Clarence Nesbit v. State of Tennessee

IN THE SUPREME COURT OF TENNESSEE

AT JACKSON

April 10, 2014 Session Heard at McKenzie1

CLARENCE NESBIT v. STATE OF TENNESSEE

Appeal by Permission from the Court of Criminal Appeals

Criminal Court for Shelby County

No. P21818 Chris Craft, Judge

No. W2009-02101-SC-R11-PD - Filed November 14, 2014

The issue presented is whether the defendant is entitled to a new trial based on

ineffective assistance of counsel. A Shelby County jury convicted the defendant of first

degree premeditated murder and sentenced him to death. Following unsuccessful appeals,

the defendant filed for post-conviction relief on the grounds of ineffective assistance of

counsel. The post-conviction court granted the defendant a new sentencing hearing, but

denied him a new trial on the murder conviction. A majority of the Court of Criminal

Appeals affirmed, holding that any deficiency in trial counsel’s performance at the guilt

phase did not result in prejudice. We hold that the defendant has not proven by clear and

convincing evidence a reasonable probability that, but for the deficient performance of his

trial counsel, the result would have been different. We affirm the judgment of the Court of

Criminal Appeals and remand the case to the trial court for a new sentencing hearing.

Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Criminal

Appeals Affirmed; Case Remanded to the Trial Court

S HARON G. L EE, C.J., delivered the opinion of the Court, in which J ANICE M. H OLDER,

C ORNELIA A. C LARK, G ARY R. W ADE, and W ILLIAM C. K OCH, J R., JJ., joined.

Marty B. McAfee and Gerald Skahan, Memphis, Tennessee, for the appellant, Clarence

Nesbit.

1

Oral argument was heard on April 10, 2014, at Bethel University in McKenzie, Tennessee, as a part

of the Court’s S.C.A.L.E.S. (Supreme Court Advancing Legal Education for Students) project.

Robert E. Cooper, Jr., Attorney General and Reporter; Gordon W. Smith, Associate Solicitor

General; James E. Gaylord, Assistant Attorney General; Amy P. Weirich, District Attorney

General; and John Campbell, Assistant District Attorney General, for the appellee, State of

Tennessee.

OPINION

I.

On the afternoon of May 20, 1993, nineteen-year-old Clarence Nesbit (“the

Defendant”) shot and killed twenty-year-old Miriam Cannon (“the victim”) in her apartment

in Memphis. The Defendant and the victim, who had known each other for about a month,

had a romantic relationship. The Defendant was arrested and charged with first degree

murder. In 1995, a Shelby County jury convicted him of first degree murder and sentenced

him to death. His conviction and sentence were affirmed on appeal. State v. Nesbit, 978

S.W.2d 872, 877 (Tenn. 1998); State v. Nesbit, No. 02C01-9510-CR-00293, 1997 WL

194864, at *21 (Tenn. Crim. App. Apr. 22, 1997).

In 1999, the Defendant timely filed a petition for post-conviction relief. He

subsequently amended and supplemented the petition. The Defendant asserted that his trial

counsel had provided ineffective assistance by failing to adequately investigate, prepare, and

present certain evidence at trial and by failing to timely convey to him a plea offer. Between

May 19, 2003, and December 19, 2006, the post-conviction court conducted evidentiary

hearings. By order entered September 9, 2009, the post-conviction court ruled that the

Defendant was not entitled to post-conviction relief as to the murder conviction, but was

entitled to a new sentencing hearing based on ineffective assistance of counsel. Both parties

appealed; the State dismissed its appeal.

A majority of the Court of Criminal Appeals affirmed the post-conviction court’s

decision. Nesbit v. State, No. W2009-02101-CCA-R3-PD, 2013 WL 1282326, at *63 (Tenn.

Crim. App. Mar. 28, 2013). Judge Joseph M. Tipton dissented, expressing the view that trial

counsel’s deficient investigation and trial preparation were prejudicial and warranted a new

trial. Id. at *64-68 (Tipton, P.J., dissenting). We granted the Defendant’s application for

permission to appeal.

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II.

A.

The Post-Conviction Procedure Act, Tenn. Code Ann. §§ 40-30-101 to -122 (2012),

provides that relief “shall be granted when the conviction or sentence is void or voidable

because of the abridgment of any right guaranteed by the Constitution of Tennessee or the

Constitution of the United States,” id. § 40-30-103. A claim of ineffective assistance of

counsel is a mixed question of law and fact. Calvert v. State, 342 S.W.3d 477, 485 (Tenn.

2011) (citing Grindstaff v. State, 297 S.W.3d 208, 216 (Tenn. 2009); State v. Honeycutt, 54

S.W.3d 762, 766 (Tenn. 2001)). A defendant seeking post-conviction relief has the burden

of proving his or her factual allegations by clear and convincing evidence. Tenn. Code Ann.

§ 40-30-110(f); see also Calvert, 342 S.W.3d at 485 (citing Grindstaff, 297 S.W.3d at

216). The factual findings of a post-conviction court are conclusive on appeal unless the

record preponderates against them. Tenn. R. App. P. 13(d); Mobley v. State, 397 S.W.3d 70,

80 (Tenn. 2013) (citing Dellinger v. State, 279 S.W.3d 282, 294 (Tenn. 2009); Vaughn v.

State, 202 S.W.3d 106, 115 (Tenn. 2006)). However, appellate review of a post-conviction

court’s conclusions of law is de novo with no presumption of correctness. Mobley, 397

S.W.3d at 80; Smith v. State, 357 S.W.3d 322, 336 (Tenn. 2011) (citing Calvert, 342 S.W.3d

at 485)).

Both the United States Constitution and Tennessee Constitution provide for the

assistance of counsel to criminal defendants. U.S. Const. amend. VI; Tenn. Const. art. I,

§ 9. These constitutional provisions guarantee not simply the assistance of counsel, but

rather the reasonably effective assistance of counsel. Strickland v. Washington, 466 U.S.

668, 687 (1984); Baxter v. Rose, 523 S.W.2d 930, 934-36 (Tenn. 1975). Counsel’s

representation is constitutionally ineffective when it “so undermine[s] the proper functioning

of the adversarial process that the trial cannot be relied on as having produced a just

result.” Strickland, 466 U.S. at 686.

In order to prevail on a claim of ineffective assistance of counsel, a defendant must

establish both (1) that counsel’s performance was deficient and (2) that such deficient

performance prejudiced the defense. Id. at 687; Goad v. State, 938 S.W.2d 363, 369 (Tenn.

