Blake Delaney Tallant v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs April 23, 2014

BLAKE DELANEY TALLANT v. STATE OF TENNESSEE

Appeal from the Criminal Court for Knox County

No. 89946 Mary Beth Leibowitz, Judge

No. E2013-01827-CCA-R3-PC - Filed July 15, 2014

The petitioner, Blake Delaney Tallant, appeals the denial of his petition for post-conviction

relief, arguing that he was denied the effective assistance of trial and appellate counsel due

to counsel’s failure to properly educate him on the importance of testifying in his own

defense, to press the issue of the bill of particulars in the trial court or to raise it as an issue

on direct appeal, and to include the jury questionnaires in the record on direct appeal.

Following our review, we affirm the denial of the petition.

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

A LAN E. G LENN, J., delivered the opinion of the Court, in which T HOMAS T. W OODALL and

R OGER A. P AGE, JJ., joined.

Leslie M. Jeffress, Knoxville, Tennessee, for the appellant, Blake Delaney Tallant.

Robert E. Cooper, Jr., Attorney General and Reporter; Andrew C. Coulam, Assistant

Attorney General; Randall E. Nichols, District Attorney General; and Steven C. Garrett,

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

OPINION

FACTS

The petitioner was convicted by a Knox County Criminal Court jury of two counts of

first degree felony murder, one count of second degree murder, and two counts of aggravated

child abuse, a Class A felony. The trial court dismissed the second degree murder

conviction, merged the two felony murder convictions, and sentenced the petitioner to life

plus twenty-five years in the Department of Correction. State v. Blake Delaney Tallant, No.

E2006-02273-CCA-R3-CD, 2008 WL 115818, at *1 (Tenn. Crim. App. Jan. 14, 2008), perm.

app. denied (Tenn. June 30, 2008).

This court affirmed the convictions on direct appeal but remanded to the trial court

with instructions to merge the two aggravated child abuse convictions and to hold a new

sentencing hearing regarding consecutive sentencing. Our supreme court subsequently

denied the petitioner’s application for permission to appeal. See id.

Our direct appeal opinion reveals that the petitioner’s convictions stemmed from the

death of his three-and-a-half-month-old son, whose autopsy revealed at least twenty-five

separate bone fractures in varying stages of healing, multiple bruises and scratches, and other

injuries indicative of child abuse. Id. at *1-16. The first witnesses at the defendant’s trial

were the Knoxville police officers who responded to the petitioner’s wife’s 911 call that the

victim was not breathing, police investigators who interviewed the petitioner that same night,

and agents from the Tennessee Bureau of Investigation who conducted analyses of the

petitioner’s and the victim’s blood and of the substance found in the petitioner’s pocket on

the night of the 911 call. According to the testimony of these various witnesses, the

petitioner appeared “spacey” and nonchalant when the first officers arrived in response to the

911 call. The petitioner also appeared emotionless when later informed that the victim had

died. A search of the petitioner uncovered methamphetamine in his pocket, and the

petitioner’s blood tested positive for methamphetamine and his urine positive for marijuana.

The victim’s blood also tested positive for methamphetamine. Id. at *1-3. Our direct appeal

opinion contains the following summary of the other testimony at the petitioner’s trial:

Dr. Murray Marks, a forensic anthropologist with the University of

Tennessee, testified that he examined both x-rays of the victim and bones from

the victim’s body to evaluate bone trauma suffered by the victim. Dr. Marks

testified that his investigation revealed that the victim suffered nine

antemortem fractures of his left-side ribs and nine antemortem fractures of his

right-side ribs. Dr. Marks explained that antemortem fractures were those that

featured bone calluses, which meant that the bone had healed and the fracture

occurred prior to death. Dr. Marks said that the victim also suffered two

perimortem fractures of his right-side ribs and three perimortem fractures of

his left-side ribs, which included one rib being broken in two places. Dr.

Marks explained that perimortem fractures were those that were “fresh” and

had no signs of healing. Dr. Marks also noted that the victim suffered an

antemortem fracture of his femur, or thigh bone. Dr. Marks noted that this

break had a particularly large callus, which indicated that the bone “was

broken and was never set.” Dr. Marks also testified that the victim suffered

an antemortem fracture of his right humerus, his upper arm bone.

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On cross-examination, Dr. Marks testified that the bones of a child the

victim’s age tended to heal more quickly than those of an adult, which led him

to conclude that the perimortem fractures occurred anywhere between the

child’s death and ten to fourteen days of his death. Dr. Marks said that he

could not testify as to whether the victim’s broken leg was a spiral fracture,

and he also said that he had never heard of an instance where massaging a

child’s leg could lead to a spiral fracture. On redirect, Dr. Marks testified that

although he stated that the victim’s perimortem fractures could have occurred

up to two weeks before his death, it was unlikely that the breaks were that old

because the bones of a child the victim’s age tended to heal quickly. Thus, the

perimortem fractures were likely no more than ten days old.

Sarah Tallant, the [petitioner’s] wife and the victim’s mother, testified

that she was originally indicted as a co-defendant in this case, but she reached

a plea agreement with the Knox County District Attorney General’s office.

Pursuant this agreement, she agreed to testify against her husband; in exchange

for her testimony, she would receive a twenty-year sentence with a release

eligibility date of 30%.

Ms. Tallant testified that she met the [petitioner] in 1995 and married

him in 1997. The couple originally lived in Arkansas before moving to

Tennessee in March 1999. Ms. Tallant testified that she began using

methamphetamine when she was eighteen and used the drug daily until she

moved to Tennessee. She also said that the [petitioner] used drugs daily

during the early part of their relationship and marriage. She testified that she

and her husband moved to Tennessee in an attempt to create a “fresh start” and

escape from the drugs. She testified that both she and her husband stayed off

methamphetamine until their first son was born in June 2000. Shortly after

their first son was born, both the [petitioner] and Ms. Tallant resumed using

methamphetamine on a daily basis. Ms. Tallant testified that the couple’s daily

methamphetamine use continued until the victim died.

Ms. Tallant testified that when the couple first moved to Tennessee,

both she and her husband held jobs. However, once the couple’s first son was

born, she quit work to focus on raising her son while the [petitioner] continued

to work. Ms. Tallant testified that the [petitioner] worked eight to ten hours

per day, five days a week, with an irrigation business. Ms. Tallant testified

that her husband held this job for a “good while” but he had either quit or was

laid off once the couple’s second son, Arson, the victim in this case, was born

on April 27, 2002. Ms. Tallant testified that the [petitioner], who was not

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employed after the victim was born, took care of the child eighty to eighty-five

percent of the time. Ms. Tallant explained that she and the [petitioner] agreed

upon this arrangement because Ms. Tallant had been the primary caregiver for

the couple’s older son. Ms. Tallant testified that while the [petitioner] was the

victim’s primary caregiver, she did take the victim to the doctor’s office for

routine visits “about five times.”

