The opinion
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs April 23, 2013
COREY TARVIN v. STATE OF TENNESSEE
Appeal from the Criminal Court for Hamilton County
No. 275872 Barry A. Steelman, Judge
No. E2012-01211-CCA-R3-PC - Filed January 22, 2014
The Petitioner, Corey Tarvin, appeals the Hamilton County Criminal Court’s denial of his
petition for post-conviction relief from his 2007 conviction for first degree murder and
resulting life sentence. The Petitioner contends that he received the ineffective assistance
of counsel because counsel (1) denied him the right to subpoena witnesses, (2) failed to
investigate adequately and hire an investigator, (3) advised him not to testify, (4) failed to
impeach a key witness and request a related jury instruction, and (5) failed to present
evidence that he suffered from macular degeneration. We affirm the judgment of the trial
court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
J OSEPH M. T IPTON, P.J., delivered the opinion of the court, in which T HOMAS T. W OODALL
and N ORMA M CG EE O GLE, JJ., joined.
Kevin L. Loper, Chattanooga, Tennessee, for the appellant, Corey Tarvin.
Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Senior Counsel;
William H. Cox, III, District Attorney General; and Lance Pope, Assistant District Attorney
General, for the appellee, State of Tennessee.
OPINION
This case arises from the June 15, 2005, shooting death of Jerry Garth. This court
summarized the facts of the case in the appeal of the Petitioner’s conviction:
At the defendant’s May 22-25, 2007, trial, Officer Matthew Talley of the East
Ridge Police Department testified that on June 15, 2005, . . . at 12:07 a.m., he
received a call that there was an apparent gunshot victim lying in the middle
of the street in the 600 block of North Holly. He stated that when he and his
fellow officers responded to that location, they saw a large crowd in the middle
of the street and the victim lying in the street partially on his side with his face
down. He testified that, according to the report he had prepared, witnesses at
the scene reported that an unknown suspect had fled the area in a blue Blazer.
On cross-examination, he acknowledged that his report indicated that
witnesses also stated that the victim and the defendant had been arguing before
the shooting.
Detective Gregory Mardis of the Chattanooga Police Department
testified that he was an investigator with the crime scene unit and responded
to the scene of the shooting at 1:19 a.m. on June 15, 2005. He stated that when
he arrived, another investigator related that the defendant and the victim had
gotten into an argument, that a fight had ensued, and that the defendant had
retrieved a gun from his vehicle, shot the victim, and fled the scene. Detective
Mardis identified a number of items that were subsequently admitted into
evidence, including crime scene photographs that showed where the victim’s
blood had “puddled up on the street[.]” He stated that he searched the area but
was unable to locate any weapon.
Lottie Stamper, who said she lived at 609 North Holly Street and had
known the defendant for years, testified that on the night of the shooting, the
defendant and a number of other individuals were “hanging out” in the vicinity
of Larry Harper’s duplex located at 618 North Holly. She said that another
neighborhood resident known as Greg or “Fat Boy” spoke to the defendant’s
girlfriend and that the defendant became angry, telling him that he could not
be “hollering at [his] bitch like that.” She stated that the two men exchanged
words and then began fighting. She testified that two other men, Ladarius and
Cornelius, became involved and that the victim, who was visiting his aunt at
614 North Holly, walked down the street to attempt to break up the fight. She
said the victim was unsuccessful, walked back to his aunt’s house, and went
inside. She testified that the victim then came out of his aunt’s house and
walked to his car, talking about his “Game Boy.” She stated that the defendant
and the other men were no longer fighting at that time but were still down the
street at Harper’s house arguing.
Stamper described the shooting:
[The victim] went in the car, he was bent over in the car. As he
came out [of] the car, we was sitting on the corner. By that
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time, [the defendant] came out of [Harper’s] house and
somebody said “Gun!” Everybody . . . left the street so fast, and
. . . me and one of my neighbors . . . said at the same time,
“Somebody going to get shot.” By that time, [the victim] had,
you know, one knee in the car. . . . And he’s coming out. As he
turned, [the defendant] was coming up the street with the gun,
fired the shot, [the victim] fell, everybody had scattered.
Stamper further testified as follows. She went to the victim and began
applying pressure to his wound. As she did so, he kept asking what he had
done and why had he been shot. She was still with the victim when the
defendant drove down the street toward them in a sports utility vehicle, and
she overheard him say, “I’m going to run over that motherf-----.” She put
herself in front of the victim and told the defendant not to do it. He paused a
minute, said, “I should have ran over that motherf-----,” and then drove off.
Stamper testified that she did not tell the police that the victim was
involved in the argument or the fight and suggested that either the police
officer who took her statement misunderstood her or that she misspoke and
said the victim’s name when she meant to say Greg. She stated that she saw
the defendant go to his vehicle at some point between the fight and the
shooting but that she did not see him retrieve a gun from the vehicle. She said
the defendant was the only one she saw with a gun that night. Finally, she
testified that although the defendant had grown up with her children and been
“just like a son,” she felt obligated to testify against him because she had
witnessed him kill the victim.
On cross-examination, defense counsel played a portion of Stamper’s
tape-recorded statement to police, made within a few hours of the shooting.
Stamper acknowledged that she said in the statement that the victim and the
defendant were arguing over a girl and got into a fight and that the victim’s
cousins attempted to break up the fight. She further acknowledged that she
never said anything in her statement about the victim’s having gone to retrieve
something from his car, instead telling the police officer that the victim was
walking away from the fight when he was shot. She explained the
discrepancies by stating that she might have said anything in the immediate
hours after the shooting and insisted that the account she provided on direct
examination was accurate. She testified, “Like I said, when the boy got shot,
I could have said anything. I don’t know. I hear what’s on there and I
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understand what’s on there, but I’m telling you what happened, the way it
happened.”
The victim’s cousin, Antoin Edwards, testified that he was twelve years
old at the time of the shooting and that he had been playing video games that
night with the victim at his aunt’s house, where two other cousins, Ladarius
and Cornelius, were present. He said that he heard voices outside and that the
victim and Cornelius left the house. He stated that the voices got louder and
that he looked out the window and saw the defendant shoot the victim in the
back. He estimated that the men were within a foot of each other when the
shot was fired and said that he did not see anything that preceded the shooting.
Homicide Detective James Tate of the Chattanooga Police Department
testified that the defendant was arrested at approximately 11:00 a.m. on June
16, 2005, and brought to the “service center” where he and Detective Miller
questioned him about the crime. He identified the defendant’s waiver of rights
form and his tape-recorded statement, which were subsequently admitted into
evidence. In the statement, played for the jury, the defendant said that he and
Gregory Scott got into a fight after Scott “disrespected” the defendant’s
girlfriend. He said that after three or four minutes of one-on-one fighting, two
to four other men jumped in, ganged up on him, and tore off his shirt. The
defendant stated that he told the men the fight was over and that they broke
loose, letting him go. He said that he was walking away when he noticed a
second group of people headed down the street toward him. He stated that he
“made up [his] mind,” went to the porch of a duplex, retrieved a hidden gun,
turned around, and fired at the victim, who had been following him and who
turned and began to run away when he saw that the defendant had a gun. The
defendant stated that he had to “rack” the gun in order to fire the shot. He said
that he intended to commit an aggravated assault on the victim and did not
mean to kill him.
