# Edward Parnell Porter v. State of Tennessee

> Court of Criminal Appeals of Tennessee · February 15, 2024

URL: https://www.frixlaw.com/law-library/cases/9941143

## Case

- **Court:** Court of Criminal Appeals of Tennessee
- **Decided:** February 15, 2024
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9941143

## How later opinions describe it (automated extraction)

- establishing the standard of knowledge a defendant must demonstrate to waive their constitutional right to testify

## Opinion text

02/15/2024
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs January 10, 2024

EDWARD PARNELL PORTER v. STATE OF TENNESSEE

Appeal from the Circuit Court for Marshall County
No. 18CR138 (PC) Forest A. Durard, Jr., Judge
___________________________________

No. M2023-00756-CCA-R3-PC
___________________________________

Petitioner, Edward Parnell Porter, appeals the denial of his post-conviction petition,
arguing that the post-conviction court erred in finding that he received the effective
assistance of counsel at trial. Following our review of the entire record and the briefs of
the parties, we affirm the judgment of the post-conviction court.

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

JILL BARTEE AYERS, J., delivered the opinion of the court, in which ROBERT L.
HOLLOWAY, JR., and TIMOTHY L. EASTER, JJ., joined.

Nicholas W. Utter, Fayetteville, Tennessee, for the appellant, Edward Parnell Porter.

Jonathan Skrmetti, Attorney General and Reporter; Christian N. Clase, Assistant Attorney
General; Robert J. Carter, District Attorney General; and William Bottoms and Lee Brooks,
Assistant District Attorneys General, for the appellee, State of Tennessee.

OPINION

Factual and Procedural Background

On May 6, 2018, Petitioner and Lanita Wade, who had been dating for
approximately two years, were traveling in Petitioner’s truck when they got into a verbal
altercation. The two had “a little to drink” while visiting friends prior to the altercation,
and Ms. Wade testified that she hit Petitioner first because she believed that he was going
to hit her. State v. Porter, No. M2019-01377-CCA-R3-CD, 2020 WL 5914625, at *1
(Tenn. Crim. App. Oct. 6, 2020). Petitioner then hit Ms. Wade, who was riding in the
passenger seat, on the left side of her face near her eye. Id. Ms. Wade became afraid and
got into the back seat of the truck to get away from Petitioner; however, they continued
scuffling. Id. Petitioner then pulled over, got out of the truck, opened the back passenger
door, and dragged Ms. Wade out of the vehicle by her feet, causing her head to hit the door
frame. Id. Petitioner also kicked Ms. Wade in the face multiple times while she was on
the ground. Id. At that point, she was unable to defend herself and lost consciousness. Id.
The last thing Ms. Wade remembered was Petitioner standing on top of her and “his foot
coming down on [her] face.” Id. She later woke up alone and barefoot in the middle of
the road near a Tennessee Department of Transportation (“TDOT”) facility. Ms. Wade did
not have a cell phone and began walking toward Lewisburg. Id. She was in pain, felt
dizzy, and her left eye was swollen shut. Id. Ms. Wade walked to a McDonald’s, and the
employees there immediately helped her. Id. One of them gave her a pair of shoes. Id.
On cross-examination, Ms. Wade acknowledged that at the preliminary hearing, she
testified that she saw Petitioner walking away from her, and she did not know how long
she was unconscious before she got up and began walking toward Lewisburg. Id.

Ms. Wade was eventually transported to the Marshall Medical Center where she
was treated for her facial injuries. Hospital employee Brandy Humphrey photographed
Ms. Wade’s injuries and observed that the entire side of Ms. Wade’s face was “swollen
and black,” and her eye was swollen shut and also black and blue. Id. at *2. She had some
bruising on one of her arms as well as a bruise on her breast. Id. Ms. Humphrey also noted
that Ms. Wade was “distraught, and was crying, upset and tired, in pain.” Id. Deputy Alva
Jerel Neal was dispatched to the hospital and spoke with Ms. Wade and also photographed
her injuries. Id. He testified that Ms. Wade’s “eye was closed. She had an injury to one
of her arms. She had a couple of scratches on her chest area[.]” Id. Deputy Neal testified
that the distance from the area where the incident occurred, near the TDOT facility, to
McDonald’s was 3.8 miles, and it was 2.4 miles from the TDOT facility to the first street
light. Id.

At trial, Ms. Wade testified that she still experienced facial pain, and her eye did not
open completely. Id. She also experienced “white flashes and black spots in her vision.”
Id. On cross-examination, Ms. Wade agreed that she reported a pain level of nine out of
ten when she arrived at the Marshall Medical Center after the altercation with Petitioner,
and she did not have any broken bones. Id. She further agreed that on June 3, 2018, she
went to the Maury Regional Medical Center after being involved in a car accident, and she
hit her head on the dashboard during the accident. Id. At the hospital, Ms. Wade reported
a pain level of ten out of ten. Id. She again went to the Maury Regional Medical Center
eleven days later due to a toothache and reported a pain level of ten out of ten. Id. On
redirect examination, Ms. Wade testified that she no longer had pain in her head from the
car accident; however, she still had pain from where Petitioner kicked her in the head. She
also said that she had periodic lingering pain from her tooth. Id. at *2. Ms. Wade testified
that her eye occasionally hurt. She agreed that “regardless of whether she had previously
testified that she saw [Petitioner] walking away, she lost consciousness at some point and

-2-
did not recall seeing him drive away. [Petitioner] was not there when she regained
consciousness.” Id.

