Raymon Haymon v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

April 11, 2006 Session

RAYMON HAYMON v. STATE OF TENNESSEE

Direct Appeal from the Circuit Court for Dyer County

No. C99-175A Lee Moore, Judge

No. W2005-01303-CCA-R3-PC - Filed July 20, 2006

The petitioner, Raymon Haymon, appeals from the denial of his petition for post-conviction relief.

On appeal, he raises thirteen issues regarding claims of ineffective assistance of counsel and the

violation of certain constitutional rights. Following our review of the record and the parties’ briefs,

including the petitioner’s reply brief, we affirm the judgment of the post-conviction court.

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

J.C. MCLIN , J., delivered the opinion of the court, in which NORMA MCGEE OGLE and ALAN E.

GLENN , JJ., joined.

W. Lewis Jenkins, Jr., Dyersburg, Tennessee, for the petitioner, Raymon Haymon.

Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney General;

C. Phillip Bivens, District Attorney General, for the appellee, State of Tennessee.

OPINION

BACKGROUND

The facts and procedural background of this case are set out in this court’s decision on direct

appeal as follows:

On July 19, 1997, the [petitioner] offered Wiled McMillin five hundred

dollars to help him kill Jody McPherson. According to McMillin, the [petitioner]

stated he wanted McPherson killed because “he didn’t wanna go back to prison.”

The [petitioner] and McPherson had previously been arrested for the aggravated

robbery of Pete’s Liquor Store. McMillin refused the offer, and the [petitioner]

stated he would get Terry Cork to help him. McMillin also testified that, later on that

evening, he saw the [petitioner], Terry Cork, and Jody McPherson riding in a red car

in the Middle City area.

Terry Cork testified that, on the evening of July 19th, he left work at 9:00

p.m. and went to his father’s house. Around 10:00 or 10:30 p.m., Cork walked to

Erline Warren’s house to watch television. During the evening, the [petitioner] drove

to Warren’s house and, thereafter, he and Cork left in a red vehicle driven by the

[petitioner]. The [petitioner] dropped Cork off at his aunt’s house and subsequently

returned with Jody McPherson in the car. The three men drove toward Middle City

under the pretext of “hang[ing] out and talk[ing] to some women.” Once en route,

the [petitioner] stated that he needed Cork and McPherson to help him look for a

discarded rifle in a field that would “take care of some business concerning the Pete’s

Liquor Store robbery.” Upon arrival at a field in Middle City, the men lit newspaper

torches and looked for the rifle. As they were searching, Cork observed the

[petitioner] shoot McPherson several times. Cork claimed that he began to run, but

the [petitioner] pulled a second gun on Cork and told him “that it was gonna be more

than one person out there dead if [Cork] didn’t listen to what [the petitioner] said.”

The [petitioner] then ordered Cork to also shoot McPherson. The [petitioner]

instructed Cork to wipe the guns off and “throw the guns off the side of a little bridge

that was out there, like a little creek.”

McPherson’s body was discovered the next morning with one visible wound

to the chest and two other wounds to the head and back. A cell phone was found at

the scene, which was linked to Cork. Cork and the [petitioner] were questioned by

the police, and both men denied any involvement in the murder. When the

[petitioner] was interviewed on July 20, 1997, he stated that he knew McPherson had

been shot three times, “one from the head, one from the chest, and one from the

back.” At this point, no details of the murder had been disclosed to the public. After

being taken into custody on a bank robbery charge in 1999, Cork confessed to his

involvement in McPherson’s death and helped the police recover one of the discarded

weapons used in the murder.

On June 14, 1999, a Dyer County grand jury indicted the [petitioner] for the

premeditated first degree murder of Jody McPherson. On March 9, 2001, after a trial

by jury, the [petitioner] was convicted as charged and was sentenced to life

imprisonment.

State v. Raymon Haymon, No. W2001-02797-CCA-R3-CD, 2003 WL 22080780, at *1-2 (Tenn.

Crim. App., at Jackson, Sept. 5, 2003). This court upheld the petitioner’s conviction on direct

appeal. Id. at *8. Thereafter, the petitioner filed a petition for writ of error coram nobis, alleging

that one of the witnesses at his trial had recanted his testimony. The trial court denied relief and this

court affirmed. Raymon Haymon v. State, No. W2003-02535-CCA-R3-CO, 2004 WL 1359024, at

*3-4 (Tenn. Crim. App., at Jackson, June 16, 2004). The petitioner then filed a timely petition for

post-conviction relief and later an amended petition. The post-conviction court conducted an

evidentiary hearing over the course of three days, during which the testimony of several witnesses

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was presented. We limit our recitation of the testimony to that which is relevant to the petitioner’s

allegations in this appeal.

