Brian Howard v. State of Tennessee

04/02/2026

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

January 7, 2026 Session

BRIAN HOWARD v. STATE OF TENNESSEE

Appeal from the Criminal Court for Shelby County

No. C1810330 Carlyn L. Addison, Judge

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No. W2024-01387-CCA-R3-PC

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Petitioner, Brian Howard, appeals the denial of his petition for post-conviction relief,

arguing that the post-conviction court erred in concluding that he received the effective

assistance of trial counsel. He argues trial counsel was ineffective in two ways: first, by

failing to sever Petitioner’s trial from that of his co-defendant, or alternatively, failing to

introduce the co-defendant’s pretrial statement to police during their joint trial; and second,

by failing to waive lesser included offense instructions. He also raises a standalone due

process claim, arguing that criminal defendants should have a constitutional right to

affirmatively waive lesser included charges contrary to Tennessee law. Following our

review, we affirm the judgment of the post-conviction court.

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

MATTHEW J. WILSON, J., delivered the opinion of the court, in which CAMILLE R.

MCMULLEN and J. ROSS DYER, JJ., joined.

Terrell Tooten (at hearing and on appeal), Memphis, Tennessee, for the appellant, Brian

Howard.

Jonathan Skrmetti, Attorney General and Reporter; Benjamin L. Barker, Assistant

Attorney General; Steven J. Mulroy, District Attorney General; and Monica Timmerman,

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

OPINION

Factual and Procedural Background

After a domestic dispute turned deadly, a Shelby County Grand Jury indicted

Petitioner on one count each of (1) second degree murder, (2) attempted second degree

murder, (2) felon in possession of a firearm, and (4) employing a firearm during the

commission of a dangerous felony—to wit, attempted second degree murder. The Grand

Jury also indicted a co-defendant, Quentin Brown, for his role in the shooting, which

involved Brown delivering a firearm to Petitioner just moments before the shooting

occurred. The two men were tried together. After a jury trial, Petitioner was convicted of

(1) voluntary manslaughter, as a lesser included offense of second degree murder; (2)

attempted voluntary manslaughter, as a lesser included offense of attempted second degree

murder; (3) felon in possession of a firearm; and (4) employing a firearm during the

commission of a dangerous felony—to wit, attempted voluntary manslaughter. The trial

court imposed an effective sentence of sixty-seven years in confinement, to be served

consecutively with a fifteen-year federal sentence that Petitioner was already serving. This

court later affirmed his convictions on direct appeal. See State v. Howard, No. W2020-

00207-CCA-R3-CD, 2021 WL 144235, at *3-6 (Tenn. Crim. App. Jan. 15, 2021), perm.

app. denied (Tenn. May 14, 2021).1

Petitioner then filed a pro se petition for post-conviction relief. He was appointed

counsel and, thereafter, filed two amended petitions. He argued, among other things, that

his trial counsel (“Counsel”) was ineffective for not requesting a severance, or

alternatively, for not introducing the co-defendant’s pretrial statement to police. He also

argued that Counsel was ineffective for failing to waive the jury instruction permitting the

jury to consider the offense of attempted voluntary manslaughter—as a lesser included

offense of attempted second degree murder—as the predicate “dangerous felony” upon

which the firearm charge relied. Counsel and Petitioner were the only two witnesses who

testified during the post-conviction hearing.

Counsel testified that he had been practicing law for twenty-seven years and had

conducted more than 110 jury trials. He testified that Petitioner asserted self-defense at

trial, and after consulting with Brown’s attorneys, the parties decided to pursue a mutual

strategy of self-defense. Counsel did not recall any specific conversations with Petitioner

regarding whether Brown would testify at trial, but Counsel said he did not believe that

Brown’s “decision to testify or not affected our defense.” When asked whether he

1

To aid us in resolving the questions presented, we take judicial notice of the appellate record from

Petitioner’s direct appeal. See Tenn. R. App. R. 13(c); State v. Lawson, 291 S.W.3d 864, 868-70 (Tenn.

2009).

