Bryan R. Milam v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs July 16, 2013

BRYAN R. MILAM v. STATE OF TENNESSEE

Appeal from the Circuit Court for Wayne County

No. 15059 Jim T. Hamilton, Judge

No. M2012-01981-CCA-R3-PC - Filed January 15, 2014

The Petitioner, Bryan R. Milam, appeals the Wayne County Circuit Court’s denial of his

petition for post-conviction relief from his convictions for first degree murder and second

degree murder and resulting sentence of life plus twenty-three years. On appeal, the

Petitioner contends that the post-conviction court erred in denying relief because he was

denied the effective assistance of counsel at trial, at the motion for new trial hearing, and on

appeal. Specifically, the Petitioner argues that his various attorneys (1) failed to present

rebuttal medical evidence concerning the “tight” nature of the victim’s wound or challenge

the credibility of the medical examiner, Dr. Charles Harlan, who had lost his medical license

following the Petitioner’s convictions; and (2) failed to present a firearms expert who had

tested the condition of the murder weapon and determined that it was not working properly.

Following our review, we affirm the denial of relief.

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

D. K ELLY T HOMAS, J R., J., delivered the opinion of the court, in which C AMILLE R.

M CM ULLEN and R OGER A. P AGE, JJ., joined.

Robert C. Richardson, Jr., (at post-conviction hearing and on appeal), Columbia, Tennessee;

and Chelsea Nicholson (on appeal), Nashville, Tennessee, for the appellant, Bryan R. Milam.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Senior Counsel; T.

Michel Bottoms, District Attorney General; and J. Douglas Dicus, Assistant District Attorney

General, for the appellee, State of Tennessee.

OPINION

FACTUAL BACKGROUND

The Petitioner was indicted by the Wayne County Grand Jury for two counts of first

degree premeditated murder resulting from the May 15, 1996 shooting death of his pregnant

wife. After successfully appealing his initial convictions for both counts, the Petitioner was

retried and convicted of first degree murder for the shooting death of his wife and second

degree murder for the death of his unborn child. See State v. Brian 1 Milam, No. M2008-

00695-CCA-R3-CD, 2010 WL 744398 (Tenn. Crim. App. Mar. 3, 2010) (second direct

appeal, convictions and sentences affirmed by this court), perm. app. denied, (Tenn. Aug. 26,

2010); see also State v. Bryan A. Milam, No. 01C01-9712-CC-00557, 1999 WL 701419

(Tenn. Crim. App. Sept. 10, 1999) (first direct appeal, convictions reversed by this court).

The Petitioner was sentenced to life for first degree murder and twenty-three years for second

degree murder, to be served consecutively. See Milam, 2010 WL 744398, at *9.

The following evidence, as recited by this court on direct appeal, was adduced at the

Petitioner’s second trial:

On May 12th or 13th 1996, [the Petitioner] and Ernest Moyer were

canoeing on the Buffalo River. When they returned to [the Petitioner’s] house,

Mr. Moyer overheard [the Petitioner] and the victim arguing about a charge

account at a store. Mr. Moyer saw [the Petitioner] pull a gun out and say that

“he’d put a hole through her and that goddamn baby.” Mr. Moyer saw [the

Petitioner] follow the victim down the hall towards the bedrooms with his gun

in his hand. Mr. Moyer grabbed the two children who were in the house and

took them out onto the front porch. Mr. Moyer did not see [the Petitioner]

shoot or hit his wife that day.

On May 15, 1996, Heather Olive was visiting Jason and April Griggs

who lived two houses down from [the Petitioner] and the victim. Ms. Olive

and Mrs. Griggs both testified to the following facts. Ms. Olive and the

Griggses were visiting outside in the driveway. They saw [the Petitioner]

arrive home. He drove up into the yard and went inside his house. They heard

a shot and saw children running and screaming out of the victim’s house. The

children ran across the street to a neighbor’s house. [The Petitioner] came out

of the house, went to the car, got something out of the car, ran around to the

back of the house, and went back into the house. He was in a hurry but was

not hysterical. Ms. Olive and the Griggses heard another shot. [The

Petitioner] came back out of the house, ran around the house, and went back

in again. When [the Petitioner] ran around the house, Ms. Olive positioned

herself so she could watch him. She saw [the Petitioner] throw something into

the woods. [The Petitioner] was not hysterical. Shortly thereafter, [the

1

The Petitioner’s first name was spelled as “Brian” in his second direct appeal to this court.

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Petitioner] came out of the house pulling the victim’s body. [The Petitioner]

was hysterical and repeating, “Why did you do this, baby? Don’t leave me,

baby.” When Police Chief Gene Seitz arrived on the scene, Ms. Olive told him

that she saw [the Petitioner] throw something in the woods.

Ms. Pam Askins also lived in the neighborhood. On the evening in

question, she was getting ready to take her baby for a walk in the stroller. She

saw the Griggses outside their house. She heard a gunshot and saw the

children run out of the house. Ms. Askins heard another gunshot and saw [the

Petitioner] run out of the house and go to his car. She returned home and

called [the Petitioner’s] grandmother to tell her that there had been an accident

at the house and see if she wanted to go to the hospital. Ms. Askins picked

[the Petitioner’s] grandmother up in the car and took her to the hospital. At the

hospital, [the Petitioner] told Ms. Askins that the victim had shot herself and

indicated that she had shot herself under the chin.

Jay McWilliams and his wife Sharon lived directly across the street

from [the Petitioner] and the victim. On the evening of May 15, 1996, he was

standing in his carport. While he was there, he heard a gunshot inside the

house across the street. Then he saw three children come across the street to

his house. The oldest, Falen, was saying, “My brother is going to shoot hisself

[sic]” and “Call 911, Call 911. My brother has shot his wife.” Edith Dickson

was staying with Sharon and Jay McWilliams, her daughter and son-in-law.

She was washing dishes when a boy arrived at the kitchen door who was

crying and yelling “Call 911.” A girl with him said, “My brother has shot his

wife.” Another child said, “Daddy had shot his wife and blood was running

out on the pillow.” Another child said, “Oh, my mama has got a baby in her

belly and my baby is dead.” Ms. Dickson stopped washing the dishes when the

children came into the house. She heard a gunshot. Mrs. McWilliams was at

the carport door when she heard a gunshot and called 911 after hearing the

gunshot. Mr. McWilliams went back outside and saw [the Petitioner] carrying

the victim out of the house when Chief Seitz arrived. Chief Seitz told [the

Petitioner] to put his wife down on the ground. Mr. McWilliams heard [the

Petitioner] tell Chief Seitz to call an ambulance. The McWilliams family kept

the children in the living room and tried to calm them down.

Chief Seitz of Waynesboro was at home on May 15, 1996. He heard a

call on his police scanner about shots being fired. Chief Seitz called the

dispatcher and discovered that the shots were being fired at the Milam

residence. He told the dispatcher he was on his way. When he arrived, he

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noticed a group of adults and children in the yard across the street from the

Milam residence. He walked toward the door, and [the Petitioner] came

running out of the door. [The Petitioner] was crying and hysterical. He also

was covered with blood. [The Petitioner] said “Help me. My wife’s been

shot.” Chief Seitz entered the home and found the victim, who was [the

Petitioner’s] wife, on the couch with her head slumped over her chest. Chief

Seitz walked over to her and noticed a gun laying on the couch to her right and

blood everywhere. Chief Seitz opined at trial that there was no way that the

victim could have reached the gun from her position on the couch. At the

scene, he saw that the victim had a bullet hole below her scalp in the center of

her forehead. Later at the hospital, he discovered that there was an exit wound

at the base of her skull below the hairline.

He told [the Petitioner] that he was going to call for help and went

outside to his patrol car. When Chief Seitz turned to get out of the car,

Sergeant Chris Ray was arriving, and [the Petitioner] was coming through the

front door carrying the victim. Chief Seitz forced [the Petitioner] to the

ground with the victim, and the ambulance arrived at that time. Chief Seitz

noticed that the victim’s body was lifeless. While emergency personnel began

to work on the victim, Chief Seitz and Sergeant Ray went to look for any other

individuals in the house. They did not perform a crime scene investigation.

Immediately after the ambulance arrived, [the Petitioner] ran and got into a car,

jumped a ditch with the car, and left before the ambulance. Chief Seitz later

discovered that [the Petitioner] proceeded to the hospital.

Dr. Harold Polk is the medical director for the emergency room at the

Wayne County Medical Center where the victim was taken. On the day in

question he was at the hospital teaching a class. He went to the emergency

room in response to a “Code Blue” that had been called at the hospital. He and

another doctor went outside the emergency room to await the ambulance. He

saw a car rapidly approaching the emergency room. He saw the driver get out

of the car, and later learned that it was [the Petitioner]. [The Petitioner]

appeared to be very upset and was asking where the ambulance was. [The

Petitioner’s] clothes were stained with lots of blood. The ambulance arrived

at 7:45 p.m. Emergency personnel wheeled the victim into the emergency

room. Dr. Polk noticed that she was covered in blood and that there was an

injury to her forehead. The victim was not responding to any efforts by

emergency personnel. The hospital had been told that the victim was pregnant,

Dr. Polk had assembled a surgery team to attempt to save the infant. The

surgery team performed a cesarean section. When the infant was delivered it

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was dead. Dr. Polk stated that an infant born at thirty-two weeks, the age of

the victim’s infant, who was in the same physical condition as far as weight,

“would have very much a potential to survive.” Dr. Polk had an opportunity

to speak with [the Petitioner]. [The Petitioner] told Dr. Polk that the victim

had grabbed the gun from him, and then [the Petitioner] pointed his hands at

his head and said “bang.”

