Bryant Jackson Harris v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

November 16, 2022 Session

BRYANT JACKSON HARRIS v. STATE OF TENNESSEE

Appeal from the Criminal Court for Hawkins County FILED

No. CC-18-CR-37 John F. Dugger, Jr., Judge DEC 16 2022

Clerk of the ellate Gourts

No. E2022-00446-CCA-R3-PC fece nie ebayal

The Petitioner, Bryant Jackson Harris, appeals the Hawkins County Criminal Court’s

denial of his post-conviction petition, seeking relief from his convictions of first degree

premeditated murder, first degree felony murder, and aggravated burglary and resulting

effective sentence of life in confinement. On appeal, the Petitioner contends that he

received the ineffective assistance of trial counsel. Based upon the oral arguments, the

record, and the parties’ briefs, we affirm the judgment of the post-conviction court.

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

JOHN W. CAMPBELL, SR., J., delivered the opinion of the court, in which ROBERT H.

MONTGOMERY, JR., and TIMOTHY L. EASTER, JJ., joined.

Gregory P. Isaacs and Ashlee B. Mathis (on appeal) and J. Franklin Ammons (at hearing),

Knoxville, Tennessee, for the appellant, Bryant Jackson Harris.

Jonathan Skrmetti, Attorney General and Reporter; Courtney N. Orr, Senior Assistant

Attorney General; Dan E. Armstrong, District Attorney General; and Ritchie Collins and

Cecil C. Mills, Jr., Assistant District Attorneys General, for the appellee, State of

Tennessee.

OPINION

FACTS

This case relates to the Petitioner’s shooting Jeffrey Smith, who was the Petitioner’s

wife’s half-brother, on July 21, 2011.' The next day, the Petitioner was charged in general

sessions court with attempted first degree premeditated murder. The victim died from his

' On August 8, 2022, this court entered an order taking judicial notice of the appellate record in the

Petitioner’s direct appeal of his convictions.

injuries on January 1, 2012, more than five months after the shooting. Consequently, the

charge was amended to first degree premeditated murder on June 8, 2012. On December

10, 2012, the Hawkins County Grand Jury indicted the Petitioner for first degree

premeditated murder. On June 3, 2013, the grand jury also charged him by presentment

with one count of first degree felony murder committed during the perpetration of any

burglary and one count of aggravated burglary. The Petitioner went to trial for the three

offenses in October 2014.

The evidence at trial showed that on the day of the shooting, the Petitioner went to

Chuck Myers’s house, where the victim was staying. See State v. Bryant Jackson Harris,

No. E2015-01724-CCA-R3-CD, 2016 WL 6560012, at *3 (Tenn. Crim. App. Nov. 4,

2016), perm. app. denied (Tenn. Feb. 23, 2017). Mr. Myers testified that he let the

Petitioner into his home and that the Petitioner went downstairs to the victim’s bedroom.

Id. Mr. Myers heard the Petitioner yell, ““[Y]ou low down S.O.B. I’m going to kill your

a--.”” Id. Mr. Myers followed the Petitioner downstairs, saw the victim lying in bed, and

saw the victim stand up in front of the Petitioner. Jd. The Petitioner and the victim were

four or five steps apart, and the Petitioner had a gun by his side. /d. The Petitioner raised

the gun and shot the victim in the abdomen, and the victim fell onto the bed. /d. The

Petitioner fired a second shot that struck the victim in the left elbow and arm. Jd. The

Petitioner tried to fire a third shot, but the gun did not fire. Jd. Mr. Myers saw cartridge

casings fall to the floor, told the Petitioner to leave, and called 911. Jd.

The State played the 911 call for the jury. /d. at *1. During the call, Mr. Myers

reported that a man with ‘“‘a long brown pistol” had shot the victim twice. Jd. Mr. Myers

told the 911 operator that the man went outside after the shooting but that he had re-entered

the house and was holding a knife. Jd. At the end of the call, Mr. Myers said the man was

back outside and was standing in the driveway. Jd.