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explained to Petitioner why he did not sever his trial from Brown’s trial, Counsel

responded, “I don’t recall that [Petitioner] ever asked me that question.” He further

testified that he did not see any benefit to filing a motion to sever and that there was no

absolute right to a severance under the law. He did not recall the specifics of Brown’s

pretrial statement to police but testified that he did not believe it would have been

admissible unless Brown decided to testify. He pointed out that there was no way for

anyone to know prior to trial whether Brown would elect to testify, and even if Brown had

testified, there was no way to know whether his testimony would have been “absolutely

beneficial” to Petitioner. Counsel testified that, in his experience, a co-defendant’s

testimony at trial was never “absolutely beneficial to his client.”

Counsel testified that he proceeded to trial under the belief that the State would not

be able to convict Petitioner on the charges of second degree murder or attempted second

degree murder. He believed that if a jury convicted Petitioner on either count, it would be

on a lesser included offense, and in his experience, the trial court almost always instructed

the jury on lesser included offenses. He also pointed out that the law permits a trial court

to charge lesser included offenses absent any written request by a defendant. When asked

if a defendant can make an absolute waiver of lesser included offenses, such that the trial

court would be obligated to exclude them from jury instructions, Counsel responded, “I’m

not sure why a defendant would want to do that.”

Petitioner testified that he asserted self-defense at trial, and he intended to rely—at

least in part—upon Brown’s pretrial statement to police to support his defense. He testified

that he had no problem with Brown’s statement being introduced to the jury, but Counsel

never attempted to introduce it or explain to him why it was not being introduced.

Petitioner did not oppose being tried jointly with Brown. He recalled Counsel explaining

that he did not believe Petitioner would be convicted of second degree murder. Petitioner

stated that he believed that Brown wanted to testify but Brown’s attorneys would not allow

him to do so. He then acknowledged that both he and Brown waived their right to testify

during the trial. Petitioner stated that he was not aware that the jury could convict on lesser

included charges and that he first found out about the lesser included charges when the trial

court was instructing the jury in open court.

The post-conviction court orally denied relief and entered a written order. After

appellate briefing was completed, we remanded the case to the post-conviction court to

enter a written order that set forth findings of facts and conclusions of law as to each ground

Petitioner had raised. See Tenn Code Ann. § 40-30-111(b). The post-conviction court

entered a supplemental written order. As to the admission of Brown’s statement, the court

found that Petitioner failed to establish that trial counsel was deficient or that any

deficiency resulted in prejudice. First, the court found that Counsel’s decision not to

request a severance and instead to pursue a joint defense with Brown was a reasonable

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strategic decision, as evidenced by the jury’s decision to acquit Petitioner of the greater

charged offenses of second degree murder and attempted second degree murder. Second,

the court found that it could not speculate as to how Brown would have testified during

trial. Citing Black v. State, the court noted that it was Petitioner’s burden to present Brown

as a witness during the post-conviction hearing, but Petitioner failed to do so. See 749

S.W.2d 752, 757 (Tenn. Crim. App. 1990). As to the waiver of lesser included offenses,

the court found that it was the trial court, and not Counsel, that decided to charge the lesser

included offenses on the murder and criminal attempt charges. The court found that

Petitioner ultimately benefited from the inclusion of the lesser included offenses, and even

if Counsel had attempted to waive them, the trial court would not have been bound by any

such waiver. Accordingly, the court concluded that Petitioner failed to demonstrate any

prejudice as to the waiver of lesser included offenses.

Analysis

On appeal, Petitioner argues that trial counsel was ineffective in two ways: first, by

failing to request a severance so Brown’s statement could be introduced in a separate trial,

or alternatively, failing to introduce Brown’s statement in the joint trial; and second, by

failing to waive the lesser included offense instruction as to the charge of employing a

firearm during the commission of a dangerous felony. Petitioner also raises a standalone

due process claim, arguing due process requires that a criminal defendant should be able

to affirmatively waive lesser included offense instructions. The State argues that Counsel

was effective and that Petitioner’s standalone due process claim is waived. We agree with

the State.

I. Ineffective Assistance of Counsel

Post-conviction relief is available only “when the conviction or sentence is void or

voidable because of the abridgment of any right guaranteed by the Constitution of

Tennessee or the Constitution of the United States.” Tenn. Code Ann. § 40-30-103. Both

our state and federal Constitutions guarantee the right to effective assistance of counsel.