Chief Seitz remained at the scene after the ambulance left. He and

Sergeant Ray taped off and secured the scene. The Tennessee Bureau of

Investigation (“TBI”) crime scene investigators arrived around 9:30 p.m. The

TBI investigators took pictures of the scene and collected evidence. Chief

Seitz said that the TBI agents found two empty bullet casings laying on the

floor, about a foot and a half in front of the couch. Several 9 millimeter

casings with bullets in them were found in between the cushions of the couch.

Chief Seitz also observed a bullet hole that started at the top of one cushion,

exited at the bottom of the cushion, entered the wall behind the couch, and

lodged in an electrical outlet on the other side of the wall. This bullet hole was

directly behind where the victim’s head had been when she was sitting on the

couch. A second bullet hole was found in the living room inside the front

entrance. This wall is on the opposite wall from the couch.

Chief Seitz also conducted a search about thirty yards behind the house.

He found a black weapons carrying case at the edge of the woods bordering

the backyard. Chief Seitz called one of the TBI agents out to investigate it.

The TBI agent collected the case and opened it in Chief Seitz’s presence. It

contained a Tach 9, which can be either an automatic or semi-automatic pistol.

Sergeant Ray noticed that there was a blue Toyota sitting in the

driveway. There was blood smeared on the driver’s side door. When [the

Petitioner] carried the victim out of the house toward Chief Seitz, Sergeant

Ray was in the vicinity. He stated that the smell of alcohol on [the Petitioner]

was obvious. Sergeant Ray stated that if [the Petitioner] had been driving and

Sergeant Ray had pulled him over, the level of alcohol smell on [the

Petitioner] would have prompted him to administer some field sobriety tests.

Sergeant Ray stated that he interviewed Falen Swafford, [the Petitioner’s]

sister. Miss Swafford told him that [the Petitioner] and the victim had been

fighting.

At the time of the incident, Chief Byron Skelton was an investigator

with the Waynesboro Police Department. He arrived at the scene at 7:49 p.m.

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the day of the incident. He went inside the house and saw a couch with a large

pool of blood and a gun laying on the right end of the couch. He also noticed

some broken pottery and furniture that had been turned over in the dining

room. Chief Skelton also found a telephone laying on the floor in the kitchen

with a large concentration of blood around it. The kitchen is behind the living

room and is separated from the living room by a wall. Chief Skelton went to

the hospital to observe the victim. He stated that she had a star-shaped,

entrance wound on her forehead and an exit wound at the base of her skull.

Chief Skelton and another investigator proceeded to the Wayne County

Jail to interview [the Petitioner]. The officers Mirandized [the Petitioner].

[The Petitioner] was calm throughout this exchange. The other officer

informed [the Petitioner] that the victim had died. [The Petitioner] jumped

from the chair he had been sitting in and turned the table over. He dropped to

the floor and accused the officers of “messing with him.” [The Petitioner]

curled up on the floor in a fetal position. Chief Skelton attempted to console

[the Petitioner]. [The Petitioner] grabbed his hair with both hands and began

beating his head on the floor. Chief Skelton calmed [the Petitioner] down and

convinced [the Petitioner] to sit in a chair. Chief Skelton asked [the Petitioner]

what had happened. [The Petitioner] answered Chief Skelton’s questions

calmly and logically. [The Petitioner] told Chief Skelton that he had been

moving furniture and went to Willie’s Bar and Grill afterwards. He called the

victim to come pick him up at Willie’s. When they arrived home, he decided

he wanted to go back. The victim began “bitching and raising hell” about [the

Petitioner] returning to the bar. He grabbed his Jennings 9 from the couch and

put it in his back pocket. The victim grabbed it out of his pocket. [The

Petitioner] turned around and reached for the gun, and it went off twice. [The

Petitioner] admitted to Chief Skelton that he was already carrying a Tach 9

when he arrived home. He told Chief Skelton that he threw the Tach 9 in the

woods after the shooting because he thought that it was illegal. [The

Petitioner] also told Chief Skelton that he called the operator after the victim

was shot. Chief Skelton confirmed that [the Petitioner] called the operator at

7:20 p.m.

Special Agent Wayne Wesson is a criminal investigator with the TBI.

He was called to the scene around 9:00 p.m. and arrived around 9:30 p.m. He

was escorted to the house by Sergeant Ray. When he arrived, Agent Wesson

looked through the window and saw that the house was in disarray. There was

blood on both the couch and the storm window on the front porch. Sergeant

Ray informed Agent Wesson that the victim had already been transported to

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the hospital. At the hospital, Sergeant Ray photographed the wounds on the

victim’s body. He photographed a contact wound to the forehead and an exit

wound in the hairline on the back of her head. Agent Wesson stated that the

wound to the forehead was a classic contact wound because with a contact

wound “you find a star-shaped splitting of the skin because the gases that are

expelled from the barrel, as the bullet is projected out of the barrel, do not go

into the skull. They disperse beneath the skin and explode backwards, giving

you a star-shaped wound.” To achieve a contact wound, the weapon must be

placed against the skin.

Agent Wesson spoke with [the Petitioner] while he was at the hospital.

He took an oral statement. [The Petitioner] was very upset at the hospital, but

was not hysterical during the interview until the end of the interview. Agent

Wesson asked [the Petitioner] what had happened to the victim and how she

ended up with a gunshot wound to the forehead. Agent Wesson also asked

[the Petitioner] if the gun on the couch or the gun in the woods is what [the

Petitioner] shot her with. Agent Wesson testified to the following exchange

with [the Petitioner]:

I asked him to tell me what happened. He said that he

had gotten home from Willie’s and was going to go back to

Willie’s and that Susan started bitching and she didn’t want him

to go. So he said he went into the house to get his gun out from

under the cushion, out from under the couch cushion; he stuck

it in his back pocket, and that she grabbed it out. As he started

back out of the house, she grabbed the gun out of his back

pocket. He said he wanted it back, so he grabbed for it. I asked

him why he grabbed for it, and he said because it was his and

because he wanted it.

I asked him if it was an accident-I’m sorry. I asked him

what happened then, and he said “It was an accident. I grabbed

for the gun and it fired.” I said “Where were your hands when

the gun went off?” And he said “I don't know.” I said “Where

were her hands when the gun went off? He said “I don’t know.

I don’t remember.” I said “Why did you throw the gun in the

woods behind the house?” He said “Because I wasn’t supposed

to have it. It was illegal.”

I said “Which one of the guns was she killed with,

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Bryan?” And he became very upset, said “The Jennings, the one

I laid on the couch.” I said “After she was shot, what did you do

with the gun?” He said “I laid it on the couch. I laid it on the

couch.” I said “Well, Bryan, I’d like to take a gunshot residue

of your hands,” and he became upset and that’s when he told his

mother I was trying to fuck him.

Agent Wesson stated that the officers secured a search warrant to take

a blood sample from [the Petitioner] because he would not consent to giving

a blood sample. They also collected [the Petitioner’s] clothes to be tested for

gunshot residue. The test found gunshot residue on his shirt and pants. Agent

Wesson did not obtain samples to have a gunshot residue test performed for

[the Petitioner’s] hands. He did testify that if an individual was shot in the

forehead by a weapon pressed to the forehead, the victim would have gunshot

residue on their body.

The gun found in the home was a Jennings nine millimeter,

semi-automatic. Two shell casings that were found on the floor in front of the

couch were sent to the TBI crime lab and were determined to have been fired

from the Jennings 9. Agent Wesson found two bullets, one in the wall behind

the couch and another in the frame surrounding the front door. Both bullets

were nine millimeters and would have fit the Jennings 9.

Special Agent James Davis is a forensic scientist with the TBI. Agent

Davis works in the micro analysis section which includes gunshot residue

analysis. Agent Davis received a gunshot residue kit recovered from the hands

of the victim, as well as, the pants and shirt of [the Petitioner]. Agent Davis

found gunshot residue on both the pants and the shirt. The pattern of the

gunshot residue found on the shirt and pants is consistent with an individual

who held a gun tightly to a victim’s forehead and fired the gun which caused

the gases in the weapon to blow backwards. With regard to the gunshot

residue kit from the victim’s hands, Agent Davis testified that the results were

inconclusive. However, he did not find the amount of residue on her hands

that he would have thought would be on a shooter’s hands. If someone was

holding a gun and shot themselves in the head, there would have been a

significant amount of residue on their hands.

Agent Steve Scott works in the firearms identification section of the

TBI laboratory. He tested that Jennings 9 and concluded that the two shell

casings found in front of the couch were fired from that weapon. He also

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testified that the weapon in question was not a hair trigger gun, but required

seven pounds of force to pull the trigger.

Dr. Charles Harlan was the medical examiner and the consulting

forensic pathologist for Wayne County. He performed the autopsies on the

victim and the baby boy. He stated that the victim had a gunshot wound to the

forehead that was in the shape of a star and exhibited the presence of black

powder on the edges of the wound. An exit wound was examined at the base

of the skull. There was a seven inch difference between the height of the two

wounds. The bullet traveled from front to back. The star-shaped wound with

black powder is indicative of a tight contact gunshot wound. In the case at

hand, a tight contact gunshot wound is created by the weapon being pressed

against the skin when the weapon is discharged. It is not physically possible

to create such a wound from the gun being shot from an arm’s length away.

