The opinion
04/24/2024
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs March 27, 2024
FRED BIRCHFIELD v. STATE OF TENNESSEE
Appeal from the Criminal Court for Morgan County
No. 2010-CR-80 Jeffrey Wicks, Judge
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No. E2023-00385-CCA-R3-PC
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A Morgan County jury convicted the Petitioner, Fred Birchfield, of second degree murder
and reckless homicide. The trial court sentenced the Petitioner to serve consecutive
sentences of eighteen years for his second degree murder conviction and three years for his
reckless homicide conviction. The Petitioner appealed, and this court affirmed the
Petitioner’s convictions. State v. Birchfield, No. E2016-00493-CCA-R3-CD, 2017 WL
758515, at *1 (Tenn. Crim. App. Feb. 27, 2017), perm. app. denied (Tenn. Jun. 7, 2017).
The Petitioner timely filed a post-conviction petition, alleging that he received the
ineffective assistance of counsel. After a hearing, the post-conviction court denied relief.
After review, we affirm the post-conviction court’s judgment.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
ROBERT W. WEDEMEYER, J., delivered the opinion of the court, in which JOHN W.
CAMPBELL, SR., and MATTHEW J. WILSON, JJ., joined.
Walter Johnson, Lenoir City, Tennessee, for the appellant, Fred Birchfield.
Jonathan Skrmetti, Attorney General and Reporter; Benjamin A. Ball, Senior Assistant
Attorney General; Russell Johnson, District Attorney General; and Jonathan S. Edwards,
Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
I. Procedural History and Facts
A. Procedural History
On September 20, 2010, a Morgan County grand jury indicted the Petitioner for two
counts of second degree murder for the May 29, 2010 events that resulted in the deaths of
John C. Robbins and Melissa G. Norris. After a trial, a jury convicted the Petitioner of
second degree murder and reckless homicide. The trial court sentenced the Petitioner to
serve an effective sentence of twenty-one years. On direct appeal, this court affirmed the
trial court’s judgments, and our supreme court denied the Petitioner’s application to appeal.
Id. The Petitioner, pro se, timely filed a petition for post-conviction relief, and his post-
conviction counsel filed an amended petition.
B. Trial
On direct appeal, this court summarized the facts presented at trial as follows:
At the trial, the recording of a 9-1-1 call was played for the jury. In the
recording, the [Petitioner] told the dispatcher that two people were dead on
the road in front of his home. The [Petitioner] stated that “they” pulled their
vehicle over, that “they” pulled out a .44-caliber firearm, and that the
[Petitioner] shot “them.” The [Petitioner] identified Mr. Robbins and
referred to Ms. Norris as Blondie. The dispatcher asked the [Petitioner] to
calm down.
The [Petitioner] told the 9-1-1 dispatcher that Mr. Robbins displayed
a .44-caliber pistol, that the [Petitioner] “jumped out” of his vehicle, that the
[Petitioner] had a .22-caliber pistol, that Mr. Robbins said he would “blow
off” the [Petitioner]’s head, and that the [Petitioner] told Mr. Robbins that
Mr. Robbins “did not have to do that.” The [Petitioner] said that before the
shooting, he pulled his vehicle beside the victims’ truck because “they came
down here starting some stuff.” The [Petitioner] said that his hand was
bleeding because Mr. Robbins shot Mr. Robbins’s gun at the [Petitioner] and
that the [Petitioner] “jerked” Mr. Robbins’s gun out of Mr. Robbins’s hand.
The [Petitioner] said that after he got out of his vehicle, he told Mr. Robbins
to shoot him because he would rather be shot by a friend than by someone
who “snuck around [his] back.” The [Petitioner] said he “just shot” the guns
and did not know where the victims had been injured. The [Petitioner] stated
that he fired his gun until it was empty, that he fired Mr. Robbins’s .44-
caliber gun until it was empty, and that afterward, he threw Mr. Robbins’s
gun at Mr. Robbins, who was still inside the truck.
Former Morgan County Sheriff’s Deputy Rick Hamby testified that
on May 29, 2010, he responded to the scene and that the [Petitioner] waved
for the deputy to stop. Deputy Hamby said that the [Petitioner] showed him
Mr. Robbins’s truck and that the [Petitioner] reported a “gunfight” with Mr.
Robbins, who was deceased inside the truck. Deputy Hamby knew Mr.
Robbins and said a woman, whom the [Petitioner] referred to as Blondie, was
also deceased inside the truck.
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Deputy Hamby testified that although he did not question the
[Petitioner] about the shooting, the [Petitioner] stated that the victims had
driven by the [Petitioner]’s home several times, that the victims were cursing
and yelling at the [Petitioner], and that Blondie called the [Petitioner] a “suck
a--.” Deputy Hamby said the [Petitioner] reported that he saw the victims
turn on the road across from the [Petitioner]’s home and that a “short time”
later the [Petitioner] heard three or four gunshots, which the [Petitioner]
thought sounded like a .22-caliber or a .22-caliber magnum firearm. Deputy
Hamby said the [Petitioner] stated that he drove to Lawrence Ellis’s home
just down the road and that when the [Petitioner] was driving home, the
victims pulled their truck beside the [Petitioner]’s truck. The [Petitioner]
said that Mr. Robbins told the [Petitioner] that the [Petitioner] owed Ms.
Norris an apology and that the [Petitioner] refused and said “f--- that b----.”
Deputy Hamby said the [Petitioner] explained that the [Petitioner] and Mr.
Robbins each admitted they were carrying guns, that the [Petitioner] got out
of his truck and suggested the men be friends, that the [Petitioner] walked to
Mr. Robbins’s truck window, that the [Petitioner] “reached for [Mr.
Robbins’s] gun . . . and that it went off.” Deputy Hamby said the [Petitioner]
also explained that the [Petitioner] fired his gun until “it went empty” and
that the [Petitioner] took Mr. Robbins’s gun and fired it until it was also
empty. Deputy Hamby said that the [Petitioner] stated, “I didn’t mean to kill
that girl, but I’m glad they’re dead. I don’t have to look behind me anymore.”
On cross-examination, Deputy Hamby testified that he arrived at the
scene around 1:00 a.m., that the [Petitioner] was cooperative, and that the
[Petitioner]’s left hand was hurting, although the deputy did not examine the
hand. Deputy Hamby said that the [Petitioner] did not appear to have cleaned
himself.
Morgan County Sheriff’s Deputy Caleb Pemberton testified that he
drove the [Petitioner] to the hospital to determine his blood alcohol
concentration and that during the drive, the [Petitioner] said he was “afraid
of Morgan County” and feared for his life. Deputy Pemberton said the
[Petitioner] explained that Mr. Robbins pulled out a gun, that the [Petitioner]
shot Mr. Robbins and took Mr. Robbins’s gun, and that the [Petitioner] shot
Mr. Robbins again. Deputy Pemberton said that the [Petitioner] stated that
before the shooting, the victims turned onto the road across from the
[Petitioner]’s home, that the [Petitioner] later heard four or five gunshots that
he thought came from a .22-caliber or .22-caliber magnum firearm, that the
[Petitioner] had been at a friend’s home when he heard the gunshots, and that
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the [Petitioner] decided to go home after hearing the gunshots. Deputy
Pemberton said that the [Petitioner] explained that during the drive home, he
pulled his vehicle beside the victims’ truck on the road, that Mr. Robbins
pulled out a gun, that the [Petitioner] pulled out his gun and shot at Mr.
Robbins, that the [Petitioner] took Mr. Robbins’s gun from Mr. Robbins, and
that the [Petitioner] shot Mr. Robbins with Mr. Robbins’s gun. Deputy
Pemberton recalled the [Petitioner]’s saying, “I won’t be railroaded by [Mr.
Robbins] no more. [Mr. Robbins] ran over me before[,] and I’m not going
to go through that again.”