Petitioner was convicted of aggravated assault, domestic assault, and misdemeanor
reckless endangerment. His convictions for domestic assault and aggravated assault were
merged and he was sentenced to eight-and-one half years plus eleven months, twenty-nine
days to be served consecutively to a “federal sentence and any unexpired sentence.” On
direct appeal, this court affirmed Petitioner’s convictions and sentence. Porter, 2020 WL
5914625, at *1.

On March 16, 2022, Petitioner filed a pro se petition for post-conviction relief
alleging that his convictions were based on a violation of the protection against double
jeopardy and numerous grounds of ineffective assistance of counsel. Counsel was
appointed, and an amended petition was filed alleging additional grounds of ineffective
assistance of counsel.

At the post-conviction hearing, co-counsel1 testified that he worked as an assistant
public defender and began representing Petitioner in general sessions court. A plea offer
was made by the State for Petitioner to plead guilty to a “misdemeanor assault or a
misdemeanor domestic assault.” Co-counsel testified: “Of course that would have been 11
months and 29 day maximum sentence, but I believe his offer was 6 months initially to
serve and the remainder on probation.” He and Petitioner had conversations about the
offer, and Petitioner “was adamant he would not accept that offer.” Co-counsel also
conducted Petitioner’s preliminary hearing during which Ms. Wade testified.

Co-counsel vaguely recalled reviewing the discovery in Petitioner’s case after the
preliminary hearing. He and lead counsel attempted to have Petitioner visit their office,
but they had a difficult time scheduling appointments with him. When Petitioner did show
up “it seemed like he was not there long.” Co-counsel recalled that he and lead counsel
had conversations about Ms. Wade’s medical records, but he did not recall if he had any
conversations with Petitioner about the records. Co-counsel testified:

It seems like there was an issue of whether or not of course the medical
records were going to be entered into evidence. I think [lead counsel]
eventually had a discussion with the District Attorney’s Office about
excluding those and stipulating that she could testify that she did seek
medical treatment, and that we would keep the medical records out. We did
not feel they would be beneficial and potentially be detrimental to the case.

1
Petitioner was represented by two attorneys at trial. We will refer to them as lead counsel and co-
counsel, and collectively as trial counsel or counsel.

-3-
Co-counsel agreed that Ms. Wade’s medical records included the triage notes of statements
that Ms. Wade made to the medical providers. The notes included a statement that Ms.
Wade was “struck with a fist, pulled out of her vehicle and kicked in the face, unknown
loss of consciousness.” Ms. Wade did not have back or neck pain or any pain below her
waist. She complained of “notable swelling to the left side of her face and pain to the trunk
region.” Co-counsel discussed this information with lead counsel and agreed they would
stipulate at trial that Ms. Wade was treated at the Marshall Medical Center, that her chest
and face were bruised and swollen, that there were no bone fractures observed, and medical
personnel were unable to determine if Ms. Wade’s eye had “internal structural damage.”

Co-counsel testified that his office was concerned about the injury to Ms. Wade’s
eye, which one photograph showed was swollen shut. It was noted in the medical records
that medical personnel could not determine if there was severe damage to Ms. Wade’s eye
or socket because it was so swollen. Co-counsel did not recall if he and lead counsel sought
additional medical records concerning Ms. Wade’s eye.

Co-counsel recalled his cross-examination of Deputy Neal who described the
location where Ms. Wade said Petitioner pushed her from his truck. He thought Deputy
Neal acknowledged that Ms. Wade walked by several houses and that there were
opportunities for her to stop for help before reaching McDonald’s. Co-counsel did not
recall if he asked Deputy Neal about Ms. Wade’s statements to him which were
inconsistent with her trial testimony.

Lead counsel, who also worked as an assistant public defender and represented
Petitioner in general sessions court, testified that Petitioner was initially offered a plea deal
of six months for domestic assault. Lead counsel testified: “We passed that on to
[Petitioner], who was very clear he was not taking that offer. He wanted a trial. He fully
believed that he did not do anything. He was defending himself.” After the case progressed
to circuit court, Petitioner was also given a plea offer of eleven months, twenty-nine days,
all of which would be suspended after the service of thirty days, for reckless endangerment.
Lead counsel and co-counsel strongly encouraged Petitioner to accept the offer, but he
rejected it. Lead counsel agreed that he reviewed the elements of aggravated assault,
penalties, and potential jail exposure with Petitioner. Lead counsel noted that he “handled
the case in [c]ircuit [c]ourt primarily and [co-counsel] came on for the trial.”