At the post-conviction hearing, the petitioner’s trial counsel testified that he was unable to

recall many of the specific details of petitioner’s case. However, counsel recalled that he met with

the petitioner “a lot” in the preparation of his case and his overall impression was that the petitioner

was not guilty. Counsel stated that Terry Cork and Wiled McMillin’s testimony was critical to the

state’s case-in-chief. Counsel also remembered that the petitioner made a couple of statements when

he testified at trial “that didn’t set well with the jury.” Specifically, counsel recalled that the

petitioner said, “I was innocent until I was proven guilty,” during questioning regarding a prior

offense.

Counsel testified that he could not recall the exact amount of time he had to prepare for trial,

but he believed that he had an adequate amount of time to prepare. He said that another attorney,

a legal assistant, and himself were primarily involved in the petitioner’s case. Counsel stated he

believed he discussed with petitioner the possibility of testifying at trial because it was a big question

during the trial. Counsel stated he could not recall whether he requested a jury-out hearing to

confirm the petitioner’s desire to testify, but he remembered that at some point during the trial the

petitioner “came up with a strong insistent desire to testify.” Counsel said he and his staff prepared

the petitioner to testify, but they did not conduct a mock cross-examination. Counsel elaborated that

he could not have “dreamed up” the questions the prosecutor asked the petitioner which elicited the

response “I’m innocent until proven guilty.”

Counsel testified that he and his staff went through statements made by Cork and came up

with fifty-one inconsistencies. Counsel stated that he felt that he was able to point out Cork’s

inconsistencies during trial. Counsel explained that he made a visual aid to show Cork’s inconsistent

statements and thought the aid was used during closing argument. He said that he believed the way

he attacked Cork’s statements helped the petitioner.

In further discussing Cork, counsel specifically remembered that Cork made a statement to

Joel Cook where Cork said, “you’re looking at the person . . . that shot that n_gger,” referring to the

victim. When questioned about counsel’s interview with McMillin, counsel responded that although

he could not remember whether the petitioner was present during the interview, he was comfortable

with the interview. Counsel testified that he could not recall whether there was a tactical reason for

not cross-examining McMillin about his testimony regarding the petitioner’s request for help in

killing the victim. Counsel further testified he could not recall whether he knew that McMillin

suffered from schizophrenia, but acknowledged McMillin changed his story at trial.

On cross-examination, counsel reiterated that he and his staff met with the petitioner

numerous times in preparation of the case. Counsel recalled that he investigated Cork’s inconsistent

statements and believed he introduced all five of Cork’s pretrial statements into evidence at trial.

Counsel stated that Cork’s statements totaled ninety-four pages, making it difficult to select a

specific contradiction to impeach Cork during his testimony.

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Regarding McMillin, counsel admitted that he was aware of McMillin’s prior statement

implicating the petitioner. However, counsel said he believed McMillin was truthful when he said

his prior statement to police was untruthful and that the petitioner was actually innocent. Counsel

“vaguely remember[ed]” attempting to impeach McMillin when he reverted to his original story on

the witness stand. Counsel recalled that the petitioner presented an alibi defense that he was at the

Short Stop Market during the time in question. Counsel also remembered calling the petitioner’s

brothers, mother, and wife to help establish his alibi.

The petitioner testified that counsel represented him for the twenty months between

indictment and trial. The petitioner recalled that while he spent a lot of time at counsel’s office, he

spent more time with co-counsel. The petitioner remembered he took McMillin to counsel’s office

to make a statement during which McMillin informed counsel that he suffered from schizophrenia.

The petitioner stated that he went over all of Cork’s statements with counsel and co-counsel and

pointed out various inconsistencies. He recalled that counsel’s legal assistant prepared a list of

inconsistencies and was told it would be used as a demonstration to the jury. The petitioner said that

during the cross-examination of Cork, he “didn’t feel like it was going well” because counsel

“wasn’t catching him in those lies like it was on the paper.” The petitioner thought that Cork’s five

statements would only be used for impeachment purposes rather than as substantive evidence.

Regarding his decision to testify, the petitioner stated that counsel told him “the case was

gonna . . . boil down to [his] word against Terry Cork’s word . . . and that if [he] got up there that

he could show the jury that . . . he was living a different life.” The petitioner admitted that counsel

warned him that the state could bring up his past criminal record if he chose to testify. The petitioner

testified that he knew the state was going to argue that the petitioner’s motive for killing the victim

was to prevent the victim from testifying against him regarding a liquor store burglary. The

petitioner pointed out, however, that he took a plea on that charge in spring of 1998 and received two

years of probation.

