Raina Fisher v. State of Tennessee

06/06/2017

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

April 18, 2017 Session

RAINA FISHER v. STATE OF TENNESSEE

Appeal from the Circuit Court for Maury County

No. 19513 Russell Parkes, Judge

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No. M2016-00594-CCA-R3-PC

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The Petitioner, Raina Fisher, was convicted of three counts of theft of property valued

over $1,000, one count of theft of property valued over $500, and one count of attempted

theft of property valued over $1,000. The Petitioner filed a timely post-conviction

petition, alleging that her trial counsel had provided ineffective assistance by failing to

suppress evidence obtained through a judicial subpoena, failing to exclude evidence of

her prior convictions, and failing to call certain witnesses who could have discredited the

victim. She also alleged that appellate counsel was ineffective and that she was entitled

to relief under a theory of cumulative error. The post-conviction court held a hearing and

denied relief. After a thorough review of the evidence, we conclude that the Petitioner

has not demonstrated prejudice resulting from any of her claims, and we affirm the

judgment of the post-conviction court.

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which JAMES

CURWOOD WITT, JR., and CAMILLE R. MCMULLEN, JJ., joined.

Joseph D. Baugh, Franklin, Tennessee, for the appellant, Raina Fisher.

Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Senior Counsel;

Brent A. Cooper, District Attorney General; and Kyle E. Dodd, Assistant District

Attorney General, for the appellee, State of Tennessee.

OPINION

FACTUAL AND PROCEDURAL HISTORY

Trial

The Petitioner and the victim, Chad Collier, had separated and were involved in a

custody battle at the time that the thefts took place. The Petitioner used a bank account

belonging to the victim, who was the father of her child, to make payments on a Discover

card in the Petitioner’s name. The State’s theory of the evidence was that the Petitioner

obtained the bank routing number without authorization and then used the funds to pay

her credit card debt. The Petitioner, on the other hand, presented evidence that the victim

had made prior payments on her Discover card and that the credit card’s automated phone

payment process merely asked her whether she would like to use the account on file.

According to the Petitioner, the use of the victim’s account was inadvertent, and she had

intended to use her own account to make the payments.

The victim and the Petitioner entered into a relationship around late 2004 or early

2005. They began to live together shortly thereafter, and they had a daughter together.

The Petitioner testified that she was employed in various capacities while the two were in

a relationship, including providing counseling at a juvenile detention facility, working for

Dell computers, and working with the Department of Children’s Services. The victim

initially denied that the Petitioner worked during their relationship but ultimately agreed

that she had worked for a short time. The Petitioner also received a judgment of

approximately $50,000 to compensate her for injuries suffered in a 2007 automobile

accident. Both parties agreed that for the bulk of their relationship, the victim provided

for the Petitioner financially and paid her bills.

The victim testified that he opened a personal account at Regions Bank in July

2008 and put several thousand dollars into the account, which was intended to be used

solely for his daughter’s expenses. The victim did not regularly monitor this account and

knew that there should be several thousand dollars in it. The victim closed the account

after he discovered the theft in 2009.

The Petitioner and the victim ended their romantic relationship around October

2008, but they continued to see each other afterwards. The victim testified that they

continued contact through the holidays for the sake of their daughter, and the Petitioner

testified that they continued to have a sexual relationship up until August 2009, which the

victim denied. The Petitioner testified that she had been diagnosed with colon cancer in

2001 and that she subsequently became addicted to pain medication. In 2006, the

Petitioner was convicted of one count of obtaining prescription medication through fraud

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and one count of attempt to obtain prescription medication by fraud, and she was

sentenced to probation. The State filed a notice of its intent to impeach the Petitioner

with these convictions, and during the Petitioner’s testimony, trial counsel asked the court

to make a ruling on the admissibility of the prior convictions. The trial court stated that it

could not recall exactly which rule would apply and noted that it would get the exact

language of the rule later but that, as the case at bar was not drug-related, it found that the

prejudicial effect would not outweigh the probative value. The trial court returned to the

issue after the conclusion of proof, finding that under Tennessee Rule of Evidence

404(b), the convictions bore on the Petitioner’s credibility and that the probative value

was not outweighed by potential prejudice.

Both parties acknowledged that they had used drugs, including cocaine, during

their relationship and that the victim funded their drug use. They disagreed on the

allocation of blame, with the victim testifying that the Petitioner brought drugs into his

life and the Petitioner testifying that the victim urged her to use drugs, even after her

hospital stay, despite his awareness of her prior addiction.

In 2009, the Petitioner entered a drug rehabilitation program. The victim testified

that the Petitioner entered the program “fairly immediately” after the holidays and that

she was gone until August. While the Petitioner was gone, her friend worked as a nanny

for the family because the victim’s work schedule did not allow him to care for their

daughter during the day. The Petitioner testified that, while she was in the rehabilitation

program, her mother and the victim both paid her bills for her. The victim, on the other

hand, testified that he did not pay any bills for the Petitioner after January or February

2009.

In August 2009, the Petitioner finished her rehabilitation program and began to set

up an apartment because she was no longer living with the victim. Accordingly, the

Petitioner was making many large purchases associated with establishing a household,

including buying furniture for herself and for her daughter, who sometimes stayed with

her.

While the victim and the Petitioner agreed that he had paid for her expenses prior

to the end of their relationship, they disagreed on the method of payment. The victim

testified that he had a Citi Visa credit card which he had permitted the Petitioner to use

and which he paid every month. He further testified that he would occasionally sign

checks which the Petitioner filled out or asked him to sign for their expenses. He

testified, however, that he paid the bulk of his bills through his online bank account. The

victim testified that he did not make phone payments and that he had had no reason to

pay the Petitioner’s Discover card bill because he had provided her with another credit

card that he paid regularly. He testified that he did not believe he had ever made a

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payment toward her Discover credit card, but he ultimately conceded that he might have

made a previous payment to Discover by check.