Lead counsel testified that he was provided with discovery which consisted of Ms.
Wade’s medical records from the Marshall Medical Center, photographs that Deputy Neal
took of Ms. Wade’s injuries, and a witness list. He received Jencks’ material from the
State “two weeks or so before the trial” that included Deputy Neal’s report which was used
to prepare for cross-examination. Deputy Neal was cross-examined by co-counsel. Lead
counsel testified that he received an additional discovery response a few weeks before trial
that consisted mostly of Ms. Wade’s medical records from Maury Regional Medical Center
where she visited three times in the six weeks after this incident related to a car accident

-4-
and a toothache. There were also records from the Center of Hope and a list of additional
potential witnesses. Lead counsel was aware that during the car accident, Ms. Wade hit
her head or face on the dash. His office reviewed the supplemental discovery and pulled
out any useful information. Lead counsel testified:

What I found [that] was helpful to [Petitioner] was when I looked at them
she had the car wreck, she hit her forehead on the dashboard. She did not go
to the hospital immediately, she went the next day reporting pain still. They
did all of the usual testing but there was no reports of anything we could use
that maybe cause[d] this eye injury she is still claiming. She did report a 10
out of 10 pain, but a day later from hitting her head on the dashboard. She
reported a 9 out of 10 of pain from this initial incident with [Petitioner]
herself. We were trying to use these records, and the same with the June 14th
record regarding a toothache where she also reported a 10 out of 10 pain. We
tried to use those records to show that 6 weeks later she was in even worse
pain than she claimed to be here. So we were trying to get ahead of the
extreme physical pain argument.

Lead counsel testified that he did not file a motion in limine concerning the supplemental
medical records because it was his understanding that the State did not plan to introduce
them.

Lead counsel was aware that Ms. Wade was referred to Vanderbilt University
Medical Center (“VUMC”) by the Maury Regional Medical Center Emergency Room for
an ophthalmology appointment because Ms. Wade was still reporting eye pain from the
incident with Petitioner. Lead counsel did not attempt to obtain any records from VUMC
because the Center of Hope records indicated that Ms. Wade said that nothing was found
during the ophthalmology appointment. He further testified:

And so the reason I didn’t try to get those records at that time was I felt like
that would leave us in the exact same position we were after the stipulation,
because in the stipulation we said that Marshall Medical could not find any
damage to her eye. I felt like we would be in the exact same place with other
records saying there was no damage. But we also told the jury that 9 days
later she was still complaining about problems with her eye. Whereas at the
trial since I didn’t bring those up that never came out. So just I could see it
both ways. I could see using them or not using them, and I went with not
using them. I’m sure that is clear as mud now.

Lead counsel asserted that he thought it would be “safer to keep it with one hospital saying
we can’t find any damage than saying there [are] two hospitals saying they can’t find
damage[,] but she is also still complaining with pain, so I felt like that would bolster her
claim of I have an eye injury.”

-5-
Lead counsel noted that he and co-counsel attempted to contact Petitioner between
court dates. He said:

[Petitioner] was employed at that time so I would imagine it was difficult for
him to take calls. But a lot of times we would get him on the phone he didn’t
want to talk on the phone. He seemed very irritated and wanted to get off the
phone as quickly as possible. A lot of our discussions took place on
scheduled court dates[.]

Lead counsel testified that Petitioner came into the office one time. He said that Petitioner
was provided with a copy of discovery at some point, and they discussed it with him.

Lead counsel testified that Petitioner’s main argument at trial was self-defense
because Ms. Wade “admitted that she attacked [Petitioner] first while he was driving the
vehicle. But with the proportionate response being an aspect of self-defense it also helps,
it also dovetails into an argument over whether or not there was actual serious bodily
injury.” Lead counsel agreed that medical records are typically not the only medical proof
introduced at trial. He said that Ms. Wade could testify as to her injuries, and the State
could also call a physician to testify. Concerning whether Ms. Wade’s statements in the
medical records were consistent with her testimony at the preliminary hearing and trial,
lead counsel testified:

I agreed they were pretty close. However, what stands out to me reading her
basic part of the triage notes, it left out all aspect of the self-defense part of
her attacking him. It feels like - - the notes feel like it was written by
somebody else taking down quick notes from what she was saying so they
left out a lot of the details. So it sounds like a straight up assault by
[Petitioner], I just did not want the jury hearing that. We were aware of it.
We knew what it said, but her own testimony that she assaulted him first I
felt was much better than bringing in she was assaulted by her significant
other. He punched her and kicked her in the face and she had unknown loss
of consciousness. I feel like the unknown loss of consciousness statements
in there as well gave strength to her claims that she was knocked unconscious
when the other statements that we used like in her preliminary hearing where
she said she watched him walk away or the statement she made to Deputy
Neal that she was pushed out of the vehicle and watched him drive off that
those were more in disagreement with what she said at the trial that he pulled
her out of the car and knocked her out and she didn’t even know he left. So
I felt those two other statements were the better ones to cross[-]examine her
with, whereas this one corroborated that so I wanted to stay away from these.

-6-
Lead counsel said that was his reason for filing a motion in limine to exclude Ms. Wade’s
prior statements at trial. He said that Petitioner was not consulted prior to filing the motion.
Lead counsel agreed that there was a stipulation concerning the medical records and that
Petitioner did not participate in the discussion concerning the stipulation. Lead counsel
said, “We told him what we were doing.”

