Martin Dean "Cub" Meeks v. State of Tennessee

08/14/2018

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs July 18, 2018

MARTIN DEAN “CUB” MEEKS v. STATE OF TENNESSEE

Appeal from the Circuit Court for Grundy County

Nos. 31CC1-2009-CR-2774, 4560 Thomas W. Graham, Judge

___________________________________

No. M2017-01887-CCA-R3-PC

___________________________________

The Petitioner, Martin Dean “Cub” Meeks, appeals the post-conviction court’s denial of

his petition seeking to overturn his conviction for first degree premeditated murder. The

Petitioner alleged that trial counsel was deficient in failing to obtain expert evidence, but

he did not present any expert testimony at the post-conviction hearing. Because the

Petitioner has not shown that he received ineffective assistance of counsel, we affirm the

denial of post-conviction relief.

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

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

CURWOOD WITT, JR., and ROBERT H. MONTGOMERY, JR., JJ., joined.

Alice W. Wyatt, Dunlap, Tennessee, for the appellant, Martin Dean “Cub” Meeks.

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

Mike Taylor, District Attorney General; and Steve Strain and David O. McGovern,

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

OPINION

FACTUAL AND PROCEDURAL HISTORY

Trial

During the course of a confrontation, the Petitioner shot and killed the victim, who

lived in a mobile home on property owned by the Petitioner’s family. The Petitioner,

who knew the victim to be habitually armed, maintained that he shot in self-defense when

he saw the victim digging in his pocket as though reaching for a revolver. A black-

handled revolver was discovered under the hip of the deceased victim, who had fallen on

his side. The defense argued at trial that the reasonable inference was that the victim was

attempting to shoot the Petitioner, whereas the State argued that a cigarette and cigarette

lighter found near the victim’s hands precluded the idea that he was also holding a gun.

The proof at trial showed that the Petitioner’s parents had invited the victim to

move his trailer onto their property twenty-five to thirty years prior to the shooting and

that the victim had continued to live there in the interval without paying rent. The

Petitioner’s father was deceased, but his mother resided in a home on the property. Both

the Petitioner and his mother had a friendly relationship with the victim.

A number of months prior to the shooting, the Petitioner moved in with his aging

mother to help care for her. The area near the victim’s mobile home had become

overgrown and neglected, and it contained several dilapidated outbuildings. The

Petitioner, with his mother’s permission, told Ms. Renee Brown Stephens and Mr. Glen

Stephens that they could move their horses and a mobile home onto the property if they

would help clear out the land.

The victim proved reluctant to share the property, and during the month that the

Petitioner and his friends worked at clearing the property, the victim continually cursed at

and harassed them. A few days prior to the shooting, the victim told one of his relatives

that the Petitioner’s friends would be working on the property that weekend and that he

was “going to shoot in the middle of them.” The Petitioner likewise testified that the

victim had threatened to kill him.

On the day of the shooting, the Petitioner, Ms. Stephens, Mr. Stephens, Mr.

Kenneth Clay, Mr. Brian Meeks, and Mr. Stephens’s teenage son were working to clear

out the land and were burning a building which was in danger of collapse. All but Mr.

Meeks testified at trial. The witnesses testified that the victim arrived at the property

irate that the fire was near his home and began to curse the workers. The Petitioner told

police in his statement that the victim threatened to kill him. After a period of argument,

the Petitioner walked to his mother’s home approximately 100 to 150 yards away to

retrieve a shotgun and five shells. According to the Petitioner’s testimony, he checked

the gun outside his mother’s home, discovered it was already loaded, and put the extra

shells into his pocket. He walked back to the area of the victim’s mobile home. The

Petitioner acknowledged to police that he was very angry at this time and that sometimes

he gets so angry that he “blacks out.”

When the Petitioner returned, the argument escalated. In his statement to police,

the Petitioner stated that he was angry and that he told the victim to “get [his] damn

-2-

trailer and leave.” State v. Martin Dean “Cub” Meeks, No. M2012-02200-CCA-R3-CD,

2013 WL 3968195, at *4 (Tenn. Crim. App. Aug. 1, 2013), no perm. app. filed. When

asked what he planned to do when he returned with his gun, the Petitioner told police, “If

he tried to shoot me, I’d sh[o]ot him.” Id. at *5. Mr. Stephens and his son testified that

they could see the victim and the Petitioner during the second phase of the argument and

that the Petitioner did not have the gun pointed at the victim. Mr. Stephens, his son, and

Ms. Stephens testified that they heard the Petitioner say something similar to, “Please,

don’t,” to the victim immediately prior to the shooting. Ms. Stephens, however,

acknowledged that in a prior statement, she had told law enforcement she was the one

who spoke the phrase to the Petitioner. Mr. Stephens recalled seeing the victim digging

in his pocket immediately prior to the shooting and saw a black object in the victim’s

hand. When misinformed by the police that no gun was found, Mr. Stephens

acknowledged to police that the object in the victim’s hand could have been a cigarette

case.