On cross-examination, Mr. Myers testified that he experienced serious health issues

prior to the Petitioner’s trial and that he suffered some memory loss. /d. at *3. Mr. Myers

spoke with an officer at the scene of the shooting but could not remember at trial what he

told the officer. Jd. He agreed that his statement to the officer was more accurate than his

trial testimony. Jd.

A police officer testified that when he arrived at Mr. Myers’s home, the Petitioner

was sitting outside on a large rock next to the driveway. Jd. at *2. The officer took the

Petitioner into custody but did not find any weapons on his person. Jd. The officer did not

see any bloodstains on the Petitioner’s clothing, the Petitioner did not appear to be injured,

and the Petitioner did not complain of any injuries. Jd. A .22-caliber single-action revolver

and a knife were on the tailgate of the Petitioner’s truck, which was parked in the driveway.

Id. The victim was inside the house. Jd. He had blood on his face, was holding his

abdomen, and was gasping for air. Jd. A second officer at the scene spoke with Mr. Myers.

Id. The officer testified that Mr. Myers told him that the Petitioner “‘pushed his way past

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[Mr. Myers] and went down the steps and started yelling at the victim, and then he heard

gunshots . .. and went down there and actually saw the last two.’” Jd. The officer identified

photographs, showing blood spatter on the floor in the downstairs hallway and on the

victim’s bed. /d. at *1.

The victim sustained multiple injuries and had surgery to close several holes in his

colon and duodenum. Jd. at *3. He developed complications, and his condition

deteriorated. Jd. He eventually went into cardiac arrest and died several days later. Jd.

The forensic pathologist who performed the victim’s autopsy concluded that he died of

complications from a gunshot wound to the abdomen and that his manner of death was

homicide. Jd. at *4.

The Petitioner testified that he had known the victim since the victim was seven

years old, that he and the victim worked together for more than twenty years, and that he

treated the victim like his son. Jd. at *5. The Petitioner claimed that he went to Mr. Myers’s

residence on the day of the shooting to check on the victim because the Petitioner’s wife

could not contact the victim by telephone and was concerned about the victim. Jd. When

the Petitioner arrived at Mr. Myers’s home, Mr. Myers let him inside. Jd. The Petitioner

turned to go downstairs to the victim’s bedroom, and Mr. Myers kicked him in the back,

causing him to fall down the stairs. Jd. The victim then beat the Petitioner with a cane or

pipe. Jd. The Petitioner grabbed the object, so the victim reached under a pillowcase,

pulled out a revolver, and tried to shoot the Petitioner. Jd. The Petitioner and the victim

struggled over the gun. Jd. The victim “held the gun,” and the gun fired three times. Jd.

The Petitioner said that he was on the floor when the gun fired and that the gun was pointed

upward. Jd.

The Petitioner testified that the gun was on the bedroom floor and that he picked up

the gun because he did not want the victim to shoot at him again. /d. The Petitioner went

outside, placed the gun and his pocketknife on the tailgate of his truck, and waited for the

police. Jd. The Petitioner denied owning the gun, going to the residence to harm the victim,

or intending to shoot the victim. Jd.

On cross-examination, the Petitioner testified that his wife and the victim shared the

same mother. Jd. at *6. The Petitioner’s wife filed a lawsuit on her mother’s behalf in

2008 and ended up receiving a $210,000 settlement in 2009. Jd. The State asked the

Petitioner if the victim was upset about the settlement and if the victim had threatened to

sue the Petitioner’s wife for part of the money. See id. The Petitioner denied that he went

to Mr. Myers’s home because the victim was “‘raising a stink’” about the settlement and

was harassing the Petitioner’s wife. Jd. at *7.

The Petitioner testified that he hit his elbow, shoulders, and knees when Mr. Myers

kicked him down the stairs. Jd. at *6. The Petitioner was released from jail the day after

the shooting and went to the emergency room on July 26, 2011. See id.

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On redirect examination, the Petitioner acknowledged that his emergency room

records stated that he had bruises on his forearm, humerus, and back and that he had sprains

and strains on his back and neck. Jd. at *7. He also acknowledged that he went to the

hospital on the advice of trial counsel to document the injuries he received during his

struggle with the victim. Jd The defense introduced into evidence sixteen photographs

taken by the Petitioner’s daughter the day after he was released from jail. Jd. The Petitioner

said the photographs showed his injuries. Id.