Ms. Tallant testified that her older son did not hurt the victim. She also

said that the couple had two pit bulls, but that the dogs did not hurt the baby

either. She testified that the victim was never left alone, and while one of the

[petitioner’s] cousins visited the house, this cousin never took care of the

victim.

Ms. Tallant testified that the [petitioner], who she described as a “very

hard person to read,” did not like being watched. Ms. Tallant said that if she

would watch him, the [petitioner] would ask her “why are you always

watching me?” She also said that if the victim would cry, the [petitioner]

“would always question me why I was always watching him and hovering over

him.”

Ms. Tallant recalled that the day the victim died, she spent most of the

day at home with her two children while the [petitioner] was out retrieving a

part for the couple’s car. She testified that the victim seemed fine, though he

seemed a little cold and did not eat much. Ms. Tallant recalled that around

6:00 that evening, the [petitioner] returned home. The [petitioner] asked her

if she would be taking the dogs for a walk; she replied that she would not

because she wanted to stay with her son, who was not feeling well. The

[petitioner] insisted that she take the dogs out because she had promised the

dogs that she would do so. At that point, Ms. Tallant said that she would walk

the dogs. She left the family’s residence around 7:30 p.m. and returned

between 8:30 and 9:00 p.m.

Upon her return, Ms. Tallant noticed that the [petitioner] held the victim

in his lap. Ms. Tallant told her husband that the baby looked blue and “kind

of cold.” The [petitioner] told her that he had just given the baby a bath and

that the baby was fine, though the baby had not eaten when he tried to feed

him. Ms. Tallant told the [petitioner] to refrain from feeding the victim if he

did not want to eat, and she then took her oldest son into the bathroom and

gave him a bath. She then took a bath herself, read to her oldest son for a

while before putting him to bed, and then went to the living room. Ms. Tallant

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noticed that the [petitioner] and the victim were in the couple’s bedroom with

the light off. She then went into the bedroom, where she noticed the

[petitioner] lying on his back on the bed, with the victim lying on top of the

[petitioner’s] chest. According to Ms. Tallant, the victim looked “lifeless.”

She asked her husband if anything was wrong and noted that the victim did not

appear to be breathing. The [petitioner] replied that everything was fine, and

Ms. Tallant exited the bedroom.

A short time later, Ms. Tallant re-entered the bedroom and turned on the

light. She looked at the victim, noticed that he “didn’t look right to me,” and

then told her husband that she would call 911. Ms. Tallant said that the

[petitioner], who was angry over this prospect, told her not to call 911 and said

that he would divorce her if she did call. Ms. Tallant called 911 anyway. The

tape of the 911 call was then played in open court. Although neither the

recording nor a transcript of the call appears in the record, the trial transcript

indicates that during the call, Ms. Tallant told the [petitioner], “I don’t give a

s--what you think. This is my son.” Ms. Tallant testified that she told this to

her husband because he was upset that she had called. She also testified that

during the call, she told her husband that she was serious; she explained that

she made this statement because the [petitioner] “laughs at everything.

Everything is funny to him.” During the call, Ms. Tallant testified that she told

the police to hurry to the home. After hanging up, Ms. Tallant went through

the house and attempted to hide some drugs that were in the house.

Ms. Tallant testified that she had seen the victim turn blue on one other

occasion, when he fell when he was about one month old. Ms. Tallant

explained that on this occasion, she returned home from taking her older son

to the doctor when the [petitioner] told her that the victim fell. According to

Ms. Tallant, the [petitioner] told her that he gave the victim a bottle, and the

victim found the bottle to be too hot. At that point, the victim jumped, kicked,

and fell from the couch to the floor, a distance of about one foot. Ms. Tallant

testified that the floor onto which the victim fell was wooden, with a carpet

covering part of it. Ms. Tallant testified that the side of her son’s face was

bruised, but several hours after she first noticed the bruising, it went away.

Ms. Tallant said that neither she nor the [petitioner] took the victim to the

doctor in connection with this incident.

Ms. Tallant testified that in the days immediately following this

incident, the victim would cry whenever she attempted to pick him up. She

then noticed that the victim’s right arm was swollen at the elbow. Ms. Tallant

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told her husband that the arm was swollen, and she wrapped the arm in a

bandage. Ms. Tallant also testified that the [petitioner] kept the baby in a car

seat for twenty-four consecutive hours so that the baby would not move his

arm. Ms. Tallant testified that she did not know at the time that the victim’s

arm was broken.

Ms. Tallant testified that once, after the child received an inoculation

in his left leg, she noticed that the leg was swollen. She then called the

doctor’s office and asked what to do. She testified that she was told to

massage the leg, give the baby some baby Tylenol, and give him a warm bath.

Ms. Tallant testified that she followed these instructions, but the baby’s leg

continued to swell. She also testified that when she massaged the leg, the

victim would cry as if he were in pain. Ms. Tallant testified that she did not

know at the time that the baby’s leg was broken, and she also noted that the

[petitioner] did not tell her anything about the baby’s leg.

Ms. Tallant testified that shortly after the victim’s arm became swollen,

the [petitioner] attempted to “x-ray” the victim’s arm by taking a lamp with a

500-watt bulb and holding it close to the baby’s arm. The [petitioner] told his

wife that while he held the lamp in one hand, he held a pillow over the baby’s

face to keep the light out of his eyes. Ms. Tallant said that the [petitioner] told

him that the pillow slipped, and when the baby attempted to grab it, the lamp

somehow came into contact with the baby, burning him on his right arm and

stomach. After the incident, the baby’s parents decided that when they took

the child in for his next check-up, they would tell the doctor that the baby had

suffered the burns when the lamp was accidentally knocked over and fell on

the baby. Ms. Tallant said that at the time she learned about the burns, she

believed that they had been accidentally inflicted.

Ms. Tallant acknowledged that some of the scratches that were seen

under the victim’s chin upon his death probably resulted from when the

[petitioner] would hold the victim’s mouth shut so that the victim would stop

crying. Ms. Tallant said that she saw the [petitioner] hold the baby’s mouth

shut a couple times. She also recalled that the [petitioner] would toss the

victim into the air in a playful manner. Ms. Tallant did not recall whether the

[petitioner] did this before or after she noticed the baby’s leg had become

swollen. She also recalled seeing the [petitioner] throw the victim onto a

beanbag chair on two occasions. Ms. Tallant also testified that on one

occasion, the [petitioner] placed a wet paper towel into the baby’s mouth in an

attempt to silence him.