Lead counsel testified that he had a transcript of Ms. Wade’s testimony at the
preliminary hearing, which he used to cross-examine her at trial. He noted that Ms. Wade
changed her testimony at trial “to he kicked her in the head and she was immediately
unconscious verses at the preliminary hearing where she said - - I believe she still said he
kicked her in the head, but she watched him walk away and then passed out.” Lead counsel
testified that he pointed out the inconsistency and cross-examined Ms. Wade about it. He
also agreed that Deputy Neal’s report reflected that Ms. Wade said Petitioner pushed her
out of the vehicle into the ditch and drove away, and then she started walking. Ms. Wade
did not mention unconsciousness. There was a dispute at trial as to whether Ms. Wade
landed in the ditch or was lying in the middle of the road. Lead counsel testified that he
used Deputy Neal’s report during Deputy Neal’s cross-examination rather than Ms. Wade’s
cross-examination because he did not want to give Ms. Wade an opportunity to explain
what she really meant. Lead counsel said Deputy Neal testified at trial that Ms. Wade told
him that Petitioner pushed her out of the vehicle, and she watched him drive away. Lead
counsel pointed out that at trial was the “first time we had any sworn testimony where Ms.
Wade claimed that she was flat out unconscious.” He agreed that he relied on the State’s
witnesses to attack Ms. Wade’s credibility.

Lead counsel testified that a couple of times during court appearances, he and co-
counsel discussed with Petitioner his right to testify. They gave the usual advice of telling
Petitioner not to make a final decision until all of the State’s proof was presented at trial.
However, lead counsel and co-counsel reminded Petitioner of his prior federal drug
conviction, which they felt would be admitted for impeachment purposes if he testified at
trial. Lead counsel thought what Petitioner “would be able to add was outweighed by what
we would lose by that conviction coming in.” Lead counsel testified that Petitioner
understood and was not forced into any decision about testifying and “begrudgingly”
“made the decision himself[.]” Lead counsel further asserted:

There was also a much more minor issue of just the jury being able to get a
good look at him. [Petitioner] is - - he is on the far side of the courtroom
from the jury box right now, which is where he would have been sitting
during trial, but again the sizes, the relative sizes of the two people is also a
factor in self-defense and be less of a chance for the jury to get a look at the
6-foot tall [Petitioner] versus the 4’11” to 5 foot tall Lanita Wade and get a
close look. But the largest by far reason was that record of that conviction I
felt like would really hurt.

-7-
On cross-examination, lead counsel testified that the trial court in this case
conducted a Momon2 hearing at the close of the State’s proof concerning Petitioner’s
decision about whether to testify. Lead counsel agreed that his strategy in Petitioner’s case
was to advise him not to take the stand because of his criminal record and the impact the
size difference between him and Ms. Wade could have on their theory of self-defense.
However, lead counsel said that “the largest reason was his record. Because if the jury
thought that was all he could do to get her to stop then her injuries were explainable[.]”

Petitioner testified that his attorneys did not discuss the stipulations concerning Ms.
Wade’s medical records with him. He was also unaware of the motion in limine addressing
the medical records, and he did not have the option to “agree or disagree with it.” Petitioner
testified, “I feel that based on aggravated assault, the basis of the aggravated assault is
serious bodily injury and I could not defend myself properly without the medical records,
or I could not defend against any accusations of injury without [the] medical record.” Thus,
he felt that self-defense was the only argument that could be presented because the medical
records were “struck” by counsel.

On cross-examination, Petitioner asserted that counsels’ failure to admit Ms.
Wade’s medical records at trial hampered the ability to defend his case. He agreed that
lead counsel cross-examined Ms. Wade at trial about inconsistencies in her testimony.
Petitioner further agreed that there was nothing in the medical records supporting his self-
defense claim that Ms. Wade hit him first. Petitioner testified that he and trial counsel had
a discussion in the middle of trial about whether he would testify. He made the decision
not to testify “[b]ased on the information given to [him].”

Following the hearing, the post-conviction court entered an order denying the post-
conviction petition. The court made extensive findings and concluded that Petitioner failed
to show deficient performance by trial counsel.

Analysis

Petitioner contends that he received the ineffective assistance of counsel in this case
because trial counsel: 1) “stipulated to the contents of certain medical records” without
Petitioner’s consent; 2) failed to request Ms. Wade’s ophthalmology records; 3) failed to
adequately advise him concerning self-defense and whether he should testify at trial; 4)
failed to effectively cross-examine Ms. Wade; and 5) “was deficient to such an extent as
to deprive [Petitioner] of a fair trial.”3 The State responds that Petitioner has not

2
Momon v. State, 18 S.W.3d 152 (Tenn. 1999) (establishing the standard of knowledge a defendant must
demonstrate to waive their constitutional right to testify).
3
Petitioner raised other issues in his post-conviction petition and amended petition. We address only
those issues raised on appeal.

-8-
demonstrated that trial counsel rendered deficient performance as to any of Petitioner’s
claims, and he has not shown any prejudice.