The Petitioner’s wife testified that she had a good relationship with the victim and

that they never argued about the lawsuit settlement. Jd. at *8. On the day of the shooting,

the Petitioner’s wife asked the Petitioner to check on the victim. /d. The Petitioner did not

own a gun and did not have a gun when he left their home. /d. On cross-examination, the

Petitioner’s wife testified that the Petitioner went to the hospital after he was released from

jail because he was ““black and blue.’” Jd.

The Petitioner’s son-in-law testified that the victim used to live with him and

identified the revolver in a crime scene photograph as the victim’s gun. Jd. at *9.

Numerous witnesses, including the Petitioner’s church pastor, testified on his behalf

regarding his character for truthfulness. See id. Nevertheless, the jury convicted him as

charged of first degree premeditated murder, first degree felony murder, and aggravated

burglary. Jd. After a sentencing hearing, he received concurrent sentences of life for the

murder convictions and six years for the aggravated burglary conviction, a Class C felony.

Id.

On direct appeal of his convictions, the Petitioner claimed that the evidence was

insufficient to support the convictions, that Mr. Myers’s testimony should have been

stricken due to his memory loss, and that the trial court should have declared a mistrial

when the prosecutor asked the Petitioner whether he told police officers at the crime scene

““any of this.” See id. at *9-13. This court affirmed the Petitioner’s convictions but

remanded the case for merger of the murder convictions. Jd. at *13.

After our supreme court denied the Petitioner’s application for permission to appeal,

retained counsel filed a timely petition for post-conviction relief in which the Petitioner

alleged that he received the ineffective assistance of trial counsel. Relevant to this appeal,

the Petitioner claimed that trial counsel was ineffective for failing to request a speedy trial;

failing to interview Mr. Myers before trial; failing to object to the prosecutor’s improper

commentary during closing arguments; failing to retain experts in fingerprint, blood-spatter

analysis and forensic firearms analysis; and making improper gestures during the

Petitioner’s cross-examination testimony. The Petitioner also asserted that even if trial

counsel’s individual errors did not amount to ineffective assistance, the cumulative effect

of the errors warranted relief.

The post-conviction court held an evidentiary hearing on February 18, 2022. At the

hearing, trial counsel testified for the Petitioner that he was licensed to practice law in

Alabama in 1976 and Tennessee in 1978 and that he had been in private practice his entire

career, focusing mainly on criminal defense. Trial counsel’s law firm was comprised of

four lawyers, five support staff, a private investigator, an intern, and an employee who

worked two days per week. Trial counsel said that he had participated in “hundreds” of

trials, that eighty-five to ninety-five percent of those trials were criminal trials, and that ten

to twelve of the criminal trials were first degree murder cases. All of the first degree murder

cases involved a self-defense claim.

Trial counsel testified that the Petitioner was “a good man.” The Petitioner retained

trial counsel to represent him in general sessions court for attempted first degree murder,

and trial counsel met with the Petitioner. Trial counsel’s investigator also met with the

Petitioner and reviewed the Petitioner’s case file with trial counsel.

Trial counsel testified that he attended high school with Chuck Myers. He described

Mr. Myers as “an acquaintance” and said their relationship was “[p]leasant.” Trial counsel

told the Petitioner that he knew Mr. Myers and that he thought he would be able to talk

with Mr. Myers “easily.” The Petitioner “was comfortable with that” and was present in

trial counsel’s office two or three times when trial counsel spoke with Mr. Myers on the

telephone. Post-conviction counsel showed a document to trial counsel, and trial counsel

identified it as a letter Mr. Wynne wrote to trial counsel. In the letter, which was dated

August 23, 2011, Mr. Wynn stated, “I asked you before about trying to talk to Myers (the

owner of the house) and you told me not to. I would like to try and get a statement if

possible.” Trial counsel said his investigator “eventually interview[ed] Mr. Myers after

the preliminary hearing.”

