Vern Braswell v. State of Tennessee

04/09/2018

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

October 3, 2017 Session

VERN BRASWELL v. STATE OF TENNESSEE

Appeal from the Criminal Court for Shelby County

No. 05-03038 Paula L. Skahan, Judge

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No. W2016-00912-CCA-R3-PC

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The Petitioner, Vern Braswell, appeals the post-conviction court’s denial of his petition

for post-conviction relief in which he challenged his conviction for second degree murder

and his twenty-four-year sentence. On appeal, the Petitioner contends that he received

ineffective assistance of counsel at trial and that the State violated Brady v. Maryland,

373 U.S. 83 (1963), by failing to provide the defense with statements of witnesses, items

recovered from the Petitioner’s home, and the contents of a sealed envelope that was

discovered during the pendency of post-conviction proceedings. Upon reviewing the

record and the applicable law, we affirm the judgment of the post-conviction court.

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

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

WOODALL, P.J., and NORMA MCGEE OGLE, J., joined.

Lauren M. Fuchs, Memphis, Tennessee, for the appellant, Vern Braswell.

Herbert H. Slatery III, Attorney General and Reporter; Rachel W. Willis, Deputy

Attorney General; Jonathan H. Wardle, Assistant Attorney General; Amy P. Weirich,

District Attorney General; and Marques Young and Pam Stark, Assistant District

Attorneys General, for the appellee, State of Tennessee.

OPINION

FACTUAL AND PROCEDURAL BACKGROUND

The Petitioner was charged with first degree premeditated murder for killing his

wife, Sheila Braswell, by manual strangulation. The Petitioner argued at trial that the

victim’s death was accidental and occurred after he and the victim engaged in erotic

asphyxiation. The jury convicted the Petitioner of second degree murder, and the trial

court sentenced him to twenty-four years as a Range I, standard offender. This court

affirmed the Petitioner’s conviction and sentence on direct appeal. See State v. Vern

Braswell, No. W2006-01081-CCA-R3-CD, 2008 WL 238014, at *1 (Tenn. Crim. App.

Jan. 28, 2008), perm. app. denied (Tenn. Aug. 25, 2008).

Trial Proceedings

The evidence presented at trial was summarized by this court in its opinion on

direct appeal as follows:

Pauline Washburn testified that her daughter Sheila Braswell, the

victim, had been married to Defendant for ten years, and the couple had two

young sons. Defendant and the victim resided together with their children

in Cordova, Tennessee. Ms. Washburn said that she received a telephone

call from Defendant on November 5, 2004, at 4:34 a.m. Defendant told

Ms. Washburn that the victim was not breathing. Defendant said that he

had fallen asleep around 1:30 a.m., and when he woke up at approximately

3:30 a.m., the victim was floating in the bathtub.

Ms. Washburn drove to her daughter’s residence where several

people had already gathered. Ms. Washburn and Defendant sat together on

the living room couch for a few minutes. Defendant was wearing a white

terry cloth robe which was wet. Defendant, who was crying, said that the

victim had taken a bath after the couple had sexual intercourse and

Defendant had fallen asleep. Defendant said that sometimes after sexual

intercourse, the victim’s hip would hurt, and she got into the Jacuzzi

bathtub to relieve the cramps. Ms. Washburn said that Defendant kept

saying, “I should have never let her get in the tub.” Ms. Washburn did not

understand why Defendant made this statement if a bath after sexual

intercourse was not unusual in the victim’s routine.

Ms. Washburn said that the victim was approximately four feet,

eleven inches tall and weighed between one hundred and twenty-five and

one hundred and thirty pounds. Ms. Washburn returned to her daughter’s

residence the following day to retrieve some of the victim’s personal

property and clothes for the victim’s two sons. Ms. Washburn found some

mail in a bag in the kitchen. The mail included a copy of a divorce decree,

a request for an order of protection dated April 1996, a one hundred-dollar

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bill and a twenty-dollar bill, and a check in the amount of $288.50, made

payable to the victim’s divorce attorney.

Angela Tall Snyder testified that she and the victim worked part-

time providing in-home spa treatments. Ms. Snyder stopped by the

victim’s house on November 4, 2004, at approximately 10:00 p.m. The

victim was talking on the telephone. Ms. Snyder said that she stayed

approximately thirty minutes and did not see Defendant or his car during

this time.

Roosevelt Coleman, a communications supervisor with the Memphis

Police Department, maintains the documentation of 911 calls placed to the

department’s dispatchers. Mr. Coleman said that an event chronology is

generated by the computer as soon as a 911 call is received, and a time

factor is assigned for the call as soon as possible. The time assigned to

Defendant’s 911 call was 3:57 a.m. The event was closed at 7:43 a.m.

when responding officers were placed back into service. On cross-

examination, Mr. Coleman acknowledged that the dispatcher had noted on

the event chronology that Defendant was hysterical and screaming during

the telephone call.

Lieutenant Fred Jackson, with the Memphis Fire Department, was

the first responder to arrive at the crime scene. Defendant was standing

outside the residence wearing a white bathrobe. Lieutenant Jackson

followed Defendant into the couple’s bedroom. The victim was in the

adjacent bathroom’s bathtub, with the lower part of her body inside the

bathtub, and the upper half of her body hanging over the edge. Lieutenant

Jackson said that the victim had no visual signs of life. Lieutenant Jackson

and an emergency medical technician lifted the victim out of the tub and

placed her on the bedroom floor.

Lieutenant Jackson said that he attempted to console Defendant who

kept asking what the emergency medical technicians could do for the

victim. Lieutenant Jackson stated that Defendant commented that he

“shouldn’t have let her have that drink or [he] should have awakened [her]

or something to that effect.” Defendant made and received several cell

phone calls while he was with Lieutenant Jackson. Lieutenant Jackson did

not remember seeing any children in the home.

Lieutenant Jackson testified that he noticed that the air in the

bathroom was humid and moist when he arrived and that the water in the

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bathtub was warm. Lieutenant Jackson said that the victim was a small

woman, and it was not difficult to lift her out of the bathtub. Lieutenant

Jackson added that the victim’s legs appeared to be stiff.

Baba Tanzy, an emergency medical technician with the Memphis

Fire Department, testified that he and a paramedic, Matthew Wayne Hamm,

accompanied Lieutenant Jackson to the Defendant’s residence. They

arrived at approximately 4:00 a.m. Mr. Tanzy said that Defendant told him

that the victim had taken a bath around 2:00 a.m. after the couple had

sexual intercourse. Defendant woke shortly before 4:00 a.m. and

discovered the victim in the bathtub. Mr. Tanzy said that the water in the

bathtub was warm when he arrived. Mr. Tanzy noticed small red marks on

each side of the victim’s neck and broken blood vessels in her eyes, which

indicated to Mr. Tanzy that the victim had died by suffocation or

asphyxiation. Mr. Tanzy said that the victim’s arms were stiff.

Mr. Hamm testified that the victim showed no signs of life when the

medical personnel arrived, and she was in rigor mortis. Mr. Hamm stated

that the victim had a condition in her eyes known as petechiae which

consisted of broken blood vessels in the cornea. Mr. Hamm said that this

condition indicated that the victim had suffered a strangulation trauma. Mr.

Hamm noted three red marks on the victim’s neck and stated that the froth

in the victim’s mouth indicated the presence of water in the victim’s lungs.

Mr. Hamm said that the water in the bathtub was hot. He checked the

water’s temperature at 5:07 a.m. and it measured 94.6 degrees Fahrenheit.

Officer David Galloway with the Memphis Police Department testified that

the bathtub was five feet, one inch long, and two feet, ten inches deep.

Sergeant Andrew Kjellin, with the Memphis Police Department’s

felony response unit, arrived at Defendant’s home at approximately 5:30

a.m. Defendant told Sergeant Kjellin that his wife had taken a bath after he

fell asleep around 1:30 a.m., that he woke up between 3:40 a.m. and 3:50

a.m., and that he discovered the victim in the bathtub. Defendant said that

he called a friend named Brian, and then called 911. Defendant told

Sergeant Kjellin that he could not lift the victim out of the bathtub.

Sergeant Kjellin said that Defendant, in a separate vehicle, followed him

back to the police station to make a statement. On cross-examination,

Sergeant Kjellin acknowledged that he did not notice any wounds on

Defendant, and that there were no signs of a struggle at the crime scene.

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Sergeant William D. Merritt, with the Memphis Police Department’s

homicide squad, testified that Defendant arrived at the police station with a

friend on November 5, 2004, between 8:30 and 8:45 a.m. Defendant was

advised of his Miranda rights and he executed a written waiver of those

rights. In his written statement, Defendant said that he and the victim

were in the Jacuzzi together around midnight. Relaxing and

bathing. We began getting intimate and engaging in sex. As

a result of an inadequate amount of lubrication, we continued

sex in the bedroom and in the bed. At approximately 1:30

a.m. we stopped and joked about who was going to let the

water out of the Jacuzzi. She commented about an aching

cramping pain in her abdomen. Then she got up and walked

with a limping motion to the bathroom. And shortly

thereafter, I heard in the bathroom [the] Jacuzzi faucet, as

well as the Jacuzzi jets turn on. At which time or shortly

thereafter, I fell asleep. It was approximately 1:30 a.m. to

1:40 a.m. At approximately 3:50ish to 4:00 a.m., I noticed

that she wasn’t in the bed. I went to check on her and she

was somewhat submerged in the water. I called 911 and

Brian James as well as a host of other family and friends

trying to get help.

Defendant said that the air jets in the bathtub were still operating

when he found the victim, and he added that the victim’s head and face

were under water. Defendant stated that he noticed that “the pink bath

pillow with suctions” had detached from the bathtub and was floating in the

water. Defendant said that the victim had drunk one twelve-ounce bottle of

Skyy Blue malt beverage before midnight and another bottle while they

were in the bathtub. Defendant said that it was not unusual for the victim to

fall asleep in the bathtub while the air jets were operating. Defendant stated

that he attempted to get the victim out of the bathtub but was unsuccessful.

Sergeant Merritt said that Defendant was crying and emotional

during the interview, and he received and made several calls on his cell

phone while he was at the police station. Sergeant Merritt said that

Defendant did not mention that he and the victim had engaged in the

practice of erotic asphyxiation that evening. Defendant was arrested on

November 6, 2004.

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Sergeant Merritt said that after his arrest, Defendant’s telephone

calls were monitored while he was incarcerated in the county jail.

Defendant made approximately thirty-five calls over a two-month period.

During the telephone conversations, Defendant commented that “the

soldier” was underground. Sergeant Merritt believed that Defendant was

referring to his girlfriend, Kristie Woods, and meant that Ms. Woods could

not be found. Later, Defendant called Ms. Woods at her place of

employment and told her to refer to herself as Defendant’s cousin when she

called him. Defendant also told Ms. Woods to send him letters at his

mother’s address. Defendant discussed the victim’s life insurance with his

mother, who told him that the insurance proceeds were not being released

because of the murder investigation. The tape of Defendant’s telephone

conversations while he was in jail was introduced as an exhibit at trial and

played for the jury.

Robert D. Burton, a service manager for Watson’s Pools and Spas,

explained the operation of a bathtub outfitted with air jets such as the one in

Defendant’s residence. Mr. Burton testified that after the bathtub is filled

with hot water, air is pumped into the water through the jets. The air cools

the bath water quickly, and more hot water generally has to be added in

approximately fifteen to twenty minutes. Mr. Burton stated that if the air

jets in a bathtub ran for two hours, the water would be cold at the end of the

period. If the jets were turned off, the water temperature in the bathtub

would fall to approximately eighty degrees over a period of two hours.

Benjanette Sturdevant, with Nextel Communications, identified the

telephone records pertaining to Defendant’s cell phone number. Ms.

Sturdevant testified that according to her records, the first call on

November 5, 2004, from Defendant’s cell phone was placed at 3:55 a.m.

and twenty-five calls were made between 3:55 a.m. and 4:40 a.m. Of these,

seventeen calls were made to telephone number 901-737-6100, and two

calls were made to telephone number 901-484-8568.

Lieutenant John E. Mitchell, with the Memphis Police Department,

testified that he knew Defendant socially and that he and Defendant were

members of a professional fraternity, Omega Psi Phi. Lieutenant Mitchell

said that his home telephone number was 901-737-6100, and his cell phone

number was 901-484-8568. Lieutenant Mitchell said that he was in Texas

on November 5, 2004. When he awoke that morning, Lieutenant Mitchell

noticed that he had missed several telephone calls from a number reflected

on his caller identification. Lieutenant Mitchell dialed that telephone

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number at approximately 6:00 a.m., and Defendant answered. Defendant

was distraught and told Lieutenant Mitchell that his wife was dead.

Lieutenant Mitchell was unaware that Defendant had called him numerous

times that morning before Lieutenant Mitchell returned the call.

Officer Myron Fair, with the Memphis Police Department, was also

a member of the Omega Psi Phi fraternity. Officer Fair discovered that he

had missed a telephone call from Defendant on November 5, 2004, which

had been made sometime before he woke up. Officer Fair returned the call

between 9:00 and 9:30 a.m. Defendant told Officer Fair that he could not

talk because he was about to give his statement to the police. Defendant

said, “[T]hese people think I killed my wife.” Defendant did not mention

to Officer Fair or Lieutenant Mitchell that the victim died after engaging in

erotic asphyxiation.

Officer Troy Walls, with the Millington Police Department, testified

that he responded to a 911 call placed by the victim on April 17, 1996. He

found the victim upset and crying when he arrived at the victim’s residence

at approximately 11:30 p.m. Officer Walls observed a scratch over the

victim’s right eye and on her right arm, and her face was flushed. The

victim told Officer Walls that Defendant had hit her and held her in a choke

hold. There were signs of an altercation in the town house. Officer Walls

said that Defendant was not in the house when he arrived, and he advised

the victim to obtain a warrant for his arrest.

William Mangum, the custodian of the records for the Shelby

County Circuit Court, identified an order of protection against Defendant

which was requested by the victim on April 19, 1996. In the protection

order, which was introduced as an exhibit at trial, the victim stated that

during an argument, Defendant slapped and choked her, cutting off her air

supply. An order of protection was entered on May 10, 1996.

Mr. Mangum also identified a complaint for divorce filed by the

victim on June 15, 2004. Mr. Mangum said that his records showed that an

order for nonsuit was entered in this case on November 9, 2004.

Dr. Joye Maureen Carter performed an autopsy on the victim on

November 5, 2004. Dr. Carter was informed before the autopsy began that

the victim had died as a result of an accidental drowning. Dr. Carter

testified, however, that the victim’s neck injuries and the presence of

hemorrhaging in her eyes indicated that the cause of death was not an

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accidental drowning. Dr. Carter said that the victim had petechiae, or

pinpoint hemorrhages, all over her face, including her neck, the lining of

the lips, and the gums. Dr. Carter explained that petechiae are caused by an

increased pressure on the capillaries.

Dr. Carter observed oval-shaped contusions on the victim’s neck.

An examination of the interior of the neck revealed patchy hemorrhaging

under all six layers of the neck’s muscles. Hemorrhaging was also present

in the soft tissue of the pharynx. Petechiae were present throughout the

voice box and vocal chords. Dr. Carter stated that these injuries were

consistent with manual strangulation. The absence of white blood cells at

the injury sites indicated that the injuries were recently inflicted.

Dr. Carter said that some water was present in the victim’s lungs, but

not of a quantity to suggest that the victim’s death was caused by drowning

rather than strangulation. Dr. Carter acknowledged that it was possible for

water to be present in the lungs if the victim was strangled in water. Dr.

Carter said that the skin on the bottom of a person’s hands and feet wrinkles

when submerged in water because the water soaks in between the layers of

skin. Dr. Carter said that such wrinkling usually occurs, whether the person

is alive or dead, within fifteen to twenty minutes of being submerged in

water. Dr. Carter said that an examination of the victim’s hands and feet

revealed only a minimal amount of wrinkling and did not support a finding

that the victim had been submerged in water for a significant length of time.

