Baldomero Galindo v. State of Tennessee

05/01/2024

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs March 5, 2024 at Jackson

BALDOMERO GALINDO v. STATE OF TENNESSEE

Appeal from the Criminal Court for Knox County

No. 121386 Hector Sanchez, Judge

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No. E2023-01107-CCA-R3-PC

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Petitioner, Baldomero Galindo, appeals as of right from the Knox County Criminal Court’s

denial of his petition for post-conviction relief, wherein he challenged his conviction for

first degree murder, for which he received a life sentence. On appeal, Petitioner contends

that he was denied the effective assistance of counsel based upon trial counsel’s failure to

raise a claim of self-defense and his failure to call a witness to testify after learning that the

witness failed a polygraph examination. Following a thorough review, we affirm the

judgment of the post-conviction court.

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

ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the court, in which ROBERT H.

MONTGOMERY, JR., and JILL BARTEE AYERS, JJ., joined.

Robert L. Sirianni, Jr., (on appeal), Winter Park, Florida; and George W. Thomas (at

hearing), Atlanta, Georgia, for the appellant, Baldomero Galindo.

Jonathan Skrmetti, Attorney General and Reporter; Christian N. Clase, Assistant Attorney

General; Charme P. Allen, District Attorney General; and TaKisha Fitzgerald, Assistant

District Attorney General, for the appellee, State of Tennessee.

OPINION

Factual and Procedural Background1

1

To assist in the resolution of this proceeding, we take judicial notice of the record from Petitioner’s

direct appeal and delayed direct appeal. See Tenn. R. App. P. 13(c); State v. Lawson, 291 S.W.3d 864, 869

(Tenn. 2009); Delbridge v. State, 742 S.W.2d 266, 267 (Tenn. 1987); State ex rel. Wilkerson v. Bomar, 376

S.W.2d 451, 453 (Tenn. 1964).

Trial

On direct appeal, this court summarized the evidence presented at Petitioner’s trial,

as follows:

This case involves a fatal assault of Heather Lovette, [Petitioner’s]

former girlfriend. The evidence at trial demonstrated that the victim died as

a result of blunt force trauma to her head, which had been inflicted with a

hammer.

Barbie Swann testified that she and the victim were best friends from

age twelve forward. She said that a week before the victim was killed in

August 2005, she moved out of the victim’s apartment and into her

grandmother’s house, “two buildings up” from the victim’s apartment. She

said she moved because the victim was going to regain custody of her four

children. She said that when she and her boyfriend lived in the victim’s

apartment, [Petitioner], [Petitioner’s] brother, and the victim also lived there.

She said [Petitioner] was the victim’s boyfriend.

Ms. Swann testified that [Petitioner] came to her new residence on

August 18 and asked her boyfriend to help him find a place where he and

[Petitioner’s] brother could live. She said that he stated he did not know

where the victim was and asked Ms. Swann’s boyfriend to let him know if

Ms. Swann said anything about the victim’s whereabouts. She said she

would not have told him had she known and explained that she understood

that the victim did not want to have any contact with [Petitioner].

Ms. Swann testified that she spoke and understood Spanish. She said

[Petitioner] was learning to speak English but that he understood it well. She

said she and [Petitioner] usually spoke English to each other.

Ms. Swann testified that she went to the victim’s apartment around

6:00 or 7:00 p.m. on August 18 to retrieve a few belongings remaining in the

apartment. She also said she felt uncomfortable because she knew the victim

was trying to get away from [Petitioner] and that she and her boyfriend chose

to go to the victim’s apartment when [Petitioner] and his brother were away.

She said she retrieved some of her property in a box. She said there was a

red hammer she had borrowed from the victim in the box. She said she left

the hammer on the kitchen table. She identified the hammer as the one that

was an exhibit and stated that it was not missing parts of its plastic handle on

August 18. Ms. Swann testified that as she and her boyfriend were walking

-2-

home, they saw [Petitioner] and his brother returning. She said that her

memory was vague but that her boyfriend may have spoken to them for a

minute while she went ahead to her new home.

On cross-examination, Ms. Swann testified that she told the police

about the hammer. She said that if this was not reflected in the tape of her

interview by the police, it would be because “they would have had to cut that

part out.” She admitted [Petitioner] did not like that she and the victim used

drugs together, but she denied suspecting that the victim asked her to move

out due to pressure from [Petitioner]. She said she thought the victim and

[Petitioner] planned to get married but their plans changed when the victim

decided to regain custody of her children. She said the victim wanted to

reunite with Michael Leuty because he would help her with the children. She

acknowledged telling the police the reason the victim wanted to reunite with

Mr. Leuty was that he would provide financial assistance.

Ms. Swann testified that she never saw the victim in a violent situation

with Mr. Leuty. She acknowledged that she had seen the victim “run off and

[Mr. Leuty] enter the apartment and her not be there.” She admitted that she

did not like [Petitioner].

Ms. Swann testified that [Petitioner] was upset on August 18 about

not knowing the victim’s whereabouts. A portion of Detective Huckleby’s

August 19 taped interview of Ms. Swann was played, after which Ms. Swann

acknowledged that she said in the interview that [Petitioner] was not upset.

She also admitted that she did not say anything about the hammer in this

interview.

On redirect examination, Ms. Swann testified that she was also

interviewed by the authorities on August 26 and September 30. She

acknowledged mentioning the hammer on September 30, although she said

she thought she had mentioned it on August 26. She said she was not asked

about a hammer on August 19. She said that when she was shown a

photograph of the hammer at a later date, it was in a different condition than

it was when she left it on the table.

Michael Leuty testified that he was convicted in Montana of felony

burglary, felony accountability to burglary, and felony criminal mischief. He

said he served time in prison and completed a boot camp program for the

crimes.

-3-

Mr. Leuty testified that he met the victim through her sister in 2002.

He said that he and the victim were romantically involved and that they began

living together in June 2002. He said that the victim’s four children also

lived in their home and that he assisted in supporting them. He said he lived

with the victim “off and on” for three years. He said that the victim had a

problem with crack cocaine and that he needed to stay away from crack.

Mr. Leuty testified that he and the victim were separated from

February or March 2005 until the victim’s birthday on August 7, 2005. He

said that he did not know [Petitioner] during this time. He said he moved

across the street from the victim on August 8 because he was still in love

with her. He said he saw [Petitioner] at the victim’s home during this time.