Trial counsel testified that he told the Petitioner that the Petitioner was going to be

charged with first degree murder if the victim died. Trial counsel and the Petitioner talked

about the Petitioner’s right to a speedy trial, but trial counsel and the Petitioner did not talk

about requesting a speedy trial because the case for attempted first degree murder had not

been “set” in criminal court. Moreover, the Petitioner “was not in any hurry to get to

court.” Trial counsel “check[ed] on” the victim but did not foresee him dying. The victim’s

wound “would not heal for whatever reason,” and he stayed in the hospital for an extended

period of time. However, the Petitioner and the Petitioner’s wife told trial counsel that the

victim was in the hospital because the victim was addicted to pain pills. Trial counsel

acknowledged that it would have been “beneficial” for the Petitioner to have gone to trial

prior to the victim’s death.

Trial counsel testified that the Petitioner was indicted in criminal court for first

degree premeditated murder on December 10, 2012. On June 3, 2013, the Petitioner was

charged by presentment in criminal court with first degree felony murder and aggravated

burglary. Trial counsel received discovery and reviewed the discovery materials with the

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Petitioner. Trial counsel met with the Petitioner “numerous” times, and the Petitioner came

to trial counsel’s office “regularly.” At some point, the State offered to accept the

Petitioner’s guilty plea to a lesser charge in exchange for one year in confinement and

fourteen years on probation. Trial counsel said that he did not remember the plea offense

but that “[i]t was not a murder charge. It was some type of offense outside the range of the

offense.” Trial counsel stated that he “did everything but get down on [his] knees” to try

to convince the Petitioner to accept the offer but that the Petitioner would not listen to trial

counsel. The Petitioner never denied shooting the victim but thought he did so in self-

defense.

Trial counsel testified that he did not hire an expert to review the blood spatter at

the crime scene because the revolver “had to be cocked back and shot before it would go

off on each occasion.” Trial counsel also did not hire an expert to conduct fingerprint

analysis on the revolver because the Petitioner told trial counsel that the victim never

touched the gun.

Trial counsel acknowledged that during the prosecutor’s cross-examination of the

Petitioner at trial, the following exchange occurred in front of the jury:

[THE STATE]: Your Honor, he is being coached over here.

THE COURT: Don’t be nodding your head yes or no. I have watched

you do that, too. Don’t nod your head while he is answering.

[TRIAL COUNSEL]: Judge, I’m not coaching anybody.

THE COURT: Just let him answer, your client answer. Go ahead.

[THE STATE]: Just one second, Your Honor.

[TRIAL COUNSEL]: Coached, I object to that statement, Your

Honor. It is grossly untrue.

[THE STATE]: Your Honor, I asked the question. He says yes and

he says yes. That’s what happened.

[TRIAL COUNSEL]: I am a human being, Your Honor, I have

emotions, too, but I am not coaching anybody.

THE COURT: You do have emotions but you were nodding your

head in an affirmative motion when he was asking a question and your client

says yes.

Trial counsel explained that he sometimes nodded after the Petitioner said yes but that the

jury could not see trial counsel because “I was completely blocked off from the jury.” Trial

counsel said that although he was nodding, he was not telling the Petitioner to say yes and

was not coaching the Petitioner. Trial counsel stated that the prosecutor should have

approached the bench to accuse trial counsel of coaching the Petitioner and that the

prosecutor’s raising the issue in front of the jury “was totally improper.” Trial counsel said

that he “could see how someone might think” he was coaching the Petitioner and that the

prosecutor’s actions made him “extremely angry.” Trial counsel reiterated that the jury

did not see him nodding his head.

Trial counsel acknowledged that during the State’s closing arguments, the

prosecutor stated, “‘I don’t think any one of us would think that Chuck Myers kicked [the

Petitioner] down the stairs.’” Although the statement could have been construed as the

prosecutor’s personal opinion, trial counsel did not object because he did not want to call

attention to the statement.