He stated that when considering the path of the bullet through the couch, the

victim’s head would have had to have been laying on the top of the couch

cushion. Dr. Harlan concluded that the cause of death was a tight gunshot

wound to the head.

Dr. Harlan also completed an autopsy on the victim’s baby. Dr. Harlan

estimated that the fetus was at a gestational age of thirty-three weeks. The

cause of death was intrauterine hypoxia which is a shortage of oxygen to the

fetus caused by the mother’s death. In other words, the mother’s death caused

the death of the child. Dr. Harlan estimated that the fetus would have survived

five to ten minutes after the victim had been shot. He also stated that

“[t]here’s no question that this child would have been viable.”

At the close of the State’s proof, the State entered a lab report which

stated that [the Petitioner’s] blood alcohol level when taken at the Wayne

County Hospital was .02. This information was entered as a stipulation at trial.

[The Petitioner] began his case with the testimony of William Pope and

Jerry Pope who know both [the Petitioner] and Mr. Moyer. They both testified

that Mr. Moyer told them that when the police came to question him about the

victim’s death, he was smoking marijuana. Mr. Moyer also told them that

because the police had caught him smoking marijuana he told the police

whatever they wanted know.

Wesley Staggs worked for [the Petitioner’s] father doing various things.

On the day in question, Mr. Staggs was helping [the Petitioner] move furniture

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from a storage unit in Florence, Alabama to the house in Waynesboro. While

they were at the storage unit, [the Petitioner] showed Mr. Staggs a sawed-off

shotgun that he kept under the cushions of the couch. He stated that on the

way back from Alabama they stopped at a bar just across the state line. They

each drank one beer. They drove to Collinwood and stopped at a combination

store and bar owned by [the Petitioner’s] father. Mr. Staggs had a beer, but

[the Petitioner] did not want one. Mr. Staggs and [the Petitioner] discussed a

gun that [the Petitioner] wanted to sell him. [The Petitioner] had the gun in the

glove compartment, but Mr. Staggs did not see it. Mr. Staggs did not buy the

gun because he did not have the money. He dropped [the Petitioner] off at [the

Petitioner’s] house around twenty minutes until 4:00. Mr. Staggs was not

planning on returning to Willie’s that day.

George Pulley is friends with [the Petitioner] and Mr. Moyer. He was

at Willie’s the day the incident occurred. He saw Mr. Staggs and [the

Petitioner] come into the bar. Mr. Staggs had one beer and left. [The

Petitioner] stayed but only drank one beer. Mr. Pulley would not let him have

more than that because [the Petitioner] could not pay for it. Mr. Pulley and

[the Petitioner] did not discuss [the Petitioner] selling him a gun at Willie’s.

[The Petitioner] did not show Mr. Pulley a gun or say anything about coming

back with a gun. [The Petitioner’s] wife and kids picked [the Petitioner] up

from Willie’s.

Falen Swafford is [the Petitioner’s] half-sister. She was eleven years

old at the time of the incident. The victim was babysitting Miss Swafford and

several other family members at the house the day the victim was shot. The

victim, Miss Swafford, and the other children picked up [the Petitioner] from

Willie’s. Miss Swafford recalled that the victim and [the Petitioner] were

arguing. When they left Willie’s, they returned to the house on Mink Branch

Road. This was the house to which the victim and [the Petitioner] were

moving. When they arrived at the house, [the Petitioner] and the victim were

arguing. Miss Swafford saw the victim grab something out of [the

Petitioner’s] back pocket which Miss Swafford thought was a set of keys. [the

Petitioner] attempted to get the item back from the victim. Miss Swafford was

outside watching through a glass door. She saw the victim walk over to the

big couch. At that point, she could no longer see the victim and [the

Petitioner], but she could hear them arguing and glass breaking. Miss

Swafford heard a shot and looked inside. [The Petitioner] was screaming and

going crazy. The victim was on the couch. Miss Swafford could see blood

near the victim’s ears and on her nose. [The Petitioner] was screaming, “Oh,

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my God. She’s been shot.” [The Petitioner] came out of the house and told

Miss Swafford to call the police. She grabbed the children and ran across the

street. Miss Swafford saw [the Petitioner] carry the victim out of the house.

She also saw her mother, the police, and the ambulance arrive.

Miss Swafford gave a statement about the incident to Agent Wesson.

She admitted that she had a better recollection of what happened when she

gave the statement because it was closer in time. Miss Swafford denied that

she saw a gun, even when the State produced her statement in which she stated

she saw the gun.

Dale Ray is a paramedic who was in the ambulance that responded to

the call about the victim’s shooting. When the ambulance arrived, Mr. Ray

saw [the Petitioner] carrying the victim out of the house and into the yard. Mr.

Ray and the other technician began to work on the victim. While they were

working on her, [the Petitioner] was screaming, grabbing their arms, and

begging the paramedics not to let the victim die. They moved her to the

ambulance and took her to the hospital. [The Petitioner] arrived at the hospital

before the ambulance. Mr. Ray observed that [the Petitioner] was still

hysterical and continued to beg them to not let the victim die.

[The Petitioner] was the final witness at the trial. At the time of the

incident, [the Petitioner] and the victim were in the process of moving from

Alabama to the Mink Branch house. Their financial status at the time was

“tight.” On the morning of the incident, [the Petitioner] went with Mr. Staggs

down to Alabama to pick up furniture to bring back to Tennessee. They

stopped at two bars on the way back to Tennessee. They returned to the Mink

Branch house and began to unload the furniture. After unloading the furniture,

Mr. Staggs left. The victim drove [the Petitioner] to a trailer across from

Willie’s bar so he could help his father refurbish it. After finishing in the

trailer, [the Petitioner] went to Willie’s and called the victim to come pick him

up. She arrived with all the children. [The Petitioner] got in the car, and they

returned to the Mink Branch house.

When they arrived at the house, the victim and [the Petitioner] began

to argue because he wanted to return to Willie’s. The victim did not want him

to go because there were a few women there she did not like. [The Petitioner]

explained that the victim did not like these women because he had engaged in

extramarital affairs. The victim grabbed the keys from [the Petitioner] during

the argument. [The Petitioner] grabbed the keys back from the victim. The

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victim went and sat on the couch. [The Petitioner] reached over and got the

gun from under the cushion. [The Petitioner] wanted to sell the gun to

someone at Willie’s. When [the Petitioner] walked past her, the victim

grabbed the gun out of his back pocket. They then wrestled for the gun. They

hit each other while wrestling for the gun. The victim was sitting on the

couch, and [the Petitioner] was standing over her. The victim pulled the gun

back towards herself, and the gun fired. After the shot was fired, [the

Petitioner] ran to the door to tell the children to call “911.” He next grabbed

the other gun case and threw the other gun in the woods because he was afraid

it was an illegal gun. He called “911.” He did not independently remember

carrying the victim outside, but he did remember the ambulance arriving. [The

Petitioner] drove to the hospital and stopped at Willie’s and the Handy Mart

on the way to look for his father. [The Petitioner] left the hospital when the

police took him to the jail. After spending some time in a cell, Officer Skelton

and another officer questioned him. They first told [the Petitioner] that the

victim and their unborn child had died. On cross-examination, [the Petitioner]

admitted that he and the victim had a tempestuous, violent relationship. He

admitted to hitting the victim on previous occasions. He stated that he kept the

gun under the cushion of the couch on a regular basis. The gun was fully

loaded with one bullet in the chamber at all times. The safety of the gun was

kept engaged. [The Petitioner] maintained that he did not intentionally shoot

the victim. He also denied threatening to kill her or their unborn child.

Milam, 2010 WL 744398, at *1-8. This time, this court affirmed the Petitioner’s convictions

and sentences on direct appeal, and our supreme court thereafter denied the Petitioner’s

application for permission to appeal that decision. See id.

The Petitioner filed a pro se petition for post-conviction relief on June 9, 2011,

alleging multiple claims for relief, including that he was denied the effective assistance of

counsel at trial, at the motion for new trial hearing, and on appeal.2 The Petitioner was

represented by three separate attorneys during this process—one at the trial phase of these

proceedings (“trial counsel”), another at the motion for new trial hearing (“motion for new

trial counsel”), and yet another on appeal (“appellate counsel”).3 Although the petition for

2

Post-conviction counsel filed a written notice that no amended petition would be filed on the Petitioner’s

behalf.

3

As discussed later, the District Public Defender’s Office was appointed to represent the Petitioner at one

point during these proceedings. The Petitioner does not allege ineffective assistance with regard to that

representation.

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relief raised a myriad of claims, many of those allegations have been abandoned on appeal.

Accordingly, we will limit our summary to the facts relevant to the issues of ineffective

assistance presented in this appeal. The gravamen of the Petitioner’s ineffective claim is that

his various attorneys (1) failed to present rebuttal medical evidence concerning the “tight”

nature of the victim’s wound or challenge the credibility of the medical examiner, Dr.

Charles Harlan, who had lost his medical license following the Petitioner’s convictions; and

(2) failed to present a firearms expert who had tested the condition of the murder weapon and

determined that it was not working properly. These witnesses, according to the Petitioner,

would have bolstered his claim of an accidental shooting.