Detective Tate testified that the gun came from the porch of 618 North
Holly Street, which was more than twenty yards from where the victim’s body
was found. He said the defendant had no visible cuts or abrasions on his face
or hands during the interview and did not appear to have been in a recent fight.
He testified that the defendant never identified the victim as one of the major
participants in the altercation. On cross-examination, he acknowledged that
the shirt identified as the one the defendant had been wearing on the night of
the altercation was torn.
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Frank King, Jr., M.D., the Hamilton County medical examiner who
performed the autopsy of the victim’s body, testified that the cause of death
was a gunshot wound in which the bullet entered the victim’s body at the left
lower back, grazed against the spine, tore the aorta, went through the bowel,
and exited at the right anterior abdomen. He classified it as a distant gunshot
wound, fired from a distance of two feet or greater, and he said that it entered
the body at 45.5 inches above the heel and exited at 44.5 inches above the heel,
which meant that it descended one inch from point of entry to point of exit
with the body in “anatomic position.” He stated that he observed no fresh
injuries to the victim’s head, hands, or legs other than those caused by the
emergency medical care he received after the gunshot. He testified that he
found two fresh abrasions on the back right shoulder, which could be
consistent with the victim’s having fallen to the pavement after being shot.
During his testimony, Dr. King identified several autopsy photographs, which
were admitted into evidence and published to the jury. On cross-examination,
he acknowledged that the victim’s hands had been washed in the emergency
room and that he had no way of knowing the exact position of the victim’s
body, head, or limbs at the time he was shot other than that his lower left back
was facing the direction of fire.
The defendant elected not to testify and presented no witnesses in his
defense.
State v. Corey Deauntae Tarvin, alias Corey Deante Tarvin, alias Corey Deauntae Brown,
No. E2007-01927-CCA-R3-CD, slip op. at 1-4 (Tenn. Crim. App. Feb. 6, 2009). The
Petitioner was convicted, and the trial court sentenced him to life imprisonment.
At the post-conviction hearing, counsel testified that he did not subpoena witnesses
for the trial, although the Petitioner provided a list of four or five names the Petitioner
thought had beneficial information. He said he asked the Petitioner for contact information,
but the Petitioner was unable to provide addresses and working telephone numbers. He said
he attempted to find the people on the list by going to Holly Street where the killing occurred.
He said he and his paralegal tried to find the people on the list by canvassing the
neighborhood and talking to people. He denied talking to anyone on the Petitioner’s list and
said nobody admitted knowing any of them. He said that they were unsuccessful in obtaining
contact information for the people on the list and that he did not subpoena them because he
could not find them. He said that he asked the Petitioner to identify other people who might
provide information about how to find the people on the list but that counsel was still unable
to find them.
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Counsel testified that he did not have an investigator or request the court to provide
funds for an investigator. He said the Petitioner’s case was pending at a time when he was
responsible for the investigation. He denied that an investigator would have located the
people on the list.
Counsel testified that recordings of the Defendant’s and the witnesses’ statements to
the police were provided in the discovery package, and he agreed a recording of Amanda
Wynn’s statement was included. When asked if he went to the address provided by Ms.
Wynn in her statement to the police, he said he pursued any information that might have
helped locate the witnesses. He said that in the neighborhood where the shooting occurred,
it was common for people to hide because they did not want to participate as witnesses or
discuss the case. He said that the difficulty in locating witnesses did not mean he did not
look for them and that he was not shocked when he did not find them.
Counsel testified that he did not know if he went to 2305 Barley Street. When he was
told Ms. Wynn lived there, counsel said, he would have tried to locate the address. He said
that he would have gone to where the address should have been but that he was unsure if it
was a “specific address.” He said it was common to be unable to find a house at the address
provided by a witness. He said that although he was unsure if a house was located at 2305
Barley Street, he went to the area looking for the address.
Counsel testified that he twice discussed with the Petitioner his inability to locate the
people on the list and that they discussed his inability to find the people “within a reasonable
proximity of the time.” He said that his inability to locate them was not the reason he chose
not to present a self-defense theory. He said he discussed with the Petitioner his decision not
to argue self-defense at the trial. He said he explained to the Petitioner that he could be
convicted of first degree murder, second degree murder, or manslaughter. He explained the
elements of each offense and the likelihood of conviction and told the Petitioner that he
believed the Petitioner was most likely to be convicted of second degree murder, although
the jury convicted the Petitioner of first degree murder. Counsel stated that the Petitioner did
not want to accept any plea offer that would result in a nineteen-year prison sentence. He
said the Petitioner stated, “If I’m going to get that time, they’re going to have to give it to me.
I’m not going to take it.” He believed the Petitioner thought the worst possible outcome was
a voluntary manslaughter conviction and a nineteen-year sentence and said he attempted to
explain to the Petitioner that “he had a lot of exposure.” He said the Petitioner disagreed.
Counsel testified that he discussed with the Petitioner whether the Petitioner should
testify at the trial. He denied the theory of the case was self-defense and said the Petitioner
told him that he was involved in a fight with a group of people but left the scene, returned
with a weapon, and shot the victim. He said this was consistent with the Petitioner’s
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statement to the police, which was played for the jury. He said the Petitioner’s leaving the
scene after the fight prevented a self-defense theory. He said that in his opinion, it was
unwise for the Petitioner to testify. He agreed the Petitioner referred to multiple fights in
his statement to the police but said the Petitioner discussed “breaking away” from a fight and
obtaining a weapon, preventing a self-defense theory. He agreed that the Petitioner’s
baseball jersey was torn during the fight and said that the tear was significant because the
material was strong and durable. He said he used this evidence, in part, to show the
Petitioner’s state of mind at the time of the shooting and that the Petitioner was not operating
with a “clear head” or premeditation. He said that he did not request a self-defense jury
instruction because the facts did not support it and because self-defense was not the trial
strategy.
Counsel testified that he did not recall if the box cutter found at the scene was
introduced at the trial. He said it was difficult to link the box cutter to someone involved in
the fight who used it against the Petitioner. He did not recall questioning before the trial the
police officer who testified about the box cutter. He denied that the box cutter was analyzed
for fingerprints and said he did not address the failure to have it analyzed at the trial because
he could not “place the box cutter in any particular person’s hands.”
Counsel testified that they discussed the Petitioner’s testifying at the trial on “a
number of occasions” before the trial and after the State’s case-in-chief. He advised the
Petitioner not to testify and said he always discussed with his clients that counsel made
certain decisions during the trial and that the defendant made certain decisions. He said he
explained that the trial strategy of focusing on the Petitioner’s state of mind rather than
arguing self-defense was counsel’s decision and that the decision to accept a plea offer and
whether to testify at the trial belonged to the Petitioner. He said the Petitioner understood
that he thought the Petitioner should accept a plea offer and that he did not recommend the
Petitioner testify at the trial. He said the Petitioner understood that it was his decision to
testify and that he could testify if he disagreed with counsel’s recommendation. Counsel
believed the Petitioner’s testimony would have harmed the case because the Petitioner risked
having his criminal history introduced at the trial. He said that the Petitioner knew the
defense was not calling any witnesses when he made his decision not to testify.