On cross-examination, the petitioner testified that he took notes during Cork’s testimony and

pointed out some of the inconsistencies to his counsel while Cork was testifying. According to the

petitioner, counsel never questioned Cork about those inconsistencies.

Co-counsel testified that she talked to witnesses, met with the petitioner, and looked through

the prosecutor’s file on at least two occasions. She admitted that the petitioner’s trial was her first

murder trial. Co-counsel remembered that the defense theory at trial was that someone else had

committed the murder. She recalled that they had the tape of a conversation between Joel Cook and

Cork in which Cork admitted to committing the murder. However, the petitioner would not pay to

have Cook brought in from federal custody in New York for trial, so the parties stipulated as to what

Cook would have testified by entering a statement into evidence.

Co-counsel stated that she remembered they had a blown-up list of the inconsistencies in

Cork’s statements, but she did not know why counsel did not use the aid at trial. Co-counsel recalled

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that counsel did question Cork about the “different lies he had told” and she believed counsel kept

up with the inconsistencies as he questioned Cork. Co-counsel recollected that Reginald King gave

a statement to officers, but Cork entered the room during King’s statement and tried to convince

King that the gun King sold him was a different type than King had remembered. Co-counsel denied

telling the petitioner that he should make a claim of ineffective assistance of counsel.

On cross-examination, co-counsel testified that she and counsel discussed with the petitioner

the pros and cons of testifying at trial and explained the types of questions he was likely to receive.

Co-counsel remembered that she and counsel consulted with the petitioner as the trial progressed

about questions to ask the witnesses or any other evidence that needed to be brought out. Co-counsel

also recalled that she spent a tremendous amount of time attempting to get Cook transported from

New York to testify about his conversation with Cork.

Tennessee Bureau of Investigation Agent Brent Booth testified that there was a cigarette butt

found near the victim’s body and the DNA on it did not match Cork, the victim, or several other

individuals. However, Booth did not recall whether the petitioner’s DNA was ever compared to the

DNA on the cigarette butt. On cross-examination, Booth pointed out that testing the petitioner’s

DNA would not have necessarily excluded him as a suspect. Booth also testified that counsel

requested his assistance in attempting to locate Cook.

Dyer County criminal investigators Terry McCreight and Calvin Johnson testified that they

conducted a pretrial interview with King and Cork. Neither investigator could recall whether anyone

from counsel’s office contacted them regarding the circumstances of that interview.

Appellate counsel testified that he and another attorney were hired to take over the

petitioner’s case during the motion for new trial and appeal. They handled the motion for new trial,

but the petitioner discharged them during the preparation for the appeal. Appellate counsel recalled

that he identified numerous issues to raise in the motion for new trial and on appeal.

Wiled McMillin testified that he was diagnosed with schizophrenia prior to 1999 and was

taking medication for it. McMillin recalled that he was interviewed by counsel and was never

questioned about whether he was schizophrenic. On cross-examination, McMillin admitted that he

did not remember ever telling his public defender or the prosecutor that he suffered from

schizophrenia. However, McMillin maintained that he informed the petitioner, but he could not

recall whether the petitioner advised counsel of his illness.

The petitioner testified in rebuttal that he informed counsel prior to trial that McMillin

suffered from schizophrenia. According to the petitioner, counsel told him if McMillin’s illness

could be treated with medication it would not be useful in impeaching McMillin’s testimony. On

cross-examination, the petitioner testified that counsel and counsel’s legal assistant were in the room

when McMillin said that he was schizophrenic.

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Counsel’s legal assistant testified in rebuttal for the state that she was present throughout

McMillin’s entire statement and did not hear any mention of McMillin’s illness. On cross-

examination, the legal assistant admitted that she was not present during a subsequent meeting

between counsel and McMillin that took place at the jail.

The parties stipulated that Janie Jeffries was one of the African-American members of the

jury and that she could not read.

In denying the petitioner’s request for post-conviction relief, the post-conviction court found

as follows:

From the testimony in the post-conviction trial, it is obvious that lead counsel

and second chair along with their assistants spent many hours in trial preparation.

