Clay Stuart Gregory v. State of Tennessee

06/25/2025

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs February 11, 2025

CLAY STUART GREGORY v. STATE OF TENNESSEE

Appeal from the Circuit Court for Humphreys County

No. 13006 Larry J. Wallace, Judge

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No. M2023-01502-CCA-R3-PC

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The Petitioner, Clay Stuart Gregory, was convicted of aggravated robbery, first-degree

felony murder, and premeditated first-degree murder, for which he received an effective

sentence of life in prison. State v. Gregory, No. M2012-00546-CCA-R3-CD, 2013 WL

6187919, at *1 (Tenn. Crim. App. Nov. 25, 2013), perm app. denied (Tenn. May 14, 2014).

The Petitioner subsequently filed a petition seeking post-conviction relief, which was

denied. In this appeal, the Petitioner argues he received ineffective assistance of counsel

based on the following nine grounds: (1) trial counsel’s failure to lodge a pretrial objection

to a note found in the Petitioner’s truck and the failure of the post-conviction court to permit

juror testimony under Rule 606(b) regarding the impact of the same; (2) trial counsel’s

failure to object during the State’s closing argument; (3) trial counsel’s failure to prepare

for trial; (4) trial counsel’s failure to investigate, call, or cross-examine key witnesses; (5)

trial counsel’s failure to request a jury instruction pursuant to State v. Ferguson, 2 S.W.3d

912 (Tenn. 1999); (6) trial counsel’s failure to present a shooting incident reconstruction

and a firearms expert; (7) trial counsel’s failure to ensure the Petitioner could hear during

trial; (8) trial counsel’s failure to secure the presence of the Petitioner and Jacqueline Peek

for a court ordered deposition; and (9) trial counsel providing the jury with a report that

contained inflammatory information about the Petitioner. The Petitioner also argues that

trial counsel violated an ethical duty of loyalty by simultaneously representing the

Petitioner and two potential defense witnesses. Finally, the Petitioner contends that he is

entitled to relief based on the cumulative error doctrine.1 Upon review, we affirm.

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

CAMILLE R. MCMULLEN, P.J., delivered the opinion of the court, in which JOHN W.

CAMPBELL, SR., and KYLE A. HIXSON, JJ., joined.

Nicholas McGregor, Nashville, Tennessee (on appeal); Michael Flanagan, Nashville,

Tennessee (at hearing), for the appellant, Clay Stuart Gregory.

1

We have re-ordered the Petitioner’s issues for clarity.

Jonathan Skrmetti, Attorney General and Reporter; Brooke A. Huppenthal, Assistant

Attorney General; W. Ray Crouch, Jr., District Attorney General; and Lisa Donegan and

Margaret F. Sagi, Assistant District Attorneys General, for the appellee, State of Tennessee.

OPINION

A full recitation of the facts supporting the Petitioner’s convictions may be found in

our direct opinion at State v. Gregory, No. M2012-00546-CCA-R3-CD, 2013 WL

6187919, at *1. On November 26, 2009, Eddie Lucas, the victim in this case, was found

in his home by his wife, Rachel Lucas, with two fatal gunshot wounds in his chest.

Although Rachel Lucas did not see the Petitioner shoot the victim, she observed the

Petitioner leaving her home after discovering her husband had been shot. She called 911

and identified the Petitioner as a suspect. The State’s theory at trial was that the Petitioner

killed the victim after discovering that he had been having a twenty-four-year affair with a

woman whom the Petitioner intended to marry. The State established the Petitioner’s guilt,

in large part, based on the following: testimony of the victim’s wife that she observed the

Petitioner at her home before and shortly after hearing gunshots and finding her husband’s

body, testimony from several of the victim’s neighbors confirming that they observed a

truck similar to the Petitioner’s in the victim’s driveway during the early morning hours of

the offense, testimony from one of the victim’s neighbors identifying the Petitioner and his

truck as being in the victim’s driveway on the morning of the offense, testimony that the

Petitioner had been seen with a gun before and after the offense, the Petitioner’s DNA

having been found on a marijuana cigarette discovered outside the victim’s home on the

morning of the offense, and a note that was recovered from the Petitioner’s truck that had

the victim’s signature on it. In his direct appeal, the Petitioner challenged the sufficiency

of the evidence, the denial of his motion to suppress the search of his truck, and the denial

of his motion to recuse. This court affirmed the judgments of the trial court, and the

Tennessee Supreme Court denied discretionary review on May 14, 2014.

On March 23, 2015, the Petitioner filed a pro se petition for post-conviction relief.

On June 19, 2015, first counsel was appointed and subsequently moved to withdraw due

to a conflict. On October 14, 2015, an order was entered allowing first counsel to withdraw

and appointing second counsel. Second counsel filed the first amended petition on

December 14, 2015. On March 7, 2016, a preliminary order was entered requiring the

State to respond. On April 6, 2016, a second amended petition was filed, which appeared

to be a combination of the pro se petition and the first amended petition. On April 28,

2016, the State filed its response, denying the allegations in the petition. On October 25,

2018, a notice of substitution of counsel was filed, and third counsel was shown as retained

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by the Petitioner. After extensive litigation, on May 10, 2021, a third amended petition

was filed, incorporating the issues raised in the previous petitions.

Post Conviction Hearing. On January 26, 2022, the post-conviction court

conducted an evidentiary hearing. Tennessee Bureau of Investigation (TBI) Special Agent

Joe Craig, the lead investigator, testified that the TBI became involved in this case upon

being contacted by Sheriff Chris Davis and that he partnered with the Humphreys County

Sheriff’s Office and the New Johnsonville Police Department. Agent Craig took notes as

part of his investigation, which were made an exhibit to the hearing. In March 2011, he

issued a subpoena for Jacqueline Peek to participate in a deposition. Agent Craig

maintained constant contact with the district attorney’s office; however, he was unaware if

a deposition for Jacqueline Peek had occurred. He did not have any notes of a deposition

occurring, and he did not attend one. After being provided with his notes, Agent Craig

agreed that he often made a “TBI IR” to codify an interview into an “IR.” He said that he

had time to reflect upon his notes when he codifies an interview. He denied that the TBI

was biased in any way. Based on the crime scene log, Agent Craig arrived at the

Humphreys County crime scene at 11:50 a.m., and the first officer arrived at 9:10 a.m.

Upon arrival, he coordinated with local law enforcement. He considered his investigation

in this case to be thorough. He worked with John Ethridge from the district attorney’s

office. He was present for the entire jury trial and provided truthful testimony.

Jacqueline Anne Peek testified that she knew the Petitioner, the victim, and Rachel

Lucas before the offense. Asked by post-conviction counsel if she had testified about this

case in March 2011, Peek replied, “Yes.” She remembered being placed under oath, the

presence of a court reporter, and the process being similar to the evidentiary hearing. She

did not recall which prosecutor was present, and she appeared under court order. Post-

conviction counsel noted that an order for Peek’s deposition was a part of the trial record.

On cross-examination, Peek agreed that she was involved in this case from the moment it

occurred on November 26, 2009. Before March 2011, she refused to be interviewed

without the presence of her attorney. An investigator showed up at her workplace,

“intimidating” her, but she provided him with her attorney’s name. She spoke with trial

counsel and accompanied the Petitioner when he visited trial counsel while the Petitioner

was on bond, but she was “just more or less in the room.” She was the Petitioner’s

girlfriend at the time. She mentioned a meeting during which she was questioned with trial

counsel and prosecutors present; however, she could not recall the location of the meeting,

who was there, or what they looked like. She explained it was eleven years ago. She

recalled speaking with her attorney about the meeting, and he advised her to attend. She

could not recall the day of the meeting, but she stated it was not in the Hickman County

jail. Although she could not remember the details, she said, “I remember I was [at a

deposition] and there were several men there and I believe a couple of females.” She could

not recall how long ago the deposition occurred, but she believed it was “in a high[-]rise

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[d]owntown Nashville.” Although she could not remember “a lot of the details,” she

believed a deposition occurred before the trial.

Upon further questioning by the court, she agreed that during the investigation it

was “very traumatic,” and she did not remember “a lot.” She was not comfortable being

in court that day. She also did not know how long the deposition was, but remembered it

was in a “real big office with a really big conference table.” She clarified that she did not

know who was present at the deposition, but stated it seemed like her attorney and “four or

five of them” dressed in suits. She said, “two or three of them” asked her questions.

Wayne Ellison, the Chief of Police for the New Johnsonville Police Department in

2009, testified that he was notified about this case by dispatch, responded to the scene of

the Lucas home, and was familiar with the victim before the homicide. Upon arrival, he

observed Rachel Lucas standing at an island intermittently during the day. He observed

her washing something off or wiping something down. He had not met Rachel Lucas

before the homicide, and he acknowledged that he may have described her behavior as

“flighty” or someone who “probably [had] a lot going on at one time.” His initial

impression of her after the first interview was that she was sad. He could not recall saying

Rachel Lucas was “overdramatizing her description” of the Petitioner. He explained she

called the Petitioner a “monster” or “the monster.” On cross-examination, he agreed that

Agent Craig was the lead investigator in this case, and that if he had seen anything unusual,

he would have advised Agent Craig. He agreed that he provided truthful testimony at the

trial in this case. He agreed that he also described Rachel Lucas as being in shock, and he

would have advised Agent Craig if he believed Rachel Lucas was being disingenuous. He

did not believe her behavior was suspicious.

Dr. Linde Christine Rush-Burkey, a criminal justice professor at East Tennessee State

University, testified as an expert in “forensic document examination.” She said her field

included examining handwriting for comparison with known exemplars to determine

whether the handwriting is authentic. She said this area of expertise was available in 2009

and 2011. Petitioner’s counsel referred her to trial Exhibit 73, the note, and Exhibit 102,

an enlargement of the note.2 Petitioner’s counsel also referred to the trial court’s limiting

instructions to the jury, and Dr. Rush-Burkey agreed she had reviewed them. Dr. Rush-

Burkey agreed there were risks associated with allowing a lay person “in that setting to

analyze a document for the writing but not the contents of the writing.” She said the

“likelihood of an individual being able to look at a document and look at writing and not

absorb[] the actual content would be very difficult to do[.]” She agreed she did not know

any of the jurors in this case and was unaware of their ability to absorb written content.

2

As will be discussed more fully below, the record shows that Exhibit 102 was marked for

identification purposes only at trial.

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Her report, admitted as an exhibit, concluded that “lay persons should not have been

permitted in a legal proceeding to make such judgments.” She reasoned that, unlike trained

forensic document examiners, laypeople lack the necessary education, and their error rates

are significantly higher. She agreed she was being compensated for her involvement in

this case; however, it would not influence her opinion. She would have been available to

testify at the Petitioner’s trial had trial counsel subpoenaed her, and her expert testimony

would have been that the jurors would be unlikely to disregard the content of the note. She

said there was an “increased danger” that a layperson would “absorb the contents” of the

note the more time they spend with it.

On cross-examination, she clarified that the only documents she reviewed in this

case were the judge’s instructions to the jury. She was not aware that the State had provided

defense counsel in discovery with a certified document examiner’s handwriting analysis of

the note. Nor was she aware there was another document examiner in this case. She did

not review any of those documents or the note that was shown to the jury. She agreed that

there was a potential for a person’s spouse of thirty years to identify their spouse’s

handwriting, especially if they observed it every day. She agreed that her report noted that

“research on the ability for juries to disregard certain information or evidence is somewhat

mixed” and that there was no conclusive scientific proof that they would disregard the

information. She acknowledged that her opinion was not widely accepted by the scientific

community. She agreed that she had never had a Daubert3 hearing regarding this issue.

She agreed that there was no research to date addressing the ability to examine the

questioned handwriting without absorbing the content. She agreed there had been no

research supporting her theory and that it had not been scientifically proven.

Investigator John Ethridge with the district attorney general’s office testified that he

responded to the crime scene on the day of the offense. Photographs taken from the crime

scene that were not admitted as exhibits at trial were shown to him, and he agreed he had

taken them. The photographs, admitted as Exhibit 4A and B, showed a close-up view of a

sconce on the floor of the victim’s home and the victim’s living room showing two drinking

containers on the coffee table and a drink container on a table near a set of chairs. Exhibit

5 showed a series of photographs, including one of a red pencil on the floor and two angles

of a blue pencil protruding from a sofa cushion. During cross-examination, Investigator

Ethridge explained that his role in this case was to serve as the crime scene photographer

and to assist Agent Craig. He also assisted trial counsel by taking him to the former home

of the Peek family and explaining what he had found there. He agreed that he testified

twice at trial and that his testimony was truthful. He was familiar with Jacqueline Peek,

and he was not present at any depositions with her. Although he “read in a petition that

3

Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

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was filed in this case” that a deposition occurred in Hickman County, he had no personal

knowledge that it had occurred.

Donald Dawson, a veteran defense attorney, testified as an expert in prosecution and

defense closing arguments. The Petitioner hired Dawson, and he received $1650 to review

the case. He denied that his compensation would affect his opinion. He compiled a report,

which was admitted into evidence. Dawson determined that trial counsel failed to object

to the State’s first closing argument based on improper emotional appeals to the jury,

witness vouching, and by injecting improper personal beliefs. Dawson identified seven

references to Thanksgiving in the State’s first closing that he considered to be improper

emotional appeals to the jury because they were superfluous to the offense date.

For example, the State argued, “In a perfect world, somebody doesn’t get killed on

Thanksgiving,” and “[W]hen she got up, she didn’t smell the turkey cooking.” Dawson

opined that the repeated references to Thanksgiving throughout the first closing argument

were beyond the scope of evidence and outside the evidence because the evidence was

“clear that . . . she had made vegetable soup for Thanksgiving dinner and that’s all they

were having. They weren’t having turkey that day. So there would be no reason to expect

it.” Dawson also stated that the State suggested Scott Dodd could not have been wrong

about the Petitioner’s truck by arguing that Dodd knew the truck because he had owned

one like it. In Dawson’s review of the testimony, neither Scott Dodd nor his wife said that

he owned a truck like the Petitioner’s. Dawson considered this comment to be improper

witness vouching because it was used to bolster the witness’s testimony. Finally, Dawson

also stated that the State expressed personal beliefs as to the Petitioner’s guilt or innocence

by saying, “Ladies and Gentlemen of the Jury, I propose to you that what you’ve seen and

heard evidence is sufficient for you to find the defendant Stuart Gregory guilty of

everything he’s charged with.” Dawson considered this comment “close to the line” of

giving one’s own opinion as to the evidence.

Dawson opined that the State’s rebuttal closing argument also improperly appealed

for sympathy from the jurors by using a Thanksgiving narrative to emphasize the date the

homicide occurred. Dawson pointed to the State’s repeated references to what the offense

has done to the families and that the victim will no longer be able to have Thanksgiving

dinner. Dawson opines that the State’s second closing was based on improper appeals to

the emotions of the jurors. Specifically, the State referred to the testimony of Pam Gunn,

and how he was “affected by her supposedly tearing up on the . . . witness stand and how

that showed to him her credibility, which, again, is a type of vouching for the witness that’s

improper.” Dawson said the State tried “to show his sense of outrage that [trial counsel]

would suggest that it would be second degree [murder],” which was improperly giving his

personal opinion to the jury. Dawson acknowledged that trial counsel’s closing argument

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invited a response; however, Dawson insisted that the State’s display of outrage that the

jury would even think to suggest it was a second degree was “going over the top.”

Finally, Dawson said that trial counsel improperly commented on the fact that trial

counsel was not going to object to the State’s closing argument. Specifically, Dawson

testified:

I’ve known that to be pretty amazing. I don’t think I’ve ever heard a

defense -- I don’t think I’ve ever read a transcript or heard in court a defense

attorney essentially praising a prosecutor’s closing argument and then

explaining why he’s not going to make any objections because of his

friendship with the prosecutors and apparently a trust in the prosecutors and

that they would share it with him. I’m -- it -- it was clearly -- I mean, at the

-- I think the -- the rules of practice, the ABA standards, the -- are clear that

closing arguments are a very important part of -- of the case, and it’s not the

time for a defense attorney to give up on protecting his client from improper

actions by the prosecution.