He said he and the victim first talked about reconciliation on the following

Wednesday, when the victim moved into his home. He said this was

approximately August 16 or 17. He said the victim did not leave his home

because she did not want [Petitioner] to know where she was.

Mr. Leuty testified that he was working for Jones Woodcrafters at the

time and that he worked during the day on August 19. He said the victim

was unemployed. He said that he awoke about 6:00 or 6:30 a.m. and that his

boss, Michael Pruitt, picked him up around 7:30 or 8:00 a.m. He said the

victim was still sleeping in his bed when he left. He said she was lying on

her stomach with her head turned to the right and away from the window.

He said that he spoke to her before he left and that she acknowledged him.

He said he left the victim a note stating that he would see her on Sunday to

help her move back into her apartment. He said he did not know whether the

victim would be there when he returned that afternoon. Mr. Leuty testified

that the only air conditioning in the apartment came from a window unit in

Elizabeth [Koelzer’s] bedroom.2

Mr. Leuty testified that he worked eight or nine hours that day at a job

site that was about five miles past Maryville and that he returned home about

6:30 p.m. He said he did not have a key to the apartment, which was locked

when he came home that evening. Mr. Leuty testified that [Petitioner’s] red

Ford F-150 and Ford Probe were both in front of the victim’s apartment that

morning and when he returned that evening. He said he did not see anyone

home at the victim’s apartment that evening.

2

The direct appeal’s spelling of Elizabeth Koelzer’s last name as “Koetzler” appears to be a

typographical error. Because trial counsel later clarified at the motion for new trial hearing that the correct

spelling is “Koelzer,” we have used that name in this appeal.

-4-

Mr. Leuty testified that because they were in a bad neighborhood and

he had his work tools with him, his boss waited with him. He said he used

Mr. Pruitt’s cell phone to call Elizabeth to let him into the house but was only

able to leave her a voice mail message. He said that he remembered the

window to his bedroom at the back of the apartment and that he was able to

open it. He said that he stepped onto the bed and that the victim was still

asleep. He said that he told the victim he was home and to get up but that

she did not respond. He said he ran to the front of the house to open the door

for his boss and to get his tools inside. He said he then went back to the

bedroom to wake the victim. He said that she was in the same position as

she had been that morning and that when he began shaking her, she was

unresponsive. He said that he grabbed her wrist and that it was cold. He said

that he flipped her over by her shoulder. He said that when he did so, he saw

blood everywhere on the bed and in a huge puddle on the floor. He said that

he began screaming and stumbled out of the house. He said that he was

crying and asked Mr. Pruitt to call 9-1-1. He said that [Petitioner] and his

brother were standing across the street watching him cry. He said

[Petitioner’s] brother left in a truck, that [Petitioner] continued watching him

for three or four minutes, but that [Petitioner] left in the Ford Probe before

the police arrived.

Mr. Leuty testified that Detective Huckleby interviewed him three

times and that he told Detective Huckleby he was not involved in the victim’s

death. He said that he learned in the third interview that his handprint was

in the apartment and that Detective Huckleby arrested him after this

interview. He said he was in jail almost thirty days but was released on

September 22. He said that he was angry but that he later provided the police

with information about the victim’s hammer, which he said had been her

grandfather’s. He said the hammer was red and had a rubber handle. He said

he remembered this hammer being in the victim’s apartment when they lived

together previously. He said the only hammer in Elizabeth [Koelzer’s]

apartment was his twenty-two ounce framing hammer, which had a wooden

handle. He denied hitting the victim with a hammer.

On cross-examination, Mr. Leuty testified that the victim was afraid

of [Petitioner]. He said she came to the apartment and stayed inside due to

her fear. He said the victim told [Petitioner] to leave her house and waited

for three days at the apartment where Mr. Leuty lived for [Petitioner] to

leave.

-5-

Mr. Leuty testified that when the victim and [Petitioner] lived

together, the victim’s children were living with the victim’s mother. He said

that on previous occasions when he lived with the victim, they broke up

because “she was getting free cocaine from the Mexicans that she was

running around with.” He admitted that due to the weather, he did not work

on the Thursday before the victim’s death. Mr. Leuty acknowledged that he

“climbed over one corner of the bed” when he went into the apartment

through the bedroom window. He said he did not see the blood under the

bed until after he was released from jail.

Mr. Leuty testified that he saw a “shrink” regularly because he had

nightmares about finding the deceased victim. He acknowledged that he did

not find out how the victim was killed until a couple of weeks after his release

from jail on September 22. He acknowledged sending an e-mail to the

prosecutor on October 19, in which he described a hammer that belonged to

the victim but admitted the email did not say anything about it having been

her grandfather’s. He acknowledged that he knew on October 19 that

[Petitioner] had been charged with killing the victim. On redirect

examination, Mr. Leuty said he could not be sure whether he first saw the

puddle of blood underneath the bed on August 19 or after he was released

from jail.

Janice Gangwer testified that she was employed by the Knoxville

Police Department and that in 2005 she was assigned to the Forensic Unit.

She said that on August 19, 2005, she responded to the scene of the victim’s

death, 1347 Alliance Avenue, where she took photographs and collected

evidence. She identified several photographs of the scene.

After Ms. Gangwer was accepted over defense objection as an expert

in blood spatter analysis, she testified that the blood on the front porch of the

home where the victim’s body was found consisted of round droplets. She

said this indicated that the droplets were dripping from something. She said

she collected samples of the blood. She also collected sunglasses with a red

stain from the porch, which she sent to the TBI for analysis. She identified

a photograph of the inside of the apartment entrance depicting a handprint

with a red stain on tile and blood droplets on the floor near the doorframe.

She identified another photograph depicting a smear of blood on the storm

door. She said that she used amido black to develop the blood in the

handprint for identification, photographed it, and removed the tile. She also

collected samples of the blood droplets on the floor for analysis. She said

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that she did not recall any blood in the living room or kitchen but that they

collected cigarette butts from the living room.

Ms. Gangwer testified that the home had three bedrooms. She said

there were blood droplets at the doorway to the “middle front bedroom,”

which was located down a hallway. She said she collected samples of this

evidence. She said that the victim’s body was found in the back bedroom

and that there were blood droplets on the floor of that room. She identified

a photograph of the victim, depicting “a significant quantity of blood in [the

victim’s] hair and her face and saturating her shirt and the bed clothing . . .

enough blood to saturate right through the top mattress and down into the

box springs,” although she said there was no puddle of blood on the floor.