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Ms. Tallant said that on some occasions, the [petitioner] would sit the

baby on his (the [petitioner’s]) knees and bounce the child up and down in an

attempt to burp him. Ms. Tallant recalled that when the [petitioner] did so, the

baby’s head would “kind of dangle because he was only a couple of months

old. He didn’t have enough strength to hold his own head up.” She also

testified that about one week before the baby died, she noticed an area of

redness on the baby’s bottom. Ms. Tallant asked the [petitioner] what was

wrong, and the [petitioner] replied that he had put baby powder on the child’s

bottom, which led to a rash. Ms. Tallant testified that she did nothing to that

part of the child’s body to hurt it. She said that when she took the baby’s

temperature, she did not use a rectal thermometer.

Ms. Tallant testified that approximately one week before the victim

died, she and the [petitioner] drove to Sweetwater, Tennessee, with their two

children to visit a friend. After arriving at the friend’s house, the friend

informed Ms. Tallant that the baby had quit breathing. Ms. Tallant gave the

baby to the [petitioner], who then blew into the baby’s mouth. According Ms.

Tallant, this action “brought [the baby] back.” Ms. Tallant testified that

neither she nor the [petitioner] sought medical attention for the child after this

incident because the [petitioner] told her that the baby would be okay. Ms.

Tallant testified that after the family returned to Knoxville, the [petitioner]

then went back to Sweetwater, where he spent to two three days making

methamphetamine.

Ms. Tallant testified that she was aware that methamphetamine was

found in the baby’s system at his death. She testified that she took

methamphetamine while she was pregnant with the victim, but that she never

put methamphetamine in the baby’s bottle. She also said she never put the

drug up the baby’s nose or injected the drug into the baby’s body.

On cross-examination, Ms. Tallant testified that the day after the victim

died, she gave a statement to police in which she said that neither she nor the

[petitioner] had done anything to hurt their child. Ms. Tallant stated that upon

returning to her home after giving that statement, investigators from the

Department of Children’s Services (DCS) arrived at the home and took the

couple’s older child into state custody. After the DCS visit, Ms. Tallant gave

a second statement to police, in which she again stated that neither she nor the

[petitioner] had done anything to hurt the victim. At the conclusion of this

second statement, Ms. Tallant and Detective Slagle, who took the statement,

got into an argument, which led the police to place Ms. Tallant into a police

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interrogation room. According to the statement, parts of which were read into

evidence, the police placed the [petitioner] and Ms. Tallant under arrest for

first degree murder at that point, but Ms. Tallant testified that she did not recall

being informed that she was under arrest. What Ms. Tallant did recall was that

after being placed in the interrogation room, she gave another statement to

another police investigator, Wallace Armstrong, in which she implicated her

husband in the baby’s death. Ms. Tallant testified that this statement was a

coerced statement which she made in an attempt to regain custody of her older

son. While she stated that this statement was coerced, she claimed that the

statement, like the ones she had given earlier, was true. Ms. Tallant testified

that at the time she gave her third statement, “I knew all of this stuff was going

on, but I didn’t think it consisted of death, to me, at the time.” Ms. Tallant said

that after giving this third statement to police, she was taken into custody,

where she remained at the time of this trial.

Ms. Tallant testified that she retained separate counsel, one who was

not an employee of the Public Defender’s office. She recalled that she, the

[petitioner], and counsel for both parties met monthly from August 2002 to

October 2004. During one of these meetings, the parties discussed Ms.

Tallant’s statements to police. At that time, she told her husband and the

involved attorneys that her statements to police were either lies or grossly

exaggerated. At trial, Ms. Tallant testified that she did exaggerate some of her

statements to police. However,

At the time that all this stuff had happened, I didn’t think

that it was--the way I told the cops was different--I put a

different spin on it, as to when I was at home and all this stuff

happened. Like on my statement, it sounded mean and evil, and

[the petitioner] did this . . . [the petitioner] did that. But at

home, I was not thinking that. I was thinking that everything

was fine. Even though a lot of things happened, I still thought

that everything was fine. But when I got to the police station, I

made it sound like I didn’t like none of the things he was doing

at the time.

Ms. Tallant stated that she made her statements in the manner she did

because the police “had told me I wasn’t going home if I didn’t blame it on the

[petitioner]. So I wanted to make it possible that I was going to go home.”

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During cross-examination, Ms. Tallant admitted that several particular

parts of her statement to police were untruthful. She said that her statement to

police that the [petitioner] had hit her frequently was a lie. Ms. Tallant said

that the [petitioner] never hit her during their marriage. She also admitted that

her statement that the [petitioner] would place the baby in a car seat and shake

it violently was a lie. Ms. Tallant admitted that the [petitioner] placed the baby

in a car seat only once, when the [petitioner] was attempting to keep the baby

from moving his injured arm. Ms. Tallant also admitted that she put the baby

in a car seat for brief periods while she was performing household chores. Ms.

Tallant also said that her statement that the baby would scream whenever the

[petitioner] came close to him was a lie. Finally, she admitted that her

statement to police that the [petitioner] kept her from seeing the baby was a lie.

She testified that the [petitioner] was the baby’s primary caretaker, but that

arrangement had been agreed upon by both parents.

Ms. Tallant also identified certain parts of her statements to police that

had been exaggerated. She said that her statement to police that the

[petitioner] would throw the baby into the air was an exaggeration. Rather, the

[petitioner] would hold the baby in the air and then drop his hands about six

inches. During that time, the [petitioner] would never lose contact with the

baby. Also, she admitted that her statement that the [petitioner] would throw

the baby into a beanbag chair was an exaggeration. Rather, the [petitioner]

would drop the baby onto the chair from a few inches above the chair.

On several occasions during cross-examination, Ms. Tallant said that

she never saw the [petitioner] do anything to intentionally hurt the victim.

Regarding the scratches under the baby’s chin, she noted that she saw them

during the three months the baby was alive, though she could not recall the

exact date on which she saw them. She also recalled seeing the [petitioner]

holding the baby’s mouth shut, but she did not recall the exact dates on which

the [petitioner] did this. Ms. Tallant admitted that in her meetings with the

[petitioner] and counsel, she had said that the first time she saw the scratches

was the day the victim died.

Ms. Tallant testified that she had no idea how methamphetamine was

introduced into her son’s system. Regarding her own drug use, she said that

she used methamphetamine every day during her pregnancy, and that her

methamphetamine use increased after the victim was born. She also said that

she smoked marijuana during her pregnancy, and that she smoked cigarettes

until her fifth or sixth month of pregnancy. Ms. Tallant admitted that she used

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methamphetamine when she woke up each morning and took a smaller amount

in the afternoon. She stated that she did not always wash her hands after using.

She also stated that she had previously told the [petitioner] and counsel that

she prepared all of the baby’s formula bottles.

Ms. Tallant admitted that from August 2002 to October 2004, she

frequently wrote letters to her husband. She stated that in those letters, she

told her husband that she believed he was innocent, and she told the

[petitioner] that she had implicated him in the victim’s death so that she could

be set free. Ms. Tallant stated that at the time she wrote the letters, she did not

believe that her husband did anything to intentionally hurt the victim, and that

she still felt the same way at trial.