See U.S. Const. amend. VI; Tenn. Const. art. 1, § 9. Thus, the denial of effective assistance

of counsel is a cognizable claim under our Post-Conviction Procedure Act. See Phillips v.

State, 647 S.W.3d 389, 400 (Tenn. 2022).

When considering a claim of ineffective assistance of counsel, a reviewing court

“begins with the strong presumption that counsel provided adequate assistance and used

reasonable professional judgment to make all significant decisions,” and “the petitioner

bears the burden of overcoming this presumption.” Kendrick v. State, 454 S.W.3d 450,

458 (Tenn. 2015) (citation modified). To meet this burden, a petitioner must clearly and

convincingly prove the facts underlying the ineffective assistance of counsel claim. See

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Tenn. Code Ann. § 40-30-110(f). A petitioner must then show that (1) counsel’s

performance was deficient and (2) the deficient performance prejudiced the defense. See

Strickland v. Washington, 466 U.S. 668, 688, 693 (1984). In practice, a petitioner must

prove “the fact of counsel’s alleged error by clear and convincing evidence,” and if that

burden of proof is met, the court then must assess under Strickland whether that error

constitutes ineffective assistance of counsel. Dellinger v. State, 279 S.W.3d 282, 294

(Tenn. 2009) (emphasis in original) (reconciling statutory burden of proof with Strickland).

To establish deficient performance, a petitioner must show that “counsel made

errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant

by the Sixth Amendment.” Strickland, 466 U.S. at 688. Thus, deficient performance is

representation that falls below “an objective standard of reasonableness” as measured

“under prevailing professional norms.” Id. However, counsel has “wide latitude . . . in

making tactical decisions.” Id. at 689. A petitioner must “overcome the presumption that,

under the circumstances, the challenged action might be considered sound trial strategy.”

Id. (citation modified). A reviewing court 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.” Id. at 690. Accordingly, “strategic choices made after thorough investigation of

law and facts relevant to plausible options are virtually unchallengeable.” Id.

To establish prejudice, a petitioner “must show that there is a reasonable probability

that, but for counsel’s unprofessional errors, the result of the proceeding would have been

different.” Id. at 694. “A reasonable probability is a probability sufficient to undermine

confidence in the outcome.” Id. When the issue is that “trial counsel failed to discover,

interview, or present witnesses in support of his defense, these witnesses should be

presented by the petitioner at the evidentiary hearing.” Black, 794 S.W.2d at 757. “It is

elementary that neither a trial judge nor an appellate court can speculate or guess on the

question of whether further investigation would have revealed a material witness or what

a witness’s testimony might have been if introduced by defense counsel.” Id. Failure to

present such witnesses at the evidentiary hearing is a failure to show prejudice. Id. at 758.

Failure to satisfy either prong under Strickland results in denial of relief. Phillips,

647 S.W.3d at 401; Strickland, 466 U.S. at 697. Appellate review of ineffective assistance

of counsel claims are mixed questions of law and fact, which are reviewed de novo. See

Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001). The post-conviction court’s factual

findings, credibility determinations, and the weight and value assigned to witness

testimony are presumed correct unless the record preponderates against them. Id. at 456.

The court’s conclusions of law receive no deference or presumption of correctness on

appeal. Id.

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A. Co-Defendant Brown’s Statement to Police

Brown gave a statement to police following his arrest in which he said Petitioner

acted in self-defense and the first gunshots came from the victim’s direction. He said

although he never saw the victim with a weapon, he heard the first shots and then saw

Petitioner firing in response. Brown also denied delivering the firearm used by Petitioner

just before the shooting started. Both Brown and Petitioner waived their right to testify at

trial during a Momon hearing.2

Petitioner argues that Counsel was ineffective by failing to sever Petitioner’s trial

from Brown’s trial, or alternatively, failing to introduce Brown’s statement in the joint trial.

He argues that had Counsel moved for a severance, Brown’s statement could have been

introduced or Brown could have testified, but even absent a separate trial, the statement

could have been admitted in the joint trial under a hearsay exception. Petitioner’s argument

turns on (1) the reasonableness of Counsel’s decision to try the case jointly; (2) the

admissibility of Brown’s statement to police; and (3) Brown’s willingness to testify during

trial. We address each question in turn.