The victim testified that the Petitioner had never had access to or authority to use

his Regions bank account, and he stated that the checks he had written her for their

daughter’s expenses could have provided the Petitioner with the routing number of his

account. However, he acknowledged on cross-examination that the first phone payment

to Discover was made prior to the first check he had written to reimburse the Petitioner

for expenses. He then speculated that she could have gained access to his checkbook

when she was removing her belongings from their shared home in early August. The

victim then also testified that the night before trial, he had discovered an additional

payment to the Petitioner’s account made from his Regions bank account in April 2009.

He stated that he did not authorize that payment and would have sought to prosecute the

Petitioner regarding the payment if he had been aware of it previously.

The Petitioner, on the other hand, testified that the victim had made payments on

her Discover card while they were together. She testified that he had been paying her

bills and that she used the phone payment system during their relationship. She also

stated that their nanny had asked the victim about the Petitioner’s bills in 2009 and that

the victim had made payments on her bills in 2009.

At trial, the State introduced the victim’s bank records, which showed that four

withdrawals were made to “Discover Phone Pay Fisher Raina” in August and September

2009. The payments reflected on the statement were: a payment of $3,127.68 made on

August 20, 2009; a payment of $4,263.54 made on August 27, 2009; a payment of

$820.49 made on September 1, 2009; and a payment of $2,000 made on September 15,

2009. The victim testified that on November 6, 2009, he was alerted by the bank that his

account was overdrawn. When he investigated, he discovered the previous credit card

payments. The account had been overdrawn when someone attempted to make a

payment of over $4,000 on the Discover card in November. The victim did not ask the

Petitioner about the transactions but immediately contacted the police. The Petitioner was

arrested on November 13, 2009, and on November 23, 2009, the victim filed a petition

for custody of their child based in part on the theft charges. He testified that he was not

motivated to bring charges against the Petitioner in order to prevail in the custody hearing

because he currently had custody, but he admitted on cross-examination that he had

obtained custody in part based on the charges brought against the Petitioner. He

acknowledged that he and the Petitioner were not on amicable terms, and he did not deny

that he had threatened to imprison the Petitioner the night before trial when she called to

say she would be late to drop off their daughter.

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The victim’s bank records reflected that between August 15, 2009, and September

15, 2009, the victim wrote checks from the Regions account to a nanny and to the

Petitioner, which the victim testified were for his daughter’s expenses. The account also

reflected a mortgage payment and numerous ATM withdrawals.

The State presented the testimony of Mr. Jerry Brown, a field investigator for

Discover Financial Services, and through Mr. Brown introduced the Petitioner’s credit

card statements. The statements reflected the four payments in the amounts charged to

the victim’s bank account, and these were designated as “phone payments.” The

Discover statement also showed a phone payment for $1,310.54 which was made on

August 10th, prior to the payments made from the victim’s account, and “returned” on

August 13th. Mr. Brown testified that a payment might be returned if the account

making the payment had insufficient funds or were closed. The statements reflected that a

payment of $732 was made on September 16, 2009, and a payment of $3,351 was made

on October 10, 2009, and these payments were not made by phone.

The Petitioner testified that her mother and the victim had been paying her bills

while she was in rehabilitation. She testified that she had made the $1,310.54 phone

payment on her credit card on August 10th, that the representative had asked her if she

wanted to use an account on file and gave her the last four digits of that account, and that

she had simply agreed. At the time, she believed that her mother’s account would be on

file because it was the most recent account that had paid her bills. The Petitioner’s bank

statements were introduced into evidence and reflected that she made a $10,000 deposit

to her own bank account on the next day, August 11, 2009. She accordingly wrote her

mother a check on August 11th for $1,300 to reimburse her. The check was part of the

statement introduced into evidence. When the $1,300 phone payment was returned a few

days later, the Petitioner testified that she assumed that the account on file had been

another one of the victim’s accounts that had since been closed.

She then called on August 19th to make the first phone payment that came out of

the victim’s Regions account. The Petitioner testified that again, she did not have to

enter any bank account information but simply agreed to use an account on file. She did

not check the numbers given to her, but she believed that the account on file should have

been her own account. She testified that she made the other August and September

payments under the same belief. The Petitioner testified that, after she received her bank

statement in September, she became aware that the money was not being taken from her

own account. She accordingly visited her bank and spoke to a representative to find out

why the payments were not reflected. The Petitioner acknowledged on cross-examination

that her account would have been overdrawn had the Discover payments actually been

debited from her account, but she explained that her own checkbook reflected that she

should have had significantly more money in her own account. The Petitioner explained

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that she then made two check payments to her credit card in September and October, for

$732.60 and for $3,351.61. Because she believed that the credit card company would

save the information from her check and use that account in the future, she attempted

another phone payment in November.

Mr. Harry Dryer, a representative from the Petitioner’s bank, testified that the

Petitioner came to see him multiple times beginning on September 9, 2009, because her

check book did not reflect the amount in her account. The Petitioner “thought that there

were some deposits that she had not posted” and was looking for “some deposits that she

had missed” or “something she forgot to write down.”

The Petitioner’s testimony regarding her phone payments was that she would

speak to a representative, that the representative would ask her if she would like to pay in

the account ending in a particular four digits, and then she would simply agree. The

Discover card representative, however, testified that a phone payment could only be

made if the customer had the entire bank routing number, and he testified that the

customer would have to provide the entire number for each payment. The representative

acknowledged that he did not work with Discover at the time that the phone payments

were made.

The Petitioner was convicted of three counts of theft of property valued $1,000 or

more but less than $10,000, one count of theft of property valued $500 or more but less

than $1,000, and one count of attempted theft of property valued $1,000 or more but less

than $10,000. She was sentenced to serve seven years on probation. On direct appeal,

she challenged the sufficiency of the evidence, and this court affirmed her convictions.

State v. Raina Fisher, No. M2012-00750-CCA-R3-CD, 2013 WL 3411623 (Tenn. Crim.

App. July 3, 2013), perm. app. denied (Tenn. Nov. 14, 2013).

