Session Heard at Cookeville May 28, 2014, 
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Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Criminal Appeals Reversed; Case Remanded. Appeal by Permission from the Court of Criminal Appeals Criminal Court for Hamilton County. No. 220622. Don W. Poole, Judge.
Robert E. Cooper, Jr., Attorney General and Reporter; Gordon W. Smith, Associate Solicitor General; John H. Bledsoe, Senior Counsel; Bill Cox, District Attorney General; and Lance Pope, Assistant District Attorney General, for the appellant, State of Tennessee.
Edward T. Kendrick, III, Pro se, and Ann C. Short, Knoxville, Tennessee, for the appellee, Edward Thomas Kendrick, III.
Stephen Ross Johnson and W. Thomas Dillard, Knoxville, Tennessee, for the Amici Curiae National Association of Criminal Defense Lawyers and Tennessee Association of Criminal Defense Lawyers.
WILLIAM C. KOCH, JR., J., delivered the opinion of the Court, in which SHARON G. LEE, C.J., JANICE M. HOLDER, CORNELIA A. CLARK, and GARY R. WADE, JJ., joined.
WILLIAM C. KOCH, JR., JUSTICE
This post-conviction appeal involves ineffective assistance of counsel claims made by a prisoner who fatally shot his wife. A Hamilton County jury, rejecting the prisoner's defense that his rifle had malfunctioned and fired accidentally, convicted him of first degree premeditated murder. The Court of Criminal Appeals affirmed his conviction on direct appeal. State v. Kendricks, 947 S.W.2d 875 (Tenn. Crim. App. 1996). The prisoner later filed a petition for post-conviction relief in the Criminal Court for Hamilton County alleging, among other things, that his trial counsel had been ineffective because he decided not to seek an expert to rebut the anticipated testimony of the prosecution's expert and because he did not attempt to use an exception to the hearsay rule to introduce statements favorable to the prisoner. The post-conviction court conducted a hearing and denied the petition. The Court of Criminal Appeals reversed the post-conviction court and granted the prisoner a new trial after concluding that trial counsel's representation had been deficient and that, but for these deficiencies, the jury might have convicted the prisoner of a lesser degree of homicide. Kendrick v. State,
2013 WL 3306655 (Tenn. Crim. App. June 27, 2013). We granted the State's application for permission to appeal. Trial counsel's decisions not to consult an expert to rebut the anticipated testimony of a prosecution expert and not to attempt to introduce a potentially favorable hearsay statement did not amount to deficient performance that fell below the standard of reasonableness. Accordingly, we reverse the decision of the Court of Criminal Appeals and remand for consideration of the prisoner's remaining claims.
Edward T. Kendrick, III and Lisa Kendrick were married and had two children, a three-year-old son and a four-year-old daughter. Their marriage had failed, but they were continuing to live together while they pursued an irreconcilable differences divorce. Mr. Kendrick was angry because he suspected that Ms. Kendrick was having an affair.
Ms. Kendrick worked at a gas station in Chattanooga. At approximately 10:00 p.m. on March 6, 1994, Mr. Kendrick drove the couple's station wagon to the gas station. Their two children were in car seats in the station wagon's rear seat. On the floorboard of the front passenger seat was a loaded Remington Model 7400 .30-06 caliber hunting rifle.
Mr. Kendrick entered the gas station and asked Ms. Kendrick to come out to the car because he had something to show her. When she finished waiting on another customer, Ms. Kendrick followed Mr. Kendrick to the automobile. As Ms. Kendrick approached the automobile, Mr. Kendrick opened the back passenger door and spoke briefly to the children. Then, he opened the front passenger door, picked up the loaded rifle from the floorboard, and walked to the back of the automobile carrying the rifle.
The rifle fired, and a single bullet struck Ms. Kendrick in the chest. She fell backward onto the pavement and died almost instantly. Mr. Kendrick stated later that he stood over Ms. Kendrick's body for a few seconds, looking into her eyes as she died. Then, he got back into the automobile and drove toward the airport.