Ms. Tallant testified that in October 2004, she gave a “statement” to the

District Attorney General. Defense counsel asked Ms. Tallant several

questions about this statement, actually a deposition, to assess the deposition’s

validity. Ms. Tallant said that in her deposition, she told the district attorney

that she did not know that the victim had suffered any broken bones and had

no explanation as to how the victim could have suffered those injuries. She

stated that this statement was consisted with her testimony at trial. She also

told the district attorney that she was unaware that the child had pneumonia,

and that she did not see any evidence of injury to the victim’s rectum. She also

recalled telling the district attorney that she had never seen a bruise on the

child’s body except shortly after the [petitioner] told her that the baby had

fallen from the sofa. She also noted that she told the district attorney that the

only external injuries that she had ever seen on the victim were this bruise and

the burns to the baby’s stomach and hand.

Ms. Tallant testified that the evening her son died, she may have

returned home at 8:15, rather than 8:30 or 9:00 as indicated on direct

examination. She admitted that if she did arrive home at 8:15 and the 911 call

was not made until 10:40, some two hours passed between her returning home

and calling 911. She stated that she “knew” her husband was under the

influence of some drug when she returned home, yet she believed her husband

when he said that the victim was fine. She said that she believed her husband

because when their older son was younger, she was “always” thinking

something was wrong with the boy, and the [petitioner], despite being “high”

believed that the boy was okay, and the [petitioner] turned out to be right.

Ms. Tallant testified that during her meetings with the [petitioner] and

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counsel, she had said that her husband left for Sweetwater to make

methamphetamine on the Thursday before the victim died. She said that the

[petitioner] remained gone until Monday or Tuesday, and that he was gone

most of the day on Wednesday, the day the victim died. At trial, though, Ms.

Tallant said that the [petitioner] did not go to Sweetwater by himself until the

Saturday or Sunday before the victim died, and that he returned on Monday,

two days before the victim died.

Ms. Tallant testified that she changed the victim’s diaper several times

a day, and in the course of changing the diaper, she never saw any trauma to

the child’s rectum. She also testified that she never saw any cuts to the

victim’s groin, though she did notice that the baby had diaper rash. Regarding

the broken bones, Ms. Tallant admitted that during her previous meetings with

the [petitioner] and counsel, she had stated that she believed that the victim’s

ribs, arm, and leg were broken in June 2002, when the baby fell. When asked

if she still believed this to be true, Ms. Tallant replied, “I guess. Yeah. I don’t

know if it’s true or not.”

On redirect, Ms. Tallant said that the police did not tell her to lie to

them in an attempt to implicate the [petitioner]. She also testified that her

deposition in connection with this case was truthful, and that she was being

truthful in her testimony at trial. She also reiterated that her husband did not

have regular employment during the victim’s life. Ms. Tallant said that the

[petitioner] “might have worked one day or a couple of days with a friend of

his . . . [installing] central heat and air, but he didn’t have a job.”

On recross, Ms. Tallant admitted that in addition to massaging the

victim’s swollen leg, she did some “bicycle type” exercises with the leg in an

attempt to ease the pain in the baby’s leg and lessen swelling. The court then

had the witness answer questions from the jury. When asked why she was “not

as protective” of the victim as she had been of her older son, Ms. Tallant

replied that she had frequently thought something was wrong with her older

son when in fact the child was fine.

Dr. Darinka Mileusnic-Polchan, a forensic pathologist, testified that she

performed the autopsy on the victim, who was three and a half months old at

his death. Dr. Mileusnic-Polchan first testified as to the thirty-one external

injuries she noted on the victim. The first three injuries she noted were on the

left side of the baby’s face. She identified abrasions on the victim’s left lower

eyelid, as well as abrasions on the outer corner of the victim’s left eye. She

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also noted a bruise on the victim’s nasolabial groove, which she identified as

the fold of skin between the nostril and the outer corner of the mouth. Dr.

Mileusnic-Polchan testified that each injury, by itself, would not be cause for

concern, but the injuries taken together did concern her.

The first injury that particularly concerned Dr. Mileusnic-Polchan was

a group of ten “irregular abrasions” under the victim’s chin. She noted that the

injuries were in “different stages of healing, meaning some [were] fresh, some

[were] old.” Some of the abrasions were deeper than others, with some of the

injuries reaching down to the subcutaneous tissue. Dr. Mileusnic-Polchan

noted that there was also bruising around the abrasions. Dr.

Mileusnic-Polchan opined that “10 of them in this area, with a lot of bruising,

this is . . . a red flag. This is very, very concerning.” She also stated that an

injury in this area should “never happen. This is something that you don’t

inflict upon a baby with the regular care and not even with regular

roughhousing. This is something that is inflicted . . . . it’s evidence of foul

play in addition to some other evidence of injury.”

Dr. Mileusnic-Polchan then noted the external injuries present on the

back of the victim’s head. She noted bulging in the fontanelle, which is the

membrane connecting the bones of the scalp before the bones ossify and fuse

together. She noted that this injury by itself was insignificant and was not truly

an injury, but rather was indicative of swelling within the brain. She also

noted a 0.4 inch abrasion on the back of the victim’s head, near the top of the

head. Dr. Mileusnic-Polchan noted that the injury by itself was not

concerning, as this type of injury was often sustained during resuscitation

efforts, but the injury was concerning in light of the other injuries.

Dr. Mileusnic-Polchan testified that the victim suffered “multiple

horizontal irregular stretch abrasions” on his neck. She noted that babies often

have some form of skin irritation in this area, as milk or other liquid can

become lodged in skin folds, but these abrasions were not indicative of this

activity. Rather, Dr. Mileusnic-Polchan noted that these abrasions were

indicative of the skin being stretched “suddenly and extensively,” and that

these injuries were often common in motor vehicle accidents. Dr.

Mileusnic-Polchan also noted the presence of a 0.7 inch abrasion on the left

side of the victim’s neck. Like many of the other injuries, she noted that this

injury by itself was insignificant but worrisome in light of the other injuries.

Dr. Mileusnic-Polchan noted that the victim experienced tearing in both

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frenula, the membranes connecting his lips to his gums. She noted that these

injuries constituted “child abuse until proven otherwise.” She noted that this

injury is not caused by regular resuscitation. Rather, the injury is caused by

something being “forcefully pushed in the baby’s mouth, frequently a bottle,

forceful feeding or some sort of other object.” Dr. Mileusnic-Polchan testified

that these injuries were showing signs of healing, meaning that the victim had

suffered them several days before he died.