A hearing was held in the post-conviction court, at which the Petitioner, trial counsel,

and appellate counsel testified. The Petitioner noted that he was convicted of these offenses

following his second trial in 2000 and that his permission to appeal was denied over ten years

later in 2010. When asked why this lengthy delay occurred, the Petitioner stated, “It was just

[motion for new trial counsel] filing the paperwork.” The Petitioner confirmed that he was

represented by trial counsel at his second trial in 2000 and that trial counsel no longer

represented him “around the time that Dr. Harlan started getting in trouble.” The Petitioner

stated that trial counsel filed his initial motion for new trial but that a hearing never occurred

“until like 2007.” The Petitioner also faulted trial counsel for the failure to timely pursue the

motion for new trial, stating that he kept asking trial counsel about the motion for new trial,

but trial counsel responded to him that they were delaying the hearing as “a favor because

of the medical examiner.”

Trial counsel was retained by Petitioner’s family. The Petitioner confirmed that trial

counsel met with him and that they had “quite a bit” of communication. Trial counsel

showed the Petitioner several crime scene photos, went over the State’s evidence with him,

and discussed the elements of the offense with him. However, the Petitioner complained that

trial counsel did not present the witnesses that the Petitioner wanted to testify on his behalf.

According to the Petitioner, trial counsel was “unprepared” and did not “speak to the people

that [the Petitioner] needed him to talk to.”

Specifically, the Petitioner desired for trial counsel to talk with firearms examiner

Robert Goodwin4 “about the gun discharging.” The Petitioner testified that Mr. Goodwin

“had run some tests” on the Jennings 9mm used in the shooting and that the results of that

testing “showed that the gun discharged on repeated testing.” When asked when he became

aware of this information that the “gun was not operating properly[,]” the Petitioner stated

4

There some indication from the testimony at the post-conviction hearing that Mr. Goodwin was a TBI agent

responsible for testing the weapon. However, it appears from the direct appeal record that Mr. Goodwin was

retained as a defense expert, who reviewed the findings of the TBI.

-13-

that, after trial, trial counsel sent him some materials and that Mr. Goodwin’s findings were

included therein. Nonetheless, the Petitioner confirmed that he wanted Mr. Goodwin “to

testify before trial that the gun was not operating properly[,]” being aware of this information

from a previous attorney who had represented him during his first trial proceedings. When

asked what benefit Mr. Goodwin’s testimony would have had to his case, the Petitioner said,

“It would have showed more that it was an accident, and not an intentional purpose.”

The Petitioner stated that he also wanted Dr. Charles Harlan, the medical examiner

who testified at the Petitioner’s trial, to be called as a witness. When asked why this would

have been beneficial to his cause, the Petitioner replied,

Well, Dr. Charles Harlan had been convicted of 30 something counts,

and had lost his medical license. And I had Dr. Stanton Kessler at my motion

for a new trial. If I had known at the time I could have had somebody to rebut

[Dr.] Harlan’s testimony, and I was unable to get anybody to rebut Dr.

Harlan’s testimony because they claimed he was such a highly claimed doctor,

and he ended up not being.

The Petitioner asserted that he informed trial counsel of his desire to present these

witnesses by “[p]hone and to him personally.” According to the Petitioner, trial counsel

responded to these requests as follows: “[H]e was going to find [Dr.] Harlan, and then said

he couldn’t find him. And he told me that the [c]ourt would not pay for the other guy, which

I understood from my understanding, I’m able to subpoena people to come to court on my

behalf.” When these witnesses were not called, trial counsel informed the Petitioner, “That

they just couldn’t be found. That was it. And I’m not even aware that there was even

anything to be found to have them come to court.”

At some point after his conviction, the Public Defender’s Office was appointed to

represent the Petitioner. According to the Petitioner, the Public Defender’s Office “ended

up handing [his] case over to [appellate counsel.]” Appellate counsel was also co-counsel,

working along side trial counsel at the Petitioner’s second trial, and was appointed to appeal

the Petitioner’s case. The Petitioner stated that he did not want appellate counsel on his case

and that he tried to have appellate counsel removed “because he had left out all the evidence

about Dr. Harlan and about Mr. Goodwin[,]” but that his endeavors at removal were

unsuccessful. When asked what his grievances were with appellate counsel, the Petitioner

stated, “He left out everything about -- he left out everything about Dr. Harlan. He left out

everything about the gun discharging, and all that, sir.” The Petitioner confirmed that, on

appeal, appellate counsel challenged the sufficiency of the evidence, raised an issue

concerning admission of a witness’s statement, challenged a juror’s qualifications, and

argued sentencing issues. The Petitioner stated that he communicated with appellate counsel

-14-

through letters and that he did not want appellate counsel to file his appeal “period.” The

Petitioner claimed that he and his family “tried every way to get [his] appeal withdrawn, so

[he] could redo [his] direct appeal, and then [he and his family] had to hire” another attorney

for his motion for new trial.

Motion for new trial counsel was retained by the Petitioner’s family. The Petitioner

confirmed that, since the Petitioner’s convictions, motion for new trial counsel had

encountered “bar trouble in Indiana” and “trouble with the bar in Tennessee[.]” According

to the Petitioner, motion for new trial counsel had left “this district” and headed to California;

his most recent address was “somewhere in Utah.” The Petitioner agreed with post-

conviction counsel that post-conviction counsel had attempted to locate motion for new trial

counsel for the post-conviction hearing, to no avail, and stated that they had “a complaint to

be heard this month in front of a board on him.” The Petitioner claimed that motion for new

trial counsel “was supposed to do [his] motion for a new trial, [his] direct appeal, and [his]

post-conviction.” According to the Petitioner, motion for new trial counsel had “two

hearings in front of [Judge] Hamilton.” When asked how motion for new trial counsel was

ineffective, the Petitioner replied, “He took my money and didn’t do nothing. He messed my

whole appeal on it, sir.”

The Petitioner summarized that trial counsel was ineffective by failing to subpoena

Mr. Goodwin, Dr. Harlan, and Dr. Kessler as witnesses; that appellate counsel was

ineffective for failing to raises issues about Dr. Harlan and the gun’s malfunctioning on

appeal; and that motion for new trial counsel was ineffective because he “took [his] money

and left.”

Moreover, the Petitioner’s last argument was one of “illegal evidence.” The Petitioner

stated that he discussed with trial counsel the State’s failure to disclose that Dr. Harlan was

under investigation during the Petitioner’s trial. The Petitioner claimed that he and trial

counsel were aware of this investigation during the trial proceedings because the

investigation had been reported in the newspaper. However, according to the Petitioner, trial

counsel refused to seek a second medical expert’s opinion, such as Dr. Stanton Kessler, the

expert who testified at his motion for new trial hearing. The Petitioner confirmed that trial

counsel had an opportunity to cross-examine Dr. Harlan at trial. The Petitioner testified that

his theory of defense at his second trial was that the shooting was accidental, which theory

was a continuation “from the first trial.”

When asked how he was prejudiced by these alleged deficiencies, the Petitioner

responded, “It kept me from having a fair trial.” Specifically,

-15-

If I would have been able to have Dr. Kessler or somebody in court to

rebut [Dr.] Harlan, it would have been different. I’ve had not just Dr. Stanton

Kessler that testified, but I’ve had Bruce Levy, Amy McMaster[], Chris

Spurling, and Dr. Stanton Kessler. All have agreed from the photos . . . sent

from the [S]tate . . . that the photographs that [Dr. Harlan] claimed were

execution style gunshots are not what they are.

Trial counsel was next to testify. He stated that he had participated in over one

hundred jury trials in the criminal realm since he began practicing law in 1983, including

“dozens of first degree murder cases,” and that, at one time in his career, he worked in the

public defender’s office. Trial counsel confirmed that he was retained in the Petitioner’s case

after the Petitioner’s first jury convictions were reversed on appeal and that he represented

the Petitioner at his second trial. His records of the Petitioner’s case, which had been stored

in a storage facility, had been destroyed by a tornado; nonetheless, he recalled the facts of the

Petitioner’s case.

Questioning turned to the medical examiner’s testimony at the Petitioner’s trial. Trial

counsel was asked about his “decision not to employ an expert witness to contradict or

potentially contradict Dr. Charles Harlan[.]” Trial counsel explained his decision as follows:

Well, I remember that Dr. Harlan was the forensic pathologist that

testified in the trial. I interviewed Dr. Harlan. Of course, in hindsight, Dr.

Harlan had some problems that nobody knew about at the time. But since

then, had we known about them, there might have been a little different tactic

taken. But our theory of the defense from the defense perspective was that

there was a struggle over the weapon. There was an accidental discharge.

There was nothing from an intentional or premeditated perspective on [the

Petitioner’s] part as far as the death of his wife and the unfortunate death of the

fetus that she was carrying at the time. And that theory of the defense, and the

interview that I conducted before the trial, I’m not so sure that another expert

would have been needed. . . . I don’t know that with our theory of defense,

whether or not with the facts as I knew them to be, based on our pretrial

investigation, whether another expert would have made that much difference.

Trial counsel confirmed that he interviewed Dr. Harlan before trial and had certified copies

of Dr. Harlan’s autopsy report; in fact, he had received the discovery materials early during

his involvement in the Petitioner’s case. Trial counsel stated that Dr. Harlan’s issues were

not known until after the jury had returned its verdict of guilt in the Petitioner’s case. Trial

counsel was not aware of any specific finding by the Board of Medical Examiners during

their investigation of any wrongdoing by Dr. Harlan regarding the Petitioner’s case.