On cross-examination, Deputy Pemberton testified that he did not
examine the victims’ truck but that he saw a gun lying inside the truck. He
did not notice any cartridge casings inside the truck. He agreed the
[Petitioner] was cooperative.
Morgan County Sheriff’s Deputy Mike Wren testified that when he
arrived at the scene, he saw a black truck parked in the middle of the road.
He said the truck’s lights were on, the engine was running, and the truck was
in second gear but not moving. A photograph showed the front bench seat
inside the truck. The photograph showed Ms. Norris on the right end of the
seat, slumped toward the passenger door, and it showed Mr. Robbins in the
middle of the seat slumped toward Ms. Norris. Deputy Wren said that the
driver’s door was not open when he arrived and that the passenger-door
window was shattered. Deputy Wren knew Mr. Robbins.
Deputy Wren testified that the distance between the ground and the
bottom of the driver’s side window was four feet, two and one-half inches.
He said that a .44-caliber magnum revolver, which was pointed toward Ms.
Norris, was found on Mr. Robbins’s lap and that the revolver contained
cartridge casings. He said that a .22-caliber semi-automatic Ruger, which
contained eleven unfired bullets, was also found inside the truck and that the
firearm was found between Mr. Robbins and the center console. He noted
the Ruger was not visible from the driver’s door.
Deputy Wren testified that a nine-shot revolver, containing eight
cartridge casings and one unfired bullet, was found inside the [Petitioner]’s
truck. Deputy Wren said that forty-four .22-caliber unfired bullets were
found inside the [Petitioner]’s pants pockets.
Deputy Wren testified that Mr. Robbins’s truck was secured, towed,
and searched. Deputy Wren said that inside the cab and the bed of the truck,
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he found a suitcase, a twelve-pack or eighteen-pack of beer, a bottle of wine,
and six to twelve marijuana plants. He said that Tennessee Bureau of
Investigation (TBI) Agent Legg found a bullet lodged in the center console.
Deputy Wren recalled that the medical examiner found a bottle of pills and a
smoking pipe in Ms. Norris’s clothes.
On cross-examination, Deputy Wren testified that the pipe found in
Ms. Norris’s clothes appeared to be used to smoke amphetamines and
cocaine, but not necessarily marijuana. Deputy Wren agreed that he found
open beer cans and a butane lighter inside the truck and that attached to a seat
belt, he found a set of leg irons, which he assumed was decorative. He agreed
he found boxes of bullets for the .44-caliber and .22-caliber firearms inside
Mr. Robbins’s truck and said the boxes were “right in front of” Mr. Robbins.
Deputy Wren testified that the [Petitioner]’s firearm was a type of gun
many “older people [had] for self[-]defense.” Deputy Wren said that the
barrel of the firearm found between Mr. Robbins and the console was pointed
toward the seat. Deputy Wren did not know if the [Petitioner] had a bloody
hand at the scene. Deputy Wren agreed that Mr. Robbins was about six feet
tall and weighed 175 to 180 pounds. Deputy Wren said that he found one
beer can inside the [Petitioner]’s truck but that he could not determine at the
scene whether the [Petitioner] was under the influence of alcohol.
Dr. Darinka Mileusnic-Polchan, an expert in forensic pathology,
testified that she performed the victims’ autopsies. Dr. Mileusnic-Polchan
stated that Ms. Norris sustained a gunshot wound to the left eye, that the
small-caliber bullet entered the brain, and that the brain was severely
damaged. Dr. Mileusnic-Polchan concluded that this gunshot wound was the
cause of death. She did not find any gunshot powder or soot on Ms. Norris
or her clothes, leading Dr. Mileusnic-Polchan to conclude that the gun was
fired more than two or three feet from Ms. Norris. Dr. Mileusnic-Polchan
stated that the toxicology analysis showed the presence of
methamphetamine, amphetamine, oxycodone, and Xanax.
Dr. Mileusnic-Polchan testified that Mr. Robbins suffered multiple
gunshot wounds from two firearms. She stated that Mr. Robbins had five
wounds from a small-caliber firearm, that one wound was inflicted at close
range to the left side of the face, which fractured the left mandible, and that
the bullet was recovered from the tongue. She stated that another bullet
struck the left shoulder and was fired from close range based upon the
amount of gun powder found on Mr. Robbins’s clothes. Dr. Mileusnic-
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Polchan said that other bullets struck the left shoulder and exited the chest,
struck and exited the left arm, and struck the right hand and wrist. Dr.
Mileusnic-Polchan stated that nine large-caliber bullets struck the left
shoulder, left and right arm, left face, left and right chest, and abdomen. She
stated that two bullets struck the abdomen and that these wounds were fatal
because of damage caused to the aorta, renal artery, lumbar vertebrae, and
colon. She stated that the toxicology analysis showed a blood alcohol
concentration of .06% and the presence of methamphetamine, amphetamine,
and oxycodone.
On cross-examination, Dr. Mileusnic-Polchan testified that Ms.
Norris had healing bruises on her extremities, which were unrelated to the
gunshot wounds. She agreed that the left arm showed a single bruise
associated with a needle puncture and that the amount of methamphetamine
in Ms. Norris’s blood was high. Dr. Mileusnic-Polchan said that two glass
pipes were found in Ms. Norris’s clothes and that the material inside the pipes
could have been methamphetamine. Dr. Mileusnic-Polchan said that she
found loose oxycodone and Xanax tablets and a “pill container” with “pistol
cartridges” in Ms. Norris’s clothes. Dr. Mileusnic-Polchan agreed that Mr.
Robbins had been drinking alcohol and had consumed methamphetamines
and oxycodone near the time of his death.
Gloria Sweeten testified that Mr. Robbins was her youngest brother
and that Ms. Norris, to whom she referred as Blondie, lived with Mr.
Robbins. Ms. Sweeten and her husband lived on a large parcel of land, which
contained a chicken house. Ms. Sweeten said that Mr. Robbins used the
chicken house to work on farm equipment and vehicles, that Mr. Robbins
brought his friends to the chicken house, and that she met the [Petitioner] at
the chicken house. She said that she saw the [Petitioner] and Mr. Robbins
together about one month before the shooting and that the men were not
arguing. She said Mr. Robbins was left handed.
TBI Agent Steven Scott, an expert in forensic firearm identification,
testified that he analyzed three firearms and various bullets, bullet fragments,
and cartridge casings. Relative to the Ruger .22-caliber semi-automatic
pistol found inside Mr. Robbins’s truck, Agent Scott determined that none of
the evidence matched the gun. Relative to the .22-caliber revolver found
inside the [Petitioner]’s truck, Agent Scott stated that the .22-caliber
cartridge casings recovered from the gun’s cylinder matched the cartridge
casings that were removed from the gun and submitted for analysis. Because
of the damage sustained to the bullets submitted for analysis, he was unable
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to determine conclusively whether the bullets and bullet fragments recovered
from the scene and the victims were fired from the .22-caliber revolver.
Agent Scott testified that the six .44-caliber magnum cartridge casings
he analyzed were fired from the .44-caliber magnum revolver found inside
Mr. Robbins’s truck. Relative to a bullet recovered from inside Mr.
Robbins’s truck, Agent Scott determined that it was fired from the .44-caliber
magnum revolver. Agent Scott conclusively determined that five bullet
fragments removed during Mr. Robbins’s autopsy were fired from the .44-
caliber magnum revolver.
On cross-examination, Agent Scott testified that he did not analyze
the firearms for accuracy or range but that generally, a bullet from a .22-
caliber firearm could travel up to one and one-half miles. He said, though,
he did not think a person who was “lying and waiting” to kill another person
would have great success from 100 yards.