1996). Thus, to prevail on a claim of ineffective assistance of counsel, a defendant must

prove both deficient performance and prejudice, and a court need not address both concepts

if the defendant fails to demonstrate either prong sufficiently. Strickland, 466 U.S. at 687;

Goad, 938 S.W.2d at 370.

Establishing deficient performance requires “showing that counsel made errors so

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

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Sixth Amendment.” Strickland, 466 U.S. at 687; Mobley, 397 S.W.3d at 80. “Effective”

counsel means the provision of advice or services is “within the range of competence

demanded of attorneys in criminal cases.” Baxter, 523 S.W.2d at 936 (quoting McMann v.

Richardson, 397 U.S. 759 (1970); see also Strickland, 466 U.S. at 687 (“[T]he proper

standard for attorney performance is that of reasonably effective assistance.”). The

reasonableness standard is an objective one, measured by the professional norms prevailing

at the time of the representation. Strickland, 466 U.S. at 678-88; Dean v. State, 59 S.W.3d

663, 667 (Tenn. 2001).

Proof of prejudice sufficient to establish constitutionally ineffective counsel is met by

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

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

sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694; Goad, 938

S.W.2d at 370. When examining a conviction that occurred as a result of a trial, “the

question is whether there is a reasonable probability that, absent the errors, the factfinder

would have had a reasonable doubt respecting guilt.” Strickland, 466 U.S. at 695. A

reasonable probability of being found guilty of a lesser charge also satisfies the prejudice

prong of Strickland. Pylant v. State, 263 S.W.3d 854, 869 (Tenn. 2008).

The Strickland standard for determining whether a defendant received effective

assistance of counsel applies during plea negotiations as well as during trial. Missouri v.

Frye, 132 S. Ct. 1399, 1407-09 (2012); see also Hill v. Lockhart, 474 U.S. 52, 58-59

(1985). Accordingly, during the plea bargain process, as at all critical stages of the criminal

process, counsel has the responsibility to render effective assistance as required by the Sixth

Amendment. Frye, 132 S. Ct. at 1407-08; Harris v. State, 875 S.W.2d 662, 663, 665 (Tenn.

1994). “[A]s a general rule, defense counsel has the duty to communicate formal offers from

the prosecution to accept a plea on terms and conditions that may be favorable to the

accused.” Frye, 132 S. Ct. at 1408. A fair trial does not correct trial counsel’s deficient

performance in failing to convey a plea offer because of “the reality that criminal justice

today is for the most part a system of pleas, not a system of trials.” Lafler v. Cooper, 132 S.

Ct. 1376, 1381 (2012); accord Bush v. State, 428 S.W.3d , 20 (Tenn. 2014) (citing Frye, 132

S. Ct. at 1407; Wlodarz v. State, 361 S.W.3d 490, 503-04 (Tenn. 2012)).

In reviewing trial counsel’s performance, appellate courts must not use “20-20

hindsight.” Mobley, 397 S.W.3d at 80 (citing Felts v. State, 354 S.W.3d 266, 277 (Tenn.

2011)). Instead, “[a] fair assessment of attorney performance requires that every effort be

made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of

counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the

time.” Strickland, 466 U.S. at 689; accord Goad, 938 S.W.2d at 369. “[C]ounsel is strongly

presumed to have rendered adequate assistance and made all significant decisions in the

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exercise of reasonable professional judgment.” Strickland, 466 U.S. at 690; see also State

v. Burns, 6 S.W.3d 453, 462 (Tenn. 1999) (“[A] reviewing court must be highly deferential

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

of reasonable professional assistance.”). “[T]he burden to ‘show that counsel’s performance

was deficient’ rests squarely on the defendant.” Burt v. Titlow, 134 S. Ct. 10, 17 (2013)

(quoting Strickland, 466 U.S. at 687).

With these principles in mind, we have carefully reviewed the evidence from the

Defendant’s post-conviction hearing. We find that the Defendant failed to prove by clear and

convincing evidence a reasonable probability that, but for his trial counsel’s deficiencies, the

outcome of the trial would have been different. Thus, the Defendant is not entitled to relief.

B.

According to the proof at the Defendant’s murder trial, the Defendant had known the

victim for about a month before her death.2 She lived with her five young children at the

Pershing Park Apartments in Memphis. Around 1:00 p.m. on May 20, 1993, the victim’s

sister, Constance Cannon, and a friend went to the victim’s apartment to take the victim to

the grocery store. Ms. Cannon knocked on the door, but no one answered. As they were

leaving, Ms. Cannon’s friend noticed one of the victim’s children looking out of the

window. Ms. Cannon returned to the apartment, and the victim opened the door to speak

with her but did not invite Ms. Cannon to come in, which was unusual. The victim asked

Ms. Cannon to come back at 3:00 p.m. Ms. Cannon saw that the victim was barefoot, had

a horizontal mark on her neck that Ms. Cannon had not seen the day before, and was fully

clothed. Ms. Cannon also noticed the Defendant, whom she had seen once before and knew

by the nickname “Red,” sitting on the living room couch with one of the victim’s

children. Ms. Cannon left and later telephoned the victim around 3:00 p.m. to confirm their

plans. When Ms. Cannon received no answer, she assumed the victim had made other

arrangements, and she did not return to the victim’s apartment.

James Shaw, a boyfriend of the Defendant’s aunt, Cynthia Nesbit, lived in the victim’s

apartment complex. On the afternoon of the shooting, as Mr. Shaw was sitting outside his

apartment, he heard a gunshot in a nearby apartment. Shortly afterward, he saw the

Defendant leave the area from which the gunshot had sounded, casually walk to his car, and

drive away. Mr. Shaw described the Defendant’s behavior as normal, except for the “funny

look” he observed in the Defendant’s eyes. Shortly after the Defendant left, Mr. Shaw saw

the victim’s children crying in the parking lot. When he asked about their mother, one of the

children said she was dead.

2

These facts are taken from this Court’s opinion in State v. Nesbit, 978 S.W.2d 872 (Tenn. 1998).

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Tracey Davis, the victim’s close friend and neighbor, testified that on the day of the

murder, she heard the victim’s children crying in their apartment and later saw three of them

walking toward her apartment. The children told her that their mother was asleep and they

could not wake her. Ms. Davis went to the victim’s apartment, found her dead body in the

kitchen, and called the police.