Counsel testified that aspects of the Petitioner’s statement to the police were not
“fleshed out as perhaps they could have been if he testified.” He said, though, that having
a witness testify about one favorable topic did not justify presenting the witness at the risk
of having numerous unfavorable topics addressed on cross-examination. He said that the
Petitioner could have “fleshed out some things” had he testified but that his testimony would
not have been materially different from his statement to the police. He said, too, that cross-
examination regarding the Petitioner’s criminal history would have “overshadowed” any
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favorable testimony regarding the events leading to the shooting. He denied the Petitioner
told him that after he obtained the gun, the victim stood behind him and two other people
stood in front of him. He did not recall whether Ms. Wynn testified similarly at the trial. He
recalled that the victim stood behind the Petitioner and that the Petitioner turned and shot the
victim in the back, but he did not recall two men standing behind the Petitioner.
Counsel testified that he knew about the Petitioner’s eye condition, macular
degeneration, and that evidence of the condition was not introduced at the trial. He agreed
his trial strategy was to obtain a conviction for voluntary manslaughter but denied that the
condition would have been helpful. He said the testimony showed that the Petitioner thought
someone was coming toward him, that the Petitioner fired the gun, and that the victim was
shot in the back. He said that there “were issues” about the distance between the victim and
the Petitioner and that testimony showed the Petitioner was not able to identify clearly whom
he shot. Counsel did not think it mattered that the Petitioner had macular degeneration
because the testimony showed that the Petitioner “was just shooting at a form, an object that
he saw[.]” He denied that the Petitioner’s eye condition might explain why the Petitioner did
not know if he shot someone who was facing him or had their back to him.
Counsel testified that he recalled cross-examining Lottie Stamper but did not recall
asking about her two misdemeanor theft convictions that occurred within ten years of the
trial. He recalled that Ms. Stamper lived on the street where the shooting occurred and that
she held the victim in her arms after he was shot. He said that although he did not recall if
he asked Ms. Stamper about the convictions, he did not think the convictions would have
changed the jurors’ view of her testimony given the emotional nature of her testimony. He
agreed Ms. Stamper provided a statement to the police that differed from her testimony. He
said he highlighted the discrepancies during cross-examination by playing the relevant
portions of her recorded statement to the police. He denied playing her entire statement. He
agreed Ms. Stamper testified that the Petitioner stated twice he was going to “run this MFer
over.” He did not know why he did not object but said that his usual practice was not to draw
attention to statements of that nature because the judge might overrule an objection. He
recalled thinking Ms. Stamper’s testimony was highly emotional and dishonest.
Counsel testified that Ms. Stamper stated at the trial that the victim only attempted to
stop the fight and that she found the victim’s gunshot wound by pulling up the victim’s shirt.
He agreed Ms. Stamper said in her statement to the police that the victim “took off his shirt
before he . . . began to fight.” He agreed he did not address the inconsistency at the trial and
said he did not think highlighting the inconsistent statement would have changed the jury’s
verdict because the victim was shot regardless of whether he wore his shirt at the time. He
said he highlighted the consistencies that were most relevant to the theory of the case. He
recalled that Ms. Stamper was an uncontrollable witness who said what she wanted to say
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and that he attempted to craft his questions carefully to prevent her from “going off the
tracks.” He did not want to object and hear the trial judge say, “You asked the question.”
Counsel testified that he did not request special jury instructions regarding witness
credibility and said the standard instruction was given. He said he reviewed the pattern jury
instructions before the trial and determined which instructions he needed to request. He did
not recall asking for a special instruction regarding witnesses convicted of crimes of
dishonesty but said even if the jury discredited Ms. Stamper’s testimony in its entirety, the
outcome of the trial would have been the same because of the Petitioner’s statement to the
police. He agreed, though, that Ms. Stamper was the only witness who testified that the
Petitioner said, “I should run that Mfer over.” He agreed that Ms. Stamper testified that she
either got in front of the car or protected the victim with her body and that the Petitioner said
he should run over the victim. He agreed the implication was that the Petitioner was driving
the car. He agreed he did not question her about the Petitioner’s eye condition and said he
knew she did not know about the Petitioner’s macular degeneration because he spoke with
her before the trial. He said that Ms. Stamper had known the Petitioner since he was a child
and that she probably noticed something unusual about the Petitioner’s eyes. He said,
though, that she could have attributed the unusual eye appearance to the Petitioner’s frequent
drug use. He did not want to present testimony about the Petitioner’s drug use.
Counsel testified that he did not ask Antoin Edwards if he heard the Petitioner say the
Petitioner should run over the victim. He said, though, that the strongest evidence of
premeditation was the Petitioner’s leaving the scene, obtaining a gun, and returning to the
scene. He said it showed the Petitioner had the intent to kill but not necessarily that the
Petitioner intended to kill the victim. He said that although the Petitioner said he did not
know at whom he was shooting, the Petitioner told him that he had the intent to kill when he
obtained the gun.
Counsel testified that he did not present a self-defense theory because the Petitioner
disengaged from the fight, returned with a gun, and shot the victim because he thought the
victim was coming after him. He said that these facts did not support self-defense and that
nobody else had a gun that night. He said the facts better supported a state-of-mind theory
that focused on the Petitioner’s agitation after being involved in a fight with multiple people.
On cross-examination, counsel testified that he had practiced law since 1992 and that
he had practiced criminal law since 1997 or 1998. He agreed he was appointed to represent
the Petitioner on August 24, 2006, after previous counsel was permitted to withdraw. He
said previous counsel provided him with the case file, which contained research and
investigation results. He said that one of the reasons he did not employ an investigator was
because previous counsel had investigated and researched the case. He concluded that an
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investigator was unnecessary. He said previous counsel’s file contained the State’s discovery
package. He agreed that he reviewed those documents with the Petitioner before the trial,
that he provided the Petitioner a copy of the materials, and that they discussed the facts of
the case many times. He said the Petitioner told him that the Petitioner had people to read
the documents to him.
Counsel testified that before the trial, he and the Petitioner discussed the strategy of
focusing on the Petitioner’s state of mind. Although he did not recall the Petitioner’s
objecting to his chosen strategy, he said it would not have changed his decision. He said that
the Petitioner was polite and that the Petitioner probably would have expressed his
disagreement but respected counsel’s decision.
Counsel testified that he received a plea offer from the State several weeks before the
trial and that the Petitioner rejected it. He said that the week before the trial, he spoke to the
prosecutor again, that he negotiated nineteen years, and that the Petitioner rejected it, too.
He thought that the most likely outcome at the trial was a second degree murder conviction
and said that he and the Petitioner discussed his opinion and that he encouraged the Petitioner
to accept the offer. He said, though, he made clear it was the Petitioner’s decision whether
to accept the offer.
Counsel testified that the Petitioner’s recorded statement to the police was played at
the trial and that the jury was provided a transcript of the statement. He agreed that by
having the recording played for the jury, the Petitioner received the benefit of not being
subject to cross-examination and not having unfavorable information presented. Although
he did not recall discussing these benefits with the Petitioner, he recalled discussing the
“pitfalls” of the Petitioner’s testifying. He said that a Momon hearing was held during the
trial and that the Petitioner decided not to testify.