TBI Agent Jason Legg testified that he assisted in the investigation
after the truck had been towed to the secured impound lot. Agent Legg said
that although the driver’s side door did not have any bullet holes, the center
console had one. Agent Legg said that Mr. Robbins was deceased at the
scene and that none of Mr. Robbins’s body was outside the truck. Agent
Legg noted that Mr. Robbins’s feet were “planted in the floor of the truck”
and that the truck’s location in the roadway indicated it had been traveling
away from the [Petitioner]’s home.
Paramedic Patrick Sexton testified for the defense that he responded
to the scene. Mr. Sexton stated that the [Petitioner] had blood on the left
hand and fingers but that the blood was not from an injury. Mr. Sexton said
that he saw a tear on the top of the [Petitioner]’s left hand, powder burns
between the left index finger and thumb, and dark discoloration in the same
area without any blood.
Id. at *1-4.
Based upon this evidence the jury convicted the Petitioner of second degree murder
and reckless homicide. The trial court sentenced the Petitioner to serve consecutive
sentences of eighteen years, as a Violent Offender, for his second degree murder conviction
and three years, as a Standard Offender, for his reckless homicide conviction, for a total
effective sentence of twenty-one years of incarceration. The Petitioner appealed, and this
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court affirmed the Petitioner’s convictions. Id. at *1. The Petitioner timely filed a post-
conviction petition.
C. Post-Conviction Hearing
As relevant to this appeal, the Petitioner maintains that Counsel was ineffective for
failing to request a Momon hearing and failing to offer affirmative evidence to support his
self-defense theory. See Momon v. State, 18 S.W.3d 152 (Tenn. 1999), on reh’g (Mar. 30,
2000). We summarize the material evidence from the post-conviction hearing related to
the issues on appeal. At the post-conviction hearing, the Petitioner testified about the
allegation that Counsel coached the Petitioner not to testify and “groomed” him to remain
silent, and then the trial court never made inquiries as to whether the Petitioner knew his
rights. The Petitioner said that he did not testify at trial based upon Counsel’s advice. The
Petitioner recalled that he asked Counsel whether he should testify and Counsel responded,
“no, you should not take the stand. I recommend you not, because you are going home.
You are – he said I just left the meeting with the Judge.”
The Petitioner agreed that Counsel advised him that he had the right to testify or not
to testify and that no inferences could be drawn from the Petitioner’s decision not to testify.
The Petitioner said that Counsel did not review the advantages of testifying with him but
that Counsel did explain the disadvantages. Counsel told the Petitioner that the
disadvantage of testifying would be that the Petitioner’s testimony would “harm” his case.
In furtherance of his allegation about Counsel’s failure to call him as a witness, the
Petitioner testified about the night of the shooting. He said he was at home with his wife
and elderly neighbor, Bepo Ward. While in the yard grilling, the Petitioner heard a truck
erratically driving up and down the road in front of the Petitioner’s house. The occupants
of the car, Mr. Robbins and Ms. Norris, would “holler stuff” as they drove by, and “spin
tires.” The Petitioner added that the occupants of the car cussed at him and called him
names.
After eating dinner, the Petitioner and his wife drove to a nearby residence that his
wife owned to check on the property. On their drive back home, the Petitioner’s neighbor,
Lawrence Ellis, called. The Petitioner drove to Mr. Ellis’s house to speak with him. As
he stood on Mr. Ellis’s porch he saw tail lights on his property. He explained that he
assumed the tail lights were from his “Dodge” and that his wife was preparing to drive to
Mr. Ellis’s house to tell him to come home. As he continued to look at the truck, he realized
it was not his truck. The Petitioner observed that the truck doors were open, and he could
see someone walking around the front of the truck. Concerned for the safety of his home,
he left Mr. Ellis’s residence and drove home. According to the Petitioner, when the victims
saw him backing out of Mr. Ellis’s driveway, they drove out of his yard and passed the
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Petitioner on Peters Ford Road. The Petitioner could see Mr. Robbins in the truck, so he
came to a stop. Mr. Robbins had passed the Petitioner’s car but he backed up his truck
next to the Petitioner’s car. The driver’s side of both vehicles were next to one another
with the vehicle windows open.
The Petitioner testified that he and Mr. Robbins began talking and then Mr. Robbins
said, “look down, you son of a b**ch, look down.” Mr. Robbins had extended his arm out
the window and was holding a pistol. Mr. Robbins said, “that’s a 44-magnum, and the
hammer’s laid back and pointing at your G-D head.” The two men then began to argue
about why Mr. Robbins was on the Petitioner’s property. Mr. Robbins told the Petitioner
that Mark Smith had sent him to retrieve a disk, and the Petitioner told him that he did not
have Mark Smith’s disk on his property. Mr. Robbins responded by saying he had “a
peeve” with the Petitioner’s neighbor, Mr. Ellis. Mr. Robbins threatened to go to Mr.
Ellis’s with the gun, and the Petitioner tried to delay him.
Concerned about Mr. Ellis’s safety, the Petitioner told Mr. Robbins, “let’s just get
out and talk about it here,” and opened the truck door, inviting Mr. Robbins into his yard
to talk. Mr. Robbins refused, insisting that they go to Mr. Ellis’s house. The Petitioner’s
car began to roll, so the Petitioner sat down in his car to try to stop it when he heard “the
shot.” He grabbed his “22” from the passenger side of the car and began firing. He
explained that he did not normally keep his gun in his car, but he did so that night because
he was “expecting something.” The Petitioner shot Mr. Robbins three times to “deescalate
the situation”; however, Mr. Robbins was still trying to cock the pistol. The Petitioner, “in
fear of [his] life,” ducked behind his open car door and told Mr. Robbins to stop. He noted
that he could have killed Mr. Robbins “at any time,” but he did not. The Petitioner was
still exposed behind the car door, so he ran to the rear of Mr. Robbins’s truck.
At the rear of Mr. Robbins’s truck, the Petitioner reloaded his gun and then ran
toward his house. As he neared the front porch, he heard more gunfire. Feeling exposed
on the porch, he ran back toward the truck to hide “between the trees” using his car “as a
block.” He moved behind Mr. Robbins’s truck again, “with the hammer laid back,” and
then moved behind his car. He came “over the top of the car” and told Mr. Robbins to stop
because the police were on their way.
The Petitioner testified that he approached the open truck door but denied that he
opened the truck door. He recalled that Mr. Robbins was still holding the pistol. The
Petitioner once again urged Mr. Robbins not to shoot. He said that he had his .22 caliber
revolver against Mr. Robbins’s head. He said that he could have shot Mr. Robbins between
the eyes but that he did not. Instead, he grabbed Mr. Robbins’s .44-caliber magnum
revolver and told Mr. Robbins to let it go. He then shot Mr. Robbins in the wrist to get
him to relinquish the gun. The men continued to struggle over the gun, and as the Petitioner
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“turned the gun it went off,” shooting Mr. Robbins in the stomach. The Petitioner was
“shocked” and then looked over and saw Ms. Norris pointing a silver gun at him. The
Petitioner said, “no, no, don’t do it” and, as he backed away from the truck, he fell, and his
gun fired hitting, Ms. Norris. At this point, Mr. Robbins made some type of motion, and
the Petitioner began firing his .22 caliber revolver at Mr. Robbins. The Petitioner stated
that he did not know that Mr. Robbins and Ms. Norris were dead. He was so frightened
that he just kept shooting.
Once the police arrived, the Petitioner told Ricky Hamby and Caleb Pemberton that
the victims had been in his yard. He admitted that he did not provide law enforcement with
all the detail described in his testimony, explaining that he did not do so because he did not
have an attorney present at the time. He recalled that he did tell Counsel the events as he
had testified to them at the post-conviction hearing and that Counsel had told him he did
not need to testify. The Petitioner stated that he had wanted to testify at trial because he
was not the aggressor.