On cross-examination, trial counsel testified that the Petitioner never asked that his

trial proceed more quickly. Trial counsel acknowledged that it often took the State one

year to indict a defendant and that trial counsel had never been successful in forcing the

State to proceed to trial before a.defendant had been indicted in criminal court. Trial

counsel said that he talked with Mr. Myers about the case at least five times on the

telephone and that Mr. Myers would not change his story “one iota.” The last time trial

counsel telephoned Mr. Myers, Mr. Myers “got irate” with trial counsel.

Trial counsel acknowledged that blood was in the bedroom where the shooting

occurred. However, there was no blood on the Petitioner. Therefore, trial counsel thought

that he would have been unsuccessful in saying that a fight occurred and that a blood-

spatter expert “without a doubt” could have hurt the defense. Trial counsel also thought

that hiring a fingerprint expert could have hurt the defense because the revolver had to be

cocked every time it was fired. Trial counsel acknowledged that he did not object to the

prosecutor’s statement during the State’s closing argument but said that he was “bitter”

about the State’s raising the coaching issue in front of the jury. Trial counsel maintained

that he was not trying to coach the Petitioner and explained, “If [the Petitioner] would

answer a question I might nod my head yes. I never nodded my head no. It was just a

response to what he said, not an attempt to coach him.” Trial counsel said that although

the jury could not see him nodding, “it was not beneficial to [the Petitioner] the way that

was done, I’Il tell you that.”

The seventy-one-year old Petitioner testified that he was about sixty-two years old

at the time of the shooting. The Petitioner and trial counsel talked about “several things,”

but the Petitioner did not remember if they talked about his right to a speedy trial prior to

the victim’s death. The Petitioner said that if they had done so, he would have requested a

speedy trial. The Petitioner thought he was innocent.

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On cross-examination, the Petitioner testified that after the shooting, his son-in-law

contacted trial counsel. The Petitioner had never met trial counsel previously but retained

trial counsel because he thought, at the time, that trial counsel was a good attorney. The

Petitioner said he did not know how many hours trial counsel worked on his case. On

redirect examination, post-conviction counsel asked the Petitioner if he was “pleased” with

trial counsel’s services. The Petitioner answered, “Not really but yeah.”

On March 14, 2022, the post-conviction court entered an order denying the petition

for post-conviction relief. Regarding the Petitioner’s claim that trial counsel was

ineffective for failing to request a speedy trial, the post-conviction court noted that the

Petitioner was “objecting” to the length of the delay between the offense date and the date

of the victim’s death, which was about five months, and concluded that trial counsel was

not ineffective. As to the issue of whether trial counsel was ineffective for failing to

interview Mr. Myers, the post-conviction court accredited trial counsel’s testimony that he

spoke with Mr. Myers several times on the telephone. The post-conviction court addressed

trial counsel’s failure to object to the prosecutor’s statement during closing arguments and

concluded that trial counsel made a tactical decision not to object so as not to draw attention

to the statement. Regarding trial counsel’s nodding his head during the Petitioner’s cross-

examination testimony, the post-conviction court concluded that the Petitioner failed to

show by clear and convincing evidence that trial counsel’s actions affected the Petitioner’s

credibility with the jury. As to the Petitioner’s claim that trial counsel was ineffective for

failing to hire blood-spatter and fingerprint experts, the post-conviction court concluded

that trial counsel made tactical decisions not to hire the experts because trial counsel

thought they could harm the Petitioner’s self-defense claim. Finally, the post-conviction

court concluded that the Petitioner’s claims did not individually or collectively warrant

relief.

ANALYSIS

Post-conviction relief “shall be granted when the conviction or sentence is void or

voidable because of the abridgment of any right guaranteed by the Constitution of

Tennessee or the Constitution of the United States.” Tenn. Code Ann. § 40-30-103. The

petitioner bears the burden of proving factual allegations by clear and convincing evidence.

Tenn. Crim. App. § 40-30-110(f). When an evidentiary hearing is held in the post-

conviction setting, the findings of fact made by the court are conclusive on appeal unless

the evidence preponderates against them. See Wiley v. State, 183 S.W.3d 317, 325 (Tenn.