Dr. Mileusnic-Polchan noted several abrasions and areas of abrasions

and discoloration on the victim’s chest and abdomen. Like many of the

injuries, she noted that each of these injuries by itself was “meaningless,” but

“[t]aken together, they’re very, very worrisome. The babies that age don’t

present with so many injuries in that area. And now taking into account the

head and neck region, that’s extremely, extremely troublesome.”

Dr. Mileusnic-Polchan then testified regarding the injuries on back side

of the victim’s body. She noted that the victim had a 0.3 inch abrasion on the

back of his neck. She opined that the injury had been there about a week. She

then identified a “U-shaped” injury on the victim’s back, consisting of two

parallel abrasions, one 0.6 inches in length and the other 1.1 inches long. She

also identified bruising around the abrasion. Dr. Mileusnic-Polchan testified

that this injury was “really well-defined . . . meaning that some sort of object

that was shaped, U-shaped or maybe square-shaped” came into contact with

the victim’s back. As to the cause of the injury, Dr. Mileusnic-Polchan

testified that “[e]ither the baby was hit with something or was thrown on the

ground that had some U-shaped object on the ground.” Dr. Mileusnic-Polchan

said that she could not identify the exact cause of the injury, but noted that it

was indicative of blunt-force trauma.

Dr. Mileusnic-Polchan noted that the victim had a 0.2 inch abrasion on

his left buttock. She also identified an area of abrasions, bruising, and skin

tears near the child’s anus. Dr. Mileusnic-Polchan noted that some of the skin

tears were deep, reaching to the subcutaneous tissue. She also noted the

presence of a hematoma. Dr. Mileusnic-Polchan examined skin samples from

the anal area under a microscope; when she did so, she noted “extensive”

hemorrhaging but little accompanying inflammatory reaction. Dr.

Mileusnic-Polchan testified that this meant that the injury occurred within a

day of the victim’s death. Dr. Mileusnic-Polchan opined that these injuries

were caused by blunt-force trauma, though she could not identify what object

actually caused the injury.

-13-

Dr. Mileusnic-Polchan testified that the victim had some evidence of

diaper rash. She also noted a series of abrasions in [his] groin. Some of these

abrasions were of the “normal” variety, while some were stretch abrasions

similar to the ones that were evident on the victim’s neck. Dr.

Mileusnic-Polchan noted that this type of abrasion could only be caused by

“the forceful acceleration/deceleration of injury and bending of the skin.” She

noted that it was unusual to discover this kind of injury except in child abuse

cases and motor vehicle accidents.

Dr. Mileusnic-Polchan noted bruising on each of the victim’s elbows.

She noted that these injuries were troubling because “[t]he elbows are very

rare areas for a baby that age to be injured. They’re not mobile. They don’t

move by themselves, and to fall on the elbow or explain elbow region by

accident, that’s really extremely rare, even if possible.”

Dr. Mileusnic-Polchan noted that the child’s left thigh was “very

swollen, very deformed,” and the bruising around the thigh was evident of a

“combination of recent and old injury.” She later noted that her internal exam

of the area surrounding the leg produced “evidence of hemorrhage, fresh and

healing, meaning that the leg was reinjured” and that the “additional injury

could have [occurred] . . . nonintentionally as opposed to the injury that caused

it originally.” She also identified two burns, one on the child’s abdomen, and

the other on the victim’s right hand.

Dr. Mileusnic-Polchan then testified regarding the child’s internal

injuries. She first identified several broken ribs, some which had healed, and

others which had not. Regarding the level of pain accompanying these

injuries, Dr. Mileusnic-Polchan testified that bone fractures are among “the

most painful pediatric emergencies.”

She also identified an area of hemorrhaging and abscess formation on

the left side of the victim’s chest. Dr. Mileusnic-Polchan noted that “some of

those [rib] fractures . . . injured surrounding vessels and muscle [and] induced

or produced abscess, meaning infection, meaning pus collection.” Dr.

Mileusnic-Polchan noted that her microscopic review of these chest injuries

led her to conclude that the injuries occurred within a day of the victim’s

death.

Dr. Mileusnic-Polchan noted that the victim suffered a deep

intramuscular hemorrhage in his left upper back. Dr. Mileusnic-Polchan

-14-

performed a microscopic exam of this hemorrhage, during which she found

evidence of “recent hemorrhage with no surrounding inflammatory reaction,

suggesting a very recent” injury. She testified that some of the back injuries

occurred within a day of the victim’s death. Dr. Mileusnic-Polchan also noted

that the victim suffered hemorrhaging in his diaphragm. After performing a

microscopic review of this injury, Dr. Mileusnic-Polchan concluded that these

injuries had occurred three to five days before the victim died.

She also noted a “rusty brown discoloration” around the spinal cord,

indicating a hemorrhage that had occurred five to seven days before the victim

died. Dr. Mileusnic-Polchan noted that the victim’s brain was significantly

swollen, which led to hemorrhages in the fontanelle outlined above.

Dr. Mileusnic-Polchan testified that when she examined the victim’s

lungs, she discovered that the child had been suffering from “infection of the

lungs . . . pneumonia, and also pleurities or infection inside the chest cavity.”

Regarding the infection to the child’s lungs, she noted:

His right lung was completely obliterated with infectious

process, and there was no left alveolar space or any area of the

lung that he would actually use--could use for breathing, and

the--in the left lung, the infection was a slightly lesser degree,

but still there was presence of . . . developing infection. . . .

[There was] also even focal abscess formation in the lung tissue

itself. So the ultimate mechanism of [the victim’s] death would

be severe pneumonia, inability to breath[e]. However, this

pneumonia was brought on by his extensive injuries, particularly

the rib fractures.

When asked if these injuries were accidental, Dr. Mileusnic-Polchan

noted:

There was no way that some of the injuries would ever be

an accident in a baby three and a half months old, and the

multiplicity, the distribution, and severity of some of the injuries

completely takes it out of [the] realm of any sort of accident and

makes it a homicide and child abuse.

On cross-examination, Dr. Mileusnic-Polchan testified that the injuries

under the victim’s chin were likely caused by a fingernail. She also testified

-15-

that she had no way of knowing the exact manner in which the

methamphetamine found in the victim’s system was ingested, but that it could

have been ingested through a formula bottle administered close to the victim’s

death. Dr. Mileusnic-Polchan also reiterated that some of the external injuries

occurred within a day of the victim’s death, but some occurred between five

and seven days before the victim died.

The [petitioner] presented several witnesses from the Knox County

Health Department who interacted with the victim and his parents to varying

degrees. Two registered nurses, Joyce McGinley, and Sarah Croley, each

testified that they met with the victim once, with McGinley meeting with the

victim and both parents on June 10, 2002, and Croley meeting with the victim

and his mother on July 31, 2002. Each nurse testified that her meeting

consisted of talked to the baby’s parent or parents about the victim’s general

progress. McGinley did not recall whether she physically examined the victim,

but she noted that administering physical exams was generally not in her job

description. She noted that based on her review of the “crib card” that had

been compiled at the time of the child’s birth, the victim’s health and growth

appeared to be normal. Croley testified that the victim did not appear to be in

any distress during her meeting with the victim and his mother, but that she did

not physically examine the child during the meeting.

