Rachel Kay Bond v. State of Tennessee

09/19/2019

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs June 19, 2019

RACHEL KAY BOND v. STATE OF TENNESSEE

Appeal from the Circuit Court for Lawrence County

No. 34613 Stella L. Hargrove, Judge

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No. M2018-01324-CCA-R3-PC

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The Petitioner, Rachel Kay Bond, appeals the Lawrence County Circuit Court’s denial of

post-conviction relief from her conviction of first degree murder. On appeal, the

Petitioner contends that she was denied the effective assistance of counsel based on trial

counsel’s failure to: 1) request a change of venue; 2) strike three potential jurors; 3)

investigate the existence of text messages stored in the Petitioner’s cell phone; 4)

adequately cross-examine a witness; and 5) challenge the Petitioner’s competency. The

Petitioner also alleges that trial counsel was ineffective because he allowed her to testify.

Following a review of the record and applicable law, we affirm the judgment of the post-

conviction court.

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

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

THOMAS, JR. and ROBERT L. HOLLOWAY, JR., JJ., joined.

Amy L. Schisler, Lawrenceburg, Tennessee, for the Appellant, Rachel Kay Bond.

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

Attorney General; Brent A. Cooper, District Attorney General; and Gary Howell and

Christi Thompson, Assistant District Attorneys General, for the Appellee, State of

Tennessee.

OPINION

FACTS AND PROCEDURAL BACKGROUND

The Petitioner was convicted of first degree murder of Mr. Robert Oscar Davis

under a theory of criminal responsibility and was sentenced to life imprisonment. The

evidence presented at trial established that the Petitioner was in a romantic relationship

with the victim. The Petitioner maintained that the victim physically abused her, and the

State presented evidence that she asked her friend, Mr. Ricky Houser, to “get rid of” the

victim. Mr. Houser killed the victim. This court affirmed the Petitioner’s conviction on

direct appeal. See State v. Rachel Kay Bond, No. M2015-01433-CCA-R3-CD, 2016 WL

4548107, at *18 (Tenn. Crim. App. Aug. 31, 2016). In 2017, the Petitioner filed a

petition requesting post-conviction relief. Following a hearing, the post-conviction court

denied her relief. She now appeals.

I. Trial

This court summarized the evidence present at trial as follows:

Benjamin Fisher, general manager at Schaffer’s Muffler in Pulaski,

Tennessee, testified that the victim was an employee at the muffler shop for

approximately five and a half years. Mr. Fisher described the victim as a

good and reliable employee. Mr. Fisher recalled the last time he saw the

victim in May 2013. He said that it was a Thursday evening and the victim

said, “I'll see you in the morning” as he left but that the victim never arrived

at work the following morning.

Tim Nolen testified that the victim had been married to his sister and

that he and the victim were “best friends.” Mr. Nolen said that he and the

victim were in daily contact and that the victim “texted everybody” with his

cell phone. Mr. Nolen recalled that the victim visited his home on

Thursday, May 2, 2013, in Anderson, Alabama after the victim finished

work. The victim remained at Mr. Nolen’s home until 2:00 or 2:30 a.m.

The victim left because he was driving a 1968 Super Sport Chevelle that

night and wanted to get the Chevelle “put up” before it began raining. Mr.

Nolen said that the victim also drove a Chevrolet truck.

Mr. Nolen testified that the victim had planned to return to Mr.

Nolen’s residence at 5:30 a.m. to drive Mr. Nolen’s truck to work. The

victim lived five or six miles, a ten-minute drive, from Mr. Nolen’s

residence. Mr. Nolen never heard from the victim again after the victim left

in the early morning hours of May 3. Mr. Nolen called and texted the

victim throughout the day but received no response. At some point,

Lawrence County law enforcement officers contacted Mr. Nolan to ask him

questions about his last interaction with the victim.

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Keith Wooten testified that he lived in West Point, Tennessee. He

said that on school mornings he would drive his nephew to the school bus

stop. On the drive to the bus stop he drove over Chisholm Creek Bridge.

On Friday morning May 3, 2013, at 6:30 a.m., as he drove his nephew to

the school bus stop, he noticed a red truck parked in a parking lot area next

to the bridge. Keith Wooten thought it was odd that a vehicle would be

parked there so early in the morning. He explained that normally trucks

parked there to unload four-wheelers “for the day.”

Bobby Wooten, Keith Wooten’s father, testified that in May 2013 he

noticed a red truck parked next to the creek near his home. He said the

truck was “completely half hidden” and not the type of truck that would

normally be in the parking lot. He explained that near the creek were

motorcycle and four-wheeler trails, so trucks that pulled four wheelers often

parked in that area. The red truck he observed on the morning of May 3,

2013, had “big chrome wheels” and “road tires” unlike the trucks that

Bobby Wooten normally saw in that parking area. He recalled that the

truck remained in that location for the entire weekend. When the truck was

still there on Monday morning, Bobby Wooten stopped to inspect the truck.

He said that, other than a flat front right tire, he noticed nothing unusual

about the truck. Bobby Wooten wrote down the license tag number and

asked his son, Keith Wooten, to “report the truck.”

Adam Brewer, a Lawrence County Sheriff’s Department deputy,

testified that his department received a report that the victim was missing

on May 6, 2013. The caller indicated that no one had been in contact with

the victim since May 3, 2013. After confirming this with other relatives

and acquaintances, Captain Brewer issued a “be on the lookout” (“BOLO”)

through dispatch. The victim’s vehicle information was also entered into

NCIC, a national database, in the event the victim was stopped in his

vehicle. At some point, dispatch was advised of an abandoned vehicle in

West Point, Tennessee, that was traced back to the victim.

Captain Brewer testified that the truck was towed to the impound lot

and stored as evidence. He then requested a locator be placed on the

victim’s cell phone. Captain Brewer said an attempt was made but there

was no service to the phone, so either the phone had been turned off or the

phone was in an area with no service. The Sheriff’s Department also made

a request to the cell phone provider for the victim’s cell phone records.

Captain Brewer reviewed the records and found that the last contact with

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the victim by phone was on Friday, May 3, 2013, at 4:58 a.m. with phone

number [ending in 4741].

Captain Brewer testified that he then began investigating the person

associated with the 4741 number. After learning that the number was an

“Air Voice” number sold through a second party so that AT&T would be

unable to provide subscriber information, Captain Brewer requested a

locator for the cell phone number. After several attempts, Captain Brewer

obtained a physical address associated with the number. The address,

which was the [Petitioner’s], was located on Second Creek Road in

Lawrence County.

Captain Brewer testified that, on the evening of May 8, 2013, he and

Lieutenant Neese went to the Second Creek Road address to speak with the

[Petitioner]. Lieutenant Neese knocked on the front door while Captain

Brewer walked around to the rear of the house “for safety reasons.”

Captain Brewer heard the bolt on the back door rattle and observed Rick

Houser, wearing a motorcycle helmet, exit the residence. Captain Brewer

stopped Mr. Houser and asked what he was doing. Mr. Houser acted

suspiciously and finally answered, “I’m going to get bread.” Due to his

behavior, Captain Brewer asked for consent to search Mr. Houser’s person

for weapons. During the search, he found a small amount of marijuana and

detained Mr. Houser at the front of the house.

Captain Brewer testified that the [Petitioner] and her two children

were inside the residence. While he and Lieutenant Neese spoke to her

about the victim’s disappearance, she appeared very nonchalant until she

mentioned that the victim had called her children “bastards.” When she

spoke of this, she became angry and “tensed up.” While at the residence,

Captain Brewer looked around the backyard and saw a large shed that had

been recently used and noticed piles of toilet paper as if someone were

using the shed as a bathroom. He explained that he thought this odd

because the residence had indoor plumbing.

Captain Brewer testified that he and Lieutenant Neese collected both

the [Petitioner’s] and Mr. Houser’s cell phones. The [Petitioner] confirmed

that her cell phone number was [] the number that the phone records

indicated had last made contact with the victim. Captain Brewer testified

that, because the phones were “basic flip phones,” little information could

be gathered from the phones. He sent the victim’s phone and “these” text

messages to the Regional Organized Crime Information Center

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(“R.O.C.I.C.”), an intelligence organization serving the southeast, for

further analysis.

On cross-examination, Captain Brewer testified that he was familiar

with the victim relevant to prior investigations of drug-related activity.

Captain Brewer confirmed that he was aware of a police report on April 2,

2013, involving the victim as a trespasser on the [Petitioner’s] property.

Captain Brewer confirmed that he was also familiar with Mr. Houser, a

“known drug associate.” Captain Brewer stated that both Mr. Houser and

the [Petitioner] were arrested at the [Petitioner’s] residence on drug charges

on May 8, 2013.