The right to the effective assistance of counsel is safeguarded by both the
Constitution of the United States and the Constitution of Tennessee; therefore, it is
cognizable under the Post-Conviction Relief Act. U.S. Const. amend VI; Tenn. Const. art.
I, § 9; T.C.A. § 40-30-103 (“Relief under this part 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.”). A petitioner alleging
the ineffective assistance of counsel “shall have the burden of proving the allegations of
fact by clear and convincing evidence.” T.C.A. § 40-30-110(f); Dellinger v. State, 279
S.W.3d 282, 291 (Tenn. 2009). When a petitioner asserts ineffective assistance of trial
counsel, he bears the burden of showing that (1) counsel’s performance was deficient and
(2) the deficiency was prejudicial. Strickland v. Washington, 466 U.S. 668, 687 (1984);
Butler v. State, 789 S.W.2d 898, 899 (Tenn. 1990). Failure to satisfy either prong is
sufficient to deny relief. Carpenter v. State, 126 S.W.3d 879, 886 (Tenn. 2004); Finch v.
State, 226 S.W.3d 307, 316 (Tenn. 2007) (“[I]f this Court determines that either prong is
not met, we may forego consideration of the other prong.”).

A claim of ineffective assistance of counsel presents a mixed question of law and
fact. Pylant v. State, 263 S.W.3d 854, 867 (Tenn. 2008) (citing Finch, 226 S.W.3d at 315).
Thus, an appellate court is bound by the factual findings of the post-conviction court unless
the evidence in the record preponderates against those findings; but the post-conviction
court’s application of law to those factual findings is reviewed de novo with no
presumption of correctness. Grindstaff v. State, 297 S.W.3d 208, 216 (Tenn. 2009) (citing
Dellinger, 279 S.W.3d at 293); Fields v. State, 40 S.W.3d 450, 457-58 (Tenn. 2001)).

I. Stipulation to Ms. Wade’s Medical Records Without Petitioner’s Consent

Petitioner contends that trial counsel rendered deficient performance by stipulating
to a portion of Ms. Wade’s medical records from the Marshall Medical Center for her
treatment resulting from the altercation with Petitioner, without his knowledge and consent,
rather than admitting the complete records at trial. Concerning this issue, the post-
conviction court found:

Regarding the issue of the medical records, [lead] counsel stated he received
discovery and reviewed the same. He further testified it was his practice to
review with his clients whenever possible. Notable is the fact [lead] []
counsel stated he had difficulty in communicating with Petitioner. Petitioner
would not talk with [lead] [] counsel on the phone and, perhaps, that was
difficult when Petitioner was at work. Petitioner, according to [lead] []
counsel, only met with him once in his office and most of the conversations
with Petitioner were when they were in court. There is no evidence this was

-9-
not sufficient though. Representation is a cooperative effort between counsel
and client and the client must make themselves available at reasonable times
to further the representation.

Petitioner complains the issue of serious bodily injury could not be defended
without the medical records and that he was not consulted about the
stipulation. The stipulation specifically acknowledged “no bone fractures
were observed in the face, wrist or skull. No internal damage to Ms. Wade’s
eye could be determined.”

Petitioner appears to rely solely upon the injury to Ms. Wade’s eye as the
reason serious bodily injury was found. This is misplaced. The appellate
court found other injuries in addition to the eye injury to conclude Ms. Wade
suffered serious bodily injury. Porter, [2020 WL 5914625] at *6. For
instance, the appellate court noted Ms. Wade, at the time of trial was still
experiencing facial pain, her eye did not completely open and she was having
“white flashes and black spots” in her vision. The appellate court concluded
this met the definition of serious bodily injury. [Lead] [] counsel stated he
reviewed the supplemental discovery provided about three weeks before
trial. Maury Regional Hospital dated March 15, 2018, according to counsel,
noted seeing victim for eye pain and [she] was referred to [VUMC]. Though
counsel did not review the [VUMC] records[,] the same was referenced in
the Center of Hope records indicating that nothing was found at [VUMC].
Even if this information was before the jury, it would not have had a
reasonable probability of undermining the outcome since there was other
evidence in which to conclude Ms. Wade had suffered serious bodily injury.
The Petitioner has failed to prove these facts by [clear] and convincing
evidence and trial counsel’s choice in stipulating the records was not
unreasonable.

(emphasis in original).

The record in this case does not preponderate against the post-conviction court’s
findings. Lead counsel acknowledged that Petitioner was employed at the time of trial and
that it may have been difficult for him to accept calls. However, lead counsel testified that
many times when he and co-counsel reached Petitioner by phone, Petitioner did not want
to talk, seemed irritated, and wanted to get off the phone as quickly as possible. Therefore,
many of their discussions with Petitioner took place on scheduled court dates. Petitioner
met with lead counsel and co-counsel one time in their office and did not stay long.
Although Petitioner did not participate in the discussion concerning the stipulation, as a
result of his own difficulty in communicating with counsel, lead counsel said: “We told
him what we were doing.” There was nothing presented at the post-conviction hearing
indicating that Petitioner objected to the stipulation at the time.