The Petitioner testified that Counsel did not communicate with him adequately in
preparation for the trial. He said that Counsel did not answer phone calls or meet with the
Petitioner. He said that he begged Counsel to hire an investigator or a gun expert and
Counsel did not do so. He agreed that Counsel filed pretrial motions on his behalf but
explained that Counsel only did so after months of the Petitioner and his family asking him
to file those motions. Further, Counsel failed to file a motion to suppress his statements to
law enforcement.
The Petitioner testified that Counsel called only one witness at trial, the EMT who
treated the Petitioner’s hand after the shooting. The Petitioner recalled that there was a
dark discoloration on his hand that he believed was from when the pistol “went off in [his]
hand.” The Petitioner said that there were several people who were present at his trial to
testify but that Counsel did not present their testimony. At trial, the Petitioner asked
Counsel where the Petitioner’s witnesses were, and Counsel said that he had dismissed
them. The Petitioner maintained that he wanted the witnesses to testify on his behalf.
On cross-examination, the Petitioner testified, giving a more detailed timeline of the
night of May 29, 2010, saying that he was grilling when the victims drove past his house
four or five times. He finished grilling, ate dinner, and then went to check on the other
property. When he got back from checking on the property, as he was approaching his
front porch, Mr. Ellis called, and he went to Mr. Ellis’s house. He estimated that Mr. Ellis’s
house was approximately 120 yards from his house. The Petitioner said he was inside Mr.
Ellis’s house when one of the children notified him that there was a truck at his house. The
Petitioner “reluctantly” went to his car and drove home.
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The Petitioner agreed that both he and his wife testified at his sentencing hearing.
The Petitioner read aloud a portion of his testimony from the sentencing hearing when he
testified that he first noticed Mr. Robbins’s tail lights while seated in his car preparing to
leave Mr. Ellis’s house. After reading this testimony, the Petitioner stated “That’s a
mistake.” He maintained that he first saw Mr. Robbins’s tail lights from inside the Ellis
house.
The Petitioner testified that he saw only Mr. Robbins and Ms. Norris in the truck.
After reading aloud a portion of the transcript from the sentencing hearing that included
the Petitioner’s testimony that there were five people involved, the Petitioner confirmed
that there were five people involved. He did not find this assertion inconsistent with his
post-conviction hearing testimony.
The Petitioner testified that the shooting occurred thirty to forty feet from his house
at the end of the driveway. At trial, Deputy Rick Hamby testified that the shooting occurred
75 to 100 yards away from the Petitioner’s house. The Petitioner explained this
discrepancy saying, that, after the shooting, the victim’s truck rolled 75 to 100 yards away
from his driveway because the road had an incline. When asked how the physical evidence
associated with the shooting ended up in the same location as the truck, the Petitioner said
that “all the evidence went down[hill] with the truck.” The Petitioner maintained that the
shooting occurred at his driveway before the truck and evidence rolled down the hill.
The Petitioner testified that he told Deputy Hamby about Mr. Robbins’s brandishing
a gun and his fear, but “[t]hey redacted all of that.” The Petitioner said that he told the
officers about his attempt to deescalate the situation but the officers only included “harmful
things” in their testimony. The Petitioner confirmed that Deputy Hamby and Deputy
Pemberton lied during their testimony and that both officers lied when they testified about
his “spontaneous utterances.” The Petitioner said that both officers questioned him at the
crime scene.
The Petitioner denied that law enforcement found forty-four .22-cartridges in his
pants pocket when they took him into custody. He explained that he had approximately
sixty cartridges in his pocket, but when he was forced to sleep on the floor of the “drunk
tank” twenty-two shells fell into drain on the floor. He explained that he had “dumped”
the cartridges in his pocket when he felt threatened.
The Petitioner clarified his earlier testimony, stating that when he approached Mr.
Robbins to take Mr. Robbins’s pistol, he did not point his gun at Mr. Robbins’s head but
had “just had it pointed random.” The Petitioner stated that he had perceived Mr. Robbins’s
movements after the Petitioner wrenched away the pistol to be a threat; however, in
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retrospect, he believed Mr. Robbins’s movements were because Mr. Robbins “was in his
death throws.”
The Petitioner agreed that he reviewed discovery at the Morgan County jail and saw
photographs of the crime scene. When asked why the photographs showed the driver’s
side truck door shut as opposed to open as the Petitioner had testified, he explained that he
had shut the car door after the shooting to allow traffic to drive through. He added that he
also put Mr. Robbins’s pistol back in his lap before the police arrived. When asked about
law enforcement testimony at trial that the truck doors were locked upon their arrival, the
Petitioner stated that he could not recall if he locked the doors or not. He then stated that
Officer Legg lied when he testified that the truck doors were locked. He stated that he did
not intend to kill Ms. Norris even though she was a threat and had a gun pointed at him.
He said that he only fired his gun as a warning and that he did not intend to strike her.
The Petitioner agreed that the medical examiner at trial testified that Mr. Robbins
sustained five small caliber wounds and nine large caliber wounds but clarified that the
Morgan County Sheriff’s Department was also present during the interview and might have
influenced the medical examiner’s findings.
Morgan County Sheriff’s Department (MCSD) Deputy Rick Hamby responded to a
shooting on Peters Ford Road. It was late at night and extremely foggy as Deputy Hamby
approached the Petitioner’s house. The Petitioner walked into the road and flagged down
Deputy Hamby. Deputy Hamby recalled that the Petitioner pointed out the truck when
Deputy Hamby arrived and volunteered information that Deputy Hamby documented in
his notes.
Deputy Hamby testified that the Petitioner told him that the victims had been down
the road at an oil well close to the Petitioner’s residence and the Petitioner heard gunshots.
The Petitioner was returning from a friend’s house when he met the victims on the roadway.
Mr. Robbins told the Petitioner that he needed to apologize “to his old lady,” and the
Petitioner did not agree that he owed her an apology. The Petitioner told Deputy Hamby
that he told Mr. Robbins “let’s be friends” and then got out of his vehicle. Mr. Robbins
told the Petitioner that he had a gun, and the Petitioner responded that he also had a gun.
Deputy Hamby testified that the Petitioner told him that Mr. Robbins’s truck had
rolled. Deputy Hamby denied that the Petitioner had told him that Ms. Norris pointed a
gun at the Petitioner. Deputy Hamby recalled that the Petitioner told Deputy Hamby that
he did not mean to shoot Ms. Norris, that it was an accident.
The Petitioner approached Deputy Hamby in front of the Petitioner’s house, got in
the cruiser, and Deputy Hamby drove about 75 to 100 feet, “up to the truck.” Deputy
12
Hamby recalled that the truck doors were closed, and the engine was running. He exited
his cruiser, saw that both victims were dead, and went back to his cruiser to notify dispatch.
Deputy Hamby described the Petitioner as compliant and “very nice.” Deputy Hamby
stated that, as they waited in the patrol car for a back-up officer to arrive, he did not ask
any questions, he only listened to the Petitioner.
Deputy Hamby testified that the Petitioner never gave him a .44. He said there were
only two guns at the scene, the Petitioner’s gun and Mr. Robbins’s gun. Deputy Hamby
confirmed that he did not read the Petitioner his Miranda rights. He agreed that the
Petitioner was in custody in the back of the patrol car but reiterated that he did not
interrogate the Petitioner.
Counsel testified that he had practiced law for forty-one years. Counsel estimated
that he had represented clients in approximately 200 criminal trials and fifty civil trials
during his career. Of his 200 criminal trials, approximately twenty-five to fifty were
murder trials and most involved claims of self-defense. Counsel had been a member of the
Tennessee Chapter of Criminal Defense Lawyers and selected as a Super Star lawyer. At
some point after his representation of the Petitioner, his license had been suspended for
“deceiving clients” in civil cases. Thereafter, he was disbarred for failing to refund a fee
and he did not contest the disbarment. Counsel testified that he “did everything legally and
ethically [he]could to represent [the Petitioner]. The allegations [related to his suspension
and disbarment] ha[d] nothing to do with [the Petitioner].”