And basically, what he’s telling the jury -- you know, if they go out

of bounds and say something they shouldn’t do, I’m just going to trust you

to understand that and I’m not going to object. And I think that’s what he

did. He didn’t object when he should have. So I found that to be abandoning

his client and telling the jury he was abandoning his client.

Dawson opined that trial counsel’s abandonment of the Petitioner and failure to

object to the State’s closing argument waived any errors on appeal. Dawson also said there

was no “strategy” involved in trial counsel’s failure to object and noted that trial counsel

called the State’s first argument “wonderful.” He said trial counsel also told the jury of the

importance of closing arguments. Dawson noted that trial counsel incorrectly told the jury

that, regardless of what the State said in closing arguments, he (defense counsel) had no

recourse except to listen. Dawson said that the judge could have fashioned a fair remedy

if the State “opens new issues” or “the defense had not had a chance to reply.” Dawson

reviewed the limiting instruction provided to the jury by the judge regarding Exhibits 73

and 102. Dawson said that the rebuttal closing argument was an invitation to the jury to

look at the contents of the note, which was contrary to the limiting instructions provided

by the judge.

On cross-examination, Dawson agreed that closing arguments are to be reviewed on

a “case-by-case” basis and that attorneys are “put on the spot” to synthesize a vast amount

of information. He did not consult trial counsel on his choice of words during closing. He

agreed that the State’s first closing was “vastly” shorter than the rebuttal closing. He said

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this was the “first clue” to determine if the rebuttal closing had gone beyond the first closing

and defense closing. He noted that trial counsel’s closing argument was 30 or 31 pages of

transcript, while the State’s rebuttal closing was 35 pages. Although Dawson was not

retained to review trial counsel’s trial performance, Dawson did not understand why trial

counsel did not stipulate that the note was found in the truck and that the victim wrote it.

Dawson reasoned that this would have prevented the note from being admitted into

evidence. He acknowledged that jurors are given instructions to follow the rules of the

court, including those regarding closing arguments, and that what an attorney says is not

evidence. He did not talk with the State’s attorneys to determine their mindset during the

closing statement.

Dawson emphasized his conclusion that the State’s repeated reference to

Thanksgiving in their first closing statement was not to recall a date or memory but rather

to appeal to the emotions of the jury. He agreed that the State argued facts and scientific

evidence at the same time. He denied that his opinion was a commentary on the State’s

“style.” He agreed that judging an appeal to emotion is a subjective inquiry; however, he

explained that the prosecutors mentioned Thanksgiving in ways “designed to reach the

heart of the jurors” and for them to decide the guilt or innocence of the Petitioner based on

emotions associated with having their Thanksgiving disrupted. He agreed that the State’s

comment about a silver truck and the Dodds’ may have been an oversight, rather than

intentional. Although he considered it “excusable,” it was still “improper.” He also agreed

that attorney misconduct may not result in a verdict being overturned. He said, “too few

verdicts are overturned,” and he admitted that he was slightly biased as a defense attorney.

He confirmed his view that the State’s first closing argument was “close to the line” but

not misconduct. He agreed that trial counsel “did a fairly detailed closing with the proof

in this case.” He reviewed the inconsistencies in the testimony, which demonstrated that

trial counsel was “paying attention” during the trial.

The Petitioner testified that he graduated from high school and attended courses at

Middle Tennessee State University. He joined the military and was active in the Army for

twenty-six years. At the time of his arrest in this case, he had no experience with the

criminal justice system. He met trial counsel at the jail a day or two after the offense and

described him as “a blessing.” He said trial counsel visited him multiple times in jail and

answered his questions. He said he had given trial counsel information about his case to

investigate, and trial counsel told him he would investigate. The Petitioner later found out

that it was “lip service” and that trial counsel did not follow through. He said his parents

had hired a private investigator; however, he had only spoken with the investigator on the

phone, without a personal meeting. He said trial counsel would tell him the investigator

was working on something, but he never saw any written documentation. He said trial

counsel told him that trial counsel did not reduce things to writing because the State may

obtain access to it. He recalled that trial counsel told him the investigator had interviewed

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someone, but nothing else was reported to him. He said that trial counsel did not inform

him who was interviewed or the outcome of the investigation. He provided the name

Dickie Jackson to trial counsel; however, trial counsel never explained why he was not

interviewed. He was initially satisfied with his trial counsel; however, he said that when

he wanted to discuss his case, trial counsel wanted to talk about Michelle Herbison.

There were times when the Petitioner expected trial counsel to visit him in jail, and

trial counsel did not appear. The Friday before the June 2011 trial, trial counsel informed

the Petitioner that he would be coming to Waverly to prepare for trial, but he never showed

up. His trial was initially set in August 2010. Before the August 2010 trial date, trial

counsel did not share any defense strategies with the Petitioner. Leading up to the August

2010 trial, trial counsel did not discuss with the Petitioner a continuance or a second mental

health evaluation. The continuance of the August 2010 trial came as a surprise to the

Petitioner. Between August 2010 and June 2011, there was no mental health evaluation,

and the Petitioner did not see any mental health officials. Leading up to the June 2011 trial

date, trial counsel did not discuss defense strategies with the Petitioner or provide a witness

list. The Petitioner identified the individual witnesses on the list he was aware of before

his June 2011 trial. The Petitioner said that trial counsel did not discuss any potential

conflicts of interest with the witnesses, nor did he sign a conflict of interest waiver.

At trial, the Petitioner waived his right to testify in open court. He said trial counsel

did not prepare him to testify at trial. The Petitioner stated that trial counsel requested an

answer from him a week before the trial regarding whether he planned to testify at trial.

The Petitioner said trial counsel did not explain any possible questions from the State, nor

did trial counsel provide any prospective questions. The Petitioner was surprised that trial

counsel requested a continuance of the June 2011 trial, as the jury was already seated and

sworn. The Petitioner recalled that trial counsel requested a continuance and permission

to withdraw from the case. The Petitioner said this was on his mind throughout the case.

He was familiar with Jacqueline Peek; however, he did not attend any deposition. Based

on the information trial counsel gave him, the Petitioner believed the judge had ordered a

deposition. Trial counsel discussed Peek’s anticipated testimony with the Petitioner before

trial; however, the Petitioner did not recall the specifics.

The Petitioner has worn hearing aids since 2009, and he informed trial counsel that

he required hearing assistance. In June 2011, he did not have hearing aids. He was

provided with the hearing aids he wore at the instant hearing three years ago. He agreed

that he had to alert the court to his inability to hear, and that it was frustrating to sit through

the trial without his hearing aids. The Petitioner’s medical records, which reflected the

condition of his hearing, were admitted as an exhibit. He said his family could have paid

for an expert to testify at trial if one was needed.

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He agreed that on August 18, trial counsel wrote to him about a 30-day mental health

evaluation for a patient; however, no such evaluation occurred. He agreed that he had a

prior mental health evaluation in December 2009 or January 2010. Trial counsel wrote the

Petitioner several other letters dated August 26, 2010, September 9, 2010, November 2,

2010, April 12, 2011, each indicating trial counsel had some development in the

Petitioner’s case. However, the Petitioner emphasized that trial counsel’s words and his

actions were two different things. He said trial counsel also wrote him a letter stating that

talking with his brother-in-law was a waste of time, which caused the Petitioner to doubt

trial counsel because he trusted his brother-in-law.

On cross-examination, the Petitioner agreed that trial counsel represented him since

his arrest in this case. He met with trial counsel at his office while he was on bond, denied

that trial counsel met with him regularly while he was in jail, and agreed that trial counsel

met with him numerous times. He reiterated that trial counsel would say that he would do

things in his case that would never materialize. When asked if he recalled the morning of

trial, the Petitioner said yes, and referred to the June 2011 trial. In response to hearing the

transcript being read, the Petitioner explained that he did not have the assistance of his

hearing aids at the June 2011 trial and might not have understood clearly what was being

said. He denied that trial counsel asked him to request a continuance, and he insisted on

proceeding to trial that day. He insisted that he told trial counsel he could not hear. When

reminded that he did not ask anyone to repeat something or advise anyone that he could

not understand in court, the Petitioner said he did not do so at that time because he had told

trial counsel. He said he had hearing problems during his motion to suppress, and the court

accommodated him after several witnesses and voir dire. He insisted he told trial counsel

he could not hear numerous times, and trial counsel did nothing in response.

The Petitioner agreed he received a letter from trial counsel regarding a deposition.

He did not receive a letter from trial counsel indicating that there would not be a deposition

because the witness had invoked her right to counsel. From his understanding of the letter,

the witness’s lawyer “blocked the deposition.” Based on his conversations with Peek after

the trial, he believed there was a deposition. He agreed that he had participated in a court-

ordered competency evaluation and was deemed competent to stand trial. He said trial

counsel discussed a mental health defense, but the Petitioner refused to agree with it. He

clarified that trial counsel had discussed testifying at trial with him; however, trial counsel

never reviewed the specific questions that would be asked during the trial. He agreed trial

counsel discussed the legal ramifications of testifying at trial.

Upon questioning by the court, the Petitioner said he was issued hearing aids by the

Army during his retirement physical in 2009. When he was arrested, he was not permitted

to have his hearing aids in jail. He felt pressured by trial counsel to decide whether to

testify, and he believed trial counsel tried to discourage him from testifying. The Petitioner

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was dissatisfied with trial counsel because when the State concluded its case, trial counsel

leaned over and said, “they haven’t presented any evidence to convict you of anything. I’m

not going to present a defense.” The Petitioner was “shocked and surprised” because his

family paid trial counsel “a lot” of money to represent him properly.

Dr. Lawrence Richard Jackson, the county medical examiner, testified that he

visited the crime scene on November 26, 2009, nearly three hours after law enforcement

personnel arrived. He agreed he had no formal training as a medical examiner; however,

he was permitted to testify as an expert based on his experience in the field. Generally, as

the county medical examiner, he opined that the body temperature of a victim was

significant; however, he did not recall if he obtained the victim’s body temperature in this

case, and he did not prepare any reports. He could not recall if he brought a thermometer

to the scene and stated that he did not generally carry a thermometer with him at that time

in his career. He said a victim’s body temperature was one factor in determining the time

of death. He did not observe any defensive wounds on the victim in this case. He agreed

that a lack of defensive wounds could indicate that the person was asleep, unconscious, or

familiar with the attacker and did not feel the need to defend themselves. He stated that

Rachel Lucas was present in the home when he arrived, that he heard her voice, and that

he observed law enforcement attempting to “eavesdrop” on a telephone conversation she

was having. He also thought Rachel Lucas’s behavior was “a little strange” because she

was not hysterical and upset at the scene.

On cross-examination, Dr. Jackson said other law enforcement and medical

personnel were on the scene before his arrival, and it was possible that they could have

moved the victim’s body. He did not have any personal knowledge of whether the victim’s

body had been moved. He said if he had noticed something on the scene, he would have

brought it to the attention of the investigators. He did not do an expert report to determine

the time of death in this case. He said the manner of death was “obvious” gunshot wounds

to the chest. Although he was asked about defensive wounds on direct examination, he

agreed he did not conduct the autopsy, and he did not know if there was anything else on

the victim’s body. He maintained there were no apparent defensive wounds on the victim.

Regarding Rachel Lucas’s behavior, he agreed that people handle stressful situations

differently, and he was not present during the entirety of her conversation with law

enforcement. He had not heard the 911 call in this case.

Dr. Eric Warren, the co-owner and consultant for SEP Forensic Consultants,

testified as an expert in crime scene reconstruction and firearm and tool marking. He was

hired by the Petitioner’s family and compensated for his involvement in this case. He said

his compensation did not influence his conclusions in this case. He prepared a report,

which was admitted as an exhibit. His report reflected that trial counsel did not call any

expert witnesses at trial; therefore, the evidence presented at trial was one-sided. Based on

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his review of the evidence, TBI Agent Brodhag was able to match four shot shells to the

shotgun that was found in the Petitioner’s truck. Although Dr. Warren implied that Agent

Brodhag correctly analyzed the shells, Dr. Warren stated that the “significance of [Agent

Brodhag’s analysis] was not communicated at trial because of a lack of that defense

expert.” Although the shot shells “might match that shotgun” Dr. Warren said that there

was no direct or scientific evidence of when and where that shotgun fired the shot shells.

He said the characteristics of the shot shells found in this case were “the two most common

sized pellets.” This was not brought out at trial, which was significant because “these are

the types of shot shells that are typically purchased for” sporting types of activities.

Dr. Warren reviewed photographs of the victim in this case and observed that he

had been shot twice. He said there were 34 pellets recovered from the entire case, which

was not enough to amount to one full gunshot. Although he expected to recover between

440 and 550 pellets from the two shots, he said it was not uncommon not to recover all of

them. He said it was uncommon to receive such a small percentage in this case. He

explained the pellets may not have been recovered because they were “missed, overlooked,

or a decision was made at some point that they weren’t . . . important to actually test.” He

agreed that a possible explanation for the low percentage of pellets was that one of the two

gunshots occurred in a different location. He said that for the two gunshots in this case,

there should have been six wads recovered; however, there were only four wads examined

by Agent Brodhag.

Dr. Warren was shown photographs from the crime scene, depicting two silver cans,

a water glass, a tumbler, and a sconce. He agreed those surfaces were amenable to

fingerprint and DNA collection. When asked about the statement made by the State in

rebuttal closing argument that the victim was writing a note when he was shot, Dr. Warren

said there was no indication any scientific testing was done that would confirm the

statement as true. In discussing the trajectories described by the medical examiner at trial,

Dr. Warren said that if the victim were shot while he was writing on a table, there would

be a downward trajectory. He said investigators should have measured the couch, the table

in the room, and the trajectory of the pellets to determine the position of the victim’s body.

Dr. Warren was also critical of “a blue colored pencil” he observed in the crime scene

photographs. He said at the time of the Petitioner’s case, field agents were supplied with

their own trajectory kits, and the use of a pencil was not appropriate to determine trajectory.

Dr. Warren said the use of the pencil also risked contamination of the scene with

another person’s DNA. He explained how to properly measure the trajectory of the bullet

path given the position of the body and how to recreate the crime scene. He said that if the

trajectory and reconstruction had been done correctly, investigators would be able to go

back and position the body, and from that, determine what position the victim was in when

the offense happened. He said there were crime scene preservation issues, including an

- 12 -

ink pen that was not tested, eleven people “in and out of the scene that were law

enforcement,” and Rachel Lucas was allowed to remain on the scene with unrestricted

access to the home. In addition, photographs of Marker 27 showed that clothing had been

displaced from its original position during the initial walk-through of the Lucas home.

On cross-examination, Dr. Warren agreed that it was discussed at trial that the

shotgun recovered from the Petitioner’s truck could not be matched with the pellets at the

scene. He clarified that he did not dispute Agent Brodhag’s ballistic findings in this case.

He did not know if an officer was present with Rachel Lucas at the home, and he

acknowledged that he was speculating about tampering with the scene. He agreed that he

had no experience as a field agent.

Agent Joe Craig was recalled and testified on behalf of the State. Upon arrival, he

observed that the Lucas home was a very large, split-level, ranch-style home. He said only

law enforcement was permitted to enter the scene. Rachel Lucas was allowed to remain,

and she was separated from the others. There were officers from the sheriff’s department

or the New Johnsonville Police Department who stayed with her. Agent Craig stated that

after discussing the matter with another officer, he determined that the sconce that appeared

to have been knocked off a wall was not directly involved in this case. There also did not

appear to have been a scuffle in the area where the sconce was found. Agent Craig also

did not recover the pen found on the floor by the table where the victim was found, and he

could not recall why the pen was not recovered or collected. He agreed that the doorknobs

were not fingerprinted or collected. Based on the time the investigators arrived, Agent

Craig opined that the doorknobs had been touched by six or more people, which reduced

the likelihood of developing touch DNA. Agent Craig reiterated that upon his arrival at

the scene, he had a lead or a suspect, and the Petitioner was already in custody at another

location.