A bystander followed Mr. Kendrick. At some point during the relatively short drive to the airport, Mr. Kendrick threw his rifle out of the window of the moving automobile. Upon arriving at the airport, Mr. Kendrick used his cellular telephone to call 9-1-1. He told the operator that he had shot his wife. During the same time frame, the bystander who had followed Mr. Kendrick to the airport told a police officer standing outside the airport what had happened at the gas station. Mr. Kendrick was taken into custody.
Early the following morning, Steve Miller, a crime scene investigator, found Mr. Kendrick's rifle on the side of the road. He placed the rifle in the trunk of his automobile and drove to the police station. The rifle fired while Sergeant Miller was removing it from the trunk of his automobile, striking his left foot.
In November 1994, Mr. Kendrick was tried for the murder of his wife in the Criminal Court for Hamilton County. The State presented twelve witnesses, including Sergeant Miller, the Kendricks' four-year-old daughter, and an expert firearms examiner. Mr. Kendrick presented four witnesses and testified on his own behalf. The State called one rebuttal witness.
The jury convicted Mr. Kendrick of premeditated first degree murder, which carried an automatic life sentence. On direct appeal, the Court of Criminal Appeals upheld the conviction. State v. Kendricks, 947 S.W.2d 875 (Tenn. Crim. App. 1996), perm. app. denied (Tenn. 1997).
Mr. Kendrick filed a petition for post-conviction relief in April 1998. The postconviction court dismissed the petition after deciding that the issues it raised were either waived or previously determined. However, after finding that Mr. Kendrick's ineffective assistance of counsel claims had not been waived, the Court of Criminal Appeals reversed the post-conviction court and remanded the case for further proceedings. Kendricks v. State, 13 S.W.3d 401, 405 (Tenn. Crim. App. 1999) (No Tenn. R. App. P. 11 application filed).
In March 2000, Mr. Kendrick, aided by counsel, filed an amended petition for postconviction relief. At a series of hearings in February and March 2011 -- almost sixteen years after his original trial -- Mr. Kendrick raised forty-three claims of ineffective assistance of trial counsel, twenty-two claims of ineffective assistance of appellate counsel on direct appeal, and twelve claims of prosecutorial misconduct. He supported these claims with a 631-page memorandum of law.
The post-conviction court declined to grant Mr. Kendrick relief in an order filed on October 13, 2011. On appeal, the Court of Criminal Appeals reversed the post-conviction court's dismissal of Mr. Kendrick's petition but limited its decision to only two of the forty-three claims of ineffective assistance of trial counsel. The appellate court determined that trial counsel's performance had fallen below an objective standard of reasonableness when counsel failed to obtain expert evidence to rebut Mr. Fite's testimony that Mr. Kendrick's rifle could only be fired by pulling the trigger and when counsel failed to attempt to introduce hearsay evidence regarding Sergeant Miller's initial explanation about how he came to be shot by Mr. Kendrick's rifle. Kendrick v. State, No. E2011-02367-CCA-R3-PC, 2013 WL 3306655, at *13-14 (Tenn. Crim. App. June 27, 2013). The appellate court also determined that these errors prejudiced Mr. Kendrick because had it heard such evidence, " it is reasonably likely the jury would have accredited the Petitioner's version of events and convicted him of a lesser degree of homicide." Kendrick v. State, 2013 WL 3306655, at *17. Based on these conclusions, the Court of Criminal Appeals pretermitted its consideration of Mr. Kendrick's remaining claims. Kendrick v. State, 2013 WL 3306655, at *18.
This claim has been brought under Tennessee's Post-Conviction Procedure Act. The Act directs Tennessee's courts to grant post-conviction relief to a person " in custody" whose " conviction or sentence is void or voidable because of the abridgement of any right guaranteed by the Constitution of Tennessee or the Constitution of the United States." Tenn. Code Ann. § § 40-30-102,-103. The prisoner seeking post-conviction relief bears " the burden of proving the allegations of fact by clear and convincing evidence." Tenn. Code Ann. § 40-30-110(f) (2012); see also Tenn. S.Ct. R. 28, § 8(D)(1); Nesbit v. State, S.W.3d , , 2014 WL 5901964, at *2 (Tenn. 2014).