2006). When reviewing factual issues, the appellate court will not reweigh the evidence

and will instead defer to the post-conviction court’s findings as to the credibility of

witnesses or the weight of their testimony. Jd. However, review of a post-conviction

court’s application of the law to the facts of the case is de novo, with no presumption of

correctness. See Ruff v. State, 978 S.W.2d 95, 96 (Tenn. 1998). The issue of ineffective

assistance of counsel, which presents mixed questions of fact and law, is reviewed de novo,

with a presumption of correctness given only to the post-conviction court’s findings of fact.

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See Fields v. State, 40 $.W.3d 450, 458 (Tenn. 2001); Burns v. State, 6 S.W.3d 453, 461

(Tenn. 1999).

To establish a claim of ineffective assistance of counsel, the petitioner has the

burden to show both that trial counsel’s performance was deficient and that counsel’s

deficient performance prejudiced the outcome of the proceeding. Strickland v.

Washington, 466 U.S. 668, 687 (1984); see State v. Taylor, 968 S.W.2d 900, 905 (Tenn.

Crim. App. 1997) (noting that the same standard for determining ineffective assistance of

counsel that is applied in federal cases also applies in Tennessee). The Strickland standard

is a two-prong test:

First, the defendant must show that counsel’s performance was deficient.

This requires showing that counsel made errors so serious that counsel was

not functioning as the “counsel” guaranteed the defendant by the Sixth

Amendment. Second, the defendant must show that the deficient

performance prejudiced the defense. This requires showing that counsel’s

errors were so serious as to deprive the defendant of a fair trial, a trial whose

result is reliable.

466 US. at 687.

The deficient performance prong of the test is satisfied by showing that “counsel’s

acts or omissions were so serious as to fall below an objective standard of reasonableness

under prevailing professional norms.” Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996)

(citing Strickland, 466 U.S. at 688; Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)).

The reviewing court must indulge a strong presumption that the conduct of counsel falls

within the range of reasonable professional assistance, see Strickland, 466 U.S. at 690, and

may not second-guess the tactical and strategic choices made by trial counsel unless those

choices were uninformed because of inadequate preparation. see Hellard v. State, 629

S.W.2d 4, 9 (Tenn. 1982).

The prejudice prong of the test is satisfied by showing a reasonable probability, i.e.,

a “probability sufficient to undermine confidence in the outcome,” that “but for counsel’s

unprofessional errors, the result of the proceeding would have been different.” Strickland,

466 US. at 694.

Courts need not approach the Strickland test in a specific order or even “address

both components of the inquiry if the defendant makes an insufficient showing on one.”

466 U.S. at 697; see Goad, 938 S.W.2d at 370 (stating that “failure to prove either

deficiency or prejudice provides a sufficient basis to deny relief on the ineffective

assistance claim”’).

I. Speedy Trial

The Petitioner claims that the post-conviction court erred by determining that trial

counsel was not ineffective for failing to request a speedy trial for attempted first degree

murder. He argues that if trial counsel had done so before the victim died or before the

State amended the charge to first degree murder, the Petitioner would have received a

sentence of fifteen to twenty-five years if convicted instead of a life sentence. The State

argues that trial counsel made a reasoned, strategic decision not to request a speedy trial.

The State also argues that the Petitioner cannot demonstrate prejudice because even if trial

counsel had made the request, it is unlikely the Petitioner would have gone to trial before

the victim died. We agree with the State.

The right to a speedy trial, which is guaranteed by the Sixth Amendment to the

United States Constitution and by article I, section 9 of the Tennessee Constitution,

“attaches at the time of arrest or indictment, whichever comes first, and continues until the

date of the trial.” State v. Vickers, 985 S.W.2d 1, 5 (Tenn. Crim. App. 1997). To determine

whether a defendant’s constitutional right to a speedy trial has been violated, this court

must conduct the balancing test set forth in Barker v. Wingo, 407 U.S. 514 (1972). See

State v. Wood, 924 S.W.2d 342, 346 (Tenn. 1996); State v. Baker, 614 8.W.2d 352, 353

(Tenn. 1981). Under the Barker analysis, the following four factors must be considered:

(1) the length of the delay; (2) the reasons for the delay; (3) the accused’s assertion of the

right to a speedy trial; and (4) the prejudice resulting from the delay. 407 U.S. at 530. The

most important consideration is the prejudice factor. State v. Simmons, 54 S.W.3d 755,

760 (Tenn. 2001). As noted by the State, a delay generally must approach one year to

trigger a Barker analysis. Doggett v. United States, 505 U.S. 647, 652 (1992).