She said there was no blood spatter on the walls or the curtain. She said that

a spring was missing from a latch on the bedroom window.

Ms. Gangwer testified that there was a wastebasket in the kitchen that

contained a black rubber grip. She said the grip was collected and submitted

for DNA analysis. She said that there was a claw hammer in a drawer next

to the wastebasket.

With respect to another apartment that was identified by other proof

as the victim’s apartment, Ms. Gangwer testified that she collected a pair of

blue jeans with red spots on them. She said she also collected samples from

blood stains on the door and wall of the hallway at this apartment. She said

this apartment was across the street from the apartment where the victim’s

body was found. She said she measured the distance between the two

apartments as forty-two steps.

Ms. Gangwer testified that she accompanied police investigators to

Pleasant Ridge, where they located [Petitioner]. She said [Petitioner] was

taken to the police department, where she collected fingerprints from him for

comparison. She identified a photograph of [Petitioner] taken around 4:00

a.m. on August 20, which she said depicted a ragged laceration on the right

side of his head.

On cross-examination, Ms. Gangwer acknowledged that she did not

collect a sample of blood that was on top of the hallway side of the bedroom

doorframe where the victim’s body was found. She said the wound on

[Petitioner’s] head was between one and two inches long. She acknowledged

that she did not have any of the cigarette butts that she collected analyzed.

-7-

She again stated that there was not a large puddle of blood under the bed, but

she said there was some blood there.

Michael Pruitt testified that in August 2005, Michael Leuty was one

of his employees and that his business “built decks and things of that nature.”

He said Mr. Leuty worked for him for four or five months and that he

provided Mr. Leuty’s transportation. He said he picked up Mr. Leuty on

August 19 around 7:10 to 7:30 a.m. at a home diagonally across the street

from a home that was identified to him as the victim’s and that he had been

doing so for a week and a half to two weeks. He said that he saw a red F-

150 truck and a blue or green car parked at the victim’s home that morning

and that these vehicles were not usually there. He said that Mr. Leuty did

not seem unusual that day, that they worked together all day, and that he

brought Mr. Leuty home around 6:30 or 7:00 p.m.

Mr. Pruitt testified that he usually smoked cigarettes with Mr. Leuty

when he brought Mr. Leuty home. He said that on August 19, he and Mr.

Leuty talked outside and that Mr. Leuty found the apartment door locked.

He said that they smoked together and that Mr. Leuty then opened a window

with a saw blade. He said he held the window open for Mr. Leuty to crawl

inside. He said Mr. Leuty went to the front of the apartment and outside to

retrieve his tool bag. He said Mr. Leuty went back inside and started

screaming for him to call 9-1-1. He said Mr. Leuty came outside, shaking

and talking incoherently. He said Mr. Leuty always wore sunglasses and that

he thought Mr. Leuty left them on the porch that evening. He said he was

not able to get through to 9-1-1 for about twenty minutes. Mr. Pruitt testified

that as Mr. Leuty came from the apartment, two men he did not recognize

were walking toward the car and the truck across the street. He said that they

appeared to be Hispanic and that one of the men exchanged stares with Mr.

Leuty before driving away. He said Mr. Leuty was so disturbed that he was

unable to work after August 19.

On cross-examination, Mr. Pruitt testified that the apartment door was

usually unlocked. He acknowledged that when he was interviewed on the

night of August 19, he told the detective that the people who lived next door

were Mexican based upon what someone else told him. He said all he

remembered about the people he saw was that they were neither black nor

white. He said he was certain, however, that the people were Hispanic.

TBI Special Agent Jennifer Millsaps testified as an expert witness in

forensic DNA analysis. She said that she analyzed items of evidence

-8-

collected from the scene and compared them with standards collected from

the victim, [Petitioner], and Mr. Leuty. She said that there was blood on the

sunglasses and the floor tile that matched the victim’s DNA profile. She said

the probability that the profile matched someone other than the victim

exceeded the world population. She said that the reddish-brown stain from

the porch matched [Petitioner’s] DNA profile and that the probability that

the profile matched someone other than [Petitioner] exceeded the world

population. She said that the reddish-brown stain from the front door

matched [Petitioner’s] DNA in some locations but that the results were

inconclusive in a few locations.

Knoxville Police Department Detective Joseph Huckleby testified

that he was assigned to the Major Crimes Unit and that he investigated the

victim’s death. He said that he responded to 1349 Alliance Drive about 8:00

p.m. on August 19, 2005. He said that he could not tell from viewing the

victim’s body how she had been killed, although he could tell she had a head

injury. He said her body and hair were in disarray and that there was a large

amount of blood.

Detective Huckleby testified that after a witness told him the victim

lived across the street, he also investigated at an apartment across the street.

He said that no one was home at that apartment but that he found several

items of evidence. He said he found a tool handle, a red-handled claw

hammer, and stained blue jeans.

Detective Huckleby testified that after learning [Petitioner] was at a

location on Pleasant Ridge Road, he traveled there and had contact with

[Petitioner] for twenty or twenty-five minutes. He said that [Petitioner] had

a bleeding head injury and that [Petitioner] agreed to go to the police station.

He said that there was a language barrier because he did not speak Spanish,

that he needed a certified interpreter present to interview [Petitioner], and

that he photographed [Petitioner’s] injury but did not interview him.

Detective Huckleby testified that he later asked [Petitioner] to return

for an interview through an interpreter and that [Petitioner] did so

voluntarily. He said he interviewed both [Petitioner] and [Petitioner’s]

brother on August 20. He said that at that point, he did not have any

information about how the victim died. He said [Petitioner] claimed to have

no knowledge about the victim’s death and to have last seen the victim on

August 16. He said [Petitioner] claimed to have left for work between 7:45

a.m. and 8:00 a.m. and not to have returned until after he left work between

-9-

5:00 p.m. and 5:45 p.m. He said that [Petitioner] first told him that the cut

on his head happened at work but that he admitted in a later interview that

the victim hit him.