Two Women, Infants and Children (WIC) program nutrition educators

with the Knox County Health Department, Nina Garton and Autumn

McElhaney, testified that they each met the victim once--Garton met with the

victim and both parents in either May or June 2002, and McElhaney met with

the victim and his mother on July 31, 2002. Both nutrition educators testified

that during these meetings, the nutrition educator had general discussions

regarding the baby’s health with the parent or parents present. Both Garton

and McElhaney testified that their notes from these meetings indicated no

abnormalities or signs of distress regarding the victim, but both women

testified that they had little recollection concerning their visits with the victim.

Karen Goodrick, a nurse practitioner, testified that she was employed

by the Knox County Health Department when Sarah Tallant brought the child

in for three well-child exams between May and July 2002. During the

examinations, Goodrick did not notice any problems with the victim that

would have suggested that he was being physically abused. She said that the

child did not experience any distressed breathing and did not appear to be in

pain during the visits. During the last exam, which took place on July 10,

-16-

Goodrick performed a test on the victim’s legs to check his hip placement.

The test involved pushing the child’s legs up, out, and back, and although

Goodrick said that this exam was “relatively stressful” for most children, the

victim did not encounter any pain during the test. Goodrick testified that Sarah

Tallant explained that the burns the victim suffered occurred when the

[petitioner] (who was not present at any of these three exams) and the victim’s

older brother were playing on the floor and knocked over a lamp, which fell

on the victim. Goodrick said that this answer seemed satisfactory at the time

and did not cause her concern. On cross-examination, Goodrick testified that

she had seen the autopsy photographs, and during her examinations of the

victim, she did not notice any of the external injuries evident in the

photographs. She also admitted that she did not see the victim between his

July 10 visit and his death on August 14.

Kathi Zechman, a licensed practical nurse, testified that she gave the

victim two rounds of immunizations during two visits to the Knox County

Health Department. On May 8, 2002, she administered a hepatitis B shot in

the victim’s thigh, and on July 10, 2002, she gave the child two shots in his left

leg and two shots in the right leg. Zechman testified that she did not notice

any swelling in the baby’s legs during the visit, and other than a burn on the

baby’s hand, which she discussed with Goodrick, she noticed no physical

problems with the child. Zechman testified that her administration of the

immunizations could not have caused the broken leg suffered by the victim,

nor could she have caused the rib fractures the victim suffered. She also noted

that if the baby were crying or “particularly fussy,” she would not have made

a note of it.

Jason Turnblazer testified that between April and August 2002, he

employed the [petitioner] at his irrigation and landscape lighting business.

Turnblazer insisted that although he had no employment or payroll records

regarding his now-defunct business, the [petitioner] attended work every day

and was a good employee. On cross-examination, Turnblazer admitted that he

mainly kept in contact with the foreman on each jobsite, rather than the

individual employees. Turnblazer also admitted that he did not recall the

[petitioner] informing him about the victim’s birth, and that he heard about the

victim’s death through media reports. Turnblazer also testified that the

[petitioner] was no longer working for him when he learned that the victim had

died.

-17-

Glenn “Sonny” Gish, the [petitioner’s] stepfather, testified that he

interacted with the victim only once, during a two-day visit to the Tallant home

in July 2002. Gish testified that during the two days he and his wife visited

with the victim, his parents, and the victim’s older brother, he noticed no

problems with the victim. Gish testified that the victim did not appear to be

in pain during the visit. Gish testified that he saw burns on the victim’s hands

and stomach, and when he asked the [petitioner] and his wife about the burns,

they told him that the [petitioner] and his older son had been playing on the

floor when they knocked over a lamp, which fell on the victim. Gish testified

that this explanation did not distress him. On cross-examination, Gish testified

that the victim’s burns were bandaged and he did not see the victim’s skin

underneath the bandages. Gish also testified that the house was clean and he

did not see anyone in the house using drugs, but admitted that because he did

not use drugs, he would not have known whether the [petitioner] or his wife

were using drugs if in fact they were.

Bettye Tallant, the [petitioner’s] mother and Sonny Gish’s wife,

testified that she visited the [petitioner], his wife, and their children in July

2002. Like her husband, she also testified that there were no noticeable

problems concerning the victim during her visit. She said that the victim did

not cry any more than a normal child his age. Ms. Tallant did testify that one

of the victim’s arms appeared slightly swollen during the visit, and after she

saw the [petitioner] pull the child up by that arm, she told the [petitioner] not

to pull the child up by his arm, because the [petitioner] may pull the arm out

of its socket. Ms. Tallant testified that she did not seem too concerned by the

child’s swollen arm or the [petitioner’s] pulling the child’s arm. On

cross-examination, Ms. Tallant admitted that she was not aware that the

[petitioner] and his wife were regular methamphetamine users.

Id. at *3-15.

On September 3, 2008, the petitioner filed a pro se petition for post-conviction relief

in which he raised a number of claims, including ineffective assistance of trial and appellate

counsel. Among other things, he alleged that counsel was ineffective on appeal for failing

to include jury questionnaires in the record on direct appeal, which limited this court’s review

of whether the trial court erred in seating three jurors at his trial. Following the appointment

of post-conviction counsel, he filed an amended petition on June 13, 2013, in which he

alleged that counsel was ineffective at trial and on appeal for not allowing him to testify in

his own behalf, failing to present alternative theories relating to the victim’s injuries, failing

to retain expert assistance in determining the date and causation of the victim’s injuries, and

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for not raising as an issue on appeal the trial court’s denial of their motion for a bill of

particulars. On appeal, however, the petitioner confines himself to arguing that counsel was

ineffective for not properly advising him on the importance of testifying, for not “pressing

the matter” of the bill of particulars in the trial court or raising the issue on direct appeal, and

for not including the jury questionnaires in the record on direct appeal. We will, thus,

confine our summary of the evidentiary hearing to testimony that is relevant to those issues.

At the evidentiary hearing, the petitioner testified that he told all four of the attorneys

who were, at one time, on his defense team that he wanted to testify. He said that one of the

junior counsel told him that he would start preparing his testimony about three weeks before

the start of the trial, but he never did because he ran for judicial office a few months before

the petitioner’s trial. In the meantime, senior counsel kept trying “to manipulate [the

petitioner]” into saying that he did not want to testify. According to the petitioner, senior

counsel, reminding him of his history of manufacturing methamphetamine, told him that he

would be “hangin[g] [himself]” if he testified. He acknowledged that the trial court reviewed

his rights with him at the trial. He insisted, however, that the only reason he told the trial

court that he did not want to testify was because he had been manipulated by senior counsel.