Dr. Carter said that constant pressure around the neck would lead to

death in three to seven minutes. Dr. Carter observed some early signs of

rigor mortis when the autopsy was performed at approximately 9:00 a.m.

on November 5, 2004. Dr. Carter said it was her understanding that the

victim’s body had been discovered approximately six hours earlier, and

signs of rigor mortis generally became evident approximately six hours

after death. Based on her findings, Dr. Carter estimated that the time of

death was between the time of the discovery of the body to one or two

hours earlier. Dr. Carter stated that no drugs or alcohol were found in the

victim’s body.

Dr. Carter said that she had performed autopsies on people who had

died from erotic asphyxiation. Dr. Carter said that a crime scene

investigation was very important to determine if the death resulted from

such activity. Dr. Carter said that she usually looked for ligatures,

pornography, or signs of a safe escape such as something that needs to be

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pulled to release the choking. Dr. Carter said that generally the victim is

found in the position where they accidentally asphyxiated. Dr. Carter

stated that the victim’s injuries were not consistent with a death from erotic

asphyxiation because there were multiple injuries to the victim’s neck

muscles as opposed to a pattern made by some type of ligature.

On cross-examination, Dr. Carter acknowledged that there were no

fractures present in the victim’s thyroid cartilage or hyoid bone, and there

were no defensive wounds. The victim’s acrylic fingernails were not

damaged. Dr. Carter disagreed that the victim’s injuries were consistent

with the application of a choke hold. Dr. Carter stated that placing the

victim in a choke hold by using the forearm would have inflicted a wider

distribution of pressure related injuries as opposed to the individual areas of

injury found in the victim’s body.

Kristie Woods testified that she met Defendant in the spring of 2002,

and the couple dated until the victim’s death. Ms. Woods said that she and

Defendant were involved sexually during this period of time. Defendant

told Ms. Woods that he was married around Thanksgiving 2002, but she

decided to continue the relationship. After Ms. Woods graduated from

college in 2003, Defendant subsidized the cost of her apartment. In

October 2004, Defendant told Ms. Woods that he would “make things

right.” Ms. Woods believed at this time that Defendant meant that he

would leave the victim.

Ms. Woods said that she and Defendant belonged to a social

motorcycle club. Defendant also owned a business which rented a facility

for parties and gatherings. Ms. Woods helped with the business but was

not paid for her services. The funds generated by the rental business were

used to support the motorcycle club’s activities. Ms. Woods said that she

saw the victim at a motorcycle sports track one time when Ms. Woods was

with Defendant.

In June 2004, Ms. Woods and Defendant attended a party together.

Ms. Woods said that Defendant became upset with her because she was

dancing with other people. They argued, and Defendant put his hands

around her neck and applied pressure. Defendant told Ms. Woods not to

call him anymore. Ms. Woods responded, “okay,” and left the party.

Ms. Woods said that she called the victim as she drove away from

the party. She told the victim who she was and gave the victim directions

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to her apartment. After the victim arrived at Ms. Woods’ apartment, the

two women drove to a local fast food restaurant to talk. Ms. Woods said

that Defendant repeatedly called her on her cell phone while she and the

victim were talking, but Defendant did not know that Ms. Woods was with

the victim. Ms. Woods arrived back at her apartment around 6:00 a.m., and

Defendant arrived shortly thereafter. Defendant confronted Ms. Woods

about calling the victim and then left. Ms. Woods said Defendant kept

calling her after the incident, and a few days later the two resumed their

relationship.

In September 2004, Defendant confronted Ms. Woods about a man

she had met at a Labor Day party. Defendant obtained a copy of Ms.

Woods’ telephone records and argued with her when Ms. Woods returned

from a weekend trip to Mississippi where the man attended college. Ms.

Woods said that Defendant grabbed her by the arms and threw her on the

couch, and then banged her head against the wall. Ms. Woods managed to

escape his grasp, and they wrestled in front of the couch. Defendant

grabbed her by the neck and banged her head against a glass table as he

applied pressure to her neck. Ms. Woods said that Defendant then left the

apartment.

Ms. Woods acknowledged that she slashed the victim’s car tires in

September 2004, because she was angry with Defendant. Ms. Woods left

the victim $120 in cash in her mailbox to cover the cost of replacing the

tires. Ms. Woods said that she resumed her relationship with Defendant

after the September altercation and continued to have contact with him after

his arrest until June 2005.

Ms. Woods said that she did not know what the term “erotic

asphyxia” meant before the trial. Ms. Woods acknowledged that Defendant

sometimes placed his forearm against Ms. Woods’ neck while they had

sexual intercourse. Ms. Woods said that Defendant would apply pressure

to her neck but not to a great extent.

Ms. Woods said that Defendant was at her apartment on the evening

of November 4, 2004, and left at approximately 8:45 p.m. to meet a

repairman at the motorcycle club. Ms. Woods telephoned Defendant

between 10:30 and 11:00 p.m. to tell him that she was going to bed. Ms.

Woods said that Defendant told her that he was driving home from the club.

Ms. Woods acknowledged that she avoided the investigating officers for a

period of time after Defendant’s arrest.

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On cross-examination, Ms. Woods said that her nickname in the

motorcycle club was “the soldier.” Ms. Woods said that she and Defendant

were open about their relationship with the other members of the club, and

the victim knew about her relationship with Defendant before Ms. Woods

called her….

Ms. Woods said that it was not unusual for Defendant to make

numerous cell phone calls during any given day. Ms. Woods said that she

was not able to reach Defendant immediately on November 5, 2004. When

she finally got through, Defendant was crying and hysterical.

Ms. Woods acknowledged that Defendant had not taken any steps to

end his marriage during their relationship, and she was under the

impression that Defendant and the victim would continue to live together.

Ms. Woods said that she was not afraid that Defendant would hurt her. Ms.

Woods stated that she was aware of Defendant’s reputation in the

community and said that Defendant “was always trying to lend a helping

hand.”

On redirect examination, Ms. Woods said that she did not know

either Lieutenant Mitchell or Officer Fair. Ms. Woods admitted that she

was not aware of Defendant's altercation with the victim in 1996 which led

to the issuance of an order of protection. Ms. Woods said that Defendant

told her in June 2004 that the victim had filed for divorce. Ms. Woods

added that she was not aware that Defendant had two other prior physical

altercations with the victim. Ms. Woods said that she was not aware that

Defendant had been convicted of assault in 1990 and misdemeanor theft in

1992. Ms. Woods testified that knowing these facts would change her

opinion about Defendant's reputation in the community.

On recross-examination, Ms. Woods said that the victim did not

mention any of her prior altercations with Defendant during their

conversation in June 2004.

Sheronda Smith, the victim’s friend, testified that she and the victim

talked to each [other] several times each day by telephone. Ms. Smith

talked to the victim at approximately 9:00 p.m. and again at approximately

11:00 p.m. on November 4, 2004. Ms. Smith helped straighten up the

victim’s bedroom and bathroom during the afternoon of November 5, 2004.

Ms. Smith said that the bathtub was still filled with water. When the water

was drained, Ms. Smith found some hair which she believed to be that of

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the victim and the victim’s earrings. Ms. Smith said that she also found

what appeared to be another earring in the bottom of the tub. Ms. Smith

stated that earlier that afternoon, Defendant told her he had lost his nipple

ring. Defendant went into the bedroom to search for the ring but could not

find it.

On cross-examination, Ms. Smith said that she accompanied

Defendant and the victim to North Carolina. Ms. Smith said that there was

a display at the hotel with sadomasochistic overtones, and that Defendant

appeared interested in the display. Ms. Smith said that she was aware that

Defendant had pierced his nipples.

Vera Cole, Defendant’s sister-in-law, testified that the victim came

to her house one night between 10:00 p.m. and 11:00 p.m., crying and

upset. The victim told Ms. Cole that Defendant had pulled her down a

flight of stairs by her hair.

Ms. Cole said that she and her husband had a fight on November 4,

2004, and Mr. Cole left the house without his cell phone. Ms. Cole said

that the cell phone rang at approximately 1:36 a.m. and again at 1:38 a.m.

Defendant’s cell phone number was displayed on the caller identification,

so Ms. Cole did not answer the calls. Ms. Cole thought her husband had

gone to Defendant’s house and was calling her on Defendant’s cell phone.

On cross-examination, Ms. Cole acknowledged that the two telephone calls

did not appear on the telephone records introduced as exhibits but insisted

the calls were placed with Defendant’s cell phone.

Magra Harden testified that she had known the victim since 1993

when the two women were students at The University of Tennessee. The

victim lived with Ms. Harden during the spring and summer of 1995 while

Defendant was a patient at a rehabilitation facility in Shelby County. Ms.

Harden said that the victim came home one night after visiting Defendant at

the facility upset, confused, and distraught. The victim told Ms. Harden

that Defendant had choked her during an argument. Ms. Harden said that

both sides of the victim’s neck were discolored, and the victim's voice was

raspy.

Defendant testified on his own behalf. Defendant stated that he and

the victim met at a party at college and dated for two or three years before

they married. Defendant said he has a master’s degree from the University

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of Memphis in administration and supervision. At the time of the incident,

Defendant was the assistant principal at Hanley Elementary School.

Defendant acknowledged that he struck the victim in 1995 during an

argument but denied that he dragged her down a flight of stairs. Defendant

said that the victim lived with Ms. Harden for a period of time during their

marriage, and the victim had an affair during this time. Defendant found

some letters from the man and confronted the victim. Defendant said the

couple argued and he “snapped.” Defendant acknowledged that he hit the

victim and held her in a choke hold on this occasion. Defendant said that

he did not have any other altercations with the victim prior to her death.

Defendant testified that he and the victim had grown apart when he

met Ms. Woods. Defendant said the relationship at first was just sexual,

but he and Ms. Woods grew fond of each other. Defendant told Ms. Woods

that he was married when the relationship became serious. Defendant

stated that Ms. Woods grew obsessive about the relationship during the

spring of 2004. Ms. Woods would telephone the victim and hang up. She

also sent the victim text messages and e-mail. During the party in June

2004, the victim called Defendant and told him she was still getting

messages from Ms. Woods. Defendant grew angry, grabbed Ms. Woods,

and told her to leave his family alone. Defendant pushed Ms. Woods away

and left the party.

Defendant’s tenth wedding anniversary occurred during the Labor

Day weekend. Ms. Woods was upset and slashed the victim’s tires.

Defendant went to Ms. Woods’ apartment and confronted her about the

incident. Defendant said he grabbed Ms. Woods and told her to leave the

victim alone. Defendant denied that he banged Ms. Woods’ head against a

table or the wall.

Defendant said that he and the victim learned about various sexual

practices from pornography and felt their experiments were

“adventuresome.” Defendant stated that he and the victim frequented a

“swingers club” in Shelby County. Defendant added that the victim first

suggested that they engage in erotic asphyxiation. Defendant testified that

he would get behind the victim and place his arm around her neck,

sometimes with his hands against the side of her neck. Defendant said that

the victim would signal him with her fingers. If his hold was too tight, the

victim would tap her fingers; if his hold was too loose, the victim would

pinch him. When her fingers grew limp, Defendant would release his hold.

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Defendant said that the choking sensation heightened sexual pleasure.

Defendant added that after he released his choke hold, he would lay the

victim down until she “came around.” Defendant said that they had

engaged in the practice for approximately two years on a weekly basis.

On November 4, 2004, Defendant attended football practice with his

sons, then returned home. Defendant said that he went to his club after

dinner to meet a repairman. Defendant left the club at approximately 10:45

p.m. He received a telephone call from Ms. Woods at 10:57 p.m. After he

arrived home, Defendant and the victim took a bath together which

eventually led to sexual activities. The victim took a bath and then woke

Defendant up at approximately 2:45 a.m. The victim asked for a “fixie,”

her term for erotic asphyxiation. The couple got into the bathtub and turned

the air jets on. Defendant said the water was very hot. Defendant

proceeded to choke the victim. When her fingers grew limp, he released his

hold and laid her back in the water with an inflatable pillow beneath her

head. Defendant said that he went to bed and dozed off. He woke up

between 3:45 and 3:50 a.m. and noticed that the victim had not come to

bed. He went into the bathroom and found the victim submerged in the

bath water.

Defendant said that he tried to lift the victim out of the water by

grabbing her around the neck area and then around the waist, but he was

unsuccessful. Defendant said that every time he let go of the victim,

something pulled her back into the water. Defendant believed the victim’s

hair may have been caught in one of the air jets.

Defendant acknowledged that he made numerous cell phone calls

after he discovered the victim’s body. He said he called Captain Fifer

because Captain Fifer had told Defendant to call him if he ever needed

help. Defendant said that he did not tell the investigating officers that he

and the victim had engaged in erotic asphyxiation because the victim would

not have wanted him to disclose that activity. Defendant said his counsel

then advised him not to make any more statements to the police.

Defendant identified several “sex toys” which were present in the

couple’s bedroom at the time of the incident. Defendant acknowledged that

he discussed the victim’s insurance policy while he was confined in the

county jail. Defendant said his mother asked about the release of the

proceeds because she had the custody and care of Defendant’s sons.

Defendant said that he never intended to end his marriage with the victim.

- 14 -

He acknowledged that he had previously attended a rehabilitation facility as

a result of alcohol and cocaine abuse. Defendant said that he had been

sober for ten years.

Defendant denied that he intentionally killed his wife, or that he

choked her to death in anger. When asked if the victim’s death was an

accident, he responded, “Yes.”

On cross-examination, Defendant said that he was five feet, four

inches tall and weighed between 170 and 175 pounds at the time of the

victim’s death. Defendant acknowledged that the victim visited him at the

rehabilitation center, but he denied that he choked her on this occasion.

Defendant said that his relationship with Ms. Woods ended in June or July,

2004. Defendant conceded he continued to see Ms. Woods on a friendship

basis. Defendant acknowledged that there were two bottles of Skyy Blue

malt beverage in the bedroom and bathroom, and he said that the victim

drank the alcohol. Defendant said that he later found his nipple ring inside

his shirt, and the ring was not the one found in the bathtub after the victim’s

death.

Dr. Mark Schwartz testified that he is a psychologist, with a doctor

of science degree, specializing in sexual and relational therapy. Dr.

Schwartz is also a member of the faculty of the St. Louis University’s

Department of Psychiatry and teaches a course in sexual medicine. Dr.

Schwartz’s specialty has been in the areas of sexual trauma, sexual

deviation, and sexual offenders. Dr. Schwartz defined erotic asphyxiation

as the limiting of oxygen to the brain during orgasm. The activity

decreases dopamine, increases the endorphin, and enhances sexual arousal.

Like most addictions, participants develop a tolerance level which leads to

increased risk taking and increased risk of death or an accident.

Participants also engage in the activity with increased frequency.

Dr. Schwartz said that he met with Defendant for two and one-half

hours the night before the trial. He stated that the use of the forearm to

increase pressure on the partner’s throat was an effective form of erotic

asphyxiation. Dr. Schwartz said that a distinguishing feature of a crime

scene involving erotic asphyxiation as opposed to suicide or homicide by

strangulation was the presence of ligatures or sexual devices such as dildos

and whips. Dr. Schwartz said that participants in the activity were almost

always involved in other excitement inducing activities such as riding

- 15 -

motorcycles or deviant sexual activities such as swingers clubs. Body

piercing was also common among participants of erotic asphyxiation.

Dr. Schwartz said that Defendant’s explanation of the use of hand

signals to control the application and release of pressure around the neck

supported his credibility because someone who had not engaged in erotic

asphyxiation would not grasp the significance of anticipating a signal for

release. Dr. Schwartz explained that the problem with the system described

by Defendant was that the partner waits longer and longer before signaling

release, and it was a “lethal kind of system that they used.”