In the trial transcript, [counsel] states during opening statement, “You will see

in the proof a little later that during the course of giving not one, but five different

statements to law officers, Mr. Cork told fifty-one lies.” The trial transcript also

reveals that [counsel] conducted a very rigid cross-examination of witness, Terry

Cork. All of the prior Cork statements were introduced into evidence. [Counsel]

was not allowed by the Court to use the blow-ups because they were paraphrases and

not actual excerpts from the statements. [Counsel] went over each of the prior pre-

trial statements given by Terry Cork and the inconsistencies of these statements from

his trial testimony. He questioned Mr. Cork about various inconsistencies including,

but not limited to denying ever being at the scene of the shooting; admitting being

present at the time of the shooting; denying knowing where the guns involved were

located; telling officers where the guns were located; pointing out that there were no

admissions by Terry Cork until after he was arrested on a bank robbery charge;

[counsel] adequately pointed out that he received a sentence for second degree

murder involving Jody McPherson that ran concurrently with his bank robbery charge

[and] stated as follows: “So, you get two for the price of one, don’t you?” Mr. Cork

then stated, “Yes, sir.” He cross-examined Mr. Cork about not seeing Wiled

McMill[i]n on the night of the murder. He also questioned him about the latex

gloves that were found at the scene. At the end of his cross-examination of Terry

Cork, [counsel] conferred with [the petitioner] and then questioned Cork about gang

affiliations. Gang affiliations of Cork and McPherson were significant in attempting

to point out a motive for Cork to have committed the murder.

It is also significant to note from the trial transcript that [counsel] in his

closing arguments argued burden of proof, reasonable doubt and the requirement of

the jury to make a decision that would not be based on speculation. He argued the

conflict between Cork’s testimony of the murder and the timing of the murder along

with a video from Shortstop Convenient Store supposedly giving [the petitioner] an

alibi. He set up columns on the black board for [the petitioner], Cork and

McMill[i]n, although the transcript does not show how those columns were used. He

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argued discrepancies in Cork’s testimony about the positioning of the McPherson

body. He argued the different theories of possible guilt of Fred Cole, and

inconsistencies of the McMill[i]n testimony and prior pre-trial statements. He

referred to various statements of Terry Cork and [the] deal that Terry Cork received

from the State for his testimony. He argued the accomplice rule and lack of

corroboration. He argued other motives for the murder of Mr. McPherson including

gang affiliation motives. He referred to his blow up of the fifty-one discrepancies

and advised the jury that if they would take a look at the pre-trial statements of Cork

they could see these contradictions. He asked the jury during their deliberations to

review the statements instead of reviewing the boards showing the blow-ups. He

summarized the testimony of [the petitioner’s] family members.

The Court finds, therefore, that petitioner has failed to carry his burden of

proof in showing that his attorney’s performance was deficient or resulted in any

prejudice so as to deprive him of a fair trial. The Court finds that the performance

of [counsel] and [co-counsel] was well within the range of competence demanded of

attorneys in criminal cases. The proof is clear and convincing that trial counsel spent

many hours in pre-trial preparation. The Court also finds that the opening statement

and closing arguments were effective and well within the wide range of acceptable

professional assistance. Trial counsel effectively engaged witnesses, Terry Cork and

Wiled McMill[i]n, in rigid cross-examination pointing out the various contradictions

in their pre-trial statements and their trial testimony. Any failure on the part of trial

counsel to cover credibility issues on closing argument would be in the form of trial

strategy rather than ineffective assistance of counsel.

The statement of Terry Cork taken by informant, Joel Cook, wherein Mr.

Cork states that Cork killed McPherson was introduced and available to the jury

during their formal deliberations.

It also appears to the Court that trial counsel made an effective attempt or

effort to undermine the State’s motive for the murder of Jody McPherson. Petitioner

simply fails to carry his burden of proof in showing ineffective assistance of counsel

by his trial counsel. There also is no showing of any prejudice even if ineffective

assistance had been shown.

[Counsel] does not recall ever having been advised that Wiled McMill[i]n

suffered from schizophrenia. [The petitioner] states that he advised [counsel] that

Wiled McMill[i]n suffered from schizophrenia. [Counsel’s legal assistant] denies

that they were ever advised that McMill[i]n suffered from schizophrenia. Even if

McMill[i]n was suffering from schizophrenia there is no showing by the petitioner

that there was any prejudice to his case based on this finding. There is no showing

that the pre-trial statement of Wiled McMill[i]n was coerced by law enforcement

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officers. McMill[i]n was carefully cross-examined by trial counsel. The Court finds

no deficiency in trial counsel’s efforts to attack the credibility of McMill[i]n.