Detective Huckleby testified that he learned from a crime technician

that the bloody handprint found at the crime scene belonged to Michael

Leuty. He said, however, that he did not see any blood on Mr. Leuty when

he talked to him shortly after the crime. He said that he interviewed Mr.

Leuty at least three times and that he eventually arrested Mr. Leuty for the

victim’s murder. He said that in the first interview, Mr. Leuty was unable to

explain how his handprint got onto the floor and that he was upset and

“elusive.” Detective Huckleby identified a hammer that was recovered from

a kitchen drawer at the crime scene. He also identified a “black rubber grip”

that was taken from the kitchen trash can.

Detective Huckleby testified that after speaking with Agent Millsaps

on the telephone and learning that some of the blood samples were

[Petitioner’s], he interviewed [Petitioner] again. He said [Petitioner] came

to the police station voluntarily on September 22. He identified [Petitioner’s]

waiver of rights form from this interview. He said he followed the procedure

for obtaining a certified interpreter for this interview. He said that at the

time, he did not know whose blood was on the hammer and that he had not

seen any blood on the hammer. He said that after the interview, he

immediately had Michael Leuty released and apologized to him. A videotape

of [Petitioner’s] September 22 statement was played for the jury, in which

[Petitioner] admitted hitting the victim on the head with a hammer and

claimed that she hit him first.

On cross-examination, Detective Huckleby acknowledged that his

written “continuing report” omitted information he learned during the

investigation. He said he did not have information from Ms. Swann and Mr.

Leuty about the hammer until after [Petitioner] was arrested. He

acknowledged that when he was on the scene, he had the hammer

photographed and collected despite not knowing how the victim was killed.

He also acknowledged that contrary to his earlier testimony, Mr. Leuty

claimed never to have touched the victim’s body but that he wrote in his

report that Mr. Leuty admitted having climbed over the body and having

turned it over. He said his report also stated that Mr. Leuty claimed he had

not looked at or seen anything on the victim’s body. He also admitted that

his report omitted information about a child having seen [Petitioner] and

[Petitioner’s] brother at the scene and said he did not include the information

- 10 -

because he was unable to confirm it due to the child’s mother not

cooperating.

Detective Huckleby testified that he interviewed Elizabeth [Koelzer]

four times. He denied any memory of saying to her that he thought she was

responsible for the victim’s death. After a portion of one of the video

recorded interviews was played, he said he was unsure whether his statement

to her, “I still think you did it, all I [have] to do is prove it,” was about the

killing.

Detective Huckleby admitted that when he went to find [Petitioner] in

the early morning of August 20, he and other officers went to an identified

location. He said he did not know who may have had their guns drawn but

that he did not. He admitted [Petitioner] was “being detained for an

investigation” and was taken to the police department in handcuffs. He also

admitted that [Petitioner] was taken to the squad room on a secure floor of

the building. He acknowledged that [Petitioner] returned voluntarily to give

a blood sample and again for an interview.

Detective Huckleby acknowledged that the police lie to suspects “all

the time” as an investigative technique. He admitted telling [Petitioner] he

would not hold anything said in confidence against [Petitioner]. He admitted

he knew [Petitioner’s] admissions would be used against him but said he

meant he would not personally hold anything against [Petitioner]. He said

[Petitioner] told him that he had gone to the apartment across the street and

that the victim threatened to kill him if he did not leave. Detective Huckleby

said [Petitioner] claimed he “kind of blacked out” when the victim hit him

and that he then saw the hammer and reacted by hitting the victim. He said

[Petitioner] claimed not to remember how many times he hit the victim. He

said that after [Petitioner] said he left the hammer “at the side of the

apartment,” he asked [Petitioner] if the hammer was in the kitchen drawer

and that [Petitioner] said it was. He said that he asked whether there was a

piece in the trash can and that [Petitioner] said, “Probably. I don’t

remember.” He said [Petitioner] claimed he had not given this information

during the first interview because he was scared.

Detective Huckleby clarified that in the last interview, [Petitioner]

mentioned the hammer first. He admitted that he already knew about the

hammer. He said he did not recall [Petitioner’s] stating where he was in the

house when the victim hit him with the hammer.

- 11 -

Dr. Darinka Mileusnic-Polchan testified as an expert in forensic

pathology. She said she reviewed the records of the victim’s autopsy, which

was performed by another doctor. She said the significant finding was blunt

head trauma. She said the victim was hit multiple times, with three main

lacerations on the right side. She said that one of these lacerations was

slightly curved and about one inch long. She said that the curved shape

indicated that the blunt object used to inflict it had a slightly curved edge,

which she said was consistent with the head of a claw hammer depicted in a

photograph exhibit that had been identified previously as the hammer from

the kitchen drawer. She said that scalp injuries produced very heavy bleeding

and that blood would have been transferred onto the hammer. She identified

a second wound, which also had a curved appearance consistent with the

victim’s having been struck with a hammer similar to the photographed

hammer. She also identified a third wound on the right side of the victim’s

head. Dr. Mileusnic-Polchan testified that one wound was on the left side of

the victim’s head. She said that its appearance was similar to the three

wounds on the right side of the head and that it was consistent with having

been struck by the head of a hammer.

Dr. Mileusnic-Polchan testified that there were three wounds on the

back of the victim’s head, two of which were simple and relatively small.

She described the third as “a very large and complex wound.” She said the

large wound was 2.4 inches long and that its top was almost square-shaped,

which indicated that as compared with the other wounds, a different part of

the same object or a different object was used to inflict the wound. She said

that there was a large area of skin torn from the skull as well as skull fractures,

which she said almost certainly resulted from multiple blows. She said that

the skull is very difficult to open and that forceful blows would be required

to create this type of injury. She said there were fractures radiating “all

across the head.” She said that the injury to the back of the head would have

rendered the victim unconscious quickly but that it was difficult to tell

whether the injuries to the side of the head would have done the same. She

said that she could not determine the order in which the injuries occurred but

that the large one at the back of the head was the cause of death. She noted

that the victim died face-down. She said that the cause of death was blunt

head trauma due to multiple blows with a blunt object.