Counsel testified that the Petitioner’s brothers retained him and Brent Gray to
represent the Petitioner. Counsel and Mr. Gray met with the Petitioner at the Morgan
County jail and represented him at his preliminary hearing. Counsel and Mr. Gray
conducted their own investigation before receiving the State’s discovery by interviewing
witnesses, going to the crime scene, and looking at the truck. He did so to try to anticipate
what the State’s case was going to be and to begin to develop a defense. Before the case
went to trial in November 2011, Counsel met with the Petitioner approximately fifteen
times. During the meetings, Counsel interviewed the Petitioner, reviewed discovery with
the Petitioner, and obtained names of potential witnesses. When asked to estimate how
many hours he worked on the case leading up to trial, Counsel said he could not estimate,
but that he had “countless hours in this case.”
Counsel testified that he did not discuss a client’s right to testify in the early stage
of representation but preferred to discuss the right to testify later in the representation.
Counsel talked with the Petitioner about his right to testify and how if he chose not to
testify, his decision could not be used against him. Counsel explained to the Petitioner that
if he testified, contradictory statements could be used for impeachment purposes. Counsel
said that he also advised the Petitioner that the ultimate decision on whether to testify was
13
the client’s. Generally, if a client asked, Counsel would make a recommendation, but
Counsel reiterated that the choice was the client’s as to whether they testified. He stated
that, in this case, the Petitioner chose not to testify.
Counsel testified that their discussion about the Petitioner testifying occurred in a
room off the court room at the close of the State’s proof. Counsel believed that the
Petitioner’s decision not to testify was voluntary. If the Petitioner had elected to testify,
Counsel would have “let him testify.” Counsel testified that, in his opinion, it would have
been a mistake for the Petitioner to testify but he would not have stopped the Petitioner
from so doing. He explained that, at the time, he did not think the Petitioner should testify
because “he was a very volatile, loose, individual.” As an example, he referenced the
sentencing hearing where the Petitioner “went off” and was removed from the courtroom.
Counsel did not recall the Petitioner being removed from the courtroom during a motion
hearing but stated that it would not surprise him if that had occurred.
Additionally, Counsel thought the Petitioner should not testify because their theory
of self-defense was established by the first two or three witnesses. There was no need for
rebuttal and, “ideally,” the Petitioner’s testimony was going to be the same as what he had
told investigators. Counsel did not believe there was anything to gain from the Petitioner
testifying and that, in his opinion, the Petitioner would not have handled cross-examination
well.
Counsel believed that there was evidence - the 9-1-1 phone call and his cross-
examination of Deputy Hamby - supporting mutual combat or self-defense. Counsel was
surprised by the jury’s verdict because he believed there was sufficient evidence to
establish either mutual combat, warranting a verdict of involuntary or reckless homicide,
or negligent homicide, or establishing self-defense.
Counsel testified that he chose not to call one of the Petitioner’s neighbors because,
after interviewing the witness, he determined the testimony would be “somewhat
unpredictable.” In discussions with the Petitioner about the shooting, the Petitioner told
him that he “got into a gunfight with [Mr. Robbins]” but that the incident was started by
Mr. Robbins.
On cross-examination, Counsel reiterated that he told the Petitioner that it was his
decision to make with respect to testifying at trial but that he did not think the Petitioner
should testify because “it’s not necessary.” Counsel denied telling the Petitioner that “he
was going to go home” as the Petitioner had testified. Counsel maintained that he did not
think the Petitioner needed to testify and that he believed the jury decision was wrong.
14
Counsel testified that he did not request a Momon hearing and that he did not believe
the trial court mentioned a Momon hearing. He testified that the Petitioner chose not to
testify; however, a Momon hearing was not held.
Counsel identified subpoenas for Lawrence Ellis, James Godwin, Johnny Walker,
and Bobby Gardner that he requested and that either he served or the Petitioner’s wife
served on the witnesses per his instruction. The witnesses appeared at court but given the
evidence at trial, Counsel elected not to call the witnesses.
Counsel agreed that Gloria Sweeten, Mr. Robbins’s sister, testified at trial that the
Petitioner and Mr. Robbins had no issue with one another and that they had all been
together a month prior to the shooting. Counsel did not cross-examine Ms. Sweeten
because he did not find her testimony to be inconsistent with anything the Petitioner had
told him.
MCSO Deputy Mike Wren testified that he arrived at the crime scene at around 2:00
a.m. where he saw a Dodge Durango truck in the middle of the road. Mr. Robbins and Ms.
Norris, who had been shot and killed, were inside the truck. In Mr. Robbins’s lap was a
pistol. Later, law enforcement found another pistol located between Mr. Robbins and the
console.
Deputy Wren estimated that the Dodge was approximately 75 to 100 yards from the
Petitioner’s house. About whether there was any evidence that the Dodge had rolled 75 to
100 yards from the Petitioner’s driveway, Deputy Wren stated, “I don’t think that would
have been possible” due to a slight curve in the road that would have caused the truck to
move outside the lane of travel. Additionally, at the scene, no one ever mentioned the
incident as having occurred at the Petitioner’s driveway and no evidence gathered at the
scene indicated as much. Deputy Wren noted that the Dodge was in gear and therefore
would not have rolled and the glass from the passenger window was lying on the ground
next to the truck.
Deputy Wren attempted to speak to the Petitioner on two occasions and both times
the Petitioner refused to speak with him. Deputy Wren confirmed that the Petitioner never
spoke with him about the shooting incident. Deputy Wren agreed that he was present
during the autopsy only to provide information when asked. He described himself as a
“source of information” and denied that he intervened or guided the medical examiner.
After hearing the evidence, the post-conviction court found that the Petitioner failed
to prove the allegations by clear and convincing evidence and denied relief. It is from this
judgment that the Petitioner appeals.
15
II. Analysis
On appeal, the Petitioner asserts that he received the ineffective assistance of
counsel at trial. He maintains only two issues, that Counsel failed to: (1) request a Momon
hearing; and (2) present a defense. The State responds that the Petitioner failed to prove
that Counsel’s failure to request a Momon hearing prejudiced his defense, and the Petitioner
has failed to prove by clear and convincing evidence that Counsel failed to present a
defense. We agree with the State.
The right of a criminally accused to representation is guaranteed by both the Sixth
Amendment to the United States Constitution and article I, section 9, of the Tennessee
Constitution. State v. White, 114 S.W.3d 469, 475 (Tenn. 2003); State v. Burns, 6 S.W.3d
453, 461 (Tenn. 1999); Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). The following
two-prong test directs a court’s evaluation of a claim for ineffectiveness:
First, the [petitioner] 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 [petitioner] by
the Sixth Amendment. Second, the [petitioner] must show that the deficient
performance prejudiced the defense. This requires showing that counsel’s
errors were so serious as to deprive the [petitioner] of a fair trial, a trial whose
result is reliable. Unless a [petitioner] makes both showings, it cannot be
said that the conviction or death sentence resulted from a breakdown in the
adversary process that renders the result unreliable.
Strickland v. Washington, 466 U.S. 668, 687 (1984); see also State v. Melson, 772 S.W.2d
417, 419 (Tenn. 1989).
In reviewing a claim of ineffective assistance of counsel, this court must determine
whether the advice given or services rendered by the attorney are within the range of
competence demanded of attorneys in criminal cases. Baxter, 523 S.W.2d at 936. To
prevail on a claim of ineffective assistance of counsel, “a petitioner must show that
counsel’s representation fell below an objective standard of reasonableness.” House v.
State, 44 S.W.3d 508, 515 (Tenn. 2001) (citing Goad v. State, 938 S.W.2d 363, 369 (Tenn.
1996)).