Post-Conviction

The Petitioner filed a timely petition for post-conviction relief. In the petition, she

argued that her trial counsel was deficient in failing to suppress any financial records

which the State had improperly obtained through a judicial subpoena and in introducing

further records as part of the defense. She also argued that her prior convictions should

not have been admitted and that trial counsel was deficient in not excluding them. The

Petitioner alleged that trial counsel failed to obtain the testimony of several witnesses

who could have bolstered her credibility and detracted from that of the victim. She also

alleged deficiency at sentencing and on appeal.

At the post-conviction hearing, Detective Terry Chandler, who worked with the

Maury County Sheriff’s Department at the time of the thefts, testified regarding his

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investigation of the case. According to Detective Chandler, the victim contacted police

and “wanted [the Petitioner] arrested.” Detective Chandler testified that he had assisted

the victim and had obtained a judicial subpoena in order to determine whether or not the

Petitioner should be charged with any crimes. He believed that the victim had himself

obtained the warrant to arrest the Petitioner. Detective Chandler testified that the judicial

subpoena was signed by a judicial commissioner who acted as a magistrate. The

subpoena was introduced into evidence and directed the Petitioner’s credit card company

to produce the records associated with her credit card. Detective Chandler acknowledged

that there “was some nasty stuff going on” between the victim and the Petitioner,

elaborating that they were in a custody dispute, that the Petitioner was on probation, and

that the victim wanted the Petitioner imprisoned.

The Petitioner testified that she had explained her theory of the case to trial

counsel and that trial counsel indicated he understood. Trial counsel did not discuss

procuring her bank records, and she did not receive notice under the Bank Record

Privacy Act that the records had been subpoenaed. She asked trial counsel to move to

suppress her financial records, but he did not do so. The Petitioner did not see any

discovery, including her financial records, and did not know her records would be entered

into evidence. She did not know that her bank records would be introduced by trial

counsel until she was in the midst of testifying.

According to the Petitioner, trial counsel did not discuss with her whether or not

she should testify until the day of trial, and he advised her to testify. He did not tell her

that she could be impeached with her prior convictions.

The Petitioner testified to the victim’s vindictive behavior after their break-up.

She stated that while she had provided all the childcare prior to their separation, the

couple’s child stayed at the victim’s home afterward, and the victim attempted to obtain

custody. The victim wanted her arrested because he was angry that she left. He

repeatedly contacted the authorities to try to get her arrested or to get her probation

revoked. The Petitioner had asked trial counsel to present the testimony of her mother,

her brother, her bondsman, her probation officer, and an agent from her credit card

company. The Petitioner stated that her mother could have testified regarding checks the

Petitioner wrote her, which were intended to repay the credit card payments. Her mother

also could have testified to the victim’s character. The Petitioner’s probation officer and

bondsman would have offered testimony that the victim contacted them to try to get the

Petitioner in trouble. The Petitioner testified that her trial counsel did not interview the

representative from her bank who testified that she expressed confusion regarding her

account. She also alleged that trial counsel was deficient in presenting the bank

employee’s testimony because trial counsel did not ask him whether the Petitioner had

asked about payments she made which were not reflected in the account. She agreed that

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she made the initial payments in August and September, that she met with the bank

representative in September, and that she made an additional payment using the victim’s

account in November.

The Petitioner testified that she was not notified of the hearing on the motion for a

new trial and was not present. She saw trial counsel prior to the hearing, but he told her

not to go because he was concerned that his wife was having him followed by an

investigator.

The Petitioner testified that appellate counsel was not responsive to her attempts to

contact him and that he had a substance abuse problem. His appellate brief listed

incorrect facts, and he told her as an excuse that it was hard to concentrate because he

“had a crush on her.” He did not inform her that an appellate opinion had been issued

until the night before she was taken into custody. He told her that she should not present

her claims of ineffective assistance of counsel until post-conviction. Appellate counsel

was censured by the Board of Professional Responsibility, and the censure was entered

into evidence.

The Petitioner’s probation officer, Ms. Jennifer Tatar, testified that the victim

would call her approximately twice a month to give her information which he hoped

would result in a probation revocation. Ms. Tatar followed up on the victim’s statements,

but the Petitioner’s probation was not revoked.

Ms. Leah Hulan, the Petitioner’s bondsman, received two or more calls from the

victim. The victim told Ms. Hulan that the Petitioner was a flight risk and that Ms. Hulan

should “get off the bond.” Ms. Hulan documented these calls in a letter to the Petitioner.

Reverend Patricia King, the Petitioner’s mother, testified the Petitioner and victim

lived together for approximately five years, beginning around 2004. The Petitioner was a

stay-at-home mother, and the couple also had a nanny. The victim never spoke

disparagingly of the Petitioner prior to their break-up, and the Petitioner “was a great

mother and a great, what he considered a wife.” Rev. King had helped care for her

grandchild on weekends and after the Petitioner was involved in an auto accident in 2007.

The Petitioner became addicted to prescription medication after sustaining severe injuries

in the accident. She went into a rehabilitation facility twice, and Rev. King testified that

she paid the Petitioner’s bills while the Petitioner was in the rehabilitation facility. The

child had also gone on two trips out of the state with Rev. King and her husband,

including a two-week trip to Oregon. In December 2009, Rev. King and her husband

planned to have the Petitioner’s child stay with them. When arranging the visit, she told

the victim that the Petitioner would be there, and he did not object. She and her husband

then spoke to the victim on the telephone, and the victim stated he had not known the

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Petitioner would be present. He called the Petitioner a “f*cking c*nt” and a “whore”

repeatedly. The victim stated he would “make sure that [the Petitioner] never had [their

daughter] again, and that [Rev. King] would never see her again.” The victim threatened

to charge Rev. King with harassment and have her arrested if she contacted him

regarding the child. Rev. King testified she was “supposed to have been on the witness

list” but was not called to testify at trial.

The Petitioner’s brother, Mr. William Fisher, testified that he was in the armed

services and that the Petitioner’s child stayed with his family for approximately one

month in 2006, while the Petitioner was undergoing treatment for her addiction. During

this month, the victim only saw his daughter once and gave only a little money for

diapers. Mr. Fisher testified that the victim’s motivation in 2009 was to hurt the

Petitioner and that the only way he could do so was to separate her from her child.