Here, trial counsel testified that a request for a speedy trial would have been

premature because the Petitioner had not been indicted in criminal court. Moreover, trial

counsel testified while it would have been beneficial for the Petitioner to have gone to trial

for attempted first degree murder before the victim died, trial counsel did not foresee the

victim’s death because the Petitioner and the Petitioner’s wife told him that the victim was

in the hospital for an addiction to pain pills. We conclude that the record supports the post-

conviction court’s determination that trial counsel was not deficient for not filing a request

for speedy trial in general sessions court. Therefore, we agree with the State that the

Petitioner has failed to demonstrate that trial counsel was deficient or that he was

prejudiced by any deficiency.

II. Mr. Myers

The Petitioner claims that the post-conviction court erred by ruling that trial counsel

was not ineffective for failing to interview Mr. Myers. The Petitioner asserts that although

trial counsel may have spoken with Mr. Myers several times on the telephone, trial counsel

should have allowed his investigator to interview Mr. Myers close in time to the shooting

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in order to preserve Mr. Myers’s eyewitness account of the event. The State argues that

the Petitioner is not entitled to relief because trial counsel testified that Mr. Myers did not

change his story. We agree with the State that the Petitioner is not entitled to relief.

Trial counsel testified that he and his investigator talked with Mr. Myers and that

Mr. Myers’s story did not change “one iota.” Our review of the trial record confirms that

Mr. Myers told the 911 operator, a police officer at the scene, and the jury that he let the

Petitioner into his home and that the Petitioner immediately went downstairs and shot the

victim. We note that during trial counsel’s cross-examination of Mr. Myers, Mr. Myers

acknowledged that he was having memory issues and that his statement to the police officer

was more reliable than his trial testimony. However, the Petitioner has not explained or

offered any evidence as to how the investigator’s failure to interview Mr. Myers close in

time to the shooting prejudiced his case. Therefore, we conclude that the Petitioner has

failed to show that trial counsel was deficient or that he was prejudiced by any deficiency.

The record supports the post-conviction court’s determination that the Petitioner failed to

establish this claim.

Ii. Experts

The Petitioner contends that the post-conviction court erred by determining that

trial counsel was not ineffective for failing to consult with experts in fingerprint, firearms,

and blood-spatter analysis. He argues that the experts could have corroborated his self-

defense claim and his claim that the victim was the first aggressor. The State argues that

the Petitioner is not entitled to relief because trial counsel made a reasonable, strategic

decision not to hire expert witnesses. We agree with the State.

At trial, the Petitioner claimed that the victim hit him with an object and that the

victim was shot accidentally while they were struggling over the victim’s gun. However,

according to the evidence presented by the State, no blood was on the Petitioner, and the

gun had to be cocked three times in order to fire three shots. Trial counsel testified at the

evidentiary hearing that experts in blood-spatter and fingerprint analysis could have hurt

the Petitioner’s claims. The record supports the post-conviction court’s findings that trial

counsel’s decision not to consult with the experts was a reasonable trial strategy in light of

the evidence. Additionally, as noted by the State, the Petitioner did not have any experts

testify at the evidentiary hearing. In order “[t]o succeed on a claim of ineffective assistance

of counsel for failure to call a witness at trial, a post-conviction petitioner should present

that witness at the post-conviction hearing.” Pylant v. State, 263 S.W.3d 854, 869 (Tenn.

2008) (citing 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.” Jd. (quoting Black, 794 S.W.2d at 757)

Therefore, the Petitioner has failed to show that he received the ineffective assistance of

trial counsel.