When evaluating an ineffective assistance of counsel claim, the reviewing court
should judge the attorney’s performance within the context of the case as a whole, taking
into account all relevant circumstances. Strickland, 466 U.S. at 690; State v. Mitchell, 753
S.W.2d 148, 149 (Tenn. Crim. App. 1988). The reviewing court should avoid the
16
“distorting effects of hindsight” and “judge the reasonableness of counsel’s challenged
conduct on the facts of the particular case, viewed as of the time of counsel’s conduct.”
Strickland, 466 U.S. at 689-90. In doing so, the reviewing court must be highly deferential
and “should indulge a strong presumption that counsel’s conduct falls within the wide
range of reasonable professional assistance.” Burns, 6 S.W.3d at 462. Finally, we note
that a defendant in a criminal case is not entitled to perfect representation, only
constitutionally adequate representation. Denton v. State, 945 S.W.2d 793, 796 (Tenn.
Crim. App. 1996). In other words, “in considering claims of ineffective assistance of
counsel, ‘[w]e address not what is prudent or appropriate, but only what is constitutionally
compelled.’” Burger v. Kemp, 483 U.S. 776, 794 (1987) (quoting United States v. Cronic,
466 U.S. 648, 665 n.38 (1984)). Counsel should not be deemed to have been ineffective
merely because a different procedure or strategy might have produced a different result.
Williams v. State, 599 S.W.2d 276, 279-80 (Tenn. Crim. App. 1980). “The fact that a
particular strategy or tactic failed or hurt the defense, does not, standing alone, establish
unreasonable representation. However, deference to matters of strategy and tactical
choices applies only if the choices are informed ones based upon adequate preparation.”
House, 44 S.W.3d at 515 (quoting Goad, 938 S.W.2d at 369).
If the petitioner shows that counsel’s representation fell below a reasonable
standard, then the petitioner must satisfy the prejudice prong of the Strickland test by
demonstrating “there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at
694; Nichols v. State, 90 S.W.3d 576, 587 (Tenn. 2002). This reasonable probability must
be “sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694;
Harris v. State, 875 S.W.2d 662, 665 (Tenn. 1994).
A. Momon Hearing
The Petitioner argues that Counsel was ineffective because he did not request a
Momon hearing. The Petitioner contends that had he been advised of the advantages and
disadvantages of testifying, he would have testified at trial and was, therefore, prejudiced
by Counsel’s failure to request a Momon hearing. The State responds that the post-
conviction court correctly found that the Petitioner was not prejudiced by Counsel’s
performance. We agree with the State.
Tennessee recognizes that defendants have a right to speak on their own behalf at
trial. Momon v. State, 18 S.W. 3d 152, 161 (Tenn. 1999). Moreover, only a defendant may
waive the right to testify and such a waiver may not be inferred or presumed, but instead it
must be openly explored. Id. at 161-62. To prove that a defendant’s right to testify is not
violated, the defense counsel should request a hearing outside the presence of the jury to
demonstrate the defendant’s waiver of the right to testify has been “knowing[ly],
17
voluntar[ily], and intelligent[ly]” made. Id. at 162. No “particular litany” need be used;
however, defense counsel must at a minimum show:
the defendant knows and understands that:
(1) the defendant has the right not to testify, and if the defendant does not testify,
then the jury (or court) may not draw any inferences from the defendant’s failure to
testify;
(2) the defendant has the right to testify and that if the defendant wishes to exercise
that right, no one can prevent the defendant from testifying;
(3) the defendant has consulted with his or her counsel in making the decision
whether or not to testify; that the defendant has been advised of the advantages and
disadvantages of testifying; and that the defendant has voluntarily and personally
waived the right to testify.
Id. These procedures are “prophylactic measures which are not themselves constitutionally
required.” Id. at 163.
The post-conviction court made the following findings as to this issue:
The record reflects that no Momon hearing was conducted on the record
during the trial of this case and [Counsel] testified that he did not request a
Momon hearing. Because defendants have a constitutional right to testify,
the right must be personally waived by the defendant. . . . Therefore,
pursuant to Momon, [Counsel] should have requested that the trial court
allow him to question the Petitioner in order to ascertain whether the
Petitioner knowingly, voluntarily, and intelligently waived his right to
testify. . . .
This Court finds that [Counsel]’s failure to follow the well-established
procedure for conducting a Momon hearing was deficient performance and
now has to determine if the Petitioner was prejudiced by the failure to
conduct a Momon hearing.
The Petitioner testified as follows regarding his claim that [Counsel]
failed to request a Momon hearing and advise him of his right to testify at his
trial:
18
Q When you say under advice from [Counsel], what does that
mean?
A That he was advising me not to testify.
Q What did he say to you?
A He said after I said, you know, that I’ve had problems with him,
but my life is in your hand, my life is in your hands, should I
testify or not, and he said no, you should not take the stand. I
recommend you not, because you are going home. You are –
he said I just left the meeting with the Judge.
Q Okay, just, let’s talk about what –
A That’s what he said.
Q When you were meeting with [Counsel] –
A Yeah.
Q What is he – he said to you what?
A He said he recommended me not to testify.
Q That you were going home?
A Yeah, yeah.
Q Did – when he talked to you about that, did he go over the
benefits of testifying and the downsides of testifying, did he go
over any kind of analysis on whether or not to testify with you?
A Yeah, he said that you can testify if you want, he said that you
can testify if you want, but I recommend you not testifying
because the case has to, the Court, I mean the State has to prove
and they have not got no case, they haven’t got no case, you’re
going home.
Q And that’s what he told you?
19
A Yeah.
*****
Q Okay. Defendant has a right – were you advised that you have
the right not to testify? Did he advise you of that?
A Yes.
Q He also advised you that you have the right to testify if you
wanted to?
A Yeah.
Q So, he told you that?
A Yeah.
Q Did he tell you that if you don’t testify, that the Court may not
draw any inferences from your failure to testify?
A I think he might have said that, yeah.
Q Okay. So that when you don’t testify, that they can’t hold it
against you. He told you that.
A Yeah, I think, that’s what he said.
Q And that if you wished to testify nobody can keep you from
doing it. Did he tell you that?
A Yeah, I think he did.
Q Well, I mean he said you can testify if you want to?
A Yeah, that’s what he said.
Q All right now number three. Defendant has consulted with his
or her counsel in making the decision whether or not to testify.
Defendant has been advised of the advantages of testifying.
Did he advise you of any of the advantages of testifying at trial?
20
A He said I was going home, is all.
Q Now, my question to you, was what?
A The advantages.
Q Did he explain the advantages of testifying to you?
A No, I don’t believe he did.
Q All right.
In other words, that if you testify then you get this, this and
this, these are the advantages of people who testify at trial –
A No, Sir.
Q - did he go over that?
A No, Sir.
*****
Q All right, did he go over the disadvantages of testifying?
A Yeah, I think he said that I would – it might harm me if I
testified.
[Counsel] testified as follows on direct examination regarding the
claim that he failed to request a Momon hearing and advise [the Petitioner]
of his right to testify at the trial:
Q And all those things that you talked about in terms of [the
Petitioner]’s rights or not – right to testify or not to testify, did
you do that with [the Petitioner]?
A Would the Court direct me to answer?
THE COURT: Yes.
21
A Yes, or yes, you’re directing me to answer?
THE COURT: Yes
A Yes.
Q Okay, and ultimately, in this particular case, did [the
Petitioner] make the decision to testify or not testify?
A Yes.
Q Was that as a result of you telling him not to or was that his
own choice?
A It would have been his own choice, and I recall where that
conversation occurred and when it occurred.
Q If you would, please tell us.
A Right there in that little room, over to the left from where I’m
sitting, and behind the Officer, [the Petitioner]’s right.
Q If you recall, do you remember why he elected not to testify?
A No, I do not recall.
Q When was that conversation had, at that point?
A That conv – that particular conversation occurred while the
trial was going on, at the close of the State’s Proof.