Jennifer Dalmida, a Verizon Wireless Executive Relations Analyst,

testified that she also served as record custodian for Verizon. Ms. Dalmida

confirmed that she received a subpoena from the Lawrence County

Sheriff’s Department regarding the records associated with the victim’s cell

phone number. Ms. Dalmida said that, in response, she provided the cell

phone records for the victim’s cell phone number, which included sent and

received text messages, the text messages’ content, call details, and

subscriber information. The parameter for this information was from May

2, 2013 to May 3, 2013. Ms. Dalmida explained that the records for each

subscriber were kept electronically in the normal course of business

operations.

Carol Gilligan, an AT&T legal compliance analyst, testified that she

received a request from the Lawrence County Sheriff’s Department

concerning specific cell phone records. Ms. Gilligan confirmed that the

requested records were kept in the normal course of business. The two

numbers, [] (“4741”) and [] (“4802”), requested by the sheriff’s department

were both accounts sold through an entity other than AT&T, and AT&T

provided only the service. As such, AT&T had access to the account

activity but not the subscriber names. The two accounts were not AT&T

customers but were using the AT&T network. Ms. Gilligan said that the

time parameter for the 4802 account was May 6, 2013, to May 8, 2013.

The time parameter for the 4741 account was May 2, 2013, to May 8, 2013,

and the information compiled included both voice calls and text message

transmissions. The text message transmission information did not include

the actual text content.

Kristie Wixson, a Regional Organized Crime Information Center

criminal intelligence analyst, testified that she worked in the Nashville,

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Tennessee office. The Lawrence County Sheriff’s Department requested

assistance in a missing person case and, on July 1, 2014, she was assigned

to assist the sheriff’s department in the investigation. Lieutenant Neese

provided her with telephone records for the victim, the [Petitioner], and Mr.

Houser. Specifically, he requested cell tower mapping for the phone

records.

Ms. Wixson testified that using the cell phone records and a

mapping system she created a map for the cell phone usage of the

[Petitioner’s] phone and Mr. Houser’s phone for May 3, 2013, from 12:00

a.m. to 9:00 a.m. She created a second map based upon the [Petitioner’s]

cell phone use from May 6, 2013, at 12:00 a.m., through May 8, at 12:07

a.m. She created another map for the [Petitioner’s] cell phone use

beginning May 2, 2013, at 8:00 a.m. through May 5 at 11:59 p.m. She

created a fourth map showing the victim’s cell phone activity on May 3,

2013, from 12:00 a.m. to 5:10 a.m. The last map Ms. Wixson created

showed the combined activity for the [Petitioner], Mr. Houser, and the

victim’s cell phones on May 3, 2013, from 12:00 a.m. until 5:56 a.m.

Ms. Wixson testified that Lieutenant Neese also provided her with

text messages from the victim’s cell phone. Ms. Wixson said that from this

information she compiled the text message information into a timeline that

included the actual content of the messages.

Nathan Neese, a Lawrence County Sheriff’s Department deputy,

testified that on May 7, 2013, Captain Brewer notified him of a missing

person report filed with the sheriff’s department. First, Lieutenant Neese

issued a BOLO to surrounding agencies with a description of the victim and

his vehicle. As a result, another deputy notified Lieutenant Neese that a

truck matching the description provided in the BOLO had been located near

Pinkly Bridge. Lieutenant Neese and Captain Brewer went to West Point

and confirmed that it was the victim’s truck. Lieutenant Neese recalled that

the truck had a flat tire, the right rearview mirror had been pushed in, and

there were leaves around the window and mirror. He said that the vent

window on the right passenger side door of the truck was open, but the

truck doors were locked. Lieutenant Neese testified that he had the truck

towed to the impound lot for storage pending further investigation of the

missing person report.

Lieutenant Neese testified that he spoke with the victim’s family

about the victim’s connection to the West Point area, and he learned that

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the victim had “seen a female from that area.” Based upon this

information, Lieutenant Neese made contact with Felicia Fourakre, who

had last seen the victim on May 1, 2013, at the [Petitioner’s] residence in

Five Points. Deputies then pursued possible leads related to cell phone

records. The cell phone records indicated that the victim’s last contact by

phone was with the [Petitioner].

Lieutenant Neese testified that he also reviewed bank records in the

course of his investigation. In so doing, he found that the victim’s last

purchase with his debit card was made on May 2, 2013, at 5:46 p.m. at a

Wal-Mart in Pulaski, Tennessee. Lieutenant Neese obtained surveillance

video from the Wal-Mart and confirmed that it was the victim who made

the purchase at Wal-Mart on May 2. During this part of the investigation,

Lieutenant Neese also learned of another cash purchase the victim made at

a Walgreen’s in Athens, Alabama, between 7:00 and 8:00 p.m. on May 2.

Lieutenant Neese again spoke with family members to try to ascertain why

the victim would have been in Athens, Alabama, and learned that some

family members, specifically Timothy Nolen, lived in Anderson, Alabama.

Lieutenant Neese met with Mr. Nolen who provided a statement consistent

with his trial testimony.

Lieutenant Neese testified that he went to the victim’s residence and

confirmed that an orange Chevelle was parked in a shed, consistent with

Mr. Nolen’s statement about the [Petitioner’s] taking the Chevelle home

before the rain began. Lieutenant Neese described the shed where the

Chevelle was parked as “a pretty tight spot” and recalled that family

members told him that the victim was the only one who knew how to park

the Chevelle in the shed due to the small space. The keys to the Chevelle

were found inside the [Petitioner’s] residence on an end table.

Lieutenant Neese testified that, on May 8, 2013, based upon

information gathered from the victim’s cell phone records, he and Captain

Brewer went to the [Petitioner’s] residence. He described the [Petitioner’s]

residence as a white, vinyl siding house with a wood front porch that sat

“slightly up on a hill.” He recalled that there was a wooden shed located to

the back right of the residence and a second wooden “open-air” shed that

sat further back behind the shed nearest to the residence. A well pump was

located to the left of the back door. Lieutenant Neese introduced himself to

the [Petitioner] and explained that he was conducting follow-up on a

missing person. He recalled that one of the [Petitioner’s] first questions to

him was, “Have you found [the victim] yet?” The [Petitioner] did not

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provide any information at the time but invited the deputies inside her

home. While inside, the deputies found drugs and drug paraphernalia, and,

as a result, the [Petitioner] and Mr. Houser were arrested.

Lieutenant Neese testified that he interviewed both the [Petitioner]

and Mr. Houser at the sheriff’s department following their arrests. After

signing a Miranda waiver, the [Petitioner] gave a statement. Lieutenant

Neese read the statement aloud as follows:

[Q]uestion: What can you tell me about [the victim] missing?

[Answer:] I told Ricky Houser about [the victim] putting his

hands on me again. I told [Mr. Houser] that I wished [the

victim] would just break up with me and stay away from me.

I was unable to make [the victim] stay away from me because

I loved him too much.

[Mr. Houser] said that I did not deserve that and it needed to

be took care of. I did not think [Mr. Houser] meant harming

him or killing him. It’s just not what you think about.

[Mr. Houser] kept calling and checking on me. [Mr. Houser]

was texting me, saying he needed to get ready for [the victim]

to come over. [Mr. Houser] made that statement after I told

[Mr. Houser] [the victim] was coming over.

[The victim] texted me and I was texting him back. We was

talking about watching a porn movie and having sex.

I was peeing in the bathroom and I heard [the victim] pull up

... I heard [the victim] pull up to the house.

While I was still in the house, I heard a loud smack, then

another. And after that, I heard a loud painful moan and I

knew it was [the victim’s] voice. Then I heard more loud

smacks over and over again.

I got in the shower, after locking the bathroom door.

[Mr. Houser] was in the house and was calling my name.

[Mr. Houser] came to the bathroom door and said, “It’s done,

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girl. You don’t have to be scared no more. That mother

f**ker won’t hit you again.”

I asked him, “What did you do?”

And he said, “I took care of it.”

I started to lose it and started to cry.

[Mr. Houser] walked away for a little while. Then [Mr.

Houser] came back and started to bang on the bathroom door

and told me I had to get out of the f** king bathroom. He

said, “I got to talk to you.”

I opened the door and [Mr. Houser] puts both hands on my

shoulders. I asked him, “What did you do?”

[Mr. Houser] said, “It’s okay. You don’t have to be scared.”

[Mr. Houser] kissed me on the forehead and said, “Don’t

worry about it.”

[Mr. Houser] wanted me to [go] outside with him. [Mr.

Houser] said “Come on, I want you to see this mother f**ker

suffer.”

I closed myself back in the bathroom. I went down and

started crying.

[Mr. Houser] came back to the door a few times saying, “You

have to hold it together. We are in this together.”

I kept screaming, “I didn’t want this. I loved him.”

[Mr. Houser] told me we were in the same shoes. [Mr.

Houser] said, “We have got to keep in touch.”

I stayed in the bathroom and I heard the truck start up and the

truck sits there running. Then the truck took off.

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[Mr. Houser] waited a little bit and then texted me asking if I

was okay. [Mr. Houser] texted me saying, “Hold it together.

This is what you wanted.”