-16-

Trial counsel could not recall any issue about “the gun misfiring during testing” by

Mr. Goodwin. Trial counsel continued,

Had I known about it, and had the gun misfiring been an issue, and the

gun possibly misfiring during our theory of the case being the struggle over the

gun, we certainly would have brought that individual to court, and let him talk

about the misfiring because it might have helped [the Petitioner’s] defense.

Trial counsel remembered TBI Agent Steve Scott, the firearms expert, testifying at the

Petitioner’s trial that “the gun appeared to be in working order[.]” Trial counsel stated that

he felt prepared for the Petitioner’s trial.

On cross-examination, trial counsel testified that he did not recall conducting a

background search of Dr. Harlan. Trial counsel opined that, at the time of the Petitioner’s

trial, “[Dr. Harlan] was one of those that was perceived to be sort of an untouchable witness

because he testified in so many cases.” Trial counsel was “[v]ery” familiar with Dr. Harlan’s

work and had tried cases before involving Dr. Harlan.

Trial counsel did not recall the Petitioner’s asking for a rebuttal medical expert.

According to trial counsel,

in hindsight, if we had an expert that could have testified that the muzzle to

skin distance was different than the testimony of Dr. Harlan, then we would

have had an expert say that the gun as it was being argued over or argued with,

and went off by accident, and was closer to her skin than Dr. Harlan testified.

But that’s really the other thing that . . . the expert could have done was talk

about that distance difference.

Trial counsel stated that the he developed the defense based upon the facts as relayed to him

by the Petitioner: “[H]e told me that there was a struggle over the gun, and the gun

accidentally went off.”

Trial counsel was then asked about his recollection of Robert Goodwin’s evaluation

of the Jennings 9mm used in the shooting. Initially, trial counsel did not recall paying anyone

to perform an evaluation of the weapon. After being shown correspondence from Robert

Goodwin to trial counsel, which appeared to include a bill, trial counsel agreed that Mr.

Goodwin had examined the weapon on the Petitioner’s behalf, charging $825. According

to trial counsel, Mr. Goodwin’s report indicated that “a post had struck the bre[e]ch or the

end of the pistol with the force of sufficient imprint; the shape of a gun -- the last blow

caused the discharge[.]” When asked what impact this finding of Mr. Goodwin might have

-17-

had on the jury, trial counsel stated, “I’m not sure. I don’t know that we would have a

struggle between a husband and a wife over a gun. I don’t know that you would ever had a

situation where the gun could have been struck with the force of that nature.”

Appellate counsel was next to testify and stated that he had been practicing law since

1992, that his practice was exclusively criminal defense, that he had participated in

approximately eighty-five to one hundred jury trials, and that he handled over one hundred

appeals. Appellate counsel confirmed that he was co-counsel at the Petitioner’s trial,

assisting trial counsel with research and trial preparation. Appellate counsel opined that they

were prepared for the Petitioner’s trial.

Appellate counsel did not recall any discussions between him and trial counsel about

hiring an expert to review or examine Dr. Harlan’s conclusions from the autopsy; appellate

counsel was also familiar with Dr. Harlan and had conducted trials where Dr. Harlan was

involved. They were not aware of Dr. Harlan’s issues at the time of the Petitioner’s trial.

Appellate counsel opined, “And you know, the bottom line is Dr. Harlan may have had some

questionable practices on specific cases and specific instances, but that unfortunately for the

defense, I don’t think that undoes probably 98 or 99 percent of the cases he worked on.” Dr.

Harlan’s problems were not connected to the Petitioner’s case according to appellate counsel.

Appellate counsel stated that he was appointed to handle the Petitioner’s appeal.

Initially, he reviewed the file, which “was a mess.” In an attempt to clarify some of the

procedural history of this case, appellate counsel provided the following recitation of events:

June in 2000, the second trial concluded, and that’s the trial [trial

counsel] and I did. July 25, 2000, the [Petitioner] was sentenced. August 3,

2000, [trial counsel] filed a timely motion for a new trial. Okay. That stopped

the clock on the motion for a new trial. August 11, 2000, [trial counsel] was

appointed by the court to represent [the Petitioner] on appeal . . . .

On May 24, 2003, [trial counsel] filed a motion to withdraw alleging

irreconci[la]ble conflicts and the inability to communicate with [the Petitioner]

“having to do with the case through the client’s mother,” which has affected

the trust between all parties. Included with the motion was an affidavit by

counsel stating that, “The [Petitioner’s] mother []apparently does not trust me”

-- talking about [trial counsel] -- “to zealously represent her son. She has

cancelled appointments and accused me of getting paid off. She refuses to

give me information. She refuses to give me information that she insists I use

when I have no way of knowing what she’s talking about, among other

things.” So [trial counsel] filed a motion to withdraw.

-18-

On August 4, 2003, the judge entered an order allowing withdrawal;

and on that same date, he appointed the Public Defender to represent [the

Petitioner] on the appeal.

September 19, 2006, the Public Defender’s Office filed an amendment

to the motion for a new trial, which is still timely.

On November 8, 2006, [motion for new trial counsel] enters an

appearance as retained counsel. November 5, 2007, a year later, the trial court

conducts the hearing on the motion for a new trial; and that’s where Dr.

Kessler testified.

On February 1, 2008, the trial court entered an order denying the motion

for a new trial. 26 days later on February 27, 2008, a notice of appeal was

timely filed by me[.]

Appellate counsel then relayed the procedural history of the direct appeal which followed.

Appellate counsel confirmed that he did not include the issue of Dr. Harlan’s

credibility due to the loss of his medical license in the Petitioner’s appeal. According to

appellate counsel, the Petitioner “was adamant about” including the issue of ineffective

assistance of counsel in his direct appeal. However, appellate counsel refused because the

issue “was never raised as an issue in the motion for a new trial” and “there [was] nothing

argument-wise, proof-wise to support that issue on appeal.” Appellate counsel continued that

evidence of Dr. Harlan’s misconduct never made it into the record at the motion for new trial

level. Accordingly, appellate counsel employed the following strategy on appeal:

So being the clever lawyer that I am, and having all this information

from Dr. Kessler saying, “[Charles] Harlan did it wrong,” what I did was I

took, as best I could, Dr. Kessler’s testimony at the motion for a new trial, and

Dr. Harlan’s testimony from trial; and I shoved all that into the insufficient

evidence argument on appeal.

Appellate counsel then reviewed the issues included in trial counsel’s initial motion

for new trial and which of those he raised on appeal. He could not recall what the Public

Defender’s motion for new trial included as issues, except possibly the denial of the motion

to exhume the body. Appellate counsel acknowledged that there were additional issues the

Petitioner and his mother wanted raised; however, he did not believe that those issues had

any merit. The Petitioner requested to have appellate counsel removed after appellate

counsel had already filed his original brief. According to appellate counsel, this court gave

the Petitioner fifteen days to retain new counsel to file a supplemental brief, but the Petitioner

apparently never did so, and the appeal proceeded.

-19-

Appellate counsel was asked how this issue of Dr. Harlan’s credibility could have

been properly perfected. Appellate counsel then testified that the issue of Dr. Harlan’s

credibility was presented to the trial judge at the motion for new trial stage, although not in

terms of an issue of ineffective assistance of trial counsel. Appellate counsel made the

statement: “Obviously, that’s what Dr. Kessler and the motion for a new trial hearing all

about that was about Dr. Harlan’s credibility.” According to appellate counsel, the trial judge

commented, “Well, Dr. Harlan has not been discredited in my eyes.” He continued,

I think from the motion for a new trial standpoint, if it had affected Judge

Hamilton’s belief of the believability fo Dr. Harlan, then him as a 13th juror,

Judge Hami[l]ton could set the case aside. And that’s what the impact of that

information would have had at motion for a new trial.

Appellate counsel opined that, “had it been properly preserved,” he could have presented the

issue on appeal in the context of a thirteenth juror issue. According to appellate counsel, the

issue was more properly presented as a post-conviction issue, and in the post-conviction

context, “I think the court would have to find that Dr. Harlan’s credibility is impugned so

much, that the outcome of the second trial cannot be trusted. And therefore, a new trial based

on post-conviction.” Appellate counsel agreed that this issue of Dr. Harlan’s misconduct

could be classified as “[n]ewly discovered evidence[.]”

Appellate counsel also had “no recollection at all that [the defense] ever dealt with the

gun issue at trial.” Appellate counsel first became aware of the “potential misfire issue”

upon reading the post-conviction petition.

By order filed on August 22, 2012, the post-conviction court denied the Petitioner

relief. In addressing the Petitioner’s allegations, the post-conviction court ruled, in pertinent

part, as follows:

[Newly Discovered Evidence.]5 The [P]etitioner raises the issue that

Dr. Charles Harlan, at the time of his trial the State’s Medical Examiner,

subsequently lost his medical license and was dismissed from his position.

The [c]ourt points out this matter was thoroughly litigated at the [Petitioner’s]

motion for new trial and that the [c]ourt at that time found it to be without

merit. Both [trial counsel] and [appellate counsel] testified at the hearing in

this matter that to their knowledge nothing concerning [the Petitioner’s] case

5

Although this portion of the post-conviction court’s order addresses the issue of the medical examiner’s

misconduct in the context of the Petitioner’s newly discovered evidence claim, these findings are also

relevant the Petitioner’s ineffective assistance of counsel claim.