Q That – you state that particular conversation, how many
conversations did you have about his right to testify or not
testify with him?
A I don’t recall.
Q More than one?
A I don’t recall.
22
Q Understandable.
And let me make sure. . .
When he elected, and when I say he, [the Petitioner] elected
not to testify, do you believe that to be a voluntary waiver,
when he made that decision not to, based on your conversation
with him?
A Yes.
Q Okay, freely?
A Yes.
Q If [the Petitioner] had said that he wanted to testify, what would
you have done?
A I would have let him testify. It would have been a big mistake,
but I would have let him testify.
Q And you said it would have been a big mistake, out of your
experience in a lot of murder trials, why would that have been
a big mistake to let [the Petitioner] testify? In your opinion of
him back in 2011?
A First of all, ordinarily, the defendant would not testify.
Secondly, he wouldn’t testify particularly in [the Petitioner]’s
case. Third, [the Petitioner] was a very volatile, loose,
individual.
Q Okay.
When you say that what, what are you referencing at that point,
when you say that? His actions in the court previously at
anything, or what makes you say that?
A In one particular instance was, he sort of went off at the
sentencing hearing, which I can understand, I understand that.
Q Yeah.
23
Do you recall, at the Motion Hearing him having to get
removed from the courtroom?
A No, I don’t.
Q Okay, if that’s what has been introduced as an Exhibit, would
that surprise you given Mr. –
A No, it would not surprise me, but I do not remember that.
Q Understand.
What else, if [the Petitioner] said he wanted to testify, why
would that have been a bad idea in this particular case? You’ve
named a couple, is there anymore?
A Our defense was a self-defense, or mutual combat. That was
all established by the first two or three witnesses. He could not
have rebutted anything because he was going to testify, ideally,
he was going to testify, the same as he had said to the
investigators. It established either a self-defense or mutual
combat. Now, I think the jury was wrong in its assessment.
He was, I think, guilty of either manslaughter or one of the
less[e]r homicides. I don’t know how the jury reached its
conclusion because, I think that there was significant evidence
either to establish mutual combat, which gets a verdict of
voluntary, involuntary or reckless homicide or negligent
homicide, or self-defense.
Q When you say there was a lot of evidence suggesting that it was
mutual combat or self-defense, are you referencing the 9-1-1
call [the Petitioner] made that was introduced?
A Yes, and all the . . .
Q And, also, like your cross examination of Sergeant Rick
Hamby and the facts that you elicited from him?
A Yes.
24
*****
Counsel testified as follows on cross examination regarding the claim
that he failed to request a Momon hearing and advise the Petitioner of his
right to testify at trial:
[Q] So, when we were talking about, I guess when the State was
talking about the trial testimony of [the Petitioner], and I
believe he had a long conversation with you about the decision
to testify or not to testify, is that correct?
A Yes.
Q And you stated that [the Petitioner] and you had a conversation
over in the little room, little holding cell’s [sic] what I would
call it, here off the courtroom here in Morgan County, is that
right?
A Yes.
Q Now, you were in there with him with the door closed?
A Yes.
Q And that’s when you discussed whether you wanted – he
wanted to testify or not?
A Yes.
Q Now, [the Petitioner] said that you told him that he could testify
or not, it was his decision, is that what you told him?
A Yes.
Q That it was up to him whether or not he would testify?
A Yes.
Q And that - then he said that he asked you if you thought he
should testify?
25
A I’m sure he did.
Q And that you told him, it wasn’t necessary, that he was going
to go home.
A I – I told him it wasn’t necessary for him to testify, I didn’t tell
him he was going home.
Q Okay, so the only discrepancy there is, he says you told him
he was going to go home, you’re saying you didn’t say that.
A That’s true.
Q Okay, but you did say it’s your decision to make, but I don’t
think you should testify, it’s not necessary.
A Yes.
Q Okay.
So, when you had that conversation with him, and your
recommendation to him was, don’t testify.
A I’m sure that that would, could be interpreted as my
recommendation to him.
Q I mean, when you say it’s not necessary, I mean, and the
reason was it [sic] what you stated before today, you thought
he would be a loose cannon on the stand, basically.
A You said loose cannon, I did not say –
Q Well, I just interpreted that, I’m not, okay, well, just tell the
Court what you did say, that he was volatile?
A Yes.
Q Okay, that he was, and what does that mean?
A He’s a loose cannon.
26
Q Okay.
And by that, I mean, I’m not saying it’s anything violent, I’m
just saying that you, in your opinion, after discussions with
[the Petitioner], you felt that he would not make a good
witness, presentable to the jury. Would that be fair?
A Yes.
Q And for that reason, you didn’t think he should testify. True?
A True.
Q And you didn’t really think he needed to either?
A I did not think he needed to, and to this day, I don’t think he
needed to. I think the jury’s decision was wrong.
Based upon the above testimony, this court finds that [Counsel]
advised the Petitioner of his rights regarding this decision to testify at the
trial and the Petitioner made a voluntary waiver of his right to testify upon
the advice of counsel. Having listened to the Petitioner testify for several
hours during the evidentiary hearing, this court agrees with [Counsel] that
the Petitioner would not make a good witness. When the Petitioner offered
his version of the events on the night of the shooting, he appeared to be
adding alleged facts that did not comport with the evidence introduced at the
trial in an effort to support his claim of self-defense or mutual combat.
For instance, the Petitioner testified that Mr. Robbins fired the first
shot from a .44-caliber handgun at him and he returned fire with his .22-
caliber pistol. However, as stated earlier the evidence presented at trial
indicated there were two weapons recovered from Mr. Robbins [sic] truck.
A .22-caliber pistol that was fully loaded with eleven live rounds and a .44-
caliber revolver that had been fired six times. All six bullets from the .44-
caliber revolver were recovered from the inside of Mr. Robbins’[s] truck.
Five of the bullets were recovered from Mr. Robbins’[s] body and one bullet
was recovered from the truck’s console. The Petitioner also testified that the
shooting occurred in the road in the front of his house and Mr. Robbins’[s]
truck rolled after the shooting to its final resting place about 75-100 yards
away from his house. The evidence at trial and the evidentiary hearing
indicated that the shooting took place where the truck was located and it had
27
not rolled. The Petitioner testified that Ms. Norris, who was sitting in the
passenger seat of the truck, was pointing a .22-caliber pistol at him and he
accidentally shot her as he was falling backward. The evidence at trial
indicated that the .22-caliber pistol was located between the right side of Mr.
Robbins’[s] body and the truck’s console. The Petitioner, in this court’s
opinion, claimed there was an additional .44-caliber revolver in Mr.
Robbins’[s] possession to bolster his claim that Mr. Robbins shot at him first
and to dispute the evidence that all six bullets from Mr. Robbins’[s] .44-
caliber revolver were recovered from inside the truck. The Petitioner claims
he threw one .44-caliber revolver to Deputy Rick Hamby after he arrived on
the scene. Deputy Hamby disputed this assertion and this court finds that the
alleged second .44-caliber revolver is a red herring used by the Petitioner to
cast doubt on the evidence introduced at his trial and bolster his claim of self-
defense or mutual combat. These are just a few of the Petitioner’s statements
this court considered in determining that the Petitioner was not a credible
witness at the evidentiary hearing. Therefore, the Petitioner has failed to
show by clear and convincing evidence that [Counsel]’s failure to conduct a
Momon hearing adversely impacted his defense or deprived him of the
constitutional right to testify.