I can’t remember if he said this on a phone call or sent it in a

text, but [Mr. Houser] said, “You should hear this mother

f**ker gurgling.”

I asked him, “Why did you do that? What did you do?”

[Mr. Houser] said that it would be a better life for me and my

kids. [Mr. Houser] again, making sure I was okay and

holding it together. [Mr. Houser] texted me and said, “I got

rid of it.”

Then he said that he dropped off the truck and got 30 miles to

walk. He was texting just casual conversation. [Mr. Houser]

texted me and said, “About to get to the house.”

And he said, “Am I going to be able to come over?”

I told him, “It would be okay.”

I left my house and went to Nanner’s (phonetic) house, which

is Barry Williams.

Question: Do you know what Ricky Houser hit [the victim]

with?

[Answer]: [Mr. Houser] told me he smacked [the victim] with

a metal bat and he went down.

Question: Have you and [Mr. Houser] had conversation about

what happened since it happened?

Answer: Yes.

Question: What was said in those conversations?

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Answer: [Mr. Houser] would talk about [the victim] just

dying and making a gurgling sound. [Mr. Houser] also said

that he was hoping the coyotes would get him.

Question: Did [Mr. Houser] ever mention what he done with

[the victim’s] body?

Answer: [Mr. Houser] said that he put his body off of a horse

trail, but no one would see him, but they might smell him. He

said that he wouldn’t go to him, because the limbs would

smack them in the face. [Mr. Houser] said he laid [the

victim] face down so he would not have to look at that ugly

son of a b** ch.

Question: We went over your statement. You stated you

made a mistake. What was that mistake?

Answer: [Mr. Houser] said that I was just as guilty as he was,

not that we were in the same shoes.

Question: Is there anything you want to add or take away

from this statement?

Answer: Not at this time. I felt like I had to do what [Mr.

Houser] said or I would get hurt.

After speaking with the [Petitioner], Lieutenant Neese interviewed

Mr. Houser who also provided a statement. Mr. Houser confirmed that the

4802 cell phone number was his number. He denied any knowledge about

the victim or the victim’s whereabouts. Mr. Houser acknowledged that he

sent a text message to the [Petitioner] that said, “I got rid of it and I took

care of your problem,” but denied that this message related to the victim.

Mr. Houser told law enforcement that he had known the [Petitioner] for

eighteen years and that one of the [Petitioner’s] daughters “should be his

daughter.” Mr. Houser became visibly upset when Lieutenant Neese asked

if the victim had “terrorized” the [Petitioner] and her daughters. Mr.

Houser stated that the [Petitioner] had told him that the victim had called

the [Petitioner] a “dope whore” and her children “bastards.” Lieutenant

Neese said that, at this point, they took a small break to allow Mr. Houser

to compose himself. When Mr. Houser indicated that he was “okay,”

questioning resumed.

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Lieutenant Neese testified that he asked Mr. Houser about

abandoning the victim’s truck at the creek, and Mr. Houser responded,

“[N]o one saw me walking West Point.” Lieutenant Neese s[t]ated that,

according to the [Petitioner], Mr. Houser had someone pick him up and

drive him home after he abandoned the victim’s truck. Mr. Houser

expressed that he was nervous and “going to pass out.” He stated that he

could not account for his whereabouts on May 3 and asked for an attorney.

Lieutenant Neese terminated the interview upon Mr. Houser’s request for

an attorney.

Lieutenant Neese testified that the [Petitioner] offered to take

deputies to locations Mr. Houser frequented in an attempt to locate the

victim’s body. On May 10, 2013, the [Petitioner] directed the deputies to a

cabin in an area called “the Granddaddy Field.” This cabin was located

“fairly close” to Mr. Houser’s residence. On this same day, the [Petitioner]

gave the deputies consent to search her residence. During the search,

deputies collected a pillow case from a closet inside the residence.

Lieutenant Neese said that he also photographed a note with various

telephone numbers listed on it and a “hosepipe” attached to a water spigot

on the outside of the [Petitioner’s] house.

Lieutenant Neese testified that on May 11, 2013, Lieutenant Dean

notified him that a body had been recovered “in the Bryant Boswell Road

area.” Lieutenant Neese described this area as in the western part of

Lawrence County, between Lawrenceburg and West Point. When he

arrived at the location where the victim’s body was found, he saw “two

arms sticking out from under a pile of what look[ed] to be cedar ... trees

that are laid on the ground in a pile.” Lieutenant Neese noticed several

cedar sapling trees in the area that had been freshly cut down at the portion

of the trunk close to the ground. Once law enforcement officers began

removing the cedar trees placed over the body, Lieutenant Neese saw that

the body was lying face down, missing a left shoe, and clothed in

camouflage boxer shorts. He recalled that a black t-shirt was found

between the victim’s legs at his buttocks area. Lieutenant Neese observed a

tattoo on the left arm that was later used for identification purposes in

confirming that the deceased was the victim.

Lieutenant Neese testified that, when recovering items from the

scene, he recognized the black Kevin Harvick racing t-shirt found between

the victim’s legs as the same shirt the victim had been wearing in the May

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2, 2013 Walgreens surveillance video taken in Athens, Alabama.

Lieutenant Neese said that he also recovered cut cedar saplings from the

scene. On the trail that led down to the area where the victim’s body was

found, law enforcement officers found a king size fitted bed sheet.

Lieutenant Neese testified that, following discovery of the body, the

sheriff’s department obtained a search warrant for the [Petitioner’s]

residence.

Lieutenant Neese testified that, during the investigation, Brandi

Lewis, one of the [Petitioner’s] family members, provided Lieutenant

Neese with some incriminating text messages about the victim’s murder.

Lieutenant Neese also recalled that Mr. Houser contacted the Sheriff’s

Department and that he spoke with Mr. Houser again on October 21, 2014.

Mr. Houser, with his attorney present, provided a statement and then

accompanied law enforcement officers to various locations to corroborate

his statement. He directed the deputies to the area of “Insurance Bluff,”

near where the victim’s truck was found, and deputies recovered the

victim’s truck keys at Mr. Houser’s direction.

On cross-examination, Lieutenant Neese testified that to “the naked

eye” the king size fitted sheet and the pillow case recovered from the

[Petitioner’s] residence appeared to be the same color and were the same

brand. He confirmed that no DNA was recovered from the fitted sheet.

Brandi Lewis, the [Petitioner’s] cousin, testified that on May 31,

2013, she met with Investigator Neese and provided him with text messages

from May 2013 that she had exchanged with the [Petitioner] about the

victim’s disappearance and death. Ms. Lewis confirmed that Lieutenant

Neese had photographed some of the text messages stored on her cell

phone. Ms. Lewis identified the photographs, confirming that the cell

phone in the photograph belonged to her. Ms. Lewis identified a

photograph of a text message the [Petitioner] had sent her on May 1, 2013,

at 6:36 p.m. The [Petitioner’s] attorney objected to the text messages being

read aloud as hearsay. The trial court recognized the [Petitioner’s]

continuing objection to the text messages being read aloud but overruled

the objection.

Ms. Lewis read the May 1, 2013 text messages aloud. The heading

on each text message stated it was received from the [Petitioner]. The

content of the messages received from the [Petitioner] on May 1, 2013 were

as follows:

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6:36 p.m.: Could you get rid of any of them things? My

nerves are shot. [The victim] has been cause in me trouble. I

had to call the law on him.

6:54 p.m.: Hit me, smack me, just ‘cause I didn’t want to be

with him again. He’s been up for four days on that dope and

is thinking crazy. Told me I was a dope whore and my kids

were bastards.

6:56 p.m.: Did it. You can do and say whatever to me. When

it comes to my kids you’re f**king up. You know, between

you and me, I am going to do what needs to be done to him a

long time ago.

6:59 p.m.: They wouldn’t. They just told me to call them the

next time he comes over, but he’ll be gone before they can get

here or I’ll be dead, one. I’ve got men taking care of it.

6:59 p.m.: My hands will stay clean. I am making sure of it.

I am smarter than he thinks I am.

7:10 p.m.: Oh, trust me; I tried to put him in jail. The cops

said they wouldn’t, not enough reason. But if I call the law,

he is still here when they get here he’ll go to jail. BS to me.

Ms. Lewis read a final message that had “Reply with copy [] 4741”

across the top and then “My hands will stay clean. I am making sure of it.

I am smarter than he thinks I am.” The [Petitioner’s] attorney objected to

this last text message as repetitive of the 6:59 p.m. message. The trial court

overruled the objection.

Ms. Lewis testified that she asked the [Petitioner] “if [the victim]

was dead” in a text message she sent on May 8, 2013. Ms. Lewis did not

receive a response to this question from the [Petitioner].

On cross-examination, Ms. Lewis testified that she was not

concerned that “anything” was going to happen based upon the May 1 text

message exchange with the [Petitioner]. She said that she had deleted the

messages she sent to the [Petitioner] during the May 1 text exchange. Ms.