Counsel testified that in his experience many witnesses testified differently from their
prior statements. He agreed that he impeached Ms. Stamper with her prior recorded
statement. He recalled Ms. Stamper testified at the trial that she did not remember what she
told the police and that she did not remember speaking to the police other than to tell the
officer the Petitioner shot the victim.
As to his lack of requesting an instruction regarding impeachment, counsel agreed the
trial transcript showed that the following instruction was provided to the jury:
Credibility of a witness: it is your job to decide what the facts of this case are.
You must decide which witnesses you believe and how important you think
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their testimony is. You do not have to accept or reject everything a witness
said. You’re free to believe all, none or any part of a person’s testimony.
He said that he was comfortable with the instruction and did not request a special instruction.
He agreed that self-defense was not fairly raised by the proof.
Counsel testified that Antoin Edwards testified at the trial and that he did not ask Mr.
Edwards about the Petitioner’s statements after the victim was shot because he did not want
the substance of the statements repeated for the jury. He said he was unable to interview Mr.
Edwards before the trial and was unsure what Mr. Edwards would say about the Petitioner’s
statements. He said that for strategic reasons, he chose not to question Mr. Edwards about
the statement. He said that before the trial, he attempted to interview some of the State’s
witnesses by telephone, by going to their homes, and by canvassing the neighborhood where
the shooting occurred.
On redirect examination, counsel testified that he thought Mr. Edwards would not
speak to him before the trial but was uncertain. He said that earlier in his career, he asked
a witness during a trial why he or she refused to speak to him, that he thought this would
impact a juror’s perception of the witness, but that he no longer asked because it never gave
him the anticipated result.
The Petitioner testified that around midnight on the night of the shooting, he was
sitting on the front porch of his uncle’s house with Amanda Wynn, a family friend. He said
that there were a couple of house parties that night and that a group of people were standing
in the street in front of his uncle’s house. He said that Ms. Wynn walked to a store nearby
and that she was harassed by some men walking down the street. He said that Greg Scott
was the only person he knew at the house party and that he yelled at Mr. Scott to walk to the
Petitioner’s uncle’s house to discuss “the situation.” He said that he knew Mr. Scott from
the neighborhood, that Mr. Scott was like a brother, and that they had fought before the night
of the shooting. He said that he and Mr. Scott talked and that the conversation escalated into
a fight. He said that as he and Mr. Scott began fighting, three or four other men joined the
fight. He said he did not know from where the men came but knew he was “hit, pulled on,
pushed on” and felt something slash his shirt. He said he attempted to break away because
he knew someone had a weapon. He said he was cut by the weapon. He said he broke free,
ran, and, for protection, obtained a gun from his car located next door. He said that as he
grabbed the gun and turned around, he saw the victim holding a box cutter and that the “gun
just went off” because it was an automatic reflex. He said he only fired once to get the
victim to leave him alone and denied firing the gun intentionally.
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The Petitioner testified that only one person stood behind him at the time of the
shooting. When asked if the victim was “coming after” him, the Petitioner said, “[H]e had
to be . . . when I turned around with [the gun], he was right there on my back.” He said the
victim was shot in the side, not the back. He said the exit wound was on the victim’s back
because of the manner in which the victim turned. He said he was scared of the victim’s
cutting him with the box cutter. He said that the victim previously cut him slightly when his
shirt was cut and that he feared another cut would have been more severe.
The Petitioner testified that after the gun fired, he dropped the gun and ran to his car
and that Ms. Wynn got into the driver’s seat of his car and drove them from the scene. He
said that Ms. Wynn drove the car away from the victim, that the windows were down when
she drove away, and that he did not say, “I should run over that Mfer.” He said Ms. Wynn
took him home. He said he collected his thoughts and went to the police department the next
day.
The Petitioner testified that he was diagnosed with macular degeneration when he was
five or six years old, which “block[ed] the front of [his] pupils.” He said that he could not
see well the night of the shooting and that although he could see the men’s bodies during the
fight, he could not see their faces. He said his vision problems were worse at night. He
denied knowing anyone other than Mr. Scott. He admitted that he did not know if the victim
had a weapon after he pulled out the gun but said he knew he had already been cut and
thought the victim was going to cut him again.
The Petitioner testified that he wrote counsel a letter asking him to subpoena Mr.
Scott, Ms. Wynn, Carmen Giles, Tameika “Meka” Reynolds, and Amanda Angland, who
were present at the time of the shooting. He said he wrote these potential witnesses letters
in which he discussed their testifying on his behalf at the trial. He said that he mailed the
letters from the jail and that they were not returned to him. He agreed he provided each
witness’s address and contact information to counsel. The letters written by the Petitioner
were received as exhibits. He identified a March 30, 2007 letter he wrote to Ms. Crawford,
which stated that Ms. Crawford had spoken to counsel recently and asked that she remain in
contact with counsel and testify at the trial. He agreed the trial date was not provided in the
letter. He identified a May 17, 2007 letter he wrote to Mr. Scott, which stated that counsel
and Mr. Scott had spoken recently and asked that Mr. Scott inform his employer he would
need a few days off to testify at the trial. The letter told Mr. Scott that counsel would write
Mr. Scott’s supervisor a letter regarding any absences. He identified an April 5, 2007 letter
he wrote to Ms. Giles asking her to contact counsel. He identified a December 30, 2006
letter he wrote to Ms. Reynolds. The letter stated that counsel had spoken with her recently
and that he knew she had been out of town. The Petitioner asked her to contact counsel
should she leave town again. He identified a March 3, 2007 letter he wrote to Ms. Wynn,
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which stated that he knew she had spoken with counsel recently and that counsel would
contact her one week before the trial. The letter asked her to contact counsel if she had not
heard from counsel by the first of May. He identified a January 30, 2007 letter he wrote to
Ms. Angland thanking her for staying in contact with counsel and for providing counsel her
new contact information and asking her to continue to stay in contact with counsel.
The Petitioner identified a May 1, 2007 letter he wrote to counsel stating he wanted
to ensure that counsel had subpoenaed all the witnesses, including the witnesses who were
in contact with counsel constantly. The letter identified Ms. Giles, Mr. Scott, Ms. Wynn, Ms.
Reynolds, Ms. Angland, and Ms. Crawford and told counsel they were witnesses to the
shooting. He said that he thought some of these witnesses had moved because he had not
received any responses when he attempted to have the witnesses contact post-conviction
counsel.
The Petitioner testified that he spoke to counsel about self-defense after he rejected
the State’s final plea offer. He agreed the State offered twenty and nineteen years for
pleading guilty to second degree murder. He said he thought the jurors would find he acted
in self-defense if they heard his side of the story. He said his story about how the shooting
occurred had never changed. He said that the police yelled and cursed at him during the
interview and that the officers prevented him from telling the entire story. He said he
rejected the State’s offers because he believed he was provoked and was protecting himself.
The Petitioner testified that he and counsel discussed his testifying within one month
of the trial date. He said counsel believed it was not in the Petitioner’s best interest to testify.