The evidence does not preponderate against the post-conviction court’s findings,
and the Petitioner has failed to show that Counsel’s failure to request a Momon hearing
prejudiced him. The trial court found that Counsel was deficient with respect to his failure
to request a Momon hearing, noting the well-established procedure for conducting a
Momon hearing. The trial court then considered whether the omission of a Momon hearing
prejudiced the Petitioner. Based upon the post-conviction hearing testimony, the trial court
found that Counsel had advised the Petitioner of his rights regarding the decision to testify
at trial and that the Petitioner voluntarily waived his right to testify. Further, the trial court
found the Petitioner not credible during the post-conviction hearing, citing several
inconsistencies in the Petitioner’s testimony. The trial court also credited Counsel’s
testimony that he did not believe the Petitioner would handle cross-examination well. The
Petitioner’s testimony at the post-conviction hearing supports the trial court’s finding on
that issue.
Accordingly, although Counsel should have requested a Momon hearing after
discussing the right to testify with the Petitioner, the Petitioner has failed to show that there
is a reasonable probability that his testimony would have changed the outcome at trial. The
Petitioner is not entitled to relief on this basis.
B. Failure to Present a Defense
28
The Petitioner asserts that Counsel “wholly failed” in presenting a defense.
Specifically, he argues that Counsel should have had him testify, failed to cross-examine
Mr. Robbins’s sister, Gloria Sweeten, and failed to call Lawrence Ellis, Charlene
Birchfield, and Bobby Gardner, who were all subpoenaed and present at trial. The State
responds that the Petitioner has failed to prove by clear and convincing evidence that
Counsel was deficient with regard to the development of a defense theory.
1. Testifying at Trial
The Petitioner argues that the “primary method of proving self-defense is of course
the [Petitioner] himself” and inconsistencies in the Petitioner’s statements necessitated that
he explain the circumstances. Without the Petitioner’s explanation of his justified fear, the
jury was deprived of hearing the Petitioner’s reasons for acting in self-defense. The State
responds that, even if it were deficient to fail to call the Petitioner as a witness, the
Petitioner cannot show prejudice.
At the post-conviction hearing, the Petitioner testified that he made the decision not
to testify at trial and that Counsel advised him that it was his decision whether to testify or
not to testify. Counsel testified that he did not think that the Petitioner would do well under
cross-examination and, after hearing the Petitioner testify, the post-conviction court
agreed.
Counsel advised the Petitioner that it was not necessary for him to testify based upon
the facts, testimony at trial, and the strength of the Petitioner’s ability to testify in a way
that would be persuasive to the jury. Counsel’s advice to the Petitioner was a tactical
choice based upon adequate preparation and understanding of the case. Therefore, we
conclude that the Petitioner has not shown by clear and convincing evidence that Counsel
was deficient in this respect or that it prejudiced him at trial. The Petitioner is not entitled
to relief as to this issue.
2. Cross-Examination of Ms. Sweeten
The Petitioner asserts that Counsel should have cross-examined Ms. Sweeten at trial
to elicit testimony about Mr. Robbins’s violent nature.
At the post-conviction hearing, Counsel testified that Ms. Sweeten had testified that
she had seen Mr. Robbins and the Petitioner together a month before and that the two men
were friends. Counsel testified that he chose not to cross-examine Ms. Sweeten because
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her testimony was not inconsistent with anything the Petitioner had told him. In its order
denying relief, the post-conviction court made the following findings relevant to this issue:
It is clear to this court that [Counsel] made a tactical decision to not
cross examine Ms. Sweeten. This court will not second-guess a reasonably
based trial strategy by the Petitioner’s trial counsel. Therefore, the Petitioner
has failed to show deficient performance or prejudice with regard to this
issue.
Counsel’s decision regarding the manner and subject matter of cross-examination
“is a strategical or tactical choice, if informed and based upon adequate preparation.”
Brown v. State, No. W2021-01331-CCA-R3-PC, 2022 WL 16919956, at *8 (Tenn. Crim.
App. Nov. 14, 2022) (quoting Pierce v. State, No. M2005-02565-CCA-R3-PC, 2007 WL
189392, at *7 (Tenn. Crim. App. Jan 23, 2007)), perm. app. denied (Tenn. Mar. 9, 2023).
As such, “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), perm. app. denied (Tenn. May 30, 2006).
When evaluating trial counsel’s performance 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). This means simply that a petitioner should first provide “specifics regarding what
questions trial counsel should have asked” the witness. McDonald v. State, No. E2016-
02565-CCA-R3-PC, 2017 WL 4349453, at *4 (Tenn. Crim. App. Sept. 29, 2017), no perm.
app. filed. 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 Brown, 2022 WL 16919956, at *8; Britt v. State, No. W2016-00928-
CCA-R3-PC, 2017 WL 1508186, *4, *7 (Tenn. Crim. App. Apr. 25, 2017), no perm. app.
filed.
In this case, the Petitioner complains that Counsel’s decision not to cross-examine
Ms. Sweeten left her testimony that there was no opposition between the parties unrefuted.
Additionally, “there was no effort to have this witness corroborate important details of the
defense.” However, the Petitioner does not identify any specific questions that trial counsel
should have asked Ms. Sweeten about these areas. More importantly, the Petitioner did
not present Ms. Sweeten as a witness at the post-conviction hearing. This omission is
significant because, without her testimony, we cannot know how Ms. Sweeten would have
answered had she been asked questions in the areas suggested by the Petitioner. Because
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we may not speculate how she would have testified, and the Petitioner has the burden of
proof on this issue, we conclude that the Petitioner has failed to show that he suffered
prejudice from Counsel’s decision not to cross-examine Ms. Sweeten. Black v. State, 794
S.W.2d 752, 757 (Tenn. Crim. App. 1990).
2. Failure to Call Witnesses
The Petitioner also claims that Counsel failed to call several witnesses that had been
subpoenaed and were present at trial. The post-conviction court made the following
findings about this claim:
The Petitioner did not present any witnesses at the evidentiary hearing
to demonstrate how those witnesses would have testified at trial. This court
cannot speculate as to how these witnesses might have helped the defense.
Therefore, the Petitioner has failed to show deficient performance or
prejudice with regard to this issue.
The court will also note that none of the Petitioner’s witnesses
subpoenaed to testify at the trial were eye witnesses to the events that
occurred on the roadway at approximately 1:00 a.m. on May 29, 2010. These
witnesses, according to the Petitioner, were present to testify as to the
Petitioner’s character or to support his defense of self-defense or mutual
combat by revealing prior incidents of threatening behavior Mr. Robbins
exhibited toward the Petitioner. In this court’s opinion, none of these
witnesses could support the Petitioner’s claim that Mr. Robbins fired his
weapon at him. As stated earlier, the evidence simply does not support this
allegation. Also, none of these witnesses could refute the fact that whatever
threat the Petitioner alleged he perceived from Mr. Robbins on the roadway,
it ended when the Petitioner took Mr. Robbins’[s] .44-caliber revolver away
from him and then shot Mr. Robbins with both his .22-caliber handgun and
Mr. Robbins’[s] own .44-caliber handgun. Based on the foregoing, the
[P]etitioner has failed to prove by clear and convincing evidence that
[Counsel] was deficient and that he was prejudiced by this alleged
deficiency.
As for Petitioner’s argument that he received ineffective assistance of counsel due
to his trial attorney's failure to call witnesses who could allegedly testify in support of a
justification defense, we again conclude that the trial court’s determination that this
argument is without merit is fully supported by the record. At the post-conviction hearing,
the Petitioner did not present the testimony of the witnesses in question, and trial counsel
testified that the witnesses’ testimony was not needed because self-defense had already
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been established. We certainly cannot conclude that the failure to call these witnesses
resulted in any prejudice to the Petitioner. To succeed on a claim of ineffective assistance
of counsel for failure to call a witness at trial, a petitioner should present that witness at the
post-conviction hearing. Black, 794 S.W.2d at 757. Therefore, we conclude that the
Petitioner has not shown by clear and convincing evidence that Counsel was deficient in
this respect. The Petitioner is not entitled to relief as to this issue.
III. Conclusion
Based on the foregoing, we affirm the post-conviction court’s judgment.
____________________________________
ROBERT W. WEDEMEYER, JUDGE
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