As to severance, the post-conviction court found that Counsel made a reasonable

strategic decision in not requesting severance. The court credited Counsel’s testimony that

he consulted with Brown’s attorneys multiple times before deciding to pursue a joint

defense. He further testified that he did not believe that he had a good faith basis for

introducing the statement, absent Brown deciding to testify, and even then, he did not

believe that Brown’s decision to testify would affect their joint strategy of self-defense.

Further, Petitioner testified that he never objected to the case being tried jointly. Petitioner

has offered no evidence to overcome the presumption that Counsel’s conduct “might be

considered sound trial strategy.” See Strickland, 466 U.S. at 689. Thus, when viewed at

the time of Counsel’s challenged conduct, we agree with the post-conviction court that

Counsel made a reasonable strategic decision in not seeking severance. See id. at 690.

Beyond the reasonableness of Counsel’s decision on this point, we note that

Petitioner cannot show that he suffered any prejudice because of the decision not to sever.

As he makes clear in his brief, Petitioner only challenges the decision to not request a

severance to the extent that a severance would have facilitated the admissibility of Brown’s

statement or his live testimony during a separate trial. However, Petitioner has failed to

show that Brown’s statement would have been admissible in either a joint trial or a severed

trial. He also fails to show that Brown was willing to testify.

2

See Momon v. State, 18 S.W.3d 152, 162 (Tenn. 1999) (describing procedure trial courts and

defense attorneys should follow when a criminal defendant chooses not to testify).

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As to admissibility, Petitioner states—without citation to supporting authority—that

Brown’s statement would have been admissible as an admission by a party-opponent or a

statement against interest. We disagree. Hearsay is an out-of-court statement offered to

prove the truth of the matter asserted in the statement. See Tenn. R. Evid. 801. The

statement here was given by Brown well before trial, and according to Petitioner, it would

have been offered to show that Petitioner acted in self-defense. It thus qualified as hearsay

and would have been inadmissible, regardless of severance, unless it fell under one of the

provided exceptions. See Tenn. R. Evid. 802.

Tennessee Rule of Evidence 803(1.2) permits the admission of an out-of-court

statement if the statement is made by a party-opponent and is offered against that party.

Here, Brown was neither a party-opponent nor was the statement to be offered against

Brown. Rather, Brown was a co-defendant in a joint trial, and the statement would have

supported their mutual strategy of self-defense. The hearsay exception for statements by a

party-opponent is, therefore, inapplicable.

Tennessee Rule of Evidence 804(b)(3) permits the admission of certain out-of-court

statements if those statements are against the declarant’s interest and the declarant is

unavailable to testify, as defined in Rule 804(a). When Brown asserted his Fifth

Amendment right not to testify, he became unavailable for the purpose of Rule 804. See

State v. Dotson, 254 S.W. 378, 392 (Tenn. 2008). Yet, Petitioner has made no effort to

show that the assertions contained in Brown’s statement were against his interest.

Although we decline to structure an argument on Petitioner’s behalf, we observe that

Brown’s statement tended to exculpate his own role in the shooting and support the joint

strategy of self-defense. Because Petitioner does not show that Brown’s statement was

admissible—in either the joint trial or a separate trial—he cannot show that he suffered any

prejudice from Counsel’s decision not to seek severance or introduce the statement during

the joint trial.

Petitioner is left only with the question of whether Brown was willing to testify.

But, again, he fails to show prejudice. The record is devoid of any credible evidence that

Brown was willing to testify. The only evidence on this point, which the post-conviction

court discredited, was Petitioner’s own testimony that Brown wanted to testify. Such self-

serving testimony in the face of Brown’s voluntary waiver of his right to testify at trial is

insufficient to clearly and convincingly prove the facts underlying Petitioner’s claim. See

Dellinger, 279 S.W.3d at 294. Further, this court has long held that when a petitioner

claims that “trial counsel failed to . . . present witnesses in support of his defense,” such

witnesses must be presented during the post-conviction hearing. Black, 794 S.W.2d at 757.

Brown did not testify at the post-conviction hearing. We cannot speculate whether Brown

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was willing to testify or what he would have said. For these reasons, Petitioner cannot

show prejudice.