Trial counsel testified that he had been practicing law since 2000 and that he was

representing the Petitioner on her custody case at the time he undertook her

representation on the theft charges. Trial counsel met with the Petitioner regarding the

case approximately five to eight times, and some of these meetings also included

discussions regarding the civil case. He testified that he reviewed discovery with the

Petitioner.

Trial counsel acknowledged that he might have been able to exclude the financial

records obtained through judicial subpoena, but he believed that the State would merely

have reissued the subpoena and would have eventually obtained the records. Moreover,

the victim’s bank records showed that his account was debited to pay a Discover card

held by the Petitioner. Trial counsel obtained the Petitioner’s bank records himself. He

introduced them to show that the Petitioner had approximately $10,000 in her account

and did not need to resort to theft to make a payment on her credit card.

Trial counsel stated that the Petitioner had always wanted to testify and maintained

she was not guilty. Trial counsel agreed that the Petitioner should testify despite her prior

convictions because she was the only witness who could present her theory of the case.

Trial counsel sought to have the Petitioner’s prior convictions excluded, but the

trial court ruled against him. He testified that he informed the Petitioner that she could be

impeached with her prior convictions if she testified.

Trial counsel testified that the victim wanted “to make [the Petitioner’s] life

miserable.” Trial counsel acknowledged that he did not interview Rev. King, Mr. Fisher,

Ms. Tatar, or Ms. Hulan. He did not recall if the Petitioner mentioned wanting Ms.

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Hulan or Ms. Tatar to testify. He acknowledged that it would be important to present

information that the victim was trying to get the Petitioner’s probation revoked.

Trial counsel testified that although the Petitioner never argued that the victim

consented to the payments, the victim’s credibility was very important to the case, in part

because the victim’s theory was that the Petitioner had obtained the bank account number

through deceit. Trial counsel tried to attack the victim’s credibility through cross-

examination.

Trial counsel testified that the Petitioner attended the hearing on the motion for a

new trial. The Petitioner’s sentence was negotiated after the guilty verdict, and she was

ordered to serve seven years on probation. Trial counsel agreed that appellate counsel

had an alcohol problem and that he went to a rehabilitation facility at some point.

Trial counsel believed two pieces of evidence were damaging to the Petitioner at

trial. First, the Discover card agent who testified for the State told the jury that the

Petitioner would have had to enter the entire routing number each time she made a phone

payment. Trial counsel stated that he believed this was incorrect, citing his own

experience paying by phone on his own Discover card. However, he did not have any

witness other than the Petitioner to challenge this testimony. Trial counsel stated he was

“bother[ed]” by the incorrect testimony.

Trial counsel also believed that the fact that the Petitioner attempted to make a

payment using the victim’s account in November was damaging to her theory of the case.

He testified that the first four payments were clustered in August and September and that

the Petitioner met with her bank representative in September to investigate why her

account balance did not match her own records. Although this evidence supported her

theory that she did not intend to steal, the fifth attempted payment was made in

November. Trial counsel believed that this final payment led to the inference that she

made the payments even though she knew the money was not coming from her account.

The post-conviction court denied relief. The post-conviction court concluded that

the financial records could not be suppressed due to an alleged violation of the Tennessee

Financial Privacy Act. However, the court found that the judicial subpoena was not valid

because it was not issued by a judge of a court of record or a general sessions judge but

by a judicial commissioner. Apparently examining only the bank records and not the

credit card records, the post-conviction court concluded that the decision to introduce the

bank records during the Petitioner’s testimony was a reasonable trial strategy. The post-

conviction court also found that the trial court properly admitted evidence of the

Petitioner’s prior convictions after a hearing. The post-conviction court denied relief

based on trial counsel’s failure to investigate, finding that the victim “was cross-

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examined relative to his relationship with the [Petitioner], domestic relation issues

between [the victim] and the [Petitioner], and said issue was well litigated and thus

without merit.” The post-conviction court denied relief on the other issues raised in the

hearing.

ANALYSIS

The Petitioner alleges she is entitled to relief from her convictions due to various

deficiencies in trial counsel’s conduct. A petitioner is entitled to post-conviction relief

when a 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.”

T.C.A. § 40-30-103. The petitioner bears the burden of proving the allegations of fact in

the petition by clear and convincing evidence. Id. § 40-30-110(f). Evidence is clear and

convincing when the correctness of the conclusions drawn from the evidence admits no

serious or substantial doubt. Grindstaff v. State, 297 S.W.3d 208, 216 (Tenn. 2009).

The findings of fact made by a post-conviction court are conclusive on appeal

unless the evidence preponderates against them. Ward v. State, 315 S.W.3d 461, 465

(Tenn. 2010). This court may not substitute its own inferences for those drawn by the

post-conviction court, and questions concerning the credibility of witnesses, the weight

and value of the evidence, and the factual issues raised by the evidence are to be resolved

by the post-conviction court. State v. Honeycutt, 54 S.W.3d 762, 766-67 (Tenn. 2001).

“The appellate court’s review of a legal issue, or of a mixed question of law or fact such

as a claim of ineffective assistance of counsel, is de novo with no presumption of

correctness.” Vaughn v. State, 202 S.W.3d 106, 115 (Tenn. 2006).

The right to counsel is guaranteed by both the Sixth Amendment to the United

States Constitution and article I, section 9 of the Tennessee Constitution. Pylant v. State,

263 S.W.3d 854, 868 (Tenn. 2008). The right to counsel encompasses “the right to

‘reasonably effective’ assistance, that is, assistance ‘within the range of competence

demanded of attorneys in criminal cases.’” Id. (quoting Strickland v. Washington, 466

U.S. 668, 687 (1984)). In evaluating a claim of ineffective assistance of counsel, the

court must determine “‘whether counsel’s conduct so undermined the proper functioning

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

result.’” Vaughn, 202 S.W.3d at 116 (quoting Strickland, 466 U.S. at 686).