The Court finds that adequate discussion and advice regarding [the

petitioner’s] right to testify or to refuse to testify was given both prior to trial and

during trial. [The petitioner] made the decision to testify knowing his fifth

amendment rights. He simply failed to hold up well on cross-examination.

[Appellate counsel] prepared and filed a Motion for New Trial and an

Amended Motion for New Trial after [trial counsel] had been discharged by [the

petitioner]. The Court finds that the efforts of [appellate counsel] were well within

the range of competence demanded of attorneys in criminal cases. Petitioner fails to

show any deficient performance on the part of [appellate counsel] or any prejudice.

Petitioner may have been prejudiced on appeal because appeal was pursued on a pro

se basis. The Court, however, feels the petitioner was the author of his own injury,

if any, on appeal as the proof was quite clear that he voluntarily terminated and

discharged [appellate counsel] prior to the time that the appellate brief was filed. The

Court of Criminal Appeals allowed [appellate counsel] to withdraw from the case

because of the terminations.

The Court is concerned that the charge read by the Court as shown on Page

1014 of the trial transcript at Line 3, reads that the petitioner “should be found

guilty.” After reading the charge in its entirety, however, it is clear that this was an

error and the jury was adequately charged about finding the [petitioner] either guilty

or not guilty based on the evidence and the law as charged by the Court. Based on

the foregoing, the Court denies the petition . . . for post-conviction relief.

STANDARD OF REVIEW

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

allegations 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 is de novo

with a presumption that the findings are correct. Fields v. State, 40 S.W.3d 450, 457-58 (Tenn.

2001). Our review of the post-conviction court’s legal conclusions and application of law to facts

is de novo without a presumption of correctness. Id.

To establish ineffective assistance of counsel, the petitioner must show 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

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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). 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. If either element of ineffective assistance of counsel has not been established, a

court need not address the other element. Id. at 697; see also Goad v. State, 938 S.W.2d 363, 370

(Tenn. 1996). Also, 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). The fact that a

particular strategy or tactical decision failed does not by itself establish ineffective assistance of

counsel. Goad, 938 S.W.2d at 369. However, deference is given to strategy and tactical decisions

only if the decisions are informed ones based upon adequate preparation. Id. (citations omitted).

ANALYSIS

On appeal, the petitioner presents thirteen issues for our review, including a number of one-

paragraph blanket contentions. We will address the petitioner’s issues as follows:

I. Trial counsel was ineffective for telling the jury during his opening statement that Cork, the

co-defendant and key state witness, told “fifty-one lies” but failed to demonstrate fifty-one

inconsistencies to the jury.

II. Trial counsel was ineffective for failing to thoroughly cross-examine Cork regarding the

numerous inconsistencies found in his five pretrial statements and trial testimony.

III. Trial counsel was ineffective for failing to discover that a member of the jury could not read

before urging the jury to “see the contradictions for themselves.”

IV. Trial counsel was ineffective for failing to discover that McMillin, a key state witness,

suffered from schizophrenia.

V. Trial counsel was ineffective for failing to request that Cork’s pretrial statements only be

admitted for impeachment purposes.

VI. Trial counsel was ineffective for failing to have Cook’s statement regarding Cork’s

incriminating admission read aloud.

VII. Trial counsel was ineffective for failing to pursue an alternate theory that Cork committed

the crime alone.

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VIII. Trial counsel was ineffective and his constitutional right against self-incrimination was

violated when counsel failed to adequately prepare him to testify at trial and did not request

a jury-out Momon hearing prior to him testifying.

IX. Trial counsel was ineffective for failing to object to the trial court’s misstatement in the jury

instruction.

X. He received the ineffective assistance of appellate counsel.

XI. He received the ineffective assistance of counsel based on the cumulative error.

XII. His due process rights were violated because a juror who could not read was asked to

consider significant documentary evidence during deliberation.

XIII. His due process rights were violated by the trial court’s misstatement in the jury instruction.

I.

The defendant first argues that trial counsel was ineffective for telling the jury during his

opening statement that he would demonstrate Cork told “fifty-one lies” but “failed utterly to

accomplish that.” In support of his argument, the petitioner relies on State v. Zimmerman, 823

S.W.2d 220 (Tenn. Crim. App. 1991), where a panel of this court determined that trial counsel was

ineffective based on cumulative error, which included counsel’s making a promise to the jury during

opening statement then changing strategy in the middle of the trial without a sound reason. Id. at

226-28.

Initially, we note that Zimmerman is distinguishable from the case at hand. In Zimmerman,

counsel promised the jury they would hear proof about a battered-wife syndrome defense; yet no

proof was presented. Whereas, in this case, counsel did not abandon a defense mid-trial, but instead,

counsel did not perfectly achieve the development of his defense strategy.