Agent Craig collected various other items of evidence at the crime scene, which did

not yield any scientific results. He recalled the medical examiner being present at the

scene; however, he did not request him to perform a medical examination. He did not have

a trajectory kit on the scene with him in 2009. He agreed the blue pencil shown near the

couch was an attempt to show an entrance point of the shot wadding into the couch;

however, he said he had no way of measuring the trajectory of the shotgun. He explained

he would not request a trajectory on a shotgun based on his knowledge and experience

working with firearms. He was aware of a deposition scheduled for Jacqueline Peek and

contacted her at her workplace. He said she refused to provide a statement. He did not

know if a deposition with Peek occurred. He denied being present at the Hickman County

jail with Peek for a deposition.

- 13 -

On cross-examination, Agent Craig said he did not supervise Rachel Lucas while at

the crime scene. He agreed that he “played a role” in deciding not to collect the sconce.

He agreed that the sconce, pen, and drink containers were not collected as evidence. He

did not pursue any suspects other than the Petitioner; however, there was no evidence to

contradict the Petitioner’s guilt.

Trial counsel testified that he had been practicing law for over forty years with an

emphasis on criminal law. He represented individuals in state and federal courts, as well

as at the trial and appellate levels. He had tried over three hundred cases, with twenty-five

homicide cases. He had experience handling a State’s expert as well as hiring a defense

expert. He was retained by the Petitioner a few days after his arrest and met with the

Petitioner’s family. He learned through the Petitioner’s brother early on in this case that

the Petitioner may have had a mental health defense stemming from his military

background. He reviewed some military health records; however, the Petitioner told him

that it would not be a defense. He represented the Petitioner at trial, and another attorney

represented him on appeal. Trial counsel hired an investigator to assist him in this case.

He said the investigator did not create a written report of his findings because he did not

“have to give reports that don’t exist.” He met with the Petitioner’s family several times

at their home. He met with the Petitioner at the jail while the Petitioner was in custody and

at his office when the Petitioner was on bond. He agreed that he had sent the Petitioner

written correspondence to update him on the case.

Trial counsel discussed the facts of the case with the Petitioner, provided him with

discovery, and reviewed the material with the Petitioner. Trial counsel said the Petitioner

appeared to understand what he said, did not have a language barrier, and did not claim to

need hearing amplifications. Trial counsel stated that the Petitioner was very engaged in

all conversations he had with him before trial. Compared to his other clients with

intellectual disabilities, the Petitioner was “very astute” and “contributed greatly” to what

they were trying to accomplish. Trial counsel said he discussed multiple defenses with the

Petitioner. First, trial counsel discussed the defense theory that the Petitioner was not

present; however, to assert this defense, trial counsel needed the Petitioner to testify at trial.

Trial counsel’s strategy changed “based on the statements [the Petitioner] made to [him]

that put [trial counsel] in a position where [trial counsel] could not ethically call [the

Petitioner] as a witness.” Trial counsel explained, “It happened in Nashville when he

visited me at my office and he told me that he had killed [the victim].” Trial counsel said

the Petitioner “described it in great detail[,]” and recalled the Petitioner said:

[The Petitioner] shot [the victim] in the chest and that [the victim] grunted

and then [the Petitioner] shot him again. And [the Petitioner] told me, “and

I shot him in the same hole that I shot him the first time.” So [the Petitioner]

admitted killing him, so I knew that he couldn’t testify.

- 14 -

When asked if the Petitioner mentioned anything about making the victim write

anything while he was there, trial counsel said,

I think he -- I think he talked about writing that note, but I think that’s when

I realized that he couldn’t testify. I had concerns even before then as to

whether or not he might be an effective witness because of -- in discussing

the details, I’m -- I wasn’t convinced that maybe somebody else might have

been killed had they walked in.

Based on the Petitioner’s statements, trial counsel said that he could not ethically

call the Petitioner as a witness to testify. Trial counsel said he could not suborn perjury,

pivoted to another strategy, and discussed a mental health defense with the Petitioner.

Although it was not a total defense, trial counsel opined that it would have supported a

lesser-included offense. Trial counsel said the Petitioner “shut [him] down completely”

and refused to cooperate with a mental health defense. The Petitioner told trial counsel,

“[T]hat’s not a defense. There’s nothing wrong with me. I wasn’t there.” Trial counsel

said the Petitioner was deemed competent to stand trial, and any mental health evaluation

would have been based on diminished capacity. Trial counsel maintained, however, that

the defense remained “they couldn’t prove that [the Petitioner] was there.” Trial counsel

further insisted that their strategy was to make the State prove their case and to argue that

they had not met their burden of proof.

On the morning of the trial, trial counsel said that the Petitioner was in court. Trial

counsel explained that he had asked for an in-chambers meeting with the State and the trial

judge to request a continuance based on the Petitioner’s request to use the diminished

capacity defense. Trial counsel confirmed with the Petitioner’s brother that the Petitioner

wanted to assert diminished capacity. Trial counsel moved for a continuance because he

believed the Petitioner had a right to assert that defense and for his lawyer to prepare for

that defense. Trial counsel said he was not prepared to assert diminished capacity on the

morning of trial. He explained that he did not prepare that defense because the Petitioner

initially insisted they not use it. Trial counsel had obtained an “informal opinion” or an

ethical opinion as to what a lawyer should do when there is a potential diminished capacity

defense and the client will not let him use it. Trial counsel was advised that, “it’s [the

client’s] call, it’s his case.” Had trial counsel sent the Petitioner for a mental health

evaluation, trial counsel did not believe the Petitioner would have complied. Trial counsel

was prepared to defend the case by requiring the State to meet its burden, cross-examining

witnesses, and attacking their evidence. Trial counsel also moved to withdraw from

representing the Petitioner on the morning of trial and reasoned that the Petitioner had a

right to present his preferred defense. Trial counsel recalled that the trial judge excused

the jury following voir dire and explained to the Petitioner what had occurred in chambers.

- 15 -

Trial counsel could not recall whether he spoke with the Petitioner following the in-

chambers discussion. The State refreshed his recollection with an excerpt from the trial

transcript, and trial counsel stated that he believed the Petitioner withdrew his desire to

proceed with a mental health defense and wanted to proceed with the trial. Trial counsel

recalled that the Petitioner’s father pressed the diminished capacity defense, and not the

Petitioner.

Before trial, trial counsel filed and litigated a motion to suppress. In response to the

State’s alibi notice, trial counsel filed a witness list with fifteen witnesses. As part of his

strategy, trial counsel stated that he had subpoenaed these witnesses “in case we needed

them.” Trial counsel said that before trial, the Petitioner did not indicate that he had a

hearing problem. The first time trial counsel was informed that the Petitioner had difficulty

hearing was during the trial. When the Petitioner said he could not hear, the trial judge

stopped the proceeding, addressed the Petitioner, and ensured the courtroom was set up

with “amplification devices” so the Petitioner could hear.

Trial counsel explained his approach to a trial was to “always set it up for the closing

argument.” He would work “backwards” and determine how he could conduct voir dire

and cross-examination that would produce his closing argument. He acknowledged that at

times it would be necessary to “tweak” the closing. Trial counsel multitasked during the

trial and provided the Petitioner with a pen and paper to write notes, allowing him to

communicate with the court during the proceedings. Trial counsel stated that the Petitioner

was engaged and communicated with him during trial.

Trial counsel said that he objected to the note recovered from the Petitioner’s truck

based on hearsay during a jury out-of-court hearing. The trial court agreed that the note

was hearsay. Trial counsel requested that the note be redacted. He agreed that the State

called a handwriting expert at trial. He did not employ a handwriting expert because he

“saw no value in that.” He did not want to create a “battle of the experts” when he knew

hiring his own handwriting expert would have “validated” the State’s expert. He said he

made a tactical decision not to hire a handwriting expert. Trial counsel was familiar with

the Daubert standard for expert testimony, and he agreed that he would not have offered

an expert to testify at the Petitioner’s trial to “a possibility that jurors would absorb . . . the

contents of a handwritten note when that wasn’t conclusively scientifically proven.”

Trial counsel did not consider it necessary to interview Dr. Jackson, the Humphreys

County Medical Examiner. He read the medical examiner’s report, which was provided

by Dr. Deering, who performed the autopsy of the victim and testified at trial. Trial counsel

did not believe Dr. Jackson “could add anything” to the Petitioner’s case. Wayne Ellison

and John Ethridge escorted trial counsel to the crime scene location without the presence

- 16 -

of the district attorney. Trial counsel said he was able to ask them any questions during

that time. Trial counsel agreed that he received the TBI Ballistics report in the middle of

the trial. Trial counsel did not receive the TBI Firearms Ballistic report prepared by the

examiner. Trial counsel did not employ a firearms expert because he “knew exactly what

the answer was going to be when I asked it.” Trial counsel said he did not need to hire an

expert to say that the expert could not testify beyond a reasonable doubt that the pellets

taken from the victim’s body were fired from the gun, which is what Special Agent

Brodhag testified to. He also did not need an expert to testify regarding trajectory. Trial

counsel said he did not know who was shooting the gun and focused on his defense that

the Petitioner was not there. Trial counsel said the trajectory did not have “any value.”

Trial counsel had experience comparing prior firearms and with the State’s firearm experts.

Trial counsel was confident he could elicit the information he needed for his defense. He

did not believe he needed a “crime scene expert” because he was unsure what that meant.

He went to the crime scene, reviewed it, and spoke with various individuals. He said he

did not believe he needed a crime scene expert.

Trial counsel said he would not have requested testing of the items in the

photographs, including the sconce, a pen, a lighter outside, and a cigarette. Trial counsel

said he was concerned the results would have been inculpatory, and he did not want to

know the answer. He did not lodge a Ferguson objection because he did not “see any

reason” to do so.

Trial counsel conducted a Momon hearing with the Petitioner at the trial, and the

Petitioner waived his right to testify. At the Momon hearing, the Petitioner was aided with

hearing amplification and, according to trial counsel, was able to hear and understand the

proceeding. Trial counsel stated that the Petitioner did not inform him that he could not

hear. Trial counsel explained his statement that he was not going to object during the

State’s closing as he had never seen any success in objecting to the State’s argument.

However, he stated that if the closing “got way out of hand,” he would object to it. In this

case, trial counsel’s closing was “fairly lengthy,” “very detailed,” and highlighted the

inconsistencies in the testimony of the State witnesses.

Trial counsel recalled Jacqueline Peek and stated the trial judge ordered a deposition

for her. He stated that the deposition did not occur because he was not present at it. He

reasoned it would not have happened without his presence, and he was not there. Trial

counsel was shown a 2011 letter he sent to the Petitioner, noting that, “The criminal

deposition of Jackie is set for March 28, 2011. We will talk about that.” Trial counsel was

shown a second letter from March 23, 2011, that he had sent to the Petitioner. The March

2011 letter stated, in relevant part, that “We were right, her lawyer has intervened, so there

will be no deposition. You and I will use this time for case prep.” Based on the two letters,

which were admitted as exhibits, trial counsel reaffirmed that there was no deposition of

- 17 -

Jacqueline Peek. Trial counsel said the steps he took in preparation for the trial in this case

were “extensive.” Trial counsel said he met with the Petitioner a sufficient number of times

to prepare for the case. The only regret trial counsel had in his representation of the

Petitioner was not “exploring more deeply [the] medical records from the Army.” Trial

counsel lamented that he should have used the Petitioner’s brother, who had some influence

over the Petitioner, to convince the Petitioner to utilize them.

On cross-examination, trial counsel recalled the cross-examination of John

Ethridge, the district attorney’s investigator, at trial. Upon being shown Exhibit 4A, trial

counsel agreed that the photograph was not admitted at trial. Trial counsel agreed the

photograph showed “maybe two cans and a glass.” Trial counsel agreed he did not know

whose DNA or fingerprints were on the items. Trial counsel agreed he did not file any

motions pertaining to the items in the photographs, nor did he seek a jury instruction from

the court to advise the jury that the State did not collect the evidence. Trial counsel agreed

that he had asked John Ethridge questions about riding in the truck without air conditioning,

and trial counsel did not have an intended purpose for the questioning. Trial counsel agreed

that this was inconsistent with his prior direct testimony, in which he stated that he limited

his questions to elicit an intended response. Letters trial counsel had written to the

Petitioner were admitted as a collective exhibit. Trial counsel agreed the Petitioner’s case

had been set for trial in August 2010 and June 2011. Trial counsel did not remember the

reason or who requested the first continuance. He agreed it may have been for a mental

health evaluation. Trial counsel recalled that the trial judge signed an order for a mental

health evaluation on August 12, 2010. Trial counsel agreed that the reason for the

continuance was for a mental health evaluation; however, the Petitioner was not evaluated.

He agreed it was trial counsel’s responsibility to ensure the Petitioner was evaluated and

that the evaluation occurred.

Trial counsel explained his familiarity with the witnesses on the witness list. He

said he knew Michelle Herbison and denied purchasing land from her during the pendency

of the case. Upon being shown a land document indicating that he had, trial counsel

clarified that Herbison had given him the land to secure a fee for representing her in

connection with a trust. Once the legal matter was resolved, trial counsel deeded the

property back to Herbison. He did not tell the Petitioner about his involvement with the

Herbison land transaction. He agreed he represented Frank Murrell in a criminal federal

matter during the Petitioner’s case. Trial counsel agreed that Murrell entered a guilty plea

on the Friday before the Petitioner’s trial. Trial counsel did not recall if he told the

Petitioner about his representation of Murrell. Trial counsel explained Murrell did not

know anything about the Petitioner’s case other than he had been a gardener or a landscaper

at the victim’s property. Trial counsel said Murrell was of “no value” and on the witness

list “just in case.”

- 18 -

Trial counsel stated that he may have been in another court on the Friday before the

Petitioner’s trial, which was a regular part of his practice. Upon being shown another

document, trial counsel agreed that he had told another judge he was preparing for the

Petitioner’s murder trial and was unable to appear in that judge’s court on June 17, 2011.

Trial counsel denied being in federal court with Murrell at that time and affirmed that he

was with the Petitioner at the jail. Trial counsel affirmed that he had an order from the

court to do the mental health evaluation in August 2010; however, he did not raise the

diminished capacity defense until June 2011. Trial counsel explained that at this point, he

was advised he could use the defense. When asked to clarify what happened between his

on-the-record remarks explaining what occurred in chambers and the Petitioner changing

his mind about proceeding with the diminished capacity, trial counsel said, “Well, that’s

apparently, that’s what happened based on that transcript. I don’t have an independent

recollection of that.” Trial counsel agreed that the transcript indicated the Petitioner did

not want a diminished capacity defense, while trial counsel simultaneously requested a

continuance or a motion to withdraw to explore the defense. Trial counsel reiterated that

“at his father’s request and I mean, [the Petitioner] wanted to go that route that morning

but apparently changed his mind. That’s my recollection.”

When asked why he continued to “see an issue” after the Petitioner changed his

mind, trial counsel said he was concerned about diminished capacity. Pressed further as to

why he did not follow up on the order for the mental health evaluation, trial counsel

explained that the Petitioner told him he could not use the defense, and “the Board” later

advised him that it was the Petitioner’s call. Trial counsel agreed that the Petitioner was in

custody during this time and could not have obtained the evaluation on his own. Trial

counsel could not recall whether he told the Petitioner privately that he was seeking a

continuance before the Petitioner heard it in open court on the morning of the June 2011

trial. Trial counsel agreed that after his motion to continue was denied, he moved to

withdraw, which was a spur-of-the-moment decision.

Trial counsel agreed that he did not file any pretrial motions concerning the note

and that the limiting instruction was for the jurors to analyze the handwriting, not the

content of the note. He agreed that Rachel Lucas had previously testified that the note was

in the victim’s handwriting. Trial counsel implied he knew whose handwriting was on the

note because the Petitioner told him that “he made [the victim] write it and he killed him[.]”

Trial counsel could not explain why he did not stipulate that it was the victim’s handwriting

instead of letting the jurors see the note. Trial counsel agreed that he told the court at trial

that he had someone helping him with guns; however, at the post-conviction hearing, he

could not recall who that person was. He agreed that the person was not an expert, had not

prepared a report, was not present at trial, and had not reviewed the TBI report. He agreed

that during the Petitioner’s trial, he had “a lot” of other cases he needed to work on. Trial

counsel did not recall if he had requested Agent Craig’s notes, nor did he have a reason for

- 19 -

not requesting them. Trial counsel agreed that he did not know who was interviewed by

investigators and was unable to impeach those witnesses. He was also unable to learn

about the investigator’s decision-making process.