To show that relief is warranted on a claim of ineffective assistance of counsel, the

petitioner must establish both that counsel’s performance was deficient and that the

deficiency prejudiced the defense. Finch v. State, 226 S.W.3d 307, 315 (Tenn. 2007).

Deficiency requires showing that counsel’s errors were so serious “that counsel was not

functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.”

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Strickland, 466 U.S. at 687. To demonstrate deficiency, the petitioner must show that

counsel’s performance fell below an objective standard of reasonableness under

prevailing professional norms. Pylant, 263 S.W.3d at 868. Courts must make every

effort “‘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.’” Felts v. State, 354 S.W.3d 266, 277 (Tenn. 2011) (quoting Strickland, 466

U.S. at 689).

The reviewing court must begin with “the strong presumption that counsel

provided adequate assistance and used reasonable professional judgment to make all

strategic and tactical significant decisions.” Davidson v. State, 453 S.W.3d 386, 393

(Tenn. 2014). “‘[S]trategic choices made after thorough investigation of law and facts

relevant to plausible options are virtually unchallengeable; and strategic choices made

after less than complete investigation are reasonable precisely to the extent that

reasonable professional judgments support the limitations on investigation.’” Felts, 354

S.W.3d at 277 (quoting Strickland, 466 U.S. at 690-91). Generally, a post-conviction

court gives deference to strategic decisions, “but only when such choices are informed

ones based upon adequate preparation.” Moore v. State, 485 S.W.3d 411, 419 (Tenn.

2016).

In determining prejudice, the post-conviction court must decide whether there is a

reasonable probability that, but for the errors, the result of the proceeding would have

been different. Grindstaff, 297 S.W.3d at 217. “‘A reasonable probability is a

probability sufficient to undermine confidence in the outcome.’” Honeycutt, 54 S.W.3d

at 768 (quoting Strickland, 466 U.S. at 694). “That is, the Petitioner must establish that

his counsel’s deficient performance was of such a degree that it deprived him of a fair

trial and called into question the reliability of the outcome.” Finch, 226 S.W.3d at 316.

A claim may be denied for failure to prove either deficiency or prejudice, and a court

need not address both prongs if the petitioner has failed to establish either deficiency or

prejudice. Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996).

I. Motion to Suppress

The Petitioner asserts that but for trial counsel’s failure to challenge the

introduction of her financial records, they would have been suppressed. She argues that

the disclosure of her records violated the Tennessee Financial Privacy Act and that they

should have been suppressed accordingly. See T.C.A. §§ 45-10-104(a)(2), -106. She

further argues that the use of an administrative subpoena violates the protections against

unreasonable searches and seizures. The post-conviction court first found that the

evidence could not be excluded pursuant to the Tennessee Financial Privacy Act. While

the court found that the subpoena was improperly issued, it ultimately concluded that the

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Petitioner could not show prejudice. The post-conviction court’s analysis was limited to

the bank records. We observe that the bank records were not obtained pursuant to the

subpoena; the subpoena was only used to obtain the Petitioner’s Discover card records.

The post-conviction court made no findings regarding any prejudice accruing from the

State’s introduction of the credit card records.

A. Bank Records

The Petitioner, like the post-conviction court, does not differentiate between the

credit card records which were produced pursuant to the judicial subpoena and her bank

statements, which her trial counsel obtained and introduced during her testimony.1

Insofar as she claims that her counsel was deficient in not suppressing her bank records

and that the deficiency was prejudicial, we conclude that trial counsel had no basis to

suppress the records, which were not introduced in the State’s case-in-chief and not

obtained pursuant to the subpoena but were obtained by and introduced by the defense.

Moreover, insofar as the Petitioner objects to the strategic decision to introduce the bank

records, trial counsel articulated a sound reason for introducing the records at trial: to

show that the Petitioner had made a large deposit contemporaneously with her substantial

credit card payments, attempting to corroborate her testimony that she believed the

payments would come out of her own account. The bank account information also

demonstrated that the Petitioner wrote her mother a check for an amount similar to one

attempted credit card payment, corroborating her testimony that she thought that that

payment would come from her mother’s account. Accordingly, we agree with the post-

conviction court that the introduction of the bank records was sound trial strategy and that

the Petitioner cannot demonstrate deficiency.

B. Credit Card Records

The Petitioner also objects to the introduction of her credit card records. The post-

conviction court found that the judicial subpoena was improperly issued by a judicial

commissioner and was therefore invalid. The post-conviction court did not make

findings regarding prejudice related to the suppression of the credit card records.

The Petitioner claims that she was not notified of the subpoena, that the

requirements of the Tennessee Financial Records Privacy Act were not met, and that her

counsel was ineffective in not suppressing the records on this basis. See T.C.A. § 45-10-

1

As the State points out, the Petitioner’s suggestion that there was a subsequent subpoena

for her bank records is not supported by the record or her citation to the transcript; the transcript

instead reflects that the subpoena referred to the victim’s bank account as the source of missing

funds.

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106 (allowing the service of a subpoena on a “financial institution” only when the

customer has been served with a copy as delineated in the statute). We note initially that

this statute applies only to subpoenas served on a “financial institution,” which the statute

defines as “a bank, savings and loan association, industrial loan and thrift company,

credit union, mortgage broker, mortgage banker, or leasing company accepting deposits,

making or arranging loans and making or arranging leases.” T.C.A. § 45-10-102(3). In

any event, as the post-conviction court noted, this statute does not require evidence to be

suppressed in the event of a violation. State v. Rickey Bradford, No. M2012-02616-

CCA-R3-CD, 2014 WL 2494548, at *15 (Tenn. Crim. App. May 30, 2014) (concluding

that noncompliance with the statute did not render records inadmissible); State v. James

Michael Naive, No. M2012-00893-CCA-R3-CD, 2013 WL 4505395, at *14 (Tenn. Crim.

App. Aug. 21, 2013) (noting that the statute does not provide for suppression in the event

of noncompliance); State v. M. Dale Lowe, No. 89-92-III, 1990 WL 176722, at *9 (Tenn.

Crim. App. Nov. 15, 1990).