He decided to trust counsel and his advice because this was the Petitioner’s first jury trial.
He agreed he told the trial court that he understood his right to testify and that he decided not
to testify based on counsel’s advice. He denied knowing counsel was not going to present
any witnesses at the trial and said he thought at least one or two of the witnesses he requested
counsel to subpoena would testify. He said that had he known counsel was not going to
present witnesses, he would have testified at the trial.
On cross-examination, the Petitioner testified that he did not provide previous counsel
with the letters he wrote to the potential witnesses because it was too early before the trial.
He said his case was not set for trial until counsel was appointed. He said he learned the
witnesses’ addresses and telephone numbers from other people. He said he asked people to
go to the witnesses’ houses, knock on the doors, talk to the people who lived there, and
obtain the addresses. He said he wrote the letters based on that information and relayed the
information to counsel. He said that although only one letter he wrote to counsel was
received as an exhibit, he wrote counsel more than once. He denied his letters to counsel
contained the witnesses’ addresses and telephone numbers. He said his letters asked counsel
-13-
to visit him at the jail in order to provide counsel the information. He said counsel visited
him at the jail three or four times in the nine months before the trial.
The Petitioner testified that he told counsel and the police officers who interviewed
him the same facts. He said that although the recording of the police interview did not show
that he said the box cutter cut him, he said it was unnecessary to say it because the officers
saw the cut due to his not wearing a shirt. He said the box cutter and his shirt were recovered
by the police before he gave his statement. He agreed he told the police that he retrieved the
gun from his uncle’s porch but that he testified at the post-conviction hearing that the gun
was inside his car.
The Petitioner testified that after he picked up the gun and turned around, the victim
turned, that they “bumped,” and that he fired the gun on reflex. He said the police officers’
yelling at him during the interview prevented him from thinking clearly, but he maintained
his story had never changed. He agreed his statement to the police showed that he “pulled
the trigger” and that he did not mention a reflex. He agreed that his statement to the police
did not show that he thought the victim and the others would leave him alone if they saw the
gun. He disagreed that he told the police that he “had to cycle the gun” before shooting it
and that he only wanted to give the victim “a ball pinch or something, like an aggravated
assault.” He said the transcript of his police interview was “altered” because the original
recording contained “hollering and cursing.”
The Petitioner testified that counsel recommended that he not testify at the trial
because his criminal history would be addressed on cross-examination. He said later, though,
that counsel never discussed his criminal history. Although he denied having previous
convictions for violent crimes, he agreed he was previously convicted of statutory rape and
theft valued less than $500 and served six years for a cocaine-related conviction. He denied
those were serious offenses.
The Petitioner testified that counsel did not say he was unable to locate the witnesses
the Petitioner wanted subpoenaed and that counsel lied when he testified to the contrary. He
said that although his statement to the police said he “got rid of the gun,” he dropped the gun
and ran after the shooting. He denied counsel told him that his story did not support self-
defense and said counsel lied when he testified that they discussed counsel’s conclusions.
Gregory Scott testified that on the night of the shooting, he and the Petitioner had “a
little confrontation” and that “a couple other guys jumped in it” because of issues they had
with the Petitioner previously. He said the other men “took it as a good opportunity to handle
. . . [their] business.” He identified the other men as the victim and someone he knew only
as Cornelius and said they “ganged” the Petitioner. He said that he and the Petitioner fought
-14-
for about five minutes but that the victim and Cornelius continued to “gang” him. He said
that the Petitioner attempted to get away from them but that the victim kept coming toward
the Petitioner. He said he did not see the Petitioner leave to get a gun. He said that things
happened quickly and that the fight did not end when the victim was shot. He said that he
was about ten yards from the victim when he was shot but that he was walking back to his
house because he was not supposed to be outside. He denied seeing what occurred from the
time he walked away until the victim was shot, which was about one minute. He admitted
being on probation at the time of the shooting. He said the victim and the Petitioner were
face-to-face when the victim was shot.
Mr. Scott testified that although the victim was trying to “get at” the Petitioner when
Mr. Scott turned to walk back to his house, people were outside attempting to break up the
fight. He said the fight occurred a few feet from where the victim was shot. He saw the
Petitioner attempting to get away during the fight and the victim “going after” the Petitioner.
He said that he and the Petitioner grew up together and that he knew the Petitioner had vision
problems.
On cross-examination, Mr. Scott testified that he had previous convictions for theft
and automobile burglary. He denied talking to counsel or anyone else before the trial about
the fight and shooting. He said that he did not provide a statement to anyone because he was
not asked and that he did not want to “deal with” the police if he could avoid it. He said his
confrontation with the Petitioner was about a misunderstanding related to a girl. He said he
stopped fighting with the Petitioner after the victim and Cornelius joined the fight. He said
he returned home because he heard people talking about calling the police and did not want
to be involved.
Mr. Scott testified that he did not receive a letter from the Petitioner when the
Petitioner was in confinement. He read the letter addressed to him that was previously
received as an exhibit and said he did not recall receiving it. He did not recall speaking with
counsel but knew the Petitioner was charged with murder. He did not know anyone was
looking for him before the Petitioner’s trial. He said that because he looked away from the
Petitioner and the victim, he would not have been able to testify at the trial about the
Petitioner’s obtaining a gun, walking to the porch, or shooting the victim. He said he did not
have a box cutter that night and did not recall anyone else having a box cutter. He agreed he
was on probation at the time of the shooting for a theft-related charge.
On redirect examination, Mr. Scott testified that although he did not want to be
involved, he would have testified had he been subpoenaed to appear at the trial. He agreed
post-conviction counsel served him with a subpoena at his probation officer’s office. He
-15-
denied having a reason to lie and said the last thing he saw was the victim “heading toward”
the Petitioner and their arguing.
The trial court found that counsel did not provide ineffective assistance and denied
relief. Regarding the Petitioner’s decision not to testify at the trial, the court found that
counsel was not deficient. It found that the Petitioner knew the decision to testify was his,
that the Petitioner’s version of the events did not change before the trial, that he did not tell
counsel his statement was incomplete or inaccurate, and that the Petitioner’s statement to the
police was presented at the trial. The court found that the Petitioner’s testifying to the same
events contained in the statement to the police was “unlikely to advance the theory of the
defense[.]” The court also found that counsel properly advised the Petitioner that he would
have been subject to cross-examination and would have been questioned about his criminal
history, which included convictions for violent offenses.
Regarding counsel’s failure to present witnesses and proof at the trial, the trial court
credited counsel’s testimony that the Petitioner did not provide contact information for the
six potential witnesses identified at the post-conviction hearing. The court found that counsel
was unable to locate any witnesses, including Mr. Scott who was on probation at the time of
the shooting, after visiting the neighborhood where the shooting occurred and questioning
people he encountered there. The court noted that it was undisputed that counsel did not hire
an investigator and stated that “in this digital age, an investigator might have done more to
locate the witnesses[.]” The court noted that Mr. Scott was the only potential witness
presented at the post-conviction hearing. The court found that Mr. Scott did not see what
occurred in the minute leading to the shooting because he turned away and began walking
home. Regarding Ms. Wynn, the court found that there was no evidence presented that her
statement was favorable to the Petitioner and that any deficiency in counsel’s performance
was not prejudicial.