Upon being shown trial Exhibit 94, trial counsel agreed that he entered that exhibit

at trial. Trial counsel agreed that he offered evidence that the Petitioner was on drugs in

the days leading up to the offense, which caused Rachel Lucas to be afraid of the Petitioner.

Trial counsel did not recall telling the jury that he was friends with the district attorney and

that he would not be objecting. He said he would not be surprised if the transcript reflected

those words. Trial counsel maintained that despite previously telling the jury he was not

going to object, he would have objected if there was something he thought he should have

objected to.

During the redirect examination, trial counsel stated that the Petitioner was not

cooperating with the 2010 order for a mental health evaluation. He agreed that one reason

the evaluation did not occur was that the Petitioner did not want it to happen. He clarified

that he did not move in limine to exclude the note because the State had already filed a

motion in limine for the same. He had no reason to believe that Agent Craig’s notes

differed from his reports. He may have offered negative evidence about the Petitioner “in

light of more favorable evidence that was also being admitted at the time.” Upon recross-

examination, trial counsel did not know what evidence would have been more favorable.

He was not “as concerned” with the report at trial as post-conviction counsel was at the

hearing and disagreed with post-conviction counsel’s characterization of the report. Upon

questioning by the post-conviction court regarding the report, including both favorable and

unfavorable evidence about the Petitioner, trial counsel acknowledged that he had reviewed

the report before admitting it at trial and believed it benefited the Petitioner more than it

harmed him.

The post-conviction court denied the petition by written order on October 24, 2023,

and the Petitioner timely appealed. This case is now properly before this court for review.

ANALYSIS

I. The Petitioner argues that he received ineffective assistance of counsel based on

the following nine grounds: (1) trial counsel’s failure to lodge a pretrial objection to the

note found in the Petitioner’s truck and the post-conviction court’s exclusion of juror

testimony under Rule 606(b); (2) trial counsel’s failure to object during the State’s closing

argument; (3) trial counsel’s failure to prepare for trial; (4) trial counsel’s failure to

investigate, call, or cross-examine key witnesses; (5) trial counsel’s failure to request a

Ferguson instruction; (6) trial counsel’s failure to present a shooting incident reconstruction

and a firearms expert; (7) trial counsel’s failure to ensure the Petitioner could hear during

- 20 -

trial; (8) trial counsel’s failure to secure the presence of the Petitioner and Jacqueline Peek

for the court ordered deposition; and (9) trial counsel providing the jury with a report that

contained inflammatory information about the Petitioner.4 We will address each issue in

turn.

Upon review of post-conviction claims, this court applies the following well-

established legal framework. Post-conviction relief is only warranted when a petitioner

establishes that his or her conviction or sentence is void or voidable because of an

abridgement of a constitutional right. Tenn. Code Ann. § 40-30-103. A post-conviction

petitioner has the burden of proving the factual allegations by clear and convincing

evidence. Id. § 40-30-110(f); see Tenn. Sup. Ct. R. 28, § 8(D)(1); Nesbit v. State, 452

S.W.3d 779, 786 (Tenn. 2014). Evidence is considered clear and convincing when there

is no serious or substantial doubt about the accuracy of the conclusions drawn from it. Lane

v. State, 316 S.W.3d 555, 562 (Tenn. 2010); Grindstaff v. State, 297 S.W.3d 208, 216

(Tenn. 2009); Hicks v. State, 983 S.W.2d 240, 245 (Tenn. Crim. App. 1998).

A claim for post-conviction relief based on alleged ineffective assistance of counsel

presents mixed questions of law and fact. Mobley v. State, 397 S.W.3d 70, 80 (Tenn. 2013)

(citing Calvert v. State, 342 S.W.3d 477, 485 (Tenn. 2011)). A post-conviction court’s

findings of fact are conclusive on appeal unless the evidence in the record preponderates

against them. Calvert, 342 S.W.3d at 485 (citing Grindstaff, 297 S.W.3d at 216; State v.

Burns, 6 S.W.3d 453, 461 (Tenn. 1999)). “Accordingly, we generally defer to a post-

conviction court’s findings with respect to witness credibility, the weight and value of

witness testimony, and the resolution of factual issues presented by the evidence.” Mobley,

397 S.W.3d at 80 (citing Momon v. State, 18 S.W.3d 152, 156 (Tenn. 1999)). However,

we review a post-conviction court’s application of the law to its factual findings de novo

without a presumption of correctness. Id. (citing Grindstaff, 297 S.W.3d at 216; Finch v.

State, 226 S.W.3d 307, 315 (Tenn. 2007); Vaughn v. State, 202 S.W.3d 106, 115 (Tenn.

2006)).

The right to effective assistance of counsel is protected by both the United States

Constitution and the Tennessee Constitution. U.S. Const. amend. VI; Tenn. Const. art. I,

§ 9. In order to prevail on an ineffective assistance of counsel claim, the petitioner must

establish that (1) his lawyer’s performance was deficient and (2) this deficient performance

prejudiced the defense. Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996); Strickland v.

Washington, 466 U.S. 668, 687 (1984). A petitioner successfully demonstrates deficient

performance when the petitioner establishes that his attorney’s conduct fell “below an

4

The Petitioner has also raised as an issue that the post-conviction court erred in giving “undue

weight to trial counsel’s inconsistent testimony.” We will address this issue as it becomes pertinent to each

of the grounds for relief.

- 21 -

objective standard of reasonableness under prevailing professional norms.” Goad, 938

S.W.2d at 369 (citing Strickland, 466 U.S. at 688; Baxter v. Rose, 523 S.W.2d 930, 936

(Tenn. 1975)). Prejudice arising therefrom is demonstrated once the petitioner establishes

“‘a reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different. A reasonable probability is a probability sufficient

to undermine confidence in the outcome.’” Id. at 370 (quoting Strickland, 466 U.S. at 694).

“Because a petitioner must establish both prongs of the test, a failure to prove either

deficiency or prejudice provides a sufficient basis to deny relief on the ineffective

assistance claim.” Id.

In assessing an attorney’s performance, we “must be highly deferential and should

indulge a strong presumption that counsel’s conduct falls within the wide range of

reasonable professional assistance.” Burns, 6 S.W.3d at 462 (citing Strickland, 466 U.S.

at 689). In addition, we must avoid the “distorting effects of hindsight” and must “judge

the reasonableness of counsel’s challenged conduct on the facts of the particular case,

viewed as of the time of counsel’s conduct.” Strickland, 466 U.S. at 689-90. “No particular

set of detailed rules for counsel’s conduct can satisfactorily take account of the variety of

circumstances faced by defense counsel or the range of legitimate decisions regarding how

best to represent a criminal defendant.” Id. at 688-89. “‘The fact that a particular strategy

or tactic failed or hurt the defense, does not, standing alone, establish unreasonable

representation.’” House v. State, 44 S.W.3d 508, 515 (Tenn. 2001) (quoting Goad, 938

S.W.2d at 369). Nevertheless, “‘deference to matters of strategy and tactical choices

applies only if the choices are informed ones based upon adequate preparation.’” Id. at

515 (quoting Goad, 938 S.W.2d at 369).

1. The Petitioner contends he received ineffective assistance of counsel based on

trial counsel’s failure to object pretrial to the note found in the Petitioner’s truck. The

Petitioner concedes that trial counsel objected to the note on hearsay grounds before it was

admitted as evidence during the trial. The Petitioner further acknowledges that the trial

court agreed that the note was hearsay. However, upon further argument by the State, the

trial court admitted the note with a limiting instruction for the jury to consider the

handwriting on the note as belonging to the victim and to consider where the note came

from, not the note’s content. The Petitioner insists that trial counsel was ineffective in

failing to continue to object to the note and the limiting instruction. The Petitioner relies

on Guideline 5.1(a) of the National Legal Aid and Defender Association, Performance

Guidelines for Criminal Defense Representation (1995) (NLADA), and asserts that trial

counsel’s “failure to file a pretrial motion to exclude or limit the note left [the Petitioner]

exposed to its harmful effects” and fell below the standard of reasonable professional

conduct. See NLADA Guideline 5.1(a) (providing that counsel should file motions when

- 22 -

there is a good faith belief the law may entitle the defendant to relief).5 Had trial counsel

filed a motion in limine to exclude the note before trial, the Petitioner submits trial counsel

could have presented expert testimony “as to the difficulty jurors would have had reading

the note for its handwriting but not its contents.” Based on the testimony of Dr. Linde

Christine Rush-Burkey, the forensic handwriting expert, the Petitioner further asserts that

the limiting instruction was not effective in preventing the jury from improperly

considering the information. In response, the State argues the trial court twice instructed

the jury not to consider the note for its content, and juries are presumed to follow the court’s

instructions.6 Accordingly, the Petitioner has failed to meet his burden under Strickland.

As an initial matter, the order of the post-conviction court combined this issue with

trial counsel’s failure to hire a handwriting expert. The court determined that trial counsel

was a credible witness and credited counsel’s statement that hiring an expert would have

been more detrimental to their defense. We acknowledge that the findings of the post-

conviction court conflated whether trial counsel should have hired an expert to determine

to whom the handwriting on the note belonged with whether trial counsel should have hired

an expert to testify at a pre-trial hearing that jurors could not disregard the content of the

note. Nevertheless, upon our review, we conclude that the Petitioner has failed to meet his

burden of proof. Indeed, as conceded by the Petitioner, the record shows the State filed a

motion in limine regarding the note, and there is no proof establishing that the trial court

would have conducted a hearing on this issue before trial. Additionally, trial counsel

objected to the note as hearsay, and the trial court agreed. The trial court admitted the note

after the State offered to “take out the content” or redact the note.7 The State advised the

court that the content of the note “was not at issue,” and they were offering the note only

5

The NLADA is a private, non-profit, national membership organization dedicated to assuring the

availability of high-quality legal services for poor people, advocates for quality defense representation, and

promulgates general standards related to the provision of counsel. Nat’l Legal Aid & Defender Ass’n.,

Performance Guidelines for Criminal Defense Representation (Black Letter), NLADA (last visited June 9,

2025), https://www.nlada.org/defender-standards/performance-guidelines/black-letter. Notably, Guideline

5.1(c) provides, in relevant part, that counsel should withdraw or decide not to file a motion only after

careful consideration, and only after determining whether the filing of a motion may be necessary to protect

the defendant’s rights against later claims of waiver or procedural default. Id.

6

The State also points out that before trial, trial counsel moved to suppress the contents of the

Petitioner’s truck, which included the note. We disagree with the State’s characterization of the motion to

suppress. Our review of the record from the motion to suppress hearing shows that Agent Craig testified

that there were two sets of “notes” involved in this case. A set of notes taken from the body of the Petitioner

at the time he was processed in jail, and the instant set of notes recovered from the Petitioner’s truck.

Although trial counsel asked Agent Craig whether the “notes” in the affidavit for the search warrant for the

Petitioner’s truck were the notes Agent Craig sent for analysis to determine who wrote them, Agent Craig

clarified that the notes referred to in the affidavit were taken from the body of the Petitioner. In other words,

at the time Agent Craig obtained the search warrant, he was unaware there were any notes in the truck. As

such, we will disregard this aspect of the State’s response.

7

The record does not reflect that the note was redacted.

- 23 -

to show that the Petitioner had been inside the victim’s home. Trial counsel agreed that

the content was hearsay, and if the State “took everything out but ‘Saul Beard’”, then

“that’s fine.” The court admitted the note, reasoning that the content of the note was

hearsay but that the jury could consider the note “for the fact that the writing on the note is

that of [the victim], as testified to.” The court also noted that trial counsel “brought out

that Saul Beard’s probably got a lot of paper around with his name on it. The fact it’s got

[the victim’s] name on it adds weight to the fact that the note came from the [victim’s]

household.”

After the court’s ruling limiting the admissibility of the note, the prosecutor said,

“because of the court’s ruling, the blown up one which was marked for identification

purposes, 102, -- I think given the court’s ruling that that shouldn’t -- I’m not moving that

as an exhibit.” Accordingly, contrary to the assertions in the Petitioner’s brief, Exhibit 73

was the only note admitted as an exhibit at trial. Exhibit 102, an enlargement of the note

was admitted for identification only and never published to the jury. Exhibit 73, as shown

below, is a handwritten note signed presumably by the victim with the following message

on one side of the note, “Dear Jackie, I apologize for telling Stuart the 1st time I brought

you to my house that I would have you.” On the other side of the note, the names “Saul L.

Beard” and “Phillip McCay” appear with another handwritten message.

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Before permitting the witness to testify regarding the note, the court provided the

jury with the following limiting instruction:

THE COURT: You’re fixing to see some evidence in this case that’s

been previously marked for identification and you’re going to see it here in

a minute. It’s going to be a piece of paper with some writing on it. You’re

- 24 -

not to consider the writing that is on this note for its content. There’s going

to be some testimony that the writing is [the victim’s]. You’re only to

consider the testimony and what is on this note for the fact that the writing

on the note is the handwriting of [the victim]. Can everybody do that? You

understand what I’m saying? You can’t consider what it says, just the fact

that it’s [the victim’s] writing.

The next morning, before allowing the jury to examine the note, the trial court

instructed the jury a second time:

THE COURT: Ladies and gentlemen, I’m going to pass the note that

was introduced yesterday to you and let you look at it. Again, remember

what the note says is not important, it’s the fact if you believe where it came

from and if you believe that the writing on it is [the victim’s] writing. The

way I stated it yesterday made it sound like it was but you heard testimony

the decision as to whether or not the writing on the note is the writing of [the

victim] is a decision you’ll have to make on your own. [Everyone]

understand that?

The transcript reflects all jurors answered in the affirmative.

The Petitioner claims that trial counsel should have continued to object to the note

and the limiting instruction based on the jurors’ inability to disregard its content. He also

asserts a better strategy would have been to stipulate that the note had the victim’s

handwriting on it. We disagree. First, while, in hindsight, a stipulation may have been a

better approach, there is no proof the State would have agreed to it. Next, the Petitioner

relies in part on the NLADA guidelines in support of this issue. Although some states have

incorporated the NLADA guidelines into their ethical and indigent defense representation

rules, Tennessee has yet to do so. Even if they applied, Guideline 5.1(a) suggests filing a

pretrial motion when there is a good faith belief the law may entitle the defendant to relief,

and for reasons more fully discussed below, there was no legal basis for counsel to file a

motion on grounds that the jury could not follow the court’s limiting instruction.

The Petitioner has likewise failed to demonstrate prejudice stemming from trial

counsel’s failure to file a pretrial motion to exclude the note, his failure to maintain his

objection to the note at trial, or his failure to object to the court’s limiting instruction for

consideration of the handwriting alone. While the content of the note very well may have

been prejudicial as the Petitioner insists, the purpose of a limiting instruction is to mitigate

the prejudicial effect of evidence and direct the jury how the evidence should be

considered. See Tenn. R. Evid. 105 (2019) (“the court upon request shall restrict the

evidence to its proper scope and instruct the jury accordingly”); State v. Jarman, 604

- 25 -

S.W.3d 24, 47-48 (Tenn. 2020) (noting that a defendant is entitled to a limiting instruction,

“restricting the evidence to its proper scope,” upon request)); State v. Jordan, 325 S.W.3d

1, 55 n.12 (Tenn. 2010); State v. Churchman, No. W2013-00175-CCA-R3-CD, 2014 WL

12651043, at *11 (Tenn. Crim. App. Apr. 28, 2014) (the jury was presumed to follow the

trial court’s instructions regarding prejudicial evidence offered not for the truth of the

matter asserted but for its effect on law enforcement’s investigation). The Petitioner does

not argue that the limiting instruction given in this case was improper. Nor does he

challenge the basis upon which the trial court admitted the note, i.e., to show the origin of

the note and that the Petitioner was inside the victim’s home.