Dr. Mileusnic-Polchan testified that based upon her review of a

photograph of the victim’s body at the scene and the autopsy report, it was

her opinion that the victim’s body was face-down at the time of death but

was later moved. Testifying from viewing a photograph of the victim’s skull,

- 12 -

Dr. Mileusnic-Polchan said that some parts of the skull were driven into the

brain by the force of the injury. From other photographs taken at the autopsy,

she identified contusions on the victim’s proximal upper arm and clustered

on the back of the victim’s right hand. She said that the right index finger

was fractured and that the tissue was almost stripped off the finger. She said

there was hair with blood on it entangled in the finger injury, which could

mean the victim tried to protect her head. She said the clustered contusions

on the back of the hand were “classic defensive wounds.”

On cross-examination, Dr. Mileusnic-Polchan acknowledged that she

could not say that the injuries were caused by a hammer, only that the injuries

were consistent with a claw hammer. She admitted the possibility that the

victim’s hair became entangled in her broken finger when the body was

moved. She said that due to the splitting of the victim’s skin, it was unlikely

that the associated injuries were inflicted when the victim was moving. She

acknowledged that if the victim had been standing when some of the injuries

occurred and had blood on her feet, the blood could have been removed if

the victim’s feet later became wrapped in a sheet or unwrapped from a sheet.

She said that the victim would have been unconscious after all of the blows

were inflicted.

Dr. Mileusnic-Polchan estimated that the injuries and the death

occurred sometime between 7:00 and 10:00 a.m. She said the victim had

cocaine residue in her urine but not in her blood.

[Petitioner] did not present any proof. The jury found [Petitioner]

guilty of first degree murder.

State v. Galindo, No. E2009-00549-CCA-R3-CD, 2010 WL 4684469, at *1-10 (Tenn.

Crim. App. Nov. 19, 2010) (footnote added), perm. app. denied (Tenn. Apr. 13, 2011).

Following the entry of Petitioner’s judgment of conviction, Petitioner filed an

untimely motion for new trial. Id. at *10. The trial court subsequently dismissed the

motion as untimely.

On direct appeal, Petitioner asserted that: (1) the trial court erred in dismissing his

motion for new trial on the basis it was untimely; (2) the evidence is insufficient to support

his conviction; (3) the trial court erred in denying his pretrial motion to suppress his

inculpatory statement; and (4) the trial court erred in denying his motion for a mistrial

based upon the State’s failure to disclose discovery materials in a timely manner. Id. at *1.

Because Petitioner’s motion for new trial was untimely, this court reviewed most of

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Petitioner’s issues for plain error. The court affirmed Petitioner’s judgment of conviction,

and the Tennessee Supreme Court denied further review. Id.

Delayed direct appeal

On February 27, 2011, Petitioner filed a timely petition for post-conviction relief,

in which Petitioner requested that he be allowed to file a delayed direct appeal. State v.

Galindo, No. E2020-00556-CCA-R3-CD, 2021 WL 270021, at *5 (Tenn. Crim. App. Jan.

27, 2021), perm. app. denied (Tenn. May 12, 2021). In a written order filed February 5,

2013, the post-conviction court granted Petitioner’s request for a delayed direct appeal,

finding that Petitioner was “denied full appellate review of his assignment of errors . . .

because trial counsel failed to timely file a motion for new trial.” The court appointed

counsel to represent Petitioner, and Petitioner filed a delayed motion for new trial on March

1, 2013.3 Id. at *5, *8.

As later summarized by this court in the delayed direct appeal, the evidence

presented at the hearing on the delayed motion for new trial was, as follows:

[T]rial counsel testified he was appointed to represent [Petitioner] prior to his

preliminary hearing. Because trial counsel was fluent in Spanish, he did not

have any problems communicating with [Petitioner]. Early in his

representation, trial counsel filed a request for discovery, which he received

from the prosecutor initially assigned to the case.

As part of the pre-trial discovery, trial counsel received two police

statements given by Ms. Swann, and he had no reason to believe she had

given any additional statements. Trial counsel also spoke with Ms. Swann

prior to trial, and she did not mention anything about seeing a hammer in

[Petitioner’s] apartment on the day before the murder. However, during her

direct testimony, Ms. Swann testified she had seen a red claw hammer in

[Petitioner’s] apartment on the day before the murder. When trial counsel

cross-examined Ms. Swann about why she had not disclosed this information

to the police, Ms. Swann informed trial counsel that she had provided this

information to the police. This was when trial counsel discovered Ms. Swann

had given the police a third statement, which had not been disclosed to the

defense. If he had received this statement at the proper time, trial counsel

could have spoken with [Petitioner] about whether Ms. Swann’s statement

was true or whether [Petitioner] had seen the hammer anywhere else. On

3

Although the delayed motion for new trial was filed in March 2013, the hearing on the motion

was not held until October 2019. The reasons for this delay are not apparent from the record before us.

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cross-examination, trial counsel agreed he could have asked Ms. Swann if

she had seen a hammer in the apartment when he spoke with her prior to trial.

While preparing the defense, trial counsel attempted to speak with Mr.

Leuty, but he refused to discuss the case. At trial, during cross-examination,

Mr. Leuty testified he saw a mental health professional due to nightmares

stemming from the trauma of discovering the victim’s body. Following this

disclosure, the State admitted they learned about Mr. Leuty’s mental health

issues the previous night but did not tell trial counsel. If trial counsel had

been aware of Mr. Leuty’s mental health issues the night before his

testimony, he would have requested a continuance to obtain Mr. Leuty’s

medical records. Trial counsel would have reviewed the records to determine

why Mr. Leuty was having mental health issues and to see if they resulted

from Mr. Leuty’s participation in the murder. Although trial counsel

conceded he had no knowledge Mr. Leuty had ever confessed to participating

in the murder, he noted that the police found Mr. Leuty’s bloody handprint

at the crime scene. On cross-examination, trial counsel conceded the trial

court ruled Mr. Leuty’s medical records were not relevant.

Regarding Ms. Koelzer, trial counsel received a copy of her police

statements in discovery. Additionally, Ms. Koelzer spoke with trial counsel

multiple times prior to trial. However, neither Ms. Koelzer nor her

statements mentioned she had taken a polygraph examination in this case.

During his cross-examination of Detective Huckleby, trial counsel asked to

look at the report Detective Huckleby was reading from and noticed the

report was several pages longer than the report trial counsel was given in

discovery. Included in the longer report was information related to a failed

polygraph examination by Ms. Koelzer. Trial counsel then requested

permission to examine Detective Huckleby’s investigation notebook and

discovered Ms. Koelzer’s polygraph examination report, which indicated she

had been untruthful.