Regarding counsel’s failure to cross-examine Ms. Stamper about her previous theft
conviction and failure to request a special jury instruction about her credibility, the trial court
found that Ms. Stamper was questioned about her prior theft conviction on direct
examination and admitted pleading guilty and paying a fine, although she denied having been
convicted. The court found that the jury was provided a pattern instruction on the credibility
of witnesses that referred to evidence of the witness’s intelligence, respectability, and
reputation for truthfulness. The court found that counsel was not deficient.
Regarding counsel’s failure to cross-examine Mr. Edwards about the inconsistency
between his and Ms. Stamper’s testimony relating to the Petitioner’s threat to run over the
victim, the trial court found that Mr. Edwards’s testimony did not exclude the possibility that
the Petitioner had driven away by the time Mr. Edwards left his home and arrived at the
-16-
location where the victim fell to the ground. The court found that Mr. Edwards was inside
when the argument began, that he went to a window after hearing loud voices outside, and
that he saw the shooting. It found that Mr. Edwards left the window, obtained a towel, and
took the towel to his aunt, who was outside. The court found that Mr. Edwards heard the
victim say, “It hurt,” and that “presumably, before he went to speak to his aunt and fetch a
towel, he saw the [P]etitioner drive away.” The court found that any deficiency in counsel’s
performance was not prejudicial in the absence of evidence that Mr. Edwards could or would
have contradicted Ms. Stamper’s testimony regarding the threat.
Regarding counsel’s failure to pursue self-defense and to request a self-defense jury
instruction, the trial court found that the Petitioner did not mention in his statement to the
police that someone had a box cutter and that his shirt and skin were cut before the shooting,
although the Petitioner said during his police interview that his wound was obvious. The
court noted that the Petitioner attempted to convey the “defensive nature of his action” and
that the prosecutor argued that the Petitioner raised self-defense and passion after he was
apprehended. The court found that counsel argued at the trial that the Petitioner attempted
to disengage from the fight and retrieved the gun after he was followed and perceived a theat.
The court found counsel noted the State’s experts concluded that the victim and the Petitioner
were about two feet apart at the time of the shooting and were unable to determine the
Petitioner’s location at the time of the shooting. The court found that the Petitioner’s account
of the fight and shooting at the post-conviction hearing raised an issue of self-defense but
that
at no time before or during the trial, however, did he indicate to counsel that
his statement to police, which in the opinion of the Court of Criminal Appeals,
supports the theory of the prosecution of disengagement and escalation, was
incomplete or inaccurate in any way and for any reason or give counsel a
different account of events.
The trial court noted that the Petitioner obtained the gun from a place more than
twenty yards from where the victim fell and that Ms. Stamper’s and Mr. Edwards’s testimony
showed that at the time of the shooting, the Petitioner was within a few feet of where the
victim fell. Based on this evidence, the court agreed with counsel that a “complete-
justification theory seem[ed] a less-probable explanation of the facts than a provocation
theory.” The court stated that “although counsel did . . . overlook the possibility that the
[P]etitioner’s intent in retrieving the gun was not to shoot someone but to deter further
attack,” any deficiency in this regard was not prejudicial.
Regarding counsel’s failure to introduce evidence of the Petitioner’s having macular
degeneration, the trial court questioned counsel’s conclusion that the condition was not
-17-
relevant. The court noted that the prosecutor argued at the trial that the Petitioner never
identified the victim as one of the assailants. The court found that although the Petitioner’s
eye condition could have explained his inability to identify any of the assailants, except for
Mr. Scott, and his possible “misapprehension of the ongoing threat and . . . overreaction,”
the evidence was minimal. The court noted that no evidence existed explaining the
discrepancy between the Petitioner’s stating that the victim was on the Petitioner’s back
when he retrieved the gun and the victim’s falling in the street twenty yards away. The court
found that any deficiency in counsel’s performance was not prejudicial. This appeal
followed.
The burden in a post-conviction proceeding is on the petitioner to prove his grounds
for relief by clear and convincing evidence. T.C.A. § 40-30-110(f) (2012). On appeal, we
are bound by the trial court’s findings of fact unless we conclude that the evidence in the
record preponderates against those findings. Fields v. State, 40 S.W.3d 450, 456-57 (Tenn.
2001). Because they relate to mixed questions of law and fact, we review the trial court’s
conclusions as to whether counsel’s performance was deficient and whether that deficiency
was prejudicial under a de novo standard with no presumption of correctness. Id. at 457.
Post-conviction relief may only be given if a conviction or sentence is void or voidable
because of a violation of a constitutional right. T.C.A. § 40-30-103 (2012).
Under the Sixth Amendment, 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 v. Washington, 466 U.S. 668, 687
(1984); see Lockhart v. Fretwell, 506 U.S. 364, 368-72 (1993). In other words, a showing
that counsel’s performance fell below a reasonable standard is not enough because the
Petitioner must also show that but for the substandard performance, there is “a reasonable
probability that . . . the result of the proceeding would have been different.” Strickland, 466
U.S. at 694. The Strickland standard has 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. Henley v. State, 960 S.W.2d 572, 580 (Tenn.
1997). 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
“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 unprofessional 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.
-18-
I
The Petitioner contends that he received the ineffective assistance of counsel because
counsel denied him the right to subpoena witnesses. He argues that he told counsel he
wanted six potential witnesses subpoenaed, that he gave counsel the names, addresses, and
telephone numbers of those witnesses, and that counsel told him the witnesses would be
subpoenaed for the trial. He argues, too, that his letters to counsel and the potential witnesses
show the witnesses could be located and that had counsel subpoenaed Mr. Scott, the outcome
of the trial would have been different. The State contends that counsel was not deficient
because he investigated the case adequately, although he was unsuccessful in locating any
witnesses. We agree with the State.
Criminal defendants have a fundamental, constitutional right to the “compulsory
attendance of witnesses under the Sixth Amendment of the United States Constitution, and
Article I, Section 9, of the Constitution of Tennessee.” State v. Smith, 639 S.W.2d 677, 680
(Tenn. Crim. App. 1982). Although the Petitioner submitted letters at the post-conviction
hearing that he claimed were written and mailed to potential witnesses before the trial, the
record shows that the trial court discredited the Petitioner’s testimony and credited counsel’s
testimony. The trial court found that the Petitioner did not provide contact information for
the six potential witnesses that counsel was unable to locate, including Mr. Scott. Counsel
testified that he asked the Petitioner for the potential witnesses’ contact information but that
the Petitioner was unable to provide it. Counsel and his paralegal went to the location of the
shooting, canvassed the neighborhood, and talked to people they encountered but were
unsuccessful in locating anyone who saw the shooting or knew anyone who saw the shooting.