Lewis could not remember when she deleted her responses but said that it

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was before she went to the sheriff’s department. Ms. Lewis agreed that she

was concerned that “all of this” might somehow be traced back to her but

stated that she had nothing to do with the victim’s death and that she

believed that the [Petitioner] did not as well.

On redirect examination, Ms. Lewis confirmed she had contacted the

sheriff’s department about the text messages after learning that the victim

was dead, and the [Petitioner] had been arrested.

Casey Koza testified as an expert witness in the field of forensic

serology. Ms. Koza stated that in 2013, she was employed as a forensic

serologist for the Tennessee Bureau of Investigation (“TBI”). Ms. Koza

recalled that she was assigned to test the victim’s truck for DNA evidence.

She described the truck as very muddy with mud marks on the inside of the

truck as well. On the outside of the truck, Ms. Koza identified reddish-

brown stains on the plastic bumper molding, along the metal trim of the

truck where the bumper would sit, and on the side of the tailgate. On the

inside of the truck, she identified staining on the door panel on the driver’s

side and the floorboard. She collected samples of the stains and then tested

the samples to confirm whether the stains were human blood.

Ms. Koza testified that the test of the sample collected from the

driver’s side door panel inside the truck indicated the presence of blood,

but, due the limited sample, she was unable to conduct additional testing to

confirm that the sample was human blood. Ms. Koza took samples from

the steering wheel, the gear shifter, and the driver’s side floorboard, which

all indicated the presence of blood. Ms. Koza tested the truck bed liner,

and the test indicated the presence of blood on the interior of the bed liner;

however, she could not do any further testing on the liner because she was

unable to localize the stain on the dark liner. The samples taken from the

tailgate indicated the presence of human blood.

Ms. Koza testified that she also tested samples taken from various

items in the truck. The test results for a ball cap and a white napkin

indicated the presence of blood, but due to the limited sample, she was

unable to confirm that the blood was human blood. Likewise, a brown

paper bag found in the bed of the truck indicated the presence of blood, but

due to the limited sample Ms. Koza was unable to confirm that the sample

was human blood.

- 15 -

Ms. Koza testified that she also received a black t-shirt from the

Lawrence County Sheriff’s Department. Ms. Koza conducted a

presumptive test on the shirt and found the presence of blood. Due to the

shirt being black, she was unable to localize a specific stain for further

testing, so she took two “cuttings” from the front of the shirt and the back

of the shirt to submit for further DNA testing.

David Hoover, a TBI latent fingerprint examiner, testified as an

expert witness in the field of latent fingerprint analysis. Mr. Hoover

testified that he processed the victim’s 2001 red Chevrolet truck for latent

fingerprints. Mr. Hoover found fingerprints that were “of value” for

identification purposes, mostly on the windows of the truck. Mr. Hoover

“matched” two of the prints to individuals: Timothy Wayne Gillespie and

Heather Marie Nowlin. He stated that he also tested “numerous items”

from inside the truck, one of which was a Sun Drop can found in a cup

holder located in the front console of the truck. The fingerprint obtained

from the can matched the [Petitioner’s] fingerprint. Fingerprints were also

obtained from a “Marlboro piece of paper” found on the dashboard of the

truck. These prints were identified as the victim’s prints.

Miranda Gaddes, a TBI forensic scientist in the Trace Evidence

Unit, testified as an expert witness in the field of microanalysis and trace

evidence. Ms. Gaddes testified that she compared a green sheet found at

the location where the victim’s body was found and a green pillowcase

retrieved from the [Petitioner’s] residence. She said the linens were similar

in color and the same brand, but microscopically the construction of the

fabrics were different.

Mike Turbeville, a TBI Forensic Biology Unit supervisor, testified

as an expert witness in the field of serology and DNA analysis. Dr.

Turbeville swabbed various areas of the 2001 red Chevrolet truck to obtain

numerous DNA profiles, most of which matched the victim’s DNA profile.

A DNA profile located on the radio face inside the truck, however, matched

the [Petitioner]. Dr. Turbeville noted that some of the profiles collected

were mixtures containing DNA from three or more individuals. He

explained that when this occurs, “it gets very complicated” and often results

in inconclusive results as occurred with some of the samples collected from

the truck.

Adele Lewis testified as an expert witness in the field of forensic

pathology. Dr. Lewis testified that she performed the autopsy of the forty-

- 16 -

six-year-old victim on May 13, 2013. Dr. Lewis stated that the body was in

a state[] of moderate to advanced decomposition with most of the skin on

the face no longer present. Due to the decomposition, Dr. Lewis sought the

help of a forensic anthropologist, Hugh Berryman. Based upon the

examination of the body, Dr. Lewis concluded the cause of death was blunt

force injuries to the head and the manner of death was homicide.

Hugh Berryman testified as an expert witness in the field of forensic

anthropology. He testified that he examined the remains on May 20, 2013,

at the request of the Medical Examiner’s office. The bones from the

cranium were in pieces and “highly fragmented.” As he examined the skull

bones he determined that some of the parts of the skull were missing. The

“major areas missing” were the right upper part of the skull, the right lower

part of the face, a portion of the left side cranial vault, and an area missing

from the right parietal bone. In referencing photographs, Dr. Berryman

noted a fracture to the jaw bone that was likely caused by blunt trauma.

Based upon his reconstruction of the remains, Dr. Berryman opined as to

the four impact sites on the victim’s skull. The various fractures in the

victim’s bone structure were consistent with repeated blunt force trauma.

He estimated that, although he identified four impact sites, the victim

sustained “many more” blows to his head than four.

Ricky Houser testified that he was charged with the first degree

premeditated murder of the victim and had entered an agreement with the

State with regard to his charge. Mr. Houser was to plead guilty to second

degree murder with a thirty-five year sentence in exchange for his truthful

testimony at the [Petitioner’s] trial.

Mr. Houser testified that, in May 2013, he lived on Mount Lebanon

Road in Lawrence County. Mr. Houser identified the [Petitioner] in court

and stated that he had known her for twelve to fourteen years. He said the

two were “close friends” and romantically involved “[o]ff and on” during

that time. Mr. Houser confirmed that he became aware in the spring of

2013 that the [Petitioner] was in a relationship with the victim. He did not

know the victim, but the [Petitioner] spoke with him about the victim at the

end of April 2013. He recalled that the conversations occurred over the

phone and that most were text messages because the [Petitioner] lived in

Five Points on “the other side of the [c]ounty.” During these

communications, the [Petitioner] told Mr. Houser that the victim was

beating her “again.” He said that she first told him of physical violence in

February or March.

- 17 -

Mr. Houser testified that one night four or five days before the

victim’s murder, he went to the [Petitioner’s] residence. Mr. Houser said

that he waited outside the house in “a little old chicken coop” until the

following morning when the [Petitioner’s] children left for school. After

the children left, he texted the [Petitioner] and asked if it was okay for him

to come inside her residence before entering. The [Petitioner] told Mr.

Houser that the victim beat and raped her and Mr. Houser saw bruising on

the [Petitioner’s] face. Mr. Houser recalled that, during this conversation,

the [Petitioner] asked Mr. Houser to “get rid of [the victim].” Mr. Houser

said that the [Petitioner] had already communicated this request by text

before Mr. Houser arrived at the residence the night before.

Mr. Houser testified that he advised the [Petitioner] to call the police

about the abuse but that the [Petitioner] refused this advice, explaining that

she had called the police on two or three occasions and it did “no good.”

Mr. Houser said that the [Petitioner] told him that she had a restraining

order against the victim but that he would come to her residence anyway.

According to Mr. Houser, the [Petitioner] said that she had arranged for

someone else to “get rid of” the victim, but they had “backed out on her.”

So, the [Petitioner] told Mr. Houser that she wanted Mr. Houser to “get rid

of” the victim. When asked about his response to her request, he said, “She

say, ‘Jump.’ I say, ‘How high?” Upon further questioning, he said that this

had always been the nature of his relationship with the [Petitioner]. He

stated that he had always loved the [Petitioner].

Mr. Houser testified that he agreed to “get rid of” the victim, but the

two did not discuss any details. He said that he had packed clothing, a

baseball bat, and a machete to take to the [Petitioner’s] residence. Mr.

Houser stayed at the [Petitioner’s] property for the remainder of that week

waiting for the victim to show up. The [Petitioner] had told Mr. Houser

that the victim had come to her residence four or five times in the last

couple of months, so they believed he would be back. The [Petitioner] said

that the victim could show up “any random night” and often did so “real

late.” Mr. Houser said that he stayed outside when the [Petitioner’s]

children came home from school. He described the grass as chest high in

the backyard, so it was “[p]retty easy to hide.” Mr. Houser estimated that,

while waiting for the victim to appear, he spent two or three nights outside,

and he stayed inside one or two nights when the children were staying with

a family member.

- 18 -

Mr. Houser testified that the baseball bat was silver and reflected the

moon light at night. Due to his concern about detection, the [Petitioner]

gave him black electrical tape, and he wrapped it around the bat one day

while he was inside her residence.