After the trial court was made aware of the polygraph report, which

had been excluded from pre-trial discovery, the trial court ruled the State

could not call Ms. Koelzer as a witness. Trial counsel testified this was

“unfortunate” because he “kind of like[s] having a witness testify who’s been

lying about the murder.” Her deception during the polygraph examination

would give the jury the “possibility of another suspect.” If trial counsel had

the polygraph results prior to trial, he could have discussed it with her.

Although trial counsel conceded the results of the examination would not be

admissible at trial, Ms. Koelzer may have had a “Perry Mason moment” if

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confronted with her deception and confessed to playing a role in the murder.

On cross-examination, while trial counsel acknowledged he could have

called Ms. Koelzer as a witness, he testified he did not “know that we ever

had that conversation” because he was “neutral” toward her possible

testimony. Trial counsel was also unsure whether he could ethically call Ms.

Koelzer as a witness because he did not trust her after learning about the

failed polygraph examination.

On cross-examination, trial counsel agreed [Petitioner] gave a

statement admitting to hitting the victim with a hammer after an argument.

He also acknowledged there was physical evidence presented at trial which

corroborated [Petitioner’s] statement. However, trial counsel insisted his

investigation would have been different if he had been given Ms. Swann’s

statement, information regarding Mr. Leuty’s mental health treatment, and

the results of Ms. Koelzer’s polygraph examination.

Philip Morton, the prosecutor at [Petitioner’s] trial, testified he was

assigned to [Petitioner’s] case when the initial prosecutor, Jo Helm, left the

District Attorney’s Office. At that point, discovery had already been

provided to [Petitioner], and Mr. Morton focused on preparing for trial.

Prior to trial, trial counsel filed a “notice of discovery in possession

of the defense” which listed the items he had received from Ms. Helm. The

notice listed several police reports but did not identify which reports they

were. Instead, they were listed as “a one-page report, a two-page report,

certain dates and so forth.” In response, Mr. Morton filed a motion to clarify

the exact discovery trial counsel possessed. When trial counsel specified

which reports he had, the report numbers matched the ones in Mr. Morton’s

file, and he assumed trial counsel’s discovery was complete. However, at

trial, Mr. Morton learned that Detective Huckleby had updated one of his

reports, and the new version had not been provided to either trial counsel or

the State. On cross-examination, Mr. Morton testified it was possible

Detective Huckleby generated a new report and did not give it to the State.

Mr. Morton agreed it was the policy of the District Attorney’s Office to turn

over anything that was subject to discovery or that was potentially Brady

material.

Mr. Morton was unsure why Ms. Koelzer was given a polygraph

examination and could not recall whether she was considered a suspect in

this case. He also could not recall whether Mr. Leuty or [Petitioner] were

given polygraph examinations in regards to this case. Although he initially

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testified he did not know about Ms. Koelzer’s polygraph examination until

trial, Mr. Morton later acknowledged it was possible he did know about the

polygraph but did not attach significant weight to it because it would not be

admissible at trial. Prior to the trial court’s ruling that Ms. Koelzer could not

be called as a State witness, Mr. Morton had intended to call her to testify

regarding her knowledge of the crime and to ask whether she had any

involvement in the murder. Upon questioning from the trial court, Mr.

Morton agreed information regarding Ms. Koelzer’s polygraph examination

was something he would have provided to [Petitioner].

Regarding Ms. Swann’s third police statement, Mr. Morton could not

recall whether Detective Huckleby had reminded him of the fact that Ms.

Swann had mentioned seeing the hammer in [Petitioner’s] apartment, and

Mr. Morton testified he was not trying to hide this information from

[Petitioner].

On cross-examination, Mr. Morton testified he learned about Mr.

Leuty’s mental health issues the night before trial. Mr. Leuty contacted Mr.

Morton and mentioned that he was seeing a mental health professional due

to the trauma of having discovered the victim’s body.

Id. at *6-8. At the conclusion of the hearing, the court denied Petitioner’s delayed motion

for new trial, and Petitioner appealed. Id. at *8.

On appeal, Petitioner asserted that the trial court erred in denying his motion for

mistrial following the late disclosure of several discovery materials in violation of Brady

v. Maryland, 373 U.S. 83 (1963). Specifically, Petitioner argued that the State withheld

information regarding Mr. Leuty’s mental health treatment, Ms. Swann’s third police

statement, and the results of Ms. Koelzer’s polygraph examination. Id. at *9-11. Upon

review, this court concluded that Petitioner failed to prove he was prejudiced by any of the

State’s discovery violations. Id. at *11.

In addressing the delayed disclosure of Ms. Koelzer’s polygraph examination, this

court stated:

During the testimony of Detective Huckleby, trial counsel requested

permission to review the detective’s investigation notebook. Inside, trial

counsel discovered a police report indicating Ms. Koelzer had failed a

polygraph examination as well as the polygraph results. Following trial

counsel’s discovery, the trial court ruled that the fact that Ms. Koelzer had

taken a polygraph and the results of the examination were not admissible for

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any purposes. Additionally, the trial court held Ms. Koelzer’s polygraph

results were Brady material and should have been turned over prior to trial.

Instead of granting [Petitioner’s] request for a mistrial, the trial court held the

State was not allowed to call Ms. Koelzer as a witness. However, although

the trial court clarified that its ruling did not prevent the defense from calling

Ms. Koelzer as a witness, trial counsel chose not to do so. At the motion for

new trial hearing, trial counsel testified that if he had been given the

polygraph results prior to trial, he could have discussed them with Ms.

Koelzer. Although trial counsel conceded the results of the examination

would not be admissible at trial, he believed Ms. Koelzer may have had a

“Perry Mason moment” if confronted with the results and confessed to

playing a role in the murder. When asked why he did not call Ms. Koelzer

as a witness, trial counsel testified he no longer trusted her.