Dr. Schwartz stated that as a result of his interview with Defendant

and review of the material which had been introduced into evidence, it was

his opinion that the victim’s death was an accident due to erotic

asphyxiation.

On cross-examination, Dr. Schwartz verified that he was not a

medical doctor.

Vern Braswell, 2008 WL 238014, at *1-11.

Post-Conviction Proceedings

The Petitioner filed a pro se petition for post-conviction relief in which he claimed

that trial counsel was ineffective at trial and that the prosecution engaged in multiple acts

of prosecutorial misconduct, including the failure to disclose favorable evidence to the

defense. The post-conviction court appointed attorney Ms. Taylor Eskridge to represent

the Petitioner, and Ms. Eskridge filed an amended petition in August 2009. In March

2011, Assistant Attorney General Doug Carriker filed a response to the petition, and an

evidentiary hearing was scheduled for July 2011.

During an April 20, 2011 report date, Ms. Eskridge requested that the evidentiary

hearing be continued. During a bench conference, the following exchange occurred:

GENERAL CARRIKER: I need to sit down with [Assistant Attorney

General Glen] Baity and review with him, regarding what he wants her to

get from me. There is some of this stuff that I am not comfortable just

handing over in Court, so I’ll need someone else to review it, too. And that

is partly because [District Attorney General Amy] Weirich had things

marked as, “not exculpatory,” in bold letters in an envelope and it is sealed.

- 16 -

And I want to make sure that before I hand something over that I am not

going to—

THE COURT: Oh, my gosh.

MS. ESKRIDGE: Now of course, that wets my appetite, I’m like, what’s

in the envelope?

THE COURT: For all I know you can file a freedom of information act

request for all of that.

GENERAL CARRIKER: And [General] Baity has called me this morning,

called me in to make an open file discovery, but I want to meet with him

and sit down and show him what he’s requesting that we—but, we did find

a couple of things that he had questioned the day we met and I want to

show him what—to make sure I’m doing the right thing and not getting

myself in trouble with the State, whatsoever.

General Carriker also stated that he needed time to review the file and locate additional

items requested by the Petitioner. The post-conviction court agreed to continue the

evidentiary hearing.

During a report date on July 1, 2011, General Carriker informed the post-

conviction court that he still needed to meet with General Weirich, explaining, “I’ve got

to meet with her and let her review it, she was the trial lawyer and I want to get with her

before I turn over things that she says I shouldn’t be turning over.” On July 28, 2011, the

post-conviction court entered an order allowing Ms. Eskridge to withdraw as counsel for

the Petitioner and for current post-conviction counsel to be substituted as attorney of

record.

During a February 13, 2013 report date, post-conviction counsel reported to the

post-conviction court that counsel and Assistant Attorney General Marques Young, the

prosecutor who had since been assigned the case, met and determined that General

Young needed to speak with General Carriker, the prosecutor on the case “two

prosecutors ago,” to obtain “the full story on who has dealt with this and what’s going on

in the case.” The Petitioner filed an amended petition on August 2013. The Petitioner

raised additional claims of ineffective assistance of counsel and that “[t]he State failed to

produce exculpatory evidence in this matter. Since such failure to produce, the evidence

has not been able to be located.”

- 17 -

During a bench conference at a report date on October 11, 2013, post-conviction

counsel discussed “an envelope that had a sticky writing on the front of it that said,

something along the lines of, what [Ms. Eskridge] remembered it saying was, ‘Do not

turn over to defense counsel.’” Post-conviction counsel reported that she and General

Young reviewed the State’s file and were unable to locate the envelope. Post-conviction

counsel stated that General Young and General Carriker then searched the file and found

something that might be the item for which they were searching but that the item

appeared different from what both General Carriker and Ms. Eskridge recalled. While

the post-conviction court stated that it recalled the discussion of the item, the court could

not recall whether an order was ever entered requiring the State to turn the item over to

the Petitioner and suggested that the parties review the filings.

Evidentiary hearings were held throughout 2014, 2015, and 2016. During this

time period, the Petitioner filed multiple amended petitions raising additional claims of

ineffective assistance of counsel and prosecutorial misconduct due to the State’s failure to

provide as exculpatory evidence the items from the sealed envelope, statements from

witnesses, and other documents.

The Petitioner’s Proof

General Carriker testified that he was a prosecutor in the post-conviction court’s

courtroom in 2011 and was assigned to the Petitioner’s post-conviction case by the

division leader, Assistant District Attorney General Glen Baity, in February 2011. Upon

receiving the case, he spoke to Ms. Eskridge and learned that none of the prosecutors

who had previously been assigned the case had filed a response to the post-conviction

petition or allowed her to see the State’s file. General Carriker subsequently filed a

response to the Petitioner’s petition.

General Carriker met with Ms. Eskridge on two occasions as his office. He and

Ms. Eskridge spent the first meeting determining the progress of the case and the tasks

that needed to be completed. During the second meeting on April 4, 2011, they reviewed

the State’s files, which consisted of two large accordion files. General Carriker said he

allowed Ms. Eskridge to engage in “open file discovery” and to make notes and copies of

anything in the State’s file that she wanted. During the meeting, General Carriker located

a sealed manila envelope in the file. He estimated that the envelope was approximately

one-half of an inch thick and appeared to have contained somewhere between one and

one hundred pages. He recalled that on the outside of the manila envelope was a four-

inch by four-inch “yellow sticky pad note” with language similar to “not turned over or

do not turn over to defense.” The note was dated “2005 or so” and had the initials of

District Attorney General Amy Weirich, the prosecutor at the Petitioner’s trial. Ms.

- 18 -

Eskridge asked to look inside the envelope, and General Carriker told her that he would

prefer to obtain permission from his superiors first.

General Carriker testified that he learned shortly after Thanksgiving of 2011 that

he was being transferred to the domestic violence unit effective January 2012, and he was

instructed that all of his cases would be reassigned to other prosecutors. The Petitioner’s

post-conviction case was reassigned to Assistant District Attorney General Melanie

Headley Cox, and General Carriker gave General Cox the State’s file sometime during

the first or second week of December 2011.

General Carriker testified that he never unsealed the envelope and never looked

inside it. He explained that he did not want to open the seal until he had a chance to

speak to someone about it. He did not recall ever giving the envelope to Ms. Eskridge for

her review. He said that he kept the State’s file in his office while he was assigned the

case and did not recall removing the envelope from the file. He did not know whether the

envelope was still in the State’s file upon his transfer. Ms. Eskridge later withdrew as

counsel for the Petitioner.

General Carriker recalled that Assistant District Attorney General Betsy Carnesale

Wiseman, who was one of the prosecutors at trial, was his division leader prior to

General Baity. General Carriker said that while he recalled speaking to General

Wiseman about the case, he did not recall whether he had the envelope with him or

whether they had a chance to look at the envelope. He also did not recall reviewing the

State’s file with her.

Following his transfer, General Carriker did not hear anything else about the

envelope until he was approached by either post-conviction counsel or Assistant District

Attorney Marques Young and informed that the envelope could not be located. General

Carriker went to General Young’s office and searched the State’s file but was unable to

locate the envelope. Instead, he found an open-faced file folder, which he described as a

lighter “beige” color than the manila envelope. He stated that the sealed manila envelope

was standard-sized for letter-sized paper, while the folder was a legal-sized file. He also

stated that the sealed manila envelope was

a fold top, and it was the type that has a metal prong that starts like this and

when you close it, and wrap the thing over it, you pull the prong down and

it closes and you can also, usually it has some kind of adhesive on the back

that you can lick or use a wet sponge and close it and it will seal.

Inside the file folder was about thirty or forty pages attached with a binder clip and

a four-inch by four-inch yellow note. General Carriker testified that he “couldn’t say it’s

- 19 -

not the same note, but it’s very similar as far as what it says on it.” The note stated in

black ink:

I am NOT giving these items in discovery.

8-22-05

APW

In smaller lettering in blue ink, the note stated:

12-6-05

Jencks STMTS of witnesses who testified were turned over at the

appropriate time.

We note that the trial occurred on December 5-9, 2005.

The note, the file folder, and the contents were entered an Exhibit 6 to the post-

conviction hearing (“Exhibit 6”). The contents of Exhibit 6 included: (1) the statement

of Mr. Billy M. Massey of the City of Memphis Fire Department on December 14, 2004;

(2) Ms. Renee Welch’s statement on November 18, 2004; (3) documents labeled

“Braswell’s Burglar Alarm Information”; (4) the victim’s employment and medical

information from the victim’s employer; (5) an authorization for release of the victim’s

medical, employment, and financial records signed by the Petitioner; (6) a handwritten

journal entry dated November 29, 2002, on stationary from Comfort Suites in Grand

Prairie, Texas; (7) a typewritten letter from the victim to the Petitioner dated March 24,

2004; and (8) a typewritten letter from the Petitioner to the victim. Handwritten in the

bottom right-hand corner of items (6), (7), and (8) was “11/19/04 PW 10:47 AM,” and

the evidence presented at the evidentiary hearing established that the initials were those

of the victim’s mother, Pauline Washburn.

On cross-examination, General Carriker testified that the pages in Exhibit 6 were

“close to the thickness” to the manila envelope but that it “[c]ould have been more, could

have been a little less, I really don’t know.” He stated that the wording on the note in

Exhibit 6 was “very similar” to the wording on the note from the manila envelope. He

explained that “the main part of the wording is that I am not giving these items in

discovery and then at the bottom [are] initials and the date. I remember that, it’s very

similar, I can’t say more than that, though.”

On redirect examination, General Carriker acknowledged that he was not certain

that the note on the manila envelope was the same note in Exhibit 6. He stated that as far

as he knew, the manila envelope was in the file the last time that he possessed it. He did

- 20 -

not know what happened to the manila envelope after he was transferred out of the

division. He testified that he “[d]idn’t see [the manila envelope] today, didn’t see it last

fall when I was made aware of it … not being there.”

Ms. Taylor Eskridge was appointed in 2009 to represent the Petitioner in the post-

conviction proceedings. She filed a motion for discovery and inspection of the State’s

evidence in March 2009 and attempted to review the State’s file for more than one year

without success. She stated that she was told that no one knew where the file was and

was provided different reasons why she could not have access to the file. At one point,

Assistant Attorney General Brian Davis, who was previously assigned the post-

conviction case, informed Ms. Eskridge that the State’s file was in California.

After General Carriker was assigned the case, Ms. Eskridge met with him and

reviewed the State’s file. Ms. Eskridge testified that while reviewing the file, they

discovered a letter-sized envelope with a fold over the top that was sealed. She believed

the envelope also had a prong for closing the envelope but said “it wasn’t prong closed, it

was closed with a seal that I recall.” She recalled a note on the envelope that said “do not

show defense or something like that. But it was something that caught both of our

attentions.” She stated that the note had “just a few words. It was written in big bold like

a marker or something but it was on a post it note stuck to the front of it. But it was

something that made us realize that it wasn’t something that defense counsel was

supposed to see.” Ms. Eskridge believed the note included someone’s initials or

signature but could not remember. She could not recall the words on the note and said “it

was something that was not usual. It wasn’t like, it’s not discoverable or not…, it was

something that we hadn’t seen before and so it made us both pause.” She did not recall

whether the writing was in blue or black ink or any other pen markings or other writing

on the note.

Ms. Eskridge testified that General Carriker informed her that he should obtain

authorization before showing the information in the envelope to her. She never received

the information that was inside the envelope and never saw the envelope again. She said

she and the Petitioner discussed the envelope on several occasions. Ms. Eskridge later

withdrew as counsel, and post-conviction counsel was substituted as attorney of record.

Ms. Eskridge testified that Exhibit 6 did not include the envelope or the note that

she saw while she and General Carriker were reviewing the State’s file. She explained

that unlike the note in Exhibit 6, the note that she saw did not include the language, “I am

not giving these items in discovery.” She said that although she could not recall the exact

words on the note, “it was something shocking.” She also said that the note in Exhibit 6

implied that the folder included Jencks material, which would not have been discoverable

- 21 -

prior to trial but would have been provided to the defense when the witness testified at

trial and to post-conviction counsel during post-conviction proceedings.

On cross-examination, Ms. Eskridge testified that although she could not recall the

exact words on the note that she saw during her meeting with General Carriker, the note

in Exhibit 6 was not the same note. She said the language on the note that she saw during

the meeting was unusual and that it alarmed both her and General Carriker. Ms. Eskridge

stated that the note she saw during the meeting “implied that the defense should never see

it” and made General Carriker understand that he should not open the manila envelope in

front of her and should obtain approval before showing her the contents of the envelope.

Ms. Eskridge stated that the note in Exhibit 6, however, did not say that the defense could

never see the contents of the folder but that the material was not being provided in

discovery. She believed that had she and General Carriker seen the note in Exhibit 6,

General Carriker would have provided her with the material in the manila envelope

because the note stated that the material had already been provided to the defense at the

appropriate time.

Ms. Eskridge testified that she and General Carriker informed the post-conviction

court that General Carriker planned to seek approval and then allow her to view the

contents of the envelope. Ms. Eskridge stated that she would have filed a motion

regarding the material had General Carriker indicated that he did not intend to comply

with her request. She said she “was willing to, as a colleague, give him the amount of

time that he requested to get it done.”

On redirect examination, Ms. Eskridge testified that General Carriker appeared to

be “uncomfortable” and “in shock” upon seeing the note. She informed post-conviction

counsel about the envelope once post-conviction counsel began representing the

Petitioner. While Ms. Eskridge acknowledged that she was unsure of the exact words on

the note that she saw during the meeting, she was “sure” that the note in Exhibit 6 was

not the same note and that Exhibit 6 did not include the manila envelope.

Assistant District Attorney General Melanie Cox testified that she represented the

State in the Petitioner’s post-conviction case while assigned to the post-conviction court’s

courtroom from January 2012 until August 2012. General Cox did not review the State’s

file to a great extent while the case was assigned to her and never came across a sealed

manila envelope with a note stating, “Do not show defense.”

On cross-examination, General Cox testified that prosecutors, generally, did not

take any action on a post-conviction case until the case was set for a hearing. When she

was assigned the Petitioner’s case, it was reset on multiple occasions, and as a result, she

never really looked at the file. She said neither General Carriker nor a defense attorney

- 22 -

told her there was any problem with the case. General Cox did not recall speaking to Ms.

Eskridge about the case and stated that post-conviction counsel was representing the

Petitioner when General Cox was assigned the case.

Trial counsel served as lead counsel at the Petitioner’s trial, and his father served

as co-counsel. Trial counsel had previously represented the Petitioner and knew him

outside of the legal system. Mr. Glen Wright represented the Petitioner during the initial

appearance and the arraignment in general sessions court, and Mr. Leslie Ballin and trial

counsel represented the Petitioner during the preliminary hearing. Trial counsel testified

that the defense theory at trial was that the Petitioner and the victim had engaged in erotic

asphyxiation on the night of the victim’s death, that the victim died sometime later, and

that her death was not intentional.

Trial counsel testified that the Petitioner initially maintained that the victim must

have drowned and that she was stuck in the Jacuzzi. Trial counsel initially looked at the

possibility that the victim drowned. He said that he later learned that following the

Petitioner’s arrest, the Petitioner informed Mr. Wright that he had engaged in erotic

asphyxiation with the victim, but trial counsel maintained that the Petitioner, initially, did

not share this information with him.

Dr. Joye Carter, the State’s forensic pathologist, concluded that the victim died as

the result of manual strangulation, and trial counsel noted that the victim had markings

around her neck. Trial counsel testified that throughout the preliminary hearing and the

trial, Dr. Carter was “overtly defensive” and had “very strong feelings” which he

considered “abnormal” for a physician. Trial counsel contacted Dr. Carter in preparing

his case, but Dr. Carter stopped talking to him once she realized that he was questioning

her conclusions. Trial counsel then spoke to Dr. O.C. Smith, Dr. Karen Chancellor, Dr.