Instead, the Petitioner relies on the testimony of an expert forensic document

examiner, who noted the difficulty a jury would have had in following the court’s limiting

instruction and that jurors would have either intentionally or unintentionally absorbed the

content of the note. However, the expert did not examine the note at issue. She also agreed

that “research on the ability for juries to disregard certain information or evidence is

somewhat mixed,” and there was no conclusive scientific proof that jurors would disregard

the information. She agreed that her opinion on this issue was not widely accepted by the

scientific community, that there was no research supporting her theory, and that it had not

been scientifically proven. Under these circumstances, her testimony is unreliable and

unpersuasive.

The Petitioner is, in effect, arguing that trial counsel should have anticipated that a

jury would be incapable of following the court’s limiting instructions. This, however, is

contrary to well-established law. Parker v. Randolph, 442 U.S. 62, 73 (1979) abrogated on

other grounds, Cruz v. New York, 481 U.S. 186 (1987) (“A crucial assumption underlying

[the criminal trial] system is that juries will follow the instructions given them by the trial

judge. Were this not so, it would be pointless for a trial court to instruct a jury, and even

more pointless for an appellate court to reverse a criminal conviction because the jury was

improperly instructed.”); State v. Schubert, No. E2019-01257-CCA-R3-CD, 2021 WL

867121, at *7 (Tenn. Crim. App. Mar. 9, 2021) (rejecting defendant’s challenge to

admission of hearsay based on jury’s inability to remove the truth of the matter asserted

from its consideration because a jury is generally presumed to follow a trial court’s

instructions). While there are situations where a limiting instruction cannot cure the

prejudicial effect of evidence, see e.g., Bruton v. United States, 391 U.S. 123, 135-37

(1968) (limiting instruction inadequate where one defendant’s confession implicates

another), Shepard v. United States, 290 U.S. 96, 104 (1933) (limiting instruction

inadequate where murder victim’s statement that defendant poisoned me was admitted for

nonhearsay purpose), the Petitioner has failed to establish that any of those situations apply

here. Under these circumstances, any objection on this ground would have been futile.

Accordingly, it was reasonable for trial counsel to believe that a jury instruction given by

- 26 -

the court, advising the jury to disregard the content of the note, would cure any risk posed

by the writing on it.

In a related issue, the Petitioner argues the post-conviction court erred in precluding

a juror from his trial from testifying at the post-conviction hearing that she purportedly

considered the inadmissible contents of the note. We disagree. Rule 606(b) of the

Tennessee Rules of Evidence bars juror testimony and affidavits concerning jury

deliberations but permits testimony and affidavits pertaining to extraneous prejudicial

information, outside influence, and agreed quotient verdicts. Tenn. R. Evid. 606(b).

Additionally, Rule 606(b) bars testimony as to “any matter or statement occurring during

the course of the jury’s deliberations or to the effect of anything upon any juror’s mind.”

Id. The Petitioner argues that the trial juror’s testimony would have revealed whether the

jury was exposed to external factors and compromised the integrity of the verdict. He

submits that the juror’s testimony meets the extraneous prejudice exception.

Extraneous prejudicial information has been broadly defined as information

“coming from without” or “in the form of either fact or opinion that was not admitted into

evidence but nevertheless bears on a fact at issue in the case.” State v. Adams, 405 S.W.3d

641, 650 (Tenn. 2013) (internal citations omitted). An improper outside influence is any

unauthorized “private communication, contact, or tampering directly or indirectly, with a

juror during a trial about the matter pending before the jury.” Id. at 650-51. As previously

discussed, the trial court admitted the note for the limited purpose of establishing its

origin/that the victim’s handwriting was on it, not for its content. The jury is presumed to

follow the court’s instructions. The note and the trial court’s instruction were provided to

the jury in open court and do not qualify as extraneous. Because a jury’s interpretation and

application of the court’s instructions fall squarely within its deliberative process, we

conclude that the post-conviction court properly excluded the juror’s testimony under Rule

606(b). Walsh v. State, 166 S.W.3d 641, 647 (Tenn. 2005)( “[A] juror is not permitted to

testify about anything occurring during deliberations, including the juror’s own internal

thoughts, motivations, or emotions.”); see also United States v. Rutherford, 371 F.3d 634,

640 (9th Cir. 2004) (concluding that Rule 606(b) bars consideration of jurors’ statements

that they ignored the court’s instructions and discussed a defendant’s failure to testify

during deliberations); United States v. Tines, 70 F.3d 891, 898 (6th Cir. 1995) (citing

Peveto v. Sears, Roebuck & Co., 807 F.2d 486, 488 (5th Cir. 1987) and Woods v. Bank of

New York, 806 F.2d 368, 373 (2d Cir.1986)). The Petitioner is not entitled to relief.

2. The Petitioner contends that he received ineffective assistance of counsel based

on trial counsel’s failure to object during the State’s closing argument. Specifically, the

Petitioner claims that trial counsel failed to object to various instances of prosecutorial

misconduct, including references to the inadmissible content of the note, emotional appeals

to the jury based on repeated references to Thanksgiving, improper witness vouching, and

- 27 -

the State’s rebuttal closing exceeding the scope of its first closing. In support of how trial

counsel’s actions prejudiced his defense, the Petitioner asserts that trial counsel abandoned

the Petitioner and relinquished his role as trial counsel based on trial counsel’s statements

during closing argument that he would not object during the State’s rebuttal closing, that

he was friends with the prosecutors, and that the State’s first closing argument was

“wonderful.” The Petitioner insists that trial counsel improperly bolstered the State’s

credibility. In response, the State contends that trial counsel’s decision not to object was

an informed choice based on adequate preparation, Goad, 938 S.W.2d at 370, and that, in

light of the evidence of the Petitioner’s guilt, no prejudice resulted from trial counsel’s

failure to object.

Closing arguments function “to sharpen and to clarify the issues that must be

resolved in a criminal case.” State v. Banks, 271 S.W.3d 90, 130 (Tenn. 2008) (citing

Herring v. New York, 422 U.S. 853, 862 (1975)). They also enable “the opposing lawyers

to present their theory of the case and to point out the strengths and weaknesses in the

evidence to the jury.” Id. (citing Christian v. State, 555 S.W.2d 863, 866 (Tenn. 1977)).

Because counsel in criminal cases “are expected to be zealous advocates,” they should be

afforded “great latitude in both the style and the substance of their arguments.” Id. at 130-

31.

However, prosecutors, “while permitted to advocate for the interests of the State

‘with thoroughness and vigor,’ . . . must not lose sight of their duty to seek justice

impartially and their obligation ‘to see to it that the defendant receives a fair trial.’” State

v. Hawkins, 519 S.W.3d 1, 47-48 (Tenn. 2017) (quoting Banks, 271 S.W.3d at 131).

“[P]rosecutors ‘may strike hard blows, . . . [but they are] not at liberty to strike foul ones.’”

Banks, 271 S.W.3d at 131 (quoting Berger v. United States, 295 U.S. 78, 88 (1935)).

“‘[I]mproper suggestions, insinuations, and, especially, assertions of personal knowledge

are apt to carry much weight against the accused when they should properly carry none.’”

State v. Sexton, 368 S.W.3d 371, 419 (Tenn. 2012) (quoting Berger, 295 U.S. at 88).

Consequently, “a prosecutor’s closing argument must be temperate, must be based on the

evidence introduced at trial, and must be pertinent to the issues in the case.” Banks, 271

S.W.3d at 131 (citing State v. Middlebrooks, 995 S.W.2d 550, 557 (Tenn. 1999); Russell

v. State, 532 S.W.2d 268, 271 (Tenn. 1976)). “[P]rosecutors, no less than defense counsel,

may use colorful and forceful language in their closing arguments, as long as they do not

stray from the evidence and the reasonable inferences to be drawn from the evidence, or

make derogatory remarks or appeal to the jurors’ prejudices[.]” Id. (citations omitted).

This court has recognized five general categories of prosecutorial misconduct:

1. It is unprofessional conduct for the prosecutor intentionally to misstate the

evidence or mislead the jury as to the inferences it may draw.

- 28 -

2. It is unprofessional conduct for the prosecutor to express his personal belief

or opinion as to the truth or falsity of any testimony or evidence or the guilt of

the defendant. See State v. Thornton, 10 S.W.3d 229, 235 (Tenn. Crim. App.

1999); Lackey v. State, 578 S.W.2d 101, 107 (Tenn. Crim. App. 1978); Tenn.

Code of Prof’l Responsibility DR 7–106(c)(4).

3. The prosecutor should not use arguments calculated to inflame the passions

or prejudices of the jury. See Cauthern, 967 S.W.2d at 737; State v.

Stephenson, 878 S.W.2d 530, 541 (Tenn. 1994).

4. The prosecutor should refrain from argument which would divert the jury

from its duty to decide the case on the evidence, by injecting issues broader

than the guilt or innocence of the accused under the controlling law, or by

making predictions of the consequences of the jury's verdict. See Cauthern, 967

S.W.2d at 737; State v. Keen, 926 S.W.2d 727, 736 (Tenn. 1994).

5. It is unprofessional conduct for a prosecutor to intentionally refer to or argue

facts outside the record unless the facts are matters of common public

knowledge.

State v. Goltz, 111 S.W.3d 1, 6 (Tenn. Crim. App. 2003) (citing Standards Relating to the

Prosecution Function and the Defense Function §§ 5.8-5.9 Commentary (ABA Project on

Standards for Criminal Justice, Approved Draft 1971)).

The following five factors should be considered when determining whether the

prosecutor’s improper argument could have affected the verdict to the prejudice of the

defendant:

(1) The conduct complained of viewed in context and in light of the facts and

circumstances of the case.

(2) The curative measures undertaken by the court and the prosecution.

(3) The intent of the prosecutor in making the improper statement.

(4) The cumulative effect of the improper conduct and any other errors in the

record.

(5) The relative strength or weakness of the case.

Judge v. State, 539 S.W.2d 340, 344 (Tenn. Crim. App. 1976); see Sexton, 368 S.W.3d at

426; State v. Buck, 670 S.W.2d 600, 609 (Tenn. 1984).

- 29 -

This court has recognized that decisions of a trial attorney as to whether to object to

the arguments of opposing counsel “are often primarily tactical decisions.” Payne v. State,

No. W2008-02784-CCA-R3-PC, 2010 WL 161493, at *15 (Tenn. Crim. App. Jan. 15,

2010), perm. app. denied (Tenn. May 11, 2010)). This means that even experienced

advocates may differ about when or whether an objection is called for as a matter of trial

strategy. Trial counsel could refrain from objecting for several valid tactical reasons,

including not wanting to emphasize unfavorable evidence. Payne, 2010 WL 161493, at

*15. As a result, “testimony from trial counsel as to why he or she did not object to the

allegedly prejudicial remarks is essential to determine whether trial counsel was

ineffective.” Brooks v. State, No. M2010-02451-CCA-R3PC, 2012 WL 112554, at *14

(Tenn. Crim. App. Jan. 11, 2012). Absent testimony from trial counsel or any other

evidence indicating that counsel’s decision was not tactical, “we cannot determine that trial

counsel provided anything other than effective assistance of counsel.” Id.

A. Improper Comment on Note. The Petitioner asserts in his brief that trial counsel

was deficient in failing to object when the State, in its rebuttal closing, told jurors, “If you

didn’t know that the [Petitioner] kept this as a souvenir for the murder he committed, it

wouldn’t mean anything. It would just be a piece of paper.” The Petitioner argues that

counsel should have objected because “it is the contents of the note that make it more than

a piece of paper[,]” and the content was inadmissible. The Petitioner relies on the

testimony and report of Dawson, who opined that the State utilized the note beyond the

limited purpose for which it was admitted based on the following excerpt from the State’s

rebuttal closing:

Now let me talk about what is one way that you can—if you want to

tear a set of facts apart in a case like this, what you do is you

compartmentalize those facts. [Trial counsel] doesn’t want you to look at the

facts taken together. He wants to compartmentalize one little fact over here

and say that setting alone doesn’t mean that much. It’s when you look at the

entire picture of things, and that’s what you do as a jury, as a group and as

an individual, you look at the facts and you put those facts together.

If you didn’t know about this note that was found in the [Petitioner’s]

truck that Rachel has testified has [the victim’s] signature in two places, and

she recognized the writing as being [the victim’s], well, that ink pen on the

floor wouldn’t mean anything. If you didn’t know that the [Petitioner] kept

this as a souvenir for the murder he committed, it wouldn’t mean anything.

It would just be a piece of paper. Why, Rachel could’ve thrown that down

in the yard out there and he just picked it up out there while he was out there

smoking that joint of marijuana. That’s not what your common –

- 30 -

The Judge is going to tell you to use your common sense when you

put these facts together . . . .

Dawson opined that “[w]hat allows the jury to use common sense for a finding of

guilt is the content of the note.” We disagree. First, the record shows that upon being

asked generally why he did not object to the State’s closing, trial counsel said that he never

had a lot of success in objecting to closing unless it “got way out of hand” and that he did

not believe that happened in this case. Post-conviction counsel did not follow up to ask

trial counsel specifically why he did not object to the above excerpt and rested on trial

counsel’s general response. The post-conviction court found that trial counsel was a

credible witness and credited trial counsel’s testimony. Because trial counsel was not

asked about the above excerpt at the post-conviction hearing, the record does not

preponderate against the court’s determination. Even if trial counsel had been questioned,

we do not interpret this excerpt from the State’s rebuttal as urging the jury to consider the

content of the note. In our view, the comment can be equally interpreted as focusing the

jury’s attention on reasonable inferences from the evidence, including the fact that a pen

was found on the floor of the victim’s home, the victim’s handwriting/signature on the note

found in the Petitioner’s truck, and the fact that the note was in the possession of the

Petitioner shortly after the victim was killed. Because this excerpt from the State’s rebuttal

does not amount to prosecutorial misconduct, the Petitioner has not established that an

objection by trial counsel would have been successful. Accordingly, he is not entitled to

relief.

B. Improper Emotional Appeals to the Jury. The Petitioner argues that the State

“manipulated the jury’s feelings by appealing to their emotions to divert their attention

from the weak evidence.” He relies, in large part, on Dawson’s report and testimony from

the evidentiary hearing, criticizing the State’s repeated references to Thanksgiving to evoke

sympathy. In his report, Dawson opined that trial counsel should have objected to the

following comments from the State’s closing and rebuttal closing arguments:

Suddenly, Rachel was awakened, it’s Thanksgiving morning, did she

wake up to smell the turkey, to her breakfast coffee? No, no she doesn’t

wake up to that. She woke up to two loud bangs: bang, bang (demonstrating).

Startled, scared, she looked at the clock on her bedside table, 9:00 a.m.

Dawson asserted the above reference to Thanksgiving was improper because

“[w]hile the jurors very well might have been waking up to the smell of turkey, Rachel

Lucas had no reason for any such expectation. She had testified that she had made

homemade vegetable soup for Thanksgiving.” Regarding this reference, Dawson opined

there was nothing in the record to support a fair inference from the evidence. He pointed

to several other references including, after the State described how the victim was found,

- 31 -

“that is what Rachel Lucas was greeted by on Thanksgiving morning 2009”, after

discussing Scott Dodd’s testimony, “[w]ell, folks, when you see that on Thanksgiving

morning across the street from you, you know something’s up. He further relies on the

following excerpt from the State’s closing:

Ladies and gentlemen, I propose to you that what you have seen and

heard is evidence sufficient for you to find the [Petitioner] guilty of

everything he’s charged with because in a perfect world Thanksgiving

morning shouldn’t be like this. Quoting Dr. Deering, wound “B” obliterates

the top of the heart, the chambers of the heart are all opened due to the

shotgun wound, the epicardium has been lacerated, a fragment of plastic shot

cup was dug out of his liver. [The victim] would’ve been dead in a matter of

seconds. But mostly, Thanksgiving morning should not end like this.

Dawson opined that the above excerpt was improper because “it says nothing that

points to the [Petitioner] as the person who killed [the victim]” and “tells the jury the

evidence to convict is sufficient because it’s Thanksgiving morning.” Finally, Dawson

opined that the following excerpt from the State’s rebuttal closing was improper:

There’s a lot of victims in this case. Rachel Lucas is a victim. Her

family is a victim. Her now 98-year-old mother, [the victim’s] mother-in-

law, was a victim when she didn’t get to break bread with them that day on

Thanksgiving Day.