We note that of the six potential witnesses, the Petitioner only presented one, Gregory
Scott. Generally, failure to present a witness at the post-conviction hearing prevents relief
on the ground that counsel was deficient for failing to locate and present that witness. Black
v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990). Although we conclude that counsel
should have been able to locate Mr. Scott through his probation officer, his failure did not
prejudice the Petitioner. Mr. Scott testified that he and the Petitioner fought, that the victim
and another man “jumped” into the fight and “ganged” the Petitioner, and that the Petitioner
attempted to get away from the victim. He said, though, that he turned and walked away
from the fight and did not see what happened from the time he walked away until the
shooting, which was about one minute. Mr. Scott admitted that had he been subpoenaed for
the trial, he would not have been able to testify about the Petitioner’s walking to the porch,
obtaining a gun, or shooting the victim. Furthermore, Mr. Scott said he did not have a box
cutter that night and did not recall anyone else having a box cutter. The Petitioner is not
entitled to relief on this basis.
-19-
II
The Petitioner contends that he received the ineffective assistance of counsel because
counsel investigated his case inadequately and failed to hire an investigator, which resulted
in his inability to subpoena witnesses. He argues that counsel should have hired or requested
funds to hire an investigator to find the six potential witnesses because counsel failed to find
them. He argues that had counsel hired an investigator, Mr. Scott would have been
subpoenaed, that Mr. Scott would have testified, and that the outcome of the trial would have
been different. The State contends that the evidence does not preponderate against the trial
court’s finding that the Petitioner was not prejudiced by counsel’s failing to locate Mr. Scott.
We agree with the State.
Although trial counsel does not have an absolute duty to investigate particular facts
or a certain line of defense, counsel does have a duty to make a reasonable investigation or
to make a reasonable decision that makes a particular investigation unnecessary. Strickland,
466 U.S. at 691. A reasonable investigation does not require counsel to “leave no stone
unturned.” Perry Anthony Cribbs v. State, No. W2006-01381-CCA-R3-PD, slip op. at 57
(Tenn. Crim. App. July 1, 2009), perm. app. denied (Tenn. Dec. 21, 2009).
Rather,“[r]easonableness should be guided by the circumstances of the case, including
information provided by the defendant, conversations with the defendant, and consideration
of readily available resources.” Id. The United States Supreme Court has said, “inquiry into
counsel’s conversations with the defendant may be critical to a proper assessment of
counsel’s investigation decisions, just as it may be critical to a proper assessment of
counsel’s other litigation decisions.” Strickland, 466 U.S. at 691.
Although the trial court stated that “in this digital age, an investigator might have done
more to locate the witnesses,” no evidence exists showing that counsel was deficient in his
overall investigation of the Petitioner’s case. The court credited counsel’s testimony that the
Petitioner provided a list of potential witnesses who he thought could provide favorable
information at the trial but that the Petitioner was unable to provide addresses and working
telephone numbers. Counsel attempted to find the potential witnesses by going to Holly
Street where the killing occurred. He and his paralegal canvassed the neighborhood and
talked to people in the area but were unsuccessful in finding any of the witnesses. Counsel
asked the Petitioner to identify other people who might provide information about how to
locate the witnesses, but the Petitioner could not do so. He said he followed up “with
anything [he] had that would help . . . locate these individuals.” Based on counsel’s
experience, he concluded that it was common for people in the area where the shooting
occurred to avoid participating as witnesses or discussing cases.
-20-
Counsel was appointed to represent the Petitioner after previous counsel was
permitted to withdraw. Previous counsel delivered his case file to counsel, which contained
research and the results of his investigation. Counsel stated that one of the reasons he did
not hire an investigator was because previous counsel had already investigated the case.
Counsel did not believe an investigator would have been able to locate the people on the
Petitioner’s list.
We conclude that counsel was not otherwise deficient in investigating the Petitioner’s
case. The record shows that counsel investigated and attempted to find witnesses who might
have provided favorable information. Counsel had the benefit of previous counsel’s
investigation. Furthermore, the Petitioner failed to present any witnesses, other than Mr.
Scott, at the post-conviction hearing to establish counsel’s deficient investigation. Likewise,
the Petitioner failed to show why the witnesses were not presented at the post-conviction
hearing. See Black, 794 S.W.2d at 757. The Petitioner is not entitled to relief on this basis.
III
The Petitioner contends that he received the ineffective assistance of counsel because
counsel advised the Petitioner not to testify at the trial. He argues that he would have
testified had he known counsel was not presenting a self-defense theory and was not
presenting any witnesses. The State contends that the evidence does not preponderate against
the trial court’s findings. We conclude that the Petitioner is not entitled to relief.
Counsel’s credited testimony was that he and the Petitioner discussed whether the
Petitioner should testify at the trial and counsel’s decision not to argue self-defense. Counsel
concluded that self-defense was not supported by the Petitioner’s version of events because
the Petitioner told counsel that he was involved in a fight with a group of people but that the
Petitioner left the scene, returned with a weapon, and shot the victim. This version of events
was consistent with the Petitioner’s statement to the police, which was played for the jury.
Counsel believed that by having the Petitioner’s recorded police interview played for
the jury, the Petitioner received the benefit of not being subject to cross-examination and not
having unfavorable information presented. Counsel thought the Petitioner’s testifying was
unwise because the Petitioner broke away from the fight and obtained a weapon. Although
counsel said aspects of the Petitioner’s statement were not “fleshed out as perhaps they could
have been if he testified,” he concluded that having a witness testify about one favorable
topic did not justify presenting the witness when the risk included having the witness testify
about numerous unfavorable topics. He believed the Petitioner’s testimony would not have
been materially different from his statement to the police. Counsel believed that cross-
examination regarding the Petitioner’s criminal history would have overshadowed any
-21-
favorable testimony regarding the events leading to the shooting. Counsel believed the
Petitioner’s testimony would have harmed the case because the Petitioner risked having his
criminal history introduced. The Petitioner testified that counsel recommended that he not
testify because his criminal history would be addressed on cross-examination. Likewise, the
Petitioner admitted having previous convictions for a cocaine-related offense, statutory rape,
and theft, although he denied these were serious offenses.
Counsel testified that the Petitioner understood the recommendation that the Petitioner
not testify. He discussed with the Petitioner whether he should testify at the trial “on more
than one occasion” before the trial and at the end of the State’s case-in-chief. He said the
Petitioner understood that it was the Petitioner’s decision to testify and that he could testify
if he disagreed with counsel’s recommendation. He said that the Petitioner knew the defense
was not calling any witnesses when he decided not to testify. Counsel testified that he and
the Petitioner discussed before the trial the trial strategy of focusing on the Petitioner’s state
of mind and that he did not recall the Defendant’s objecting to his chosen strategy.
We conclude that counsel was not deficient in advising the Petitioner not to testify and
by not presenting a self-defense theory. The Petitioner consistently told counsel that he left
the scene of the fight, obtained a gun, returned to the scene, and shot the victim. No one else
had a gun. These facts do not support a theory of self-defense, and counsel concluded that
the facts better supported a state-of-mind theory, focusing on the Petitioner’s agitation after
being involved in a fight with multiple people. We note that the Petitioner’s version of
events did not change until he testified at the post-conviction hearing, and the trial court
discredited his testimony. In his statement to the police, the Petitioner said he retrieved the
gun from his uncle’s porch, but at the post-conviction hearing, he testified that the gun was
in his car nearby. Also, the Petitioner told the police that he pulled the trigger but testified
that he shot the victim reflexively. Likewise, the Petitioner did not tell counsel that his
statement to the police was unclear or incomplete. The Petitioner’s testifying at the trial
similarly to his recorded police interview would not have changed the outcome of the trial.