George Nichols, and Dr. Todd Brooks about the case.

Trial counsel testified that in order to obtain an objective view of the autopsy and

to either support or exclude the Petitioner’s claim that the victim must have drowned,

trial counsel hired Dr. George Nichols, a forensic pathologist, to review the medical

examiner’s report. Trial counsel wanted an independent pathologist outside Memphis

who had not necessarily worked with the attorney general’s office. Trial counsel did not

inform Dr. Nichols of the theory of defense. Trial counsel said he did not retain Dr.

Nichols as a “fact witness” and did not want to turn over Dr. Nichols’s report to the State

if it included information that was helpful to the prosecution. Rather, trial counsel stated

his hiring of Dr. Nichols “was part of work product so that [h]e could get an objective

view of this autopsy.”

- 23 -

Trial counsel did not believe he only sent Dr. Nichols the autopsy report and the

photographs but believed he sent Dr. Nichols everything in his possession that related to

the crime scene and the autopsy, including trial counsel’s typewritten notes from his

conversations with Dr. Smith and Dr. Brooks. While trial counsel acknowledged that

crime scene photographs and evidence of sexual activity would have been important to a

forensic pathologist in reviewing whether a death involved erotic asphyxiation, trial

counsel stated that he was not yet pursuing erotic asphyxiation as a theory of defense

when he retained Dr. Nichols. Trial counsel did not believe he sent the transcript of the

preliminary hearing to Dr. Nichols and explained that he wanted an objective view of

what Dr. Nichols saw and without anything to influence Dr. Nichols’s observations.

Dr. Nichols informed trial counsel that he did not believe that the victim drowned

but that she died due to strangulation. Trial counsel did not recall whether he discussed

with Dr. Nichols the possibility that there was a delay between the strangulation and the

victim’s death or whether he followed up with Dr. Nichols once he began focusing upon

erotic asphyxiation as a defense theory. Trial counsel testified that had he done so and

had Dr. Nichols concluded that erotic asphyxiation was possible, trial counsel likely

would have presented Dr. Nichols as a witness at trial.

Trial counsel denied that he failed to pay Dr. Nichols for his services. Trial

counsel was certain that Dr. Nichols’s fee was paid up front with a check from the law

firm’s bank account, and trial counsel believed that Dr. Nichols would not have begun

reviewing the materials without receiving his fee.

Trial counsel testified that because Dr. Carter, Dr. Nichols, and Dr. Chancellor all

concluded that the victim did not drown, trial counsel decided against presenting a

defense of accidental drowning at trial. Each physician with whom trial counsel spoke

stated that the amount of water in the lungs was insufficient to cause suffocation. Trial

counsel believed that most of the physicians with whom he consulted thought that the

water was taken in the lungs post-mortem. Trial counsel recalled that based on the

physical evidence from the dissection of the victim’s neck, each physician concluded that

the victim was strangled to the point that it resulted in loss of consciousness and death.

Trial counsel testified that erotic asphyxiation was chosen as a line of defense

despite the existence of evidence that refuted the defense because it was the most

plausible line of defense and would result in some witnesses not being called at trial

whose testimony would have resulted in a first degree murder conviction. Trial counsel

stated that once he began looking at erotic asphyxiation as a defense, he consulted with

Dr. Smith from whom he had previously sought advice in medical malpractice cases.

Trial counsel explained that he did not receive a report from Dr. Smith because he

utilized Dr. Smith to “bounc[e] off” ideas.

- 24 -

Trial counsel contacted Dr. Chancellor, who worked in the Shelby County

Medical Examiner’s Office and who had approved Dr. Carter’s autopsy, two weeks to

one month prior to trial and asked her to review the materials. Trial counsel stated that

based on his experience with Dr. Chancellor, he knew that Dr. Chancellor would be

“straight up” with him and was not “pro prosecutor.” When trial counsel contacted Dr.

Chancellor, he believed that Dr. Chancellor would be testifying for the State at trial

because Dr. Carter had since left the medical examiner’s office. Trial counsel later

learned that the State had subpoenaed Dr. Carter to testify at the trial. Trial counsel asked

Dr. Chancellor to attend trial to refute some of Dr. Carter’s testimony. During a break in

the trial, Dr. Chancellor informed trial counsel and co-counsel that she would testify that

the Petitioner would have had to have choked the victim for at least five minutes after the

victim lost consciousness and explained the basis for her opinion. As a result, trial

counsel did not call Dr. Chancellor as a witness. Trial counsel said that Dr. Chancellor

did not inform him of this conclusion prior to trial and that had Dr. Chancellor presented

such testimony at trial, it would have caused the defense to “implode.”

Trial counsel acknowledged that while Dr. Carter testified during the preliminary

hearing that a person could have a delayed reaction from the pooling of blood following

strangulation, Dr. Carter also testified that a delayed reaction did not occur in this case.

Dr. Carter also testified during the preliminary hearing that although she was unable to

scientifically conclude that the victim’s death was contemporaneous to the strangulation,

she opined that the victim’s death was, in fact, contemporaneous to the strangulation.

Trial counsel did not recall whether he asked any of the physicians with whom he

consulted whether there was a delay between the strangulation and the victim’s death.

He said that if he had any evidence that the victim was able to get out of bed after

engaging in erotic asphyxiation but died minutes later due to erotic asphyxiation, he

would have presented it. However, he said that “everything I had did not indicate that.”

Trial counsel testified that he believed the victim died in the Jacuzzi bathtub,

which was consistent with the majority of the Petitioner’s version of the events. Trial

counsel noted that a great amount of water was on the floor and that some of the water

could have come from the Petitioner and the paramedics pulling the victim out of the

Jacuzzi. Trial counsel also noted that some physical evidence suggested that the victim

was in the Jacuzzi at least at the point of death, if not prior to her death.

Trial counsel and co-counsel formed a strategy for cross-examining Dr. Carter at

trial. Trial counsel believed that Dr. Carter went “out of her way to be a State’s witness.”

He recalled that Dr. Carter was “erratic” and “defensive” at the preliminary hearing. She

denied having any photographs with her even though trial counsel saw the photographs.

She made other statements that trial counsel knew were false. Trial counsel obtained

information about accusations of misconduct or misbehavior on the part of Dr. Carter that

- 25 -

fell below the standards of practice in the field of forensic pathology. Trial counsel noted

that in Washington, D.C., Dr. Carter was accused of allowing bodies that had not yet

been autopsied to be stacked on top of each other so that any evidence obtained from

those bodies could be considered tainted. Some people refused to work with Dr. Carter

due to her erratic behavior and volatile attitude. Trial counsel followed cases where Dr.

Carter had been accused of manufacturing evidence. Two whistleblower lawsuits were

brought in Harris County, Texas due to Dr. Carter’s actions. Trial counsel recalled that

during the preliminary hearing, Dr. Carter denied any disciplinary issues in Harris

County.

Trial counsel acknowledged that when the issue of Dr. Carter’s prior misconduct

arose at trial, he informed the trial court that he did not intend to use that information at

that time. Trial counsel explained that he and co-counsel knew that the trial court would

accept Dr. Carter as an expert regardless of the allegations and believed that the trial

court would not allow them to question her about the information on the front end. Trial

counsel noted that none of the allegations of misconduct were directly related to the

Petitioner’s case. Rather, trial counsel stated that co-counsel, who conducted the cross-

examination of Dr. Carter at trial, believed the better approach was to question Dr. Carter

to the point that she would open the door to questioning about her prior misconduct.

Trial counsel stated that they also wanted the jury to see how erratic Dr. Carter was and

that they decided to ask questions to make her feel comfortable at first and then “go at her

real hard” in order to get her “off balance.”

Trial counsel testified that he intended for the Petitioner to be the only person to

testify at trial regarding his relationship with the victim. Trial counsel explained that the

Petitioner was the only person who had firsthand knowledge of the relationship and that

the prosecutors would find it difficult to cross-examine the Petitioner regarding the

relationship. Trial counsel stated that the Petitioner was the only person who could

explain his side of the story without objection and say what did or did not occur in the

bedroom. Trial counsel noted that the Petitioner was an intelligent man who had a

master’s degree and was an administrator in the school system and that he was capable of

articulating to the jury what was involved in his relationship with the victim. Trial

counsel found demonstrative evidence in the form of sex toys amongst the Braswells’

personal belongings to corroborate the Petitioner’s testimony.

While trial counsel recalled the Petitioner informing him of a woman with whom

he was involved in an open relationship, trial counsel stated that the Petitioner never told

him about Ms. Monique Lane and that trial counsel never interviewed Ms. Lane. Trial

counsel did not recall the Petitioner telling him about his involvement with another

woman with whom he engaged in choking. Trial counsel stated Ms. Kristie Woods was

the only other person of whom he was aware who could corroborate the Petitioner’s

- 26 -

statements that he engaged in rough sexual activity and choking. Trial counsel

acknowledged that someone such as Ms. Lane who had observed the victim engaging in

erotic asphyxiation would have been an important witness and would have corroborated

the Petitioner’s testimony. Trial counsel also acknowledged that had he possessed the

information about Ms. Lane prior to trial, he likely would have called her as a witness at

trial.

Trial counsel did not recall the Petitioner informing him that Mr. Dennis Small, a

security guard at a strip club, saw the victim with another woman at the club. The

Petitioner informed trial counsel that he and the victim frequented strip clubs, and

someone who was familiar with the Petitioner told trial counsel that he or she believed

that the Petitioner was involved in an open relationship. Trial counsel stated that this

information was contrary to the victim’s behavior when she learned that the Petitioner

had a mistress but was consistent with the information that the Petitioner had provided

him. As a result, trial counsel followed up on the information. Trial counsel spoke to a

former police officer who owned a “swingers” club and informed him about the

Treehouse, a “swingers club” frequented by the Petitioner. The club subsequently closed,

and trial counsel lost contact with the man.

Trial counsel testified that he actively communicated with the Petitioner’s sister,

Ms. Cheryl Wallace, throughout the case. Trial counsel stated that while Ms. Wallace

and the Petitioner’s mother were helpful, they were also confused and angry because they

loved the victim and wanted to know what happened to her. Trial counsel said that

because the Petitioner needed their continued support, trial counsel did not want to push

them to a point where they would no longer support the Petitioner. Trial counsel

acknowledged that Ms. Wallace told him that the Petitioner and the victim engaged in a

“somewhat kinky sexual lifestyle” and that the victim would have done anything to

please the Petitioner. Trial counsel stated that Ms. Wallace was unable to provide

information from a first person standpoint because she did not witness any of the acts.

The Petitioner told trial counsel that some of the sex toys that he and the victim used

were stored with his furniture, and Ms. Wallace took trial counsel to a storage unit where

trial counsel located the sex toys.

Trial counsel recalled that during opening statements, the defense discussed an

intention to show a history of erotic asphyxiation. He denied that he planned to show the

pattern through Ms. Woods even though he was aware that Ms. Woods acknowledged her

participation in rough sexual behavior with the Petitioner. Rather, trial counsel

maintained that he planned to show the pattern of erotic asphyxiation through the

Petitioner.

- 27 -

Trial counsel testified that Dr. Schwartz was contacted at the “eleventh hour.” On

the Saturday prior to trial, trial counsel and co-counsel were at co-counsel’s home

preparing for trial when co-counsel opined that they needed to hire someone who could

explain erotic asphyxiation to the jury. Trial counsel believed that having “someone with

a lot of letters behind their last name” to testify that the sexual behavior was not abnormal

“would take some of the sting out” of evidence of the Petitioner’s behavior and would

corroborate the Petitioner’s testimony. Trial counsel later testified that he did not know

whether Dr. Schwartz was contacted within days or a few weeks before trial but that Dr.

Schwartz met with the Petitioner shortly before trial. Trial counsel also said co-counsel

initially contacted Dr. Schwartz for the purpose of gathering information for trial

preparation. Trial counsel and co-counsel wanted Dr. Schwartz to address whether the

Braswells’ behavior and the use of the various sexual devices were consistent with a

defense of erotic asphyxiation. Trial counsel and Dr. Schwartz spoke over the telephone

throughout the day for a total of two or three hours during which trial counsel provided

him with background information. After Dr. Schwartz indicated that he could possibly

be helpful in their defense, trial counsel arranged for Dr. Schwartz to fly to Memphis and

meet with the Petitioner.

Trial counsel noted that Dr. Schwartz corroborated the Petitioner’s testimony at

trial. Dr. Schwartz sought to testify about his conversations with the Petitioner, but the

trial court refused to allow the testimony. Trial counsel initially acknowledged that

information from witnesses such as Ms. Lane would have had some value to Dr.

Schwartz, but he later stated that he did not know whether such information would have

been important to Dr. Schwartz.

Trial counsel recalled that the State asserted at trial that the defense of erotic

asphyxiation was newly fabricated. The Petitioner did not include any information in his

statement to the police that he and the victim had engaged in erotic asphyxiation prior to

the victim’s death. Trial counsel stated that he presented Mr. Wright’s testimony during

a jury-out hearing to establish that the Petitioner had mentioned it to Mr. Wright, who

had initially represented the Petitioner, following his arrest. Trial counsel did not recall

whether the trial court allowed him to present Mr. Wright’s testimony before the jury.

Trial counsel said that regardless, he did not want to present any additional testimony

from Mr. Wright because he did not want the prosecutor to call rebuttal witnesses to

establish that the Petitioner did not mention erotic asphyxiation to the paramedics, the

police officers, or others to whom he had spoken after the victim’s death.

The Petitioner informed trial counsel of instances during which the victim suffered

severe cramping to the point of paralysis, and trial counsel was aware of medications that

will cause low potassium levels, leading to cramping, light headedness, and the loss of

consciousness. Trial counsel was aware of numerous witnesses who corroborated

- 28 -

information that the victim suffered episodes of paralysis in the past due to potassium

deficiency and spoke to Dr. Todd Brooks and Dr. O.C. Smith about the effects of the

paralysis. Trial counsel also had Dr. Brooks review the victim’s toxicology report to

determine whether the victim had a substance in her system that could have resulted in

paralysis. While trial counsel investigated the possibility that the victim suffered an

episode of paralysis, was unable to get out of the Jacuzzi, and lost consciousness, he was

unable to discover any evidence to support this theory.

Trial counsel recalled having information about a large amount of hair discovered

in the Jacuzzi, but he did not recall Ms. Wallace telling him that Ms. Mikki Jackson

found a large amount of hair in the Jacuzzi’s suction system while cleaning the

Petitioner’s home following the victim’s death. Trial counsel researched the circulation

of water and drainage in Jacuzzis and the pressure asserted from their suction systems.

He searched on the internet for civil suits where the manufacturers of the model of

Jacuzzi bathtub owned by the Petitioner had been accused of manufacturing a defective

product resulting in someone being held underwater. Trial counsel also interviewed two

plumbers who installed such devices about the mechanics of the Jacuzzi bathtub, and he

obtained a manual from a plumbing company.

Trial counsel stated that while the victim could have “cramped up” or passed out

in the Jacuzzi and her hair could have been caught in the suction, he did not have any

solid evidence that this occurred. He noted that the suction in the Jacuzzi had a screen

over it and that the suction did not have enough force to hold someone who weighed

more than twenty-five or thirty pounds under water unless possibly that person was

unconscious. Trial counsel “reluctantly” and “very cautiously” agreed that based on his

research, the suction was strong enough to hold a 120 to 130-pound, unconscious woman

under water if her hair had been caught by the suction.