Appellate courts review a post-conviction court's conclusions of law, decisions involving mixed questions of law and fact, and its application of law to its factual findings de novo without a presumption of correctness. Nesbit v. State, 2014 WL 5901964, at *1; Whitehead v. State, 402 S.W.3d 615, 621 (Tenn. 2013). However, appellate courts are bound by the post-conviction court's underlying findings of fact unless the evidence preponderates against them. Arroyo v. State, 434 S.W.3d 555, 559 (Tenn. 2014); Dellinger v. State, 279 S.W.3d 282, 294 (Tenn. 2009). Accordingly, appellate courts are not free to re-weigh or re-evaluate the evidence, nor are they free to substitute their own inferences for those drawn by the post-conviction court. State v. Honeycutt, 54 S.W.3d 762, 766 (Tenn. 2001). Appellate courts must generally defer to a post-conviction court's findings concerning witness credibility, the weight and value of witness testimony, and the resolution of factual issues presented by the evidence. Whitehead v. State, 402 S.W.3d at 621; Momon v. State, 18 S.W.3d 152, 156 (Tenn. 1999).
Mr. Kendrick's substantive allegation is that he was denied his constitutional right to effective assistance of counsel. Article I, Section 9 of the Constitution of Tennessee establishes that every criminal defendant has " the right to be heard by himself and his counsel." Likewise, the Sixth Amendment to the United States Constitution guarantees that all criminal defendants " shall enjoy the right . . . to have the [a]ssistance of [c]ounsel." These constitutional provisions have been interpreted to guarantee a criminal defendant the right to effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975).
To prevail on a claim of ineffective assistance of counsel, a petitioner must prove both that counsel's performance was deficient and that counsel's deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. at 687; Felts v. State, 354 S.W.3d 266, 276 (Tenn. 2011). A court need not address both elements if the petitioner fails to demonstrate either one of them. Strickland v. Washington, 466 U.S. at 697; Garcia v. State, 425 S.W.3d 248, 257 (Tenn. 2013). Each element of the Strickland analysis involves a mixed question of law and fact - a question this Court will review de novo without a presumption that the courts below were correct. Williams v. Taylor, 529 U.S. 362, 419, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000); Strickland v. Washington, 446 U.S. at 698; Davidson v. State, S.W.3d , , 2014 WL 6645264, at *3 (Tenn. 2014); Calvert v. State, 342 S.W.3d 477, 485 (Tenn. 2011).
Deficient performance means that " counsel's representation fell below an objective standard of reasonableness." To determine whether counsel performed reasonably, a reviewing court must measure counsel's performance under " all the circumstances" against the professional norms prevailing at the time of the representation. Strickland v. Washington, 466 U.S. at 688; see also Baxter v. Rose, 523 S.W.2d at 932-33. Counsel's performance is not deficient if the advice given or the services rendered " are within the range of competence demanded of attorneys in criminal cases." Baxter v. Rose, 523 S.W.2d at 936; see also Harrington v. Richter, 562 U.S. 86, , 131 S.Ct. 770, 778, 178 L.Ed.2d 624 (2011) (" The question is whether an attorney's representation amounted to incompetence under 'prevailing professional norms,' not whether it deviated from best practices or most common custom." (quoting Strickland v. Washington, 466 U.S. at 690));
Padilla v. Kentucky, 559 U.S. 356, 366, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010) (" [Deficient performance] is necessarily linked to the practice and expectations of the legal community: 'The proper measure of attorney performance remains simply reasonableness under prevailing professional norms' [considering all the circumstances]." (internal citations omitted)).
In Strickland v. Washington, the United States Supreme Court discussed the interaction between counsel's duty to investigate and counsel's freedom to make reasonable strategic choices:
[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments.
Strickland v. Washington, 466 U.S. at 690-91.