The petitioner testified that the trial court denied counsel’s request for a bill of

particulars. Although he had not understood its importance at that time, he had since

researched the issue and believed that it would have greatly helped his case for the State to

have been required “to categorize all the injuries to dates and times.” He explained that he

believed that, with a bill of particulars, defense counsel could have separated the victim’s

various injuries into those that occurred on the date of his death and those that occurred when

the petitioner was not present in the home. He said that counsel did not include the trial

court’s denial of the bill of particulars as an issue on direct appeal.

The petitioner testified that senior counsel raised an issue on direct appeal about the

seating of three jurors, but did not include the jury questionnaires in the record, which

resulted in the Court of Criminal Appeals stating in its direct appeal opinion that it was

unable to fully review the issue.

On cross-examination, the petitioner acknowledged that his defense team had weekly

meetings with him at the jail. He further acknowledged that his counsel argued on more than

one occasion for the bill of particulars but that the trial court ultimately ruled in favor of the

State. On redirect, he said that, had he testified at trial, he would have been able to explain

that he was away from home from the Friday through the Monday night prior to the victim’s

death.

-19-

Senior trial counsel, the District Public Defender for Sixth Judicial District, testified

that he had been licensed to practice law for thirty-three years and had been the public

defender for the past twenty-three years. His office began representing the petitioner in

2002, with the case culminating in the petitioner’s trial in April 2006. At the beginning there

was some talk about the State filing a death notice, so the Administrative Office of the Courts

allowed him to associate an outside counsel. In addition, two of the attorneys in his office

also worked on the case. Although each of those other three lawyers left over time, there

were four lawyers working on the petitioner’s defense team “for the most part.” Other

people on the defense team included an investigator, a mitigation specialist, and “an

administrative person.” Senior trial counsel testified that he and his team met weekly with

the petitioner at the jail, holding over 70 joint defense meetings with Ms. Tallant and her

defense team and approximately 120 separate meetings with the petitioner alone. He

explored several defense options, including the possibility that the victim suffered from

osteogenesis imperfecta, or “brittle bone” disease. To that end, he consulted with an expert

in the field and obtained permission from the court to have the victim’s blood sent to Tulane

for genetic testing, the results of which were that the victim did not suffer from that disease.

Counsel testified that he also obtained permission and funding to hire an expert in pediatric

forensic pathology, who reviewed the findings of the State’s medical experts and agreed with

their conclusions that the victim’s injuries were indicative of child abuse.

Senior trial counsel testified that he had “multiple conversations” with the petitioner

about whether he would testify. He said the petitioner believed that counsel could simply

“stand up and tell the jury” his version of events without the petitioner’s taking the stand and

expressed great frustration when he explained that was not the way it worked. Counsel stated

that as their representation was ongoing, the petitioner “was giving [them] indications that

he was not going to testify.” He stated there were things that Ms. Tallant said that the

petitioner wanted to tell the jury were not accurate, but the petitioner also described the

thought of testifying as “a scary thing.” Counsel stated that he told the petitioner that the

district attorney would likely cross-examine him about each of the victim’s injuries, which

would mean that the petitioner would have “to take one of three positions generally: (a) I did

it and it was an accident; (b) I didn’t do it; I don’t know who did; and I never noticed the

injuries to my child; or (3 [sic]) I didn’t do it; I noticed it; but I didn’t do anything about it.”

According to his notes, he talked to the petitioner again about testifying on March 23, 2006,

asking if he wanted to reconsider his decision. The petitioner, however, confirmed that he

did not want to testify. Counsel said he made it clear that the decision was the petitioner’s

alone. The petitioner was adamant about his decision, telling counsel at one point, according

to counsel’s notes, “Make no doubt about it; I ain’t testifyin’.”

Senior trial counsel testified that the defense theory they developed involved

attempting to convince the jury that the State could not show that the petitioner was either

-20-

responsible for the victim’s first two “clusters” of injuries, or negligent for not noticing them,

given that a trained nurse who saw the victim after the date of those injuries also failed to

notice them. As for the third cluster of injuries, they attempted to show that the petitioner

was not present for most of the time frame in which those injuries occurred. The jury,

however, rejected their theory.

On cross-examination, senior trial counsel testified that he could not recall the

petitioner’s level of education or IQ but that he was “smarter than most clients,” always

asked questions, did a lot of independent research, and “was engaged.” He said he never

thought the petitioner’s testimony would be helpful to his case. He did not recall having

discussions with the petitioner in which he recommended that he either testify or not testify

because the petitioner “was driving that train” and “knew what he wanted to do.” Instead,

he challenged him by inquiring whether he was sure not testifying was what he wanted to do.

He also had “lots of discussions” with the petitioner about what he would say if he decided

to testify and how his testimony would open the door for the State to inquire into “a lot of

other stuff.”

Senior trial counsel testified that they filed and argued for the bill of particulars but

were denied by the trial court. He said he did not recall whether they raised the denial of the

bill of particulars as an issue on direct appeal and said that, if they did not, he could not say

why. However, he thought they were successful in categorizing the victim’s injuries into

three separate “clusters” that occurred over three different time frames.

Senior trial counsel testified that the trial judge “was extremely possessive” of the jury

questionnaires, which he kept in his office and required counsel to turn back in after the jury

was selected. He conceded, however, that it was “an error on [his] part” not to make the

questionnaires part of the record on appeal.

On July 24, 2013, the post-conviction court entered an order denying the petition for

post-conviction relief. Among other things, the court found that the petitioner did not

demonstrate either deficiency or prejudice with respect to his allegation that counsel was

ineffective at trial for failing to allow him to testify in his own behalf and did not

demonstrate prejudice with respect to his allegations that counsel was ineffective on appeal

for failing to raise the denial of the bill of particulars as an issue and for not including the

jury questionnaires in the record. Thereafter, the petitioner filed a timely appeal to this court.

ANALYSIS

The post-conviction petitioner bears the burden of proving his allegations by clear and

convincing evidence. See Tenn. Code Ann. § 40-30-110(f). When an evidentiary hearing is

-21-

held in the post-conviction setting, the findings of fact made by the court are conclusive on

appeal unless the evidence preponderates against them. See Tidwell v. State, 922 S.W.2d

497, 500 (Tenn. 1996). Where appellate review involves purely factual issues, the appellate

court should not reweigh or reevaluate the evidence. See Henley v. State, 960 S.W.2d 572,

578 (Tenn. 1997). However, review of a trial court’s application of the law to the facts of

the case is de novo, with no presumption of correctness. See Ruff v. State, 978 S.W.2d 95,

96 (Tenn. 1998). The issue of ineffective assistance of counsel, which presents mixed

questions of fact and law, is reviewed de novo, with a presumption of correctness given only

to the post-conviction court’s findings of fact. See Fields v. State, 40 S.W.3d 450, 458

(Tenn. 2001); Burns v. State, 6 S.W.3d 453, 461 (Tenn. 1999).