- 10 -
Furthermore, although not specifically found by the post-conviction court, lead
counsel and co-counsel clearly made a strategic decision to stipulate to portions of Ms.
Wade’s medical records. The defense strategy in this case was that Petitioner acted in self-
defense. Co-counsel testified that lead counsel had a discussion with the District Attorney
General’s Office about the stipulation and excluding the medical records. He said that he
and lead counsel did not feel that the records would be beneficial to Petitioner’s case and
that they would belie Petitioner’s self-defense claim and be “potentially detrimental to the
case.” The records included a statement that Ms. Wade was “struck with a fist, pulled out
of her vehicle and kicked in the face, unknown loss of consciousness.” She also
complained of “notable swelling to the left side of her face and pain to the trunk region.”
Lead counsel testified that the triage notes from the medical records “left out all aspects of
the self-defense part of her attacking him” first, and “it sounds like straight up assault by
[Petitioner], I just did not want the jury hearing that.” Lead counsel further testified: “We
knew what it said, but her own testimony that she assaulted him first I felt was much better
than bringing in that she was assaulted by her significant other.” He also felt:

like the unknown loss of consciousness statements in there . . . gave strength
to her claims that she was knocked unconscious when the other statements
that we used like in her preliminary hearing where she said she watched him
walk away or the statement she made to Deputy Neal that she was pushed
out of the vehicle and watched him drive off those were more in disagreement
with what she said at the trial that he pulled her out of the car and knocked
her out and she didn’t even know he left. So I felt those two other statements
were the better ones to cross[-]examine her with, whereas this one
corroborated that so I wanted to stay away from these.

Trial counsels’ decision to stipulate to portions of Ms. Wade’s medical records was
a strategic one that was made with adequate information as a result of trial preparation and
will not be second-guessed by this court. Hellard v. State, 629 SW.2d 4, 12 (Tenn. 1982);
Tolliver v. State, 629 S.W.2d 913, 914 (Tenn. Crim. App. 1981). Trial counsels’
performance concerning this issue was not deficient nor has Petitioner shown that he was
prejudiced by counsels’ performance. “Even if counsel did not consult [Petitioner] before
entering into the stipulations, [Petitioner] has presented no example of how the decision
affected the outcome of the trial, and he is not entitled to relief on this basis.” Schaffer v.
State, No. W2016-00115-CCA-R3-PC, 2017 WL 1205957, at *17 (Tenn. Crim. App. Mar.
31, 2017). Petitioner is not entitled to relief as to this issue.

II. Failure to Request Ms. Wade’s Ophthalmology Records

Next, Petitioner argues that trial counsel were ineffective for failing to request Ms.
Wade’s ophthalmology records from VUMC after she was referred there by the Maury
Regional Medical Center Emergency Room because she was later still reporting eye pain

- 11 -
from the incident with Petitioner. As set forth above, concerning this claim, the post-
conviction court found:

[Lead] [] counsel stated he reviewed the supplemental discovery provided
about three weeks before trial. Maury Regional Hospital dated March 15,
2018, according to counsel, noted seeing victim for eye pain and [she] was
referred to [VUMC]. Though counsel did not review the [VUMC] records
the same was referenced in the Center of Hope records indicating that nothing
was found at [VUMC]. Even if this information was before the jury, it would
not have had a reasonable probability of undermining the outcome since there
was other evidence in which to conclude Ms. Wade had suffered serious
bodily injury.

Again, the record does not preponderate against the post-conviction court’s
findings. Lead counsel was aware that Ms. Wade was referred to VUMC for an
ophthalmology appointment, and he did not attempt to obtain those records because the
Center of Hope records he had received in discovery indicated that Ms. Wade said nothing
was found during the VUMC appointment. Lead counsel testified that he felt that VUMC
records would “leave us in the exact same position we were after the stipulation, because
in the stipulation we said that Marshall Medical could not find any damage to her eye. I
felt like we would be in the exact same place with other records saying there was no
damage.” He further asserted that they thought it would be “safer to keep it with one
hospital saying we can’t find any damage than saying there is two hospitals but she is also
still complaining with pain[.]” Lead counsel was concerned that the VUMC records would
bolster Ms. Wade’s claim of having an eye injury from her altercation with Petitioner.
Counsels’ decision not to request the ophthalmology records was clearly a strategic one
that was made with adequate information as a result of trial preparation and will not be
second-guessed by this court. Hellard, 629 SW.2d at 12; Tolliver, 629 S.W.2d at 914.
Trial counsels’ performance concerning this issue was not deficient.

Furthermore, Petitioner has not shown that he was prejudiced by counsels’
performance. As pointed out by the post-conviction court, on direct appeal this court found
that there was evidence other than Ms. Wade’s eye injury to support the jury’s finding that
she suffered serious bodily injury. This court found that the jury could also have inferred
that Ms. Wade suffered protracted unconsciousness as a result of Petitioner’s assault on
her. Porter, 2020 WL 5914625, at *6. Additionally, Petitioner does not argue in his brief
how he was prejudiced by trial counsels’ failure to obtain the ophthalmology records. See
Strickland, 466 U.S. at 687. Petitioner is not entitled to relief on this issue.

III. Failure to Adequately Advise Petitioner Concerning his Right to Testify

Petitioner contends that trial counsel were ineffective for failing to advise him of
the facts against him as “related to self-defense, including the advice with regards to

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[Petitioner’s] testimony and the self-defense argument.” He further asserts that “absent
from his testimony, all that was left to defend him against the allegations supporting serious
bodily injury would have been in the medical records, which were stipulated away.”
Concerning this issue, the post-conviction court found:

[Lead] [] counsel stated that Petitioner had impeachable offenses that were a
concern. He was concerned about how much larger the Petitioner was than
Ms. Wade. He further stated he felt Petitioner had more to lose than to gain
by testifying and he told the Petitioner accordingly. However, it was up to
Petitioner whether he testified. A Momon hearing was conducted which fully
outlined Petitioner’s rights in regard to testifying. Petitioner claims he chose
not to testify based upon advice provided by counsel.