Mr. Houser testified that one of the nights the [Petitioner’s] children

were away and both he and the [Petitioner] were inside the residence, the

[Petitioner] received a text message at 3:00 or 4:00 a.m., and she said, “It’s

him.” Upon learning this, Mr. Houser went outside because he “didn’t

want to sit [t]here and listen to her talking about getting with him.” As he

exited, he told the [Petitioner], “Get him in here.” Mr. Houser said that he

went outside with his bat and waited behind the shed that was closest to the

residence for the victim to arrive.

Mr. Houser testified that he saw a red pickup truck pull in behind the

[Petitioner’s] house and behind the shed where he was waiting. Mr. Houser

said that he approached the driver’s side of the truck from the rear and

“hollered” at the victim as he was exiting the truck. Mr. Houser noticed

that the victim was dressed in his underwear and was holding a DVD player

in his hand. The victim lunged at Mr. Houser, and Mr. Houser hit the

victim in the forehead with the bat. Mr. Houser said that after he struck the

victim, the victim fell to the ground. After the victim was lying flat on the

ground, Mr. Houser hit the victim two more times on the side of the head.

Mr. Houser estimated that he hit the victim between three and five times

with the intention of killing the victim.

Mr. Houser testified that, after striking the victim, he tried to load

him into the truck. He could not lift the victim so took a board from the

shed and tried to slide the victim onto the board and then into the truck. He

described the “board” as “an old door or something.” He placed the

“board” on the tailgate of the truck and used it as a ramp but still was

unable to move the victim into the truck bed. When his attempts were

unsuccessful, he went inside the residence to get the [Petitioner] to help

him. The [Petitioner] was in the bathroom at the far end of the residence.

Mr. Houser told the [Petitioner] to come out to help load the body, and the

[Petitioner] joined him. On the way outside, the [Petitioner] retrieved

gloves from under the kitchen sink for both her and Mr. Houser to wear

while moving the body.

Mr. Houser testified that he and the [Petitioner] went outside, laid

the “board” flat on the ground and then rolled the victim over onto the

- 19 -

“board.” They then lifted the board up and placed it in the bed of the truck.

Mr. Houser told the [Petitioner] to “clean up” and left her with his clothes

to wash. He said that he also sprayed an area behind the shed with a water

hose to wash away any blood that might have been on the ground. The

[Petitioner] retrieved a “bluish” blanket from her closet, and the two

covered the victim’s body with it.

Mr. Houser testified that he did not know the area well, so he drove

the victim’s truck to an area in West Point that he knew. He recalled that

the victim was still breathing when he left the [Petitioner’s] house. The gas

tank in the truck was low, so Mr. Houser stopped, approximately fifteen

minutes from the [Petitioner’s] house, at a gas station on Rabbit Trail Road.

He purchased $6 of gas, all the money he had at the time, before proceeding

to West Point. He noted that the blanket had blown off the victim, and the

victim was no longer breathing during the gas station stop. Mr. Houser

described the route he took after the gas station stop and stated that he

communicated with the [Petitioner] via cell phone during the thirty to forty

minute drive.

Mr. Houser testified that he “dumped” the body near a four-wheeler

trail approximately 1,000 yards from the main road. He said the area was a

thirty to forty-five minute walk from his home. Mr. Houser recalled that he

dragged the victim’s body into the woods and covered it with leaves and a

few cedar trees that he cut down with the machete. He clarified that he may

have covered the body with the trees the following day and not during the

initial trip. Mr. Houser stated that, after leaving the body in the woods, the

baseball bat, “board,” and blanket remained in the bed of the truck. He said

that he put the blanket in a “big mud hole” that was along the trail leading

out to the area where he had left the body and ran over the blanket

repeatedly to “mash” it down, thinking it would never be found. He also

attempted to wash out the bed of the truck with muddy water from the mud

hole.

Mr. Houser testified that he then returned to the main road with the

… the baseball bat and drove to an area in West Point where there were

four-wheeler trails. He could not recall the name of the area, but he

described a concrete bridge with a gravel area where “everybody” parks.

He said there was also a “big old creek,” approximately seventy-five feet

wide, that one could drive across. It was into this creek that Mr. Houser

threw the bat and the DVD player. He also washed out the bed of the truck

with the creek water using a white five-gallon paint bucket that he found in

- 20 -

the bed of the truck. Mr. Houser then locked up the truck, took the keys

with him, and walked to his home.

Mr. Houser testified that it took him around five hours to walk

home. On the walk, he hid the keys by a cedar tree along the road and

threw the victim’s emptied billfold over “Insurance Bluff.” He said that he

was still communicating with the [Petitioner] via text messages as he

walked home. He returned to the area where he had left the body after

midnight that night. He explained that he went back to the site on two

occasions and could not recall what he did on each occasion. The first time

he planned to dig a hole and bury the body but when he was unable to do

so, he cut down small trees and placed them over the body.

Mr. Houser testified that the victim came to the [Petitioner’s]

residence in the early morning hours of Friday, May 3, 2013. After

disposing of the victim’s body, he spent Friday night away from the

[Petitioner’s] residence and then returned on Saturday, May 4. Mr. Houser

explained that he borrowed his neighbor’s motorcycle to drive to the

[Petitioner’s] residence. He remained there until the following Wednesday,

May 8, 2013, when Lieutenant Neese and Captain Brewer came to the

[Petitioner’s] residence. Mr. Houser state[d] that, after disposing of the

victim’s body, he had returned to the [Petitioner’s] residence, where he and

the [Petitioner] spoke about what had occurred, and he told her where he

had taken the victim’s body.

Mr. Houser acknowledged that the toilet paper and “evidence of

someone using the bathroom” in the shed behind the [Petitioner’s]

residence were from when he stayed in the chicken coop waiting for the

victim. He said that he stayed up all night the three or four nights he waited

in the chicken coop for the [Petitioner] and that he sent and received text

messages during that time. He said that, during the day, he would sleep

inside the [Petitioner’s] residence. He said that he exchanged text messages

with the [Petitioner] while in the chicken coop and also a friend of his

named Derek Peters.

Mr. Houser testified that he had never assaulted anyone in a violent

manner before the night at issue. When asked why he did this, he said,

“Because she wanted me to. [The Petitioner], you know, asked me to do

it.” In retrospect he said he felt “not too good” about what he had done.

Mr. Houser denied that, following this incident, the [Petitioner] ever told

him that she did not want him to kill or hurt the victim. He said that she did

- 21 -

not ever express remorse in words but that he believed she was “upset

about it” in the same way that this had affected him.

Mr. Houser described his mental state at the time he learned the

victim was coming to the [Petitioner’s] house as follows:

I mean, we had been sitting there for four or five days. I—I

was ready for it to end. ... I was trying to go home or get it

over with; whatever happened, happened. Just, I’m through

being—I’m tired of being here and just got to do something,

you know. Good or bad, had to get it over with. I was so

stressed out by then, I just wanted—it over with.”

On cross-examination, Mr. Houser testified that when he was unable

to load the victim’s body into the truck by himself and he went inside to

enlist the [Petitioner’s] help, the [Petitioner] was hysterical and “shook up.”

He agreed that he told her if she did not come and help him load the body,

he would just leave. The [Petitioner] told him that she did not know if she

could do it, and he insisted that she had to help him. He further agreed that

the [Petitioner] acted fearful of him the following day. He clarified that he

was unsure of the exact sequence of events and that he may have gone

directly into the house after he hit the victim, returned outside to try to load

the victim into the truck, and then gone in the house a second time to enlist

the [Petitioner’s] help. He agreed the [Petitioner] was “freaking out.” He

denied, however, that she said to him, “What did you do? Why did you do

it?” He agreed that he told the [Petitioner] that she needed to “come out

here and watch him suffer,” after he hit the victim with the baseball bat.

Mr. Houser testified that he left the [Petitioner’s] house and drove

approximately 100 yards away but then returned for gas money. He was

unsure whether the [Petitioner] was standing outside when he left for the

second time. Mr. Houser agreed that he and the [Petitioner] were doing

drugs during the time he was at her residence waiting for the victim. He

agreed that he felt the need to protect the [Petitioner] and believed the

victim was “not a nice man.” He further agreed that there was no specific

plan in place for killing the victim.

On redirect examination, Mr. Houser testified that, during their

subsequent communications, the [Petitioner] told him that she sprayed the

grass with water until the well ran dry.

- 22 -

The [Petitioner] testified that she was thirty-four years old, and she

had dropped out of school in the tenth grade. The [Petitioner] state[d] that

she had met the victim five years before when they were introduced

through Connie Davis. She said they began texting and then casually

dating. She described most of the time they spent together as involving sex

and smoking methamphetamine. She described the relationship as “drama”

with a lot of fighting and then making up. She said that the victim choked

and hit her but explained that she would get back together with him because

she loved him. She further noted that he had “dope,” and she “liked the

sex,” as her incentives to reconcile with the victim following their fights.