Our review of the record reveals that counsel’s cross-examination of Cork consumes over

seventy pages of trial transcript. The record further shows that counsel moved Cork’s statements

into evidence and went through portions of each statement and questioned Cork about a number of

inconsistencies between the statements. While we caution that making promises during opening

statements is a dangerous practice, it is our view that counsel’s failure to point out exactly fifty-one

inconsistencies does not mean his representation fell below the objective standard of reasonableness

demanded of an attorney in a criminal case. The idea behind counsel’s opening statement was to

attack Cork’s credibility, and counsel diligently worked to fulfill that endeavor. A defendant is not

entitled to perfect representation, only constitutionally adequate representation. See Denton v. State,

945 S.W.2d 793, 796 (Tenn. Crim. App. 1996). Accordingly, the petitioner has failed to show by

clear and convincing evidence that counsel’s performance was deficient in this regard.

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II.

The petitioner argues that trial counsel was ineffective in failing to thoroughly cross-examine

Cork and not utilizing visual aids during Cork’s cross-examination. The specific areas the petitioner

argues deficiency are: (1) Cork’s statements concerning how he came into possession of a gun on

July 20, 1997; (2) Cork’s statements about the details of the shooting; (3) the number of times Cork

claimed he pulled the trigger; (4) Cork’s statements about a rifle found in Middle City; and (5)

Cork’s statements about leaving the scene of the shooting and going to Dyersburg. The crux of the

petitioner’s argument is that counsel was deficient in his cross-examination of Cork because counsel

was not prepared.

First, the record reflects that counsel was prepared to conduct his cross-examination of Cork.

Testimony from the post-conviction hearing indicated that counsel spent a tremendous amount of

time over a twenty-month time period preparing for trial. Counsel and his staff poured over Cork’s

five statements and discussed the inconsistencies in the statements with the petitioner.

Second, counsel’s cross-examination of Cork was vigorous. While counsel may have failed

to touch upon the five specific inconsistencies listed by the petitioner, counsel did capitalize on

numerous inconsistencies in an effort to undermine Cork’s credibility. The fact that counsel failed

to impeach Cork on every inconsistency does not demonstrate deficient performance of counsel.

Additionally, counsel’s failure to utilize visual aids does not demonstrate deficient

performance and in fact the petitioner offers no authority for this theory. In our view, the

inconsistencies in Cork’s five statements were brought out during cross-examination and were

reviewable after the statements were entered into evidence. Counsel should not be deemed to have

been ineffective merely because he failed to employ additional modes of impeachment which may

or may not have produced a different result. See Williams v. State, 599 S.W.2d 276, 279-80 (Tenn.

Crim. App. 1980). Again, a defendant is only entitled to constitutionally adequate representation,

not perfect or error-free representation. See Denton, 945 S.W.2d at 796. Thus, the petitioner has

failed to show by clear and convincing evidence that counsel was deficient in his cross-examination

of Cork.

III.

The petitioner argues that trial counsel was ineffective for failing to determine whether a

juror could read before urging the jury to “see the contradictions [in Cork’s statements] for

themselves.” First, the petitioner has failed to show exactly how counsel’s performance was

deficient for failing to uncover this fact. Defense counsel is not required to be omniscient.

Therefore, we are hesitant to find that an attorney is deficient for failing to question potential jurors

about their literacy during the voir dire process.

Second, we note that the Tennessee Supreme Court was asked to determine a similar issue

in Kirkendoll v. State, 281 S.W.2d 243 (Tenn. 1955). In Kirkendoll, our supreme court examined

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the issue of whether it was error to have a written jury charge when a member of the jury could not

read. The court observed that “other jurors if necessary could read . . . to that juror who could not

read while in the jury room.” Id. at 255. The court concluded that there was no error as long as the

written material was in the jury room and other members of the jury could read. See id. We find the

reasoning in Kirkendoll applicable to this case.

Moreover, the petitioner has not provided any evidence demonstrating how he was prejudiced

by a singe juror’s inability to read. Here, many of Cork’s inconsistent statements were brought to

the jury’s attention during cross-examination. Also, the petitioner provided no evidence that the

juror’s illiteracy influenced the deliberation process. See State v. Cauthern, 967 S.W.2d 726, 747-48

(Tenn. 1998) (Appendix) (applying the reasoning in Kirkendoll and stating that the defendant failed

to point to anything in the record demonstrating that he suffered prejudice as a result of a juror’s

illiteracy). Accordingly, the petitioner is not entitled to relief on this issue.