[Lead] [] counsel advised his client appropriately. There is no evidence to
demonstrate Petitioner’s will was overborne in any[]way. Further, there is
no evidence of what Petitioner would have testified to or whether it would
have made any difference. This issue is without merit and he has failed to
prove this factual allegation by clear and convincing evidence.

The record does not preponderate against the post-conviction court’s findings. Lead
counsel testified that he and co-counsel discussed with Petitioner his right to testify and
gave the usual advice of telling Petitioner not to make a final decision until all of the State’s
proof had been presented. They reminded Petitioner of his prior federal drug conviction
and thought it would be admitted for impeachment purposes if he testified at trial. Lead
counsel specifically said he thought that anything Petitioner “would be able to add was
outweighed by what we would lose by that conviction coming in.” He further pointed out
that Petitioner was much larger than Ms. Wade, and he did not want the jury to “get a good
look at him” because this would have gone against the theory of self-defense. He noted
that Petitioner was on the far side of the courtroom from the jury box during trial. Lead
counsel testified that Petitioner understood the advice and was not forced into any decision
about testifying and “begrudgingly” “made the decision himself[.]” The trial court also
conducted a Momon hearing at the close of the State’s proof concerning Petitioner’s
decision to testify.

Petitioner has not demonstrated that any of the advice given to him by trial counsel
about testifying at trial was erroneous, and Petitioner made the decision himself not to
testify. Moreover, Petitioner did not present proof at the post-conviction hearing as to what
his testimony would have been at trial. “We cannot evaluate the impact of this absent
testimony on the proof that was adduced at trial and, consequently, cannot conclude that
there was a reasonable probability that [Petitioner’s] testimony would have changed the
outcome of the trial.” Claxton v. State, No. W2021-01240-CCA-R3-PC, 2022 WL
2721331, at *4 (Tenn. Crim. App. July 14, 2022), no perm. app. filed. As previously
pointed out, Ms. Wade admitted at trial that she struck Petitioner first as they were driving

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down the road, and she continued scuffling with him and swinging at him after she moved
into the seat behind him as they were driving down the road. Trial counsels’ performance
concerning this issue was not deficient nor has Petitioner shown that he was prejudiced by
trial counsels’ performance. Petitioner is not entitled to relief on this issue.

IV. Failure to Effectively Cross-Examine Ms. Wade

Petitioner asserts that trial counsel were ineffective for failing to cross-examine Ms.
Wade at trial about inconsistencies between her statement to Deputy Neal and her
testimony at the preliminary hearing and on direct examination at trial concerning her
“protracted unconsciousness” after the altercation with Petitioner. Therefore, he contends
that “[t]rial counsel fell short in outright impeaching [Ms. Wade].” Concerning this issue,
the post-conviction court found:

Petitioner claims the witnesses testified inconsistently and “even lied” and
that trial counsel did not challenge them or object. Exhibit 5, page 28 and
29, demonstrates trial counsel challenged [Ms. Wade] on her testimony at
trial versus the preliminary hearing regarding whether [Ms. Wade] was
passed out in the roadway. At the post-conviction hearing there was not
really any evidence produced for the court . . . to pass judgment on this issue.
A reading of the trial transcript (exhibit 5) does not show anything glaring.

It is a well-settled rule that newly discovered impeachment evidence will not
constitute persuasive grounds for a new trial unless the impeachment
evidence is so crucial to the issue of the defendant’s guilt or innocence that
the admission of newly discovered impeachment evidence will probably
result in an acquittal. State v. Bowers, 77 S.W.3d 776 (Tenn. Crim. App.
2001).

(emphasis in original). The post-conviction court further found that Ms. Wade was cross-
examined about the inconsistencies between her trial testimony and her preliminary hearing
testimony, and she “admitted that she may have made an inconsistent statement regarding
blacking out and seeing the Petitioner walking away. There was no showing of
inconsistencies regarding her reports to medical providers and her trial testimony.
[Petitioner] has failed to prove this fact by clear and convincing evidence.”

The record does not preponderate against the post-conviction court’s findings. A
trial counsel’s decision concerning the manner and subject manner of cross-examination,
“is a strategic[] or tactical choice, if informed and based upon adequate preparation.”
Pierce v. State, No. M2005-02565-CCA-R3-PC, 2007 WL 189392, at *7 (Tenn. Crim.
App. Jan. 23, 2007) (citing Hellard, 629 S.W.2d at 9); see also Keene v. State, No. E2022-
01410-CCA-R3-PC, 2023 WL 5978223, at *5 (Tenn. Crim. App. Sept. 14, 2023), perm
app. denied (Feb. 13,2024); Brown v. State, No. W2021-01331-CCA-R3-PC, 2022 WL

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16919956, at *8 (Tenn. Crim. App. Nov. 14, 2022), perm. app. denied (Tenn. Mar. 9,
2023). Additionally, “strategic decisions during cross-examination are judged from
counsel’s perspective at the point of time they were made in light of all the facts and
circumstances at that time.” Reeves v. State, No. M2004-02642-CCA-R3-PC, 2006 WL
360380, at *10 (Tenn. Crim. App. Feb. 16, 2006). In this case, trial counsel made a
strategic decision to use the transcript of Ms. Wade’s testimony from the preliminary
hearing to impeach her credibility at trial and dispute the State’s proof that she suffered
serious bodily injury as a result of the assault by Petitioner. On direct examination, Ms.
Wade testified that Petitioner kicked her in the head, immediately knocking her
unconscious. However, at the preliminary hearing, she said that she saw him walking away
after he assaulted her, and then she lost consciousness. Lead counsel pointed out this
inconsistency to the jury and cross-examined Ms. Wade about it. He further questioned
Ms. Wade about reporting higher levels of pain for injuries from a subsequent car accident
and a toothache than she reported for the assault in this case.