The sirens on Thanksgiving Day, that’s not what we want to hear in

our neighborhood on Thanksgiving. We want to be cooking those turkeys

and being with our families . . . .

The record shows that trial counsel was not explicitly asked why he did not object

to the State’s repeated references to Thanksgiving, and the post-conviction court did not

determine this issue. Nevertheless, based on the issue presented in his petition and

Dawson’s testimony and report, we conclude this issue is properly preserved. We have

reviewed the entirety of the State’s closing and rebuttal argument and conclude that their

collective references to Thanksgiving were improper. The first two references to

Thanksgiving allude to the State’s opening theme that we do not live “in a perfect world”

when the victim was shot twice sitting on his own sofa in his own home on Thanksgiving

morning with a 12-gauge shotgun which “obliterated” his heart and a wife awakening on

Thanksgiving morning to two loud noises: Bang, Bang (demonstrating) and running down

her hallway screaming the victim’s name. At a minimum, the allusion to Thanksgiving,

combined with how the victim’s body was found, constitutes an emotional appeal to the

jury. The State referenced the holiday again in describing the reason why Scott Dodd’s

- 32 -

observation of police in the victim’s driveway was unusual, which, in isolation, was proper.

However, the fifth and sixth references to “Thanksgiving morning shouldn’t be like this”

at the end of the closing were also improper. In the rebuttal close, the seventh reference to

the victim’s family being unable to “break bread” with the victim on Thanksgiving because

of the Petitioner, and the eighth reference, not wanting to hear “sirens” in our community

on Thanksgiving, were wholly improper.

While a passing reference to a holiday as the date of the offense is certainly not

grounds for a claim of improper argument, we are inclined to agree with the Petitioner that

the repeated references to Thanksgiving in this case were improper appeals to the jurors’

emotions. See e.g., Quillen v. State, 929 P.2d 893, 901 (1996) (noting that so-called

“holiday” arguments are inappropriate but rarely warrant reversal by themselves) (citations

and footnote omitted). Trial counsel’s failure to object to the State’s repeated reference to

Thanksgiving fell “below an objective standard of reasonableness under prevailing

professional norms.”

However, we agree with the State, and conclude based on the overwhelming

evidence of the Petitioner’s guilt, that he failed to establish that trial counsel’s failure to

object would have changed the outcome of his case. At trial, the State’s proof identifying

the Petitioner as the perpetrator of the offense included an officer’s testimony that Rachel

Lucas unequivocally identified the Petitioner as the perpetrator at the crime scene; several

witnesses who observed the Petitioner at the Lucases’ home before and after the offense;

“[n]umerous witness” observed the Petitioner “with a 12-gauge shotgun” “immediately”

before and after the offense; the marijuana cigarette at the crime scene with the Petitioner’s

DNA, and testimony about the marijuana odor from his truck; Rachel Lucas’ testimony

that the victim had a lot of cash in his wallet before the offense, but that his wallet was

empty after the offense; witnesses who testified that the Petitioner had no money before

the offense, but officers found nearly $800 in his possession upon his arrest; “expert

testimony that the shotgun shells recovered from the Petitioner’s brother were fired from

the Petitioner’s shotgun and that the load of those shells was consistent with the materials

found in the victim’s body”; and the Petitioner’s motive to kill the victim, who “had been

the long-time boyfriend of the victim’s fiancée.” Based on this evidence, the Petitioner has

failed to establish “‘a reasonable probability that, but for counsel’s unprofessional errors,

the result of the proceeding would have been different.’” He is not entitled to relief.

C. Improper Vouching. The Petitioner argues trial counsel failed to object to

several statements by the State that conveyed personal beliefs in the truthfulness of Rachel

Lucas’s testimony; namely, that the defense “attacked Mrs. Lucas” and asserted that the

911 call “reek[ed] of believability[,]” implying “that if Lucas were fabricating her story,

she would have claimed to see the [Petitioner] commit the crime on the 911 call.” The

State further argued that “Lucas’s account was credible because she focused on her

- 33 -

husband during the incident and did [not] claim to see the shotgun in the [Petitioner’s]

hand, suggesting she was [not] embellishing her story.” The Petitioner asserts the State

concluded by defending Lucas’s truthfulness, stating that “the defense’s claim she lied was

inconsistent with the evidence shown in photographs.”

The Petitioner relies on Dawson’s testimony that the State “improperly bolstered

Rachel Lucas’s credibility by suggesting that her testimony was inherently truthful because

she did not embellish her account” and improperly influenced the jury’s assessment of

witness credibility. The Petitioner also points to the State’s reference in closing that “there

was a silver Toyota Tacoma in [the victim’s] driveway. Very specific, knew exactly what

it was because [Scott Dodd] used to have one just like it.” The Petitioner relies on

Dawson’s testimony that this was improper witness vouching because “[n]either Scott

Dodd nor his wife mentioned that he had owned a truck like that . . . so that simply was

something not in evidence, but it was used to sort of advance the credibility of that witness.”

According to the Petitioner, this is significant because Scott Dodd “was a crucial witness

for the State’s presentation of a timeline.”

The Tennessee Supreme Court held that it is unprofessional conduct for a prosecutor

during closing argument “to express his or her personal belief or opinion as to the truth or

falsity of any testimony or evidence” and that “any intentional effort to influence the

members of a jury by expressions of personal opinion cannot be condoned.” State v.

Henley, 774 S.W.2d 908, 911 (Tenn. 1989); see Tenn. Sup. Ct. R. 8, § 3.4(e)(3) (“A lawyer

shall not . . . in trial . . . state a personal opinion as to the justness of a cause, the credibility

of a witness, . . . or the guilt or innocence of an accused[.]”); State v. Thornton, 10 S.W.3d

229, 235 (Tenn. Crim. App. 1999) (“[A] lawyer should not assert his or her personal

opinion as to the credibility of a witness, or as to the accused’s guilt or innocence.”); ABA

Criminal Justice Standards for the Prosecution Function, Standard 3-6.8(b) (“The

prosecutor should not argue in terms of counsel’s personal opinion, and should not imply

special or secret knowledge of the truth or of witness credibility.”).

Once again, trial counsel was not asked at the evidentiary hearing why he did not

object to the portions of the State’s closing that the Petitioner now asserts on appeal were

improper, and the post-conviction court did not address this issue in its order. Because this

issue was thoroughly raised in his petition and addressed at the evidentiary hearing, we

consider it properly preserved. We have reviewed each of the references identified by the

Petitioner in this section of his brief as improper and disagree that they constitute

prosecutorial misconduct. Regarding the allegations of improper vouching for Rachel

Lucas in the State’s rebuttal closing, we do not view the prosecutor’s remarks as injecting

his personal opinion or belief about the credibility of Rachel Lucas. At trial, in response

to trial counsel’s cross-examination, Rachel Lucas herself said, “I didn’t see [the Petitioner]

shoot [the victim] and he didn’t look at me. If I were lying, I’d say he looked at me. If I

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were lying, I would say I saw him look at me but he didn’t.” The prosecutor’s remarks

were rooted in the evidence and in response to trial counsel’s defense closing statement

challenging the credibility of Lucas’s testimony, which the State was entitled to rebut. See

Sexton, 368 S.W.3d at 419-20 (proper to point to “specific evidence which tended to”

reflect on a witness’s credibility); State v. Hill, No. E2015-00811-CCA-R3-CD, 2017 WL

532481, at *35 (Tenn. Crim. App. Feb. 9, 2017) (holding that despite the theme of the

prosecutor’s argument that certain witnesses were believable, the argument was limited to

explaining why the jury should accredit the testimony of those witnesses and was focused

on explaining why those witnesses testified truthfully). At the post-conviction hearing,

Dawson agreed that the State’s comment about a silver truck and the Dodds’ may have

been an oversight, rather than intentional. Dawson considered it “excusable,” but still

“improper.” While the record shows that the prosecutor misstated the evidence, it does not

show that it was done intentionally to mislead the jury, and it was not repeated or

emphasized in any significant way. We do not view trial counsel’s failure to object to this

misstatement as deficient, and the Petitioner cannot establish prejudice to his defense. The

record shows that several witnesses, other than Scott Dodd, identified a truck similar to the

Petitioner’s in the victim’s driveway on the morning of the offense. Pam Gunn, a friend

and confidante of the Petitioner, testified that on the morning of the offense, she had gone

to the store, and when she returned “a little after 8:00 o’clock,” the Petitioner’s truck was

in the front of the Lucas home. She also identified the Petitioner as “sitting in the truck

towards the west.” Given the other evidence concerning the presence of the Petitioner and

his truck in the victim’s driveway, the Petitioner has failed to establish prejudice based on

trial counsel’s failure to object to the prosecutor’s misstatement of the evidence. He is not

entitled to relief.

D. Failure to Object to State’s Rebuttal as Beyond the Scope of First Closing. In his

brief, the Petitioner argues that trial counsel was deficient in failing to object to the rebuttal

closing as beyond the scope because the State introduced a new theory by referencing the

note found in the Petitioner’s truck, which was not presented during the State’s closing

argument. The record shows that trial counsel was not asked about this ground for relief,

nor was it addressed in the order. Nevertheless, because it was raised in the petition and

addressed in Dawson’s report, we conclude it is properly preserved. The record shows that

toward the end of his closing argument, trial counsel said that the State was “going to make

a big deal out of the fact that there was a piece of paper that came from the home of [the

victim] that was recovered from the truck of [the Petitioner].” Trial counsel then urged the

jury “that alone” did not mean the Petitioner killed the victim. He continued to address the

inconsistent testimony provided by Rachel Lucas regarding where she cut up the notes and

the lack of evidence showing when the note in question was taken from the office. Based

on these statements, any objection to the State’s rebuttal closing would have been

unsuccessful because the prosecutor’s comments were in direct response to trial counsel’s

closing argument. See Tenn. R. Crim. P. 29.1 (c)(2) (providing that the scope of the state’s

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rebuttal closing argument is limited to the subject matter covered in the state’s first closing

argument and the defendant’s intervening argument). Because the Petitioner cannot

establish that such an objection would have been successful, he is not entitled to relief.

E. Trial Counsel’s Statements. Finally, the Petitioner argues that trial counsel’s

statement during closing argument that he would not be objecting to the State’s rebuttal

“left him in a position to either allow the prosecution unconditional latitude or object and

break his promise to the jury.” In his brief, the Petitioner asserts that trial counsel’s

comments that he would not object to the State’s rebuttal due to his friendship and trust in

the prosecutor were “a clear violation of ABA standards on criminal defense closing

arguments, considering it an abandonment of the client’s interests.” The Petitioner also

takes issue with statements trial counsel made to the jury, including that the State’s closing

was “wonderful”, closing arguments were a waste of time, that he believed jurors preferred

not to hear them, and that he had no recourse to respond to what the State presented. Based

on Dawson’s testimony, the Petitioner claims these statements violated practice standards

and incorrectly conveyed to the jury that trial counsel had no power to counter the State’s

arguments in contrast to Tennessee Rule 29.

The post-conviction court found that trial counsel was a credible witness regarding

this issue. At the post-conviction hearing, upon being asked why he told the jury he was

not going to object to the State’s closing argument, trial counsel explained, “I’ve never

seen success in objecting to the State’s argument. I just always reaffirm to the jury that the

Court is instructing you that what lawyers say is not evidence and that I’m asking you to

focus on the evidence. And if [closing argument] got way out of hand, I would object to

it, but I don’t recall that . . . I don’t object just to show that I know how to object.” He

agreed that his decision to object or not was part of his trial strategy. Asked on cross-

examination if he remembered telling the jury in closing argument “that you were friends

with the d[istrict] a[ttorney] and that you won’t be objecting” during the closing, trial

counsel said he did not recall. The record does not preponderate against the court’s

determination. The relevant portion of trial counsel’s closing argument is as follows:

Closing argument, which is what we’re doing now, because the State

has the burden of proof, they get to go last. [The prosecutor] made a

wonderful statement. I’ll get to speak and then they’ll get the last word, and

it’s because the State has the burden of proof. So I know you’ll pay attention

like you have been because as much as I might want to get back up after they

finish, I can’t, and I’m sure you’re glad of that because if you allowed

lawyers to jump back and forth it would go on forever.

Closing argument, I’ve been -- like I told you in voir dire, I’ve been

practicing law 30 years, and we lawyers sometimes give ourselves a sense of

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self-importance that’s really not warranted and I’ve learned in 30 years to

question just how effective is a closing argument. I’ve had cases where I’ve

spoken to jurors afterwards and they said I wish the judge would have just

charged us, given us our instructions after the proof. Cases aren’t won or lost

on closing argument. The purpose of it is to kind of give you an overview of

our position and we’ve – we’re going to have different positions, I think you

know that.

....

Now you’ve heard a lot of witnesses for five days and part of a – well,

about five days but we picked you the first day. It’s a lot of evidence to keep

up with and we lawyers make notes of what we believe the witnesses said

but you’re the ones that decide. So what [the prosecutor] just told you is not

evidence and what I’m telling you is not evidence. If I make a statement

about some evidence that you didn’t hear, disregard it. If the prosecutor tells

you about certain evidence that you didn’t hear, disregard it.

In some of the places I try cases, in Nashville, for example, I may be

trying a case against a prosecutor that I’m not friends with, and I think – you

all have been observant, you know that I know these people. In Nashville

the lawyers would jump up, he’s arguing something that’s not in evidence.

If I think they do that, I’m not going to do that, and I don’t think they’ll do it

to me because we all know that you’ll decide what the evidence was.

The above excerpt is from the beginning of trial counsel’s closing argument. For

the remainder of his argument, the next thirty pages of the transcript, trial counsel

meticulously addresses the weaknesses in the State’s case. In context, we disagree with

the Petitioner’s characterization of trial counsel’s statements. Trial counsel did not say that

he did not intend to object because he was friends with the State, as implied by the

Petitioner. Rather, he informed the jury that both sides “knew” each other and would not

object, as both sides knew the jury would decide the evidence. A fair interpretation of trial

counsel’s comment is that the parties practiced law together and were familiar with how

each side handled objections during closing argument. While not the best practice, by

making such statements, trial counsel did not abdicate his role as defense counsel or

abandon the Petitioner at trial. Finally, we do not view trial counsel’s description of the

State’s closing as “wonderful” as improperly bolstering the State’s credibility. It was an

isolated compliment made in the context of explaining the procedure for closing arguments.

We see nothing improper with this act of professional courtesy. See, e.g., Victorino v.

State, 127 So.3d 478, 495-96 (Fla. 2013) (rejecting ineffective assistance of counsel claim

based on trial counsel’s compliment of State’s closing argument and concluding that

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counsel did not concede defendant’s guilt or fail to advocate on his behalf). Nor do we

interpret trial counsel’s statement that he would not be permitted to address the jury after

the State’s rebuttal as violating the principles of Rule 29. See Tenn. R. Crim. P. 29.1(d)(2)

(noting that if more than two arguments are made for the state, the court shall ensure that

no defendant is deprived of the opportunity to answer a new argument made by the state

against that defendant); Wallis v. State, 546 S.W.2d 244, 248 (Tenn. Crim. App. 1976)

(only in exceptional circumstances will the defendant have the right to rebut the state’s

rebuttal closing argument). Because trial counsel’s strategy was reasonable, the Petitioner

has failed to establish deficient performance or prejudice to his defense. He is not entitled

to relief.

3. The Petitioner contends he received ineffective assistance of counsel based on

trial counsel’s failure to prepare for trial. He asserts nine separate arguments in support of

this claim, including trial counsel’s prioritizing another client, Frank Murrell, over the

Petitioner on June 17, 2011, when the Petitioner claimed trial counsel said he was going to

visit but failed to do so, vague letters of progress on the Petitioner’s case sent by trial

counsel to the Petitioner, trial counsel’s last minute request for a continuance and motion

to withdraw on the morning of trial, trial counsel’s inadequate opening statement and

broken promise during the same, trial counsel’s failure to obtain Agent Craig’s notes before

trial, trial counsel’s inadequate cross-examination of Investigator Etheridge, several

instances during trial that are self-evident within the transcript, trial counsel’s failure to

comply with Rule 8 of the Rules of the Tennessee Supreme Court, and trial counsel’s

failure to ensure the trial court complied with Zagorski v. State, 983 S.W.2d 654 (Tenn.