To establish a claim of ineffective assistance of counsel, the petitioner has the burden

to show both that trial counsel’s performance was deficient and that counsel’s deficient

performance prejudiced the outcome of the proceeding. Strickland v. Washington, 466 U.S.

668, 687(1984); see State v. Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App.1997) (noting

that same standard for determining ineffective assistance of counsel that is applied in federal

cases also applies in Tennessee). The Strickland standard is a two-prong test:

First, the defendant must show that counsel’s performance was deficient. This

requires showing that counsel made errors so serious that counsel was not

functioning as the “counsel” guaranteed the defendant by the Sixth

Amendment. Second, the defendant must show that the deficient performance

prejudiced the defense. This requires showing that counsel’s errors were so

serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

466 U.S. at 687.

The deficient performance prong of the test is satisfied by showing that “counsel’s acts

or omissions were so serious as to fall below an objective standard of reasonableness under

prevailing professional norms.” Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996) (citing

Strickland, 466 U.S. at 688; Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)). Moreover,

the reviewing court must indulge a strong presumption that the conduct of counsel falls within

the range of reasonable professional assistance, see Strickland, 466 U.S. at 690, and may not

second-guess the tactical and strategic choices made by trial counsel unless those choices were

uninformed because of inadequate preparation. See Hellard v. State, 629 S.W.2d 4, 9 (Tenn.

1982). The prejudice prong of the test is satisfied by showing a reasonable probability, i.e.,

a “probability sufficient to undermine confidence in the outcome,” that “but for counsel’s

unprofessional errors, the result of the proceeding would have been different.” Strickland,

466 U.S. at 694. The same principles apply in determining the effectiveness of trial and

appellate counsel. Campbell v. State, 904 S.W.2d 594, 596 (Tenn. 1995).

-22-

Courts need not approach the Strickland test in a specific order or even “address both

components of the inquiry if the defendant makes an insufficient showing on one.” 466 U.S.

at 697; see also Goad, 938 S.W.2d at 370 (stating that “failure to prove either deficiency or

prejudice provides a sufficient basis to deny relief on the ineffective assistance claim”).

The petitioner argues on appeal that counsel was ineffective at trial for failing to advise

him of the importance of testifying in his own defense and for not “pressing the matter” of the

bill of particulars with the trial court. He also argues that counsel was ineffective on appeal

for not raising the denial of the bill of particulars and for not including the jury questionnaires

in the record.

In denying the petition, the court, among other things, accredited the testimony of trial

counsel about the numerous discussions he had with the petitioner with respect to testifying.

The court found that the petitioner had not met his burden of demonstrating either a deficiency

in counsel’s performance or a prejudice to his case based on his allegation that counsel was

ineffective with respect to the petitioner’s decision about testifying. The court further found

that the petitioner failed to show any prejudice with respect to his allegations that counsel did

not sufficiently press the issue of the bill of particulars, raise the denial of the bill of

particulars as an issue on appeal, or include the jury questionnaires in the record on appeal.

The record fully supports the findings and conclusions of the post-conviction court.

We note, first, counsel’s testimony at the evidentiary hearing was that he never thought that

the petitioner’s testimony would be helpful to his defense. As such, counsel cannot be found

deficient in his representation for not advising the petitioner to testify. Trial counsel testified

that he had numerous conversations with the petitioner about his decision with respect to

testifying, discussing with him, among other things, what he thought he would offer to the

case in his testimony and the cross-examination he would face if he took the stand. He said

that the petitioner was intelligent, engaged, and actively involved in the process and made it

clear that his decision was not to testify. The petitioner has not, therefore, shown that counsel

provided ineffective assistance with respect to his decision about testifying.

The petitioner has also not shown that counsel provided ineffective assistance by not

pressing the matter of the bill of particulars with the trial court or raising it as an issue on

direct appeal. At the evidentiary hearing, the petitioner acknowledged that counsel argued for

the bill of particulars, but was denied by the trial court. Trial counsel also testified that he

filed for and argued strenuously for the bill of particulars, but the trial court denied his

motion. We, therefore, fail to see how counsel failed “to press the matter” in the trial court.

As for counsel’s failure to raise the trial court’s denial of his motion as an issue on direct

appeal, we note that “[t]he determination of which issues to raise on appeal is generally within

-23-

appellate counsel’s sound discretion.” Carpenter v. State, 126 S.W.3d 879, 887 (Tenn. 2004).

Trial counsel testified that he could not say why he had not raised the issue on appeal, but he

believed he was successful at trial in separating the victim’s injuries into three different

“clusters” and showing how the petitioner was absent from the home during much of the time

in which the third cluster of injuries occurred. “[I]neffectiveness is very rarely found in cases

where a defendant asserts that appellate counsel failed to raise an issue on direct appeal,

primarily because the decision of what issues to raise is one of the most important strategic

decisions to be made by appellate counsel.” Kennath Henderson v. State, No.

W2003-01545-CCA-R3-PD, 2005 WL 1541855, at *44 (Tenn. Crim. App. June 28, 2005),

perm. app. denied (Tenn. Dec. 5, 2005). The petitioner has not, therefore, shown that he was

denied the effective assistance of counsel based on counsel’s actions or inactions with respect

to the bill of particulars.

As for counsel’s failure to include the jury questionnaires in the record, counsel

acknowledged he was at fault for not doing so and the post-conviction court found him

deficient in this regard. The court further found, however, that the petitioner was unable to

show that the outcome of his case was prejudiced as a result. We agree. Although we noted

in our direct appeal opinion that our ability to review whether the trial court abused its

discretion in seating three jurors that the petitioner challenged for cause – a man who was a

former Child Protective Services investigator, a woman who disclosed on her questionnaire

that she had been sexually abused as a child, and a woman who on her questionnaire

expressed her unhappiness at the thought of her tax dollars paying for a public defender or

court-appointed lawyer – was “limited” due to the fact that he did not include the jury

questionnaires in the appellate record, we went on to review the issue at some length before

concluding that the trial court acted within its discretion in allowing the jurors to remain on

the jury. Blake Delaney Tallant, 2008 WL 115818, at *18. The petitioner has not, therefore,

shown that he was denied the effective assistance of counsel based on counsel’s failure to

include the jury questionnaires in the record on direct appeal.

CONCLUSION

Based on our review, we conclude that the petitioner has not met his burden of

showing that he was denied the effective assistance of counsel at trial or on appeal.

Accordingly, we affirm the denial of the petition for post-conviction relief.

_________________________________

ALAN E. GLENN, JUDGE

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