The Petitioner shot the victim in the chest with a slug, and the victim died shortly

thereafter from blood loss. The Petitioner placed the gun and extra shells on a nearby

“smoker,” and he asked his guests to leave. Ms. Stephens remained with the Petitioner

and assisted him in calling for help because he was too upset to be able to communicate

with the 911 operator. He maintained throughout the investigation that he only shot

because he believed the victim was preparing to shoot him.

A black revolver was found under the victim’s hip, and a red lighter and a

cigarette, which had burned down to the filter, were near the victim’s hands. A shell

casing was discovered around the corner of an outbuilding. A firearms expert testified

that he tested the Petitioner’s shotgun, that it automatically ejected casings six to eight

feet after firing, and that a casing could subsequently roll on the ground. Sheriff Brent

Myers testified that he believed from the location of the casing that the Petitioner was at

the corner of the outbuilding and could have been standing beside a tree at the corner.

Agent Larry Davis likewise testified that based on the location of the casing, he believed

the Petitioner was either at the corner of the building or just past the tree, but he also

testified that he believed the shotgun ejected casings only four to six feet. The Petitioner

testified that he walked approximately four to five feet from the corner of the building

and was facing the victim in the open prior to firing the shot. Approximately five hours

after the shooting, the Petitioner’s blood alcohol level was determined to be 0.07 percent,

and his blood also showed the presence of diazepam, commonly known as Valium, and a

metabolite of diazepam.

During deliberations, the jury sent out a written question asking about the presence

of “punts,” which the parties speculated was a misspelling of “prints,” on the victim’s

gun, and they also submitted a written question asking if the Petitioner had a prescription

-3-

for Valium. The trial court informed the jury that no further proof would be presented in

the case. The jury convicted the Petitioner of first degree premeditated murder, and he

received a life sentence. On appeal, the Petitioner argued that the trial court failed to act

as thirteenth juror, that the evidence was insufficient to support premeditation, and that it

was error to refuse to instruct on voluntary intoxication. Id. at *1. This court affirmed

the conviction and sentence. Id.

Post-Conviction

The Petitioner filed a timely post-conviction petition which was subsequently

amended by post-conviction counsel. Among the issues raised were trial counsel’s

failure to obtain a mental health evaluation for the Petitioner and trial counsel’s failure to

obtain a crime scene reconstruction expert.

Trial counsel testified that at the time of trial, he was the District Public Defender,

a post he had held since 1989. Trial counsel had handled numerous homicide cases in his

career. He and another attorney from the Public Defender’s Office represented the

Petitioner at trial, and he met with the Petitioner frequently. The defense theory was that

the homicide had either been committed in self-defense or that the presence of adequate

provocation reduced the crime to voluntary manslaughter.

Trial counsel was aware that he could apply for funding for expert witnesses on

behalf of an indigent client. He testified that he generally evaluated a client’s ability to

communicate and comprehend in deciding whether to engage a mental health expert but

that he would not necessarily engage one based on physical disability or the client’s use

of pain medication. He likewise stated that he would evaluate a client’s ability to

communicate in deciding whether low intelligence, a learning disability, or the client’s

use of psychiatric medication would warrant obtaining a mental health expert. Trial

counsel testified that his conversations with the Petitioner never caused him to have any

concern that the Petitioner had a mental health issue. The Petitioner was able to

communicate with trial counsel and understand the issues at trial, and he was

“forthcoming” with information.