When the police arrived, the victim’s children explained that “Red” had shot their

mother. The police found the victim lying face up, fully clothed, with sandals on her

feet. Next to her body, the police found a cigarette butt, a match, a book of matches, and a

hair barrette. They also found four bullet cartridges on top of the refrigerator and a lead

bullet fragment on the kitchen floor at the door to the living room. A ricochet mark made

by a bullet was found approximately four feet eight inches above the floor on the wall behind

the stove. A hot curling iron lay on the kitchen counter.

After the shooting, the Defendant drove to the Royal Oaks Motel where his uncle,

Ashley Nesbit, was staying. In the bathroom of his uncle’s motel room, the Defendant hid

the .357 Magnum revolver used in the shooting. Later that day, he returned to the Pershing

Park Apartments and talked to Mr. Shaw. The Defendant first told Mr. Shaw that the victim

had shot herself while playing Russian roulette, but later told Mr. Shaw that he had

accidentally shot the victim. The Defendant also told Mr. Shaw that he had hidden the gun

in his uncle’s motel room. As Mr. Shaw and the Defendant were preparing to go retrieve the

gun, the police stopped their vehicle and apprehended the Defendant. With police

permission, Mr. Shaw went to the motel, retrieved the gun, and surrendered it to the

police. When questioned by the police, the Defendant explained that he had spent the night

before the murder at the victim’s apartment. He first said that the victim had been “playing”

with the gun when it discharged and killed her, but later said he accidentally shot her. He

claimed that he pulled the trigger believing the gun to be unloaded. When asked at trial how

he came to have the gun, he testified that he had been visiting his uncle at his motel room

when police officers arrived the night before the shooting . The Defendant testified that he

removed the gun from his uncle’s room and placed it under the seat of his car.

The Defendant testified that he arrived at the victim’s apartment at approximately 3:00

a.m., carried the gun inside, removed the bullets, and placed the gun and the bullets on top

of the refrigerator. He said that he slept on the victim’s living room couch and awoke around

10:00 a.m. The Defendant further stated that he and the victim talked until her sister arrived

at 1:00 p.m., and he heard the victim tell her sister to come back at 3:00 p.m. He was

preparing to leave in anticipation of the victim’s sister’s arrival when the shooting

occurred. He testified that he retrieved the gun from the top of the refrigerator and was

holding the gun while looking out the kitchen window. As he turned away from the window,

he held the gun in both hands and pointed it sideways to his left. He stated that, as he

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“fumbled” with the gun, it accidentally discharged and a bullet struck the victim. He left the

apartment without calling for emergency assistance and knowing that he was leaving the

victim’s young children in an apartment with their mother’s dead body. He denied inflicting

burns or other injuries to the victim.

Dr. O.C. Smith, the assistant medical examiner for Shelby County who performed an

autopsy of the victim, testified that the victim died from a single gunshot wound to her

head. The gun that inflicted the fatal wound had been held approximately twelve to thirty-six

inches from the victim’s head when it was fired. The bullet entered the victim’s body

through her left ear— about five feet above the floor—traveled in a downward trajectory

through the victim’s skull and brain, and exited behind her right ear at a height of four feet

eleven inches above the floor. The gunshot wound would have instantly incapacitated the

victim. Dr. Smith found no defensive wounds on the victim’s body and no signs of sexual

assault or activity.

Dr. Smith observed burns on the victim’s chin, neck, abdomen, and forearm. The

burns had been inflicted at various times, from six hours to mere minutes before the victim

had died. The burns ranged from severe first-degree to second-degree burns, comparable to

severe sunburns or scald burns caused by touching something hot. One of the burns, on the

left side of the victim’s neck, was in the shape of the numeral one (“1”). Another triangular

burn under the victim’s chin appeared to have been caused by an open flame. Other marks,

which appeared thermal in origin, could not be precisely identified. According to Dr. Smith,

the victim would have suffered moderate pain from the individual burns. The victim also had

bruising and scraping on the soles of her feet. Dr. Smith testified that the bruising and

scraping were caused by someone striking the victim’s feet with a long, hard, thin object,

such as a rod or a coat hanger, and were consistent with a relatively rare type of torture called

“falanga.” While none of these injuries was severe enough to require hospitalization,

according to Dr. Smith, the amount of force necessary to cause such bruising would inflict

great pain. In his opinion, the victim would have suffered a great deal of distress because the

injuries had been inflicted over an extended period of time. There were no marks found on

the victim’s body indicating that she had been restrained, but Dr. Smith noted that soft

ligatures would not have left marks and the victim could have been restrained by mental

intimidation.

At the post-conviction hearing, the Defendant called forty witnesses to testify,

including a series of lawyers who represented him during the trial proceedings. Lee Coffee

and Carolyn Watkins of the Shelby County Public Defender’s Office first represented the

Defendant. Mr. Coffee met with the Defendant and filed pre-trial motions on his behalf. He

observed no mental issues with the Defendant. Mr. Coffee’s representation ended within

weeks of his appointment to the case, when he accepted a position with the Shelby County

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District Attorney’s Office. Ms. Watkins had little recollection of the case, as she had left the

Public Defender’s Office three months before the Defendant’s trial. Ronald Johnson of the

Shelby County Public Defender’s Capital Defense Team took Mr. Coffee’s place as lead

counsel. Betty Thomas-Moore replaced Ms. Watkins. Ms. Thomas-Moore recalled spending

some time on the case but did not recall many of the specifics.

Mr. Johnson testified that, as a member of the Shelby County Public Defender’s

Office, he had tried seven or eight capital cases and at least fifteen murder cases prior to

1993. To prepare for the Defendant’s trial, he instructed an investigator in the office to

contact and interview witnesses. Mr. Johnson visited the murder scene and looked for

witnesses to interview, including Ms. Davis. He interviewed Dr. Smith before the trial. Mr.

Johnson did not interview Ms. Cannon before the trial, listen to her testimony from the

preliminary hearing, or interview the friend who accompanied her to the victim’s apartment

hours before the murder. He did not interview all of the police officers who testified at trial

but did review some of their reports. Mr. Johnson said he had ample time during the trial to

talk to witnesses, and he did not find it necessary to hire any expert witnesses. It was his

opinion that no expert witness was needed to counter Dr. Smith’s testimony. He testified

that, in his opinion, he was prepared for trial and had interviewed all the necessary witnesses.

As to the Defendant’s mental issues, Mr. Johnson identified a medical report that his

office received before the trial, which indicated that the Defendant had suffered a seizure

episode approximately one month prior to the shooting. Ms. Watkins testified that she did

not recall knowing about the Defendant’s seizure. Both Mr. Johnson and Ms. Watkins

agreed that, in hindsight, this fact should have triggered a request for funding for a

psychological evaluation. Mr. Johnson testified that he did not seek funding for a mental

evaluation of the Defendant because he saw no indication that the Defendant suffered from

a mental disease or defect.

