# Vern Braswell v. State of Tennessee

> Court of Criminal Appeals of Tennessee · April 9, 2018

URL: https://www.frixlaw.com/law-library/cases/4262581

## Case

- **Court:** Court of Criminal Appeals of Tennessee
- **Decided:** April 9, 2018
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Judge John Everett Williams
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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
___________________________________

No. W2016-00912-CCA-R3-PC
___________________________________

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
-8-
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

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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
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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.
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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
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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.
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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 ho

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4262581. Public record. Not legal advice.