Trial counsel knew that the Petitioner reported he was unable to remove the victim

from the Jacuzzi during the 911 call and that when the paramedics arrived, a portion of

the victim’s body, including her head, was out of the Jacuzzi. Trial counsel agreed that if

the victim’s hair had been caught in the Jacuzzi’s suction, the Petitioner could have

pulled her hair out of her head while trying to pull her out of the Jacuzzi and that

evidence of hair found in the Jacuzzi could have corroborated the Petitioner’s claim that

he was vigorously trying to get the victim out of the Jacuzzi. However, trial counsel

stated that evidence of hair found in the Jacuzzi could have suggested that an altercation

occurred in the Jacuzzi and that, as a result, he chose not to focus on the hair. He stated

that if he had presented a witness at trial to testify about the discovery of the hair, the

witness would have had to admit that she did not know how the hair got into the Jacuzzi’s

suction system and that the hair may have been in the water first and was then sucked

into the suction system. Trial counsel stated that he would not have presented such

- 29 -

evidence unless he had other proof to support the claim, such as the paramedics finding

her with her hair stuck and the jets running. He could not establish that the suction

system caused the victim to be stuck in the Jacuzzi and said that, as a result, he did not

believe presenting such an argument would be reasonable. He acknowledged that the

Petitioner stated that the victim’s hair had been stuck in the suction system.

Nevertheless, trial counsel explained that he believed he needed to exercise care to avoid

opening the door to the prosecution creating a scenario where the jury would question the

Petitioner’s veracity.

Trial counsel met with one of the investigating officers and discussed the

temperature of the water in the Jacuzzi. Trial counsel recalled that the temperature of the

water in the Jacuzzi was in the mid to low 90s. He also recalled the State used evidence

of this water temperature and Mr. Darrell Burton’s calculations at trial of what the water

temperature should have been based on a water heater temperature setting of 120 degrees

to argue that the Petitioner added hot water to the Jacuzzi to manipulate the scene and to

discredit the Petitioner’s statement to the police. Trial counsel said the State basically

argued that if the temperature in the Jacuzzi was 90 degrees by the time that the first

responders arrived and measured the water’s temperature, the temperature of the water

would have initially been 167 to 180 degrees and that no one would have been able to sit

in such hot water.

Trial counsel acknowledged that Mr. Patrick Taliaferro issued a report stating that

the thermostat on the Petitioner’s water heater was set at 160 degrees. Trial counsel

testified that although he explored the information provided by Mr. Taliaferro and

discussed it with the Petitioner, he decided not to “chase that assumption” and make it a

large part of the defense. Trial counsel explained that he decided to focus more on

presenting an affirmative defense on how the death occurred rather than simply

attempting to raise reasonable doubt. Trial counsel acknowledged that evidence that the

thermostat on the Petitioner’s water heater was set to 160 degrees rather than the 120-

degree temperature upon which Mr. Burton based his calculations may have refuted the

testimony of Mr. Burton and other witnesses about the water in the Jacuzzi still being

warm. Trial counsel did not call Mr. Taliaferro to testify at trial or otherwise contact an

expert in hot water heaters, temperature settings, and the speed at which water cools.

While trial counsel believed he objected to Mr. Burton’s testimony at trial on the

basis that Mr. Burton was not an expert, trial counsel nevertheless stated that Mr. Burton

was a fact witness and was never intended to be an expert witness. Trial counsel knew

the State’s goal in examining Mr. Burton and stated that as long as the prosecutor did not

“go too far,” trial counsel was not going to object. Trial counsel noted that Mr. Burton’s

testimony was not long and that the prosecutor made a few points and moved on to the

next witness.

- 30 -

Trial counsel did not hire a private investigator to assist him in the case. Rather,

he dedicated a great amount of time investigating the case himself. He had prior

experience as an investigator on the capital defense team of the Shelby County Public

Defender’s Office for several years and had tried several first degree murder cases. He

also utilized the services of two paralegals and his brother, all of whom had investigation

experience, and believed that his office was able to conduct a thorough investigation.

Trial counsel testified that he did not file a motion to have the Petitioner declared

indigent because the Petitioner was not indigent. Although the Petitioner was arrested

following the victim’s death and remained incarcerated throughout the trial, he was able

to pay his attorney’s fees and other expenses associated with the cost of his defense.

Trial counsel understood that the Petitioner’s family sold the Petitioner’s assets to pay for

his defense. Trial counsel said that if the Petitioner had difficulty paying for the defense,

trial counsel would have asked the trial court to declare the Petitioner indigent. Trial

counsel acknowledged that had the Petitioner been declared indigent, the trial court

would have granted funds to retain a private investigator.

Trial counsel filed a motion prior to trial seeking to exclude evidence of bad acts

under Tennessee Rule of Evidence 404(b). The trial court originally ruled that the

evidence could only be admitted in rebuttal if the defense opened the door. Trial counsel

recalled that after the defense informed the trial court of their intention to discuss Dr.

Schwartz’s conclusions with the jury during voir dire, the trial court changed its ruling to

allow the State to present the bad act evidence in its case-in-chief.

Trial counsel did not recall the prosecutor stating in opening statement that the

Petitioner “choked women to get his message across” and did not recall whether he

objected to the statement. Trial counsel disagreed that the prosecutor argued propensity

in the opening statement but believed she “introduced the jury to an idea of propensity.

It’s a difference.” He also believed “her introduction of that material and that testimony

was something more to the tune of we anticipate you’re going to hear proof down this

line.” Trial counsel described the prosecutor’s statements as a dangerous way to

approach the evidence because had the evidence not been presented, he would have

argued to the jury that the prosecutor failed to deliver on her promise. Trial counsel

explained that he did not object every time that the bad act evidence was mentioned

because he did not want to emphasize the evidence to the jury.

Trial counsel testified that the State did not include the victim’s 1996 order of

protection against the Petitioner in its notice of its intent to present bad act evidence

pursuant to Rule 404(b). Trial counsel stated that he was aware of the prior order of

protection because he conducted an investigation into the Petitioner’s background and

had previously represented the Petitioner. Trial counsel did not recall whether he

- 31 -

objected to the admission of the evidence regarding the order of protection but said he

believed the trial court erred in admitting the evidence.

Trial counsel recalled that he sought to introduce evidence of the Petitioner’s good

conduct during his cross-examination of Ms. Woods. The trial court found that trial

counsel opened the door to allow the State to question Ms. Woods about the Petitioner’s

prior bad conduct. Trial counsel disagreed with the trial court’s ruling and explained that

he was only seeking background information about the Petitioner. He also explained that

had he not engaged in such questioning, the jury may not have known that the Petitioner

had positive attributes. Trial counsel said he had to make a decision “on his feet” about

whether the need to present such evidence outweighed the possibility of opening the door

to other acts committed by the Petitioner. He said that while the Petitioner later testified

in order to “toot his own horn,” trial counsel wanted one of the State’s witnesses to “toot

[the Petitioner’s] horn too.”

Trial counsel recalled that the pending divorce filed by the victim was an

important part of the State’s case and that the victim’s mother testified at trial about a

check to Mr. Dennis Sossaman, a divorce attorney, that she discovered in the victim’s

belongings. The Petitioner informed trial counsel that the victim had planned to dismiss

the divorce. Trial counsel interviewed Mr. Sossaman, who was unhappy with the

Petitioner, and trial counsel did not believe that Mr. Sossaman would be helpful to the

defense and decided against calling him as a witness.

Trial counsel was aware that the Petitioner was providing too much information

during his telephone calls from jail and warned him about it. Trial counsel said he never

spoke to the Petitioner in great detail about the case over the telephone because he knew

that the calls were recorded. Trial counsel did not recall anything that he or the Petitioner

said during the telephone conversations that damaged the defense. Trial counsel received

a summary of thirty-five calls that the Petitioner made while in jail in discovery and

stated that the calls between him and the Petitioner were not summarized. Trial counsel

did not receive the actual recordings or a transcript of the recordings in discovery. He

recalled that when the issue was raised at trial, the trial court stated that trial counsel had

access to the tapes, which had been maintained in the evidence room. Trial counsel

believed that the most damaging recordings entered into evidence at trial were the

Petitioner’s telephone conversations with others during which he appeared to refer to Ms.

Woods in “code” and discussed whether she had been sent out of town.

Trial counsel noted that the recordings admitted at trial included two telephone

conversations between him and the Petitioner. When trial counsel objected to their

admission at trial, the prosecutor informed the trial court that inmates had access to a

separate line that was not recorded in order to call their attorneys. Trial counsel was

- 32 -

unware that a separate line existed and did not try to locate someone at the jail to refute

the existence of this line. Trial counsel stated that he would not have presented such a

witness to the jury because he did not want to emphasize the recordings to such a degree

that the jury would believe that the recordings were important.

At trial, trial counsel requested Jencks material on the record as it related to Ms.

Woods and Ms. Vera Cole. He said he did not address any Jencks material for any other

witnesses on the record because the prosecutors began providing him with Jencks

material without him requesting it. Trial counsel did not receive the statements of Ms.

Sheronda Smith, Ms. Magra Hardin, and Lieutenant Fred Jackson prior to trial. He stated

that he received the statements of Ms. Smith and Ms. Hardin as Jencks material during

the trial and that he believed he also received Mr. Jackson’s statement during the trial.

Trial counsel acknowledged that Ms. Smith’s statement to the police included

favorable information that was material to the preparation of the defense. Ms. Smith

informed police officers that the victim told her that she no longer wished to proceed with

a divorce and that the Petitioner’s abuse of the victim occurred when the Petitioner was

on drugs and before he became sober. Ms. Smith also discussed with officers the

convention where she saw the Petitioner viewing a display that included various sex-

related items, and trial counsel stated that he learned of this information from the

Petitioner. Trial counsel testified that while Ms. Smith’s statement included information

that was favorable to the defense, the favorable information did not outweigh the “real

bad facts” that were also included in the statement. Ms. Smith informed officers that the

victim did not enjoy engaging in the unconventional sexual acts but was essentially being

submissive to the Petitioner. She discussed with officers the discovery of a large amount

of hair in the Jacuzzi while she and others were cleaning following the victim’s death,

which trial counsel stated implied that a struggle may have occurred. Ms. Smith also told

officers that following the victim’s death, the Petitioner stated that he was missing a

nipple ring and left to have it replaced, which could imply that the Petitioner lost the

nipple ring during a struggle.

Trial counsel testified that he did not receive Ms. Karen Taylor’s statement to

police in discovery prior to trial and that because the State did not call her as a witness at

trial, he did not receive her statement as Jencks material. Trial counsel maintained that

he first learned of Ms. Taylor’s statement during post-conviction proceedings. He stated

that the information included in Ms. Taylor’s statement would have been material in his

preparation of the defense and acknowledged that Ms. Taylor’s statement included

information regarding the sexual lifestyle between the Petitioner and the victim, their

visiting strip clubs, and the victim’s prior episodes of paralysis. Trial counsel noted that

Sergeant Merritt specifically asked Ms. Taylor whether the Petitioner and the victim

engaged in choking during sex, and Ms. Taylor said, “No.” Trial counsel testified that

- 33 -

Ms. Taylor’s statement also included information that would have been detrimental to the

defense and that as a result, he would not have utilized the statement had he received it in

discovery. Trial counsel explained that Ms. Woods and other witnesses gave statements

to the police officers because the witnesses believed that the Petitioner intentionally

killed the victim and that their statements included information that was damaging to the

defense.

Trial counsel did not receive a letter that the Petitioner wrote to the victim or the

victim’s medical records in discovery. He said he was able to obtain the victim’s medical

records through his own investigation.

On cross-examination, trial counsel testified that he obtained his law license in

1990 and had tried six or seven first degree murder cases prior to the Petitioner’s trial in

2005. In investigating the case, trial counsel utilized the services of multiple

investigators, including a licensed investigator and his brother, who was an attorney who

had previously been employed as an investigator for the Shelby County Public

Defender’s Office and the Tennessee Attorney General’s Office. Trial counsel

interviewed witnesses to determine whether the witness would be cooperative, articulate,

and able to withstand rigorous cross-examination.

Trial counsel stated that when he and the Petitioner first met, the Petitioner did not

report that he and the victim had engaged in erotic asphyxiation. Rather, the Petitioner

insisted that the victim had drowned and that she did not die as a result of manual

strangulation. Prior to the preliminary hearing, trial counsel obtained the autopsy report

and photographs and reviewed them with Mr. Ballin, after which they agreed that they

had been “chasing a phantom.”

Trial counsel testified that he retained Dr. Nichols to review the autopsy so that

trial counsel could ascertain whether the Petitioner was being truthful in claiming that the

victim drowned. Trial counsel testified that based upon his reading of the autopsy report,

he knew that the victim did not drown but that he was willing to give the Petitioner the

benefit of the doubt. Because the physical evidence did not support the Petitioner’s claim

that the victim drowned, the defense theory changed and “later morphed into no

substantial affirmative defense at all to then reasonable doubt.” In light of the

Petitioner’s statement to the police, trial counsel believed he needed to craft a reasonable

defense rather than simply attack the State’s proof in an effort to create reasonable doubt.

He said the fact that the Petitioner gave a statement to the police and talked to a large

number of people about what had occurred on the night of the victim’s death limited the

possible defense theories because numerous witnesses would be able to impeach the

Petitioner’s testimony if it was inconsistent with his prior statements.

- 34 -

Trial counsel testified that the Petitioner did not inform him about engaging in

erotic asphyxiation with the victim on the night of her death until approximately three

weeks before trial. Trial counsel stated that while he and the Petitioner may have

discussed erotic asphyxiation a few months before trial, trial counsel did not pursue it as a

defense until shortly before trial. Trial counsel already had conversations with Ms.

Woods with respect to the Petitioner choking her. Trial counsel said that once he began

to discuss the “idea of the sex,” the Petitioner stated that he informed Mr. Wright from

the beginning of the case that he and the victim had engaged in choking as part of a

sexual act on the night of her death. Trial counsel stated that Mr. Wright never shared

this information with him. Trial counsel explained that Dr. Schwartz was hired at such a

late date because that was the point at which the defense team decided that erotic

asphyxiation would be the defense theory at trial.

Trial counsel testified that after the defense changed to erotic asphyxiation, he did

not seek to continue the trial because he did not believe that a continuance was necessary

or that the trial court would grant a continuance. He also did not want to provide the

State with sufficient time to prepare to refute the defense. He noted that the State never

asked him about the theory of defense during trial preparation. He had stated during a

hearing prior to trial that the theory of defense would be accidental drowning. He did not

inform the State that the theory of defense would involve erotic asphyxiation until the

first day of trial when he disclosed Dr. Schwartz as an expert. Trial counsel explained

that he never informed the State of the theory of defense until he was required to do so.

He stated that while the theory of defense may be addressed during settlement

negotiations, the State never made a plea offer in the Petitioner’s case. He explained that

he wanted to address the defense of erotic asphyxiation during voir dire in order to gauge

the prospective jurors’ reactions.

Trial counsel testified that he attempted to keep the defense narrowly focused in

an attempt to avoid a first degree murder conviction. He noted that the Petitioner’s story

that he and the victim engaged in sex involving manual strangulation after which the

Petitioner went to bed was not consistent with the scientific proof. Trial counsel

acknowledged that as a result, he had to “tip-toe” through the whole process from the

preliminary hearing to the trial.

Trial counsel stated that based on his observations of the jurors when the State

presented evidence regarding the temperature settings on hot water heaters, he did not

believe that the jury understood the evidence and its purpose. As a result, trial counsel

did not want to risk making the prosecutor’s point during cross-examination or give the

prosecutor a chance to clean up the evidence during redirect examination.

- 35 -

Trial counsel testified that although he was not provided with the statements of

witnesses who had given information about the discovery of the hair, he knew the names

of those witnesses and had been told by more than one person about the hair. He also

observed that the victim was missing hair in the crime scene photographs. Trial counsel

went to the Petitioner’s home and examined the Jacuzzi. He stated that based on the

Petitioner’s statement, the hair should have been stuck in the screen of the suction but

that it was not. Trial counsel testified that he had “mixed feelings” on how to approach

the discovery of the hair in the Jacuzzi by another witness because the witness also found

a nipple ring in the Jacuzzi. He knew that the nipple ring belonged to the Petitioner and

that witnesses would testify to hearing the Petitioner discuss missing a nipple ring

following the victim’s death and to the Petitioner’s leaving to have the nipple ring

replaced. Trial counsel believed he was successful in keeping out that evidence at trial.