1998).

A. In support of this claim, the Petitioner submits that trial counsel prioritized

another client, Frank Murrell, over the Petitioner, when trial counsel told the Petitioner he

was going to visit but failed to do so. We will address this issue in the conflict-of-interest

section of this opinion.

B. We have reviewed the alleged “vague” letters of progress on the Petitioner’s case

sent by trial counsel to the Petitioner, and we do not consider them to be “vague” or grounds

to establish that trial counsel failed to prepare in this case.

C. The Petitioner argues trial counsel’s last-minute request for a continuance and

motion to withdraw on the morning of trial substantiates his claim that trial counsel failed

to prepare for trial. The Petitioner asserts that trial counsel knew he did not wish to pursue

diminished capacity and deferred to the Petitioner until it was too late to present the

evidence that trial counsel should have presented. Upon our review, the record shows that

before the jury was sworn on the first day of the Petitioner’s trial, trial counsel and the State

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had a discussion in the trial judge’s chambers without the Petitioner present. After jury

selection was completed and the jury was sworn, the following exchange occurred:

THE COURT: We had a session in the office before jury selection this

morning and [the Petitioner] was not present for that so we’re going to kind

of rehash what we did this morning. [The Petitioner], we’re not trying to

hide anything from you.

[TRIAL COUNSEL]: Your Honor, I can probably do that. What I had raised

with the Court this morning is I had a conversation with [the Petitioner’s]

father who indicated to me that it was his concern that there might be a

defense that would be available to his son, post-traumatic stress syndrome,

and we talked about that. I had a brief conversation with [the Petitioner] . . .

also about that.

With that in min[d], I approached the Court in chambers about my

concern as to whether or not we ought to go forward or whether or not I ought

to explore the possibility of that defense. [The Petitioner] has always taken

the position that he is innocent, he didn’t commit this crime, and he does not

want me to assert that defense, but to protect the record and to make sure, I

move the Court for a continuance to explore it.

From an ethical standpoint, I move the Court to be allowed to

withdraw as his lawyer, to have someone else see whether or not that ought

to be explored. It’s – and [the Petitioner’s] here, he’s ready to – we’ve

started. He does not want that asserted as a defense and that is not going to

be a defense.

Am I stating that correctly, [the Petitioner]? Just answer so we’ll –

[THE PETITIONER]: Yes.

[TRIAL COUNSEL]: So we’re ready to go, Judge.

THE COURT: All right.

[THE STATE]: Your Honor, the only thing that I would say about that, as

we pointed out to the Court, we had previously filed all of the motions and

notices that are required by law to be notified -- use of experts -- filed a

motion to compel on that and we’ve received no response on that. If they try

to go down that path, if the Court on those -- we would rely upon those legal

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motions and motion to compel that had previously been filed. There’s been

no objection to that. We may not have to go there but we’ll ask the Court to

take knowledge of the – what’s in the file and the filings with the Court

pretrial.

THE COURT: Well, as I stated in chambers this morning, I’ve known [trial

counsel] a long time, I know he’s a good lawyer, I know he totally advised

his client, encouraged him to rely on a diminished capacity defense. His

client, it’s his case, he rejected [trial counsel’s] counsel. [Trial counsel] will

represent Mr. Gregory. He’ll do a good job. I told [trial counsel] that in the

event that he wanted to rely on the post-traumatic stress disorder that he could

do it based upon the facts but could not call any expert because he had not

given notice to the State. I’ve told [trial counsel] I believe the facts mean

more to the jury than the expert could add in any event.

In his motion for new trial, trial counsel argued the Petitioner “was denied his right

to a fair trial by the [trial] Court’s refusal to grant a continuance to allow the [Petitioner] to

properly assert as a defense posttraumatic stress syndrome.” Trial counsel said that on the

morning of trial “the [Petitioner] and the [Petitioner’s] parents both indicated to me that

they at that point wanted me to assert that defense. I asked the Court for a continuance for

that purpose and that request was denied.” In denying the motion, the trial court stated, in

relevant part, that the motion to continue was raised on the morning of trial. Trial counsel

asked for a continuance “at that time because apparently either his client or his client’s

family wanted to raise the mental defense.” The court noted that the Petitioner and his

family had “nearly two years if there was a possibility of a mental defense, the family and

the client had allowed it, [trial counsel] could have developed it.” The court denied this

issue and explained, “to cause a continuance on the morning of trial the Court just felt was

a delaying tactic.”

At the evidentiary hearing, trial counsel said that on the morning of trial the

Petitioner wanted to change the defense theory of the case, which was a surprise to trial

counsel because the Petitioner had previously indicated he did not want to use the

diminished capacity defense. Trial counsel said he needed more time to pursue the change

in strategy by his client. The post-conviction court determined trial counsel was a credible

witness and affirmed his statements that he was prepared for trial, did a lot of investigating,

communicated with the Petitioner and his family, interviewed several people, considered

various defenses, and hired an expert in this case. The court further credited trial counsel’s

reason for requesting a continuance and later moving to withdraw from the case on the

morning of trial. We conclude that the record does not preponderate against the

determination of the court. The Petitioner does not claim that trial counsel was ineffective

in failing to present a mental health defense, and the transcript shows that on the morning

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of trial, the Petitioner agreed with trial counsel’s assessment of the case and wished to

proceed with the trial. Accordingly, this does not substantiate the Petitioner’s claim that

trial counsel failed to prepare for trial based on his request for a continuance on the morning

of trial. The Petitioner is not entitled to relief.

D. The Petitioner asserts trial counsel was ineffective in failing to prepare for trial

based on trial counsel’s inadequate opening statement and broken promise during the same.

The purpose of an opening statement is to set forth each side’s “respective contentions,

views of the facts and theories of the lawsuit.” Tenn. Code Ann. § 20-9-301 (2015).

Tennessee courts have long held that misstatements and broken promises to the jury can

amount to ineffective assistance of counsel. See State v. Taylor, 968 S.W.2d 900, 911-12

(Tenn. Crim. App. 1997). Regarding opening statements by defense counsel, this court

said in State v. Zimmerman, 823 S.W.2d 220, 225 (Tenn. Crim. App. 1991), that “[e]ither

overstatement or misstatement during this presentation, despite curative efforts, may have

adverse effects[.]” The court explained that counsel “should only inform the jury of the

evidence that he is sure he can prove” and that counsel’s “failure to keep [a] promise [to

the jury] impairs his personal credibility.” Id. (quoting McCloskey, Criminal Law Desk

Book, § 1506(3)(O) (Matthew Bender, 1990)).

Trial counsel’s opening statement to the jury was as follows:

[TRIAL COUNSEL]: Yes, sir. Good morning, ladies and gentlemen.

One of the difficult things a defense attorney has to do is make an opening

statement, for this reason: I may have a good idea of what the State’s proof

is going to be but I don’t know exactly what it’s going to be but I want you

to be considering certain things when you hear the testimony.

This case will focus on Rachel Lucas as much as [the Petitioner]. You

will hear evidence that, though they may have gone somewhere as a couple,

that Mrs. Lucas was having an affair at the time of the murder. You will hear

that Mrs. Lucas even lied to the prosecutor about having that affair. The

evidence will show that Mrs. Lucas only admitted having the affair when she

realized that the Defense knew about the affair. It’s her deceit that I want

you to keep as a background to the evidence, and I submit to you that when

you’ve heard all the proof it’ll be clear to you that this gentleman right here

(pointing) is guilty of absolutely nothing. Thank you.

First, the Petitioner asserts the opening statement was “without direction” and

“lacked effort.” Even if true, this does not mean that counsel was not prepared for trial.

Next, the Petitioner relies on King v. State, 989 S.W.2d 319, 331 (Tenn. 1999), for the

proposition that trial counsel’s failure to establish the truth of the above statements on

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cross-examination of Rachel Lucas constitutes a broken promise to the jury. We disagree.

This is not a situation where trial counsel promised the jury that the Petitioner would testify

or that they would hear from a defense expert witness. Johnson v. State, 145 S.W.3d 97,

119 (Tenn. Crim. App. 2004). In context, the statements by trial counsel do not constitute

a promise to the jury. Trial counsel prefaced his remarks about Rachel Lucas’s testimony

with the statement that he did not know exactly what the State’s proof was going to be. In

other words, trial counsel was anticipating the proof to show that Rachel Lucas had been

deceitful. The record shows that trial counsel cross-examined her extensively regarding

her affair with her paramour and weaved a seed of doubt based on her infidelity throughout

the trial. Although he was unsuccessful at establishing Rachel Lucas was untruthful about

the affair to the parties or when she disclosed the affair, this issue was thoroughly explored

by trial counsel on cross-examination. This is more akin to the statements made by trial

counsel in Ivy v. State, No. W2010-01844-CCA-R3-PD, 2012 WL 6681905, at *32 (Tenn.

Crim. App. Dec. 21, 2012) (rejecting ineffective assistance of counsel claim based on a

failed attempt to predict the introduction of evidence in an opening statement), and the

Petitioner has failed to establish trial counsel was deficient or prejudice to his case.

E. The Petitioner asserts trial counsel was ineffective in failing to obtain Agent

Craig’s notes before trial, which would have provided Rachel Lucas’s earliest narrative of

the event. He argues the failure to obtain the notes deprived him of the ability to properly

challenge Lucas’s “evolving testimony[.]” We interpret this claim as a challenge to the

adequacy of trial counsel’s cross-examination of Rachel Lucas. The Petitioner claims the

notes were also significant because (1) they did not mention any money being taken, which

was raised only later in Agent Craig’s affidavit; and (2) they contained three pages of

information about Jacqueline Peek, including her account of the victim’s involvement with

“sex games, strip clubs, cocaine, and orgies[,]” which “could have led to other suspects.”

The record reflects that during Agent Craig’s testimony at trial, trial counsel asked Agent

Craig if he had taken a statement from Rachel Lucas on the day of the offense, and Agent

Craig said yes. Agent Craig confirmed that he compiled a typewritten report from his

interview notes with Rachel Lucas. Trial counsel retrieved the report, and questioned

Agent Craig about various inconsistencies between Lucas’s statement and her trial

testimony. Trial counsel admitted the report as Exhibit 94.

At the evidentiary hearing, Agent Craig’s handwritten notes were admitted into

evidence; however, they were not discussed in any significant way. Trial counsel said he

could not remember any reason for not requesting Agent Craig’s notes, and he had no

reason to believe that Agent Craig’s notes differed from his other reports. We have

reviewed trial counsel’s cross-examination of Rachel Lucas at trial. It reflects several

attempts by trial counsel to impeach Rachel Lucas based on inconsistencies in her trial

testimony and her statement to Agent Craig. It also includes questioning about the

photographs of the victim’s wallet, and Rachel Lucas agreed that it appeared undisturbed.

- 42 -

Upon comparing Agent Craig’s notes to Exhibit 94, we find no material difference. Exhibit

94 includes reference to the victim’s wallet and that it was not unusual for the victim to

have $500 cash in his wallet. Neither the notes nor Exhibit 94 make explicit mention of

missing money. In this regard, trial counsel would not have gained any advantage by

having Agent Craig’s notes. The information from Jacqueline Peek about the victim would

have been inadmissible, and given the Petitioner’s confession to trial counsel, it would be

unlikely trial counsel would have spent resources in search of other suspects. The

Petitioner is not entitled to relief.

F. The Petitioner asserts trial counsel was ineffective in failing to prepare for trial

based on trial counsel’s inadequate cross-examination of Investigator John Ethridge

regarding the drinking containers that were not recovered from the crime scene. We will

address this issue in the section of this opinion challenging trial counsel’s failure to object

or request a jury instruction under Ferguson.

G. The Petitioner asserts trial counsel was ineffective in failing to prepare for trial

based on trial counsel’s attempts to submit a document regarding the Petitioner’s Fifth

Amendment rights at trial, trial counsel’s announcement during the jury out hearing that

he had not read the note found in the Petitioner’s truck; and trial counsel’s announcement

during Agent Craig’s testimony that he did not have a “clean copy” of a document he

wished to enter into evidence because he had written on it. This supporting basis was not

included in the petition, raised at the evidentiary hearing, or addressed in the post-

conviction court order. Accordingly, it is waived. Waiver notwithstanding, none of these

assertions, individually or collectively, show that trial counsel failed to prepare for trial

under Strickland. The Petitioner is not entitled to relief.

H. The Petitioner asserts trial counsel was ineffective in failing to prepare for trial

based on trial counsel’s failure to comply with Rule 8 of the Rules of the Tennessee

Supreme Court. Regardless of his confession of the crime to trial counsel, the Petitioner

asserts that trial counsel was ethically required to permit and prepare the Petitioner to

testify. This ground was not included in the petition, raised at the hearing, or addressed in

the order of the court. It is therefore waived, and we decline to address it.

I. The Petitioner asserts trial counsel was ineffective in failing to protect his right to

choice under Zagorski v. State, 983 S.W.2d 654 (Tenn. 1998). The post-conviction court

rejected this claim reasoning that Zagorski does not apply to noncapital defendants. The

Petitioner asserts that Zagorski has not been explicitly limited to capital defendants and

urges this court to apply Zagorski in this case. Assuming without deciding that Zagorski

applied in this context, the Petitioner would be unable to establish deficient performance

or prejudice to his case. Our research has revealed no case in which Zagorski has been

- 43 -

extended to apply to a noncapital defendant. Trial counsel cannot be faulted for failing to

follow legal authority that does not exist. The Petitioner is not entitled to relief.

4. The Petitioner contends he received ineffective assistance of counsel based on

trial counsel’s failure to investigate, call, or cross-examine key witnesses. In his brief, the

Petitioner argues trial counsel was ineffective in failing to call Dr. Warren, Dr. Dickie

Jackson, and in failing to cross-examine Chief Wayne Ellison. In regard to trial counsel’s

alleged failure to call Dr. Warren as a witness at trial, we will address whether trial counsel

was ineffective in failing to call him as a ballistics expert in another section of this opinion.

The Petitioner submits trial counsel was ineffective in failing to call Dr. Warren as an

expert in crime scene reconstruction. At the evidentiary hearing, Dr. Warren testified

extensively regarding perceived errors in how the investigators handled the crime scene.

The Petitioner submits that Dr. Dickie Jackson could have testified as an expert witness

regarding the time of the victim’s death, contradicted the State’s theory that the victim was

awake and active when shot, and provided his observations of Rachel Lucas’s behavior at

the crime scene. Finally, the Petitioner submits that trial counsel was ineffective in failing

to cross examine Chief Ellison’s observation of Rachel Lucas’s “odd” behavior at the crime

scene. The post-conviction court credited trial counsel’s testimony that if he did not call a

witness to testify, it was because they would not have been helpful. The record does not

preponderate against the determination of the court. The gravamen of Dr. Jackson and

Chief Ellison’s testimony was that the victim’s body temperature was unknown, there were

no defensive wounds on the victim’s body, and Rachel Lucas’s behavior may have been

unusual three hours after the 911 call was made. In our view, the testimony of the above

witnesses would have added minimal value to the Petitioner’s defense. Accordingly, the

Petitioner cannot establish deficient performance or prejudice to his case.

5. The Petitioner contends he received ineffective assistance of counsel based on

trial counsel’s failure to request a Ferguson instruction. The Petitioner asserts that law

enforcement had a duty to preserve or collect three beverage containers, a fallen sconce,

and a pen, and failed to do so. In Ferguson, 2 S.W.3d at 912, our supreme court addressed

the issue of when a defendant is entitled to relief when the State has lost or destroyed

evidence that was alleged to have been exculpatory. The court explained that a reviewing

court must first determine whether the State had a duty to preserve the lost or destroyed

evidence. Ferguson, 2 S.W.3d at 917. Ordinarily, “the State has a duty to preserve all

evidence subject to discovery and inspection under Tenn. R. Crim. P. 16, or other

applicable law.” Id. However,

“[w]hatever duty the Constitution imposes on the States to preserve evidence,

that duty must be limited to evidence that might be expected to play a

significant role in the suspect’s defense. To meet this standard of

constitutional materiality, evidence must both possess an exculpatory value

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that was apparent before the evidence was destroyed, and be of such a nature

that the defendant would be unable to obtain comparable evidence by other

reasonably available means.”