According to the polygraph report, during Ms. Koelzer’s examination,

the polygraph examiner detected an indication of deception to the following

questions:

1. Regarding [the victim’s] death, do you intend to answer truthfully

all questions? (ANS: YES)

2. Did you participate in any way in causing [the victim’s] death?

(ANS: NO)

3. Did you lie about being asleep and not knowing that [the victim]

was beaten? (ANS: NO)

4. Did you see [Petitioner] beat [the victim]? (ANS: NO)

We conclude the delayed disclosure of Ms. Koelzer’s polygraph

results was not prejudicial. Although a polygraph result is not admissible,

this [c]ourt has previously held that a deceptive polygraph result is

exculpatory. See Lavely Brown v. State, E2004-00886-CCA-R3-PC, 2005

WL 1882453, at *14 (Tenn. Crim. App. Aug. 8, 2005), perm app denied

(Tenn. Dec. 19, 2005). Here, a polygraph examination indicated Ms. Koelzer

might have been untruthful about her statements regarding her involvement

in the victim’s murder, and the State did not disclose this information to the

defense. However, while the results of the polygraph are exculpatory, we

conclude they are not material. The argument that this information could

have changed trial counsel’s strategy or produced a “Perry Mason moment”

is not supported by the proof. [Petitioner] confessed to hitting the victim

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with a hammer, and his DNA was discovered at the crime scene. No

testimony presented at the trial or the motion for new trial hearing suggested

that Ms. Koelzer had any involvement in the commission of the crime.

Moreover, the results of the polygraph examination would not have been

admitted at trial, and the jury would never have been able to hear them.

Finally, while trial counsel was explicitly given permission to call Ms.

Koelzer as a witness during trial, he chose not to do so. [Petitioner] is not

entitled to relief on this issue.

Id. at *10-11. This court affirmed Petitioner’s judgment of conviction, and the Tennessee

Supreme Court denied further review on May 12, 2021. Id. at *1, *11.

Further post-conviction proceedings

On May 5, 2022, Petitioner, through counsel, filed a petition for post-conviction

4

relief and supporting memorandum, asserting that he was denied the effective assistance

of counsel at trial. The State filed a written response to the petition, denying Petitioner’s

allegations. At a subsequent hearing, the parties made arguments about their respective

positions, but no additional proof was taken. The post-conviction court took the matter

under advisement and then entered a written order denying relief. This timely appeal

follows.

Analysis

In order to prevail on a petition for post-conviction relief, a petitioner must prove

all factual allegations by clear and convincing evidence. Jaco v. State, 120 S.W.3d 828,

830 (Tenn. 2003). Post-conviction relief cases often present mixed questions of law and

fact. See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001). As such, we review a post-

conviction court’s findings of fact under a de novo standard with a presumption that those

findings are correct unless otherwise proven by a preponderance of the evidence. Id. (citing

Tenn. R. App. P. 13(d); Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997)). The post-

conviction court’s conclusions of law and application of the law to factual findings are

reviewed de novo with no presumption of correctness. Kendrick v. State, 454 S.W.3d 450,

457 (Tenn. 2015).

4

Neither the record in this case nor the record in Petitioner’s delayed direct appeal contains a copy

of Petitioner’s original post-conviction petition, in which he sought the delayed direct appeal. We note,

however, that the State did not assert before the post-conviction court, and does not assert on appeal, that

any of Petitioner’s grounds for relief are waived or previously determined on the merits, and the post-

conviction court specifically found in its preliminary order that the instant petition was not barred by the

application of the one-petition rule. See Tenn. Code Ann. §§ 40-30-102(c), 40-30-106(g), (h) (2021).

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When reviewing the post-conviction court’s findings of fact, this court does not

reweigh the evidence or “substitute [its] own inferences for those drawn by the [post-

conviction] court.” Fields, 40 S.W.3d at 456. Additionally, “questions concerning the

credibility of the witnesses, the weight and value to be given their testimony, and the factual

issues raised by the evidence are to be resolved by the [post-conviction court].” Id. (citing

Henley, 960 S.W.2d at 579); see also Kendrick, 454 S.W.3d at 457.

The right to effective assistance of counsel is safeguarded by the Constitutions of

both the United States and the State of Tennessee. U.S. Const. amend. VI; Tenn. Const.

art. I, § 9. In order to receive post-conviction relief for ineffective assistance of counsel, a

petitioner must prove: (1) that counsel’s performance was deficient; and (2) that the

deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984);

see State v. Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App. 1997) (stating that the same

standard for ineffective assistance of counsel applies in both federal and Tennessee cases).

Both factors must be proven for the court to grant post-conviction relief. Strickland, 466

U.S. at 687; Henley, 960 S.W.2d at 580; Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996).

Accordingly, if we determine that either factor is not satisfied, there is no need to consider

the other factor. Finch v. State, 226 S.W.3d 307, 316 (Tenn. 2007) (citing Carpenter v.

State, 126 S.W.3d 879, 886 (Tenn. 2004)). Additionally, review of counsel’s performance

“requires that every effort be made to eliminate the distorting effects of hindsight, to

reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct

from counsel’s perspective at the time.” Strickland, 466 U.S. at 689; see Henley, 960

S.W.2d at 579. We will not second-guess a reasonable trial strategy, and we will not grant

relief based on a sound, yet ultimately unsuccessful, tactical decision. Granderson v. State,

197 S.W.3d 782, 790 (Tenn. Crim. App. 2006).

As to the first prong of the Strickland analysis, “counsel’s performance is effective

if the advice given or the services rendered are within the range of competence demanded

of attorneys in criminal cases.” Henley, 960 S.W.2d at 579 (citing Baxter v. Rose, 523

S.W.2d 930, 936 (Tenn. 1975)); see Goad, 938 S.W.2d at 369. In order to prove that

counsel was deficient, the petitioner must demonstrate “that counsel’s acts or omissions

were so serious as to fall below an objective standard of reasonableness under prevailing

professional norms.” Goad, 938 S.W.2d at 369 (citing Strickland, 466 U.S. at 688); see

also Baxter, 523 S.W.2d at 936. Strategic decisions of counsel are given deference but

only when such choices are informed ones based upon adequate preparation. Id. (citing

Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982); Cooper v. State, 847 S.W.2d 521, 528

(Tenn. Crim. App. 1992)).

Even if counsel’s performance is deficient, the deficiency must have resulted in

prejudice to the defense. Goad, 938 S.W.2d at 370. Therefore, under the second prong of

the Strickland analysis, the petitioner “must show that there is a reasonable probability that,

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but for counsel’s unprofessional errors, the result of the proceeding would have been

different. A reasonable probability is a probability sufficient to undermine confidence in

the outcome.” Id. (quoting Strickland, 466 U.S. at 694) (internal quotation marks omitted).