IV.

The petitioner argues that trial counsel was ineffective for failing to discover that McMillin,

the state’s key witness, suffered from schizophrenia. In making this argument, the petitioner

apparently asserts that McMillin’s testimony should have been impeached by addressing McMillin’s

schizophrenic behavior in making contradictory statements concerning the petitioner’s guilt. In

addressing this issue, we first note that although the petitioner avers that he informed counsel of

McMillin’s illness, neither counsel nor his legal assistant recalled being so informed. In fact,

McMillin stated that he never told his attorney or the prosecutor about his schizophrenia, and he

could not recall whether the petitioner told his counsel about the illness. Without some indication

on McMillin’s part that would have put counsel on notice that McMillin had a mental illness, we fail

to see how counsel’s cross-examination could be considered deficient. See Jimmy Rogers v. State,

No. W1999-1453-CCA-R3-PC, 2000 WL 1230249, at *2 (Tenn. Crim. App., at Jackson, Aug. 22,

2000), perm. app. denied (Tenn. Mar. 12, 2001) (holding that it was not ineffective assistance for

counsel to not request a mental evaluation when there was no indication that the defendant was

incompetent or suffering from a mental illness). The petitioner has failed to show that counsel knew

or should have known that McMillin was schizophrenic.

Furthermore, we do not see how the petitioner was prejudiced by any alleged deficiency.

McMillin testified that he took medicine to control his mental illness which lessened any potential

impeachment value, and counsel mounted an otherwise vigorous cross-examination of McMillin.

Accordingly, the petitioner has failed to prove by clear and convincing evidence that counsel was

ineffective for failing to discover that McMillin suffered from a mental illness or that such

ineffectiveness caused him prejudice.

V.

The petitioner argues that trial counsel was ineffective for failing to ask the court to admit

Cork’s pretrial statements only for impeachment purposes and not as substantive evidence. The

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petitioner failed to provide any argument as to how such alleged deficiency caused him prejudice.

Accordingly, the petitioner has failed to prove by clear and convincing evidence that counsel was

ineffective in this regard.

VI.

The petitioner argues that trial counsel was ineffective in his handling of informant Cook’s

conversation with Cork in which Cork admitted to shooting the victim. The petitioner contends that

counsel should have read the entire statement detailing this conversation aloud so the jury could see

“the full effect of the statement,” instead of referencing portions of the statement, then allowing the

jury to analyze the statement itself.

From our review, it appears that counsel thoroughly cross-examined Cork about his

conversation with Cook. Moreover, the statement was entered into evidence as an exhibit, allowing

the jury to fully explore the conversation. The petitioner argues that the failure to have the statement

read aloud was “very critical” because one juror was unable to read. However, as noted earlier, other

jurors could read and discuss the statement with that juror, and counsel’s extensive cross-

examination of Cork brought out much of the crucial substance of the conversation. Additionally,

we reiterate that counsel should not be deemed ineffective for employing a different strategy or tactic

than the petitioner now claims as preferable. Thus, the petitioner is not entitled to relief on this

issue.

VII.

The petitioner argues that trial counsel was ineffective for failing to fully pursue the theory

that Cork committed the murder alone. We do not see how counsel’s failure to pursue every possible

theory amounts to constitutionally deficient performance. To reiterate, counsel’s performance is

evaluated without “the distorting effects of hindsight.” Strickland, 466 U.S. at 689. Here, counsel

made an informed tactical decision to discredit Cork’s testimony regarding the petitioner’s

involvement in the murder. The fact that a particular strategy or tactical decision failed does not by

itself establish ineffective assistance of counsel. Goad, 938 S.W.2d at 369. Accordingly, the

petitioner is not entitled to relief on this issue.

VIII.

The petitioner argues that counsel was ineffective for failing to adequately prepare him to

testify at trial. The petitioner also argues that his constitutional right against self-incrimination was

violated because counsel did not request a Momon jury-out hearing prior to his testifying to

determine whether his waiver was knowing and voluntary.

First, we fail to see any deficiency on the part of counsel in preparing the petitioner to testify

at trial. At the post-conviction hearing, counsel testified that he prepared the petitioner to testify.

Co-counsel also testified that she recalled discussing the pros and cons of testifying with the

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petitioner as well as the types of questions he might be asked. The petitioner relies on the fact

counsel did not prepare him via a mock cross-examination. However, a mock cross-examination is

not the only method of preparing one’s client to testify.