Mr. Johnson also testified about an issue involving allegations of the Defendant’s

satanic worship, which arose during the trial when Mr. Johnson cross-examined Mr. Shaw

about the Defendant’s reputation in the community. Mr. Shaw responded that the Defendant

was respectful of his elders and did not bother anyone. The prosecutor, then on redirect

examination, asked Mr. Shaw whether he had heard that the Defendant was involved in

satanic worship, and Mr. Shaw answered that he had indirectly heard that information. After

this exchange, the trial court instructed the jurors that they could consider the allegations of

satanic worship only for the purpose of assessing Mr. Shaw’s credibility as a character

witness, but not as substantive evidence of satanic worship on the part of the Defendant. Mr.

Johnson testified that he had received impeachment information concerning the Defendant’s

prior criminal history and allegations of satanic worship before trial, but did not file any

motions in limine to suppress or limit the introduction of such information. He believed the

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evidence was not relevant or admissible, and he did not investigate whether the Defendant

was involved in satanic worship other than by asking the Defendant. Mr. Johnson conceded

that he opened the door to questions of Mr. Shaw’s knowledge regarding the rumors of

satanic worship by asking Mr. Shaw about the Defendant’s good character. No other witness

testified about satanic activity, nor was any substantive proof introduced about it.

As to the plea offer made by the State, Mr. Johnson testified that the State conveyed

to him a twenty-five-year plea offer on November 23, 1993. The offer was good until the

next court date on January 6, 1994. Mr. Johnson waited until January 5, 1994—the day

before a decision was due—to discuss the plea offer with the Defendant. The delay was due

to the interceding holidays and Mr. Johnson’s work on another murder trial. On January 5,

1994, he discussed the offer with the Defendant for approximately fifteen minutes. The

Defendant rejected the offer; he was adamant the shooting was accidental, and he did not

want to plead guilty. Mr. Johnson also discussed the offer with the Defendant the next day,

but the State revoked the offer when the Defendant failed to accept it. Mr. Johnson agreed

that relaying the plea offer to the Defendant the day before a decision was due might not have

given the Defendant sufficient time to discuss the offer with family members, but Mr.

Johnson believed it would not have made any difference. He testified that it was only after

the State filed its notice of intent to seek the death penalty that the Defendant’s opinion of

the plea offer began to change. At the Defendant’s family’s request, Mr. Johnson met with

the prosecutor and appealed to him to revive the offer. At that point, however, the best offer

available was for life imprisonment, and the Defendant refused to accept it.

Christine Glenn testified that as a capital case investigator for the Shelby County

Public Defender’s Office, she conducted the investigation for the guilt phase of the trial. She

stated that during the course of trial preparation, there were team meetings where information

was shared. Ms. Glenn developed witness sources from the Defendant, the witnesses listed

on the indictment, and other witness leads. Her notes did not reflect that the Defendant gave

her names of additional witnesses. Her records indicated that she interviewed Ms. Davis,

Tyron Cole, Joyce Hickman (the manager of the apartment complex where the shooting

occurred), Mr. Shaw, and Jimmy Thomas. There was no record that she interviewed any

other relatives, friends, or neighbors of the victim or the Defendant.

Elizabeth Benson, a mitigation expert for the Shelby County Public Defender’s Office,

testified that during the course of her investigation into the Defendant’s life, she obtained the

Defendant’s school records, which did not reflect that he was a special education student; she

obtained his work history, but his sole previous employer had gone out of business; and she

obtained his juvenile court records, which reflected only minor offenses. The Defendant had

no prior adult criminal record. Insofar as his medical history, Ms. Benson’s notes reflected

only medical visits for a head laceration as a child, the flu, and a seizure that occurred shortly

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before the murder. Ms. Benson did not recall if she brought the seizure episode to trial

counsel’s attention. Ms. Benson also interviewed the Defendant’s grandmother, Bernice

Stephenson, about the Defendant’s prior hospitalization, but did not discuss the Defendant’s

social or life history with her.

At the post-conviction hearing, the Defendant called several witnesses to testify about

the events on the day of the shooting. Ketoe Brown, who was incarcerated in the Shelby

County Jail for attempted murder at the time of the post-conviction hearing, testified that he

was a childhood friend of the Defendant. He testified that on the day before the shooting,

he was at the victim’s apartment with the Defendant for about fifteen to twenty minutes. He

stated that the victim did not act afraid of the Defendant. Mr. Brown was aware that the

Defendant was dating three women, including the victim, at the time of the shooting, but he

never knew the Defendant to be violent or saw the Defendant be violent with the victim. He

stated that he was not contacted by the Defendant’s trial counsel before the Defendant’s trial.

Quinton Curry testified that he lived in the same apartment complex as the

victim. Mr. Curry explained that on the morning of the shooting, between 8:00 a.m. and 9:00

a.m., he was outside of the apartment complex playing basketball with his nephew, Kareem

Curry. He saw the Defendant and the victim standing in the doorway of her apartment

hugging each other. They appeared to be happy. At some point that morning, the Defendant

showed Mr. Curry a gun and let him fire it in the air. He returned the gun to the Defendant,

and the Defendant and the victim went back into her apartment. Just as he turned his back,

he heard a gunshot. Mr. Curry left the complex. He did not volunteer any information to the

police, nor was he interviewed by the Defendant’s lawyers or the police about his knowledge

of the day of the murder. After Mr. Curry was excused as a witness, the post-conviction

court noted that he appeared to suffer from some type of mental impairment.

Kareem Curry, who was incarcerated in Wisconsin at the time of the post-conviction

hearing, testified that he dated the Defendant’s sister when they were young teenagers. The

Defendant appeared to be normal, not violent with women, and not involved in satanic

ritual. Kareem Curry testified to a different version of the day’s events than his

uncle. Kareem Curry said that on the day of the shooting, he and his uncle were walking to

play basketball at a nearby school when they came across the Defendant and the victim, who

were standing close together. Kareem Curry said his uncle stopped to speak to them, but he

did not testify that the Defendant allowed his uncle to fire a gun that morning nor that he

heard a gunshot. Although he lived in the victim’s complex for one or two years after the

shooting, no one interviewed him about the events on the day of the shooting.