Ferguson, 2 S.W.3d at 917 (quoting California v. Trombetta, 467 U.S. 479, 488-89 (1984).

Evidence need not be clearly exculpatory; even evidence which has “tenuous” exculpatory

value and which is “probably of marginal exculpatory value” may give rise to a duty to

preserve, so long as it was material to the preparation of the defense and might have given

rise to reasonable doubt regarding guilt. Id. at 918.

On numerous occasions, this court has held that a law enforcement officer’s failure

to collect certain items from a crime scene did not result in a Ferguson violation. See State

v. Franklin, 585 S.W.3d 431, 461 (Tenn. Crim. App. 2019) (citing State v. Bargery, No.

W2016-00893-CCA-R3-CD, 2017 WL 4466559, at *62-64 (Tenn. Crim. App. Oct. 6,

2017), no perm. app. filed (holding that the State’s failure to collect a bloody towel, fruit

punch cans, blood stain samples, and fingerprints did not violate Ferguson because the

State had no duty to collect such items); State v. Hubbard, No. W2016-01521-CCA-R3-

CD, 2017 WL 2472372, at *6-8 (Tenn. Crim. App. June 7, 2017), no perm. app. filed

(concluding that the State did not have a duty to preserve surveillance footage from a crime

scene when officers failed to collect the footage); State v. Bufford, No. W2013-00841-

CCA-R3-CD, 2014 WL 2129526, at *12-13 (Tenn. Crim. App. May 20, 2014) (rejecting

the defendant’s claim that “the State should have collected more evidence because that

evidence might have been exculpatory”); State v. Brock, 327 S.W.3d 645, 698-99 (Tenn.

Crim. App. 2009) (holding that the State did not have a duty to collect fingerprint evidence

and a bloody footprint from the crime scene); State v. Somerville, No. W2001-00902-

CCA-R3-CD, 2002 WL 1482730, at *4-5 (Tenn. Crim. App. Feb. 11, 2002) (concluding

that the State did not have a duty to preserve surveillance footage from the scene of a Wal-

Mart for a shoplifting charge when the State never had possession or control over the

footage).

In concluding that the State’s failure to collect evidence from a crime scene does

not rise to the level of a Ferguson violation, this court has recognized that

the State is not required to investigate cases in any particular way: Due

process does not require the police to conduct a particular type of

investigation. Rather, the reliability of the evidence gathered by the police

is tested in the crucible of a trial at which the defendant receives due process.

Moreover, [i]t is not the duty of this Court to pass judgment regarding the

investigative techniques used by law enforcement unless they violate specific

statutory or constitutional mandates.

- 45 -

Brock, 327 S.W.3d at 698-99 (quoting State v. Best, No. E2007-00296-CCA-R3-CD, 2008

WL 4367529, at *13 (Tenn. Crim. App. Sept. 25, 2008)) (internal citations and quotation

marks omitted).

At the evidentiary hearing, Agent Craig agreed that the items depicted in Exhibits

4A and B, the sconce, pen, and drink containers, were not collected as evidence from the

crime scene. Agent Craig explained the reason the sconce was not collected from the crime

scene was because it was not directly involved in this case, and there did not appear to have

been a scuffle in the area where the sconce was found. Agent Craig did not collect the pen

found on the floor, and he could not recall why the pen was not recovered or collected.

There was no testimony regarding the beverage containers; however, Inv. Ethridge

authenticated the photograph and confirmed that the items were recovered from the crime

scene. Trial counsel said he did not request that these items be tested because he was

“concerned of what the results would be.” He did not lodge a Ferguson “objection” because

he “didn’t see any reason to” given his trial strategy and his experience dealing with

Ferguson issues. The post-conviction court found trial counsel credible and credited his

testimony that he did not request a Ferguson instruction because it was “unnecessary.” The

record supports the determination of the post-conviction court. Moreover, we conclude

that the State did not have a duty to collect the sconce, pen, and drink containers from the

crime scene; thus, there was no duty under Ferguson to preserve such evidence. Because

a Ferguson objection or request for a jury instruction would have been unsuccessful, the

Petitioner cannot demonstrate that trial counsel’s conduct fell “below an objective standard

of reasonableness under prevailing professional norms.” Accordingly, the Petitioner is not

entitled to relief.

6. The Petitioner contends he received ineffective assistance of counsel based on

trial counsel’s failure to present a shooting incident reconstruction and a firearms expert.

At trial, Agent Craig testified that “with a shotgun, there is no ballistic match,” and he

submitted the ballistics evidence to the TBI to be examined for primer strikes or marks on

the shot shells and to determine the garment-to-muzzle distance. Agent Brodhag testified,

in relevant part, regarding four shot shells-one set of shot shells that was recovered from

the Petitioner’s home and another set that was recovered from the Peek home. Agent

Brodhag testified that all of the shot shells were fired from the shotgun recovered from the

Petitioner’s truck. He also said the set of shot shells from the Petitioner’s home contained

No. 6 shot size and the set of shot shells from the Peek home contained No. 7 -½ shot and

No. 6 shot. Agent Brodhag confirmed that the pellets he received which were recovered

from the victim were consistent with No. 6 shot and that the 12-gauge shells recovered

from the Petitioner’s truck were No. 6 shot. On cross-examination, trial counsel was able

to get Agent Brodhag to agree that examining a shotgun and shotgun pellets are different.

Agent Brodhag agreed that he could not determine whether the pellets recovered from the

victim were fired from the Petitioner’s shotgun.

- 46 -

At the evidentiary hearing, trial counsel said he did not employ a firearms expert

because he “knew exactly what the answer was going to be when I asked it.” He did not

need to hire an expert to say that he could not determine that the pellets taken from the

victim’s body were fired from the gun, which is what Special Agent Brodhag testified to.

Trial counsel also did not need an expert to testify regarding trajectory because his defense

was that the Petitioner was not there and trajectory did not have “any value.” Trial counsel

had experience with the State’s firearm experts and was confident he could elicit the

information he needed for his defense. He did not believe he needed a “crime scene expert”

because he went to the crime scene, reviewed it, and spoke with various individuals. Dr.

Warren testified and did not dispute Agent Brodhag’s ballistic report and conclusions.

Instead, Dr. Warren believed the “significance of [Agent Brodhag’s analysis] was not

communicated at trial because of a lack of that defense expert.” Dr. Warren’s concern was

that there was no direct or scientific evidence of when and where that shotgun fired the

shot shells. The post-conviction court framed the issue as trial counsel’s “fail[ure] to

review the entire TBI ballistics case as well as not calling an expert witness on this issue.”

The court credited the testimony of trial counsel who said he was able to elicit the evidence

he wanted for the Petitioner regarding the TBI Ballistics Report from Agent Brodhag and

that he did not need to hire an expert because it was not a part of his defense strategy. The

record does not preponderate against the determination of the post-conviction court. This

case did not hinge on expert ballistic testimony nor was there any direct or explicit ballistic

evidence linking the Petitioner to the offense. See e.g., Kendrick v. State, 454 S.W.3d 450,

470-471 (Tenn. 2015) (defense counsel did not perform deficiently in a murder prosecution

by failing to find and present a firearms expert to testify that the trigger mechanism in

defendant’s rifle was defective, even though defense counsel presented a defense theory of

accidental firing of the rifle; the best evidence that defendant’s rifle was capable of

misfiring was the undisputed fact that crime-scene investigator was shot in the foot by the

very same rifle, defense counsel had a reasonable basis to believe that investigator would

testify that he had not touched the trigger, and the case did not hinge on expert testimony,

as the bulk of the state’s case consisted of eyewitnesses). Moreover, based on the

Petitioner’s confession to killing the victim, the Petitioner ignores trial counsel’s testimony

that an expert may have revealed inculpatory evidence. Under these circumstances, we

conclude that trial counsel’s decision not to hire an expert was reasonable, and the

Petitioner is not entitled to relief.

7. The Petitioner contends he received ineffective assistance of counsel based on

trial counsel’s failure to ensure the Petitioner could hear during trial. He claims that he

made trial counsel aware pretrial that he had a hearing disability, which he acquired during

his twenty-six years in the military. Despite informing trial counsel pretrial of his hearing

disability, the Petitioner was not provided with the necessary hearing devices until after the

voir dire and after the testimony of five State’s witnesses. He argues he had no opportunity

- 47 -

to give advice or make suggestions to trial counsel during voir dire. The question of

whether trial counsel was ineffective in failing to ensure adequate accommodation for a

deaf or hearing-impaired defendant appears to be one of first impression in Tennessee. But

see Bounnam v. State, No. W2001-02603-CCA-R3PC, 2002 WL 31852865, at *7 (Tenn.

Crim. App. Dec. 20, 2002) (rejecting ineffective assistance claim based on trial counsel’s

failure to hire interpreter because it was “obvious” the defendant could understand and

communicate in English).

Both the United States Constitution and the Tennessee Constitution guarantee a

defendant the fundamental right to be present at his or her own trial. U.S. Const. amend.

V, XIV, § 1; Tenn. Const. art. I, § 9; see State v. Muse, 967 S.W.2d 764, 766 (Tenn. 1998).

This right to be present applies to the arraignment, every stage of the trial including the

impaneling of the jury and return of a verdict, and the imposition of a sentence. Tenn. R.

Crim. P. 43(a)(1)-(3). Other states that have considered this issue have recognized:

The Sixth Amendment guarantees that ‘[i]n all criminal prosecutions,

the accused shall enjoy the right * * * to be confronted with the witnesses

against him * * *.’ The confrontation clause requires that a defendant be

given the opportunity to be physically present at trial, that the defendant be

competent to assist in his own defense, and that the defendant understand the

language of the forum. A defendant who cannot hear is analogous to a

defendant who cannot understand English, and a severely hearing-impaired

defendant cannot be tried without adopting reasonable measures to

accommodate his or her disability.

Com. v. Walls, 993 A.2d 289, 297 (Pa. 2010) (citing Com. v. Wallace, 641 A.2d 321, 325

(Pa. 1994)); see also Ferrell v. Estelle, 568 F.2d 1128, 1132 (5th Cir. 1978) vacated as

moot, 573 F.2d 867 (5th Cir. 1978); People v. Rivera, 480 N.Y.S.2d 426, 433-434 (N.Y.

App. Div. 1984); Peeler v. State, 750 S.W.2d 687, 688-91 (Mo. Ct. App. 1988) (reversing

denial of post-conviction relief reasoning trial counsel ineffective for failing to request the

services of an interpreter).

In State v. Staples, 437 A.2d 266, 267 (N.H. 1981), the Supreme Court of New

Hampshire reversed a defendant’s conviction and granted a new trial on grounds that trial

counsel had been ineffective for failing to take action to compensate for the defendant’s

inability to hear testimony during his trial. The court relied on Drope v. Missouri, 420 U.S.

162, 171, 95 S. Ct. 896, 903 (1975) and found that a defendant who is mentally deficient

is analogous to a defendant with a hearing impairment. The court also reasoned:

The ABA Standards for the Defense Function admonish defense

attorneys to “inform the accused of his rights . . . and take all necessary action

- 48 -

to vindicate such rights.” ABA Standards for Criminal Justice s 4-3.6, at

4.45 (2d ed. 1980). The authors caution that counsel must often take “special

steps” to protect the accused, id., commentary to s 4-3.6 at 4.46, which may

include ordering medical examinations of the accused. Id. In this case, no

steps were taken prior to trial, and those that were taken during trial were

inadequate.

Staples, 437 A.2d at 268.

During the motion to suppress hearing, the Petitioner asked the parties to “speak

up,” and trial counsel then advised the trial court that “Your Honor, if I could, just so

everyone will know, the [Petitioner] is hard of hearing and I will just ask everyone to kind

of speak up a little bit.” The court replied, “I am, too, [Petitioner].” At trial, during the

testimony of the first State witness, Stacie Edwards, trial counsel interjected and asked the

court if “the witness [could] speak up just a little, [the Petitioner’s] hard of hearing.” The

court responded, “You’re a teacher, I know you can talk louder than that.” And the witness

replied, “Yes, sir.” The prosecutor then explained, “One of the things that happens,

[witness], is that people think the microphones in the courtroom amplify, they don’t,

they’re for the court reporter. They do pick up but they don’t amplify so we -- speak up.”

After five pages of transcript, the prosecutor asks the witness to speak up again. She was

asked to speak up three more times in her testimony. Jerry Matney, another neighbor,

testified without issue. Jessica Lanier, a witness present at the Thompson’s One Stop on

the morning of the offense, began her testimony and was instructed to speak up twice.

Linda Moore, Lanier’s mother and another store employee, testified and was instructed to

speak up. Nicole Reeves, a witness who gave the Petitioner his tear-drop tattoo, testified

without issue.

After Reeves testimony, trial counsel requested a jury out hearing, and the following

colloquy occurred:

[TRIAL COUNSEL]: Your Honor, I’ll tell the Court where we are because

I had this come up in Hickman County. We’ve gone a day and a half trying

to have witnesses speak loud enough. It’s not working. The [Petitioner] has

a hearing impairment, and like I did in my case in Hickman County, I’m

going to ask under the case law, not the disabilities Act, we’re going to have

to provide him with some hearing assistance through the use of headphones.

I mean, you know, I hate to delay – I’ve had this happen – I’ve had this

happen in Hickman County and it’s not going to work. Telling the witnesses

to speak up is not going to work and we’re going to have to – we’re going to

have to make some arrangements so this man can hear his own first-degree

murder trial. I can’t keep -- I can’t try this case trying to interpret for him.

- 49 -

THE COURT: You-all got any equipment?

[THE STATE]: Judge, I don’t have the headphone situation but I do have a

situation -- we don’t have our microphones with us. Mr. Ethridge could go

get them. I can’t go the route that [trial counsel’s] suggesting to -- for him

to have headphones but I could go -- I think I could get us an amplification

process. I’ve already got a speaker set up in here, it’ll just be a matter of

turning it around, I guess, and we could amplify. We were prepared because

of -- in the -- in the presentation of the case we have the 911 telephone

conversation that we’re going to under the -- with permission of the Court,

of course, exhibit it as a -- play for the jury so we sort of -- sort of anticipate

that, so it’s just a matter of getting a -- something to amplify -- a microphone

to run through the system. We’ve got wireless microphones. We’ve got two

of those so we could do that. I don’t know, this is the first it’s been brought

to my attention other than the few comments that have been made. I doubt

if the [Petitioner’s] having any difficulty hearing the attorney. But we could

set up one for the witness and one for the -- at the podium, I guess, if that’s

of some assistance. First I’ve ever had it in my short career to deal with that

so that’s the best quick solution I’ve got.

THE COURT: Well, he ought to be able to hear the lawyers, if not, we can

tell the lawyers to speak up. The witnesses are a problem.

[TRIAL COUNSEL]: I can hear the lawyers, it’s the witness.

THE COURT: Where is your equipment, Charlotte?

[THE STATE]: Yes, sir. If there’s something local, I’m not aware -- I just

don’t know what’s available to the Court or whether there’s some

amplification system that’s available here.

THE COURT: I don’t know. We don’t have anything, do we?

THE CLERK: Not that I know of.

THE COURT: Who’s your next witness?

[THE STATE]: Mr. Gantlett.

SHERIFF DAVIS: Your Honor, if I may, I may have access to a system.

- 50 -

THE COURT: Check and find out, Sheriff, if you don’t mind.

The transcript reflects that the sheriff left the courtroom to check on equipment to

aid the Petitioner in hearing the witnesses. Upon his return, the following exchange

occurred:

THE COURT: [Petitioner], can you hear that pretty good (tapping on the

microphone at the witness stand)?

[THE PETITIONER]: I can hear that pretty good.

THE COURT: Let’s go ahead and proceed and get Mr. Gantlett in here.

We’ll get him up close to the microphone. He said he could hear it so we’ll

see.

Tim Gantlett, Pam Gunn, Ms. Dodd, and Scott Dodd testified without issue. Four

introductory questions into the next witness’s testimo

This text is long and has been trimmed here. Open the source document for the complete record.