Trial counsel stated he was not aware that the Petitioner received disability

income, and he did not recall seeing the Petitioner’s affidavit of indigency, which

reflected that he received disability income. Trial counsel noted that many of his clients

received income from disability but did not suffer from mental illness. He acknowledged

that he would have been concerned if he had seen a note indicating that the Petitioner had

attempted to commit suicide. Post-conviction counsel introduced notes from the Public

Defender’s file which documented that the Petitioner read slowly and may have been

dyslexic, that the Petitioner had attempted suicide, and that the Petitioner was taking

-4-

“psych meds” and “pain shots.” Trial counsel could not identify the notes and speculated

that they may have been written by the assistant public defender who represented the

Petitioner at the preliminary hearing. Trial counsel testified that the assistant public

defender who handled the preliminary hearing was particularly concerned with the

mental health of his clients and would have noticed if the Petitioner had been suffering

from mental illness.

Trial counsel identified his own notes documenting a meeting with the Petitioner.

The notes recount that the Petitioner asked about a plea offer for six years of

incarceration which he believed that trial counsel had conveyed to him by telephone. It is

apparent from the notes that while trial counsel did not recall communicating with the

Petitioner about such an offer, he did not entirely discount the possibility that such

communication had occurred. The notes reflect that trial counsel attempted to contact the

prosecutor from the jail in order to establish whether an offer had been made, and the

notes conclude, “hopefully there is a memo in my files to document that I at least had that

conversation with [the prosecutor].” The notes also reflect that the Petitioner may have

believed there was a plea offer due to a conversation that the Petitioner had with the

sheriff. Trial counsel testified at the post-conviction hearing that the Petitioner’s

reference to a nonexistent plea offer did not cause him concern for the Petitioner’s mental

health because inmates would sometimes get misinformation from other inmates or from

persons in positions of authority regarding the possibility of a plea offer.

Post-conviction counsel also introduced handwritten notes which documented that

the Petitioner had told trial counsel that even a six-year sentence would essentially

amount to a life sentence because the Petitioner believed he had a brain tumor. Trial

counsel testified that the Petitioner’s ability to communicate with trial counsel and

comprehend information did not appear negatively affected by any tumor. Trial counsel

acknowledged that his office sent the Petitioner a letter which the Petitioner claimed

never to have received.

Post-conviction counsel introduced the Petitioner’s medical records, which

reflected that he had attempted to commit suicide on May 18, 2008; that he had been

hospitalized for dizziness on November 3, 2008; that he was hospitalized for fainting on

December 25, 2008; and that he was again hospitalized for fainting on July 12, 2010.

The Petitioner’s medical records indicated that he did not remember in 2010 that he had

previously had a fainting episode, and a CT scan revealed an arachnoid cyst, which

medical records described as “probably old,” in his brain.

Trial counsel interviewed the Petitioner’s mother but did not ask her about the

Petitioner’s mental health. He identified a document directing the Petitioner’s mother to

permit preliminary hearing counsel to review the Petitioner’s records, and trial counsel

-5-

agreed that during his representation of the Petitioner, he would have had access to the

document granting access to the records. Trial counsel did not recall the jury’s sending a

question during deliberations regarding the Petitioner’s prescription for Valium.

Trial counsel interviewed law enforcement officers and all of the witnesses who

had been on the property at the time of the shooting. He testified that he investigated and

photographed the scene of the crime. He agreed that the crime scene had changed

considerably by the time he visited it, noting that a trailer had burned down. He relied on

the photographs and sketches submitted by the State, and the State’s photographs were

taken within two hours of the shooting. He agreed that a crime scene sketch produced at

the scene did not include the victim’s gun and that it was not to scale. Post-conviction

counsel noted that although the sheriff claimed to have produced the sketch, a Tennessee

Bureau of Investigation report reflected that it was produced by an investigator. Post-

conviction counsel also introduced subsequent handmade sketches produced by the

sheriff during witness interviews.

Trial counsel did not consider attempting to obtain a crime scene expert. He noted

that none of the State’s witnesses were qualified as crime scene experts and that he had

never seen a crime scene expert used in the district. He agreed that pictures presented at

the post-conviction hearing showed that the victim’s body had been moved. Emergency

services records showed that a call was made at 17:48 on the day of the crime, that

medical personnel arrived at 18:05, and that police arrived at 18:11. Trial counsel did not

recall inquiring into whether the victim had any cigarettes on his person or why he would

be looking for a lighter for a lit cigarette. Trial counsel interviewed patrons of a service

station that the victim frequented, and they told him that “about everybody around here

carries a weapon” but did not specifically state that the victim carried one. Trial counsel

presented the testimony of a relative of the victim, who stated that the victim had

threatened to shoot the Petitioner and his guests. He did not call a police officer who

encountered the victim the morning of the shooting and was told by the victim that “the

Sheriff’s Department had better do something [about the Petitioner’s horses] or he

would.” Trial counsel testified that the “bugaboo question” with respect to the crime

scene was whether the victim’s gun had been drawn from his pocket when he was shot.

