome [of the trial] would have differed” if the

petitioner were able to take a more active role in her defense. She contends that the medication made

her “drowsy” and “incoherent” and prevented her from “assist[ing] her attorney in trial strategy.”

The petitioner further asserts that counsel did not pursue all available defenses, and did not: (1)

“make an effort to obtain an expert to contradict, confirm, or explain the testimony of the state’s

medical examiner Dr. Smith,” or (2) “call all available witnesses that could have possibly exonerated

[the petitioner].”

Upon review of the record, we conclude that the petitioner failed to demonstrate that she was

denied the effective assistance of counsel. The petitioner asserts that counsel failed to inquire into

the petitioner’s ability to assist with her defense and claims that the petitioner’s mental condition and

medication impaired her ability to participate in her defense. The petitioner testified that she had

attended special education classes through the eighth grade. She stated that before the trial, due to

her desire to commit suicide, she had been prescribed “Trisyndon” [sic]. However, the petitioner

denied that the medication made her memory worse and stated that it caused her to sleep a lot.

Contrary to the petitioner’s allegation, she agreed that counsel arranged to have a mental evaluation

performed before her trial. No further proof was presented at the post-conviction hearing to support

the assertion that the petitioner was impaired or unable to assist with her defense. The record does

not support that the petitioner established deficient performance by counsel with regard to the

petitioner’s mental condition or the effects of her medication on her ability to assist with her defense.

The petitioner also asserts that counsel failed to pursue available defenses. The petitioner

argues that counsel failed to obtain an expert to “contradict, confirm, or explain the testimony of the

state’s medical examiner.” However, the petitioner has not shown how an expert would have been

beneficial to the petitioner’s defense. Counsel testified that according to Dr. Smith’s report of his

examination of Mr. Kyles’ wound, the stabbing was not an accident. Counsel stated that after she

relayed Dr. Smith’s opinion to the petitioner, the petitioner admitted that she stabbed Mr. Kyles.

Counsel further testified that she had worked with Dr. Smith in the past and stated that in evaluating

cases, Dr. Smith was fair to both sides. We conclude that the record does not support the petitioner’s

claims that counsel’s failure to obtain an expert constituted deficient performance. We also

determine that counsel’s decision not to hire an expert was a reasonable strategic decision based

upon adequate preparation and investigation.

Finally, the record does not support the petitioner’s claim that counsel failed to put on

evidence that possibly could have exonerated the petitioner. Larry Payne testified at the post-

conviction hearing that immediately after the stabbing, he saw his brother’s girlfriend, Tina, holding

a bloody knife. Mr. Payne further testified that before the petitioner’s trial, he told counsel that Tina

was holding a bloody knife. Mr. Payne stated that he was available to testify at trial, however he was

not called. Contrary to the petitioner’s assertion, counsel stated that before the trial, Mr. Payne was

interviewed along with other family members by an investigator. Counsel stated that no one had

previously asserted that Tina had a bloody knife after the stabbing or that Tina stabbed Mr. Kyles.

Counsel stated that she heard this assertion regarding Tina for the first time at the post-conviction

hearing. The trial court credited the testimony of counsel over that of Mr. Payne, stating that Mr.

Payne’s “testimony at the post-conviction hearing differed from his pretrial statement given to the

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Defense.” Our review of the post-conviction court’s factual findings concerning the credibility of

witnesses and the weight and value given their testimony is de novo with a presumption that the

findings are correct. See Burns, 6 S.W.3d at 461. We conclude that the finding of the post-

conviction court is supported in the record and is therefore presumed correct. Counsel testified that

after her investigator interviewed those at the apartment at the time of the stabbing, she made the

decision that the best defense strategy in the petitioner’s case was not to call any of them as

witnesses at the trial, because “their testimony would have been in direct conflict with what [the

petitioner] said.” As such, counsel made a reasonable strategic decision based upon adequate

preparation and investigation. Accordingly, the petitioner is not entitled to relief on this issue.

CONCLUSION

The petitioner has failed to meet her burden of proof regarding her claims of ineffective

assistance of counsel, and the post-conviction court correctly denied the petition. Therefore, the

judgment of the post-conviction court is affirmed.

___________________________________

J.C. McLIN, JUDGE

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