I. Failure to assert that Petitioner acted in self-defense

Petitioner first contends that he received ineffective assistance of counsel based

upon trial counsel’s failure to assert a self-defense claim. Petitioner avers that “outside of

[trial counsel’s] opening remarks[,]” counsel “barely mentioned the crucial legal defense

at all[,]” despite Petitioner’s desire that counsel raise the defense. He insists that “[a] self-

defense claim was not merely a strategic option” for trial counsel to employ but that it “was

necessary to the proper presentation of [his] defense.” The State responds that Petitioner’s

claim is waived. We agree with the State.

As noted by the State in its brief, Petitioner did not assert in his post-conviction

petition, or in his supporting memorandum, that he was denied the effective assistance of

counsel based upon trial counsel’s failure to raise a claim of self-defense. Generally, issues

not raised in the post-conviction petition are subject to waiver. See, e.g., Foley v. State,

No. M2018-01963-CCA-R3-PC, 2020 WL 957660, at *7 (Tenn. Crim. App. Feb. 27, 2020)

(citing Angel v. State, No. E2018-01551-CCA-R3-PC, 2019 WL 6954186, at *7 (Tenn.

Crim. App. Dec. 18, 2019)), no perm. app filed. However, this court may extend appellate

review to issues presented for the first time at the post-conviction hearing “if the issue was

argued at the post-conviction hearing and decided by the post-conviction court without

objection.” Holland v. State, 610 S.W.3d 450, 458 (Tenn. 2020) (citations omitted).

Here, Petitioner presented no testimony about trial counsel’s decision not to pursue

a claim of self-defense, and the post-conviction court’s written order did not address the

issue. Accordingly, we conclude that the claim is waived. See Cauthern v. State, 145

S.W.3d 571, 599 (Tenn. Crim. App. 2004) (stating that “[i]n the context of a post-

conviction proceeding . . . an issue raised for the first time on appeal is waived”).

II. Failure to call Ms. Koelzer as a witness at trial

Petitioner also contends that the post-conviction court erred in denying relief on his

claim that he received ineffective assistance of counsel based upon trial counsel’s failure

to call Ms. Koelzer as a witness at trial. Petitioner argues that, if trial counsel had called

Ms. Koelzer to testify, her testimony would have presented the jury with “the possibility

of another suspect being involved in the murder.” The State responds that the post-

conviction court did not err in denying relief as Petitioner failed to establish that trial

counsel’s decision not to call Ms. Koelzer to testify was deficient performance or that, but

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for counsel’s failure to call her as a witness, the results of the proceeding would have been

different. We agree with the State.

In addressing Petitioner’s claim that trial counsel rendered ineffective assistance

when he failed to call Ms. Koelzer as a witness after learning that she failed a polygraph

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

counsel’s performance was deficient or resulted in prejudice. The court noted Petitioner’s

suggestion in his memorandum of law that Ms. Koelzer’s deception during the polygraph

examination “would potentially give the jury considering the case the possibility of another

suspect being involved in the murder.” The court rejected this argument, however, stating:

First, both parties agreed pursuant to the record in this trial and the

delayed motion for new trial that the polygraph examination report and its

contents would generally not be admissible in trial. Second, and what weighs

heavily against Petitioner’s position is that the record reflects that Petitioner

admitted to [Detective] Huckleby that he committed the homicide and

articulated the method and manner of how he accomplished the homicide as

well as where the instrumentalities were located. Additionally, weighing

heavily against the theory that Ms. [Koelzer] could have been involved in the

homicide, proof was offered by Special Agent Jennifer Millsaps of the

Tennessee Bureau of Investigation. Special Agent Millsaps’ testimony

corroborated that Petitioner was physically on the scene of the homicide by

his blood being present at various locations about the interior and exterior of

the residence and at the victim’s residence across the street.

Further, there was no proof offered whatsoever in trial that Ms.

[Koelzer] was complicit in the murder. The argument that Ms. [Koelzer]

could have had a “Perry Mason moment” had she been called as a witness in

trial and incriminate herself about involvement in the homicide is a long shot.

Beyond that, trial counsel’s decision not to call Ms. [Koelzer] as a witness in

the trial given the circumstances regarding forensic proof and admissions by

Petitioner himself cannot support the contention that Petitioner was deprived

of a fair trial and the failure to call Ms. [Koelzer] as a witness called into

question the reliability of the outcome.

The record does not preponderate against the post-conviction court’s findings.

Fields, 40 S.W.3d at 458. The record reflects trial counsel received a copy of Ms. Koelzer’s

police statements in discovery and that counsel spoke with her multiple times prior to trial.

However, Ms. Koelzer failed to mention that she had taken a polygraph examination, and

trial counsel testified that, when he learned this information during trial, he no longer

trusted Ms. Koelzer, and it made it difficult for him to determine whether her testimony

- 22 -

would benefit Petitioner. Trial counsel made a reasonable tactical decision not to have Ms.

Koelzer testify after considering the risks against the potential benefits of her testimony,

and as noted by the State, strategic decisions by trial counsel are “virtually

unchallengeable.” Strickland, 466 U.S. at 690. Petitioner has not shown deficient

performance on the part of trial counsel.

Moreover, Petitioner has failed to establish that, but for trial counsel’s decision not

to call Ms. Koelzer at trial, a reasonable probability exists that the outcome of the

proceeding would have been different. To prove prejudice when trial counsel fails to call

a witness at trial, a petitioner must present that witness at the post-conviction hearing. See

Black v. State, 794 S.W.2d 752, 757-58 (Tenn. Crim. App. 1990). “It is elementary that

neither a trial judge nor an appellate court can speculate . . . what a witness’s testimony

might have been . . . .” Id. at 757. Because Petitioner failed to present Ms. Koelzer’s

testimony, the record supports the post-conviction court’s determination that Petitioner did

not establish prejudice under Strickland. Petitioner is not entitled to relief on this claim.

See id. at 758 (“[T]he petitioner is not entitled to relief . . . unless he can produce a material

witness who . . . would have testified favorably in support of his defense if called.”).

Conclusion

Based upon the foregoing, we affirm the judgment of the post-conviction court.

____________________________________

ROBERT L. HOLLOWAY, JR., JUDGE

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