James Shaw testified that, on the morning of the day of the shooting, he heard a

gunshot and observed Quinton Curry handing a gun back to the Defendant. The Defendant

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then walked to the victim’s apartment. Later that day, Mr. Shaw heard another gunshot and

observed the Defendant leaving the victim’s apartment. The Defendant looked at him with

an expression “like he had messed up.” The Defendant later returned and told Mr. Shaw he

had accidentally shot the victim, although he thought the gun was unloaded at the time. Mr.

Shaw stated that neither the Defendant’s attorneys nor any investigator for the Defendant

spoke with him before the trial.

Cynthia Nesbit, the Defendant’s aunt, lived with Mr. Shaw at the time of the shooting

and could see the victim’s apartment from her apartment door. She stated that shortly after

the shooting occurred, she saw the Defendant in the parking lot of her apartment

complex. The Defendant told her that he accidentally shot the victim, and he appeared

nervous, upset, and scared. Ms. Nesbit testified that she knew the victim to wear shoes that

were so short her heels would hang off the back of the shoe. Ms. Nesbit also noted that she

had seen burn marks on the victim’s neck before the shooting. In fact, the two women had

discussed how, when curling their hair with a curling iron, their arms often became so tired

that by the time they got to the back of their head, the curling iron would slip and burn them.

Tracey Davis stated that she lived in the Pershing Park Apartments, next door to Ms.

Nesbit and Mr. Shaw. She found the victim’s body the day of the shooting. Ms. Davis

testified that she was aware the victim and the Defendant were seeing each other, that the

victim liked him, and that the victim had never given her any indication that she was afraid

of the Defendant. Earlier in the day of the shooting, Ms. Davis saw the Defendant and the

victim “hugged up” together. While she heard children crying in the apartment that day as

she was doing her laundry, she never heard the adults crying or yelling. Ms. Davis also

testified that she had noticed a burn on the victim’s ear from the curling iron and knew the

victim often burned herself with the curling iron.

Patrick Nesbit, the Defendant’s uncle, testified that when he saw the Defendant after

the shooting, he appeared lost and confused. He testified that he never knew the Defendant

to be violent or to carry a gun.

Fred Nesbit, another of the Defendant’s uncles, testified he went to visit his brother,

Ashley Nesbit, at the Royal Oaks Motel on the day before the shooting. Ashley Nesbit

appeared to be under the influence of drugs and was in possession of a .38 caliber

pistol. Fred Nesbit was concerned for his brother and asked the Defendant to care for

him. Fred Nesbit stated he found out the next day that the Defendant had been arrested for

the victim’s murder. Although he knew him to have quite a few relationships with women,

Fred Nesbit never knew the Defendant to be violent or abusive. Fred Nesbit further stated

that before the murder trial, he had not been contacted by anyone on the Defendant’s behalf.

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The Defendant also called several expert witnesses during the post-conviction

hearing. Rachael Geiser, a fact investigator for Inquisitor, Inc., testified as an expert in the

field of death penalty investigation regarding what should occur during preparation for the

guilt phase of a capital case. She explained that an investigation should not be limited to

information relayed by a defendant and stated that, in addition to interviewing a defendant

and his/her family, trial counsel or investigators should visit the crime scene, canvas the

neighborhood, and speak with any witnesses that were present at the crime

scene. Investigators should also perform a criminal history check on the victim. Ten years

after the murder, Ms. Geiser was able to locate multiple witnesses who claimed to have seen

the Defendant and the victim hugging each other near the time of the shooting, who knew

the victim never mentioned being in fear of the Defendant, who had observed that the victim

was in the habit of wearing slip-on “mule” shoes that were too small for her feet, and who

knew that she often burned herself with her curling iron. This information was relevant to

support the defense theory of negligent, reckless, or accidental shooting. Ms. Geiser testified

that the investigation leading up to the Defendant’s trial did not meet the minimum standards

of competent representation.

Glori Shettles, a capital case mitigation specialist with Inquisitor, Inc., testified that

she was able to find numerous witnesses to counter the State’s inferences that the Defendant

was involved in satanic worship. Oscar Jones, Joan Jahi, Alfred Campbell, Constance

Branch, Ernestine Branch, Ophelia Jones, Velma Cowens, Louise Cowens, and Ketoe Brown

all testified at the post-conviction hearing and could have refuted the State’s allegation that

the Defendant was involved in satanic worship. They variously testified that the Defendant

was raised in a Christian church, seemed to be a well-mannered young man, was not known

to be affiliated with any gang, and did not have a reputation for violence. Neither trial

counsel nor defense investigators contacted any of these witnesses before the murder trial.

Dr. Pamela Auble, a neuropsychologist, testified that she examined the Defendant in

preparation for the post-conviction hearing. Her testing indicated that the Defendant had an

I.Q. of 74 and was very impaired in his mental flexibility, i.e., his ability to take in

information, sensitize it, and change his behavior accordingly. As a practical matter, this

inability to adapt meant that the Defendant was prone to making the same bad decisions

repeatedly. These mental deficits would have contributed to his actions after the shooting

if, indeed, the shooting was accidental. She stated, for example, that leaving the scene was

consistent with him not knowing what to do. Dr. Auble expressed that it should have been

clear to anyone working with the Defendant that something was “not quite right.” His

intelligence deficit would be apparent, but his adaptation deficit would not necessarily have

been obvious. Dr. Auble also testified that there was no indication that the Defendant was

involved in satanic worship at the time of the shooting.

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Forensic pathologist Dr. Richard Hudson was retained by post-conviction counsel to

review the forensic evidence. He testified that after analyzing the evidence, he agreed for

the most part with the opinions expressed by Dr. Smith at trial. He did not agree, however,

that the evidence necessarily supported a finding of torture. Most of the burns were on the

victim’s neck and the side of her head, although there were also burns on her arm and her

stomach. He stated that something hot, such as a curling iron, that touched the skin very

quickly could have caused the burns. He agreed an open flame could have potentially caused

a burn under the victim’s chin, which had sooting around it, but stated that soot or carbon

from a substance already smoldering on a curling iron could have also deposited the

soot. Based on the lack of tissue reaction, Dr. Hudson estimated that some of the burns

occurred within twelve to twenty-four hours of the victim’s death. As for the marks on the

bottom of the victim’s feet, although Dr. Hudson conceded that a metal rod striking the

bottom of the foot could have left such bruises, he also stated that it was possible they were

caused by wearing shoes that were too small. Further, Dr. Hudson concluded that falanga

was a rare and sophisticated form of torture, “highly unlikely” to be known by a

nineteen-year-old inner city youth with a low I.Q. and limited education. Dr. Hudson also

noted that there was no evidence that the victim was restrained in any way.