The [Petitioner] testified that, at the time of these events, she was

addicted to methamphetamine and prescription medication. The

[Petitioner] recalled an incident at the end of March or beginning of April

in 2013, when the victim “almost” kicked her door in. As a result, she filed

a police report, and a police officer told her that the victim would have to

be present at her residence before law enforcement could get involved. She

said that she and the victim reconciled on April 22 after the victim came to

her house and spent the night. The following day, the victim left his

methamphetamine at the [Petitioner’s] residence, and the [Petitioner]

smoked all of it. The [Petitioner] recalled that the victim was angry she had

smoked his methamphetamine and hit her. After the victim left, the

[Petitioner] called Mr. Houser and told him that the victim had hit her and

asked him to “whoop [the victim’s] butt.” She said this phone conversation

happened on a Monday night, and she invited Mr. Houser to her house, but

he did not come until Thursday morning at around 6:00 a.m.

The [Petitioner] testified that the two smoked methamphetamine all

day, and she “caught Mr. Houser up” on what was going on in her life. The

[Petitioner] said that Mr. Houser had brought the drugs to her house at her

request. The [Petitioner] denied asking Mr. Houser to kill the victim. She

said that Mr. Houser agreed to “kick [the victim’s] butt” because he was

upset about the [Petitioner’s] bruises.

The [Petitioner] agreed that she sent text messages to her cousin

Brand[i] Lewis during this time period. She identified the printed text

messages in court and confirmed that she had sent the messages. She stated

that she sent a text message at 6:30 p.m. on May 1 to find out if Ms. Lewis

had any Xanax. The [Petitioner] confirmed that she sent the text message

stating, “I’m going to do what needs to be done to him a long time ago.”

She explained that she was angry that he had called her children bastards

- 23 -

and wanted “his butt kicked.” In reference to the message she sent stating,

“I’ve got men taking care of it,” she said that she meant she had Larry

Green stay with her for a few nights for safety and that Mr. Houser was

going to “kick [the victim’s] butt.” She explained the text message stating,

“My hands will stay clean. I’m making sure of it,” was to keep the victim

from finding out she had arranged an assault. She was concerned about

retaliation should the victim learn she had instigated the assault.

The [Petitioner] testified that she and Mr. Houser stayed awake all

Thursday night smoking methamphetamine. Early Friday morning, she

received a text message from the victim. She said that Mr. Houser was

aware of the text message and went outside. The victim was texting the

[Petitioner] asking to have sex and watch pornography. He also referenced

“pow wow,” which she indicated was methamphetamine. While texting

with the victim, the [Petitioner] was also texting with Mr. Houser to let him

know the victim was coming over. The [Petitioner] was in the bathroom

when she heard the victim’s truck pull up. She then heard a “big smack”

and the victim moan. She heard “more smacks” and “freaked out.” She

said she began crying and stayed in the bathroom because she did not know

what to do.

The [Petitioner] testified that she knew Mr. Houser was going to

beat up the victim but that the noise “sounded awful.” Five minutes after

she heard the noises, Mr. Houser came into the residence and told her he

had taken “care of it.” The [Petitioner] responded, “what did [you] do[?]”

and “what ha[ve] you done?” Mr. Houser told her that he had done what

she wanted and “it would be better off for [the Petitioner] and the kids.”

The [Petitioner] said that, at this point, she was very upset because Mr.

Houser had “just killed [the victim]” and she “loved [the victim].”

The [Petitioner] testified that Mr. Houser left and then returned a

second time. He told her to “get it together” and asked her to open the

bathroom door. When she did, he shook her and again told her to “get it

together.” She stated that she did not leave the bathroom until after Mr.

Houser had driven away. The [Petitioner] agreed that she still

communicated with Mr. Houser after he left her residence. She denied

leaving the house, helping Mr. Houser with the body, hosing down the

yard, or giving Mr. Houser gas money. She agreed that she washed

clothing Mr. Houser gave her because she was already doing a load of

laundry and normally washed his clothing.

- 24 -

The [Petitioner] testified that Mr. Houser updated her on his route

and what he was doing after he left her residence. He also checked to see if

the [Petitioner] was “okay.” He let her know when he had disposed of the

body and the truck. On Friday night, Derek Peters brought Mr. Houser to

the [Petitioner’s] residence and Mr. Houser retrieved his clothing before

leaving again. While he was at her house, Mr. Houser was “bragging”

about “it.” She said that Mr. Houser told her that she should have seen the

victim “gurgling.”

The [Petitioner] testified that Mr. Houser returned again on Saturday

night. She said that she let him inside her home because she was afraid of

him because he had “just killed my boyfriend.” She said that she did not

know his “mind frame,” so she was not going to tell him no. While at her

residence this time, Mr. Houser told her that she was just as complicit in the

victim’s murder as he. She said that she did not call the police because she

was scared and thought it would not do any good. She said that Mr. Houser

stayed with her for the rest of the following week. She said that he never

left her alone during this time.

The [Petitioner] testified that Mr. Houser obtained a motorcycle on

the day of their arrest at her residence. She said David Johnson drove her

and Mr. Houser to get the motorcycle in West Point. When they returned to

her residence, her children were at her house after returning home from

school on the school bus.

On cross-examination, the [Petitioner] denied ever having seen Mr.

Houser with a baseball bat while he was at her residence. The [Petitioner]

stated that her bathroom was located at the far side of the residence from

where the altercation took place and that there was no window in the

bathroom. She could not explain how she could distinguish “smacking”

sounds heard from inside the bathroom as “very serious” as opposed to the

“smacking” sounds one might hear in the course of a normal fight as she

had asked Mr. Houser to do. The [Petitioner] [stated] that she did not want

the victim to get hurt, she merely wanted his “butt kicked.” She agreed that

she did not call 911 or notify authorities of what had occurred even after

Mr. Houser left. She did, however, send a text message to Randy Flatt at

around 6:00 or 6:30 a.m. asking if he would exchange Lortab for sex. She

explained that she was “needing something” because she was crying and

upset.

- 25 -

Based upon this evidence the jury convicted the [Petitioner] of first

degree premeditated murder.

Rachel Kay Bond, 2016 WL 4548107 at *1-15.

II. Post-conviction Proceedings

Trial counsel and the Petitioner testified during the post-conviction hearing. Trial

counsel acknowledged that he and the Petitioner may have had conversations about her

knowing potential jurors. Trial counsel was asked if he recalled the Petitioner raising a

concern “when the jury was seated about somebody knowing her in the jury box.” He

could not recall the specifics of the discussion or the name of the Petitioner’s

acquaintance, but he agreed there was “probably some conversation” regarding a member

of the jury being acquainted with her.

Trial counsel did not recall specifically discussing whether to move for a change

of venue. Trial counsel explained that he did consider requesting a change of venue. He

testified that he looked into the notoriety of the case by checking newspapers and that he

“did not find anything of outstanding publicity during that time.” Trial counsel did not

feel it was necessary to change the venue in order to find twelve qualified jurors. On

cross-examination, trial counsel stated that when making a decision about whether to

request a change of venue, he considered how much time had passed between the offense

and the trial and the publicity surrounding the trial. When discussing this particular case,

trial counsel stated that at least one year had passed between the offense and the trial. He

believed there had been one or two articles written, and he did not recall if the case

received any television coverage. Trial counsel noted that the victim was not from

Lawrence County. Trial counsel testified that there were a large number of prospective

jurors in the venire and that he “felt fairly good” about the jury that was impaneled.

Trial counsel discussed his cross-examination of Mr. Houser regarding the

agreement that the State had reached with Mr. Houser. Trial counsel did not believe the

agreement influenced Mr. Houser’s testimony. Trial counsel at first objected to Mr.

Houser’s agreement being entered into evidence, but he ultimately decided that putting

the agreement before the jury would benefit the Petitioner because it would call into

question Mr. Houser’s motivations in testifying. Trial counsel also wanted to be able to

cross-examine him about the agreement. Trial counsel stated that he did make several

objections during Mr. Houser’s testimony and that he tried to highlight the

inconsistencies in his trial testimony compared to his statement to law enforcement.

Trial counsel acknowledged that he never retrieved the Petitioner’s cell phone

from evidence to see if the entire conversation between Ms. Lewis and the Petitioner was

- 26 -

still stored on the phone. He recalled that the Petitioner told him that she had deleted the

text messages from her cell phone. Trial counsel never sought to subpoena the

Petitioner’s cell phone records from the cell phone company because he believed that the

content of the text messages from the Petitioner’s type of cell phone was not retrievable

from her cell phone provider. The Petitioner’s cell phone records, showing only the

timing of telephone contact, were entered into evidence. Trial counsel testified that he

attempted to exclude the text messages because they appeared inculpatory. However,

based on his conversations with the Petitioner at the time of trial, he believed that the text

message conversation would still have appeared inculpatory even if he had been able to

obtain the messages Ms. Lewis sent during the conversation. On cross-examination, trial

counsel discussed his numerous objections to the admission of the Petitioner’s one-sided

text message conversation with Ms. Lewis. Trial counsel objected pursuant to the rule of

completeness because the entire conversation was not admitted, only the Petitioner’s

responses, which were void of any context. Trial counsel also raised this issue on direct

appeal.