-20-

was involved in the discipline of Dr. Charles Harlan. The [P]etitioner put

forward no evidence at the hearing in this matter concerning Dr. Charles

Harlan that would require a setting aside of the verdict in this case. The

[c]ourt therefore finds this ground to be without merit.

....

[Trial Counsel.] The [Petitioner] alleges that [trial counsel] did not

argue the facts of the case, that he was negligent in not hiring an expert to

contradict the medical examiner, that he did not call a witness to contest an

alleged misfiring of the murder weapon during testing at the TBI laboratory

and that he did not argue the admissibility of graphic photographs at trial.

[Trial counsel] testified at the post-conviction hearing in this case and

addressed all of these issues. [Trial counsel] testified that he met with [the

Petitioner] on numerous occassions and felt very prepared to go forward at

trial. [Trial counsel] testified about his experience as a trial attorney and that

he had defended hundreds of defendants at jury trials. He also testified that

[the Petitioner’s] complaints about his handling of the case were trial tactics

and decisions about what he, as an attorney, believed to be the best focus for

the defense. The [c]ourt finds that there was no credible evidence presented

by the [P]etitioner concerning any ineffective assistance of counsel on the part

of [trial counsel] and that this ground in without merit.

[Motion for New Trial Counsel.] The [P]etitioner asserts that [motion

for new trial counsel] refused to call Dr. Harlan at his motion for new trial as

well as the medical examiners who replaced Dr. Harlan with the State of

Tennessee. He also alleges that [motion for new trial counsel] did not pursue

the issue concerning the murder weapon allegedly misfiring during testing at

the TBI laboratory. [Motion for new trial counsel] was not called as a witness

in the case, having moved out of state and could not be located by either party.

The [c]ourt does have, as an exhibit, the transcript of the motion for new trial

and has upon review determined that [motion for new trial counsel] made

adequate and complete arguments on behalf of [the Petitioner]. The [c]ourt

finds that the [P]etitioner did not put forward sufficient evidence to support

this ground of ineffective assistance of counsel on the part of [motion for new

trial counsel] and finds that this ground is without merit.

[Appellate Counsel.] The [P]etitioner’s sole complaint against

[appellate counsel] appears to be that he did not include in his argument to the

Court of Criminal Appeals the issue of Dr. Charles Harlan losing his medical

license as a ground for relief. [Appellate counsel] testified at the hearing for

post-conviction relief in this matter. It was obvious to the [c]ourt that

[appellate counsel] had made a thorough investigation of [the Petitioner’s] case

during his work on the appeal in this matter. [Appellate counsel] testified that

-21-

he did not include the grounds concerning Dr. Charles Harlan because it had

not been included in the written motion for new trial. However, he also stated

that it was his considered opinion this ground, even if included on appeal,

would have been very hard to substantiate. The [c]ourt finds that the

[P]etitioner has not put forward sufficient evidence to support this ground and

finds it to be without merit.

The Petitioner filed a timely notice of appeal.

ANALYSIS

On appeal to this court, the Petitioner contends that his counsel—trial, motion for new

trial, and appellate—all failed to provide the effective assistance guaranteed him by the

United States and Tennessee constitutions. Petitions for post-conviction relief are governed

by the Post-Conviction Procedure Act. Tenn. Code Ann. §§ 40-30-101 to -122. To obtain

relief, the petitioner must show that his conviction or sentence is void or voidable because

of the abridgement of a constitutional right. Tenn. Code Ann. § 40-30-103. The petitioner

must prove his factual allegations supporting the grounds for relief contained in his petition

by clear and convincing evidence. Tenn. Code Ann. § 40-30-110(2)(f); see Dellinger v. State,

279 S.W.3d 282, 293-94 (Tenn. 2009). Evidence is clear and convincing when there is no

substantial doubt about the accuracy of the conclusions drawn from the evidence. Hicks v.

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

The post-conviction court’s findings of fact are conclusive on appeal unless the

evidence in the record preponderates against them. See State v. Nichols, 90 S.W.3d 576, 586

(Tenn. 2002) (citing State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999)); see also Fields v.

State, 40 S.W.3d 450, 456-57 (Tenn. 2001). The petitioner has the burden of establishing

that the evidence preponderates against the post-conviction court’s findings. Henley v. State,

960 S.W.2d 572, 579 (Tenn. 1997). This court may not re-weigh or reevaluate the evidence

or substitute its inferences for those drawn by the post-conviction court. Nichols, 90 S.W.3d

at 586. Furthermore, the credibility of the witnesses and the weight and value to be afforded

their testimony are questions to be resolved by the post-conviction court. Bates v. State, 973

S.W.2d 615, 631 (Tenn. Crim. App. 1997).

Ineffective assistance of counsel claims are regarded as mixed questions of law and

fact. State v. Honeycutt, 54 S.W.3d 762, 766-67 (Tenn. 2001). Thus, the post-conviction’s

findings of fact underlying a claim of ineffective assistance of counsel are reviewed under

a de novo standard, accompanied with a presumption that the findings are correct unless the

preponderance of the evidence is otherwise. Fields, 40 S.W.3d at 458 (citing Tenn. R. App.

-22-

P. 13(d)). The post-conviction court’s conclusions of law are reviewed under a de novo

standard with no presumption of correctness. Id.

Under the Sixth Amendment to the United States Constitution, when a claim of

ineffective assistance of counsel is made, the burden is on the petitioner to show (1) that

counsel’s performance was deficient and (2) that the deficiency was prejudicial. Strickland,

466 U.S. at 687; see Lockart v. Fretwell, 506 U.S. 364, 368-72 (1993). In other words, a

showing that counsel’s performance was deficient is not enough; rather, the petitioner must

also show that but for counsel’s deficient performance, “the result of the proceeding would

have been different.” Strickland, 466 U.S. at 694. The Strickland standard has also been

applied to the right to counsel under article I, section 9 of the Tennessee Constitution. State

v. Melson, 772 S.W.2d 417, 419 n.2 (Tenn. 1989).

A petitioner will only prevail on a claim of ineffective assistance of counsel after

satisfying both prongs of the Strickland test. See Henley, 960 S.W.2d at 580. The

performance prong requires a petitioner raising a claim of ineffectiveness to show that

counsel’s representation fell below an objective standard of reasonableness or was “outside

the wide range of professionally competent assistance.” Strickland, 466 U.S. at 690. The

prejudice prong requires a petitioner to demonstrate that “there is a reasonable probability

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

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

confidence in the outcome.” Id. Failure to satisfy either prong results in the denial of relief.

Id. at 697.

Both the United States Supreme Court and the Tennessee Supreme Court have

recognized that the right to such representation includes the right to “reasonably effective”

assistance, that is, within the range of competence demanded of attorneys in criminal cases.

Strickland, 466 U.S. at 687 (1984); Burns, 6 S.W.3d at 461; Baxter, 523 S.W.2d at 936. In

reviewing counsel’s conduct, a “fair assessment of attorney performance requires that every

effort be made to eliminate the distorting effects of hindsight, to reconstruct the

circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s

perspective at the time.” Strickland, 466 U.S. at 689. “Thus, the fact that a particular

strategy or tactic failed or even hurt the defense does not, alone, support a claim of

ineffective assistance.” Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992).

Deference is made to trial strategy or tactical choices if they are informed ones based upon

adequate preparation. Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982).

On appeal, the Petitioner again alleges that his various attorneys provided him

ineffective assistance at the different stages in these proceedings. First, the Petitioner’s

argument as to trial counsel’s ineffectiveness centers on trial counsel’s “failure to secure an

-23-

expert to rebut the testimony of the medical examiner and failure to obtain an expert to

contest the discharge of the murder weapon.” The Petitioner notes that trial counsel “had

obtained Mr. Goodwin to examine the weapon [who determined] that a blow to the gun

causes a misfire but failed to use him at trial and did not recall investigating the matter when

questioned at the hearing.” He then notes that he desired for trial counsel “to call Dr. Charles

Harlan, then medical examiner for the State, to discuss the pending inquiry and subsequent

loss of his medical licence for the purposes of credibility and for one witness, Dr. Stan[ton]

Kessler, who testified at the initial motion for new trial to rebut the testimony of Dr. Harlan.”

The Petitioner continues,

these individuals were critical to his defense and would have made a difference

in the outcome of his trial by showing that a gun which may have fired

indirectly due to mechanical failure could eliminate the premeditation element

of first degree murder and that an attack on the credibility on the medical

examiner would have given doubt in the juror’s mind.

Next, the Petitioner alleges ineffective assistance on the part of motion for new trial

counsel, arguing simply that “[motion for new trial counsel] took his money and did

nothing.” The Petitioner notes that motion for new trial counsel’s license was later

suspended, that he had been censured by the Board of Professional Responsibility on

December 10, 2008,6 and that he could not be located for hearing. According to the

Petitioner, “[c]learly[, motion for new trial counsel] had issues reflective of his practice

outside those claimed by the [Petitioner.]” Finally, the Petitioner alleges that appellate

counsel was ineffective because he “failed to present evidence on appeal relating to the

State’s medical examiner, Dr. Charles Harlan, losing his medical license and the issue of the

potential gun discharge.” The Petitioner contends that “the inability” of his various attorneys

“to adhere to his position in the matter affected the outcome of this case.” He submits,

“There appeared to be no reason for counsel to disregard his position regarding witnesses at

trial and the compilation of grounds to be argued and the conclusion would have been

different ha[d] they worked with him toward a common goal.”