A Strickland analysis, therefore, begins with the strong presumption that counsel provided adequate assistance and used reasonable professional judgment to make all significant decisions. Strickland v. Washington, 466 U.S. at 689. The petitioner bears the burden of overcoming this presumption. Strickland v. Washington, 466 U.S. at 687; see also Burt v. Titlow, 571 U.S. , , 134 S.Ct. 10, 17 (2013); Nesbit v. State, 2014 WL 5901964, at *3; State v. Burns, 6 S.W.3d 453, 461-62 (Tenn. 1999). Reviewing courts should resist the urge to judge counsel's performance using " 20-20 hindsight." Mobley v. State, 397 S.W.3d 70, 80 (Tenn. 2013) (quoting Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982)); see also Strickland v. Washington, 466 U.S. at 689 (instructing reviewing courts to try " 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" ).
The second element of the Strickland analysis focuses on whether counsel's deficient performance " prejudiced" the defendant. Strickland v. Washington, 466 U.S. at 687. The question at this juncture is " whether counsel's deficient performance renders the result of the trial unreliable or the proceeding fundamentally unfair." Lockhart v. Fretwell, 506 U.S. 364, 372, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993) (citing Strickland v. Washington, 466 U.S. at 687). To prove prejudice, the petitioner must establish " a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. at 694. A " reasonable probability" is a lesser burden of proof than " a preponderance of the evidence." Williams v. Taylor, 529 U.S. at 405-06; Pylant v. State, 263 S.W.3d 854, 875 (Tenn. 2008). A reasonable probability is " a probability sufficient to undermine confidence in the outcome." Strickland v. Washington, 466 U.S. at 694; see also Vaughn v. State, 202 S.W.3d 106, 116 (Tenn. 2006); Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996).
Mr. Kendrick's claims regarding the ineffectiveness of his trial counsel necessitate a careful review of his November 1994 trial. Each side clearly presented their theory of the case in their opening statements to the jury. The State told the jury:
It's the State's theory that Edward Kendrick escorted his wife outside [of the gas station where she worked] to execute her and that's what he did. He took her outside, removed his Remington 7400 .30-06 hunting rifle from the back of his car and in front of his two small children, leveled the weapon, pointed it at his wife and shot her at point-blank range one time, dead center in the chest.
In his opening statement, Mr. Kendrick's trial counsel told the jury the State would not be able to prove " intent" or " premeditation" :
Lisa Kendrick was killed but not by Edward Kendrick. Lisa Kendrick was killed by a faulty rifle that was being transferred from the front of [their station wagon] to the back, . . . and the gun went off. The State would have you believe there is no merit . . . to that defense, but because [a crime scene investigator] picked up this gun at the scene they are going to have to put him on. You can ask yourself . . . why [that crime scene investigator] was shot in the foot with his hand nowhere near the trigger with the very same weapon. I'll ask him that for you.
The State's first witnesses were persons who were at the gas station when Ms. Kendrick was shot. Timothy Benton, the person who followed Mr. Kendrick from the gas station to the airport following the shooting, testified that he heard an explosion as he was pulling out of the gas station and that when he turned around, he saw Mr. Kendrick holding a rifle with the barrel pointed straight up in the air. He stated that Mr. Kendrick's " right hand was on the pistol grip area around the trigger and [his] left hand was up near the stock." Mr. Benton also testified that Mr. Kendrick was standing over Ms. Kendrick's motionless body.
The State then called Lennell Shepheard, a friend of Ms. Kendrick who was talking with Ms. Kendrick in the gas station when Mr. Kendrick arrived. Mr. Shepheard testified that Mr. Kendrick asked his wife to come outside because he had something to show her. He also testified that when he heard the shot, he walked from the counter to the door of the gas station and, when he opened the door, he saw Mr. Kendrick standing over his wife's body. Mr. Shepheard testified that he heard Mr. Kendrick " yelling 'I told you so' . . . about six times." He also stated that he went back inside the gas station after he and Mr. Kendrick made eye contact.