No one had been able to determine whether the gun fell out of the victim’s pocket or was

dropped from his hand.

The post-conviction court found that trial counsel had no difficulty communicating

with the Petitioner and had no reason to doubt the Petitioner’s competency at the time of

the crime. Accordingly, it found that the failure to evaluate the Petitioner’s mental health

was not deficient. Likewise, the post-conviction court found that once the crime scene

had been altered, there was no way to accurately reproduce it and that lack of better crime

scene evidence could not be attributed to any deficiency on the part of trial counsel.

-6-

Addressing prejudice, the post-conviction court found that the proof at the hearing was

speculative and that the Petitioner had not demonstrated prejudice. The Petitioner

appeals the denial of the petition.

ANALYSIS

The Petitioner asserts that he is entitled to post-conviction relief. The Post-

Conviction Procedure Act provides for relief when a petitioner’s conviction or sentence is

void or voidable due to the abridgment of a right guaranteed by the United States

Constitution or by the Tennessee Constitution. T.C.A. § 40-30-103. The Petitioner here

claims that his sentence is voidable because he received ineffective assistance from his

trial counsel, and a claim of ineffective assistance of counsel is a mixed question of law

and fact. Moore v. State, 485 S.W.3d 411, 419 (Tenn. 2016). An appellate court reviews

de novo with no presumption of correctness the post-conviction court’s conclusions of

law, its determinations of mixed questions of law and fact, and its application of law to

factual findings. Kendrick v. State, 454 S.W.3d 450, 457 (Tenn. 2015). The post-

conviction court’s factual findings are conclusive on appeal unless the record

preponderates otherwise. Nesbit v. State, 452 S.W.3d 779, 786 (Tenn. 2014). An

appellate court does not reweigh or reevaluate the evidence or substitute its own

inferences for those of the fact-finder. Kendrick, 454 S.W.3d at 457. On appeal, we

defer to the post-conviction court’s findings regarding witness credibility, the weight and

value of witness testimony, and the resolution of factual issues presented by the evidence.

Id. The petitioner bears the burden of demonstrating the allegations of fact entitling him

to relief by clear and convincing evidence. T.C.A. § 40-30-110(f).

A person accused of a crime is entitled to the assistance of counsel in criminal

proceedings under the Sixth Amendment to the United States Constitution and under

article I, section 9 of the Tennessee Constitution. These provisions guarantee the

reasonably effective assistance of counsel. Nesbit, 452 S.W.3d at 786. The deprivation

of this right is a cognizable claim under the Post-Conviction Procedure Act. Moore, 485

S.W.3d at 418. To prevail on a claim, the petitioner must show that trial counsel’s

representation “‘so undermined the proper functioning of the adversarial process that the

trial cannot be relied on as having produced a just result.’” Felts v. State, 354 S.W.3d

266, 276 (Tenn. 2011) (quoting Strickland v. Washington, 466 U.S. 668, 686 (1984)).

In order to demonstrate that he received ineffective assistance of counsel, a

petitioner must show both that trial counsel performed deficiently and that the deficient

performance prejudiced the defense. Nesbit, 452 S.W.3d at 786 (citing Strickland, 466

U.S. at 687). Failure to prove either deficiency or prejudice precludes relief, and the

court need not address both components if the petitioner has failed to make a showing on

one. Calvert v. State, 342 S.W.3d 477, 486 (Tenn. 2011).

-7-

To show deficient performance, a petitioner must demonstrate that “‘counsel’s

representation fell below an objective standard of reasonableness’ guided by

‘professional norms’ prevailing at the time of trial.” Felts, 354 S.W.3d at 276 (Tenn.

2011) (quoting Strickland, 466 U.S. at 688). In other words, the petitioner must

demonstrate that counsel’s errors were “‘so serious that counsel was not functioning as

the “counsel” guaranteed the defendant by the Sixth Amendment.’” Id. (quoting

Strickland, 466 U.S. at 687). Counsel’s performance is not measured by “‘20-20

hindsight.’” Id. at 277 (quoting Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982)). Instead,

the court applies a strong presumption that counsel’s performance was within the bounds

of reasonable professional assistance. Dellinger v. State, 279 S.W.3d 282, 293 (Tenn.