The testimony at the post-conviction hearing provided a murky picture, at best, of

what occurred in the trial court for the eight years following the Petitioner’s conviction in

2000. It was unclear from the testimony at the hearing and the ruling of the post-conviction

court what issues were actually presented and ruled upon post-trial. Because we find a

6

We note that this is the first time these specific allegations have been made; it was stated only at the post-

conviction hearing that motion for new trial counsel had encountered “trouble with the bar in Tennessee[.]”

There is no proof in the record that motion for new trial counsel’s license had been suspended or that he had

been censured on this specific date.

-24-

review of the trial proceedings to be in order before we can properly address the Petitioner’s

various issues, we have taken judicial notice of the entire direct appeal record in this case.

See State ex rel. Wilkerson v. Bomar, 376 S.W.2d 451, 453 (Tenn. 1964) (concluding that

this court may take judicial notice of the direct appeal record).

Although touched upon to some extent by appellate counsel at the post-conviction

hearing, we provide the following additional details as to what occurred in the trial court

during the eight years the Petitioner’s motion for new trial was pending. In August 2000,

trial counsel filed a timely motion for new trial following the Petitioner’s sentencing hearing.

In that motion for new trial, trial counsel included the following issues: sufficiency of the

evidence, a general designation of jury instruction error, error in admission of Fallon

Swafford’s statement as evidence, error in denying the Petitioner’s motion for a change of

venue, and error in the imposition of consecutive sentencing. Trial counsel was appointed

for purposes of appeal, apparently there being no funds available to the Petitioner and no

agreement for trial counsel’s representation to continue after trial proceedings were

concluded. A hearing on the motion for new trial was continued for trial counsel to obtain

the trial transcripts, and he was granted three weeks to review those transcripts once received.

It appears from the direct appeal record that nothing else occurred until May 2003,

when trial counsel moved to withdraw from the case. Trial counsel cited a conflict with the

Petitioner’s mother, noting their disagreements and making the following averment: “She has

demanded that I make time for this case as if I am not going to make time for it despite the

fact that she has been told that I have been involved in a contested week long trial and will

deal with this in a timely fashion when I am finished.” We feel constrained to note that the

three-year delay in bringing the Petitioner’s motion for new trial to a conclusion is not

performing trial counsel’s duties in “a timely fashion[.]”

Nonetheless, in August 2003, the trial court permitted trial counsel to withdraw and

appointed the Public Defender’s Office to represent the Petitioner. Again, it appears nothing

else occurred in the Petitioner’s case for a period of over three years.7 On September 19,

2006, the Public Defender’s Office filed an “Amended Motion for New Trial and Motion for

Judgment of Acquittal.” In this pleading, counsel raised the following issues: a violation of

Blakely v. Washington at sentencing, error in allowing juror Billy Hill to continue with

deliberations, and error in denying the Petitioner’s motion to exhume the body of the victim

and to perform a second autopsy. We note that the only motion to exhume the body in the

7

There is some indication in correspondence from the Public Defender that the Petitioner’s mother

requested that the motion for new trial proceedings be delayed in an effort to obtain the results of the Board

of Medical Examiners’ investigation against Dr. Harlan.

-25-

record was filed the same day as this pleading, September 19, 2006.8 Regardless, in making

this request for exhumation, counsel made the following averments in the attached affidavit:

that Dr. Harlan, the medical examiner who performed the victim’s autopsy and testified at

trial that “the victim’s head was pressed into the cushion of the couch and then shot[,]” had

lost his medical license; that two additional experts had reviewed a photograph of the victim;

that one expert, Amy McMaster, “thought the wound was a close contact wound, but possibly

a loose wound”; that the other, Dr. Thomas Dearing, “characterized it as a tight contact

wound”; and that this evidence of a “loose wound would have supported the [Petitioner’s]

theory of how his wife died,” possibly negating the element of premeditation or impacting

the judge’s sentencing decision.

Then, in November 2006, motion for new trial counsel entered as substitute counsel

for the Petitioner and requested a continuance of the motion for new trial hearing. Motion

for new trial counsel then petitioned for ex-parte services to examine the conclusions of Dr.

Harlan. Motion for new trial counsel specifically requested Dr. Kris Sperry, stating that

unsuccessful efforts had been made to secure the services of Dr. Bruce Levy and Dr. Amy

McMaster. In the order that followed, signed February 5, 2007, the court approved the

Petitioner’s request for funding to secure Dr. Sperry’s services “to analyze the photos and

notes of the autopsy performed in the trial of this cause and entered as exhibits, as well as

analyzing the testimony of Dr. Charles Harlan[.]” These services also included “any

testimony by Dr. Sperry at a hearing upon motion to exhume the victim’s body.” A case

status order reflected that a hearing on the motion for new trial was reset for May 2007 in

order to permit the Petitioner time to obtaining funding for the expert.

On November 5, 2007, a hearing was held, and the trial court stated that the parties

were present “on Motion for a New Trial.” At the beginning of the hearing, a certified copy

of Dr. Harlan’s licensure status was entered into evidence as an exhibit, apparently a

document reflecting the Board of Medical Examiner’s findings in the matter of Dr. Harlan.

Dr. Stanton Kessler, not Dr. Kris Sperry, then testified, calling Dr. Harlan’s autopsy findings

of the victim into question. Dr. Kessler testified that the victim’s gunshot wound was not a

“tight contact” wound as Dr. Harlan described it, but rather, that it was a “near contact”

wound, “which is almost touching.” Dr. Kessler stated that the Defendant’s version of events

would have been supported by these conclusions. At the conclusion of Dr. Kessler’s

testimony, motion for new trial counsel requested time to brief the motion for new trial issues

presented.

8

There is no evidence that the motion to exhume the body to perform a second autopsy was ever ruled upon

by the trial court.

-26-

Thereafter, on January 24, 2008, a document filed “Brief in Support of [the

Petitioner’s] Motion for New Trial” was filed. In this pleading, motion for new trial counsel

raised the following issues: trial counsel was ineffective in not discovering nor procuring a

witness or evidence to contest the expert testimony of Dr. Harlan, noting Dr. Kessler’s

testimony at the November 5, 2007 hearing; trial counsel was ineffective in not discovering

or procuring a witness or evidence to contest the expert testimony of James Russell Davis,

II, who testified concerning the gunshot residue on the victim’s hands; newly discovered

evidence based upon Dr. Harlan’s malpractice and loss of his medical license; the trial

court’s instruction to Juror Billy Hill, placing undue pressure on him; vindictiveness in

imposition of consecutive sentences; and that both crimes resulted from one single act, which

should have been considered in the consecutive sentencing determination. On February 1,

2008, the trial court entered an order, stating that the Petitioner’s motion for new trial “was

considered by the [c]ourt on the 29th day of January, 2008”9 and that none “of the grounds

submitted” by the Petitioner warranted a new trial; therefore, the motion was denied.

We now turn to address the Petitioner’s issues as they are presented on appeal, and

on the face of the record before us. The claim of ineffective assistance of counsel may be

presented in a petition filed pursuant to the Post Conviction Procedure Act, but the Act

contemplates the filing of only one petition. Tenn. Code Ann. § 40-30-102(c). Moreover,

a claim of ineffective assistance of counsel states a broad, single ground for relief. State v.

Rowland Keith Hall, No. E2006-00111-CCA-R3-CD, 2007 WL 1582667, at *8 (Tenn. Crim.

App. July 1, 2007); Roger Clayton Davis v. State, No. 03C01-9902-CR-00076, 2000 WL

21307, at *3 (Tenn. Crim. App. Jan. 14, 2000). Once raised and adjudicated during the

pendency of the conviction proceeding, such as in a motion for new trial or for Rule 32(f)

relief or on direct appeal, the issue may be deemed previously determined for purposes of

later post-conviction relief. Tenn. Code Ann. § 40-30-106(h) (“A ground for relief is

previously determined if a court of competent jurisdiction has ruled on the merits after a full

and fair hearing.”); Tenn. Code Ann. § 40-30-106(f) (“If the facts alleged, taken as true, fail

to show that the petitioner is entitled to relief or fail to show that the claims for relief have

not been waived or previously determined, the petition shall be dismissed.”). Thus,

Tennessee courts have repeatedly cautioned that raising the issue of ineffective assistance of

counsel in advance of a post-conviction proceeding, where the claimant is availed the

opportunity of an evidentiary hearing, is “fraught with peril.” See, e.g., State v. Anderson,

835 S.W.2d 600, 607 (Tenn. Crim. App. 1992). After our exhaustive review of the record,

such an act not undertaken by either party in this appeal or the post-conviction court, we

9

It does not appear that any other hearing took place prior this ruling. In fact, this court attempted to

supplement the record with the transcripts of any additional hearings, including one possibly occurring on

January 29, 2008, and no record of any such hearings could be found by the trial court clerk.

-27-

determine that waiver of the issue of ineffective assistance of trial counsel is precisely the

case here.

Accordingly, we conclude that the Petitioner’s allegation of ineffective assistance of

trial counsel has been previously determined after a full evidentiary hearing in the trial court

and is, thus, waived in this post-conviction proceeding. However, this court has recognized

that a petitioner retains a surviving claim of ineffective assistance relative to the performance

of successor counsel in relation to his representation on the motion for new trial. See Laraiel

Winton v. State, No. E2011-00762-CCA-R3-PC, 2012 WL 273759, at *5 (Tenn. Crim. App.