Lead counsel was aware that Deputy Neal’s report reflected that Ms. Wade said
Petitioner pushed her out of the vehicle into the ditch and drove away, and then she started
walking. She did not mention unconsciousness. Lead counsel noted that there was also a
dispute at trial as to whether Ms. Wade landed in the ditch or was lying in the middle of
the road. Lead counsel made a strategic decision to use this report during Deputy Neal’s
cross-examination to attack Ms. Wade’s credibility because lead counsel did not want to
cross-examine Ms. Wade with the report and give her the opportunity to explain the
discrepancy. Lead counsel clearly made an informed strategic decision concerning his
cross-examination of Ms. Wade that was based upon adequate preparation and will not be
second-guessed by this court. Pierce, 2007 WL 189392, at *7; Keene, 2023 WL 5978223,
at *5; Brown, 2022 WL 16919956, at *8. Petitioner has not shown that trial counsel
rendered deficient performance concerning this claim.

Furthermore, Petitioner has not shown any prejudice from lead counsel’s cross-
examination of Ms. Wade. This court has held:

When evaluating the performance of trial counsel on cross-examination, the
petitioner must show “what additional beneficial evidence could have been
elicited” through his or her preferred cross-examination. See Ortiz v. State,
No. M2020-01642-CCA-R3-PC, 2021 WL 5080514, at *4 (Tenn. Crim.
App. Nov. 2, 2021), perm app. denied (Tenn. Jan. 14, 2022). In addition, the
petitioner must also present that witness at the post-conviction evidentiary
hearing to show how the witness would have responded to trial counsel’s
questioning. See Britt v. State, No. W2016-00928-CCA-R3-PC, 2017 WL
1508186, [at] *4, *7 (Tenn. Crim. App. Apr. 25, 2017) (“[T]he Petitioner did
not present Ms. Tackett’s testimony at the post-conviction hearing to show
how she would have responded had trial counsel asked about her inability to
see the fight . . . . The Petitioner has failed to prove . . . that there is any

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reasonable probability of another outcome had trial counsel cross-examined
Ms. Tackett differently.”).

Brown, 2022 WL 16919956, at *8. In this case, Petitioner has not suggested what questions
should have been asked of Ms. Wade during cross-examination, and he did not call her as
a witness at the post-conviction hearing. Therefore, we cannot speculate as to how she
would have responded to any questions that Petitioner thinks should have been asked of
her at trial.4 Id.; Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990). Petitioner
is not entitled to relief on this issue.

V. Whether Petitioner was Deprived of the Right to a Fair Trial

Finally, Petitioner argues that trial counsels’ representation was deficient to the
extent that it deprived him of the right to a fair trial. More specifically, he contends that
the facts of this case fail to meet the statutory definition of serious bodily injury to support
his conviction for aggravated assault and “that had [t]rial [c]ounsel been effective, the
[S]tate would not have been able to so prove.” Petitioner further asserts the proof
supporting his reckless endangerment charge “involved testimony about unconsciousness
and the location as to where [Ms. Wade] was left at the point [Petitioner] drove away.” He
contends that “both issues” are “in conflict from the proof, neither of those topics were
well developed in cross-examination. Both of those issues are contradicted by statements
in Exhibits 1, 2, 4, and 5. The [trial] transcript contains no proper impeachment.”

Although Petitioner labels this argument as an ineffective assistance of counsel
issue, he essentially appears to be challenging the sufficiency of the evidence by arguing
that the proof presented at trial was insufficient to show that Ms. Wade suffered serious
bodily injury in support of his conviction for aggravated assault and that there was a
conflict in the proof as to whether she was left unconscious in the middle of the road by
Petitioner to support his conviction for reckless endangerment. This court has already
found on direct appeal that the evidence was sufficient to support both convictions. Porter,
2020 WL 5914625, at *1. Therefore, Petitioner is not entitled to relief on this issue. Wilson
v. State, No. W2018-01588-CCA-R3-PC, 2020 WL 7658417, at *11 (Tenn. Crim. App.
Dec. 22, 2020) (holding that “although the [p]etitioner labels this as an election issue, he
appears in essence to be challenging the sufficiency of the evidence by arguing that the
victim’s testimony was insufficient to sustain a conviction for the elected offense”).

4
In his brief, Petitioner states that the “whereabouts of the [v]ictim were unknown as of the hearing, and
her testimony was not otherwise available.” There is no further explanation as to her absence at the post-
conviction hearing.

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Conclusion

For the foregoing reasons, we affirm the judgment of the post-conviction court.

____________________________________
JILL BARTEE AYERS, JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9941143. Public record. Not legal advice.