The post-conviction court relied on State v. Scott McLain, No. E2012-01082-

CCA-RM-CD, 2013 WL 709616 (Tenn. Crim. App. Feb. 26, 2013), for the proposition

that the subpoena could only be issued by a “Judge of a Court of record or a General

Sessions Judge” and that the subpoena issued by a judicial commissioner was thus

invalid. In Scott McLain, the defendant’s blood was obtained pursuant to a subpoena

while he was being treated at a hospital after having run off the road in his vehicle. Id. at

*1. In the trial court, the defendant had objected that the subpoena was improperly issued

because it was signed by a clerk and not a judge. Id. at *4. The State had responded that

it would reissue the subpoena, but it ultimately did not do so, and the State’s evidence

depended on the subpoena issued by the clerk. Id. This court noted that while a court

clerk might have the authority to issue a subpoena or arrest warrant under Tennessee

Rules of Criminal Procedure 17(a) or 4(c)(1)(A), the statute which authorizes a law

enforcement officer to obtain data for the purpose of “establishing, investigating or

gathering evidence for the prosecution of a criminal offense” specifically requires an

affidavit to be submitted to “either a judge of a court of record or a general sessions judge

who serves the officer’s county of jurisdiction.” Scott McLain, 2013 WL 709616, at *4;

see T.C.A. § 40-17-123(a), (d)(1). Under the statute, a subpoena issued by a general

sessions judge is only valid within the county in which the judge has jurisdiction. Id. §

40-17-123(f). The Scott McLain court concluded that the subpoena was invalid because

it was not issued by a judge of a court of record or a general sessions judge, and the court

dismissed the charges against the defendant. Scott McLain, 2013 WL 709616, at *5. The

post-conviction court found that the subpoena here was issued by a judicial

commissioner, and we agree with the post-conviction court that, under Scott McLain, the

subpoena was invalid because it was not issued by a judge. Because the post-conviction

court analyzed only the bank records as part of this issue, it made no findings regarding

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any prejudice accruing from the failure to quash the Discover card records, which were

the actual subject of the subpoena.

The Petitioner cites to cases which stand for the proposition that the prohibition

against unreasonable searches and seizures extends to businesses as well as individuals

and that a civil subpoena may also be subject to certain constitutional strictures. See, e.g.,

State Dep’t of Revenue v. Moore, 722 S.W.2d 367, 373 (Tenn. 1986). While the

Petitioner argues that any subpoena issued pursuant to Tennessee Code Annotated section

40-17-123 is a violation of the prohibition on unreasonable searches and seizures, she

does not provide any authority for the proposition. See State v. Nathaniel P. Carson, No.

M2010-02419-CCA-R3-CD, 2012 WL 1484188, at *15 (Tenn. Crim. App. Apr. 27,

2012) (holding that the affidavits for the judicial subpoenas established nexus and that the

subpoenas did not violate the right against self-incrimination); see also State v. Harrison,

270 S.W.3d 21, 32 (Tenn. 2008) (holding that district attorney general could not use a

subpoena under the statute as a discovery device). The statute requires law enforcement

to submit an affidavit and requires the judge to find that there is a reasonable basis to

believe that a specific criminal offense has been or is being committed, that the

documents requested will materially assist with the investigation of the offense, that there

is a clear and logical nexus between the production and the offense, and that the scope of

the request is not unreasonable. Id. 40-17-123(c), (d). We note, moreover, that the post-

conviction court specifically found that the Petitioner did not challenge the statute as

unconstitutional, and because we have concluded that the post-conviction court correctly

found that the subpoena was not validly issued on other grounds, we do not address the

constitutional argument.

Instead, we hold that the Petitioner cannot in any event show prejudice resulting

from trial counsel’s failure to suppress these records. First, the testimony at the hearing

demonstrates that the State had the victim’s bank records showing that payments were

made to the Petitioner’s Discover card prior to issuing the subpoena. These records

showed the amount of the payment, that the payment was made to Discover, and that the

payment was applied to a card in the Petitioner’s name. The Discover card records

merely corroborated this information. As trial counsel testified, the State had

independent evidence, in the form of the victim’s bank statements, that unauthorized

payments were made from the victim’s bank account to the Petitioner’s credit card

account, and had the records obtained pursuant to the subpoena been suppressed, the

State could subsequently either have sought the records by another avenue or proceeded

with the cumulative evidence drawn from the victim’s bank account.

Moreover, the Petitioner never contested that she made payments to her Discover

card or that the payments came from the victim’s bank account. The Discover records

only confirmed the evidence from the victim’s bank account that payments were made.

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The Petitioner acknowledged as much and instead presented a theory and evidence that

the payments were made inadvertently from the wrong account. Accordingly, even if the

Petitioner had succeeded in excluding the records and even if the State had not found

another means to introduce the records, such as a subsequent subpoena, there is no

reasonable probability that the outcome of the trial would have been different.

II. Evidence of Prior Convictions

The Petitioner asserts that her prior convictions should have been inadmissible

because the crimes, obtaining and attempting to obtain prescription medication by fraud,

were too similar to the crimes for which she was under trial. She contends that trial

counsel was deficient in not having them excluded. The post-conviction court found that

a hearing was held and that the trial court properly determined that the convictions were

admissible.

The record indicates that the trial court found the convictions admissible under

Tennessee Rule of Evidence 404(b) which delineates the admissibility of proof of “other

crimes, wrongs, or acts.” The trial court, in making the initial determination regarding

admissibility while the Petitioner was on the stand, candidly stated that it was unsure

which rule the evidence should be analyzed under and stated that it would look at the

language of the rule later. The court nevertheless found the proof admissible, noting that

the crimes were not particularly similar and that the evidence was probative of credibility.