Trial counsel determined that the defense had no basis and that the scenario of the

Petitioner desperately trying to pull the victim out of the Jacuzzi was not helpful to the

defense. Trial counsel explained that the scenario raised questions of why the Petitioner

did not simply drain the water from the Jacuzzi and turn off the jets. Moreover, when the

paramedics arrived, the upper portion of the victim’s body was out of the Jacuzzi. Trial

counsel acknowledged that based on Dr. Chancellor’s findings, the Petitioner would have

had to have continued choking the victim while in the Jacuzzi for five minutes after she

lost consciousness, that the victim’s hair would have had to have been sucked into the

Jacuzzi’s jets, and that the Petitioner would have had to have left her there. Trial counsel

said he wanted the jury to focus on the fact that the Petitioner and the victim engaged in

uncommon sexual behavior and that the victim’s death was accidental.

Trial counsel testified that the issue of the victim’s paralysis would have been

more important had the defense been that the victim drowned in the Jacuzzi and would

have resolved the issue of why she was unable to get out of the Jacuzzi. He did not

believe that any paralysis prevented the victim from screaming out for the Petitioner, and

he stated that the victim did not drown.

Trial counsel acknowledged the State presented witnesses at trial whose

statements included information about which trial counsel had previously been aware.

The Petitioner identified for trial counsel all those who visited his home following the

victim’s death and those who attended the convention where he saw the display of sexual

items. The State provided him with police supplements in discovery that summarized

interviews of various witnesses, including Ms. Taylor, Ms. Renee Welch, and Mr. Brian

James. Trial counsel stated that no evidence was presented at trial of which he was

unaware but that the trial court admitted some evidence that he did not believe was

admissible. He also stated that he was unaware of any other evidence that he would have

presented at trial and acknowledged that none of the witnesses admitted in their

- 36 -

statements to being aware of the Braswells’ engaging in erotic asphyxiation. Trial

counsel did not believe that the State suppressed his access to those who could

corroborate the Braswells’ sexual lifestyle.

Trial counsel agreed that each witness who had knowledge of the Braswells’

sexual lifestyle stated the victim was not a willing participant but was simply complying

with the Petitioner’s requests. When the State presented those witnesses at trial, trial

counsel chose to get them off the stand as quickly as possible in an effort to avoid

providing the State with any additional ammunition against the Petitioner. Trial counsel

was concerned that testimony from witnesses about what the victim may have told them

about her sexual lifestyle would have resulted in jurors thinking, “I don’t want this guy

out here teaching my children.” Trial counsel agreed that the theory behind relying upon

the Petitioner to testify about the sexual lifestyle was that the State could not challenge

the testimony on the basis that the victim was not a willing participant and was being

pushed to engage in the acts by the Petitioner.

Trial counsel testified that while the Petitioner stated that he and the victim had

been involved with another woman, trial counsel did not believe that the Petitioner

identified the woman or informed him that the episodes involved erotic asphyxiation.

Trial counsel stated that, nevertheless, the Petitioner was the only person who could

testify as to the events leading to the victim’s death and that trial counsel did not want to

present additional witnesses and risk another story being told on the victim’s behalf.

Trial counsel acknowledged that he wanted to present the Petitioner to the jury as a man

who in all other aspects of his life was normal and stable but who engaged in unusual

sexual acts with his wife. Trial counsel also acknowledged that he wanted the jury to

believe that the Petitioner was honest because the Petitioner was confessing to some

unpleasant actions and that it would have taken “the wind out of his sails” if trial counsel

presented evidence of the Petitioner’s sexual lifestyle before the Petitioner testified. Trial

counsel noted that he also had demonstrative evidence supporting the Petitioner’s

testimony of his sexual lifestyle.

Trial counsel recalled that even before the issue of his opening the door to bad act

evidence arose during his cross-examination of Ms. Woods, the prosecutor questioned

Ms. Woods on direct examination about an incident during which the Petitioner pushed

her against a wall and pushed her head on a glass table. Trial counsel learned of other

incidents during his investigation that were not presented at trial. He testified that he did

not want the jury to believe that the Petitioner was living a double life and that he had to

present evidence regarding the Petitioner’s community activities and work with children.

Trial counsel met with Ms. Woods on multiple occasions and recalled that Ms.

Woods became “somewhat adversarial” as the trial grew closer. She moved to Seattle,

- 37 -

Washington, and then to San Francisco, California. Trial counsel did not believe the

State would be able to locate her, but they did so. He learned where she was staying prior

to her testimony and met with her. Ms. Woods told trial counsel that she would not lie

for the Petitioner, and trial counsel assured her that he did not want her to lie. Trial

counsel told Ms. Woods that she did not have to “offer anything” to the State and that she

simply needed to answer the questions asked. Ms. Woods affirmed that she could do so.

Ms. Woods informed trial counsel that she spoke to the Petitioner before she learned of

the victim’s death and that the Petitioner asked her whether she was ready to be “number

one.” Trial counsel stated that he had not been aware of the nature of the telephone

conversation and that her revelation “sent us into a complete spiral.” Trial counsel did

not know whether the prosecutor was aware of this information, and he feared that Ms.

Woods would blurt out the information during her testimony. Trial counsel said he

attempted to push Ms. Woods in a different direction by asking her about the Petitioner’s

community involvement. Trial counsel believed that had Ms. Woods testified to the

Petitioner’s statement during the telephone conversation, it would have resulted in a

conviction for first degree murder.

Trial counsel was aware that the victim was accused of having an affair while the

Petitioner was enrolled in a rehabilitation program. Trial counsel said that he did not

present the evidence at trial because he believed that the evidence would be hearsay, he

did not want to demonize the victim, and he did not want to open the door to evidence of

all of the victim’s good deeds.

On redirect examination, trial counsel testified that the victim died in November

2004, that the preliminary hearing occurred in December 2004, and that the trial occurred

in December 2005. When trial counsel approached the prosecutor about a plea

agreement, the prosecutor told him that she would need to speak to the victim’s family

first. Trial counsel said that he was later told that the Petitioner could plead guilty to the

offense alleged in the indictment. He also said he knew that the case was going to trial

approximately two or three months after the indictment. Trial counsel stated that he

generally pushed for a trial date quickly if he knew that the case was going to trial and his

client was unable to post bond.

Trial counsel did not recall the Petitioner owing a portion of his fee on the day of

trial or trial counsel requesting the Petitioner to make a payment. Trial counsel identified

two receipts for $1,500 and $700, respectively, both dated December 9, 2005, the trial

date, and noted that the second receipt indicated a balance of $10,800. Trial counsel

stated that if a substantial amount was owed, he could see co-counsel requesting a

payment. Trial counsel maintained that any outstanding balance would not have affected

whether they went to trial or what actions they took at trial. He stated that based on his

- 38 -

representation of the Petitioner in this case and in prior cases, the Petitioner had the

means to pay for his defense and, therefore, was not indigent.

Trial counsel explained that while he did not present any evidence at trial to

contradict the State’s evidence regarding the hot water in the Jacuzzi or the victim’s

episodes of paralysis, such evidence was irrelevant to the defense. He stated, “The

temperature of the water had absolutely one hundred percent (100%) positively nothing

to do with whether or not this manual strangulation was an accidental killing that

occurred during sex.” He said he could not pursue two divergent defenses at trial.

Trial counsel testified that while he had a few issues with the Petitioner’s initial

explanation to him about the victim’s death, trial counsel did not necessarily believe that

the Petitioner was lying, and he pursued the information. He noted that the foam in her

mouth, her tongue being pushed out, and the broken blood vessels in her eyes could have

been indicative of drowning.

When trial counsel visited the Petitioner’s home, he measured the distance

between the Petitioner’s bedroom and the children’s bedroom located across the hallway.

Trial counsel also noted that the Jacuzzi was located a short distance from the Petitioner’s

bed and that he did not believe that the door adjoining the Petitioner’s bedroom and the

bathroom where the Jacuzzi was located was shut. Trial counsel questioned why the

victim would not have yelled out for help if, based on the Petitioner’s original

explanation, the victim suffered an episode of paralysis while in the Jacuzzi.

Trial counsel clarified that the defense of erotic asphyxiation did not arise four

months prior to trial but first arose during the month of trial. He affirmed that various

people provided him information about the Braswells’ sexual lifestyle throughout the

course of his investigation but stated that none of the information included erotic

asphyxiation.

Trial counsel testified that based on his reading of the jury and his conversations

with some jurors following the verdict, he believed that evidence of the Petitioner’s prior

bad acts swayed the jury into believing that an altercation occurred between the Petitioner

and the victim prior to her death. He agreed that any indication that an altercation

occurred could have been refuted by evidence of the sexual lifestyle between the

Petitioner and the victim.

When questioned on redirect examination regarding whether the prosecutor

informed him about the existence of the recordings of the Petitioner’s call from the jail

and that he could bring the prosecutor a compact disc on which to copy the recordings,

trial counsel replied, “Something like that.” He explained that he did not provide the

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prosecutor with a compact disc because the recordings were on tapes. He stated that

while he received Ms. Smith’s statement during the trial, he did not recall whether he

received the statements of Ms. Hardin or Lieutenant Jackson.

Trial counsel acknowledged that for the most part, he basically convinced the jury

that what he said occurred actually did occur and that the victim’s death was not an

intentional and premeditated act. He said, “We call it a win.”

Post-conviction counsel recalled trial counsel during a later hearing after trial

counsel contacted her and stated that he needed to clarify his earlier testimony. Trial

counsel testified that following his earlier testimony, he discovered in his notes that the

Petitioner mentioned Ms. Lane to him as someone who was involved with both the

Petitioner and the victim. Trial counsel acknowledged that he did not interview Ms. Lane

and did not call her to testify at trial. He maintained that he was not made aware of the

recordings of the Petitioner’s calls from the jail and that the recordings were not given to

him prior to trial.

Trial counsel testified that while he was not dishonest when he testified in prior

hearings, he acknowledged that he was “holding back.” He explained that in 2014, he

learned that the Shelby County District Attorney General’s Office was investigating his

involvement in a multimillion dollar transaction that occurred in 2012. Before he initially

testified during the post-conviction proceedings, he was told that the State was looking

into whether he should be indicted. He had to retain counsel as a result of the

investigation. While trial counsel believed that he had been cleared of any wrongdoing,

he had not yet been told by the prosecutor that he was no longer being investigated.

On cross-examination, trial counsel acknowledged that when he testified

previously, he did not feel pressured by the State to testify in a certain manner in order to

avoid an indictment. Rather, he explained that he was concerned because his counsel

warned him against offering testimony that “would trigger something against him.” He

denied that he intentionally failed to offer complete testimony during the prior hearing

due to the pending investigation. He stated that he would not have testified if he felt that

he should not do so and that the pending investigation did not affect his willingness to

testify.

Trial counsel acknowledged that during trial, he intentionally limited other

witnesses from discussing the Braswells’ sexual lifestyle because he did not want the jury

to hear on a repeated basis from others about what might be characterized as unusual

sexual activity. Trial counsel confirmed that he also wanted to avoid such repeated

testimony to prevent the jurors from having a picture of the Petitioner in their minds

before he testified. When trial counsel was asked, “So it really wouldn’t have made any

- 40 -

difference what [Ms. Lane] said in the interview because she would have been somebody

who would have been testifying to that type of behavior?” trial counsel responded, “I

guess that’s correct. I did not interview [Ms. Lane].”

Trial counsel testified that he was unaware of the recordings of the Petitioner’s

calls from the jail and did not mention them in his notes, which he stated meant that he

never saw them. He clarified that his testimony was not that he never received the

summaries of the calls and if the calls were summarized, “it had to have been overlooked

because we were surprised by the content of the jail phone calls.” Trial counsel stated

that neither he nor co-counsel recalled receiving the recordings and that he believed he

was “ambushed” by the State at trial. He also stated that although he believed that the

trial court’s ruling regarding the recordings was incorrect, he did not continue to object in

front of the jury because he did not want the jury to think that the recordings were

important.

On redirect examination, trial counsel testified that the night before trial began, he

and co-counsel decided that co-counsel should give the opening statement. Trial counsel

explained that they wanted to “put a little gray hair up front because of the nature of the

case.” Trial counsel believed the jury “would be a little more settled” hearing about the

defense from someone who was older than trial counsel.

Mr. Glen Wright testified that in 2004, the Petitioner contacted him and his then-

partner, Mr. Jerry Stokes, to represent him. Mr. Wright said the Petitioner indicated that

the victim had possibly fallen asleep in the Jacuzzi, resulting in her death. Mr. Wright

believed that the Petitioner indicated that the victim had fallen asleep in the Jacuzzi on a

prior occasion and almost drowned.

Mr. Wright testified that he met the Petitioner during a second time in the

Homicide Office of the Memphis Police Department. The Petitioner informed Mr.

Wright that he and the victim engaged in “rough sex” where he placed his arm across her

throat, causing suffocation. The Petitioner asked Mr. Wright whether he should give

another statement to the police and include that information, and Mr. Wright said he

likely advised the Petitioner against giving the statement. Mr. Wright recalled that he

was called to testify at trial to contradict the State’s claim that the Petitioner’s defense

was recently fabricated, but he did not believe that he testified in front of the jury.

Mr. Wright testified that he had never heard of a secure telephone line at the jail

where defendants could contact their attorneys. He said he generally advised clients

against discussing their case on the telephones at the jail because he understood that the

calls were being recorded. He did not want his clients to divulge any confidential

information over the telephone.

- 41 -

On cross-examination, Mr. Wright testified that he did not recall the Petitioner

stating that the victim died while they were engaging in rough sex. Mr. Wright could not

recall the specifics of the conversation other than the Petitioner stating they were

engaging in rough sex, which led to the victim’s death.

Mr. Leslie Ballin, a criminal defense attorney, was retained in 2004 to represent

the Petitioner around the time of the victim’s death and during the preliminary stages of

the case. Mr. Ballin testified that shortly after the victim’s death, he and the Petitioner

discussed how the victim’s death was unintentional and that it occurred during sex. Mr.

Ballin did not recall whether any other attorney worked with him on the Petitioner’s case

during the preliminary hearing.

Mr. Ballin testified that during his thirty-seven years of practicing law, he had

never heard of a secure telephone line at the jail where his clients could contact him. He

stated that whenever a client called him from the jail, they would only discuss procedural

matters and that he would instruct his client to refrain from discussing factual matters

because the telephone line was not secure and the discussion could be used against his

client.

District Attorney General Amy Weirich testified that she and General Wiseman

were the prosecutors during the Petitioner’s trial in December 2005. General Weirich

prepared the discovery once trial counsel filed a motion, and trial counsel was contacted

to retrieve the discovery from the District Attorney General’s Office on August 23, 2005.

General Weirich noted that trial counsel was given a summary of the recordings of the

Petitioner’s telephone calls from the jail and, therefore, was aware of their existence.

General Weirich testified that she recognized Exhibit 6 and that the note on

Exhibit 6 was in her handwriting. She did not recall sealing any discovery in a manila

envelope and writing a note that no one should give the information to the defense. She

stated that her general practice was to place those items that were not turned over to

defense counsel in a folder and to label the folder as “[i]tems not turned over,” similar to

the folder in Exhibit 6. She recalled that General Carriker asked her about an envelope

while he was preparing for the Petitioner’s post-conviction hearing. She told him that she

had no knowledge of an envelope and that she had not touched the file on the Petitioner’s

case since the December 2005 trial.