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IV. Trial Counsel’s Actions on Cross-Examination

The Petitioner claims that the post-conviction court erred by determining that trial

counsel was not ineffective when trial counsel nodded his head while the Petitioner was

testifying on cross-examination at trial. The record supports the post-conviction court’s

determination that the Petitioner failed to demonstrate prejudice. Trial counsel testified

that the jury could not see him nodding his head, and trial counsel vehemently denied in

front of the jury that he was coaching the Petitioner. In any event, the State’s proof against

the Petitioner was strong. Specifically, the evidence showed that the Petitioner went to Mr.

Myers’s home with a gun and a knife to confront the victim about a dispute between the

victim and the Petitioner’s wife over a lawsuit settlement. Mr. Myers testified that he

followed the Petitioner downstairs, that he saw the Petitioner and the victim standing

several steps apart, and that he saw the Petitioner shoot the victim. Moreover, Mr. Myers

told the 911 operator and a police officer that he saw the Petitioner shoot the victim.

Although the Petitioner claimed that Mr. Myers kicked him down the stairs, the Petitioner

did not appear to be injured or report any injuries when the police arrived. Additionally,

although the Petitioner claimed that the victim was shot accidentally while they were

struggling over the gun, there was no blood on the Petitioner and the gun had to be cocked

each time it was fired, which rebutted the Petitioner’s self-defense claim. Therefore, we

agree with the post-conviction court that the Petitioner is not entitled to relief.

V. Closing Argument

The Petitioner asserts that the post-conviction court erred in determining that trial

counsel was not ineffective for failing to object to an improper comment made by the

prosecutor during closing arguments. The State argues that the Petitioner is not entitled to

relief because trial counsel made a strategic decision not to object. We agree with the State.

At the evidentiary hearing, trial counsel acknowledged that he did not object when

the prosecutor stated, “‘I don’t think any one of us would think that Chuck Myers kicked

[the Petitioner] down the stairs.’” Trial counsel also acknowledged that the statement could

have been construed as the prosecutor’s improperly stating his opinion about witness

credibility. However, trial counsel explained that he did not object because he did not want

to draw the jury’s attention to the statement.

As this court has recognized, “The decisions of a trial attorney as to whether to

object to opposing counsel’s arguments are often primarily tactical decisions.” Derek T.

Payne y. State, No. W2008-02784-CCA-R3-PC, 2010 WL 161493, at *15 (Tenn. Crim.

App. Jan. 15, 2010). The post-conviction court determined that the Petitioner was not

entitled to relief because trial counsel made a strategic decision not to object to the

prosecutor’s statement. The record supports the post-conviction court’s determination that

trial counsel’s failure to object does not constitute deficient performance.

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VI. Cumulative Error

Finally, the Petitioner contends that even if trial counsel’s individual errors do not

amount to ineffective assistance, the cumulative effect of the errors warrants relief. “To

warrant assessment under the cumulative error doctrine, there must have been more than

one actual error committed in the trial proceedings.” State v. Hester, 324 S.W.3d 1, 77

(Tenn. 2010). Moreover, in the context of an ineffective assistance of counsel claim,

cumulative error “examines the prejudicial effect of multiple instances of deficient

performance.” Tommy Dale Adams v. State, No. M2018-00470-CCA-R3-PC, 2019 WL

6999719, at *31 (Tenn. Crim. App. Dec. 20, 2019); see Demetrius Grimes v. State, No.

E2021-00120-CCA-R3-PC, 2022 WL 557739, at *8 (Tenn. Crim. App. Feb. 24, 2022),

perm. app. denied, (Tenn. June 8, 2022); Thomas Edward Clardy v. State, No. M2017-

01193-CCA-R3-PC, 2018 WL 5046032, at *7 (Tenn. Crim. App. Oct. 17, 2018). In this

case, the Petitioner has not demonstrated there were multiple instances of deficient

performance so he is not entitled to relief under the cumulative error doctrine.

CONCLUSION

Based upon the oral arguments, the record, and the parties’ briefs, we affirm the

judgment of the post-conviction court.

YOM,

fs W. CAMPBELL, SR., JUDGE

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