The trial court found that the probative value was not “substantially outweighed by the

prejudicial effect.” After the close of proof, the trial court returned to the issue, analyzing

the evidence under Rule 404(b). The court determined that the evidence was relevant to

an issue other than character, which was credibility, that the evidence of the past crimes

was clear and convincing, and that the probative value was not outweighed by danger of

unfair prejudice. We note that the determination of the admissibility of prior crimes, and

the findings related to that determination, should properly take place before the evidence

is ruled admissible. See Tenn. R. Evid. 404(b) (“The conditions which must be satisfied

before allowing such evidence are….” (emphasis added)); Tenn. R. Evid. 609(a)(3) (“The

court may rule on the admissibility of such proof prior to the trial but in any event shall

rule prior to the testimony of the accused.”).

We also observe that the evidence here was not offered as substantive evidence

but as impeachment material. See State v. Nathan McKissack, No. 01C01-9804-CC-

00190, 1999 WL 77846, at *7 (Tenn. Crim. App. Feb. 19, 1999) (“Rule 404(b)

specifically governs the admission of evidence of other crimes as substantive evidence.”).

The State did not seek to admit the convictions until the Petitioner chose to testify, and it

merely sought to cross-examine her regarding her convictions, noting that credibility was

important to the resolution of the case. The evidence should properly have been analyzed

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under Tennessee Rule of Evidence 609, which notes that “[f]or the purpose of attacking

the credibility of a witness, evidence that the witness has been convicted of a crime may

be admitted” under certain conditions. Tenn. R. Evid. 609(a). Rule 609(a)(3) requires

notice of the material, which was given here, and directs the trial court to determine upon

request whether “the conviction’s probative value on credibility outweighs its unfair

prejudicial effect on the substantive issues.” To be admissible, the crime must be either

punishable by death or imprisonment in excess of a year or a crime involving dishonesty,

and generally less than ten years must have elapsed between the date of release from

confinement and the subsequent prosecution. See State v. Mixon, 983 S.W.2d 661, 674

(Tenn. 1999). Accordingly, the trial court should have made the predicate factual

findings under Rule 609 and should have made the findings prior to the testimony.

However, in examining the admissibility of the evidence, we conclude that the

Petitioner cannot demonstrate prejudice from any alleged deficiency in the performance

of trial or appellate counsel regarding this issue. See State v. Lankford, 298 S.W.3d 176,

181-82 (Tenn. Crim. App. 2008) (holding that a reviewing court should determine

admissibility under either Rule 404 or Rule 609 if the trial court failed to comply with the

procedural requirements). We note that, despite the procedural deficiencies, the trial

court properly analyzed the similarity of the two crimes and the relevance of the prior

convictions to credibility. See Lankford, 298 S.W.3d at 180-81 (noting that even a prior

conviction identical or similar to the crime at issue may be admissible to impeach,

although the prejudicial effect may be increased by similarity). The Petitioner’s prior

convictions involved fraud and were therefore particularly probative of credibility. State

v. Waller, 118 S.W.3d 368, 371 (Tenn. 2003) (“To determine how probative a felony

conviction is to the issue of credibility, the trial court must assess whether the felony

offense involves dishonesty or false statement.”); State v. Walker, 29 S.W.3d 885, 890

(Tenn. Crim. App. 1999) (noting that dishonesty and false statement are “more directly

related to a defendant’s truthfulness”). Contrary to the Petitioner’s contentions, the prior

convictions were not particularly similar to the crimes for which she was on trial. State v.

Russell, 382 S.W.3d 312, 317 (Tenn. 2012) (holding that prior convictions for passing

worthless checks were not substantially similar to theft charge). Her prior convictions

required a finding that she obtained prescription drugs through “misrepresentation, fraud,

forgery, deception, or subterfuge” but did not have anything to do with theft. See T.C.A.

§ 53-11-416(a). The Petitioner’s theft charges did not involve any sort of deceit or

misrepresentation but merely the unauthorized taking of funds from a bank account. The

theft may have been a crime of dishonesty, but there was no evidence of fraud. The State

properly gave notice that the convictions would be used for impeachment. Accordingly,

the evidence was properly admitted, and there is no reasonable probability that any

failure to challenge or appeal the admission of the evidence affected the outcome of the

trial.

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III. Failure to Call Witnesses

The Petitioner challenges trial counsel’s failure to investigate or to present the

testimony of several witnesses. When a claim of ineffective assistance of counsel is

premised on counsel’s failure to interview or call witnesses, the witnesses must be

presented at the post-conviction hearing. Black v. State, 794 S.W.2d 752, 757 (Tenn.

Crim. App. 1990). “As a general rule, this is the only way the petitioner can establish

that ... the failure to have a known witness present or call the witness to the stand resulted

in the denial of critical evidence which inured to the prejudice of the petitioner.” Pylant,

263 S.W.3d at 869 (quoting Black, 794 S.W.2d at 757). This is because the court cannot

speculate as to what a witness’s testimony might have been. Black, 794 S.W.2d at 757.

Presenting the witness allows the post-conviction court to determine whether that

witness’s testimony would have been credible, material, and admissible. Pylant, 263

S.W.3d at 869-70.

At the post-conviction hearing, the Petitioner presented the testimony of Ms. Tatar

that the victim called approximately twice a month to convey information to Ms. Tatar

which he hoped would result in the Petitioner’s probation being revoked. Ms. Hulan

likewise testified that the victim contacted her multiple times to try to persuade her to

remove herself as the Petitioner’s bondsman based on an allegation that the Petitioner

would flee. Rev. King testified that the victim did not disparage the Petitioner until their

break-up but that he was disparaging afterward. The victim, who had not in the past

objected to Rev. King spending time with his child, threatened her with imprisonment if

she contacted him regarding the child. Moreover, Rev. King testified that the victim had

told her that he did not have a problem with the Petitioner’s spending time with his child

at Rev. King’s home and then subsequently denied the conversation when they next

discussed that the Petitioner would be there. Rev. King also testified that she had paid

the Petitioner’s bills while the Petitioner was in rehabilitation. Mr. Fisher confirmed that

the victim had not been interested in seeing his child while his child was staying with Mr.

Fisher, and he testified that the victim was trying to get custody only to be vindictive.

Trial counsel acknowledged not having interviewed any of these witnesses. He

testified that he did not remember the Petitioner’s requesting him to obtain the testimony

of Ms. Hulan or Ms. Tatar. Trial counsel did not give any reason for not calling any of

these witnesses, although he agreed that inherent in Ms. Tatar’s testimony would be the

revelation that the Petitioner was on probation.