William Massey, a Memphis-based criminal defense attorney, testified as an expert

in the field of death penalty litigation. He stated that under American Bar Association

(“ABA”) standards, defense counsel in capital cases are held to a higher standard than

typically expected of a criminal defense attorney. He stated that the first task in preparing

for a capital case is to assemble a team consisting of lead trial counsel, co-counsel, a fact

investigator to investigate guilt/innocence issues, and a mitigation investigator, whose work

would be crucial if a defendant were to be found guilty. Typically, he would also try to

include a forensic psychologist as part of that team, although Mr. Massey conceded that

appointed counsel seeking funds for an expert witness would be required to show a

particularized need for such an expert. Mr. Massey stated that a capital defense team would

investigate the defendant and witnesses in order to develop evidence from every possible

source that would support a theory of defense. Mr. Massey highlighted the witness testimony

from the post-conviction hearing that indicated the Defendant and the victim were acting

affectionately toward one another on the morning of the shooting. He stated that such

evidence tended to rebut the State’s theory of premeditation and could have supported the

defense theory that the shooting was a mistake or an accident. Since post-conviction counsel

were able to find such witnesses years after the shooting, Mr. Massey stated that trial

counsel’s investigation in this regard was deficient. He believed that testimony from these

witnesses could have made a difference in the outcome of the murder trial.

As to the mental issues, Mr. Massey testified that trial counsel were deficient in failing

to seek the services of a forensic psychologist to evaluate the Defendant’s psychological

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state. Mr. Massey believed that the jury should have been permitted to consider the

Defendant’s low I.Q. in determining the Defendant’s intent, as it would have supported the

defense theory that, at best, the Defendant’s behavior was reckless or negligent, or that, at

worst, he lacked premeditation. Mr. Massey acknowledged, however, that the Defendant’s

low I.Q. was less compelling than other evidence omitted from the defense presentation. He

also agreed that the ABA Guidelines did not require capital defense counsel to retain the

services of a forensic psychologist or to investigate a defendant’s I.Q. Nevertheless, he

stated that doing so was part of the basic independent investigation required for an effective

criminal defense in capital cases. Mr. Massey was critical of trial counsel’s handling of the

issues relating to the Defendant’s involvement with satanic worship, the testimony that the

victim had been tortured, and the presence of an unlit cigarette and other items found near

her body. According to Mr. Massey, trial counsel’s failure to adequately investigate, prepare,

and present proof to rebut or explain these matters constituted deficient representation and

was prejudicial to the Defendant.

C.

The Defendant argues that trial counsel did not adequately investigate, prepare, and

present witnesses with knowledge of the events prior to the shooting, the Defendant’s mental

health, and the facts that could rebut allegations of satanic worship and torture. The

Defendant asserts that these witnesses were relevant to the issue of premeditation and, had

they been properly presented, the jury would have returned a guilty verdict of a lesser offense

than first degree murder.

Trial counsel has a duty to investigate and prepare a case, and this duty derives from

counsel’s basic function “to make the adversarial testing process work in the particular

case.” Kimmelman v. Morrison, 477 U.S. 365, 384 (1986) (quoting Strickland, 466 U.S. at

690). Counsel’s duty is “to make reasonable investigations or to make a reasonable decision

that makes particular investigations unnecessary.” Strickland, 466 U.S. at 691. “The

reasonableness of counsel’s actions may be determined or substantially influenced by the

defendant’s own statements or actions[,]” and “what investigation decisions are reasonable

depends critically on such information.” Id. “[W]hen the facts that support a certain

potential line of defense are generally known to counsel because of what the defendant has

said, the need for further investigation may be considerably diminished or eliminated

altogether.” Id. Counsel is not required to interview every conceivable witness. See, e.g.,

Davis v. State, 912 S.W.2d 689, 700-01 (Tenn. 1995) (finding the failure to interview a

number of potential witnesses not to constitute deficient performance, as trial counsel had

nonetheless adequately investigated the case); see also Hendricks v. Calderon, 70 F.3d 1032,

1040 (9th Cir. 1995). The fact that a particular strategy or tactical decision failed does not

by itself establish deficiency. Goad, 938 S.W.2d at 369. Furthermore,

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[n]o particular set of detailed rules for counsel’s conduct can satisfactorily take

account of the variety of circumstances faced by defense counsel. Rather,

courts must judge the reasonableness of counsel’s challenged conduct on the

facts of the particular case, viewed as of the time of counsel’s conduct, and

[j]udicial scrutiny of counsel’s performance must be highly deferential.

Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000) (alternations in original) (citations omitted)

(quoting Strickland, 466 U.S. at 688-89) (internal quotation marks omitted).

At a post-conviction hearing, when a defendant presents a witness whom he claims

should have testified at trial, the post-conviction court must determine whether such

testimony would have been admissible and was material to the defense. Pylant, 263 S.W.3d

at 869.

If the post-conviction court determines that the proffered testimony would not

have been admissible at trial or that, even if admissible, it would not have

materially aided the [defendant’s] defense at trial, the post-conviction court is

justified in finding that trial counsel was not deficient in failing to call that

witness at trial.

Id. If the proffered testimony is both admissible and material, the post-conviction court must

assess the witness’s credibility. Id. at 869-70.

From a review of the record, it appears that the Defendant’s trial counsel spent a

minimal amount of time preparing for trial. They failed to interview a number of witnesses

before trial, and instead chose to talk to them at breaks during the trial. Their performance

was lackluster at best. The Defendant, however, was required to prove by clear and

convincing evidence both deficient performance and prejudice. Most of the proof at the

post-conviction hearing was devoted to proving the deficiencies of Defendant’s trial counsel.

Even assuming that trial counsel were deficient, the Defendant did not prove by clear

and convincing evidence that there was a reasonable probability that, but for any of these

failures, the result would have been different. First, as to the fact witnesses that the

Defendant’s trial counsel failed to interview or call at trial, there is no proof that their

testimony would have made a difference in the verdict reached by the jury. The

post-conviction court found that their testimony was either not relevant, not credible, or

inconsistent with the witnesses who had testified at trial. For example, at the post-conviction

hearing, Quinton Curry testified that he saw the Defendant and the victim hugging each other

in the doorway of the victim’s apartment between 8:00 a.m. and 9:00 a.m. on the day of the

murder. He said that the Defendant gave him his gun to shoot that morning and claimed to

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hear a gunshot from the apartment just a few minutes later. Kareem Curry, however, testified

to a different version of the morning’s events. He stated that he and his uncle were on their

way to play basketball at a nearby school and did not mention either that the Defendant gave

his uncle a gun to fire or that he heard a gunshot that morning. The testimony of the Currys

was also inconsistent with the Defendant’s testimony at trial. The Defendant testified that

he arrived at the victim’s apartment around 3:00 a.m., slept on her couch, and did not wake

up until 10:00 a.m. He claimed that before going to sleep, he removed all the bullets from

the gun, and he never mentioned shooting the gun the next morning with Quinton

Curry. Similarly, the post-conviction court found the testimony of both Ms. Nesbit and Mr.