General Weirich acknowledged that she did not provide trial counsel with a

handwritten statement on Comfort Suites letterhead dated November 29, 2009, a

typewritten letter to the Petitioner from the victim, and a typewritten letter to the victim

from the Petitioner that were included in Exhibit 6. The bottom corner of each letter

included information indicating that Ms. Pauline Washburn, the victim’s mother, turned

- 42 -

the documents over on November 19, 2004. General Weirich stated that while the

documents were not given directly to her, they “made it into our file.” She did not know

where Ms. Washburn found the documents. General Weirich acknowledged that if the

items were retrieved from the Petitioner’s home or his belongings, she possibly would

have been required to provide them to trial counsel in discovery in accordance with

Tennessee Rule of Criminal Procedure 16. When post-conviction counsel asked whether

the Petitioner’s typewritten letter could constitute a statement of the Petitioner, General

Weirich replied, “I guess, but not under Rule 16.” She explained, “It’s not a statement

that fell under Rule 16, and I didn’t provide it. There was nothing exculpatory in it.”

When asked whether a defendant’s statement had to include exculpatory information to

be discoverable, General Weirich replied, “I don’t know that it is his statement.” She

acknowledged that “I guess you could say” that a defendant’s statement need not include

exculpatory information to be discoverable.

General Weirich did not recall whether trial counsel requested Jencks material

after every witness who testified at trial but said she might have provided the statements

regardless of whether trial counsel requested it. She did not know whether she provided

Jencks material after every witness who had given a statement testified. She noted that

while the defense attorney will generally ask for a break to review Jencks material, the

fact that a break was not indicated in the record did not necessarily mean that she did not

provide Jencks material.

General Weirich noted that an evidence receipt that was provided to trial counsel

in discovery indicated that the State had possession of a recorded statement by Ms.

Smith. General Weirich stated that she likely would not have given trial counsel both the

recorded statement and the formal written statement as Jencks material because it would

be easier for trial counsel to read the written statement than to locate equipment to listen

to the recording.

General Weirich acknowledged that Ms. Smith’s statement included information

about what the Petitioner told her occurred on the night of the victim’s death and that

parts of Ms. Smith’s statement were consistent with the Petitioner’s statement to the

police. Ms. Smith also indicated that the victim told her that the victim no longer wished

to pursue a divorce against the Petitioner. General Weirich acknowledged that the State

presented evidence of the pending divorce at trial in painting a picture of a tumultuous

relationship. When asked whether information that the victim no longer wished to pursue

the divorce would have contradicted some of the State’s proof at trial, General Weirich

replied, “I wouldn’t necessarily interpret it that way, but I guess that’s one way to

characterize it.” She explained that a tumultuous relationship could exist irrespective of a

divorce but acknowledged that “[p]erhaps” the information could have been valuable

from a defense standpoint to rebut the State’s proof.

- 43 -

General Weirich stated that Ms. Smith also spoke to the police about her

knowledge of the Braswells’ sexual lifestyle. General Weirich acknowledged that

information about their sexual lifestyle could have been important in the context of what

occurred prior to the victim’s death “if you believed [the Petitioner’s] statement.” She

testified, however, that she believed that the defense at trial would be accidental

drowning based on the Petitioner’s statement to the police and her conversations with

trial counsel in preparing for trial. She did not learn that the defense would be erotic

asphyxiation until trial counsel informed her immediately prior to trial.

General Weirich stated that Ms. Smith informed the police of the victim’s prior

episode of cramping after sex and getting into the Jacuzzi to alleviate the cramping,

which General Weirich acknowledged was similar to the events on the night of the

victim’s death as described by the Petitioner to the police. General Weirich did not agree

that Ms. Smith’s statement about the sequence of events corroborated the Petitioner’s

statement to the police and testified, “I didn’t believe [the Petitioner’s] statement. That

was part of our case in chief. That was our theory of the case.” She noted that she

provided the defense with the police supplemental report in discovery that summarized

Ms. Smith’s statement in which she described the Petitioner’s struggles with drug and

alcohol abuse and how the Petitioner and the victim were attempting to work through

their issues rather than proceed with the divorce.

General Weirich testified that she did not provide the defense with Ms. Taylor’s

statement in discovery. General Weirich acknowledged that Ms. Taylor provided

information about the victim’s episodes of paralysis, the sexual lifestyle of the Petitioner

and the victim, the victim’s cramping while having sex, the victim’s admitting to have

participated in a “threesome,” and the victim’s statements that she was unsure whether

she was going to proceed with the divorce. According to Ms. Taylor, the victim told the

Petitioner, “Let’s just begin praying and see what the Lord is going to do with this

marriage.” General Weirich noted that she provided a supplemental police report in

discovery that referenced Ms. Taylor’s statement. General Weirich stated that according

to the supplemental report, Ms. Taylor said that the victim “seemed upbeat” and was not

complaining about problems with the Petitioner, that the victim had filed for divorce after

discovering that the Petitioner was having an affair, that the victim and the Petitioner

were attempting to work through their problems, that the victim was hospitalized due to

an episode of temporary paralysis in December 2003, that the victim discussed her

potassium and magnesium levels, and that the victim experienced a second episode of

paralysis during the summer of 2004.

General Weirich stated that although she did not provide Ms. Hardin’s statement

to trial counsel in discovery, she provided a supplemental police report which

summarized the statement. In her statement to the police, Ms. Hardin discussed incidents

- 44 -

of abuse by the Petitioner against the victim, including choking, slapping, and shoving

the victim, the victim’s restraining order against the Petitioner, the victim’s episodes of

paralysis, and the sexual lifestyle of the victim and the Petitioner. Ms. Hardin stated that

the victim never told her that the Petitioner strangled or attempted to strangle her.

General Weirich did not provide Mr. James’s statement to trial counsel in

discovery. Numerous times throughout Mr. James’s statement, he described the

Petitioner as distraught, crying, and screaming after the victim died. General Weirich

stated that she provided trial counsel with a supplemental police report which included a

summary of Ms. James’s statement in which he described the Petitioner’s distraught state

when the paramedics and police officers arrived following the victim’s death.

General Weirich did not provide Lieutenant Fred Jackson’s statement to trial

counsel in discovery. Lieutenant Jackson informed police officers that he had to console

the Petitioner and that the Petitioner was distressed about what he would do without his

wife and what his children would do without their mother. General Weirich believed that

she provided trial counsel with a police supplemental report that included a summary of

Lieutenant Jackson’s statement.

General Weirich said that while she did not provide Ms. Renee Welch’s statement

to trial counsel in discovery, she provided a supplemental police report that summarized

Ms. Welch’s statement. General Weirich acknowledged Ms. Welch informed police

officers about the victim’s prior episodes of paralysis after having sex that were similar to

the episode described by the Petitioner in his statement to the police.

On cross-examination, General Weirich testified that she was not the prosecutor at

the general sessions level and that she first saw the State’s file when the Petitioner was

arraigned in April 2005. She said that on occasion, witnesses or a victim’s family

members may bring items to court at the general sessions level and give them to the

prosecution. She also said that it would not be unusual for the prosecutor to place any

documents given to them at the general sessions level in a manila envelope and then

attach it to the State’s file. She noted that after the case proceeds through the general

sessions level and the prosecutor’s office receives the State report, the material,

generally, is placed in a manila, legal-sized file. General Weirich stated that once she

receives a file, she typically removes any items in a manila envelope and places them in

the file so that she knows where the documents are located, and she retains the manila

envelope. She also stated that she would have placed the typewritten documents from the

victim and the Petitioner in a folder, such as the folder in Exhibit 6, and labeled them as

“[i]tems not turned over.” Others who had access to the State’s file included General

Wiseman, the division secretary, the investigator, the victim/witness coordinator, and any

other assistant attorney general assigned to the division. General Weirich was unaware of

- 45 -

who had reviewed the State’s file since the Petitioner’s trial. She said she had no contact

with the State’s file following the hearing on the motion for new trial in May 2006 and up

until “very recent times.”

General Weirich testified that once a post-conviction petition is filed, the case is

not assigned to the prosecutor who tried the case but is assigned to an assistant district

attorney general assigned to the courtroom where the petition will be heard. General

Weirich stated that she reassigns prosecutors to courtrooms on a yearly basis. She

acknowledged that prosecutors usually do not spend a great amount of time on post-

conviction cases until a hearing is set because they have many other pending cases and

trials. The prosecutor assigned to a post-conviction case also engages in a discovery

process and reviews the file with post-conviction counsel.

General Weirich did not recall what items she provided to trial counsel in

discovery and said she retained a copy of the materials that she provided in discovery in a

folder labeled “discovery.” Unless a witness’s statement includes exculpatory

information, General Weirich generally does not provide the statement to the defense

until after the witness testifies. If General Weirich does not call the witness at trial, she

places the nontestifying witness’s statement in a folder labeled “Not turned over to

Defense.” She said she often turns over Jencks material during the trial without defense

counsel asking because it becomes part of the trial process. If the defense attorney

requests Jencks material on multiple occasions, she provides the attorney the material

without the attorney requesting it.

General Weirich stated that it appeared that she turned over all of the supplemental

police reports in discovery even though the reports are specifically excluded under

Tennessee Rule of Criminal Procedure 16. She acknowledged that the supplemental

police reports included all of the information about the victim’s paralysis, those to whom

the Petitioner spoke following the victim’s death, the Petitioner’s prior instances of

violence, the reconciliation of the marriage of the Petitioner and the victim, and their

sexual lifestyle. General Weirich noted that none of the witnesses who provided

statements reported that the Petitioner and the victim engaged in physical violence during

sex and that each witness who was asked about strangulation during sex denied that the

victim ever mentioned strangulation.

During the trial, General Weirich informed the trial court that trial counsel had

been made aware of the existence of the recordings of the Petitioner’s calls from the jail

and that trial counsel failed to bring her a compact disc on which to copy the recordings.

General Weirich testified that the prosecutor’s office could not afford to provide compact

discs to each defense attorney and that the office policy was to provide defense attorneys

- 46 -

with the option of either listening to the recordings at the prosecutor’s office or providing

a compact disc on which the prosecutor may copy the recordings.

General Weirich testified that the victim’s handwritten journal, her typewritten

letter to the Petitioner, and the Petitioner’s typewritten letter did not relate to the facts of

the case or the incident that led to the victim’s death but constituted a discussion of their

marital environment at the time that the letters were written. General Weirich did not

believe that the documents constituted relevant statements of a defendant under Rule 16.

She also did not believe that there were any means by which to establish where the letters

were found or that the letters were admissible at trial. She agreed that the letters clearly

established that the Petitioner and the victim were not engaged in a sexual relationship

during the time period in which the letters were written and that she would have liked to

have admitted them at trial.

General Weirich agreed that until a motion regarding prior bad acts is filed under

Tennessee Rule of Evidence 404(b), much of the information pertaining to the prior bad

acts is not discoverable because the information does not relate to the actual charged

offense. She agreed that information relating to the Petitioner’s prior bad acts would

have been provided to trial counsel during the hearing and that trial counsel would have

demanded the information had General Weirich not provided it to him. General Weirich

maintained that her opening statements regarding the Petitioner’s prior behavior did not

relate to propensity but related to the State’s claim of lack of mistake or accident. She

said the trial court allowed her to discuss the Petitioner’s prior bad acts during voir dire,

her opening statements, and the State’s case-in-chief.

On redirect examination, General Weirich testified that she could not say that she

gave every supplemental police report to trial counsel in discovery. She acknowledged

that the victim wrote the letter to the Petitioner discussing their marriage during the same

year in which she died and that part of the proof that the State presented at trial was that

the marriage between the Petitioner and the victim had “its ups and downs.” With regard

to the Petitioner’s calls from the jail, General Weirich stated that many of the calls were

between the Petitioner and trial counsel and that the Petitioner was aware of the content

of the calls since he made them.

General Weirich testified that if she located a sealed envelope in the State’s file,

she would have opened it and likely filed and labeled the information in the envelope.

She did not know anyone else with the initials “A.P.W.” who had access to the State’s

file prior to, during, or after the trial. She stated that evidence is not supposed to be

removed from the State’s file at the post-conviction stage and that post-conviction

counsel is allowed to review all of the evidence in the State’s file.

- 47 -

General Weirich did not recall General Carriker sending her an email on March

25, 2011, asking to meet with her about the Petitioner’s post-conviction case. She said

she and General Carriker met on a prior occasion and discussed the envelope. She told

General Carriker that she had no knowledge of the envelope. She could not recall

whether her meeting with General Carriker occurred before a hearing was set or before

General Carriker testified at the post-conviction hearing. General Weirich did not recall

attaching a note stating, “Do not show Defense” to a file in any case. She said her typical

practice was to use language such as “Items not turned over,” “Not being turned over to

Defense at this time,” or “To be turned over to Defense at a later date.”

Sergeant William Merritt testified that in 2004, he was employed with the

Memphis Police Department and was the case coordinator for the investigation into the

victim’s death. At the time of the post-conviction hearing, he was a criminal investigator

for the Shelby County District Attorney General’s Office. Sergeant Merritt ordered that

the recordings of the Petitioner’s calls from the jail be turned over to him as part of the

investigation. He acknowledged that some calls were between the Petitioner and his

attorney and that some calls were three-way calls where the Petitioner called someone

else who then called trial counsel. Sergeant Merritt listened to some of the recordings

and prepared a summary of them. He said that calls directly from an inmate to counsel or

from counsel to an inmate were generally deleted but that he listened to the three-way

calls between the Petitioner, a third person, and trial counsel.

Sergeant Merritt testified that he interviewed Ms. Smith, recorded her formal

statement, and prepared a summary of Ms. Smith’s statement as part of his supplemental

report. He asked Ms. Smith whether the victim mentioned that the Petitioner strangled

her or pretended to strangle her during any of their sexual encounters, and Ms. Smith

replied that the victim never mentioned it to her. Sergeant Merritt explained that he

asked the question because the victim died from strangulation and that he had heard of

people being strangled during sex. He was anticipating that the issue could arise later,

and he wanted to know whether the Petitioner and the victim engaged in the practice.

Ms. Smith also informed Sergeant Merritt that the victim complained of cramps on

the night before she died, which Sergeant Merritt stated was consistent with the

Petitioner’s statement to police. Ms. Smith provided him with additional information

about the victim’s prior episodes of paralysis and cramping following sex. Sergeant

Merritt noted that the victim’s records indicated that she had a magnesium and potassium

deficiency. Ms. Smith told Sergeant Merritt about seeing the Petitioner at a display at a

conference. When she told the victim, the victim replied, “I should have known that he

was somewhere like that.” Sergeant Merritt learned that the victim had filed for divorce

from the Petitioner, and Ms. Smith told him that the victim decided against proceeding

with the divorce.

- 48 -

Sergeant Merritt also interviewed Ms. Taylor, who discussed the Braswells’

engaging in sexual activities with another woman. Ms. Taylor did not identify the other

woman, and Sergeant Merritt did not have any information to determine the woman’s

identity. Sergeant Merritt stated that he would have interviewed the woman if she had

engaged in erotic asphyxiation with the Petitioner and the victim. Ms. Taylor also

informed him of the victim’s prior episodes of paralysis, one of which was similar to the

episode that the Petitioner said the victim experienced on the night of her death.

Ms. Hardin provided Sergeant Merritt with similar information regarding the

sexual lifestyle of the Petitioner and the victim and the victim’s prior episodes of

paralysis. Sergeant Merritt noted that each witness denied that the victim participated in

choking during sex. He also noted that according to the statements of the witnesses, the

victim engaged in some activities only because the Petitioner wanted her to do so and not

because she enjoyed them.

On cross-examination, Sergeant Merritt acknowledged that Ms. Taylor informed

him that the victim stated that the Petitioner wanted her to engage in the “threesome” but

that she did not want to do it. The victim told Ms. Taylor that she came home one day to

find a woman there and that the victim eventually decided to do it. The victim called Ms.

Taylor and told her of the decision after it occurred. The victim never told Ms. Taylor

that she was engaging in erotic asphyxiation.