We note that we are somewhat hampered in our review by the paucity of the post-

conviction court’s findings on the issue. The post-conviction court’s analysis on this

issue was limited to two sentences concluding that the victim had been cross-examined

regarding his domestic relationship with the Petitioner and that the issue “was well

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litigated and without merit.” The post-conviction court made no findings on the

credibility of the witnesses called at the hearing, and it made no finding regarding

whether trial counsel was aware of the witnesses and no findings regarding the

circumstances of trial counsel’s decision not to call the witnesses. We read the post-

conviction court’s findings as a determination that there was no prejudice from the failure

to introduce these witnesses.

The evidence at trial established that the Petitioner used the victim’s bank account

to pay her credit card, and the only disputed issue was whether she did so inadvertently.

The testimony of the victim and the Petitioner differed only on a very limited number of

material facts. Most importantly, the Petitioner testified that the victim had paid her

credit card in the past and that the company would therefore have his bank account on

file. The victim disputed this. He acknowledged it was possible he had paid on the

account with a check in the past and speculated that the Petitioner could have gotten his

account number from a check or from a checkbook at his home. However, he also

testified that, immediately prior to trial, he had discovered an additional payment made

from his account to the Petitioner’s card in April. His testimony was that the Petitioner

entered her rehabilitation program almost immediately after the holidays and that her

friend was at his home as a nanny during most of 2009. The Petitioner testified that she

attempted to make one credit card payment in early August under the assumption that the

funds would come from her mother’s account, and she wrote her mother a check to

reimburse her. When this payment could not be processed, she used a different account

on file, assuming it to be hers. She made some investigation into the fact that the funds

were not coming out of her account, but she ultimately used the account again in

November. The Discover card representative testified that a caller would have to give the

entire bank account number. The Petitioner at trial and trial counsel at the post-

conviction hearing testified that the agent’s testimony was incorrect.

The jury ultimately had to make a credibility determination, either to believe that

the victim’s bank account was on file and the Petitioner’s use of it was inadvertent or to

believe that the Petitioner obtained the account number and intentionally used the

victim’s funds. The testimony offered at the post-conviction hearing reflected on the

credibility of the victim to some extent. Ms. King testified that the victim told her that he

did not mind the Petitioner’s being at Ms. King’s home with her daughter and then

subsequently denied having told her that. Ms. King also confirmed that she had paid

some of the Petitioner’s bills prior to her release from the rehabilitation program. While

Ms. Hulan and Ms. Tatar testified regarding the victim’s ill-will toward the Petitioner,

they did not explicitly state that he was dishonest with them. Mr. Fisher testified only

that the victim had little interest in his own daughter and behaved maliciously toward the

Petitioner. We conclude that the testimony regarding the victim’s vindictiveness cannot

establish prejudice. While the victim may have behaved maliciously toward the

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Petitioner, evidence of the victim’s behavior and the couple’s animus was introduced

during trial, and the victim’s behavior ultimately did not have any impact on the question

before the jury: whether the Petitioner was being truthful when she said that she thought

the account she was using to pay her credit card was her own bank account.

The victim’s credibility did have some bearing on this determination because he

initially testified that the Petitioner’s credit card company would not have had his account

on file because he had never made payments to her credit card. However, the victim

ultimately conceded that he may have made a payment by check, and moreover, he

testified on cross-examination that the day before trial, he had discovered a payment from

his account to the Petitioner’s credit card in April 2009. Accordingly, both the Petitioner

and victim agreed that the victim’s bank account was used to pay the Petitioner’s credit

card in August and September 2009, that the victim did not give permission for his

account to be used, and that the victim’s account had previously paid the Petitioner’s

Discover bill. The credibility determination before the jury was not a choice between the

victim’s version of events or the Petitioner’s version. It was instead a choice between

believing the Petitioner’s testimony that the payments were inadvertent or inferring from

the circumstances of the payments that they were intentional. Accordingly, while the

Petitioner’s credibility was very important in reaching a conviction, the victim’s was less

so, because the material aspects of his testimony were either confirmed by financial

records or in agreement with the Petitioner’s testimony. Based on this analysis, we

conclude that the Petitioner has fallen short of establishing prejudice based on trial

counsel’s failure to call witnesses. The ultimate issue at trial centered around the

Petitioner and her awareness that she was using the victim’s bank account. We cannot

say that there is a reasonable probability that if trial counsel had called the witnesses, the

results of the proceeding would have been different.

IV. Appellate Counsel

On appeal, the Petitioner’s main claim regarding appellate counsel is that appellate

counsel was not responsive and did not communicate with her. The Petitioner alleges no

particular prejudice from these alleged deficiencies, and accordingly, she is not entitled to

relief. We note that appellate counsel’s advice to reserve any claim regarding trial

counsel’s ineffectiveness for post-conviction, which the Petitioner challenged, was sound.

This is because “the practice of raising ineffective assistance of counsel claims on direct

appeal is fraught with peril since it is virtually impossible to demonstrate prejudice as

required without an evidentiary hearing.” State v. Blackmon, 78 S.W.3d 322, 328 (Tenn.

Crim. App. 2001) (quotations omitted).

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V. Cumulative Error

The Petitioner also asserts cumulative error. This court has previously held that a

petitioner “who has failed to show that he received constitutionally deficient

representation on any single issue may not successfully claim that his constitutional right

to counsel was violated by the cumulative effect of counsel’s errors.” Tracy F. Leonard

v. State, No. M2006-00654-CCA-R3-PC, 2007 WL 1946662, at *21 (Tenn. Crim. App.

July 5, 2007) (citing cases). The Petitioner does not explain which errors combined to

deprive her of the constitutional right to counsel, resulting in prejudice, and she is not

entitled to relief.

CONCLUSION

Based on the foregoing analysis, we affirm the judgment of the post-conviction

court.

_________________________________

JOHN EVERETT WILLIAMS, JUDGE

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