Shaw about events that occurred after the shooting to be “extremely biased,” the result of a

“selective memory,” and untrue. Moreover, the court found that their testimony added

nothing new to the evidence presented at the guilt phase of the murder trial. We defer to a

post-conviction court’s findings as to the credibility of witnesses or the weight of their

testimony and will only substitute our findings of credibility and weight when the evidence

preponderates against the trial court’s findings. Wiley v. State, 183 S.W.3d 317, 325 (Tenn.

2006). In this case, the evidence does not preponderate against the finding by the

post-conviction court that the witnesses who testified regarding the Defendant’s conduct

before and after the murder were not credible.

The Defendant claimed that he accidentally shot and killed the victim. The jury heard

the Defendant’s conflicting stories about how the shooting occurred. He told Mr. Shaw that

the victim shot herself while playing Russian roulette. Then he told the police that the victim

had been shot while she was playing with the gun. He later told the police that he had

accidentally shot her. At trial, he testified that as he was holding the gun in both hands, he

pointed it sideways to his left, and then he “fumbled it” and accidentally shot the victim. All

of these versions of the shooting were in conflict with the assistant medical examiner’s

testimony that the bullet entered the victim’s body through her left ear about five feet above

the floor, traveled downward through her skull and brain, and exited behind her right

ear. The Defendant also failed to explain the multiple burn marks on the victim’s body or

the markings on her feet. The jury simply did not believe the Defendant’s version of the

shooting. The jury sees and hears witness testimony and is in the best position to weigh

evidence and make credibility determinations. Bolin v. State, 405 S.W.2d 768, 771 (Tenn.

1966). Accordingly, we defer to the jury’s credibility determinations in this case and find

that the Defendant is not entitled to relief for any failure on the part of trial counsel to

adequately investigate, prepare, and present witnesses with knowledge of the events prior to

the shooting, as it has not been shown that their testimony would have altered the verdict.

The Defendant next asserts that trial counsel were ineffective for failing to investigate

and develop proof of his mental deficits. Further, he contends that, based on the testimony

of neuropsychologist Dr. Auble, his deficiencies should have been readily apparent to trial

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counsel. As a result, the Defendant argues that this proof would have supported his defense

of mistake of fact or accident or possibly led to conviction for a lesser offense. The concept

of diminished capacity is “a rule of evidence which allows the introduction of evidence to

negate the existence of specific intent when a defendant is charged with a specific intent

crime.” State v. Phipps, 883 S.W.2d 138, 143 (Tenn. Crim. App. 1994) (citing Gayle Cohen,

Johnson v. State—Diminished Capacity Rejected As A Criminal Defense, 42 Md. L. Rev.

522, 524 (1983)). Although evidence of a defendant’s diminished capacity does not

constitute a defense capable of excusing or defeating a criminal charge, evidence of a

defendant’s mental condition may be relevant and admissible to rebut the mens rea element

of an offense. Id. Such evidence “is an attempt to prove that the defendant, incapable of the

requisite intent of the crime charged, is innocent of that crime but may well be guilty of a

lesser one.” Id. (citing United States v. Cameron, 907 F.2d 1051, 1067 (11th Cir.

1990)). Testimony offered for this purpose “must demonstrate that the defendant’s inability

to form the requisite culpable mental state was the product of a mental disease or defect, not

just a particular emotional state or mental condition.” State v. Hall, 958 S.W.2d 679, 690

(Tenn. 1997).

Dr. Auble’s testimony failed to qualify as evidence of the Defendant’s diminished

capacity. She did not testify that the Defendant suffered from a mental disease or defect that

made him incapable of forming the requisite intent for first degree murder. The

post-conviction court noted that, because Dr. Auble did not testify as to the formation of

intent, she would not have been allowed to testify during the guilt phase of the trial. Further,

the Defendant did not present any other evidence suggesting that his capacity for forming the

necessary mental intent was diminished. Subaverage intellectual functioning does not

necessarily equate to a lack of capacity to premeditate. See Mobley, 397 S.W.3d at

84-88. While such evidence can be introduced at the Defendant’s new sentencing hearing,

there is no reasonable probability that, had trial counsel pursued this line of defense, the jury

would have reached a different result as to guilt. Therefore, even if this Court were to find

that the failure to investigate the Defendant’s limited I.Q. or psychological condition further

constituted deficient performance, the Defendant has not proven through clear and

convincing evidence a reasonable probability that, but for the deficiencies, the outcome of

the murder trial would have been different.

The Defendant next contends that trial counsel were ineffective by opening the door

to evidence of satanic worship during the testimony of Mr. Shaw, failing to object to the

satanic reference, failing to file a motion in limine to exclude such evidence, and failing to

investigate and prepare rebuttal to the evidence. At the murder trial, Mr. Shaw testified for

the State. On cross-examination, the Defendant’s trial counsel asked him about the

Defendant’s reputation in the community for peacefulness. He responded, “Yeah. He didn’t

bother nobody. You know, he’d help you if he could, but he never did—he never did bother

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nobody. He seemed like to me he always tried to stay away from, you know, trouble.” On

redirect, the State asked Mr. Shaw if he had heard rumors of the Defendant’s claims that the

Defendant worshiped Satan and needed to kill two people in order to get power. Mr. Shaw

responded that he had heard from others that the Defendant was involved in satanic worship,

but he later clarified that his opinion of the Defendant was generally positive and that he had

not heard these rumors from anyone with direct knowledge. After this exchange, the trial

court instructed the jury that specific instances of bad character could only be considered for

impeachment purposes and could not be considered as substantive evidence of the

Defendant’s good or bad character. Juries are presumed to follow the instructions of the trial

court. State v. Banks, 271 S.W.3d 90, 137 (Tenn. 2008). No other witnesses were asked

about satanic worship, and no substantive evidence of satanic ritual was ever

presented. Even if trial counsel were deficient in opening the door to evidence of satanic

worship during the testimony of Mr. Shaw, failing to file a motion in limine to exclude such

evidence, or failing to investigate and prepare rebuttal to such evidence, we find that, because

the evidence was only admissible for impeachment purposes, the Defendant has not proven

by clear and convincing evidence a reasonable probability that, but for the deficiencies, the

outcome of the murder trial would have been different.