Trial counsel testified that the Petitioner made the decision to testify at trial to

rebut both Ms. Lewis’s testimony regarding the content of the text messages and Mr.

Houser’s testimony. On cross-examination, trial counsel stated that he had been an

attorney for approximately twenty-one years. Since the time of the trial, he had

transitioned from private practice to working as a public defender. Trial counsel stated

that when he was in private practice, seventy-five to eighty-five percent of his cases were

criminal cases. Trial counsel explained that it was his practice to always discuss whether

a defendant wished to testify with that defendant. He stated that he always tried to

discuss the advantages and disadvantages of testifying and to explain that the choice

belonged to the defendant. Trial counsel advised the Petitioner to testify to rebut Ms.

Lewis’s testimony regarding the text messages and Mr. Houser’s testimony regarding her

knowledge of the crime. He believed that the text messages showed premeditation and

that it was important for the Petitioner to explain them.

The Petitioner testified that she told trial counsel that she was concerned that

people in the jury venire knew her. In particular, she was concerned about two women

who worked in her doctor’s office and had knowledge about her illegal drug use and one

man who attended school with her when she was a child. The Petitioner recalled that trial

counsel informed her that he did not have any peremptory strikes available to use to

remove these jurors. The Petitioner did not name these jurors, and it is not entirely clear

from her testimony whether they were selected for the jury. The prosecutor correctly

noted that the trial transcript reflects that three or four members of the venire raised their

hands to indicate that they were acquainted with the Petitioner, but the trial transcript

does not indicate whether these prospective jurors were selected for the jury.

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The Petitioner testified that she believed that a change of venue was necessary

because the trial was taking place in a small town and because she thought that everyone

in town knew Mr. Houser and the victim. She stated that trial counsel told her that he did

not think that it was necessary, and that was the extent of their conversation about

whether to request a change of venue. The Petitioner explained that she felt that a change

of venue was necessary because the people whom she knew in the jury pool knew that

she was a drug addict and she feared she would not receive a fair trial.

The Petitioner admitted that she did not recall specifically telling trial counsel that

law enforcement had possession of her cell phone, but she assumed that he was aware of

this information. She believed her cell phone was still stored in evidence. She could not

recall whether she deleted the text message conversation with Ms. Lewis. However, she

did not remember telling trial counsel that she deleted the messages from her cell phone.

The Petitioner stated that she wanted to testify because Mr. Houser’s testimony

was inconsistent with his prior statements to law enforcement. She felt that she needed

“to tell the story” because Mr. Houser had “flip flop[ped].”

The post-conviction court entered a written order denying the Petitioner post-

conviction relief. The post-conviction court made a general finding that the Petitioner’s

testimony was not credible either at trial or at the post-conviction hearing. The post-

conviction court credited trial counsel’s statements that he considered several factors

before making the decision not to request a change of venue. Regarding trial counsel’s

decision not to strike jurors that the Petitioner testified that she knew, the post-conviction

court found that trial counsel had used all eight peremptory challenges. The post-

conviction court also noted that the Petitioner did not name the jurors nor did she testify

that any of the three jurors served as members of the jury or whether they were simply in

the venire. The post-conviction court credited trial counsel’s testimony that he discussed

the text message exchange between the Petitioner and Ms. Lewis which was stored on the

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

specifically recalled that the Petitioner told him that she had deleted those text messages.

The post-conviction court noted in its order that it did not believe the Petitioner’s

testimony concerning the existence of the text messages on her cell phone. Further, the

post-conviction court found that trial counsel effectively cross-examined all of the State’s

witnesses, and that trial counsel “knew every detail of the case and what to expect from

each witness’s testimony.” The post-conviction court noted that the Petitioner testified

during the post-conviction hearing that she wanted to testify at trial to rebut Mr. Houser’s

testimony. Accordingly, the post-conviction court found that each of the Petitioner’s

claims were without merit and denied her post-conviction relief. The Petitioner now

appeals.

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ANALYSIS

The Petitioner maintains that trial counsel was ineffective for six reasons: 1)

failure to file a motion for change of venue; 2) failure to challenge three jurors; 3) failure

to investigate; 4) failure to adequately cross-examine Mr. Houser; 5) advising the

Petitioner to testify at trial; and 6) failure to discuss the Petitioner’s mental state. The

State argues that the post-conviction court properly denied the Petitioner post-conviction

relief. We agree with the State.

A petitioner is entitled to post-conviction relief from any conviction or sentence

that is “void or voidable because of the abridgment of any right guaranteed by the

Constitution of Tennessee or the Constitution of the United States.” T.C.A. § 40-30-103.

The petitioner has the burden of proving the allegations of fact in the petition by clear and

convincing evidence. T.C.A. § 40-30-110(f); Grindstaff v. State, 297 S.W.3d 208, 216

(Tenn. 2009). “‘Evidence is clear and convincing when there is no serious or substantial

doubt about the correctness of the conclusions drawn from the evidence.’” Grindstaff,

297 S.W.3d at 216 (quoting Hicks v. State, 983 S.W.2d 240, 245 (Tenn. Crim. App.

1998)). A claim of ineffective assistance of counsel is a mixed question of law and fact.

Calvert v. State, 342 S.W.3d 477, 485 (Tenn. 2011). The post-conviction court’s findings

of fact are conclusive on appeal unless the evidence preponderates against them. Tenn.

R. App. P 13(d); Dellinger v. State, 279 S.W.3d 282, 294 (Tenn. 2009). An appellate

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

conclusions of law. Mobley v. State, 397 S.W.3d 70, 80 (Tenn. 2013).

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 v. State, 452 S.W.3d 779, 786 (Tenn.

2014). The deprivation of this right is a cognizable claim under the Post-Conviction

Procedure Act. Moore v. State, 485 S.W.3d 411, 418 (Tenn. 2016). To prevail on such a

claim, the petitioner must show that trial counsel’s representation “‘so undermined the

proper function 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)).

To establish an ineffective assistance of a counsel claim, the petitioner “must show

that counsel’s performance was deficient and that the deficiency prejudiced the defense.”

Wiley v. State, 183 S.W.3d 317, 329 (Tenn. 2006) (citing Strickland at 466 U.S. 692;

Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996)). This court “need not address both

elements if the petitioner fails to demonstrate either one of them.” Kendrick, 454 S.W.3d

at 457. To establish deficiency, the petitioner is required to show that trial counsel’s

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actions “fell below an objective standard of reasonableness under prevailing professional

norms.” Wiley, 183 S.W.3d at 329. Trial counsel’s performance is not deficient when

the advice given is “within the range of competence demanded of attorneys in criminal

cases.” Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). In order to establish

prejudice as a result of trial counsel’s deficient performance, the petitioner “‘must

establish a reasonable probability that but for counsel’s errors the result of the proceeding

would have been different.’” Finch v. State, 226 S.W.3d 307, 316 (Tenn. 2007) (quoting

Vaughn v. State, 202 S.W.3d 106, 116 (Tenn. 2006)).

I. Change of Venue

The Petitioner maintains that trial counsel was ineffective by failing to request a

change of venue prior to trial. The State responds that the Petitioner has failed to

overcome the strong presumption that trial counsel exercised reasonable judgment when

making the strategic decision not to request a change of venue.

A change of venue may be granted when it appears that because of “undue

excitement against the defendant in that county where the offense was committed or any

other cause, a fair trial probably could not be had.” Tenn. R. Crim. P. 21(a). A change of

venue is not warranted just because potential jurors have been exposed to pretrial

publicity. State v. Mann, 959 S.W.2d 503, 531-32 (Tenn. 1997). This court has

determined that jurors “can have knowledge of the facts surrounding the crime and still

be qualified to sit on the jury.” State v. Crenshaw, 64 S.W.3d 374, 386 (Tenn. Crim.

App. 2001) (citing State v. Bates, 804 S.W.2d 868, 877 (Tenn. 1991)). “Prejudice will

not be presumed by a mere showing that there was considerable publicity.” Keith Whited

v. State, No. M2012-02294-CCA-R3-PC, 2014 WL 1832962, at *12 (Tenn. Crim. App.

May 7, 2014) (citing Dobbert v. Florida, 432 U.S. 282, 303 (1977)). A petitioner must

prove that trial counsel’s failure to request a change of venue was prejudicial to her

defense. See William Darryn Busby v. State, No. M2010-00709-CCA-R3-PC, 2013 WL

5873276, at *16 (Tenn. Crim. App. Oct. 30, 2013).