Jan. 31, 2012), perm. app. denied, (Tenn. Aug. 16, 2012); Russell Lane Overby v. State, No.

W2001-01247-CCA-R3-PC, 2002 WL 818250, at *2 (Tenn. Crim. App. Apr. 26, 2002).

Moreover, this court has previously held that “allegations regarding the ineffectiveness of

appellate counsel, when trial and appellate counsel are different, are not waived under the

Post-Conviction Act when those allegations are not presented on direct appeal.” John Earl

Scales v. State, No. M2001-00310-CCA-R3-PC, 2002 WL 1949697, at *2 (Tenn. Crim. App.

Aug. 23, 2002) (citing Kendricks v. State, 13 S.W.3d 401, 405 (Tenn. Crim. App. 1999));

Ronald Yates v. State, No. W2008-02067-CCA-R3-PC, 2009 WL 4505436, at * 3 (Tenn.

Crim. App. Dec. 3, 2009). Therefore, we will address the Petitioner’s allegations regarding

the ineffective assistance of motion for new trial counsel and appellate counsel.

The direct appeal record belies the Petitioner’s claim that motion for new trial counsel

“took his money and did nothing.” Motion for new trial counsel sought and obtained expert

funding for Dr. Kessler to testify at the motion for new trial hearing. Although Dr. Harlan

was not called as a witness at the motion for new trial hearing, motion for new trial counsel

entered into evidence a certified copy of Dr. Harlan’s licensure status at the outset of the

hearing, a document which contained the findings of the Board of Medical Examiners in the

matter of Dr. Harlan. Dr. Kessler testified at the motion for new trial hearing about what he

perceived to be the deficiencies in Dr. Harlan’s autopsy findings. Thereafter, motion for new

trial counsel filed a brief raising several issues, including issues of ineffective assistance of

counsel and newly discovered evidence. Specifically, the brief included the following

allegations: counsel was ineffective in not discovering nor procuring a witness or evidence

to contest the expert testimony of Dr. Harlan, noting Dr. Kessler’s testimony at the November

5, 2007 hearing; trial counsel was ineffective in not discovering or procuring a witness or

evidence to contest the expert testimony of James Russell Davis, II, who testified concerning

the gunshot residue on the victim’s hands; and newly discovered evidence based upon Dr.

Harlan’s malpractice and loss of his medical license. The trial court denied any relief

following the filing of this brief. Moreover, there is no proof in the record that possible later

disciplinary action against motion for new trial counsel had anything to do with his work in

the Petitioner’s case. We conclude that motion for new trial’s performance was not

deficient.

-28-

The only issue remaining is whether appellate counsel provided ineffective assistance

by failing to pursue on direct appeal the Petitioner’s claim of ineffective assistance of trial

counsel raised at the motion for new trial hearing. The same principles apply in determining

the effectiveness of both trial and appellate counsel. Campbell v. State, 904 S.W.2d 594, 596

(Tenn. 1995). A petitioner alleging ineffective assistance of appellate counsel must present

facts that establish (1) appellate counsel was objectively unreasonable in failing to raise a

particular issue on appeal; and (2) absent the deficient performance, a reasonable probability

existed that the Petitioner’s appeal would have been successful before the state’s highest

court. See e.g., Smith v. Robbins, 528 U.S. 259, 285 (2000); Aparico v. Artuz, 269 F.3d 78,

25 (2d Cir. 2001). In examining whether counsel was deficient for failing to raise an issue

on direct appeal, the reviewing court must determine the merits of the issue. Carpenter v.

State, 126 S.W.3d 879, 887 (Tenn. 2004). “Obviously, if an issue has no merit or is weak,

then appellate counsel’s performance will not be deficient if counsel fails to raise it.” Id.

When an omitted issue is without merit, the Petitioner suffers no prejudice from appellate

counsel’s failure to raise the issue on appeal and cannot prevail on an ineffective assistance

of counsel claim. Id. at 887-88.

Counsel is responsible for determining the issues to present on appeal. State v.

Matson, 729 S.W.2d 281, 282 (Tenn. Crim. App. 1986). This responsibility addresses itself

to the professional judgment and sound discretion of appellate counsel. Porterfield v. State,

897 S.W.2d 672, 678 (Tenn. 1995). There is no constitutional requirement that every

conceivable issue be raised on appeal. Campbell, 904 S.W.2d at 597. The determination of

which issues to raise is a tactical or strategic choice. Id.

First, we note that appellate counsel incorrectly testified that the issue of ineffective

assistance was not presented for review at the motion for new trial phase. The issue was

developed by motion for new trial counsel, and appellate counsel was aware of Dr. Kessler’s

testimony. While appellate counsel is correct that the direct appeal file is a “mess[,]” that

does not relieve him of his obligation to ferret out the issues presented in the trial court

before proceeding with the Petitioner’s direct appeal. We must conclude that appellate

counsel’s testimony stating that the issue “was never raised as an issue in the motion for a

new trial” amounts to deficient performance; i.e., appellate counsel was objectively

unreasonable in failing to raise a particular issue on appeal. By failing to pursue the issue,

which he incorrectly believed had not been properly raised, appellate counsel waived the

Petitioner’s claim of ineffective assistance of trial counsel in these post-conviction

proceedings. While we conclude that this failure by appellate counsel amounts to deficient

performance, the question still remains whether the Petitioner was prejudiced by appellate

counsel’s failure to raise the issue on appeal.

-29-

The Petitioner must also establish that, absent the deficient performance, a reasonable

probability exists that his appeal would have been successful before the state’s highest court.

Accordingly, we must determine the merits of the following issue: whether trial counsel was

deficient in failing to obtain another expert to rebut the State’s expert, Dr. Harlan, at trial.

As stated above, a claim of ineffective assistance of counsel states a broad, single ground for

relief. Hall, 2007 WL 1582667, at *8; Davis, 2000 WL 21307, at *3. The Petitioner’s issue

regarding firearms examiner Robert Goodwin’s findings that the weapon was not working

properly was never raised by motion for new trial counsel as a ground of ineffective

assistance by trial counsel and, therefore, has been waived. See Tenn. Code Ann. §

40-30-106.

Trial counsel and appellate counsel testified at the post-conviction hearing that they

had no knowledge of Dr. Harlan’s troubles at the time of the Petitioner’s trial. It appears

from the document submitted at the motion for new trial hearing that disciplinary action

against Dr. Harlan commenced before the Board of Medical Examiners in 2003, although

autopsies as early 1995 were included in the investigation. Moreover, the document supports

counsels’ testimony that the disciplinary action taken against Dr. Harlan did not involve the

victim’s case.

Nonetheless, Dr. Kessler, during his testimony at the motion for new trial hearing,

called into question Dr. Harlan’s findings about the nature of the victim’s wound. However,

even the documentation submitted by the Public Defender’s Office for the motion for new

trial hearing showed that counsel had received differing opinions from several experts—one

expert, Amy McMaster, “thought the wound was a close contact wound, but possibly a loose

wound”; the other, Dr. Thomas Dearing, “characterized it as a tight contact wound[.]”

Moreover, two additional witnesses, along with Dr. Harlan, testified that a muzzle to skin

gunshot wound left a distinctive star pattern on the skin, as in the victim’s case. See Milam,

2010 WL 744398, at *4-7 (testimony of Special Agent Wayne Wesson and Chief Byron

Skelton). Special Agent James Davis testified that the pattern of the gunshot residue found

on the Petitioner’s shirt and pants was “consistent with an individual who held a gun tightly

to a victim’s forehead and fired the gun which caused the gases in the weapon to blow

backwards.” Id. at *6. Additionally, there was a witness who testified that the Petitioner had

threatened to kill both the victim and their unborn child just days prior to the shooting. Id.

at *11. There was also evidence from more than one witness that immediately after the

murder, the Petitioner went to his car, retrieved a second gun, and threw the second gun into

the woods behind his house, evidencing that he had the presence of mind to try to hide

something he thought to be illegal presumably because he knew the police would come to

his house to investigate his wife’s death. Id. Several witnesses heard a second shot once

the Petitioner returned inside his home after disposing of the second weapon. Id. at *1-2.

This court determined on direct appeal that this evidence supported the conclusion that the

-30-

Petitioner “intentionally shot the victim in the forehead as opposed to his story that the gun

accidentally went off while they were struggling over it.” Id. We agree. “[T]he jury is not

bound to accept expert testimony in preference to other testimony, and must determine the

weight and credibility of each in the light of all the facts shown in the case.” Dellinger v.

State, 279 S.W.3d 282, 292 (Tenn. 2009) (quoting State v. Sparks, 891 S.W.2d 607, 616

(Tenn. 1995)) (internal quotation marks omitted). Therefore, we conclude that the Petitioner

has not proven a reasonable probability that the result of his trial would have been different

if the testimony of Dr. Kessler had been presented during his original trial. We conclude that

the Petitioner has failed to show he was prejudiced in this regard.

CONCLUSION

The Petitioner has failed to prove by clear and convincing evidence that he received

the ineffective assistance of counsel. We, therefore, affirm the judgment of the post-

conviction court denying relief.

________________________________

D. KELLY THOMAS, JR., JUDGE

-31-