Second, no Momon error exists because the petitioner chose to testify. Momon requires a

jury-out voir dire of a defendant to ensure that the defendant is voluntarily and knowingly waiving

his right to testify. See Momon v. State, 18 S.W.3d 152, 161-62 (Tenn. 1999). We do not read

Momon to require a jury-out voir dire prior to the defendant’s exercising his or her right to testify.

Indeed, the language in Momon itself, “in every trial where the defendant does not testify, the trial

court should allow, and indeed require, defense counsel to employ the following procedure,”

supports this reading. Id. at 162 (emphasis added). Moreover, the post-conviction court found that

the petitioner received adequate advice regarding his right to testify and made the decision to testify

knowing his Fifth Amendment rights. The evidence does not preponderate against that finding.

IX.

The petitioner argues that trial counsel was ineffective for failing to object to a jury

instruction that the petitioner “should be found guilty.” The petitioner, however, has failed to

provide any argument or authorities in support of this contention. “Issues which are not supported

by argument, citation to authorities, or appropriate references to the record will be treated as waived

in this court.” Tenn. Ct. Crim. App. R. 10(b); see also State v. Schaller, 975 S.W.2d 313, 318 (Tenn.

Crim. App. 1997).

X.

The petitioner argues that he received the ineffective assistance of appellate counsel.

However, the record reflects, and the post-conviction court found, that the petitioner voluntarily

discharged his appellate counsel prior to his brief being due. As noted by the post-conviction court,

the petitioner was the “author of his own injury.” Accordingly, the petitioner has failed to prove by

clear and convincing evidence that he received the ineffective assistance of appellate counsel.

XI.

The petitioner argues that he received the ineffective assistance of counsel based on the

cumulative error. In light of our previous determinations, this issue is without merit.

XII. AND XIII.

Lastly, the petitioner argues that his due process rights were violated because a juror who

could not read was asked to consider significant documentary evidence and because the trial court

gave a jury instruction that he “should be found guilty.” Initially, we note that the petitioner has

waived these issues for failing to raise them in a motion for new trial or on direct appeal. See Tenn.

Code Ann. § 40-30-106(g). Notwithstanding waiver, we conclude these issues have no merit.

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First, the petitioner has failed to demonstrate by clear and convincing evidence that he was

prejudiced by a single juror’s inability to read. As noted previously, it is not error per se to have a

member of the jury who cannot read. Kirkendoll, 281 S.W.2d at 524-25. The petitioner has not

presented proof of how the juror’s inability to read affected her deliberation and understanding of

the evidence. Instead, the petitioner broadly asserts that “it was impossible for her to read and

understand the mass of documentary evidence present.” As such, the petitioner has not demonstrated

any violation of his due process rights.

Regarding the jury instruction, the record indicates that the charge was not prejudicially

erroneous although it contained a misstatement.1 The trial court’s charge read in part:

The punishment for this offense is death, life imprisonment, or life

imprisonment without the possibility of parole. The State, however, is not seeking

the death penalty, and, therefore, you should return a verdict of guilty. After a

separate hearing, you will impose a sentence of life imprisonment without the

possibility of parole, or life in prison.

On the other hand, if you find the defendant not guilty of first degree murder,

or if you have a reasonable doubt thereof, then your verdict must be not guilty as to

this offense, and then you will proceed to determine his guilt or innocence of the

lesser included offense of second degree murder.

In reviewing a claimed error in the jury charge, this court reviews the charge in its entirety,

read as a whole. State v. Leach, 148 S.W.3d 42, 58 (Tenn. 2004). This court can find error only if,

when read as a whole, the charge fails to fairly submit the legal issues or misleads the jury as to the

applicable law. State v. Phipps, 883 S.W.2d 138, 142 (Tenn. Crim. App. 1994). Read as a whole,

it is our view that despite the misstatement, the charge clearly instructed the jury on its duty and did

not inform the jury that it should find the petitioner guilty. Accordingly, the petitioner is not entitled

to relief on either of these issues.

CONCLUSION

Upon our review of the record and the parties’ briefs, we conclude there is nothing in the

record that preponderates against the trial court’s finding that the petitioner received the effective

assistance of counsel. Furthermore, our review revealed no violation of the petitioner’s

constitutional rights. Therefore, we affirm the post-conviction court’s denial of post-conviction

relief.

1

W e note that the petitioner failed to include a written copy of the jury charge in the record on appeal.

Therefore, our analysis is based on the jury charge as reflected in the trial transcript.

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___________________________________

J.C. McLIN, JUDGE

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