Trial counsel testified at the post-conviction hearing that he did not request a

change of venue because his investigation revealed there was little publicity surrounding

the case at the time of the trial. Further, trial counsel testified that he did not think a

request for a change of venue would have been granted. He also did not believe that a

change of venue was necessary to find twelve unbiased jurors. The post-conviction court

credited trial counsel’s testimony that he considered filing a motion for a change of

venue, but after further researching the issue, he made the strategic decision against it.

See id. (upholding the post-conviction court’s ruling that trial counsel’s strategic decision

to forego seeking a change in venue was not deficient). The Petitioner has failed to

present proof that the jury was biased. Further, she has failed to present any evidence

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that if trial counsel had requested a change of venue, it would have been granted.

Accordingly, the Petitioner is not entitled to relief regarding this issue.

II. Failure to Strike Potential Jurors

The Petitioner asserts that trial counsel was ineffective for failing to strike three

jurors who were acquainted with her. Trial counsel acknowledged that he and the

Petitioner had some discussion about a juror in the jury box who was acquainted with the

Petitioner. Nevertheless, we conclude that the Petitioner has not established that trial

counsel was deficient in striking the juror or that her right to an impartial jury was

violated.

Both the Sixth Amendment to the United States Constitution and article I, section

9 of the Tennessee Constitution guarantee the right to a trial by an impartial jury. “An

unbiased and impartial jury is one that begins the trial with an impartial frame of mind,

that is influenced only by the competent evidence admitted during the trial, and that bases

its verdict on that evidence.” State v. Smith, 418 S.W.3d 38, 45 (Tenn. 2013) (citing

State v. Adams, 405 S.W.3d 641, 650-51 (Tenn. 2013); Durham v. State, 188 S.W.2d

555, 558 (Tenn. 1945)). The defendant has the burden of establishing a prima facie case

of bias or partiality. State v. Akins, 867 S.W.2d 350, 354 (Tenn. Crim. App. 1993).

Counsel’s full knowledge of the facts that might bear upon a juror’s qualifications

is essential to the intelligent exercise of peremptory and cause challenges. Id. A prior

relationship with a witness or party does not automatically disqualify a juror. Hugueley,

185 S.W.3d 356, 379 (Tenn. 2006); see State v. Christopher K. Knight, No. W2001-

02995-CCA-R3-CD, 2003 WL 721701, at *2 (Tenn. Crim. App. Feb. 27, 2003)

(concluding that a juror’s casual acquaintance with the victim did not establish bias and

that bias could not be presumed because relationship was not elicited during voir dire);

Bowman v. State, 598 S.W.2d 809, 812 (Tenn. Crim. App. 1980) (concluding that a juror

was not disqualified because there was no proof of bias or inherent prejudice despite an

acknowledged social relationship with the Assistant District Attorney who was ultimately

called as a rebuttal witness). In raising a claim of ineffective assistance of counsel with

regard to failure to strike a biased juror, the petitioner must show that the juror was

actually biased. Smith v. State, 357 S.W.3d 322, 348 (Tenn. 2011) (citing Miller v. Webb,

385 F.3d 666, 674 (6th Cir. 2004)).

In this case, the record from trial reflects that three or four members of the venire

raised their hands to indicate that they were acquainted with the Petitioner. The rest of

voir dire was not transcribed or included in the record on direct appeal. The Petitioner

testified that she knew one potential juror from when she was a child and that two other

jurors worked at her doctor’s office. Trial counsel acknowledged that there was

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“probably some conversation” about a juror who was acquainted with the Petitioner. The

record reflects that the potential jurors acknowledged their relationship with the

Petitioner, and the Petitioner has presented no evidence to establish a prima facie case of

bias. Apparently, both the trial court and trial counsel were satisfied that the jurors seated

on the jury were able to render an impartial verdict. Because the Petitioner has not

shown that the jurors who were impaneled harbored bias, she has failed to establish that

trial counsel was deficient in failing to strike any particular juror. See Smith, 357 S.W.3d

at 348.

III. Failure to Investigate

On appeal, the Petitioner maintains that trial counsel was ineffective for failing to

investigate whether the entire text message conversation between the Petitioner and Ms.

Lewis was stored on the Petitioner’s cell phone. The post-conviction court credited trial

counsel’s testimony that the Petitioner had informed him that she deleted the text

message conversation. Trial counsel has a duty to make reasonable investigations. See

Baxter, 523 S.W.2d at 933. However, “when a defendant has given counsel reason to

believe that pursuing certain investigations would be fruitless or even harmful, counsel’s

failure to pursue those investigations may not later be challenged as unreasonable.”

Strickland, 466 U.S. at 691. Accordingly, the Petitioner has not proven that trial counsel

was deficient in failing to investigate. Further, the Petitioner failed to present any

evidence that the text messages were present on her telephone at the time of trial or what

the messages would show. Trial counsel testified that his conversation with the Petitioner

led him to believe that having both sides of the conversation would not prove

exculpatory. Therefore, we conclude that the Petitioner cannot establish prejudice. See

State v. Black, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1999).

IV. The Cross-Examination of Mr. Houser

The Petitioner argues that trial counsel was ineffective for failing to adequately

cross-examine Mr. Houser about the agreement that he had reached with the State in

exchange for his testimony. Specifically, the Petitioner asserts that trial counsel erred in

allowing Mr. Houser’s agreement to be entered into evidence. The Petitioner suggests

that by allowing the agreement into evidence, trial counsel “subjectively agreed that Mr.

Houser would be telling the truth” during his testimony. The State maintains that the

Petitioner has failed to prove that the proffer was not admissible.

Trial counsel’s decision regarding whether to cross-examine a witness regarding

an issue “is a strategical or tactical choice, if informed and based on adequate

preparation.” Lawrence Warren Pierce v. State, No. M2005-02565-CCA-R3-PC, 2007

WL 189392, at *7 (Tenn. Crim. App. Jan. 23, 2007) (citing Hellard v. State, 629 S.W.2d

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4, 9 (Tenn. 1982)). “[S]trategic decisions during cross-examination are judged from

counsel’s perspective at the point of time they were made in light of the facts and

circumstances at that time.” Johnnie W. Reeves v. State, No. M2004-02642-CCA-R3-PC,

2006 WL 360380, at *10 (Tenn. Crim. App. Feb. 16, 2006) (citing Strickland, 466 U.S. at

690).

Trial counsel testified that he chose not to object to the admissibility of the

agreement because he wanted to use it to cross-examine Mr. Houser and because he felt

that the admission of the document would overall be beneficial to the Petitioner by

raising questions about Mr. Houser’s motivations in testifying. In denying post-

conviction relief, the post-conviction court found that trial counsel’s cross-examination of

Mr. Houser was “through and effective.” We will not second guess trial counsel’s

strategic decision to introduce the terms of the proffer agreement during his cross-

examination of Mr. Houser. See Hellard, 629 S.W.2d at 9. Accordingly, the Petitioner is

not entitled to relief.

V. Advising the Petitioner to Testify at Trial

The Petitioner argues that trial counsel was ineffective for advising her to testify at

trial. She further states that trial counsel’s other alleged errors with regard to the text

messages and the contents of the State’s proffer forced her to testify. The Petitioner and

trial counsel agreed that trial counsel advised her to testify, but the Petitioner does not

allege that she was coerced into testifying. During the post-conviction hearing, the

Petitioner testified that she felt that it was necessary to testify to rebut Mr. Houser’s

testimony. Further, the Petitioner stated that she “did feel like I needed to tell the story.”

The trial court conducted a jury-out hearing prior to the Petitioner’s testimony at

trial. During that hearing, she acknowledged that she freely and voluntarily made the

decision to testify. Trial counsel stated that he advised the Petitioner to testify because

the text messages implied that the Petitioner had asked for help in the victim’s murder

and because there was no other way to introduce her version of events. The Petitioner

has failed to show how trial counsel’s advice that she testify amounted to deficient

performance. See Andrew Mann v. State, No. E2014-01524-CCA-R3-PC, 2015 WL

3643473, at *5-6 (Tenn. Crim. App. June 12, 2015) (rejecting the petitioner’s claim that

trial counsel was ineffective for advising him to testify at trial when the petitioner

testified at the post-conviction hearing that it was his decision to testify).

VI. The Petitioner’s Competency at Trial

The Petitioner contends that trial counsel was ineffective for failing to discuss her

competency prior to trial. The State maintains that the Petitioner failed to provide any

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evidence to support this claim. We agree with the post-conviction court that the

Petitioner has failed to establish either deficiency or prejudice in counsel’s failing to

request a mental evaluation. See Frank E. Huey v. State, No. M2005-01490-CCA-R3-

PC, 2007 WL 258438, at *3 (Tenn. Crim. App. Jan. 30, 2007) (rejecting the petitioner’s

claim that trial counsel was ineffective for failing to have a competency evaluation when

the petitioner failed to present any evidence during post-conviction that he was not

competent to testify).

CONCLUSION

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

JOHN EVERETT WILLIAMS, PRESIDING JUDGE

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