Dr. George Riley Nichols, II, a forensic pathologist, was accepted by the post-

conviction court as an expert in pathology. He testified that on October 18, 2005, trial

counsel contacted him about assisting in the evaluation of the cause of the victim’s death,

and Dr. Nichols agreed to help. Trial counsel provided Dr. Nichols with the autopsy

report, the autopsy photographs, and a compact disc labeled “Braswell photos” that also

included the autopsy photographs. Dr. Nichols said trial counsel did not provide him

with any other information about the case. Dr. Nichols issued a report in which he agreed

with Dr. Carter’s findings that the victim’s cause of death was manual strangulation. Dr.

Nichols maintained that after he rendered his opinion, trial counsel did not pay him and

never contacted him again.

Dr. Nichols stated that trial counsel never told him that he intended to present

erotic asphyxiation as a theory of defense at trial and failed to provide him with sufficient

information to properly analyze the cause and manner of the victim’s death in the context

of the defense of erotic asphyxiation. Dr. Nichols stated that trial counsel failed to

provide him with witness statements, the victim’s medical history, the personal and social

history of the victim and the Petitioner, the police reports, photographs and sketches from

the crime scene, and the Brawells’ sexual history.

- 49 -

Dr. Nichols testified that based on the additional evidence that he had since

reviewed, his initial opinion that the victim died due to manual strangulation did not

change. He noted that erotic asphyxiation can involve manual strangulation, is

potentially lethal, and could result in an accidental death. Dr. Nichols had been involved

in five prior cases where the deaths occurred due to erotic asphyxiation. He said deaths

due to erotic asphyxiation were characterized by petechial hemorrhages in the eyes, the

lack of visible outward injuries, and hemorrhaging within the tissue of the neck. He also

said the lack of visible outward injuries occurred when an item was placed between the

ligature or hand and the person’s neck to protect the neck from bruising. However,

bruising occurred in those instances where nothing separated the ligature and the person’s

neck. He concluded that based on the additional evidence that he reviewed, the victim’s

death could have been consistent with erotic asphyxiation.

Dr. Nichols explained that the victim’s jugular veins were compressed, causing an

increase in blood pressure within the vascular system of the head, including the face and

eyes, and resulted in petechial hemorrhages. The hyoid bone was not fractured, and there

was a hemorrhage in the strap muscle along the left jugular vein. There was some

hemorrhaging in the structures of the neck, within both the musculature and the hyoid

bone. Dr. Nichols testified that had trial counsel provided him with information

regarding the defense of erotic asphyxiation, he would have viewed the hemorrhaging in

the victim’s neck differently. He stated that based on his experience, finding evident

fingertip bruising and fingernail markings on a decedent was atypical.

Dr. Nichols noted that the carotid arteries were not compressed and explained that

less pressure was required to compress and obstruct blood flow through the jugular vein

than through the arteries. He said the injuries to the victim’s face were the result of the

compression and obstruction of the veins and not the arteries. He also said the

compression of the jugular veins would cause lack of blood flow to the brain and result in

unconsciousness and anoxic injury to the brain if unrelieved. He testified that even when

enough pressure is applied to create petechial hemorrhaging and hemorrhaging in the

neck, the event is survivable. He stated that based on the amount of petechiae present,

the compression occurred for thirty seconds or longer.

Dr. Nichols testified that an examination of defense wounds, such as scratches on

a person’s neck where she attempted to remove the chokehold or ligature or injuries to

her hands where she attempted to inflict injury on another, was relevant in determining

whether a person’s death resulted from homicide or erotic asphyxiation. He noted that

the victim had acrylic fingernails and that there was no evidence of injuries to the

victim’s hands or fingernails or any other defensive injuries that he would expect to find

on a person who is being choked. He also noted that according to a photograph of the

victim’s body, an intact chain was discovered around the victim’s neck.

- 50 -

Dr. Nichols testified that statement of those corroborating instances of erotic

asphyxiation between the victim and the Petitioner would have been important in

establishing that they had previously engaged in the activity but had survived. He said he

was not provided with any information about sex toys in the home, which he stated could

have been relevant to his examination.

Dr. Nichols identified acute injuries where white blood cells had not been brought

into the area as an inflammatory response. He explained that white blood cells generally

appear in the area of an injury or infection approximately six hours from the injury. He

stated that based on the lack of white blood cells in areas of acute hemorrhaging, the

injury likely occurred six hours or less from the time of the victim’s death. He also stated

that due to the assessment of the time frame, a review of the basic timeline of the

Petitioner’s version of the events would have been important.

Dr. Nichols stated that according to records from the emergency medical

technician (“EMT”), the victim was in full rigor mortis when the EMT arrived. He noted

that the victim was in a Jacuzzi bathtub where the water temperature was greater than the

room temperature, which would have hastened the formation of stiffness in the muscle or

rigor mortis. Dr. Nichols did not know the amount of time that the hot water hastened

rigor mortis.

Dr. Nichols testified that information about the actual temperature of the water in

the Jacuzzi bathtub could have affected his assessment. He said that a person immersed

in hot water can overheat or experience hyperthermia which can result in death and that

the hotter the water, the less amount of time that a person can withstand immersion

without injury. He also said the heat in the water would have transferred to the victim if

she was submerged in the water. Measurement of the victim’s core temperature would

have been necessary to determine whether hyperthermia had occurred.

Dr. Nichols noted that one of the photographs from the crime scene showed white

foam in the victim’s mouth, which could have indicated a narcotic overdose, acute heart

failure, or inhalation of water or other material. He stated that while the victim’s lungs

were heavier than normal, they were not as heavy as he would have expected in drowning

cases. He noted that water can drain out of a deceased person’s body if the person is

moved to his or her side. He said that information about whether the victim had been

turned on her side for an extended period of time would have been important but that he

was not provided with such information. Dr. Nichols stated that it would have been

important for him to know whether the victim experienced previous episodes of paralysis

that required hospitalization because it may have explained why the victim did not or was

not able to get out of the bathtub prior to her death.

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On cross-examination, Dr. Nichols testified that he received the materials from

trial counsel on October 18, 2005, and that trial counsel initially contacted him sometime

prior to that date. Trial counsel informed him that he was representing someone charged

with a homicide in Memphis and asked Dr. Nichols to review some materials and provide

an opinion. Dr. Nichols said he instructed trial counsel to “send [him] everything.” Dr.

Nichols stated that when he first received the materials from trial counsel, he believed

that the cause of the victim’s death was manual strangulation and the manner of her death

was likely homicide because he did not know anything about the details surrounding her

death. He explained that at the time, he believed he did not have sufficient information to

render an opinion but that he issued a report because trial counsel informed his office that

a report was necessary due to a pending trial date. Dr. Nichols did not contact trial

counsel and tell him that he needed more information. Dr. Nichols testified that in

retrospect, he probably should not have sent the report but should have called trial

counsel and “yelled at him.” Dr. Nichols acknowledged that in his letter to trial counsel

dated October 24, 2005, he did not inform trial counsel that the information he received

was insufficient to reach a conclusion and that his failure to do so was error. Dr.

Nichols’s opinions stated in the letter were consistent with Dr. Carter’s conclusions.

Following the letter, Dr. Nichols had no further communication with trial counsel.

Dr. Nichols testified that had trial counsel provided him with additional

information, it could have affected his opinion. He explained that rather than concluding

that the manner of death was homicide, the manner of death could be either accidental or

“not determined.” He said, “From everything I know so far today, I think it’s probably

not determined, which means it’s a jury question.” In preparing for his testimony at the

post-conviction hearing, Dr. Nichols reviewed the materials originally submitted to him

by trial counsel, the police reports, the EMT reports, a transcript of Dr. Carter’s testimony

at the preliminary hearing, and the crime scene photographs. He did not review the

witness statements.

Dr. Nichols quoted trial counsel a retainer fee of $2,500 when trial counsel first

contacted him. Dr. Nichols maintained that his office sent an invoice to trial counsel but

that trial counsel never paid him.

On redirect examination, Dr. Nichols testified that based on the information that

he had since reviewed, he would have testified at trial that the cause of the victim’s death

was asphyxia due to manual strangulation and that the evidence could have been

consistent with erotic asphyxiation. He clarified that his opinion regarding the manner of

the victim’s death, and not the cause of the victim’s death, had changed. He explained

that the manner of the victim’s death was inconclusive because it could be considered

either homicide or accidental. He stated that since becoming aware of what other

additional information was available prior to the trial, he believed he did not have

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sufficient information to make an informed decision in 2005 and that he should not have

sent the letter to trial counsel stating his conclusions.

Ms. Emmaleisha Monique Lane testified that she and the victim engaged in sexual

acts in the Petitioner’s presence and went to strip clubs together as a couple. Her

relationship with the Petitioner and the victim lasted approximately two years. Ms. Lane

said that during her sexual encounters with the Petitioner and the victim, they used sex

toys and blindfolds and engaged in dominatrix style sexual activity. She stated that the

victim and the Petitioner engaged in choking during which they utilized “safe words” and

that the victim enjoyed it as a sexual act. After the Petitioner and the victim engaged in

choking, Ms. Lane observed bruises and marks resulting from bites and spankings on the

victim. Ms. Lane did not witness any violence that was not intended as a sexual act. She

testified that she was contacted by someone and gave a statement about the Petitioner’s

case. She believed she gave the statement after the Petitioner’s trial. She was never

called to testify at trial.

On cross-examination, Ms. Lane testified that the choking involved hands around

the neck and that no ligatures were used. She said that the relationship faded and that she

had not been intimate with the Petitioner and the victim for approximately one year prior

to the victim’s death. She acknowledged that the victim did not want anyone to know

about the relationship.

Mr. Dennis Small testified that in 2005, he was working as an armed guard at

several clubs in Memphis, including a strip club. Mr. Small had known the Petitioner and

the victim for several years and saw them at some of the clubs where he worked. Mr.

Small recalled one occasion when he saw the victim at the strip club with another

woman. He called the Petitioner and told him that the victim was at the strip club, and

the Petitioner said he was aware of it and that he would be there shortly. After the

Petitioner arrived, he left with the victim and the other woman about an hour later. Mr.

Small stated that the Petitioner told him that it was his birthday and that the other woman

was a “gift” from the victim. Mr. Small was aware that the Petitioner and the victim

engaged in a “swinger type lifestyle.”

Mr. Small testified that he spoke to the Petitioner on the telephone on the day of

the victim’s death and that the Petitioner was crying and saying that “she was gone.” He

recalled that the Petitioner was at a little league football game with his son and that the

Petitioner had taken his son to the game because he wanted his sons to lead a normal life.

Mr. Small was not contacted prior to trial and did not testify at trial.

Ms. Cheryl Wallace, the Petitioner’s sister, testified that she was actively involved

in assisting trial counsel in preparing the Petitioner’s defense. She stated that she wrote a

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check in the amount of $2,800 to trial counsel for Dr. Nichols’s fees and that the check

cleared her bank. After writing the check, Ms. Wallace did not hear anything further

from trial counsel about Dr. Nichols, and Dr. Nichols did not testify at trial.

To pay for the Petitioner’s defense, Ms. Wallace took out a $60,000 loan against

her home, and the Petitioner and his mother each withdrew money from their retirement

accounts. Ms. Wallace and her mother also paid the bills at the Petitioner’s home for one

year. The house eventually went into foreclosure.

Ms. Wallace hired Ms. Mikki Jackson to clean the Petitioner’s home following his

arrest. After Ms. Jackson cleaned the home, Ms. Wallace learned that a large amount of

hair was found in the jets of the Jacuzzi. Ms. Wallace asked trial counsel to come to the

home and have someone examine the Jacuzzi. She said that although trial counsel

promised he would come to the home, he never visited the home or sent someone to

examine the Jacuzzi.

Ms. Wallace testified that she informed trial counsel about the Braswells’ sexual

lifestyle. Ms. Wallace recalled taking a family trip to Texas with the victim and the

Petitioner sometime near the Petitioner’s birthday. During the trip, the victim purchased

“stripper pole shoes” and told Ms. Wallace that she was going to dance for the Petitioner

and that she would do whatever the Petitioner wanted. Ms. Wallace said that trial

counsel never called her as a witness at trial.

On cross-examination, Ms. Wallace testified to her understanding that the

Petitioner and the victim were “swingers.” She said that she asked trial counsel to visit a

club where the Petitioner and the victim were members.

Ms. Wallace stated that Ms. Jackson cleaned the Petitioner’s home approximately

one month after the victim’s death. Ms. Wallace and her mother visited the home often

to move items into storage during the month prior to Ms. Jackson’s visit. On redirect

examination, Ms. Wallace testified that no one had lived in the house during the month

between the victim’s death and Ms. Jackson’s cleaning the house and that no one should

have used the Jacuzzi during that time period. Ms. Wallace stated that she requested that

trial counsel speak to Mr. Patrick Taliaferro, who performed heating and air conditioning

repairs, and to have Mr. Taliaferro test the water in the Jacuzzi.

In 2014, Ms. Wallace contacted the Tennessee Board of Professional

Responsibility (“BPR”) and the Lawyer Fund for Client Protections due to trial counsel’s

nonpayment of expert fees. She said she received a response from the BPR that included

a notice dated April 26, 2012, that trial counsel had been disbarred.

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Ms. Mikki Jackson testified that she was hired to clean the Petitioner’s home

following the victim’s death. She did not know how long after the victim’s death that she

cleaned the home but estimated that it was within a few days of the victim’s death

because there was food on the table that had not molded. Ms. Jackson stated that while

cleaning the bathroom, she checked to see whether the Jacuzzi was working properly.

She filled it up with water and discovered that the jets were not working. After draining

the water, she removed from the suctions “lots of gobs” of shoulder-length, black hair

that appeared to match the victim’s hair. She threw the hair away and cleaned out the

Jacuzzi, which then began working properly. She said that she initially did not tell

anyone about the hair because she did not believe it was important and that she believed

she later discussed her discovery with the Petitioner’s sister. Ms. Jackson said she was

contacted about making a statement regarding the hair but could not recall whether she

was contacted before or after trial. She did not testify at trial but stated that she would

have testified had she been requested to do so.

Mr. Patrick Taliaferro, who performed heating, ventilation, and air conditioning

repairs, testified that he examined the Petitioner’s water heater and Jacuzzi on August 14,

2005. He stated that the Petitioner’s water heater had two electric heaters inside of it, that

the thermostats could be manually set, and that both thermostats were set at 160 degrees.

Mr. Taliaferro measured the water temperature based on the 160-degree setting and

determined that the water was 147 degrees. He stated that the hottest temperature setting

for the model of the Petitioner’s water heater was 170 degrees, that the temperature for a

water heater in a residence is supposed to be around 120 degrees, and that the standard

temperature of water that a body can withstand is 120 degrees. Mr. Taliaferro stated that

he provided the information to either the Petitioner or the Petitioner’s sister and that trial

counsel did not contact him or call him to testify at trial.

The Petitioner testified that following his arrest, he spoke to attorneys Mr. Jerry

Stokes, Mr. Lee Wilson, and Mr. Wright and informed them that he and the victim

engaged in erotic asphyxiation on the night of her death. The Petitioner retained them

that day and said his family retained Mr. Ballin without his knowledge. Mr. Ballin and

Mr. Wright both appeared in court on the Petitioner’s first appearance date, and the

Petitioner and his family elected to proceed with Mr. Ballin as counsel. The Petitioner

also retained trial counsel, and both Mr. Ballin and trial counsel represented the Petitioner

at the preliminary hearing. The Petitioner maintained that trial counsel met with him on

the day following his arrest and that he informed trial counsel that he and the victim had

engaged in erotic asphyxiation. The Petitioner recalled that during a jury-out hearing at

trial, trial counsel called Mr. Wright to testify about the Petitioner informing him at the

time of arrest that the Petitioner and the victim engaged in erotic asphyxiation. However,

trial counsel never recalled Mr. Wrig

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