2009). “‘[S]trategic choices made after thorough investigation of law and facts relevant

to plausible options are virtually unchallengeable; and strategic choices made after less

than complete investigation are reasonable precisely to the extent that reasonable

professional judgments support the limitations on investigation.’” Kendrick, 454 S.W.3d

at 458 (quoting Strickland, 466 U.S. at 690-91).

To show prejudice, a petitioner must establish that there is “‘a reasonable

probability that, but for counsel’s unprofessional errors, the result of the proceeding

would have been different. A reasonable probability is a probability sufficient to

undermine confidence in the outcome.’” Felts, 354 S.W.3d at 277 (quoting Strickland,

466 U.S. at 694). The question at its core is “‘whether counsel’s deficient performance

renders the result of the trial unreliable or the proceeding fundamentally unfair.’”

Kendrick, 454 S.W.3d at 458 (quoting Lockhart v. Fretwell, 506 U.S. 364, 372, (1993)).

When a claim of ineffective assistance of counsel is premised on counsel’s failure

to interview or call witnesses, the witnesses must be presented at the post-conviction

hearing. Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990). “‘As a general

rule, this is the only way the petitioner can establish that ... the failure to have a known

witness present or call the witness to the stand resulted in the denial of critical evidence

which inured to the prejudice of the petitioner.’” Pylant v. State, 263 S.W.3d 854, 869

(Tenn. 2008) (quoting Black, 794 S.W.2d at 757). This is because the court cannot

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

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

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

S.W.3d at 869-70.

A. Failure to Obtain Mental Health Evaluation

The Petitioner argues that trial counsel was deficient in not seeking to have the

Petitioner’s mental health evaluated prior to trial. The Petitioner notes that trial counsel

was on notice that the Petitioner was disabled; that the Petitioner believed he had a brain

-8-

tumor; that he had attempted suicide; that he was possibly dyslexic; that he was taking

psychiatric medication; that he would sometimes forget events that occurred when he was

very angry; that he claimed to have had a conversation with trial counsel which trial

counsel believed never took place; that he claimed not to have received one of trial

counsel’s letters; and that the toxicology report indicated he was taking diazepam at the

time of the crime.

The Petitioner notes that despite these indications of a possible mental health

issue, trial counsel did not interview the Petitioner or his family about his medical and

mental health history and did not obtain the Petitioner’s medical records, which indicated

a prior suicide attempt, fainting, and an arachnoid cyst in his brain. The post-conviction

court credited trial counsel’s testimony that the Petitioner had no difficulty

communicating with him or understanding the proceedings and that he accordingly did

not believe that a mental health evaluation was necessary. At trial, the defense attempted

to show that the Petitioner had acted in self-defense by shooting the armed victim, who

had threatened to kill the Petitioner. The defense also asserted that the act of retrieving

the shotgun was not indicative of premeditation because the Petitioner did not intend to

harm the victim but only wanted to be able to protect himself should the victim follow

through with his threats. To that end, the defense presented numerous witnesses,

including the Petitioner, who testified regarding the victim’s hostile behavior and the

Petitioner’s reasonable belief that the victim was attempting to retrieve a weapon from

his pocket. The Petitioner testified lucidly at trial.

At the post-conviction hearing, the Petitioner established that he had attempted

suicide, suffered episodes of fainting, had an arachnoid cyst in his brain, and was taking

diazepam, but there was no testimony from a mental health expert regarding what effect,

if any, these mental health issues would have had on the Petitioner’s competency to stand

trial or ability to act in a premeditated fashion. The Petitioner has not shown that the

omitted mental health evaluation affected the results of the proceeding. See Williamson

v. State, 476 S.W.3d 405, 422-23 (Tenn. Crim. App. 2015) (concluding that although trial

counsel was deficient in failing to obtain a mental health evaluation of the petitioner, the

expert’s testimony would not have been admissible unless it reached the “ultimate issue

of the Petitioner’s capacity to form the required mens rea”). Accordingly, the Petitioner

has not shown prejudice.

The Petitioner notes that there is no public funding available to obtain a mental

health expert for post-conviction relief. See Tenn. Sup. Ct. R. 13, § 5(a)(2); Davis v.