To the contrary, had the Petitioner testified at the trial, he risked being cross-examined
regarding his criminal history. Counsel concluded that the potential risks outweighed the
potential benefit. In the event the Petitioner had testified at the trial consistent with his
testimony at the post-conviction hearing, the Petitioner would have been required to explain
his inconsistent statement to the police, which would have affected his credibility. The
Petitioner is not entitled to relief on this basis.
IV
The Petitioner contends that he received the ineffective assistance of counsel because
counsel failed to impeach and cross-examine Ms. Stamper regarding her prior inconsistent
-22-
statements and failed to request a special jury instruction regarding her propensity for
untruthfulness. The State responds that counsel was not deficient. We agree with the State.
The record reflects that counsel did not recall asking Ms. Stamper about her previous
theft conviction but that he did not think the conviction would have changed the jurors’ view
of her testimony because of the emotional nature of her testimony. He recalled she held the
victim after the shooting. Counsel said that Ms. Stamper’s testimony differed from her
statement to the police and that he highlighted during cross-examination the discrepancies
most relevant to the theory of the case by playing the relevant portions of her recorded
statement. Counsel thought Ms. Stamper was an uncontrollable witness who said what she
wanted to say and said he attempted to craft his questions carefully to prevent her from
“going off the tracks.”
Counsel testified that he did not request a special jury instruction regarding witness
credibility and that the standard instruction was given. He reviewed the pattern jury
instructions before the trial to determine which instructions he needed to request and was
comfortable with the general instruction. He did not recall asking for a special instruction
regarding witnesses convicted of crimes of dishonesty but said that even if the jury
discredited Ms. Stamper’s testimony in its entirety, the outcome of the trial would have been
the same because of the Petitioner’s statement to the police.
The trial transcript shows that the jury instruction provided, in relevant part, the
following:
Credibility of a witness: it is your job to decide what the facts of this
case are. You must decide which witnesses you believe and how important
you think their testimony is. You do not have to accept or reject everything a
witness said. You’re free to believe all, none or any part of a person’s
testimony.
In deciding which testimony you believe, you should rely on your own
common sense and every day experience. There is no fixed set of rules for
judging whether you believe a witness, but it may help you to think about these
questions: Was the witness able to see or hear clearly? How long was the
witness watching or listening? Was anything else going on that might have
distracted the witness? Did the witness seem to have a good memory? How
did the witness look and act while testifying? Did the witness seem to be
making an honest effort to tell the truth or did the witness seem to evade the
questions? Has there been any evidence presented regarding the witness’s
intelligence, respectability, or reputation for truthfulness? Does the witness
-23-
have any bias, prejudice or personal interest in how the case is decided? Have
there been any promises, threats, suggestions or other influences that affected
how the witness testified? In general, does the witness have any special reason
to tell the truth or any special reason to lie? All in all, how reasonable does the
witness’s testimony seem when you think about all the other evidence in the
case?
Sometimes the testimony of different witnesses will not agree, and you
must decide which testimony you accept. You should think about whether the
disagreement involves something important or not and whether you think
someone is lying or simply mistaken. People see and hear things differently,
and witnesses may testify honestly but simply be wrong about that they thought
they saw or remembered.
It is also a good idea to think about which testimony agrees best with
the other evidence in the case. However, you may conclude that a witness
deliberately lied about something that is important to how you decide the case.
If so, you may choose not to accept anything that witness said. On the other
hand, if you think the witness lied about some things but told the truth about
others, you may simply accept the part you think is true and ignore the rest.
Regarding the impeachment of witnesses, the court instructed, in relevant part, “When
a witness is . . . impeached, the jury has the right to disregard his or her evidence and treat
it as untrue, except where it is corroborated by credible testimony or by the facts and
circumstances proved at the trial.” The record reflects that the instructions adequately
informed the jury of the relevant considerations.
We conclude that counsel was not deficient by failing to cross-examine Ms. Stamper
about her previous theft conviction or by failing to request a special jury instruction. The
trial transcript shows that Ms. Stamper was asked during direct examination about her
previous theft conviction. Although Ms. Stamper denied being convicted, she admitted
pleading guilty to theft and paying a fine. The conviction was before the jury, and it was free
to consider her credibility when evaluating and weighing the truthfulness of her testimony
as instructed by the court. Counsel testified that he highlighted the discrepancies in Ms.
Stamper’s testimony by playing portions of her recorded police interview. Although counsel
did not cross-examine her on every inconsistent statement, he strategically chose to highlight
the inconsistencies most relevant to his theory of the case. The Petitioner is not entitled to
relief on this basis.
-24-
V
The Petitioner contends that he received the ineffective assistance of counsel because
counsel failed to present evidence that he suffered from macular degeneration. The State
responds that counsel was not deficient. We conclude that the Petitioner is not entitled to
relief.
The record shows that although counsel knew of the Petitioner’s macular
degeneration, he concluded that the condition would not aid his strategy of seeking a
voluntary manslaughter conviction. He recalled the trial testimony showed that the Petitioner
thought someone was coming toward him, that the Petitioner fired the gun, and that the
victim was shot in the back. He said that there were issues about the distance between the
victim and the Petitioner and that testimony showed the Petitioner was not able to identify
clearly whom he shot. Counsel did not question Ms. Stamper about the Petitioner’s eye
condition because he feared she might attribute the Petitioner’s unusual eye appearance to
drug use. He said that the Petitioner had a history of frequent drug use and that he did not
want to risk her testifying about it. Likewise, counsel did not think it mattered that the
Petitioner had macular degeneration because the testimony showed that the Petitioner “was
just shooting at a form, an object that he saw[.]”
Counsel’s chosen defense focused on the Petitioner’s state of mind at the time of the
shooting. The Petitioner’s version of events at the time of the trial was that he began arguing
with Mr. Scott and that two other men joined the fight. Counsel argued at the trial that the
Petitioner did not have a clear head. Counsel could have used the Petitioner’s eye condition
to explain why the Petitioner did not have a clear head, arguing the Petitioner could not see
clearly the men who were attacking him and misinterpreted the threat against him. We
conclude, though, that any deficiency did not create a reasonable probability that, but for
counsel’s unprofessional errors, the result of the trial would have been different. The trial
court found that no evidence existed explaining the discrepancy between the Petitioner’s
stating that the victim was on his back when the Petitioner retrieved the gun and the victim’s
falling in the street twenty yards away. Likewise, the Petitioner’s version of events at the
time of the shooting was that the Petitioner was able to free himself from the assault. It was
at that point that the Petitioner retrieved a gun from his uncle’s porch and returned to the
victim’s location. Counsel’s credited testimony shows that the Petitioner’s version of events
never changed from the time of counsel’s appointment to the start of the trial. The Petitioner
is not entitled to relief on this basis.
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In consideration of the foregoing and the record as a whole, the judgment of the trial
court is affirmed.
____________________________________
JOSEPH M. TIPTON, PRESIDING JUDGE
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