On cross-examination, Mr. Kendrick's lawyer suggested that Mr. Shepheard had not mentioned in his earlier statements that he heard Mr. Kendrick say " I told you so" and insinuated that Mr. Shepheard had fabricated this portion of his testimony. Mr. Shepheard responded that he had reported Mr. Kendrick's statement to an officer at the scene and later to one of the district attorney's investigators. The lead investigator, Detective Mark Rawlston, later testified that an audio recording of Mr. Shepheard's statement at the scene contained no reference to Mr. Kendrick's saying " I told you so."
The jury heard the 9-1-1 telephone calls made by two witnesses at the scene, as well as the call Mr. Kendrick made from the airport. " I want to turn myself in," Mr. Kendrick said, " My wife, I just shot my wife . . . I'm parked at the airport." When the 9-1-1 operator asked, " Why did
you shoot her?" Mr. Kendrick only responded, " Yes." Thereafter, the conversation turned to where Mr. Kendrick was located at the airport.
Mr. Kendrick's trial counsel made sure that the jury heard early and often that Sergeant Miller, one of the crime scene investigators, had been shot in the foot while handling Mr. Kendrick's rifle. During cross-examination by Mr. Kendrick's lawyer, Detective Rawlston testified that he did not consider the possibility that Mr. Kendrick's rifle had accidentally discharged. This answer prompted Mr. Kendrick's lawyer to ask, " What about when the crime scene technician lifted the gun out of the trunk of his car and shot himself in the foot with it, saying all the time that his finger was nowhere near the trigger, what about that, that wasn't an issue you thought worthy of investigation?" Detective Rawlston responded that he did not consider the possibility of an accidental discharge because when he first interviewed Mr. Kendrick following his arrest, Mr. Kendrick " never at any time indicated to me that this was an accidental discharge." To the contrary, Mr. Kendrick told him, " I hope this is only a dream."
Testifying after Detective Rawlston, Sergeant Miller explained that after he retrieved the rifle from the side of the road and drove it to the police service center, " the weapon discharged and it struck [him] in the left foot" as he was removing it from the trunk of his automobile. Sergeant Miller said that he was holding a coat in his left hand and that he picked up the weapon with his right hand with the barrel " pointed down towards the pavement." He also testified that he had " no recollection of how the weapon discharged."
When asked to demonstrate for the jury how he was holding the rifle when it fired, Sergeant Miller held the weapon without putting his finger on the trigger. However, when the prosecutor specifically asked him if he remembered whether his finger was on the trigger when the rifle discharged, Sergeant Miller stated that he did not remember.
Mr. Kendrick's trial counsel continued this line of questioning when he crossexamined Sergeant Miller, even though Sergeant Miller insisted that he did not recall whether his finger touched the trigger when the rifle discharged. The following colloquy took place:
Q: Did you ever have your finger on the trigger when it discharged?
A: I don't recall.
Q: Well, didn't you, in fact, tell - there is an investigation and review of any time an officer is shot, is that correct?
A: I don't remember anybody coming, you know, the people that generally do that, I don't believe they came.
Q: You never made any statement to those people that your finger was not on the trigger?
A: Not that I recall because most of my statement was made when I was in the hospital and what we do is fill out what's called an EOF, if something that happens to you on duty and when you get injured. And that was made when I was in the hospital.
Q: Well, you wouldn't shoot yourself in the foot intentionally, would you?
A: No, sir.
Q: How long have you been a police officer?
A: Going on 22 years.
Q: When you picked up the gun and you showed the jury how you turned, you had your hand just like that?
Q: You don't put your finger on the trigger, do you?
A: No, sir.
Q: Okay. So when you turned the gun around is when it went off?
A: That's what I've described.
Q: As you swung around the gun swung around with you and your hand just like that and the gun went off, is that correct?
A: But I can't say that night that was the exact position of my hand, is what I'm saying.
Q: Well, in 22 years as a police officer, have you ever discharged a gun before accidentally into your foot?
A: No, sir.
Q: Okay. Or. in any other part of ...