State, 912 S.W.2d 689, 696-97 (Tenn. 1995) (“[T]he state is not required to provide

expert assistance to indigent non-capital post-conviction petitioners.”). He argues that

trial counsel’s failure to avail himself of funding is accordingly prejudicial because it

permanently deprived the Petitioner of the opportunity to obtain any evidence regarding

-9-

mental illness or defect which could have rebutted premeditation or otherwise assisted the

defense. This argument in essence asks us to impose a new standard for prejudice, one

that analyzes whether any alleged deficiency has resulted in the loss of the opportunity to

obtain or generate evidence. We decline to do so. Instead, our prejudice inquiry focuses

on whether there is a reasonable probability that the outcome of the trial would have been

different were it not for any deficiency on the part of trial counsel. Here, there is no

evidence to suggest that a mental health evaluation would have shown that the Petitioner

was not competent to stand trial, that he was incapable of performing a premeditated act,

or that the discovery of a mental health issue would otherwise have affected the result of

the proceeding. See Pylant, 263 S.W.3d at 869; Black, 794 S.W.2d at 757; see also

Joseph Cordell Brewer, III, v. State, No. W2016-02106-CCA-R3-PC, 2018 WL 446686,

at *4 (Tenn. Crim. App. Jan. 16, 2018), perm. app. denied (Tenn. May 17, 2018)

(concluding that the petitioner could not show prejudice without presenting an expert and

noting that the petitioner did not raise the argument that his inability to present expert

testimony violated his due process rights). The Petitioner has not demonstrated that the

absence of an evaluation by a mental health expert had any effect on the outcome of the

proceeding, and he is not entitled to relief.

B. Failure to Obtain a Crime Scene Expert

The Petitioner also faults trial counsel for failing to procure an expert to dispute

the crime scene evidence. He asserts that the testimony of Sheriff Myers and Agent

Davis tended to suggest that the Petitioner had ambushed the victim, that the evidence

demonstrated that the victim’s body had been moved by law enforcement and possibly

medical personnel, and that the crime scene drawings submitted by the State were

inaccurate. The State responds that the decision to rely on crime scene evidence gathered

by the State was reasonable and that the Petitioner has not established prejudice. The

post-conviction court found that lack of better crime scene evidence could not be

attributed to any deficiency on the part of trial counsel and that the Petitioner had not

shown prejudice.

At the post-conviction hearing, trial counsel testified that the “bugaboo question”

at trial was whether the victim was in the process of drawing his weapon when the

Petitioner fired. Trial counsel stated that he was not aware of any expert testimony that

could have assisted the defense on that issue. The proof at trial was that, after retrieving

the shotgun, the Petitioner came around the corner of an outbuilding, continued the

argument with the victim, and ultimately fired at the victim. While a police report

reflects that police initially suspected the Petitioner of “ambush[ing]” the victim, the

State’s witnesses at trial testified only that the Petitioner was near the corner of a

building, and none of the State’s witnesses testified as experts in crime scene

reconstruction. Instead, the jury was essentially tasked with determining whether the

- 10 -

Petitioner had acted in self-defense and, if not, whether the Petitioner’s act of retrieving

the shotgun and then shooting the victim was premeditated. Trial counsel extensively

cross-examined the witnesses about inaccuracies in the crime scene drawings and about

the placement of the victim.

The Petitioner makes no allegations regarding what testimony an expert could

have given to support the defense theory that the victim was in the process of drawing his

gun or how an expert would have otherwise supported the Petitioner’s version of events.

Trial counsel thoroughly cross-examined the State’s witnesses regarding the crime scene,

and he introduced witnesses who supported the Petitioner’s testimony that he confronted

the victim and that the victim appeared to be drawing a weapon. We cannot conclude

that trial counsel was deficient in failing to obtain a hypothetical crime scene expert.

Neither did the Petitioner present the testimony of any crime scene expert at the

post-conviction hearing to demonstrate that expert testimony would have shown that the

crime scene supported the defense’s theory of the events. Without such an expert, the

Petitioner cannot show that there is a reasonable probability that trial counsel’s failure to

obtain expert evidence affected the outcome of the trial. See Pylant, 263 S.W.3d at 869;

Black, 794 S.W.2d at 757. We conclude that the Petitioner has not demonstrated any

prejudice.

CONCLUSION

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

court.

___________________________________________

JOHN EVERETT WILLIAMS, PRESIDING JUDGE

- 11 -