The Defendant next asserts that trial counsel’s performance was deficient for failure

to investigate and locate witnesses who could rebut the allegations of torture. The Defendant

alleges that this failure undermined the Defendant’s theory that the shooting was

accidental. However, the bulk of the evidence and testimony regarding the injuries to the

victim and the possible causes of those injuries were introduced during the sentencing phase

of the trial. The Defendant has been granted a new sentencing hearing and is free to use

testimony from Dr. Hudson and other supporting witnesses to rebut the evidence of

torture. Insofar as the relevance of Dr. Hudson’s testimony to the guilt phase, we agree with

the lower courts that his testimony offering alternate explanations for the cause of the

victim’s wounds was speculative. With one exception, Dr. Hudson did not disagree with Dr.

Smith’s testimony that the burns to the victim were inflicted within hours of her death. Dr.

Hudson stated that, given the victim’s negative drug screen, it was unlikely the victim had

burned herself accidentally during that period. He also agreed that, based on the toughness

of the skin on the soles of the victim’s feet, she could have been hit without leaving any

marks. While believing that the victim habitually wearing shoes too small for her feet could

have caused the marks, Dr. Hudson also conceded the marks were consistent with being

beaten with a long, hard, thin object. The post-conviction court held that Dr. Hudson’s

testimony showed only minimal disagreement with Dr. Smith, and Dr. Hudson was at a

disadvantage because he did not personally examine the body. The evidence does not

preponderate against this finding of the post-conviction court, and we will not disturb

it. Accordingly, the Defendant failed to show by clear and convincing evidence a reasonable

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probability that any deficiency in not having a forensic pathologist or other expert testify in

the guilt phase affected the outcome of the murder trial.

The Defendant also alleges that trial counsel were deficient in failing to highlight the

fact that the victim was a smoker and the significance of the book of matches and an unlit

cigarette on the ground next to the victim’s body. The Defendant alleges counsel should

have argued that a person being tortured would not have had the freedom to light a cigarette,

and this position would have supported his theory that the shooting was an accident. We find

that this argument is more relevant to rebut the issue of torture at the sentencing

hearing. Even if trial counsel were deficient in failing to raise this possibility, the Defendant

failed to show by clear and convincing evidence a reasonable probability that, but for this

alleged deficiency, the result would have been different. Accordingly, the Defendant is not

entitled to relief on this point.

D.

Finally, the Defendant asserts that trial counsel’s representation was deficient because

of the failure to communicate the plea offer to him in a timely manner and to spend an

adequate amount of time to inform and educate him about the offer. He contends that given

his young age, inexperience with the criminal justice system, and intellectual deficits, trial

counsel should have conveyed the offer to him sooner and in such a manner that he could

have appreciated it and understood the ramifications of rejecting it.

Trial counsel has the duty to “promptly communicate and explain to the defendant all

plea offers made by the prosecuting attorney.” Frye, 132 S. Ct. at 1408 (citing ABA

Standards for Criminal Justice, Pleas of Guilty 14–3.2(a) (3d ed. 1999)). The promptness

standard is also included in the Tennessee Rules of Professional Conduct. See Tenn. Sup.Ct.

R. 8, RPC 1.4(a)(1) & cmt. 2 (requiring that the lawyer promptly consult with and inform the

client of the substance of a proffered plea bargain in a criminal case unless the client has

previously indicated that the proposal will be acceptable or unacceptable or has authorized

the lawyer to accept or to reject the offer). “[A] lawyer must abide by his client’s decision

[to accept or reject a plea] only after having provided the client with competent and fully

informed advice, including an analysis of the risks that the client would face in proceeding

to trial.” Burt, 134 S. Ct. at 19. The United States Supreme Court has held that a defendant

claiming that trial counsel’s performance was deficient in the plea negotiations process has

the burden to show by a reasonable probability that, but for counsel’s deficient

representation, (1) the defendant would have accepted the plea, (2) the prosecution would not

have withdrawn the offer, and (3) the trial court would have accepted the terms of the offer,

such that the penalty under its terms would have been less severe than the penalty actually

imposed. Lafler, 132 S. Ct. at 1385. We agree that this is the appropriate standard for

-19-

determining whether a defendant is entitled to relief for ineffective assistance of counsel

during the plea negotiation process and therefore apply the Lafler standard here. See, e.g.,

Alcorn v. State, 121 So. 3d 419, 430 (Fla. 2013) (applying the Lafler standard when

analyzing ineffective assistance of counsel claims within the context of the plea negotiation

process); People v. Douglas, 852 N.W.2d 587, 606 (Mich. 2014) (same); Commonwealth v.

Marinho, 981 N.E.2d 648, 661 (Mass. 2013) (same).

Trial counsel waited some six weeks after receiving the twenty-five-year offer to

convey it to the Defendant and, when he did so, spent very little time discussing the

offer. Neither trial counsel’s heavy caseload nor the intervening holidays excused prompt

and diligent communication with the Defendant. However, the post-conviction court

accredited Mr. Johnson’s testimony that the Defendant asserted from the beginning that the

shooting was accidental and, thus, he would not plead guilty. The trial court did not find

credible the Defendant’s mother’s testimony that her son wanted to accept the plea offer. His

mother testified that this occurred during the “Ice Storm of 1994,” which the post-conviction

court observed occurred in February of 1994, well after the State withdrew the

twenty-five-year plea offer. The evidence does not preponderate against these credibility

determinations of the trial court.

Most significantly, the Defendant presented no proof that he would have taken the

plea offer had it been presented to him earlier. See State v. Garrison, 40 S.W.3d 426, 431

(Tenn. 2000) (stating that although the evidence established deficient performance by

counsel’s failure to convey a plea offer, prejudice was established only if the evidence also

showed a reasonable probability that the defendant would have accepted the plea offer if

properly conveyed). Because the Defendant failed to show that he would have accepted the

plea, he is not entitled to relief on this issue.

Conclusion

We conclude that the Defendant did not prove by clear and convincing evidence a

reasonable probability that, but for the deficient performance of his trial counsel, the verdict

of guilt for first degree murder would have been different. The judgment of the Court of

Criminal Appeals is affirmed, and the case is remanded to the trial court for a new sentencing

hearing. It appearing from the record that the Defendant is indigent, costs on appeal are

assessed to the State of Tennessee.

________________________________

SHARON G. LEE, CHIEF JUSTICE

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