In sum, Petitioner has failed to show that Counsel’s decision not to seek severance

was unreasonable, Brown’s pretrial statement would have been admissible, or that Brown

was willing to testify during trial. Accordingly, he fails under Strickland to show that

Counsel was ineffective. Petitioner is not entitled to relief.

B. Waiver of Lesser Included Offense Instruction

The Grand Jury indicted Petitioner for employing a firearm during the commission

of attempted second degree murder. See Tenn. Code Ann. § 39-17-1324(i)(B) (defining

dangerous felony to include an attempt to commit second degree murder). In its charge to

the jury, the trial court instructed that “the term ‘dangerous offense’ is limited to Attempted

Second Degree Murder [as charged] and Attempted Voluntary Manslaughter [as the lesser

included offense of attempted second degree murder] . . . .” At trial, Counsel did not object

to the lesser included offense in the instruction, and the jury returned a verdict convicting

Petitioner of the firearm charge and finding attempted voluntary manslaughter as the

predicate dangerous felony upon which the firearm charge was based.

Petitioner now argues that Counsel was ineffective for failing to affirmatively waive

the inclusion of “attempted voluntary manslaughter” in the instruction for the related

firearm charge. He argues that Counsel should have pursued an “all-or-nothing” strategy

with respect to the firearm charge (but not the attempted second degree murder charge).

Although his briefing implies otherwise, Petitioner conceded at oral argument that the law

permits a trial judge to instruct on lesser included offenses over the objection of a

defendant. See Tenn. Code Ann. § 40-18-110(d) (“The defendant’s objection [to a

proposed lesser included offense instruction] shall not prevent . . . the judge from

instructing on lesser included offenses.”). When asked about this statute, Petitioner,

through counsel, responded: “I am conceding that the language is clear, unambiguous, and

it means what is says.”

To show Counsel was ineffective for failing to waive the lesser included offense,

Petitioner must show—among other things—that the law permitted Counsel to

affirmatively waive the lesser included instruction and that there exists reasonable

probability that the result of the proceeding would have been different had Counsel waived

the instruction. See Strickland, 466 U.S. at 694. Here, the relevant statute provides no

mechanism for a defendant to affirmatively waive lesser included instructions in a way that

binds the trial court. Rather, the trial court retains full discretion to instruct on any lesser

included offense so long as the evidence presented, viewed in the light most favorable to

the existence of the lesser included offense, “is legally sufficient to support a conviction

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for the lesser included offense.” Tenn. Code Ann. § 40-18-110(a), -(d). At most, Counsel

could have objected to the instruction, but there is no evidence that the trial court would

have excluded the instruction as a result. On these facts, we need not decide whether

Counsel’s decision to not object was deficient because Petitioner cannot show prejudice.

See Phillips, 647 S.W.3d at 401 (failing to satisfy either prong under Strickland results in

denial of relief). Petitioner is, therefore, not entitled to relief.

II. Due Process

Conceding that Code section 40-18-110(d) proves dispositive of his argument about

lesser included offenses, Petitioner asks this court to find the above referenced provision

of the Code—which grants the trial court discretion to instruct on lesser included offenses

over the objection of the defendant—unconstitutional under the Fourteenth Amendment’s

Due Process Clause. Petitioner raises this standalone due process issue for the first time

on post-conviction appeal. Because he did not raise it below, the issue is waived. See

Walsh v. State, 166 S.W.3d 641, 645-46 (Tenn. 2005) (“Issues not addressed in the post-

conviction court will generally not be addressed on appeal.”). This issue is also waived

under our Post-Conviction Procedure Act because it could have been raised in the motion

for new trial and on direct appeal. See Tenn. Code Ann. § 40-30-106(g) (“A ground for

relief is waived if the petitioner personally or through an attorney failed to present it for

determination in any proceeding before a court of competent jurisdiction in which the

ground could have been presented . . . .”). Although there are two exceptions to this waiver

rule, see Tenn. Code Ann. § 40-30-106(g)(1)-(2), neither exception applies here. Petitioner

is, therefore, not entitled to relief.

Conclusion

For the reasons above, we affirm the judgment of the post-conviction court.

s/ Matthew J. Wilson

MATTHEW J. WILSON, JUDGE

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